The Legitimate Scope of Legislative Oversight and Investigation of Trump …

… What do the Cases Say?[1]

Modern case law on the limits of congressional oversight has evolved into a fairly coherent body of principles. The Supreme Court and other precedents are much more consistent with one another than is true in other areas of constitutional law.

It is likely that at least some of the Supreme Court justices will apply these principles rationally and in good faith to Trump’s blanket objections to oversight. But it is at least theoretically possible that a majority could choose to disregard established precedent. They might do this overtly, by identifying previous cases as wrongly decided. Or they might act in bad faith, deliberately misinterpreting and misapplying the precedents. That, we cannot control or reliably predict. But we can say with some confidence what principles may be distilled from the many Supreme Court and other judicial decisions that have addressed legitimate congressional investigation and oversight of the executive branch.

The General Rules

  1. The Power to Investigate as an Implied Power of Congress.Article I of the Constitution says nothing about Congress’ right to investigate or exercise oversight. Accordingly, it has sometimes been argued that Congress has no such power. The Supreme Court has, however, repeatedly rejected this argument. Instead, the cases tell us that the two houses of Congress, acting through their committees, have broad power to conduct fact-finding relevant to their legitimate functions. These legitimate functions include:
  • deciding whether there is a need for legislation on a particular topic and, if so, what form the legislation should take (including “surveys of defects in our social, economic or political system for the purpose of enabling Congress to remedy them”)
  • deciding what money should be appropriated for what purposes
  • general oversight of the executive branch (Congress’ power “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the government”)
  • impeachment (House of Representatives) and removal from office (Senate)
  • approval or disapproval of the President’s acceptance of foreign emoluments.
  1. The Implied Power to Compel Testimony and Information.The cases are crystal clear that effective information-gathering implies the power to compel testimony and document production from witnesses.
  1. Courts as Final Arbiters of Legitimacy of Investigations.Each branch of government is entitled, even duty bound, to interpret the Constitution, but where branches differ, it is the courts that have the final say.
  1. “Bad Motive” as a Defense to Investigation?An investigation that is reasonably related to a legitimate congressional function may not be resisted on the ground that members of Congress are biased or acting out of political motives. The principle of separation of powers—and, in particular, the Constitution’s Speech or Debate Clause—require that claims of inappropriate congressional motivation be disregarded by the courts, where it appears on the face of things that an investigation has a reasonable relationship to a legitimate legislative purpose.

Exceptions, Qualifications, and Limitations to the General Rules

A. No Power to Conduct Investigations Unrelatedto Legitimate Functions of Congress.Congress does not have unlimited power to inquire into any matter it chooses, including the private business affairs of individuals it thinks may have behaved unlawfully or otherwise objectionably. Exposure, merely for the sake of exposure, is not allowed. But the courts must rebuttably presume that Congress is using its investigative powers in good faith.

Note: persons accused of aiding government corruption commonly claim they are being investigated by their political enemies for the mere sake of exposure. Such claims are generally rejected. But the core of Trump’s argument in the accounting case is that Congress has no valid legislative purpose in attempting to find and expose illegal business conduct. A closely related argument is Trump’s claim that Congress is impermissibly trying to act as a law enforcement agency (see point D, below.) 

The House of Representatives clearly has the constitutional power to impeach—a function similar to that of a grand jury. It’s likely that the courts would say that, in dealing with impeachment, the House has wide investigative powers similar to a grand jury. But Trump’s lawyers make a big deal out of the absence of any House resolution authorizing an impeachment inquiry. 

B. Inquiries Must be “Pertinent” to the Exercise of the Legislative Function. Even if an investigation is lawful and the witness in question is lawfully before Congress, he or she may still object if specific information being sought is not “pertinent” to the investigation.

In litigation over the “pertinency” of a particular question, the presumption of innocence carries more weight than the presumption of “pertinency.” That means, the government bears the burden of proving that the question posed was indeed “pertinent” to the investigation.

Comment: in view of points A and B, it would appear that a statute requiring disclosure of any citizen’s tax returns to Congress could, in principle,be applied in ways that would unconstitutionally exceed Congress’s right to investigate.

C. What if the Possible Legislation Being Considered would be Unconstitutional?Then the investigation might be deemed improper, and the witness might be excused from testifying. But, of course, a court should be mindful that potential legislation could take many forms, and some of them might be OK.

Note: Trump advances based on this principle, claiming, for example, that, at least outside of impeachment, Congress may not enforce violation of the Emoluments Clause, and accordingly has no business investigating alleged violations of the Emoluments Claims or attempting to uncover Trump’s conflicts of interest.

D. Improper to Usurp Judicial or Executive Branch Functions. Congress may not perform the functions of a court or a prosecutor, except in the case of impeachment and removal from office. Nor may an investigation unduly interfere with ongoing criminal proceedings.

Again, miscreants subject to legitimate congressional investigations often invoke these arguments, generally without success. 

As noted above, Trump’s lawyers lay heavy emphasis on their claim that, at least where impeachment isn’t on the table, the House has no legal ability to gather facts merely for the sake of exposing violations of law.

E. Potential Exposure of Crimes Not an Excuse for Failure to Comply.Notwithstanding point D, the possibility that a congressional investigation might uncover criminal conduct does not excuse a witness from complying with an otherwise proper demand for information.

F. Congress Must Respect Individual Civil Rights.And, notwithstanding point E, a witness may legitimately object to a violation of his Fifth Amendment right not to incriminate himself. Similarly, even in a proper investigation, Congress may not violate other civil rights, such as free speech, freedom of the press, and freedom of association, and freedom under the Fourth Amendment to be free of unreasonable searches and seizures.

Note: issues arising under point F often call for a court to weigh and balance the rights of the individual versus Congress’s need for information. For example, courts are skeptical about claims of “chilling” free speech or about invasion of privacy. 

G. “Privileges” as a Defense for Noncompliance. This area of case law is less developed, and more uncertain, than the principles discussed above. 

a. The Attorney-Client Privilege. Lawyers for Congress have claimed that the attorney-client privilege, a rule of evidence that applies to court proceedings, does not excuse compliance with congressional demands for information. But the principle has seldom been tested in court, and congressional investigations have often respected legitimate assertions of attorney-client privilege.

b. A Broad “Deliberative Process Privilege”?Some presidents, including Reagan and Obama, have asserted a broad privilege against disclosure of communications within the executive branch, but these broad assertions haven’t received any definitive judicial treatment. In addition, Reagan and Obama spokesmen recognized that such a broad privilege could not shield corrupt or fraudulent conduct.

c. A Narrower “Executive Privilege.”Several important decisions recognize a rather narrow executive privilege—shielding communications between the president and her advisers—where 1) the protected communication was written, solicited, or received by the president or by one of her close advisers and 2) the communication relates to a core presidential power, such as the pardon power or the power to conduct foreign policy.

d. The Executive Privilege is a Qualified Privilege against Disclosure. The privilege may be overcome where the information sought is important evidence in a legitimate investigation and is not overwise available to the investigator.

e. A Crime/Fraud Exception to Executive Privilege?A client may not hide behind attorney-client privilege if the topic of his conversation with his lawyer is an ongoing crime or fraud.

I think it’s likely that a court would apply the same rule with regard to executive privilege.

f. “Waiver” of Executive Privilege.Where partial disclosure has been made, a court will rule that any attorney-client privilege has been waived. The underlying thought is that it’s unfair to let a client disclose all the good facts while hiding all the bad facts about his dealings with his lawyer.

It’s likely, in my view, that the courts would apply the same limitation to any assertion of executive privilege.

[1]Principles distilled from Anderson v. Dunn, 6 Wheat. 204 (U.S. 1821); Kilbourn v. Thompson, 102 U.S. 168 (1880); McGrain v. Daugherty, 273 U.S. 135 (1927); Sinclair v. United States, 279 U.S. 263 (1929); Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1948); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Tenney v. Brandhove, 341 U.S. 367 (1951); United States v. Rumely, 345 U.S. 41 (1953); Quinn v. United States, 349 U.S. 155 (1955); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 US. 109 (1959); McPhaul v. United Statess, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968); United States v. Nixon, 418 U.S. 683 (1974); Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491 (1975); McSurely v. McClennan, 521 U.S. 1024 (D.C. Cir.1975); Nixon v. Administrator of General Services, 433 U.S. 425 (1977); Exxon v. FTC, 589 F.2d 582 (D.C. Cir. 1978); United States v House of Representatives, 556 F. Supp. 150 (D..C.C. 1983); Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997); Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108 (D.C. Cir. 2004); Comm. on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.C.C. 2008); Comm. on Oversight and Reform v. Holder, 979 F. Supp. 2d 1 (D.C.C. 2013); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018); Trump v. Comm. on Oversight and Reform (D.D.C. 2019); Trump v. Deutsche Bank AG (S.D.N.Y. 2019).