Congressional Investigations Law Blog

In December 2010, Rep. Peter King (R-NY), the new chair of the House Committee on Homeland Security, announced in an op-ed his intention of holding hearings on "radicalization of the American Muslim community and homegrown terrorism."

Following up on a Politico story from last week, today's Washington Post ran a story on reactions from the Muslim community in Rep. King's Long Island district to his announcement of these hearings.

Such hearings are not new to Congress, as Senator Joseph I. Lieberman, Chair of the Senate Committee on Homeland Security & Governmental Affairs held nearly a dozen such hearings on "Violent Islamist Extremism and the Homegrown Terrorist Threat," between 2006 and 2009.

In hearings that could help strengthen our law enforcement, intelligence, and homeland security apparatus to protect Americans from additional harm, these congressional committees need to respect the limitations of their authority when conducting these investigations.

The legal limitations include but are not limited to respect of individual's constitutional rights, such as those protected by the First Amendment, the Fourth Amendment, and the Fifth Amendment. Care also must be paid to the crafting of the resolution authorizing the investigation, and the questions asked pursuant to it. Violating constitutional rights or exceeding the scope of the authorizing resolution could result in a legally unenforceable investigation or set of questions, See Watkins v. United States, 354 U.S. 178 (1957).

But appealing to a federal court might be more difficult than appealing to the court of opinion, which also will have a large say -- depending on the media coverage of such hearings -- on whether a Chair has overreached. Challenging the authority of a congressional subpoena is highly difficult after the Supreme Court's decision in Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (1976), which held that the Speech or Debate Clause of the Constitution bars judicial review of a congerssional subpoena, so long as the issuance of the subpoena was an act made "within the legitimate legislative sphere." In most situations, the practical upshot of Eastland is that a recipient of a subpoena would need to refuse to comply with the subpoena and submit herself to contempt proceedings before she would have an opportunity to have a federal court review the lawful enforceability vel non of the congressional subpoena.

Submitting oneself to contempt is an extraordinary step, which is why we have seen so few published decisions on the legitimacy of congressional inquiries.

For that reason, an educated, active press must play a role in questioning whether congressional inquiries are fair and lawful. If the court of public opinion does not agree with the approach a congressional investigation is taking, such a public reaction can and will have an impact on the investigation.

Yesterday, Rep. Darrell Issa (R-CA), Chairman of the House Committee on Oversight & Government Reform announced the names of the new subcommittee Chairs and Vice Chairs. They are listed below:

The Subcommittee on Federal Workforce, U.S. Postal Service and Labor Policy
Chair: Rep. Dennis Ross (FL-12)
Vice Chair: Rep. Justin Amash (MI-3)

The Subcommittee on Government Organization, Efficiency and Financial Management
Chair: Rep. Todd Platts (PA-19)
Vice Chair Rep. Connie Mack (FL-14)

The Subcommittee on Health Care, District of Columbia, Census and the National Archives
Chair: Rep. Trey Gowdy (SC-4)
Vice Chair: Dr. Paul Gosar (AZ-1)

The Subcommittee on National Security, Homeland Defense and Foreign Operations
Chair: Rep. Jason Chaffetz (UT-03)
Vice Chair: Rep. Raul Labrador (ID-1)

The Subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending
Chair: Rep. Jim Jordan (OH-04)
Vice Chair: Rep. Ann Marie Buerkle (NY-25)

The Subcommittee on TARP, Financial Services and Bailouts of Public and Private Programs
Chair: Rep. Patrick T. McHenry (NC-10)
Vice Chair: Rep. Frank Guinta (NH-1)

The Subcommittee on Technology, Information Policy, Intergovernmental Relations and Procurement Reform.
Chair: Rep. James Lankford (OK-5)
Vice Chair: Rep. Mike Kelly (PA-3)

The Washington Post today reported that at least four Members of Congress have invoked the Speech or Debate Clause of the U.S. Constitution as a legal bar to Justice Department investigations of them.

The Speech or Debate Clause is embedded within Article I, Section 6, Clause 1 of the Constitution, which provides that Members of the U.S. Senate and House "shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place."

The Members' recent invocation of this Clause as a defense and a tool in their fight against the Executive Branch's investigations of them likely will go to the courts. Although the issue does not directly impact congressional investigations, how courts interpret the Speech or Debate Clause could affect them as follows:

The Supreme Court ruled in Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), that congressional subpoenas could not be successfully challenged in court, so long as the Member or congressional staff member could show that the subpoena was an activity conducted "within the legislative sphere." We will watch to see if the courts,in their effort to intepret the Speech or Debate Clause as a tool against government investigations of Members vel non, will rely on or suggest an alteration of the Eastland Court's interpretation of the Clause.

Criticizing the final report of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, the new Chair of the House Energy & Commerce Committee, Rep. Fred Upton (R-MI), said in a press release: "Neither this nor any investigation should be used as political justification for a pre-determined agenda to limit affordable energy options for America." It will be interesting to see whether he and other committee chairmen in both the Republican-led House and the Democrat-led Senate heed Chairman Upton's maxim.

The House Energy & Commerce Committee held several hearings on the BP Deepwater Horizon Oil Spill this past summer, but did not appear to release a final report.

Today marks the first day of the congressional term. Rep. Darrell Issa (R-CA) officially becomes Chair of the House Committee on Oversight and Government Reform. As an inaugural act, he launched a new web site for the committee he chairs. The committee's new Ranking Member is Rep. Elijah Cummings (D-MD), who also launched a new web site for the minority side of the committee. The majority's web site does not differ too much from the old web site, except that the drop-down menu for "Investigations" has been replaced with a drop-down menu entitled, "Signs of a Failed Stimulus."

According to both new web sites, no hearings are scheduled, and no new investigations have been announced.

These web sites, however, are both ones to watch as investigations pick up over the course of this congressional term.

Likewise, the House Energy and Commerce Committee, under the chairmanship of Rep. Fred Upton (R-MI) launched a new web site, which has a different look from its predecessor. Gone is the useful, color-coded calendar that indicated which subcommittee was holding a particular hearing on a given day. Perhaps, the majority will re-introduce that tool when hearings are scheduled. At the moment, no hearings are scheduled, and no new investigations have been announced. Rep. Henry Waxman (D-CA) is the committee's ranking member and also has launched a new web site.

Traditionally, these two committees have been the focal point for the most amount of congressional investigation activity, and we will be tracking these web sites throughout the congressional term.