Legislative Investigation

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Although congressional power to conduct investigations and punish recalcitrant witnesses is nowhere mentioned in the United States Constitution, the inherent investigative power of legislatures was well established, both in the British Parliament and in the American colonial legislatures, more than a century before the Constitution was adopted. Mention of such power in the early state constitutions was generally regarded as unnecessary, but the Massachusetts and Maryland constitutions both gave explicit authorization; the latter, adopted in 1776, empowered the House of Delegates to "… inquire on the oath of witnesses, into all complaints, grievances, and offenses, as the grand inquest of this state," and to "… call for all public or official papers and records, and send for persons, whom they may judge necessary in the course of inquiries concerning affairs relating to the public interest."

The basic theory of the power was and is that a legislative house needs it in order to obtain information, so that its law-making and other functions may be discharged on an enlightened rather than a benighted basis. Under the Constitution, the power was first exercised by the house of representatives in 1792, when it appointed a select committee to inquire into the defeat by the Indians suffered the previous year by federal forces commanded by General Arthur St. Clair. The House empowered the committee "to call for such persons, papers and records as may be necessary to assist in their inquiries." After examining the British precedents, President george washington and his cabinet agreed that the House "was an inquest and therefore might institute inquiries" and "call for papers generally," and that although the executive ought to refuse to release documents "the disclosure of which would endanger the public," in the matter at hand "there was not a paper which might not be properly produced," and therefore the committee's requests should be granted.

For nearly a century thereafter, investigations were conducted frequently and without encountering serious challenge, in Congress and the state legislatures alike. They covered a wide range of subjects, and their history is in large part the history of American politics. Among the most interesting state investigations were those conducted in 1855 by the Massachusetts legislature and the New York City Council, under the leadership of the "Know-Nothing" party, in which Irish Roman Catholicism was the target. Inquiries by the New York City Council into alleged Irish domination of the police force were challenged in the New York Court of Common Pleas, and Judge Charles Patrick Daly's opinion in Briggs v. McKellar (1855) was the first to hold that, unlike in Britain, in the United States the legislative investigative power is limited by the Constitution.

Fifteen years later, a congressional investigation was for the first time successfully challenged on constitutional grounds, in kilbourn v. thompson (1881). The House of Representatives had authorized a select committee to investigate the bankruptcy of the Jay Cooke banking firm (which was a depository of federal funds), and when the witness Kilbourn refused to answer questions, the House cited him for contempt and imprisoned him. After his release on habeas corpus, Kilbourn sued the House sergeant-at-arms for damages from false imprisonment. In an opinion by Justice samuel f. miller, the Supreme Court sustained his claim on the grounds of constitutional separation of powers, declaring that the Jay Cooke bankruptcy presented no legislative grounds for inquiry and that "the investigation … could only be properly and successfully made by a court of justice." The Court has never since invalidated a legislative inquiry on that particular basis, and it is probable that today, under comparable circumstances, a sufficient legislative purpose would be found. But the Court's ruling, that Congress's investigative and contempt powers are subject to judicial review and must conform to constitutional limitations, has not since been seriously questioned.

Exclusively until 1857, and commonly until 1935, Congress enforced its investigative power against recalcitrant witnesses by its own contempt proceedings: a congressional citation for contempt, and its execution through arrest and confinement of the witness by the sergeant-at-arms. (See legislative contempt power.) Judicial review of the contempt was usually obtained by habeas corpus. But the system was cumbersome, and effective only when Congress was in session. To remedy these shortcomings, Congress in 1857 enacted a statute making it a federal offense to refuse to produce documents demanded, or to answer questions put, by a duly authorized congressional investigatory committee. For some years both the contempt and the statutory criminal procedures were used, but since 1935 the contempt procedure has fallen into disuse. Challenges to congressional investigative authority are currently dealt with by indictment and trial under the criminal statute, now found in section 192, Title 2, United States Code, the constitutionality of which was upheld by the Supreme Court in In re Chapman (1897).

The tone of Justice Miller's opinion in the Kilbourn case raised doubts about the scope and even the existence of the congressional contempt power, which were repeatedly voiced during the early years of the twentieth century, when Congress conducted investigations damaging to powerful business and financial institutions. In 1912 the House Committee on Banking and Currency launched what became known as the "Money Trust Investigation," in which practically all the leading financiers of the time—J. P. Morgan the elder, George F. Baker, James J. Hill, and others—were called to answer charges of undue concentration of control of railroads and heavy industries in the hands of a few New York bankers. In 1924, senate committees probed allegations of corruption and maladministration in the Justice, Interior, and Navy departments.

The legality and propriety of these inquiries aroused vigorous public debate. The famous jurist john henry wigmore wrote of a "debauch of investigations" which raised a "stench" and caused the Senate to fall "in popular esteem to the level of professional searchers of the municipal dunghills," while then Professor felix frank-furter accused the critics of seeking to "divert attention and shackle the future," and argued that the investigative power should be left "untrammeled." The doubters and critics were encouraged when a federal district judge, relying on the Kilbourn case, quashed a Senate contempt citation against Attorney General Harry M. Daugherty's brother, but the investigative and contempt powers were vindicated when the Supreme Court reversed that decision and ruled in mcgrain v. daugherty (1927) that the investigation was proper as an aid to legislation, and that Mally Daugherty could be required to testify on pain of imprisonment. Consequently, there were no serious or successful legal challenges to the many congressional investigations born of the Great Depression and the " new deal " period of President franklin d. roosevelt's administration. (See constitutional history, 1933–1945.)

Until this time the main subjects of legislative investigations had been the civil and military operations of the executive branch, industrial and financial problems, and the operation of social forces such as the labor movement. Except for state investigations in the middle years of the nineteenth century directed at Masons and Roman Catholics, ideological matters had not been much involved.

The Russian Revolution of 1917, the spread of communist doctrine, and the Nazi seizure of dictatorial power in Germany soon emerged as major subjects of congressional concern. There were short-lived congressional investigations of communist propaganda in 1919 and 1930, and of Nazi propaganda in 1934. With the establishment of the house committee of un-american activities in May 1938, subversive activities emerged as the most publicized subject of congressional investigation.

during world war ii, in which the United States and the Soviet Union were allies, there was a lull in these inquiries, but the "Iron Curtain" and "Cold War" revived them, and by 1947 they were again front-page news. Soon, names of prosecutors and witnesses—for example, martin dies, richard m. nixon, Alger Hiss, Whittaker Chambers, joseph r. mccarthy, and Patrick McCarran—became household words. The Senate authorized two bodies to join in the hunt for subversion: the Judiciary Committee's Subcommittee on Internal Security headed by Senator McCarran, and the Government Operations Committee's Subcommittee on Investigations under Senator McCarthy, respectively established in 1946 and 1950.

The principal activity of these agencies was summoning individuals to testify about the communist connections of themselves or others, and their proceedings contributed mightily to a period of public recrimination and bitter controversy that lasted for more than a decade. It was also a period of frequent criminal litigation involving congressional investigative power, as numerous witnesses were indicted for refusing to answer such questions. Some witnesses invoked the Fifth Amendment right against self-incrimination, and the Supreme Court, in three cases decided in 1955, was unanimously of the opinion that the right is available to witnesses before legislative committees, though three of the Justices thought that the witnesses had not clearly invoked it. Writing for the majority, Chief Justice earl warren confirmed the congressional investigative power and stated further (Quinn v. United States) :

But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate. Similarly, the power to investigate must not be confused with any of the powers of law enforcement; these powers are assigned under our Constitution to the Executive and Judiciary. Still further limitations on the power to investigate are found in the specific individual guarantees of the bill of rights, such as the Fifth Amendment's privilege against self-incrimination which is in issue here.

Other witnesses, however, invoked the first amendment's guarantee of freedom of speech as justification for their refusal to answer, and in 1956 and 1957 two such cases, sweezy v. new hampshire and watkins v. united states, the first involving a congressional and the second a state investigation, reached the Court. With only Justice tom c. clark dissenting, the Court held that, as a general proposition, First Amendment rights are enjoyed by witnesses in legislative investigations.

But did the First Amendment protect these witnesses from the obligation to answer questions about individual connections with communism? The Court did not meet that issue and based its reversal of both convictions on nonconstitutional grounds. Watkins had not been told that the questions put to him were (as the federal statute requires) "pertinent to the question under inquiry," while in Sweezy's case it was not shown that the state legislature had authorized the investigative agency to ask the questions he declined to answer.

Three years later, however, by a 5–4 vote, the Court held that the First Amendment did not bar requiring a witness to answer questions regarding his own or others' communist connections. (See barenblatt v. united states; uphaus v. wyman.) In his opinion for the Court in the former case, Justice john marshall harlan undertook a "balancing … of the private and public interests at stake," and concluded that since the Communist party was not "an ordinary political party" and sought overthrow of the government "by force and violence," Congress had "the right to identify a witness as a member of the Communist Party." (See balancing tests.)

The authority of these two cases was somewhat tarnished in 1963 after Justice arthur j. goldberg had replaced Justice Frankfurter, who had been in the five-member majority. A Florida court authorized a state investigatory committee to require a local branch of the NAACP to produce its membership lists so that the committee could determine whether certain individuals suspected of communist connections were members of the NAACP. Once again the Court divided 5–4, and Justice Goldberg, writing for the majority in gibson v. floridalegislative committee, ruled that, in the absence of any prior showing of connection between the NAACP and communist activities, such required disclosure was barred by the First Amendment. Three years later, in another New Hampshire investigations case, DeGregory v. New Hampshire Attorney General, the Court ruled, 6–3, that the state's interest was "too remote and conjectural" to justify compelling a witness in 1964 to testify about communist activities in 1957.

Since then there have been no Supreme Court and no important state or lower federal court decisions on the constitutional aspects of legislative investigative power. The Barenblatt case has not been overruled, and it is perhaps noteworthy that both the Gibson and DeGregory cases involved state rather than congressional investigations. The attitudes of the Justices who have joined the Court since 1966 remain untested.

It may be surmised, for the future, that if a plausible relation between a legislative inquiry and a valid legislative purpose can be shown, and there are no procedural flaws or manifestations of gross abuse, the Court will be reluctant to deny, on constitutional grounds, the power of a legislative investigating committee to require witnesses to answer questions or produce records.

A different situation might well obtain if a congressional investigating committee should seek to enforce the production of government documents involving national security or for some other reason inappropriate for public disclosure. Presidents have on numerous occasions exercised the right first asserted by George Washington in 1792, to withhold documents "the disclosure of which would endanger the public" or otherwise contravene the public interest. (See executive privilege.) Congressional committee efforts to force the production of records of judicial conferences, or other confidential court papers, might likewise encounter constitutional objections based on the separation of powers. Up to the present time, these issues have not confronted the Supreme Court, and the political wisdom of avoiding such confrontations is manifest.

Telford Taylor


Carr, Robert K. 1952 The House Committee on Un-American Activities. Ithaca, N.Y.: Cornell University Press.

Goodman, Walter 1968 The Committee. New York: Farrar, Straus & Giroux.

Landis, James M. 1926 Constitutional Limits on the Congressional Power of Investigation. Harvard Law Review 40:153–226.

Ogden, August Raymond 1945 The Dies Committee. Washington, D.C.: Catholic University of America Press.

Potts, Charles S. 1926 Power of Legislative Bodies to Punish for Contempt. University of Pennsylvania Law Review 74: 691–780.

Taylor, Telford 1955 Grand Inquest: The Story of Congressional Investigations. New York: Simon & Schuster.

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Legislative Investigation

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Legislative Investigation