Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry
Congressional research reportApr 7, 1995
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Prepared for Members and Committees of Congress
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The adversarial, often confrontational, and sometimes high profile nature of congressional
investigations sets it apart from the more routine, accommodative facets of the oversight process
experienced in authorization, appropriations or confirmation exercises. While all aspects of
legislative oversight share the common goals of informing Congress so as to best accomplish its
tasks of developing legislation, monitoring the implementation of public policy, and of disclosing
to the public how its government is performing, the inquisitorial process also sustains and
vindicates Congress’ role in our constitutional scheme of separated powers and checks and
balances. The rich history of congressional investigations from the failed St. Clair expedition in
1792 through Teapot Dome, Watergate, Iran-Contra and Whitewater has established, in law and
practice, the nature and contours of congressional prerogatives necessary to maintain the integrity
of the legislative role in that constitutional scheme.
This report will provide an overview of some of the more common legal, procedural and practical
issues, questions, and problems that committees have faced in the course of an investigation.
Following a summary of the case law developing the scope and limitations of the power of
inquiry, the essential tools of investigative oversight—subpoenas, staff interviews and
depositions, grants of immunity, and the contempt power—are described. Next, some of the
special problems of investigating the executive are detailed, with particular emphasis on claims of
presidential executive privilege, the problems raised by attempts to access information with
respect to open or closed civil or criminal investigative matters, or to obtain information that is
part of the agency deliberative process, and the effect on congressional access of statutory
prohibitions on public disclosure. The discussion then focuses on various procedural and legal
requirements that accompany the preparation for, and conduct of, an investigative hearing,
including matters concerning jurisdiction, particular rules and requirements for the conduct of
such proceedings, and the nature, applicability and scope of certain constitutional and common
law testimonial privileges that may be claimed by witnesses. The case law and practice respecting
the rights of minority party members during the investigative process is also reviewed. The report
concludes with a description of the roles played by the offices of House General Counsel and
Senate Legal Counsel in such investigations.
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I. INTRODUCTION ....................................................................................................................... 1
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II. THE LEGAL BASIS FOR OVERSIGHT .................................................................................. 1
III. THE TOOLS OF OVERSIGHT ................................................................................................ 4
A. The Subpoena Power............................................................................................................ 4
B. Staff Depositions .................................................................................................................. 6
C. Congressional Grants of Immunity....................................................................................... 7
IV. ENFORCEMENT OF THE INVESTIGATIVE POWER ....................................................... 10
A. The Contempt Power.......................................................................................................... 10
B. Perjury and False Statements Prosecutions ........................................................................ 12
V. INVESTIGATING THE EXECUTIVE BRANCH................................................................... 13
A. Presidential Claims of Executive Privilege ........................................................................ 14
B. Effect of Statutory Prohibitions on Public Disclosure on Congressional Access ............... 16
C. Accessing Information in Open and Closed Civil and Criminal Cases: The Special
Problem of Overseeing the Justice Department ................................................................... 18
D. Access to Grand Jury Materials.......................................................................................... 22
VI. INVESTIGATIVE OVERSIGHT HEARINGS ...................................................................... 24
A. Jurisdiction and Authority .................................................................................................. 24
B. Rules Applicable to Hearings ............................................................................................. 24
C. Conducting Hearings .......................................................................................................... 26
D. Constitutional and Common Law Testimonial Privileges of Witnesses............................. 27
VII. RIGHTS OF MINORITY PARTY MEMBERS IN THE INVESTIGATORY
PROCESS................................................................................................................................... 41
VIII. ROLE OF THE OFFICES OF SENATE LEGAL COUNSEL AND HOUSE
GENERAL COUNSEL .............................................................................................................. 45
A. Senate Legal Counsel ......................................................................................................... 45
B. House General Counsel ...................................................................................................... 47
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Author Contact Information .......................................................................................................... 50
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The adversarial, often confrontational, and sometimes high profile nature of congressional
investigations sets it apart from the more routine, accommodative facets of the oversight process
experienced in authorization, appropriations or confirmation exercises.1 While all aspects of
legislative oversight share the common goals of informing Congress so as to best accomplish its
tasks of developing legislation, monitoring the implementation of public policy, and of disclosing
to the public how its government is performing, the inquisitorial process also sustains and
vindicates Congress’ role in our constitutional scheme of separated powers and checks and
balances. The rich history of congressional investigations from the failed St. Clair expedition in
1792 through Teapot Dome, Watergate, Iran-Contra and Whitewater has established, in law and
practice, the nature and contours of congressional prerogatives necessary to maintain the integrity
of the legislative role in that constitutional scheme.
This report will provide an overview of some of the more common legal, procedural and practical
issues, questions, and problems that committees have faced in the course of an investigation.
Following a summary of the case law developing the scope and limitations of the power of
inquiry, the essential tools of investigative oversight—subpoenas, staff interviews and
depositions, grants of immunity, and the contempt power—are described. Next, some of the
special problems of investigating the executive are detailed, with particular emphasis on claims of
presidential executive privilege, the problems raised by attempts to access information with
respect to open or closed civil or criminal investigative matters, or to obtain information that is
part of the agency deliberative process, and the effect on congressional access of statutory
prohibitions on public disclosure. The discussion then focuses on various procedural and legal
requirements that accompany the preparation for, and conduct of, an investigative hearing,
including matters concerning jurisdiction, particular rules and requirements for the conduct of
such proceedings, and the nature, applicability and scope of certain constitutional and common
law testimonial privileges that may be claimed by witnesses. The case law and practice respecting
the rights of minority party members during the investigative process is also reviewed. The report
concludes with a description of the roles played by the offices of House General Counsel and
Senate Legal Counsel in such investigations.
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Numerous Supreme Court precedents establish and support a broad and encompassing power in
the Congress to engage in oversight and investigation that reaches all sources of information that
enable it to carry out its legislative function. In the absence of a countervailing constitutional
privilege or a self-imposed statutory restriction upon its authority, Congress and its committees,
have virtually, plenary power to compel information needed to discharge its legislative function
from executive agencies, private persons and organizations, and within certain constraints, the
information so obtained may be made public.
More particularly, although there is no express provision of the Constitution which specifically
authorizes the Congress to conduct investigations and take testimony for the purposes of
1
For a general overview of the oversight process see Congressional Research Service, Congressional Oversight Manual
(February 1995).
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performing its legitimate functions, numerous decisions of the Supreme Court have firmly
established that the investigatory power of Congress is so essential to the legislative function as to
be implicit in the general vesting of legislative power in Congress.2 Thus, in Eastland v. United
States Servicemen’s Fund the Court explained that “[t]he scope of its power of inquiry ... is as
penetrating and far-reaching as the potential power to enact and appropriate under the
Constitution.”3 In Watkins v. United States the Court further described the breadth of the power of
inquiry: “The power of the Congress to conduct investigations is inherent in the legislative
process. That power is broad. It encompasses inquiries concerning the administration of existing
laws as well as proposed or possibly needed statues.”4 The Court went on to emphasize that
Congress’ investigative power is at its peak when the subject is alleged waste, fraud, abuse, or
maladministration within a government department. The investigative power, it stated,
“comprehends probes into departments of the Federal Government to expose corruption,
inefficiency, or waste.”5 “[T]he first Congresses”, it continued, held “inquiries dealing with
suspected corruption or mismanagement of government officials”6 and subsequently, in a series of
decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government
if the legislative power to probe corruption in the Executive Branch were unduly hampered.”7
Accordingly, the Court stated, it recognizes “the power of the Congress to inquire into and
publicize corruption, maladministration, or inefficiencies in the agencies of Government.”8
But while the congressional power of inquiry is broad, it is not unlimited. The Supreme Court has
admonished that the power to investigate may be exercised only “in aid of the legislative
function”9 and cannot be used to expose for the sake of exposure alone. The Watkins Court
underlined these limitations: “There is no general authority to expose the private affairs of
individuals without justification in terms of the functions of the Congress ... nor is the Congress a
law enforcement or trial agency. These are functions of the executive and judicial departments of
government. No inquiry is an end in itself, it must be related to, and in furtherance of, a legitimate
task of the Congress.”10 Moreover, an investigating committee has only the power to inquire into
matters within the scope of the authority delegated to it by its parent body.11 But once having
established its jurisdiction and authority, and the pertinence of the matter under inquiry to its area
of authority, a committee’s investigative purview is substantial and wide-ranging.12
The foundation cases establishing Congress’ broad power to probe are illustrative and
illuminating. They arose out of the Teapot Dome investigations, the 1920’s scandal regarding oil
company payoffs to officials in the Harding Administration. A major concern of the congressional
2
E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v.
United States, 360 U.S. 109 (1950); Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975); Nixon v.
Administrator of General Services, 433 U.S. 425 (1977); see also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir.
1976) and 567 F.2d 1212 (D.C. Cir. 1977).
3
421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 111).
4
354 U.S. at 187.
5
Id.
6
Id. at 182.
7
Id. at 194-95.
8
Id. at 200 n. 33.
9
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
10
Watkins v. United States, supra, 354 U.S. at 187.
11
United States v. Rumely, 345 U.S. 41, 42, 44 (1953); Watkins v. United States, supra, 354 U.S. at 198.
12
Wilkinson v. United States, 365 U.S. 408-09 (1961).
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oversight investigation was the failure of Attorney General Harry M. Daugherty’s Justice
Department to prosecute the alleged government malefactors. When congressional committees
attempting to investigate came up against refusals by subpoenaed witnesses to provide
information, the issue went to the Supreme Court and provided it with the opportunity to issue a
seminal decision describing the constitutional basis and reach of congressional oversight. In
McGrain v. Daugherty,13 the Supreme Court focused specifically on Congress’ authority to study
“charges of misfeasance and nonfeasance in the Department of Justice.” The Court noted with
approval that “the subject to be investigated” by the congressional committee “was the
administration of the Department of Justice—whether its functions were being properly
discharged or were being neglected or misdirected, and particularly whether the Attorney General
and his assistants were performing or neglecting their duties in respect of the institution and
prosecution of proceedings to punish crimes ....”14 In its decision, the Court sustained the
contempt arrest of the Attorney General’s brother for withholding information from Congress,
since Congress “would be materially aided by the information which the investigation was
calculated to elicit.”15 Thus, the Supreme Court unequivocally precluded any blanket claim by the
Executive that oversight could be barred regarding “whether the Attorney General and his
assistants were performing or neglecting their duties in respect of the institution and prosecution
of proceedings.”16
In another Teapot Dome case that reached the Supreme Court, Sinclair v. United States,17 a
different witness at the congressional hearings refused to provide answers, and was prosecuted for
contempt of Congress. The witness had noted that a lawsuit had been commenced between the
government and the Mammoth Oil Company, and declared, “I shall reserve any evidence I may
be able to give for those courts. . . and shall respectfully decline to answer any questions
propounded by your committee.”18 The Supreme Court upheld the witness’s conviction for
contempt of Congress. The Court considered and rejected in unequivocal terms the witness’s
contention that the pendency of lawsuits gave an excuse for withholding information. Neither the
laws directing that such lawsuits be instituted, nor the lawsuits themselves, “operated to divest the
Senate, or the committee, of power further to investigate the actual administration of the land
laws.”19
The Court further explained: “It may be conceded that Congress is without authority to compel
disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that
body, directly or through its committees, to require pertinent disclosures in aid of its own
constitutional power is not abridged because the information sought to be elicited may also be of
use in such suits.”20 In other words, those persons having evidence in their possession, including
officers and employees of executive agencies, can not lawfully assert that because lawsuits are
pending involving the government, “the authority of [the Congress], directly or through its
committees, to require pertinent disclosures” is somehow “abridged.”
13
273 U.S. 135, 151 (1927).
Id. at 177.
15
Id.
16
Id.
17
279 U.S. 263 (1929).
18
Id., at 290.
19
Id. at 295.
20
Id. at 295.
14
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The Supreme Court in the Teapot Dome cases therefore enunciated in the clearest manner the
independence of Congress’ power to probe. The coincidental focus on the Justice Department and
the ability of committees to look deeply into all aspects of its sensitive law enforcement function
underlines the potential breadth of that power with respect to other Executive Branch agencies
and private sector entities as well.
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The power of inquiry, with the accompanying process to enforce it, has been deemed “an
essential and appropriate auxiliary to the legislative function.”21 A properly authorized subpoena
issued by a committee or subcommittee has the some force or effect as a subpoena issued by the
parent House itself.22 To validly issue a subpoena, individual committees or subcommittees must
be delegated this authority. Both Senate23 and House24 rules presently empower all standing
committees and subcommittee to require the attendance and testimony of witnesses and the
production of documents. Special or select committees must be specifically delegated that
authority by Senate or House resolution.25 The rules or practices of standing committees may
restrict the issuance of subpoenas only to full committees or in certain instances allow issuance
by a committee chairman alone, with or without the concurrence of the ranking minority member.
As previously indicated, committees may issue subpoenas in furtherance of an investigation
within their subject matter jurisdiction as defined by Senate26 and House27 rules which confer
both legislative and oversight jurisdiction. Subpoenas may be issued on the basis of either source
of authority.
Congressional subpoenas are most frequently served by the U.S. Marshal’s office or by
committee staff, or less frequently by the Senate or House Sergeants-at-Arms. Service may be
effected anywhere in the United States. The subpoena power reaches aliens present in the United
States.28 Securing compliance of United States nationals and aliens residing in foreign countries
presents more complex problems.29
21
McGrain v. Daugherty, supra, 273 U.S. at 174-75.
Id. at 158.
23
Senate Rule XXVI(1)(All Senate rules hereinafter cited were in effect as of 1993 unless otherwise indicated and may
found in Sen. Doc. No. 103-3 compiled by the Senate Committee on Rules and Administration).
24
House Rule XI(2)(m)(1)(All House rules hereinafter cited were in effect as of 1993 unless otherwise indicated and
may be found in “Rules Adopted By The Committee of the House of Representatives”, compiled by the House Rules
Committee as a committee print).
25
See, e.g., S.Res. 23, 100th Cong. (Iran-Contra); Sen. Res. 495, 96th Cong. (Billy Carter/Libya).
26
Senate Rule XXV.
27
House Rule X.
28
Eisler v. United States, 170 F.2d 273, 279 (D.C. Cir. 1948), cert. dismissed, 338 U.S. 883 (1949).
29
See generally, Gary E. Davidson, Congressional Extraterritorial Investigative Powers: Real or Illusory ?, 8 Emory
International Law Review 99 (1994).
22
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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 Constitution30 provides
“an absolute bar to judicial interference” with such compulsory process.31 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.
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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.32
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.33
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.34
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.35
Finally, 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.36 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.37
30
U.S. Const., Art. I, sec. 6, cl. 1.
Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503-07 (1975).
32
365 U.S. 399, 408-09 (1961).
33
Barenblatt v. United States, 360 U.S. 109, 117 1959); Watkins v. United States, supra, 354 U.S. at 209-215.
34
In re Chapman, 166 U.S. 661, 669 (1897).
35
Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
36
Sinclair v. United States, supra, 279 U.S. at 299; Ashland Oil, Inc. v. F.T.C., 409 F.Supp. at 305.
37
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).
31
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But “[w]here constitutional rights are not violated, there is no warrant to interfere with the
internal procedures of Congress.”38
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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.39 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 enable 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.
Certain disadvantages may also inhere. Unrestrained staff may be tempted to engage in tangential
inquiries. Also depositions present a “cold record” of a witness’s testimony and may not be as
useful for Members as in person presentations. Finally, in the current absence of any definitive
case law precedent, legal questions may be raised concerning the ability to enforce a subpoena for
a staff deposition by means of contempt sanctions, and to the applicability to such a deposition of
various statutes that proscribe false material statements.40
At present neither House has rules that expressly authorize staff depositions. On a number of
occasions such specific authority has been granted pursuant to Senate and House resolutions.41
When granted, a committee will normally adopt procedures for taking depositions, including
provisions for notice (with or without a subpoena), transcription of the deposition, the right to be
accompanied by counsel, and the manner in which objections to questions are to be resolved.42
38
Exxon Corporation v. F.T.C., 589 F.2d 582, 590 (D.C. Cir. 1978). The issues raised by witness claims of
constitutional and common law privileges are more fully discussed below at pp. 53-85. On claims that a committee
subpoena is overbroad or burdensome see discussions, infra, at pp. 40-42.
39
E.g., S. Res. 229, 103d Cong. (Whitewater); S. Res. 23, 100th Cong. (Iran-Contra); H. Res. 12, 100th Cong. (IranContra); H. Res. 320, 100th Cong. (impeachment proceedings of Judge Alcee Hastings); S. Res. 495, 96th Cong. (Billy
Carter/Libya).
40
See Jay R. Shampansky, Staff Depositions in Congressional Investigations, CRS Report No. 91-679, August 27,
1991 (suggesting that the criminal contempt procedure would be available if a committee adopted rules of procedure
providing for Member involvement if a witness raises objections and refuses to answer; and that analogous case law
under false statements and obstruction of Congress statutes would support prosecutions for false statements made
during a deposition.).
41
See examples cited at footnote 39, supra.
42
See, e.g., Senate Permanent Committee on Investigations Rule 9; House Iran-Contra Committee Rule 6, H. Res. 12,
133 Cong. Rec. 822 (1987).
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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.43 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 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.44 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.”45 Such grants may
be militated 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.46 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.47
At least ten days prior to applying to the court for the order, the Attorney General48 must be
notified of the Congress’ intent to seek the order,49 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.50 Notice to
the Attorney General is required so that he can identify in his files any information which would
43
See Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
See generally Kastigar v. United States, 406 U.S. 441 (1972).
45
Kastigar v. United States, 406 U.S. at 446.
46
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).
47
18 U.S.C. § 6005(b).
48
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.
49
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.
50
18 U.S.C. § 6005(c).
44
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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.51 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 immunity.52 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.53
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.”54 The immunity that is granted is “use” immunity, not “transactional”
immunity.55 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 sealed 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.56
Recent appellate court decisions reversing the convictions of key Iran-Contra figures Lt. Colonel
Oliver North57 and Rear Admiral John Poindexter58 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
51
See H.R. Rept. No. 91-1549, 91st Cong., 2d Sess. 43 (1970).
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).
53
Application of U.S. Senate Select Committee, 361 F.Supp. at 1278-79.
54
18 U.S.C. § 6002.
55
The constitutionality of granting a witness only use immunity, rather than transactional immunity, was upheld in
Kastigar v. United States, supra.
56
Kastigar v. United States, supra, 406 U.S. at 460.
57
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).
58
951 F.2d 369 (D.C. Cir. 1991).
52
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further determination whether the prosecution had directly or indirectly used immunized
testimony.
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The court of appeals in North emphasized that the insulation of the prosecution from exposure to
the immunized congressional testimony does not automatically prove that this testimony was not
used against the defendant.59 The court held that “Kastigar is instead violated whenever the
prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled
testimony, regardless of how or by whom he was exposed to that compelled testimony.”60 From
this the court reasoned that “the use of immunized testimony . . . to augment or refresh
recollection is an evidentiary use” and must therefore be strictly scrutinized under the Kastigar
standard.61 Thus, the court of appeals held that the presentation of “testimony of grand jury or
trial witnesses that has been derived from or influenced by the [defendant’s] immunized
testimony” was a forbidden use of the compelled testimony under both the Fifth Amendment and
Kastigar.62
Upon remanding the case to the district court, the court of appeals insisted that a strict application
of the Kastigar test be applied to the government’s evidence if the prosecution of North was to
continue. The lower court was required to hold a full Kastigar hearing that would:
inquire into the content as well as the sources of the grand jury and trial witnesses’
testimony. That inquiry must proceed witness-by-witness; if necessary, it will proceed lineby-line and item-by-item. For each grand jury and trial witness, the prosecution must show
by a preponderance of the evidence that no use whatsoever was made of any of the
immunized testimony either by the witness or by the Office of Independent Counsel in
questioning the witness. This burden may be met by establishing that the witness was never
exposed to North’s immunized testimony, or that the allegedly tainted testimony contains no
evidence not “canned” by the prosecution before such exposure occurred.63
Similarly, in Poindexter, the D.C. Circuit Court of Appeals reversed all five of Poindexter’s
convictions because the Independent Counsel failed to show that Poindexter’s compelled
testimony was not used against him at his trial, in violation of 18 U.S.C. § 6002 and the Fifth
Amendment.64 Relying on the North standards outlined above, the appeals court held that the
testimony of many of the prosecution’s key witnesses, including that of Oliver North himself, was
impermissibly influenced by the witnesses’ exposure to Poindexter’s immunized testimony for
purposes of refreshment.65 Upon remand in both cases, the Independent Counsel moved to
59
United States v. North, 920 F.2d at 942.
Id. ( emphasis in original).
61
United States v. North, 910 F.2d at 860. Because several years passed between the events at issue and the trial of
North, the Independent Counsel had allowed potential witnesses to refresh their recollection with North’s immunized
testimony before they testified at the grand jury and at trial. Id.
62
Id. at 865. See also id. at 869 (“Where immunity testimony is used before a grand jury, the prohibited act is
simultaneous and coterminous with the presentation; indeed, they are one and the same.”). The court of appeals
criticized the district court for failing to inquire into “the extent to which the substantive content of the witnesses’
testimony may have been shaped, altered, or affected by the [defendant’s] immunized testimony.” Id. at 863. The court
further noted that it was legally irrelevant under Kastigar if the witnesses themselves, rather than the government,
presented the immunized testimony. Id. at 871.
63
Id. at 872.
64
United States v. Poindexter, supra, 951 F.2d at 375-77.
65
Id.
60
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dismiss the prosecutions upon his determination that he could not meet the strict standards set by
the appeals court in its decisions.
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.”66 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.67 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, case-by-case assessments by congressional investigators will be needed,
guided by the sensitivity that these are political judgments.
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While the threat or actual issuance of a subpoena often provides sufficient leverage for effective
compliance with investigative information demands, it is through the contempt power that
Congress may act with ultimate force in response to actions which obstruct the legislative process
in order to punish the contemnor and/or to remove the obstruction. The Supreme Court early
recognized the power as an inherent attribute of Congress’ legislative authority, reasoning that if it
did not possess this power, it “would be exposed to every indignity and interruption that rudeness,
caprice or even conspiracy may mediate against it.”68
There are three different kinds of contempt proceedings available. Both the House and Senate
may cite a witness for contempt under their inherent contempt power or under a statutory criminal
contempt procedure. The Senate also has a third option, enforcement by means of a statutory civil
contempt procedure. The three proceedings may be briefly described.69
66
Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 Hous. L. Rev. 1, 9 (1988).
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.
68
Anderson v. Dunn, 19 U.S. (6 Wheat) 204 (1821).
69
For a more comprehensive treatment of the history and legal development of the congressional contempt power, see
Jay R. Shampansky, Congress’ Contempt Power, CRS Report No. 86-83A, February 28, 1986.
67
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(1) Inherent Contempt
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Under the inherent contempt power, the individual is brought before the House or Senate by the
Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned in the Capitol jail. The
purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the
witness can be imprisoned for a specified period of time as punishment, or for an indefinite
period (but not, at least in the case of the House, beyond the end of the Congress) until he agrees
to comply. When a witness is cited for contempt under the inherent contempt process, prompt
judicial review is available by means of a petition for a writ of habeas corpus. In an inherent
contempt proceeding, although Congress would not have to afford the contemnor the whole
panoply of procedural rights available to a defendant in a criminal case, notice and an opportunity
to be heard would have to be granted. Also, some of the requirements imposed by the courts
under the statutory criminal contempt procedure might be mandated by the due process clause in
the case of inherent contempt proceedings.70
The inherent contempt power has not been exercised by either House in over sixty years because
it has been considered to be too cumbersome and time consuming for a modern Congress with a
heavy legislative workload that would be interrupted by a trial at the bar.
(2) Statutory Contempt
Recognizing the problems with use of the inherent contempt process, a statutory criminal
contempt procedure was enacted in 1857 which, with only minor amendments, is codified today
at 2 U.S.C. §§192 and 194. Under 2 U.S.C. § 192, a person who has been subpoenaed to testify or
produce documents before the House or Senate or a committee and who fails to do so, or who
appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up
to $1,000 and imprisonment for up to one year. Section 194 establishes the procedure to be
followed if the House or Senate refers a witness to the courts for criminal prosecution. A
contempt citation must be approved by the subcommittee, the full committee, and the full House
or Senate (or by the presiding officer if Congress is not in session). The criminal procedure is
punitive in nature. It is not coercive because a witness generally will not be able to purge himself
by testifying or supplying subpoenaed documents after he has been voted in contempt by the
committee and the House or the Senate. Under the statute, after a contempt has been certified by
the President of the Senate or the Speaker of the House, it is the “duty” of the U.S. Attorney “to
bring the matter before the grand jury for its action.” It remains unclear whether the “duty” of the
U.S. Attorney to present the contempt to the grand jury is mandatory or discretionary, since the
sparse case law that is relevant to the question provides conflicting guidance.71
This potential conflict between the statutory language of §194 and the U.S. Attorney’s
prosecutorial discretion was highlighted by the inability of the House of Representatives in 1982
to secure a contempt prosecution against the Administrator of the Environmental Protection
Agency, Ann Burford. Burford, at the direction of President Reagan, had asserted executive
privilege as grounds for refusing to respond to a subpoena demand for documents. She was cited
for contempt by the full House and the contempt resolution was certified by the Speaker and
70
See, Groppi v. Leslie, 404 U.S. 496 (1972).
See Todd D. Peterson, Prosecuting Executive Branch Officials for Contempt of Congress, 66 NYUL Rev. 563
(1991); Hearing, “Prosecution of Contempt of Congress”, Before the Subcomm. on Administrative Law and
Governmental Relations, House Comm. on the Judiciary, 98th Cong. 1st Sess. 21-35 (1983) (Statement and Testimony
of Stanley Brand).
71
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forwarded to the U.S. Attorney for the District of Columbia for presentment to the grand jury.
Relying on his prosecutorial discretion he deferred doing so.
The Burford controversy may be seen as unusual, involving highly sensitive political issues of the
time. In the vast majority of cases there is likely to be no conflict between the interests of the two
political branches, and the U.S. Attorney can be expected to initiate prosecution in accordance
with § 194.
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(3) Civil Contempt
As an alternative to both the inherent contempt power of each House and criminal contempt,
Congress enacted a civil contempt procedure which is applicable only to the Senate.72 Upon
application of the Senate,73 the federal district court is to issue an order to a person refusing, or
threatening to refuse, to comply with a Senate subpoena. If the individual still refuses to comply,
he may be tried by the court in summary proceedings for contempt of court, with sanctions being
imposed to coerce his compliance. Civil contempt might be employed when the Senate is more
concerned with securing compliance with the subpoena or with clarifying legal issues than with
punishing the contemnor. Civil contempt can be more expeditious than a criminal proceeding and
it also provides an element of flexibility, allowing the subpoenaed party to test his legal defenses
in court without necessarily risking a criminal prosecution. Civil contempt is not authorized for
use against executive branch officials refusing to comply with a subpoena.
(4) Alternatives to Contempt
When an executive branch official refuses to comply with a congressional subpoena and the
dispute cannot be resolved by negotiation and compromise, none of the three types of contempt
proceedings may be completely satisfactory. The statutory civil contempt procedure in the Senate
is inapplicable in the case of a subpoena to an executive branch official. Inherent contempt has
been described as “unseemly” and cumbersome. And if the criminal contempt method is utilized,
the U.S. Attorney, who is an executive branch appointee may, as occurred in the Burford case,
rely on the doctrine of prosecutorial discretion as grounds for deferring seeking an indictment.
There are, however, various alternatives to the three modes of contempt in the case of an
executive branch official. (1) The contemnor could be cited for criminal contempt and be
prosecuted by an independent counsel, rather than by the U.S. Attorney, if the standards under the
law governing the appointment of such counsels are satisfied; (2) the committee can seek
declaratory or other relief in the courts; (3) the appropriations for the agency or department
involved can be cut off or reduced when requested information has not been supplied; and (4) in
an exceptional case, the official might be impeached.
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(1) Testimony Under Oath
A witness under oath before a congressional committee who willfully gives false testimony is
subject to prosecution for perjury under 18 U.S.C. 1621 of the United States Code. The essential
72
73
See 2 U.S.C. 288d and 28 U.S.C. 1364.
Usually brought by the Senate Legal Counsel. 2 U.S.C 288 d(a).
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elements for such prosecution are: (1) a false statement, (2) “willfully” made, (3) before a
“competent tribunal”, (4) involving a “material matter.” The requirement of a competent tribunal
is important to note because it is an element of the offense within the particular control of
committees.
For a legislative committee to be competent for perjury purposes a quorum must be present.74 The
problem has been ameliorated in recent years with the adoption of rules establishing less than a
majority of Members as a quorum for taking testimony, normally two members for House
committees75 and one member for Senate committees.76 The requisite quorum must be present at
the time the alleged perjurious statement is made, not merely at the time the session convenes. No
prosecution for perjury will lie for statements made only in the presence of committee staff unless
the committee has deposition authority and has taken formal action to allow it.
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(2) Unsworn Statements
Most statements made before Congress, at both the investigatory and hearing phases of oversight,
are unsworn. The practice of swearing in all witnesses at hearings is a rare practice. But
prosecutions may be brought to punish congressional witnesses for giving willfully false
testimony not under oath. Under 18 U.S.C. 1001 false statements before a “department or agency
of the United States” are punishable by a fine of up to $10,000 or imprisonment up to five years,
or both. The courts have held that section 1001 is applicable to false statements made to
congressional committees.77
Until recently it was thought that 18 U.S.C. 1505, which proscribes attempts to obstruct
congressional proceedings, was applicable to unsworn false statements. However, the Court of
Appeals for the District of Columbia Circuit ruled in 1991 that section 1505 applies only to
corrupt efforts to obstruct congressional inquiries by subverting witnesses, not to false statements
by the defendant himself in such proceedings.78
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When Congress directs its investigatory powers at Executive Branch departments and agencies,
and at times at the White House itself, such probes have often become contentious, provoking the
Executive to assert rights to shield from disclosure information Congress deems essential to carry
out its oversight functions. The variety of grounds proffered are often lumped in an
undifferentiated manner under the rubric “executive privilege”. However, in order to evaluate and
assess the weight of such withholding claims, it is more useful, and accurate, to distinguish
between claims that have a constitutional basis and those that do not, and then to separate out
amongst the non-constitutional claims those based on law from those resting on executive policy
preferences.
74
Christoffel v. United States, 378 U.S. 89 (1949).
House Rule XI (2) (h) (1).
76
Senate Rule XXVI (7) (a) (2).
77
United States v. Bramlett, 348 U.S. 503, 509 (1955); United States v. Poindexter, 951 F.2d 369, 386-88 (D.C. Cir.
1991).
78
United States v. Poindexter, supra, 951 F.2d at 377-86.
75
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In some, rare, instances the executive response to a congressional demand to produce information
may be an assertion of presidential executive privilege, a doctrine which, like Congress’ powers
to investigate and cite for contempt, has constitutional roots. No decision of the Supreme Court
has yet resolved the question whether there are any circumstances in which the Executive Branch
can refuse to provide information sought by the Congress on the basis of executive privilege.
Indeed, most such disputes are settled short of litigation through employment of the political
process and negotiations,79 and the few that reach a judicial forum find the courts highly reluctant
to rule on the merits.80 However, in United States v. Nixon,81 involving a judicial subpoena issued
to the President at the request of the Watergate Special Prosecutor,82 the Supreme Court found a
constitutional basis for the doctrine of executive privilege in “the supremacy of each branch
within its own assigned area of constitutional duties” and in the separation of powers,83 and
although it considered presidential communications with close advisors to be “presumptively
privileged,” the Court rejected the President’s contention that the privilege was absolute,
precluding judicial review whenever it is asserted.84
Having concluded that in the case before it the claim of privilege was not absolute, the Court
resolved the “competing interests” (the President’s need for confidentiality vs. the judiciary’s
need for the materials in a criminal proceeding) “in a manner that preserves the essential
functions of each branch,”85 and held that the judicial need for the tapes outweighed the
President’s “generalized interest in confidentiality ...” 86 The Court was careful to limit the scope
of its decision, noting that “we are not here concerned with the balance between the President’s
generalized interest in confidentiality ... and congressional demands for information”.87
79
Joel D. Bush, Congressional-Executive Access Disputes: Legal Standards and Political Settlements, 9 J. of Law and
Politics, 717, 735-46(1993); Peter M. Shane, Legal Disagreements and Negotiation in a Government of Laws, 71 Minn.
L. Rev. 461 (1987); Stephen W. Stathis, Executive Cooperation: Presidential Recognition of the Investigatory
Authority of Congress and the Courts, 3 J. of Law and Politics 183 (1986); Richard Ehlke, Congressional Access To
Information From The Executive: A Legal Analysis, CRS Report No. 86-50A, March 10, 1986.
80
See, e.g., United States v. AT&T, 551 F.2d 784 (D.C. Cir. 1976) and 567 F.2d 121 (D.C. Cir 1977), where the appeals
court twice refused to balance the asserted constitutional interests, instead remanding the case for further negotiations
under the supervision of the district court; and United States v. U.S. House of Representatives, 556 F.2d 150, 152
(D.D.C. 1983), where the district court refused to enjoin transmission by the House of Representatives of a contempt
citation of the Administrator of the EPA to the United States Attorney on grounds alleging constitutional executive
privilege, stating that when “constitutional disputes arise concerning the separation of powers of the legislative and
executive branches, judicial intervention should be delayed until all possibilities for settlement have been exhausted . . .
judicial restraint is essential to maintain the delicate balance of powers among the branches established by the
Constitution.” In both instances negotiated resolutions ultimately ended the immediate disputes.
81
418 U.S. 683 (1974).
82
The subpoena was for certain tape recordings and documents relating to the President’s conversations with aides and
advisors. The materials were sought for use in a criminal trial.
83
418 U.S. at 705, 706. See also id. at 708, 711.
84
Id. at 705, 708. Citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), the Court held that it had the
authority to review the President’s claim of executive privilege. 418 U.S. at 703-05. The materials in question in United
States v. Nixon related to confidential communications between the President and his advisors. The Court indicated that
it might proceed differently and accord more deference to the executive’s claims in a case involving military or
diplomatic matters. Id. at 706.
85
Id. at 707.
86
Id. at 713.
87
Id. at 712, n. 19.
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Although United States v. Nixon did not involve a presidential claim of executive privilege in
response to a congressional subpoena, in Senate Select Committee on Presidential Campaign
Activities v. Nixon,88 the court of appeals, prior to the Nixon ruling, reviewed the President’s
assertion of executive privilege as grounds for not complying with a Senate committee subpoena
for tape recordings.89 The appeals court found that “the presumption that the public interest favors
confidentiality [in presidential communications] can be defeated only by a strong showing of
need by another institution of government—a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the President’s deliberations . . . .”
According to the court, “the showing required to overcome the presumption favoring
confidentiality” rests “on the nature and appropriateness of the function in the performance of
which the material [is] sought, and the degree to which the material [is] necessary to its
fulfillment . . . . [T]he sufficiency of the committee’s showing must depend solely on whether the
subpoenaed evidence is demonstrably critical to the responsible fulfillment of the committee’s
functions.”90 The court found that, in the circumstances of that case, the need for the tapes was
“merely cumulative” in light of the fact that the House Judiciary Committee had begun an
inquiry, with express constitutional authority, into impeachment of the President, and the fact that
the Judiciary Committee already had copies of the tapes subpoenaed by the Senate Committee.91
Since the Kennedy Administration it has been established by executive policy directives that
presidential executive privilege may be asserted only by the President personally. The latest such
directive, issued by President Reagan in November 1982,92 and still in effect, requires that when
an agency head believes that a congressional information request raises substantial questions of
executive privilege he is to notify and consult with the Attorney General and the Counsel to the
President. If the matter is deemed to justify invocation of the privilege, it is reported to the
President who makes his decision. If the President invokes the privilege, the agency head advises
the requesting committee.
There has been only one instance in which the full House or Senate has voted a contempt citation
against the head of an executive department or agency, that of Anne Gorsuch Burford,
Administrator of the Environmental Protection Agency, in 1982.93 Several cabinet members have
been found in contempt by committees or subcommittees, although these disputes were resolved
before contempt votes by the parent body. In two instances, cabinet members were cited for
88
498 F.2d 725 (D.C. Cir. 1974).
The subpoena was for tapes of conversations between the President and presidential counsel John Dean. The
committee sought a declaratory judgment that its subpoena was lawful and that the President’s refusal to comply with
it, on the basis of executive privilege, was unlawful.
90
498 F.2d at 730.
91
Id at 732-33.
92
Memorandum from the President to the Heads of Executive Departments and Agencies on Procedures Governing
Responses to Congressional Requests for Information (November 4, 1982), reprinted in Congressional Oversight
Manual, supra footnote 1, at pp. 197-98. The Department of Justice Office of Legal Counsel lists 64 instances of
presidential invocation of executive privilege in the face of congressional requests for information between 1792 and
October 1981. 6 OLC 751 (1982). President Reagan invoked the privilege in November 1982 in the EPA investigation.
See, “Contempt of Congress”, H. Rept. No. 97-968, 97th Cong., 2d Sen. 1982. The last recorded invocation was by
President Bush in August 1991. See Congressional Oversight Manual at pp. 199-204; and Mark J. Rozell, Executive
Privilege in the Bush Administration: Constitutional Problems, Bureaucratic Responses, 1 Miller Center Journal 63, 7172 (1994).
93
H. Res. 632, 97th Cong., 128 Cong. Rec. 31746-76 (1982).
89
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contempt by full committees.94 Five other cabinet secretaries have been cited for contempt by
subcommittees.95
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Upon occasion Congress has found it necessary and appropriate to limit its access to information
it would normally be able to obtain by exercise of its constitutional oversight prerogatives.96 But
where a statutory confidentiality or non-disclosure provision barring public disclosure of
information is not explicitly applicable to the Congress, the courts have consistently held that
agencies and private parties may not deny Congress access to such information on the basis of
such provisions. 97 Release to a congressional requestor is not deemed to be disclosure to the
public generally.98 Moreover, courts may not require agencies to delay the surrender of documents
to Congress in order to give advance notice to affected parties, “for the judiciary must refrain
from slowing or otherwise interfering with the legitimate investigating functions of Congress”.99
Once documents are in congressional hands, the courts have held they must presume that the
committees of Congress will exercise their powers responsibly and with due regard for the rights
of affected parties.100 Nor may a court block congressional disclosure of information obtained
from an agency or private party, at least when disclosure would serve a valid legislative
purpose.101 Finally, the legal obligation to surrender requested documents has been held to arise
from the official request102
Executive agencies have in the past unsuccessfully raised several statutes of general applicability
as potential barriers to the disclosure of information to congressional committees. Agencies have
94
H.R. Rept. No. 94-693, 94th Cong., 1st Session (1975)(Secretary of State Henry R. Kissinger); H.R. Rept. No. 97-898,
97th Cong. 2d Sess. (1982)(Secretary of the Interior James G. Watt).
95
Secretary of Commerce Rogers C.B. Morton (1975); Secretary of Health Education and Welfare Joseph Califano
(1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James Edwards (1980); and Attorney General
William French Smith (1984).
96
See, e.g., 1 U.S.C. 112b limiting congressional access to international agreements, other than treaties, where, in the
opinion of the President, public disclosure would be prejudicial to the national security, to the foreign relations
committees of each House under conditions of secrecy removable only by the President; 26 U.S.C. 6103(d), 6104(a)(2)
limiting inspection of tax information to the Senate Finance Committee, House Ways and Means Committee, and the
Joint Committee on Taxation, or any committees “specifically authorized by a resolution of the House or Senate”; 10
U.S.C. 1582, which provides that in reporting to Congress on certain sensitive positions created in the Defense
Department, “the Secretary may omit any item if he considers a full report on it would be detrimental to the national
security”; and under 50 U.S.C. 402g, j(b), the Congress’ ability to obtain information about the Central Intelligence
Agency, particularly with regard to expenditures, is very limited.
97
See, e.g., F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970 (D.C. Cir. 1980); Exxon Corp. v. F.T.C.,
589 F.2d 582, 585-86 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979); Ashland Oil Co., Inc. v. F.T.C. 548 F.2d 977,
979 (D.C. Cir. 1976).
98
F.T.C. v. Owens-Corning Fiberglass Corp. 626 F.2d at 970; Exxon Corp. v. F.T.C., 589 F.2d at 589; Ashland Oil
Co., Inc. v. F.T.C., 548 F.2d at, 979; Moon v. CIA, 514 F.Supp. 836, 840-41 (SDNY 1981).
99
F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d at 970; F.T.C. v. Anderson, 631 F.2d 741, 747 (D.C. Cir.
1970); Exxon Corp. v. F.T.C., 589 F.2d at 588-9.
100
F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d at 970; Exxon Corp. V. F.T.C., 589 F.2d at 589; Ashland Oil
Corp. v. F.T.C., 548 F.2d at 979; Moon v. CIA, 514 F.Supp at 849-51.
101
Doe v. McMillan, 412 U.S. 306 (1973); F.T.C. v. Owens-Corning Fiberglass Corp. 626 F.2d at 970.
102
Ashland Oil Co., Inc. v. F.T.C., 548 F.2d at 980-81.
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attempted to withhold documents on the basis of the deliberative process exemption incorporated
by Exemption 5 of the Freedom of Information Act (FOIA).103 But the courts have made it plain
that the agency privileges made applicable to public requesters by Exemption 5, as well as all the
other exemptions of the FOIA, are expressly inapplicable to the legislature: “This section is not
authority to withhold information from Congress.”104 In Murphy v. Department of the Army an
appeals court explained that FOIA exemptions were no basis for withholding from Congress
because of “the obvious purpose of the Congress to carve out for itself a special right of access to
privileged information not shared by others. Congress, whether as a body, through committees, or
otherwise, must have the widest possible access to executive branch information, if it is to
perform its manifold responsibilities effectively. If one consequence of the facilitation of such
access is that some information will be disclosed to congressional authorities but not to private
persons, that is but an incidental consequence of the need for informed and effective
lawmakers”.105 A similar provision in the Privacy Act also prevents its use as a withholding
vehicle against Congress.106
A frequently cited statute used to justify non-disclosure is the Trade Secrets Act, 18 U.S.C. 1905,
a criminal provision which generally proscribes the disclosure of trade secrets and confidential
business information by a federal officer or employee “unless otherwise authorized by law.”
There is no indication in the legislative history of its revision and codification that it was intended
to prevent agency disclosures to committees or to have it apply to Congress and its employees or
any other legislative branch support agency or its employees,107 and as a matter of statutory
construction it would have been unusual for Congress to have subjected, sub silento, its staff to
criminal sanctions for such disclosures, particularly in light of its well-established oversight and
investigative prerogatives, and its speech or debate privilege. In any event, there appears little
doubt that disclosure to Congress of proprietary information covered by § 1905 would be deemed
to be “authorized by law”. The Supreme Court in Chrysler v. Brown108 held that disclosure
authorization can stem from both congressional enactments and agency regulations. In this
instance, there are at least two potential sources of disclosure authorization. The first is 2 U.S.C.
190d, which directs all standing committees of the Congress to engage in continuous legislative
oversight of the administration and application of laws within their respective jurisdictions, and
“may require a Government agency” to assist in doing so. In 1955, the Attorney General of the
United States opined that the authorization required by the Trade Secrets Act was “reasonably
implied” under § 190d.109 A second source is the rules of each House authorizing committee
oversight.
103
5 U.S.C. 552(b)(5).
5 U.S.C. 552(d).
105
612 F.2d 1151, 1155-58 (D.C. Cir. 1979).
106
5 U.S.C. 552a (b)(9).
107
See discussion of legislative history in CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987).
108
441 U.S. 281, 301-16 (1979).
109
41 Op. Atty. Gen. 221 (1955).
104
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Congressional oversight of the conduct of civil and criminal enforcement matters by agencies,
and most particularly the Department of Justice (DOJ), has raised sensitive questions respecting
the exercise of prosecutorial discretion by the executive and interference with protected rights of
individuals who may be the subject of such enforcement actions. However, a review of
congressional investigations that have implicated DOJ or DOJ investigations over the past 70
years, from the Palmer Raids and Teapot Dome to Watergate and through Iran-Contra and Rocky
Flats,110 demonstrates that DOJ has been consistently obliged to submit to congressional
oversight, regardless of whether litigation is pending, so that Congress is not delayed unduly in
investigating misfeasance, malfeasance, or maladministration in DOJ or elsewhere. A number of
these inquiries spawned seminal Supreme Court rulings that today provide the legal foundation
for the broad congressional power of inquiry.111 All were contentious and involved Executive
claims that committee demands for agency documents and testimony were precluded on the basis
of constitutional or common law privilege or policy.
In the majority of instances reviewed, the testimony of subordinate DOJ employees, such as line
attorneys and FBI field agents, was taken formally or informally, and included detailed testimony
about specific instances of the Department’s failure to prosecute alleged meritorious cases. In all
instances, investigating committees were provided with documents respecting open or closed
cases that included prosecutorial memoranda, FBI investigative reports, summaries of FBI
interviews, memoranda and correspondence prepared during the pendency of cases, confidential
instructions outlining the procedures or guidelines to be followed for undercover operations and
the surveillance and arrests of suspects, and documents presented to grand juries not protected
from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure, among other similar
“sensitive” materials.
The reasons advanced by the Executive for declining to provide information to Congress about
civil proceedings have included avoiding prejudicial pre-trial publicity, protecting the rights of
innocent third parties, protecting the identity of confidential informants, preventing disclosure of
the government’s strategy in anticipated or pending judicial proceedings, the potentially chilling
effect on the exercise of prosecutorial discretion by DOJ attorneys, and precluding interference
with the President’s constitutional duty to faithfully execute the laws.112
As has been recounted previously, the Supreme Court has repeatedly reaffirmed the breadth of
Congress’ right to investigate the government’s conduct of criminal and civil litigation.113 The
110
See Morton Rosenberg, “Legal and Historical Substantiality of Former Attorney General Civilette’s Views as to the
Scope and Reach of Congress’ Authority to Conduct Oversight of the Department of Justice,” CRS, October 15, 1993,
reprinted in Hearing, “EPA’s Criminal Enforcement Program”, before the Subcommittee on Oversight and
Investigations, House Committee on Energy and Commerce, 103d Cong., 1st Sess. 12-41 (1993). For an in-depth
description of the most recent investigation of the DOJ, see Staff Report, Damaging Disarray: Organizational
Breakdown and Reform in the Justice Department’s Environmental Crimes Program, House Subcomm. on Oversight
and Investigations, Comm. on Energy and Commerce, 103rd Congress., 2d Session (Dec. 1994) (Comm. Print No. 103T).
111
See notes, 13-20, supra, and accompanying text for a review of McGrain v. Daugherty and Sinclair v. United States.
112
A leading statement of the executive branch position is found in an opinion of Attorney General Robert Jackson. 40
Op. A.G. 45 (1941).
113
See discussion of case law, supra at notes 2-8 and 13-20, and accompanying text.
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courts have also explicitly held that agencies may not deny Congress access to agency
documents, even in situations where the inquiry may result in the exposure of criminal corruption
or maladministration of agency officials. The Supreme Court has noted, “[B]ut surely a
congressional committee which is engaged in a legitimate legislative investigation need not grind
to a halt whenever responses to its inquiries might potentially be harmful to a witness in some
distinct proceeding . . . or when crime or wrongdoing is exposed.”114 Nor does the actual
pendency of litigation disable Congress from the investigation of facts which have a bearing on
that litigation, where the information sought is needed to determine what, if any, legislation
should be enacted to prevent further ills.115
Although several lower court decisions have recognized that congressional hearings may have the
result of generating prejudicial pre-trial publicity, they have not suggested that there are any
constitutional or legal limitations on Congress’ right to conduct an investigation during the
pendency of judicial proceedings. Instead, the cases have suggested approaches, such as granting
a continuance or a change of venue, to deal with the publicity problem.116 For example, the court
in one of the leading cases, Delaney v. United States, entertained “no doubt that the committee
acted lawfully, within the constitutional powers of Congress duly delegated to it” but went on to
describe the possible consequences of concurrent executive and congressional investigations:
We think that the United States is put to a choice in this matter: If the United States, through
its legislative department, acting conscientiously pursuant to its conception of the public
interest, chooses to hold a public hearing inevitably resulting in such damaging publicity
prejudicial to a person awaiting trial on a pending indictment, then the United States must
accept the consequences that the judicial department, charged with the duty of assuring the
defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until
by lapse of time the danger of the prejudice may reasonably be thought to have been
substantially removed.117
The Delaney court distinguished the case of a congressional hearing generating publicity relating
to an individual not under indictment at the time (as was Delaney):
Such a situation may present important differences from the instant case. In such a situation
the investigative function of Congress has its greatest utility: Congress it is informing itself
so that it may take appropriate legislative action; it is informing the Executive so that
existing laws may be enforced; and it is informing the public so that democratic processes
114
Hutcheson v. United States, 369 U.S. 599, 617 (1962).
Sinclair v. United States, 279 U.S. 263, 294 (1929).
116
See e.g., Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); United States v. Mitchell, 372 F.Supp. 1239, 1261
(S.D.N.Y. 1973). For discussion of issues in addition to prejudicial publicity that have been raised in regard to
concurrent congressional and judicial proceedings, including allegations of violation of due process, see, Contempt of
Congress, H.R. Rpt. No. 97-968, 97th Cong., 2d Sess. 58 (1982; and the discussion of the potential consequences of
congressional grants of testimonial immunity on criminal trials, supra, at notes 57-67 and accompanying text.
117
199 F.2d 107, 114 (1st Cir. 1952). The court did not fault the committee for holding public hearings, stating that if
closed hearings were rejected “because the legislative committee deemed that an open hearing at that time was required
by overriding considerations of public interest, then the committee was of course free to go ahead with its hearing,
merely accepting the consequence that the trial of Delaney on the pending indictment might have to be delayed.” 199
F.2d at 114-5. It reversed Delaney’s conviction because the trial court had denied his motion for a continuance until
after the publicity generated by the hearing, at which Delaney and other trial witnesses were asked to testify, subsided.
See also, Hutcheson v. United States, 369 U.S. 599, 613 (1962)(upholding contempt conviction of person who refused
to answer committee questions relating to activities for which he had been indicted by a state grand jury, citing
Delaney.)
115
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may be brought to bear to correct any disclosed executive laxity. Also, if as a result of such
legislative hearing an indictment is eventually procured against the public official, then in the
normal case there would be a much greater lapse of time between the publicity
accompanying the public hearing and the trial of the subsequently indicted official than
would be the case if the legislative hearing were held while the accused is awaiting trial on a
pending indictment.118
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The absence of indictment and the length of time between congressional hearing and criminal
trial have been factors in courts rejecting claims that congressionally generated publicity
prejudiced defendants.119 Finally, in the context of adjudicatory administrative proceedings,
courts on occasion have held that pressures emanating from questioning of agency
decisionmakers by Members of Congress may be sufficient to undermine the impartiality of the
proceeding. 120 But the courts have also made clear that mere inquiry and oversight of agency
actions, including agency proceedings that are quasi-adjudicatory in nature, will not be held to
rise to the level of political pressure designed to influence particular proceedings that would
require judicial condemnation.121
Thus, the courts have recognized the potentially prejudicial effect congressional hearings can
have on pending cases. While not questioning the prerogatives of Congress with respect to
oversight and investigation, the cases pose a choice for the Congress: congressionally generated
publicity may result in harming the prosecutorial effort of the Executive; but access to
information under secure conditions can fulfill the congressional power of investigation and at the
same time need not be inconsistent with the authority of the Executive to pursue its case.
Nonetheless, it remains a choice that is solely within Congress’ discretion to make irrespective of
the consequences.122
In the past the executive frequently has made a broader claim that prosecution is an inherently
executive function and that congressional access to information related to the exercise of that
function is thereby limited. Prosecutorial discretion is seen as off-limits to congressional inquiry
and access demands are viewed as interfering with the discretion traditionally enjoyed by the
prosecutor with respect to pursuing criminal cases.
Initially, it must be noted that the Supreme Court has rejected the notion that prosecutorial
discretion in criminal matters is an inherent or core executive function. Rather, the Court noted in
118
199 F.2d at 115.
See, Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), cert. denied, 400 U.S. 102 (1971)(claim of
prejudicial pretrial publicity rejected because committee hearings occurred five months prior to indictment); Beck v.
United States, 298 F.2d 622 (9thCir. 1962)(hearing occurred a year before trial); United States v. Haldeman, 559 F.2d
31, 63 (D.C. Cir. 1976), cert. denied, 433 U.S. 933 (1977); United States v. Ehrlichman, 546 F.2d 910, 917 (D.C. Cir.
1976), cert. denied, 429 U.S. 1120 (1977); United States v. Mitchell, 372 F.Supp. 1239, 1261 (S.D.N.Y. 1973)(postindictment Senate hearing but court held that lapse of time and efforts of committee to avoid questions relating to
indictment diminished possibility of prejudice); United States v. Mesarosh, 223 F.2d 449 (3rd Cir. 1955)(hearing only
incidentally connected with trial and occurred after jury selected).
120
See, e.g., Pillsbury Co. v. FTC, 354 F.2d 952 5th Cir. (1968).
121
See e.g., ATX, Inc. v. Department of Transportation 41 F.3d 1522 (D.C. Cir. 1994); State of California v. FERC,
966 F.2d 154 (9th Cir. 1992); Peter Kiewet Sons’ v. U.S. Army Corps of Engineers, 714 F.2d 163 (D.C. Cir. 1983); Gulf
Oil Corp. v. FPC, 563 F.2d 588 (3d Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Armada Petroleum
Corp., 562 F.Supp 43 (S.D. Tex. 1982). See also, Morton Rosenberg and Jack Maskell, Congressional Intervention in
the Administrative Process: Legal and Ethical Considerations (CRS Report No 90-440A, Sept. 7, 1990).
122
See remarks of Independent Counsel Lawrence E. Walsh, supra footnote 66 and accompanying text.
119
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Morrison v. Olson, 123 sustaining the validity of the appointment and removal conditions for
independent counsels under the Ethics in Government Act, that the independent counsel’s
prosecutorial powers are executive in that they have “typically” been performed by Executive
Branch officials, but held that the exercise of prosecutorial discretion is in no way “central” to the
functioning of the Executive Branch.124 The Court therefore rejected a claim that insulating the
independent counsel from at-will presidential removal interfered with the President’s duty to
“take care” that the laws be faithfully executed. Interestingly, the Morrison Court took the
occasion to reiterate the fundamental nature of Congress’ oversight function (“ . . . receiving
reports or other information and oversight of the independent counsel’s activities . . . [are]
functions that we have recognized as generally incidental to the legislative function of Congress,”
citing McGrain v. Daugherty.)125
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The breadth of Morrison’s ruling that the prosecutorial function is not an exclusive function of the
Executive was made clear in a recent decision of the Ninth Circuit Court of Appeals in United
States ex rel Kelly v. The Boeing Co.,126 which upheld, against a broad based separation of
powers attack, the constitutionality of the qui tam provisions of the False Claims Act vesting
enforcement functions against agencies by private parties.127
Prosecution, not being a core or exclusive function of the Executive, cannot claim the
constitutional stature of Congress’ oversight prerogative. In the absence of a credible claim of
encroachment or aggrandizement by the legislature of essential Executive powers, the Supreme
Court has held the appropriate judicial test is one that determines whether the challenged
legislative action “‘prevents the Executive Branch from accomplishing its assigned functions’,”
and, if so, “‘whether that impact is justified by an overriding need to promote objectives within
the constitutional authority of Congress’.”128
123
487 U.S. 654 (1988).
Id. at 691-92.
125
Id. at 694.
126
9 F.3d 743 (9th Cir. 1993).
127
Boeing argued, inter alia, that Congress could not vest enforcement functions outside the Executive Branch in
private parties. Applying Morrison the appeals court emphatically rejected the contention.
Before comparing the qui tam provisions of the FCA to the independent counsel provisions of the
Ethics in Government Act, we must address Boeing’s contention that only the Executive Branch
has the power to enforce laws, and therefore to prosecute violations of law. It is clear to us that no
such absolute rule exists. Morrison itself indicates otherwise because that decision validated the
independent counsel provisions of the Ethics in Government Act even though it recognized that “it
is undeniable that the Act reduces the amount of control or supervision that the Attorney General
and, through him, the President exercises over the investigation and prosecution of a certain class
of alleged criminal activity.” 487 U.S. at 695. The Court also stated in Morrison that “there is no
real dispute that the functions performed by the independent counsel are ‘executive’ in the sense
that they are law enforcement functions that typically have been undertaken by officials within the
Executive Branch.” 487 U.S. at 692 (emphasis added). Use of the world “typically” in that
sentence, considered in light of the Court’s ultimate conclusion upholding the independent counsel
provisions, must mean that prosecutorial functions need not always be undertaken by Executive
Branch officials. See Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive Function?
Morrison v. Olson and the Framers’ Intent, 99 Yale L.J. 1069, 1070 (1990)(Framers intended that
prosecution would be undertaken by but not constitutionally assigned to executive officials, and
that such officials would typically but not always prosecute). Thus, we reject Boeing’s assertion
that all prosecutorial power of any kind belongs to the Executive Branch.
9 F.3d at 751 (emphasis supplied).
128
Nixon v. Administration of General Services, 433 U.S. 425,433 (1977); Commodity Futures Trading Commission v.
(continued...)
124
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Congressional oversight and access to documents and testimony, unlike the action of a court,
cannot stop a prosecution or set limits on the management of a particular case. Access to
information by itself would not seem to disturb the authority and discretion of the Executive
Branch to decide whether to prosecute a case. The assertion of prosecutorial discretion in the face
of a congressional demand for information is arguably akin to the “generalized” claim of
confidentiality made in the Watergate executive privilege cases. That general claim—lacking in
specific demonstration of disruption of Executive functions—was held to be overcome by the
more focused demonstration of need for information by a coordinate branch of government.129
Given the legitimacy of congressional oversight and investigation of the law enforcement
agencies of government, and the need for access to information pursuant to such activities, a
claim of prosecutorial discretion by itself would not seem to be sufficient to defeat a
congressional need for information. The congressional action itself does not and cannot dictate
prosecutorial policy or decisions in particular cases. Congress may enact statutes that influence
prosecutorial policy and information relating to enforcement of the laws would seem necessary to
perform that legislative function. Thus, under the standard enunciated in Morrison v. Olson and
Nixon v. Administrator of General Services, the fact that information is sought on the Executive’s
enforcement of criminal laws would not in itself seem to preclude congressional inquiry.
In light of the Supreme Court’s consistent support of the power of legislative inquiry, and in the
absence of a countervailing constitutional prerogative of the Executive, it is likely that a court
will be “sensitive to the legislative importance of congressional committees on oversight and
investigations and recognize that their interest in the objective and efficient operation of ...
agencies serves a legitimate and wholesome function with which we should not lightly
interfere.”130
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Rule 6(e) of the Federal Rules of Criminal Procedure provides that members of the grand jury and
those who attend the grand jury in its proceedings may not “disclose matters occurring before the
grand jury, except as otherwise provided in these rules.”131 The prohibition does not ordinarily
extend to witnesses. 132 Violations are punishable as contempt of court. 133
There is some authority for the proposition that Rule 6(e), promulgated as an exercise of
congressionally delegated authority and reflecting pre-existing practices, is not intended to
address disclosures to Congress. 134 As a general rule, however, neither Congress nor the courts
appear to have fully embraced the proposition.
(...continued)
Schor, 487 U.S. 833, 851 (1986); Morrison v. Olson, 487 U.S. 654, 693-96 (1988).
129
U.S. v. Nixon, 418 U.S. 683, 705-706, 711-712 (1974).
130
Gulf Oil Corp. v. FPC, 563 F.2d 588, 610 (3d Cir. 1977).
131
Fed. R. Crim. Pro. 6 (e) (2).
132
United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983); In re Sealed Motion, 880 F.2d 1367, 1373 (D.C.
Cir. 1989).
133
Fed. R. Crim. Pro. 6(e) (2).
134
See In re Grand Jury Proceedings of Grand Jury No. 81-1 (Miami), 669 F.Supp. 1072, 1074-75 (S.D. Fla. 1987),
aff’d on other grounds, 833 F.2d 1438 (11th Cir. 1987); In re Report and Recommendation of June 5, 1972 Grand Jury
(continued...)
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But, not all matters presented to a grand jury are embraced by the secrecy rule. Thus, “when
testimony or data is sought for its own sake - for its intrinsic value in the furtherance of a lawful
investigation - rather than to learn what took place before the grand jury, it is not a valid defense
to disclosure that the same information was revealed to a grand jury or that the same documents
had been, or were presently being, examined by a grand jury.”135 Congressional committees have
gained access to documents under this theory, the courts ruling that the committee’s interest was
in the documents themselves and not in the events that transpired before the grand jury.136
However, with respect to matters that “reflect exactly what transpired in the grand jury,” such as
transcripts of witness testimony, Rule 6(e) has been held to be a bar to congressional access.137
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The case law would appear to indicate that Rule 6(e) would not preclude disclosure of the
following types of documents:
1. Documents within the possession of the Department of Justice concerning a particular case
or investigation, other than transcripts of grand jury proceedings and material indicating
“the identities of witnesses or jurors, the substance of testimony, the strategy or direction
of the investigation, the deliberations or questions of jurors, and the like.” Material that
would not otherwise be identifiable as grand jury material does not become secret by
Department of Justice identification.138
2. Immunity letters, draft pleadings, target letters, and draft indictments.139
3. Plea agreements as long as particular grand jury matters are not expressly mentioned.140
4. Third party records which pre-exist the grand jury investigation even if they are in the
possession of the Department of Justice as custodian for the grand jury.141
5. Memoranda, notes, investigative files, and other records of FBI agents or other government
investigators except to the extent those documents internally identify or clearly define
activities of the grand jury.142
(...continued)
Concerning Transmission of Evidence to the House of Representatives, 370 F.Supp. 1219, 1230 9D.C.C. 1974),
petitions for writs of prohibition and mandamus den’d sub nom., Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974); In
re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1304-308 (M.D. Fla. 1977).
135
United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Circ. (1960)). See also, SEC v. Dresser
Industries, Inc., 628 F.2d 1368 (D.C.C. Cir. 1980); In re Grand Jury Investigation (New Jersey State Commission of
Investigation), 630 F.2d 996 (3rd Cir. 1980); Davis v. Romney, 55 F.R.D. 337 (E.D. Pa. 1972).
136
In re Grand Jury Impanelled October 2, 1978, 510 F.Supp. 112, 115 (D.C.C. 1981); In re Grand Jury Proceedings,
Newport News Drydock & Shipbuilding Co., Mem. Opinion (E.D. Va. Nov. 12, 1984); In re Senate Banking Committee
Hearings, 19 F.R.D. 410 (N.D. Ill. 1956).
137
In re Grand Jury Investigation Uranium Industry, 1979-2 Trade Cas. 78, 639 (D.D.C. (1979)); In re Grand Jury
Impanelled October 2, 1978, 510 F.Supp. 112 (D.D.C. 112 (D.D.C. 1981).
138
Senate of Puerto Rico v. U.S. Department of Justice, 823 F.2d 574, 583, 583n. 30 (D.C. Cir. 1987); In Grand Jury
Impanelled October 2, 1978 (79-2), 510 F.Supp. 112, 114-15 (D.D.C. 1981).
139
In re Harrisburg Grand Jury—83-2, 638 F.Supp. 43, 47 n.4 (M.D. Pa. 1986); In re Grand Jury Matter (Catania),
682 F.2d 61, 64 n.4 (3d Cir. 1982).
140
Washington Post v. Robinson, 935 F.2d 282, 290-91 (D.C. Cir. 1991).
141
S.E.C. v. Dresser Industries, Inc., 628 F.2d 1368, 1382-83 (D.C. Cir. 1980); United States ex rel Woodard v. Tynan,
757 F.2d 1085, 1087-88 (10th Cir. 1985).
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A congressional committee is a creation of its parent House and only has the power to inquire into
matters within the scope of the authority that has been delegated to it by that body. Thus, the
enabling rule or resolution which gives the committee life is the charter which defines the grant
and limitations of the committee’s power.143 In construing the scope of a committee’s authorizing
charter, courts will look to the words of the rule or resolution itself, and then, if necessary to the
usual sources of legislative history such as floor debate, legislative reports, past committee
practice and interpretations.144 Jurisdictional authority for a “special” investigation may be given
to a standing committee,145 a joint committee of both houses, 146 or a special subcommittee of a
standing committee, 147 among other vehicles. In view of the specificity with which Senate148 and
House149 rules now confer jurisdiction on standing committees, as well as the care with which
most authorizing resolutions for select committees have been drafted in recent years, sufficient
models exist to avoid a successful judicial challenge by a witness that noncompliance was
justified by a committee’s overstepping its delegated scope of authority.
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Rules of both Houses 150 require that committees adopt written rules of procedure and publish
them in the Congressional Record. The failure to publish has resulted in the invalidation of a
perjury conviction.151 Once properly promulgated, such rules are judicially cognizable and must
be “strictly observed.152 The House153 and many individual Senate committees require that all
witnesses by given a copy of the committee’s rule.
(...continued)
142
Anaya v. United States, 815 F.2d 1373, 1380-81 (10th Cir. 1987).
143
United States v. Rumely, 345 U.S. 41, 44 (1957); Watkins v. United States, 354 U.S. 178, 201 (1957); Gojack v.
United States, 384 U.S. 202, 208 (1966).
144
Barenblatt v. United States, 360 U.S. 109, 117 (1959); Watkins v. United States, supra, 209-215.
145
See Senate Resolution 229, 103d Cong., 2d Sess., directing the Senate Banking, Housing and Urban Affairs
Committee to conduct a limited hearing on the Whitewater affair. 140 Cong. Rec. S 6675 (daily ed. June 9, 1994).
146
See Sen. Res. 23 and H.Res. 100th Cong., 1st Sess. (1987), establishing the Iran-Contra joint investigating
committee.
147
A Senate Judiciary Subcommittee to Investigate Individuals Representing the interests of Foreign Governments was
created by unanimous consent agreement of the Senate. 126 Cong. Rec. 19544-46 (1980).
148
Senate Rule XXV.
149
House Rule X.
150
House Rule XI(2); Senate Rule XXVI(2).
151
United States v. Reinecke, 524 F.2d 435 (D.C. Cir 1975)(failure to publish committee rule setting one Senator as a
quorum for taking hearing testimony held sufficient ground to reverse perjury conviction).
152
Gojack v. United States 384 U.S. 702, 708 (1966); Yellin v. United States, 374 U.S. 109 (1963).
153
House Rule XI(2)(k)(2).
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Both the House and Senate have adopted rules permitting a reduced quorum for taking testimony
and receiving evidence. House hearings may be conducted if at least two members are present;154
the Senate permits hearings with one only member in attendance.155 Although most committees
have adopted the minimum quorum requirement, some have not, while others require a higher
quorum for sworn rather than unsworn testimony. For perjury purposes, the quorum requirement
must be met at the time the allegedly perjured testimony is given, not at the beginning of the
session.156 Reduced quorum requirement rules do not apply to authorization for the issuance of
subpoenas. Senate rules require a one-third quorum of a committee or subcommittee and the
House a quorum of a majority of the members, unless a committee delegates authority for
issuance to its chairman.157
Senate and House rules limit the authority of their committees to meet in closed session.158 A
House rule provides, however, that testimony “shall” be held in closed session if a majority of a
committee or subcommittee determines it “may tend to defame, degrade, or incriminate any
person”.159 Such testimony taken in closed session is normally releasable only by a majority vote
of the committee.160 Similarly, confidential material received in a closed session requires a
majority vote for release.161 A release of confidential materials in accordance with applicable rules
effectively minimizes objections by a submitting witness.162 Moreover, the Speech or Debate
clause163 will protect a member who discloses such information on the floor from legal redress,
although not from the possibility of internal discipline.164
154
House Rule XI(2)(h)(1).
Senate Rule XXVI(7)(a)(2).
156
Christoffel v. United States, 338 U.S. 84 (1949).
157
Senate Rule XXVI(7)(a)(2); House Rule XI(2)(h)(1).
158
Senate Rule XXVI(5)(b); House Rule X1(2)(g)(2).
159
House Rule XI(2)(k)(5).
160
House Rule XI(2)(k)(7).
161
Id.
162
Doe v. McMillan, 566 F.2d 713, 713-16 (D.C. Cir. 1977), cert. denied, 435 U.S. 969 (1978).
163
Art. I, sec. 6, cl. 2.
164
The purposes of the Speech or Debate Clause are to assure the independence of Congress in the exercise of its
legislative functions and to reinforce the separation of powers established in the Constitution. Eastland v. United States
Servicemen’s Fund, 421 U.S. 502-03 (1975). The Supreme Court has read the Clause to broadly effectuate its purposes.
Id.; United States v. Swindall, 971 F. 2d 1531, 1534 (11th Cir. 1992). The Clause protects “purely legislative activities”,
including those inherent in the legislative process. Chastain v. Lundquist, 833 F. 2d 311, 314 (D.C. Cir. 1987) (quoting
U.S. v. Brewster, 408 U.S. 501, 512 (1972), cert. denied 487 U.S. 1240 (1988). Actions protected under the provisions
include those taken in the regular course of the legislative process and the motivations of the legislators for their
actions. United States v. Helstoski, 442 U.S. 477, 489 (1979). In addition to shielding “words spoken in debate”,
Kilbourn v. Thompson, 103 U.S. 168, 204 (1880), the Clause encompasses such activity integral to lawmaking as
voting, id., circulation of information to other members, Doe v. McMillan 412 U.S. 306 (1973), Gravel v. United States,
408 U.S. 606, 625 (1972), and participation in committee investigative proceedings, and reports. Id., Eastland v. U.S.
Servicemen’s Fund, supra; Dombrowski v. Eastland, 387 U.S. 82 (1967); Tenney v. Brandhove, 341 U.S. 367 (1951).
However, activities only casually or incidentally related to legislative affairs are outside the ambit of Speech or Debate
protection. Thus newsletter and press releases circulated by a member to the public are not shielded because they are
“primarily means of informing those outside the legislative forum”. Hutchinson v. Proxmire, 443 U.S. 111 (1979). Also
a member may be prosecuted for accepting a bribe or for other unlawful conduct so long as the prosecution “does not
draw in question the legislative act of the defendent Member of Congress”. United States v. Brewster, supra, 408 U.S.
at 510 (quoting United States v. Johnson, 383 U.S. at 185). The key consideration is the act presented for examination,
not the actor. Activities integral to the legislative process may not be examined, but peripheral activities not closely
connected to the business of legislating do not enjoy the protection of the Clause. Walker v. Jones, 733 F. 2d, 927, 929
(D.C. Cir. 1984).
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House Rule XI(3)(e) provides that the broadcast of open committee hearings may be permitted by
a majority vote of the committee in accordance with written rules adopted by the committee.
Individual committees have adopted a variety of rules with respect to such coverage. House Rule
XI(3)(f)(2) affords an absolute right to a subpoenaed witness to demand no broadcast or
photographic coverage of his testimony. There is comparable rule in the Senate, that body
allowing each committee to adopt its own policy.165
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The chairman of a committee or subcommittee, or in his or her absence, the ranking majority
member present, normally presides over the conduct of a hearing. An opening statement by the
chair is usual, and in the case of an investigative hearing is an important means of defining the
subject matter of the hearing and thereby establishing the pertinence of questions asked the
witnesses. Not all committees swear in their witnesses; some committees require that all
witnesses be sworn. Most leave it to the discretion of the chair. If a committee wishes the
potential sanction of perjury to apply, it should swear its witnesses, though false statements not
under oath are subject to criminal sanctions.166
A witness does not have a right to make a statement before being questioned,167 but that
opportunity is usually accorded. Committee rules may prescribe the length of such statements and
may also require that written statements be submitted in advance of the hearing. Questioning of
witnesses may be structured so that members alternate for specified length of time. Questioning
may also be done by staff. Witnesses may be allowed to review a transcript of their testimony and
to make non-substantive corrections.
The right of a witness to be accompanied by counsel is recognized by House rule168 and the rules
of Senate committees. The House rule limits the role of counsel as solely “for the purpose of
advising them [witnesses] concerning their constitutional rights.” Some committees have adopted
rules specifically prohibiting counsel from “coaching” witness during their testimony.169 A
committee has complete authority to control the conduct of counsel. Indeed, House Rule
XI(2)(k)(4) provides that “[t]he chairman may punish breaches of order and decorum, and of
professional ethics on the part of counsel, by censure or exclusion from the hearings; and the
committee may cite the offender for contempt.” Some Senate committees have adopted similar
rules.170 There is no right of cross-examination of adverse witnesses during an investigative
hearing.171
165
Senate Rule XXVI(3)(c).
See discussion, supra at notes 77-78 and accompanying text.
167
2 U.S.C. 191.
168
House Rule XII(2)(k)(3).
169
See, e.g., Senate Permanent Committee on Investigations Rule 8.
170
See, e.g., Senate Aging Committee Rule V. 8; Senate Permanent Subcommittee on Investigations Rule 7.
171
United States v. Fort, 443 F.2d 620, 678-79 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).
166
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(1) Constitutional Privileges
It is well established that the protections of the Bill of Rights extend to witnesses before a
legislative inquiry.172 and thus may pose significant limitations on congressional investigations.
The scope of the protections of the Fifth, First and Fourth amendments and the manner of the
their invocation are briefly reviewed.
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(a) Fifth Amendment
The Fifth Amendment provides that “no person ... shall be compelled in any criminal case to be a
witness against himself.” The privilege is personal in nature,173 and may not be invoked on behalf
of a corporation,174 small partnership,175 labor union,176 or other artificial entity.177 The privilege
protects a witness against being compelled to testify but not against a subpoena for existing
documentary evidence.178 However, where compliance with a subpoena duces tecum would
constitute an implicit testimonial authentication of the documents produced, the privilege may
apply.179
There is no particular formulation of words necessary to invoke the privilege. All that is required
is that the witness’ objection be stated in a manner that the “committee may be reasonably
expected to understand as an attempt to invoke the privilege”.180 To the extent there is any doubt
about the witness’ intent, it is incumbent on the committee to ask the witness whether he or she is
in fact invoking the privilege.181 But a witness before a congressional committee may not remain
silent. The privilege must be invoked in response to a specific question that might incriminate
him. Nor may a witness refuse to take the oath on Fifth Amendment grounds.182
172
2 U.S.C. 191.
See McPhaul v. United States, 364 U.S. 372 (1960).
174
Hale v. Henkel, 201 U.S. 43 (1906).
175
Bellis v. United States, 417 U.S. 85 (1974).
176
See United States v. White, 322 U.S. 694 (1944).
177
Bellis v. United States, 417 U.S. at 90. See also Rogers v. United States, 340 U.S. 367 (1951)(Communist Party).
178
Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). These cases
concerned business records and there may be some protection available in the case of a subpoena for personal papers.
However, in Senate Select Committee on Ethics v. Packwood, 845 F.Supp 17, 22-23 (D.D.C, 1994), stay pending
appeal denied, 114 S.Ct. 1036 (1994), the court upheld disclosure to the Senate Ethics Committee of a Senator’s
diaries, holding that the Fifth Amendment “does not protect against [the diaries’] incriminating contents voluntarily
committed to paper before the government makes demand for them” (emphasis in original).
179
United States v. Doe, 465 U.S. 605 (1984); Fisher v. United States, 425 U.S. 391 (1976). But c.f., Doe v. United
States, 487 U.S. 201 (1988), where the Court upheld a lower court order compelling the target of a grand jury
investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over
which he had a right of withdrawal, holding it not to be testimonial in nature.
180
Emspak v. United States, supra, 349 U.S. at 194.
181
Quinn v. United States, supra, 349 U.S. at 164.
182
Eisler v. United States, 170 F.2d 273 (D.C. Cir. 1948), cert denied, 338 U.S. 887 (1949).
173
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A witness may plead the Fifth Amendment not only to questions whose answers would in
themselves support a conviction, but also to those questions which, if answered, would serve as a
“link in the chain of evidence” that would tend to incriminate him.183
The committee can review the assertion of the privilege by a witness to determine its validity, but
the witness is not required to prove the precise hazard that he fears. In regard to the assertion of
the privilege in judicial proceedings, the Supreme Court has advised:
To sustain the privilege, it need only be evident, from the implications of the question, in
the setting in which it is asked, that a responsive answer to the question or an explanation of
why it cannot be answered might be dangerous because injurious disclosure could result ....
To reject a claim, it should be perfectly clear from a careful consideration of all the
circumstances of the case that the witness is mistaken and that the answers cannot possibly
have a tendency’ to incriminate.184
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The basis for asserting the privilege was elaborated upon in a lower court decision:
The privilege may only be asserted when there is reasonable apprehension on the part of the
witness that his answer would furnish some evidence upon which he could be convicted of a
criminal offense... or which would reveal sources from which evidence could be obtained
that would lead to such conviction or to prosecution therefor.... Once it has become apparent
that the answers to a question would expose a witness to the danger of conviction or
prosecution, wider latitude is permitted the witness in refusing to answer other questions.185
The privilege against self-incrimination may be waived by declining to assert it, specifically
disclaiming it, or testifying on the same matters as to which the privilege is later asserted.
However, because of the importance of the privilege, a court will not construe an ambiguous
statement of a witness before a committee as a waiver.186
Finally it should be noted that the due process clause of the Fifth Amendment requires that “the
pertinency of the interrogation to the topic under the ...committee’s inquiry must be brought home
to the witness at the time the questions are put to him.”187 “Unless the subject matter has been
made to appear with undisputable clarity, it is the duty of the investigative body, upon objection
of the witness on grounds of pertinency, to state for the record the subject under inquiry at that
time and the manner in which the propounded questions are pertinent thereto.”188 Additionally, to
satisfy both the requirement of due process as well as the statutory requirement that a refusal to
183
Hoffman v. United States, 341 U.S. 479, 486 (1951). Where a witness asserts the privilege, a committee may seek a
court order under 18 U.S.C. 6002, 6005 which directs him to testify and grants him immunity against use of his
testimony, or other evidence derived from his testimony, in a subsequent criminal prosecution. See discussion of
procedure to obtain such an immunity order, supra at notes 45-56 and accompanying text.
184
Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
185
United States v. Jaffee, 98 F.Supp. 191, 193-94 (D.D.C. 1951). See also Simpson v. United States, 241 F.2d 222 (9th
Cir. 1957)(privilege inapplicable to questions seeking basic identifying information such as the witness’ name and
address).
186
Emspak v. United States, 349 U.S. 190 (1955). See also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
187
Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate
statutory requirement of pertinency.
188
Watkins v. United States, 354 U.S. 178, 214-15 (1957).
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answer be “willful”, a witness should be informed of the committee’s ruling on any objections he
raises or privileges which he asserts.189
(b) First Amendment
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Although the First Amendment, by its terms, is expressly applicable only to legislation that
abridges freedom of speech, press, or assembly, the Court has held that the amendment also
restricts Congress in conducting investigations.190 In the leading case involving the application of
First Amendment rights in a congressional investigation, Barenblatt v. United States,191 the Court
held that “where first amendment rights are asserted to bar government interrogation, resolution
of the issue always involves a balancing by the courts of the competing private and public
interests at stake in the particular circumstances shown.” Thus, unlike the Fifth Amendment
privilege against self-incrimination, the First Amendment does not give a witness an absolute
right to refuse to respond to congressional demands for information.192
The Court has held that in balancing the personal interest in privacy against the congressional
need for information, “the critical element is the existence of, and the weight to be ascribed to, the
interest of the Congress in demanding disclosure from an unwilling witness.”193 In order to
protect the rights of witnesses, in cases involving the First Amendment the courts have
emphasized the requirements discussed above concerning authorization for the investigation,
delegation of power to investigate to the committee involved, and the existence of a legislative
purpose.194
The Supreme Court has recognized the application of the First Amendment to congressional
investigations, and although the Amendment has frequently been asserted by witnesses as
grounds for not complying with congressional demands for information, the Court has never
relied on the First Amendment as grounds for reversing a criminal contempt of Congress
conviction.195 However, the Court has narrowly construed the scope of a committee’s authority so
189
Id.; Deutch v. United States, 367 U.S. 456 (1961).
Watkins v. United States, 354 U.S. 178, 197 (1957).
191
360 U.S. 109, 126 (1959).
192
Id.
193
Watkins v. United States, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, 408 U.S. 665
(1972), the leading case on the issue of the claimed privilege of newsmen not to respond to demands of a grand jury for
information. In its 5-4 decision, the Court concluded that the need of the grand jury for the information outweighed
First Amendment considerations, but there are indications in the opinion that “the infringement of protected first
amendment rights must be no broader than necessary to achieve a permissible governmental purpose,” and that “a
State’s interest must be ‘compelling’ or ‘paramount’ to justify even an indirect burden on first amendment rights.” Id.
at 699-700. For application of the compelling interest test in a legislative investigation, see Gibson v. Florida
Legislative Investigation Committee, 372 U.S. 539 (1963). See also, James J. Mangan, Contempt for the Fourth Estate:
No Reporter’s Privilege Before a Congressional Investigation, 83 Geo. L.J. 129 (1994) (arguing that bases for
reporter’s privilege are outweighed by governmental interests in a congressional investigation).
194
Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); United States v.
Rumely, 345 U.S. 41 (1953).
195
Although it was not in the criminal contempt context, one court of appeals has upheld a witness’ First Amendment
claim. In Stamler v. Willis, 415 F.2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970), the court ordered to trial a
witness’ suit for declaratory relief against the House Un-American Activities Committee in which it was alleged that
the committee’s authorizing resolution had a “chilling effect” on plaintiff’s First Amendment rights. In other cases for
declaratory and injunctive relief brought against committees on First Amendment grounds, relief has been denied
although the courts indicated that relief could be granted if the circumstances were more compelling. Sanders v.
McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Ichord, 442 F.2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442
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as to avoid reaching a First Amendment issue.196 And the Court has ruled in favor of a witness
who invoked his First Amendment rights in response to questioning by a state legislative
committee.197
(c) Fourth Amendment
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Dicta in opinions of the Supreme Court indicate that the Fourth Amendment’s prohibition against
unreasonable searches and seizures is applicable to congressional committees.198 It appears that
there must be probable cause for the issuance of a congressional subpoena.199 The Fourth
Amendment protects a congressional witness against a subpoena which is unreasonably broad or
burdensome.200 The Court has delineated the test be used in judging the reasonableness of a
congressional subpoena:
Petitioner contends that the subpoena was so broad as to constitute an unreasonable search
and seizure in violation of the Fourth Amendment.... ‘Adequacy or excess in the breath of
the subpoena are matters variable in relation to the nature, purposes, and scope of the
inquiry’ . . . The subcommittee’s inquiry here was a relatively broad one ... and the
permissible scope of materials that could reasonably be sought was necessarily equally
broad. It was not reasonable to suppose that the subcommittee knew precisely what books
and records were kept by the Civil Rights Congress, and therefore the subpoena could only
‘specify ... with reasonable particularity, the subjects to which the documents...relate....’ The
call of the subpoena for ‘all records, correspondence and memoranda’ of the Civil Rights
Congress relating to the specified subject describes them ‘with all of the particularity the
nature of the inquiry and the [subcommittee’s] situation would permit’ .... ‘The description
(...continued)
F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975), the
Supreme Court held that the Constitution’s Speech or Debate clause (art. I, sec. 6, cl. 1) generally bars suits challenging
the validity of congressional subpoenas on First Amendment or other grounds. Thus, a witness generally cannot raise
his constitutional defenses until a subsequent criminal prosecution for contempt unless, in the case of a Senate
committee, the statutory civil contempt procedure is employed. See United States v. House of Representatives, 556
F.Supp. 150 (D.D.C. 1983).
196
United States v. Rumely, 345 U.S. 41 (1953).
197
Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). In the majority opinion, Justice
Goldberg observed that “an essential prerequisite to the validity of an investigation which intrudes into the area of
constitutionally protected rights of speech, press, association and petition [is] that the State convincingly show a
substantial relation [or nexus] between the information sought and a subject of overriding and compelling state
interest”. Id. at 546.
198
Watkins v. United States, 354 U.S. 178, 188 (1957); McPhaul v. United States, 364 U.S. 372 (1960).
199
Fourth Amendment standards apply to subpoenas, such as those issued by committees, as well as to search warrants.
See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946). A congressional subpoena may not be used in a
mere “fishing expedition.” See Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936), quoting, Federal Trade Commission v.
American Tobacco Co., 264 U.S. 298, 306 (1924) (“It is contrary to the first principles of justice to allow a search
through all the record, relevant or irrelevant, in the hope that something will turn up.”). Cf. United States v. Groves, 188
F.Supp. 314 (W.D. Pa. 1937) (dicta). But see Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509 (1975),
in which the Court recognized that an investigation may lead “up some ‘blind alleys’ and into nonproductive
enterprises. To be a valid legislative inquiry there need be no predictable end result”.
200
McPhaul v. United States, 364 U.S. 372 (1960); Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert.
denied, 393 U.S. 1024 (1969). In Senate Select Committee on Ethics v. Packwood, 845 F.Supp. 17, 20-21 (D.D.C.
1994), stay pending appeal denied, 114 S.Ct. 1036 (1994), the court rejected a claim of overbreadth with regard to a
subpoena for a Senator’s personal diaries, holding that committee’s investigation was not limited in its investigatory
scope to its original demands “even though the diaries might prove compromising in respects the committee has not yet
foreseen”.
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contained in the subpoena was sufficient to enable [petitioner] to know what particular
documents were required and to select them accordingly.’201
If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to
comply with a demand for documents, he must give the grounds for his noncompliance upon the
return of the subpoena. As a court of appeals stated in one case:
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If [the witness] felt he could refuse compliance because he considered the subpoena so broad
as to constitute an unreasonable search and seizure within the prohibition of the Fourth
Amendment, then to avoid contempt for complete noncompliance he was under [an]
obligation to inform the subcommittee of his position. The subcommittee would then have
had the choice of adhering to the subpoena as formulated or of meeting the objection in light
of any pertinent representations made by [the witness].202
Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or
believes that it calls for documents not related to the investigation, he must inform the committee.
Where a witness is unable to produce documents he will not be held in contempt “unless he is
responsible for their unavailability... or is impeding justice by not explaining what happened to
them . . .”203
The application of the exclusionary rule to congressional committees is in some doubt and will
depend on the precise facts of the situation. It seems that documents which were unlawfully
seized at the direction of a congressional investigating committee may not be admitted into
evidence in a subsequent unrelated criminal prosecution because of the command of the
exclusionary rule.204 In the absence of a Supreme Court ruling, it remains unclear whether the
exclusionary rule bars the admission into evidence in a contempt prosecution of a congressional
subpoena which was issued on the basis of documents obtained by the committee following their
unlawful seizure by another investigating body (such as a state prosecutor).205
201
McPhaul v. United States, 364 U.S. at 382.
Shelton v. United States, 404 F.2d at 1299-1300.
203
McPhaul v. United States, 364 U.S. at 378.
204
Nelson v. United States, 268 F. 2d 505 (D.C. Cir.), cert denied, 346 U.S. 827 (1953).
205
In United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972), the court of appeals reversed contempt
convictions where the subcommittee subpoenas were based on information “derived by the subcommittee through a
previous unconstitutional search and seizure by [state] officials and the subcommittee’s own investigator.” The
decision of the court of appeals in the contempt case was rendered in December, 1972. In a civil case brought by the
criminal defendants, Alan and Margaret McSurely, against Senator McClellan and the subcommittee staff for alleged
violations of their constitutional rights by the transportation and use of the seized documents, the federal district court
in June, 1973, denied the motion of the defendants for summary judgment. While the appeal from the decision of the
district court in the civil case was pending before the court of appeals, the Supreme Court held in Calandra v. United
States, 414 U.S. 338 (1974), that a grand jury is not precluded by the Fourth Amendment’s exclusionary rule from
questioning a witness on the basis of evidence that had been illegally seized. A divided court of appeals subsequently
held in McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975), that under Calandra “a congressional committee
has the right in its investigatory capacity to use the product of a past unlawful search and seizure.”
The decision of the three-judge panel in the civil case was vacated and on rehearing by the full District of Columbia
Circuit, five judges were of the view that Calandra was applicable to the legislative sphere and another five judges
found it unnecessary to decide whether Calandra applies to committees but indicated that, even if it does apply to the
legislative branch, the exclusionary rule may restrict a committee’s use of unlawfully seized documents if it does not
make mere “derivative use” of them but commits an independent Fourth Amendment violation in obtaining them.
McSurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted
certiorari in the case, 434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently granted, with no
explanation for this disposition of the case, sub nom. McAdams v. McSurely, 438 U.S. 189 (1978). Jury verdicts were
(continued...)
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(2) The Common Law Attorney-Client and Work Product Privileges
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The precedents of the Senate and the House of Representatives, which are founded on Congress’
inherent constitutional prerogative to investigate, establish that the acceptance of a claim of
attorney-client or work product privilege rests in the sound discretion of a congressional
committee regardless of whether a court would uphold the claim in the context of litigation. In
practice, committee resolutions of claims of these privileges have involved a pragmatic
assessment of the needs of the individual committee to accomplish its legislative mission and the
potential burdens and harms that may be imposed on a claimant of the privilege if it is denied.
Thus the exercise of committee discretion whether to accept a claim of attorney-client work
product privilege has turned on a “weighing [of] the legislative need for disclosure against any
possible resulting injury.”206 More particularly, the process of committee resolution of claims of
privilege has traditionally been informed by weighing considerations of legislative need, public
policy, and the statutory duty of congressional committees to engage in continuous oversight of
the application, administration, and execution of laws that fall within its jurisdiction,207 against
any possible injury to the witness. In the particular circumstances of any situation, a committee
may consider and evaluate the strength of a claimant’s assertion in light of the pertinency of the
documents or information sought to the subject of the investigation, the practical unavailability of
the documents or information from any other source, the possible unavailability of the privilege
to the claimant if it were to be raised in a judicial forum, and the committee’s assessment of the
cooperation of the witness in the matter, among other considerations. A valid claim of privilege,
free of any taint of waiver, exception or other mitigating circumstance, would merit substantial
weight. But any serious doubt as to the validity of the asserted claim would diminish its
compelling character.
The discussion will begin with a brief overview of the constitutional origins and basis for
Congress’ discretionary control over such claims of privilege and recent examples of committee
exercises of that discretion, followed by a review of the requirements for assertion of the
attorney-client and work product privileges. Next the law with respect to waiver of the privilege
and exceptions to assertion of the privilege is detailed.
(...continued)
eventually returned against the Senate defendants, but were reversed in part on appeal. 753 F.2d 88 (D.C. Cir. 1985),
cert. denied, U.S. (1985).
More recently, in a contextually relevant situation, a district court quashed subpoenas issued on behalf of tobacco
companies against two members of Congress for testimony and production of documents relating to a congressional
investigation of the company’s knowledge of the health hazards and addictiveness of tobacco. Maddox v. Williams, 855
F. Supp. 406 (D.D.C. 1994), appeal pending in the D.C. Circuit. The companies had contended that the documents had
been stolen and disclosed in violation of the attorney-client privilege. The court held that “use by a congressional
committee of information that is gathered illegally is nevertheless protected by the Speech or Debate Clause, provided
the use occurs in the course of a legitimate congressional investigation, and Congressmen were not personally involved
in the criminal activity.” 855 F. Supp. at 411-12 (citing, inter alia, Dombroski v. Eastland, 387 U.S. 82,85,87 (1967)
and Eastland v. United States Servicemen’s Fund, supra, 421 U.S. at 501). The court also rejected the companies’
reliance on McSurely as “misplaced”. Its opinion described McSurely as “holding that, even if material comes to a
legislative committee by means that are unlawful, subsequent committee use of that material is nevertheless
privileged”, 855 F. Supp at 412 footnote 18, 417.
206
Hearings, “International Uranium Cartel”, Subcomm. on Oversight and Investigations, House Comm. on Interstate
and Foreign Commerce, 95th Cong., 1st Sess., Vol. 1, 123 (1977).
207
See 2 U.S.C. 190d.
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(a) The nature and development of Congress’ discretionary control over witness’ claims
of privilege
As with the legislature’s inherent authority to investigate,208 the discretion to entertain claims of
privilege traces back to the model of the English Parliament. Erskine May’s Treatise on the Law,
Privileges, Proceedings and Usage of Parliament, the definitive authority on English
parliamentary procedure, specifically notes:
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A witness is, however, bound to answer all questions which the committee sees fit to put to him,
and cannot excuse himself, for example, on the ground that he may thereby subject himself to a
civil action, or because he has taken an oath not to disclose the matter about which he is required
to testify, or because the matter was a privileged communication to him, as where a solicitor is
called upon to disclose the secrets of his client ... some of which would be sufficient grounds of
excuse in a court of law.209
The rare instances of the exercise of the prerogative to deny use of the privileges have been
consistent in the rejection of the applicability of the privileges. In the nineteenth century, Charles
W. Woolley, an attorney, was found in contempt of the House and imprisoned for refusal to
answer questions about a scheme for bribing senators during Andrew Johnson’s impeachment
proceeding despite a claim of attorney-client privilege.210 Also, in the notable investigation into
the financing of the Union Pacific Railroad and the activities of the Credit Mobilier, a House
Committee held Joseph B. Stewart in contempt notwithstanding his assertion of attorney-client
privilege.211 More recently, a Subcommittee of the House Energy and Commerce Committee has
on a number of occasions rejected claims of attorney-client privilege.212 No court has ever
questioned the assertion of the prerogative, and both Houses of Congress have rejected
opportunities to impose the attorney-client privilege as a binding rule for committee
investigations.213 Contemporary congressional practice has, in fact, evolved a delicate balancing
process to ensure its fair application. Thus the exercise of committee discretion has been held to
turn on a “weighing [of] the legislative need against any possible injury” to one asserting the
privilege and the application of this test has involved painstaking examinations of potential
detriment and relevant judicial precedents.214
208
McGrain v. Daugherty, 273 U.S. 135, 174 (1927); Watkins v. United States, 354 U.S. 178, 187 (1957); Barenblatt v.
United States, 360 U.S. 109, 111 (1959).
209
Erskine May’s Treatise at 746-747 (20th ed. 1983). May’s Treatise has been relied upon as an authoritative guide to
parliamentary and congressional investigatory authority. See, e.g., McGrain v. Daugherty, supra, 273 U.S. at 161
footnote 15.
210
Millet, The Applicability of Evidentiary Privileges For Confidential Communications Before Congress, 21 John
Marshall L. Rev. 309, 312-313 (1988)(Millet).
211
Millet, ibid., at 313-314. See also, Stewart v. Blaine, 1 MacArthur 453 (D.C. 1874); Eberling, Congressional
Investigations 349-350 (1928); Proceedings Against Ralph Bernstein and Joseph Bernstein. H.Rept. No. 99-462, 99th
Cong., 2d Sess. 13 notes 12-14 (1986)(Bernstein Contempt Report.).
212
See, Attorney-Client Privilege, Memoranda Opinions of the American Law Division, Library of Congress,
Committee Print 98-I, (98th Cong. June 1983)(CRS Memoranda). See also Hearings, International Uranium Cartel,
before Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th
Cong., 1st Sess. Vol. 1 (1977).
213
See, S. Rept. No. 2, 84th Cong., 1st Sess. 27-28 (1954); CRS Memoranda, supra footnote 212, at 24-26.
214
See, e.g., Hearings on the International Uranium Cartel Before the Subcomm. on Oversight and Investigations of the
House Comm. on Interstate and Foreign Commerce, 95th Cong., 1st Sess. 60, 123 (1977); see also CRS Memoranda,
supra, at 1-2, 27-36, 108-115.
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Perhaps the most emphatic and authoritative assertion of the committee prerogative in this area is
the 1986 House action holding Ralph and Joseph Bernstein in contempt for refusal to give the
Subcommittee on Asian and Pacific Affairs of the House Committee on Foreign Affairs requested
information pertaining to their relations with Ferdinand and Imelda Marcos. Their refusal rested
primarily on the assertion of attorney-client privilege.215 The Subcommittee rejected these claims
on two grounds: “That the claim of privilege would not be upheld even in a court, and that a
congressional committee was obliged to decide whether to accept such claims of privilege apart
from whether a court would uphold the claim.”216 The full Committee, bowing to the concerns
and preferences of some members that it was not necessary under the circumstances of the matter
to rely equally on the broader second ground, recommended that “the U.S. attorney, in presenting
this matter, proceed primarily and strongly with emphasis on the primary ground relied on by the
Subcommittee that this claim of privilege would not have been upheld even in a court.”217 Thus it
is clear that the recommendation to the full House, which was adopted by an overwhelming vote
of 352-34,218 encompassed full recognition of the prerogative to deny assertions of attorney-client
privilege.
Senate practice and precedent are in strong and complementary accord with that of the House.
Two denials by Senate committees of claims of privilege serve to illustrate. In March of 1989, the
Subcommittee on Nuclear Regulation of the Senate Committee on Environment and Public
Works commenced investigating claims that settlement agreements were being entered between
employers and employees of nuclear facilities which placed restrictions on an employee’s ability
to testify in Nuclear Regulatory Commission proceedings relating to licensing and safety matters
with respect to such facilities. The Subcommittee was seeking to determine the nature and extent
of such restrictive agreements at a particular facility and the prevalence and potential impact of
such agreements in the industry generally. Subpoenas were issued and several were not complied
with on the grounds of the attorney-client and work product privileges. On July 19, 1989, the
Subcommittee issued a formal opinion rejecting the claim of privilege. The opinion asserted that
[W]e start with the jurisdictional proposition that this Subcommittee possesses the authority
to determine the validity of any attorney-client privilege that is asserted before the
Subcommittee. A committee’s or subcommittee’s authority to receive or compel testimony
derives from the constitutional authority of the Congress to conduct investigation and take
testimony as necessary to carry out its legislative powers. As an independent branch of
government with such constitutional authority, the Congress must necessarily have the
independent authority to determine the validity of non-constitutional evidentiary privileges
that are asserted before the Congress.219
The opinion continued by observing that while it recognized its “independent authority to rule on
an assertion of the attorney-client privilege... the Subcommittee will nonetheless look to judicial
and other rulings in this area to guide the Subcommittee’s determination.”220 Finding that the
holder of the privilege (the employee in question) “has made extensive disclosures concerning
215
132 Cong. Rec. 3028-3062 (1986); Bernstein Contempt Report, supra footnote 211, at 1.
Bernstein Contempt Report, at 14.
217
Id. at 14-15.
218
132 Cong. Rec. at 3061-62.
219
“Subcommittee on Nuclear Regulation [Senate Committee on Environment and Public Works] Ruling on Claims of
Attorney-Client Privilege,” to Ms. Billie P. Garde from Chairman John Breaux and Senator Alan K. Simpson, dated
July 19, 1989, at pp. 12-13 (Copy on file in the American Law Division, CRS).
220
Id. at 14.
216
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communications between himself and his attorneys [the claimants of the privilege] regarding the
agreement, and has called the competence of his former attorneys into question,” the
Subcommittee ruled that the privilege would have been deemed waived by a court, denied the
claim, and ordered the attorneys to testify.221
More recently, the Senate Permanent Subcommittee on Investigations of the Governmental
Affairs Committee denied a claim of attorney-client privilege under unusual circumstances. The
Subcommittee was investigating allegations that under the Medicare Secondary Payer (MSP)
program insurance companies, including Provident Life and Accident Company (Provident), had
failed to comply with their obligations to pay certain claims as the primary payer with Medicare
being the secondary payer, which resulted in sizeable overpayments by Medicare. The
Subcommittee subpoenaed many documents, including one from Provident which it refused to
give upon the ground that it was cloaked by the attorney-client privilege. Provident also argued
that the Subcommittee was bound by a ruling to that effect made by a Federal district court in a
pending civil suit. In order to prevent the author of the document from testifying before the
Subcommittee, Provident sought an injunction from the district court to prevent her testimony.
The court denied the injunction, ruling that Provident had failed to allege a case or controversy,
that the issue was not ripe for judicial determination, and that Provident had failed to fulfill the
equitable requirements for preliminary injunctive relief. The court also noted that its earlier ruling
on the attorney-client privilege “which is not of constitutional dimensions, is certainly not binding
on the Congress of the United States.”222 Subsequently, the Chairman heard testimony and
arguments on the claim in executive session. He noted that “[t]he burden, then, as I see it, is on
you as the party claiming the privilege to demonstrate that the privilege exists and to tell us why.”
On June 15, 1990 the Chairman ruled that Provident had waived any privilege that might have
attached to the document in question when it provided the document to the Department of
Justice.223
This historic congressional practice appears reflective of the widely divergent nature of the
judicial and legislative forums. The attorney-client privilege is a product of a judicially developed
public policy designed to foster an effective and fair adversary system. The courts view the
privilege as a means to foster client confidence and encourage full disclosure to an attorney. It is
argued that free communication facilitates justice by promoting proper case preparation.224 It is
also suggested that frivolous litigation is discouraged when, based on full factual disclosure, an
attorney finds that his client’s case is not a strong one.225 Of critical importance here is the
understanding that the role of attorney-client privilege is designed for, and properly confined to,
the adversary process: the adjudicatory resolution of conflicting claims of individual obligations
in a civil or criminal proceeding. But the necessity to protect the individual interest in the
adversary process is less compelling in an investigative setting where a legislative committee is
not empowered to adjudicate the liberty or property interests of a witness. This is the import of
those cases which have recognized that “only infrequently have witnesses ... [in congressional
221
Id. at 15, 18-19.
In the Matter of Provident Life & Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (per Edgar, J.).
223
See, Hearings before the Senate Permanent Subcomm. on Investigations, Committee on Governmental Affairs,
“Health Care Fraud/Medicare Secondary Payee Program,” 101st Cong., 2d Sess., July 11 and 12, 1990, at pp. 3-10.
224
See, e.g., Upjohn v. United States, 449 U.S., 382, 389 (1981).
225
Id.
222
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hearings] been afforded procedural rights normally associated with an adjudicative
proceeding.”226
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Indeed, the suggestion that the investigatory authority of the legislative branch of government is
subject to non-constitutional, common law rules developed by the judicial branch to govern its
proceedings is arguably contrary to the concept of separation of powers. It would, in effect,
permit the judiciary to determine congressional procedures and is therefore difficult to reconcile
with the constitutional authority granted each House of Congress to determine its own rules.227
Moreover, importation of the privileges and procedures of the judicial forum is likely to have a
paralyzing effect on the investigatory process of the legislature. Such judicialization is antithetical
to the consensus, interest oriented approach to policy development of the legislative process.
Finally, an assertion that the denial of the privilege in the congressional setting would destroy the
privilege elsewhere appears neither supported by experience nor reason. Parliament’s rule has not
impaired the practice of law in England nor has its limited use here inflicted any apparent damage
on the practice of the profession. Congressional investigations in the face of claims of executive
privilege or the revelations of trade secrets have not diminished the general utility of these
privileges nor undermined the reasons they continue to be recognized by the courts. Moreover,
the assertion implies that current law is an impregnable barrier to disclosure of confidential
communications when in fact the privilege is, of course, an exception to the general rule of
disclosure and, is riddled with qualifications and exceptions, and has been subject as well as to
the significant current development of the waiver doctrine. Thus, there can be no absolute
certainty that communications with an attorney will not be revealed.228
Moreover, with respect to the work-product privilege, it has always been recognized that it is a
qualified privilege which may be overcome by a sufficient showing of need. The Supreme Court
indicated, in the very case in which it created the doctrine, that “[w]e do not mean to say that all [
] materials obtained or prepared ... with an eye toward litigation are necessarily free from
discovery in all cases.”229 Thus, the courts have repeatedly held that the work product privilege is
not absolute, but rather is only a qualified protection against disclosure.230 As one court has
indicated, “its immunity retreats as necessity and good cause is shown for its production in a
balance of competing interests.”231
In fact, because the work product doctrine is so readily overcome when production of material is
important to the discovery of needed information, some courts have refused to call the doctrine a
226
Hannah v. Larche, 363 U.S. 420, 425 (1960); see also, United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert.
denied, 403 U.S. 932 (1971) (rejecting contention that the constitutional right to cross-examine witnesses applied to a
congressional investigation).
227
U.S. Const., Art. I, Sec. 5, cl. 2.
228
For example, see discussion of difficulties in corporate confidentiality and the development of the doctrine of
waiver, in CRS Memoranda, supra footnote 212 at 26-32, 102-107. See also Garner v. Wolfinbarger, 430 F.2d 1093
(5th Cir. 1970), cert. denied, 401 U.S. 974 (1971) (In shareholder derivative suits “the availability of the privilege
[should] be subject to the right of stockholders to show cause why it should not be invoked in the particular instance.”).
229
Hickman v. Taylor, 329 U.S. 495, 511 (1974).
230
See, e.g., Central National Insurance Co. v. Medical Protective Co. of Fort Wayne, Indiana, 107 F.R.D. 393, 395
(E.D. Mo. 1985); Chepanno v. Champion International Corp., 104 F.R.D. 395, 396 (D. Or. 1984); American Standard,
Inc. v. Bendix Corp. 71 F.R.D. 443, 446 (W.D. Mo. 1976).
231
Kirkland v. Morton Salt Co., 46 F.R.D. 28, 30 (N.D. Ga. 1968).
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privilege. For instance, in City of Philadelphia v. Westinghouse Corp.,232 the court stated that the
work product principle “is not a privilege at all; it is merely a requirement that very good cause be
shown if the disclosure is made in the course of a lawyer’s preparation of a case.”
(b) Requirements for Assertion of the Attorney-Client Privilege
In making the assessment whether to accept a claim of attorney-client privilege, committees often
have reference to whether a court would accept the claim had it been in that forum. This section
and those that follow detail the judicial requirements for a proper assertion of the claim, how the
privilege may be waived, and circumstances under which it may not be claimed at all.
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Although the attorney-client privilege today is seen to rest on the theory that encouraging clients
to make the fullest disclosure to their attorneys enables them to act more effectively, justly, and
expeditiously, and that these benefits outweigh the risks posed by not allowing full disclosure in
court,233 even its leading proponent, Dean Wigmore, concedes the unverifiability of the
assumption and advises that its use be strictly limited.
Its benefits are all indirect and speculative, its obstruction is plain and concrete...It is
worth preserving for the sake of a general policy, but it is nonetheless an obstacle to the
investigation of truth. It ought to be strictly confined within the narrowest possible limits
consistent with the logic of its principle.234
The courts have heeded Wigmore’s admonition.235
One important manifestation of the judicial policy of strict confinement is the universal
recognition that the burden of establishing the existence of the privilege rests with the party
asserting the privilege.236 Moreover, blanket assertions of the privilege have been deemed
“unacceptable”237, and are “strongly disfavored.”238 The proponent must conclusively prove each
element of the privilege. Thus a claimant must reveal specific facts which would establish that the
232
210 F.Supp. 483, 485 (E.D. Pa. 1962), cert. denied sub. nom. General Electric Co. v. Kirkpatrick, 372 U.S. 943
(1963).
233
Fisher v. United States, 425 U.S. 391 (1976).
234
8 Wigmore, Evidence, §2291 at 554 (McNaughton rev. 1961).
235
In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 451 (6th Cir. 1983). See also, In re Shargel, 742 F.2d 61,
62 (2d Cir. 1984); U.S. v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983); U.S. v. Goldfarb, 328 F.2d 280 (6th Cir.) cert
denied 370 U.S. 976 (1964).
236
See, e.g., In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 450-51 (6th Cir. 1983); U.S. V. Lawless, 709
F.2d 485, 487 (7th Cir. 1983); In re Grand Jury Witness (Salas), 695 F.2d 359, 362 (9th Cir. 1982); In fe Walsh, 623
F.2d 489, 493 (7th Cir.), cert denied, 449 U.S. 994, 101 S. Ct. 531, 66 L.Ed. 2d 291 (1980); Liew v. Breen 640 F. 2d
1046, 1049 (9th Cir. 1981); United States v. Stern 511 F.2d 1364, 1367 (2nd Cir. 1975); United States v. Landof 591
F.2d 36, 38 (9th Cir. 1978); In re Grand Jury Empaneled February 14, 1978 (Markowitz), 603 F.2d 469, 474 (3d Cir.
1979); United States v. Hodgson, 492 F.2d 1175 (10th Cir. 1974); United States v. Tratner, 511 F.2d 248, 251 (7th Cir.
1975); United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978); United States v. Ponder, 475 F.2d 37, 39 (5th Cir.
1973); United States v. Bartlett, 449 F.2d 700, 703 (8th Cir. 1971), cert. denied, 405 U.S. 932 (1972); In re Application
of John Doe, Esq., 603 F.Supp. 1164, 1166 (E.D.N.Y. 1985); In re Grand Jury Subpoena December 18, 1981, 561
F.Supp. 1247, 1251 (E.D.N.Y. 1981).
237
SEC v. Gulf and Western Industries, Inc., 518 F.Supp. 675, 682 (D.D.C. 1981).
238
In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 454 (6th Cir. 1983); U.S. v. Lawless, 709 F.2d 485, 487
(7th Cir. 1983); In re Grand Jury Witness (Salas), 695 F.2d 359, 382 (9th Cir. 1982); U.S. v. Davis, 636 F.2d 1028, 1044
n. 20 (5th Cir. 1981); U.S. v. Cromer, 483 F.2d 99, 102 (9th Cir. 1973); Colton v. U.S., 306 F.2d 633, 639 (2d Cir. 1962).
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relationship was one of attorney and client. Conclusory assertions are insufficient. And it must
demonstrate that the privilege has not expressly or impliedly waived.
Finally, it should be noted that the assertion that the disclosure of privileged material to a
congressional committee would waive the privilege in any future litigation was specifically
considered, and rejected, by the D.C. Circuit Court of Appeals in Murphy v. Department of the
Army.239 Indeed, there appears to be no case holding otherwise and several which have followed
Murphy.240
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(c) Waiver of the Attorney-Client Privilege
Because of the privilege’s inhibitory effect on the truth-finding process and its impairment of the
public’s “right to every man’s evidence,”241 modern liberal discovery rules have taken a narrow
view of the privilege.242 This tendency toward limiting the privilege is most clearly manifested in
the strict standard of waiver.243 Thus the voluntary disclosure of privileged information, whether
by the client or the attorney with the client’s consent, waives the privilege244 because it destroys
the confidentiality of a communication and thereby undermines the justification for preventing
compelled disclosures.245 Waiver need not be express,246 nor is it necessary that the client waive
the privilege knowingly.247 Waiver may be evidenced by word or act,248 but may be inferred from
a failure to speak or act when words or action would be necessary to preserve confidentiality.249
Courts regularly hold that the privilege is waived as to the material disclosed when the client or
his attorney deliberately discloses the contents of a privileged communication, such as when
answering interrogatories, testifying in court or at examination before trial, submitting affidavits
or pleadings to the Court, or in transacting business with a third party.250
Furthermore, the courts have held that less than full disclosure will often cause a waiver, not only
as to disclosed communications, but also as to communications relating to the same subject
matter that were not themselves disclosed.251 By partial disclosure, the client may be voluntarily
waiving the privilege as to that which he considers favorable to his position, but attempting to
239
613 F.2d 1151, 1155 (D.C. Cir. 1979).
See, In re Sunrise Securities Litigation, 109 Bankr. 658, 1990 U.S. Dist. Lexis 168, U.S.D.C. E.D.Pa., Jan. 9, 1990;
In re Consolidated Litigation Concerning International Harvester’s Disposition of Wisconsin Steel, 9 E.B.C. 1929,
1987 U.S. Dist. Lexis 10912, U.S.D.C. N.D. Ill.
241
8 J. Wigmore §2192, at 70.
242
Magida ex rel. Vilcon Detinning Co. v. Continental Can Co., 12 F.R.D. 74, 77 (S.D.N.Y. 1951).
243
See, e.g., Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C. Cir. 1981); United States v. AT & T Co., 642
F.2d 1285, 1299 (D.C. Cir. 1980).
244
8 J. Wigmore, §2327, at 632-39.
245
United States v. AT & T Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980); In re Horowitz, 482 F.2d 72, 82 (2d Cir.) cert.
denied, 414 U.S. 867 (1973).
246
Blackburn v. Crawford, 70 U.S. (3 Wall.) 175, 194 (1965).
247
In re Grand Jury Investigation of Ocean Transp., 604 F.2d 672 (D.C. Cir.), cert. denied, 444 U.S. 915 (1979).
248
Magida ex rel. Vulcan Determining Co. v. Continental Can Co., 12 F.R.D. 74, 77 (S.D.N.Y. 1951).
249
Id.
250
8 J. Wigmore, §2327.
251
Teachers Ins. & Annuity Assn. of America v. Shamrock Broadcasting Co., 521 F.Supp. 638, 641 (S.D.N.Y. 1981);
R.J. Hereley & Sons Co. v. Stotler & Co., 87 F.R.D. 358, 359 (N.D. Ill. 1980); Hercules, Inc. v. Exxon Corp., 434
F.Supp. 136, 156 (D. Del. 1977); Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1161-62 (D.S.C. 1974).
240
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invoke the privilege as to the remaining material, which he considers unfavorable.252 Selective
assertion or disclosure usually involves a material issue in the proceeding, and there is a great
likelihood that the information disclosed is false or intended to mislead the other party.253 Thus,
pleading an “advice of counsel” defense, which puts the attorneys advice in issue,254 has been
held to waive the privilege as to all communications relating to that advice. The rationale for the
subject matter waiver rule is one of fairness. Professor Wigmore has stated the principle as
follows: “[W]hen [the client’s] conduct touches a certain point of disclosure, fairness requires that
his privilege shall cease whether he intended that result or not. He cannot be allowed, after
disclosing as much as he pleases, to withhold the remainder. It is therefore designed to prevent the
client from using the attorney-client privilege offensively, as an additional weapon.”
The courts also have severely limited the attorney-client privilege through the development of an
implied waiver doctrine. Thus where a client shares his attorney-client communications with a
third party, the communications between attorney and client are no longer strictly “confidential”,
and the client has waived his privilege over them.255 Even if the client attempts to keep
communications confidential by having the third party agree not to disclose the communications
to anyone else the courts will still consider “confidentiality” between attorney and client breached
and the communication no longer privileged.256 Courts have applied this concept of
confidentiality narrowly to prevent corporations from sharing an attorney-client communication
with an ally and then shielding the communication from a grand jury or adversary.257 As a general
rule, courts also apply the waiver rule to disclosures made to government agencies.258 Thus a
person or corporation who voluntarily discloses confidential attorney-client communications to a
government agency loses the right to later assert privilege for those communications.
While some lower courts have adopted a “limited waiver” rule, which allows corporations to
share their confidential attorney-client communications with agencies such as the SEC without
having to waive the privileged status of these documents against other parties,259 it is a distinctly
252
Perrigrion v. Bergen Brunswick Corp., 77 F.R.D. 455, 461 (N.D. Calif. 1978); Hercules, Inc. v. Exxon Corp., 434 F.
Supp. 136, 156 (D. Eel. 1977); Duplan v. Deering Milliken, 397 F.Supp. 1146, 1161-62 (D.S.C. 1974); IT &T v. United
Tel. Co., 60 F.R.D. 177, 188-86 (M.D. Gla. 1973).
253
United States v. Aronoff, 466 F.Supp. 855, 862 (S.D.N.Y. 1979).
254
E.g., United States v. Woodall, 438 F.2d 1317, 1323-24 (5th Cir. 1970), cert. denied, 403 U.S. 933 (1971);
Transworld Airlines v. Hughes, 332 F.2d 602, 615 (2d Cir. 1964), cert. dismissed, 380 U.S. 248 (1965); Barr Marine
Prods. v. Borg-Warner Corp., 84 F.R.D. 631, 635 (E.D. Pa. 1979); Hangards, Inc. v. Johnson & Johnson, 413 F.Supp.
926, 929 (N.D. Calif. 1976).
255
See, e.g., United States v. El Paso Co., 682 F.2d 530, 539, 540 (5th Cir. 1982) (documents created with knowledge
that independent accountants may need access to them to complete audit waives privilege.); Permian Corp. v. United
states, 665 F.2d 1214, 1219 (D.C. Cir. 1981)(disclosure of documents to SEC waives privilege); United States v.
Miller, 660 F.2d 563, 567-68 (5th Cir. 1981)(previous delivery of accounting books to IRS vitiates privilege.); United
States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 464 (E.D. Mich. 1954)(privilege waived on disclosure to Justice
Department).
256
8 J. Wigmore, Evidence, §2367 at 636 (McNaughton rev. ed. 1961).
257
Permian Corp. v. U.S., 665 F.2d 1214, 1221-22 (D.C. Cir. 1981).
258
See, e.g., United States v. Miller, 660 F.2d 563, 567-68 (5th Cir. 1981)(disclosure to IRS); In re Grand Jury
Investigation of Ocean Transp., 604 F.2d 672 (D.C. Cir. 1979), cert. denied, 444 U.S. 915 (1979)(to Antitrust Div. of
Dept. of Justice); Donovan v. Fitzsimmons, 90 F.R.D. 583, 585 (N.D. Ill. 1981)(to Dept. of Labor); Litton Systems, Inc.
v. American Tel. & Tel. Co., 27 Fed. R. Serv. 2d (Callaghan) 819 (S.D.N.Y. 1979)(to district attorney); In re Penn.
Cent. Commercial Paper Litig., 61 F.R.D. 453, 462-64 (S.D.N.Y. 1973)(to SEC); D’Ippolito v. Cities Serv. Co., 39
F.R.D. 610 (S.D.N.Y. 1965)(to Antitrust Div. of Dept. of Justice).
259
See, e.g., Diversified Industries v. Meredith, 572 F.2d 596, 611 (8th Cir. 1977); Byrnes v. IDS Realty Trust Co., 85
F.R.D. 679, 687-89 (S.D.N.Y. 1980); In re Grand Jury Subpoena, 478 F.Supp. 368, 372-73 (E.D. Wisc. 1979).
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minority view. The prevailing view, enunciated in decision
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