Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry

Prepared for Members and Committees of Congress

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.

I. INTRODUCTION.......................................................................................................................1
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
PROCESS................................................................................................................................... 41
GENERAL COUNSEL..............................................................................................................45
A. Senate Legal Counsel.........................................................................................................45
B. House General Counsel......................................................................................................47
Author Contact Information..........................................................................................................50

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 1
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.

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).

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 2
be implicit in the general vesting of legislative power in Congress. 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 3
Constitution.” 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 4
laws as well as proposed or possibly needed statues.” 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, 5
inefficiency, or waste.” “[T]he first Congresses”, it continued, held “inquiries dealing with 6
suspected corruption or mismanagement of government officials” and subsequently, in a series of
decisions, “[t]he Court recognized the danger to effective and honest conduct of the Government 7
if the legislative power to probe corruption in the Executive Branch were unduly hampered.”
Accordingly, the Court stated, it recognizes “the power of the Congress to inquire into and 8
publicize corruption, maladministration, or inefficiencies in the agencies of Government.”
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 9
function” 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 10
task of the Congress.” Moreover, an investigating committee has only the power to inquire into 11
matters within the scope of the authority delegated to it by its parent body. But once having
established its jurisdiction and authority, and the pertinence of the matter under inquiry to its area 12
of authority, a committee’s investigative purview is substantial and wide-ranging.
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 Servicemens 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).

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 13
McGrain v. Daugherty, 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 14
prosecution of proceedings to punish crimes ....” 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 15
calculated to elicit.” 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 16
of proceedings.”
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 18
propounded by your committee.” 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 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 20
use in such suits.” 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).
14 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.

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.

The power of inquiry, with the accompanying process to enforce it, has been deemed “an 21
essential and appropriate auxiliary to the legislative function.” A properly authorized subpoena
issued by a committee or subcommittee has the some force or effect as a subpoena issued by the 22
parent House itself. To validly issue a subpoena, individual committees or subcommittees must 2324
be delegated this authority. Both Senate and House 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 25
authority by Senate or House resolution. 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 2627
within their subject matter jurisdiction as defined by Senate and House 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 28
States. Securing compliance of United States nationals and aliens residing in foreign countries 29
presents more complex problems.

21 McGrain v. Daugherty, supra, 273 U.S. at 174-75.
22 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 inRules 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).

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 30
congressional subpoena, holding that the Speech or Debate Clause of the Constitution provides 31
“an absolute bar to judicial interference” with such compulsory process. 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.
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 32
be pertinent to the broad subject matter areas which have been authorized by the Congress.
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 33
As to the requirement of “valid legislative purpose,” the Supreme Court has made it clear that 34
Congress does not have to state explicitly what it intends to do as a result of an investigation.
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 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 36
under investigation. 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 37
constitutional rights from infringement by Congress, including its committees and members.

30 U.S. Const., Art. I, sec. 6, cl. 1.
31 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).

But “[w]here constitutional rights are not violated, there is no warrant to interfere with the 38
internal procedures of Congress.”
Committees normally rely on informal staff interviews to gather information preparatory to
investigatory hearings. However, with more frequency in recent years, congressional committees 39
have utilized staff conducted depositions as a tool in exercising the investigatory power. 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 40
various statutes that proscribe false material statements.
At present neither House has rules that expressly authorize staff depositions. On a number of 41
occasions such specific authority has been granted pursuant to Senate and House resolutions.
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 42
accompanied by counsel, and the manner in which objections to questions are to be resolved.

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. (Iran-
Contra); H. Res. 320, 100th Cong. (impeachment proceedings of Judge Alcee Hastings); S. Res. 495, 96th Cong. (Billy
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).

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 43
available to a witness in a congressional investigation. 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 44
constitutional equivalent of his Fifth Amendment privilege. Immunity grants may be required in
the course of an investigation because “many offenses are of such a character that the only 45
persons capable of giving useful testimony are those implicated in the crime.” 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 46
sought by the Congress. 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 47
full committee.
At least ten days prior to applying to the court for the order, the Attorney General48 must be 49
notified of the Congress’ intent to seek the order, and issuance of the order will be delayed by 50
the court for as much as twenty additional days at the request of the Attorney General. 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).
44 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).

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 51
committee’s application for immunity. 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 52
to issue the order or impose conditions on the grant of immunity. 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 53
information that is sought to the committee’s inquiry.
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 54
to comply with the order.” The immunity that is granted is “use” immunity, not “transactional” 55
immunity. 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 56
based on the witness’ previous testimony or evidence derived therefrom.
Recent appellate court decisions reversing the convictions of key Iran-Contra figures Lt. Colonel 5758
Oliver North and Rear Admiral John Poindexter 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).
52 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.
58 951 F.2d 369 (D.C. Cir. 1991).

further determination whether the prosecution had directly or indirectly used immunized
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 59
used against the defendant. The court held that “Kastigar is instead violated whenever the
prosecution puts on a witness whose testimony is shaped, directly or indirectly, by compelled 60
testimony, regardless of how or by whom he was exposed to that compelled testimony.” 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 61
standard. 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 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 line-
by-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 Norths immunized testimony, or that the allegedly tainted testimony contains no 63
evidence not “canned” by the prosecution before such exposure occurred.
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 64
Amendment. 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 65
purposes of refreshment. Upon remand in both cases, the Independent Counsel moved to

59 United States v. North, 920 F.2d at 942.
60 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 intothe 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.

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 66
judicial decision or a legal decision but a political decision of the highest importance.” 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 67
process. 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.

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, 68
caprice or even conspiracy may mediate against it.”
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 69
contempt procedure. The three proceedings may be briefly described.

66 Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 Hous. L. Rev. 1, 9 (1988).
67 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.

(1) Inherent Contempt
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 70
the case of inherent contempt proceedings.
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 71
sparse case law that is relevant to the question provides conflicting guidance.
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).
71 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 thst
Governmental Relations, House Comm. on the Judiciary, 98 Cong. 1 Sess. 21-35 (1983) (Statement and Testimony
of Stanley Brand).

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.
(3) Civil Contempt
As an alternative to both the inherent contempt power of each House and criminal contempt, 72
Congress enacted a civil contempt procedure which is applicable only to the Senate. Upon 73
application of the Senate, 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.
(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 See 2 U.S.C. 288d and 28 U.S.C. 1364.
73 Usually brought by the Senate Legal Counsel. 2 U.S.C 288 d(a).

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
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 7576
committees and one member for Senate committees. 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.
(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 77
congressional committees.
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 78
by the defendant himself in such proceedings.

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

74 Christoffel v. United States, 378 U.S. 89 (1949).
75 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.
78 United States v. Poindexter, supra, 951 F.2d at 377-86.

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 79
process and negotiations, and the few that reach a judicial forum find the courts highly reluctant 8081
to rule on the merits. However, in United States v. Nixon, involving a judicial subpoena issued 82
to the President at the request of the Watergate Special Prosecutor, the Supreme Court found a
constitutional basis for the doctrine of executive privilege in “the supremacy of each branch 83
within its own assigned area of constitutional duties” and in the separation of powers, 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, 84
precluding judicial review whenever it is asserted.
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 85
functions of each branch,” and held that the judicial need for the tapes outweighed the 86
President’s “generalized interest in confidentiality ...” 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 87
generalized interest in confidentiality ... and congressional demands for information”.

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 whenconstitutional 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.

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 88
Activities v. Nixon, 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 89
for tape recordings. 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 90
functions.” 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 91
the Judiciary Committee already had copies of the tapes subpoenaed by the Senate Committee.
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 92
directive, issued by President Reagan in November 1982, 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, 93
Administrator of the Environmental Protection Agency, in 1982. 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).
89 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. th
See,Contempt of Congress, H. Rept. No. 97-968, 97 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, 71-
72 (1994).
93 H. Res. 632, 97th Cong., 128 Cong. Rec. 31746-76 (1982).

contempt by full committees.94 Five other cabinet secretaries have been cited for contempt by 95
Upon occasion Congress has found it necessary and appropriate to limit its access to information 96
it would normally be able to obtain by exercise of its constitutional oversight prerogatives. 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 97
such provisions. Release to a congressional requestor is not deemed to be disclosure to the 98
public generally. 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 99
from slowing or otherwise interfering with the legitimate investigating functions of Congress”.
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 100
of affected parties. 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 101
purpose. Finally, the legal obligation to surrender requested documents has been held to arise 102
from the official request
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 committeesspecifically 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.

attempted to withhold documents on the basis of the deliberative process exemption incorporated 103
by Exemption 5 of the Freedom of Information Act (FOIA). 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 104
authority to withhold information from Congress.” 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 105
lawmakers”. A similar provision in the Privacy Act also prevents its use as a withholding 106
vehicle against Congress.
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 107
any other legislative branch support agency or its employees, 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 108
to be “authorized by law”. The Supreme Court in Chrysler v. Brown 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 109
implied” under § 190d. A second source is the rules of each House authorizing committee

103 5 U.S.C. 552(b)(5).
104 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).

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 110
Flats, 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 111
for the broad congressional power of inquiry. 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 112
with the President’s constitutional duty to faithfully execute the laws.
As has been recounted previously, the Supreme Court has repeatedly reaffirmed the breadth of 113
Congress’ right to investigate the government’s conduct of criminal and civil litigation. 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 st
Investigations, House Committee on Energy and Commerce, 103d Cong., 1 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 rd
and Investigations, Comm. on Energy and Commerce, 103 Congress., 2d Session (Dec. 1994) (Comm. Print No. 103-
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.

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 114
distinct proceeding . . . or when crime or wrongdoing is exposed.” 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 115
should be enacted to prevent further ills.
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 116
a continuance or a change of venue, to deal with the publicity problem. 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 117
substantially removed.
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).
115 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 th
Congress, H.R. Rpt. No. 97-968, 97 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 Delaneys 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

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 118
pending indictment.
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 119
prejudiced defendants. 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 120
proceeding. 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 121
require judicial condemnation.
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 122
the consequences.
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.
119 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. th
United States, 298 F.2d 622 (9Cir. 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)(post-
indictment Senate hearing but court held that lapse of time and efforts of committee to avoid questions relating to rd
indictment diminished possibility of prejudice); United States v. Mesarosh, 223 F.2d 449 (3 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.

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 124
functioning of the Executive Branch. 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,” 125
citing McGrain v. Daugherty.)
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 126
States ex rel Kelly v. The Boeing Co., which upheld, against a broad based separation of
powers attack, the constitutionality of the qui tam provisions of the False Claims Act vesting 127
enforcement functions against agencies by private parties.
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 128
the constitutional authority of Congress’.”

123 487 U.S. 654 (1988).
124 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 thatit
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 thatthere 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.

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 129
more focused demonstration of need for information by a coordinate branch of government.
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 130
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 131
grand jury, except as otherwise provided in these rules.” The prohibition does not ordinarily 132133
extend to witnesses. Violations are punishable as contempt of court.
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 134
address disclosures to Congress. As a general rule, however, neither Congress nor the courts
appear to have fully embraced the proposition.

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

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 135
had been, or were presently being, examined by a grand jury.” Congressional committees have
gained access to documents under this theory, the courts ruling that the committee’s interest was 136
in the documents themselves and not in the events that transpired before the grand jury.
However, with respect to matters that “reflect exactly what transpired in the grand jury,” such as 137
transcripts of witness testimony, Rule 6(e) has been held to be a bar to congressional access.
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 138
Department of Justice identification.

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 141

possession of the Department of Justice as custodian for the grand jury.
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 142
activities of the grand jury.

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 rd
Investigation), 630 F.2d 996 (3 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).

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 143
and limitations of the committee’s power. 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 144
practice and interpretations. Jurisdictional authority for a “special” investigation may be given 145146
to a standing committee, a joint committee of both houses, or a special subcommittee of a 147148
standing committee, among other vehicles. In view of the specificity with which Senate and 149
House 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.
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 151
perjury conviction. Once properly promulgated, such rules are judicially cognizable and must 152153
be “strictly observed. The House and many individual Senate committees require that all
witnesses by given a copy of the committee’s rule.

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
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).

Both the House and Senate have adopted rules permitting a reduced quorum for taking testimony 154
and receiving evidence. House hearings may be conducted if at least two members are present; 155
the Senate permits hearings with one only member in attendance. 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 156
session. 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 157
issuance to its chairman.
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 159
person”. Such testimony taken in closed session is normally releasable only by a majority vote 160
of the committee. Similarly, confidential material received in a closed session requires a 161
majority vote for release. A release of confidential materials in accordance with applicable rules 162
effectively minimizes objections by a submitting witness. Moreover, the Speech or Debate 163
clause will protect a member who discloses such information on the floor from legal redress, 164
although not from the possibility of internal discipline.

154 House Rule XI(2)(h)(1).
155 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. th
Id.; United States v. Swindall, 971 F. 2d 1531, 1534 (11 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 shieldingwords 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.
Servicemens 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).

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 165
allowing each committee to adopt its own policy.
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 166
under oath are subject to criminal sanctions.
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 169
rules specifically prohibiting counsel from “coaching” witness during their testimony. 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 170
rules. There is no right of cross-examination of adverse witnesses during an investigative 171

165 Senate Rule XXVI(3)(c).
166 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).

(1) Constitutional Privileges
It is well established that the protections of the Bill of Rights extend to witnesses before a 172
legislative inquiry. 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.
(a) Fifth Amendment
The Fifth Amendment provides that “no person ... shall be compelled in any criminal case to be a 173
witness against himself.” The privilege is personal in nature, and may not be invoked on behalf 174175176177
of a corporation, small partnership, labor union, or other artificial entity. The privilege
protects a witness against being compelled to testify but not against a subpoena for existing 178
documentary evidence. However, where compliance with a subpoena duces tecum would
constitute an implicit testimonial authentication of the documents produced, the privilege may 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 180
expected to understand as an attempt to invoke the privilege”. 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 181
in fact invoking the privilege. 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 182
him. Nor may a witness refuse to take the oath on Fifth Amendment grounds.

172 2 U.S.C. 191.
173 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 Senators
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).

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 183
“link in the chain of evidence” that would tend to incriminate him.
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 184
have a tendency to incriminate.
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 185
prosecution, wider latitude is permitted the witness in refusing to answer other questions.
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 186
statement of a witness before a committee as a waiver.
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 187
to the witness at the time the questions are put to him.” “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 188
time and the manner in which the propounded questions are pertinent thereto.” 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
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).

answer be “willful”, a witness should be informed of the committee’s ruling on any objections he 189
raises or privileges which he asserts.
(b) First Amendment
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 190
restricts Congress in conducting investigations. In the leading case involving the application of 191
First Amendment rights in a congressional investigation, Barenblatt v. United States, 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 192
right to refuse to respond to congressional demands for information.
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 193
interest of the Congress in demanding disclosure from an unwilling witness.” 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 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 195
conviction. 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).
190 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 thatthe infringement of protected first
amendment rights must be no broader than necessary to achieve a permissible governmental purpose, and that “a
States 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 Reporters Privilege Before a Congressional Investigation, 83 Geo. L.J. 129 (1994) (arguing that bases for
reporters 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 plaintiffs 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

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 197
(c) Fourth Amendment
Dicta in opinions of the Supreme Court indicate that the Fourth Amendment’s prohibition against 198
unreasonable searches and seizures is applicable to congressional committees. It appears that 199
there must be probable cause for the issuance of a congressional subpoena. The Fourth
Amendment protects a congressional witness against a subpoena which is unreasonably broad or 200
burdensome. 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 [subcommittees] situation would permit .... ‘The description

F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemens Fund, 421 U.S. 491 (1975), the
Supreme Court held that the Constitutions 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 thatan 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
merefishing 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 leadup 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 Senators personal diaries, holding that committees investigation was not limited in its investigatory
scope to its original demandseven though the diaries might prove compromising in respects the committee has not yet

contained in the subpoena was sufficient to enable [petitioner] to know what particular 201
documents were required and to select them accordingly.
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:
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 202
of any pertinent representations made by [the witness].
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 203
them . . .”
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 204
exclusionary rule. 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 205
unlawful seizure by another investigating body (such as a state prosecutor).

201 McPhaul v. United States, 364 U.S. at 382.
202 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 subcommittees 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 merederivative 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

(2) The Common Law Attorney-Client and Work Product Privileges
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 206
possible resulting injury.” 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 207
the application, administration, and execution of laws that fall within its jurisdiction, 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.

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 companys 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 thatuse 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 Servicemens 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.

(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:
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 209
excuse in a court of law.
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 210
proceeding despite a claim of attorney-client privilege. 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 211
privilege. More recently, a Subcommittee of the House Energy and Commerce Committee has 212
on a number of occasions rejected claims of attorney-client privilege. 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 213
investigations. 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 214
detriment and relevant judicial precedents.

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 Mays Treatise at 746-747 (20th ed. 1983). Mays 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, th
before Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95 st
Cong., 1 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.

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 215
primarily on the assertion of attorney-client privilege. 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 216
from whether a court would uphold the claim.” 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 217
Subcommittee that this claim of privilege would not have been upheld even in a court.” Thus it
is clear that the recommendation to the full House, which was adopted by an overwhelming vote 218
of 352-34, encompassed full recognition of the prerogative to deny assertions of attorney-client
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 committees or subcommittees 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 219
that are asserted before the Congress.
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 220
and other rulings in this area to guide the Subcommittee’s determination.” 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.
216 Bernstein Contempt Report, at 14.
217 Id. at 14-15.
218 132 Cong. Rec. at 3061-62.
219Subcommittee 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.

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 221
claim, and ordered the attorneys to testify.
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 222
on the Congress of the United States.” 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 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 224
argued that free communication facilitates justice by promoting proper case preparation. It is
also suggested that frivolous litigation is discouraged when, based on full factual disclosure, an 225
attorney finds that his client’s case is not a strong one. 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.
222 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.

hearings] been afforded procedural rights normally associated with an adjudicative 226
procee ding.”
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 227
with the constitutional authority granted each House of Congress to determine its own rules.
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 228
certainty that communications with an attorney will not be revealed.
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 229
discovery in all cases.” Thus, the courts have repeatedly held that the work product privilege is 230
not absolute, but rather is only a qualified protection against disclosure. As one court has
indicated, “its immunity retreats as necessity and good cause is shown for its production in a 231
balance of competing interests.”
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 th
(5 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).

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.
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 233
court, 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 234
consistent with the logic of its principle.
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 236
asserting the privilege. Moreover, blanket assertions of the privilege have been deemed 237238
“unacceptable”, and are “strongly disfavored.” 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
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 th
F.2d 489, 493 (7 Cir.), cert denied, 449 U.S. 994, 101 S. Ct. 531, 66 L.Ed. 2d 291 (1980); Liew v. Breen 640 F. 2d thnd
1046, 1049 (9 Cir. 1981); United States v. Stern 511 F.2d 1364, 1367 (2 Cir. 1975); United States v. Landof 591 th
F.2d 36, 38 (9 Cir. 1978); In re Grand Jury Empaneled February 14, 1978 (Markowitz), 603 F.2d 469, 474 (3d Cir. thth
1979); United States v. Hodgson, 492 F.2d 1175 (10 Cir. 1974); United States v. Tratner, 511 F.2d 248, 251 (7 Cir. th
1975); United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978); United States v. Ponder, 475 F.2d 37, 39 (5 Cir. th
1973); United States v. Bartlett, 449 F.2d 700, 703 (8 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 thth
n. 20 (5 Cir. 1981); U.S. v. Cromer, 483 F.2d 99, 102 (9 Cir. 1973); Colton v. U.S., 306 F.2d 633, 639 (2d Cir. 1962).

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 239
Army. Indeed, there appears to be no case holding otherwise and several which have followed 240
(c) Waiver of the Attorney-Client Privilege
Because of the privilege’s inhibitory effect on the truth-finding process and its impairment of the 241
public’s “right to every man’s evidence,” modern liberal discovery rules have taken a narrow 242
view of the privilege. This tendency toward limiting the privilege is most clearly manifested in 243
the strict standard of waiver. Thus the voluntary disclosure of privileged information, whether 244
by the client or the attorney with the client’s consent, waives the privilege because it destroys
the confidentiality of a communication and thereby undermines the justification for preventing 245246
compelled disclosures. Waiver need not be express, nor is it necessary that the client waive 247248
the privilege knowingly. Waiver may be evidenced by word or act, but may be inferred from 249
a failure to speak or act when words or action would be necessary to preserve confidentiality.
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 250
or pleadings to the Court, or in transacting business with a third party.
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 251
matter that were not themselves disclosed. 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).
240 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 Harvesters 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).

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 253
likelihood that the information disclosed is false or intended to mislead the other party. Thus, 254
pleading an “advice of counsel” defense, which puts the attorneys advice in issue, 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”, 255
and the client has waived his privilege over them. 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 256
and the communication no longer privileged. Courts have applied this concept of
confidentiality narrowly to prevent corporations from sharing an attorney-client communication 257
with an ally and then shielding the communication from a grand jury or adversary. As a general 258
rule, courts also apply the waiver rule to disclosures made to government agencies. 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 259
having to waive the privileged status of these documents against other parties, 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. th
Miller, 660 F.2d 563, 567-68 (5 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
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); DIppolito 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).

minority view. The prevailing view, enunciated in decisions of the Second260, Fourth261, and 262
District of Columbia Circuits, hold that “if a client communicates information to his attorney
with the understanding that the information will be revealed to others, that information, as well as 263
‘the details underlying the data which was to be published’, will not enjoy the privilege.”
The facts and circumstances of In re Martin Marietta Corporation264 illustrate the strict manner in
which the courts have applied the waiver doctrine. In that case a mail fraud defendant sought
documents, and the underlying factual details for statements made in them, submitted by his
former employer to the United States Attorney and the Department of Defense in its efforts to
settle criminal and administrative proceedings then pending against it. The court noted that in a
Position Paper to the U.S. Attorney describing why the company should not be indicted, it was
asserted: “of those consulted within the Company all will testify that any qualms they had about
the arrangement had nothing to do with worries about fraud” and “there is no evidence,
testimonial or documentary, that any company officials in the meeting [of November 17, 1983]
except Mr. Pollard and his Maxim employees, understood that Maxim had departed from the 265
strict procedures of its IVI contract.” The appeals court held that these, and similar disclosures
made to the Defense Department in an Administrative Settlement Agreement, waived whatever
privilege it had with respect to the submitted documents and their underlying details.
(d) Exceptions to the Attorney-Client Privilege
Absent waiver, the attorney-client privilege generally protects from disclosure communications
from a client to his lawyer or his lawyer’s agent relating to the lawyers rendering of legal advice
which was made with the expectation of confidentiality, but not in furtherance of a future crime,
fraud, or tort. However, the courts have strictly confined the privilege and developed a number of
important qualifications and exceptions.
First, the case law has consistently emphasized that one of the essential elements of the attorney-
client privilege is that the attorney be acting as an attorney and that the communication be made
for the purpose of securing legal services. The privilege therefore does not attach to incidental
legal advice given by an attorney acting outside the scope of his role as attorney. “‘Acting as a
lawyer’ encompasses the whole orbit of legal functions. When he acts as an advisor, the attorney
must give predominantly legal advice to retain his client’s privilege of non-disclosure, not solely, 266
or even largely, business advice.”
In order to ascertain whether an attorney is acting in a legal or business advisory capacity the
courts have held it proper to question either the client or the attorney regarding the general nature
of the attorney’s services to his client, the scope of his authority as agent and the substance of

260 In re John Doe Corporation, 675 F.2d 482 (2d Cir. 1982).
261 In re Martin Marietta Corp., 856 F.2d 619 (4th Cir. 1988); United States v. (Under Seal), 748 F.2d 871, 875 (4th Cir.
1984); In re Grand Jury Proceedings, 727 F.2d 1352, 1356 (4th Cir. 1984).
262 In re Subpoena Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984); In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982);
Permian Corp. v. United States, 665 F.2d 1214 (D.C. Cir. 1981).
263 In re Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988).
264 Id.
265 856 F.2d at 623.
266 Zenith Radio Corp. v. Radio Corp. of America, 121 F.Supp. 792, 794 (D. Del. 1954) (emphasis supplied); SCM
Corp. v. Xerox Corp., 70 FRD 508, 517 (D. Conn. 1976).

matters which the attorney, as agent, is authorized to pass along to third parties.267 Indeed,
invocation of the privilege may be predicated on revealing facts tending to establish the existence
of an attorney-client relation.
A further manifestation of the judicial proclivity to confine the scope of the privilege is the
general rule requiring disclosure of the fact of employment, the identity of the person employing
him or the name of the real party in interest, the terms of the employment, and such related facts 268
as the client’s address, occupation or business and the amount of the fee and who paid it. The
courts have reasoned that the existence of the relation of attorney and client is not a privileged
communication. The privilege pertains to the subject matter and not to the fact of the employment
as attorney.
Another significant exception to the privilege occurs when a communication between client and 269
attorney is for the purpose of committing a crime or perpetuating a fraud at some future time.
The policy reasons for this exception are obvious. Society has an interest in protecting the
confidences of a client to his lawyer even concerning already committed crimes, frauds and torts.
The harm from nondisclosure is limited because the past event can no longer be prevented.
Society also has an interest in protecting the confidence of a client who seeks legal advice about
neutral acts. But society has no interest in facilitating the commission of contemplated but not yet
committed crimes, torts or frauds. On the contrary, society has every interest in forestalling such
acts. Therefore, the attorney-client privilege has been held not to attach to such acts.

The role of members of the minority party in the investigatory oversight process is governed by
the rules of each House and its committees. While minority members are specifically accorded
some rights (e.g., whenever a hearing is conducted on any measure or matter, the minority may,
upon the written request of a majority of the minority members to the chairman before the
completion of the hearing, call witnesses selected by the minority, and presumably request 270
documents), no House or committee rules authorize ranking minority members or individual
members on their own to institute official committee investigations, hold hearings or to issue
subpoenas. Individual members may seek the voluntary cooperation of agency officials or private
persons. But no judicial precedent has recognized a right in an individual member, other than the

267 Colton v. U.S., 306 F.2d 633, 636, 638 (2d Cir. 1962); U.S. v. Tellier, 255 F.2d 441 (2d Cir. 1958); J.P. Foley &
Co., Inc. v. Vanderbilt, 65 FRD 523, 526-27 (S.D.N.Y. 1974).
268 In re Shargel, 742 F.2d 61, 62 (2d Cir. 1984); In re Grand Jury Investigation No. 83-2-35, 723 F.2d 447, 451-52 (6th
Cir. 1983); In re Grand Jury Proceedings in Matter of Freeman, 208 F.2d 1581, 1575 (11th Cir. 1983); In re Grand th
Jury Proceedings (Robert Twist, Sr.), 689 F. 2d 1351, 1352 (11 Cir. 1982); Colton v. United States, 306F.2d 633, 637-
38 (2d Cir. 1962), cert. denied, 371 U.S. 951 (1963); United States v. Pape, 144 F.2d 778, 783 (2d Cir.), cert. denied,
323 U.S. 752 (1944).
269 See, e.g., In re John Doe Corporation, 675 F.2d 482 (2d Cir. 1982); Union Camp Corp. v. Lewis, 385 F.2d 143,
144-45 (4th Cir. 1967); United States v. Bob, 106 F.2d 37, 40 (2d Cir.), cert. denied, 308 U.S. 589 (1939).
270 House Rule XI 2(j)(1); House Banking Committee Rule IV. 4.

chair of a committee,271 to exercise the authority of a committee in the context of oversight
without the permission of a majority of the committee or its chair.
The question of the nature and scope of the rights of minority party members in the investigatory
process came into sharp focus in the 103d Congress. Then, for the first time in over a decade,
both Houses and the White House were in the control of one party, while at the same time the
Whitewater matter began to emerge as a matter of serious political importance. Principal
jurisdiction over many of the areas of concern fell within mandates of the House and Senate
Banking Committees.
The Ranking Minority Member of the House Banking Committee was particularly aggressive in
seeking to obtain documents and testimony from the Office of Thrift Supervision (OTS) and the
Resolution Trust Corporation (RTC), the agencies handling the investigation of the failure of the
Madison Guarantee Savings & Loan Association and related matters. The agencies refused to turn
over what were claimed by the Ranking Minority Member to be key documents and were
supported by the chairman of the Banking Committee who directed the agencies not to cooperate
on the grounds that no investigation had been authorized by the committee nor were hearings on
the matter contemplated. The Ranking Minority Member brought suit to compel disclosure of the 272
An obstacle to the suit was a 1983 court ruling in Lee v. Kelley. 273 There a court held, inter alia,
that an attempt by Senator Jesse Helms to intervene in the case in order to unseal FBI tapes and
transcripts concerning Martin Luther King to enable him to utilize the information as part of the
debate on legislation proposing to establish a national holiday commemorating King’s birth,
would be dismissed as an exercise of the courts “equitable discretion” because Senator Helms’
action was an effort to enlist the court in his dispute with fellow legislators. Helms had argued
that because no committee hearings were being conducted to inform Senators of facts to justify or
defeat the passage of the legislation, he was seeking to fill that void by performing the 274
investigative function the Senate leadership had decided to forego. The district court ruled that
“[i]t is not for this court to review the adequacy of the deliberative process of the Senate
leadership .... [T]o conclude otherwise would represent an obvious intrusion by the judiciary into
the legislative arena. In any event, the proper forum for this [dispute] is the Senate, ‘for [i]t would
be unwise to permit the federal courts to become a higher legislature where a congressman who 275
has failed to persuade his colleagues can always renew the battle.’”

271 Ashland Oil Co., Inc., v. FTC, 548 F.2d 977, 979-80 (D.C. Cir. 1976), affirming 409 F.Supp. 297 (D.D.C. 1976).
See also Exxon v. Federal Trade Commission, 589 F.2d 582, 592-93 (D.C. Cir. 1978) (acknowledging that the
principle is important that disclosure of information can only be compelled by authority of Congress, its committees or
subcommittees, not solely by individual members ...”); and In re Beef Industry Antitrust Litigation, 589 F.2d 786, 791 th
(5 Cir. 1979)(refusing to permit two congressmen from intervening in private litigation because they failed to obtain
a House Resolution or any similar authority before they sought to intervene.)
272 Leach v. Resolution Trust Corporation, 860 F.Supp 868 (D.D.C. 1994). Unless otherwise indicated, the factual
context of the suit is as described in court’s opinion and the briefs submitted by the parties.
273 Lee v. Kelley, 99 F.R.D. 340 (D.D.C. 1983), aff’d sub. nom. Southern Christian Leadership Conference v. Kelley,
747 F.2d 777 (D.C. Cir. 1984).
274 99 F.R.D. at 342.
275 Id. at 343. The appeals court affirmed on the ground that Senator Helms lacked standing because he had not asserted
any interest protected by the Constitution, and that his complaint was actually with his fellow Senators. 747 F.2d at

In an attempt to avoid the adverse consequences of Lee, the Ranking Minority Member sought to 276
compel disclosure of the documents under the Freedom of Information Act (FOIA), which 277
explicitly exempts Congress from its withholding provisions, and under the Administrative 278
Procedure Act (APA), alleging that the documents were arbitrarily and capriciously withheld. It 279
was not successful. While finding the claims “technically justiciable”, the district court held
that it had to invoke the District of Columbia Circuit’s doctrine of equitable or remedial discretion
and dismiss the claims since this was a case “in which a congressional plaintiff’s dispute is
primarily with his or her fellow legislators.” The court concluded that “[i]t is clear . . . that
Representative Leach’s complaint derives solely from his failure to persuade his colleagues to
authorize his request for the documents in question, and that Plaintiff thus has a clear ‘collegial 280
remedy’ capable of affording him substantial relief.”
Despite the apparent difficulty in obtaining judicial redress, some measure of practical success
was achieved as a result of intense public pressure brought to bear by the minority and its
supporters on the majority party and the White House. A Justice Department investigation into the
handling of the RTC recommendation to the United States Attorney’s office for a further criminal
investigation was commenced in November 1993; the White House in December, 1993
authorized turning over Whitewater documents to the Justice Department team investigating the
handling of the matter; in January 1994 the White House agreed to the appointment by the
Attorney General of an independent counsel with broad authority to investigate Whitewater
matters; both Houses agreed in principle in March 1994 to hold hearings; and in July and August
1994 hearings were held by the House and Senate Banking Committees. The legal challenge thus
may be viewed as part the overall strategy to force public hearings by Congress, although in the
long run the precedent established may have virtually foreclosed future resort to the courts under
analogous circumstances.
The Leach court also suggested that the possibility of a “collegial remedy” for the minority exists,
pointing to 5 U.S.C. 2954 under which small groups of members of the House Government
Reform and Oversight and Senate Governmental Affairs Committees can request information 281
from executive agencies without the need of formal committee action. However, the precise
scope and efficacy of this provision is uncertain.
5 U.S.C. 2954 is derived from section 2 of the Act of May 29, 1928,282 which originally referred
not to the current committees generally overseeing government agency operations but their
predecessors, the House and Senate Committees on Expenditures in the Executive Departments.
The principal purpose of the 1928 Act, embodied in its first section, was to repeal legislation
which required the submission to the Congress of some 128 reports, many of which had become

276 5 U.S.C. 552 (1988).
277 See 5 U.S.C. 552(d) stating that This section is not authority to withhold information from Congress.”
278 5 U.S.C. 702, 706 (1988).
279 860 F.Supp. at 871-72.
280 Id. at 874-76.
281 Id. at 876 footnote 7. 5 U.S.C 2954 provides: “An Executive agency, on request of the Committee on Government
Operations of the House of Representatives, or of any seven members thereof, or on request of the Committee on
Government Operations of the Senate, or any five members thereof, shall submit any information requested of it
relating to any matter within the jurisdiction of the committee.
282 45 Stat. 996.

obsolete in part, and which, in any event, had no value, served no useful purpose, and were not 283
printed by the House of Representatives.
Section 2 of the 1928 Act contains the language which has been codified in 5 U.S.C. 2954. The
legislative history, however, indicates that the purpose of the 1928 Act was not to assert a
sweeping right of Congress to obtain any information it might desire from the executive branch.
Rather, the aim of the section was far more limited. Thus, the Senate Report stated that its
purpose was to make “it possible to require any report discontinued by the language of this bill to
be resubmitted to either House upon its necessity becoming evident to the membership of either 284
body.” Or, in the words of the House Report: “To save any question as to the right of the House
of Representatives to have furnished any of the information contained in the reports proposed to
be abolished, a provision has been added to the bill requiring such information to be furnished to
the Committee on Expenditures in the Executive Departments or upon the request of any seven 285
members thereof.”
It would appear, then, that the scope of 5 U.S.C. 2954 is closely tied to the 128 reports abolished 286
by section 1 of the 1928 legislation. Moreover, the provision lacks a compulsory component.
Agency refusals to comply would not be subject to existing contempt processes, and the outcome
of a civil suit to compel production on the basis of the provision is problematic despite the Leach
court’s suggestion. Further, the provision applies only to the named committees; thus members of
all other committees would still face the Leach problem. Finally, even members of the named
Committees are still likely to have to persuade a court that their claim is no more than an
intramural dispute.
The rules of the Senate provide substantially more effective means for individual minority party
members to engage in “self-help” to support oversight objectives than their House counterparts.
Senate rules emphasize the rights and prerogative of individual Senators and, therefore, minority 287
groups of Senators. The most important of these rules are those that effectively allow unlimited 288
debate on a bill or amendment unless an extraordinary majority vote to invoke cloture. Senators
can use their right to filibuster, or simply the threat of filibuster, to delay or prevent the Senate
from engaging in legislative business. The Senate’s rules also are a source of other minority rights
that can directly or indirectly aid the minority in gaining investigatory rights. For example, the
right of extended debate applies in committee as well as on the floor, with one crucial difference:
the Senate’s cloture rule may not be invoked in committee. Each Senate committee decides for
itself how it will control debate, and therefore a filibuster opportunity in a committee may be
even greater than on the floor. Also, Senate Rule XXVI prohibits the reporting of any measure or
matter from a committee unless a majority of the committee are present, another point of possible
tactical leverage. Even beyond the potent power to delay, Senators can promote their goals by

283 H.R. Rep. No. 1757, 70th Cong., 1st Sess., pp. 2 - 3 (1928). A study of the Bureau of Efficiency had recommended
their elimination. H.R. Rep. 1757, at p. 2; S. Rep. No. 1320, 70th Cong., 1st Sess., p. 1 (1928).
284 S. Rep. No. 1320, supra, at 4.
285 H.R. Rep. No. 1757, supra, at 1.
286 In codifying Title 5 in 1966, Congress made it clear that it was effecting no substantive changes in existing laws:
The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change, the laws replaced
by those sections on the effective date of this Act.” Pub. L. 89-544, sec. 7(a).
287 See Stanley Bach, Minority Rights and Senate Procedures, Congressional Research Service, Report No. 94-978,
December 5, 1994.
288 Senate Rule XIX.

taking advantage of other parliamentary rights and opportunities that are provided by the Senate’s
formal procedures and customary practices such as are afforded by the processes dealing with 289
floor recognition, committee referrals, and the amending process.

For almost two decades the offices of Senate Legal Counsel and House General Counsel have
developed parallel yet distinctly unique and independent roles as institutional legal “voices” of
the two bodies they represent. Familiarity with the structure and operation of these offices and the
nature of the support they may provide committees in the context of an investigative oversight
proceeding is essential.
The Office of Senate Legal Counsel290 was created by Title VII of the Ethics in Government Act 291
of 1978 “to serve the institution of congress rather than the partisan interests of one party or 292
another.” The Counsel and Deputy Counsel are appointed by the President pro tempore of the
Senate upon the recommendation of the Majority and Minority Leaders. The appointment of each
is made effective by a resolution of the Senate, and each may be removed from office by a
resolution of the Senate. The term of appointment of the Counsel and Deputy Counsel is two
Congresses. The appointment of the Counsel and Deputy Counsel and the Counsel’s appointment
of Assistant Senate Legal Counsel are required to be made without regard to political affiliation.
The office is responsible to a bipartisan Joint Leadership Group, which is comprised of the
Majority and Minority Leaders, the President pro tempore, and the chairman and ranking 293
minority member of the Committees on the Judiciary and on Rules and Administration.
The Act specifies the activities of the office, two of which are of immediate interest to committee
oversight concerns: representing committees of the Senate in proceedings to aid them in 294
investigations and advising committees and officers of the Senate.
(1) Proceedings to Aid Investigations by Senate Committees
The Senate Legal Counsel may represent committees in proceedings to obtain evidence for
Senate investigations. Two specific proceedings are authorized.

289 See Bach, supra footnote 287 at pp. 8-11.
290 A full description of the work of the Office of Senate Legal Counsel and its work may be found in Floyd M. Riddick
and Alan S. Frumin, Riddicks Senate Procedure, S.Doc. No. 28, 101st Cong., 2d Sess. 1236 (1992).
291 Pub. L. No. 95-520, secs. 701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2 U.S.C. secs. 288, et seq.
292 S.Rep. No. 95-170, 95th Cong., 2d Sess. 84 (1978).
293 2 U.S.C. 288(a) and (b), 288a.
294 In addition, the Office is called upon to defend the Senate, its committees, officers and employees in civil litigation
relating to their official responsibilities or when they have been subpoenaed to testify or to produce Senate records; and
to appear for the Senate when it intervenes or appears as amicus curiae in lawsuits to protect the powers or
responsibilities of the Congress.

18 U.S.C. § 6005 provides that a committee or subcommittee of either House of Congress may
request an immunity order from a United States district court when the request has been approved
by the affirmative vote of two-thirds of the Members of the full committee. By the same vote, a
Committee may direct the Senate Legal Counsel to represent it or any of its subcommittees in an 295
application for an immunity order.
The Senate Legal Counsel may also be directed to represent a committee or subcommittee of the 296
Senate, and also the Office of Senate Fair Employment Practices, in a civil action to enforce a
subpoena. Prior to the Ethics in Government Act of 1978, subpoenas of the Senate could be
enforced only through the cumbersome method of a contempt proceeding before the bar of the
Senate or by a certification to the United States attorney and a prosecution for criminal contempt
of Congress under 2 U.S.C. §§ 192, 194. The Ethics Act authorizes a third method to enforce
Senate subpoenas, through a civil action in the United States District Court for the District of 297
Columbia. The House chose not to avail itself of this procedure and this enforcement method
applies only to Senate subpoenas. Senate subpoenas have been enforced in several civil actions.
See, for example proceedings to hold in contempt a recalcitrant witness in the impeachment 298
proceedings against Judge Alcee L. Hastings and proceedings to enforce a subpoena duces 299
tecum for the production of diaries of Senator Bob Packwood.
The statute details the procedure for directing the Senate Legal Counsel to bring a civil action to
enforce a subpoena. In contrast to an application for an immunity order, which may be authorized
by a committee, only the full Senate by resolution may authorize an action to enforce a 300
subpoena. The Senate may not consider a resolution to direct the Counsel to bring an action
unless the investigating committee reports the resolution by a majority vote. The statute specifies
the required contents of the committee report; among other matters, the committee must report on
the extent to which the subpoenaed party has complied with the subpoena, the objections or
privileges asserted by the witness, and the comparative effectiveness of a criminal and civil 301
proceeding. A significant limitation on the civil enforcement remedy is that it excludes from its
coverage actions against officers or employees of the federal government acting within their
official capacities. Its reach is limited to natural persons and to entities acting or purporting to act 302
under the color of state law.
(2) Advice to committees and officers of the Senate and other duties.
The Ethics Act details a number of advisory functions of the Office of Senate Legal Counsel.
Principal among these are the responsibility of advising officers of the Senate with respect to
subpoenas or requests for the withdrawal of Senate documents, and the responsibility of advising
committees about their promulgation and implementation of rules and procedures for

295 2 U.S.C. 288b(d),(e), 288f.
296 2 U.S.C. 1207(f).
297 The procedure for applying for an immunity order is detailed, supra, at notes 47-56 and accompanying text.
298 See S.Rep. No. 98, 101st Cong., 1st Sess. (1989).
299 See, Senate Select Committee on Ethics v. Packwood, 845 F.Supp 17 (D.D.C. 1994), petition for stay pending
appeal denied, 114 S.Ct. 1036 (1994).
300 2 U.S.C. 288d and 28 U.S.C. 1365.
301 See R.Rep. No. 98, 101st Cong., 1st Sess. (1989).
302 See, Senate Select Committee on Ethics v. Packwood, 845 F.Supp 17 (D.D.C. 1994), petition for stay pending
appeal denied, 114 S.Ct. 1036 (1994).

congressional investigations. The office also provides advice about legal questions that arise 303
during the course of investigations.
The Act also provides that the Counsel shall perform such other duties consistent with the non-304
partisan purposes and limitations of Title VII as the Senate my direct. Thus in 1980 the Office
was used in the investigation relating to Billy Carter and Libya and worked under the direction of
the chairman and vice-chairman of the subcommittee charged with the conduct of that 305
investigation. Members of the Office have also undertaken special assignments such as the 306
Senate’s investigation of Abscam and other undercover activities, the impeachment 307308
proceedings of Judge Harry Claiborne, Judge Walter L. Nixon, Jr., and Judge Alcee L. 309
Hastings, Jr., and the confirmation hearings of Justice Clarence E. Thomas.
In addition, the Counsel’s office provides information and advice to Members, officers and
employees on a wide range of legal and administrative matters relating to Senate business. Unlike
the House practice, the Senate Legal Counsel plays no formal role in the review and issuance of
subpoenas. However, since it may become involved civil enforcement proceedings, it has
welcomed the opportunity to review proposed subpoenas for form and substance prior to their
issuance by committees.
A non-statutory office, the House General Counsel has evolved in an ad hoc, incremental manner
since the mid-1970’s, from its historic role as a legal advisor to the Clerk of the House on a range
of administrative matters that fell within the jurisdiction of the Clerk’s office, to that of lawyer for
the institution. At the beginning of the 103d Congress it was made a separate House office,
reporting directly to the Speaker, charged with the responsibility “of providing legal assistance 310
and representation to the House.” However, as a consequence of administrative restructuring at th
the start of the 104 Congress, the Office was again placed in the Clerk’s Office. While the
function and role of the House General Counsel and the Senate Legal Counsel with respect to 311
oversight assistance to committees and protection of institutional prerogatives are similar, there
are significant differences that need be noted.
The General Counsel and the Deputy General Counsel are appointed by the Speaker and serve at
his pleasure. Traditionally the General Counsel has tendered his resignation to a new incoming
Speaker. Authorization for actions by the General Counsel to represent the interests of the House

303 2 U.S.C. 288g(a)(5) and (6).
304 2 U.S. 288g(c).
305 See S.Rep. No. 1015, 96th Cong., 2d Sess. (1980).
306 See S.Rep. No. 682, 97th Cong., 2d Sess. (1982).
307 See S.Rep. No. 812, 99th Cong., 2d Sess. (1986).
308 See S.Rep. No. 164, 101st Cong., 1st Sess. (1989).
309 See S.Rep. No. 164, 101st Cong., 1st Sess. (1989).
310 See H.Res. 5, sec. 11, 139 Cong. Rec. H5 (daily ed. Jan. 5, 1993).
311 Thus, like the Senate Legal Counsel, the House General Counsel may be called upon to defend the House, its
committees, officers, and employees in civil litigation relating to their official responsibilities, or when they have been
subpoenaed to testify or to produce House records (see House Rule 50); and to appear for the House when it intervenes
or appears as amicus curiae in lawsuits to protect the powers or responsibilities of the Congress.

in court is often given by the Joint Leadership Group, consisting of the Speaker, Majority Leader, 312
Majority Whip, Minority Leader and Minority Whip. On other occasions, the Office will act 313
pursuant to the direction of the majority leadership or the Speaker alone.
Unlike the Senate, subpoenas may only be issued over the seal of the Clerk of the House. In
practice, committees work closely with the General Counsel in drafting subpoenas and every
subpoena issued by a committee or officer is reviewed by the Office for substance and form.
Similarly, in the absence of civil enforcement authority, committees often seek the assistance of
the General Counsel in navigating the statutory contempt process in instances of witness non-
compliance with a subpoena which may culminate in a floor proceeding to authorize a contempt
citation. For example, during a committee investigation into the real estate holdings in the United
States of the Philippines President Ferdinand E. Marcos and his wife, two brothers who allegedly
assisted the Marcos’s in their dealings were called to testify. They declined to answer numerous
questions, claiming attorney-client privilege. The General Counsel was called in to evaluate the
claims and to render an opinion whether contempt proceedings would be appropriate. His
findings served as the basis for the resolution passed by the House holding the brothers in 314
Like the Senate Legal Counsel’s office, the House General Counsel’s office devotes a large
portion of its time rendering informal advice to individual members and committees. Unlike its
Senate counterpart, however, the General Counsel will often provide formal advice in the form of 315316
memorandum opinions and, at times, testimony at hearings.
Finally, the Office also takes on special tasks as, for example, when the deputy general counsel
served as special counsel to the joint committee investigation the Iran-Contra affair and played an
active role in establishing procedures for the investigation.
Beck, Carl. Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on In-
American Activities, 1945-1957. New Orleans: The Hauser Press, 1959.
Berger, Raoul. Congressional Subpoenas to Executive Officials.Cambridge: Harvard University
Press, 1974.
Brand, Stanley M. Battle Among the Branches: The Two Hundred Year War. North Carolina Law
Review, v. 65, 1987:901.
Brand, Stanley M. and Connell, Sean. Constitutional Confrontations: Preserving a Prompt and
Orderly Means By Which Congress May Enforce Investigative Demands Against Executive
Branch Officials. Catholic University Law Review, v. 36, 1986: 71.

312 See, e.g., U.S. v. McDade, 28 F.3d 283 (3th Cir. 1994).
313 See, e.g., Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994).
314 See, 132 Cong. Rec. 3036-38 (1986).
315 See, e.g., 131 Cong. Rec. 25793-95 (1985)(opinion on the constitutionality of the Competition in Contracting Act.)
316 See, e.g., Hearings, “Environmental Crimes at the Rocky Flats Nuclear Facility, before the Subcommittee on
Investigation and Oversight, Committee on Science, Space and Technology, 101st Cong., 2d Sess. 1645-67 (1992)
(Statement of Deputy General Counsel Charles Tiefer on requiring the President to claim executive privilege.)

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Morton Rosenberg
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