Congressional investigations and the role of privilege.

AuthorAuchincloss, Kalah
  1. INTRODUCTION

    No one familiar with the history of this country can deny that congressional committees are useful. It is necessary to investigate before legislating, but the line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin [Joseph McCarthy] has stepped over it repeatedly. His primary achievement has been in confusing the public mind, as between internal and the external threats of Communism. We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. (1)

    CBS news journalist Edward Murrow voiced these words to the American public in early 1954, ushering in the ultimate downfall of Senator McCarthy's lawless congressional investigation into alleged communist behavior. (2) As Chairman of the Government Committee on Operations of the Senate, McCarthy, at the height of the Korean War in 1950, capitalized on the "Red Scare" and the undercurrent of fear shooting through the United States. He called hundreds of citizens in front of the Senate Committee, accusing these Americans of subversive communist behavior and conspiring to overthrow the government. (3) These individuals were not shown proof of their alleged crimes and were never given a chance to defend themselves. In one of the more frightening moments in American history, the constitutional guarantees of these citizens were abridged by the very legislature charged with safeguarding such rights. (4) It was these methods that Murrow condemned, and it was his attack against McCarthy that eventually led to the Senator's public censure.

    Many congressional investigations are not, in fact, such outrageous exposures of private action. Most are routine inquiries into areas harboring legislative gaps. (5) This so-called legislative oversight is necessary probing by our legislative body to determine where and how they must act in creating law. Other congressional inquiries, however, bear a striking resemblance to a criminal investigation and trial. Much like the McCarthy hearings, these investigative hearings, often scrutinizing executive action, involve lawyers, witnesses, and a final judgment, all in a formidable environment akin to a courtroom. (6) And yet, unlike a criminal trial and its preliminary investigation, in these congressional inquiries there is no judge, no jury of peers, no presumption of innocence, no privacy, and, as this paper discusses in detail, the privileges essential to the adversarial judicial process assume a different identity in the context of a congressional investigation. (7)

    This essay focuses on the role of privilege in the setting of congressional investigations, comparing it to the role privilege plays in a traditional court case. Specifically, this article will examine attorney-client privilege, executive privilege, and the Fifth Amendment privilege against self-incrimination, looking closely at the role each plays in both a congressional heating and a criminal trial. The article will also discuss the normative aspects of privilege. Analysis reveals why privileges may be abridged in the houses of Congress, but questions whether this exercise is reasonable? Are the courtroom and the Capitol sufficiently different forums to justify the disparate application of privilege? Should we distinguish between the two seats of government when similar procedures occur in both?

    Part II provides a general overview and history of the congressional oversight process, describing the development of oversight authority and the judicial limitations placed on this implied congressional power. Part III discusses the attorney-client privilege in the context of litigation as well as a congressional investigation and compares the two applications. Part IV explores executive privilege in both contexts and again compares the two applications. Part V does the same for the Fifth Amendment privilege.

    Part VI concludes the paper, determining that the significantly different environments of the courtroom and the Capitol do justify the disparate application of non-constitutional privileges. Specifically, the absence of an adversarial atmosphere during a congressional hearing removes the need for strict adherence to the attorney-client privilege. The absence of an adversarial environment, however, does not justify congressional ignorance of those privileges resting on constitutional grounds. In those instances, explored via the Fifth Amendment privilege against self-incrimination, and to a lesser extent, the executive privilege, the Constitution itself mandates congressional recognition of those rights in the same manner as a court would apply them. Their constitutional basis elevates these privileges to rights recognized regardless of the forum in which they are asserted; the difference in atmospheres is meaningless.

  2. THE EVOLUTION OF CONGRESSIONAL INVESTIGATIONS

    1. The First Congressional Investigation: A Military Disaster Spurns Legislative Outcry

      The first congressional inquiry took place in 1792 when the House investigated Major General Arthur St. Clair for the massacre of American troops under his command. (8) In November of 1791, St. Clair, upon President Washington's orders, led 1500 troops in cutting a road from Cincinnati to Northern Ohio Indian villages. A surprise attack by the Native Americans of the region killed or wounded over half of St. Clair's troops, spawning public outcry and eventually a House inquiry into St. Clair's actions. (9)

      The first motion to investigate was defeated in the House based on a separation of powers argument; as there is no express grant of investigatory power given to Congress under the Constitution, Representatives did not feel it was within their implied powers to investigate executive military action. (10) Nonetheless, the second motion passed, resolving "[t]hat a committee be appointed to inquire into the causes of the failure of the late expedition under Major General St. Clair; and that the said committee be empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries." (11) Thus, the birth of the nation's first congressional investigation occurred, setting precedent that remains even today.

      The House was persuaded in granting such authority by two forceful arguments. First, an historical case was made that the British Parliament had long been endowed with investigatory powers. William Pitt the Elder described this parliamentary authority in 1742 as "the Grand Inquest of the Nation, and as such it is our duty to inquire into every Step of public management, either Abroad or at Home, in order to see that nothing has been done amiss." (12)

      Several representatives were not convinced that relying on British tradition was wise, but a second argument grounded in the Constitution's "necessary and proper" clause provided the necessary convincing. (13) Proponents argued that to effectively carry out their express legislative powers, Congress, under the "necessary and proper clause" (14) had the implied authority to launch legislative inquiries, even against the executive branch. This included the authority to call witnesses, compel document production, and take final action. (15) As discussed below, however, the notion that congressional investigation violated the constitutional separation of powers was not entirely discounted; until the 1950s, the courts used this guiding principle to place limits on congressional investigatory power. Only after Senator McCarthy's abuse of this authority did the Supreme Court entertain the idea that individual constitutional rights could, and did, limit congressional action. (16)

      After the House passed the resolution authorizing formation of a committee to investigate the St. Clair's disaster, the Representatives proceeded to request documents and papers from President Washington, who complied with little protest. (17) Congress also called witnesses, including General St. Clair himself, who issued a written statement proclaiming his innocence in the affair. The committee eventually vindicated the General, placing the blame on the War Department and bringing to an end the nation's first congressional inquiry. (18)

    2. Early Judicial Attempts to Regulate Congressional Oversight

      The limits on congressional oversight authority were unclear in the aftermath of the St. Clair hearings. The Washington Administration had recognized congressional investigatory power within certain bounds, (19) and there were few judicial controversies surrounding the relatively frequent congressional inquiries in the early 19th century. Three notable Supreme Court cases from this era did, however, attempt to more definitively characterize the authority and limits of congressional inquiry, often relying on the separation of powers argument rejected by the House in 1792. (20)

      These early cases reveal the Court's uncertainty as to the extent of congressional oversight power, jockeying back and forth between granting broad authority and subsequently narrowing its scope. (21) Several notable observations are significant in analyzing these cases. First, when limiting congressional power, the Court relies solely on a separation of powers argument; it does not consider the possibility that the constitutional rights of a witness called to testify could pose significant limits as well. Thus, the common law privileges of a witness at the focus of this paper were rarely litigated during the early years of congressional oversight. (22) As discussed in more detail below, the individual rights argument did not gain ground until McCarthy generated public outcry in the 1950s. (23)

      Second, these cases set the stage for the more well known and significant post-Teapot Dome cases that lay out the present day limitations on congressional oversight authority and begin to address in detail witness...

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