Legislative Investigation

Author:Telford Taylor

Page 1593

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

The basic theory of the power was and is that a legislative house needs it in order to obtain information, so that its law-making and other functions may be discharged on

Page 1594

an enlightened rather than a benighted basis. Under the Constitution, the power was first exercised by the HOUSE OF REPRESENTATIVES in 1792, when it appointed a select committee to inquire into the defeat by the Indians suffered the previous year by federal forces commanded by General Arthur St. Clair. The House empowered the committee "to call for such persons, papers and records as may be necessary to assist in their inquiries." After examining the British precedents, President GEORGE WASHINGTON and his cabinet agreed that the House "was an inquest and therefore might institute inquiries" and "call for papers generally," and that although the executive ought to refuse to release documents "the disclosure of which would endanger the public," in the matter at hand "there was not a paper which might not be properly produced," and therefore the committee's requests should be granted.

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

Fifteen years later, a congressional investigation was for the first time successfully challenged on constitutional grounds, in KILBOURN V. THOMPSON (1881). The House of Representatives had authorized a select committee to investigate the bankruptcy of the Jay Cooke banking firm (which was a depository of federal funds), and when the witness Kilbourn refused to answer questions, the House cited him for contempt and imprisoned him. After his release on HABEAS CORPUS, Kilbourn sued the House sergeant-at-arms for damages from false imprisonment. In an opinion by Justice SAMUEL F. MILLER, the Supreme Court sustained his claim on the grounds of constitutional SEPARATION OF POWERS, declaring that the Jay Cooke bankruptcy presented no legislative grounds for inquiry and that "the investigation ? could only be properly and successfully made by a court of justice." The Court has never since invalidated a legislative inquiry on that particular basis, and it is probable that today, under comparable circumstances, a sufficient legislative purpose would...

To continue reading