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The legal basis for oversight.

Numerous Supreme Court precedents recognize a broad and encompassing power in Congress to engage in oversight and investigation that would reach all sources of information necessary for carrying 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 production of information needed to discharge their legislative functions from executive agencies, private persons, and organizations. Within certain constraints, the information so obtained may be made public.

Although there is no express provision of the Constitution that specifically authorizes Congress to conduct investigations and take testimony for the purposes of performing its legitimate functions, numerous decisions of the Supreme Court have firmly established that the investigatory power of Congress is so essential to the legislative function as to be implied from the general vesting of legislative power in Congress. (4) Thus, in Eastland v. United States Servicemen's Fund, the Court explained that "[t]he scope of its power of inquiry ... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." (5) In Watkins v. United States, the Court described the breadth of the power of inquiry: "The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes." (6) The Court went on to emphasize that Congress's investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department. The investigative power, it stated, "comprehends probes into departments of the Federal Government to expose corruption, inefficiency, or waste." (7) "[T]he first Congresses," it continued, held "inquiries dealing with suspected corruption or mismanagement of government officials" (8) and subsequently, in a series of decisions, "[t]he court recognized the danger to effective and honest conduct of the Government if the legislative power to probe corruption in the Executive Branch were unduly hampered." (9) Accordingly, the Court stated, it recognizes "the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government." (10)

The breadth of a jurisdictional committee's investigative authority may be seen in the two seminal Supreme Court decisions emanating from the Teapot Dome inquiries of the mid-1920's, both involving, directly and indirectly, the Department of Justice. As part of its investigation, the Senate select committee issued a subpoena for the testimony of Mally S. Daugherty, the brother of the Attorney General. After Daugherty failed to respond to the subpoena, the Senate sent its Deputy Sergeant at Arms to take him into custody and bring him before the Senate. Daugherty petitioned in federal court for a writ of habeas corpus arguing that the Senate in its investigation had exceeded its constitutional powers. The case ultimately reached the Supreme Court, where, in a landmark decision, McGrain v. Daugherty, (11) the Court upheld the Senate's authority to investigate charges concerning the Department:
   [T]he subject to be investigated was the administration of the
   Department of Justice--whether its functions were being properly
   discharged or were being neglected or misdirected, and particularly
   whether the Attorney General and his assistants were performing or
   neglecting their duties in respect of the institution and
   prosecution of proceedings to punish crimes and enforce appropriate
   remedies against the wrongdoers--specific instances of alleged
   neglect being recited. Plainly the subject was one on which
   legislation could be had and would be materially aided by the
   information which the investigation was calculated to elicit. This
   becomes manifest when it is reflected that the functions of the
   Department of Justice, the powers and duties of the Attorney
   General and the duties of his assistants, are all subject to
   congressional legislation, and that the department is maintained
   and its activities are carried on under such appropriations as in
   the judgment of Congress are needed from year to year. (12)

The Court thus underlined that the Department of Justice, like all other executive departments and agencies, is a creature of the Congress and subject to its plenary legislative and oversight authority.

In another Teapot Dome case that reached the Supreme Court, Sinclair v. United States, (13) a different witness at the congressional hearings refused to provide answers, and was prosecuted for contempt of Congress. The witness had noted that a lawsuit had been commenced between the government and the Mammoth Oil Company, and declared, "I shall reserve any evidence I may be able to give for those courts ... and shall respectfully decline to answer any questions propounded by your committee." (14) The Supreme Court upheld the witness' conviction for contempt of Congress. The Court considered and rejected in unequivocal terms the witness' contention that the pendency of lawsuits provided an excuse for withholding information. Neither the laws directing that such lawsuits be instituted, nor the lawsuits themselves, "operated to divest the Senate, or the committee, of power further to investigate the actual administration of the land laws." (15) The Court further explained: "It may be conceded that Congress is without authority to compel disclosure for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through its committees to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits." (16) The Sinclair ruling inferentially indicates that the Department's oft-proffered distinction between open and closed cases has little weight.

(4) McGrain v. Daugherty, 273 U.S. 135 (1927).

(5) 421 U.S. at 504, n. 15 (quoting Barenblatt v. United States, 360 U.S. 109, 111).

(6) 354 U.S. 178, 187 (1957).

(7) Id.

(8) Id. at 182.

(9) Id. at 194-195.

(10) Id. at 200 n. 33.

(11) 273 U.S. 135 (1927).

(12) 273 U.S. at 177-78.

(13) 279 U.S. 263 (1929).

(14) Id. at 290.

(15) Id. at 295.

(16) Id.

Morton Rosenberg

Specialist in American Public Law

American Law Division
COPYRIGHT 2007 Congressional Research Service (CRS) Reports and Issue Briefs
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Title Annotation:Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and Practice
Author:Rosenberg, Morton
Publication:Congressional Research Service (CRS) Reports and Issue Briefs
Geographic Code:1USA
Date:Oct 1, 2007
Previous Article:Introduction.
Next Article:Illustrative investigations and case law.

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