ArtI.S8.C18.7.7 Constitutional Limits of Congress's Investigation and Oversight Powers

Article I, Section 8, Clause 18:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Congress’s investigatory powers are limited by the constitutional protections accorded to individuals under the Bill of Rights. In Watkins v. United States, the Supreme Court observed that:

It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action.1

Because a congressional inquiry is part of “lawmaking,” a congressional committee engaged in an investigation generally must observe applicable constitutional restrictions and respect validly asserted constitutionally-based privileges.2 Although not all provisions of the Bill of Rights are directly relevant to a congressional investigation, it is apparent that many are, with the First and Fifth Amendments providing the principle limitations on Congress’s exercise of it powers.3

The Court has clearly established that First Amendment protections apply to congressional investigations.4 Compelling a witness to testify “against his will, about his beliefs, expressions, or associations is a measure of governmental interference” with the witness’s free speech rights.5 However, the actual application of these protections in a congressional investigation is an “arduous and delicate task” that involves balancing Congress’s interest in obtaining information with the witnesses’ interest in personal privacy.6 In Watkins, the Court made clear that in considering a First Amendment challenge in a congressional inquiry “[t]he critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.” 7 In short, the extent to which the First Amendment can be used as a shield against a congressional inquiry depends on the strength of the committee’s legislative purpose.8

This balancing test was put to use in Barenblatt v. United States.9 The opinion, along with subsequent consistent decisions, suggests that a First Amendment defense to compulsory congressional process has generally had little success.10 In Barenblatt, a college professor had been convicted of criminal contempt of Congress for his refusal to answer, on First Amendment grounds, questions before a HUAC subcommittee relating to his Communist Party involvement.11 The Court disagreed with the professor’s position, reasoning that the First Amendment does “not afford a witness the right to resist inquiry in all circumstances.” 12 Instead, the Court reasoned, “[w]here First Amendment rights are asserted to bar government interrogation resolution of the issue always involved a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.” After determining that Congress has “wide power to legislate in the field of Communist activity in this Country,” the Court characterized the government interest at play as one of “self-preservation” as one of the central tenets of the Communist Party was the violent overthrow of the American government.13 In contrast, the opinion made little mention of the witnesses’ First Amendment rights, but in weighing the competing interests, the Barenblatt opinion concluded that the balance “must be struck in favor of the government.” 14

Witnesses also have a right to invoke the Fifth Amendment privilege against self-incrimination during a congressional investigation.15 The privilege’s applicability was explicitly established in a group of cases released on the same day in 1955.16 Each involved a witness who had refused to answer questions before the HUAC by relying on their Fifth Amendment privilege.17 In each case, the privilege was rejected by the HUAC and the witness later prosecuted for criminal contempt of Congress. The Court overturned all three convictions, simultaneously establishing important foundational principles for the scope of the privilege in a congressional proceeding as well as standards for invocation and waiver of the privilege.18

In pertinent part, the Fifth Amendment establishes that “no person . . . shall be compelled in any criminal case to be a witness against himself . . . ” 19 Although the Amendment’s protection expressly refers to “criminal cases[s],” the Court has nevertheless found the privilege against self-incrimination to be available to a witness appearing before a congressional committee.20 Once properly invoked, the privilege protects a witness from being compelled to provide Congress with statements that may directly or indirectly furnish evidence which could be used against the witness in a subsequent criminal prosecution or from being punished for their refusal to respond to committee inquiries.21 The Court has recognized the potential consequences of such a broad protection, but has repeatedly confirmed that the Fifth Amendment must be regarded as “a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions.” 22

In Quinn v. United States, the Court adopted a relatively lenient standard for determining whether the Fifth Amendment protection against self-incrimination was properly invoked during a congressional proceeding.23 That opinion held that invocation “does not require any special combination of words.” 24 Nor is any “ritualistic formula or talismanic phrase” essential to invoke the privilege.25 Rather, “[i]f an objection to a question is made in any language that a committee may reasonably be expected to understand as an attempt to invoke the privilege, it must be respected [ ] by the committee . . . .” 26 So long as the witness’s statement places the committee “on notice” of a potential claim of privilege, the invocation has been considered adequate.27

The Court’s approach to invocation of the privilege in an investigative proceeding stems largely from the strong presumption against waiver of the privilege. This presumption was apparent in Emspak v. United States where after invoking the Fifth Amendment in response to questions from a committee relating to his alleged communist associations and affiliations, the witness was directly asked: “Is it your feeling that to reveal your knowledge . . . would subject you to criminal prosecution?” 28 The witness responded “No. I don’t think this committee has a right to pry into my associations.” 29 The government argued that the witness’s assertion that he did not believe his response would lead to potential criminal liability constituted a waiver of the Fifth Amendment privilege, but the Court disagreed, noting that the witness’s statement was not “sufficiently unambiguous to warrant finding a waiver . . . ” 30 To hold otherwise, the Court concluded, would contravene “oft repeated admonition that the courts must ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.” 31

Finally, the requirements of the Due Process Clause of the Fifth Amendment,32 in conjunction with the required elements of the criminal contempt statute,33 limit Congress’s ability to enforce compliance with subpoenas through contempt. Perhaps the leading case on what is known as the “pertinence” requirement is Watkins v. United States.34 The Watkins opinion recognized the extraordinary breadth of the investigatory power, but also made clear that the power must accommodate the constitutionally guaranteed rights and privileges of witnesses, including those stemming from the Due Process Clause. In Watkins, the witness had been convicted of criminal contempt of Congress after refusing to answer questions before the HUAC on the grounds that the questions asked related to matters “outside the proper scope of [the] committee’s activities.” 35 In overturning the conviction, the Court noted that criminal defendants must be accorded the right, stemming from the Due Process Clause, to have adequate knowledge and notice— “through a sufficiently precise statute” —of the “standard of criminality” for any offense.36 Under the criminal contempt statute, that standard of criminality includes the determination that the witness has refused to give an answer “pertinent to the question under inquiry.” 37 Therefore, the witness must have knowledge of what subjects are pertinent to the committee inquiry with the degree of “explicitness and clarity that the Due Process Clause requires.” 38 The Court found the HUAC authorizing resolution, the statements for the record made by the Chair and other HUAC members, and the “nature of the proceedings” all failed to establish with adequate clarity the scope of the matter under inquiry and the pertinence of the questions propounded thereto.39 In such a scenario, the Court found that “fundamental fairness demands that no witness be compelled to make such a determination with so little guidance.” 40

Watkins v. United States, 345 U.S. 178, 187–88 (1957) ( “Congress, must exercises its own powers, including the power to investigate, subject to the limitations placed by the Constitution on governmental action.” ). back
Id. at 197 ( “While it is true that there is no statute to be reviewed, and that an investigation is not a law, nevertheless an investigation is part of lawmaking. It is justified solely as an adjunct to the legislative process.” ). back
Due in part to the unique nature of congressional proceedings, not all provisions of the Bill of Rights have been judicially determined to be applicable in the committee investigation context. For example, the D.C. Circuit has held that because of the “investigative” rather than “criminal” nature of committee hearings, the Sixth Amendment’s individual criminal procedural guarantees; including a party’s right to “present evidence on one’s own behalf and to confront and cross examine one’s accusers,” do not apply in the congressional investigation setting. United States v. Fort, 443 F.2d 670, 678–81 (D.C Cir. 1970). back
Watkins, 345 U.S. at 197 ( “Clearly, an investigation is subject to the command that the Congress shall make no law abridging freedom of speech or press or assembly.” ). back
Id. back
Id. at 198. back
Id. back
See Barenblatt, 360 U.S. at 127 ( “The first question is whether this investigation was related to a valid legislative purpose, for Congress may not constitutionally require an individual to disclose his political relationships or other private affairs except in relation to such a purpose.” ). back
Id. at 126–27. back
Id. at 134; Wilkinson v. United States, 365 U.S. 399, 414–15 (1961) (following Barenblatt and concluding that the subcommittee had an “overbalancing interest” because it “had reasonable ground to suppose that the petitioner was an active Communist Party member, and that as such he possessed information that would substantially aid it in its legislative investigation” ). back
Barenblatt, 360 U.S. at 113–14. back
Id. at 126. back
Id. at 144. back
Id. at 134 “(We conclude that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and that therefore the provisions of the First Amendment have not been offended.” ). back
See Quinn, 349 U.S. at 160–62 ( “Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here.” ). back
Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955); Bart v. United States, 349 U.S. 219 (1955). back
Quinn, 349 U.S. at 157–58; Emspak, 349 U.S. at 192; Bart, 349 U.S. at 219. back
Quinn, 349 U.S. at 170; Emspak, 349 U.S. at 202; Bart, 349 U.S. at 223. back
U.S. Const. amend. V. back
See Quinn, 349 U.S. at 160–62. back
The Court articulated the breadth of the protection in Emspak, holding:

The protection of the Self-Incrimination Clause is not limited to admissions that ‘would subject [a witness] to criminal prosecution'; for this Court has repeatedly held that ‘Whether such admissions by themselves would support a conviction under a criminal statute is immaterial’ and that the privilege also extends to admissions that may only tend to incriminate . . . .'’ To sustain the privilege,’ this Court has recently held, ‘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.

Emspak, 349 U.S. at 197–98.

Quinn, 349 U.S. at 162 (citing Twining v. New Jersey, 211 U. S. 78, 91 (1908). back
Id. at 162–65. back
Id. at 162. back
Emspak, 349 U.S. at 194. back
Quinn, 349 U.S. at 163. back
Moreover, the Court has stated that where a congressional committee is uncertain whether the witness is in fact invoking the privilege against self-incrimination or instead claiming some other basis for declining to answer, the committee should direct the witness to specify the objection. Id. at 167–70. back
Emspak, 349 U.S. at 195. back
Id. at 196. back
Id. at 198. back
Id. (citing Johnson v. Zerbst, 304 U. S. 458, 464 (1938)). back
U.S. Const. amend. V. back
The Court has alluded to two separate pertinence requirements. Jurisdictional pertinence, which relates to whether the subject under inquiry is pertinent to the committee’s jurisdiction, see Barry v. United States, 279 U.S. 597, 613 (1929) ( “When evidence is taken by a committee, the pertinency of questions propounded must be determined by reference to the scope of the authority vested in the committee by the Senate.” ) “and statutory pertinence, embodied” in the terms of the criminal contempt of Congress statute. See Watkins, 354 U.S. at 206. The Court has suggested that the two principles are “not wholly different . . . nor unrelated . . . .” Id. back
Id. at 208–16 (discussing the “vice of vagueness” and the principle that a witness “is entitled to have knowledge of the subject to which the interrogation is deemed pertinent.” ). back
Id. at 185. back
Id. at 208. back
2 U.S.C. § 192 (making the refusal to “answer any question pertinent to the question under inquiry” a misdemeanor offense). back
Watkins, 345 U.S. at 209. back
Id. at 209–15. back
Id. at 214. back