To receive notification that Congress plans to open an investigation into you or your company would be unsettling, to say the least. That’s why you should do your best to prepare. In this article, Samuel Dewey explains the authority under which Congress investigates and how the process is likely to unfold.
The first two questions that come to mind when considering what happens during a congressional investigation are related to authority and procedure. Does Congress have the power to conduct an investigation, and if so, under what rules must they operate?
The answer to the first question—does Congress have the authority to investigate? — is usually yes, they do. The Constitution gives Congress the authority to make laws, and the U.S. Supreme Court has ruled that the power of inquiry is a necessary part of making laws. The idea being that Congress cannot make appropriate laws if they are note given broad authority to conduct investigations to gather information that could inform perspective legislation.
Former Chief Justice Earl Warren said, “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. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.”
After he affirmed the right of Congress to investigate broadly, Chief Justice Warren illuminated the few limitations of Congress’s power, saying: “But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.”
So, generally, yes, Congress can open an investigation if they can make the case that doing so falls within the function of gathering information needed to create Federal laws. Given the vast scope of current federal jurisdiction and the lack of a tight “nexus” requirement between the investigation and the potential legislation—Congress almost always has jurisdiction.
Regarding the question of what rules Congress must follow when opening an investigation, that depends on several factors. The U.S. House of Representatives and U.S. Senate must follow the Constitution and the few applicable statutes. They also must follow their own rules. Each of these bodies delegates the power to investigate to its various Committees. Each Committee, in turn, adopts its own rules. Committees too must in turn follow their own rules. Finally, all of the above is subject to a rich “common law” gloss.
If you receive notification that either House of Congress will investigate you or your company— assume they have the authority to do so until told otherwise by counsel with expertise in the field of Congressional investigations. Next, review the rules of the specific congressional committee making the requests to understand the process that will follow. Finally, obtain experienced counsel—quickly. Congress’s agenda is set in large part by the media, so investigative matters can unfold much more quickly than in Executive Branch investigations or judicial proceedings.
About Samuel Dewey
Samuel Dewey is a successful lawyer and former Senior Counsel to the US House of Representatives Financial Services Committee and Chief Investigator and Counsel to the US Senate Special Committee on Aging. Mr. Dewey specializes in: (1) white-collar investigations, compliance, and litigation; (2) regulatory compliance and litigation; and (3) complex public policy matters. Within these fields, Mr. Dewey is considered an expert in Congressional investigations and attendant matters. Mr. Dewey has a BA in Political Science, a JD from Harvard, and is admitted to practice law in Washington, DC, and Maryland.
