The Rules of Congressional Investigations and Trump’s Growing Russia Problem

This afternoon, Attorney General Jeff Sessions recused himself from investigations “related in any way to the campaigns for president of the United States.” The decision follows a report from The Washington Post late yesterday that Sessions spoke twice last year with the Russian Ambassador to the United States Sergey Kislyak yet failed to disclose the contacts when asked during his Senate confirmation process. The Wall Street Journal further reported that “U.S. investigators have examined contacts Attorney General Jeff Sessions had with Russian officials during the time he was advising Donald Trump’s presidential campaign.”

Those revelations lead to a groundswell of calls for Attorney General Sessions to recuse himself from any executive branch investigation involving the Trump campaign and its ties to Russia and for the appointment of an independent Special Counsel to investigate the matter. As Helen previously wrote, recusal enforcement is primarily a matter of political pressure and not actual rules or law. Here, that pressure proved irresistible.

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This all comes mere days after reports of the White House having improper contacts with the FBI on the subject of the investigation and the FBI’s refusal to speak to reporters in order to counter a New York Times story reporting that Trump campaign officials had “repeated” contacts with Russian intelligence during the years leading up to the election. While the FBI declined to carry the White House’s water, other actors related to the investigation proved more malleable; reportedly CIA Director Mike Pompeo, HPSCI Chair Devin Nunes, and SSCI Chair Richard Burr all spoke to reporters at White House behest to try to kill the damaging story.

Chairman Burr’s involvement may prove most consequential, since the SSCI has undertaken what, to date, has been the most credible and thorough review of the Trump-Russia connection. Yesterday, Nunes and HPSCI Vice Chairman Adam Schiff announced their committee would also proceed with an investigation.

On Monday, in response to the many swirling allegations and the need for a serious inquiry, Susan and Ben called for a select committee to investigate Russian interference in the election and possible Trump campaign ties to Russia. In their judgment, a select congressional committee is the most feasible and best equipped mechanism to successfully and independently investigate.

Amidst a lot of talk about the multitude of House and Senate committees and congressional investigations, it may be helpful to examine where Congress derives investigative authority, how it procedurally sets up committees and vests them with investigative authority, and the major investigative tools and enforcement mechanisms at its disposal. Below is an overview of the elements of congressional investigations that might be implicated by current and future inquiries into “the Russia Connection.”

[This overview post relies heavily on the comprehensive Congressional Oversight Manual, which was prepared by the Congressional Research Service and last updated in 2014. Readers interested in a deeper dive on the issues here, or on elements of congressional investigations that are unlikely to arise in the current context, will likely find that resource useful.]

Congressional Investigative Authority and Committee Creation

The initial question is twofold: first, why Congress is able to undertake this kind of investigation in the first place and second, how it goes about creating various types of investigative committees.

Congress has extensive constitutional authority to conduct oversight and investigations. The Supreme Court has found Congress’s power of investigation and inquiries implied in its express power to legislate, structural responsibility to provide a check and balance on the executive, and procedural responsibility for impeachment and removal from office. In other words, Congress cannot discharge its constitutional duty effectively without the ability to investigate.

Congressional investigation must be for a legislative purpose. As long as an investigation might lead to legislation (say, sanctions on a foreign nation) or to congressional exercise of another valid constitutional function (say, removal from office), Congress has the constitutional power to investigate. But it is important to keep congressional investigatory ends separate from executive investigatory ends: congressional investigations can bring information into the public and can lead to legislation or other action, but do not result in criminal punishment. Only the executive branch can bring criminal charges against individuals, though a congressional investigation can contribute to a Department of Justice decision to bring charges.

Each house may conduct oversight as a body, but most often delegates specific oversight functions to various standing and specialized committees. Each house can create committees and subcommittees and vest them with particular jurisdiction. Typically, those committees have investigatory authority over the subject matter under their jurisdiction. The SSCI, for example, is investigating matters related to Trump and Russia that already fall within its existing jurisdiction.

In addition to authority to create standing committees and subcommittees to perform oversight functions, both houses of Congress may create select committees to perform oversight that is outside the jurisdiction of any one standing committee. This is the investigative body Ben and Susan propose. Because the issues at stake exceed the jurisdiction of any one committee—including the select intelligence committees—and have exceptional resource needs, an additional select committee is necessary and justified under Senate and House rules. Select committees are typically formed through the introduction of a resolution—that is, they usually need majority support but don’t require legislation that is subject to a presidential veto. This is a crucial difference from commissions formed by statute, which, in the case of an investigation into Trump and Russia, would likely need to be passed with a veto-proof majority.

House and Senate rules dictate the jurisdiction of standing committees, but resolutions can give particular jurisdictional authority for special or non-permanent select committees.

While for structural and political reasons the Senate is the more likely vehicle for a select committee to investigate the Trump-Russia issues, joint House and Senate committees are permitted. Furthermore, although select committees in the House are normally formed through the introduction of a resolution, Speaker Paul Ryan, “with the approval of the House, may appoint special ad hoc oversight committees for the purpose of reviewing specific matters within the jurisdiction of two or more standing committees.” So any impediments to the House participating in an investigation are purely matters of political will.

The structure of these committees is flexible—it might include anything from a specially creating subcommittee, to a temporary select committee, or a task force within a standing committee—and they are typically authorized for a temporary period or for the duration of the Congress. This flexibility allows investigative committees to be structured to best succeed in the investigative purpose. Furthermore, these committees can be staffed in a number of ways and can draw on expertise both from other parts of the government or the private sector. This flexibility would be especially important in the context of an investigation into Trump and Russia because of the various types of expertise which may be needed—for example, experts in financial crimes intelligence or Russian tradecraft.

Investigative Tools and Enforcement

In order for a congressional investigation to be effective, it requires tools in order to compel the production of information and enforce its orders.

Inherent in Congress’s oversight and investigative powers is the power to issue enforceable subpoenas to compel testimony and production of documents. This authority must be specifically delegated to committees. Both houses currently delegate that authority to all standing and subcommittees, but any newly created select committee would need to be delegated that authority by resolution. Committees, including select committees, are typically empowered to create their own procedural rules for issuing subpoenas—most often by majority vote, but sometimes the authority is granted to a single chairperson. A subpoena issued by a committee delegated with congressional subpoena power has the same legal force as if it were issued by the whole house of Congress. So failure to appear can lead to contempt.

There are few limitations on congressional subpoena power. Broadly speaking, the committee must have congressionally authorized subject matter jurisdiction, the investigation must have a “valid legislative purpose” (though Congress need not specify what it plans to do as a result of the investigation), and it may inquire only about information generally relevant to its jurisdiction. Again, this is all largely a question of delegation by resolution: as long as the resolution establishing the committee authorizes sufficiently broad jurisdiction, the committee’s subpoena power will be likewise broad.

Another investigatory tool that can be specifically authorized is staff depositions. There are a number of advantages to staff depositions, as noted in the Congressional Oversight Manual, that might be particularly relevant here. For instance, staff depositions allow the committee to obtain sworn testimony confidentially, which might improve the accuracy and allow the committee to verify any particularly inflammatory testimony before that testimony becomes public. Furthermore, lying in staff depositions is a felony under 18 U.S.C. § 1001.

Just as the Supreme Court has long recognized congressional subpoena power, so too has it upheld the enforcement power of contempt. If a witness refuses to comply with a subpoena to either produce documents or testify, Congress has a few options: inherent contempt authority, the criminal contempt statute, and various civil enforcement mechanisms. Under the inherent contempt authority, the House or Senate could call the witness and try her for contempt before the entire chamber. This obviously disruptive procedure used to be quite common, but hasn’t been used in over 75 years.

Instead, Congress more often relies on the criminal contempt statute at 2 U.S.C. § 192, which makes it a misdemeanor to refuse to testify or produce documents. Under 2 U.S.C. § 194, the committee and full chamber of Congress must certify the contempt referral, which is sent to a U.S. Attorney “whose duty it shall be to bring the matter before the grand jury for its action.” Notably, a criminal contempt charge was certified against Attorney General Eric Holder, but the U.S. Attorney refused to bring it before the grand jury. It isn’t clear that Congress can force U.S. Attorneys to do its bidding in this way, so if a U.S. Attorney refuses, Congress might have to fall back on its inherent contempt authority.

Under a provision of the 1978 Ethics in Government Act, the Senate has another contempt mechanism: civil enforcement. The Senate can authorize the Senate Office of Legal Counsel to bring an enforcement action in federal district court. If the court orders compliance with the subpoena and the witness refuses, they are then subject to contempt of court and imprisonment. This procedure cannot, however, be used against executive branch officers.

Furthermore, if a witness lies in congressional testimony, she may be subject to criminal prosecution under either the perjury statute at 18 U.S.C. § 1621 (if the statement is in sworn testimony) or 18 U.S.C. § 1001 (if in either sworn or unsworn testimony). Interestingly, the perjury statute is both harder to prove because it requires a willful misrepresentation, while § 1001 criminalizes either willful or knowing misrepresentations; it also comes with a lighter maximum penalty. So § 1001 is the most likely enforcement mechanism. While many have pointed to Attorney General Sessions’ sworn statements to Congress as evidence he committed perjury, it is overwhelmingly unlikely he would actually face charges. Because of the relatively high bar in proving intent, any degree of ambiguity in the question undercuts essential elements even in cases where an individual is clearly not being honest and forthright by any ordinary definition of the terms.

The Fifth Amendment and Immunity Power

The congressional power to issue subpoenas—backed by contempt enforcement—and hear sworn testimony also implicates the right of individual witnesses. Witnesses in congressional investigations have a Fifth Amendment privilege against self-incrimination. A subpoenaed witness may appear and invoke their privilege, refusing to answer particular questions.

If a witness invokes the privilege, Congress has the statutory authority to offer immunity and to seek a court order compelling the witness to testify. Under 18 U.S.C. § 6005, the district court will issue an order requested from a committee only if two-thirds of the members of the committee have voted for it. (If the request is issued by either full house of Congress, only a majority vote is needed.) If such an order is issued, 18 U.S.C. § 6002 mandates that “no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”

The ability to grant immunity is essential to the ability to gather information, but broad statutory immunity presents difficult political calculations as it severely impairs any ability to later prosecute the witness. Technically speaking, this “use immunity” means only that the testimony or evidence derived from the testimony may not be used against the witness in a subsequent prosecution, but the witness may still be prosecuted for any underlying crime on the basis of other evidence. Nevertheless, it imposes a high burden on prosecutors to prove that any evidence was not “directly or indirectly” derived from the testimony. As Susan and Ben noted in their piece, the Iran-Contra immunity grant famously undermined prosecutions of key officials. In high-profile and politically charged investigations then, the question to grant immunity is a highly sensitive one that is ordinarily done only where the committee determines that the testimony is absolutely necessary.

Presidential Communication and Executive Privilege

With an investigation possibly implicating the President and his senior advisers, another key issue is executive privilege. Under United States v. Nixon, the President is entitled to assert privilege over presidential communications—communications relating to certain sensitive presidential decisionmaking.

But the privilege is not absolute. It is limited to a narrow subcategory of presidential information relating to deliberations and decisionmaking, and not applicable broadly to any executive branch information. In Nixon, the Supreme Court held that if the presidential assertion of privilege was based on general confidentiality rather than a claim about specific military or diplomatic sensitivity of the materials, a subpoena in a criminal prosecution could defeat the privilege.

The privilege would not, however, apply to Trump’s actions before he became president. Insofar as the information or testimony subpoenaed related to the campaign, the privilege would not offer protection.

Information Access: Classified Materials and Statutory Constraints

Another salient issue to the kinds of investigations being contemplated into President Trump and Russia—which necessarily involves information gathered by the US intelligence community—is congressional access to classified information. An executive that wishes to obstruct an investigation into highly-sensitive matters might attempt to make it difficult for congressional staffs to access classified material. One of the reasons the SSCI investigation is currently the most advanced is because the staff already works in secure facilities and hold many of the necessary clearances (though some information is restricted even from them).

That said, Congress does have relatively broad authority to inspect classified information. Indeed, 50 U.S.C. § 3092 requires the Director of National Intelligence to keep the congressional intelligence committees fully informed of U.S. intelligence activities while protecting sensitive sources and methods.

Generally, to access classified information, one must be cleared, sign a nondisclosure agreement, and have a need to know the information. Members of Congress are not required to obtain security clearances—they are determined to be cleared as trustworthy by virtue of the fact of their election. So congresspersons, even those not on the intelligence committees, likewise may access classified information if they have a need to know—in other words, if it is within their jurisdiction or the scope of a proper legislative investigation. While it is true that the SSCI already has access to much of the sensitive intelligence information that seems to be the current focus of the investigation, the creation of a select committee with jurisdiction would likewise provide sufficient access.

However, in certain “extraordinary circumstances” involving information relating to covert actions the President may limit access to classified information to what is colloquially termed the “Gang of Eight.” Under 50 U.S.C. 3093 § (c)(2)

If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the congressional intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other member or members of the congressional leadership as may be included by the President.

The Gang of Eight members, of course, do not have the time or resources to personally review large volumes of information in the course of an investigation. In some circumstances, staffers can also be granted access because of their need to know even highly-sensitive materials in order for the committee to discharge its legislative function.

For more on congressional handling of classified information, see the Congressional Research Service report, Protection of Classified Information by Congress.

In additional to restrictions on classified information, Congress has at times limited its own access to certain other types of executive branch information. Notably for purposes of this investigation, 26 U.S.C. § 6103(f) specifies procedures for obtaining otherwise-confidential tax returns. While a handful of committees may ask for returns independently based on standing statutory authority, most committees, including select committees, must obtain authorization in resolutions. Per § 6103, the resolution must specify the return, the purpose for looking into it, and that the information cannot reasonably be obtained elsewhere. This may be an ongoing barrier to efficient investigation by a select committee, but it is nevertheless important that the resolution creating the committee grant broad jurisdiction at the outset.

So, Will Congress Investigate?

Congress has the necessary tools and historical precedent to conduct this investigation. The questions at issue here not only fall within Congress’s constitutional authority, but arguably implicate a constitutional duty to investigate.

High-minded rhetoric aside, as with Sessions decision to recuse himself, in practical terms the calculations are political. As Brooking’s Molly Reynolds noted in a recent podcast with Susan, Congress typically undertakes serious investigation of a President of its own party only when the political costs of not investigating are higher than those of investigating. Senator Rand Paul was remarkably frank (if unadmirable) on the matter in saying that it “makes no sense” to have “Republicans investigat[ing] Republicans.” And yet, principled conservatives— Senators McCain, Graham, and Collins among others—have held fast in calling on their colleagues to place country before party and undertake a credible independent inquiry.