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November 13, 2019 |
Navigating the Murky Waters of Impeachment: FAQs

Click for PDF Gibson Dunn’s Congressional Investigations team has been following the impeachment inquiry in the U.S. House of Representatives and has developed a set of questions and answers designed to help sort out the many competing claims being made on both sides of the aisle, by media, and by various commentators. We hope that you find this document helpful and invite you to let us know of other questions you have. Since Speaker Nancy Pelosi’s September 24, 2019 announcement of a formal impeachment inquiry,[1] a myriad of uncertainties have emerged and continue to unspool as witnesses parade through the House Permanent Select Committee on Intelligence. We hear daily summaries of testimony and competing takes on its significance, but it’s not easy to discern how all of the developing information fits within the impeachment process. Perhaps the most important question is the macro one. As the Trump Administration and House leadership spar over whether proper procedures are being followed and whether the Administration should cooperate with the inquiry, it is difficult to determine, “who is right?” The Trump Administration has vowed to fight all Congressional subpoenas and refused to cooperate with the inquiry. On October 8, White House Counsel, Pat A. Cipollone, sent a letter to Speaker Pelosi and several committee chairs, arguing that the inquiry is “constitutionally invalid and a violation of due process.”[2] Cipollone pointed to the secretive nature of the proceedings and argued that the inquiry was fueled by a partisan desire to “undo the democratic results of the last election” and “influence the next election.”[3] In addition, he emphasized that a mere “announcement” was insufficient to authorize an official inquiry because the full House of Representatives failed to take a vote.[4] Meanwhile, a legal action involving the authority of the House to access grand jury material in the Mueller Report teed up a key issue in the impeachment debate. On October 25, the District Court for the District of Columbia found that a House resolution was not necessary to initiate an impeachment inquiry.[5] In support of this conclusion, Chief Judge Beryl A. Howell cited multiple impeachment proceedings (and impeachments) of federal judges without a vote, as well as the absence of a vote for four months into President Clinton’s impeachment inquiry.[6] The court also noted that it ultimately “lacks authority to require the House to pass a resolution tasking a committee with conducting an impeachment inquiry.”[7] Shortly thereafter, on October 29, the Court of Appeals for the District of Columbia Circuit placed a stay on the decision.[8] Two days later, following a month of closed-door discussions, the House passed a resolution to initiate the public phase of the impeachment inquiry.[9] The resolution authorizes the House Intelligence Committee to conduct open hearings and grants the ranking Republican member on the committee the ability (with the concurrence of the chair) to issue subpoenas as well.[10] In announcing the initial draft of the resolution, Speaker Pelosi underscored that an affirmative vote on the resolution diminishes the ability for the Trump Administration to ignore subpoenas, withhold documents, and prevent witness testimony. Yet, while the resolution establishes a procedural outline for committee hearings, much ambiguity remains. The resolution directs committees “to continue their ongoing investigations as part of the existing House of Representatives inquiry.”[11] There is no explicit grant of due process rights,[12] thereby leaving the Judiciary Committee to develop procedures “not inconsistent” with existing committee or House rules. As discussed herein, impeachment proceedings are both complicated and rare, so there are seldom definitive answers to questions. In the sections that follow, we provide a series of questions and answers regarding impeachment such as: What does the U.S. Constitution require? What were the procedures used in past impeachments? Is there a difference between the impeachment and oversight powers of the House? Is impeachment a criminal proceeding? What is the role and effect of executive privilege in impeachment? I. FAQs

A. What Is Impeachment?

Impeachment is a formal charge of misconduct made against the holder of a public office. Impeachment is the first step in a two-step process for the House and Senate to remove federal officials. The members of the House investigate allegations of misconduct. A majority is required to charge the official by authorizing articles of impeachment. When a president is impeached, the Chief Justice presides over the trial in the Senate. A two-thirds majority vote of the Senate is required to remove an official.[13]

B. Is Impeachment A Novel Idea?

In short, no. Impeachment, as an American procedure, was borrowed from Great Britain, as Alexander Hamilton noted in 1788.[14] Great Britain’s use of impeachment as a process to remove government officials dates as far back as the late fourteenth century.[15] The first American impeachment was that of William Blount in 1797 for conspiring to assist Britain in capturing Spanish territory.[16] There have been nineteen individuals impeached by a vote of the House of Representatives since the country’s founding.[17] Of those nineteen, eight have been convicted by a trial in the Senate.[18] The most recent impeachment by the House occurred in March of 2010 with the impeachment of Judge G. Thomas Porteous, Jr. of the Eastern District of Louisiana.[19] He was subsequently convicted by the Senate and removed from his position.[20]

C. What Does The Constitution Say About The Impeachment Process?

The Constitution allocates the impeachment power to the legislative branch, broadly states the types of offenses that warrant removing a president from office, and makes clear that a president can face a criminal trial after the Senate convicts him. The Constitution gives only a skeletal framework for impeachment proceedings. Many of the missing details may be surprising. For example, the Constitution is silent about:
  • How the House of Representatives presents its case to the Senate;
  • Whether all Senators must be present to hear all of the evidence against the president;
  • Whether the president must be present for the proceeding;[21]
  • Whether the proceeding must be open to the public;
  • What rules of evidence apply to the proceeding;
  • Whether the president has a constitutional right to counsel;
  • What standard of proof the House should use to charge and what standard the Senate should use to convict.
The answers to these questions are left to Congress.[22] Below is a list of constitutional requirements and the relevant constitutional provisions.

i. Constitutional Requirements

  1. The impeachment process is split between the two chambers of Congress. The House of Representatives impeaches the president, meaning the House investigates. The House then authorizes the articles of impeachment, which are the charges against the president.[23] The Senate tries the case, meaning it decides whether to acquit or convict the president.[24]
  2. The House of Representatives and the Senate each create their own rules for the investigation and trial.[25] This means that the Constitution does not require an impeachment proceeding to be exactly the same as a criminal trial. There is also very limited judicial review of impeachment proceeding procedures; federal courts may decline to resolve questions about impeachment proceedings.[26]
  3. The Chief Justice shall preside over the Senate trial of a president.[27]
  4. Two-thirds of the Senate must vote to convict the president.[28] If convicted, the president is removed from office.[29] The Senate can also disqualify a president from holding “any Office of honor, Trust, or Profit under the United States.”[30]
  5. A president may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.”[31] Treason is the only crime defined in the Constitution: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”[32]
  6. An impeachment proceeding does not require a jury trial.[33]
  7. If a president or other official is removed from office by the Senate, he can then be subject to criminal proceedings: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”[34]
  8. The Twenty-Fifth Amendment gives an alternative mechanism to remove the president from office. It requires two-thirds of both houses of Congress to vote to remove him.[35]

D. What Did The Framers Say About The Grounds For Impeachment?

As noted above, the Constitution specifically states that “Treason, Bribery, or other high Crimes and Misdemeanors” are grounds for impeachment. Looking to the debates during the ratification of the Constitution provides a little context as to what that phrase actually means. Impeachment first appeared to make its way into the Constitutional text via language proposed by the Virginia Plan, written by James Madison and argued for by George Mason.[36] The Virginia Plan stated that impeachment would be for “Malpractice and Neglect of Duty.”[37] This language was revised and replaced with “Treason and Bribery.” Fearing that treason and bribery would “not reach the many great and dangerous offences,” Mason advocated for impeachment to cover “Treason, Bribery, or Maladministration.”[38] However, Madison argued that the additional term was so vague that it would be “equivalent to a tenure during displeasure of the Senate.”[39] Thus, the Convention delegates ultimately compromised and revised the phrase to “Treason, Bribery, or Other High Crimes and Misdemeanors” though they did not further clarify it. According to the ratification debates, the most vocal delegates with respect to this power thought maladministration was too low of a bar and treason and bribery alone to be an incomplete list. Renowned English legal commentator William Blackstone, with whom the framers were very familiar, defined “high misdemeanors,” and the “first and principal” among such high misdemeanors was “the mal-administration of such high officers, as are in public trust and employment.”[40] Thus, one can intuit that the Framers did intend to include maladministration of office as at least part of the definition of “high Crimes and Misdemeanors.”

E. Is A House Resolution Needed To Start An Impeachment Inquiry?

The impeachment process in the House of Representatives is “usually initiated…when a Member submits a resolution through the hopper (in the same way that all House resolutions are submitted).”[41] However, not every impeachment process has begun with a floor vote on whether to open an impeachment inquiry. In fact, three relatively recent judicial impeachments—that of Harry E. Claiborne, Alcee Hastings, and Walter E. Nixon—were not initiated by a House resolution explicitly authorizing an impeachment inquiry.[42] Additionally, nowhere in the Constitutional provisions on impeachment does it mention a requirement that a resolution first be passed to authorize an official impeachment inquiry. A recent Congressional Research Service report notes that “ [i]n the past, House committees, under their general investigatory authority, have sometimes sought information and researched charges against officers prior to the adoption of a resolution to authorize an impeachment investigation.”[43] While precedent exists for an impeachment inquiry to begin with a House vote, there is no Constitutional provision requiring one, nor has the House, even recently, fully abided by this practice in all circumstances. Perhaps an argument can be made that judicial impeachments, such as those mentioned above, function differently from presidential impeachments—and that the latter requires a resolution to officially open an inquiry, or at least to authorize a committee to commence an impeachment (as opposed to a legislative) investigation. After all, the Judiciary Committee that has led investigations into impeachable judges has explicit authority over the judiciary that is not analogous to any committee’s jurisdiction over the president. Moreover, Congress has arguably established a separate process for initiation of judicial impeachment proceedings by authorizing the Judicial Conference to conduct investigations of misconduct by federal judges and, when the Conference determines “that consideration of impeachment may be warranted,” to refer such matters to the House for further proceedings. 28 U.S.C. § 355(b). By contrast, the two other presidential impeachment proceedings of the modern era—those of Presidents Clinton and Nixon—have had an official resolution voted on by the full House. And now the current proceedings have included such a vote, too. The Constitution does distinguish presidential impeachment proceedings from all others in that “[w]hen the President of the United States is tried, the Chief Justice shall preside.”[44] However, there is no indication that any other procedural distinctions were intended. Further, although the House impeachment proceeding against President Nixon ultimately included a House resolution, the Judiciary Committee “began an examination of the charges against the President under its general investigatory authority.”[45] The resolution that passed, which was reported by the House Rules Committee, provided for additional investigation authority.[46] Additionally, the past two presidential impeachment inquiries were the result of special prosecutor investigations—Archibald Cox in the case of Nixon and Ken Starr in the case of Clinton. In the current proceeding, the impeachment investigation was brought on by a whistleblower complaint and not the result of the report of a special prosecutor. In short, every past impeachment case appears to be unique in both scope and procedure; however, it does not seem that a House Resolution authorizing an impeachment investigation or inquiry is required. Impeachment proceedings are ill-defined in the Constitution and vary based on the circumstances surrounding it. This current one is no different.

F. When Does Congress Have The Power To Issue Subpoenas Pursuant To An Impeachment Inquiry?

Congress has been engaging in investigations and issuing subpoenas since the beginning of the Republic.[47] Its power to do so was first confirmed by the Supreme Court in the 1927 case McGrain v. Daugherty.  For the most part, the Constitution does not directly speak to the procedures or limits of Congressional authority in this space; instead, House and Senate rules primarily govern.  Courts have limited their own oversight of Congress by holding that they do not have authority to impose particular structures or procedures on Congress when Congress is within the bounds of its Constitutional duties and delegations.[48]

i. What Subpoenas Can Congress Constitutionally Issue?

Congress can issue subpoenas to assist with its constitutionally delegated powers: legislation and impeachment.[49]  Legislative subpoenas are by far the most common.  Congress’s legislative power (and thus its legislative power of investigation) is broad.[50] In McGrain, Congress subpoenaed bank records related to the then-Attorney General and his Department of Justice.  The Supreme Court concluded that the subpoena was valid because Congress’s “power of inquiry . . . is an essential and appropriate auxiliary to the legislative function.”[51]  The Court went on to explain that Congress could investigate and issue subpoenas on any subject for which “legislation could be had,” as long as the information requested would materially aid the legislation.[52]  This is the limitation placed on investigations (and thus subpoenas) that are conducted pursuant to Congress’s legislative power. Occasionally, in cases such as Mazars, courts are faced with subpoenas that may serve mixed purposes.  There, the House Committee on Oversight and Reform issued a subpoena to an accounting firm for records related to President Trump.  President Trump, challenging the subpoena, argued that it was not properly “legislative” because the Committee’s real purpose was to inquire about potentially impeachable offenses. The Mazars majority found that the subpoena was issued pursuant to the Committee’s authority to “legislate and conduct oversight regarding compliance with ethics laws and regulations,”[53] notwithstanding the potential implications of the subpoena for a potential impeachment.  After finding a valid legislative purpose, the majority ended their inquiry.[54] Judge Rao dissented vehemently from the majority’s approach in Mazars on the basis that the Oversight Committee’s true (or additional) aims were impeachment, not legislation.  Judge Rao argued that investigations targeting questions of impeachment cannot permissibly be authorized by Congress’s power to issue legislative subpoenas.[55] Here, she argued, any potential “legislative purpose” that might underlie the subpoena is dwarfed by the Committee’s purpose to investigate the president for impeachable offenses.[56] In a case such as Mazars, or even more so in a case where the president himself is subpoenaed, Rao highlights the importance of considering separation of powers principles when ruling on the legitimacy of such a subpoena.  To allow Congress to use its legislative power to issue a subpoena to the Executive Branch while seeking the subpoena to assist its impeachment inquiry could risk trampling on the constitutional distinction between those two separate grants of authority.  Judge Rao’s dissent is novel, as the Mazars majority points out, but time will show which perspective will ultimately prevail.

ii. When Do Congressional Committees Have Subpoena Power?

An additional limitation on all subpoenas issued by Congress comes from the House and Senate Rules.  When courts have evaluated the legitimacy of Congressional subpoenas, they have often looked to the rules and resolutions that authorized the investigation.  This inquiry is particularly relevant when a Congressional committee, as opposed to the entire House or Senate, is the body issuing subpoenas. In United States v. Rumely, for example, a House committee subpoenaed the names of people who had purchased certain types of books under resolution that authorized an investigation of “lobbying activities.”[57]  The Court ultimately held that the “sale of books” was not included in the authorization to investigate “lobbying activities.”[58] The court in Mazars recently took that same approach.  After finding that the subpoena had a proper legislative purpose, the Mazars majority asked whether the committee was authorized to issue the subpoena at all.  To analyze the Committee’s power, the D.C. Circuit looked to House Rules to determine “whether the committee [was] authorized” by the full House “to exact the information” it sought.[59] The court noted that the House rules broadly authorize the Oversight Committee to conduct investigations to “review and study on a continuing basis the operation of Government activities at all levels, including the Executive Office of the President.”[60]  This includes the power to issue subpoenas to “carry[] out any of [its] functions and duties.”[61]  When such authority is built into a committee’s creation, the committee does not need additional authorization from the full House to carry out its mandate. While most committees have some legislative authority (and therefore the ability to issue legislative subpoenas), recent events have raised a somewhat novel question: when and how are Congressional committees authorized to issue impeachment-related subpoenas? Some have opined that the entire House must vote to specifically provide a committee with impeachment-related investigative powers.  By contrast, the U.S. District Court for the District of Columbia recently ruled that all “investigating committees” of the House have inherent authority by their very creation to conduct investigations, even where the committee develops and reports facts that may set an impeachment into motion.[62] Now that the full House has voted to authorize the impeachment-related investigations of several committees, it is clear that those committees can properly issue subpoenas under their legislative or impeachment authority moving forward.  But what about the subpoenas issued prior to the recent House vote?  The recent D.C. district court ruling, for one, did not provide guidance on the legitimacy of subpoenas issued by “investigative committees” prior to impeachment inquiry authorization, nor did it pass on the authority of non-investigative committees to issue impeachment-related subpoenas.  We are left asking: do the previously issued subpoenas need to have a “valid legislative purpose” to make them constitutionally permissible? These are novel questions.  The Supreme Court has yet to rule on these issues, making them ripe for continued debate and litigation.

G. Can Congress Subpoena A Sitting President? And, If So, Must The President Comply?

Congress has investigated sitting presidents on several occasions, both for actions taken before the president in question had taken office and for actions taken by the president in his official role. In 1832, the House vested a select committee with subpoena power to investigate whether the President had knowledge of a contract that the Secretary of War had allegedly awarded fraudulently.[63]  In 1946, the Senate investigated whether the President had “provoked” Japan into attacking the United States.[64]  And, finally, the well-known Watergate Investigation centered on President Nixon.[65] Some presidents, such as President Reagan when he was investigated for his role in the Iran-Contra Affair, have complied willingly with Congress’s subpoenas.[66] Others, such as President Nixon, have asserted executive privilege over the requested documents.[67] When President Nixon fought the Congressional subpoenas directed at him, he did not contest that the issuing committee had the authority to so subpoena a sitting president.  Neither did the D.C. Circuit, finding instead that executive privilege shielded the tapes.  The court in Mazars interprets the Nixon decision as “impl[ying] that Presidents enjoy no blanket immunity from congressional subpoenas.”  If such immunity existed, says the Mazars court, the Nixon court would have had no reason to “explore the subpoena’s particulars” and conduct the balancing test necessary in evaluating a claim of executive privilege.[68]

H. Is Impeachment A Criminal Proceeding?

Asking and answering this question is crucial for two related reasons.  First, a criminal proceeding follows specific procedures leading up to and during a trial.  These procedural rules govern the actions of the prosecutor, grand jury, judge, petit jury (i.e., the jury at trial), and, of course, the defendant and his lawyer.  Second, a criminal defendant has specific constitutional rights, such as a right to a public trial, due process, and the right against self-incrimination. There is no authoritative or definitive answer to whether an impeachment proceeding is a criminal proceeding.  The text of the Constitution, the Framers’ comments, court cases, and authoritative comments all indicate that impeachment proceedings are informed by, but are ultimately different from, criminal proceedings.

i. What Is A Criminal Proceeding?

A federal criminal case is brought on behalf of the United States to address a general grievance.  If convicted, a criminal defendant can be fined (i.e., loss of property), imprisoned (i.e., loss of liberty), or put to death (i.e., loss of life).  Consequently, criminal defendants are afforded additional constitutional protections.  It is worth noting that non-criminal proceedings can have serious consequences but participants are not given the same panoply of rights afforded to criminal defendants.  For example, a family evicted from their home is deprived of something valuable; yet, there is no constitutional guarantee of a lawyer in housing court.  The due process clause ensures minimum procedural protections in civil proceedings, but does not impose the wide array of additional procedural protections applicable in the criminal context. In a federal criminal proceeding, a prosecutor represents the United States.  In conjunction with law enforcement, such as the FBI, she builds her case.  Before she can file charges, she must present her evidence to a grand jury unless the defendant waives that right.  The grand jury comprises members of the public and meets in secret.  If the grand jury finds there is probable cause, they issue a true bill. After receiving a true bill, the prosecutor may proceed to trial.  Before trial, a petit jury is seated in order to decide questions of fact (e.g., Did the event happen?  Did the defendant have the requisite mental state?).  At trial, a judge presides over the trial and rules on questions of law, such as the admissibility of evidence. After hearing the evidence from the prosecutor and any evidence from the defense, the petit jury deliberates in secret.  They are not allowed to consider external evidence, such as news reports.  To convict the defendant, the jury must unanimously find him guilty beyond a reasonable doubt.

ii. What Does The Constitution Say?

The Constitution uses the language of criminal law in discussing impeachment but also indicates that impeachment proceedings are procedurally different from a criminal proceeding.  On the one hand, the Constitution uses the language of criminal law when talking about impeachment.  For example, Article II states an official may be removed from office for “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Similarly, “[t]he Senate shall have the sole Power to try all Impeachments . . . And no Person shall be convicted without the Concurrence of two thirds of the Members present.”[69] On the other hand, the Constitution is clear that impeachment is procedurally different from a criminal proceeding.  Under the Constitution, a president is expressly made subject to impeachment proceedings during office; he can also be subject to criminal proceedings after he leaves office.  Art. I, § 3 cl. 7 states that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”  This structure indicates that impeachment and criminal proceedings are different. Additionally, the Constitution states, “[t]he trial of all crimes, except in cases of impeachment, shall be by jury.”[70]  Similarly, “the President … shall have the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”[71]  The use of “except” implies that an impeachment proceeding is a type of criminal proceeding, while at the same time clarifying that an impeachment proceeding is different from a criminal trial. Moreover, the trial in the Senate is different from a trial before a petit jury.  First, the Senate is not a jury of the president’s peers; the Senate is an elected body.  Second, a president may be convicted by a two-thirds vote of the Senate, whereas a petit jury must unanimously convict a criminal defendant in a federal trial.  Moreover, there is no double jeopardy violation if the Senate convicts a president and he is later tried in a criminal proceeding. Finally, the consequence of impeachment indicates that an impeachment proceeding is different from a criminal proceeding.  One hallmark of a criminal proceeding is the sentencing exposure: impeachment is not a criminal proceeding because the official is not exposed to a loss of liberty (i.e., imprisonment) or life.  If convicted in the Senate, the official is removed from office.  The Senate may also vote to bar the official from holding future offices.

iii. What Did the Framers Say?

The Framers discussed whether impeachment is a criminal proceeding.  There were a variety of opinions and it is difficult to draw a definitive conclusion given the disagreements among them. The first impeachment proceeding in Congress raised this very question of whether impeachment is a criminal proceeding.  The question was whether an impeached official, in this case Senator Blount, had to be tried with a jury in the Senate.  Thomas Jefferson wrote to Senator Tazewell on the question of “whether an impeachment for a misdemeanor be a criminal prosecution?”[72]  In consulting Blackstone and Wooddeson, two leading legal treatises, Jefferson concluded, “in Law language the term crime is in common use applied to misdemeanors, and that impeachments, even when for misdemeanors only are criminal prosecutions.”[73]  He took the position that the Senate must use a jury to try an impeached official.  The Senate and other Framers disagreed.  Ultimately, the Senate voted 26-3 against using juries in impeachment proceedings.[74] During the proceeding against Sen. Blount, Rep. Dana took the position that “the process in cases of impeachment in this country is distinct from either civil or criminal––it is a political process, having in view the preservation of the Government of the Union.”[75] Madison indicated that he did not agree with Jefferson that impeachment is a criminal proceeding.  In a letter to Thomas Jefferson, James Madison wrote, “[m]y impression has always been that impeachments are somewhat sui generis, and excluded the use of juries.”[76]  Merriam Webster defines sui generis as “constituting a class alone: unique, peculiar.”

iv. What Have Courts Said?

Courts have said very little, probably because impeachment proceedings are rare and because the Supreme Court has held that impeachment proceedings fall under the political doctrine exception to judicial review.[77] In the case of Judge Walter Nixon, the Supreme Court hinted that impeachment proceedings are different from criminal proceedings.  Chief Justice Rehnquist wrote, “the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses—the impeachment trial and a separate criminal trial.  In fact, the Constitution provides for two separate proceedings.  See Art. I, Sec. 3, cl. 7.”[78] In the same case, a circuit court judge wrote: “The inference that the framers intended impeachment trials to be roughly akin to criminal trials is reinforced by seemingly unrefuted statements made by Alexander Hamilton during the ratification debates.”[79]

v. What Have Other Sources Said?

Other authorities such as Senators, the Department of Justice, and the transcripts of past proceedings all indicate that impeachment proceedings are informed by, but ultimately different from, criminal proceedings. Senators have indicated they believe an impeachment proceeding is something different from a criminal trial.  As Senator Crapo (R-ID) said about the Clinton trial: “As each Senator took the oath to provide impartial justice, . . . [n]o longer was the Senate a legislative body, it was a court of impeachment.  A unique court, to be sure, not identical to traditional civil and criminal courts, but a court nonetheless.”  He also stated, “Although the ‘beyond a reasonable doubt’ standard of traditional criminal trials is not applicable in impeachment proceedings, I am convinced the evidence presented in this case [against President Clinton] meet[s] even this high standard.” The Department of Justice recently took the position that “[t]he Constitution carefully separates congressional impeachment proceedings from criminal judicial proceedings.”  (Chief Judge Howell rejected the Department of Justice’s position in her recent decision.)

I. What Does It Mean That The House Of Representatives Is Like A Grand Jury?

In an impeachment proceeding, the House acts like a prosecutor and grand jury because it investigates and decides whether to bring charges. In a criminal proceeding, a grand jury’s investigation is kept secret.  The defendant has very few rights during a grand jury investigation and proceeding; most of the rights we associate with criminal law attach only after an indictment is returned or charges are filed.  In United States v. Williams, 504 U.S. 36, 49 (1992) the Supreme Court said, “certain constitutional protections afforded defendants in criminal proceedings have no application before that body [i.e. the grand jury].”  For example, the target of the investigation does not have a right to present his case to the grand jury; that right attaches at trial.  Similarly, he also does not have a right to cross-examine the witnesses in a grand jury proceeding; that right also attaches at trial.

i. Overview Of A Grand Jury

In a criminal proceeding, a grand jury must find there is probable cause before a person can be indicted.[80]  The grand jury meets in secret.[81]  The Supreme Court has explained why grand jury proceedings are secret:
(1) to prevent the escape of those whose indictment may be contemplated; (2) to insure the upmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who many testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures of persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was probability of guilt.[82]
A grand jury has the power to subpoena witnesses and physical evidence, including documents.  A witness “cannot refuse to answer questions simply because the answer is embarrassing, may cause the witness to lose his job, or might implicate some other person in a crime.”[83]  However, a grand jury witness does enjoy the right against self-incrimination.  This means a witness cannot be compelled to answer questions that would implicate himself in a crime.[84]  The law is relatively complicated when it comes to producing documents.[85]

ii. The House Of Representatives As A Grand Jury

The House of Representatives is like a prosecutor and grand jury because it considers the evidence against the president before deciding whether to authorize articles of impeachment.  To the extent the House acts as a grand jury, it is not required to conduct its investigation in public. Moreover, assuming the House investigation models a grand jury investigation, a president has very few rights.  For example, a defendant in a grand jury proceeding does not have the right to present his own evidence.  Neither he nor his attorneys have the right to be present during the questioning of witnesses or to question those witnesses.  He does not have the right to receive exculpatory material during a grand jury proceeding.  There is not a due process right per se because the grand jury is not depriving the defendant of life, liberty, or property; the grand jury is determining whether there is probable cause to move forward with such proceedings. There are some notable differences between the House of Representatives and a grand jury.  First, a grand jury consists of members of the public whereas the House is made up of elected officials.  Second, a grand jury must meet in secret.  The House of Representatives may choose to hold secret hearings or public hearings.  Third, the grand jury has a clear standard of proof; they can return a true bill only if they find probable cause that the defendant committed the crime.  The House of Representatives is free to select their own standard of proof.  The Constitution does not specify what standard of proof the House of Representatives may or must use, instead simply vesting the “sole Power of Impeachment” in the House.  U.S. Const. art. I, § 2, cl. 5.

J. What Does It Mean That The Senate Is Like A Petit Jury?

A petit jury is the jury on a criminal trial that decides questions of fact (e.g., was the light red?).  Many commentators have described the Senate as a jury because the Senate decides whether to acquit or convict the president.  However, there are several ways the Senate is different from a petit jury. First, a criminal trial requires a unanimous jury.  The Senate can remove the president from office with two-thirds of the Senators present. Second, the Senate can decide questions of law and fact.  Traditionally, a jury is a trier of fact (i.e., did this event happen, did the defendant have the intent?).  The judge determines questions of law (i.e., what does this statute mean, is this evidence admissible?).  During President Clinton’s impeachment trial, Chief Justice Rehnquist ruled that, “[t]he Senate is not simply a jury, it is a court in this case.  Therefore counsel should refrain from referring to senators as jurors.”[86] Third, jurors on a petit jury are instructed to decide the case based on the evidence presented in court.  A judge instructs the jurors not to “consult dictionaries or reference materials, search the internet, websites, blogs” and jurors may not discuss the case with each other before deliberations.  Since the Senate is not sequestered, senators do not have to abide by such restrictions.  While a Senator may decide not to discuss the case with the press, she will likely continue to read news stories and discuss the case with her colleagues. Fourth, senators can be called as witnesses under existing rules for impeachment trials.[87]  In a criminal trial, a witness cannot serve as a juror.

K. Does The President Have A Constitutional Right To Due Process?

It is not self-evident that a president has a constitutional right to due process in an impeachment proceeding. The due process clause states no person shall be “deprived of life, liberty or property without due process of law.”  U.S. Const., Amend. V.  The plain text does not seem to encompass impeachment proceedings and past impeachments do not seem to have relied on the due process clause.  Of course, a commitment to fairness and a legitimate process demand that an elected official must have some protections in an adversarial proceeding against him. There are several reasons the Fifth Amendment due process clause does not seem to apply to an impeachment proceeding. First, according to the plain text of the due process clause of the Constitution, a person is guaranteed due process only in cases where life, liberty, or property is at stake.  If a president is convicted, he is removed from office.  Removal from elected office is not a deprivation of life or liberty.  While there is case law on whether government employment constitutes a property interest, it may be a stretch to apply those cases to the Office of the President. Second, the House and Senate have historically relied on their power to make the rules of proceedings, not the due process clause, to grant the president procedural protections.  When the House impeached President Clinton, it adopted rules to “provide the President with certain procedural rights[,]” “similar to those adopted by the Committee in 1974.”  Specifically:
The President and his counsel shall be invited to attend all executive session and open committee hearings.  The President’s counsel may cross examine witnesses.  The President’s counsel may make objections regarding the pertinency of evidence.  The President’s counsel shall be invited to suggest that the Committee receive additional evidence.  Lastly, the President or the President’s counsel shall be invited to respond to the evidence adduced by the Committee at an appropriate time.[88]
Pursuant to H. Res. 660, the House Judiciary Committee has given the President some procedural protections once the House Permanent Select Committee on Intelligence Committee completes its investigation and issues its report setting forth its findings and recommendations.[89]  The President and his counsel are to be given copies of reports and they are invited to attend the Judiciary Committee proceedings.  The rules authorize his counsel to question witnesses subject to “instructions from the chair or presiding member.”  The chair, in consultation with the ranking member, may invite the President’s counsel to respond to evidence presented.  The counsel may also submit requests for additional witnesses. Third, one of the only court decisions to address the question of due process during impeachment proceedings determined that due process applied in only a general sense.  (It is important to note that this court case is not precedential.  The decision is from a district court and the decision was vacated by the D.C. Court of Appeals.)  The district court judge wrote, “[t]here is no reason to believe that the full panoply of due process protections that apply to a trial by an Article III court necessarily apply to every proceeding.  Impeachment trials are unique, and are entitled to be carried out using procedures that befit their special nature.  However, they must be conducted in keeping with the basic principles of due process that have been enunciated by the courts and, ironically, by the Congress itself.”[90]

L. Does The President Have A Constitutional Right To Exculpatory Material?

A president probably does not have a constitutional right to exculpatory material, known as Brady evidence, during the House impeachment proceeding.  Brady material is specific to criminal trials and impeachment is probably not a criminal trial.  Moreover, even a criminal defendant does not have a right to Brady material during the investigation phase.  That right attaches after charges are filed.  House Resolution 660 does not include a provision to turn over exculpatory material. In a criminal case, due process requires that the prosecution turn over favorable or exculpatory evidence to the defendant.  This is known as “Brady evidence.”[91]  A criminal defendant does not have a right to Brady material during the investigation phase.  The right to favorable evidence applies only after charges are filed.  In other words, the target, i.e., the defendant, of the investigation does not have a right to exculpatory material during a grand jury proceeding.  (The grand jury only determines whether there is probable cause to bring a charge, not whether there is proof beyond a reasonable doubt.)  Moreover, the prosecutor is not obligated to present exculpatory material evidence to the grand jury.[92]  Therefore, a president probably does not have a right to favorable or exculpatory evidence during the investigation portion of impeachment proceedings. It is a closer question whether a president has a right to exculpatory evidence during a trial in the Senate.  On the one hand, Brady material relies on the due process clause and it is not obvious that the due process clause applies.  (See section K).  On the other hand, Brady material is relevant “to guilt or to punishment.”[93]  Because an impeachment trial does raise questions about guilt, the president could claim he does or should have a have a right to the material.  That said, the more public and transparent the process, the less likely an explicit Brady right would be needed.

M. How Do Impeachment And Executive Privilege Interact?

The question of whether a president can invoke executive privilege during impeachment proceedings is largely unsettled by the courts, but will likely prove a battleground between the House and the administration in the weeks and months to come.  The Supreme Court has never ruled directly on the issue, but has given some indication about the contours of executive privilege in other circumstances.

i. Overview Of Executive Privilege

Executive privilege (also known as presidential communications privilege) is a qualified right of the president, based in the constitutional separation of powers, to preserve the confidentiality of communications, information, and documents related to presidential decision-making.  As the D.C. Circuit has explained: “The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential.  If the President does so, the documents become presumptively privileged.  However, the privilege is qualified, not absolute, and can be overcome by an adequate showing of need.”[94] The privilege also extends to close aides of the president, in order to “provide sufficient elbow room for advisers to obtain information from all knowledgeable sources” and not otherwise chill robust policy discussion within the Executive branch.[95]

ii. Other Forms Of Privilege

Executive privilege is a broad, umbrella term that is often used loosely for other legal concepts depending on the context.  In general, it serves to protect confidential presidential communications.  There are also two related forms of privilege that are sometimes viewed as components of executive privilege: diplomatic privilege and deliberative process privilege.
  • Military, Diplomatic, and National Security Secrets: The Supreme Court has long recognized that the president has a common-law based right to withhold documents related to military, diplomatic and state secrets and communications and documents related to the same.[96]
  • Deliberative Process Privilege: Lower courts have held that the deliberative process extends beyond the confines of the White House, and presidential communications themselves, to other departments within the Executive branch, allowing such agencies “to withhold documents and other materials that would reveal advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”[97] Its scope and applicability remain uncertain.
A third concept is executive immunity, but this too can have conflicting meanings.  On one hand, it is a separate doctrine that provides an absolute protection for the president regarding civil liability for official acts in office.[98]  On the other, it represents a concept advocated for by the current and prior administrations that Executive branch officials are immune from compelled testimony before Congress.[99]

iii. George Washington’s View Of Executive Privilege And Impeachment

In 1796, President George Washington asserted executive privilege against a House demand for diplomatic communications surrounding the Jay Treaty by arguing that the House only had the power to compel such documents during an impeachment proceeding.  In doing so, he noted “[i]t does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives, except that of an impeachment, which the resolution [demanding the papers] has not expressed.”[100] That episode produced additional guidance from Washington’s advisers, similarly recognizing the unique powers of an impeachment proceeding.  Attorney General Charles Lee indicated “there may be occasions when the books and original papers should be produced: for instance to sustain an impeachment commenced.”[101]  Secretary of War James McHenry similarly queried, “But as the House of Representatives are vested with the sole power of impeachment, has it not a right as an incident to that power to call for papers respecting a treaty when the object is impeachment?”[102]  While the House never received the documents, Washington did share them with the Senate when it considered the treaty for approval.[103]

iv. Claiming Privilege Against Congressional Subpoenas

The President has directed several current and former administration employees to refuse both to comply with Congressional subpoenas or to appear before hearings on Capitol Hill.  These refusals have not always been accompanied by a formal invocation of executive privilege.  At the same time, the administration has wielded broad claims of the Executive branch’s rights and immunities under the separation of powers and the requirements of maintaining confidentiality. In one example, the White House Counsel’s office sought to restrict the testimony before Congress of former senior National Security Council staffer Fiona Hill.  In doing so, it cited the classified nature of the information, along with the deliberative process privilege and executive privilege, as well as the then-absence of an official vote on impeachment.  The White House’s letter noted that “even if it were the case that executive privilege operates differently in connection with an impeachment inquiry, there is no ground for Dr. Hill to believe that she may disclose privileged information on that basis to the House Committee.”[104]  Hill eventually testified. Other recent administrations have also claimed executive privilege.  President Obama invoked it once, during the Congress’s investigation of Operation Fast and Furious; President Bush asserted it six times, in matters ranging from EPA air quality standards to the revelation of Valerie Plame’s identity as a CIA agent.[105]  President Clinton invoked executive privilege in relation to multiple grand jury proceedings, both inside and outside the context of his impeachment over the Lewinsky affair.[106]

v. The Supreme Court And Nixon

The Supreme Court did consider President Nixon’s invocation of executive privilege during his impeachment, but that case, United States v. Nixon, addressed a grand jury subpoena in the separate and distinct setting of a criminal prosecution.[107]  Nevertheless, the Supreme Court narrowed the scope of the privilege in several meaningful and relevant ways, rejecting the president’s claim of an absolute executive privilege and providing a balancing test between the confidentiality of presidential communications and the rule of law.[108]  This remains the fundamental judicial framework for evaluating executive privilege today.
[N]either the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.  The President’s need for complete candor and objectivity from advisers calls for great deference from the courts.  However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.  Absent a claim of need to protect military, diplomatic, or national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.[109]

vi. Other Notable Court Cases

The Supreme Court has never ruled directly on executive privilege in the context of a dispute with Congress.  However, several other cases in the lower courts have added texture and nuance to the concept.
  • In 1997, the D.C. Circuit added significant jurisprudence to the scope of executive privilege in In re Sealed Case. Among other things, the case established a distinction between the presidential communications privilege and the deliberative process privilege, emphasizing that the former relates to “direct decisionmaking by the President,” including his close advisers.[110]  It also reinforced that the privilege may only be overcome by a substantial showing that the “subpoenaed materials likely contain[] important evidence” that is not available with due diligence elsewhere.[111]
  • In 2008, the D.C. District Court in Committee on the Judiciary v. Miers, determined that while an administration official could invoke executive privilege as to specific questions, she could not assert the privilege in a blanket manner to altogether prevent compelled testimony before Congress.[112] Miers was stayed pending appeal, and eventually settled, leaving its impact somewhat ambiguous.
  • In 2016, the D.C. District Court again took up the scope of the privilege, this time regarding a Congressional subpoena requesting documents related to the Fast and Furious investigation. While it held that the deliberative process privilege provided a qualified basis for resisting Congressional subpoenas, it nonetheless found that “under the specific and unique circumstances of this case … the qualified privilege invoked to shield material that the Department has already disclosed has been outweighed by a legitimate [Congressional investigative] need that the Department does not dispute, and therefore, the records must be produced.”[113]

N. Can Congress Enforce A Subpoena Against Administration Officials Unwilling To Testify?

Also undefined is the balance between Congress’s subpoena power and administration officials’ invocation of privilege or immunity.  Preliminary—but likely not definitive—answers to this question, however, may come soon, as at least two current and former White House officials have sought a resolution of where they stand from the courts.

i. Options To Enforce A Subpoena

Congress has two paths to enforce a subpoena: criminal contempt and civil action.  In both cases, enforcing compliance with the subpoena presents unique challenges.  Congress can hold an individual who willfully refuses to comply with a committee subpoena in contempt of Congress.[114]  But a contempt of Congress citation is referred back to the Executive branch for prosecution, which in the case of contempt by Executive officials would essentially require the administration to prosecute itself.  Congress can also bring a civil action to enforce compliance with its subpoena, but this routes the issue through the courts and could require potentially protracted litigation.[115]  In the time between 2008 and the current administration, Congress has held an Executive branch official in criminal contempt four times, and in each case the administration declined to bring the issue before a grand jury.[116] The main constraint on bringing a civil enforcement action to challenge an assertion of executive privilege is time—it may well take months or years for the courts, which are already hesitant to address such thorny political topics, to resolve a dispute between the branches of government.  Moreover, House Democrats have made clear that they may find strategic value in not pursuing litigation regarding their subpoena power.  In a letter issuing a subpoena to President Trump’s personal attorney Rudy Giuliani, House Democrats noted “[y]our failure or refusal to comply with the subpoena, including at the direction or behest of the president or the White House, shall constitute evidence of obstruction of the House’s impeachment inquiry and may be used as an adverse inference against you and the president.”[117]  An adverse inference would presumably be used as a stand-in for incriminating evidence in follow-on litigation or impeachment proceedings.

ii. Punting to the Courts  

The difficulties with subpoena enforcement are center stage in ongoing litigation involving two former White House advisers—Charles Kupperman, a former Deputy National Security Adviser; and Donald McGahn, former White House Counsel.  Faced with a Congressional subpoena in one hand, and a letter from the White House Counsel in the other telling them to not to testify, Kupperman and McGahn decided to punt these unsettled legal questions to the courts. Kupperman, under subpoena to testify from the House but ordered by the White House to refuse to appear on the basis of testimonial immunity, sought a declaratory judgment from the D.C. District Court to resolve what he called “irreconcilable commands by the Legislative and Executive Branches of the Government.”[118]  Kupperman’s complaint notes that “he is aware of no controlling judicial authority definitively establishing which Branch’s command should prevail,” but that his personal stakes are high—on the one hand, defying a Congressional subpoena could result in criminal contempt, on the other, an erroneous decision to appear could “unlawfully impair the President in the exercise of his core national security responsibilities.”[119]  U.S. District Judge Richard J. Leon has fast-tracked this case and set oral argument for December 10.[120]  A similar dispute is unfolding in court regarding former White House Counsel Don McGahn, who also claimed testimonial immunity.  Press reports indicate that, in a recent hearing on the case, U.S. District Judge Ketanji Brown Jackson was skeptical of the administration’s claim of blanket immunity and questioned how such a broad privilege could be squared with fundamental separation of powers concepts.[121] For either case, however, a determinative outcome is unlikely.  Even if one of the district court judges rules in favor of the House or the administration on the balance between a subpoena and concepts of executive privilege and immunity, that decision will undoubtedly be appealed to the D.C. Circuit.  So too would any appellate decision be appealed, with the potential for a subsequent argument en banc or a petition to the Supreme Court following that.  The effect of this may be to frustrate the efforts of the House—as long as litigation remains pending, the legal ramifications of not complying with Congressional subpoenas will remain undetermined.  In light of this, the administration will likely continue to command its current and former officials not to testify. II. Conclusion We will continue to keep you informed on these and other related issues as they develop.

APPENDIX

Constitutional Provisions About Impeachment

Art. I, § 2, cl. 5: The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment. Art. I, § 3, cl. 6: The Senate shall have the sole Power to try all Impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Art. I, § 3, cl. 7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Art. I, § 5, cl. 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. Art. II, § 2, cl. 1: [The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. Art. II, § 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Art. III, § 2, cl. 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury. Art. III, § 3, cl. 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. Amend. XXV, § 4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session.  If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. ___________________________ [1]     Nicholas Fandos, Nancy Pelosi Announces Formal Impeachment Inquiry of Trump, N.Y. Times (Sept. 24, 2019), https://www.nytimes.com/2019/09/24/us/politics/democrats-impeachment-trump.html?module=inline. [2]     Letter from Pat A. Cipollone, White House Counsel, to Nancy Pelosi, Speaker, House of Representatives, 2 (Oct. 8, 2019), https://www.whitehouse.gov/wp-content/uploads/2019/10/PAC-Letter-10.08.2019.pdf. [3]     Id. at 1. [4]     Id. at 2–3. [5]     In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, 1:19-gj-00048-BAH (Oct. 25, 2019 D.D.C.) (the finding that a House resolution was unnecessary to authorize an impeachment inquiry was part of the central issue of the case, which was centered upon whether the House is authorized to access grand jury material). [6]     Id. at *50–52. [7]     Id. at *53. [8]     Order No. 19-5288, In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, 1:19-gj-00048-BAH (Oct. 29, 2019 D.C. Cir.). [9]     H. Res. 660 (Oct. 31, 2019); Elise Viebeck, Karoun Demirjian, Rachael Bade and Mike DeBonis, A divided House backs impeachment probe of Trump, Wash. Post (Oct. 31, 2019), https://www.washingtonpost.com/national-security/house-to-vote-on-rules-governing-next-phase-of-trump-impeachment-inquiry/2019/10/31/bc2f5e7a-fbcc-11e9-ac8c-8eced29ca6ef_story.html. [10]    H. Res. 660, § 2; Deirdre Walsh, House Democrats Release Draft Resolution on Impeachment Inquiry, NPR (Oct. 29, 2019), https://www.npr.org/2019/10/29/774380175/read-house-democrats-release-draft-resolution-on-impeachment-inquiry (providing the text of the initial draft resolution). [11]    H. Res. 660, § 1. [12]    The resolution did, however, provide rights to the ranking minority member of the Permanent Select Committee (the “minority”).  First, as determined by the chair, the chair and the ranking minority member (or a designated staff member) will be permitted to question witnesses for equal specified periods of longer than five minutes.  Second, the ranking member may submit to the chair any requests for witness testimony relevant to the investigation.  Third, the ranking member (with the concurrence of the chair) may issue subpoenas for the attendance and testimony of any person or the production of documents and interrogatories for the furnishing of information. [13]    See Congressional Research Service, The Impeachment Process in the House of Representatives 1 (Oct. 10, 2019). [14]    Alexander Hamilton, The Federalist No. 65 (Mar. 7, 1788). [15]    Jason J. Vicente, Impeachment: A Constitutional Primer, 3 Tex. Rev. L. & Pol. 117, 126 (1998). [16]    Id. at 134. [17]    List of Individuals Impeached by the House of Representatives, History, Art & Archives, United States House of Representatives, https://history.house.gov/Institution/Impeachment/Impeachment-List/. [18]    Impeachment, United States Senate, https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm.  An argument can be made that nine individuals have been removed by the Senate in connection with an impeachment proceeding as they expelled William Blount by other means before trial after the first ever successful impeachment vote in the House of Representatives. [19]    See, supra, n.17. [20]    See, supra, n.18. [21]    During the first impeachment trial, the defendant was not present.  See Blount Expulsion, United States Senate, https://www.senate.gov/artandhistory/history/common/expulsion_cases/Blount_expulsion.htm (last accessed Nov. 1, 2019) (“Despite Blount’s absence, his impeachment trial began in the Senate on December 17, 1798.”). [22]    U.S. Const. art. I, § 5, cl. 2. (“Each House may determine the Rules of its Proceedings.”). [23]    U.S. Const.  art. I, § 2, cl. 5. [24]    U.S. Const. art. I, § 3, cl. 6. [25]    U.S. Const. art. I, § 5, cl. 2. [26]    See Nixon v. United States, 506 U.S. 224 (1993) (note: the Nixon in this case was former Judge Walter Nixon, not former President Richard Nixon). [27]    U.S. Const. art. I, § 3, cl. 6 (emphasis added). [28]    U.S. Const. art. I, § 3, cl. 6. [29]    U.S. Const. art. I § 3, cl. 7. [30]    U.S. Const. art. I, § 3, cl. 7. [31]    U.S. Const. art. II § 4. [32]    U.S. Const. art. III § 3, cl. 2. [33]    U.S. Const. art. III, § 2, cl. 3.  See also Buckner F. Melton Jr., Federal Impeachment and Criminal Procedure: the Framers’ Intent, 52 Md. L. R. 437 (1993) (The Senate rejecting a resolution to use a jury in the first impeachment proceeding). [34]    U.S. Const. art. I, § 3, cl. 7. [35]    U.S. Const. Amend. XXV, § 4. [36]    Erick Trickery, Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense, Smithsonian Magazine (October 2, 2017); see also Ronald D. Rotunda, An Essay on the Constitutional Parameters of Federal Impeachment, 76 Ky. L.J. 707, 723 n.4 (1988). [37]    Id. [38]    Id. [39]    Id. [40]    United States House of Representatives Committee on the Judiciary, Report By the Staff of the Impeachment Inquiry, Feb. 1974.  James Madison later described Blackstone’s Commentaries on the Laws of England as “a book which is in every man’s hand.”  Id. [41]    Congressional Research Service, The Impeachment Process in the House of Representatives 1 (Oct. 10, 2019). [42]    Id. at 4. [43]    Id. at 1. [44]    U.S. Const. art II § 4. [45]    Congressional Research Service, The Impeachment Process in the House of Representatives 5 (Oct. 10, 2019). [46]    Id. [47]    See Trump v. Mazars USA, LLP, No. 19-5142, 2019 WL 5089748 (D.C. Cir. Oct. 11, 2019) for a history of congressional investigations prior to 1927. [48]    In re Application of the Committee on the Judiciary, Grand Jury Action No. 19-48 (BAH) (D.D.C. Oct. 25, 2019) at 52 (citing Mazars, 2019 WL 5089748 at *24); see also Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019). [49]    U.S. Const. art I, § 2, cl. 5 [50]    Watkins v. U.S., 354 U.S. 178, 187 (1957). [51]    McGrain v. Daugherty, 273 U.S. 134, 174–75 (1927). [52]    Id. at 175–76. [53]    Mazars, 2019 WL 5089748, at *6 (citing Letter from Elijah E. Cummings, Chairman, House Committee on Oversight and Reform, to Pat Cipollone, Counsel to the President, The White House 1 (Feb. 15, 2019) at 7–8). [54]    Mazars, 2019 WL 5089748, at *46 [55]    Mazars, 2019 WL 5089748, Rao, J., dissent at *2. [56]    Mazars, 2019 WL 5089748, Rao, J., dissent at *6. [57]    345 U.S. 41, 42 (1953). [58]    Id. at 45, 48. [59]    Mazars, 2019 WL 5089748, at *54 (citing Rumely, 345 U.S. at 42–43). [60]    House Rule X, cl. 3(i). [61]    House Rule XI, cl. 2(m)(1); see also Rules of the House Committee on Oversight and Reform, 116th Cong., Rule 12(g) (2019) (authorizing the Oversight Committee Chair to issue subpoenas as provided in Rule XI to conduct an investigation within the Committee’s jurisdiction). [62]    In re Application of the Committee on the Judiciary, Grand Jury Action No. 19-48 (BAH) (D.D.C. Oct. 25, 2019) at 54, citing Jefferson’s Manual, which governs the House in all applicable situations as per House Rule XXI. [63]    See H.R. Rep. No. 22-502, at 1 (1832). [64]    S. Doc. No. 79-244, at xiii, 251 (1946) (exonerating the president of this charge). [65]    S. Res. 60, 119 Cong. Rec. 3255, 93rd Cong. §1(a) 1973). [66]    See Morton Rosenberg, Congressional Research Service, RL 30319, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments 14 (Aug. 21, 2008). [67]    See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 726–27 (D.C. Cir. 1974). [68]    Mazars, 2019 WL 5089748, at 18. [69]    U.S. Const. art. I, § 3, cl. 6 (emphasis added). [70]    U.S. Const. art. III, § 2 (emphasis added). [71]    U.S. Const. art. II, § 2, cl. 1. [72]    Letter from Thomas Jefferson to Henry Tazewell (Jan. 27, 1798), available in Wilbur S. Howell, Jefferson’s Parliamentary Writings 11 (2016). [73]    Id. [74]    Buckner F. Melton, Federal Impeachment and Criminal Procedure: The Framers’ Intent, 52 Md L. R. 427, 439, 454 (1993). [75]    Hinds’ Precedents, Volume 3. Available at https://www.govinfo.gov/content/pkg/GPO-HPREC-HINDS-V3/html/GPO-HPREC-HINDS-V3-19.htm. [76]    Letter from James Madison to Thomas Jefferson (Mar. 4, 1798), available at https://founders.archives.gov/documents/Madison/01-17-02-0062, last accessed Oct. 24, 2019. [77]    See Nixon v. U.S., 506 U.S. 224 (1993). [78]    Id. at 234. [79]    Nixon v. United States, 938 F.2d 239, 260 (D.C. Cir. 1991) (Randolph, J., concurring) aff’d, 506 U.S. 224 (1993) (emphasis added). [80]    U.S. Const. Amend. V. [81]    See Fed. R. Crim. P. 6(d) (“The following persons may be present while the grand jury is in session: attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.”) [82]    Douglas Oil Co. v. Petrol Oil Stops Northwest, 441 U.S. 211, 219 n.10 (1979). [83]    Ronald J. Allen, Et Al., Criminal Procedure: Adjudication And Right To Counsel 1097 (2nd ed. 2016). [84]    Id. [85]    Id. at 1085. [86]    Joan Biskupic, Chief Justice Assumes a Speaking Part, Wash. Post, Jan. 23, 1999, at A13. [87]    See Senate Rule for Impeachment XVIII (“If a Senator is called as a witness, he shall be sworn, and give his testimony standing in his place.”). [88]    H.R. Rep. No. 105-795, at 25 (1998). [89]    H. Res. 660, §§  2(6) & 4; Impeachment Inquiry Procedures in the Committee on the Judiciary Pursuant to H. Res. 660, https://rules.house.gov/sites/democrats.rules.house.gov/files/ImpeachmentInquiryProceduresJudiciary.pdf (last accessed Nov. 6, 2019). [90]    Hastings v. United States, 802 F. Supp. 490, 504 (D.D.C. 1992), vacated by Hastings v. United States, 988 F.2d 1280 (D.C. Cir. 1993). [91]    See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). [92]    See United States v. Williams, 504 U.S. 36 (1992). [93]    Brady, 373 U.S. at 87. [94]    In re Sealed Case, 121 F.3d 729, 745–46 (D.C. Cir. 1997). [95]    Id. at 745. [96]    See United States v. Reynolds, 345 U.S. 1, 6–8 (1953); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948); Totten v. United States, 92 U.S. 105, 106–07 (1875). [97]    In re Sealed Case, 121 F.3d at 737. [98]    See Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). [99]    Testimonial Immunity Before Congress of Former counsel to the President, 43 Op. O.L.C., slip op. (May 20, 2019), https://www.justice.gov/olc/opinion/testimonial-immunity-congress-former-counsel-president (“The immunity of the President’s immediate advisers from compelled congressional testimony on matters related to their official responsibilities has long been recognized and arises from the fundamental workings of the separation of powers.”). [100]    5 Annals of Cong. 760–62 (1796) (emphasis added). [101]    Letter from Attorney General Charles Lee to President George Washington (Mar. 26, 1796), https://founders.archives.gov/documents/Washington/05-19-02-0491. [102]    Letter from Secretary of War James McHenry to President George Washington (Mar. 26, 1796), https://founders.archives.gov/documents/Washington/05-19-02-0492. [103]    4 Annals of Cong. at 761. [104]    Letter from Michael Purpura, Deputy Counsel to the President, to Lee S. Wolosky, Esq. (Oct. 14, 2019). [105]    Congressional Research Service, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014), 26–28. [106]    Id. at 25. [107]    United States v. Nixon, 418 U.S. 683, 710 (1974). [108]    Id. at 703–710. [109]    Id. at 706. [110]    In re Sealed Case, 121 F.3d at 745, 754. [111]    Id. at 757. [112]    558 F. Supp. 2d 53, 99 (D.D.C. 2008). [113]    Committee on Oversight and Government Reform v. Lynch, 156 F. Supp. 3d 101, 115 (D.D.C. 2016). [114]    See 2 U.S.C. 192. [115]    See 2 U.S.C. 288b. [116]    Congressional Research Service, Congressional Subpoenas: Enforcing Executive Branch Compliance (Mar. 27, 2019). [117]    The Hill, Giuliani Subpoenaed as Trump Rages Against Schiff, Whistleblower (Oct. 1, 2019), https://thehill.com/homenews/morning-report/463762-the-hills-morning-report. [118]    Compl. of Charles Kupperman at 2, United States House of Representatives v. Donald Trump, No. 193224 (D.D.C. 2019). [119]    Id. at 2–3. [120]    See Washington Post, U.S. Judge Fast-Tracks Hearing Over House Impeachment Subpoena to Former National Security Aide Charles Kupperman (Nov. 4, 2019), https://www.washingtonpost.com/local/public-safety/us-judge-fast-tracks-hearing-over-house-impeachment-subpoena-to-ex-trump-deputy-national-security-adviser-charles-kupperman/2019/11/04/5606e5bc-ff3e-11e9-8bab-0fc209e065a8_story.html. [121]    See Washington Post, John Bolton’s Former Deputy Asks Judge to Resolve Conflicting Demands for House Impeachment Testimony (Oct. 31, 2019), https://www.washingtonpost.com/local/legal-issues/john-boltons-former-deputy-asks-judge-to-resolve-conflicting-demands-for-house-impeachment-testimony/2019/10/31/6119ae8c-f9b0-11e9-8190-6be4deb56e01_story.html.
The following Gibson Dunn lawyers assisted in preparing this client update: Michael Bopp, Thomas Hungar, Ciara Davis, Natasha Harnwell-Davis, Teddy Kristek, Emily Maxim Lamm and Brian Williamson. Gibson Dunn's lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work or the following authors: Michael D. Bopp - Washington, D.C. (+1 202-955-8256, mbopp@gibsondunn.com) Thomas G. Hungar - Washington, D.C. (+1 202-887-3784, thungar@gibsondunn.com</ © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

July 9, 2019 |
The Power to Investigate: Table of Authorities of House and Senate Committees for the 116th Congress

Click for PDF For the fifth successive Congress, Gibson Dunn is pleased to release a table of authorities that summarizes the various, and, in many instances, expanding investigative authorities and powers of each House and Senate committee.  We believe that understanding the full extent of a committee’s investigative arsenal is crucial to successfully navigating a congressional investigation. Congressional committees have the power to issue subpoenas to compel witnesses to produce documents, testify at committee hearings, and, in some cases, appear for depositions.  If a subpoena recipient refuses to comply, committees may resort to contempt proceedings.  As a result, the failure to comply with a subpoena and adhere to committee rules during an investigation may have severe legal and reputational consequences.  As we explained in a client alert issued earlier this year, however, there are defenses to congressional subpoenas, including challenging a committee’s jurisdiction, asserting attorney-client privilege and work product claims, and raising constitutional challenges.[1] Committees may adopt their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions, though in the House, general deposition procedures applicable to all committees are provided for in the House Rules and subject to regulations issued by the chair of the Committee on Rules.  Each committee may reissue and if it chooses alter its rules at the commencement of each Congress. House and Senate committees adopted their rules for the 116th Congress earlier this year.  We have highlighted noteworthy changes below.  It is important to remember that, in addition to the rules detailed in our table of authorities, the committees are also subject to the rules of the full House or Senate. Some items of note:

House:

  • While all House Committee chairs (except Rules) have the authority to order the taking of a deposition,[2] the following thirteen committees fully empower their chairs to unilaterally issue a subpoena. Although the Ranking Member cannot block the subpoena, he or she usually must either be consulted or given notice prior to the subpoena being issued.  Several of these committees require such notice to occur 24 to 72 hours before the subpoena is issued.[3]
    • Agriculture
    • Budget
    • Education and Labor
    • Energy and Commerce
    • Financial Services
    • Foreign Affairs
    • Homeland Security
    • House Administration
    • Judiciary
    • Oversight and Reform
    • Science, Space, and Technology
    • Select Intelligence
    • Ways and Means
  • In the 115th Congress, the House required (with limited exceptions) that one or more Members of Congress be present during a deposition. The House rules for the 116th Congress have eliminated this requirement, which may result in an increase in the use—or at least threatened use—of depositions as an investigative tool.[4]
  • The House Rules Committee’s new regulations governing depositions by committee counsel now allow for immediate overruling of objections raised by a witness’s counsel and immediate instructions to answer, on pain of contempt.[5] These regulations appear to eliminate the witness’s right to appeal rulings on objections to the full committee without risking contempt (although committee members may still appeal).  This will likely speed up the deposition process, as previously the staff deposition regulations required a recess before the chair could rule on an objection.[6]
  • The Rules Committee’s deposition regulations also now expressly allow for depositions to continue from day to day[7] and permit, with notice from the chair, questioning by members and staff of more than one committee.[8]
  • Finally, the Rules Committee’s deposition regulations have removed a prior requirement that allowed objections only by the witness or the witness’s lawyer. This change appears to allow objections from staff or Members who object to a particular line of questioning.[9]

Senate:

  • The Permanent Subcommittee on Investigations remains the only Senate body to permit the Chair to issue a subpoena without the consent of the Ranking Member.
  • The Committees on Agriculture, Nutrition, and Forestry; Commerce, Science, and Transportation; Homeland Security and Governmental Affairs; Small Business and Entrepreneurship; and Veterans’ Affairs permit the chair to issue a subpoena so long as the Ranking Member does not object within a specified time period. Additionally, the Committee on Health, Education, Labor, and Pensions may, by a majority vote, delegate the power to issue subpoenas to the chair, subcommittee chair, or to the chair’s designee.
  • As in the last Congress, seven Senate bodies have received Senate authorization to take depositions: Judiciary, the Senate Committee on Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations receive the authority to do so each Congress from the Senate’s funding resolution.[10] The Aging and Indian Affairs Committees were authorized by S. Res. 4 in 1977.  The Ethics Committee’s deposition power was authorized by S. Res. 338 in 1964, which created the committee and is incorporated into its rules each Congress.  And the Intelligence Committee was authorized to take depositions by S. Res. 400 in 1976, which it too incorporates into its rules each Congress.  Of these, staff is expressly authorized to take depositions except in the Indian Affairs and Intelligence Committees.  The Senate’s view appears to be that Senate Rules do not authorize staff depositions pursuant to subpoena.  Hence, Senate committees cannot delegate that authority to themselves through committee rules.  It is thus understood that such authority can be conferred upon a committee only through a Senate resolution.[11]
  • The Judiciary Committee remains the only committee to require a member to be present for a deposition. This requirement may be waived by agreement of the Chair and Ranking Member.
  • The Committees on Agriculture, Commerce, and Foreign Relations authorize depositions in their rules. However such deposition authority has not been expressly authorized by the Senate and, hence, it is not clear whether appearance at a deposition can be compelled.
  • The Small Business and Entrepreneurship Committee rules no longer authorize depositions.
Our table of authorities is meant to provide a sense of how individual committees can compel a witness to cooperate with their investigations.  But each committee conducts congressional investigations in its own particular way, and investigations vary materially even within a particular committee.  While our table provides a general overview of what rules apply in given circumstances, it is essential to look carefully at a committee’s rules to understand specifically how its authorities apply in a particular context. Gibson Dunn lawyers have extensive experience defending targets of and witnesses in congressional investigations.  They know how investigative committees operate and can anticipate strategies and moves in particular circumstances because they also ran or advised on congressional investigations when they worked on the Hill.  If you have any questions about how a committee’s rules apply in a given circumstance, please feel free to contact us for assistance.  We are available to assist should a congressional committee seek testimony, information or documents from you. Table of Authorities of House and Senate Committees: https://www.gibsondunn.com/wp-content/uploads/2019/07/Power-to-Investigate-Table-of-Authorities-House-and-Senate-Committees-116th-Congress-07.2019.pdf _________________________ [1] See Investigations in the 116th Congress A New Landscape and How to Prepare, https://www.gibsondunn.com/investigations-in-the-116th-congress-a-new-landscape-and-how-to-prepare/#_edn6. [2] See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019). [3] The House Transportation and Infrastructure Committee allows for unilateral issuance of a subpoena “[i]f a specific request for a subpoena has not been previously rejected by either the Committee or subcommittee.”  Rule IV(d)(1). [4] See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019). [5] See 165 Cong. Rec. H1216 (Jan. 25, 2019) (116th Congress Regulations for Use of Deposition Authority). [6] Id. [7] The regulations provide that deposition questions “shall be propounded in rounds” and that the length of each round “shall not exceed 60 minutes per side” with equal time to the majority and minority.  See supra at note 4.  The regulations, however, do not expressly limit the number of rounds of questioning.  In this manner, they differ from the Federal Rules of Civil Procedure which expressly limit the length of depositions.  See Fed. R. Civ. P. 30(d)(1) (“Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours.”). [8] See supra at note 4. [9] Id. [10] See S. Res. 70, § 13(e) (2019) (Judiciary); id. § 12(e)(3)(E) (Homeland Security). [11] See Jay R. Shampansky, Cong. Research Serv., 95-949 A, Staff Depositions in Congressional Investigations 8 & n.24 (1999); 6 Op. O.L.C. 503, 506 n.3 (1982).  The OLC memo relies heavily on the argument that the Senate Rules never mentioned depositions at that time and those rules still do not mention depositions today.
Gibson, Dunn & Crutcher's lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firm's Congressional Investigations group in Washington, D.C.: Michael D. Bopp - Chair, Congressional Investigations Group (+1 202-955-8256, mbopp@gibsondunn.com) Thomas G. Hungar (+1 202-887-3784, thungar@gibsondunn.com) Alexander W. Mooney (+1 202-887-3751, amooney@gibsondunn.com) Tommy McCormac (+1 202-887-3772, tmccormac@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

March 1, 2019 |
Webcast: New Authorities/New Priorities: Congressional Investigations in the 116th Congress

This ABA and Gibson Dunn webcast takes a close look at how the 116th Congress is approaching congressional investigations.  A panel consisting of three seasoned Hill investigators and the Chair of Gibson Dunn’s Congressional Investigations specialty group discuss the nuts and bolts of congressional investigations, including the unprecedented new authorities that House committee chairs will work with over the next two years.  The panel also will discuss where the investigative committees are focused or are likely to focus their attention.

View Slides (PDF)

PANELISTS: Jennifer Barblan, Chief Republican Counsel, Oversight and Investigations, Committee on Energy and Commerce David Brewer, Deputy Republican Staff Director, House Oversight and Reform Committee Douglas Pasternak, Democratic Staff Director of Investigations & Oversight for the House Committee on Transportation & Infrastructure Michael Bopp, Partner and Chair, Gibson Dunn’s Congressional Investigations Group

January 29, 2019 |
Investigations in the 116th Congress: A New Landscape and How to Prepare

Click for PDF With Democrats regaining the majority in the House of Representatives for the first time in nearly a decade, the investigative priorities of the lower chamber will shift—and corporations should expect (and prepare) to find themselves more frequently the subjects of investigations.  Moreover, the investigative powers of several committees have expanded in significant ways since House Democrats last held committee gavels in 2010.  And, while Republicans remain in charge of the Senate, new and returning chairs of a number of key investigative committees are likely to focus on issues that implicate several industries and private sector entities. Unlike receiving a civil complaint or compulsory process in an Executive Branch investigation, when a congressional letter or subpoena arrives, targeted organizations may only have a matter of days to consider their response and devise a strategy, and often must do so amid significant media scrutiny and public attention.  Congressional investigations often involve public attacks on a company’s reputation, which can imperil the goodwill upon which the company has built its business and maintains its competitive advantages.  It is therefore crucial that potential targets evaluate their exposure to likely investigations in the 116th Congress, familiarize themselves with how such inquiries unfold—including the rules and procedures that govern them—and consider potential responses. To assist possible targets and interested parties in assessing their readiness for responding to a potential congressional investigation, Gibson Dunn presents this brief overview of how such investigations are often conducted, Congress’ underlying legal authorities to investigate, various defenses that can be raised in response, and the changing political and investigative landscape of the 116th Congress.  We also note missteps that subjects of investigations sometimes make when receiving an inquiry and best practices for how to respond. I.    What is a Congressional Investigation? Congressional investigations present a number of unique challenges not found in the familiar arenas of civil litigation and Executive Branch investigations.  Unlike the relatively controlled environment of a courtroom, congressional investigations often unfold in a hearing room in front of television cameras and on the front pages of major newspapers and social media feeds. The first thing to know about congressional investigations is that Congress’ power to investigate is broad—as broad as its legislative authority.  The “power of inquiry” is inherent in Congress’ authority to “enact and appropriate under the Constitution.”[1]  And while Congress’ investigatory power is not a general power to probe any private affair or to conduct law enforcement investigations, but rather must further a valid legislative purpose,[2] the term “legislative purpose” is understood broadly to include not only gathering information for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.[3] As a practical matter, numerous motivations (not always legitimate) often drive a congressional inquiry, including: advancing a chair’s political agenda or public profile, exposing criminal wrongdoing, pressuring a company to take certain actions, and responding to public outcry.  Recognizing the presence of these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy. II.    Investigatory Tools of Congressional Committees Congress has many investigatory tools at its disposal, including: (1) requests for information; (2) interviews; (3) depositions; (4) hearings; (5) referrals to the Executive Branch for prosecution; and (6) subpoenas.  If these methods fail, Congress can use its contempt power in an effort to punish individuals or entities who refuse to comply with subpoenas.  It is imperative that targets are familiar with the powers (and limits) of each of the following tools to best chart an effective response:

  • Requests for Information:  Any member of Congress may issue a request for information to an individual or entity, which may seek documents or other information.[4]  Absent the issuance of a subpoena, responding to such requests is entirely voluntary.  As such, recipients of such requests should carefully consider the pros and cons of different degrees of responding.
  • Interviews:  Interviews also are voluntary, led by committee staff, and occur in private (in person or over the phone).  They tend to be less formal than depositions and are sometimes transcribed.  Committee staff may take copious notes and rely on interview testimony in subsequent hearings or public reports.
  • Depositions:  Depositions can be compulsory, are transcribed, and are taken under oath.  As such, depositions are more formal than interviews and are similar to those in traditional litigation.  The number of committees with authority to conduct staff depositions has increased significantly over the last few years.  In the last Congress, the House required (with limited exceptions) that one or more Members of Congress be present during a deposition.  Importantly, the House rules for the 116th Congress have eliminated this requirement (see infra, Section IV), which will likely result in an increase in the use—or at least threatened use—of depositions as an investigative tool.[5]  It is expected that the House Rules Committee soon will issue guidance on how staff depositions are to be conducted.  In the Senate, only the Judiciary Committee requires a member present, unless waived by agreement of the Chair and Ranking Member.[6]

On January 25, 2019, the House Rules Committee issued new regulations governing depositions by committee counsel.  Significantly, the regulations now allow for immediate overruling of objections raised by a witness’s counsel and immediate instructions to answer, on pain of contempt, and appear to eliminate the witness’s right to appeal rulings on objections to the full committee (although committee members may still appeal).  This will likely speed up the deposition process, as previously the staff deposition regulations required a recess before the chair could rule on an objection.  Additionally, the regulations now expressly allow for depositions to continue from day to day and permit, with notice from the chair, questioning by members and staff of more than one committee.   Finally, the regulations have removed a prior requirement that allowed objections only by the witness or the witness’s lawyer.  This change appears to allow objections from staff or Members who object to a particular line of questioning.[7]

  • Hearings:  While both depositions and interviews allow committees to acquire information quickly and (at least in many circumstances) confidentially,[8] testimony at hearings, unless on a sensitive topic, is conducted in a public session led by the Members themselves (or, on occasion, committee counsel).[9]  Hearings can either occur at the end of a lengthy staff investigation or more rapidly, often in response to an event that has garnered public and congressional concern.  Most akin to a trial in litigation (though without many procedural or evidentiary rules), hearings are often high profile and require significant preparation to navigate successfully.
  • Executive Branch Referral:  Congress also has the power to refer its investigatory findings to the Executive Branch for criminal prosecution.  After a referral from Congress, the Department of Justice may charge an individual or entity with making false statements to Congress, obstruction of justice, or destruction of evidence.  Importantly, while Congress may make a referral, the Executive Branch retains the discretion to prosecute, or not.
Subpoena Power As noted above, Congress will usually seek voluntary compliance with its requests for information or testimony.  However, it may compel disclosure of information or testimony through the issuance of a congressional subpoena.[10]  Like Congress’ power of inquiry, there is no explicit constitutional provision granting Congress the right to issue subpoenas.[11]  But the Supreme Court has recognized that the issuance of subpoenas is “a legitimate use by Congress of its power to investigate” and its use is protected from judicial interference by the Speech or Debate Clause.[12]  Congressional subpoenas are also subject to few legal challenges.[12]  And “there is virtually no pre-enforcement review of a congressional subpoena.”[13] The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee.[15]  While nearly every standing committee in the House and Senate has the authority to issue subpoenas, the specific requirements for issuing a subpoena vary by committee.  These rules are still being developed by the committees of the 116th Congress, and can take many forms.[16]  For example, several House committees authorize the committee chair to issue a subpoena unilaterally and only require that notice be provided to the ranking member.  Others, however, require approval of the chair and ranking member, or upon the ranking member’s objection, require approval by a majority of the committee. Contempt of Congress Failure to comply with a subpoena can result in contempt of Congress.  Although Congress does not frequently resort to its contempt power to enforce its subpoenas, it has three potential avenues for seeking to implement its contempt authority.
  • Inherent Contempt Power:  The first, and least relied upon, is Congress’ inherent contempt power.  Much like the subpoena power itself, the inherent contempt power is not specifically authorized in the Constitution, but the Supreme Court has recognized its existence and legitimacy.[17]  To exercise this power, the House or Senate must pass a resolution and then a full trial or evidentiary proceeding must occur, followed by debate and (if contempt is found to have been committed) imposition of punishment.[18]  As is apparent in this description, the inherent contempt authority is cumbersome and inefficient, and potentially fraught with political peril for legislators.  It is therefore unsurprising that Congress has not used it since 1934.[19]
  • Statutory Criminal Contempt Power:  Congress also possesses a statutory criminal contempt power.  In 1857, Congress enacted this criminal contempt statute as a supplement to its inherent authority.[20]  Under the statute, a person who refuses to comply with a subpoena is guilty of a misdemeanor and subject to a fine and imprisonment.[21]  “Importantly, while Congress initiates an action under the criminal contempt statute, the Executive Branch prosecutes it.”[22]  This relieves Congress of the burdens associated with its inherent contempt authority.  The statute simply requires the House or Senate to approve a contempt citation.  Thereafter, the statute provides that it is the “duty” of the “appropriate United States attorney” to prosecute the matter, although the Department of Justice maintains that it always retains discretion not to prosecute.[23]  Although utilized as recently as the 1980s, the criminal contempt power has largely fallen into disuse.[24]
  • Civil Contempt Power:  Finally, Congress may exercise its civil contempt power.  The Senate’s civil contempt power is expressly codified.[25]  This statute expressly authorizes the Senate to seek enforcement of legislative subpoenas in a U.S. District Court.  In contrast, the House does not have a civil contempt statute, but it may pursue a civil contempt action “by passing a resolution creating a special investigatory panel with the power to seek judicial orders or by granting the power to seek such orders to a standing committee.”[26]  In the past, the full House has “adopt[ed] a resolution finding the individual in contempt and authorizing a committee or the House General Counsel to file suit against a noncompliant witness in federal court.”[27]  It remains to be seen whether that process will be followed in the 116th Congress; the incoming Chairman of the House Rules Committee has taken the position that the current House rules empower the Bipartisan Legal Advisory Group (consisting of the Speaker, the Majority and Minority Leaders, and the Majority and Minority Whips) to authorize a civil enforcement action without the need for a House vote.[28]
III.    Defenses to Congressional Inquiries While potential defenses to congressional investigations are limited, they are important to understand—likely more so now with Democrats taking control of the House.  The principal defenses are as follows: Jurisdiction As discussed above, a congressional investigation is required generally to relate to a legislative purpose, and must also fall within the scope of legislative matters assigned to the particular committee at issue.  In a challenge to a committee’s jurisdiction, the party subject to the investigation must argue that the inquiry does not have a proper legislative purpose, that the investigation has not been properly authorized, or that a specific line of inquiry is not pertinent to an otherwise proper purpose within the committee’s jurisdiction.  Because courts generally interpret “legislative purpose” broadly, these challenges can be an uphill battle.  Nevertheless, this defense should be considered when a committee is pushing the boundaries of its jurisdiction. Constitutional Defenses Constitutional defenses under the First and Fifth Amendments may be available in certain circumstances.  While few of these challenges are ever litigated, these defenses should be carefully evaluated by the subject of a congressional investigation. When a First Amendment challenge is invoked, a court must engage in a “balancing” of “competing private and public interests at stake in the particular circumstances shown.”[29]  The “critical element” in the balancing test is the “existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness.”[30]  Though the Supreme Court has never relied on the First Amendment to reverse a criminal conviction for contempt of Congress, it has recognized that the Amendment may restrict Congress in conducting investigations.[31]  Courts have also recognized that the First Amendment constrains judicially compelled production of information in certain circumstances.[32]  Accordingly, it would be reasonable to contend that the First Amendment limits congressional subpoenas at least to the same extent. The Fifth Amendment’s privilege against self-incrimination is available to witnesses—but not entities—who appear before Congress.[33]  The right generally applies only to testimony, and not to the production of documents,[34] unless those documents satisfy a limited exception for “testimonial communications.”[35]  Congress can circumvent this defense by granting transactional immunity to an individual invoking the Fifth Amendment privilege.[36]  This allows a witness to testify without the threat of a subsequent criminal prosecution based on the testimony provided. Attorney-Client Privilege & Work Product Defenses Although committees in the House and Senate have taken the position that they are not required to recognize the attorney-client privilege, in practice, the committees generally acknowledge the privilege as a valid protection.  Moreover, no court has ruled that the attorney-client privilege does not apply to congressional investigations.  Committees often require that claims of privilege be logged as they would in a civil litigation setting.  In assessing a claim of privilege, committees balance the harm to the witness of disclosure against legislative need, public policy, and congressional duty. The work product doctrine protects documents prepared in anticipation of litigation.  Accordingly, it is not clear whether or in what circumstances the doctrine applies to congressional investigations, as committees may argue that their investigations are not necessarily the type of “adversarial proceeding” required to satisfy the “anticipation of litigation” requirement.[37] IV.    Lay of the Land in the 116th Congress House of Representatives With Democrats taking charge of the House for the first time since 2010, the chamber’s investigative priorities are likely to shift significantly to a number of issues Democrats have previously attempted to probe while they were in the minority.  The investigative tools available to committee chairs also have significantly strengthened since Democrats were last in the majority. For example, nearly all House committees now have authority that permits staff counsel to conduct depositions.  And, as noted above, Democrats recently have removed the requirement that a Member must be present during the taking of a deposition[38] and have adopted new regulations that will permit staff investigators to adopt a more aggressive posture.[39]  Such broad authority could make it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed.  The Democrats’ investigative arsenal is further bolstered by the fact that approximately a dozen committee chairs are empowered to issue subpoenas without consent of the ranking member.  Democrats have thus gained command of a considerably more powerful investigative apparatus than existed in previous Congresses. Many committees are likely to focus on oversight of the Trump administration; however, several members have signaled their intention to examine numerous topics affecting the private sector as well. Industries and entities expected to face considerable scrutiny include:
  • The pharmaceutical industry;
  • Drug manufacturers, distributors, and pharmacy benefit managers;
  • Health insurers and health care providers;
  • Consumer-facing financial institutions;
  • Student loan lenders;
  • Credit agencies;
  • E-cigarette manufacturers;
  • Technology and social media companies;
  • Entities responsible for safeguarding data privacy;
  • Industries disproportionally serving elderly populations; and
  • Private entities connected to the Trump Organization or high-level administration figures.
We have also catalogued the publicly stated priorities of certain incoming chairs and other key Democratic members.
  • House Oversight and Reform:  Chairman Elijah Cummings (D-MD) has said on several occasions that investigating prescription drug pricing and health insurance practices with respect to pre-existing conditions will be a primary focus of his committee.  On January 14, 2019, Chairman Cummings launched his first major investigation of the 116th Congress—into prescription drug pricing.
  • House Energy and Commerce:  Chairman Frank Pallone (D-NJ) has already announced a hearing related to the Affordable Care Act, an indication that that the health care industry is likely to be a top issue.  Pallone has also announced a hearing on issues related to climate change, a topic of inquiry that could envelop numerous industries.  Meanwhile, in the prior Congress, Democratic members of the committee called for investigations related to prescription drug pricing, pharmaceutical tax breaks, and issues related to nursing home management, topics they are likely to press forward with now that they hold the gavel.  In the prior Congress, Chairman Pallone also issued information requests to social media companies related to election interference, to online retailers related to counterfeit merchandise, and to media companies related to industry consolidation.
  • House Financial Services:  Chairwoman Maxine Waters (D-CA) has made clear that numerous financial institutions, particularly the country’s largest banks, will face scrutiny on a variety of issues affecting consumers and small businesses, as well as financial institutions’ ongoing compliance with safeguards designed to prevent another financial crisis.  She has also indicated her intention to focus on minority hiring practices in senior corporate positions.  In the prior Congress, Congresswoman Waters also sought to target payday lending practices.  It also has been reported that she will hold a hearing in February focused on credit reporting companies.
  • House Ways and Means:  Chairman Richard Neal (D-MA) has stated he will take aim at issues related to the health care insurance industry and rising health care costs.
  • House Science, Space, and Technology:  Chairwoman Eddie Bernice Johnson (D-TX) has indicated an intention of focus on climate change.  Additionally, in the prior Congress, Chairwoman Johnson sought to investigate certain private institutions and universities in relation to sexual harassment allegations.  She also targeted the automotive and oil and gas industries in relation to relaxed EPA regulations.
In their recently passed rules package, Democrats also re-established the House Select Committee on the Climate Crisis,[40] which is mandated with examining issues related to climate change and will be chaired by Congresswoman Kathy Castor (D-FL).[41]  While the committee lacks subpoena power, a broad range of industry actors may find themselves on the receiving end of inquiries, particularly in light of the fact that several new House Democrats made climate change a top issue in their election campaigns.  And the Select Committee can recommend that other committees issue subpoenas, which provides an added incentive to cooperate with its inquiries. Senate On the Senate side, while Republicans remain in control of the chamber, committee chairs have signaled that they are likely to investigate business sectors such as technology, health care, and pharmaceuticals.  And unlike their Democratic counterparts in the House, Republican chairs are unlikely to divert significant committee resources to oversight of the Trump administration. Below, we have catalogued areas in which certain committees may focus in the 116th Congress:
  • Permanent Subcommittee on Investigations:  Majority and Minority staffs recently completed a two-year investigation regarding the price of drug treatments to combat Opioid overdosing and are expected to continue to pursue the subject of drug pricing generally.
  • Senate Finance:  Chairman Chuck Grassley (R-IA), who moved to Finance from Judiciary, has stated that he plans to use his new post to investigate rising health care costs.  Chairman Grassley has also said he will investigate the effect of trade and tax policies.
  • Health, Education, Labor, and Pensions:  Chairman Lamar Alexander (R-TN), who plans to retire in 2020, has long made issues related to health care a primary focus and held hearings during the previous Congress related to drug pricing.  We expect Chairman Alexander to continue to pursue these subject matters.
  • Commerce, Science, and Transportation:  Chairman John Thune (R-SD) has previously made drug pricing issues a committee priority and we expect that focus to continue.  Issues related to technology and data privacy are also expected to be on Chairman Thune’s agenda.
  • Special Committee on Aging: We expect Chairwoman Susan Collins (R-ME) will continue her prior inquiries into rising health care costs for seniors, and particularly rising prices of prescription drugs that disproportionately serve senior populations.
  • Senate Judiciary: Incoming Chairman Lindsay Graham (R-SC) previously spearheaded a Judiciary subcommittee inquiry into various social media companies on the issue of election interference.  He is likely to pursue that topic, as well as larger issues of data privacy, on a broader scale now that he is chair of the full committee.  The committee has also previously investigated social media companies for alleged bias against the dissemination of conservative opinions, work that may continue this Congress.
Additionally, Senate Democrats are expected to pursue numerous inquiries that they initiated in the previous Congress, some of which overlap with GOP priorities, including on issues related to data privacy concerns, social media company practices, e-cigarettes, banking regulations, and health care costs.  And of course, Senate Democrats will remain focused on issues related to the Mueller investigation and, inevitably, private sector entities that may be tangentially related. V.    Top Mistakes and How to Prepare Successfully navigating a congressional investigation requires a multifaceted mastery of the facts at issue, careful consideration of collateral political events, and crisis communications. Here are some of the more common mistakes we have observed:
  • Facts:  Failure to identify and verify the key facts at issue;
  • Message:  Failure to communicate a clear and compelling narrative;
  • Context:  Failure to understand and adapt to underlying dynamics driving the investigation;
  • Concern:  Failure to timely recognize the attention and resources required to respond;
  • Legal:  Failure to preserve privilege and assess collateral consequences;
  • Rules:  Failure to understand the rules of each committee, which can vary significantly; and
  • Big Picture:  Failure to consider how an adverse outcome can negatively impact numerous other legal and business objectives.
The consequences of inadequate preparation can be disastrous on numerous fronts.  A keen understanding of how congressional investigations differ from traditional litigation and even Executive Branch or state agency investigations is therefore vital to effective preparation.  The most successful subjects of investigations are those that both seek advice from experienced counsel and employ multidisciplinary teams with expertise in government affairs, media relations, e-discovery, and the key legal and procedural issues. Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations.  If you or your company become the subject of a congressional inquiry, or if you are concerned that such an inquiry may be imminent, please feel free to contact us for assistance.

[1]   Barenblatt v. United States, 360 U.S. 178, 187 (1957).
[2]   See Wilkinson v. United States, 365 U.S. 399, 408-409 (1961); Watkins v. United States, 354 U.S. 178, 199‑201 (1957).
[3]   Michael D. Bopp, Gustav W. Eyler, & Scott M. Richardson, Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations, 25 Corn. J. of Law & Pub. Policy 453, 456 (2015).
[4]   Id. at 456.
[5]   See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
[6]   Consistent with past practice, Gibson Dunn will release a client alert outlining the specific subpoena rules for each committee as soon as they become available.  See, e.g., Michael D. Bopp, F. Joseph Warin, Trent J. Benishek, & Alexander W. Mooney, The Power to Investigate: Table of Authorities of House and Senate Committees for the 115th Congress, https://www.gibsondunn.com/the-power-to-investigate-table-of-authorities-of-house-and-senate-committees-for-the-115th-congress/. [7]   See 165 Cong. Rec. H1216 (Jan. 25, 2019) (statement of Rep. McGovern).
[8]   Bopp, supra note 3, at 457.
[9]   Id. at 456-57.
[10]   Id. at 457.
[11]   Id.
[12]   Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504-05 (1975).
[13]   Bopp, supra note 3, at 458.
[14]   Id. at 459.
[15]   Id. at 458.
[16]   Gibson Dunn will detail these rules when they are finalized in an upcoming publication.  See supra note 6.
[17]   Bopp, supra note 3, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).
[18]   Id.
[18]   Id. at 466.
[20]   Id. at 461.
[21]   See 2 U.S.C. §§ 192 and 194.
[22]   Bopp, supra note 3, at 462.
[23]   See 2 U.S.C. § 194.
[24]   Bopp, supra note 3, at 467.
[25]   See 2 U.S.C. §§ 288b(b) and 288d.
[26]   Bopp, supra note 3, at 465.
[27]   Id.
[28]   See 165 Cong. Rec. H30 (Jan. 3, 2019) (“If a Committee determines that one or more of its duly issued subpoenas has not been complied with and that civil enforcement is necessary, the BLAG, pursuant to House Rule II(8)(b), may authorize the House Office of General Counsel to initiate civil litigation on behalf of this Committee to enforce the Committee’s subpoena(s) in federal district court.”) (statement of Rep. McGovern).
[29]   Barenblatt, 360 U.S. 109, 126 (1959).
[30]   Watkins, 354 U.S. at 198.
[31]   See id. at 197–98.
[32]   See, e.g., Perry v. Schwarzenegger, 91 F.3d 1147, 1163 (9th Cir. 2009).
[33]   See Quinn v. United States, 349 U.S. 155, 163 (1955).
[34]   See Fisher v. United States, 425 U.S. 391, 409 (1976).
[35]   See United States v. Doe, 465 U.S. 605, 611 (1984).
[36]   See 18 U.S.C. § 6002; Kastigar v. United States, 406 U.S. 441 (1972).
[37]   See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997).
[38]   See H.R. Res. 6, 116th Cong. § 103(a)(1) (2019).
[39]   Cong. Rec., supra note 7. [40]   See H.R. Res. 6, 116th Cong. § 104(f)(1)(A) (2019).
[41]   This committee was previously named the House Select Committee on Energy Independence and Global Warming.  Republicans disbanded the committee when they regained control of the House in 2011.

Gibson, Dunn & Crutcher's lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers in the firm's Congressional Investigations group in Washington, D.C.: Michael D. Bopp - Chair, Congressional Investigations Group (+1 202-955-8256, mbopp@gibsondunn.com) F. Joseph Warin (+1 202-887-3609, fwarin@gibsondunn.com) Thomas G. Hungar (+1 202-887-3784, thungar@gibsondunn.com) Alexander W. Mooney (+1 202-887-3751, amooney@gibsondunn.com) Tommy McCormac* (+1 202-887-3772, tmccormac@gibsondunn.com)

* Not yet admitted to practice in the District of Columbia and currently practicing under the supervision of the Principals of the Firm.

© 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

July 9, 2018 |
H.R. 4010: The Congressional Subpoena Compliance and Enforcement Act of 2017

Click for PDF Late last year, the U.S. House of Representatives passed H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017 (the "Bill").[1]  The Bill seeks to strengthen Congressional subpoena enforcement power by:  (1) codifying the subpoena enforcement power and process in statute; (2) expediting litigation arising from non-compliance with the subpoena; (3) codifying a court's power to levy financial penalties against the head of a U.S. government agency who willfully fails to comply with a subpoena; and (4) requiring the production of a privilege log in cases where a subpoena recipient refuses to comply on the basis of privilege. The Bill was introduced by Rep. Darrell Issa (R-CA) and ordered reported out of the Committee on the Judiciary by a unanimous vote.  It passed in the House by voice vote.  The Bill was received in the Senate and referred to the Committee on the Judiciary, where it is currently pending. The Bill has support from both sides of the aisle, which is not surprising given that, historically, both parties, when in control of Congress, have experienced delays and difficulties when attempting to enforce subpoenas against the Executive Branch, as well as private parties.  As discussed below, courts have resolved recent cases favorably to Congress, but only after significant delays that likely impacted the usefulness of the eventually-disclosed information to congressional oversight.

I.          Background and Purpose

The stated purpose of the Bill is to enhance compliance with requests for information pursuant to legislative power under Article I of the Constitution.  While the Bill was pending in the House, Members expressed concern over significant delays in the enforcement of congressional subpoenas, particularly with regard to subpoenas served on the Executive Branch.[2]  House Judiciary Committee Chairman Bob Goodlatte (R-VA) commented in his opening statement during markup that "the existing framework to enforce congressional subpoenas has proved to be an inadequate means of protecting congressional prerogatives."[3]  Rep. Issa, the Bill's sponsor and former Chairman of the Oversight and Government Reform Committee, said he saw subpoenaed parties, in particular the Executive Branch, go to great lengths to avoid turning over documents or materials to congressional committees for review.[4]  He noted that such "delays were unfair to the body and unfair to the American people because it denied them in any reasonable period of time the effect of factfinding."[5]  He also commented that both parties have tried to take advantage of partisan rivalries while in control of the Executive Branch.[6]  Statements by then-Ranking Member John Conyers (D-MI) echoed concerns about the failure to comply with subpoenas and the hope that putting requirements in writing would ensure that subpoena recipients understand their full legal force.[7]

              A.        Congressional Subpoena Enforcement

Congress may combat non-compliance with a subpoena in three ways:  1) through its inherent contempt power; 2) through the criminal contempt statute; or 3) through civil contempt proceedings, which differ between the House and Senate.[8]  The first, which has not been used since 1935, allows Congress to bring an individual before the full House or Senate for trial, and may result in imprisonment for a specified time or until compliance.[9]  Under the criminal contempt statute, a contempt citation must be approved by the full committee, then the full House or Senate, and eventually is presented to the U.S. Attorney, who has a "duty" to bring the matter before a grand jury.[10]  In practice, the Department of Justice has taken the position that it may direct the U.S. Attorney to refuse to proceed on the contempt citation.[11]  This position is based on a constitutional separation-of-powers argument that posits the Executive Branch's prosecutorial discretion authority cannot be interfered with by the Legislature or Judiciary. The DOJ's position rests on the theory that any legislative or judicial interference with prosecutorial discretion would unconstitutionally interfere with the Executive Branch's essential functions.[12]  Prosecutorial discretion allows the Executive Branch to balance "various legal, practical, and political considerations" when deciding which legal violations to pursue.[13] According to the Justice Department, this discretion is constitutionally absolute; the Executive must always have full and independent authority to dictate whether a criminal case will move forward. Therefore, the argument goes, any attempt by Congress to force the Attorney General to take executive action on a contempt citation violates separation-of-powers principles by unconstitutionally interfering with his or her discretionary authority.[14]  This position essentially takes criminal contempt off the table of options available to Congress as a means of enforcing a subpoena against an Executive Branch employee, thus effectively leaving Congress with the third procedure, civil contempt. Under the third and most common procedure, a single house or committee of Congress may file suit in Federal district court seeking a declaration that the individual or entity in question is legally obligated to comply with the congressional subpoena.  The Senate has existing statutory authority to pursue enforcement through civil contempt.[15]  Notably, however, the statute is inapplicable by its terms in the case of a subpoena issued to an officer or employee of the Federal government acting in his or her official capacity.[16]  The House has no such existing statutory authority, but as past precedent—including the decisions in Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), and Committee on Oversight & Government Reform v. Lynch, 156 F. Supp. 3d 101 (D.D.C. 2016)—shows, the House may authorize a committee to seek a civil enforcement action to force compliance with a subpoena, even without specific statutory authorization.[17] Nevertheless, reliance on a declaratory civil action to enforce a subpoena against an executive official has proven inadequate due to the time required to achieve a final, enforceable ruling in the case.  In Miers, the district court rendered a decision favorable to Congress but the ruling was appealed and the D.C. Circuit did not reach a decision on the merits by the end of the 110th Congress.  Ultimately, the appeal was dismissed at the request of the parties.  Similarly, in HOGR v. Lynch, the Department of Justice eventually was forced to disclose documents, but the production was made nearly five years after the documents were first requested. Members are concerned that such delays undermine a committee's ability to conduct effective oversight.  Accordingly, the Bill seeks to amend and codify the civil contempt enforcement process in two primary ways.  First, it directs a district court to "expedite to the greatest possible extent the disposition of any such action and appeal" and allows the plaintiff to request the action be heard by a three-judge panel, with direct appeal to the Supreme Court.[18]  Second, the Bill states that the court may impose financial penalties directly against the head of a government agency who willfully fails to comply with the congressional subpoena.[19]  It stipulates that no taxpayer funds may be used to pay this penalty. Rep. Issa made clear that expediting the judicial review process was the primary goal of the Bill.  During markup, he stated that "speed matters when discovery is underway."[20]  The intent of the Bill, he stated, is "not to change the outcome of any effort under a subpoena" but to get before a Federal judge "in a timely fashion."[21] Members were eager to note Section 4 of the Bill, which states "[n]othing in this Act shall be interpreted to diminish Congress' inherent authority or previously established methods and practices for enforcing compliance with congressional subpoenas…"[22]  Ranking Member Conyers stressed at markup that "Congress does not require a statute in order to enforce its subpoenas in Federal court."[23]  Rep. Issa stated that the Bill does not seek new power, but only "an expeditious review by a Federal judge of a claim" for the production of documents or the appearance of a person.[24]  Rep. Jerrold Nadler (D-NY) also commented that the statute to enforce subpoenas is not required but is "useful as a means to codify certain practices and to expedite enforcement of subpoenas."[25]

              B.        Privilege

The House and Senate take the position that they need not honor claims of attorney-client privilege or testimonial privilege for confidential communications (e.g., those between a doctor and a patient).[26]  This position is based on Congress' inherent constitutional prerogative to investigate, in contrast to the Judicial Branch, where privileges are judge-made exceptions to full disclosure, or based in statute or common law.[27]  Generally, the decision whether to recognize a privilege has been informed by weighing considerations of legislative need, public policy, and the statutory duty of congressional committees to engage in continuous oversight against any possible injury to the witness.[28] Section 3 of the Bill codifies the requirement that a subpoena recipient provide a privilege log for any records being withheld, in whole or in part.[29]  Note that many congressional committees currently request a privilege log in instructions that accompany document request letters or subpoenas.  Under the Bill, the privilege log must include the legal basis asserted for withholding the record.  Recipients also are required to identify and explain any missing records.  The Bill further provides that claims of privilege are waived if a privilege log is not produced.[30]  This provision may have been motivated in part by the Senate Permanent Subcommittee on Investigations' inquiry into Backpage.com, whose CEO refused to turn over documents on the basis of privilege but failed to produce a privilege log.  On March 17, 2016, the Senate passed a resolution[31] authorizing civil enforcement of a subpoena against the CEO seeking the production of documents concerning the company's advertisements for commercial sex services, and a civil contempt proceeding was subsequently initiated in the U.S. District Court for the District of Columbia.[32]  The court eventually held that any privilege had been waived by the failure of Backpage.com's CEO to timely file a log.[33] Notably, Section 4 of the Bill states that nothing in the Bill shall "be interpreted to establish Congress' acceptance of any asserted privilege or other legal basis for noncompliance with a congressional subpoena."[34]  Essentially, this Section of the Bill clarifies for parties responding to a congressional subpoena that the production of a privilege log does not mean that Congress will recognize any privilege, but a privilege log does preserve the privilege argument.

II.        Observations

If the Bill becomes law, it would have practical implications for not only the Executive Branch, but for private parties subpoenaed by Congress.  Upon receiving a subpoena from a congressional committee, private parties should be prepared to timely produce a log of any documents for which it believes a privilege may be asserted.  While this may not ensure that claims of privilege will be recognized, it will prevent an automatic waiver of the privilege. While it is not clear this Bill will become a law, it is not expected to fail for partisan reasons.  Thus far, there is no apparent opposition to the Bill.  Despite bipartisan support, however, it is not clear whether the Senate will take up the bill or might develop a bill of its own to accomplish similar objectives.  As discussed above, some of the Senate's enforcement powers are already codified in statute, so the same urgency may not exist in the Senate as in the House.  It is important to note, however, that, Senator Charles Grassley (R-IA), who serves as Chairman of the Senate Committee on the Judiciary, the committee to which the Bill has been referred, initiated his own inquiry into Operation Fast and Furious (the situation at issue in Lynch) while serving as Ranking Member of the committee, and has expressed similar frustrations about delays in the enforcement of subpoenas.[35]  President Trump has not indicated whether he would support the measure. It is impossible to know whether the Bill, if enacted, would actually expedite the judicial review process and lead to more efficient and effective congressional oversight.  On the one hand, the bill could speed up judicial review of attempts by Congress to vindicate its subpoena authority and make Executive Branch officials think twice before ignoring a committee subpoena.  On the other, it seems unlikely that statutory changes alone will solve Congress' issues with subpoena compliance, particularly when it comes to the Executive Branch.  Perhaps what is needed is a combination of internal rules changes and statutory assistance, where Congress uses some of its inherent authorities to satisfy its oversight and investigative needs.  After all, it seems unlikely that relying on a separate branch of government to vindicate a legislative prerogative alone is the answer.
   [1]   H.R. 4010, 115th Cong. (2017).    [2]   An illustrative example of the perception that Congress' subpoena power may not have sufficient weight was noted by Rep. Eric Swalwell (D-CA) during markup and later discussed by Rep. Jerrold Nadler (D-NY) during floor debate.  After an interview with the Intelligence Committee relating to alleged Russian interference in the 2016 election, a witness gave a public statement saying he had not disclosed certain information and documents during the interview because he was not under subpoena and had certain privileges to assert (despite the fact that he did not actually assert them). See 163 Cong. Rec. H8061 (daily ed. Oct. 23, 2017) (statement of Rep. Jerrold Nadler).    [3]   Markup of H.R. 4010; H.R. 2228; and H.R. 3996  before the H. Comm. on the Judiciary (2017) (statement of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary), available at https://judiciary.house.gov/wp-content/uploads/2017/10/10.12.17-Markup-Transcript.pdf.    [4]   Rep. Darrell  Issa Press Release, "Rep. Issa Bill To Require Compliance with Congressional Subpoenas Passes Judiciary Committee," October 12, 2017, available at https://issa.house.gov/news-room/press-releases/rep-issa-bill-require-compliance-congressional-subpoenas-passes-judiciary.    [5]   163 Cong. Rec. H8061 (daily ed. Oct. 23, 2017) (statement of Rep. Darrell Issa).    [6]   Id.    [7]   Markup of H.R. 4010; H.R. 2228; and H.R. 3996  before the H. Comm. on the Judiciary (2017) (statement of Rep. John Conyers, Ranking Member, H. Comm. on the Judiciary), available at https://judiciary.house.gov/wp-content/uploads/2017/10/10.12.17-Markup-Transcript.pdf.    [8]   See CRS Report, "Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure," May 12, 2017, available at http://www.crs.gov/Reports/RL34097?source=search&guid=423009d34fd84a7b98a6fabe7ef0db57&index=0.    [9]   See, e.g., Jurney v. MacCracken, 294 U.S. 125 (1935); McGrain v. Daughtery, 273 U.S. 135 (1927); Anderson v. Dunn, 19 U.S. 204 (1821). [10]   2 U.S.C. §§ 192, 194. [11]   See Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. O.L.C. 101, 122 (1984) [hereinafter 8 Op. O.L.C.]. [12]   8 Op. O.L.C. at 115 ("The Executive's exclusive authority to prosecute violations of the law gives rise to the corollary that neither the Judicial nor Legislative Branches may directly interfere with the prosecutorial discretion of the Executive by directing the Executive Branch to prosecute particular individuals."). [13]   Morrison v. Olson, 487 U.S. 654, 708 (1988) (Scalia, J., dissenting) ("to take [prosecutorial discretion] away is to remove the core of the prosecutorial function."); see also 8 Op. O.L.C. at 113–15 (quoting Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841 (1967)) ("The discretion of the Attorney General in choosing whether to prosecute or not to prosecute . . . is absolute [and . . .] required in all cases). [14]   8 Op. O.L.C. at 125 ("A number of courts have expressly relied upon the constitutional separation of powers in refusing to force a United States Attorney to proceed with a prosecution.") (citing cases). [15]   2 U.S.C. §§ 288b(b), 288d, 1365. [16]   28 U.S.C. §1365(a) (2012). [17]   See CRS Report at 30.  In Miers, the court held that the subpoena power "derives implicitly from Article I of the Constitution" thus concluding that the case "arises under the Constitution" and therefore qualifies for federal question jurisdiction.  Miers, 558 F. Supp. 2d at 64.  In Lynch, the House pursued a civil action in Federal court to enforce a subpoena against Attorney General Eric Holder for his failure to comply with subpoenas issued pursuant to the investigation of Operation Fast and Furious.  In its opinion rejecting the Department of Justice's motion to dismiss based on jurisdictional and justiciability arguments, the court largely adopted the reasoning in Miers.  Following Miers and Lynch, it appears all that is legally required for House committees to seek civil enforcement of subpoenas is that authorization be granted by resolution of the full House. [18]   H.R. 4010, 115th Cong. §2 (2017). [19]   Id. [20]   Markup of H.R. 4010; H.R. 2228; and H.R. 3996  before the H. Comm. on the Judiciary (2017) (statement of Rep. Darrell Issa), available at https://judiciary.house.gov/wp-content/uploads/2017/10/10.12.17-Markup-Transcript.pdf. [21]   Id. [22]   H.R. 4010, 115th Cong. §4 (2017). [23]   Markup of H.R. 4010; H.R. 2228; and H.R. 3996  before the H. Comm. on the Judiciary (2017) (statement of Rep. John Conyers, Ranking Member, H. Comm. on the Judiciary), available at https://judiciary.house.gov/wp-content/uploads/2017/10/10.12.17-Markup-Transcript.pdf. [24]   163 Cong. Rec. H8060 (daily ed. Oct. 23, 2017) (statement of Rep. Darrell Issa). [25]   Id. [26]   CRS Report at 61. [27]   Id. [28]   Id. at 60. [29]   H.R. 4010, 115th Cong. §3 (2017). [30]   H.R. 4010, 115th Cong. §2(a) (2017). [31]   S. Res. 377, 114th Cong. (2016). [32]   Senate Permanent Subcomm. v. Ferrer, 199 F. Supp. 3d 125 (D.D.C. 2016). [33]   Id. [34]   H.R. 4010, 115th Cong. §4 (2017). [35]   See, e.g., Operation Fast and Furious: Obstruction of Congress by the Department of Justice: Hearing Before the H. Comm. on Oversight and Gov't Reform, 115th Cong. (2017) (statement of Sen. Charles Grassley, Chairman, S. Comm. on the Judiciary) ("This case has broad implications for the ability of the elected representatives of the American people to do our constitutional duty to act as a check on the executive branch.  Clearly, Congress needs to do something.  It cannot take years for this body to get answers from a co-equal branch of government about information that has no legal basis to stay hidden from Congress.")
Gibson Dunn's lawyers  are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers: Michael D. Bopp - Chair, Congressional Investigations Subgroup (+1 202-955-8256, mbopp@gibsondunn.com) Emily Yezerski - Washington, D.C. (+1 202-887-3549, eyezerski@gibsondunn.com)

June 1, 2017 |
The Power to Investigate: Table of Authorities of House and Senate Committees for the 115th Congress

For the fourth successive Congress, we are releasing a table of authorities that summarizes the investigative authorities and powers of each House and Senate committee.  We believe that understanding a committee's investigative powers is crucial to successfully navigating a congressional investigation. 

Congressional committees have the power to issue subpoenas to compel witnesses to produce documents, testify at committee hearings, and, in some cases, appear for depositions.  Moreover, standing committees may appeal to the full House or Senate to hold in contempt any witness who refuses to appear, answer questions, or produce documents, though note, of course, that Constitutional protections apply to witnesses in congressional investigations.[1]  Congressional contempt authority may take one of three forms: inherent, civil, or criminal.  Failure to adhere to committee rules during an investigation may thus have severe legal and reputational consequences.   

Committees may adopt their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions, though in the House, general deposition procedures applicable to all Committees except the Committee on Oversight and Government Reform are promulgated by the House Rules Committee.  Each committee may re-issue and sometimes alter its rules at the commencement of each Congress.  House and Senate committees adopted their rules for the 115th Congress earlier this year.

Meanwhile, at the start of this Congress the House voted to authorize the power of nearly all committees to compel witnesses to sit for a staff deposition while the Senate took similar action with respect to the Judiciary Committee.  The attached table of authorities reflects these developments, as well as other key rule changes.  As a reminder, Committees also are subject to the rules of the full House or Senate.

Some items of note:

House

  • While just five House committees in the prior Congress were vested with staff deposition authority permitting committee counsel to conduct depositions, the House extended such authority this Congress to all standing committees (with the exception of the Committee on House Administration and the Committee on Rules).  Additionally, this new authority provides that a Member need not be present for such depositions if the House is not in session and the full committee authorizes the taking of the deposition without a member present.  While it largely remains to be seen how aggressive committees will be in making use of this authority in the 115th Congress, it has the potential to dramatically change the way House committees conduct investigations and, in particular, how they enforce subpoenas.  Further, such authority could make it more difficult for minority members to affect, influence, or otherwise hinder investigations to which they are opposed.  The rule change was controversial and several Democrats expressed criticism.  Rep. Louise Slaughter (D-NY), the ranking member on the House Rules Committee, told Bloomberg News: "Freely handing out the power to compel any American to appear, sit in a room, and answer staff's invasive questions on the record--without members even being required to be present--is truly unprecedented, unwarranted, and offensive."[2]  Moreover, a spokesman for House Minority Leader Nancy Pelosi (D-CA) said that "[t]his rules change represents a shocking continuation and expansion of House Republicans' abusing of congressional processes to intimidate private citizens. . . ."[3]  Conversely, House Speaker Paul Ryan's office noted that under the prior rules, witnesses had tried to use House Members' busy schedules as an excuse to avoid appearing for a deposition.[4]
  • In light of what for many committees is new staff deposition authority, we expect that the unilateral ability of a chairman to issue a subpoena will be an even more powerful investigative tool in the House of Representatives in the 115th Congress.  As was the case in the prior Congress, a dozen committees empower their chairman to unilaterally issue a subpoena: the Committees on Education and the Workforce, Foreign Affairs, Oversight and Government Reform, Select Intelligence, Transportation and Infrastructure, Ways and Means, Agriculture, Energy and Commerce, Financial Services, Homeland Security, Judiciary, and Science, Space, and Technology.  The Ranking Member cannot block the subpoena but usually must either be consulted or given notice prior to the subpoena being issued.  Several of these committees require such notice to occur 24 to 72 hours before the subpoena is issued.  And, in the case of a subpoena compelling a witness to appear at a staff deposition, House rules mandate that at least three days' notice is provided to the ranking member.

Senate

  • New for the 115th Congress is Senate authorization of the Judiciary Committee to compel a witness by subpoena to sit for a deposition, which may be conducted by committee staff provided that a member is present (unless the witness has waived that requirement).  As is the case with the similarly expanded authority in the House, this deposition authority has the potential to significantly increase the power of staff to gather information from otherwise uncooperative witnesses.
  • The expansion of deposition authority to the Judiciary Committee brings the count to seven Senate bodies that have received Senate authorization to take depositions.  In addition to Judiciary, the Senate Committee on Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations receive the authority to do so each Congress from the Senate's funding resolution.  The Aging and Indian Affairs Committees were authorized by S. Res. 4 in 1977, which the committees incorporate into their rules each Congress.  The Ethics Committee's deposition power was authorized by S. Res. 338 in 1964, which created the committee and is incorporated into its rules each Congress.  And the Intelligence Committee was authorized to take depositions by S. Res. 400 in 1976, which it too incorporates into its rules each Congress.  Of these, staff is expressly authorized to take depositions except in the Indian Affairs and Intelligence Committees.
  • Other Senate committees, namely the Committees on Agriculture, Commerce, Foreign Relations, and Small Business and Entrepreneurship authorize depositions in their rules.  The Small Business and Entrepreneurship Committee also permits Committee staff to take depositions.  However, it is not clear that such deposition authority is authorized by the Senate and, hence, it is similarly not clear whether appearance at a deposition can be compelled.  The Senate's view appears to be that Senate Rules do not authorize staff depositions pursuant to subpoena.  Hence, Senate committees cannot delegate that authority to themselves through committee rules.  It is thus understood that such authority can only be conferred upon a committee through a Senate resolution.[5]
  • As was the case in the prior Congress, while several House committee chairmen can issue subpoenas unilaterally, on the Senate side only the Permanent Subcommittee on Investigations permits the Chairman to issue a subpoena without the consent of the Ranking Member.  The Committees on Agriculture, Nutrition, and Forestry, Commerce, Science, and Transportation, Homeland Security and Governmental Affairs, Small Business and Entrepreneurship, and Veterans' Affairs permit the chairman to issue a subpoena so long as the ranking member does not object within a specified time period.  Furthermore, the Health, Education, Labor, and Pensions (HELP) Committee can delegate its subpoena authority to the chairman, his designees, or a subcommittee with only notice to the ranking member and any other members requesting notice.

Our table of committee authorities is meant to provide a sense of how individual committees can compel a witness to cooperate with its investigation.  But each committee conducts congressional investigations in its own particular way, and investigations vary materially even within a particular committee.  While our table provides a general overview of what rules apply in given circumstances, it is essential to look carefully at a committee's rules to understand specifically how its authorities apply in a particular context.

Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations.  If you have any questions about how a committee's rules apply in a given circumstance, please feel free to contact us for assistance. We are available to assist should a congressional committee seek testimony, information or documents from you. 

Table of Authorities of House and Senate Committees:
http://www.gibsondunn.com/wp-content/uploads/documents/publications/Power-to-Investigate--Table-of-Authorities--House-and-Senate-Committees-115th-Congress.pdf


  [1]   See Morton Rosenberg & Todd Tatelman, Congressional Research Service, Congress's Contempt Power: Law, History, Practice, and Procedure 62 (2007). 

  [2]   Billy House, House GOP Gives Staff Broader New Powers to Grill Witnesses, Bloomberg News (Jan. 3, 2017, 9:28 PM), https://www.bloomberg.com/politics/articles/2017-01-04/house-gop-gives-staff-broader-new-powers-to-grill-witnesses.

  [3]   Id.

  [4]   Id.

  [5]   Jay R. Shampansky, Cong. Research Serv., 95-949 A, Staff Depositions in Congressional Investigations 8 & n.24 (1999); 6 Op. O.L.C. 503, 506 n.3 (1982).  The OLC memo relies heavily on the argument that the Senate Rules never mentioned depositions at that time and those rules still do not mention depositions today.  Rules of the Senate, Committee on Rules and Administration (last visited April 17, 2017), http://www.rules.senate.gov/public/index.cfm?p=RulesOfSenateHome.


Gibson, Dunn & Crutcher's lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work or the following lawyers:

Michael D. Bopp - Chair, Congressional Investigations Group, Washington, D.C. (+1 202-955-8256, mbopp@gibsondunn.com)
F. Joseph Warin - Washington, D.C. (+1 202-887-3609, fwarin@gibsondunn.com)
Trent J. Benishek - Washington, D.C. (+1 202-955-8251, tbenishek@gibsondunn.com)
Alexander W. Mooney - Washington, D.C. (+1 202-887-3751, amooney@gibsondunn.com)


© 2017 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

March 30, 2017 |
Webcast: Congressional Investigations: Where is the 115th Congress Heading?

​During this complimentary briefing, Gibson Dunn lawyers, joined by Matt Owen, Staff Director and Chief Counsel of the U.S. Senate Permanent Subcommittee on Investigations, discuss the unique features of congressional investigations and where Congress is likely to focus its investigative and oversight resources in the 115th Congress. The 114th Congress was a busy one for congressional investigators. A number of investigations were launched or continued, focusing on a variety of industries, including health insurers, Affordable Care Act contractors, pharmaceutical companies, as well as technology, energy, and financial services firms, to name a few. Some of these investigations will continue into 2017, and, with both political branches in Republican hands for the first time in a decade, a number of new investigations will be launched. Our panelists review how congressional investigations work, who the key players are, new committee rules for the 115th Congress, and what several key investigative committees are likely to focus on in the new congressional session. View Slides [PDF] https://player.vimeo.com/video/211738421


PANELISTS: F. Joseph Warin — Co-Chair of the firm's White Collar Defense and Investigations practice and former Assistant United States Attorney in Washington, D.C., Mr. Warin is one of only ten lawyers currently ranked in Chambers USA in five categories. He received the Chambers USA Award for Excellence in 2014 in the category of Litigation: White Collar Crime & Government Investigations. In 2016, Chambers USA selected Mr. Warin as a Leading Lawyer in the nation in the areas of Securities Regulation Enforcement, Securities, and Litigation: FCPA. He was also ranked as a Leading Lawyer in the areas of Securities Litigation and White Collar Crime and Government Investigations in the District of Columbia. Chambers Global 2016 ranked Mr. Warin as a top-tier attorney for USA – FCPA From 2015-2017, he has been selected by Chambers Latin America as a top-tier lawyer in Latin America-wide Fraud & Corporate Investigations. In 2016, Who's Who Legal and Global Investigations Review named Mr. Warin to their list of World's Ten-Most Highly Regarded Investigations Lawyers. In 2014 and 2015, Mr. Warin was honored by Who's Who Legal as its Investigative Lawyer of the Year. He was selected as a 2015 Top Lawyer for Criminal Defense by Washingtonian magazine. He has been listed in The Best Lawyers in America® every year from 2006 – 2017 for White Collar Criminal Defense. Best Lawyers® also named Mr. Warin 2016 Lawyer of the Year for White Collar Criminal Defense in the District of Columbia. Benchmark Litigation has recognized him as a U.S. White Collar Crime Litigator Star for seven consecutive years (2011-2017). In 2016, he was named among the Lawdragon 500 Leading Lawyers in America. U.S. Legal 500 has repeatedly named Mr. Warin a Leading Lawyer for White Collar Criminal Defense Litigation. In 2013, Mr. Warin was awarded the Best FCPA Client Service Award by Main Justice. He was also named to the publication's FCPA Masters list. Michael D. Bopp — Partner in the Washington, D.C. office, Mr. Bopp is Chair of the firm's Congressional Investigations Group, Public Policy Group, and Financial Markets Crisis Group. He has been named one of the 100 most influential people in finance by Treasury and Risk magazine and has testified as an expert on Congressional investigations before Congress. Mr. Bopp also chairs the ABA's Committee on Legislative Process and Government Investigations. His practice focuses on congressional, internal corporate, and other government investigations, public policy and regulatory consulting in a variety of fields, and managing and responding to major crises involving multiple government agencies and branches. Since joining Gibson Dunn in 2008, Mr. Bopp has defended clients in dozens of Congressional and other investigations and has prepared numerous CEOs and other top executives for committee hearings, depositions, and interviews. From 2006-2008, Mr. Bopp served as Associate Director of the Office of Management and Budget and was responsible for overseeing budgets and coordinating regulatory, legislative, and other policy for approximately $150 billion worth of spending for various government agencies, including the Departments of Treasury, Homeland Security, Transportation, Justice, Housing and Urban Development, and Commerce, the General Services Administration, the U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission. His contacts are extensive and strong in both Republican and Democratic circles. Trent J. Benishek — A senior associate in the Washington, D.C. office and a member of the firm's Litigation Department, Mr. Benishek has represented clients in a variety of complex litigation matters before state and federal courts, as well as in investigations by various congressional committees. He currently serves on the firm's global Associates Committee. Prior to joining Gibson Dunn, Mr. Benishek served as the press secretary on a successful campaign for the U.S. House of Representatives, where he focused on earned media and messaging strategy, debate preparation, and policy development. He also previously worked as a legal intern for the Office of Management and Budget's Office of the General Counsel. Mr. Benishek received his law degree in 2010 from the William & Mary School of Law, where he served as an editor of the William and Mary Law Review and was elected to the Order of the Coif. Matt Owen — Staff Director and Chief Counsel of the U.S. Senate Permanent Subcommittee on Investigations (PSI), chaired by Senator Rob Portman. Prior to joining the PSI, he served as Chief Counsel to Senator Mike Lee, chairman of the Senate Judiciary Committee's Subcommittee on Antitrust, Competition Policy, and Consumer Rights. Mr. Owen is a former law clerk to Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit and Justice Antonin Scalia of the U.S. Supreme Court. He also served as a Bristow Fellow in the Office of the Solicitor General in the U.S. Department of Justice. He is a graduate of the University of Texas at Austin and the University of Michigan Law School.

May 16, 2016 |
Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations

When responding to a request from a congressional committee, a company's counsel does not often consider immediately whether and how the response could trigger an Executive Branch enforcement action.  But it has become increasingly necessary for those responding to congressional requests to think about not only how the requesting committee will view their response, but also whether it could trigger interest by federal or state enforcement agencies.  

Gibson Dunn partner Michael D. Bopp, associateScott M. Richardson and former associate Gustav W. Eyler are the authors of "Trouble Ahead, Trouble Behind: Executive Branch Enforcement of Congressional Investigations," recently published in the Cornell Journal of Law and Public Policy.  The authors review Congress's power to investigate and discuss the authorities available to Congress and the Executive Branch for enforcing congressional investigative prerogatives.  They explore how each branch's use of its available enforcement authorities has changed over time, with the Executive Branch becoming more aggressive in bringing enforcement actions that emanate from congressional investigations and Congress relying more frequently on such enforcement activity.  

The authors also discuss the effect of this shift in enforcement activity and what it means for congressional investigations.  Among other things, they note how Executive Branch enforcement of congressional investigations raises certain practical and constitutional concerns that require individuals and corporations to approach such proceedings with increased caution.  They explain that now, more than ever, Executive Branch actions complement congressional investigations or develop as a result of information elicited through them.  The result is that individuals and corporations may face penalties and sanctions divorced from the political safeguards typically associated with congressional action.  

The article includes a series of practice pointers designed to address the real possibility that a congressional investigation of a company or an individual could lead to an Executive Branch enforcement proceeding.   

Click here to view article. 

© 2016, Cornell Journal of Law and Public Policy, Vol 25:453, May 2016.  Reprinted with permission. 


Mr. Bopp is based in Gibson Dunn's Washington, D.C. office, where he chairs the firm's Congressional Investigations Subgroup, Public Policy Practice Group and Financial Markets Crisis Group.  His practice focuses on congressional, internal corporate, and other government investigations, public policy and regulatory consulting in a variety of fields, and managing and responding to major crises involving multiple government agencies and branches.  He is a former Associate Director of the Office of Management and Budget. 

Mr. Richardson, a member of the firm's Litigation Department in Washington, D.C., previously worked as a legislative aide to a Member of Congress and is a former law clerk to the Honorable Roger W. Titus of the United States District Court for the District of Maryland.   

© 2016 Gibson, Dunn & Crutcher LLP

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

February 5, 2014 |
Webcast – Congressional Investigations 2014

​During this complimentary briefing, Gibson Dunn lawyers, joined by Rob Borden, Director of Oversight for House Majority Leader Eric Cantor, discuss the unique features of Congressional and other legislative branch investigations and where Congress is likely to focus its investigative and oversight resources in the second session of the 113th Congress and beyond. Last year was a busy one for congressional investigators. A number of investigations were launched or continued, focusing on a variety of industries, including health insurers, Affordable Care Act contractors, other government contractors, companies with offshore subsidiaries, technology, energy and financial services firms, to name a few. A number of these investigations will continue into 2014, and new investigations will be launched. Several committees and subcommittees will chart new investigative and oversight courses over the coming year. Our panelists review how congressional investigations work; who the key players are; and what investigative committees are likely to focus on in the current congressional session. The panelists from Gibson Dunn also cover what a congressional investigation could mean to your firm.


PANELISTS: Michael Bopp — Chairs the firm's Congressional Investigations practice group; member of the firm's White Collar Defense and Investigations and Crisis Management practices. Mr. Bopp is a former Staff Director and Chief Counsel of the Committee of Homeland Security and Governmental Affairs, one of the Senate's largest committees and most expansive in terms of jurisdiction. He has led or played a key role in major investigations in both the Senate and House of Representatives as well as three special investigations. In these capacities, he developed the strategy and set the agenda for several investigations, conducted more than 100 depositions or witness interviews, managed dozens of subpoenas and massive document discovery efforts, and orchestrated more than 100 committee hearings. F. Joseph Warin — Co- Chair of the firm's White Collar Defense and Investigations practice and former Assistant United States Attorney in Washington, D.C. Mr. Warin has been ranked as a leading white collar criminal defense, securities compliance and enforcement attorney by 2013 Chambers USA: America's Leading Lawyers for Business, 2006 - 2014 Best Lawyers in America, and named a Top Lawyer for Criminal Defense by Washingtonian magazine and a White Collar Law MVP by Law360. Mr. Warin's areas of expertise include white collar crime and securities enforcement, including Foreign Corrupt Practices Act investigations, False Claims Act cases, special committee representations, compliance counseling, and complex civil litigation. He has conducted FCPA investigations relating to business in 35 countries around the globe and is the only person to have served as the FCPA compliance monitor, or U.S. counsel to the FCPA compliance monitor, in three different FCPA monitorships. Robert Borden — Mr. Borden serves as the Director of Oversight for House Majority Leader Eric Cantor. In that capacity, he coordinates and promotes the oversight activities of House committees. Mr. Borden has served on Capitol Hill for 19 years and, formerly, was General Counsel of the House Committee on Oversight and Government Reform, and prior to that, General Counsel of the Committee on Education and Labor. Mr. Borden helps House Republican leadership set oversight and investigative priorities. In the past year, he has worked closely on the Benghazi and IRS targeting investigations as well as Affordable Care Act oversight. In his prior work as a committee counsel, Mr. Borden has worked on investigations of Operation Fast and Furious, the International Brotherhood of the Teamsters, and served as special counsel to the Select House Committee tasked with investigating the preparation and response to Hurricane Katrina.