The Power to Investigate – Table of Authorities of House & Senate 119th Congress
Client Alert | May 2, 2025
For the eighth successive Congress, Gibson Dunn is pleased to release a table of authorities summarizing the oversight and investigative (O&I) authorities of each House and Senate committee. Congressional investigations can arise with little warning and immediately attract the media spotlight. Understanding the full extent of a committee’s investigative arsenal is crucial to successfully navigating a congressional investigation.
Congressional committees have broad investigatory powers, including the power to issue subpoenas to compel witnesses to produce documents, testify at committee hearings, and, in some cases, appear for depositions.
Unique Features of Congressional Investigations
Congressional investigations are unlike more familiar executive branch investigations in several respects. First, there are often complex motivations at work. Committee chairs may want to advance their political agenda, heighten their public profile, develop support for a legislative proposal, expose alleged criminal wrongdoing or unethical practices, pressure a company to take certain actions, or respond to public outcry. Recognizing these underlying objectives and evaluating the political context surrounding an inquiry can therefore be a key component of developing an effective response strategy.
Second, Congress’s power to investigate is broad—as broad as its legislative authority—which can often make investigations unpredictable. The “power of inquiry” is inherent in Congress’s authority to “enact and appropriate under the Constitution.”[1] And while Congress’s investigatory power is not a limitless authorization 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 gathering information not only for the purpose of legislating, but also for overseeing governmental matters and informing the public about the workings of government.[3]
Finally, unlike the relatively controlled environment of a courtroom or a confidential investigation, congressional investigations often unfold through public letters and subpoenas and before television cameras in hearing rooms. Targets must coordinate their legal, political, and communications strategies to respond effectively.
Investigatory Tools of Congressional Committees
Congress has a broad range of investigatory tools at its disposal, which enable it to gather information, ensure compliance with legal and regulatory standards, and inform legislative and policy agendas. Although many of Congress’s tools present opportunities for targets to comply voluntarily, it does have the ability to issue subpoenas to compel the production of documents and testimony. It is essential for subjects of congressional oversight to understand both the scope and the limitations of these investigatory powers in order to respond effectively.
- Requests for Information: Any member of Congress may request information from an individual or entity, including through documents, briefings, or other formats.[4] Absent the issuance of a subpoena, responding to such requests is voluntary as a legal matter (although of course there may be public or political pressure to respond). As such, recipients of such requests should carefully consider the merits of different degrees of engagement.
- Interviews: Interviews also are voluntary, led by committee staff, and occur in private (in person or remotely). 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. Although interviews are typically not conducted under oath, false statements to congressional staff can be criminally punishable as a felony under 18 U.S.C. § 1001.
- Depositions: Depositions can be compulsory, transcribed, and taken under oath. As such, depositions tend to be 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, and a member no longer needs to be present in a House committee deposition.
- Hearings: While both depositions and interviews allow committees to acquire information quickly and (at least in many circumstances) confidentially,[5] testimony at hearings, unless on a sensitive topic, is conducted in a public session led by the members themselves (or, on occasion, committee counsel).[6] Hearings can either occur at the end of a lengthy staff investigation or take place 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 of the procedural protections or the evidentiary rules applicable in judicial proceedings), 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 (or independently on its own initiative), 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, Congress will usually seek voluntary compliance with its requests for information or testimony as an initial matter. If requests for voluntary compliance are met with resistance, however, or if time is of the essence, Congress may compel disclosure of information or testimony by issuing a subpoena.[7] Like Congress’s power of inquiry generally, there is no explicit constitutional provision granting Congress the right to issue subpoenas.[8] 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 in some respects by the Speech or Debate Clause.[9] Congressional subpoenas are subject to few legal challenges,[10] and “there is virtually no pre-enforcement review of a congressional subpoena” in most circumstances.[11]
The authority to issue subpoenas is initially governed by the rules of the House and Senate, which delegate further rulemaking to each committee.[12] While 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 119th Congress and can take many forms. For example, in the 118th Congress, most House committee chairs were authorized to issue subpoenas unilaterally if they provided notice to the ranking member. Other chairs, however, required approval of the ranking member, or, upon the ranking member’s objection, required a vote of the majority of the committee in order to issue a subpoena.
Contempt of Congress
Failure to comply with a subpoena can result in one of three enforcement avenues: a criminal contempt referral, a civil contempt action, or exercise of Congress’s inherent contempt power.
- Statutory Criminal Contempt Power: Congress possesses statutory authority to certify recalcitrant witnesses for criminal contempt prosecutions in federal court. In 1857, Congress enacted this criminal contempt statute as a supplement to its inherent authority.[13] Under the statute, a person who refuses to comply with a congressional subpoena is guilty of a misdemeanor and subject to a fine and imprisonment.[14] “Importantly, while Congress initiates an action under the criminal contempt statute, the Executive Branch prosecutes.”[15] This relieves Congress of the burdens associated with its inherent contempt authority. The statute simply requires the House or Senate to certify a contempt finding to the Department of Justice. Thereafter, the statute provides that it is the “duty” of the “appropriate United States attorney” to prosecute the matter,[16] although the Department of Justice maintains that it always retains discretion not to prosecute and often declines to do so. Although Congress rarely uses its criminal contempt authority, the House Democratic majority, following the events of January 6, 2021, employed it against a flurry of Trump administration officials, including Attorney General Bill Barr, Secretary of Commerce Wilbur Ross, Secretary of Homeland Security Chad Wolff, political adviser Steve Bannon, Trade Director Peter Navarro, and White House Chief of Staff Mark Meadows. The Department of Justice prosecuted Bannon and Navarro for defying subpoenas from the Select January 6 Committee. Juries found each guilty, and the D.C. Circuit upheld Bannon’s conviction.[17] In September 2024, the Senate unanimously voted to find Ralph de la Torre, the CEO of a bankrupt hospital operator, Steward Health Care, in contempt of the Senate and to certify the report of his contempt to the U.S. Attorney for prosecution. This was the first time the Senate had held someone in criminal contempt since 1971.[18]
- Civil Enforcement Authority: Congress may seek civil enforcement of its subpoenas, which is often referred to as civil contempt. The Senate’s civil enforcement power is expressly codified.[19] This statute authorizes the Senate to seek enforcement of legislative subpoenas issued to private parties in a U.S. District Court. In contrast, the House does not have a civil contempt statute, but federal district judges have held that 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.”[20]
- Inherent Contempt Power: The oldest, and least relied upon, form of compulsion is Congress’s inherent contempt power. The inherent contempt power has not been used by either body since 1935.[21] 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.[22] To exercise this power, the House or Senate must pass a resolution and then conduct a full trial or evidentiary proceeding, followed by debate and (if contempt is found to have been committed) imposition of punishment.[23] As is apparent in this description, the inherent contempt authority is cumbersome and inefficient, and it is potentially fraught with political peril for legislators.[24]
Committee Procedural Rules
Committees may adopt their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions, and many committees update their rules each Congress. Committees are also subject to the rules of the full House or Senate, and, in the House, the Chair of the Committee on Rules issues regulations prescribing general deposition procedures applicable to all committees. Typically, House committee chairs can issue subpoenas unilaterally, while Senate committees generally cannot. To issue a subpoena, Senate committee rules for all but one committee—Homeland Security and Governmental Affairs—and one subcommittee—Permanent Subcommittee on Investigations—require (1) consent from the Ranking Member or (2) a majority vote of the committee to authorize the subpoena.
Further, House and Senate committees afford certain subcommittees the authority to authorize the issuance of subpoenas. House Rules provide that subcommittees may authorize and issue subpoenas by a majority vote of subcommittee members.[25] In the 119th Congress, 13 House committees have given a total of 71 subcommittees subpoena authority—either implicitly or explicitly—through committee rules.[26] On the other hand, 7 committees[27] either limit or proscribe subcommittee subpoena authority, often because committee rules delegate subpoena authority solely to the committee chair. In contrast with the House, only 3 Senate committees[28]—Banking, Housing, and Urban Affairs; Health, Education, Labor, and Pensions; and Homeland Security and Governmental Affairs—provide for 12 subcommittees to exercise subpoena authority.
Failing to comply with a subpoena from a committee or to otherwise adhere to committee rules during an investigation may have severe legal, strategic, and reputational consequences. If a subpoena recipient refuses to comply with a subpoena, committees may resort to additional demands, initiate judicial enforcement or contempt proceedings (as noted above), and/or generate negative press coverage of the noncompliant recipient. Although rarely used, criminal contempt prosecutions can also be brought in the event of willful refusals to comply with lawful congressional subpoenas. As we have detailed in previous client alerts,[29] however, defenses exist to congressional subpoenas, including challenging a committee’s jurisdiction or failure to follow applicable rules, asserting attorney-client privilege and work product claims, and raising constitutional challenges.
Under the Republican majority, committee investigations have focused on censorship of conservative speech, China, environmental issues, discrimination, including failure to adequately address antisemitism, media bias, debanking, COVID origins and vaccines, and antitrust issues. We also anticipate that committees in both chambers will pursue investigations regarding healthcare, cybersecurity, and other topics.[30]
This client alert provides a table that presents the key investigative powers and authorities for each House and Senate committee. The table includes information for each committee that answers key O&I related questions, including:
- What is the scope of the committee’s investigative authority?
- What are the procedures for exercising the committee’s subpoena power?
- Can the chair of the committee issue a subpoena unilaterally?
- Does the committee permit staff to question witnesses at a hearing?
- Can the committee compel a witness to sit for a deposition? If so, what are the procedures for doing so?
- What are the rules that apply to depositions before the committee?
Below, we have highlighted noteworthy changes in the committee rules, which House and Senate committees of the 119th Congress adopted earlier this year.[31]
Noteworthy Changes
House
- As we detailed in a client alert from earlier this year,[32] House Republicans will continue to use expansive investigative tools, including the ability to issue subpoenas without consulting the minority and deposition powers that allow staff to conduct depositions without members present.
- The Rules of the 119th Congress reauthorized the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party and broadened its jurisdiction.[33] The Select Committee’s expanded jurisdiction now consists of “policy recommendations on countering the economic, technological, security, and ideological threats of the Chinese Communist Party to the United States and allies and partners of the United States,”[34] a seemingly broader and more pointed focus than its jurisdiction in the 118th Congress, which was “to investigate and submit policy recommendations on the status of the Chinese Communist Party’s economic, technological, and security progress and its competition with the United States.”[35]
Senate
- In the Senate, the new Republican majority can make use of unilateral subpoena authority on one committee—Homeland Security and Governmental Affairs—and one subcommittee—Permanent Subcommittee on Investigations. Three committees—Agriculture, Nutrition, and Forestry, Small Business and Entrepreneurship, and Veterans’ Affairs—afford the committee Chair qualified unilateral subpoena authority, requiring the Chair to notify the Ranking Member and, if the Ranking Member does not communicate their objection within a period of 48 to 72 hours, the Chair may issue the subpoena without the Ranking Member’s approval.
- Of note, the Committee on Commerce, Science, and Transportation scheduled a mark up in January 2025 to change its rules to give the Chair unilateral subpoena authority. The Committee postponed the markup which, to date, has not been rescheduled.[36] Accordingly, the Committee is currently operating under its rules from the 118th Congress, meaning that for the Chair to issue a subpoena the Ranking Member must consent or the Committee must authorize the subpoena through a majority vote.[37]
Our table of authorities provides an overview 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 of authorities provides a general overview of what rules apply in given circumstances, it is essential to look carefully at a committee’s rules and be familiar with its practices to understand 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 or the ways in which a particular committee tends to exercise its authorities, please feel free to contact us for assistance. We are available to assist should a congressional committee seek testimony, information, or documents from you.
[1] Barenblatt v. United States, 360 U.S. 109, 111 (1957).
[2] See Wilkinson v. United States, 365 U.S. 399, 408-09 (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, 456-57 (2015).
[4] Id.
[5] Id. at 457.
[6] Id. at 456-57.
[7] Id. at 457.
[8] Id.
[9] Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975).
[10] Bopp, supra note 3, at 458.
[11] Id. at 459. The principal exception to this general rule arises when a congressional subpoena is directed to a custodian of records in which a third party (typically the actual target of the investigation) has a legal interest. In those circumstances, the Speech or Debate Clause does not bar judicial challenges brought by the third party seeking to enjoin the custodian from complying with the subpoena, and courts have reviewed the validity of such subpoenas. See, e.g., Trump v. Mazars, 140 S. Ct. 2019 (2020); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018). It also could be argued that a subpoena is subject to pre-enforcement challenge if it lacks a valid legislative purpose. The idea is that the Speech or Debate Clause might not preclude a preemptive litigation challenge to such a subpoena on the rationale that a subpoena lacking any valid legislative purpose is not a legislative act at all. In Trump v. Committee on Ways & Means, the district court explained that “in the context of investigations, and in particular cases involving congressional efforts to gather information, . . . Speech or Debate Clause immunity is available only when those efforts are undertaken for a legitimate legislative purpose, that is, to gather information ‘concerning a subject “on which legislation could be had.”‘“ 415 F. Supp. 3d 38, 45-46 (D.D.C. 2019) (quoting McSurely v. McClellan, 553 F.2d 1277, 1284-85 (D.C. Cir. 1976) (en banc), in turn quoting Eastland, 421 U.S. at 506). The argument faces the challenges discussed earlier in that we have not seen a successful challenge based on the absence of a legislative purpose in nearly a century and a half.
[12] Bopp, supra note 3 at 458.
[13] Id. at 461.
[14] See 2 U.S.C. §§ 192 and 194.
[15] Bopp, supra note 3, at 462.
[16] See 2 U.S.C. § 194.
[17] United States v. Bannon, 101 F.4th 16, 18 (D.C. Cir. 2024). Navarro’s appeal from his conviction is still pending before the court of appeals. See United States v. Navarro, No. 24-3006 (D.C. Cir.).
[18] 170 Cong. Rec. S6405-02 (daily ed. Sept. 25, 2024); S. Res. 837 (118th Cong.).
[19] See 2 U.S.C. §§ 288b(b), 288d.
[20] Bopp, supra note 3, at 465. A panel of the U.S. Court of Appeals for the D.C. Circuit ruled in August 2020 that the House may not seek civil enforcement of a subpoena absent statutory authority. Committee on the Judiciary of the United States House of Representatives v. McGahn, 973 F.3d 121 (D.C. Cir. 2020). That decision was vacated when the D.C. Circuit decided to rehear the case en banc, but the case then settled without a final judicial resolution, thereby leaving the question unresolved in the D.C. Circuit.
[21] See Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, Congressional Research Service (May 12, 2017), at 12.
[22] Bopp, supra note 3, at 460 (citing Anderson v. Dunn, 19 U.S. 204, 228 (1821)).
[23] Id.
[24] Id. at 466.
[25] House Rule XI(2)(m).
[26] Ten committees—Agriculture, Appropriations, Armed Services, Education and Workforce, Ethics, Foreign Affairs, Judiciary, Oversight and Government Reform, Rules, and Transportation and Infrastructure—either explicitly or implicitly provide for subcommittee subpoena authority. Three committees—House Administration, Natural Resources, and Small Business—do not reference subcommittee subpoena authority and thus default to House Rules’ default provision that allows for such authority. Two committees—the Committee on the Budget and the Select Committee on the Strategic Competition Between the United States and the Chinese Communist Party—do not have any subcommittees.
[27] Energy and Commerce; Financial Services; Homeland Security; Permanent Select Committee on Intelligence; Science, Space, and Technology; Veterans’ Affairs; and Ways and Means.
[28] Nine committees do not provide for subcommittee subpoena authority: Agriculture, Nutrition, and Forestry; Appropriations; Armed Services; Commerce, Science, and Transportation; Energy and Natural Resources; Environment and Public Works; Finance; Foreign Relations; and Judiciary. Seven committees do not have any subcommittees: Special Committee on Aging, Budget, Ethics, Indian Affairs, Rules and Administration, Small Business and Entrepreneurship, and Veterans’ Affairs.
[29] Congressional Investigations in the 119th Congress (Jan. 22, 2025), https://www.gibsondunn.com/congressional-investigations-in-the-119th-congress/.
[30] Id.
[31] This alert will be updated to reflect several committees finalizing their rules and any subsequent changes to already-adopted committee rules.
[32] Congressional Investigations in the 119th Congress, supra note 1.
[33] See H.R. Res. 5, 119th Cong. § 4(a) (2025).
[34] Id. § 4(a)(2) (2025) (emphasis added).
[35] H.R. Res. 11, 118th Cong. § 1(b)(2) (2023) (emphasis added).
[36] Senate Commerce Committee, Executive Session 2 (Postponed), January 29, 2025, https://www.commerce.senate.gov/2025/1/executive-session-2_2.
[37] Senate Commerce Committee, Rules of the Committee, https://www.commerce.senate.gov/committee-rules.
Please click below to view the complete Table of Authorities of House & Senate 119th 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, any member of the firm’s Congressional Investigations or Public Policy practice groups, or the following authors:
Michael D. Bopp – Chair, Congressional Investigations Practice Group,
(+1 202.955.8256, [email protected])
Stuart F. Delery – Co-Chair, Administrative Law & Regulatory Practice Group,
(+1 202.955.8515, [email protected])
Barry H. Berke – Co-Chair, Litigation Practice Group,
(+1 212.351.3860, [email protected])
Thomas G. Hungar – Partner, Appellate & Constitutional Law Practice Group,
(+1 202-887-3784, [email protected])
Amanda H. Neely – Of Counsel, Congressional Investigations Practice Group,
(+1 202.777.9566, [email protected])
Sophia Brill – Of Counsel, Congressional Investigations Practice Group,
(+1.202.887.3530, [email protected])
Jillian N. Katterhagen – Associate Attorney, Congressional Investigations Practice Group,
(1.202.955.8283, [email protected])
Kareem W. Ramadan – Associate Attorney, Congressional Investigations Practice Group
(+1.202.887.3542, [email protected])
Kelly M. Yahner – Associate Attorney, Congressional Investigations Practice Group
(+1.202.777.9581, [email protected])
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