May 22, 2013
In 2011, we released a table of authorities that summarized the investigative powers of each House and Senate committee. As explained in our accompanying client alert, understanding each 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. Although the Fifth Amendment likely applies in the context of a congressional investigation, standing committees nevertheless may appeal to the full House or Senate to hold in contempt any witness who refuses to appear, answer questions, or produce documents. 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 consequences.
Committees, however, generally have adopted their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions. Moreover, each committee may alter these rules at the commencement of each Congress.
House and Senate committees adopted their rules for the 113th Congress earlier this year. We have examined these rules and updated our table of authorities, which is attached. Some items of note:
In the House, only the Committee on Oversight and Government Reform has authority to compel depositions by subpoena. The Committee on Education and the Workforce has roughly identical rules but specifically notes that it requires authorization from the full House to compel a witness to appear for a deposition.
Five Senate committees have received Senate authorization to take depositions. The Senate Committee on Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations receives authority 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.
Other Senate committees, namely the Agriculture, Commerce, and Foreign Relations Committees, authorize depositions in their rules. 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.
Another important issue is whether a committee chairman may issue a subpoena without the consent of the ranking member or the full committee. In the Senate, only the Permanent Subcommittee on Investigations permits the Chairman to issue a subpoena without consent, requiring only notice to the ranking member. As noted above, the Energy and Natural Resources Committee has a subpoena procedure for investigations that does not require the ranking member’s consent. The Agriculture, Nutrition, and Forestry, Commerce, Science, and Transportation, Homeland Security and Governmental Affairs, Small Business and Entrepreneurship, and Veterans’ Affairs Committees permit the chairman to issue a subpoena so long as the ranking member does not object within a specified time period.
In the House, the chairmen of the House Committees on Oversight and Government Reform, Ways and Means, Education and the Workforce, Foreign Affairs, Transportation and Infrastructure, and Select Intelligence may issue subpoenas with consultation or notice to the ranking member or less.
Our table provides a general sense of what rules apply in given circumstances. But it is essential to look carefully at a committee’s rules to understand specifically how its authorities apply in a particular context.
If you have any questions about how a committee’s rules apply in a given circumstance, please feel free to contact us for assistance.
Congressional investigations are unique exercises, and our table of committee authorities is meant to provide a sense of how individual committees can compel a witness to cooperate with its investigation. Gibson Dunn lawyers have extensive experience in both running congressional investigations and defending targets of and witnesses in such investigations. We are available to assist should a congressional committee seek information or documents from you.
 Representative Michael McCaul, Chairman, House Committee on Homeland Security, Opening Statement at the Committee on Homeland Security 113th Congress Organizational Meeting (Jan. 23, 2013), http://homeland.house.gov/sites/homeland.house.gov/files/01-23-13%20McCaul%20Open.pdf.
 Representative Bennie Thompson, Ranking Member, House Committee on Homeland Security, Opening Statement at the Committee on Homeland Security 113th Congress Organizational Meeting (Jan. 23, 2013), http://chsdemocrats.house.gov/SiteDocuments/20130123093959-89491.pdf.
 See http://www.energy.senate.gov/public/index.cfm/hearings-and-business-meetings?ID=fc0f4947-b154-49a4-8c9c-12e09be5aae9 (webcast of hearing, at 29:50).
 Press Release, Senate Special Committee on Aging, Nelson Takes Helm of Aging Committee (Jan. 28, 2013), http://www.aging.senate.gov/record.cfm?id=339432.
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 work or the following lawyers:
Michael D. Bopp – Chair, Congressional Investigations Group, Washington, D.C. (202-955-8256, [email protected])
Mel Levine – Los Angeles (310-557-8098, [email protected])
F. Joseph Warin – Washington, D.C. (202-887-3609, [email protected])
Table of Authorities of House and Senate Committees:
© 2013 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.