October 21, 2015

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For the third successive Congress, we are releasing a table of authorities that summarizes the investigative 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.  Although the Fifth Amendment applies in the context of a congressional investigation,[1] 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 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.  This Congress, a number of committees have enhanced the authority of their chairmen to exercise investigative authorities.    

House and Senate committees adopted their rules for the 114th Congress earlier this year.  We have examined these rules and updated our table of authorities, which is attached.  The committees of the House have further empowered their committee chairmen and staff to issue subpoenas and take depositions.  Several Senate committees also have modified their rules.  Committee rules are subject to the rules of the full House or Senate.

Some items of note:

House

• Four House committees, the Committees on Energy and Commerce, Financial Services, Science, Space and Technology, and Ways and Means, were vested with staff deposition authority permitting the committee counsel to conduct depositions.  Depositions may be compelled through a subpoena that can be issued unilaterally by the Chairman.  The Ranking Member of the committee must be consulted before the subpoena is issued, but he or she cannot block it.  Significantly, a member of the committee must be present for the staff deposition unless that requirement is waived by the witness.  This authority only applies to the first session of the current Congress and as such will expire at the end of 2015 unless it is renewed.  Of these committees, only one, Ways and Means, saw a change in its Chairman when Rep. Paul Ryan (R-WI) took over at the beginning of the 114th Congress.
• The unilateral ability of a chairman to issue a subpoena is a powerful investigative tool and has been expanded in the House of Representatives in the 114th Congress.  In addition to the Chairmen of the House Committees on Education and the Workforce, Foreign Affairs, Oversight and Government Reform, Select Intelligence, Transportation and Infrastructure, and Ways and Means, six new committees have empowered their chairman to unilaterally issue a subpoena: the Committees on 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.  Rep. Fred Upton (R-MI), Chairman of the Energy and Commerce Committee, said that, with respect to his committee, the change to unilateral deposition authority was meant to "streamline the process" and allow the use of "all the tools in the toolbox to get at [fraud and abuse] as quick as [the Committee] can."[2]  However, Democrats saw the move as a partisan one.  The Ranking Member on the Science, Space, and Technology Committee, Rep. Eddie Bernice Johnson (D-TX), called the rules changes "the single greatest attack on Minority member rights in the history of this Committee."[3]
• The Committee on Science, Space, and Technology altered its practices for questioning witnesses at hearings.  The presence of two members of the committee is still required for a quorum; however, a minority member is no longer needed to maintain that quorum.  Furthermore, any common-law privileges may only be invoked in hearings or depositions at the discretion of the Chairman, but his ruling can be appealed to the Committee.

Senate

• The Chairman or the Ranking Member of the Committee on Energy and Natural Resources may now conduct a preliminary inquiry to determine whether there is enough evidence for a full investigation.  The Chairman and the Ranking Member must still, together, authorize the full investigation. 
• The Committee on Homeland Security and Governmental Affairs altered its requirements for the Ranking Member to object to a subpoena issued by the Chairman, now requiring that the objection be in a signed letter within 72 hours.  The full committee may still issue the subpoena over the Ranking Member’s objection.  Sen. Ron Johnson (R-WI) chairs the Homeland Security and Governmental Affairs Committee.

While several House committee chairmen can issue subpoenas unilaterally, in the Senate, 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.

In the House, five committees now have the ability to compel depositions through a subpoena.  The Committee on Oversight and Government Reform continues to have that authority and now the Committees on Energy and Commerce, Financial Services, Science, Space, and Technology, and Ways and Means have been granted staff deposition authority.  The Chairman of each committee is permitted to issue the subpoena after only consultation with the ranking member and three days’ notice prior to the deposition.  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 bodies 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 Committees on Agriculture, Commerce, Foreign Relations, and Small Business and Entrepreneurship authorize depositions in their rules.  The Small Business and Entrepreneurship Committee went further this Congress and authorized staff to take those depositions at the Chairman’s discretion.[4]  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]

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. 

 

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

  [2] Kristina Peterson and Andrew Ackerman, Several House Committee Chairmen to Get Unilateral Subpoena Power, Wall St. J. Washington Wire (Jan. 13, 2015, 2:33 PM), http://blogs.wsj.com/washwire/2015/01/13/several-house-committee-chairmen-to-get-unilateral-subpoena-power/.

  [3] Organizational Meeting of the H. Comm. on Sci., Space, and Tech, 114th Cong. 1 (2015) (statement of Rep. Eddie Bernice Johnson, Ranking Member, H. Comm. on Sci., Space, and Tech.) available at http://democrats.science.house.gov/sites/democrats.science.house.gov/files/documents/RM%20Johnson%20Opening_Rules.pdf.

  [4] Sens. David Vitter (R-LA) and Jeanne Shaheen (D-NH) are the new Chairman and Ranking Member respectively.  Sen. Vitter is expected to leave the Senate near the end of this year should he be elected Governor of Louisiana.

  [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 July 7, 2015), 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 in the firm’s Washington, D.C. office:

Michael D. Bopp – Chair, Congressional Investigations Group (202-955-8256, mbopp@gibsondunn.com)

F. Joseph Warin – Co-Chair, White Collar Defense and Investigations Group (202-887-3609, fwarin@gibsondunn.com)

Table of Authorities of House and Senate Committees:
http://gibsondunn.com/wp-content/uploads/documents/publications/HouseSenateCommitteeRulesChart-2015.pdf

© 2015 Gibson, Dunn & Crutcher LLP

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