June 1, 2017
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, [email protected])
F. Joseph Warin – Washington, D.C. (+1 202-887-3609, [email protected])
Trent J. Benishek – Washington, D.C. (+1 202-955-8251, [email protected])
Alexander W. Mooney – Washington, D.C. (+1 202-887-3751, [email protected])
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