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Being called in front of a congressional panel for investigation involves a different area of the law than any other situation, and it carries great risk for the person being investigated. Congressional power to investigate businesses and individuals has routinely been considered in legal circles as essential to discharging Congress’s legislative functions, as well as providing public transparency as to the function and operation of the legislative branch at the federal level. This power has routinely been challenged in the Supreme Court as a power not expressly granted to Congress by the Constitution, an argument the Court has consistently rejected.
Congress’s power to initiate investigations is typically limited to government entities and agencies, as in the Iran-Contra affair or the infamous Clinton sex scandal. The Supreme Court has ruled that Congressional authority in this respect is limited to the analysis and examination of existing laws or on the basis of considering new or amended federal statutes, and stems as we know it today from the Teapot Dome bribery scandal of the 1920s. The Court stated that Congress had the right to specifically investigate “charges of misfeasance and nonfeasance in the Department of Justice.” As a result of this ruling, the Court also upheld the right of Congress to initiate arrest proceedings on contempt charges against individuals refusing to offer testimony, citing the premise that the investigation “would be materially aided by the information which the investigation was calculated to elicit” had the parties concerned not refused.
Rights And Risks of Testifying Parties
While the limits on Congressional power to compel testimony are well-defined, they are also broad enough to permit a wide range of different situations and cases to be considered. The primary function of this power is to investigate unlawful conduct by the executive and judicial branches, providing another check on the authority of either of the other two branches.
In many cases, private and public lawsuits may be pending when Congressional panels subpoena witnesses for testimony. The Supreme Court has examined the potential conflict of interest inherent in such situations and has unequivocally stated that while Congress cannot demand information solely to influence the outcome of a lawsuit for either party, the simple fact that a lawsuit is pending is not sufficient to refuse to testify before Congress. The premise underlying this ruling is that Congressional requirements supersede the risk of compromising a lawsuit, because the nature of the information they are seeking directly influences questions of legislative governance.
Every committee and subcommittee at both the House and Senate levels has the authority to issue subpoenas, which are typically served by the U.S. Marshal’s Service or by the Sergeants-At-Arms of the House or Senate. This power is not limited to U.S. citizens, but also to aliens residing or employed within national borders. While subpoenaing U.S. nationals and aliens living abroad is possible, it creates a far more delicate and complex situation.
The Supreme Court has ruled that the judicial branch cannot interfere with the exercise of a Congressional subpoena, such summons being deemed to be well within Congress’s purview. As a result, citizens and aliens who are subpoenaed to give testimony before Congress have only two options: go, or do not. Not going carries the possibility of an arrest for contempt of Congress, which carries a statutory penalty of no less than a month and no more than a year in prison and a fine from $100 to $1,000.
While staff depositions are considered to be more efficient and less adversarial than in-camera Senate hearings, these special depositions are subject to a number of legal shortcomings. Congressional hearings are required to adhere to specific points, actions, or questions, but it is not uncommon for an ambitious or misguided staff member to take the questioning during these depositions on tangents that have no relevance to the actual actions in question. Similarly, the oath of honesty administered during such depositions suffers from not being subject to the same force or penalties that perjury in open court carries.
Granting of Immunity
Under the Fifth Amendment to the Constitution, no person may be compelled to give evidence against himself or herself in any setting, for any reason. Congress recognizes this privilege, but does have a mechanism by which the Fifth Amendment may be overcome. By granting immunity from prosecution based upon testimony, Congress both satisfies the requirement of the Fifth Amendment and allows itself access to the information desired of a given individual. This is by no means an assurance that a person may not be prosecuted for tangential or other criminal acts outside the scope of Congressional investigation, or on the basis of evidence gathered and sealed by the prosecution prior to the Congressional investigation.
This additionally requires the cooperation and consent of the United States Attorney General’s office, because this office will ultimately be the prosecuting authority. Such immunity requests, once they are duly submitted by Congress, are subject to a ten-day review period by the Attorney General and potentially a further twenty-day review by the Supreme Court. While neither body has authority to overturn an immunity bargain on its own grounds, they may review to ensure procedure was followed and that the information sought by this compulsory testimony is in accordance with the proper functions of Congress.
What Are My Rights?
As with any other form of trial, interrogation, or hearing, parties called to testify before Congress have the right to legal counsel. There are a number of pitfalls and possible dangers in testifying before Congress found nowhere else in the American legal system. Not understanding how the system works can result in criminal charges, imprisonment, and/or fines. Having knowledgeable legal counsel available who knows and understands how the system of Congressional hearings is structured can make all the difference. Before testifying before Congress for any reason, it is important to secure the advice and aid of a Congressional hearings attorney. This both safeguards one’s rights and helps limit the chances of unnecessary prosecution.