Congress’s oversight authority is based on its “implied powers” found in the Constitution, various Senate and House rules and certain public laws. It is also an essential part of our well-known “system of checks and balances.” However, while this authority is really quite broad, it is also limited. The basic premise underlying these congressional hearings is that they are only valid when they have a legitimate legislative purpose and no citizen’s rights will be denied.
Note that there are many ways to initiate a congressional investigation. For example, a committee may ask the Government Accountability Office (GAO) to complete a study and then submit a report on a certain topic. Based on the findings or recommendations contained in that report, the committee may decide to then begin a detailed investigation.
Since no standard format has been created for these hearings, they can be quite unpredictable. In addition, they may require certain decisions that are very different from any that are common in regular criminal or civil litigation. Unfortunately, a congressional investigation may also result in separate, independent committee hearings that have to be handled either simultaneously or in rapid succession.
If they are required via subpoena to testify or produce certain documents at a congressional hearing, the choices for a corporation or individual to challenge it are limited. If they refuse to comply with the subpoena, the House or Senate can consider this to be contempt of Congress and refer the matter to the Department of Justice (DOJ) as criminal contempt. In addition, the Senate can also refer this lack of compliance to a court, where it will be dealt with as a civil contempt issue.
At that point, the party being subpoenaed can use various arguments as a defense in a civil or criminal proceeding. However, being involved in this process usually entails more risk than deciding to comply with the subpoena. Both committee members and their staff are aware of this, and they may use it to “force” compliance with the subpoena.
Fortunately, if communication with the committee’s staff is good, a compromise is often reached, the committee acknowledges that there are some valid objections to the subpoena, and a resolution that both sides are willing to accept can be negotiated.
These sessions do not resemble other formal legal proceedings in any way because they are tightly scripted with the goal of making certain key points established by the committee chairman along with the staff and asking relevant questions.
Very often, the media are briefed and given pertinent materials prior to the hearing, and advance press reports describe what will be revealed when it begins. In addition, once the hearing starts, committee members usually plan to make comments or issue statements that will be used as quotes in subsequent news reports.
While Congress has broad investigatory powers, anyone who appears before a committee enjoys certain common-law privileges and constitutional protections as well, including protection from self-incrimination, which is guaranteed by the Fifth Amendment. However, if this privilege is invoked repeatedly in a public hearing as questions are answered, it can become a source of both adverse publicity and embarrassment for the individual who is testifying. Often parties asserting their Fifth Amendment privileges can arrange to do so before appearing and, thus avoid, this embarrassment.
Even so, if this privilege is invoked repeatedly in a public hearing as questions are answered, it can become a source of both adverse publicity and embarrassment for the individual who is testifying. Often parties asserting their Fifth Amendment privileges can arrange to do so before appearing and, thus, avoid, this embarrassment.
Before the hearing begins, with the help of your attorney, try to determine if there are any committee members who support your position and are agreeable to making positive comments in as part of their opening statement.
To ensure that your position will be retained as part of the testimony, it may be best to prepare a comprehensive written statement for the committee and request for it to become part of the official record. Since you will not be permitted to read that written statement aloud at the hearing, you should also prepare a brief opening statement containing the most essential points you want to make at that time.