Congressional Oversight Manual

December 19, 2014 (RL30240)

Contents

Tables

Appendixes

Summary

The Congressional Research Service (CRS) developed the Congressional Oversight Manual over 30 years ago, following a three-day December 1978 Workshop on Congressional Oversight and Investigations. The workshop was organized by a group of House and Senate committee aides from both parties and CRS at the request of the bipartisan House leadership. The Manual was produced by CRS with the assistance of a number of House committee staffers. In subsequent years, CRS has sponsored and conducted various oversight seminars for House and Senate staff and updated the Manual as circumstances warranted. Worth noting is the bipartisan recommendation of the House members of the 1993 Joint Committee on the Organization of Congress (Rept. No. 103-413, Vol. I):

[A]s a way to further enhance the oversight work of Congress, the Joint Committee would encourage the Congressional Research Service to conduct on a regular basis, as it has done in the past, oversight seminars for Members and congressional staff and to update on a regular basis its Congressional Oversight Manual.

Over the years, CRS has assisted many Members, committees, party leaders, and staff aides in the performance of the oversight function: the review, monitoring, and supervision of the implementation of public policy. Understandably, given the size, reach, cost, and continuing growth of the modern executive establishment, Congress's oversight role is even more significant—and more demanding—than when Woodrow Wilson wrote in his classic Congressional Government (1885): "Quite as important as lawmaking is vigilant oversight of administration." Today's lawmakers and congressional aides, as well as commentators and scholars, recognize that Congress's work, ideally, should not end when it passes legislation. Oversight is an integral way to make sure that the laws work and are being administered in an effective, efficient, and economical manner. In light of this destination, oversight can be viewed as one of Congress's principal responsibilities as it grapples with the complexities of the 21st century.

Congressional Oversight Manual

Purposes, Authority, and Participants

Throughout its history, Congress has engaged in oversight—broadly defined as the review, monitoring, and supervision of the implementation of public policy—of the executive branch. The first several Congresses inaugurated such important oversight techniques as special investigations, reporting requirements, resolutions of inquiry, and use of the appropriations process to review executive activity. Contemporary developments, have only increased Congress's capacity and capabilities to check on and check the Executive. Public laws and congressional rules have measurably enhanced Congress's implied power under the Constitution to conduct oversight.

Despite its lengthy heritage, oversight was not given explicit recognition in public law until enactment of the Legislative Reorganization Act of 1946.1 That act required House and Senate standing committees to exercise "continuous watchfulness" over programs and agencies within their jurisdiction.

Since the late 1960s, according to such scholars as political scientist Joel Aberbach, Congress has shown increasing interest in oversight for several major reasons. These reasons include the expansion in number and complexity of federal programs and agencies; increases in expenditures and personnel, including contract employees; the rise of the budget deficit; and the frequency of divided government, with Congress and the White House controlled by different parties. Major partisan disagreements over priorities and processes also heighten conflict between the legislature and the executive branches.

Oversight occurs in virtually any congressional activity and through a wide variety of channels, organizations, and structures. These range from formal committee hearings to informal Member contacts with executive officials, from staff studies to support agency reviews, and from casework conducted by Member offices to studies prepared by non-congressional entities, such as statutory commissions and offices of inspector general.

Purposes

Congressional oversight of the executive is designed to fulfill a number of purposes:

Ensure Executive Compliance with Legislative Intent

Congress, of necessity, must delegate discretionary authority to federal administrators. To make certain that these officers faithfully execute laws according to the intent of Congress, committees and Members can review the actions taken and regulations formulated by departments and agencies.

Improve the Efficiency, Effectiveness, and Economy of Governmental Operations

A large federal bureaucracy makes it imperative for Congress to encourage and secure efficient and effective program management, and to make every dollar count toward the achievement of program goals. A basic objective is strengthening federal programs through better managerial operations and service delivery. Such steps can improve the accountability of agency managers to Congress and enhance program performance.

Evaluate Program Performance

Systematic program performance evaluation remains a relatively new and still-evolving technique in oversight. Modern program evaluation uses social science and management methodologies, such as surveys, cost-benefit analyses, and efficiency studies, to assess the effectiveness of ongoing programs.

Prevent Executive Encroachment on Legislative Prerogatives and Powers

Beginning in the late 1960s, many commentators, public policy analysts, and legislators argued that Presidents and executive officials overstepped their authority in various areas such as impoundment of funds, executive privilege, war powers, and the dismantling of federal programs without congressional consent. Increased oversight—as part of the checks and balances system—was called for to redress what many in the public and Congress saw to be an executive arrogation of legislative prerogatives.

Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud

Instances of fraud and other forms of corruption, the breakdown of federal programs, incompetent management, and the subversion of governmental processes arouse legislative and public interest in oversight.

Assess Agency or Officials' Ability to Manage and Carry Out Program Objectives

Congress's ability to evaluate the capacity of agencies and managers to carry out program objectives can be accomplished in various ways. For example, numerous laws require agencies to submit reports to Congress; some of these are regular, occurring annually or semi-annually, for instance, while others are activated by a specific event, development, or set of conditions. Reporting requirement may promote self-evaluation by the agency. Organizations outside of Congress, such as offices of inspector general and study commissions, also advise Members and committees on how well federal agencies are working.

Review and Determine Federal Financial Priorities

Congress exercises some of its most effective oversight through the appropriations process, which provides the opportunity to review recent expenditures in detail. In addition, most federal agencies and programs are under regular and frequent reauthorizations—on an annual, two-year, four-year, or other basis—giving the authorizing committees the same opportunity. As a consequence of these oversight efforts, Congress can abolish or curtail obsolete or ineffective programs by cutting off or reducing funds or it may enhance effective programs by increasing funds.

Ensure That Executive Policies Reflect the Public Interest

Congressional oversight can appraise whether the needs and interests of the public are adequately served by federal programs, and thus lead to corrective action, either through legislation or administrative changes.

Protect Individual Rights and Liberties

Congressional oversight can help to safeguard the rights and liberties of citizens and others. By revealing abuses of authority, for instance, oversight hearings and other efforts can halt executive misconduct and help to prevent its recurrence, either directly through new legislation or indirectly by putting pressure on the offending agency.

Other Specific Purposes

The general purposes of oversight—and what constitutes this function—can be stated in more specific terms. Like the general purposes, these unavoidably overlap because of the numerous and multifaceted dimensions of oversight. A brief list includes the following:

Thoughts on Oversight and its Rationales from...

James Wilson (The Works of James Wilson, 1896, vol. II, p. 29), an architect of the Constitution and Associate Justice on the first Supreme Court:

The House of Representatives ... form the grand inquest of the state. They will diligently inquire into grievances, arising both from men and things.

Woodrow Wilson (Congressional Government, 1885, p. 297), perhaps the first scholar to use the term "oversight" to refer to the review and investigation of the executive branch:

Quite as important as legislation is vigilant oversight of administration.

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.

The informing function of Congress should be preferred even to its legislative function.

John Stuart Mill (Considerations on Representative Government, 1861, p. 104), British utilitarian philosopher:

... the proper office of a representative assembly is to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable....

Authority to Conduct Oversight

United States Constitution

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. The constitutional authority for Congress to conduct oversight stems from such explicit and implicit provisions as:

The Supreme Court on Congress's Power to Oversee and Investigate

McGrain v. Daugherty, 273 U.S. 135, 177, 181-182 (1927):

Congress, investigating the administration of the Department of Justice during the Teapot Dome scandal, was considering a subject "on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit." The "potential" for legislation was sufficient. The majority added, "We are of [the] opinion that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function."

Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975):

Expanding on its holding in McGrain, the Court declared, "To be a valid legislative inquiry there need be no predictable end result."

Principal Statutory Authority

Direct Expansions of Congress's Oversight Power

A number of laws directly augment Congress's authority, mandate, and resources to conduct oversight, including assigning specific duties to committees. Among the most important, listed chronologically, are the following.

b. It also guaranteed that "the right of any persons employed in the civil service ... to petition Congress, or any Member thereof, or to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with." 37 Stat. 555 (1912), codified at 5 U.S.C. §7211 (2006).

Indirect Expansions of Congress's Oversight Power

Separate from expanding its own authority and resources directly, Congress has strengthened its oversight capabilities indirectly, by, for instance, establishing study commissions to review and evaluate programs, policies, and operations of the government. In addition, Congress has created various mechanisms, structures, and procedures within the executive branch that improve the executive's ability to monitor and control its own operations and, at the same time, provide additional information and oversight-related analyses to Congress. These statutory provisions include

Responsibilities in House and Senate Rules

House Rules
Senate Rules

Congressional Participants in Oversight

Members

Oversight is generally considered a committee activity.10 However, both casework and other project work conducted in a Member's personal office can result in findings about bureaucratic behavior and policy implementation; these, in turn, can lead to the adjustment of agency policies and procedures and to changes in public law.

Committees

The most common and effective method of conducting oversight is through the committee structure. Throughout their histories, the House and Senate have used their standing committees as well as select or special committees to investigate federal activities and agencies along with other matters.

Personal Staff

Constituent letters, complaints, and requests for projects and assistance frequently bring problems and deficiencies in federal programs and administration to the attention of Members and their personal office staffs. The casework performed by a Member's staff for constituents can be an effective oversight tool.

Committee Staff

As issues become more complex and Members' staffs more overworked, professional staffs of committees can provide the expert help required to conduct oversight and investigations. Committee staff typically have the experience and expertise to conduct effective oversight for the committees and subcommittees they serve. Committees may also call upon legislative support agencies for assistance, hire consultants, or "borrow" staff from federal departments.

Committee staff, in summary, occupy a central position in the conduct of oversight. The informal contacts with executive officials at all levels constitute one of Congress's most effective devices for performing its "continuous watchfulness" function.

Congressional Support Agencies and Offices

Of the agencies in the legislative branch, three directly assist Congress in support of its oversight function:

For further detail on these offices, see "Oversight Information Sources and Consultant Services".

Additional offices that can assist in oversight are the House General Counsel's Office; House Parliamentarian's Office; House Clerk's Office; Senate Legal Counsel's Office; and Senate Historian's Office and Senate Library.

Oversight Coordination and Processes

A persistent problem for Congress in conducting oversight is coordination among committees, both within each chamber as well as between the two houses. As the final report of the House Select Committee on Committees of the 93rd Congress noted, "Review findings and recommendations developed by one committee are seldom shared on a timely basis with another committee, and, if they are made available, then often the findings are transmitted in a form that is difficult for Members to use."11 Despite the passage of time, this statement remains relevant today. Oversight coordination between House and Senate committees is also uncommon; and it occurs primarily in the aftermath of perceived major policy failures or prominent inter-branch conflicts, as with the Iran-contra affair and the 9/11 terrorist attacks.

Intercommittee cooperation on oversight can prove beneficial for a variety of reasons. It should, for example, minimize unnecessary duplication and conflict and inhibit agencies from playing one committee against another. There are formal and informal ways to achieve oversight coordination among committees.

Oversight Coordination

General Techniques of Ensuring Oversight Coordination Include
Specific Means of Ensuring Oversight Coordination Include

Oversight through Legislative and Investigative Processes

The Budget Process
The Authorization Process
The Appropriations Process

An Example of Nonstatutory Control of Agency Appropriations

The conference report for the Omnibus Consolidated and Emergency Supplemental Appropriations for FY1999 provides guidelines for the reprogramming and transfer of funds for the Treasury and General Government Appropriations Act, 1999. Each request from an agency to the review committee "shall include a declaration that, as of the date of the request, none of the funds included in the request have been obligated, and none will be obligated, until the Committees on Appropriations have approved the request." H.Rept. 105-825, p. 1472 (1998).
The Investigatory Process

Congress's power of investigation is implied in the Constitution. Numerous Supreme Court decisions have upheld the legislative branch's right of inquiry, provided it stays within its legitimate legislative sphere. The roots of Congress's authority to conduct investigations extend back to the British Parliament and colonial assemblies. In addition, the Framers clearly perceived the House of Representatives to function as a "grand inquest." Since the Framers expected lawmakers to employ the investigatory function, based upon parliamentary precedents, it was unnecessary to invest Congress with an explicit investigatory power.

See "Investigative Oversight" for greater detail and analysis.

The Confirmation Process

By establishing a public record of the policy views of nominees, congressional hearings allow lawmakers to call appointed officials to account at a later time. Since at least the Ethics in Government Act of 1978,14 which encouraged greater scrutiny of nominations, Senate committees are setting aside more time to probe the qualifications, independence, and policy predilections of presidential nominees, seeking information on everything from physical health to financial assets. Confirmation can assist in oversight in several ways.

The President has alternative authority to make appointments that do not require the Advice and Consent of the Senate, including recess appointments16 and designations under the Vacancies Act.17

The Impeachment Process

Investigative Oversight

Congressional oversight and investigations, which are often adversarial and confrontational, can serve to sustain and vindicate Congress's role in the United States' constitutional scheme of separated powers. The rich history of congressional investigations, from the failed St. Clair expedition in 1792 and including Teapot Dome, Watergate, Iran-Contra, and Whitewater, have established, both legally and as a matter of practice, the nature and contours of congressional prerogatives necessary to maintain the integrity of the legislative role.

This section provides an overview of some of the more common legal, procedural, and practical issues that committees may face in the course of conducting oversight and/or congressional investigations. It begins with a general summary of Congress's constitutional authority to perform oversight and investigations. It then turns to a discussion of the legal tools commonly used by congressional committees in conducting oversight and investigations, including the legal basis for subpoenas, staff depositions, and committee hearings, as well as a discussion of the various forms of contempt of Congress, the primary enforcement mechanism available. The section will then discuss limitations on congressional authority to conduct successful oversight and investigations, including constitutional privileges, such as executive privilege. Finally, the section will address a series of frequently encountered legal issues, such as the applicability of the Privacy Act and the Freedom of Information Act, access to grand jury materials and pending litigation files, and access to classified and confidential information.

Constitutional Authority to Perform Oversight and Investigative Inquiries

Generally, Congress's authority and power to obtain information, including classified and/or confidential information, is extremely broad. While there is no express provision of the Constitution or specific statute authorizing the conduct of congressional oversight or investigations, the Supreme Court has firmly established that such power is essential to the legislative function as to be implied from the general vesting of legislative powers in Congress.21 In Eastland v. United States Servicemen's Fund, for instance, the Court stated that the "scope of its power of inquiry ... is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution."22 In Watkins v. United States, the Court emphasized that the "power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes."23 The Court further stressed that Congress's power to investigate is at its peak when focusing on alleged waste, fraud, abuse, or maladministration within a government department. Specifically, the Court explained that the investigative power "comprehends probes into departments of the federal government to expose corruption, inefficiency, or waste."24 It also noted that the first Congresses held "inquiries dealing with suspected corruption or mismanagement of government officials."25 Given these factors, the Court recognized "the power of the Congress to inquire into and publicize corruption, maladministration, or inefficiencies in the agencies of Government."26

Authority of Congressional Committees

Oversight and investigative authority is implied from Article I of the Constitution and rests with the House of Representatives and Senate. The House and Senate have delegated this authority to various entities, the most relevant of which are the standing committees of each chamber. Committees of Congress only have the power to inquire into matters within the scope of the authority delegated to them by their parent body. However, a committee's investigative purview is substantial and wide-ranging if it satisfies this jurisdictional requirement and has a legislative purpose for conducting the inquiry.

Committee Jurisdiction

Establishing committee jurisdiction is the foundation for any attempt to obtain information and documents from the executive branch or a private entity or person. A claim of lawful jurisdiction, however, does not automatically entitle the committee to access whatever documents and information it may seek. Rather, an appropriate claim of jurisdiction authorizes the committee to inquire and request information. The specifics of such access may still be subject to prudential, political, and constitutionally-based privileges asserted by the targets of the inquiry.

As previously stated, a congressional committee is a creation of its parent house and, therefore, can only inquire into matters within the scope of the authority that has been delegated to it by that body.27 Thus, the enabling chamber rule or resolution that gives the committee life is also the charter that defines the grant and limitations of the committee's power. In construing the scope of a committee's authorizing charter, courts will look to the words of the rule or resolution itself, and then, if necessary, to the usual sources of legislative history such as floor debate, legislative reports, and prior committee practice and interpretation.

House Rule X and Senate Rule XXV deal with the organization of each chamber's standing committees and establish their jurisdiction.28 Jurisdictional authority for "special" investigations may be given to a standing committee, a joint committee of both houses, or a special subcommittee of a standing committee, among other vehicles. Given the specificity with which the House and Senate rules now confer jurisdiction on their standing committees, as well as the care with which most authorizing resolutions for special and/or select committees have been drafted in recent years, sufficient models exist to avoid a successful judicial challenge by a witness that his noncompliance was justified by a committee's overstepping its delegated scope of authority.

Legislative Purpose

While the congressional power of inquiry is broad, it is not unlimited. The Supreme Court has cautioned that the power to investigate may be exercised only "in aid of the legislative function"29 and cannot be used to expose for the sake of exposure alone. The Watkins Court underlined these limitations, stating that

There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress ... nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress.30

A committee's inquiry must have a legislative purpose or be conducted pursuant to some other constitutional power of Congress, such as the authority of each House to discipline its own members, judge the returns of their elections, and conduct impeachment proceedings.31 While the 1881 Supreme Court decision in Kilbourn v. Thompson32 held that the challenged investigation was an improper probe into the private affairs of individuals, courts today generally presume there is a legislative purpose for an investigation.33 The House or Senate rule or resolution authorizing the investigation does not have to specifically state the committee's legislative purpose.34 In In re Chapman,35 the Court upheld the validity of a resolution authorizing an inquiry into charges of corruption against certain Senators despite the fact that it was silent as to what might be done when the investigation was completed. The Court stated:

The questions were undoubtedly pertinent to the subject matter of the inquiry. The resolutions directed the committee to inquire "whether any Senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate." What the Senate might or might not do upon the facts when ascertained, we cannot say nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, while affirmative answers might have led to further action on the part of the Senate within its constitutional powers.

Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion, if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the Senate. The resolutions adequately indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation and punishment. The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member.

We cannot assume on this record that the action of the Senate was without a legitimate object, and so encroach upon the province of that body. Indeed, we think it affirmatively appears that the Senate was acting within its right, and it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded.36

In McGrain v. Daugherty,37 the original resolution that authorized the Senate investigation into the Teapot Dome Affair made no mention of a legislative purpose. A subsequent resolution for the attachment of a contumacious witness declared that his testimony was sought for the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper."38 The Court found that the investigation was ordered for a legitimate object. It wrote:

The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject matter was such that the presumption should be indulged that this was the real object. An express avowal of the object would have been better; but in view of the particular subject-matter was not indispensable...

The second resolution–the one directing the witness be attached–declares that this testimony is sought with the purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem necessary and proper." This avowal of contemplated legislation is in accord with what we think is the right interpretation of the earlier resolution directing the investigation. The suggested possibility of "other action" if deemed "necessary or proper" is of course open to criticism in that there is no other action in the matter which would be within the power of the Senate. But we do not assent to the view that this indefinite and untenable suggestion invalidates the entire proceeding. The right view in our opinion is that it takes nothing from the lawful object avowed in the same resolution and is rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object were affirmatively and definitely avowed.39

Moreover, it has been held that a court cannot say that a committee of Congress exceeds its power when the purpose of its investigation is supported by reference to specific problems which in the past have been, or in the future may be, the subject of appropriate legislation.40 In the past, the types of legislative activity which have justified the exercise of investigative power have included the primary functions of legislating and appropriating;41 the function of deciding whether or not legislation is appropriate;42 oversight of the administration of the laws by the executive branch;43 and the essential congressional function of informing itself in matters of national concern.44 In addition, Congress's power to investigate such diverse matters as foreign and domestic subversive activities,45 labor union corruption,46 and organizations that violate the civil rights of others47—have all been upheld by the Supreme Court.

Despite the Court's broad interpretation of legislative purpose, its scope is not without limits. Courts have held that a committee lacks legislative purpose if it appears to be conducting a legislative trial rather than an investigation to assist in performing its legislative function.48 However, although "there is no congressional power to expose for the sake of exposure,"49 "so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power."50

Legal Tools Available for Oversight and Investigations

A review of congressional precedents indicates that there is no single method or set of procedures for engaging in oversight or conducting an investigation.51 Historically, congressional committees appeared to rely a great deal on public hearings and subpoenaed witnesses to garner information and accomplish their investigative goals. In more recent years, congressional committees have seemingly relied more heavily on staff level communication and contacts as well as other "informal" attempts at gathering information – document requests, informal briefings, etc. – before initiating the necessary formalistic procedures such as issuing committee subpoenas, holding on-the-record depositions, and/or engaging the subjects of inquiries in open, public hearings. This section reviews the legal basis for the formal process of issuing subpoenas, depositions, and holding committee hearings. This section also reviews Congress's authority to grant witnesses limited immunity for the purpose of obtaining information and testimony that may be protected by the Fifth Amendment's right against self-incrimination.

Subpoena Power

As a corollary to Congress's accepted oversight and investigative authority, the Supreme Court has determined that the "[i]ssuance of subpoenas ... has long been held to be a legitimate use by Congress of its power to investigate."52 In particular, the Court has repeatedly cited the principle that

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information – which not infrequently is true – recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry – with enforcing process – was regarded and employed as a necessary and appropriate attribute of the power to legislate—indeed, was treated as inhering in it.53

The power of inquiry, with the accompanying process to enforce it, has been deemed "an essential and appropriate auxiliary to the legislative function."54 A properly authorized subpoena issued by a committee or subcommittee has the same force and effect as a subpoena issued by the parent house itself. Individual committees and subcommittees must be delegated the authority to issue subpoenas. Senate Rule XXVI(1) and House Rule XI(2)(m)(1) presently empower all standing committees and subcommittees to issue subpoenas requiring the attendance and testimony of witnesses and the production of documents. Special or select committees must be specifically delegated that authority by Senate or House resolution. The rules governing issuance of committee subpoenas vary by committee. Some committees require a full committee vote to issue a subpoena while others empower the chairman to issue them unilaterally, or with the concurrence of the ranking minority member.55

Congressional subpoenas are served by the U.S. Marshal's office, committee staff, or the Senate or House Sergeants-At-Arms. Service may be effected anywhere in the United States. The subpoena power has been held to extend to aliens physically present in the United States. As will be discussed below, however, securing compliance of United States nationals and aliens living in foreign countries presents more complex problems.56

A witness seeking to challenge the legal sufficiency of a subpoena has limited remedies to defeat the subpoena even if it is found to be legally deficient. First, challenges to the legal sufficiency of subpoenas must overcome formidable judicial obstacles. The applicable standard was articulated in Wilkinson v. United States:

Second, the Supreme Court has ruled that courts may not enjoin the issuance of a congressional subpoena, holding that the Speech or Debate Clause of the Constitution59 provides "an absolute bar to judicial interference" with such compulsory process.60 As a consequence, a witness's sole remedy generally is to refuse to comply, risk being cited for contempt, and then raise the objections as a defense in a contempt prosecution.

Staff Deposition Authority

Committees often rely on informal staff interviews to gather information to prepare for investigative hearings. However, in recent years, when specially authorized, congressional committees have utilized staff-conducted depositions as a tool in exercising their investigatory power. At present, there are only a few standing committees that the House and Senate have expressly authorized to conduct staff depositions.61 On a number of occasions such specific authority has been granted pursuant to Senate and House resolutions.62 When granted, a committee will normally adopt procedures for taking depositions, including provisions for notice (with or without a subpoena), transcription of the deposition, the right to be accompanied by counsel, and the manner in which objections to questions are to be resolved.63

Staff depositions afford a number of significant advantages for committees engaged in complex investigations, including the ability to

Moreover, Congress has enhanced the efficacy of the staff deposition process by re-establishing the applicability of criminal prohibition against false statements to statements made during congressional proceedings, including the taking of depositions.64

Certain disadvantages may also inhere. Unrestrained staff may be tempted to engage in tangential inquiries. Also, depositions present a "cold record" of a witness's testimony and may not be as useful for Members as in-person presentations.

Hearings

House Rule XI(2) and Senate Rule XXVI(2) require that committees adopt written rules of procedure and publish them in the Congressional Record. The failure to publish such rules has resulted in the invalidation of a perjury prosecution.65 Once properly promulgated, such rules are judicially cognizable and must be strictly observed. The House and many individual Senate committees require that all witnesses be given a copy of a committee's rules.

Both the House and the Senate have adopted rules permitting a reduced quorum for taking testimony and receiving evidence. House committees are required to have at least two Members present to take testimony.66 Senate rules allow the taking of testimony with only one Member in attendance.67 Most committees have adopted the minimum quorum requirement and some require a higher quorum for sworn rather than unsworn testimony.68 For perjury purposes, the quorum requirement must be met at the time the allegedly perjured testimony is given, not at the beginning of the session.69 Reduced quorum requirement rules do not apply to authorizations for the issuance of subpoenas. Senate rules require a one-third quorum of a committee or subcommittee while the House requires a quorum of a majority of the members, unless a committee delegates authority for issuance to its chairman.70

Senate and House rules limit the authority of their committees to meet in closed session. For example, the House requires testimony to be held in closed session if a majority of a committee or subcommittee determines it "may tend to defame, degrade, or incriminate any person."71 Such testimony taken in closed session is normally releasable only by a majority vote of the committee. Similarly, confidential material received in a closed session requires a majority vote for release.

In most oversight and investigative hearings the chair usually makes an opening statement. In the case of an investigative hearing, the opening statement is an important means of defining the subject matter of the hearing and thereby establishing the pertinence of questions asked the witnesses. Not all committees swear in their witnesses; a few committees require that all witnesses be sworn.72 Most committees leave the swearing of witnesses to the discretion of the chair. If a committee wishes the potential sanction of perjury to apply, it should, in accordance with the statute, administer an oath and swear in its witnesses.73However, it should be noted that false statements not under oath are also subject to criminal sanctions.74

A witness does not have the right to make a statement before being questioned, however, the opportunity is usually accorded. Committee rules may prescribe the length of such statements and also require written statements be submitted in advance of the hearing. Questioning of witnesses may be structured so that members alternate for specified lengths of time. Questioning may also be conducted by staff at the committee's discretion. Witnesses may be allowed to review a transcript of their testimony and make non-substantive corrections.

The right of a witness to be accompanied by counsel is recognized by House rule and the rules of Senate committees. The House rule limits the role of counsel, who are to serve solely "for the purpose of advising [witnesses] concerning their constitutional rights."75 Some committees have adopted rules specifically prohibiting counsel from "coaching" witnesses during their testimony.76

A committee has complete authority to control the conduct of counsel. Indeed, the House Rules provide that "[t]he chair may punish breaches of order and decorum, and of professional ethics on the part of counsel, by censure and exclusion from the hearings; and the committee may cite the offender to the House for contempt."77 Some Senate committees have adopted similar rules.78 There is no right of cross-examination of adverse witnesses during an investigative hearing. However, witnesses are entitled to a range of other constitutional protections, such as the Fifth Amendment right to avoid making self-incriminating statements, that are discussed in more detail below.79

Congressional Immunity

The Fifth Amendment to the Constitution provides in part that "no person ... shall be compelled in any criminal case to be a witness against himself...."80 The privilege against self-incrimination is available to a witness in a congressional investigation.81 When a witness before a committee asserts this testimonial constitutional privilege, the committee may obtain a court order granting the witness immunity if two-thirds of the full committee votes for the order.82 Such an order compels the witness to testify and grants him immunity against the use of that testimony, and other information derived therefrom, in a subsequent criminal prosecution.83The witness may still be prosecuted on the basis of other evidence.

Grants of immunity have figured prominently in a number of major congressional investigations, including Watergate (John Dean and Jeb Magruder) and Iran-Contra (Oliver North and John Poindexter). The decision to grant immunity involves a number of complex issues, but is ultimately a political decision that Congress makes. As observed by Iran-Contra Independent Counsel Lawrence E. Walsh, "[t]he legislative branch has the power to decide whether it is more important perhaps even to destroy a prosecution than to hold back testimony they need. They make that decision. It is not a judicial decision or a legal decision but a political decision of the highest importance."84

In determining whether to grant immunity to a witness, a committee might wish to consider, on the one hand, its need for the witness's testimony to perform its legislative, oversight, and informing functions, and on the other, the possibility that the witness's immunized congressional testimony could jeopardize a successful criminal prosecution. If a witness is prosecuted after giving immunized testimony, the burden is on the prosecutor to establish that the case was not based on the witness's previous testimony or evidence derived therefrom.85

Appellate court decisions reversing the convictions of key Iran-Contra figures Lt. Colonel Oliver North and Rear Admiral John Poindexter, who were granted use immunity for their congressional testimony, appear to have made the prosecutorial burden substantially more difficult in high-profile cases. Despite extraordinary efforts by the independent counsel and his staff to avoid being exposed to any of North or Poindexter's immunized testimony, and the submission of sealed packets of evidence to the district court to show that the material was obtained independently of any immunized testimony to Congress, the appeals court in both cases remanded the cases for a further determination on whether the prosecution had directly or indirectly used immunized testimony. Upon remand in both cases, the independent counsel moved to dismiss the prosecutions upon his determination that he could not meet the strict standards set by the appeals court in its decisions.86 It is unclear whether these rulings created a reluctance on the part of committees to issue immunity grants. Since the enactment of the immunity statute in 1970, congressional committees have obtained more than 300 immunity orders.87 Of these, almost half were obtained in connection with the 1978 investigation into the assassinations of President John F. Kennedy and Martin Luther King, Jr.88

Enforcement of Congressional Authority

Contempt of Congress

While the threat or actual issuance of a subpoena normally provides sufficient leverage to ensure compliance with a congressional demand for information, the contempt power is Congress's most forceful tool to punish the contemnor and/or to remove the obstruction to compliance. The Supreme Court has recognized the contempt power as an inherent attribute of Congress's legislative authority, reasoning that if it did not possess this power, it "would be exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it."89

There are two different types of contempt proceedings. Both the House and Senate may cite a witness for contempt under their inherent contempt power or under the criminal contempt procedure established by statute.90

Inherent Contempt

Under the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and, if found in contempt, may be imprisoned. The purpose of the imprisonment or other sanction may be either punitive91 or coercive.92 Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of Congress) until he agrees to comply. The inherent contempt power has been recognized by the Supreme Court as inextricably related to Congress's constitutionally-based power to investigate.93 Between 1795 and 1934 the House and Senate utilized the inherent contempt power over 85 times, in most instances to obtain (successfully) testimony and/or production of documents. The inherent contempt power has not been exercised by either house in over 75 years. This procedure appears to be disfavored now because it has been considered too cumbersome and time-consuming to hold contempt trials at the bar of the offended chamber. Moreover, some have argued that the procedure is ineffective because punishment cannot extend beyond Congress's adjournment date.94

Statutory Criminal Contempt

Recognizing the practical limitations of the inherent contempt process, in 1857 Congress enacted a statutory criminal contempt procedure as an alternative. The statute, with minor amendments, is now codified at 2 U.S.C. §§192 and 194. A person who has been subpoenaed to testify or produce documents before the House or Senate or a committee and who fails to do so, or who appears but refuses to respond to questions, is guilty of a misdemeanor, punishable by a fine of up to $100,000 and imprisonment for up to one year.95 A contempt citation must be approved by the subcommittee (if applicable), the full committee, and the full House or Senate.96 After a contempt has been certified by the President of the Senate or the Speaker of the House, it is the "duty" of the U.S. Attorney "to bring the matter before the grand jury for its action."97

The criminal contempt procedure was rarely used until the twentieth century, but since 1935 it has been essentially the exclusive vehicle for punishment of contemptuous conduct. Prior to Watergate, no executive branch official had ever been the target of a criminal contempt proceeding. Since 1975, however, 13 cabinet-level or senior executive officials have been cited for contempt for failure to testify or produce subpoenaed documents by either a subcommittee, a full committee, or by a house.98 Nonetheless, the effectiveness of the criminal contempt process against executive branch officials remains uncertain. For example, following a vote to hold EPA Administrator Anne Gorsuch Burford in contempt in 1982, the Department of Justice questioned whether Congress could compel the U.S. Attorney to submit the citation to a grand jury.99 In that case, the documents in question were turned over to Congress before the issue was litigated, leaving the question unanswered. A similar issue arose during the contempt proceedings against Attorney General Eric Holder in 2012. Following a successful vote on a criminal contempt citation in the House, the U.S. Attorney refused to forward the contempt citation to a grand jury, effectively ending the criminal contempt process.100 The question of the U.S. Attorney's "duty" under Section 192 to enforce contempt citations remains unresolved.

Statutory Civil Enforcement of Subpoenas in the Senate

As an alternative to both the inherent contempt power and criminal contempt, in 1978 Congress enacted a civil enforcement procedure that is applicable only to the Senate.101 First, the statute gives the U.S. District Court for the District of Columbia jurisdiction over a civil action to enforce, secure a declaratory judgment concerning the validity of, or prevent a threatened failure or refusal to comply with, any subpoena or order issued by the Senate or a Senate committee or subcommittee.102 Upon approval of a Senate Resolution, the Senate Office of Legal Counsel is approved to bring suit seeking one of these remedies. However, this statutory civil enforcement procedure does not apply to subpoenas issued to officers or employees of the executive branch.103

Regardless of whether the Senate seeks the enforcement of, or a declaratory judgment concerning a subpoena, the court will first review the subpoena's validity.104 Even if the court finds that the subpoena is legally deficient, it does not have jurisdiction to enjoin the congressional proceeding. Because of the limited scope of the jurisdictional statute and Speech or Debate Clause immunity for congressional investigations,105 "when the court is petitioned solely to enforce a congressional subpoena, the court's jurisdiction is limited to the matter Congress brings before it, that is whether or not to aid Congress in enforcing the subpoena."106

If the court orders enforcement of the subpoena and the individual still refuses to comply, he may be tried by the court in summary proceedings for contempt of court, with sanctions being imposed to coerce compliance.107 This civil enforcement procedure provides an element of flexibility, allowing the subpoenaed party to raise possible constitutional and other defenses to the subpoena without risking a criminal prosecution. Since the statute's enactment in 1979, the Senate has authorized the Office of Senate Legal Counsel to seek civil enforcement of a subpoena for documents or testimony at least 6 times, the last in 1995.108 None of these actions were brought against executive branch officials.

Civil Enforcement of Subpoenas in the House

While the House cannot pursue actions under the Senate's civil enforcement statute discussed above, it can pursue civil enforcement under certain circumstances. The full House must adopt a resolution finding the person in contempt and authorizing the committee and/or the House General Counsel to pursue a civil action in federal district court against the contumacious witness. The committee or the House General Counsel then files suit in the appropriate federal district court, requesting declaratory and/or injunctive relief to enforce the subpoena. This civil enforcement procedure has been employed twice, first in 2008 against Harriet Miers and Joshua Bolten, high ranking officials in the George W. Bush Administration, and most recently in 2012 against Attorney General Eric Holder.109

Perjury and False Statement Prosecutions

Testimony Under Oath

A witness under oath before a congressional committee who willfully gives false testimony is subject to prosecution for perjury pursuant to 18 U.S.C. Section 1621. The false statement must be "willfully" made before a "competent tribunal" and involve a "material matter."110 For a legislative committee to be competent for perjury purposes a quorum must be present.111 Both houses have adopted rules establishing less than a majority of members as a quorum for taking testimony, normally two members for House committees112 and one member for Senate committees.113 The requisite quorum must be present at the time the alleged perjurious statement is made, not merely at the time the session convenes.114 No prosecution for perjury will lie for statements made only in the presence of committee staff unless the committee has deposition authority and has taken formal action to allow it.115

Unsworn Statements

Most statements made before Congress, at both the investigatory and hearing phases of oversight, are unsworn. The practice of swearing in all witnesses at hearings is infrequent. Prosecutions may be brought to punish congressional witnesses for giving willfully false testimony not under oath. Under 18 U.S.C. Section 1001, false statements by a person in "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House and Senate" are punishable by a fine of up to $250,000 or imprisonment for not more than five years, or both.116

Limitations on Congressional Authority

Constitutional Limitations

There are constitutional limits not only on Congress's legislative powers, but also on its oversight and investigative powers. The Supreme Court has observed that "Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights."117 While not all provisions of the Bill of Rights are applicable to congressional hearings,118 this section discusses provisions that may limit Congress's oversight authority.

First Amendment

Although the First Amendment, by its terms, is expressly applicable only to legislation that abridges freedom of speech, press, religion (establishment or free exercise), or assembly, the Court has held that the amendment also restricts Congress in conducting oversight and/or investigations.119 In the leading case involving the application of First Amendment rights in a congressional investigation, Barenblatt v. United States, the Court held that "where First Amendment rights are asserted to bar government interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown."120 Thus, unlike the Fifth Amendment privilege against self-incrimination (discussed below), the First Amendment does not give a witness an absolute right to refuse to respond to congressional demands for information.121

The Court has held that in balancing the personal interest in privacy against the congressional need for information, "the critical element is the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosure from an unwilling witness."122 To protect the rights of witnesses, in cases involving the First Amendment, the courts have emphasized the requirements discussed above concerning authorization for the investigation, delegation of power to investigate to the committee involved, and the existence of a legislative purpose.123

While the Court has recognized the application of the First Amendment to congressional investigations, and although the amendment has frequently been asserted by witnesses as grounds for not complying with congressional demands for information, the Court has never relied on the First Amendment as grounds for reversing a criminal contempt of Congress conviction.124 However, the Court has narrowly construed the scope of a committee's authority so as to avoid reaching a First Amendment issue.125 In addition, the Court has ruled in favor of a witness who invoked his First Amendment rights in response to questioning by a state legislative committee.126

Potential concerns regarding a witness's First Amendment right may impact a committee's decision on how to proceed in an investigation. In a 1976 investigation of the unauthorized publication in the press of the report of the House Select Committee on Intelligence, the Committee on Standards of Official Conduct subpoenaed four news media representatives, including Daniel Schorr.127 The Standards of Official Conduct Committee concluded that Mr. Schorr had obtained a copy of the Select Committee's report and had made it available for publication. Although the ethics committee found that "Mr. Schorr's role in publishing the report was a defiant act in disregard of the expressed will of the House of Representatives to preclude publication of highly classified national security information," it declined to cite him for contempt for his refusal to disclose his source.128 The desire to avoid a clash over First Amendment rights apparently was a major factor in the committee's decision on the contempt matter.129

In another First Amendment dispute, the Special Subcommittee on Investigations of the House Committee on Interstate and Foreign Commerce, in the course of its probe of allegations that deceptive editing practices were employed in producing the television news documentary program The Selling of the Pentagon, subpoenaed Frank Stanton, the president of CBS. He was directed to deliver to the Subcommittee the "outtakes" of the program.130 When, on First Amendment grounds, Stanton declined to provide the subpoenaed materials, the Subcommittee unanimously voted a contempt citation; the full Committee voted 25-13 to report the contempt citation to the full House.131 After extensive debate, the House failed to adopt the committee report, voting instead to recommit the matter to the Committee.132 During the debate, several Members expressed concern that approval of the contempt citation would have a "chilling effect" on the press and would unconstitutionally involve the government in the regulation of the press.133

Fourth Amendment

Several Supreme Court opinions suggest that the Fourth Amendment's prohibition against unreasonable searches and seizures is applicable to congressional committees; however, there has not been an opinion directly addressing the issue.134 It appears that there must be a legitimate legislative or oversight-related basis for the issuance of a congressional subpoena.135 The Fourth Amendment protects a congressional witness against a subpoena that is unreasonably broad or burdensome.136 The Court has outlined the standard to be used in judging the reasonableness of a congressional subpoena:

Petitioner contends that the subpoena was so broad as to constitute an unreasonable search and seizure in violation of the Fourth Amendment.... 'Adequacy or excess in the breath of the subpoena are matters variable in relation to the nature, purposes, and scope of the inquiry.... ' The subcommittee's inquiry here was a relative1y broad one ... and the permissible scope of materials that could reasonably be sought was necessarily equally broad. It was not reasonable to suppose that the subcommittee knew precisely what books and records were kept by the Civil Rights Congress, and therefore the subpoena could only ' specify ... with reasonable particularity, the subjects to which the documents ... relate.... 'The call of the subpoena for 'all records, correspondence and memoranda' of the Civil Rights Congress relating to the specified subject describes them 'with all of the particularity the nature of the inquiry and the [subcommittee's] situation would permit.... 'The description contained in the subpoena was sufficient to enable [petitioner] to know what particular documents were required and to select them adequately.137

If a witness has a legal objection to a subpoena duces tecum or is for some reason unable to comply with a demand for documents, he must give the grounds for his noncompliance upon the return of the subpoena. As the D.C. Circuit stated:

If [the witness] felt he could refuse compliance because he considered the subpoena so broad as to constitute an unreasonable search and seizure within the prohibition of the fourth amendment, then to avoid contempt for complete noncompliance he was under [an] obligation to inform the subcommittee of his position. The subcommittee would then have had the choice of adhering to the subpoena as formulated or of meeting the objection in light of any pertinent representations made by [the witness].138

Similarly, if a subpoenaed party is in doubt as to what records are required by a subpoena or believes that a subpoena calls for documents not related to the investigation, he must inform the committee. Where a witness is unable to produce documents he will not be held in contempt "unless he is responsible for their unavailability ... or is impeding justice by not explaining what happened to them."139

The application of the exclusionary rule to congressional committee investigation is in some doubt and appears to depend on the precise facts of the situation. It appears that documents that were unlawfully seized at the direction of a congressional investigating committee may not be admitted into evidence in a subsequent unrelated criminal prosecution because of the command of the exclusionary rule.140 In the absence of a Supreme Court ruling, it remains unclear whether the exclusionary rule bars the admission into evidence in a criminal contempt prosecution arising from a congressional subpoena issued on the basis of documents obtained by a committee following their unlawful seizure by another investigating body (such as a state prosecutor).141

Fifth Amendment Privilege Against Self-Incrimination

The Supreme Court has indicated that the privilege against self-incrimination afforded by the Fifth Amendment is available to a witness in a congressional investigation.142 The privilege is personal in nature,143 and may not be invoked on behalf of a corporation,144 small partnership,145 labor union,146 or other "artificial" organizations.147 The privilege protects a witness from being compelled to testify but generally not against a subpoena for existing documentary evidence.148 However, where compliance with a subpoena duces tecum would constitute implicit testimonial authentication of the documents produced, the privilege may apply.149

The basis for asserting the privilege was elaborated upon in a lower court decision:

The privilege may only be asserted when there is reasonable apprehension on the part of the witness that his answer would furnish some evidence upon which he could be convicted of a criminal offense ... or which would reveal sources from which evidence could be obtained that would lead to such conviction or to prosecution therefore.... Once it has become apparent that the answers to a question would expose a witness to the danger of conviction or prosecution, wider latitude is permitted the witness in refusing to answer other questions.150

There is no required verbal formula for invoking the privilege, nor does there appear to be a necessary warning by the committee.151 A committee should recognize any reasonable indication, such as "the Fifth Amendment," that the witness is asserting his privilege.152 Where a committee is uncertain whether the witness is in fact invoking the privilege against self-incrimination or is claiming some other basis for declining to answer, the committee should direct the witness to specify his privilege or objection.153

The committee can review the assertion of the privilege by a witness to determine its validity, but the witness is not required to articulate the precise hazard that he fears. In regard to the assertion of the privilege in judicial proceedings, the Supreme Court has advised:

To sustain the privilege, it need only be evident, from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.... To reject a claim, it should be 'perfectly clear, from a careful consideration of all the circumstances of the case, that the witness is mistaken, and that the answers cannot possibly have a tendency' to incriminate.154

The privilege against self-incrimination may generally only be waived "intelligently and unequivocally."155 A court will not construe an ambiguous statement of a witness before a committee as a waiver.156 Although routinely hesitant to find an implied waiver of the Fifth Amendment privilege, the Court has held that when a witness voluntarily provides testimony during a criminal proceeding, the witness may waive his right to invoke the Fifth Amendment in response to subsequent questions relating to the details of that disclosure.157 This "testimonial subject matter" waiver is not an absolute waiver of Fifth Amendment protections, but rather acts as a limited waiver covering only the details of the subject matter disclosed. The application of this doctrine in the congressional context has yet to be clearly established by the Supreme Court.158

Under federal statute, when a witness asserts the privilege, the full house or the committee conducting the investigation may seek a court order which (a) directs the witness to testify and (b) grants him immunity against the use of his testimony, or other evidence derived from his testimony, in a subsequent criminal prosecution.159 As previously discussed, the immunity that is granted is "use" immunity, not "transactional" immunity.160 Neither the immunized testimony that the witness gives, nor evidence derived therefrom, may be used against him in a subsequent criminal prosecution, except one for perjury or contempt relating to his testimony. However, he may be convicted of the crime (the "transaction") on the basis of other evidence.161

An application for a judicial immunity order must be approved by a majority of the House or Senate or by a two-thirds vote of the full committee seeking the order.162 The Attorney General must be notified at least ten days prior to the request for the order, and he can request a delay of twenty days in issuing the order.163 Although the order to testify may be issued before the witness's appearance,164 it does not become legally effective until the witness has been asked a question, invoked his privilege, and been presented with the court order.165 The court's role in issuing the order has been held to be ministerial and, thus, if the procedural requirements under the immunity statute have been met, the court may not refuse to issue the order or impose conditions on the grant of immunity.166

Fifth Amendment Due Process Rights

The due process clause of the Fifth Amendment requires that "the pertinency of the interrogation to the topic under the ... committee's inquiry must be brought home to the witness at the time the questions are put to him."167 "Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto."168 Additionally, in a contempt proceeding, to satisfy both the requirement of due process as well as the statutory requirement that a refusal to answer be "willful," a witness should be informed of the committee's ruling on any objections he raises or privileges that he asserts.169

Executive Privilege

The executive branch may respond to a congressional request or demand to testify or produce documents with an assertion of executive privilege. Executive privilege has two different dimensions—the deliberative process privilege, which relates to executive branch decision making processes and the presidential communications privilege, which relates to presidential decision making.

Presidential Communications Privilege

The seminal Supreme Court case discussing executive privilege in the context of presidential communications is United States v. Nixon. In Nixon, which arose out of a judicial subpoena issued to President Nixon at the request of the Watergate special prosecutor, the Court established executive privilege to be a constitutionally based privilege, rooted in "the supremacy of each branch within its own assigned area of constitution duties" and the separation of powers.170 The privilege, when applied to presidential communications, is designed to protect direct presidential decision making processes. The Court considered presidential communications to be presumptively privileged, but concluded that the privilege was not absolute and could be overcome by an appropriate showing of need by the requesting party.171

While Nixon is the foundational executive privilege case, a later D.C. Circuit decision is the only case in which a court examines the application of executive privilege in the face of a congressional subpoena.172 In Senate Select Committee on Presidential Campaign Activities v. Nixon, the court followed the analysis established in Nixon and held that presidential communications were presumptively privileged but could be overcome by a sufficient showing of need from the requesting congressional committee.173

Later cases relating to congressional investigations have provided little guidance on how to evaluate claims of executive privilege made in response to congressional subpoenas. In the absence of these clarifying decisions, information access cases in similar contexts, such as grand jury subpoenas and Freedom of Information Act (FOIA) requests, may provide some guidance.174 Two cases from the D.C. Circuit discuss the differences between two aspects of executive privilege, the presidential communications privilege and the deliberative process privilege, discussed below. Based on these cases, it appears that the presidential communications privilege may only be asserted with regard to documents or communications that are authored by or solicited and received by the President or presidential advisers with "operational proximity" to the President. The courts determined that "operational proximity" included advisers within the White House, but did not include cabinet secretaries or cabinet employees.175 Under the reasoning in these cases, the presidential communications privilege would not apply to documents that were created and distributed solely within an executive department. Additionally, these courts suggested that the privilege may only apply to documents relating to a quintessential and non-delegable presidential power.176

The privilege applies to both pre- and post-decisional documents and communications, in their entirety, regarding direct decision-making by the President.177 Finally, the presidential communications privilege remains a qualified privilege that may be overcome by a requisite showing of need.

Deliberative Process Privilege

The deliberative process privilege may often be invoked in response to requests for documents and communications created during the decision making process, such as internal executive branch advisory opinions, recommendations, and related communications. The deliberative process privilege may shield the disclosure of executive branch documents and communications that are predecisional, meaning they are created prior to reaching the agency's final decision, and deliberative, meaning they relate to the thought process of executive officials and are not purely factual.178 Additionally, the privilege does not protect entire documents; rather, the executive branch is required disclose non-privileged factual information that is reasonably segregable from privileged information in the requested documents. The deliberative process privilege is qualified, not absolute; it can be overcome by an adequate showing of need.179

The purpose underlying the deliberative process privilege is to protect the "'quality of agency decisions' by allowing government officials freedom to debate alternative approaches in private."180 The executive branch also may contend that the privilege protects against disclosure of proposed policies before they are fully considered or adopted, preventing public confusion about the difference between preliminary discussions and final decisions.

No court has examined the scope of the deliberative process privilege in the context of a congressional subpoena. However, a D.C. Circuit case which arose in the context of a grand jury subpoena found that while the deliberative process privilege "originated as a common law privilege," some aspects of it may also "have roots in the constitutional separation of powers."181 Whether the deliberative process privilege is a pure common law privilege, similar to common law privileges discussed below, or a hybrid common law and constitutional privilege may impact how successful an assertion of the privilege would be to shield disclosure of information to Congress. Congress's oversight authority is limited by constitutional privileges, but Congress is generally not required to recognize common law privileges.

This question may be addressed in the ongoing litigation regarding enforcement of a subpoena issued to the Attorney General as part of a congressional investigation of Operation Fast and Furious.182 In that case, the House Committee on Oversight and Government Reform argues that the deliberative process privilege, which was asserted by the President with regard to DOJ documents subpoenaed by the Committee, is a wholly common law privilege that must be distinguished from other, constitutionally-based privileges. Therefore, the Committee contends, the common law privilege cannot shield the disclosure of documents that are subject to a constitutionally-rooted subpoena. The district court judge in the case appears to have questioned the Committee's argument and in an order rejected the Committee's argument that only constitutionally based privileges could be invoked in response to a subpoena.183 However, the judge has yet to reach the merits regarding the dispute over the assertion of executive privilege.184

Common Law Privileges

Attorney-Client Privilege

Although there is limited case law with respect to attorney-client privilege claims before congressional committees,185 appellate court rulings on the privilege in cases involving other investigative contexts (e.g., grand jury) have raised questions as to whether executive branch officials may claim attorney-client or other common law privileges in the face of investigative demands.186 Congress's implicit constitutional prerogative to investigate is the legal basis for Congress's practice in this area, which has long been recognized by the Supreme Court as extremely broad and encompassing, and is at its peak when the subject is waste, fraud, abuse, or maladministration within a government department.187 The attorney-client privilege is, on the other hand, not a constitutionally based privilege; rather it is a judge-made exception to the normal principle of full disclosure in the adversary process that is to be narrowly construed and has been confined to the judicial forum.188

In practice, the exercise of committee discretion in accepting a claim of attorney-client privilege has turned on a "weighing [of] the legislative need for disclosure against any possible resulting injury"189 to the witness.190 On a case-by-case basis, a committee can consider, amongst other factors:

A valid claim of attorney-client privilege, free of any taint of waiver, exception, or other mitigating circumstance, would merit substantial weight. Any serious doubt, however, as to the validity of the asserted claim would diminish its compelling character.191 Moreover, the conclusion that recognition of non-constitutionally based privileges, such as attorney-client privilege, is a matter of congressional discretion is consistent with both traditional British parliamentary and Congress's historical practice.192

Although no court has recognized the inapplicability of the attorney-client privilege in congressional proceedings in a decision directly addressing the issue,193 an opinion issued by the Legal Ethics Committee of the District of Columbia Bar in February 1999 clearly acknowledges the long-standing congressional practice.194 The ruling arose out of a House Commerce Committee subcommittee investigation of the planned relocation of the Federal Communications Commission offices to the Portals complex.195 The subcommittee sought certain documents from the Portals developer, Mr. Franklin L. Haney. Mr. Haney's refusal to cooperate resulted in the issuance of subpoenas for production of documents to him and his attorneys. Both Mr. Haney and the attorneys asserted attorney-client privilege in their continued refusal to comply. The law firm also sought an opinion from the D.C. Bar's Ethics Committee as to its obligations in the face of the subpoena and a possible contempt citation. While awaiting an opinion from the Ethics Committee, the subcommittee cited the firm for contempt for their continued refusal to comply. The firm then proposed to turn over the documents if the contempt citation was withdrawn, to which the subcommittee agreed.196

Subsequently, the D.C. Bar's Ethics Committee issued an opinion vindicating the action taken by the firm. The Ethics Committee determined that an attorney faced with a congressional subpoena that would reveal client confidences or secrets:

has a professional responsibility to seek to quash or limit the subpoena on all available, legitimate grounds to protect confidential documents and client secrets. If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents.197

The D.C. Bar opinion urges attorneys to press every appropriate objection to the subpoena until no further avenues of appeal are available, and even suggests that clients might be advised to retain other counsel to institute a third-party action to enjoin compliance,198 but allows the attorney to relent at the earliest point when he is put in legal jeopardy. The opinion represents the first, and thus far the only, bar association in the nation to directly and definitively address the merits of the issue.

In the end, it is the congressional committee alone that determines whether to accept a claim of attorney-client privilege.

Work Product Immunity and Other Common Law Testimonial Privileges

The Federal Rules of Evidence recognize testimonial privileges for witnesses in judicial proceedings so that they need not reveal confidential communications between doctor and patient, husband and wife, or clergyman and parishioner.199 Although there is no court case directly on point, it appears that, like the attorney-client privilege, congressional committees are not legally required to allow a witness to decline to testify on the basis of these other, similar testimonial privileges.200 In addition, court decisions indicate that various rules of procedure generally applicable to judicial proceedings, such as the right to cross-examine and call other witnesses, need not be accorded to a witness in a congressional hearing.201 The basis for these determinations is rooted in Congress's Article I, Section 5 rulemaking powers,202 under which each house is the exclusive decision maker regarding the rules of its own proceedings. This rulemaking authority and general separation of powers considerations suggest that Congress and its committees are not obliged to abide by rules established by the courts to govern their own proceedings.203

Though congressional committees may not be legally obligated to recognize privileges for confidential communications, they may do so at their discretion. Historical precedent suggests that committees often have recognized such privileges.204 The decision as to whether or not to allow such claims of privilege turns on a "weighing [of] the legislative need for disclosure against any possible resulting injury."205

Statutory Limitations on Congressional Access to Information

In certain circumstances, Congress has chosen to enact laws that limit its own ability to access specific types of information. Arguably, the quintessential example of such self-limiting action is 26 U.S.C. Section 6103(f), under which only the House Committee on Ways and Means, Senate Committee on Finance, and the Joint Committee on Taxation are permitted access to individual's tax returns.206 Should any other committee require such information, it must first obtain a House or Senate resolution207 specifying the purpose for which the information is to be furnished and that the requested information cannot be reasonably obtained from any other source.208 The information is to be provided only when the requesting committee is sitting in closed executive session.209

Other commonly cited statutory restrictions on oversight are 50 U.S.C. Sections 3091-3093, relating to foreign intelligence activities. Section 3091 governs congressional oversight of "intelligence activities"210 generally. It requires that the President ensure that congressional intelligence committees are "fully and currently informed" of intelligence activities211 and "promptly" notified of illegal intelligence activities.212 Section 3092 governs oversight of intelligence activities that are not covert actions and Section 3093 governs oversight of covert actions. Each section imposes a duty on the Director of National Intelligence (DNI) and the heads of other entities involved in intelligence activities to

with due regard for the protection from unauthorized disclosure of classified information relating to sensitive intelligence sources and methods or other exceptionally sensitive matters ... keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action... which are the responsibility of, are engaged in by, or are carried out for or on behalf of, any department, agency, or entity of the United States Government.... 213

Self-imposed limits on congressional oversight powers raise the question of whether statutes that generally prohibit public disclosure of information also restrict congressional access. Federal courts have held that the executive branch and private parties may not withhold documents from Congress based on a law that restricts public disclosure, because the release of information to a congressional requestor is not considered to be a disclosure to the general public.214 Accordingly, it appears unlikely that a reviewing court would interpret a statute as restricting Congress's access to information unless the statute is express and unambiguous. Once documents are in congressional control, the courts will presume that committees "will exercise their powers responsibly and with proper regard for rights of affected parties."215 Additionally, it appears that the courts may not prevent congressional disclosure of confidential information if such disclosure falls within the scope of the Speech or Debate Clause privilege.216

From time to time the President, the executive branch, and private parties have argued that certain statutes of general applicability prevent the disclosure of confidential or sensitive information to congressional committees. For example, a frequently cited statute to justify such non-disclosure is the Trade Secrets Act, a criminal provision that generally prohibits the disclosure of trade secrets and other confidential business information by a federal officer or employee "unless otherwise authorized by law."217 A review of the Trade Secrets Act's legislative history, however, provides no indication that it was ever intended to apply to Congress, its employees, or any legislative branch agency or its employees.218 Moreover, as a matter of statutory construction it would appear to be unusual for Congress to subject, sub silentio, its staff to criminal sanctions for such disclosures, especially given its well-established oversight and investigative prerogatives, and its constitutional privilege with respect to Speech or Debate.219 As such, there appears to be little doubt that disclosure to Congress of confidential information covered by the Trade Secrets Act would be deemed to be "authorized by law."

In instances in which the target of a congressional inquiry attempt to withhold information based on a general nondisclosure statute that is silent with respect to congressional disclosure, the committee may have to take additional steps to access the information. Potential solutions include negotiations with the target; accommodations in the form of accepted redactions or other means of providing the information; or a so-called "friendly subpoena," which may provide the targeted entity or individual with the necessary legal cover to assist the committee with its inquiry. Each of these and many other prospective solutions can be employed at the committee's discretion.

Limitations Relating to Global Investigations

Options for Obtaining Materials From Overseas

If a congressional demand for information has been enforced in U.S. courts, through, for example, a criminal contempt conviction or the civil enforcement of a subpoena, U.S. courts may be able to seek assistance from foreign countries to enforce a court order. There are two ways for U.S. courts to request assistance from foreign countries in obtaining evidence (including witness testimony) located outside the United States: mutual legal assistance treaties and letters rogatory. Mutual legal assistance treaties provide for two countries' mutual assistance in criminal proceedings. Letters rogatory are formal requests made by a court in one country to a competent body in another country to serve process or order testimony of a witness or the production of evidence.220 U.S. courts are statutorily authorized to issue such letters.221 However, letters rogatory are generally considered a measure of last resort and are generally used only when no mutual legal assistance treaty exists.222

The existence of a mutual legal assistance treaty, however, does not guarantee that a congressional subpoena will be enforced in a foreign jurisdiction. Rather, the specific wording of the treaty must be consulted. For example, the United States and the United Kingdom (U.K.) have a mutual legal assistance treaty that provides for various forms of assistance in criminal investigations and prosecutions, including serving documents, transferring persons in custody for testimony, and, in some cases, compelling testimony.223 A U.S. court would likely invoke the treaty when seeking assistance from the U.K. in obtaining evidence.224 Article 19 states that the treaty applies to any proceeding "related to criminal matters," including "any measure or step taken in connection with the investigation or prosecution of criminal offenses."225 In addition, it allows relevant officials, in their discretion, to "treat as proceedings for the purpose of this treaty such hearings before or investigations by any court, administrative agency or administrative tribunal with respect to the imposition of civil or administrative sanctions."226 Although this language might appear on its face to apply to civil or criminal contempt proceedings, the relevant proceeding would likely be considered the underlying congressional testimony, rather than the court contempt proceeding.227 Because it would not result in criminal or civil sanctions, British officials may not view a congressional committee hearing as a "proceeding" under the treaty.

If a letter rogatory were found to be an appropriate vehicle despite the U.S.-U.K. mutual legal assistance treaty, it appears that the U.K. might nevertheless decline to enforce such a letter. Principles of international comity—"friendly dealing between nations at peace"228—undergird countries' mutual compliance with letters rogatory. Although reciprocity is not coterminous with international comity and the Supreme Court has held that judicial assistance by U.S. courts need not depend on reciprocity,229 many countries use reciprocity as a guide to determine compliance with letters rogatory. Thus, it is important to examine U.S. compliance with other countries' letters rogatory to determine the likely extent of reciprocal compliance abroad. The applicable statute authorizes a U.S. district court to assist a foreign court if:

With regard to a congressional investigation, the requirement that the evidence be for use in a "proceeding before a foreign tribunal" is the only requirement that might present a hardship for a foreign governmental body in an analogous situation. Domestic courts have generally interpreted the word "tribunal" as including only entities with the capacity to make a binding adjudication.231 Following this interpretation, a foreign country following a reciprocal approach may elect to decline to assist when requests originate from congressional committees, which are not commonly considered "tribunals" since they lack the legal authority to render binding adjudications.

Ability to Serve Congressional Subpoenas Overseas

There appear to be very few examples of congressional attempts to issue, serve, and enforce subpoenas abroad.232 Congress's experiences during the Iran-Contra investigations demonstrate both of the potential difficulties of securing judicial assistance abroad and the need for imaginative improvisation.233 The House and Senate Select Committees investigating the Iran-Contra matter were faced with formidable obstacles from the outset, including, but not limited to a relatively short deadline to complete their investigation; a parallel Independent Counsel investigation competing for the same evidence; witnesses and evidence in foreign countries with strict secrecy laws; and an Administration that would not cooperate in facilitating any possible diplomatic accommodations.

These challenges were evident in the Committees' attempts to obtain information contained in Swiss bank accounts. The Committees sought a sharing agreement with the Independent Counsel, who was authorized by federal law and a Swiss treaty to seek Swiss judicial assistance, but he was reluctant to jeopardize his relationship with the Swiss government.234 Instead, in 1987, the Committees issued an order requiring that former Major Richard V. Secord execute a consent directive authorizing the release of his offshore bank records and accounts to the Committee.235 When Mr. Secord refused to sign the consent directive, the Committee sought a court order directing him to comply.236 The court ruled that there was a testimonial aspect to requiring the signing of the consent directive and, thus, a court order would violate Mr. Secord's Fifth Amendment right against self-incrimination.237 The court did not otherwise challenge the Committees' ability to seek such an order.

As a last resort, the Committees concluded that to obtain the critical financial records they had to grant use immunity to a principal target of the investigation, who was living in Paris and would not subject himself to U.S. jurisdiction, in return for the records. To establish its own investigative legitimacy and allay concerns about the force of the immunity grant, the Committees obtained an order (a "commission") from a district court, under Rule 28 of the Federal Rules of Civil Procedure, empowering him (the "commissioner") to obtain evidence in another country and to bring it back.238 Finally, the House Committee issued the chief counsel a commission, much like a subpoena in format, to further document his official status. The witness turned over the financial documents and aided in deciphering and understanding them.239 The legal sufficiency of the tactic was never tested in court but proved effective in obtaining the documents.

Frequently Encountered Information Access Issues

Congressional oversight and investigations can often, though not always, become adversarial, especially if the target of an investigation refuses to disclose requested information. In those situations, the targeted entity may attempt to argue that disclosure of the information is prohibited by a specific law, rule, or executive decision. Another common tactic is to assert that the information is so sensitive that Congress is not among those entitled or authorized to have the information. This section will address some of the most common laws, rules, and orders that have been cited as the basis for targeted entities withholding information from Congress.

The Privacy Act

The Privacy Act prohibits, with certain exceptions, the disclosure by a federal agency of "any record which is contained in a system of records" to any person or to another agency, except pursuant to a written request by, or with the prior written consent of, the subject of the record.240 While the Privacy Act restricts disclosures by federal departments, Congress has expressly reserved its constitutional right of access to covered information.241 The statutory limitations do not apply to disclosure of records by the executive "to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee.... "242 This exemption applies, by its terms, to a disclosure to the House or Senate, or to a committee or subcommittee that has jurisdiction over the subject of the disclosure. The exemption does not, however, permit disclosures to committees without jurisdiction, minority Members of committees, or to individual Members of Congress.

Furthermore, the original guidelines adopted by the Office of Management and Budget (OMB)243 state that the congressional exemption "does not authorize the disclosure of a record to Members of Congress acting in their individual capacities without the consent of the individual."244 Similarly, some court rulings have found that the exemption applies "only to a House of Congress or a committee or subcommittee, not to individual congressmen."245 One case construed the exemption somewhat more broadly and held that it applies to a disclosure to an individual Member "in his official capacity as a member of ... [a] subcommittee, not as an individual Member of Congress."246

The Freedom of Information Act

The Freedom of Information Act (FOIA) requires publication in the Federal Register of various information, such as descriptions of an agency's organization and procedures. It also requires that certain materials, such as statements of policy that have not been published in the Federal Register and certain staff manuals, be made available for public inspection.247 In addition, FOIA provides that all other records are to be disclosed in response to a specific request by any person, except records that fall under one of the nine exemptions from the disclosure requirements.248 FOIA also provides for both administrative and judicial appeals when access to information is thought to be improperly denied by an agency.

FOIA applies to "agencies,"249 which are defined to include "any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency."250 Congress is not included within the scope of the definition of agency. Therefore, records of the House, Senate, congressional committees, and Members are not subject to disclosure under FOIA.251

Additionally, FOIA specifically provides that the statute "is not authority to withhold information from Congress."252 The D.C. Circuit, in Murphy v. Department of the Army,253 explained that FOIA exemptions were no basis for withholding information from Congress because of:

the obvious purpose of the Congress to carve out for itself a special right of access to privileged information not shared by others.... Congress, whether as a body, through committees, or otherwise, must have the widest possible access to executive branch information if it is to perform its manifold responsibilities effectively. If one consequence of the facilitation of such access is that some information will be disclosed to congressional authorities but not to private persons, that is but an incidental consequence of the need for informed and effective lawmakers.254

When a congressional committee of jurisdiction is seeking information from an agency for legislative or oversight purposes, it does not act pursuant to FOIA, but rather pursuant to Congress's constitutional oversight authority.255 Therefore, an agency may not cite a FOIA exemption as the reason for withholding disclosure.

Individual Members, Members not on a committee of jurisdiction, or minority Members of a jurisdictional committee, may, like any person, request agency records.256 When they do, however, they are not acting pursuant to Congress's constitutional authority to conduct oversight and investigations. Therefore, the DOJ has interpreted the congressional exemption not to apply to such requests.257 Thus, the standard FOIA exemptions that an agency could invoke to prevent disclosure to the general public can also be cited to prevent disclosure to these categories of Members.

Grand Jury Materials

In the course of an investigation, Congress may seek access to evidence that was presented before a grand jury. As a general matter, Federal Rule of Criminal Procedure 6(e) provides for the secrecy of "matters occurring before the grand jury," unless a court authorizes disclosure for the purposes of a judicial proceeding, or at the request and showing by a defendant that he needs the information to justify dismissal of an indictment. Although the rule codifies the traditional policies underlying grand jury secrecy, it remains subject to recognized exceptions.258 The rule, however, was arguably not intended to insulate from disclosure all information once it is presented to a grand jury.259 Rather, according to the courts, the aim of the rule is to "prevent disclosure of the way in which information was presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury's suspicion focuses, and specific details of what took place before the grand jury."260

Court approved disclosures of grand jury material require "a strong showing of particularized need."261 Persons or entities seeking disclosure "must show that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed."262 Since any examination begins with a preference for preservation of the grand jury's secrets, the particularized need requirement cannot be satisfied simply by demonstrating that the information sought would be relevant or useful or that acquiring it from the grand jury rather than from some other available source would be more convenient.263

There are numerous examples in which entities of the legislative branch have sought and received material that was covered by Rule 6(e). For example, in 1952, the Senate Banking Committee filed a motion requesting access to documents in the custody of the United States Attorney that had been shown to a federal grand jury.264 The court ordered the documents disclosed, over the objections of the United States Attorney, concluding that "when the fact or document is sought for itself, independently, rather than because it was stated before or displayed to the grand jury, there is no bar of secrecy."265

Similarly, in In re Grand Jury Investigation of Ven-Fuel et al.,266 a federal district court held that a subcommittee request for documents presented to a grand jury was not prohibited by Rule 6(e). The court held that when Congress is acting within the "legitimate sphere of legislative activity" it is legally entitled to Rule 6(e) information.267 The court thus ordered that the Chair and Members of the Subcommittee "be permitted to examine all of the documents, without segregation and identification of those upon which the criminal indictment was based, in order to determine what specific documents they wish produced for their use."268

When information sought by a congressional committee seeks to reveal what actually occurred before the grand jury, however, the courts have been much more reluctant to order its disclosure. In In Re Grand Jury Impaneled October 2, 1978 (79-2),269 the District Court for the District of Columbia held that a subcommittee's request for an inventory of all documents subpoenaed by a grand jury fell within the scope of Rule 6(e) and, therefore, was not required to be disclosed.270 The court was particularly concerned that such a disclosure would "set a dangerous precedent by revealing a great deal about the scope and focus of the grand jury's investigation."271

Documents Related to Pending Litigation

Often congressional committees decide to investigate matters in which federal litigation is currently pending, which may be met by resistance from the DOJ. These rationales have included a desire to avoid prejudicial pre-trial publicity; protecting the rights of innocent third parties; protecting the identity of confidential informants; preventing disclosure of the government's strategy in anticipated or pending judicial proceedings; avoiding a potential chilling effect on the exercise of prosecutorial discretion by DOJ attorneys; and precluding interference with the President's constitutional duty to faithfully execute the laws.272 Jackson's views were reiterated by Attorney General William French Smith in a 1982 congressional investigation of the EPA, in which DOJ argued that withholding EPA attorneys' memoranda and notes, regarding enforcement strategy, case preparation, and settlement consideration, prevented prejudice to the cause of effective law enforcement.273 He additionally expressed concern that disclosure would raise "a substantial danger that congressional pressures will influence the course of the investigation."274

In the 2001-2002 House Government Reform Committee investigation of the FBI misuse of informants, despite maintaining its historical position, DOJ ultimately disclosed internal deliberative prosecutorial documents following increased congressional pressure. In a February 1, 2002, letter to Chairman Burton, the DOJ Assistant Attorney General for Legislative Affairs explained:

Our particular concern in the current controversy pertains to the narrow and especially sensitive categories of advice memoranda to the Attorney General and the deliberative documents making recommendations regarding whether or not to bring criminal charges against individuals. We believe that the public interest in avoiding the polarization of the criminal justice process required greater protection of those documents which, in turn, influences the accommodation process. This is not an "inflexible position," but rather a statement of a principled interest in ensuring the integrity of prosecutorial decision-making.275

A review of the case law in this area suggests that the courts have recognized the potentially prejudicial effect congressional hearings can have on pending cases.276 While not questioning the prerogatives of Congress with respect to oversight and investigation, the cases pose a political choice for Congress. On one hand, congressionally generated publicity may harm the executive branch's prosecutorial effort. On the other hand, access to information under secure conditions can fulfill the congressional oversight objectives and need not be inconsistent with the executive's authority to pursue its case. Although powerful arguments may be made on both sides, the decision to pursue a congressional investigation of pending civil or criminal matters remains a choice that is solely within Congress' discretion to make. As the Iran-Contra Independent Counsel observed "[t]he legislative branch has the power to decide whether it is more important perhaps to destroy a prosecution than to hold back testimony they need. They make that decision. It is not a judicial decision, or a legal decision, but a political decision of the highest importance."277

Classified Material

How are materials classified?

The standards for classifying and declassifying information are contained in Executive Order 13526 and were adopted by President Obama on December 29, 2009.278 These standards provide that the President, Vice President, agency heads, and any other officials designated by the President may classify information upon a determination that its unauthorized disclosure could reasonably be expected to damage national security.279 Such information must be owned by, produced by, or under the control of the federal government, and must concern one of the areas delineated by the Executive Order.280

Information is classified at one of three levels based on the amount of danger that its unauthorized disclosure could reasonably be expected to cause to national security.281 Information is classified as:

Significantly, for each level, the original classifying officer must identify or describe the specific danger potentially presented by the information's disclosure.282 The officer who originally classifies the information establishes a date for declassification based upon the expected duration of the information's sensitivity. If the officer cannot set an earlier declassification date, then the information must be marked for declassification after 10 or 25 years, depending on the sensitivity of the information.283 The deadline for declassification can be extended if the threat to national security still exists.284

Who can access classified materials?

Access to classified information is generally limited to those who:

The information being accessed may not be removed from the controlling agency's premises without permission.286 Each agency is required to establish systems for controlling the distribution of classified information.287

The Executive Order does not contain any instructions regarding disclosures to Congress or its committees of jurisdiction. "Members of Congress, as constitutionally elected officers, do not receive security clearances as such, but are instead presumed to be trustworthy," thereby fulfilling the first requirement to access classified materials.288 Members of Congress must still satisfy the "need to know" requirement. A Member could assert that he fulfills this requirement based on the constitutional duties and responsibilities of his office. However, it should be noted that the executive branch may disagree with this interpretation and has previously stated that it retains the final authority to determine if a Member has a need to know.289 For example, a 1996 Office of Legal Counsel Opinion stated that "the longstanding practice under Executive Order 12356 (and its successor) has been that the 'need-to-know' determination for disclosures of classified information to Congress is made through established decisionmaking channels at each agency."290

Congressional aides, support staff, and other legislative branch employees do not automatically have access to classified information and, therefore, must go through the necessary security clearance process prior to being permitted to review such information.

The Executive Order's silence with respect to disclosure to Congress, combined with the absence of any other law restricting congressional access to classified material, suggests that mere classification likely cannot be used as a legal basis to withhold information from Congress. That said, practical and political concerns with respect to controlled access, secure storage, and public disclosure may provide persuasive rationales for withholding or limiting congressional access. Committees and subcommittees have wide discretion to negotiate with the Administration regarding these issues. For example, an investigating committee or subcommittee could choose to review documents at an executive branch secure facility, permit redactions of certain information, limit the ability of staff to review certain material, and/or opt to hold non-public meetings, briefings, and hearings where classified information will be discussed. None of these measures are legally required, but all are within the investigating entity's discretion and may assist in facilitating the disclosure of materials sought during the investigation.

Judicial Precedent Involving Congressional Access to Classified Materials

Though there have been numerous notable congressional investigations of programs and activities involving classified information,291 it appears that only one information access dispute reached the courts. The House Interstate and Foreign Commerce Committee subcommittee investigation involved allegations of improper domestic and foreign intelligence gathering and warrantless wiretapping. In 1976, the subcommittee issued subpoenas to the American Telephone and Telegraph Company (AT&T)seeking copies of "all national security request letters sent to AT&T and its subsidiaries by the FBI as well as records of such taps prior to the time when the practice of sending such letters was initiated."292 Before AT&T could comply with the request, the DOJ and the Subcommittee's Chairman, Representative John Moss, entered into negotiations to reach an alternate agreement that would prevent AT&T from turning over all of its records.293 When these negotiations broke down, the DOJ sought an injunction prohibiting AT&T from complying with the Subcommittee's subpoenas, arguing that the potential for disclosure of the information outside of Congress would damage "the national interest."294 After the district court deferred to the President's "final determination" regarding the potential damage of complying with the subpoena and issued the injunction,295 the Court of Appeals for the District of Columbia Circuit (D.C. Circuit) heard the case.296

The court carefully addressed the claims of absolute rights asserted by both Congress and the executive branch. Congress, based on the Speech or Debate Clause,297 asserted that judicial interference with its investigations was constitutionally prohibited. Relying on both Eastland v. United States Servicemen's Fund298 and United States v. Nixon,299 the court concluded that while generally congressional subpoena power cannot be interfered with by the courts, the "Eastland immunity is not absolute in the context of a conflicting constitutional interest asserted by a coordinate branch of government."300 The Executive Branch asserted absolute discretion with respect to national security materials. In response, the court noted that Supreme Court precedent does "not establish judicial deference to executive determinations in the area of national security when the result of that deference would be to impede Congress in exercising its legislative powers."301 Given the sensitivity of the constitutional balancing required to resolve the claim and the fact that the parties had nearly reached an out-of-court settlement, the court declined to rule on the merits of the claim.302 The court directed the parties to continue negotiations and report to the district court on their progress.303

After continued negotiations, the parties reached an impasse and found themselves back before the D.C. Circuit.304 Again, the court was faced with a dispute between two assertions of absolute constitutional authority. It rejected the executive branch's claim stating:

the executive would have it that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security ... it confers upon Congress other powers equally inseparable from the national security ... 305

The appeals court also rejected Congress's argument about judicial interference with congressional investigations, stating that

the [Speech or Debate] Clause does not and was not intended to immunize congressional investigatory actions from judicial review. Congress'[s] investigatory power is not, itself, absolute. And the fortuity that documents sought by a congressional subpoena are not in the hands of a party claiming injury from the subpoena should not immunize that subpoena from challenge by that party.306

Like its previous decision, rather than ruling on the merits of the constitutional conflict the court attempted to fashion a compromise that would force the parties back into negotiations. DOJ was allowed to limit the sample size of the unedited memoranda and prohibit committee staff from removing their notes from the FBI's possession.307 If the Subcommittee alleged inaccuracy or deception, the materials were to be forwarded to the district court for in camera review and any remedial action the court found necessary.308 In addition, the Attorney General was permitted to employ a substitution procedure for the most sensitive documents; however, the substitutions had to be approved by the district court based on a showing of "the accuracy and fairness of the edited memorandum, and the extraordinary sensitivity of the contents of the original memorandum to the national security."309

In the end, the AT&T court never ruled on the merits of the dispute and never resolved the constitutional conflict between the branches. At most, AT&T stands for the proposition that neither claims of executive control over national security documents, nor congressional assertions of access are absolute. Instead, both claims are qualified and, therefore, subject to potential judicial review, but only after every attempt to resolve the differences between the branches themselves has been exhausted. In addition, AT&T provides support for the proposition that third-party subpoenas—such as ones to telecommunications companies—can be challenged in federal court and are not subject to the constitutional protection provided by the Speech or Debate Clause.310

Sensitive But Unclassified Materials

Committees conducting investigations and oversight of executive branch agencies may require access to information and documents that are "sensitive" but do not rise to the level of being classified. This general category of "sensitive but unclassified" (SBU) information can present access issues for congressional committees. The fact that information is "sensitive" does not provide a legal basis for withholding it from duly authorized jurisdictional committees of Congress. However, there may be legitimate political and policy reasons why an agency's classification of information as "sensitive" should be afforded due deference.

SBU material can take numerous forms; some categories are statutorily authorized, while others are creations of the agency that authored or is holding the requested information. One example of a statutorily authorized SBU category is found in the statute creating the Transportation Security Administration (TSA). The statute requires the TSA Director to

prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security... if the [he] decides that disclosing the information would– (A) be an unwarranted invasion of personal privacy; (B) reveal a trade secret or privileged or confidential commercial or financial information; or (C) be detrimental to the security of transportation.311

The statute also expressly states that the general authority provided to withhold information from the public "does not authorize information to be withheld from a committee of Congress authorized to have the information."312 Pursuant to this statute, TSA promulgated regulations defining "sensitive security information" (SSI) and restrictions on its disclosure.313 In addition, the SSI regulations also appear to insulate congressional committees and their staffs from any sanctions or penalty from the receipt and disclosure of SSI. The definition of "covered persons," those subject to the SSI regulations, does not appear to include Members of Congress, committees, or congressional staff.314 Moreover, the regulations specifically state, as directed by the statute, that "[n]othing in this part precludes TSA or the Coast Guard from disclosing SSI to a committee of Congress authorized to have the information.... "315

Many agencies have developed their own internal information protection regimes that may be cited in response to congressional requests. One example of such an agency created regime is "for official use only" (FOUO). According to a DHS Management Directive, the FOUO classification316 distinguishes between documents marked FOUO and other information that may be protected from public disclosure under different designations. Specifically, the Directive defines FOUO as "not to be considered classified information"317 and "is not automatically exempt from disclosure under the provisions of [FOIA]."318 The Directive makes clear that FOUO information is not intended to be withheld from other governmental entities, stating that such information "may be shared with other agencies, federal, state, tribal, or local government and law enforcement officials."319 Such a definition appears to include Congress (and, thus, authorized committees and subcommittees) among the entities to which the information can be disclosed. Such inclusion is consistent with Congress's broad constitutionally-based authority to obtain information from executive agencies.

Individual Member and Minority Party Authority to Conduct Oversight and Investigations

The role of Members of the minority in the investigatory oversight process is governed by the rules of each house and its committees. While minority Members are specifically accorded some rights,320 no House or committee rules authorize either ranking minority Members or individual Members on their own to institute official committee investigations, hold hearings, or issue subpoenas. Although individual Members may seek the voluntary cooperation of agency officials or private persons, no judicial precedent has directly recognized an individual Member's right, other than a committee chair,321 to exercise the committee's oversight authority without the permission of a majority of the committee or its chair. Moreover, in Leach v. Resolution Trust Corporation,322 a federal district court dismissed the attempt of the then-ranking minority member of the House Banking (now Financial Services) Committee to compel disclosure of documents from two agencies under the FOIA and the Administrative Procedure Act. The court held that the case was one "in which a congressional plaintiff's dispute is primarily with his or her fellow legislators," since the ranking minority Member's "complaint derives solely from his failure to persuade his colleagues to authorize his request for the documents in question ... "323 Therefore, the plaintiffs had a clear "collegial remedy" to the problem.324

Senate rules provide substantially more effective means for individual minority-party Members to engage in "self-help" to support oversight objectives than afforded their House counterparts. Senate rules emphasize the rights and prerogatives of individual Senators and, therefore, minority groups of Senators.325 The most important of these rules are those that effectively allow unlimited debate on a bill or amendment unless an extraordinary majority votes to invoke cloture.326 Senators can use their right to filibuster, or simply the threat of filibuster, to delay or prevent the Senate from engaging in legislative business. Other Senate rules can also directly or indirectly aid the minority in gaining investigatory rights. For example, the right of extended debate also applies in committee and, unlike on the floor, the cloture rule may not be invoked in committee. Each Senate committee decides for itself how it will control debate, and therefore a Member may have great opportunities to filibuster in committee. Also, Senate Rule XXVI prohibits the reporting of any measure or matter from a committee unless a majority of the committee is present, another point of possible tactical leverage. Even beyond the potent power to delay, Senators can promote their goals by taking advantage of other parliamentary rights and opportunities that are provided by the Senate's formal procedures and customary practices, such as are afforded by the processes dealing with floor recognition, committee referrals, and the amending process.

5 U.S.C. Section 2954: The "Rule of Seven" Statute

Another potential tool for minority participation in oversight is 5 U.S.C. Section 2954, commonly known as the "rule of seven."327 Under the statute, seven Members of the House Oversight and Government Reform Committee or five Members of the Senate Committee on Homeland Security and Governmental Affairs can request information from executive agencies on matters within their committee jurisdiction, which the agencies "shall" provide.328 While the statute appears to confer a right upon these Members, a judicially recognized right of action to enforce the statute when an agency refuses to disclose information has not been established, as illustrated by relevant district court opinions.

The rule of seven statute is derived from a 1928 Act that repealed legislation requiring the submission to Congress of some 128 reports.329 Many of these reports had become obsolete and were deemed at the time to have no value, serve no useful purpose, and were not printed by the House of Representatives.330 The legislative history of the provision does not unambiguously state the statute's purpose. The Senate report indicated a limited purpose: to make "it possible to require any report discontinued by the language of this bill to be resubmitted to either House upon its necessity becoming evident to the membership of either body."331 The House report agreed on that point, but added the following: "If any information is desired by any Member or Committee upon a particular subject that information can be better secured by a request made by an individual Member or Committee, so framed as to bring out the special information desired."332 It is uncertain, then, how closely 5 U.S.C. Section 2954 is tied to the 128 reports abolished by the original 1928 legislation.333

Moreover, the provision only empowers the two named committees and lacks an explicit enforcement mechanism. Agency refusals to comply with information requests would not be subject to the existing criminal contempt process, and the outcome of a civil suit to compel production on the basis of the provision is problematic.

Waxman v. Evans was the first attempt to secure court enforcement of a document demand under Section 2954.334 The 2001 case involved a request of 16 minority party members of the House Government Reform Committee for 2000 Census data from the Secretary of Commerce. The congressional plaintiffs sought declaratory and injunctive relief, arguing that the plain language of Section 2954 unambiguously directs agency compliance with information requests.335 In addition, the plaintiffs argued that they were entitled to judicial relief because of the agency's direct and particularized rejection of an entitlement specifically granted to them by law. The government argued that because the case had arisen out of a political information access dispute between Congress and the Executive, the court should refrain from hearing the case in accordance with the doctrine of equitable discretion. Alternatively, the government argued that Section 2954 should be construed narrowly to avoid doubts of its constitutionality and accord with its legislative history. Under its interpretation, the statute only preserved Congress' access to the information formerly contained in the reports abolished by the 1928 Act, but did not guarantee an unqualified right of access to information possessed by the executive branch.

After the Members prevailed in the district court, the government moved for reconsideration based on a new argument: the Members did not have standing to sue or a cause of action. The district court declined to consider these arguments on the ground that the government could have presented them in support of its original motion to dismiss but did not do so. On appeal to the Ninth Circuit, the case was ultimately deemed moot, because a parallel FOIA suit led to the release of the information.336 The district court's opinion was reversed, vacated, and dismissed.337

In 2006, a second attempt to secure judicial enforcement of a Section 2954 document demand in the same district court was rejected. In Waxman v. Thompson,338 19 members of the House Government Reform Committee brought suit to compel release by the Department of Health and Human Services (HHS) of cost estimates prepared by its Office of Actuary during congressional consideration of Medicare reform legislation in 2003. In addition to asserting a right of access under Section 2954, the congressional plaintiffs alleged a violation of another federal statute stating that "[t]he right of employees ... to furnish information to either House of Congress, or to a committee or member thereof, may not be interfered with or denied."339 The government opposed the claims, arguing that the congressional plaintiffs did not have standing to sue and that the court did not have jurisdiction to hear the claim.

The district court, applying the guiding principles established by the Supreme Court in the 1997 decision in Raines v. Byrd,340 ruled that the congressional plaintiffs did not have standing to sue. In Raines, the Supreme Court held that a congressional plaintiff may have standing in a suit against the executive branch if the plaintiff(s) alleges either (1) a personal injury (e.g., loss of Member's seat) or (2) an institutional injury that is not "abstract and widely dispersed" and amounts to vote nullification.341 Bound by the Supreme Court's precedent, the district court concluded that the Members only potential injury was institutional, rather than personal in nature, and necessarily damaged all Members and both houses equally. However, the court concluded that the plaintiffs had not shown that the government's actions had nullified their votes. Therefore, under Raines, the Members did not have standing to sue and the suit was dismissed.

Specialized Investigations

Oversight at times occurs through specialized, temporary investigations of a specific event or development. These are often dramatic, high profile endeavors, focusing on scandals, alleged abuses of authority, suspected illegal conduct, or other unethical behavior. The stakes are high, possibly even leading to the end of individual careers of high ranking executive officials. Congressional investigations can induce resignations, firings, and impeachment proceedings and question major policy actions of the executive, as with these notable occasions: the Senate Watergate Committee investigation into the Nixon Administration in the early 1970s; the Church and Pike select committees' inquiries in the mid-1970s into intelligence agency abuses; the 1981 select committee inquiry into the ABSCAM scandal; the 1987 Iran-contra investigation during the Reagan Administration; the multiple investigations of scandals and alleged misconduct during the Clinton Administration; and the Hurricane Katrina probe in 2005 during the Bush Administration. As a consequence, interest—in Congress, the executive, and the public—is frequently intense and impassioned.

Prominent Select Investigative Committees

Senate Watergate Committee (1973-74), S.Res. 60, 93rd Congress, 1st session.

"To establish a select committee of the Senate to conduct an investigation and study of the extent, if any, to which illegal, improper, or unethical activities were engaged in by any persons, acting individually or in combination with others, in the presidential election of 1972, or any campaign, canvass, or other activity related to it."

House Select Committee on the Iran-Contra Affair (1987), H.Res. 12, 100th Congress, 1st session.

"The select committee is authorized and directed to conduct a full and complete investigation and study, and to make such findings and recommendations to the House as the select committee deems appropriate," regarding the sale or transfer of arms, technology, or intelligence to Iran or Iraq; the diversion of funds realized in connection with such sales and otherwise, to the anti-government forces in Nicaragua; the violation of any law, agreement, promise, or understanding regarding the reporting to and informing of Congress; operational activities and the conduct of foreign and national security policy by the staff of the National Security Council; authorization and supervision or lack thereof of such matters by the President and other White House personnel; the role of individuals and entities outside the government; other inquiries regarding such matters, by the Attorney General, White House, intelligence community, and Departments of Defense, Justice, and State; and the impact of such matters on public and international confidence in the United States Government.

Table 1. Special Investigative Authorities of Selected Investigating Committees

Investigation

Authority Citation

Deposition Authority

International Information
Gathering Authority

Tax
Information Access Authority

Authority to Participate In
Judicial Proceedings

Sen. Select
Committee on Watergate

S.Res. 60 and S.Res. 194, 93rd Cong., (1973).

Member/
Staff

No

No

Yes

Nixon
Impeachment Proceedings

H.Res. 803, 93rd Cong., (1974).

Member/
Staff

Yes

No

No

Billy Carter Investigation

126 Cong. Rec. 19544-46 (1980) (unanimous consent agreement); S.Res. 495, 96th Cong., (1980) (staff deposition authority); S.Res. 496, 96th Cong., (1980) (tax access authority).

Staff

No

Yes

No

House
Assassinations
Inquiry

H.Res. 222, 95th Cong., (1974).

Member/
Staff

Yes

No

No

Church
Committee

S.Res. 21, 94th Cong., (1974).

Member/
Staff

Yes

No

No

Koreagate

H.Res. 252 and H.Res. 752, 95th Cong., (1977).

Member/
Staff

Letters
Rogatory

No

Yes, by
special counsel

ABSCAM
(House)

H.Res. 67, 97th Cong., (1981).

Member

Letters
Rogatory

No

Yes, by
special counsel

ABSCAM
(Senate)

S.Res. 350, 97th Cong., (1982).

Member/
Staff

No

No

No

Iran-Contra
House and
Senate

H.Res. 12, 100th Cong., (1987).

S.Res. 23, 100th Cong., (1987).

Member/
Staff

Letters
Rogatory,
Commissions, Depositions

Yes

Yes

Judge Hastings Impeachment

H.Res. 320, 100th Cong., (1987).

Staff

No

No

No

Judge Nixon Impeachment

H.Res. 562, 100th Cong., (1988).

Staff

No

No

No

October
Surprise

H.Res. 258, 102nd Cong., (1991).

Member/
Staff

Letters Rogatory, Commissions, Depositions

No

Yes

Senate
Whitewater(I)

S.Res. 229, 103rd Cong., (1994).

Staff

No

No

No

Senate
Whitewater (II)

S.Res. 120, 104th Cong., (1995).

Staff

Letters
Rogatory,
Commissions

Yes

No

White House
Travel Office

H.Res. 369, 104th Cong., (1996).

Member/
Staff

No

No

No

House
Campaign
Finance

H.Res. 167, 105th Cong., (1997).

Member/
Staff

Letters
Rogatory,
Commissions

No

No

Senate
Campaign
Finance

S.Res. 54, 105th Cong., (1997).

Staff

No

No

No

Select
Committee on National
Security Commercial Concerns

H.Res. 463, 105th Cong., (1998).

Member/
Staff

Letters
Rogatory,
Depositions

Yes

Yes, by
House General Counsel

Teamsters
Election Investigation

H.Res. 507, 105th Cong., (1998).

Member/
Staff

No

No

No

Benghazi

H.Res. 567, 113th Cong. (2013).

Member/
Staff

No

No

No

Note: More comprehensive compilations of authorities and rules of Senate and House special investigatory committees may be found in Senate Committee on Rules and Administration, "Authority and Rules of Senate Special Investigatory Committees and Other Senate Entities, 1973-97," S.Doc. 105-16, 105th Congress, 1st session (1998), and CRS Report 95-949, Staff Depositions in Congressional Investigations (pdf), by [author name scrubbed].

Selected Oversight Techniques

Many oversight techniques are self-explanatory. There are several techniques, however, for which explanation or elaboration may prove helpful for a better understanding of their utility.

Identifying the Committee's Jurisdiction

A basic step in oversight preparation is to determine the laws, programs, activities, functions, advisory committees, agencies, and departments within a committee's jurisdiction. This is essential if a committee is to know the full range of its oversight responsibilities. To accomplish this general goal, House and Senate committees might:

Orientation and Periodic Review Hearings with Agencies

Oversight hearings (or even "pre-hearings") may be held for the purposes of briefing members and staff on the organization, operations, and programs of an agency, and determining how an agency intends to implement any new legislation. The hearings can also be used as a way to obtain information on the administration, effectiveness, and economy of agency operations and programs.

Agency officials can be noticeably influenced by the knowledge and expectation that they will be called before a congressional committee regularly to account for the activities of their agencies. Such hearings benefit the committee by, for example:

helping committee members keep up-to-date on important administrative developments;

serving as a forum for exchanging and communicating views on pertinent problems and other relevant matters;

providing background information which could assist members in making sound legislative and fiscal judgments;

identifying program areas within each committee's jurisdiction that may be vulnerable to waste, fraud, abuse, or mismanagement; and

determining whether new laws are needed or whether changes in the administration of existing laws will be sufficient to resolve problems.

The ability of committee members during oversight hearings to focus on meaningful issues and to ask penetrating questions will be enhanced if staff have accumulated, organized, and evaluated relevant data, information, and analyses about administrative performance.

Ideally, each standing committee should regularly monitor the application of laws and implementation of programs within its jurisdiction. A prime objective of the "continuous watchfulness" mandate (Section 136) of the Legislative Reorganization Act of 1946 is to encourage committees to take an active and ongoing role in administrative review and not wait for public revelations of agency and program inadequacies before conducting oversight. As Section 136 states in part: "each standing committee of the Senate and House of Representatives shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee."

Committee personnel could be assigned to maintain active liaison with appropriate agencies and to record their pertinent findings routinely. Information compiled in this fashion will be useful not only for regular oversight hearings, but also for oversight hearings called unexpectedly with little opportunity to conduct an extensive background study.

It is important that specific letters be directed by the committee to the agency witnesses so that they will be on notice about what they will have to answer. In this way witnesses will be responsive in providing worthwhile testimony at hearings; testify "to the point" and avoid rambling and/or evasive statements; and restrict their use of this kind of answer to questions: "I didn't know you wanted that information.... "

Casework

An important check against bureaucratic indifference or inefficiency is casework. Typically, Members of Congress hear from individual constituents and communities about problems they are having with various federal agencies and departments. As a House member once said:

Last year, one of my constituents, a 63-year old man who requires kidney dialysis, discovered that he would no longer be receiving Medicare because the Social Security Administration thought he was dead. Like many residents who have problems dealing with the federal bureaucracy, this man contacted my district office and asked for help. Without difficulty, he convinced my staff that he was indeed alive, and we in turn convinced the Social Security Administration to resume sending him benefits.342

Casework is important not only in resolving problems that constituents are having with bureaucrats but also in identifying limitations in the law. As a scholar of constituency service explained: "Casework allows ad hoc correction of bureaucratic error, impropriety, and laxity, and can lead a senator or representative to consider changes in laws because of particularly flagrant or persistent problems that casework staff discovered."343

Audits

Periodic auditing of executive departments is among the strongest techniques of legislative oversight. Properly utilized, the audit enables Congress to hold executive officers to a strict accounting for their use of public funds and the conduct of their administration.

Government auditing encompasses more than checking and verifying accounts, transactions, and financial statements. Many federal, state, and some foreign audit agencies are moving in the direction pioneered by Government Accountability Office (GAO), which may evaluate whether claimed achievements are supported by adequate and reliable evidence and data and are in compliance with legislatively established objectives, and whether resources are being used efficiently, effectively, and economically.

In reviewing agencies' own evaluations, or in undertaking an initial evaluation, auditors are advised by GAO to ask questions such as the following:

How successful is the program in accomplishing the intended results? Could program objectives be achieved at less cost?

Has agency management clearly defined and promulgated the objectives and goals of the program or activity?

Have performance standards been developed?

Are program objectives sufficiently clear to permit agency management to accomplish effectively the desired program results? Are the objectives of the component parts of the program consistent with overall program objectives?

Are program costs reasonably commensurate with the benefits achieved?

Have alternative programs or approaches been examined, or should they be examined to determine whether objectives can be achieved more economically?

Were all studies, such as cost-benefit studies, appropriate for analyzing costs and benefits of alternative approaches?

Is the program producing benefits or detriments that were not contemplated by Congress when it authorized the program?

Is the information furnished to Congress by the agency adequate and sufficiently accurate to permit Congress to monitor program achievements effectively?

Does top management have the essential and reliable information necessary for exercising supervision and control and for ascertaining directions or trends?

Does management have internal review or audit facilities adequate for monitoring program operations, identifying program and management problems and weaknesses, and insuring fiscal integrity?

In addition to GAO and other governmental audits, Congress may have access to the internal audit reports of agency audit teams.

Monitoring the Federal Register

The Federal Register, available at https://www.federalregister.gov/, is published daily, Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records Administration (NARA). It provides a uniform system for making available to the public regulations and legal notices issued by Federal agencies. These include presidential proclamations and executive orders, federal agency documents having general applicability and legal effect, documents required to be published by act of Congress, and other Federal agency documents of public interest. Final regulations are codified by subject in the Code of Federal Regulations (CFR).

Federal Register subscription options include receiving the table of contents of each day's issue via an email message or an RSS notification. To learn how to subscribe to the daily table of contents and how to create customized subscriptions, visit the "User Information" page, at https://www.federalregister.gov/learn/user-information. The website also includes social media tools that enable a user to share documents through, for example, Twitter, Facebook, and RSS feeds.

Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the issuing agency requests earlier filing. The list of documents on file for public inspection can be accessed at https://www.federalregister.gov/public-inspection. Regular scrutiny of the Federal Register by committees and staff may help them to identify proposed rules and regulations in their subject areas that merit congressional review as to need and likely effect.

Another website, http://www.reginfo.gov/public/, also includes information about proposed and completed regulatory actions of federal agencies. OMB's Office of Information and Regulatory Affairs (OIRA) and the Regulatory Information Service Center (RISC) of the General Services Administration are responsible for this website.

Special Studies and Investigations by Staff, Support Agencies, Outside Contractors, and Others

Staff Investigations. The staffs of committees and individual members play a vital role in the legislative process. Committee staffs, through field investigations or on-site visits, for example, can help a committee develop its own independent evaluation of the effectiveness of laws.

Support Agencies. The legislative support agencies, directly or indirectly, can assist committees and members in conducting investigations and reviewing agency performance.344 The Government Accountability Office is the agency most involved in investigations, audits, and program evaluations. It has a large, professional investigative staff and produces numerous reports useful in oversight.

Outside Contractors. The 1974 Budget Act, as amended, and the Legislative Reorganization Act of 1970 authorize House and Senate committees to enlist the services of individual consultants or organizations to assist them in their work.

Communicating with the Media

Public exposure of a problem is an effective oversight technique, and will often help bring about a solution to that problem. Public officials often seem much more responsive to correcting deficiencies after the issue has been described in widely circulated news stories. Effective communication with the media is based on knowledge and understanding of each of the media forms and the advantages and disadvantages of each.

Wire Services
Daily Newspapers
Magazines
Trade Periodicals

Many of these topically oriented magazines and newsletters are produced by publishing firms which utilize the services of the periodical press galleries in the Capitol.

Television
Radio
Press Conferences
News Releases
The Internet and Social Media

Members and committees can use the Internet to communicate with media representatives and constituents to explain their views and positions with respect to oversight activities. The Internet permits lawmakers and committees to rely less on traditional journalistic sources for coverage and more on direct communication with the citizenry.

The Internet can be employed in a variety of ways to mobilize public interest in congressional oversight. For example, lawmakers can conduct on-line discussions with interested citizens, or use Twitter or Facebook to share information with constituents. Committees can establish their own websites to solicit input from individuals and organizations about executive branch departments and programs.

There are various bloggers who monitor federal spending. With numerous government websites that enable attentive individuals to monitor the expenditure of federal funds, Congress gets additional oversight assistance from the "public as watchdog."

Reporting Requirements, Consultation, and Other Sources of Information

Congressional oversight of the executive branch is dependent to a large degree upon information supplied by the agencies being overseen. In the contemporary era, reporting and prior consultation provisions have increased in an attempt to ensure congressional access to information, statistics, and other data on the workings of the executive. The result is that approximately 4,000 reports arrive annually on Capitol Hill. Concerns about unnecessary, duplicative, and wasteful reports, however, have prompted efforts to eliminate these. One such initiative, in part stimulated by earlier recommendations from the Vice President's National Performance Review and from the GAO, resulted in the Federal Reports Elimination and Sunset Acts of 1995 and 1998. Nonetheless, reductions in the number of required reports have not kept pace with new or continuing requirements, such as those identified in the 2001 act to Prevent the Elimination of Certain Reports (P.L. 107-74).

Reporting Requirements

Reporting requirements affect executive and administrative agencies and officers, including the President; independent boards and commissions; and federally chartered corporations (as well as the judiciary). These statutory provisions vary in terms of the specificity, detail, and type of information that Congress demands. Reports may be required at periodic intervals, such as semiannually or at the end of a fiscal year, or submitted only if and when a specific event, activity, or set of conditions exists. The reports may also call upon an agency, commission, or officer to

Examples of Reporting Requirements in Law

Initial Requirement in the 1789 Treasury Department Act:

"That it shall be the duty of the Secretary of the Treasury ... to make report, and give information to either branch of the legislature, in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office.... " 1 Stat. 65-66 (1789)

Reporting on Covert Action in the 1991 Intelligence Oversight Act:

"The President shall ensure that the intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity ...

(1) The President shall ensure that any finding [authorizing a covert action] shall be reported to the intelligence committees as soon as possible after such approval and before the initiation of the covert action, except as otherwise provided in paragraph (2) and paragraph (3).

(2) If the President determines that it is essential to limit access to the finding to meet extraordinary circumstances affecting the vital interests of the United States, the finding may be reported to the chairmen and ranking minority members of the intelligence committees, the Speaker and minority leader of the House of Representatives, the majority and minority leaders of the Senate, and such other members of the congressional leadership as may be included by the President.

(3) Whenever a finding is not reported [in advance to the committees], the President shall fully inform the intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice." 105 Stat. 441-443 (1991)
Prior Consultation

In the past, explicit prior consultation provisions were rarely incorporated into law. However, there appears to be an increase in statutory provisions as well as in committee reports that accompany legislation specifying conditions for such discussion.

A Sample Prior Consultation Provision

A provision in the Conference Committee report on the 1978 Ethics in Government Act illustrates this development: "The conferees expect the Attorney General to consult with the Judiciary Committees of both Houses of Congress before substantially expanding the scope of authority or mandate of the Public Integrity Section of the Criminal Division."
Other Significant Sources of Information

A number of general management laws provide for additional sources of information, data, and material that can aid congressional oversight endeavors.

Chief Financial Officers Act of 1990, as Amended (104 Stat. 2838, 108 Stat. 3410, 110 Stat. 3009-389, and 116 Stat. 2049)

The CFO act is designed to improve financial management throughout the federal government, through various procedures and mechanisms.

Government Performance and Results Act, as Amended (107 Stat. 285 and 124 Stat. 3866)

This act—commonly known as "GPRA" or the "Results Act," and amended substantially by the GPRA Modernization Act—requires federal agencies to submit long-range strategic plans, annual performance plans based on these, follow-up yearly assessments, and government-wide performance plans.

Congressional Review Act (110 Stat. 868)

This act (5 U.S.C. Sections 801, et seq.) established, for the first time, a mechanism by which Congress can review and disapprove virtually any federal rule or regulation.345 It requires that

Paperwork Reduction Act of 1995 (109 Stat. 163)

This most recent version of paperwork reduction legislation builds on a heritage of statutory controls over government paperwork that dates to 1940.

Federal Managers' Financial Integrity Act (FMFIA) of 1982 (96 Stat. 814)

FMFIA is designed to improve the government's ability to manage its programs by strengthening internal management and financial controls, accounting systems, and financial reports.

Cash Management Improvement Act of 1990 (104 Stat. 1058)

This enactment is intended to improve efficiency, effectiveness, and equity in the exchange of funds between the federal government and state governments. Its fundamental objective is to prevent either level of government from engaging in cash management practices that allow it to earn interest on cash reserves at the expense of the other.

Clinger-Cohen Act of 1996 (110 Stat. 679)

This act requires that agencies buy the best and most cost-effective information technology available. To do so, the act gave more responsibility to individual agencies, revoking the primary role that the General Services Administration had played previously, and established the position of chief information officer (CIO) in federal agencies to provide relevant advice to agency heads.

Federal Advisory Committee Act (FACA)

Congress formally acknowledged the merits of using advisory committees to obtain expert views drawn from business, academic, government, and other interests when it enacted the Federal Advisory Committee Act (FACA) in 1972 (5 U.S.C. Appendix; 86 Stat. 700). Congressional enactment of FACA established the first requirements for the management and oversight of federal advisory committees to ensure impartial and relevant expertise. As required by FACA, the General Services Administration (GSA) administers and provides management guidelines for advisory committees. From 1972 until 1997, GSA submitted a hard copy of its annual comprehensive review of agency federal advisory committees to the President and Congress. Since 1998, however, GSA has maintained a specialized, federal government, interagency, information-sharing database that collects data on federal advisory committee activities government-wide and is publicly available on the web. The database is available at http://www.facadatabase.gov.

Federal Information Security Management Act of 2002

The Federal Information Security Management Act of 2002 (FISMA) replaced what has been commonly referred to as the Government Information Security Reform Act (GISRA), which expired at the end of the 107th Congress. Both GISRA and FISMA represent an effort by Congress to improve federal agency compliance with information security standards and guidelines. Congress put into statute certain requirements, including a directive that federal agencies submit their information security programs to an annual independent review, along with a requirement that the Director of the Office of Management and Budget report the results of these reviews to Congress.

Accountability of Tax Dollars Act of 2002

The Accountability of Tax Dollars Act (ATDA) of 2002 (P.L. 107-289; 116 Stat. 2049) was intended "to expand the types of Federal agencies that are required to prepare audited financial statements to all executive branch agencies in the federal government." In fact, ATDA brings almost all executive branch agencies under the requirement for preparation of annual audited financial statements that previously applied only to the 24 major departments and agencies covered by the Chief Financial Officers (CFO) Act. Specifically, Section 2(a) changes the list of agencies covered by the audited annual financial statements requirement in 31 U.S.C. Section 3515 by deleting the cross-reference to CFO Act agencies and inserting "each covered executive agency."

Federal Financial Management Improvement Act of 1996

The Federal Financial Management Improvement Act of 1996 (FFMIA) (110 Stat. 3009-389; 31 U.S.C. §3512 note) incorporates in statute certain financial management system requirements already established as executive branch policy. The law also requires auditors to report on agency compliance with these requirements, and agency heads and management to correct deficiencies within certain time periods. FFMIA reflects an ongoing effort to reform financial management in the federal government. The 1996 law builds upon prior legislation, including the Chief Financial Officers Act of 1990, the Government Performance and Results Act of 1993, and the Government Management Reform Act of 1994.

Unfunded Mandates Reform Act of 1995

After considerable debate, the Unfunded Mandates Reform Act (P.L. 104-4; 109 Stat. 48-71; 2 U.S.C. §§1501-1571) was enacted early in the 104th Congress. Generally, unfunded intergovernmental mandates include responsibilities or duties that federal programs, standards, or requirements impose on governments at other levels without providing for the payment of the costs of carrying out these responsibilities or duties. The intent of the mandate legislation was to limit the ability of the federal government to impose costs on state and local governments through unfunded mandates. The enactment has three components: revised congressional procedures regarding future mandates; new requirements for federal agency regulatory actions; and authorization for a study of existing mandates to evaluate their current usefulness. The primary objective was to create procedures that would retard and spotlight, if not stop, congressional authorization of new unfunded mandates on state and local governments.

Federal Funding Accountability and Transparency Act

On September 26, 2006, President George W. Bush signed into law the Federal Funding Accountability and Transparency Act (FFATA) (P.L. 109-282; 31 U.S.C. §6101). As required by this act, OMB established a searchable, free, and public website that enables anyone to go online to find information that names the recipients and dollar amounts of most federal grants, loans, and contracts.346 A key concept of FFATA is to provide citizens with greater transparency as to how Federal funds are spent and thus be better able to hold public officials accountable for funding decisions.

Resolutions of Inquiry

The House of Representatives can call upon the executive for factual information through resolutions of inquiry (House Rule XIII, clause 7). This is a simple resolution, approved by only the House. Resolutions of inquiry are addressed to either the President or heads of departments and agencies to supply specific factual information to the chamber. The resolutions usually "request" the President or "direct" administrative heads to supply such information. In calling upon the President for information, especially about foreign affairs, the qualifying phrase—"if not incompatible with the public interest"—is often added.

Such resolutions are to ask for facts, documents, or specific information; these devices are not to request an opinion or require an investigation (see box below). Resolutions of inquiry can be instrumental in triggering other congressional methods of obtaining information, such as through supplemental hearings or the regular legislative process.

Resolutions of Inquiry in Practice

The first resolution of inquiry was approved on March 24, 1796, when the House sought documents in connection with the Jay Treaty negotiations:

Resolved, That the President of the United States be requested to lay before this House a copy of the instructions to the minister of the United States, who negotiated the treaty with the King of Great Britain ... together with the correspondence and other documents relative to the said treaty; excepting such of the said papers as any existing negotiation may render improper to be delivered. (Journal of the House of Representatives, 4th Cong., 1st sess., March 24, 1796. p. 480.)

A contemporary illustration occurred on March 1, 1995, when the House adopted H.Res. 80, as amended (104th Cong., 1st sess., 407-21). The resolution sought information about the Mexican peso crisis at the time and an Administration plan to use up to $20 billion in resources from the Exchange Stabilization Fund to help stabilize the Mexican currency and financial system. The resolution read:

"Resolved, That the President, is hereby requested to provide the House of Representatives (consistent with the rules of the House), not later than 14 days after the adoption of this resolution, the following documents in the possession of the executive branch, if not inconsistent with the public interest…." The House request then specified the matters that the documents were to cover: The condition of the Mexican economy; consultations between the Government of Mexico, on the one hand, and the U.S. Secretary of the Treasury and/or the International Monetary fund, on the other; market policies and tax policies of the Mexican Government; and repayment agreements between Mexico and the United States; among other things.

A resolution of inquiry is privileged and may be considered in the House after it is reported. If the resolution is not reported within 14 legislative days after its introduction, any member can move to discharge the committee of jurisdiction and bring the resolution to the floor. However, action by a committee within the 14 days to reject the resolution effectively sidetracks House action on the resolution.

Limitations and Riders on Appropriations

Congress uses a two-step legislative procedure: authorization of programs in bills reported by legislative committees followed by the financing of those programs in bills reported by the Committees on Appropriations. Congressional rules generally encourage these two stages to be distinct and sequential. Authorizations should not be in general appropriation bills, nor appropriations in authorization measures. However, there are various exceptions to the general principle that Congress should not make policy through the appropriations process. One exception is the practice of permitting "limitations" in an appropriations bill. "Riders" (language extraneous to the subject of the bill) are also added to control agency actions.

Limitations

Although House rules forbid in any general appropriations bill a provision "changing existing law," certain "limitations" may be admitted. "Just as the House under its rules may decline to appropriate for a purpose authorized by law, so it may by limitation prohibit the use of the money for part of the purpose while appropriating for the remainder of it." Constitution, Jefferson's Manual, and Rules of the House of Representatives, H. Doc. No. 111-157, 111th Cong., 2d Sess. §1053 (2011). Limitations can be an effective device in oversight by strengthening Congress's ability to exercise control over federal spending and to reduce unnecessary or undesired expenditures. Under House Rule XXI, no provision changing existing law can be reported in any general appropriation bill "except germane provisions that retrench expenditures by the reduction of amounts of money covered by the bill" (the Holman rule, rarely used in modern practice).

A Sample Appropriations Limitation

The Hyde Amendment, Labor-HHS Appropriations Act for fiscal 1998, 111 Stat. 1516, sec. 509 & 510 (1997): "None of the funds appropriated under this Act shall be expended for any abortion ... [except] (1) if the pregnancy is the result of an act of rape or incest; or (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy itself, that would, as certified by a physician, place the woman in danger of death unless an abortion is performed."

Rule XXI was amended in 1983 in an effort to restrict the number of limitations on appropriations bills. The rule was changed again in 1995 by granting the majority leader a central role in determining consideration of limitation amendments. The procedures for limitation in the House are set forth in the House rulebook, sections 1044(b), 1053-62.

Riders

Unlike limitations, legislative riders are extraneous to the subject matter of the bill to which they are added. Riders appear in both authorization bills and appropriations bills. In the latter, they may be subject to a point of order in the House on the ground that they are attempts to place legislation in an appropriations bill. In the Senate, Rule XVI prohibits on a point of order the addition to general appropriations bills of amendments that are legislative or non-germane. Both chambers have procedures to waive these prohibitions.

A Sample Appropriations Rider

Department of Homeland Security Appropriations Act, 2007, P.L. 109-295 §550, 120 Stat. 1355 (2006): "(a) No later than six months after the date of enactment of this Act, the Secretary of Homeland Security shall issue interim final regulations establishing risk-based performance standards for security of chemical facilities and requiring vulnerability assessments and the development and implementation of site security plans for chemical facilities: Provided, That such regulations shall apply to chemical facilities that, in the discretion of the Secretary, present high levels of security risk: Provided further, That such regulations shall permit each such facility, in developing and implementing site security plans, to select layered security measures that, in combination, appropriately address the vulnerability assessment and the risk-based performance standards for security for the facility: Provided further, That the Secretary may not disapprove a site security plan submitted under this section based on the presence or absence of a particular security measure, but the Secretary may disapprove a site security plan if the plan fails to satisfy the risk-based performance standards established by this section: Provided further, That the Secretary may approve alternative security programs established by private sector entities, Federal, State, or local authorities, or other applicable laws if the Secretary determines that the requirements of such programs meet the requirements of this section and the interim regulations: Provided further, That the Secretary shall review and approve each vulnerability assessment and site security plan required under this section: Provided further, That the Secretary shall not apply regulations issued pursuant to this section to facilities regulated pursuant to the Maritime Transportation Security Act of 2002, P.L. 107-295, as amended; Public Water Systems, as defined by section 1401 of the Safe Drinking Water Act, P.L. 93-523, as amended; Treatment Works as defined in section 212 of the Federal Water Pollution Control Act, Public Law 92-500, as amended; any facility owned or operated by the Department of Defense or the Department of Energy, or any facility subject to regulation by the Nuclear Regulatory Commission ... "

Legislative Veto and Advance Notice

Many acts of Congress have delegated authority to the executive branch on the condition that proposed executive actions be submitted to Congress for review and possible disapproval before they can be put into effect. This way of ensuring continuing oversight of policy areas follows two paths: the legislative veto and advance notification.

Legislative Veto

Beginning in 1932, Congress delegated authority to the executive branch with the condition that proposed executive actions would be first submitted to Congress and subjected to disapproval by a committee, a single house, or both houses. Over the years, other types of legislative veto were added, allowing Congress to control executive branch actions without having to enact a law. In 1983, the Supreme Court ruled that the legislative veto was unconstitutional on the ground that all exercises of legislative power that affect the rights, duties, and relations of persons outside the legislative branch must satisfy the constitutional requirements of bicameralism and presentment of a bill or resolution to the President for his signature or veto. INS v. Chadha, 462 U.S. 919 (1983). Despite this ruling, Congress has continued to enact proscribed legislative vetoes and it has also relied on informal arrangements to provide comparable controls.

Statutory Legislative Vetoes

Congress responded to Chadha by converting some of the one-house and two-house legislative vetoes to joint resolutions of approval or disapproval, thus satisfying the requirements of bicameralism and presentment. However, Congress continues to rely on legislative vetoes. Since the Chadha decision, hundreds of legislative vetoes have been enacted into public law, usually in appropriations acts. These legislative vetoes are exercised by the Appropriations Committees. Typically, funds may not be used or an executive action may not begin until the Appropriations Committees have approved or, at least, not disapproved the planned action, often within a specified time limit.

A Sample Statutory Legislative Veto Provision

Department of Transportation and Related Agencies Appropriations Act 2001, 114 Stat. 1356A-2 (2000): For the appropriation account "Transportation Administrative Service Center," no assessments may be levied against any program, budget activity, subactivity or project funded by this statute "unless notice of such assessments and the basis therefore are presented to the House and Senate Committees on Appropriations and are approved by such Committees."

Informal Legislative Vetoes

Unlike a formal legislative veto, where the arrangement is spelled out in the law, the informal legislative veto occurs where an executive official pledges not to proceed with an activity until Congress or certain committees agree to it. An example of this appeared during the 101st Congress. In the "bipartisan accord" on funding the contras in Nicaragua, the Administration pledged that no funds would be obligated beyond November 30, 1989, unless affirmed by letter from the relevant authorization and appropriations committees and the bipartisan leadership of Congress.

Advance Notification or Report-and-Wait

Statutory provisions may stipulate that before a particular activity can be undertaken by the executive branch or funds obligated, Congress must first be advised or informed, ordinarily through a full written statement, of what is being proposed. These statutory provisions usually provide for a period of time during which action by the executive must be deferred, giving Congress an opportunity to pass legislation prohibiting the pending action or using political pressure to cause executive officials to retract or modify the proposed action. This type of "report and wait" provision has been upheld by the Supreme Court. The Court noted: "The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose." Sibbach v. Wilson, 312 U.S. 1 (1941).

A Sample Report-and-Wait Provision

Comprehensive Anti-Apartheid Act of 1986, P.L. 99-440, Section 311: "The President may suspend or modify any of the measures required by this title or section 501(c) or section 504(b) thirty days after he determines, and so reports to the Speaker of the House of Representatives and the chairman of the Committee on Foreign Relations of the Senate, that the Government of South Africa has [taken certain actions] unless the Congress enacts within such 30-day period, in accordance with section 602 of this Act, a joint resolution disapproving the determination of the President under this subsection."

Independent Counsel

The statutory provisions for the appointment of an independent counsel (formerly called "special prosecutor") were originally enacted as Title VI of the Ethics in Government Act of 1978, and codified at 28 U.S.C. Sections 591-599. The independent counsel was reauthorized in 1983, 1987, and 1994. It expired on June 30, 1999. The mechanisms of the independent counsel law were triggered by the receipt of information by the Attorney General that alleged a violation of any federal criminal law (other than certain misdemeanors or "infractions") by a person covered by the act. Certain high-level federal officials, including the President, Vice President, and heads of departments, were automatically covered by the law. In addition, the Attorney General had discretion to seek an independent counsel for any person for whom there may exist a personal, financial or political conflict of interest for Justice Department personnel to investigate; and the Attorney General could seek an independent counsel for any member of Congress when the Attorney General deemed it to be in the "public interest."

After conducting a limited review of the matter (a 30-day threshold review of the credibility and specificity of the charges, and a subsequent 90-day preliminary investigation, with a possible 60-day extension), the Attorney General, if he or she believed that "further investigation is warranted", would apply to a special "division of the court," a federal three-judge panel appointed by the Chief Justice of the Supreme Court, requesting that the division appoint an independent counsel. The Attorney General of the United States was the only officer in the government authorized to apply for the appointment of an independent counsel. The special division of the court selected and appointed the independent counsel, and designated his or her prosecutorial jurisdiction, based on the information provided the court by the Attorney General. The independent counsel had the full range of investigatory and prosecutorial powers and functions of the Attorney General or other Department of Justice employees.

Collisions between Congress and Independent Counsels

"The Congress' role here is terribly important. It is for them to present to the public as soon as possible a picture of the actual facts as to the Iran/Contra matter. This is so because there has been so much exposed without sufficient clarity to clear up the questions. There is a general apprehension that this is damaging. Congress properly wants to bring this to an end soon and that gives them a real feeling of urgency for their investigation.

"[The House and Senate Iran-Contra Committees] are trying to provide a factual predicate which will enable Congress to decide intelligently whether there is a need for a statutory amendment or for a closer oversight over covert activities and other matters…. As they quite properly point out, they cannot wait for Independent Counsel to satisfy himself as to whether a crime may or may not have been committed. They have a problem of their own.

"... We are proceeding with much greater detail than Congress would think necessary for their purposes. We come into collision when the question of immunity arises.

"... There is a greater pressure on Congress to grant immunity to central figures than there is for Independent Counsel. Over the last three months, we have had long negotiations over this question of immunity….

"If the Congress decides to grant immunity, there is no way that it can be avoided. They have the last word and that is a proper distribution of power….

"... The reason why Congress must have this power to confer immunity is because of the importance of their role. The legislative branch has the power to decide whether it is more important perhaps even to destroy a prosecution than to hold back testimony they need."

Lawrence E. Walsh, "The Independent Counsel and the Separation of Powers," Houston Law Review, v. 25 (1988):1.

There was no specific term of appointment for independent counsels. They could serve for as long as it took to complete their duties concerning that specific matter within their defined and limited jurisdiction. Once a matter was completed, the independent counsel filed a final report. The special division of the court could also find that the independent counsel's work was completed and terminate the office. A periodic review of an independent counsel for such determination was to be made by the special division of the court. An independent counsel, prior to the completion of his or her duties, could be removed from office (other than by impeachment and conviction) only by the Attorney General of the United States for good cause, physical or mental disability, or other impairing condition, and such removal could be appealed to the court. The procedures for appointing and removing the independent counsel were upheld by the Supreme Court in Morrison v. Olson, 487 U.S. 654 (1988).

Investigation by the independent counsel could compete with parallel efforts by congressional committees to examine the same issue. Congress could decide to accommodate the needs of the independent counsel, such as delaying a legislative investigation until the independent counsel completed certain phases of an inquiry (see box above).

Although Congress could call on the Attorney General to apply for an independent counsel by a written request from the House or Senate Judiciary Committee, or a majority of members of either party of those committees, the Attorney General is not required to begin a preliminary investigation or to apply for an independent counsel in response to such a request. However, in such cases the Justice Department was required to provide certain information to the requesting committee.

The independent counsel was directed by statutory language to submit to Congress an annual report on the activities of such independent counsel, including the progress of investigations and any prosecutions. Although it was recognized that certain information would have to be kept confidential, the statute stated that "information adequate to justify the expenditures that the office of the independent counsel has made" should be provided. 28 U.S.C. Section 595(a)(2).

The conduct of an independent counsel was subject to congressional oversight and an independent counsel was required to cooperate with that oversight. 28 U.S.C. Section 595(a)(1). In addition, the independent counsel was required to report to the House of Representatives any "substantial and credible" information that may constitute grounds for any impeachment. 28 U.S.C. Section 595(c). On September 11, 1998, Independent Counsel Kenneth W. Starr forwarded to the House a report concluding that President Clinton may have committed impeachable offenses. The House passed two articles of impeachment (perjury and obstruction of justice), but the Senate voted only 45 to 55 on the perjury charge and 50 to 50 on the obstruction of justice charge, both votes short of the two-thirds majority required under the Constitution.

The independent counsel statute expired in 1992, partly because of criticism directed at Lawrence Walsh's investigation of Iran-Contra. The statute was reauthorized in 1994, but objections to the investigations conducted by Kenneth Starr into Whitewater, Monica Lewinsky, and other matters, put Congress under pressure to let the statute lapse on June 30, 1999.

Unless Congress in the future reauthorizes the independent counsel, the only available option for an independent counsel is to have the Attorney General invoke existing authority to appoint a special prosecutor to investigate a particular matter. For example, when the independent counsel statute expired in 1992 and was not reauthorized until 1994, Attorney General Janet Reno appointed Robert Fiske in 1993 to investigate the Clintons' involvement in Whitewater and the death of White House aide Vincent Foster. On July 9, 1999 Attorney General Reno promulgated regulations concerning the appointment of outside, temporary counsels, to be called "Special Counsels," in certain circumstances to conduct investigations and possible prosecutions of certain sensitive matters, or matters which may raise a conflict for the Justice Department (28 C.F.R. Part 600). Such special counsels will have substantially less independence than the statutory independent counsel, including removal for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Department policies."

Statutory Offices of Inspector General: Establishment and Evolution

Inspectors general (IGs), whose origins date back to the mid-1970s, have been granted substantial independence and powers to combat waste, fraud, and abuse within designated federal departments and agencies. To execute their missions, offices of inspector general (OIGs) conduct and publish audits and investigations—among other duties. Established by public law as permanent, nonpartisan, and independent offices, OIGs exist in more than 70 federal agencies, including all departments and larger agencies, along with numerous boards and commissions and other entities.347

The overwhelming majority of IGs are governed by the Inspector General Act of 1978, as amended (hereinafter referred to as the IG Act).348 The IG Act provided the blueprint for IG appointments and removals, powers and authorities, and responsibilities and duties—and explicitly created OIGs in 12 "federal establishments."349 Since its enactment in 1978, the IG Act has been substantially amended twice:

Typically, the jurisdiction of an inspector general includes only the programs and operations of a single affiliated agency and its components. Some IGs, however, have authority to conduct audits and investigations in more than a single agency, organization, program, or activity. Examples include the IG of the IC, the IG for the Department of State and the Broadcasting Board of Governors, and the IG for the Federal Reserve System and the Bureau of Consumer Financial Protection.352

Other pieces of legislation have established or amended IGs in specified agencies or programs—either directly under the IG Act or as separate units. Still other enactments have enhanced IG independence or have added new responsibilities and powers on a selective basis.353 As a result, statutory IGs are not all created equal. In certain cases, differences among IGs are significant. Nonetheless, in general, statutory IGs follow the standards, guidelines, and directives in the IG Act.354

Types and Categories

As noted above, statutory offices of inspector general are currently authorized in more than 70 federal establishments, designated federal entities, and other agencies or programs.355 Authority for most of the IGs is provided by the IG Act.356

The statutory IGs may be grouped by these criteria: the method of appointment, the authorizing statute, and the branch of government in which it is located.

Purposes

Under Section 2 of the IG Act, the three principal purposes of inspectors general who are governed by the IG Act are:

Authorities

To carry out their purposes, IGs covered by the IG Act have been granted broad authority to

Notwithstanding these broad powers, IGs are not authorized to take corrective action themselves. Moreover, the IG Act prohibits the transfer of "program operating responsibilities" to an IG.364

Reporting Requirements (to the Attorney General, Agency Head, Congress, and the Public)

IGs have various reporting obligations to Congress, the Attorney General, agency head(s), and the public. One such obligation is to report suspected violations of federal criminal law directly and expeditiously to the Attorney General.365 IGs are also required to report semiannually (twice per year) about their activities, findings, and recommendations to the agency head, who must submit the IG's report to Congress within 30 days.366 The agency head's submission must provide the IG's report unaltered, but it may include any additional comments from the agency head. These semiannual reports are to be made available to the public within 60 days of their submission to Congress.367 IGs are also to report "particularly serious or flagrant problems" immediately to the agency head, who must submit the IG report (unaltered but with his or her comments) to Congress within seven days.368

Independence

IGs have broad powers and protections that support their independence, including the authority to hire their own staff. Their independent status is reinforced in other ways, including, for example, by law enforcement powers.369 Moreover, inspectors general determine the priorities and projects for their offices without outside direction, in most cases. IGs may decide to conduct a review requested by the agency head, President, legislators, employees, or anyone for that matter; but they are not obligated to do so, unless it is called for in law.370 Congress, however, has mandated in legislation that OIGs conduct certain reviews.

IGs serve under the "general supervision" of the agency head, reporting exclusively to the head or to the officer next in rank if such authority is delegated.371

Budgets and Appropriations

Pursuant to the IG Act, presidentially-appointed IGs in establishments are provided a separate appropriations account for their offices.372 This requirement prevents agency administrators from limiting, transferring, or otherwise reducing IG funding once it has been specified in law. In contrast, each DFE IG's budget is part of the affiliated entity's budget and may be susceptible to some reallocation of funds.

The Inspector General Reform Act of 2008, moreover, amended the budget process for establishment and DFE OIGs. Pursuant to the reform act amendments, OIG budget estimates (i.e., budget proposals, which are to include operations, IG training, and other costs to support the federal IG council373) are to be provided to the affiliated agency. The affiliated agency's aggregated budget request to the President is required to include the OIG's original budget estimate and any response from the IG to the agency head's suggested changes. The President, in turn, must then include in his budget submission to Congress: the IG's original budget estimate; the President's requested amounts for the IG; and comments of the affected IG, if he or she determines that the President's budget would "substantially inhibit" the IG from performing his or her duties.374 Similar provisions apply to the inspectors general for the CIA and of the Intelligence Community.375

Appointment, Removal, and Term Limits

Some variations occur with regard to the appointment and removal of inspectors general, reflecting—to a degree—the status, location, and permanency of the affiliated agency. All IGs, however, follow certain laws and practices to help ensure impartiality and political nonpartisanship.

Pursuant to the Inspector General Act and other statutes, IGs are to be selected without regard to political affiliation and solely on the basis of integrity and demonstrated ability in accounting, auditing, financial and management analysis, law, public administration, or investigations.376 IGs who are presidential appointees with the advice and consent of the Senate can be removed only by the President (or through the impeachment process in Congress).377

IGs in designated federal entities and legislative branch agencies vary in appointment structure, removal procedure, and term limits. The DFE IGs are appointed by and can be removed by the agency head, who must notify Congress in writing 30 days in advance when exercising the removal authority.378 Furthermore, the U.S. Postal Service (USPS) IG is the only inspector general with the restriction that he or she can be removed only "for cause" and then only by the written concurrence of at least seven of the nine presidentially-appointed governors of USPS. In other cases, the Dodd-Frank Wall Street Reform and Consumer Protection Act amended the IG Act to require the written concurrence of a two-thirds majority of board or commission members for removal of an IG in any designated federal entity in which the board or commission is considered the DFE head.379

Coordination and Controls

Coordination among the IGs and controls over their actions, which might include investigating charges of wrongdoing by the IGs themselves, exists through several channels—including interagency councils created by public law or administrative directive.

Council of the Inspectors General for Integrity and Efficiency. Perhaps the most important coordinating body for IGs is the Council of the Inspectors General for Integrity and Efficiency (CIGIE), created by the IG Reform Act of 2008.380 CIGIE is designed to aid coordination among IGs and maintain one or more academies for the professional training of auditors, investigators, inspectors, and evaluators, and other personnel in IG offices.381 CIGIE includes all statutory IGs along with other relevant officers, such as a representative of the Federal Bureau of Investigation (FBI) and the Special Counsel of the Office of Special Counsel.382 The council chairperson is an inspector general chosen from within its ranks, while the executive chairperson is the OMB deputy director of management.383

Other Coordinative Bodies. Other interagency mechanisms have been created by law or administrative directive to assist coordination among IGs. For example, a separate Council of Inspectors General on Financial Oversight—chaired by the Treasury IG, and composed of IGs from nine financial agencies—was established by statute to facilitate information sharing among them and develop ways to improve financial oversight.384 In 2010, Congress enacted a bill requiring the establishment of the Intelligence Community Inspectors General Forum. The forum consists of all statutory or administratively-established inspectors with oversight responsibility of an element of the IC and is chaired by the IC Inspector General.385 At least two administrative organizations have also been created to help coordinate IG activities and capabilities in selected areas: the Homeland Security Roundtable; and the Defense Council on Integrity and Efficiency, composed primarily of DOD audit and investigative units and chaired by the DOD inspector general.386

Investigation of Alleged OIG Wrongdoing. Investigation of alleged misconduct by OIG officials—including inspectors general themselves—is the province of a special Integrity Committee in CIGIE.387 The special committee receives, reviews, and refers for investigation allegations of wrongdoing by these officials, with the relevant processes and procedures spelled out in the IG Act. The committee is composed of four IGs on the Council, along with the Special Counsel, the Director of the Office of Government Ethics, and the FBI representative on the council, who chairs the committee.388

Oversight Information Sources and Consultant Services

Congress calls upon a variety of sources for information and analysis to support its oversight activities. Most of this assistance is provided by legislative support agencies: The Congressional Research Service, the Congressional Budget Office, and the Government Accountability Office. In addition, the Offices of Senate Legal Counsel and House General Counsel are valuable oversight resources. A range of outside interest groups and research organizations also provide rich sources of information.

Congressional Research Service (CRS)

CRS Mission Statement

"The Congressional Research Service serves the Congress throughout the legislative process by providing comprehensive and reliable legislative research and analysis that are timely, objective, authoritative, and confidential, thereby contributing to an informed national legislature."

Organization

CRS is organized into five interdisciplinary research divisions: American Law; Domestic Social Policy; Foreign Affairs, Defense and Trade; Government and Finance; and Resources, Science and Industry. The Knowledge Services Group provides research support services to CRS analysts and attorneys in their preparation of authoritative and reliable information research and policy analysis to Congress.

Staff of CRS

CRS has about 600 employees on its permanent staff. The professional staff are diverse, including, among others, attorneys, economists, engineers, social science analysts, information scientists, librarians, defense and foreign affairs analysts, political scientists, public administrators, and physical and biological scientists.

Analytical and Research Services

Policy analysis and research. CRS staff anticipates and responds to congressional needs for policy analysis, research and information in an interdisciplinary, integrated manner. CRS provides timely and objective responses to congressional inquiries for policy analysis, research and information at every stage of the legislative process. Legislative attorneys and paralegal staff respond to congressional needs for legal information and analysis to support the legislative, oversight, and representational functions of Congress.

Information research. Information research specialists and resource specialists are available to provide information research and reference assistance. The staff also provides copies of articles in newspapers, journals, legal and legislative documents and offers assistance with a wide variety of electronic files.

Briefings, seminars, and workshops

CRS conducts briefings, seminars, and workshops for members of Congress and their staffs. On these occasions CRS analysts and other experts discuss public policy issues, international concerns, and the legislative process.

Briefings. CRS analysts and specialists are available to give one-on-one briefings to members and staff on public policy issues, the legislative process, congressional office operations, committee matters, or a general orientation to CRS.

Issue seminars and workshops. In anticipation of congressional interest or at the request of a member or committee, CRS organizes and conducts seminars and workshops on issues of current interest to members and staff of Congress. CRS and outside experts participate in these events with members and staff.

Federal Law Update. This series, offered twice yearly by the American Law Division, focuses on developments on important issues of law directly related to the legislative business of Congress. The series can meet continuing legal education (CLE) requirements in some states.

CRS Legislative Institutes. This two-part series provides training in the work of Congress and the legislative process. Topics include the federal budget process, committee system and procedures, floor procedures, amendments, and resolutions.

District and Staff Institutes. These institutes provide orientation for staff of district offices that includes discussions of CRS services, the legislative and budget processes, casework, member allowances, ethics, and franking. The program is supported by the House and Senate.

New Member Seminar. Every two years CRS offers new members an orientation seminar on public policy issues. These sessions are held in January at the beginning of each new Congress.

For additional information about CRS seminars and events, call [phone number scrubbed].

CRS Products

Customized Memoranda. Confidential memoranda prepared for a specific office are a major form of CRS written communication. These memoranda are solely for the use of the requesting office and are not distributed further unless permission has been given by that office. Memoranda are often used by CRS attorneys and analysts to respond to inquiries focused on legislative and policy matters of individual member interest.

CRS Reports. Reports for Congress on specific issues take many forms: policy analyses, statistical reviews, economic studies, legal analyses, historical studies, and chronological reviews. Reports are available on the CRS website at http://www.crs.gov.

Congressional Distribution Memoranda. Matters that are not suitable for treatment in a CRS Report, but that may be of interest to more than one congressional office, can be the subject of general distribution memoranda provided to a congressional office upon request. General distribution memoranda differ from Reports because they are tailored; are directed to a specific question or concern; or are more technical or focused in nature.

Reading Rooms and Research Centers

Staff in the congressional reading rooms and research centers provide telephone reference assistance and in-person consultation on resources and research for congressional staff. A selected research collection, newspapers and journals, and assistance with online searching are available.

Events
Electronically Accessible Products and Services

CRS Website. http://www.crs.gov. The CRS website provides 24-hour access to an array of CRS services including full text of reports, a weekly "Floor Agenda," updates and analyses of the annual appropriations legislation, an interactive guide to the legislative process, online registration for CRS seminars, and complete information on other CRS services. In operation since the 104th Congress, the CRS website is accessible only to House and Senate offices and other legislative branch agencies. A linked format allows the user to move easily within a CRS online document and link to the text and summary of relevant legislation and other CRS products on the topic.

Legislative Information System. http://www.congress.gov. The Legislative Information System (LIS) was available for the first time on Capnet at the beginning of the 105th Congress. The system provides Members of Congress and their staff with access to the most current and comprehensive legislative information available. It can be accessed only by the House and Senate and the legislative support agencies. The LIS has been developed under the policy direction of the Senate Committee on Rules and Administration and the House Committee on House Administration. It has been a collaborative project of the offices and agencies of the legislative branch, including the Secretary of the Senate and the Clerk of the House; House Information Resources and the Senate Sergeant at Arms; the Government Printing Office; the Government Accountability Office; the Congressional Budget Office; the Congressional Research Service; and the Library of Congress. CRS has responsibility for the overall coordination of the retrieval system; the Library of Congress is responsible for its technical development and operation.

Floor Agenda. The "Floor Agenda: CRS Products" page, a weekly compendium of CRS products relevant to scheduled or expected floor action in the House and Senate, is available on the CRS website and through e-mail subscription to all Members, committees, subcommittees, and congressional staff. All CRS products listed on the Floor Agenda are linked for electronic delivery to subscriber desktops.

CRS Programs Listserv. Launched in fiscal 2001, this e-mail notification system provides subscribers with descriptions of current CRS programs and links to online registration forms.

Issues Before Congress. The Issues Before Congress (IBC) system, accessible to Congress from the CRS Home Page, reflects policy areas identified by CRS research staff as active and of current importance to Congress. All products presented as IBCs are maintained to address significant policy developments. On occasion the system is used to facilitate the contribution of CRS expertise in situations requiring immediate attention of Congress on an unanticipated basis. CRS typically develops and maintains about 150 IBCs a year.

Appropriations. The CRS Appropriations web page continues to provide comprehensive legislative tracking and access to legislative analysis of each of the 12 annual appropriations bills.

Audiovisual Products and Services

CRS provides a variety of audiovisual products and technical assistance in support of its service to Congress. These include producing video or audio copies of CRS institutes and seminars that congressional staff can request for viewing in DVD format. In addition, CRS provides two hours of television programming each weekday for the Senate closed-circuit system.

CRS Divisional Responsibilities

CRS has adopted an interdisciplinary and integrative approach as it responds to requests from Congress. The Service seeks to define complex issues in clear and understandable ways, identify basic causes of the problems under consideration, and highlight available policy choices and potential effects of action. CRS is organized into the following divisions and offices to support the analysis, research, and information needs of Congress.

Divisions

American Law Division. The American Law Division provides Congress with legal analysis and information on the range of legal questions that emerge from the congressional agenda. Division lawyers and paralegals work with federal, state, and international legal resources in support of the legislative, oversight, and representational needs of Members and committees of Congress. The division's work involves the constitutional framework of separation of powers, congressional-executive relations and federalism; the legal aspects of congressional practices and procedures; and the myriad questions of administrative law, constitutional law, criminal law, civil rights, environmental law, business and tax law, and international law that are implicated by the legislative process. In addition, the division prepares The Constitution of the United States of America—Analysis and Interpretation (popularly known as the Constitution Annotated).

Domestic Social Policy Division. The Domestic Social Policy Division offers Congress research and analysis in the broad area of domestic social policies and programs. Analysts use multiple disciplines in their research, including program and legislative expertise, quantitative methodologies, and economic analysis. Issue and legislative areas include education and training, health care and financing, Social Security, public and private pensions, welfare, nutrition assistance, housing, immigration, drug control, crime and criminal justice, labor and occupational safety, unemployment and workers compensation, and issues related to children and families, persons with disabilities, the aged, the poor, and veterans.

Foreign Affairs, Defense, and Trade. The Foreign Affairs, Defense, and Trade Division is organized into seven regional and functional sections. Analysts follow worldwide political and economic and security developments for Congress, including U.S. relations with individual countries and transnational issues such as terrorism, refugees, global economic problems, and global institutions such as the International Monetary Fund and the United Nations. They also address U.S. foreign aid programs, strategies, and resource allocations; State Department budget and functions; international debt; public diplomacy; and legislation on foreign relations. Research responsibilities also include national security policy, military strategy, U.S. and foreign weapons systems, military operations, defense acquisition, military compensation, military health, the defense budget, and U.S. military bases. Trade-related legislation, policies, programs, and U.S. trade performance and investment flows are examined, as are trade negotiations and agreements, export promotion, import regulations, and tariffs.

Government and Finance Division. The Government and Finance Division responds to congressional requests for assistance on all aspects of Congress. These include the congressional budget and appropriations process, the legislative process, congressional administration and staffing, and the organization and operations of Congress and legislative branch agencies. Among the financial issues covered by the division are banking, financial institutions, insurance, mortgages, and securities; taxation, public finance, fiscal and monetary policy, and the public debt; the interaction between taxes and interest rates; and macroeconomic policy. In addition, the division responds to requests on the organization and management of the federal executive and judicial branches; judicial and executive branch nominations; government personnel and the civil service; the presidency and vice presidency; government information policy and privacy issues; intergovernmental relations and forms of federal aid; federalism; statehood and U.S. territories; the District of Columbia; economic developments; federal planning for and response to emergencies, disasters, and acts of terrorism in the United States; survey research and public opinion polls; the census; reapportionment and redistricting; elections, campaign finance, lobbying, and political parties; constitutional amendments; and constitutional history.

Resources, Science, and Industry Division. The Resources, Science, and Industry Division covers an array of legislative issues for Congress involving natural resources and environmental management, science and technology, and industry and infrastructure. Resources work includes policy analysis on public lands and other natural resources issues; environment; agriculture, food, and fisheries; and energy and minerals. Science coverage includes policy analysis on civilian and military research and development issues, information and telecommunications, space, earth sciences, and general science and technology. Support on transportation and industry issues includes policy analysis on transportation and transportation infrastructure issues, industrial market structure and regulation, and sector-specific industry analysis.

Knowledge Services Group. The Knowledge Services Group includes information professionals who respond to congressional requests and partner with CRS analysts and attorneys in providing authoritative and reliable information research and policy analysis to Congress. They write descriptive products and contribute to analytical products in policy research areas, advise analysts and Congress in finding solutions for their information needs, make recommendations for incorporating new research materials in print and digital formats and provide or coordinate specialized training on these resources. They also evaluate, acquire, and maintain research data and geospatial information to address various public policy issue areas. They work closely with the research divisions to provide seminars, institutes, and other in-person briefings to Members and their staff, and also provide direct support to Congress in congressional reading rooms and research centers.

Offices

Office of Communications. The Office of Communications is responsible for coordinating and overseeing CRS communications with internal and external audiences. The office assists CRS staff in understanding how Service policies, procedures, decisions, and activities relate to the CRS mission of serving Congress and how staff efforts fulfill that mission. To achieve that goal, the office advises on communications-related aspects of CRS initiatives; ensures that internal and external communications are clear, consistent, and aligned with the CRS mission; coordinates efforts to improve the use of existing communications channels; and plans, develops, and implements new uses of communications channels.

Office of Finance and Administration. The Office of Finance and Administration oversees the financial, procurement, and administrative programs of the Service. This includes coordinating the strategic planning; preparing the budget request; formulating and executing the financial operating plan; performing contracting and procurement actions; supervising the Service's status, role, activities, and interaction with the Library in performing these functions.

Office of the Counselor to the Director. The Office of the Counselor to the Director examines and defines policy and legal questions and issues affecting all aspects of the Service, and serves as the principal legal and policy advisor to the CRS Director, Deputy Director, and other senior management officials. The office develops and coordinates matters relating to internal CRS policies, particularly as they affect the Service's relationship with congressional clients and other legislative support agencies, and ensures that the Service complies with applicable guidelines and directives contained in the Reorganization Act, in statements by appropriations and oversight committees, and in Library regulations and CRS policy statements. The Office of the Counselor to the Director also addresses policy and legal questions with respect to such matters as congressional requests, potential conflicts of interest and activities on the part of staff, and personnel policy and labor-management issues.

Office of Congressional Information and Publishing. The Office of Congressional Information and Publishing facilitates and enhances congressional access to CRS expertise and legislative information. The office manages congressional research requests for CRS services and collects and organizes data about the use of CRS by Congress; edits, provides graphics support for, and publishes, CRS reports exclusively for Congress; organizes, analyzes, and publishes legislative information (including summaries of pending legislation); and coordinates Congress's Legislative Information System (LIS) in partnership with the Clerk of the House, Secretary of the Senate, and a number of other legislative branch offices and agencies.

Office of Information Management and Technology. The Office of Information Management and Technology provides the information management capabilities and support required for CRS legislation-related activities, communications, and service to Congress. This includes planning, procurement, development, operations, security, and maintenance of the information technology infrastructure and systems required to support the CRS mission. The office is also responsible for the overall information architecture and maintains information resources by identifying, assessing, acquiring, organizing, preserving, and tracking materials.

The Office of Workforce Management and Development. The Office of Workforce Management and Development manages the Service's ability to attract, develop, and retain quality talent needed to respond to the dynamic research, analysis, and information needs of Congress. The office provides a comprehensive package of services and programs to support and strengthen human capital capabilities. These services and programs extend to the areas of staffing and workforce planning; performance management, training and development, and staff recognition; data management and analysis; workforce flexibilities; and personnel security. The office also serves as liaison and collaborates with other Library offices on human resource management issues and initiatives.

Interdisciplinary Teams

As part of Service-wide planning efforts, CRS managers attempt to anticipate major congressional issues. The program identifies and defines major issues, structures them for more effective scrutiny by Congress, and provides effective, timely, and comprehensive products and services to Congress, which usually require multi-disciplinary and interdivisional contributions. The issues chosen are national in scope, receive widespread public attention, have significant effects on the federal budget, economy, or social fabric of the Nation, and are virtually certain to be the subject of congressional hearings and legislative action.

Limitations

The Legislative Reorganization Act of 1970 and specific provisions in various other Acts direct and authorize CRS to provide a great range of products and services to Congress. However, pursuant to these statutory authorities and understandings reached over time in consultation with the relevant oversight committees, the Service has developed the following policies limiting or barring certain types of assistance. When it appears that a congressional request should be declined on these policy grounds, that decision and notification to the requestor is to be made only after consultation with the appropriate Section Research Manager or Assistant Director.

Contact Information

Fast Access to all CRS services

CRS Experts

CRS Products

In-Person Services and CRS Products
(Note: Hours may change when Congress is not in session.)

Events

Programs and Training

To set up a borrowing account with the Library of Congress Collection

Mailing Address

Mary B. Mazanec, Director
Congressional Research Service
The Library of Congress, LM 203
Washington, DC 20540-7210
(Note: Hill offices may use Inside Mail)

For questions, comments, or problems about CRS services, please call [phone number scrubbed].

Congressional Budget Office (CBO)

Since its founding in 1974, the Congressional Budget Office (CBO) has produced independent analyses of budgetary and economic issues to support the congressional budget process. The agency is strictly nonpartisan and conducts objective, impartial analysis, which is evident in each of the dozens of reports and hundreds of cost estimates that its economists and policy analysts produce each year. All CBO employees are appointed solely on the basis of professional competence, without regard to political affiliation. CBO does not make policy recommendations, and each report and cost estimate discloses the agency's assumptions and methodologies. All of CBO's products apart from informal cost estimates for legislation being developed privately by Members of Congress or their staffs are available to the Congress and the public on CBO's website.

CBO's Products

CBO provides budgetary and economic information in a variety of ways and at various points in the legislative process.

Baseline Budget Projections and Economic Forecasts

Analysis of the President's Budget

Budget Options

Long-Term Budget Projections

Cost Estimates

Analyses of Federal Mandates

Monthly Budget Review

Scorekeeping for Enacted Legislation

Compilations of Unauthorized Appropriations and Expiring Authorizations

Reports on the Troubled Asset Relief Program

Reports on the American Recovery and Reinvestment Act

Sequestration Reports

Analytic Reports

Working Papers

Data and Technical Information

CBO's Organization

The Speaker of the House of Representatives and the President pro tempore of the Senate jointly appoint the CBO Director, after considering recommendations from the two budget committees. Directors are appointed for four-year terms, and they may be reappointed to the position; in addition, a director serving at the expiration of a term may continue to serve until his or her successor is appointed. The Congressional Budget and Impoundment Control Act of 1974 specifies that CBO's director is to be chosen without regard to political affiliation.

The rest of CBO's staff, including the Deputy Director, are appointed by the Director. CBO directors have established a firm tradition of retaining staff from their predecessors. Directors appoint all CBO employees solely on the basis of professional competence, without regard to political affiliation.

Doug Elmendorf is CBO's current Director. He was initially appointed on January 22, 2009, to complete the previous four-year term of office. He was later reappointed to serve through January 3, 2015.

Offices of Senate Legal Counsel and House General Counsel

For over three decades the offices of Senate Legal Counsel and House General Counsel have developed parallel yet distinctly unique and independent roles as institutional legal "voices" of the two bodies they represent. Familiarity with the structure and operation of these offices and the nature of the support they may provide committees in the context of an investigative oversight proceeding is essential.

Senate Legal Counsel

The Office of Senate Legal Counsel389 was created by Title VII of the Ethics in Government Act of 1978390 "to serve the institution of Congress rather than the partisan interests of one party or another."391 The counsel and deputy counsel are appointed by the president pro tempore of the Senate upon the recommendation of the majority and minority leaders. The appointment of each is made effective by a resolution of the Senate, and each may be removed from office by a resolution of the Senate. The term of appointment of the counsel and deputy counsel is two Congresses. The appointment of the counsel and deputy counsel and the counsel's appointment of assistant Senate Legal Counsel are required to be made without regard to political affiliation. The office is responsible to a bipartisan Joint Leadership Group, which is comprised of the majority and minority leaders, the president pro tempore, and the chairman and ranking minority member of the Committees on the Judiciary and on Rules and Administration.392

The act specifies the activities of the office, two of which are of immediate interest to committee oversight concerns: representing committees of the Senate in proceedings to aid them in investigations, and advising committees and officers of the Senate.393

Proceedings to Aid Investigations by Senate Committees

The Senate Legal Counsel may represent committees in proceedings to obtain evidence for Senate investigations. Two specific proceedings are authorized.

The first proceeding is under the law providing committees the authority to grant witness immunity (18 U.S.C. §6005). It provides that a committee or subcommittee of either house of Congress may request an immunity order from a U.S. district court when the request has been approved by the affirmative vote of two-thirds of the members of the full committee. By the same vote, a committee may direct the Senate Legal Counsel to represent it or any of its subcommittees in an application for an immunity order.394

The second proceeding involves authority under the Ethics in Government Act of 1978 which permits the Senate Legal Counsel to represent a committee or subcommittee of the Senate in a civil action to enforce a subpoena. Prior to the Ethics Act, subpoenas of the Senate could be enforced only through the cumbersome method of a contempt proceeding before the bar of the Senate or by a certification to the U.S. attorney and a prosecution for criminal contempt of Congress under 2 U.S.C. Sections 192, 194. The Ethics Act authorizes the Senate to enforce its subpoenas through a civil action in the U.S. District Court for the District of Columbia.395 The House chose not to avail itself of this procedure and this enforcement method applies only to Senate subpoenas. Senate subpoenas have been enforced in several civil actions. See, for example, proceedings to hold in contempt a recalcitrant witness in the impeachment proceedings against Judge Alcee L. Hastings396 and proceedings to enforce a subpoena duces tecum for the production of diaries of Senator Bob Packwood.397

The statute details the procedure for directing the Senate Legal Counsel to bring a civil action to enforce a subpoena. In contrast to an application for an immunity order, which may be authorized by a committee, only the full Senate by resolution may authorize an action to enforce a subpoena.398 The Senate may not consider a resolution to direct the counsel to bring an action unless the investigating committee reports the resolution by a majority vote. The statute specifies the required contents of the committee report; among other matters, the committee must report on the extent to which the subpoenaed party has complied with the subpoena, the objections or privileges asserted by the witness, and the comparative effectiveness of a criminal and civil proceeding.399 A significant limitation on the civil enforcement remedy is that it excludes from its coverage actions against officers or employees of the federal government acting within their official capacities, except where the refusal to comply is based on the assertion of a personal privilege or objection and not on a governmental privilege or objection that has been authorized by the executive branch.400 Its reach is limited to natural persons and to entities acting or purporting to act under the color of state law.401

Advice to Committees and Officers of the Senate and Other Duties

The Ethics act details a number of advisory functions of the Office of Senate Legal Counsel. Principal among these are the responsibility of advising members, committees, and officers of the Senate with respect to subpoenas or requests for the withdrawal of Senate documents, and the responsibility of advising committees about their promulgation and implementation of rules and procedures for congressional investigations. The office also provides advice about legal questions that arise during the course of investigations.402

The act also provides that the counsel shall perform such other duties consistent with the nonpartisan purposes and limitations of Title VII as the Senate may direct.403 Thus, in 1980, the office was used in the investigation relating to President Carter's brother, Billy, and his connection to Libya. The office worked under the direction of the chairman and vice-chairman of the subcommittee charged with the conduct of that investigation.404 Members of the office have also undertaken special assignments such as the Senate's investigation of "Abscam" and other undercover activities,405 the impeachment proceedings of Judge Harry Claiborne,406 Judge Walter L. Nixon, Jr.,407 Judge Alcee L. Hastings Jr.,408 Judge G. Thomas Porteous, Jr.409 and the confirmation hearings of Justice Clarence E. Thomas. The office was called upon to assist in the Senate's conduct of the impeachment trial of President Clinton.

In addition, the counsel's office provides information and advice to members, officers, and employees on a wide range of legal and administrative matters relating to Senate business. Unlike the House practice, the Senate Legal Counsel plays no formal role in the review and issuance of subpoenas. However, since it may become involved in civil enforcement proceedings, it has welcomed the opportunity to review proposed subpoenas for form and substance prior to their issuance by committees. The Office of Senate Legal Counsel can be reached at 224-4435.

House General Counsel

The House Office of General Counsel has evolved since the mid-1970s, from its original role as a legal advisor to the Clerk of the House on a range of matters that fell within the jurisdiction of the Clerk's office, to that of counsel for the institution. At the beginning of the 103rd Congress, it was made a separate House office, reporting directly to the Speaker, charged with the responsibility "of providing legal assistance and representation to the House."410 While the function and role of the House Office of General Counsel and Senate Legal Counsel with respect to oversight assistance to committees and protection of institutional prerogatives are similar, there are some differences that will be noted below.

The General Counsel, Deputy General Counsel, and other attorneys of the office are appointed by the Speaker and serve at his pleasure.411 The office "function[s] pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group," which consists of the Speaker himself, the Majority Leader, Majority Whip, Minority Leader, and Minority Whip.412 The office has statutory authority to appear before state or federal courts in the course of performing its functions. 2 U.S.C. Section 130f. The office may appear as amicus curiae on behalf of the Speaker and the Bipartisan Legal Advisory Group in litigation involving the institutional interests of the House.413 Where authorized by statute or resolution, the office may represent the House itself in judicial proceedings.414 The office also represents House officers in litigation affecting the institutional interests and prerogatives of the House.415 Finally, the office defends the House, its committees, officers, and employees in civil litigation relating to their official responsibilities, or when they have been subpoenaed to testify or to produce House records (see House Rule VIII).

Unlike Senate committees, House committees may only issue subpoenas under the seal of the Clerk of the House. In practice, committees often work closely with the Office of General Counsel in drafting subpoenas and every subpoena issued by a committee is reviewed by the office for substance and form. Committees frequently seek the advice and assistance of the Office of General Counsel in dealing with various asserted constitutional, statutory, and common-law privileges,416 in responding to executive agencies and officials that resist congressional oversight,417 and in navigating the statutory process for obtaining a contempt citation with respect to a recalcitrant witness.418

The Office of General Counsel represents the interests of House committees in judicial proceedings in a variety of circumstances. The office represents committees in federal court on applications for immunity orders pursuant to 18 U.S.C. Section 6005; appears as amicus curiae in cases affecting House committee investigations;419 defends against attempts to obtain direct or indirect judicial interference with congressional subpoenas or other investigatory authority;420 represents committees seeking to prevent compelled disclosure of non-public information relating to their investigatory or other legislative activities;421 and appears in court on behalf of committees seeking judicial assistance in obtaining access to documents or information such as documents that are under seal or materials which may be protected by Rule 6(e) of the Federal Rules of Criminal Procedure.422

Like the Senate Legal Counsel's office, the House General Counsel's office also devotes a large portion of its time to rendering informal advice to individual members and committees. The office can be reached at [phone number scrubbed]. Its website address is http://generalcounsel.house.gov/, which is available only to House offices.

Government Accountability Office (GAO)

The Government Accountability Office, formerly called the General Accounting Office, was established by the Budget and Accounting Act of 1921 (31 U.S.C. §702) as an independent auditor of government agencies. Over the years, Congress has expanded GAO's audit authority, added new responsibilities and duties, including performance, management and accountability evaluations, and strengthened GAO's ability to perform independently of the executive branch. GAO's mission is to support the Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government.

GAO is led by the Comptroller General of the United States, who is appointed by the President, with the advice and consent of the Senate, from a list of candidates selected by a bipartisan, bicameral congressional commission. The Comptroller General serves a term of 15 years. GAO issues hundreds of reports, testimony statements, and legal opinions each year. GAO's staff are located in Washington, D.C. and in field offices throughout the country.

Working with Congress

Most GAO reports are prepared in response to requests from Members of Congress, or requirements in statute or committee or conference reports. GAO is required to do work requested by committee chairs and, as a matter of policy, assigns equal status to requests from ranking minority members, and subcommittee leaders. A small percentage of reviews are undertaken under the Comptroller General's authority. GAO's policies for accepting and prioritizing mandates and requests are laid out in its Congressional Protocols. GAO's Watchdog website, available on House and Senate intranet, provides information on the Congressional Protocols, how to request GAO reports, and information about ongoing reviews, among other things. GAO encourages Members and staff to consult with its staff when considering a request or mandate for a report.

Upon receiving a request, GAO will contact the requester to confirm acceptance, or to discuss issues needing to be resolved. Such issues are outlined in the Protocols, and may include

Upon beginning work, GAO will consult with requesters and conduct research to design methodologies that can answer the agreed-upon questions in an objective, fact-based, nonpartisan, nonideological, fair, and balanced way. GAO will confirm in writing the questions to be addressed, and the methodological approach.GAO will keep requesters informed throughout its work.

Approach to Work

GAO's reports typically support Congressional oversight through focusing on:

GAO's objective is to produce high-quality reports, testimonies, briefings, and other products and services that are objective, fact-based, nonpartisan, nonideological, fair, and balanced. The agency operates under strict professional standards, including Government Auditing Standards and a quality assurance framework.GAO obtains information through surveys, interviews, database analysis, and document reviews, among other techniques. All numbers and statements of fact presented in GAO work are thoroughly checked and referenced. GAO obtains comments on its findings and recommendations from the agencies it reviews, and includes these comments in its reports.

GAO's products include oral briefings, testimony and written reports. All non-classified reports are made available to the public through posting on GAO's website. GAO can also provide technical assistance to Members and staff, based on its past work, through, for example, briefings by its subject-matter experts.

Additional Services

In addition to its audits and evaluations, GAO offers a number of other services.

Forensic Audits and Investigative Service. The Forensic Audits and Investigative Services (FAIS) team conducts forensic audits and investigations of fraud, waste, and abuse. Its primary mission is to support Congress by improving the performance and accountability of government through auditing and investigating allegations of illegal or improper conduct related to federal funds, programs, or activities. FAIS also conducts evaluations of security vulnerabilities and supports other GAO reviews where an investigative component is needed. FAIS conducts its work in accordance with the Government Auditing Standards and the standards for investigations established by the Council of Inspectors General on Integrity and Efficiency

Legal Services. GAO provides various legal services. For example, upon request, GAO may render a legal decision or opinion on questions involving the use of, and accountability for, public funds or on other legal issues of interest to congressional committees. GAO publishes the Principles of Federal Appropriations Law (known as the Red Book) and teaches a class that provides an orientation to federal fiscal laws. GAO attorneys are available for informal technical assistance. In addition, under the Competition in Contracting Act, GAO provides an objective, independent, and impartial forum for the resolution of bid protests of awards of federal contracts in 100 days. Under other authorities, GAO reviews all major rules proposed by federal agencies and provides reports to Congress; and received agency reports about vacancies in Presidentially appointed, Senate confirmed positions and issues legal opinions under the Federal Vacancies Reform Act of 1998.

Accounting and Financial Management Policy. GAO prescribes accounting principles and standards for the executive branch. The Comptroller General appoints the Advisory Council on Government Auditing Standards, which advises GAO's preparation of the Generally Accepted Government Audit Standards, which is used by auditors of government entities, and entities that receive government awards, among others.

Audit/Evaluation Community Support. GAO also provides other services to help the audit and evaluation community improve and keep abreast of current developments. For example, it publishes and distributes papers on current audit and evaluation methodologies and approaches; assists in various training programs sponsored by these organizations, and sponsors an international auditor fellowship program to help other nations improve their audit functions.

Committee Support. Occasionally, on request of committee leadership, GAO details staff to work for congressional committees for up to one year. In these cases, the staff assigned represent a committee and not GAO.

Contacting GAO

GAO encourages Members and staff to consult with its staff when considering a request or mandate for a report. GAO's Office of Congressional Relations (512-4400) will help identify an appropriate GAO point of contact. Additional information is available on http://www.gao.gov or the "Watchdog" site which is available only to Members and staff via the House and Senate intranets. Request letters should be addressed to

The Honorable Gene L. Dodaro
Comptroller General of the United States
441 G Street NW
Washington DC 20548

GAO will accept letters attached to email sent to [email address scrubbed] or in hard copy. They may also be sent to staff of the Congressional Relations Office, whose contact information is listed on the Watchdog site.

Office of Management and Budget (OMB)

The Office of Management and Budget, http://www.whitehouse.gov/omb, came into existence in 1970; its predecessor agency, the Bureau of the Budget, was established in 1921. Initially created as a unit in the Treasury Department, since 1939 the agency has been a part of the Executive Office of the President (EOP).

Capabilities

OMB, though created by Congress, is the President's agent for the management and implementation of policy, including the federal budget. OMB's major responsibilities include

Limitations

OMB is inevitably drawn into institutional and partisan struggles between the President and Congress. Difficulties for Congress notwithstanding, OMB is the central clearinghouse for executive agencies and is, therefore, a rich source of information for investigative and oversight committees.

Budget Information

Since enactment of the 1974 Budget Act, as amended, Congress has more budgetary information than ever before. Extensive budgetary materials are also available from the executive branch. Some of the major sources of budgetary information are available on and off Capitol Hill. They include (1) the President and executive agencies (recall that under the Budget and Accounting Act of 1921, the President presents annually a national budget to Congress); (2) the Congressional Budget Office; (3) the House and Senate Budget Committees; (4) the House and Senate Appropriations Committees; and (5) the House and Senate legislative committees. In addition, CRS and GAO prepare reports that address the budget and related issues.

Worth mention is that discretionary spending, the component of the budget that the Appropriations Committees oversee through the appropriations process, accounts for about one-third of federal spending. Other House and Senate committees, particularly Ways and Means and Finance, oversee more than $1 trillion in spending through reauthorizations, direct spending measures, and reconciliation legislation. In addition, Ways and Means and Finance oversee a diverse set of programs, including tax collection, tax expenditures, and some user fees, through the revenue process. The oversight activities of all of these committees is enhanced through the use of the diverse range of budgetary information that is available to them.

Executive Branch Budget Products

Budget of the United States Government, Fiscal Year 2012 contains the Budget Message of the President and information on the President's budget proposals by budget function.

Analytical Perspectives, Budget of the United States Government, Fiscal Year 2012 contains analyses that are designed to highlight specified subject areas or provide other significant presentations of budget data that place the budget in perspective. This volume includes economic and accounting analyses; information on Federal receipts and collections; analyses of Federal spending; information on Federal borrowing and debt; baseline or current services estimates; and other technical presentations. The Analytical Perspectives volume also contains supplemental material with several detailed tables, including tables showing the budget by agency and account and by function, subfunction, and program, that is available on the Internet and as a CD-ROM in the printed document.

Historical Tables provides data on budget receipts, outlays, surpluses or deficits, Federal debt, and Federal employment over an extended time period, generally from 1940 or earlier to 2012 or 2015. To the extent feasible, the data have been adjusted to provide consistency with the 2012 Budget and to provide comparability over time.

The Appendix, Budget of the United States Government, Fiscal Year 2012 contains detailed information on the various appropriations and funds that constitute the budget. The Appendix contains financial information on individual programs and appropriation accounts. It includes for each agency: the proposed text of appropriations language; budget schedules for each account; legislative proposals; explanations of the work to be performed and the funds needed; and proposed general provisions applicable to the appropriations of entire agencies or group of agencies. Information is also provided on certain activities whose transactions are not part of the budget totals.

Several other points about the President's budget and executive agency budget products are worth noting. First, the President's budgetary communications to Congress continue after the January/February submission and usually include a series of budget amendments and supplementals, the Mid-Session Review, Statements of Administration Policy (SAPs) on legislation, and even revised budgets on occasion. Second, most of these additional communications are issued as House documents and are available on the web from GPO Access or the OMB Home Page (in the case of SAPs). Third, the initial budget products often do not provide sufficient information on the President's budgetary recommendations to enable committees to begin developing legislation, and that further budgetary information is provided in the "justification" materials (see below) and the later submission of legislative proposals. Finally, the internal executive papers (such as agency budget submissions to OMB) often are not made available to Congress.

Some Other Sources of Useful Budgetary Information

Committees on Appropriations. The subcommittees of the House and Senate Appropriations Committees hold extensive hearings on the fiscal year appropriations requests of federal departments and agencies. Each federal department or agency submits justification material to the Committees on Appropriations. Their submissions can run from several hundreds of pages to over two thousand pages. The Appropriations Subcommittees typically print this material with the hearing record of the federal officials concerning these requests.

Budget Committees. House and Senate Budget Committees, in preparing to report the annual concurrent budget resolution, conduct hearings on overall federal budget policy. These hearings and other fiscal analyses made by these panels address various aspects of federal programs and funding levels which can be useful sources of information.

Other Committees. To assist the Budget Committees in developing the concurrent budget resolution, other committees are required to prepare "views and estimates" of programs in their jurisdiction. Committee views and estimates, usually packaged together and issued as a committee print, also may be a useful source of detailed budget data.

Internal Agency Studies and Budget Reviews. These agency studies and reviews are often conducted in support of budget formulation and can yield useful information about individual programs. The budgeting documents, evaluations, and priority rankings of individual agency programs can provide insights into executive branch views of the importance of individual programs.

Beneficiaries, Private Organizations, and Interest Groups

Committees and members can acquire useful information about executive branch programs and performance from the beneficiaries of those programs, private organizations, and interest groups. An effective oversight device, for example, is to ask beneficiaries how well federal programs and services are working. A variety of methods might be employed to solicit the views of those on the receiving end of federal programs and services, including investigations and hearings, field and on-site meetings, surveys and opinion polls, and websites. The results of such efforts can assist committees in obtaining policy-relevant information about program performance and in evaluating the problems people might be having with federal administrators and agencies.

There are numerous think tanks, universities, or associations, for instance, that periodically conduct studies of public policy issues and advise members and others on how well federal agencies and programs are working. Similarly, numerous interest groups are active in monitoring areas such as civil rights, education, or health and they are not reluctant to point out alleged bureaucratic failings to committees and members. Some of these groups may also assist committees and members in bringing about improvements in agencies and programs. For example, the Project on Government Oversight (POGO), an independent, nonprofit organization, that seeks a more effective, accountable, open, and ethical federal government. The group's website is http://www.pogo.org.

There are also scores of social, political, scientific, environmental, and humanitarian nongovernmental organizations (NGOs) located around the world. Working with governments, corporations, foundations, and other entities are such NGOs as Greenpeace, Amnesty International, the World Resources Institute, the Red Cross, and the Save the Children Fund. Many NGOs might provide valuable assistance to congressional overseers because they "do legal, scientific, technical, and policy analysis; provide services; shape, implement, monitor, and enforce national and international commitments; and change institutions and norms."423

Appendix A. Illustrative Subpoena

GENERAL INSTRUCTIONS

1. In complying with this Subpoena, you are required to produce all responsive documents that are in your possession, custody, or control, whether held by you or your past or present agents, employees, and representatives acting on your behalf. You are also required to produce documents that you have a legal right to obtain, documents that you have a right to copy or have access to, and documents that you have placed in the temporary possession, custody, or control of any third party. No records, documents, data or information called for by this request shall be destroyed, modified, removed or otherwise made inaccessible to the Committee.

2. In the event that any entity, organization or individual denoted in this subpoena has been, or is also known by any other name than that herein denoted, the subpoena shall be read to also include them under that alternative identification.

3. Each document produced shall be produced in a form that renders the document susceptible of copying.

4. Documents produced in response to this subpoena shall be produced together with copies of file labels, dividers or identifying markers with which they were associated when this subpoena was served. Also identify to which paragraph from the subpoena that such documents are responsive.

5. It shall not be a basis for refusal to produce documents that any other person or entity also possesses non-identical or identical copies of the same document.

6. If any of the subpoenaed information is available in machine-readable form (such as punch cards, paper or magnetic tapes, drums, disks, or core storage), state the form in which it is available and provide sufficient detail to allow the information to be copied to a readable format. If the information requested is stored in a computer, indicate whether you have an existing program that will print the records in a readable form.

7. If the subpoena cannot be complied with in full, it shall be complied with to the extent possible, which shall include an explanation of why full compliance is not possible.

8. In the event that a document is withheld on the basis of privilege, provide the following information concerning any such document: (a) the privilege asserted; (b) the type of document; (c) the general subject matter; (d) the date, author and addressee; and (e) the relationship of the author and addressee to each other.

9. If any document responsive to this subpoena was, but no longer is, in your possession, custody, or control, identify the document (stating its date, author, subject and recipients) and explain the circumstances by which the document ceased to be in your possession, or control.

10. If a date set forth in this subpoena referring to a communication, meeting, or other event is inaccurate, but the actual date is known to you or is otherwise apparent from the context of the request, you should produce all documents which would be responsive as if the date were correct.

11. Other than subpoena questions directed at the activities of specified entities or persons, to the extent that information contained in documents sought by this subpoena may require production of donor lists, or information otherwise enabling the re-creation of donor lists, such identifying information may be redacted.

12. The time period covered by this subpoena is included in the attached Schedule A.

13. This request is continuing in nature. Any record, document, compilation of data or information, not produced because it has not been located or discovered by the return date, shall be produced immediately upon location or discovery subsequent thereto.

14. All documents shall be Bates stamped sequentially and produced sequentially.

15. Two sets of documents shall be delivered, one set for the Majority Staff and one set for the Minority Staff. When documents are produced to the Subcommittee, production sets shall be delivered to the Majority Staff in Room B346 Rayburn House Office Building and the Minority Staff in Room 2101 Rayburn House Office Building.

GENERAL DEFINITIONS

1. The term "document" means any written, recorded, or graphic matter of any nature whatsoever, regardless of how recorded, and whether original or copy, including, but not limited to, the following: memoranda, reports, expense reports, books, manuals, instructions, financial reports, working papers, records notes, letters, notices, confirmations, telegrams, receipts, appraisals, pamphlets, magazines, newspapers, prospectuses, interoffice and intra office communications, electronic mail (E-mail), contracts, cables, notations of any type of conversation, telephone call, meeting or other communication, bulletins, printed matter, computer printouts, teletypes, invoices, transcripts, diaries, analyses, returns, summaries, minutes, bills, accounts, estimates, projections, comparisons, messages, correspondence, press releases, circulars, financial statements, reviews, opinions, offers, studies and investigations, questionnaires and surveys, and work sheets (and all drafts, preliminary versions, alterations, modifications, revisions, changes, and amendments of any of the foregoing, as well as any attachments or appendices thereto), and graphic or oral records or representations of any kind (including without limitation, photographs, charts, graphs, microfiche, microfilm, videotape, recordings and motion pictures), and electronic, mechanical, and electric records or representations of any kind (including, without limitation, tapes, cassettes, discs, and recordings) and other written, printed, typed, or other graphic or recorded matter of any kind or nature, however produced or reproduced, and whether preserved in writing, film, tape, disc, or videotape. A documents bearing any notation not a part of the original text is to be considered a separate document. A draft or non-identical copy is a separate document within the meaning of this term.

2. The term "communication" means each manner or means of disclosure or exchange of information, regardless of means utilized, whether oral, electronic, by document or otherwise, and whether face to face, in a meeting, by telephone, mail, telexes, discussions, releases, personal delivery, or otherwise.

3. The terms "and" and "or" shall be construed broadly and either conjunctively or disjunctively to bring within the scope of this subpoena any information which might otherwise be construed to be outside its scope. The singular includes plural number, and vice versa. The masculine includes the feminine and neuter genders.

4. The term "White House" refers to the Executive Office of the President and all of its units including, without limitation, the Office of Administration, the White House Office, the Office of the Vice President, the Office of Science and Technology Policy, the Office of Management and Budget, the United States Trade Representative, the Office of Public Liaison, the Office of Correspondence, the Office of the Deputy Chief of Staff for Policy and Political Affairs, the Office of the Deputy Chief of Staff for White House Operations, the Domestic Policy Council, the Office of Federal Procurement Policy, the Office of Intergovernmental Affairs, the Office of Legislative Affairs, Media Affairs, the National Economic Council, the Office of Policy Development, the Office of Political Affairs, the Office of Presidential Personnel, the Office of the Press Secretary, the Office of Scheduling and Advance, the Council of Economic Advisors, the Council on Environmental Quality, the Executive Residence, the President's Foreign Intelligence Advisory Board, the National Security Council, the Office of National Drug Control, and the Office of Policy Development.

March 10, 1998

Custodian of Documents
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001

SCHEDULE A

1. All organizational charts and personnel rosters for the International Brotherhood of Teamsters ("Teamsters" or "IBT"), including the DRIVE PAC, in effect during calendar years 1991 through 1997.

2. All IBT operating, finance, and administrative manuals in effect during calendar years 1991 through 1997, including, but not limited to those that set forth (1) operating policies, practices, and procedures; (2) internal financial practices and reporting requirements; and (3) authorization, approval, and review responsibilities.

3. All annual audit reports of the IBT for the years 1991 through 1996 performed by the auditing firm of Grant Thornton.

4. All IBT annual reports to its membership and the public for years 1991 through 1997, including copies of IBT annual audited financial statements certified to by independent public accountants.

5. All books and records showing receipts and expenditures, assets and liabilities, profits and losses, and all other records used for recording the financial affairs of the IBT including, journals (or other books of original entry) and ledgers including cash receipts journals, cash disbursements journals, revenue journals, general journals, subledgers, and workpapers reflecting accounting entries.

6. All Federal Income Tax returns filed by the IBT for years 1991 through 1997.

7. All minutes of the General Board, Executive Board, Executive Council, and all Standing Committees, including any internal ethics committees formed to investigate misconduct and corruption, and all handouts and reports prepared and produced at each Committee meeting.

8. All documents referring or relating to, or containing information about, any contribution, donation, expenditure, outlay, in-kind assistance, transfer, loan, or grant (from DRIVE, DRIVE E&L fund, or IBT general treasury) to any of the following entities/organizations:

a. Citizen Action

b. Campaign for a Responsible Congress

c. Project Vote

d. National Council of Senior Citizens

e. Vote Now '96

f. AFL-CIO

g. AFSCME

h. Democratic National Committee

i. Democratic Senatorial Campaign Committee ("DSCC")

j. Democratic Congressional Campaign Committee ("DCCC")

k. State Democratic Parties

1. Clinton-Gore '96

m. SEIU

9. All documents referring or relating to, or containing information about any of the following individuals/entities:

a. Teamsters for a Corruption Free Union

b. Teamsters for a Democratic Union

c. Concerned Teamsters 2000

d. Martin Davis

e. Michael Ansara

f. Jere Nash

g. Share Group

h. November Group

i. Terrence McAuliffe

j. Charles Blitz

k. New Party

1. James P. Hoffa Campaign

m. Delancy Printing

n. Axis Enterprises

o. Barbara Arnold

p. Peter McGourty

q. Charles McDonald

r. Theodore Kheel

10. All documents referring or relating to, or containing information on about, communications between the Teamsters and the White House regarding any of the following issues:

a. United Parcel Service Strike

b. Diamond Walnut Company Strike

c. Pony Express Company organizing efforts

d. Davis Bacon Act

e. NAFTA Border Crossings

f. Ron Carey reelection campaign

g. IBT support to 1996 federal election campaigns.

i. All documents referring or relating to, or containing information about, communications between the Teamsters and the Federal Election Commission.

12. All documents referring or relating to, or containing information about, communications between the Teamsters and the Democratic National Committee, DSCC, or DCCC.

13. All documents referring or relating to, or containing information about, communications between the Teamsters and the Clinton-Gore '96 Campaign Committee.

14. All documents referring or relating to, or containing information about, policies and procedures in effect during 1996 regarding the approval of expenditures from the IBT general treasury, DRIVE E&L fund, and DRIVE PAC.

15. All documents referring or relating to, or containing information about the retention by the IBT of the law firm Covington & Burling and/or Charles Ruff.

16. All documents referring or relating to, or containing information about work for the IBT performed by the firm Palladino & Sutherland and/or Jack Palladino.

17. All documents referring or relating to, or containing information about work for the IBT performed by Ace Investigations and/or Guerrieri, Edmund, and James.

18. All documents referring or relating to, or containing information about IBT involvement in the 1995-1996 Oregon Senate race (Ron Wyden vs. Gordon Smith).

19. All documents referring or relating to, or containing information about, Ron Carey's campaign for reelection as general president of the Teamsters.

20. All documents referring or relating to, or containing information about organization, planning, and operation of the 1996 IBT Convention.

21. All documents referring or relating to, or containing information about the following:

a. Trish Hoppey

b. John Latz

c. any individual with the last name of "Golovner".

d. Convention Management Group.

22. All documents referring or relating to, or containing information about the Household Finance Corporation.

23. All documents referring or relating to, or containing information about, any "affinity credit card" program or other credit card program sponsored by or participated in by the IBT.

24. A list of all bank accounts held by the International Brotherhood of Teamsters including the name of the bank, account number, and bank address.

25. All documents referring or relating to, or containing information about, payments made by the IBT to any official or employee of the Independent Review Board.

26. Unless otherwise indicated, the time period covered by this subpoena is between January 1991 and December 1997.

Appendix B. Examples of White House Response to Congressional Requests

THE WHITE HOUSE

November 4, 1982

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Procedures Governing Responses to Congressional Request for Information

The policy of this administration is to comply with Congressional Requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. While this Administration, like its predecessors, has an obligation to protect the confidentiality of some communications, executive privilege will be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary. Historically, good faith negotiations between Congress and the executive branch has minimized the need for invoking executive privilege, and this tradition of accommodation should continue as the primary means of resolving conflicts between the Branches. To ensure that every reasonable accommodation is made to the needs of Congress, executive privilege shall not be invoked without specific Presidential authorization.

The Supreme Court has held that the Executive Branch may occasionally find it necessary and proper to preserve the confidentiality of national security secrets, deliberative communications that form a part of the decision-making process, or other information important to the discharge of the Executive Branch's constitutional responsibilities. Legitimate and appropriate claims of privilege should not thoughtlessly be waived. However, to ensure that this Administration acts responsibly and consistently in the exercise of its duties, with due regard for the responsibilities and prerogatives of Congress, the following procedures shall be followed whenever Congressional requests for information raise concerns regarding the confidentiality of the information sought:

1. Congressional requests for information shall be complied with as promptly and as fully as possible, unless it is determined that compliance raises a substantial question of executive privilege. A "substantial question of executive privilege" exists if disclosure of the information requested might significantly impair the national security (including the conduct of foreign relations), the deliberative processes of the Executive Branch or other aspects of the performance of the Executive Branch's constitutional duties.

2. If the head of an executive department or agency ("Department Head") believes, after consultation with department counsel, that compliance with a Congressional request for information raises a substantial question of executive privilege, he shall promptly notify and consult with the Attorney General through the Assistant Attorney General for the Office of Legal Counsel, and shall also promptly notify and consult with the Counsel to the President. If the information requested of a department or agency derives in whole or in part or from information received from another department or agency, the latter entity shall also be consulted as to whether disclosure of the information raises a substantial question of executive privilege.

3. Every effort shall be made to comply with the Congressional request in a manner consistent with the legitimate needs of the Executive Branch. The Department Head, the Attorney "General and the Counsel to the President may, in the exercise of their discretion in the circumstances, determine that executive privilege shall not be invoked and release the requested information.

4. If the Department Head, the Attorney General or the Counsel to the President believes, after consultation, that the circumstances justify invocation of executive privilege, the issue shall be presented to the President by the Counsel to the President, who will advise the Department Head and the Attorney General of the President's decision.

5. Pending a final Presidential decision on the matter, the Department Head shall request the Congressional body to hold its request for the information in abeyance. The Department Head shall expressly indicate that the purpose of this request is to protect the privilege pending a Presidential decision, claim of privilege.

6. If the President decides to invoke executive privilege, the Department Head shall advise the requesting Congressional body that the claim of executive privilege is being made with the specific approval of the President.

Any questions concerning these procedures or related matters should be addressed to the Attorney General, through the Assistant Attorney General for the Office of Legal Counsel, and to the Counsel to the President.

Ronald Reagan

THE WHITE HOUSE

September 28, 1994

MEMORANDUM FOR ALL EXECUTIVE DEPARTMENT AND AGENCY GENERAL COUNSELS

FROM: LLOYD N. CUTLER, SPECIAL COUNSEL TO THE PRESIDENT

SUBJECT: Congressional Requests to Departments and Agencies for Documents Protected by Executive Privilege

The policy of this Administration is to comply with congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch. While this Administration, like its predecessors, has an obligation to protect the confidentiality of core communications, executive privilege will be asserted only after careful review demonstrates that assertion of the privilege is necessary to protect Executive Branch prerogatives.

The doctrine of executive privilege protects the confidentiality of deliberations within the White House, including its policy councils, as well as communications between the White House and executive departments and agencies. Executive privilege applies to written and oral communications between and among the White House, its policy councils and Executive Branch agencies, as well as to documents that describe or prepares for such communications (e.g. "talking points"). This has been the view expressed by all recent White House Counsels. In circumstances involving communications relating to investigations of personal wrongdoing by government officials, it is our practice not to assert executive privilege, either, in judicial proceedings or in congressional investigations and hearings. Executive privilege must always be weighed against other competing governmental interests, including the judicial need to obtain relevant evidence, especially in criminal proceedings, and the congressional need to make factual findings for legislative and oversight purposes.

In the last resort, this balancing is usually conducted by the courts. However, when executive privilege is asserted against a congressional request for documents, the courts usually decline to intervene until after the other two branches have exhausted the possibility of working out a satisfactory accommodation. It is our policy to work out such an accommodation whenever we can, without unduly interfering with the President's need to conduct frank exchange of views with his principal advisors.

Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege.

Executive privilege belongs to the President, not individual departments or agencies. It is essential that all requests to departments and agencies for information of the type described above be referred to the White House Counsel before any information is furnished. Departments and agencies receiving such request should therefore follow the procedures set forth below, designed to ensure that this Administration acts responsibly and consistently with respect to executive privilege issues, with due regard for the responsibilities and prerogatives of Congress:

First, any document created in the White House, including a White House policy council, or in a department or agency, that contains the deliberations of, or advice to or from, the White House, should be presumptively treated as protected by executive privilege. This is so regardless of the document's location at the time of the request or whether it originated in the White House or in a department or agency.

Second, a department or agency receiving a request for any such document should promptly notify the White House Counsel's Office, and direct any inquiries regarding such a document to the White House Counsel's Office.

Third, the White House Counsel's Office, working together with the department or agency (and, where appropriate, the Department of Justice), will discuss the request with appropriate congressional representatives to determine whether a mutually satisfactory recommendation is available.

Fourth, if efforts to reach a mutually satisfactory accommodation are unsuccessful, and if release of the document would pass a substantial question of executive privilege, the Counsel to the President will consult with the Department of Justice and other affected agencies to determine whether to recommend that the President invoke the privilege.

We believe this policy will facilitate the resolution of issues relating to disclosures to Congress and maximize the opportunity for reaching mutually satisfactory accommodations with Congress. We will of course try to cooperate with reasonable congressional requests for information in ways that preserve the President's ability to exchange frank advice with his immediate staff and the heads of the executive departments and agencies.

Appendix C. Selected Readings

Aberbach, Joel D. Keeping a Watchful Eye: The Politics of Congressional Oversight. Washington: Brookings Institution, 1990. JK585.A63

Congressional Oversight: Methods and Techniques. Committee Print, Prepared for the Subcommittee on Oversight Procedures of the Senate Committee on Government Operations by the Congressional Research Service and the General Accounting Office, 94th Congress, 2nd session. Washington: GPO, 1976.

Fisher, Louis. Constitutional Conflicts between Congress and the President. Lawrence, Kansas: University Press of Kansas, 2007, 5th Revised Edition. KF4565.F57 1997.

Foreman, Christopher H. Signals from the Hill: Congressional Oversight and the Challenge of Social Regulation. New Haven: Yale University Press, 1988. JK585.F68

Hamilton, James. The Power to Probe: A Study of Congressional Investigations. New York: Vintage Books, 1976.

Harris, Joseph P. Congressional Control of Administration. Washington: Brookings Institution, 1964. JK1061.H3

History of the United States House of Representatives, 1789-1994. H.Doc. 103-324, 103rd Congress, 2nd session. Washington: GPO, 1994. Chapter XI, "Oversight," pp. 233-266.

CRS Report 97-936, Congressional Oversight, by [author name scrubbed] and [author name scrubbed].

_____. Congressional Oversight of the Presidency. Annals, vol. 499, September 1988, pp. 75-89.

CRS Report RL32113, Congressional Intervention in the Administrative Process: Legal and Ethical Considerations, by [author name scrubbed].

CRS Report RL32617, A Perspective on Congress's Oversight Function (pdf), by [author name scrubbed].

Mayhew, David R. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. New Haven: Yale University Press, 1991. JK2261.M36

McCubbins, Mathew D. and Thomas Schwartz. Congressional Oversight Overlooked: Police Patrol Versus Fire Alarms. American Journal of Political Science, vol. 2, February 1984, pp. 165-79.

National Academy of Public Administration. Panel on Congress and the Executive. Beyond Distrust: Building Bridges Between Congress and the Executive. Washington: NAPA, 1992.

Ogul, Morris S. Congress Oversees the Bureaucracy: Studies in Legislative Supervision. Pittsburgh: University of Pittsburgh Press, 1976. JK585.048

Oleszek, Walter J. Congressional Procedures and the Policy Process, 6th ed. Washington: Congressional Quarterly Press, 2004. Chapter 10, Legislative Oversight. KF4937.O44

Ornstein, Norman F. and Thomas E. Mann. When Congress Checks Out. Foreign Affairs, vol. 85, 2006, pp. 67-80.

Rosenberg, Morton. Congress's Prerogative Over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration's Theory of the Unitary Executive. George Washington Law Review, vol. 57, January 1989, pp. 627-703.

Rosenbloom, David H. Building a Legislative-Centered Public Administration: Congress and the Administrative State, 1946-1999. Tuscaloosa, Ala.: The University of Alabama Press, 2000. KF1601.R58

Schlesinger, Arthur M. and Roger Bruns, eds. Congress Investigates: A Documented History, 1792-1974 (5 vols.) New York: Chelsea House Publishers, 1975. JK1123.A2S34

Study on Federal Regulation: Congressional Oversight of Regulatory Agencies. Senate Doc. 95-26, 95th Congress, 1st session. Washington: GPO, 1977.

U.S. General Accounting Office. Investigators' Guide to Sources of Information. GAO Report OSI-97-2. Washington: GAO, 1997.

West, William F. Controlling the Bureaucracy: Institutional Constraints in Theory and Practice. Armonk, New York and London, England: M.E. Sharpe: 1995. JK421.W44

The Budget Process

Fisher, Louis. Presidential Spending Power. Princeton, N.J.: Princeton University Press, 1975. 345 p. HJ257.2.F57

CRS Report 98-720, Manual on the Federal Budget Process (pdf), by [author name scrubbed] and Allen Schick.

Schick, Allen. Congress and Money. Washington: Urban Institute, 1980. 604 p. HJ2051.S34

Wilmerding, Lucius, Jr. The Spending Power: A History of the Efforts of Congress to Control Expenditures. New Haven, Conn.: Yale University Press, 1943. 317 p. HJ2013.U5W5

Authorization and Appropriation Processes

Devins, Neal E. Regulation of Government Agencies Through Limitation Riders, Duke Law Journal, v. 1987, 1987:456.

Fisher, Louis. Annual Authorizations: Durable Roadblocks to Biennial Budgeting, Public Budgeting & Finance, v. 3, Spring 1983: 24.

_____. The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices, Catholic University Law Review, v. 29, 1979: 51.

Fenno, Richard F., Jr. The Power of the Purse. Boston, Mass.: Little, Brown, 1966. 704 p. JK1074.F4

LeBoeuf, Jacques B. Limitations on the Use of Appropriations Riders by Congress to Effectuate Substantive Policy Changes, Hastings Constitutional Law Quarterly, v. 19, Winter 1992: 457.

LeLoup, Lance T. Appropriations Politics in Congress: The House Appropriations Committee and the Executive Agencies, Public Budgeting & Finance, v. 4, Winter 1984: 78.

U.S. General Accounting Office, Office of the General Counsel. Principles of Federal Appropriations Law. Vols. I, II, and III. 2004.

The Confirmation Process

Carter, Stephen L. The Confirmation Mess: Cleaning Up the Federal Appointments Process. New York: Basic Books, 1994. 252 p. JK736.C37

Gerhardt, Michael J. The Federal Appointments Process. Durham and London: Duke University Press, 2000. 400 p. JK731.G47

_____. Toward a Comprehensive Understanding of the Federal Appointments Process, Harvard Journal of Law and Public Policy, v. 21, no. 4, 1998: 468.

Harris, Joseph P. The Advice and Consent of the Senate: A Study of the Confirmation of Appointments by the United States Senate. Berkeley, Cal.: University of California Press, 1953. 457 p. JK1274.H3

Hogue, Henry. The Law: Recess Appointments to Article III Courts, Presidential Studies Quarterly, v. 34, 2004: 656.

Haynes, George H. The Senate of the United States: Its History and Practice. Boston, Mass.: Houghton Mifflin Co., 1938. 2 vols. 1118 p. JK1161.H28

Kim, Haeryon. Congressional Influence on the FCC: An Analysis of Confirmation Hearings for Commission Chairmen, 1969-1989, Communications and the Law, v. 15, 1993: 37.

Mackenzie, G. Calvin. The Politics of Presidential Appointments. New York: The Free Press, 1981. 298 p. JK736.M33

CRS Report RL32551, 9/11 Commission Recommendations: The Senate Confirmation Process for Presidential Nominees, by [author name scrubbed].

Ross, William G. The Senate's Constitutional Role in Confirming Cabinet Nominees and Other Executive Officials, Syracuse Law Review, vol. 48, 1998: 1123.

The Impeachment Process

Bazan, Elizabeth B. Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice. CRS Report 99-186 (out of print; available from the authors).

Black, Charles L., Jr. Impeachment: A Handbook. New Haven, Conn.: Yale University Press, 1974. 80 p. LC 73-92315

Bushnell, Eleanor. Crimes, Follies, and Misfortunes: The Federal Impeachment Trials. Urbana, Ill.: University of Chicago Press, 1992. 380 p. KF8781.B87

Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and Historical Analysis. Princeton, N.J.: Princeton University Press, 1996. 233 p. KF4958.G47

Labowitz, John R. Presidential Impeachment. New Haven: Yale University Press, 1978. 257 p. KF5075.L33

Maskell, Jack. Censure of the President by the Congress. CRS Report 98-343 (out of print; available from the authors).

Posner, Richard A. An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Cambridge, Mass.: Harvard University Press, 1999. 276 p. KF5076.C57P67

Rae, Nicol C. and [author name scrubbed]. Impeaching Clinton: Partisan Strife on Capitol Hill. Lawrence: University Press of Kansas, 2004. 234 p. E886.2.R435

Rehnquist, William H. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: William Morrow and Co., 1992. 303 p. E302.6C4R44

U.S. Congress. Impeachment: Selected Materials, Committee on the Judiciary, House of Representatives, 93rd Congress, 1st session, October 1973. 718 p.

_____. Impeachment: Selected Materials on Procedure, Committee on the Judiciary, House of Representatives, 93rd Congress, 2nd session, January 1974. 900 p.

_____. Constitutional Grounds for Impeachment: Modern Precedents, Committee on the Judiciary, House of Representatives, 105th Congress, 2nd session, Ser. No. 9, November 1998. 94 p.

_____. Impeachment: Selected Materials, Committee on the Judiciary, House of Representatives, 105th Congress, 2nd session, Ser. No. 10, November 1998. 1854 p.

The Investigative Process

Beard, Glenn A. Congress v. The Attorney-Client Privilege: A "Full and Frank" Discussion, American Criminal Law Review, v. 35, 1997: 119.

Berger, Raoul. Congressional Subpoenas to Executive Officials. Columbia Law Review, v. 75, 1975: 865.

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.

Brand, Stanley M. Battle Among the Branches: The Two Hundred Year War. North Carolina Law Review, v. 65, 1987: 901.

Brand, Stanley M. and Connelly, Sean. Constitutional Confrontations: Preserving a Prompt and Orderly Means By Which Congress May Enforce Investigative Demands Against Executive Branch Officials. Catholic University Law Review, v. 36, 1986: 71.

Bush, Joel D. Congressional Executive Access Disputes: Legal Standards and Political Settlements. Journal of Law and Politics, v. 9, Summer 1993: 719.

Clavelaux, Ronald L. The Conflict Between Executive Privilege and Congressional Oversight: The Gorsuch Controversy. Duke Law Journal, v. 1983, No. 6: 1333.

Cole, Lance. The Fifth Amendment and Compelled Production of Personal Documents after United States v. Hubbell—New Protection for Private Papers? American Journal of Criminal Law, v. 29, Spring 2002: 123.

Devins, Neal. Congressional-Executive Information Disputes: A Modest Proposal—Do Nothing. Administrative Law Review, vol. 48, Winter 1996: 109.

Dimock, Marshall E. Congressional Investigating Committees. Baltimore: Johns Hopkins University Press, 1929. JK1123.A2E2

CRS Report R42811, Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice, by [author name scrubbed] and [author name scrubbed].

Fisher, Louis. The Politics of Executive Privilege. Durham, N.C.: Carolina Academic Press, 2004. 272 p. JK468.S4F57

CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by [author name scrubbed] and [author name scrubbed].

CRS Report RL34114, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: A Sketch, by [author name scrubbed] and [author name scrubbed].

CRS Report R42670, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments, by [author name scrubbed] and [author name scrubbed].

CRS Report RL31351, Presidential Advisers' Testimony Before Congressional Committees: An Overview, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

Ghio, R.S. The Iran-Contra Prosecutions and the Failure of Use Immunity. Stanford Law Review, v. 45, 1992: 229.

Grabow, John C. Congressional Investigations: Law and Practice. New Jersey: Prentice Hall Law and Business, 1988. KF4942.G73

Hamilton, James. The Power to Probe: A Study in Congressional Investigations. New York: Vintage Books, 1976. KF4942.H34

Hamilton, James and Grabow, John C. A Legislative Proposal for Resolving Executive Privilege Disputes Precipitated by Congressional Subpoenas. Harvard Journal Legislation, v. 21, Winter 1984: 145.

Iraola, Roberts. Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions. Iowa Law Review, v. 87, 2002: 1559.

Moreland, Allen B. Congressional Investigations and Private Persons. Southern California Law Review, v. 40, Winter 1967: 189.

Peterson, Todd D. Prosecuting Executive Branch Officials For Contempt Of Congress. New York University Law Review, v. 66, 1991: 563.

_____.Congressional Oversight of Open Criminal Investigations. Notre Dame Law Review, v. 75, 2002: 1373.

Roberts, John C. Are Congressional Committees Constitutional? Radical Textualism, Separation of Powers, and the Enactment Process, and the Enactment Process. Case Western Rescue Law Review, v. 52, 2001: 489.

Rosenthal, Paul C. and Grossman, Robert S. Congressional Access to Confidential Information Collected by Federal Agencies. Harvard Journal of Legislation, v. 15, 1977: 74.

Rozell, Mark J. Executive Privilege: Presidential Power, Secrecy, and Accountability. Lawrence: University Press of Kansas, 2002 (2d edition, revised). JK468.S4 R67

Schlesinger, Arthur M., Jr., and Bruns, Rogers (eds.). Congress Investigates: 1792-1974. New York: Chelsea House Publishers. 1975 (5 Vols. ). JK 1123.A2 S34

Shane, Peter M. Legal Disagreement and Negotiation in a Government of Laws: The Case of Executive Privilege Claims Against Congress. Minnesota Law Review, v. 71, February 1987: 461.

Shane, Peter M. Negotiation for Knowledge: Administrative Responses to Congressional Demands For Information. Administrative Law Review, v. 44, Spring 1992: 197.

Sklamberg, Harold. Investigation Versus Protection: The Constitutional Limits on Congress' Power to Immunize Witnesses. North Carolina Law Review, v. 78: November 1999: 153.

Stathis, Stephen W. Executive Cooperation: Presidential Recognition of the Investigative Authority of Congress and the Courts. Journal of Law and Politics, v. 3, Fall 1986: 187.

Taylor, Telford. Grand Inquest: The Story of Congressional Investigations. New York: Simon and Schuster, 1995. KF4942.T38

Tiefer, Charles. Congressional Oversight of the Clinton Administration and Congressional Procedure. Administrative Law Review, v. 50, 1998: 199.

_____.The Law: President Bush's First Executive Privilege Claim: The FBI/Boston Investigation. Presidential Studies Quarterly, v. 33, March 2003: 201.

Vermeule, Adrian. The Constitutional Law of Congressional Procedure. University of Chicago Law Review, v. 71, Spring 2004: 361.

Walsh, Lawrence E. The Independent Counsel and the Separation of Powers. Houston Law Review, v. 25, January 1988: 1.

Wald, Patricia and Siegel, Jay. The D.C. Circuit and the Struggle for Control of Presidential Information. Georgetown Law Journal, v. 90, March 2002: 737.

Wright, Ronald F. Congressional Use of Immunity Grants After Iran-Contra. Minnesota Law Review, v. 80, December 1995: 407.

Statutory Offices of Inspector General

CRS Report R40675, Statutory Offices of Inspectors General (IGs): Methods of Appointment and Legislative Proposals, by [author name scrubbed].

CRS Report R40099, The Special Inspector General for the Troubled Asset Relief Program (SIGTARP), by [author name scrubbed].

Duffy, Diane T. and [author name scrubbed]. Into the Woods: Mapping New Directions for OIGs. Journal of Public Inquiry, Fall-Winter 1999.

Fong, Phyllis K., The IG Reform Act and the New IG Council: Dawn of a New Era, Journal of Public Inquiry, Fall-Winter 2008-2009, pp. 1-6.

Hendricks, Michael et al. Inspectors General: A New Force in Evaluation. San Francisco: Jossey-Bass, Inc., 1990.

Kaiser, Frederick M. The Watchers' Watchdog: The CIA Inspector General. International Journal of Intelligence and Counterintelligence, vol. 3, 1989. pp. 55-75.

Light, Paul C. Monitoring Government: Inspectors General and the Search for Accountability. Washington: Brookings, 1993. HJ9801.L54

Newcomer, Kathryn E. The Changing Nature of Accountability: The Role of the Inspectors General in Federal Agencies. Public Administration Review, vol. 58, March/April, 1998.

U.S. Congress. House. Committee on Government Operations. Establishment of Offices of Inspector General in Certain Executive Departments and Agencies. H.Rept. 95-584, 95th Congress, 1st session Washington: GPO, 1977.

_____. The Inspector General Act of 1978: A 10-Year Review. H.Rept. 100-1027, 100th Congress, 2nd session Washington: GPO, 1988.

U.S. Congress. House. Committee on Oversight and Government Reform. Improving Government Accountability. H.Rept. 110-354, 110th Congress, 1st session Washington: GPO, 2007.

U.S. Congress. House. Subcommittee on Government Efficiency. 25th Anniversary of the Inspector General Act. Hearings, 108th Congress, 1st session Washington: GPO, 2003.

U.S. Congress. House. Subcommittee on Government Management and Organization. Inspectors General: Independence and Accountability. Hearing, 110th Congress, 1st session Washington: GPO, 2007.

U.S. Congress. Senate. Committee on Governmental Affairs. Establishment of Inspector and Auditor General in Certain Executive Departments and Agencies. S. Rept. 95-1071, 95th Congress, 2nd session Washington: GPO, 1978.

_____. The Inspector General Act: 20 Years Later. Hearings, 105th Congress, 2nd session. Washington: GPO, 1998.

U.S. Congress. Senate. Committee on Homeland Security and Governmental Affairs. The Inspector General Reform Act of 2007. S.Rept. 110-262, 110th Congress, 1st session Washington: GPO, 2007.

U.S. Government Accountability Office (formerly, General Accounting Office). Designated Federal Entities: Survey of Governance Practices and the Inspector General Role. GAO Report GAO-09-270. Washington: GAO, 2009.

_____. Federal Inspectors General: An Historical Perspective. GAO Report T-AIMD-98-146. Washington: GAO, 1998.

_____.Highlights of the Comptroller General's Panel on Federal Oversight and the Inspectors General. GAO Report GAO-06-931SP. Washington: GAO, 2006.

_____. Inspectors General: Enhancing Federal Accountability. GAO Report GAO-04-117T. Washington: GAO, 2003.

_____. Inspectors General: Office Consolidation and Related Issues. GAO Report GAO-02-575. Washington: GAO, 2002.

_____. Inspectors General: Opportunities to Enhance Independence and Accountability. GAO Report GAO-07-1089T. Washington: GAO, 2007.

Reporting, Consultation, and Other Sources of Information

CRS Report RL31160, Disapproval of Regulations by Congress: Procedure Under the Congressional Review Act, by [author name scrubbed].

CRS Report RL30795, General Management Laws: A Compendium (pdf), by [author name scrubbed] et al.

CRS Report RL32339, Federal Regulations: Efforts to Estimate Total Costs and Benefits of Rules, by [author name scrubbed].

Collier, Ellen C. Reporting Requirements. In Joint Committee on the Organization of Congress. Congressional Reorganization: Proposals for Change. Senate Print 103-19, 103rd Congress, 1st session. Washington: GPO, 1993. p. 135.

_____. Foreign Policy by Reporting Requirement. The Washington Quarterly, vol. 11, Winter 1988.

Johannes, John. Statutory Reporting Requirements: Information and Influence for Congress. In Abdo Baaklini, ed., Comparative Legislative Reforms and Innovations. New York: SUNY Press, 1977. pp. 33-60.

Kerwin, Cornelius. Rulemaking: How Government Agencies Write Laws and Make Policy, 2nd ed. Washington: CQ Press, 1999.

U.S. General Accounting Office. Investigators' Guide to Sources of Information. GAO Report OSI-97-2. Washington: GAO, 1997.

U.S. General Accounting Office. A Systematic Management Approach Is Needed for Congressional Reporting Requirements. GAO Report PAD-82-12. Washington: GAO, 1981.

U.S. House of Representatives. Clerk. Reports To Be Made to Congress. House Document 108-14, 108th Congress, 1st session. Washington: GPO, 2003.

U.S. Vice President Al Gore. National Performance Review. Creating a Government That Works Better & Costs Less: Streamlining Management Control. Washington: Office of the Vice President, 1993 (Reduce the Burden of Congressionally Mandated Reports, pp. 33-36).

Resolutions of Inquiry

CRS Report RL31909, House Resolutions of Inquiry, by [author name scrubbed].

History of the United States House of Representatives, 1789-1994, H. Doc. 103-324, 103rd Congress, 2nd session. Washington: GPO, 1994 (Resolutions of Inquiry, pp. 260-262).

Methods and Techniques

Art, Robert J. Congress and the Defense Budget: Enhancing Policy Oversight, Political Science Quarterly, v. 100, Summer 1985: 227-248.

Bowers, James R. Regulating the Regulators: An Introduction to the Legislative Oversight of Administrative Rulemaking. New York: Praeger, 1990. 140p. KF5411.B69

Hill, James P. The Third House of Congress Versus the Fourth Branch of Government: The Impact of Congressional Committee Staff on Agency Regulatory Decision-Making, John Marshall Law Review, v. 19, Winter 1986: 247-273.

Kaiser, Frederick M. Congressional Oversight of the Presidency, Annals of the American Academy of Political and Social Science, v. 499, September 1988: 75-89.

U.S. Congress. Senate. Committee on Government Operations (now titled Homeland Security and Governmental Affairs). Subcommittee on Oversight Procedures. Committee Print. Congressional Oversight: Methods and Techniques. 94th Congress, 2nd session, July 1976. Washington: GPO, 1976. 254p.

Special Studies and Investigations by Staff and Others

Johannes, John R. To Serve the People: Congress and Constituency Service. Lincoln, University of Nebraska Press, 1984. JK1071.J63

Kaiser, Frederick M. A Congressional Office of Constituent Assistance: Proposals, Rationales, and Possible Objections. CRS Report 91-893 (out of print; available from the authors).

Pontius, John S. Casework in a Congressional Office. CRS Report 98-878 (out of print; available from the authors).

The Press and Media

Cook, Timothy E. Making Laws and Making News. Washington: The Brookings Institution, 1989. 210 p. JK1447.C66

Hess, Stephen. Live From Capitol Hill. Washington: The Brookings Institution, 1991. 178 p. PN4888.P6H48

Mann, Thomas and Norman Ornstein, eds. Congress, the Press, and the Public. Washington: The American Enterprise Institute and The Brookings Institution, 1994. 212 p. JK1140.C62

Ritchie, Donald A. Press Gallery: Congress and the Washington Correspondents. Cambridge, Mass.: Harvard University Press, 1991. PN4899.W3R58

Specialized Investigations

Congressional Quarterly. Guide to Congress. Washington: Congressional Quarterly, Inc., 2000, 5th ed. Vol. I, pp. 249-280.

Dimock, Marshall E. Congressional Investigating Committees. Baltimore: Johns Hopkins Press, 1929. KF4942.D5

Eberling, Ernest J. Congressional Investigations. New York: Columbia University Press, 1929. JK1123.A2E2

Fisher, Louis. Constitutional Conflicts between Congress and the President. Lawrence, Kansas: University Press of Kansas, 1997, 4th revised ed. pp. 160-195. KF4565.F57

Hamilton, James. The Power To Probe: A Study of Congressional Investigations. New York: Vintage Books, 1976. KF4942.H34

Kaiser, Frederick M. Impact and Implications of the Iran-Contra Affair on Congressional Oversight of the Executive. International Journal of Intelligence and Counterintelligence, vol. 7, Summer 1994, pp. 205-234.

Mayhew, David R. Divided We Govern: Party Control, Lawmaking, and Investigations, 1946-1990. New Haven: Yale University Press, 1991. JK2261.M36

Schlesinger, Arthur M. Jr. and Roger Bruns. Congress Investigates: A Documented History. New York: Chelsea House, 1975 (5 vols.). JK1123.A2S34

Taylor, Telford. The Grand Inquest: The Story of Congressional Investigations New York: Simon and Schuster, 1955. KF4942.T38

Appropriations Limitations and Riders

Banks, William C. and Peter Raven-Hansen. National Security Law and the Power of the Purse. New York, Oxford University Press, 1994. 260 p. KF4651.B36

Devins, Neal. Regulation of Government Agencies Through Limitation Riders, Duke Law Journal, v. 1987: 456.

Fisher, Louis. The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices, Catholic University Law Review, v. 29, 1979:5.

LeBoeuf, Jacques B. Limitations on the Use of Appropriations Riders by Congress to Effectuate Substantive Policy Changes, Hastings Constitutional Law Quarterly, v. 19, 1992: 457.

The Legislative Veto

Biden, Joseph R., Jr. Who Needs the Legislative Veto? Syracuse Law Review, v. 35, 1984: 685.

Breyer, Stephen. The Legislative Veto After Chadha. Georgetown Law Journal, v. 72, 1984: 785.

Craig, Barbara Hinson. Chadha: The Story of an Epic Constitutional Struggle. New York: Oxford University Press, 1988. KF228.C43C73

Fisher, Louis. The Legislative Veto: Invalidated, It Survives, Law & Contemporary Problems, v. 56, 1993: 273.

Gibson, Martha Liebler. Weapons of Influence: the Legislative Veto, American Foreign Policy, and the Irony of Reform. Boulder, Colo., Westview Press, 1992. 188p. JX1706.G53

Kaiser, Frederick M. Congressional Action to Overturn Agency Rules: Alternatives to the 'legislative veto.' Administrative Law Review, v. 32, 1980: 667.

Korn, Jessica. The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto. Princeton, N.J.: Princeton University Press, 1996. 178p. JK305.K67

Independent Counsel

Eastland, Terry. Ethics, Politics and the Independent Counsel. Washington, National Legal Center for the Public Interest, 1989. 180 p. KF4568.E17 1989.

Harriger, Katy J. The Special Prosecutor in American Politics, 2d ed. revised. Lawrence: University Press of Kansas, 2000. 325 p. KF4568.H37

Jost, Kenneth. Independent Counsels: Should Congress make major changes in the law? CQ Researcher, v. 7, no. 7, February 21, 1997: 145-167.

Koukoutchos, Brian Stuart. Constitutional Kinetics: the Independent Counsel Case and the Separation of Powers. Wake Forest law review, v. 23, 1988: 635.

Maskell, Jack. The Independent Counsel Law. The Federal Lawyer, July 1998: 28-39.

Nolan, Beth. Removing Conflicts from the Administration of Justice: Conflicts of Interest and Independent Counsels Under the Ethics in Government Act. Georgetown Law Journal, v. 79, 1990: 1-80.

Walsh, Lawrence E. The Independent Counsel and the Separation of Powers. Houston Law Review, v. 25, 1988: 1.

General

Bimber, Bruce. Information as a Factor in Congressional Politics, Legislative Studies Quarterly, v. XVI, November 1991: 585-605.

Carnegie Commission on Science, Technology, and Government. Science, Technology, and Congress: Analysis and Advice from the Congressional Support Agencies. Washington: The Carnegie Commission, 1991. 70p.

Chubb, John E. Interest Groups and the Bureaucracy. Stanford, Calif.: Stanford University Press, 1983. 319 p.

Gilmour, Robert S. and Alexis A. Halley, eds. Who Makes Public Policy? Chatham, N.J.: Chatham House Publishers, Inc., 1994. 390 p. JK585.W48

Heinz, John P., et al. The Hollow Core: Private Interests in National Policy Making. Cambridge, Mass.: Harvard University Press, 1993. 450 p. JK1118.H55

U.S. Congress. Joint Committee on the Organization of Congress. Support Agencies. Hearing before the Joint Committee on the Organization of Congress. 103rd Congress, 1st session, June 10, 1993, Washington: GPO, 1993. 1577p. KF25.O7

Congressional Research Service http://www.crs.gov

Carney, Eliza Newlin. Billington's Book Wars, National Journal, v. 24, March 21, 1992: 695-698.

Cole, John Y. Jefferson's Legacy: A Brief History of the Library, Library of Congress Bulletin, v. 50, April 8, 1991: 124-130.

Dalrymple, Helen. Congressional Research Service: Think Tank, Policy Consultant and Information Factory, Library of Congress Information Bulletin, v. 49, September 24, 1990: 319-326.

Gude, Gilbert. Congressional Research Service: the Research and Information Arm of Congress, Government Information Quarterly, v. 2, January 1985: 5-11.

Robinson, William H. The Congressional Research Service: Policy Consultant, Think Tank, and Information Factory, In Organizations for Policy Analysis: Helping Government Think. edited by Carol H. Weiss. Newbury Park, Calif.: Sage Publications, 1992, pp. 181-200.

Government Accountability Office (formerly the General Accounting Office) http://www.gao.gov

Abikoff, Kevin T. The Role of the Comptroller General in Light of Bowsher v. Synar, Columbia Law Review, v. 87, November 1987: 1539-1563.

_____.GAO Versus the CIA: Uphill Battles Against an Overpowering Force. International Journal of Intelligence and Counterintelligence, v. 15, 2002: 330-389.

Mosher, Frederick C. A Tale of Two Agencies: A Comparative Analysis of the General Accounting Office and the Office of Management and Budget. Baton Rouge, La.: Louisiana State University Press, 1984. 219 p. HJG802.M682

Rozell, Mark J. The Role of General Accounting Office Evaluation in the Post Reform Congress: The Case of General Revenue Sharing, International Journal of Public Administration, v. 7, September 1985: 267-290.

U.S. Congress. House. Committee on the Budget. Addressing Government Waste, Fraud, and Abuse. 108th Congress, 1st session. Washington: GPO, 2003. 421 p.

U.S. Congress. Senate. Committee on Governmental Affairs. The Roles, Mission and Operation of the U.S. General Accounting Office. Report prepared by the National Academy of Public Administration. Senate Print 103-87, 103rd Congress, 2nd session. Washington: GPO, 1994. 106 p.

U.S. Congress. House. Committee on Rules. Congressional Oversight: A "How-To" Series of Workshops. Committee Print. 106th Congress, 1st session. Washington: GPO, 2000. See pp. 90-143.

U.S. General Accounting Office. GAO History, 1921-1991, by Roger R. Trask. GAO Report OP-3-MP. Washington: GAO, 1991.

U.S. Government Accountability Office. Strategic Plan http://www.GAO.GOV.

Congressional Budget Office http://www.cbo.gov

Howard, James A. Government Economic Projections: A Comparison Between CBO and OMB, Public Budgeting & Finance, v. 7, Autumn 1987: 14-25.

CRS Report 98-720, Manual on the Federal Budget Process (pdf), by [author name scrubbed] and Allen Schick, August 28, 1998.

CRS Report RL31880, Congressional Budget Office: Appointment and Tenure of the Director and Deputy Director, by [author name scrubbed].

Schick, Allen. Congress and Money. Washington, D.C.: The Urban Institute, 1980. 604 p. HJ2051.S34.

Twogood, R. Philip. Reconciling Politics and Budget Analysis: The Case of the Congressional Budget Office, Public Budgeting and Financial Management, v. 3, no. 1, 1991: 65-87.

Offices of Senate Legal Counsel and House General Counsel

Salokar, Rebecca Mae. Legal Counsel for Congress: Protecting Institutional Interests, Congress and the Presidency. vol. 20, No. 2, Autumn 1993: 131-155.

Tiefer, Charles. The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client, Law and Contemporary Problems, v. 61, Spring 1998: 48-63.

Appendix D. Other Resources

Congressional Oversight Video Series424

Oversight: A Key Congressional Function. Former Representative Lee Hamilton delivered the keynote address to a 1999 series of CRS programs examining various aspects of congressional oversight. In this program, Mr. Hamilton emphasizes the importance of traditional oversight and reviews factors that contribute to successful oversight.

Program Length: 60 minutes. Product No.: MM70003.

The Constitutional Context of Oversight. Michael Stern, senior counsel with the House General Counsel's Office, and Michael Davidson, former Senate Legal Counsel, discuss the constitutional context of oversight. In addition, the two attorneys address a variety of oversight topics, including congressional investigations. Taped as part of a 1999 series of CRS programs examining various aspects of congressional oversight.

Program Length: 60 minutes. Product No.: MM70003, 1999 Congressional Oversight Seminars. Video Tape., by [author name scrubbed] and [author name scrubbed].

The "Rules & Tools" of Oversight. This program focuses on the formal institutional rules that committees must follow to insure the legitimacy and fairness of oversight proceedings. The nature of the formidable powers of inquiry available to congressional committees and the practicalities of their effective utilization are also explored. Taped as part of a 1999 series of CRS programs examining various aspects of congressional oversight.

Program Length: 60 minutes. Product No.: MM70003, 1999 Congressional Oversight Seminars. Video Tape., by [author name scrubbed] and [author name scrubbed].

Sources of Oversight Assistance. This session focuses on where congressional committees can obtain assistance in conducting oversight. Especially relevant are inspectors general, chief financial officers, and Congress's own support agencies, the Congressional Budget Office, Congressional Research Service, and Government Accountability Office. Taped as part of a 1999 series of CRS programs examining various aspect of congressional oversight.

Program Length: 46 minutes. Product No.: MM70003, 1999 Congressional Oversight Seminars. Video Tape., by [author name scrubbed] and [author name scrubbed].

Fiscal Oversight: "Follow the Money." This seminar examines congressional oversight of fiscal and budgetary activities, focusing on the role of the House and Senate Appropriations Committees in the annual budget cycle and key support activities of the Congressional Budget Office to Congress on budgetary matters generally. Taped as part of a 1999 series of CRS programs examining various aspects of congressional oversight.

Program Length: 45 minutes. Product No.: MM70007.

Outside Actors in the Oversight Process. This program addresses how non-congressional individuals can assist in the investigative process and in monitoring executive branch performance. The panel includes a journalist, members of public and private interest groups, and a former counsel with the House Commerce Committee, Subcommittee on Oversight and Investigations. Taped as part of a 1999 series of CRS programs examining various aspects of congressional oversight.

Program Length: 50 minutes. Product No.: MM70003, 1999 Congressional Oversight Seminars. Video Tape., by [author name scrubbed] and [author name scrubbed].

Preparing for an Oversight Investigation. This program probes the "ins and outs" of how to prepare for Congressional Investigations from the perspective of both the investigator and those being investigated. Taped as part of a 1999 series of CRS programs examining various aspects of congressional oversight.

Program Length: 59:50. Product No.: MM70003, 1999 Congressional Oversight Seminars. Video Tape., by [author name scrubbed] and [author name scrubbed].

Congress, the President, the Courts, and the Separation of Powers. Product No.: MM70097.

Copies of CRS video programs are available on loan to congressional offices. For the schedule of CRS Programs on Channel 6 of the House and Channel 5 of the Senate, call [phone number scrubbed]. For further information about any of these programs, please call [phone number scrubbed].

Acknowledgments

Over time, authors of this report have included former CRS attorneys and analysts [author name scrubbed], Rick Greenwood, [author name scrubbed], [author name scrubbed], Mort Rosenberg, and [author name scrubbed].

Footnotes

1.

P.L. 79-601, 60 Stat. 812 (1946).

2.

U.S. Const. art. I, §9, cl. 7.

3.

U.S. Const. art. I, §9; see also U.S. Const. art. II, §2, cl. 2.
4.

U.S. Const. art. I, §8.

5.

U.S. Const. art. I, §8, cl. 18.

6.

See U.S. Const. art. II, §2, cl. 2.

7.

For a more detailed discussion of constitutional authority to investigate, see "Constitutional Authority to Perform Oversight and Investigative Inquiries."
8.

See U.S. Const. art. II, §4.

9.

Advisory committee charters and reports can generally be obtained from the agency or government organization being advised.
10.

For more information on the legal authority of individual Members, see "Individual Member and Minority Party Authority to Conduct Oversight and Investigations."
11.

H.Rept. 93-916, at 68 (1974).

12.

P.L. 93-344, 88 Stat. 297, codified at 2 U.S.C. §§607-688.
13.

U.S. Const. art. I, §9, cl. 17.
14.

P.L. 95-521, 92 Stat. 1824, codified at 5 U.S.C. App. §§101, et. seq.
15.

U.S. Const. art. II, §2, cl. 2.
16.

U.S. Const. art. II, §2, cl. 3. For more information on recess appointments, see CRS Report RL33009, Recess Appointments: A Legal Overview, by [author name scrubbed].
17.

5 U.S.C. §§3345, et. seq. For more information on the Vacancies Act, see CRS Report RS21412, Temporarily Filling Presidentially Appointed, Senate-Confirmed Positions, by [author name scrubbed].
18.

U.S. Const. art. II, §4.
19.

U.S. Const. art. II, §4.
20.

Id.
21.

See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178 (1957); McGrain v. Daugherty, 273 U.S. 135 (1927).
22.

Eastland, 421 U.S. at 504, n. 15 (quoting Barenblatt, 360 U.S. at 111).
23.

Watkins, 354 U.S. at 187.
24.

Id.
25.

Id. at 182.
26.

Id. at 200, n.33.
27.

United States v. Rumely, 345 U.S. 41, 42, 44 (1953); see also Watkins, 354 U.S. at 198.
28.

See House Rule X, 113th Cong. (2013); Senate Rule XXV, 114th Cong. (2013).

29.

Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).
30.

Watkins, 354 U.S. at 187.
31.

See, e.g., McGrain v. Daugherty, 273 U.S. 135; In Re Chapman, 166 U.S. 661 (1897).
32.

103 U.S. 168 (1881).
33.

McGrain, 273 U.S. 135.

34.

Id.; see also Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938); Leading Cases on Congressional Investigatory Power, 7 (Comm. Print 1976) (hereinafter Leading Cases). For a different assessment of case law concerning the requirement of a legislative purpose, see Allen B. Moreland, Congressional Investigations and Private Persons, 40 So. Cal. L. Rev. 189, 232 (1967) (hereinafter Moreland).
35.

166 U.S. 661, 669 (1897).
36.

In re Chapman, 166 U.S. at 699.
37.

273 U.S. 135 (1927).
38.

See id. at 153.

39.

Id. at 179-80.
40.

Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).
41.

Barenblatt, 360 U.S. 109.

42.

Quinn v. United States, 349 U.S. 155, 161 (1955).
43.

McGrain, 273 U.S. at 295.
44.

Rumely, 345 U.S. at 43-45; see also Watkins, 354 U.S. at 200 n. 3.
45.

See, e.g., Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; McPhaul v. United States, 364 U.S. 372 (1960).
46.

Hutcheson v. United States, 369 U.S. 599 (1962).
47.

Shelton, 404 F.2d 1292.
48.

See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170 F. Supp. 303 (D.D.C. 1959).
49.

Watkins, 354 U.S. at 200. However, Chief Justice Warren, writing for the majority, made it clear that he was not referring to the "power of the Congress to inquire into and publicize corruption, mal-administration or inefficiency in agencies of the Government." Id.
50.

Barenblatt, 360 U.S. at 132.
51.

See, e.g., Congress Investigates: A Critical and Documentary History (Roger A. Bruns, David L. Hostetter & Raymond W. Smock eds., 2011).
52.

Eastland, 421 U.S. at 504.
53.

McGrain, 273 U.S. at 175; see also Buckley v. Valeo, 424 U.S. 1, 138 (1976); Eastland, 421 U.S. at 504-505.
54.

McGrain, 273 U.S. at 174-75.
55.

See, e.g., House Committee on Oversight and Government Reform, Rule 12(d); Senate Committee on Homeland Security and Governmental Affairs, Rule 5(c).

56.

See "Common Law Privileges".

57.

As to the requirement of "valid legislative purpose," the Supreme Court has made it clear that Congress does not have to state explicitly what it intends to do as a result of an investigation. In re Chapman, 166 U.S. 661, 669 (1897).
58.

Wilkinson v. United States, 365 U.S. 399, 408-09 (1961).
59.

U.S. Const. art. I, §6, cl. 1. See also CRS Report R42648, The Speech or Debate Clause: Constitutional Background and Recent Developments, by [author name scrubbed] and [author name scrubbed].

60.

Eastland, 421 U.S. at 503-07.
61.

In the House, the only standing committee authorized to take depositions is the Committee on Oversight and Government Reform. See House Rules, Rule X(4)(c)(3)(A). In the Senate, the Committees on Agriculture, Nutrition, and Forestry; Ethics; Homeland Security and Governmental Affairs and its the Permanent Subcommittee on Investigations; Indian Affairs; Foreign Relations; Commerce, Science, and Technology;; and the Special Committee on Aging all have deposition authority. See S. Doc. 113-20, Authority and Rules of Senate Committees 2013-2014, 113th Cong. (2013).
62.

See CRS Report 95-949, Staff Depositions in Congressional Investigations (pdf), by [author name scrubbed], at notes 16 and 18.
63.

See, e.g., Rules of the Senate Special Committee on Aging, Rule VII, available at http://www.aging.senate.gov/about/rules.cfm.

64.

18 U.S.C. §1001; False Statements Accountability Act of 1996, P.L. 104-292. Congress acted in response to the Supreme Court's decision in Hubbard v. United States, 514 U.S. 695 (1995), holding that 18 U.S.C. §1001 applied only to false statements made in executive branch department and agency proceedings.
65.

United States v. Reinecke, 524 F.2d 435 (D.C. Cir. 1975) (holding that failure to publish committee rule setting one Senator as a quorum for taking hearing testimony was a sufficient ground to reverse a perjury conviction).
66.

House Rule XI(2)(h)(2), 113th Cong. (2013).
67.

Senate Rule XXVI(7)(a)(2), 113th Cong. (2013). See, e.g., S. Doc. 113-20, Authority and Rules of Senate Committees 2013-2014, 113th Cong. (2013), Special Comm. on Aging Rule 5.1 at 14.

68.

See, e.g., S. Doc. 113-20, Authority and Rules of Senate Committees 2013-2014, 113th Cong. (2013), Comm. on Appropriations Rule II(3) at 19.

69.

Christoffel v. United States, 338 U.S. 84, 90 (1949).

70.

Senate Rule XXVI(7)(a)(1); House Rule XI(2)(m)(3).
71.

House Rule XI(2)(k)(5).

72.

See, e.g., Senate Special Committee on Aging, Rule II(4).

73.

18 U.S.C. §1621.
74.

18 U.S.C. §1001.
75.

House Rule XI(2)(k)(3).

76.

See, e.g., S. Prt. 113-20, Rules of Procedure: Senate Permanent Subcommittee on Investigations of the Committee on Homeland Security and Government Affairs at 13 (2013) (hereinafter Senate Permanent Subcommittee on Investigations Rules).
77.

House Rule XI(2)(k)(4).

78.

See, e.g., Senate Special Committee on Aging, Rule II(10); Senate Permanent Subcommittee on Investigations Rules, Rule 7.
79.

See "Constitutional Limitations."
80.

U.S. Const. amend. V.
81.

Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
82.

See 18 U.S.C. §6005.
83.

Id. This type of immunity is known as "use immunity."

84.

Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 Hous. L. Rev. 1, 9 (1988).
85.

See Kastigar v. United States, 406 U.S. 441, 460 (1972).
86.

See United States v. North, 910 F. 2d 843 (D.C. Cir. 1990), modified, 920 F. 2d 940 (D.C. Cir. 1990), cert denied, 500 U.S. 941 (1991); see also United States v. Poindexter, 951 F. 2d 369 (D.C. Cir. 1991).
87.

The most recent immunity order appears to have been granted to Monica Goodling in context of the House Judiciary Committee's investigation of the dismissal of U.S. Attorneys in 2007. Order Immunizing the Testimony of, and Other Information Provided by, Monica Goodling, May 11, 2007, Misc. No. 07-198 (D.D.C. 2007) (on petition of the House Judiciary Committee). See also Dan Eggen, Goodling Granted Immunity in Attorney Firings Probe, Wash. Post, May 11, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/05/11/AR2007051100779.html.
88.

See H.Rept. 95-1828, Final Report of the Select Committee on Assassinations, U.S. House of Representatives (1978).

89.

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821).
90.

See 2 U.S.C. §§192, 194. For a comprehensive treatment of the history and legal development of the congressional contempt power, see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by [author name scrubbed] and [author name scrubbed].

91.

Jurney v. MacCracken, 294 U.S. 125, 147 (1935).

92.

McGrain v. Daugherty, 273 U.S. 135, 161 (1927).

93.

See Anderson, 19 U.S. (6 Wheat.) 204; see also McGrain, 273 U.S. 135.
94.

See Ernest J. Eberling, Congressional Investigations 289, 302-16 (1928).

95.

2 U.S.C. §192.

96.

If the House or Senate is out of session, the contempt citation is filed with the Speaker of the House or the President of the Senate, respectively. See 2 U.S.C. §194.

97.

Id.

98.

The 13 officials are as follows: Secretary of State Henry Kissinger (1975); Secretary of Commerce Rogers C. B. Morton (1975); Secretary of Health, Education, and Welfare Joseph A Califano, Jr. (1978); Secretary of Energy Charles Duncan (1980); Secretary of Energy James B. Edwards (1981); Secretary of the Interior James Watt (1982); EPA Administrator Anne Gorsuch Burford (1983); Attorney General William French Smith (1983); White House Counsel John M. Quinn (1996); Attorney General Janet Reno (1998); White House Counsel Harriet Miers (2008); White House Chief of Staff Joshua Bolton (2008); and Attorney General Eric Holder (2012). Additionally, Lois Lerner, former director of the Exempt Organizations unit in the Internal Revenue Service (IRS), was held in contempt in 2014.
99.

See Prosecution for the Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege, 8 Op. Off. Legal Counsel 101 (1984).

100.

Letter from James M. Cole, Deputy Attorney General, to John Boehner, Speaker of the House, June 28, 2012 available at http://oversight.house.gov/wp-content/uploads/2012/08/June-28-2012-Cole-to-Boehner.pdf.
101.

Ethics in Government Act of 1978, P.L. 95-521, §§703, 705, 92 Stat. 1877-80 (1978) (codified as amended at 2 U.S.C. §§288b(b) 288d, and 28 U.S.C. §1365 (2012)).
102.

28 U.S.C. §1365.

103.

Id.

104.

Id. at 4.
105.

For more information on the Speech or Debate Clause, see CRS Report R42648, The Speech or Debate Clause: Constitutional Background and Recent Developments, by [author name scrubbed] and [author name scrubbed].
106.

S.Rept. 95-170, 95th Cong., 1st Sess., 94 (1977).
107.

The act specifies that "an action, contempt proceeding, or sanction.... shall not abate upon adjournment sine die by the Senate at the end of a Congress if the Senate or the committee or subcommittee ... certifies to the court that it maintains its interest in securing the documents, answers, or testimony during such adjournment." 28 U.S.C. §1365(b) (2012). In the first case brought under the new procedure, the witness unsuccessfully argued that the possibility of "indefinite incarceration" violated the due process and equal protection provisions of the Constitution, and allowed for cruel and unusual punishment. Application of the U.S. Senate Permanent Subcommittee on Investigations, 655 F.2d 1232 (D.C. Cir.), cert. denied, 454 U.S. 1084 (1981).
108.

See CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by [author name scrubbed] and [author name scrubbed], Table A-3 (Floor Votes on Civil Enforcement Resolutions in the Senate, 1980-Present).

109.

See generally Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008); Committee on Oversight and Government Reform, U.S. House of Representatives v. Holder, 973 F. Supp. 2d 1 (D.D.C. 2013).

110.

18 U.S.C. §1621(a).

111.

Christoffel v. United States, 338 U.S. 84, 90 (1949).
112.

House Rule XI(2)(h)(2).
113.

Senate Rule XXVI(7)(a)(2) allows its committees to set a quorum requirement at less than the normal one-third for taking sworn testimony. Almost all Senate committees have set the quorum requirement at one member.
114.

Christoffel, 338 U.S. at 90.

115.

Perjury requires that the false statement be made under "an oath authorized by law" and before a "competent tribunal." Unless expressly authorized to take a deposition under oath, conversations with committee staff generally do not fall within the scope of the perjury statute. See, e.g., United States v. Weissman, 1996 U.S. Dist. LEXIS 19125 (S.D.N.Y. 1996).

116.

18 U.S.C §1001 (2006).
117.

Barenblatt v. United States, 360 U.S. 109, 112 (1959).

118.

For example, the Sixth amendment right of a criminal defendant to cross-examine witnesses and to call witnesses in his behalf has been held not applicable to a congressional hearing. United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971).
119.

Watkins v. United States, 354 U.S. 178, 197 (1957).
120.

360 U.S. 109, 126 (1959).
121.

Id.
122.

Watkins, 354 U.S. at 198. A balancing test was also used in Branzburg v. Hayes, which involved the issue of the claimed privilege of newsmen not to respond to demands of a grand jury for information. See Branzburg v. Hayes, 408 U.S. 665 (1972). In its 5-4 decision, the Court concluded that the grand jury's need for the information outweighed First Amendment considerations, but the opinion indicates that "the infringement of protected First Amendment rights must be no broader than necessary to achieve a permissible governmental purpose," and that "a State's interest must be 'compelling' or 'paramount' to justify even an indirect burden on First Amendment rights." Id. at 699-700; see also Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) (applying the compelling interest test in a legislative investigation).
123.

See, e.g., Barenblatt, 360 U.S. 109; Watkins, 354 U.S. 178; United States v. Rumely, 345 U.S. 41 (1953); see also 4 Deschler's Precedents of the U.S. House of Representatives, ch. 15, §10, n. 15 and accompanying text (1994).
124.

Leading Cases, supra note 34, at 42; James Hamilton, The Power to Probe: A Study of Congressional Investigations, 234 (1977) (hereinafter Hamilton). Although it was not in the criminal contempt context, one court of appeals has upheld a witness's First Amendment claim. In Stamler v. Willis, the Seventh Circuit Court of Appeals ordered to trial a witness's suit for declaratory relief against the House Un-American Activities Committee in which it was alleged that the committee's authorizing resolution had a "chilling effect" on plaintiff's First Amendment rights. See 415 F.2d 1365 (7th Cir. 1969), cert. denied, 399 U.S. 929 (1970). Relief has been denied in other cases for declaratory and injunctive relief brought against committees on First Amendment grounds, although courts have indicated that relief could be granted if the circumstances were more compelling. See, e.g., Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Davis v. Chord, 442 F. 2d 1207 (D.C. Cir. 1970); Ansara v. Eastland, 442 F.2d 751 (D.C. Cir. 1971). However, in Eastland v. United States Servicemen's Fund, the Supreme Court held that the Constitution's Speech or Debate Clause (Art. I, §6, cl. 1) generally bars suits challenging the validity of congressional subpoenas on First Amendment or other grounds. Thus, a witness generally cannot raise his constitutional defenses until a subsequent criminal prosecution for contempt unless, in the case of a Senate committee, the statutory civil contempt procedure is employed. 421 U.S. 491 (1975); see also United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
125.

Rumely, 345 U.S. 41.
126.

Gibson, 372 U.S. 539. In the majority opinion, Justice Goldberg observed that "an essential prerequisite to the validity of an investigation which intrudes into the area of constitutionally protected rights of speech, press, association and petition [is] that the State convincingly show a substantial relation [or nexus] between the information sought and a subject of overriding and compelling state interest. Id. at 546.
127.

H.Rept. 94-1754, 94th Cong., 6 (1976).
128.

Id. at 42-43.
129.

Id. at 47-48 (additional views of Representatives Spence, Teague, Hutchinson, and Flynt).
130.

The outtakes were portions of the CBS film clips that were not actually broadcast. The Subcommittee wanted to compare the outtakes with the tape of the broadcast to determine if improper editing techniques had been used.
131.

H.Rept. 92-349, 92d Cong. (1971). CBS's legal argument was based in part on the claim that Congress could not constitutionally legislate on the subject of editing techniques and, therefore, the subcommittee lacked a valid legislative purpose for the investigation. Id. at 9.
132.

See 117 Cong. Rec. 23922-26, 24603-59, 24720-53 (1971).
133.

Id. at 24731-32.
134.

Watkins v. United States, 354 U.S. 178, 188 (1957); see also McPhaul v. United States, 364 U.S. 372 (1960).
135.

A congressional subpoena may not be used in a mere "fishing expedition." See Hearst v. Black, 87 F.2d 68, 71 (D.C. Cir. 1936) (quoting Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 306 (1924) (stating that "[i]t is contrary to the first principles of justice to allow a search through all the records, relevant or irrelevant, in the hope that something will turn up.")); see also United States v. Groves, 188 F. Supp. 314 (W.D. Pa. 1937) (dicta); But see Eastland v. United States Servicemen's Fund, 421 U.S. 491, 509 (1975), (recognizing that an investigation may lead "up some 'blind alleys' and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.").
136.

McPhaul v. United States, 364 U.S. 372 (1960); see also Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 U.S. 1024 (1969).
137.

McPhaul, 364 U.S. at 832 (internal citations omitted).
138.

Shelton, 404 F.2d at 1299-1300; see also Leading Cases, supra note 34, at 49.
139.

McPhaul, 364 U.S. at 382.
140.

Nelson v. United States, 208 F.2d 505 (D.C. Cir. 1953), cert. denied, 346 U.S. 827 (1953).
141.

In United States v. McSurely, a court of appeals reversed contempt convictions where the subcommittee subpoenas were based on information "derived by the subcommittee through a previous unconstitutional search and seizure by [state] officials and the subcommittee's own investigator." United States v. McSurely, 473 F.2d 1178, 1194 (D.C. Cir. 1972). This decision was rendered in December, 1972. In a civil case brought by the criminal defendants, Alan and Margaret McSurely, against Senator McClellan and the subcommittee staff for alleged violations of their constitutional rights by the transportation and use of the seized documents, a federal district court in June, 1973, denied the defendants' motion for summary judgment. While the appeal from the district court decision in the civil case was pending before the court of appeals, the Supreme Court held, in Calandra v. United States, 414 U.S. 338 (1974), that a grand jury is not precluded by the Fourth Amendment's exclusionary rule from questioning a witness on the basis of evidence that had been illegally seized. A divided court of appeals subsequently held in the civil case, that under Calandra "a congressional committee has the right in its investigatory capacity to use the product of a past unlawful search and seizure." McSurely v. McClellan, 521 F.2d 1024, 1047 (D.C. Cir. 1975).

The decision of the three-judge panel in the civil case was vacated and on rehearing by the full District of Columbia Circuit, five judges determined that Calandra was applicable to the legislative sphere. Another five judges found it unnecessary to decide whether Calandra applies to committees, indicating that even if it does not apply to the legislative branch, the exclusionary rule may restrict a committee's use of unlawfully seized documents if it does not make mere "derivative use" of them but commits an independent Fourth Amendment violation in obtaining them. McSurely v. McClellan, 553 F.2d 1277, 1293-94, 1317-25 (D.C. Cir. 1976) (en banc). The Supreme Court granted certiorari in the case, 434 U.S. 888 (1977), but subsequently dismissed certiorari as improvidently granted, with no explanation for this disposition of the case. See McAdams v. McSurely, 438 U.S. 189 (1978). Jury verdicts were eventually returned against the Senate defendants, but were reversed in part on appeal. See McSurely v. McClellan, 753 F.2d 88 (D.C. Cir. 1985), cert. denied, 474 U.S. 1005 (1985).
142.

Watkins v. United States, 354 U.S. 178 (1957); Quinn v. United States, 349 U.S. 155 (1955).
143.

See McPhaul, 364 U.S. 372; see also McCormick, Evidence §120 (Cleary ed. 1984) (hereinafter McCormick).
144.

Hale v. Henkel, 201 U.S. 43 (1906).
145.

Bellis v. United States, 417 U.S. 85 (1974).
146.

See United States v. White, 322 U.S. 694 (1944).
147.

Bellis, 417 U.S. at 90; see also Rogers v. United States, 340 U.S. 367 (1951).
148.

Fisher v. United States, 425 U.S. 391, 409 (1976); Andresen v. Maryland, 427 U.S. 463 (1976). These cases concerned business records; there may be some protection available in the case of a subpoena for personal papers. See McCormick, supra note 143, at §§126, 127.
149.

United States v. Coe, 465 U.S. 605 (1984); Fisher, 425 U.S. 391; see also Curcio v. United States, 354 U.S. 118 (1957); McCormick, supra note 143, at §126.
150.

United States v. Jaffee, 98 F. Supp. 191, 193-94 (D.D.C. 1951); see also Simpson v. United States, 241 F.2d 222 (9th Cir. 1957) (privilege inapplicable to questions seeking basic identifying information, such as the witness's name and address).
151.

Although there is no case law on point, it seems unlikely that Miranda warnings are required. That requirement flows from judicial concern as to the validity of confessions evoked in an environment of a police station, isolated from public scrutiny, with the possible threat of physical and prosecutorial jeopardy; an environment clearly distinguishable from a congressional context. See Miranda v. Arizona, 384 U.S. 436 (1966).
152.

Quinn v. United States, 349 U.S. 155 (1955).
153.

Emspak v. United States, 349 U.S. 190 (1955); see also Leading Cases, supra note 34, at 63.
154.

Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
155.

Emspak, 349 U.S. at 195.

156.

Id.; see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
157.

See Brown v. United States, 356 US 148 (1958); Mitchell v. United States, 526 U.S. 314 (1999).
158.

But see Presser v United States, 284 F.2d 233 (D.C. Cir 1960) (suggesting that the Brown rule applies in congressional proceedings).
159.

18 U.S.C. §§6002, 6005.
160.

See "Congressional Immunity".
161.

The constitutionality of granting a witness only use immunity, rather than transactional immunity, was upheld in Kastigar v. United States, 406 U.S. 441 (1972). In United States v. Romano, 583 F.2d 1 (1st Cir. 1978), the defendant appealed from his conviction of several offenses on the ground, inter alia, that the prosecution's evidence had been derived, in part, from immunized testimony that he had given before a Senate subcommittee. Although the conviction was affirmed, the case illustrates the difficulty that the prosecutor may have in establishing that its evidence was not "tainted," but rather was derived from independent sources, especially in a case where a committee and the Justice Department cooperated on the investigation before immunity was granted. See Kastigar, 406 U.S. at 461-62.
162.

18 U.S.C. §6005(a) (2012).
163.

However, the Justice Department may waive the notice requirement. Application of the Senate Permanent Subcommittee on Investigations, 655 F.2d 1232, 1236 (D.C. Cir. 1980), cert. denied, 454 U.S. 1084 (1981).
164.

Id. at 1257.
165.

See In re McElreath, 248 F.2d 612 (D.C. Cir. 1957) (en banc).
166.

Application of the U.S. Senate Select Committee on Presidential Campaign Activities, 361 F. Supp. 1270 (D.D.C. 1973). In dicta, however, the court referred to the legislative history of the statutory procedure, which suggests that although a court lacks power to review the advisability of granting immunity, a court may consider the jurisdiction of Congress and the committee over the subject area and the relevance of the information that is sought to the committee's inquiry. See id. at 1278-79.
167.

Deutch v. United States, 367 U.S. 456, 467-68 (1961). As the court explained in that case, there is a separate statutory requirement of pertinency.
168.

Watkins v. United States, 354 U.S. 178, 214-15 (1957).
169.

Deutch, 367 U.S. at 467-68.
170.

United States v. Nixon, 418 U.S. 683, 705 (1974).

171.

See id. at 713.

172.

Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974)
173.

Id. at 730.
174.

See Judicial Watch v. Dept. of Justice, 365 F.3d 1108 (D.C. Cir. 2004) (FOIA request); In re: Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997) (grand jury subpoena) (hereinafter Espy).
175.

See Espy, 121 F.3d at 752; Judicial Watch, 365 F.3d at 1120-21.

176.

See Espy, 121 F.3d at 752-53; Judicial Watch, 365 F.3d at 1119-21.
177.

Espy, 121 F.3d at 752.

178.

Espy, 121 F.3d at 737. Espy involved documents relating to the President's appointment and removal power, which the court characterized as a "quintessential and non-delegable Presidential power." The court continued to say:

In many instances, presidential powers and responsibilities... can be exercised or performed without the President's direct involvement, pursuant to a presidential delegation of power or statutory framework. But the President himself must directly exercise the presidential power of appointment or removal. As a result, in this case there is assurance that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless are intimately connected to his presidential decisionmaking.

Id. (internal citations omitted). Therefore, while the court did not hold that the presidential communications privilege may only be applied to communications and documents relating to quintessential and non-delegable presidential powers, this may serve as a limit on the privilege.

179.

Id.

180.

Id.

181.

Id.

182.

See Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013). For more information on the investigation of Operation Fast and Furious, see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by [author name scrubbed] and [author name scrubbed].

183.

For a detail discussion of recent developments in this case, see CRS Report WSLG1109, Three Parties, Two Cases, One Set of Documents; Not a Fast and Furious Resolution, by [author name scrubbed] and [author name scrubbed].

184.

For more information on this litigation, see CRS Report RL34097, Congress's Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure, by [author name scrubbed] and [author name scrubbed].
185.

See In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that the court's earlier ruling on an attorney-client privilege claim was "not of constitutional dimensions, and is certainly not binding on the Congress of the United States.").
186.

In re Grand Jury Subpoena Duces Tecum, 112 F. 3d 910 (8th Cir. 1997), cert. denied sub. nom., Office of the President v. Office of the Independent Counsel, 521 U.S. 1105 (1997) (rejecting claims by the First Lady of attorney-client and work-product privilege with respect to notes taken by White House Counsel Office attorneys); In re Bruce R. Lindsey (Grand Jury Testimony), 158 F. 3d 1263 (D.C. Cir. 1998), cert. denied, 525 U.S. 996 (1998) (holding that a White House attorney may not invoke attorney-client privilege in response to a grand jury subpoena seeking information on possible commission of federal crimes); In re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997) (deciding that the deliberative process privilege is a common law agency privilege which can be overcome by a showing of need by an investigating body); In re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002) (holding that the attorney-client privilege is not applicable to communications between state government counsel and state office holder); But see In re Grand Jury Investigation, 399 F.3d 527 (2d Cir. 2005) (upholding a claim of attorney-client privilege with respect to communications between a former chief legal counsel to the Governor of Connecticut who was under grand jury investigation. It is worth noting that the Second Circuit recognized its apparent conflict with the afore-cited cases, however, the ruling is arguably distinguishable on its facts. See Kerri R. Blumenauer, Privileged or Not? How the Current Application of the Government Attorney-Client Privilege Leaves the Government Feeling Unprivileged, 75 Fordham L. Rev. 75 (2006)).
187.

McGrain v. Daugherty, 272 U.S. 135, 177 (1926); Watkins v. United States, 354 U.S. 178, 187 (1957); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 504 n.15 (1975).
188.

Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).
189.

Hearings, "International Uranium Cartel," Subcomm. on Oversight and Investigations, House Comm. on Interstate and Foreign Commerce, 95th Cong., Vol. 1, 123 (1977).
190.

Committees may also consider their statutory duty to engage in continuous oversight of the application, administration, and execution of laws that fall within their jurisdiction. See 2 U.S.C. §190d.

191.

See, e.g., Contempt of Congress Against Franklin L. Haney, H.Rept. 105-792, 105th Cong., 11-15 (1998); Proceedings Against John M. Quinn, David Watkins, and Matthew Moore (Pursuant to Title 2, United States Code, Sections 192 and 194), H.Rept. 104-598, 104th Cong., 40-54 (1996); Refusal of William H. Kennedy, III, To Produce Notes Subpoenaed by the Special Committee to Investigate Whitewater Development Corporation and Related Matters, S.Rept. 104-191, 104th Cong., 9-19 (1995); Proceedings Against Ralph Bernstein and Joseph Bernstein, H.Rept. 99-462, 99th Cong., 13, 14 (1986); Hearings, International Uranium Control, before the Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th Cong., 60, 123 (1977).
192.

See CRS Report 95-464, Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry, pp. 43-55 (out of print; available from the authors). See also Glenn A. Beard, Congress v. the Attorney-Client Privilege: A "Full and Frank Discussion," 35 Amer. Crim. L. Rev. 119, 122-27 (1997) ("[C]ongressional witnesses are not legally entitled to the protection of the attorney-client privilege, and investigating committees therefore have discretionary authority to respect or overrule such claims as they see fit."); Thomas Millett, The Applicability of Evidentiary Privileges for Confidential Communications Before Congress, 21 John Marshall L. Rev. 309 (1988).
193.

The Supreme Court has recognized that "only infrequently have witnesses ... [in congressional hearings] been afforded the procedural rights normally associated with an adjudicative proceeding." Hannah v. Larche, 363 U.S. 420, 425 (1960); see also United States v. Fort, 443 F. 2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971) (rejecting the contention that the constitutional right to cross-examine witnesses applied to a congressional investigation); In the Matter of Provident Life and Accident Co., E.D. Tenn., S.D., CIV-1-90-219, June 13, 1990 (noting that the court's earlier ruling on an attorney-client privilege claim was "not of constitutional dimensions, and is certainly not binding on the Congress of the United States.").
194.

Opinion No. 288, Compliance With Subpoena from Congressional Committee to Produce Lawyers' Files Containing Client Confidences or Secrets, Legal Ethics Committee, District of Columbia Bar, February 16, 1999 available at http://www.dcbar.org/for_lawyers/ethics/legal_ethics/opinions/opinion288.cfm (hereinafter D.C Ethics Committee Opinion).
195.

See H.Rept. 105-792, 105th Cong., 1-6, 7-8, 15-16 (1997).
196.

See H. Comm. on Commerce, Meeting on Portal Investigation (Authorization of Subpoenas; Receipt of Subpoenaed Documents and Consideration of Objections); and Contempt of Congress Proceedings Against Franklin L. Haney, H. Comm. on Commerce, Comm. Print 105-V, 105th Cong. (1998).
197.

D.C. Ethics Committee Opinion, supra note 194. This opinion interpreted the phrase "required by law" as used in Rule 1.6(d)(2)(A), which states that a lawyer may reveal client confidences or secrets only when expressly permitted by the D.C. Bar rules or when "required by law or court order."
198.

A direct suit to enjoin a committee from enforcing a subpoena has been foreclosed by the Supreme Court's decision in Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501 (1975), but that ruling does not appear to foreclose an action against a "third party," such as the client's attorney, to test the validity of the subpoena or the power of a committee to refuse to recognize the privilege. See, e.g., United States v. AT&T, 567 F. 2d 121 (D.C. Cir. 1977) (entertaining an action by the Justice Department to enjoin AT&T from complying with a subpoena to provide telephone records that might compromise national security matters).
199.

Fed. R. Evid. 501.
200.

See generally House Comm. on Energy & Commerce, Subcomm. on Oversight & Investigations, Attorney-Client Privilege: Memoranda Opinions of the American Law Division, Library of Congress, Comm. Print 98-I, 98th Cong. (1983) (hereinafter Attorney-Client Privilege Comm. Print). But see Moreland, supra note 34, at 265-67. It should be noted that courts have refused to grant claims of work-product immunity, in response to a grand jury subpoena, over documents prepared by the White House Counsel's Office in anticipation of possible congressional hearings. See, e.g., In re Grand Jury Subpoena Duces Tecum, 112 F.3d 907, 924-25 (8th Cir. 1997); In re Grand Jury Proceedings, 5 F. Supp. 2d 21, 39 (D.D.C. 1998).

201.

United States v. Fort, 443 F.2d 670 (D.C. Cir. 1970), cert. denied, 403 U.S. 932 (1971), (citing Hannah v. Larche, 363 U.S. 420 (1960)).
202.

U.S. Const. art. 1, §5, cl. 2.
203.

See generally Telford Taylor, Grand Inquest: The Story of Congressional Investigations 227-28 (1974).
204.

See Hamilton, supra note 124, at 244; see also S. Rept. No. 2, 84th Cong. (1955). Hamilton notes that John Dean, the former counsel to the President, testified before the Senate Watergate Committee after President Nixon had "waived any attorney-client privilege he might have had because of their relationship." Hamilton, supra note 124, at 244.

205.

Attorney-Client Privilege Comm. Print, supra note 200, at 27 (citing Hearings on an International Uranium Cartel before the Subcommittee on Oversight and Investigations, House Committee on Interstate and Foreign Commerce, 95th Cong., 60, 123 (1977)).
206.

26 U.S.C. §6103(f)(1). Returns are to be submitted to the requesting Committee in a manner that protects the privacy of the individual. In the event that information identifying, either directly or indirectly, any tax filer is requested, it may only be furnished to the committee "when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure." Id.

207.

In the case of other joint or special committees, a concurrent resolution is required. Id.

208.

Id. at §6103(f)(3).
209.

Id.
210.

"Intelligence activities" is defined to include "cover actions" and "financial intelligence activities," but is not further defined in law. 50 U.S.C. §3091(f). "Cover action" is also defined in statute. 50 U.S.C. §3093(e). "Intelligence activities" is defined by Executive Order 12333 (as amended) as "all activities that agencies within the Intelligence Community are authorized to conduct pursuant to this Order." Exec. Order 12333, §3.4(e), 46 Federal Register 59941 (December 4, 1981). Additionally, detailed definitions of intelligence activities and "intelligence-related activities" are contained in the Senate resolution establishing the Senate Select Committee on Intelligence and the House Rule establishing the House Permanent Select Committee on Intelligence (HPSCI). See S.Res. 400, 94th Cong., §14(a); House Rule X(11).
211.

This requirement includes reporting on "significant anticipated intelligence activity as required by this subchapter." 50 U.S.C. §3091(a).
212.

50 U.S.C. §3091(a).

213.

50 U.S.C. §§3092(a), 3093(b).

214.

See, e.g., F.T.C. v. Owens-Corning Fiberglass Corp., 626 F.2d 966, 970, 974 (D.C. Cir. 1980); Exxon Corp. v. F.T.C., 589 F.2d 582, 585-89 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979); Ashland Oil Co., Inc. v. F.T.C., 548 F.2d 977, 979 (D.C. Cir. 1976).
215.

Exxon Corp., 589 F.2d at 589; see also Owens-Corning Fiberglass Corp., 626 F.2d at 974; Ashland Oil, 548 F.2d at 979; Moon v. CIA, 514 F. Supp. 836, 849-51 (S.D.N.Y. 1981).

216.

See Doe v. McMillan, 412 U.S. 306 (1973); see also Owens-Corning Fiberglass Corp., 626 F.2d at 970. For more information on the Speech or Debate Clause, see CRS Report R42648, The Speech or Debate Clause: Constitutional Background and Recent Developments, by [author name scrubbed] and [author name scrubbed].

217.

18 U.S.C. §1905 (2006).
218.

See CNA Financial Corp. v. Donovan, 830 F.2d 1132, 1144-52 (D.C. Cir. 1987) (discussing, in depth, the legislative history of the Trade Secrets Act).
219.

U.S. Const. art. 1, §6, cl. 1.
220.

See 22 C.F.R. §92.54.
221.

28 U.S.C. §§1781, 1782.
222.

See U.S. Department of State, "Preparation of Letters Rogatory," available at http://travel.state.gov/content/travel/english/legal-considerations/judicial/obtaining-evidence/preparation-letters-rogatory.html ("Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country").
223.

Treaty with the United Kingdom on Mutual Legal Assistance on Criminal Matters, U.S.-U.K., S. Treaty Doc. 104-2 (1996).
224.

However, the U.S.-U.K. mutual assistance treaty does not expressly prohibit assistance requested outside the scope of the treaty. See id. at art. 17 ("Assistance and procedures set forth in this treaty shall not prevent either of the parties from granting assistance to the other party through the provisions of other internal agreements to which it is a party or through the provisions of its national laws).
225.

Id. at art. 19.
226.

Id.
227.

See, e.g., In re Letters of Request to Examine Witnesses from the Court of Queens Bench for Manitoba, 488 F.2d 511 (9th Cir. 1973) (denying assistance on ground that the entity issuing the subpoena was not a tribunal, despite the fact that the request was sent by the Chief Justice of the Court of Queen's Bench for Manitoba).
228.

Hilton v. Guyot, 159 U.S. 113, 162 (1895).
229.

See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 263 ("Section 1782 is a provision for assistance to tribunals abroad. It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here. Comparisons of that order can be fraught with danger.").
230.

28 U.S.C. §1782 (2006).
231.

See, e.g., In re Letters Rogatory Issued By Director of Inspection of Government of India, 285 F.2d 1017 (2d Cir. 1967) (denying judicial assistance for an Indian tax collection entity because the tax assessment process did not result in any adjudicative proceeding); In re Letters of Request to Examine Witnesses from the Court of Queens Bench for Manitoba, Canada, 488 F.2d 511 (9th Cir. 1973) (holding that assistance to the Canadian Commission of Inquiry was not contemplated by the statute because the body's purpose is to conduct investigations unrelated to judicial or quasi-judicial controversies).
232.

See John C. Grabow, Congressional Investigations: Law and Practice, §3.2(b) (1988) (noting a 1985 attempt by a Senate committee to serve a member of the Soviet Navy while on a Soviet freighter located temporarily in American waters, and a 1986 attempt by various House committees to serve Ferdinand Marcos, the exiled former president of the Philippines.) However, the author does not provide any supporting authority documenting these attempts or any explanation for why they were unsuccessful.
233.

See generally George W. Van Cleve & Charles Tiefer, Navigating the Shoals of "Use" Immunity and Secret International Enterprises in Major Congressional Investigations: Lessons of the Iran-Contra Affair, 55 Mo. L. Rev. 43 (1990) (hereinafter Van Cleve & Tiefer).
234.

See 28 U.S.C. §1782.
235.

Senate Select Comm. on Secret Military Assistance to Iran and the Nicaraguan Opposition v. Secord, 664 F. Supp. 562, 563 (D.D.C. 1987).
236.

Id.
237.

Id. at 564-66. In 1988 the Supreme Court adopted the Senate's argument in a different case, holding that such a directive is not testimonial in nature. See Doe v. United States, 487 U.S. 201 (1988).
238.

This tool contrasts with a letter rogatory, which goes to a foreign court, and with domestic deposition practice, which occurs on notice without going to or from any court.
239.

Id. at 79-80.
240.

5 U.S.C. §552a. The term "record" is defined as "any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.... " 5 U.S.C. §552(a)(4). The phrase "system of records" means "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.... " 5 U.S.C. §552(a)(5).
241.

See, e.g., Watkins v. United States, 354 U.S. 178, 200 n.33 (1957); McGrain v. Daugherty, 273 U.S. 135 (1927).
242.

5 U.S.C. §552a(b)(9). The House Report on the act explained that the congressional exemption "relates to personal information needed by the Congress and its committees and subcommittees. Occasionally, it is necessary to inquire into such subjects for legislative and investigative reasons." See H.Rept. 93-1416, 93rd Cong., 13 (1974). The legislative history of the act is sketched in Devine v. United States, 202 F.3d 547, 552 (2nd Cir. 2000).
243.

OMB is required to prescribe guidelines and regulations for the use of agencies in implementing the act. See 5 U.S.C. §552a(v).
244.

Office of Management and Budget, Privacy Act Guidelines, 40 Federal Register 28949, 28955 (1975).
245.

Swenson v. United States Postal Service, 890 F.2d 1075, 1077 (9th Cir. 1989); accord Williams v. Stovall, 1993 WL 431149 (D.C. Cir. October 14, 1993) (per curiam) (stating that the "Privacy Act's exception for information disclosed to Congress or its committees does not expressly provide for disclosure to individual members of Congress"); cf. Exxon Corp. v. FTC, 589 F.2d 582, 592-94 (D.C. Cir. 1978), cert. denied, 441 U.S. 943 (1979). On remand, the district court in Swenson held that the defendant had violated the Privacy Act by disclosing private facts about plaintiff's status as a Postal Service employee to two Members of Congress who contacted the Service following allegations by the plaintiff that the Service had undercounted certain routes. See 1994 U.S. Dist. LEXIS 16524 (E.D. Cal. March 10, 1994).
246.

Devine, 202 F.3d at 549, 551 (letter from agency Inspector General, concerning investigation, to chairman and member of subcommittee with jurisdiction over subject of letter, was within scope of congressional exemption).
247.

5 U.S.C. §552.

248.

5 U.S.C. §552(b).
249.

5 U.S.C. §552(a).
250.

5 U.S.C. §552(f)(1).
251.

See, e.g., United We Stand Am. v. IRS, 359 F.3d 595, 597 (D.C. Cir. 2004) (stating that "The Freedom of Information Act does not cover congressional documents."); Dow Jones & Co. v. DOJ, 917 F.2d 571, 574 (D.C. Cir. 1990) (holding that Congress is not an agency for any purpose under FOIA); Dunnington v. DOD, No. 06-0925, 2007 WL 60902, at *1 (D.D.C. January 8, 2007) (ruling that Senate and House are not agencies under FOIA).
252.

5 U.S. C. §552(d).
253.

613 F.2d 1151 (D.C. Cir. 1979).
254.

Id. at 1155-56, 1158.
255.

See, e.g., McGrain v. Daugherty, 273 U.S. 135 (1927). When a committee seeks information from the executive, it may do so by means of an informal request from committee staff, a letter signed by the committee chair, or by exercise of the subpoena authority, which is vested in standing committees by both bodies. House Rule XI, cl. 2(m); Senate Rule XXVI.
256.

H. Rept. 1497, 89th Cong., 11-12 (1966).
257.

See Department of Justice, Office of Information and Privacy, Freedom of Information Act Guide, 41-42, (Spring 2010), available at http://www.justice.gov/oip/foia_guide09/procedural-requirements.pdf (stating that "individual Members of Congress possess the same rights of access as 'any person'").
258.

See In re Report & Recommendation of Grand Jury, 370 F. Supp. 1219, 1229 (D.D.C. 1974).
259.

United States v. Saks & Co., 426 F. Supp. 812, 814 (S.D.N.Y. 1976).
260.

In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1302-03 (D. Fla. 1977) (citing United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960); United States v. Saks & Co., 426 F. Supp. at 815; In re Senate Banking Committee Hearings, 19 F.R.D. 410, 412-13 (N.D.Ill.1956)).
261.

United States v. Sells Engineering, Inc., 463 U.S. 418, 443 (1983); see also Right of Party in Civil Action to Obtain Disclosure, Under Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure, of Matters Occurring Before Grand Jury, 71 A.L.R. Fed. 10.
262.

Douglas Oil Co., 441 U.S. at 222; see also United States v. Moussaoui, 483 F.3d 220, 235 (4th Cir. 2007); McAninch v. Wintermute, 491 F.3d 759, 767 (8th Cir. 2007); United States v. Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004); United States v. Campbell, 324 F.3d 497, 498-99 (7th Cir. 2003); In re Special Grand Jury 89-2, 143 F.3d 565, 569-70 (10th Cir. 1998); In re Grand Jury Proceedings (Ballas), 62 F.3d 1175, 1179 (9th Cir. 1995); United States v. Miramontex, 995 F.2d 56, 59 (5th Cir. 1993).
263.

In re Grand Jury 95-1, 118 F.3d 1433, 1437 (10th Cir. 1997); see also In re Grand Jury Investigation (Missouri), 55 F.3d 350, 354-55 (8th Cir. 1995); Cullen v. Margiotta, 811 F.2d 698, 715 (2d Cir. 1987); Hernly v. United States, 832 F.2d 980, 883-85 (7th Cir. 1987); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d 1293, 1302 (4th Cir. 1986). The need to shield the grand jury's activities from public display is less compelling once it has completed its inquiries and been discharged, especially if the resulting criminal proceedings have also been concluded. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 234 (1940); United States v. Blackwell, 954 F. Supp. 944, 966 (D.N.J. 1997). See also In re Grand Jury Investigation (Missouri), 55 F.3d at 354; In re Grand Jury Proceeding Relative to Perl, 838 F.2d 304, 307 (8th Cir. 1988); In re Grand Jury Proceedings GJ-76-4 & GJ-75-3, 800 F.2d at 1301; In re Shopping Cart Antitrust Litigation, 95 F.R.D. 309, 312-13 (S.D.N.Y. 1982). Of course, there must still be a counterbalancing demonstration of need, a requirement that becomes more difficult if the grand jury witnesses whose testimony is to be disclosed still run the risk of retaliation. United States v. Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004); Cullen, 811 F.2d 698. See also Hernly, 832 F.2d at 985; In re Grand Jury Testimony, 832 F.2d 60, 64 (5th Cir. 1987); In re Grand Jury Investigation (Missouri), 55 F.3d at 355. Moreover, the courts seem responsive to requests to disclose matters occurring before the grand jury for the purpose of resolving some specific inconsistency in the testimony of a witness, or to refresh a witness's recollection during the course of a trial. Douglas Oil, 441 U.S. at 222 n.12; see also United States v. Rockwell International Corp., 173 F.3d 757, 759 (10th Cir. 1999); In re Grand Jury, 832 F.2d at 63; Lucas v. Turner, 725 F.2d 1095, 1105 (7th Cir. 1984); United States v. Fischbach and Moore, Inc., 776 F.2d 839, 845 (9th Cir. 1985). Under much the same logic, a court may afford a grand jury witness access to his or her earlier testimony prior to a subsequent appearance. In re Grand Jury, 490 F.3d 978, 986-90 (D.C. Cir. 2007).
264.

In re Senate Banking Committee Hearings, 19 F.R.D. 410 (N.D. Ill. 1956).
265.

Id. at 412.
266.

441 F. Supp. 1299, 1302-03 (D. Fla. 1977).
267.

Id. at 1307 (stating that "[t]here is no question that Chairman Moss and the Subcommittee have demonstrated their constitutionally independent legal right to the documents that they seek for their legitimate legislative activity.").
268.

Id.
269.

510 F. Supp. 112 (D.D.C. 1981).
270.

Id. at 114.
271.

Id. at 115 (citing S.E.C. v. Dresser Indus., 628 F.2d 1368, 1382 (D.C. Cir. 1980), cert. denied, 449 U.S. 993 (1980); United States v. Stanford, 589 F.2d 285, 291 n.6 (7th Cir. 1978), cert. denied, 440 U.S. 983 (1980); Davis v. Romney, 55 F.R.D. 337, 341-42 (E.D. Pa. 1972)).
272.

DOJ's views of this issue were most famously articulated by then Attorney General Robert Jackson in 1941. 40 Op. Atty. Gen. 45 (1941). The opinion argued that "congressional or public access to [internal DOJ documents] would not be in the public interest" because it would "seriously prejudice law enforcement." Id. at 46-47.
273.

See Letter to Hon. John D. Dingell Chairman, House Subcommittee on Oversight and Investigation, Committee on Energy and Commerce, from Attorney General William French Smith, dated November 30, 1982, reprinted in H.Rept. 97-968 at 37-38 (hereinafter Dingell Letter).
274.

Id. (quoting former Deputy Assistant General Thomas E. Kauper). This policy is said to be "premised in part on the fact that the Constitution vests in the President and his subordinates the responsibility to 'take Care that the Laws be faithfully executed.'" Id.

275.

Investigation Into Allegations of Justice Department Misconduct In New England-Volume I, Hearings Before the H. Comm. on Government Reform, 107th Cong. 520-56, 562-604 (May 3, December 13, 2001; February 6, 2002).
276.

See CRS Report R42811, Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice, by [author name scrubbed] and [author name scrubbed] at 8-10.

277.

Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 Hous. L. Rev. 1, 9 (1988).
278.

Exec. Order No. 13526, 75 Federal Register 707 (January 5, 2010).
279.

Id. at §1.3. The unauthorized disclosure of foreign government information is presumed to damage national security. Id. at §1.1(b).
280.

Id. at §1.4. The areas are as follows: military plans, weapons systems, or operations; foreign government information; intelligence activities, intelligence sources/methods, cryptology; foreign relations or foreign activities of the United States, including confidential sources; scientific, technological, or economic matters relating to national security; federal programs for safeguarding nuclear materials or facilities; vulnerabilities or capabilities of national security systems; or weapons of mass destruction. Id. In addition, when classified information that is incorporated, paraphrased, restated, or generated in a new form, that new form must be classified at the same level as the original. Id. at §§2.1-2.2.
281.

Id. at §1.2.
282.

Id. Classifying authorities are specifically prohibited from classifying information for reasons other than protecting national security, such as to conceal violations of law or avoid embarrassment. Id. at §1.7(a).
283.

Id. at §1.5.
284.

Exec. Order No. 13526 at §1.5(c).
285.

Id. at §§4.1, 6.1(dd). The need-to-know requirement can be waived, however, for former Presidents and Vice Presidents, historical researchers, and former policy-making officials who were appointed by the President or Vice President. Id. at §4.4.
286.

Id. at §4.1.

287.

Id. at §4.2.
288.

Christopher H. Schroeder, Access to Classified Information, 20 Op. Off. Legal Counsel 402, *11 (1996).
289.

See, e.g., id.
290.

Id. at *13.

291.

See, e.g., S.Rept. 94-755, Books 1-3, 94th Cong. (1976); Intelligence Activities, S. Res. 21: Hearings Before the Senate Select Comm. to Study Governmental Operations with Respect to Intelligence Activities, vols. 1-6, 94th Cong. (1975); FBI Oversight: Hearings Before the Subcomm. on Civil and Constitutional Rights of the House Comm. of the Judiciary, parts 1-3, 94th Cong. (1975-1976), parts 1-2, 95th Cong. (1978).
292.

United States v. AT&T, 551 F.2d 384, 385 (D.C. Cir. 1976) (hereinafter AT&T I).
293.

Id. at 386. The precise details of the delicate negotiations between the DOJ and the Subcommittee are explained by the court, and, therefore, will not be recounted here. See id. at 386-88.
294.

Id. at 388.
295.

United States v. AT&T, 419 F. Supp. 454, 458-61 (D.D.C. 1976).
296.

See AT&T I, 551 F.2d 384. The appeals court first disposed of several prudential concerns, specifically considering the doctrines of mootness, political question, and standing, determining that none of them prevented the court from reaching the merits of the injunction. See AT&T I, 551 F.3d at 390-91.
297.

U.S. Const. art. 1, §6, cl. 1.
298.

421 U.S. 491 (1975).
299.

418 U.S. 683 (1974).
300.

Id. at 392 (citing United States v. Nixon, 418 U.S. 683, 706 (1974)).
301.

Id. (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936); Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103 (1948)).
302.

Rather, it remanded the case to the district court to modify the injunction to exclude information for which no claim of national security had been made. Id. at 395 (stating that "[w]e direct the District Court to modify the injunction to exclude request letters pertaining to taps classified by the FBI as domestic, since there was no contention by the Executive, nor finding by the District Court, of undue risk to the national security from transmission of these letters to the Subcommittee.").
303.

Id.
304.

See United States v. AT&T, 567 F.2d 121, 124-25 (D.C. Cir. 1977) (detailing the extensive negotiations between the DOJ and the Subcommittee since the court last heard from the parties) (hereinafter AT&T II). Earlier negotiations focused on access to unredacted DOJ memoranda.

305.

Id. at 128.
306.

AT&T II, 567 F.2d at 129 (citing Barenblatt v. United States, 360 U.S. 109, 111-12 (1959); Eastland, 421 U.S. 491, 513 (1975)).

307.

Id. at 131-32.
308.

Id.
309.

Id. at 132.
310.

See generally CRS Report R42648, The Speech or Debate Clause: Constitutional Background and Recent Developments, by [author name scrubbed] and [author name scrubbed].

311.

49 U.S.C. §114(r)(1); see also CRS Report RL33670, Protection of Security-Related Information, by [author name scrubbed] and [author name scrubbed].
312.

49 U.S.C. §114(r)(2).

313.

49 C.F.R. Part 1520.

314.

See 49 C.F.R. §1520.7 (providing 13 specific categories of "covered persons").
315.

49 C.F.R. §1520.15(c).
316.

Department of Homeland Security, Management Directive System MD No. 11042.1, Safeguarding Sensitive but Unclassified (For Official Use Only) Information (2005).
317.

Id. at ¶ 4.
318.

Id. at ¶ 6(a)(4).
319.

Id. at ¶ 6(h)(6).
320.

For example, in the House of Representatives, whenever a hearing is conducted on any measure or matter, the minority may, upon the written request of a majority of the minority members to the chairman before the completion of the hearing, call witnesses selected by the minority, and presumably request documents. House Rule XI 2(j)(1); see also House Banking Committee Rule IV(4)
321.

Ashland Oil Co., Inc. v. FTC, 548 F. 2d 977, 979-80 (D.C. Cir. 1976), affirming 409 F. Supp. 297 (D.D. C. 1976); see also Exxon v. FTC, 589 F.2d 582, 592-93 (D.C. Cir. 1978) (acknowledging that the "principle is important that disclosure of information can only be compelled by authority of Congress, its committees and subcommittees, not solely by individual members ... "); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 791 (5th Cir. 1979) (refusing to permit two Congressmen from intervening in private litigation because they "failed to obtain a House Resolution or any similar authority before they sought to intervene.")
322.

860 F. Supp. 868 (D.D.C. 1994).
323.

Id. at 874-76.
324.

Id.

325.

See CRS Report RL30850, Minority Rights and Senate Procedures, by [author name scrubbed].
326.

Senate Rules XIX and XXII.
327.

Id. at 876 n.7. 5 U.S.C. §2954 provides: "An Executive agency, on request of the Committee on [Oversight and] Government [Reform] of the House of Representatives, or of any seven members thereof, or on request of the Committee on Government Operations of the Senate, or any five members thereof, shall submit any information requested of it relating to any matter within the jurisdiction of the committee."
328.

The text of the statute refers to the House Committee on Government Operations, a predecessor to the House Committee on Oversight and Government Reform, and the Senate Committee on Governmental Affairs, a predecessor to the Senate Committee on Homeland Security and Governmental Affairs.

329.

Act of May, 29, 1928 at §2, 45 Stat. 996.
330.

H.Rpt. 1757, 70th Cong. (1928); S.Rpt. 1320, 70th Cong. (1928). A study of the Bureau of Efficiency had recommended their elimination.

331.

S.Rpt. 1320, 70th Cong., at 4.

332.

H.Rpt. 1757, 70th Cong., at 258; see also 69 Cong. Rec. 9413-17, 10613-16 (1928) (House and Senate floor debates).
333.

In codifying Title 5 in 1966, Congress made it clear that it was effecting no substantive changes in existing laws: "The legislative purpose in enacting sections 1-6 of this act is to restate, without substantive change, the laws replaced by those sections on the effective date of this Act." P.L. 89-544, §7(a).
334.

Waxman, et al. v. Evans, 2002 U.S. Dist. LEXIS 25975 (C.D. Cali. 2001).

335.

Additionally, although resort to the provision's legislative history is unnecessary when the text is clear, the plaintiffs also argued that the legislative history was supportive.
336.

See Carter v. U.S. Dept. of Commerce, 307 F.3d 1084 (9th Cir. 2002).
337.

Waxman v. Evans, 52 Fed. Appx. 84, 2002 US App. LEXIS 25306 (9th Cir. 2002). On motion of the plaintiffs, the court of appeals modified this order on January 9, 2003, striking its reversal of the district court's ruling, but leaving in effect its order to vacate and dismiss.
338.

No. CV-04-3467 MMM (Manx) (C.D. Calif., May 17, 2004).
339.

5 U.S.C. §7211.
340.

521 U.S. 811 (1997).
341.

Id. at 824-26. See CRS Report R42454, Congressional Participation in Article III Courts: Standing to Sue, by [author name scrubbed] and [author name scrubbed].
342.

Lee H. Hamilton, "Constituent Service and Representation," The Public Manager, summer 1992, p. 12.
343.

John R. Johannes, "Constituency Service," in Donald Bacon, et al., eds., The Encyclopedia of the United States Congress (New York: Simon and Schuster, 1995), p. 544.
344.

"Oversight Information Sources and Consultant Services" for information on the capabilities of the Congressional Research Service (CRS), Government Accountability Office (GAO), and Congressional Budget Office (CBO).

345.

For a detailed discussion, see CRS Report IF10023, The Congressional Review Act (CRA) , by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

346.

Two federal government websites resulted from the enactment of FFATA. USAspending.gov, at http://www.usaspending.gov/, includes spending data for contracts, grants, direct payments, insurance, and loans/guarantees. The FFATA Search Portal, at http://www.ffata.org/ffata/, contains information about contracts and grants.
347.

Three other inspector general posts (in the armed forces departments) are recognized in public law: Air Force (10 U.S.C. §8020), Army (10 U.S.C. §3020), and Navy (10 U.S.C. §5020). These offices, however, are not examined here, because they have a significantly different heritage; set of authorities; operational structure and organization; and degree of independence.
348.

5 U.S.C. (IG Act) Appendix.

349.

P.L. 95-452. Two IGs whose origins pre-dated the IG Act served as models; in 1976, in the Department of Health, Education, and Welfare, now Health and Human Services (P.L. 94-505); and in 1977, in the then-new Department of Energy (P.L. 95-91). The IG Act of 1978, as amended, establishes offices of inspectors general in many federal agencies as well as defines the IG as the head of each of these offices. The act assigns to the IG specific duties and authorities, including the authority "to select, appoint, and employ such officers and employees as may be necessary for carrying out the functions, powers, and duties of the Office." (5 U.S.C. (IG Act) Appendix §6(a)(7)).
350.

P.L. 100-504.
351.

P.L. 110-409.
352.

5 U.S.C. (IG Act) Appendix §§2-4 and 8G(g)(1). The Inspector General of the Intelligence Community (IC), created by the Intelligence Authorization Act for Fiscal Year 2010 (P.L. 111-259, §405), has express cross-agency jurisdiction; this enactment recognizes the continued authority of the existing statutory inspectors general over IC components. The same law (P.L. 111-259, §431) created inspector general posts in four Defense Department agencies, identified as "designated federal entities" under the IG Act: the Defense Intelligence Agency, National Geospatial-Intelligence Agency, National Reconnaissance Office, and National Security Agency. The Inspector General of the Department of State and Broadcasting Board of Governors has jurisdiction over the Department of State and the Broadcasting Board of Governors (recognizing the Broadcasting Board of Governors as a separate organization outside the State Department; P.L. 105-277, Division G, Title XIII, Chapter 3, §1322(a)(3); 112 Stat. 2681-777 and 2681-778). In 2010, the Inspector General of the Board of Governors for the Federal Reserve System was given jurisdiction over a new organization—the Bureau of Consumer Financial Protection, which was established as an "independent bureau" in the Federal Reserve System by the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203, §1011). To reflect this expanded coverage, the IG was retitled the Inspector General of the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection (P.L. 111-203, §1081(1)-(2)). Most recently, P.L. 113-6, enacted on March 26, 2013, requires, among other things, the Government Accountability Office (GAO) IG to concurrently serve as the IG for the Commission on Civil Rights (P.L. 113-6; 127 Stat. 266).
353.

For instance, the inspectors general of federal banking agencies and of the Federal Reserve System had been given review and reporting mandates in separate legislation (12 U.S.C. §1831o(k) and 12 U.S.C. §1790d(j), respectively), which were modified in 2010 by the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203, §§987(a) and 988(a)).
354.

OIGs may follow additional regulations, policies, or standards in addition to the IG Act. For example, the Council of the Inspectors General on Integrity and Efficiency maintains "Quality Standards for Inspection and Evaluation," which all OIG employees are required to follow when conducting inspections or evaluations. Available at http://www.ignet.gov/pande/standards/iestds12r.pdf.
355.

Some now-defunct statutory IGs have been abolished or transferred either when their parent agency met the same fate or when superseded by another inspector general office. For example, the Office of Inspector General in the Office of the Director of National Intelligence (DNI)—which operated under the full discretionary authority of the DNI (P.L. 108-458)—was supplanted by the Inspector General of the IC; the new IC IG post was established by the Intelligence Authorization Act of 2010 (P.L. 111-259, §405) with substantially broader authority, jurisdiction, and independence than the previous IG.
356.

Nine other operational IGs have been established by and are governed by statutes other than the IG Act: the Inspector General in the Central Intelligence Agency (CIA), the Inspector General of the Intelligence Community within the Office of the Director of National Intelligence (ODNI) with cross-agency jurisdiction, the Inspector General of the Architect of the Capitol, the Inspector General for the Government Accountability Office, the Inspector General of the Government Printing Office, the Inspector General of the Library of Congress, the Special Inspector General for Afghanistan Reconstruction, the Special Inspector General for the Troubled Asset Relief Program, and the Inspector General for the U.S. Capitol Police ...

357.

5 U.S.C. (IG Act) Appendix §2. For a listing of IGs in federal establishments, see U.S. Government Accountability Office, Inspectors General: Reporting on Independence, Effectiveness, and Expertise, GAO-11-770, September 2011, p. 21, at http://www.gao.gov/assets/330/323642.pdf.

358.

For a listing of IGs in DFEs, see U.S. Government Accountability Office, Inspectors General: Reporting on Independence, Effectiveness, and Expertise, p. 22.
359.

A third, temporary special IG, the Special Inspector General for Iraq Reconstruction (SIGIR), was established by the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, as amended (P.L. 108-106). SIGIR was abolished in October 2013. SIGIR's final report is available from the IG's archived website here: http://cybercemetery.unt.edu/archive/sigir/20131001092420/http://www.sigir.mil/files/quarterlyreports/September2013/Report_-_September_2013.pdf#view=fit.
360.

The Troubled Asset Relief Program investment authority expired on October 3, 2010. The termination of that authority did not affect the Treasury Department's ability to administer existing troubled asset purchases and guarantees and its ability to expend TARP funds for obligations entered into before the closing date. Consequently, SIGTARP's oversight mandate did not end. Rather, the special inspector general is authorized to carry out the office's duties until the Government has sold or transferred all assets and terminated all insurance contracts acquired under TARP. See SIGTARP, Quarterly Report to Congress, July 25, 2012, p. 15.

361.

IGs not covered by the IG Act generally have similar or identical purposes to those that are governed by it, although some IG missions may vary.
362.

P.L. 111-203, §§989E(a)-989E(b).
363.

5 U.S.C. (IG Act) Appendix §§6(a), 6(e), and 7; 5 U.S.C. §4512. IGs not explicitly covered by the IG Act may have similar or identical authorities, although some IGs may have additional authorities or be prohibited from exercising the authorities listed here.

364.

5 U.S.C. (IG Act) Appendix §8G(b) and §9(a)(2). One rationale for this proscription is that it would be difficult, if not impossible, for IGs to audit or investigate programs and operations impartially and objectively if they were directly involved in carrying them out.
365.

5 U.S.C. (IG Act) Appendix §4(d).
366.

5 U.S.C. (IG Act) Appendix §5(a), (b).
367.

5 U.S.C. (IG Act) Appendix §5(c).
368.

5 U.S.C. (IG Act) Appendix §5(d). IGs are to keep the agency head and Congress "fully and currently informed" by means of the required reports and "otherwise." (5 U.S.C. (IG Act) Appendix. §4(a)(5)).
369.

5 U.S.C. (IG Act) Appendix §§6(a)(4) and 6(e). Twenty-five federal IG offices are explicitly provided law enforcement authority by the IG Act. The act also provides the Attorney General the authority to vest IG offices with law enforcement authority. Additionally, five IG offices are provided law enforcement authority by statutes other than the IG Act. For more information on IGs and law enforcement authority, see CRS Report R43722, Offices of Inspectors General and Law Enforcement Authority: In Brief, by [author name scrubbed].
370.

Pursuant to the IG Act, the heads of only six agencies—the Departments of Defense, Homeland Security, Justice, and Treasury, plus the U.S. Postal Service and Federal Reserve Board—may prevent or halt the IG from initiating, carrying out, or completing an audit or investigation, or issuing a subpoena, and then only for certain reasons: to preserve national security interests or to protect ongoing criminal investigations, among a few others. (U.S.C. App. §§8, 8D(a), 8E(a), 8G(f), 8G(g)(3), and 8I(a)). When exercising this power, the IG Act generally provides for congressional notification of the exercise of such authority, either via the agency head or the inspector general, who must transmit an explanatory statement for such action to specified congressional committees within 30 days. ( 5 U.S.C. (IG Act) Appendix. §§8(b)(3)-8(b)(4), which states that the Secretary of Defense must "submit a statement concerning" the exercise of such power to various congressional committees within 30 days and must also submit a "statement of the reasons for the exercise of power" to the congressional committees within an additional 30 days after the submission of the first statement. See also 5 U.S.C. (IG Act) Appendix. §8E(a)(2), which requires the Attorney General to notify the IG in writing of the exercise of such power and mandating that the IG transmit a copy of such notice to certain congressional committees).
371.

5 U.S.C. (IG Act) Appendix §§3(a), 8G(d).
372.

31 U.S.C. §1105(a)(25). The IGs in the CIA and of the Intelligence Community have similar safeguards for their budget accounts (50 U.S.C. §403(q)(17)(f) and 50 U.S.C. §. 403-3H(m), respectively).
373.

The federal IG council, known as the Council on Inspectors General of the Inspectors General for Integrity and Efficiency (CIGIE), will be discussed below in greater detail.
374.

5 U.S.C. (IG Act) Appendix §6(f)(1)-(3).
375.

50 U.S.C. §403q(17)(f) and 50 U.S.C. §403-3(n), respectively.
376.

5 U.S.C. (IG Act) Appendix §§3(a) and 8G(c). The CIA IG and the IC IG, who operate under different statutes, are to be selected under these criteria as well as prior experience in the field of foreign intelligence or national security and in compliance with the relevant security standards (50 U.S.C. §403(q)(b) and §403-3H(c), respectively, for the CIA IG and the IC IG).
377.

5 U.S.C. (IG Act) Appendix §3. When exercising removal authority, the President must communicate the reasons to Congress in writing 30 days prior to the scheduled removal date. This advance notice allows the inspector general, Congress, or other interested parties to examine and possibly object to the planned removal (5 U.S.C. (IG Act) Appendix. §3(b) for PAS IGs under the IG Act; 50 U.S.C. §403(q)(b) for the IG in the CIA; and 50 U.S.C. §403-3(H)(c)(4)) for the IG of the Intelligence Community).
378.

5 U.S.C. (IG Act) Appendix §8G(c) and (e). Differences, however, arise over who might be considered to be the "head of the agency" in a DFE. The agency head may be: an individual serving as the administrator or director or as spelled out in law (e.g., the Archivist of the United States in the National Archives and Records Administration), the chairperson of a board or commission, a full board or council as specified in law (e.g., the National Council on the Arts in the National Endowment of the Arts), or a certain super-majority of a governing board. (5 U.S.C. (IG Act) Appendix. §§8G(f)(1)-(2) and (4)). In the United States Postal Service (USPS), for instance, the governors appoint the inspector general.
379.

5 U.S.C. (IG Act) Appendix §8G(e)(1).
380.

5 U.S.C. (IG Act) Appendix §11.
381.

5 U.S.C. (IG Act) Appendix §11(c)(E).
382.

5 U.S.C. (IG Act) Appendix §11(b)(1).
383.

5 U.S.C. (IG Act) Appendix §11(b)(2).
384.

P.L. 111-203, §989E.
385.

P.L. 111-259, §405; 50 U.S.C. §403-3h(h).

386.

Office of Inspector General, Department of Defense, Defense Council on Integrity and Efficiency: Charter, at http://www.dodig.mil/dcie.html.
387.

5 U.S.C. (IG Act) Appendix §11(d)(1).
388.

5 U.S.C. (IG Act) Appendix §11(d)(2).
389.

A full description of the Office of Senate Legal Counsel and its work may be found in Floyd M. Riddick and Alan S. Frumin, Riddick's Senate Procedure, S.Doc. 28, 101st Cong., 2nd sess. 1236 (1992). See Charles Tiefer, The Senate and House Counsel Offices: Dilemmas of Representing in Court the Institutional Congressional Client, Law and Contemporary Problems, vol. 61: no. 2, spring 1998:48-63 (providing a more recent discussion of the history, development and work of both the Senate and House counsels' offices).
390.

P.L. 95-520, §§701 et seq., 92 Stat. 1824, 1875 (1978), codified principally in 2 U.S.C. §§288, et seq.
391.

S.Rept. 95-170, 95th Cong., 2nd sess. 84 (1978).
392.

2 U.S.C. §288(a) and (b), 288a.
393.

In addition, the office is called upon to defend the Senate, its committees, officers and employees in civil litigation relating to their official responsibilities or when they have been subpoenaed to testify or to produce Senate records; and to appear for the Senate when it intervenes or appears as amicus curiae in a lawsuit to protect the powers or responsibilities of Congress.
394.

2 U.S.C. §288b(d)(2), 288f.
395.

28 U.S.C. §1365.
396.

See S.Rept. 101-98, 101st Cong., 1st sess. (1989).
397.

See Senate Select Committee on Ethics v. Packwood, 845 F. Supp. 17 (D.D.C. 1994), petition for stay pending appeal denied, 510 U.S. 1319 (1994).
398.

2 U.S.C. §288d and 28 U.S.C. §1365.
399.

2 U.S.C. §288 d(c).
400.

See 28 U.S.C. §1365 (a).
401.

Id.
402.

2 U.S.C. §288g(a)(5) and (6).
403.

2 U.S. 288g(c).
404.

See S.Rept. 96-1015, 96th Cong., 2nd sess. (1980).
405.

See S.Rept. 97-682, 97th Cong., 2nd sess. (1982).
406.

See S.Rept. 99-812, 99th Cong., 2nd sess. (1986).
407.

See S.Rept. 101-164, 101st Cong., 1st sess. (1989).
408.

See S.Rept. 101-156, 101st Cong., 1st sess. (1989).
409.

See S.Rept. 111-347, 111th Cong., 2nd sess. (2010).
410.

See H. Res. 5, §11, 139 Cong. Rec. H5 (daily ed. January 5, 1993).
411.

House Rule II(8) of the Rules of the 108th Congress.
412.

Id.
413.

See, e.g., Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301 (2004); Raines v. Byrd, 521 U.S. 811 (1997); Beverly Enterprises, Inc. v. Trump, 182 F.3d 183 (3d Cir. 1999); United States v. McDade, 28 F.3d 283 (3d Cir. 1994); Cano v. Davis, No. 01-8477 (C.D. Cal. March 28, 2002) (unpublished order granting motions to quash subpoenas to Members).
414.

See, e.g., Department of Commerce v. U.S. House of Representatives, 525 U.S. 316 (1999) (litigation in which the General Counsel was authorized by statute, P.L. 105-119, §209(b) (1997), to represent the House in a challenge to the legality of the Department of Commerce's plan to use statistical sampling in the 2000 census).
415.

See, e.g., Adams v. Clinton, 90 F. Supp. 2d 35, aff'd sub nom. Alexander v. Mineta, 531 U.S. 940, 941 (2000); Schaffer v. Clinton, 240 F.3d 878 (10th Cir. 2001); Skaggs v. Carle, 110 F.3d 831 (D.C. Cir. 1997); Newdow v. Eagen, No. 02-01704 (D.D.C. filed March 24, 2004).
416.

See, e.g., H.Rept. 105-797, In the Matter of Representative Jay Kim, Committee on Standards of Official Conduct, 105th Cong., 2nd sess. 84-85 (October 8, 1998).
417.

See, e.g., Hearing, "The Attorney General's Refusal to Provide Congressional Access to 'Privileged' Inslaw Documents," before the Subcommittee on Economic and Commercial Law, Committee on the Judiciary, 101st Cong., 2nd sess. 77-104 (December 5, 1990).
418.

See. e.g., 132 Cong Rec. 3036-38 (1986) (floor consideration of contempt citation against two witnesses who refused to testify concerning alleged assistance provided to former Philippines President Ferdinand E. Marcos and his wife).
419.

See, e.g., Dornan v. Sanchez, 978 F. Supp. 1315, 1317 n.1 (C.D. Cal. 1997).
420.

See, e.g., Harris v. Board of Governors, 938 F.2d 720 (7th Cir. 1991); United States v. United States House of Representatives, 556 F. Supp. 150 (D.D.C. 1983).
421.

See, e.g., Pentagon Technologies Int'l, Ltd. v. Committee on Appropriations of the United States House of Representatives, 20 F. Supp. 2d 41 (D.D.C. 1998), aff'd 194 F.3d 174 (D.C. Cir. 1998); United States v. McDade, No. 96-1508 (3d Cir. July 12, 1996) (unpublished order quashing subpoena to the Committee on Standards of Official Conduct); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995); United States v. Arthur Andersen, LLP, No. 02-121 (S.D. Tex. filed May 15, 2002) (unpublished order quashing subpoena to the Committee on Energy and Commerce).
422.

See. e.g., In re Harrisburg Grand Jury, 638 F. Supp. 43 (M.D. Pa. 1986). Cf. United States v. Moussaoui, No. 01-455-A, 2002 WL 1990900 (E.D. Va. August 29, 2002) (order denying the "Expedited Motion of the United States for Clarification Regarding the Applicability of the Protective Order for Unclassified But Sensitive Material and Local Rule 57 to Information That May Be Made Public in Congressional Proceedings").
423.

Jim Bencivenga, "Critical Mass," Christian Science Monitor, February 3, 2000, p. 15. Also see "NGOs," The Economist, January 29, 2000, pp. 25-27.
424.

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