How far does congressional investigative power go?
© Victoria Sarno Jordan

As tension around the Russia investigations increase, former Director of National Intelligence Dan CoatsDaniel (Dan) Ray CoatsCounterintelligence needs reboot for 21st century Ending FISA’s sunset provisions is not a risk worth taking Overnight Cybersecurity: Facebook's Sandberg backs release of Russian ads | Watchdog to probe alleged FCC cyberattack | Trump officially nominates new DHS head MORE and Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsCurtis wins Chaffetz's former Utah House seat Overnight Cybersecurity: What we learned from Carter Page's House Intel testimony | House to mark up foreign intel reform law | FBI can't access Texas shooter's phone | Sessions to testify at hearing amid Russia scrutiny FBI can’t unlock Texas shooter’s phone MORE may not be the only administration officials faced with tough choices. This question is presented: what should happen if senior administration officials don’t respond to questions from the Senate Intelligence Committee (or another Committee) on the basis it would be "inappropriate"?

Each branch of government has historically generally recognized its limits and allowed the other two to exert checks. For instance, the tug-of-war between outgoing President Adams' judicial appointments, and incoming President Jefferson's efforts to thwart them, was resolved via the Supreme Court decision, Marbury v. Madison, arguably establishing the judicial review doctrine. The outcome wasn’t pretty, but wasn’t resolved at gunpoint, either. And legislative oversight of the executive represents a core constitutional function—one with which many an administration has contended.

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Begrudging compromise tends to be the norm for congressional oversight conflict resolution, though with exceptions. If negotiations fail, Congress can enforce its investigative authority through its contempt power, which is both statutory and inherent. This power provides for three basic mechanisms to enforce congressional investigatory requests.

First, pursuant to 2 U.S.C. §§192,194, either house of Congress can vote to refer criminal contempt prosecutions to the Justice Department. Second, Senate rules authorize the body to pursue its own federal civil contempt action. The House can also pass a resolution authorizing like pursuit of civil contempt.

Finally, a congressional chamber can assert its inherent authority, in which its Sergeant-at-Arms arrests and brings a recalcitrant witness to the inquiring chamber for questioning. According to a May 12, 2017 Congressional Research Service report, this allows “Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands.”

Significantly, each enforcement approach requires the interrogating chamber to proceed only via majority vote. So, what would it take for the Republican House or Senate to vote to authorize the Justice Department to prosecute a Trump Administration official for contempt? Deputy Attorney General Rosenstein’s authorization of Special Counsel Robert Mueller to conduct the “Russia investigation” remains fraught. Just think about what would happen if a house of Congress directed the deputy attorney general to initiate contempt proceedings against his boss, the Attorney General.

Historically, Congress’ requests to the Justice Department to initiate contempt proceedings against fellow administration officials haven’t gone well. When the Republican-controlled House voted in 2012 to refer then-Attorney General Holder to DOJ for a criminal contempt prosecution for failure to comply with a subpoena, DOJ never enforced the contempt. In 1982, when the Democratic-controlled House voted to hold EPA Administrator Anne Gorsuch Burford (the mother of newly elevated Justice Neil Gorsuch) in contempt for failure to produce documents, again DOJ refused to move forward.

Congress' power and authority to oversee the executive branch's execution of laws date back to 1792 when then-Rep. James Madison led the first congressional oversight investigation. And the legislative oversight's historical antecedents stretch back even further, beyond the Enlightenment in the late 1600's through the early 1800's.

In fact, the Enlightenment idea of the consent of the governed animated in large part both the Constitution and Declaration of Independence. It was James Madison in Federalist No. 39 who fortified the notion this new government would not only be “of the people” and “for the people” but answerable to the people in varying, strategically differing ways. He thus explained the “House of Representatives [would] derive its powers from the people,…the Senate, its powers from the States,…and the executive power [would] be derived from a very compound source.”

The Framers also extended the concept of enlightened self-interest underlying the consent of the governed to each governmental branch’s relationship to the other, via the separation of powers. Specifically, they viewed the competition between each branch as creating a sufficiently compelling interest for each branch to protect its prerogatives. Federalist No. 51 recognized the inevitable challenges that may arise with a government “administered by men over men,” and envisioned the separation of powers would bring to bear the exercise of institutional “will[s] independent of society itself ….”

Still, who and what gives way when the legislative oversight authority clashes with assertions of executive privilege? The matter is muddled by the current administration officials’ refusing to answer questions without explicitly invoking executive privilege. Yet, assuming the congressional inquiry is pertinent to a matter within the committee’s jurisdiction, any continuing refusal to answer can be invoked only under a constitutional protection such as the Fifth Amendment or executive privilege.

The executive privilege doctrine does have limits. Before resigning, President Nixon exercised executive privilege, resulting in the Supreme Court’s rejecting his claim executive privilege could be invoked in matters of general confidentiality if it interfered with (at least) the judicial process.

As stated in a June 15, 2017 New York Times article, “the executive branch and Congress generally negotiate” over the appropriate bounds for the exercise of executive privilege, and so, historically “such disputes have been resolved with some accommodation.” Any such “accommodation,” however, presumes each branch of government will protect its institutional interest during the negotiations.  

So what does this tell us? When an administration refuses to respond to a congressional inquiry based on the claim the inquiry isn’t “appropriate,” Congress has two main choices: assert its institutional prerogatives in what the Framers would have viewed as a dispassionate, institutional way or make a political decision not to challenge an administration, either as a matter of loyalty or in a perceived effort to protect a shared legislative agenda independent of the legislative inquiry itself.

The Framers undoubtedly would have counseled the former approach. Perhaps above all else, they feared the creation of factions. As Federalist No. 51 observed, “in a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature…”

In that the Constitution was ratified on June 21, 1788, and the Burr-Hamilton duel occurred only 16 years later, perhaps a government free of factions was always an idealistic fantasy. Yet, this Federalist paper concluded by theorizing, that once an unwanted state of disarray is reached, “even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves.” While this phrase of Federalist No. 51’s focused more directly on the “security of civil rights,” the same observation can be made regarding the separation of powers. Can it get crazy or scary enough for divided men and women of good will in the Congress to cooperate for the common good?

The final story of the Russia investigation is as-yet untold. However, if interests of our very national security and electoral integrity are in fact at stake, one can only hope that either idealism or fear (or some of both) will at least temper partisanship. Indeed, the responsibility lies at both ends of Pennsylvania Avenue to ensure our government functions consistent with the values and protections our founders envisioned.

David Frulla is a partner at Kelley Drye & Warren LLP. He practices in areas including government relations and public policy, campaign finance and political law.

The views expressed by this author are their own and are not the views of The Hill.