In 2011, we released a table of authorities that summarized the investigative powers of each House and Senate committee. As explained in our accompanying client alert, understanding each committee's investigative powers is crucial to successfully navigating a congressional investigation.
Congressional committees have the power to issue subpoenas to compel witnesses to produce documents, testify at committee hearings, and, in some cases, appear for depositions. Although the Fifth Amendment likely applies in the context of a congressional investigation, standing committees nevertheless may appeal to the full House or Senate to hold in contempt any witness who refuses to appear, answer questions, or produce documents. Congressional contempt authority may take one of three forms: inherent, civil, or criminal. Failure to adhere to committee rules during an investigation may thus have severe legal consequences.
Committees, however, generally have adopted their own procedural rules for issuing subpoenas, taking testimony, and conducting depositions. Moreover, each committee may alter these rules at the commencement of each Congress.
House and Senate committees adopted their rules for the 113th Congress earlier this year. We have examined these rules and updated our table of authorities, which is attached. Some items of note:
The Committee on Homeland Security tightened its quorum rules to apparently require the presence of a member of the minority party to issue a subpoena. In the 112th Congress, the rules required the chairman only to "make reasonable efforts . . . to ensure that a quorum for any purpose will include at least one Minority Member of the Committee." Under the rules for the 113th Congress, the "Chairman's staff shall consult with the Ranking Minority Member's staff when scheduling meetings and hearings, to ensure that a quorum for any purpose will include at least one Minority Member of the Committee." Representative McCaul is the new chairman of this committee, and Representative Thompson remains the ranking member. In his opening remarks at the committee's organizational hearing, Representative McCaul noted that the rules "represent the committee's commitment to a strong bipartisan effort to accomplish the goals which are so essential to our national security. I would like to thank Ranking Member Thompson and his staff for their collaborative approach to working with us to facilitate increased transparency, deliberation, and partnership." Representative Thompson replied in his remarks, "[c]ertainly your willingness to work with me on improvements to the Committee Rules . . . displays your openness to such cooperation."
The Committee on Energy and Natural Resources revised its rules regarding how a subpoena is authorized. Under the rules for the 112th Congress, a subpoena could be authorized either by a majority of the committee or, if the subpoena was issued pursuant to an authorized committee investigation, the chairman could issue a subpoena with the ranking member's concurrence. Under the new rules for the 113th Congress, the chairman may issue a subpoena pursuant to an authorized investigation without the ranking member's concurrence. For all other subpoenas, either the ranking member's concurrence or the approval of a majority of the committee is required. Senator Wyden is the new chairman of this committee, and Senator Murkowski remains the ranking member. The committee unanimously approved the new rules in a voice vote Before the vote, Senator Murkowski noted that she and Senator Wyden "want to get this committee back to what we know around here as regular order." Senator Wyden responded that he was aware that "senators want to go forward on a bipartisan way."
The Committee on Indian Affairs removed the authority for committee staff to ask questions during a hearing. Senator Cantwell is the new chairman of this committee, and Senator Barrasso remains the vice chairman.
The Special Committee on Aging revised its rules to require subpoenas to be authorized by both the chairman and the ranking member. In the 112th Congress, a subpoena could be issued by the chairman's authorization. The committee's rules for the 113th Congress require subpoenas to be authorized by the chairman and ranking member "acting together." The committee chairman (Senator Nelson) and ranking member (Senator Collins) are both new to these positions. The committee press release announcing the beginning of Senator Nelson's term as chairman noted that he "has long discussed the need for more bipartisanship and civility in politics. Today, he reaffirmed his commitment to working with Republicans, Democrats and Independents on the panel" to, as Senator Nelson stated, conduct "major investigations into crimes that target seniors."
In the House, only the Committee on Oversight and Government Reform has authority to compel depositions by subpoena. The Committee on Education and the Workforce has roughly identical rules but specifically notes that it requires authorization from the full House to compel a witness to appear for a deposition.
Five Senate committees have received Senate authorization to take depositions. The Senate Committee on Homeland Security and Governmental Affairs and its Permanent Subcommittee on Investigations receives authority each congress from the Senate's funding resolution. The Aging and Indian Affairs committees were authorized by S. Res. 4 in 1977, which the committees incorporate into their rules each congress. The Ethics committee's deposition power was authorized by S. Res. 338 in 1964, which created the committee and is incorporated into its rules each Congress. And the Intelligence Committee was authorized to take depositions by S. Res. 400 in 1976, which it too incorporates into its rules each congress.
Other Senate committees, namely the Agriculture, Commerce, and Foreign Relations Committees, authorize depositions in their rules. However, it is not clear that such deposition authority is authorized by the Senate and, hence, it is similarly not clear whether appearance at a deposition can be compelled.
Another important issue is whether a committee chairman may issue a subpoena without the consent of the ranking member or the full committee. In the Senate, only the Permanent Subcommittee on Investigations permits the Chairman to issue a subpoena without consent, requiring only notice to the ranking member. As noted above, the Energy and Natural Resources Committee has a subpoena procedure for investigations that does not require the ranking member's consent. The Agriculture, Nutrition, and Forestry, Commerce, Science, and Transportation, Homeland Security and Governmental Affairs, Small Business and Entrepreneurship, and Veterans' Affairs Committees permit the chairman to issue a subpoena so long as the ranking member does not object within a specified time period.
In the House, the chairmen of the House Committees on Oversight and Government Reform, Ways and Means, Education and the Workforce, Foreign Affairs, Transportation and Infrastructure, and Select Intelligence may issue subpoenas with consultation or notice to the ranking member or less.
Our table provides a general sense of what rules apply in given circumstances. But it is essential to look carefully at a committee's rules to understand specifically how its authorities apply in a particular context.