James Comey’s Testimony: the Circus and the Law of Congressional Investigations

Former FBI Director James Comey’s testimony last month before the U.S. Senate Intelligence Committee garnered nearly 20 million television viewers, not counting those who watched at bars or restaurants or through online streaming.[1] Indeed, it was the highest-profile congressional testimony in decades, touted as “Washington’s Super Bowl,”[2] and rivaling the NBA finals in ratings.[3] And no wonder, as the testimony certainly made for interesting TV. Comey discussed his interactions with President Trump, accusing him of spreading lies about the FBI and Comey himself, as well as attempting to impede and ultimately firing Comey over the FBI’s investigation of Russian interference in the 2016 presidential election.[4]
There’s been a lot of debate since the hearing about whether, based on Comey’s testimony, President Trump committed obstruction of justice.[5] But even if he did so, what would happen now? After all, Comey testified before a Senate committee, not a court. Beyond providing the American public with an interesting news spectacle, what does testimony before a congressional committee — or congressional investigation in general, for that matter — really accomplish?
To answer these questions, we must review the concept of Congress’s investigative power. Congressional investigations are an unusual beast — a hybrid of executive functions conducted by a legislative body. They are authorized nowhere in the U.S. Constitution. Nonetheless, Supreme Court precedent has long recognized investigative authority as “inherent in the legislative process.”[6] The concept of legislative authority to conduct investigations descended directly “from the pages of English history” and the long-held practices of the British houses of parliament, whose investigative powers and capacity to punish those who refused to comply with their requests for information was virtually absolute, precluding even the courts from judicial review of parliamentary investigative action.[7] The United States, therefore, has nearly always recognized Congress’s inherent authority to take testimony and request evidence. However, with the lingering memory of “the evil effects of absolute power” still in the minds of early American legislators and judges, the United States imposed important limits on the historical practice that had not existed in Britain. For example, “[u]nlike the English practice, from the very outset, the use of contempt power by the legislature was deemed subject to judicial review.”[8]
Today, we construe Congress’s power to conduct investigations broadly. That power “encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.”[9] But while broad, the power is not unlimited. The Supreme Court has stated that Congress is neither “a law enforcement or trial agency.”[10] On the contrary, “[t]hese are functions of the executive and judicial departments of government.”[11] Thus, no congressional investigation “is an end in itself,” but must instead “be related to, and in furtherance of, a legitimate task of Congress.”[12]
Congress is also limited in its investigative efforts by the Bill of Rights, and it must respect the constitutional rights of any witness it calls, just as those rights would be protected in the courts.[13] Individual constitutional rights are as applicable in the context of legislative investigation as they are to all other forms of government action.[14] For example, congressional witnesses cannot be subjected to unreasonable search and seizure or the abridging of their First Amendment freedoms (speech, press, religion, and so forth).[15]
Similarly, witnesses testifying before Congress retain their Fifth Amendment rights and consequently cannot be compelled to incriminate themselves.[16] Indeed, it was on Fifth Amendment grounds that former national security adviser Michael Flynn recently refused to comply with the Intelligence Committee’s subpoena for documents pertaining to his communications with Russian officials prior to the 2016 election.[17] Congress has the capacity to bypass this protection by obtaining a court order granting the witness immunity against the use of his testimony in a subsequent criminal prosecution, and may then compel the witness to testify.[18] Accordingly, Flynn has previously offered to cooperate with the committee’s investigation if given immunity from prosecution, as we discussed in a former blog post on immunity. In Flynn’s case, however, that immunity has not been forthcoming, and it remains unclear how the Committee will respond to his invocation of Fifth Amendment rights.[19]
In any case, if the constitutional rights of its witnesses are respected, Congress’s power to compel testimony is broad. The investigating committee must have been authorized by Congress to investigate within the relevant subject matter, and its inquiries must be pertinent to that authorized subject matter.[20] Additionally, the investigation must be for “a valid legislative purpose.”[21] But that “valid legislative purpose” does not require a congressional committee to state what it plans to do, legislatively or otherwise, with or as a result of an investigation.[22] It is enough that the information sought involves issues that have been or may someday be the subject of legislation.[23] Thus, while we may not know exactly what the Senate Intelligence Committee intends to do as a result of its investigation of potential Russian interference in the 2016 presidential election, its inquiries are a valid extension of congressional investigative power as long as foreign involvement in a U.S. presidential election is an appropriate past or future topic of federal legislation, which it is.[24]
James Comey agreed to testify voluntarily before the Senate Intelligence Committee while declining to do so before the Senate Judiciary Committee, a decision that Senators Chuck Grassley and Dianne Feinstein (the chairman and ranking member of the Judiciary Committee) called “extremely disappoint[ing].”[25] However, if the Judiciary Committee had wished to compel Comey to testify before it as well, it could presumably have done so. Congress has the power both to obtain subpoenas and to punish those who do not comply with its requests.[26] Specifically, there are three types of contempt proceedings available to legislators for use with recalcitrant witnesses: the inherent contempt power, the statutory criminal contempt procedure, and the Senate’s civil contempt procedure. Additionally, if a witness appears before the relevant committee but gives false testimony, he or she can be prosecuted for perjury under 18 U.S.C. § 1621 or for giving false statements under 18 U.S.C. § 1001.[27]
Using the inherent contempt power, the Sergeant-at-Arms can bring an individual before the House or Senate to be tried and potentially imprisoned in the Capitol jail for a specified or indefinite period of time (though no longer than the current Congress) until he or she agrees to comply with the investigative request.[28] The inherent contempt power is not often used, as it is highly cumbersome, and because a trial would cause a substantial disruption to Congress’s legislative work.[29]
To remedy the inconvenience of the inherent contempt process, Congress enacted a statutory criminal contempt procedure. Specifically, under 2 U.S.C. §§ 192 and 194, anyone summoned as a witness under the authority of the House or Senate “to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee . . . or any committee of either House” who willfully fails to do so or who refuses to answer pertinent questions “shall be deemed guilty of a misdemeanor,” punishable by up to a $1000 fine and “imprisonment in a common jail” for one to twelve months.[30] A statement of fact describing the witness’s failure to comply must be filed with the President of the Senate or the Speaker of the House, who must then certify the statement to the U.S. Attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”[31]
This procedure for criminal contempt prosecution, however, can bring up some inherent issues and potential conflicts of interest in situations where the relevant U.S. Attorney may not wish to prosecute the contempt, preferring instead to exercise prosecutorial discretion. An easy example of such a situation might involve a congressional investigation of the Department of Justice (“DOJ” or “Justice Department”) itself, or even of a particular U.S. Attorney’s office or prosecutor.[32] While issues of this type have arisen before,[33] they are atypical, and the U.S. Attorney generally initiates prosecution as requested.[34] In Comey’s case, though, it’s hard to know what would have happened had he been subpoenaed and refused to testify. Given his extremely high political profile at present, his former position as the director of the FBI (an agency of the Justice Department), and the politically tenuous effects Comey’s testimony may have on President Trump, one can only imagine that asking a U.S. Attorney to prosecute Comey criminally for contempt (and ultimately to compel the content of his testimony) might have involved some rather delicate political issues.
In the event that criminal contempt prosecution appears unlikely or unwise, there is also a statutory civil contempt procedure available only to the Senate,[35] but civil contempt cannot typically be used for executive branch officials who refuse to comply with a subpoena.[36] Other options available to Congress when seeking to compel evidence and testimony include using an independent prosecutor (rather than the U.S. Attorney) to prosecute the contempt criminally, ending or reducing appropriations for the agency or department at issue when requested information is not provided, and in extreme cases, impeachment of the recalcitrant official.[37]
As evidenced by the criminal contempt procedure, investigating current or former officials of the executive branch (including those who have worked under the Trump administration) can present substantial challenges. This post is merely an overview of congressional investigative procedure and as such will not attempt to describe the myriad legal issues involved in assertions of executive privilege, but suffice it to say that various presidents and officials of the executive branch have asserted rights to shield testimony and evidence from disclosure to Congress.[38] Interestingly, we may soon have the opportunity to see some of these executive branch arguments in play, as the House Intelligence Committee has recently threatened to subpoena the president for information on recordings or other documentation of his meetings with Comey.[39]
Investigations of DOJ in particular have raised important questions about disclosure of information regarding pending or future enforcement actions. While declining to provide information to Congress, DOJ has advanced arguments on its need to avoid prejudicial pretrial publicity, to protect the rights of individuals (subjects, witnesses, confidential informants, and victims) involved in its own investigations and prosecutions, and to prevent disclosure of governmental trial strategy.[40] But the Supreme Court has often upheld Congress’s right to investigate DOJ’s litigation conduct, and has generally left with Congress the choice of whether its own access to relevant information is more important in any given case than any potentially harmful effects on DOJ’s pending litigation.[41]
Now that we understand Congress’s capacity to compel evidence and testimony (and all the challenges involved in doing so notwithstanding), let’s turn back to James Comey. Comey chose to testify (before the Senate Intelligence Committee, at least) voluntarily. His recollections and representations have now been permanently and very publicly memorialized. So, what does the Senate Intelligence Committee (or any congressional investigating committee, for that matter) do with this information anyway? They are not a court, so they cannot find an individual guilty of a crime or liable for some other breach of law. They can, however, “publicize their findings, which could ultimately lead to public apologies, resignations or lost elections.”[42] Additionally, “the wrongdoings they punish do not necessarily need to be illegal, just politically unpalatable.”[43] Essentially, congressional investigations involve trial before the “court of public opinion,” as opposed to the Article III courts. But public opinion is no small matter, and public condemnation of a witness or subject in congressional investigation can have far-reaching and potentially negative impacts, including not only referral back to federal prosecutors for criminal prosecution, but also reputational damage, jeopardy to future political and business transactions, and prejudice to the fairness of any potential future trial.[44]
At this point, Robert S. Mueller III has been appointed as special counsel to lead DOJ’s criminal probe into Russian involvement in the 2016 election, and it is his job (rather than any of the four congressional committees[45] that have been involved in the issue up to this point) to determine whether any illegal activity occurred.[46] He will use traditional criminal investigative methods, including issuing subpoenas to compel testimony and working with the grand jury to bring any relevant criminal charges.[47] But he has his own budget and staff independent of the rest of DOJ, and no deadline to work with.[48] So when and whether any criminal charges will result from the various investigative matters involved (the special counsel is currently tasked with investigating attempts to obstruct justice by President Trump or his allies, the Trump campaign’s ties to Russia, any other Russian involvement in the 2016 presidential election, and the possibility of financial crimes by President Trump’s associates)[49] remains highly speculative, even assuming a thorough and impartial investigation.
And what if Mr. Mueller determines that President Trump has committed a crime? DOJ has long held the position that it is inappropriate to charge a sitting president with a crime.[50] Thus, even if special counsel Mueller believes that President Trump committed obstruction or another crime in connection with Russian election interference, DOJ is highly unlikely to pursue any kind of criminal charges. At that point, responsibility would shift back to Congress (specifically to the House of Representatives), to consider the relevant investigative results and decide whether to initiate impeachment proceedings.[51] Impeachment, of course, is a highly political matter and involves a lot more than a basic legal determination about whether a crime occurred. But Congress could ultimately step back in to the matter to play a much weightier role.
At this point, the impact of James Comey’s testimony before the Senate Intelligence Committee (beyond its success in news ratings) is impossible to determine. If nothing else, it certainly gave Comey the opportunity to get his view of the facts into the record as far as the wider public was concerned. Like everything in politics, both congressional investigations and criminal investigations of high-ranking executive branch officials (not to mention potential future impeachment preparation) are all a game of strategy, played within the broad boundaries that we call the rule of law. The ultimate impact of the investigation more broadly and of Comey’s testimony specifically remains to be seen. Impeachment? New legislation or monitoring of campaign activities? Or just Comey’s chance to clear the air? Time will tell, and history will record. In the meantime, the investigations certainly make for some interesting political news.
By Chelsy Weber, Esq., Consulting Counsel to the Eichner Law Firm, licensed to practice in the District of Columbia, New York, and Connecticut
[1] Stephen Battaglio, 19.5 Million TV Viewers Watch James Comey Testify in “Washington’s Super Bowl,” L.A. Times, June 9, 2017, available at http://www.latimes.com/business/hollywood/la-ct-fi-comey-ratings-20170609-story.html.
[2] Id.
[3] CNN, James Comey’s Senate Testimony Nearly Matches NBA Finals in TV Ratings, June 10, 2017, available at http://www.newschannel5.com/news/national/james-comeys-senate-testimony-nearly-matches-nba-finals-in-tv-ratings.
[4] Daniel Arkin, James Comey Testimony: Here Are 9 Key Moments from the Hearing, NBC News, June 8, 2017, available at http://www.nbcnews.com/politics/politics-news/james-comey-testimony-here-are-9-key-moments-hearing-n769941.
[5] Lauren Pearle, 6 Legal Questions Arising from James Comey’s Testimony, ABC News, June 9, 2017, available at http://abcnews.go.com/Politics/legal-questions-arising-james-comeys-testimony/story?id=47927692.
[6] Watkins v. United States, 354 U.S. 178, 187 (1957).
[7] Id. at 188.
[8] Id. at 192.
[9] Id. at 187.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 188.
[14] Id.
[15] Id.
[16] Id.
[17] Austin Wright, Flynn Defies Subpoena, Invokes Fifth Amendment, Politico, May 22, 2017, available at http://www.politico.com/story/2017/05/22/michael-flynn-subpoena-fifth-amendment-238682.
[18] 18 U.S.C. §§ 6002, 6005.
[19] Wright, supra note 17.
[20] Morton Rosenberg, Cong. Research Serv., Investigative Oversight: An Introduction to the Law, Practice and Procedure of Congressional Inquiry 5 (1995), available at https://fas.org/sgp/crs/misc/95-464.pdf (citing Wilkinson v. United States, 365 U.S. 399, 408–09 (1961)).
[21]Id.
[22] Id. (citing In re Chapman, 166 U.S. 661, 669 (1897)).
[23] See id.
[24] See, e.g., Rebecca Beitsch, Is There Foreign Interference in State Elections in the US?, Fiscal Times, Mar. 10, 2017, available at http://www.thefiscaltimes.com/2017/03/10/There-Foreign-Interference-State-Elections-US (describing some of the past and proposed statutes regarding involvement of foreign nationals and companies in U.S. elections).
[25] Burgess Everett, Comey Agrees to Testify in a Public Session at the Senate Intelligence Committee, Politico, May 19, 2017, available at http://www.politico.com/story/2017/05/19/james-comey-testimony-senate-intelligence-committee-238628.
[26] Rosenberg, supra note 20, at 10 (citing Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)).
[27] Id. at 13.
[28] Id. at 11.
[29] Id.
[30] 2 U.S.C. § 192.
[31] 2 U.S.C. § 194.
[32] Rosenberg, supra note 20, at 11.
[33] Id. at 12 (describing the 1982 attempt by the House to secure a contempt prosecution against the Administrator of the EPA, Ann Burford, who, at the direction of President Reagan, had refused to respond to a subpoena for documents and who, despite citation by the full House for contempt, was never prosecuted, because the U.S. Attorney for the District of Columbia relied on his prosecutorial discretion to decline the opportunity). For additional examples, see Garvey, infra note 36.
[34] Id.
[35] 2 U.S.C. §§ 288d, 288b.
[36] 28 U.S.C. § 1365(a). For a more in-depth explanation of the civil contempt procedure (as well as the other two types of contempt processes available to Congress), see Todd Garvey, Cong. Research Serv., Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure 23–25 (2017), available at https://fas.org/sgp/crs/misc/RL34097.pdf.
[37] Rosenberg, supra note 20, at 12.
[38] Id. at 13, 16–17.
[39] Mary Clare Jalonick & Stephen Braun, House Committee Threatens to Subpoena President Trump over James Comey Tapes, TIME, June 29, 2017, available at http://time.com/4840352/house-intelligence-committee-president-donald-trump-james-comey-tapes-subpoena/.
[40] Rosenberg, supra note 20, at 18.
[41] Id. at 19–22 (citations omitted).
[42] Kevin Uhrmacher & Kim Soffen, A Guide to the Five Major Investigations of the Trump Campaign’s Possible Ties to Russia, Wash. Post, June 17, 2017, available at https://www.washingtonpost.com/graphics/national/trump-russia-investigations/?utm_term=.bbaf28e83647.
[43] Id.
[44] See, e.g., Hunton & Williams, Congressional Investigations, https://www.hunton.com/en/practices/government-relations/congressional-investigations.html (last visited June 28, 2017).
[45] Specifically, the Senate Intelligence Committee, the Senate Judiciary Committee, the House Oversight Committee, and the House Intelligence Committee. See Uhrmacher & Soffen, supra note 42.
[46] See Uhrmacher & Soffen, supra note 42.
[47] Id.
[48] Id.
[49] Id.
[50] Id.
[51] Id.
