When Powers Collide: Congress’s Power to Investigate, the President’s Power to Investigate Crimes, and the Separation of Powers
“The congressional investigation can be an instrument of freedom,” Senator Sam J. Ervin, Jr., Chairman of the Watergate Committee, wrote. “Or it can be freedom’s scourge.” As I argue in this note, when Congressional investigations improperly intrude into the Executive’s exclusive power to investigate criminal wrongdoing, those investigations become freedom’s scourge.
The Constitution implies Congress’s power to investigate because it is necessary to carry out its enumerated powers. Congressional investigations are constrained by three major limitations; one is practical and the other two are legal. Those limitations are resource limitations, legislative purpose limitations, and separation of powers limitations. Resource limitations are practical limitations and are imposed by the complexity of the inquiry and the committee’s available resources, such as staffing, time, and money. Legislative purpose limitations are the limitations imposed by the constitutional requirement that investigations must advance a valid legislative purpose. Separation of powers limitations are the limitations imposed by the Constitution that bar a legislative investigation from becoming an exercise of judicial or executive power. In other words, Congress’s “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.”
The modern history of congressional investigations shows that sometimes they proceed concurrently with open Executive Branch criminal investigations, whether independently to determine what occurred or to oversee (and perhaps influence) Executive discretion in charging decisions. It appears at times that legislative committees seek to exercise a fundamentally Executive power by investigating criminal wrongdoing that does not fall within the impeachment power. Specifically, I consider whether—assuming unitary Executive theory—Congress may undertake criminal investigations while exercising its investigatory power. Here, an understanding of unitary executive theory is important, because it places emphasis on the separation of powers and cautions that threats to each branch’s independence are greatest when lines are blurred between the branches.
Part I discusses the legal backgrounds of congressional investigations and the power to investigate crimes. Part I then establishes that the Executive has the exclusive power to investigate crimes. Part II develops a rule for limiting legislative investigations of crimes and criminal activity. Finally, Part III applies that rule in the context of two case studies. The first case study examines congressional committees’ investigations of then-Secretary of State Hillary Clinton’s use of a private e-mail server during her government service. The second case study examines the investigation by the Select Committee to Investigate the January 6th Attack on the United States Capitol of potential wrongdoing by Dr. John C. Eastman.
