Understanding Your Rights In Response To A Congressional Subpoena

Author:Mr David McIntosh, Mark H Gitenstein and Sean P. McDonnell
Profession:Mayer Brown

Keywords: rights, congressional subpoena, congressional investigations, NSA, financial services regulation, United States Congress

As Congress begins its 2014 session, all signs point to an agenda dominated by aggressive congressional investigations. From the implementation of the Affordable Care Act to the conduct of the NSA surveillance program to perennial concerns over financial services regulation, Congress is likely to investigate a wide variety of matters that will impact public and private parties. In this primer, Mayer Brown lawyers discuss the general contours of Congress's investigative authority and subpoena power. They also provide some practical advice regarding the protections available to the subjects of congressional investigations.

Most Americans understand that the United States Congress is constitutionally vested with the power to make laws. What is often less well understood—but may be just as important to those who are subject to its jurisdiction—is Congress's power to investigate matters through the issuance of subpoenas and other compulsory processes. Put simply, Congress can compel the production of documents and sworn testimony from almost anyone at almost any time. And unlike the judicial process overseen by the courts, the congressional system offers relatively few procedural protections for those individuals or companies who find themselves subject to, what founder and early Supreme Court Justice James Wilson called, "the grand inquest of the state."1 As an independent and coequal branch of government, Congress's investigative power is largely unchecked by the courts, as a matter of constitutional design. Thus, the true limitations upon Congress's authority are pragmatic and based upon institutional and political power dynamics.

In this article, we discuss the contours of Congress's investigative authority and subpoena power. We also provide some general advice regarding the protections available to parties that are subject to a congressional investigation. Although this article is intended to provide a basic primer, it is no substitute for a tailored response strategy. Each congressional investigation is different. The strategies and opportunities that are available to a party in a given investigation will be as varied as the matters that the Congress may seek to investigate. For that reason, it is essential that individuals or companies that learn they are subject to a congressional investigation seek out the advice of experienced legal counsel as soon as possible. In addition to the authors, Mayer Brown has a wide array of lawyers with litigation, regulatory, and government expertise and substantial experience representing individuals and corporations that find themselves the targets of congressional investigations.

The Scope of Congress's Subpoena Power

Congress has long been held to possess plenary authority to investigate any matter that is or might be the subject of legislation or oversight. And as the Supreme Court observed over 35 years ago, this authority includes the power to use compulsory processes, such as the issuance of subpoenas. See Eastland v. U.S. Serviceman's Fund, 421 U.S. 491, 504 (1975). The scope of Congress's power "is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Id. at 504 n.15 (quoting Barenblatt v. U.S., 360 U.S. 109, 111 (1959)). Put another way, although Congress ought not to delve needlessly into the "private affairs" of the citizenry, it has the power to inquire about and investigate any issue "on which legislation could be had." Id. (quoting McGrain v. Daugherty, 273 U.S. 135, 177 (1927)). So long as Congress stays within this "necessarily broad" grant of constitutional authority, courts have little power to restrain its action. See Id. at 508 ("The wisdom of congressional approach or methodology is not open to judicial veto.").

As a practical matter, this means that courts generally will not interfere with a congressional subpoena absent a truly opprobrious violation of an individual's constitutional rights. Indeed, in the entire history of American jurisprudence, courts have sought to limit congressional investigations in only a handful of cases and, there, only in the face of blatant constitutional violations. See, e.g., McSurely v. McClellan, 521 F.2d 1024, 1043 (5th Cir. 1975) (holding that the Fourth Amendment applied to congressional inquiries, and explaining that congressional staff did not have immunity from a civil lawsuit alleging that they participated in an unlawful search and seizure by removing documents from a private residence); see also Exxon Corp. v. FTC, 589 F.2d 582, 590 (D.C. Cir. 1978) (declining to issue an injunction to protect purported trade secrets from congressional subpoena because, "[a]lthough the courts will intervene to protect constitutional rights from infringement by Congress, including its committees and members, where constitutional rights are not violated there is no warrant...

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