Congress’s authority to conduct oversight, and its corollary power to investigate, the executive branch of government (and all of its agencies) are not explicitly stated in Article 1, Section 1 of the United States Constitution. But from the very first session of Congress, the House of Representatives established committees to not only fulfill its constitutional authority to legislate but exercise the power to investigate vested within them.
Nearly one hundred years ago the U.S. Supreme Court forcefully upheld Congress’s power to investigate pursuant to its inherent constitutional authority to legislate.
Congressional Authority to Investigate
In a unanimous 1927 decision, McGrain v. Daugherty, the Court recognized that the congressional power to investigate is essential to its authority to legislate:
“We are of opinion that the power of inquiry — with process to enforce it — is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history — the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action — and both houses have employed the power accordingly up to the present time. The acts of 1798 and 1857, judged by their comprehensive terms, were intended to recognize the existence of this power in both houses and to enable them to employ it ‘more effectually’ than before. So, when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers, and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful.”
Congressional Power to Investigate Limited to Valid Purpose
The congressional power to investigate, however, is not unlimited.
As far back as 1881, the Supreme Court held in Kilbourn v. Thompson that a congressional investigation can exceed Congress’s authority. Seventy-seven years later, the Court in Watkins v. United States once again cautioned that “Kilbourn v. Thompson teaches that … an investigation into individual affairs is invalided if unrelated to any legislative purpose.’”
Kilbourn and Watkins both recognized Congress’s power to investigate but caution that a congressional investigation must be pertinent to a valid legislative purpose.
In this constitutional vein, both the House and Senate have asserted since 1827 the right to “collect information from private persons as well as from governmental agencies when necessary to enlighten their judgment on proposed legislation.”
President Donald Trump, his cadre of advisors, and a legal team that routinely skirts the bounds of legal ethics do not believe that Congress enjoys any power beyond the authority to legislate—unless, of course, it is Republicans conducting an investigation against the president’s real and imagined enemies.
Proper Function of Government is Subject to Congressional Investigation
In addition to the roughly 20 federal and state criminal-related investigations, the Trump administration is facing House and Senate investigations into a wide-range of potential criminal wrongdoing, insider influence, corrupt abuses of power, and national security breaches and/or compromises. Each of the latter categories most definitely fall under Congress’s oversight umbrella – the scope of which was made clear by the Supreme Court in McGrain:
“It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of legislation; but it does show that the subject to be investigated was the administration of the Department of Justice — whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers — specific instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney General and the duties of his assistants, are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.”
President’s “Men” Assert Supremacy, Mislead Public
The Trump administration has refused to cooperate with any of the current Democrat-led congressional investigations. White House legal counsel Pat Cipollone calls the congressional investigations being conducted by Democrats “pseudo law enforcement” investigations that do not have a “legitimate [legislative] role.”
Worse yet, Trump’s personal attorney William S. Consovoy more recently astonished U.S. District Court Judge Amit Mehta in a May 12 court hearing with the incredulous and patently frivolous argument that “all congressional oversight of presidential wrongdoing is illegal”
In effect, both Cipollone and Consovoy are trying to defy history and Supreme Court precedent with the argument that the presidency is not subject to congressional oversight, much less investigation; that the president has the power to do as he pleases under any circumstances he pleases, and that he cannot be called into account by Congress’s constitutionally vested authority so unmistakably recognized by the Supreme Court in McGrain and Nixon v. United States.
This simmering constitutional crisis deliberately created by the Trump administration will unquestionably end up before the Supreme Court, but not before a host of lower federal courts will reject the absurd and dangerous argument currently being espoused by the president’s legal team, including the Attorney General of the United States.
President Bets SCOTUS Will Play Politics
The Supreme Court’s involvement, of course, generates speculation in both legal and political circles about whether the High Court will respect its own precedents and historical congressional practices, or chart new constitutional waters that could be perilous, if not fatal, to American democracy.