Congressional Investigations and the Role of Privilege
Auchincloss, Kalah, American Criminal Law Review
No one familiar with the history of this country can deny that congressional committees are useful. It is necessary to investigate before legislating, but the line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin [Joseph McCarthy] has stepped over it repeatedly. His primary achievement has been in confusing the public mind, as between internal and the external threats of Communism. We must not confuse dissent with disloyalty. We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law. We will not walk in fear, one of another. (1)
CBS news journalist Edward Murrow voiced these words to the American public in early 1954, ushering in the ultimate downfall of Senator McCarthy's lawless congressional investigation into alleged communist behavior. (2) As Chairman of the Government Committee on Operations of the Senate, McCarthy, at the height of the Korean War in 1950, capitalized on the "Red Scare" and the undercurrent of fear shooting through the United States. He called hundreds of citizens in front of the Senate Committee, accusing these Americans of subversive communist behavior and conspiring to overthrow the government. (3) These individuals were not shown proof of their alleged crimes and were never given a chance to defend themselves. In one of the more frightening moments in American history, the constitutional guarantees of these citizens were abridged by the very legislature charged with safeguarding such rights. (4) It was these methods that Murrow condemned, and it was his attack against McCarthy that eventually led to the Senator's public censure.
Many congressional investigations are not, in fact, such outrageous exposures of private action. Most are routine inquiries into areas harboring legislative gaps. (5) This so-called legislative oversight is necessary probing by our legislative body to determine where and how they must act in creating law. Other congressional inquiries, however, bear a striking resemblance to a criminal investigation and trial. Much like the McCarthy hearings, these investigative hearings, often scrutinizing executive action, involve lawyers, witnesses, and a final judgment, all in a formidable environment akin to a courtroom. (6) And yet, unlike a criminal trial and its preliminary investigation, in these congressional inquiries there is no judge, no jury of peers, no presumption of innocence, no privacy, and, as this paper discusses in detail, the privileges essential to the adversarial judicial process assume a different identity in the context of a congressional investigation. (7)
This essay focuses on the role of privilege in the setting of congressional investigations, comparing it to the role privilege plays in a traditional court case. Specifically, this article will examine attorney-client privilege, executive privilege, and the Fifth Amendment privilege against self-incrimination, looking closely at the role each plays in both a congressional heating and a criminal trial. The article will also discuss the normative aspects of privilege. Analysis reveals why privileges may be abridged in the houses of Congress, but questions whether this exercise is reasonable? Are the courtroom and the Capitol sufficiently different forums to justify the disparate application of privilege? Should we distinguish between the two seats of government when similar procedures occur in both?
Part II provides a general overview and history of the congressional oversight process, describing the development of oversight authority and the judicial limitations placed on this implied congressional power. Part III discusses the attorney-client privilege in the context of litigation as well as a congressional investigation and compares the two applications. Part IV explores executive privilege in both contexts and again compares the two applications. …