History of Congress’s Power to Investigate Crime
Can Congress investigate crime? Does it have that authority under the Constitution? In a new article examining the historical evolution of this question over the past century and a half, I conclude that the answer is undoubtedly yes.
The fact that Congress is investigating “crime” is not a valid basis, by itself, for defying its demands. And ironically, Trump’s unsuccessful litigation to block congressional subpoenas has made this fact clearer than ever in case law.
Debate over this question has a long history.
For decades, targets—notably including Trump—have argued that the Constitution vests this power only in the executive and judicial branches. This approach, which I refer to as an exclusive separation of powers framework, pits committee investigators against criminal prosecutors in a zero-sum game. Rather than allowing for concurrent investigations, it prioritizes the interests of prosecutors over those of Congress. If targets were to prevail in making this argument, Congress’s investigative authority would be at its weakest point when examining the most treacherous abuses of power.
At the same time, congressional investigators zealously safeguard their authority to investigate all types of activity, including criminal activity that prosecutors may be investigating at the same time. Under this parallel separation of powers framework, each branch has authority to investigate concurrently, but for different constitutional objectives. Investigations serve as a common means to distinct ends: The legislative branch gathers information to assess problems, craft reforms, and inform the electorate, while prosecutors collect evidence to try, convict, and punish perpetrators.
To help shed light on this recurrent debate, I trace its evolution across three historical periods.
Kilbourn and the Exclusive Framework
The first era centers on a Supreme Court opinion from 1881 known as Kilbourn v. Thompson. That case didn’t involve a criminal proceeding, but a civil bankruptcy. The Court held that Congress could not demand testimony or documents on a matter pending before a bankruptcy court. Since the bankruptcy court was charged with providing remedies, Congress’s investigation “could result in no valid legislation on the subject,” according to the Kilbourn decision.
The Court also strongly suggested the Framers never envisioned Congress exercising its contempt power—its authority to enforce subpoenas—to inform legislation, but only for so-called judicial functions, such as impeaching federal officials or disciplining its own members.
Targets of congressional investigations have tried to use Kilbourn to argue that Congress is likewise barred from investigating criminal wrongdoing, claiming law enforcement is the sole province of the executive and judicial branches.