Tests You Have To Meet

Authorization and Jurisdiction.

A contempt conviction will not be upheld if the committee’s investigation has not been clearly authorized by the full House or Senate. The investigation, and the questions posed, must be within the scope of the committee’s jurisdiction.

Legislative Purpose.

A committee’s investigation must have a legislative purpose or be conducted pursuant to some other constitutional power of the Congress, such as the authority of each House to discipline its own Members, judge the returns of the their elections, and to conduct impeachment proceedings.

Moreover, when the purpose asserted is supported by reference to specific problems which in the past have been, or in the future may be, the subject of appropriate legislation, it has been held that a court cannot say that a committee of the Congress exceeds its power when it seeks information in such areas. In addition, Congress’ power to investigate such diverse matters as foreign and domestic subversive activities, labor union corruption, and organizations that violate the civil rights of others — have all been upheld by the Supreme Court.

Pertinency.

Two different issues of pertinency arise in regard to a contempt prosecution. First, a witness’s refusal to answer questions or provide subpoenaed documents will be punished as a contempt only if the questions posed (or documents requested) by the committee are, in the language of the statute, “pertinent to the question under inquiry.”

In determining general questions of the pertinency of inquiries, the courts have required only that the specific inquiries be reasonably related to the subject matter under investigation. Given the breadth of congressional investigations, the courts have long recognized that pertinency in the legislative context is broader than in the judicial contenxt, which relies primarily on the law of evidence’s standard of relevance. For example, the D.C. Circuit has stated that:

A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. ... A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry which generally is very broad.

The second pertinency issue concerns the Fifth Amendment’s Due Process Clause. According to the Supreme Court in Deutch v. United States, the pertinency of a “committee’s inquiry must be brought home to the witness at the time the questions are put to him.”

In addition, according to commentators, a witness is entitled “to understand the specific aspect of the committee’s jurisdiction under its authorizing resolution [or House or Senate rule] to which the question relates.” Finally, it appears that the committee must specifically rule on a pertinency objection and, if the objection is overruled, inform the witness of that fact before again directing him to answer the question.

Willfulness.

A conviction for statutory criminal contempt cannot be sustained unless the failure to appear before the committee, to produce documents, or to respond to questions is a willful, intentional act. However, an evil motive does not have to be established. Because of the willfulness requirement, and to satisfy constitutional due process standards, when a witness objects to a question or otherwise refuses to answer, the chairman or presiding member should rule on any objection and, if the objection is overruled, the witness should be clearly directed to answer.

Other Procedural Requirements.

A contempt conviction can be reversed on other non-constitutional grounds. The cases make clear that committees must closely follow their own rules and the rules of their parent body in authorizing subpoenas and conducting investigations and hearings. It appears that a witness can be convicted of criminal contempt, but not of perjury, where a quorum of the committee was not present.

Source: CRS Report dated 7/24/07

(Internal citations removed; emphasis added)