I’ve had many discussions recently with conservatives about Hillary Clinton and, in particular, the numerous investigations of her and Barack Obama.
One of the questions that came up was, what have congressional investigations been used for in the past and what are their limits?
In my research, I stumbled on a wonderful, freely available document at the American Law Library titled “Congressional Investigations: A Bibliography” by Matthew Mantel.
If this interests you, I encourage a full read. But I thought I’d summarize some of the key points here and talk about how today’s investigations differ from the past.
What’s the legal basis for congressional investigations?
The Constitution says nothing directly about congressional investigations. It simply gives legislative powers to the Congress:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
However, the ability to investigate is based on precedent from British Parliament and the belief that, to legislate effectively, Congress needs the authority to gather background data and information.
Article I, Section 8, Clause 18 of the Constitution grants Congress the power to make “all laws which shall be necessary and proper for carrying into execution the foregoing powers.” This “necessary and proper clause” is deemed by history and precedent to allow Congress to create the means to carry out its legislative agenda.
What’s the purpose?
According to Mantel:
The congressional investigation is more than just a tool for looking over the shoulder of the president; investigations also lay the groundwork for legislation and reform.
For example, the Federal Reserve Act of 1913 and the Clayton Antitrust Act of 1914 were direct results of congressional investigations of Wall Street banking.
What are the limits?
While seemingly powerful, Congress’s ability to investigate is not without limits. In Watkins v. United States, the Supreme Court ruled:
There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. ... Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress.
What was the first congressional investigation?
The first congressional investigation looked into the military losses in the 1791 Battle of Wabash with American Indians in Northern Ohio (also known as the Battle of a Thousand Slain). Of 1,000 men under General Arthur St. Clair’s command, only 24 survived. About 150 Indians were killed—mostly Miamis, Shawnees and Delawares (Lenape). It was the worst defeat of the U.S. Army by Indians in history. As a result of the investigation, President Washington forced General St. Clair to resign.
According to the bibliography, wars are one of the most frequent topics of congressional investigations. Every major military engagement has led to a congressional investigation except for the Spanish-American War of 1898.
1966 Senate Foreign Relations Committee hearings on the war in Vietnam.
What are some other historical trends?
According to Mantel, looking at history reveals several other historical trends. The first trend occurred during the Gilded Age, from 1870 or so until World War I.
During this time period, the economy grew and with it, there came problems of abuse. During this time period, there were investigations of the Credit Mobilier railroad scandal, banking, and the Pujo committee that investigated the “money trust.”
After the Great Depression and the programs put in place to deal with it, Congress increasingly engaged in investigations of the federal government itself. For example, the Truman Committee investigated procurement and construction involved with national defense. The Truman Committee is often still regarded as the most successful congressional investigation for uncovering abuse. It saved an estimate $10-15 billion in military spending and the lives of thousands of servicemen.
Senator Joe McCarthy of Wisconsin (right), at the Senate Subcommittee on Investigations' McCarthy-Army hearings, June 9, 1954.
The post-WWII years were dominated by investigations of internal security threats. Senator Joseph McCarthy, chairman of the permanent investigations committee, conducted the infamous McCarthy investigations.
The third trend starts with Watergate and continues to the present day. This trend focuses on political actors and wrongdoings. These investigations include: the Watergate hearings, the Church Committee, the Iran-Contra investigation, and numerous investigations of the Clinton administration.
Why does this matter?
I think the third trend can actually be split into two trends. It started out investigating wrongdoings, but has recently evolved into a political tool.
Investigations of Bill Clinton were common while he was president. The Republican Congress investigated the Whitewater land deal, firings in the White House travel office, requests for access to FBI files, and Democratic campaign fund-raising. During President Clinton’s terms, Republicans issued more than 1,000 subpoenas. Note: The Monica Lewinsky scandal was handled by special prosecutor Ken Starr.
None of these ever found anything of note. And all of them went away when Bill Clinton left the White House only to return with Hillary Clinton’s run for president.
For the past several election seasons, we’ve seen investigations ramp up as elections get underway, only to disappear after the first Tuesday in November.
Does anyone remember, for example, that in 2012, the Benghazi investigations focused on Barack Obama and not Hillary Clinton?
Why? Obama was running for president.
To date, there have been seven congressional investigations of Benghazi. None has found anything. The investigations have been going on longer than the Korean War. Costs are in the tens of millions of dollars, and there is seemingly no end in sight.
I believe we need congressional investigations in order for Congress to do its job. When done right, as with the Truman Committee, they can achieve great good. However, lately, and especially when Republicans control Congress, it’s getting harder and harder to believe we don’t live in a new era of endless partisan political investigations.
David Akadjian is the author of The Little Book of Revolution: A Distributive Strategy for Democracy (ebook now available).
