The consequences of congressional scrutiny can be profound for the subjects of lawmakers’ investigations, yet the second Congress calls, almost none of the safeguards of the American legal system are present. Features deemed fundamental in judicial proceedings — right to counsel, regulation of discovery, neutrality of arbiters, safeguarding of confidential information, rights of confrontation, common law privileges, rights of privacy — are either disavowed or inadequately protected by Congress. A recent Benghazi investigation episode helps bring to the fore one of the issues I address in a draft article, Congressional Due Process, that urges reform of oversight investigative processes to comport with constitutional and legal norms of fairness.
Congressional due process deficiencies have bothered me throughout my career. As an executive branch lawyer, I marveled at the invective hurled at dedicated public servants, including at times unfounded insinuations of criminality. In Duty: Memoirs of a Secretary at War (other parts of which I have criticized), former Defense Secretary Bob Gates lambasted his treatment by Congress under the leadership of both political parties. I think he channeled the views of many when he wrote:
I was exceptionally offended by the constant adversarial, inquisition-like treatment of executive branch officials by too many members of Congress across the political spectrum—a kangaroo-court environment in hearings, especially when the press and television cameras were present. Sharp questioning of witnesses should be expected and is entirely appropriate. But rude, insulting, belittling, bullying, and all too often highly personal attacks by members of Congress violated nearly every norm of civil behavior as they postured and acted as judge, jury, and executioner.
As a private defense lawyer, I struggled to explain to incredulous clients the lack of procedural safeguards they would face once their criminal, civil, or regulatory matter aroused congressional scrutiny. Even as a congressional investigator, I too often found myself embarrassed at the institutional hostility to fair treatment of those haled before our committees.
Last month, the Benghazi select investigative committee forced Bryan Pagliano to appear and testify notwithstanding his prior notice of his intent to assert the Fifth Amendment privilege against self-incrimination. Pagliano handled information technology issues for the State Department, and he reportedly helped work on the private email server used by Clinton when she was Secretary.
Pagliano’s assertion of the Fifth Amendment tells us virtually nothing about his innocence or guilt of any crime. The Fifth Amendment is designed to protect the innocent from government intimidation as well as the guilty from becoming the means of their own conviction. Concerns about government intimidation are particularly acute in a highly politically charged congressional investigation. One need look no further than last week, when Rep. Kevin McCarthy (R-Calif.) wounded his effort to consolidate his grip on the race to succeed Rep. John Boehner (R-Ohio) as Speaker by taking credit for the political damage the Benghazi investigation has had on Hillary Clinton’s presidential campaign:
Everybody thought Hillary Clinton was beatable, right? But we put together a Benghazi special committee, a select committee. What are her numbers today? Her numbers are dropping. Why? Because she’s untrustable [sic]. But no one would have known any of that had happened, had we not fought.
A number of Republicans involved in the investigation have suggested that federal criminal laws may have been broken. A sizable number of conservatives see Benghazi through the lens of criminal sanction rather than a political contest, much less a policy review. A cursory review of #Benghazi on Twitter or the comments section on a Benghazi-related article confirms the heat, rather than light, aroused by this investigation. In addition, the FBI is reviewing the security of classified information as it relates to that server. I tend to disagree with advising an assertion of the privilege in Congress as a tactical matter, but a reasonable attorney could conclude that the best course of action is to assert the Fifth Amendment rather than testify before a hostile committee under these circumstances.
Requiring a witness to appear to assert their rights in open proceedings can exacerbate significant reputational damage to the asserting witness. In fact, forcing a witness to do so for the spectacle can constitute improper prosecutorial conduct in a criminal proceeding. To the committee’s credit, it made Pagliano appear in closed session in the basement of the Capitol Building rather than in front of the klieg lights. On the other hand, it appears that the committee made him repeatedly assert the Fifth Amendment.
Now, two Senate Chairmen are considering a grant of Kastigar-like immunity, which would have the effect of forcing Pagliano’s testimony, but it would also preclude use, or derivative use, of his testimony for purposes of a criminal prosecution against him. This kind of immunity has been granted in a number of high profile investigations, including Iran-Contra (Lt. Col. Oliver North and others) and the US Attorney firings (Monica Goodling).
Others have not fared as well. In one infamous incident, Rep. Dan Burton (R-Ind.), then-Chairman of the House Committee on Government Reform, made Clinton White House staffer Mark Middleton assert the Fifth Amendment 38 times in a public hearing. (I was working on oversight matters as a law clerk for Vice President Gore’s general counsel at the time.) In more recent history, the House of Representatives held Lois Lerner, an Internal Revenue Service official, in contempt of Congress for failure to provide compelled testimony notwithstanding her assertion of the Fifth Amendment. There, Rep. Darrell Issa (R-Calif.), then-Chairman of the House Committee on Oversight and Government Reform, ruled that Lerner had waived the privilege by making a blanket assertion of innocence.
The article covers a lot more territory, including issues of the First Amendment, Fourth Amendment, Fifth Amendment Due Process Clause, Sixth Amendment, testimonial privileges, counsel rights, and handling of witnesses’ confidential information. It chronicles Congress’s procedural voids, institutional hostilities, and abuses when it comes to treatment of witnesses and subpoenaed parties. I also explain challenges facing those parties when they try to resist overbroad congressional subpoenas or assert privileges, including judicial deference grounded in the Speech or Debate Clause, the Rules and Expulsions Clause, and principles of separation of powers. I argue that Congress should revise its procedural rules.
Recognizing Congress is unlikely to undertake reform on its own, I believe courts should incentivize congressional reform by refusing to enforce congressional demands unless Congress provides minimum procedural safeguards. Here, I analogize to comity principles in the law of foreign relations that govern domestic court recognition of foreign judicial orders. Courts are familiar with comity doctrine. It calls for a review of a foreign jurisdiction’s minimum due process standards rather than judicial intervention in its internal matters. Comity gives effect to the mutual respect called for by sovereigns, a doctrine that is well suited to co-equal branches of government. Thus, it is appropriate for a modest reduction in judicial deference to Congress when Congress seeks enforcement, and thereby sanction, of its processes.
Congress’s policy role and democratic political accountability caution against a heavy handed judicial inquiry. There are meaningful differences between adjudicative proceedings and fact-finding inquiries. But there are still important reputational, governance, and other collateral interests at stake in congressional investigations. Congress may not owe the full panoply of rights afforded parties to judicial proceedings, but that does not excuse it from offering meaningful safeguards.
I am still substantially revising the article before it will be published in Volume 85 of the Mississippi Law Journal, so I welcome feedback.