They're meant to expose wrongdoing and corruption or find the cracks in the systems in order to remedy them. But what, exactly, is Congress allowed to investigate, what is the end goal and what does it mean to be held in contempt?

Linda Fowler, Professor of Government and Policy at Dartmouth College, is our guide to congressional investigations -- how they happen, why they happen and what happens afterward.

Congressional Investigations: Audio automatically transcribed by Sonix

Congressional Investigations: this mp3 audio file was automatically transcribed by Sonix with the This transcript may contain errors.

Hannah McCarthy:
Nick, I must have told you this about a dozen times at this point, but I will never forget when a British friend of mine and this was a few years ago heard of some recent turn of political events that she disagreed with in the United States. And she just goes, OK, so when does your secret shadow government step in? Isn't it about time for that?

Nick Capodice:
You have told me this story a dozen times.

Hannah McCarthy:
Well, I think when things go off the rails or seem to go off the rails, the question is often who is in charge here? Isn't anyone going to do anything about this?

Nick Capodice:
Yeah, especially when you're talking about big federal business, national goings on. It's also high level and it's outside of our power.

Hannah McCarthy:
Part of the reason Civics 101 got started is that after the 2016 election, listeners kept writing in to ask us, Can that government official actually do that? Is that legal? And we were like, I don't know, we'll ask someone for you.

Nick Capodice:
That's true, and it's exactly what we do. And more often than not, the answer has been that person can do that unless someone else notices it and does something about it.

Hannah McCarthy:
Yeah. Well, today we're going to talk about what it looks like when someone does something about it or tries to. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice:
I'm Nick Capodice.

Hannah McCarthy:
And this is an investigation into... Exactly that. Investigations. Congressional investigations.

Archival:
Have you no sense of decency, sir, at long last, have you left no sense of the fact that I wasn't involved in an obstruction of justice, the fact that I assisted another in perjured testimony, if those responsible are not held accountable and if Congress does not act responsibly, this will remain a cancer on our constitutional. I began by telling the president that there was a cancer growing on the presidency. I've come to that later, but I'll answer the question now. I wish you would. I have the witnesses, but I didn't have. And what?

Nick Capodice:
All right, first things first, let's define what a congressional investigation actually is

Hannah McCarthy:
A congressional investigation is when a committee of the House or Senate or both requests information and testimony about something that seems to be illegal or dangerous or done in bad faith, something that's going

Hannah McCarthy:
Wrong.

Linda Fowler:
It implies there was wrongdoing.

Hannah McCarthy:
This is Linda Fowler, professor emeritus of government and policy studies at Dartmouth College and author of several books, most recently Watchdogs on the Hill. She spoke with former host Virginia Prescott back in 2017,

Nick Capodice:
And as we're having this conversation January 20 22, there is a congressional investigation that is getting a lot of attention.

Archival:
The House Select Committee on January six will hold public hearings in the New Year on the attack on the United States Capitol. The Washington

Hannah McCarthy:
Right. There's a House committee investigating the Jan. six insurrection in Washington, D.C. This committee is named for obvious reasons the U.S. House Select Committee to investigate the January 6th attack on the United States Capitol.

Nick Capodice:
A very fitting name, and here's something I've never really understood where in the Constitution is Congress empowered to conduct investigations?

Hannah McCarthy:
Nowhere.

Linda Fowler:
There's no specific language that says Congress has the power to investigate the executive branch, so it's an implied power. But basically, since Congress is charged with making all the laws, it needs to inquire whether the executive branch is following the laws that it passed and whether it's doing those things properly.

Hannah McCarthy:
Congress can essentially investigate anything as long as it is something that they can pass legislation or take action about.

Nick Capodice:
Ok, so Congress ability to investigate is tied to the fact that they have the ability to make laws and act as a check on the other branches.

Hannah McCarthy:
Exactly. These investigations are about keeping an eye on federal agencies about making sure legislation is appropriate, about looking into matters of national importance to see if legislation might need to be passed. The goal is to expose problems or wrongdoing by subpoenaing people to testify before Congress and by requesting documents. Woodrow Wilson once described congressional investigations as, quote a semi judicial examination into corners suspected to be dirty.

Nick Capodice:
It almost sounds like you're saying that Congress can investigate anything as long as it suspects something is afoot.

Hannah McCarthy:
Oh, these investigations run the gamut. Abuses of power in intelligence gathering at the CIA and FBI.

Archival:
There has never been a full public accounting of FBI domestic intelligence operations. Therefore, this committee has undertaken such an investigation.

Hannah McCarthy:
The sinking of the Titanic.

Nick Capodice:
Wow.

Hannah McCarthy:
The government response to Hurricane Katrina

Archival:
With the help of former FEMA director Michael Brown, we will attempt to construct, for the record, a timeline of what FEMA did and didn't do before, during and after the catastrophic

Archival:
storm.

Hannah McCarthy:
Delays and mismanagement of the Department of Veterans Affairs, even rigged game shows in the 1950s.

Archival:
Along the waterfront. No, I'm sorry. The answer is Marty Marty. You lose five points.

Hannah McCarthy:
I put you back. And since the beginning, these investigations have received resistance and pushback. Let's take the first one ever.

Linda Fowler:
Well, actually, it was in George Washington's presidency. There were troops engaged on the western border of fighting various tribes, and Congress had an inquiry about how that was going.

Hannah McCarthy:
Congress asked George Washington for paperwork pertaining to the fighting with these American Indian tribes. And Washington questioned whether he really needed to provide the documents. Ultimately, he gave Congress some, but not all this executive privilege was born.

Nick Capodice:
All right. And we saw this in the case of the January 6th investigation. I know that President Trump sued to prevent the National Archives from turning over White House documents claiming executive privilege,

Hannah McCarthy:
Which as of early December was denied by a circuit court of Appeals. Historically, not a whole lot has been done on the part of the courts to limit Congress's ability to investigate.

Nick Capodice:
All right, I got rigged game shows and the sinking of the Titanic. But what are the big ones? What are the real monumental ones that have affected America in the last hundred years?

Linda Fowler:
Well, a really famous one was on war profiteering during World War Two that was led by then-Senator Harry Truman. Of course, the Watergate investigations in the nineteen seventies by Sam Ervin, a southern Democrat from North Carolina who chaired the Judiciary Committee.

Speaker3:
Now, the evidence in this case shows that seven men were indicted for burglarizing and bugging the Watergate, including three employees of the committee to reelect the

Linda Fowler:
President.

Linda Fowler:
We've also had recent investigation about conditions at Walter Reed Hospital, the in addition to Watergate, many people may remember the McCarthy investigations of domestic communism.

Nick Capodice:
Wait, wait a minute. I would like to pause here. I know the courts haven't done much to limit congressional investigations, but weren't the McCarthy hearings the House un-American Activities Committee investigations considered universally to be pretty bad?

Archival:
Communists subversive activities has developed into hysterical frenzy, which grows daily. Appointed by Congress to investigate. Chairman Parnell Thomas opens the hearing investigating alleged communist influence and infiltration in the moving picture industry must not be considered.

Hannah McCarthy:
This one is actually trickier than it seems. A lot of people were opposed to these investigations, but the meaningful question here is what the courts had to say when Congress started investigating private citizens in the 1930s for suspected disloyalty, a.k.a. being a communist. People did refuse to answer their questions about past behaviors, and they were held in contempt of Congress. In one case, Watkins v. United States, the Supreme Court ruled that the contempt charge was invalid under the Fifth Amendment, but the court later walked that back when they sustained a separate contempt charge in Barron Blatt, the United States that was another House un-American Activities Committee case. Basically, SCOTUS ruled that the government's interest outweighed that of the private citizen.

Nick Capodice:
Ok, so it sounds like these investigations are nearly like trials, but without a court. So do they share any features of courtroom proceedings?

Linda Fowler:
Yes and no. So they have some quasi legal features. For example, the subpoena that if you ignore a subpoena from a congressional committee, you can be compelled to testify. You can be locked up for contempt of Congress. If you don't, you can be locked up.

Nick Capodice:
Locked up?

Hannah McCarthy:
After you were found in contempt of Congress. The presiding officer of whatever chamber is citing contempt then refers that matter to the U.S. Attorney of D.C., who then refers that matter to a grand jury. It is a criminal offense with a penalty of no less than one month nor more than 12 in jail and a fine between 100 and $100000.

Nick Capodice:
Wow.

Linda Fowler:
It used to be the case that during the McCarthy era, people who refused to testify were nevertheless threatened with being locked up for contempt of Congress. So after the mid 50s, there are more procedural protections for witnesses. They can't be compelled to testify against them.

Nick Capodice:
And we keep calling these congressional investigations. But the January 6th investigation is specifically a House Committee investigation. Is it common to have one chamber conduct an investigation while the other one doesn't.

Linda Fowler:
Well, you have to go back to 1946 after World War Two, when committees could launch investigations, but they had to get approval from their chamber to do it. After nineteen forty six, when Congress enacted a statute, it required all standing committees in the House and the Senate to engage in oversight and conduct inquiries. And gradually, these committees, such as the Armed Services Committee or the Judiciary Committee, were granted subpoena powers so they could compel witnesses to come before them to testify. So you can get investigations in one chamber, but not the other.

Nick Capodice:
But and again, this is in the case of the January six investigation. The U.S. House Select Committee to investigate the January 6th attack on the United States Capitol is not, I'm going to guess, a standing committee that's been around for a while.

Hannah McCarthy:
Correct. Good guess.

Nick Capodice:
So where did this committee come from?

Linda Fowler:
Their standing committees, which are the regular committees that Congress uses to vet legislation markup bills, then you may have either the Senate or the House or jointly authorize an investigative committee. So for example, the House Armed Services Committee and the Senate Armed Services Committee both launched inquiries after the consulate in Benghazi, Libya, was overrun by a mob and several Americans were killed.

Archival:
Today, the oversight committee convenes a fourth hearing related to the security situation in Libya before, during and after the September 11 terrorist attack in Benghazi, which claimed the lives of four Americans.

Linda Fowler:
They had their inquiry. They had public testimony. Republicans in the House at the time were not satisfied. They were convinced that Secretary Clinton had been negligent. So the House then went ahead and authorized an investigation, and they set up a special committee with special staff. So the difference, I think, between an investigatory committee and an oversight committee has to do with whether the Senate is using its existing organizations or whether it creates a new one with a very special purpose.

Hannah McCarthy:
But committees, as it turns out, are not the only way to investigate things at the congressional level. The other option just happens to have one important obstacle. We'll get to that and to the point of these investigations after the break.

Nick Capodice:
But before we do, we just want to let you know that we have a biweekly newsletter called Extra Credit, where we put in all the stuff that we couldn't squeeze into the episode. You can subscribe at civics101podcast.org.

Hannah McCarthy:
Before we get on with the show, this is your weekly reminder that while Civics 101 will always be free to You, it is tragically not free to make. It takes a staff, it takes a lot of research and it takes a lot of equipment to make the show, which takes money. If you believe in what Civics 101 does and you have the ability to contribute, I am asking you to take just a moment. It's quick, it's easy, and it actually makes a world of difference to us. Go to Civics101podcast.org and click the donate button

Nick Capodice:
And you'll get a fancy new sticker.

Nick Capodice:
While supplies last.

Hannah McCarthy:
It says The Constitution is my copilot and it's pretty cool.

Nick Capodice:
All right, here we go now, Hannah. We've covered the committees that conduct these investigations, but there's another path that I've heard of that I'd like to dig into before the January 6th House investigation started. There was a call in the Senate for something called an independent commission to look into the January 6th events. And I remember hearing that that measure failed. But what exactly would it have meant if it had succeeded? What is an independent commission?

Hannah McCarthy:
An independent commission is a special group that Congress establishes to look into an issue and provide independent advice. These groups are not necessarily made up of members of Congress, but of experts who might be better suited than members of Congress to understand a problem. This makes them either nonpartisan or if members of Congress are a part of the group, often bipartisan.

Linda Fowler:
And they are appointed in various combinations by the executive branch or by the Congress or some combination of the two. So an independent commission has to be authorized by statutes, which means it has to pass both chambers and it has to be signed by the president into law.

Nick Capodice:
Ok, I see a problem here when it comes to investigations being signed into law and it has to do with the executive branch. So what president would happily sign that statute into law?

Linda Fowler:
It depends on what Congress puts in the statute, but you can well imagine with Republicans controlling the House and the Senate that they might give the president more voice than if the Democrats were controlling the House and Senate when they drafted the law. There's a lot of horse trading that goes on in deciding how big the commission is going to be, who's going to be on it. So a classic example would be a different kind of independent commission was used to look at budget deficits.

Hannah McCarthy:
Ok, so this one was created by Barack Obama. Back in 2010, he appointed members of Congress, former members of Congress and some experts. This group was given the job of coming up with a plan for reducing the deficit. These groups come up with recommendations. They can even draft legislation to pass on to lawmakers.

Nick Capodice:
It occurs to me, Hannah, that when, for example, the Justice Department is investigating something, the people doing the investigating are trained. It's their job. How effective can a congressional investigation be if these are just politicians asking questions?

Linda Fowler:
Well, the whole point of the committee system in Congress is that members develop expertize in a particular policy area, so people on the Intelligence Committee are supposed to have had at least some experience in dealing with intelligence matters. People are armed services may have a special expertize on our on defense matters, but there's a lot of variation among chairs and among members.

Hannah McCarthy:
Take former congressman Devin Nunes, for example. He was the chair of the House Intelligence Committee, but he had essentially no experience in intelligence matters and had some difficulty in that role. But then you have the late Senator John McCain, a war veteran who had done Navy liaison work with the Armed Services Committee, who later became chair of that committee.

Linda Fowler:
There's a wide range of expertise. Some chairs and committee members are very conscientious. They work hard on their committees. Others, not so much.

Nick Capodice:
Now, ultimately. Congress is not a court. So I'm wondering Hannah, aside from holding someone in contempt for not giving over documents or providing testimony. What's the purpose? Why do these investigations?

Hannah McCarthy:
No, but these investigations, as we've seen over the past few years, are both public and widely reported on the public cares about them. So does the Justice Department. If a congressional investigation reveals widespread wrongdoing, the next step is often a court case. For example, let's look at the Teapot Dome scandal of the 1920s.

Nick Capodice:
Oh, Teapot Dome. Good old Teapot Dome.

Hannah McCarthy:
Well, I bring this up, right? Because when you hear that term, you're like, Oh yeah, the Teapot Dome scandal. But Nick, do you remember what this scandal was?

Nick Capodice:
I don't. I know it's something to do in the nineteen twenties, and I'm sorry. Mr. Zecka, my eighth grade social studies teacher. I don't know what it was.

Hannah McCarthy:
Ok, I couldn't remember either. And it really is scandalous. The former secretary of the interior, Albert Fall, was charged with accepting bribes from oil companies in exchange for exclusive drilling rights on federal lands. This investigation resulted in Albert Albertville going to jail, and it was the first time a cabinet member went to jail for a felony committed while in office.

Nick Capodice:
It's a very memorable name. What is the Teapot Dome part of it?

Hannah McCarthy:
Yeah, I had to look that up. That was the name of a big, teapot shaped rock formation on land that Albert promised in Wyoming.

Nick Capodice:
How about that? All right, last question here. We started this whole conversation by talking about the fact that federal wrongdoing feels so far out of our reach as members of the public. It's a who watches the Watchmen kind of question, but these investigations being public involving politicians and elected officials must carry some political weight. Does it really matter if someone puts in a call to their rep and says, Hey, there's something rotten in the state of Denmark? Can you please take a look?

Linda Fowler:
Of course it does. What the public does have a responsibility to do is to insist that this be handled in a judicious manner and that Republican views and Democratic views are weighed carefully.

Hannah McCarthy:
I think it's important to remember the political aspect of these investigations. They aren't just used to look into something. They are an opportunity for grandstanding and with great media coverage to boot. In some ways, I think the voter is as important as the actual subject of the investigation. Your representatives want you to see them giving you what you want, saying what you want to hear.

Archival:
Have a few more things to say. But for the richest man in the world to come here and hide behind the poorest people in the world and say, that's who you're really trying to help.

Speaker3:
Let us not forget that the wave of innovation is spreading across the world with or without us. So that's why I believe that American innovation is on trial this day in this hearing. 2025 Initiative has been working for years to increase diversity and to somebody else, you know, to say, OK, what? Somebody posted on this really isn't true. And here's what the facts are. Rather than having a Twitter or a Facebook, take it down.

Nick Capodice:
So in some ways, this high level, seemingly beyond our reach procedure is not so far away, after all,

Hannah McCarthy:
Especially if you make your priorities known.

Hannah McCarthy:
This episode was produced by me, Hannah McCarthy with Nick Capodice. Our staff includes Jacqui Fulton and Christina Phillips. Rebecca Lavoie is our executive producer. Music in this episode by Xylo Zico, Ketsa and Bio Unit. Civics 101 is a production of NHPR, New Hampshire Public Radio.