Simply put, almost anything. Although the Constitution does not expressly authorize Congress to conduct investigations, Congress – and the courts – have long recognized that Congress has an inherent, constitutional prerogative to conduct investigations. In fact, the first congressional investigation occurred as early as 1792, when the House of Representatives convened a committee to investigate the defeat of General Arthur St. Clair in the Battle of the Wabash in what was then known as the Northwest Territory (and now known as Ohio).
Congress has the authority to conduct investigations “in aid of its legislative function.” That authority can extend to investigations for the purpose of deciding whether legislation is appropriate, to information gathering on matters of national importance, to oversight of federal departments and executive agencies. As a result, a congressional committee has broad discretion regarding both the scope of its investigation and the relevance of the information it requests.
Although congressional authority to investigate is broad, it is not unlimited. Because Congress’s authority to investigate is tied to its authority to legislate, limits on congressional investigations are necessarily linked to the limits on Congress’s constitutional authority. For example, Congress has no general authority to investigate the purely private affair of an ordinary citizen.
The doctrine of separation of powers also places limits on congressional authority to investigate. Congress cannot, under the guise of an investigation, usurp the power of another branch of government. It cannot investigate matters where the means of redress is purely judicial. Nor can Congress investigate matters committed to the President’s discretion. For example, Congress could not undertake an investigation to determine an individual’s entitlement to a pardon because the Constitution granted the pardon power to the President, not Congress.
While Congress can investigate conduct that may be criminal, Congress itself lacks the authority to bring criminal charges or otherwise initiate a criminal prosecution. If a congressional investigation uncovers evidence of criminal activity, however, Congress may refer the matter to the Department of Justice for investigation and, potentially, prosecution. Sometimes, the DOJ investigation predates the congressional investigation. No matter which branch of government moves first to investigate, however, the end result is that a congressional investigation often will run parallel to a criminal investigation. As a result, evidence developed in a congressional investigation might be used by the DOJ in its criminal investigation or in a prosecution.
Ultimately, nearly any matter can be anchored in some fashion to Congress’s legislative authority, making its authority to investigate almost boundless in practice. That reality is compounded by expansive interpretations of congressional authority and a hesitation by the courts to intervene in congressional investigations.
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