Column: Constitutional Limits on Congressional Investigations Into Palestine-Israel Advocacy

The current House investigation into controversial expressive activity harkens back to the McCarthy era of the 1950s, when the Supreme Court most notably addressed the conflict between the First Amendment and congressional investigative authority. That authority, as the recent criminal conviction and imprisonment of the Trump official demonstrates, is broad and comes with serious penalties. But as made clear by two Supreme Court decisions from the McCarthy era, that authority is not unbounded.

History and Basics

In one of its McCarthy-era cases, the Supreme Court traced the history of legislative investigative authority, abuses of that authority and the role of the judiciary back to the establishment of the English Parliament and “long and bitter” struggle to “challenge the absolute power of the monarch.” By contrast, the court explained, the broad scope of legislative authority and it being subject to judicial review was largely accepted with the founding of the United States.

Nonetheless, congressional exercise of its legislative investigative authority and Supreme Court decisions about that authority were slow to come. It was not until 1827 that the House of Representatives used its power of compulsory process with respect to existing or proposed legislation and not until 1859 that the Senate did. The Supreme Court’s first decision did not come until 1881, when the court invalidated an investigation it deemed outside the House’s authority.

In the 20th century, congressional investigations and use of compulsory process became common, but Supreme Court cases remained rare until 1950s, when investigations into the Communist Party spawned a burst of decisions. In Quinn v. United States, 349 U.S. 155 (1955), which presented the issue whether the Fifth Amendment’s right against self-incrimination was a shield to an otherwise-valid congressional demand for information, the Court set out the parameters governing disputes about the validity of congressional efforts to compel disclosure:

There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is indeed co-extensive with the power to legislate. Without the power to investigate—including of course the authority to compel testimony, either through its own processes or through judicial trial—Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.

But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire into private affairs unrelated to a valid legislative purpose. Nor does it extend to an area in which Congress is forbidden to legislate…Still further limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination which is in issue here.

Since the 1950s—most notably during the Watergate era—adjudicated challenges to congressional investigations have focused on assertions of executive privilege by executive branch officials (as with the recently imprisoned former Trump official).

Congress has three different ways to enforce subpoenas seeking testimony or documents. The most direct route is through what is referred to as “inherent contempt,” by which the House or Senate adopts a resolution authorizing an arrest warrant to be executed by either body’s Sergeant-at-Arms, who can detain the subpoenaed person for a trial by the investigating body. If found guilty, the person can be imprisoned until they purge themselves of contempt. In 1927, the Supreme Court upheld this “inherent contempt” authority, but a recent Congressional Research Service report states it does not appear to have been used since the 1930s.

The second available enforcement mechanism involves a criminal prosecution through the Justice Department, such as the one that recently landed the former Trump official in prison. First enacted in 1857 and largely unchanged since then, a federal statute—currently codified at 2 U.S.C. §192—provides that any person who “willfully” fails to comply with a properly issued subpoena for testimony or documents is guilty of a misdemeanor, punishable by a fine up to $1,000 and imprisonment up to one year. To initiate a prosecution, the Speaker of the House or President of the Senate must refer the matter to Department of Justice (DOJ). Although the relevant statutory provision suggests the DOJ in turn must present the matter to a grand jury, in practice the DOJ has exercised considerable discretion and often chosen not to prosecute.

Finally, Congress can enforce its investigative subpoenas through civil proceedings it brings directly in federal court, with the first such cases not having been brought until the Watergate era according to the Congressional Research Service. Typically, either the House or Senate can authorize such cases through a resolution.

Congressional Subpoenas versus the First Amendment

The current House investigation concerning advocacy about the Palestine-Israel conflict, led by the House Committee on Education and the Workforce, raises immediate First Amendment concerns because it appears to squarely target speech and other expressive advocacy based on the content of the speech and the viewpoint of the speakers. Two Supreme Court cases from the McCarthy era (decided on the same day in June 1957) bear directly on this.

The first case centered on the criminal prosecution of Paul Sweezy, a Harvard-educated Marxist economist, political activist and founding editor of “Monthly Review”, a socialist magazine published in New York City. Pursuant to a New Hampshire investigation into “subversive” activities, the state legislature delegated broad investigative authority to the state’s attorney general, who twice summoned Sweezy to testify. Citing the First Amendment, he refused to answer certain questions about the activities and associations of friends, colleagues, and even his wife.

New Hampshire’s attorney general then prosecuted Sweezy in state court, where he was convicted and sentence to jail. Sweezy appealed to the Supreme Court, which vacated the conviction in Sweezy v. New Hampshire, 354 U.S. 234 (1957). In a tortured opinion, a plurality of the court recognized the First Amendment limits on legislative investigations, state and federal:

There is no doubt that legislative investigations, whether on a federal or state level, are capable of encroaching upon the constitutional liberties of individuals. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when the investigative process tends to impinge upon such highly sensitive areas as freedom of speech or press, freedom of political association and freedom of communication of ideas, particularly in the academic community.

But the plurality did not rely alone on this to invalidate the prosecution. Rather, it deployed these First Amendment concerns to ratchet up scrutiny on the procedural aspects of the investigation. Using this approach, a plurality of four justices ultimately concluded the attorney general’s questioning of the Sweezy fell outside of the legitimate purview of the Legislature because the Legislature’s delegation to the state attorney general meant it was unclear if the Legislature itself had a genuine interest in the questioning (two other justices relied entirely on the First Amendment in concurring in reversal of the conviction).

The took an analogous approach in its same-day decision involving John Watkins, a labor-union official called by the notorious Committee on Un-American Activities of the U.S. House of Representatives. Watkins freely testified about his past cooperation with the Communist Party but drew the line at naming associates and friends who were alleged to have ties to the party: “I do not believe that any law in this country requires me to testify about persons who may in the past have been Communist Party members or otherwise engaged in Communist Party activity but who to my best knowledge and belief have long since removed themselves from the Communist movement.”

For this, Watkins was federally prosecuted and convicted. As with Sweezy, however, the Supreme Court invalidated his conviction in. In doing so, a full majority of the court in Watkins v. United States, 354 U.S. 178 (1957) spoke passionately about the First Amendment implications of congressional overreach for those holding controversial views:

Abuses of the investigative process may imperceptibly lead to abridgment of protected freedoms. The mere summoning of a witness and compelling him to testify, against his will, about his beliefs, expressions or associations is a measure of governmental interference. And when those forced revelations concern matters that are unorthodox, unpopular, or even hateful to the general public, the reaction in the life of the witness may be disastrous. This effect is even more harsh when it is past beliefs, expressions or associations that are disclosed and judged by current standards rather than those contemporary with the matters exposed. Nor does the witness alone suffer the consequences. Those who are identified by witnesses and thereby placed in the same glare of publicity are equally subject to public stigma, scorn and obloquy. Beyond that, there is the more subtle and immeasurable effect upon those who tend to adhere to the most orthodox and uncontroversial views and associations in order to avoid a similar fate at some future time. That this impact is partly the result of non-governmental activity by private persons cannot relieve the investigators of their responsibility for initiating the reaction.

As with Sweeny, though, the court did not rely squarely on the First Amendment. Rather, it engaged in a lengthy analysis of the resolution authorizing the committee’s investigation as that resolution related to the criminal statute used to prosecute those who defy congressional subpoenas, ultimately concluding the committee’s approach was so broad and so ambiguous as to render it insufficient to support prosecution.

Looking Forward

The current House investigation has moved from letters requesting voluntary submission of information to formal subpoenas demanding production, the most notable example being a February subpoena issued to Harvard University. These subpoenas directly implicate First Amendment interests flagged by the Supreme Court in Sweezy and Watkins, which make clear that the First Amendment significantly limits the otherwise broad investigative authority of Congress.