1 Boring Old Man

Special Investigations

Congress has embarked on specialized investigations of the executive throughout most of the legislature’s 200-year history. Beginning in 1792, such investigations have become some of the most visible, dramatic, and sometimes traumatic of congressional activities.

In 1792, the House created a special committee to investigate the ignominious and unexpected defeat of an Army expedition force, led by General Arthur St. Clair, at the hands of the confederated Indian tribes in the Ohio Territory a year before. The committee was "empowered to call for such persons, papers, and records, as may be necessary to assist their inquiries.” President George Washington, in a highly unusual meeting, conferred with all of his Cabinet officers about the unprecedented investigation. They agreed that the House had a right to conduct such an inquiry but that the President should release only such papers as the “public good would permit and ought to refuse those the disclosure of which would injure the public.” While retaining custody of the original documents with the executive, Washington honored the panel’s request for information by sending copies of the pertinent records; a House clerk verified them for accuracy and completeness.

As it turned out, the St. Clair episode set two important, although competing, precedents with regard to overseeing the executive. Congress established that it could conduct specialized inquiries and secure the executive-held information, even in highly sensitive, secret matters and, implicitly, involving the President’s constitutional power as commander-in-chief. At the same time, the President established that he could control the release of the official documents, a harbinger of executive privilege.

During the intervening two centuries, Congress has embarked on a number of major investigations of the executive. These have often arisen because of allegations of executive misconduct, significant policy disputes between the two branches, and/or intense political conflicts between the dominant parties of the day or between and among factions within the majority party. In 1861, for instance, Congress created a Joint Committee on the Conduct of the War to examine the Lincoln Administration’s handling of the Civil War. Other notable probes included investigations into the Credit Mobilier (1872-1873), the Money Trust (1912), the Teapot Dome scandal (1923), and defense spending during World War II (1943-1944).

The early cold war era witnessed major investigations into alleged disloyalty and espionage by executive personnel. These efforts — spearheaded by the House Committee on Un-American Activities, the Senate Judiciary Subcommittee on Internal Security, and the Senate Government Operations Permanent Subcommittee on Investigations — however, raised serious concerns about the rights of witnesses and criticisms about unsubstantiated claims which unfairly tainted individuals and entire agencies.

Significant congressional investigative efforts over the past quarter century and their impact include the following examples:

• The war in Vietnam during the Johnson, Nixon, and Ford Administrations, with hearings conducted by the Senate Foreign Relations Committee and House Foreign Affairs Committee as well as by other panels. These, in part, led to a reduction and eventual cutoff in funding for the war effort and to new statutory controls over war powers.

• Watergate and the impeachment of President Nixon in 1973-1974, with hearings conducted by a select committee in the Senate, chaired by Sam Ervin, and by the House Judiciary Committee. These efforts helped to bring about the resignation of President Nixon, following the resignation and criminal indictment of top Administration officials. These investigations and subsequent hearings also prompted the Ethics in Government Act, which included provision for a special prosecutor (later renamed the independent counsel) to investigate suspected criminal conduct by high-ranking executive officials.
• Intelligence agency abuses in 1975-76, with inquiries by temporary select committees on intelligence in both Chambers. These prompted changes in statutory controls and new executive orders on the intelligence agencies as well as to the creation of permanent Select Committees on Intelligence in the House and Senate.
• Financial scandal in the General Services Administration in 1977-1978, with inquiries conducted by the Senate Public Works Committee and House and Senate Government Operations Committees. These efforts led to new statutory controls over GSA contracting procedures and to the Inspector General Act of 1978, establishing independent IGs in GSA and eleven other Federal establishments.
• Abscam in 1981-1982, with hearings held by the House Judiciary Subcommittee on Civil and Constitutional Rights and by a bipartisan Senate select committee, chaired by Charles Mathias. These efforts, in part, helped to promote and solidify changes in Justice Department procedures governing undercover operations.
• Defense procurement fraud, cost-overruns, and waste in the early- to mid-1980s, with hearings and investigations conducted largely by the House and Senate Committees on Armed Services and the Appropriations Subcommittees on Defense. These efforts served as catalysts to several legislative initiatives: to install a statutory office of inspector general in the Department of Defense, to establish a procurement “czar” for DoD, and to broaden the jurisdiction of the Defense Investigative Service, allowing it to investigate the highly classified special access programs.
• The Iran-contra affair in 1986-1987, with probes undertaken initially by the House and Senate Select Committees on Intelligence and later by specially created select committees on the affair itself, among others. These helped to produce changes in executive procedures for covert action, to amend statutory reporting requirements in this field, and to install a statutory office of inspector general in the CIA.
• Program abuses and mismanagement in the Department of Housing and Urban Development in 1989-1990, with hearings conducted by the specially created HUD/MOD REHAB Investigation Subcommittee of the Senate Committee on Banking, Housing, and Urban Affairs and by the Subcommittee on Employment and Housing of the House Government Operations Committee. These efforts promoted improvements in reporting by the HUD Inspector General to Congress, administrative reforms within the Department, and legislative changes in relevant programs.