Congressional Due Process

70 Pages Posted: 17 Sep 2015 Last revised: 1 Jan 2017

See all articles by Andrew McCanse Wright

Andrew McCanse Wright

New York University School of Law; K&L Gates LLP

Date Written: September 15, 2015


Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. This article highlights differences between congressional and judicial proceedings with respect to such safeguards for witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have general applicability, and as such, it needs broad power to obtain information. However, while full and formal adjudicative rights may not apply to congressional proceedings, underlying constitutional values do. The goal of protecting individuals from abusive treatment at the hands of the government — a value that undergirds formal adjudicative due process rights — applies with equal force to legislative processes. Further, Congress wants its proceedings to be shown the respect accorded to the Judiciary without adopting commensurate notions of fair play.

Deficiencies in congressional hearings and investigative practices demonstrate institutional indifference to procedural protections for government officials, private citizens, and corporate entities. Fundamental concepts of substantive and procedural fairness are either disavowed or inadequately protected by Congress. Further, Congress undervalues substantive due process by failing to honor the norms of constitutional civil liberties. Even instances in which Congress has adopted a policy to honor a due process interest, its enforcement mechanism often proves inadequate.

In this article, I argue that lack of due process in congressional investigations is an impediment to proper legislative function. Congressional oversight is a critically important, constitutionally grounded function. Congress frustrates, rather than furthers, robust oversight by means of resistance to due process and fairness. Congress and the Judiciary have a role in addressing these due process deficiencies. First, Congress needs to engage in self-regulation by enhancing its rules and enforcement mechanisms. Second, courts need to engage in a more searching, and less deferential, inquiry when Congress seeks judicial enforcement of its oversight prerogatives. While functional and prudential reasons caution against constitutional law as the primary source of regulation of congressional procedures, courts need to ensure that parties are afforded due process.

Keywords: Constitutional Law, due process, Congress, congressional investigations, congressional oversight, First Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Self-Incrimination, subpoena

Suggested Citation

Wright, Andrew McCanse, Congressional Due Process (September 15, 2015). 85 Mississippi Law Journal 401 (2016), Available at SSRN:

Andrew McCanse Wright (Contact Author)

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