Congressional Immunity Grants and Separation of Powers: Legislative Vetoes of Federal Prosecutions

24 Pages Posted: 26 Apr 2007


Congressional investigations can derail criminal prosecutions. The most famous example is the failure of the prosecution of Oliver North for his role in the Iran-Contra scandal after he testified at a congressional committee hearing about his conduct. The D.C. Circuit Court of Appeals held that much of the evidence being used in the prosecution was tainted by association with North's compelled congressional testimony and could not be used at trial.

The knowledge that congressional investigations and grants of immunity can create problems for prosecutors has not stopped either the investigations or the immunity grants. Recently, Congress granted immunity to a former Department of Justice official, Monica Goodling, and required her to testify at a congressional committee hearing about the firing of eight United States Attorneys.

This Note argues that immunity grants from congressional committees, and the federal statute that allows committees to make the grants, are unconstitutional under separation of powers doctrine. The privilege against self-incrimination requires the government to make a decision: it can either prosecute someone on criminal charges and allow him to remain silent, or it can grant immunity, compel him to testify, and give up the prosecution. The essential separation of powers question is whether Congress has the constitutional authority to grant immunity, or whether that choice is committed to the prosecutorial discretion of the executive branch.

I argue that the congressional immunity statute violates separation of powers doctrine. The statute unconstitutionally allows a committee of Congress to dictate prosecutorial decisions to the executive branch and to make changes to legal rights and duties without using the legislative process laid out in the Constitution. The decision whether or not to prosecute and the decision of which evidence should be used in pursuing a conviction are matters within executive branch control. Congress can make binding decisions in these areas only by statute.

Keywords: immunity, congressional hearing, congressional testimony, separation of powers, chadha, bowsher

Suggested Citation

Volokh, Hanah M., Congressional Immunity Grants and Separation of Powers: Legislative Vetoes of Federal Prosecutions. Georgetown Law Journal, Vol. 95, p. 2017, 2007, Available at SSRN:

Hanah M. Volokh (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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