Rapallo on Congressional Power to Investigate Crime

David Rapallo, Georgetown University Law Center, has posted Congress’s Power to Investigate Crime: Did Trump Kill Kilbourn? which is to appear in the NYU Journal of Legislation and Public Policy:

Can Congress investigate crime? Targets of congressional investigations have tried to argue for decades that the Constitution grants Congress no authority to investigate illegal conduct, but instead vests this power exclusively in the executive and judicial branches. Former President Donald Trump was one of the most recent litigants to make this claim, repeatedly invoking a Supreme Court case from 1881, Kilbourn v. Thompson, despite the fact that the Court condemned this opinion decades ago as "severely discredited." In contrast, Congress has successfully asserted its own constitutional authority to investigate all types of activity-including illegal conduct-not to prosecute the offenders, but to inform legislation and fulfill its various other legislative branch responsibilities.

This Article sheds light on this recurrent debate by tracing its evolution across three historical periods. Since Kilbourn is central to the claims of targets of congressional investigations, the Article begins with a reexamination of that case. It unearths surprising new details about Congress's original investigation and shows how the Court devalued Congress's investigative function, mischaracterized Congress's contempt power as judicial in nature, and adopted an approach that would require Congress to yield to other branches' parallel investigations. Second, a review of more than 100 subsequent court decisions tracks the dismantling of Kilbourn's premises over time. It shows how the Court corrected its errors, recognized Congress's investigative power as derived from its legislative branch authority rather than having judicial origins, and approved numerous congressional investigations while parallel criminal inquiries were ongoing. Third, this Article examines Trump's extensive but ultimately unsuccessful campaign before courts of all levels-including the Supreme Court-to resuscitate Kilbourn to block Congress from investigating his alleged crimes. In response to the question of whether Congress may investigate crime, this Article concludes that the answer is undoubtedly yes. Rather than bringing Kilbourn back to life, Trump's efforts had the opposite effect, creating a surfeit of new precedents that solidified Congress's authority.

--Dan Ernst