Erwin Griswold, Subpoenas, and Congressional Investigations

 Erwin Griswold

My Country – Erwin Griswold

At the time of his death, Erwin Griswold had argued over 100 cases in front of the Supreme Court. As the U.S. solicitor general and dean of the Harvard Law School, Griswold left a huge imprint on the jurisprduence of the United States. One of his shining moments came during the McCarthy era, just like Edward R. Murrow, when he stood up to reform Congressional investigations.

Justice Douglas that in 1954, Congressional investigations exceeded the fair play that “it seemed the Inquisition had come to America.” He noted how people’s reputations were ruined. “Hersay and innuendo, even the accusation itself, became the substitute for proof.”

Suggested Congressional Investigation Reforms from Dean Erwin Griswold

  1. Only the committee, not the chairman or staff, should issue a subpoena.
  2. When a witness is summoned, he should have the right to counsel and counsel should be entitled not only to advise him, but to speak on this behalf.
  3. No testimony should be taken in executive session (secretly), unless the witness is willing. If so taken, it should not be used or referred to in open hearins unless the full evidence is produced.
  4. Witnesses should not be required to testify before camera, on the radio, or on television. “Legislative investigations are not a part of show business.”
  5. Legislative investigation is “improper” when its purpose is to “expose” people or evidence for use in criminal prosecutions.
  6. A witness should be entitled to rebut evidence against him.
  7. A witness need not testify if a committee violates the rules.

Generally, Erwin Griswold focused on the Fifth Amendment. In a book entitled, The Fifth Amendment Today, he asked

The constitutional provision in the Fifth Amendment says that no person shall be required to testify against himself ‘in any criminal case’. Is it not clear that a legislative investigation is not a ‘criminal case’? What application, then, does the constitutional provision have in such proceedings — or in civil trials, or elsewhere, where persons may be subjected to questioning?

He concluded to not literally apply the privilege against self-incrimination. Instead, the application would afford an umbrella to anyone wherever the person’s interrogation.

How Do Griswold’s Reform Look Today?

According to a 2015 report, most House and Senate committees have specific rules on authorizing a subpoena by majority vote. Additionally, most House committees have also delegated to their chair the power to authorize subpoenas. Many of these rules delegating authority also require the chair to consult the committee’s ranking minority Member. Most Senate committees’ subpoena rules delegate to the chair and ranking minority Member together the power to authorize subpoenas. Regarding issuing a subpoena, most House and Senate committees’ rules delegate authority to issue subpoenas to the chair or to another designated committee member.

Just about every committee investigation will appear on camera due to C-SPAN. And legislators have used that opportunity to become show business.

Additionally, a few major law firm has white papers on how to deal with Congressional investigations. Obviously, big business knows to cover these.

As we enter into the heart of 2017, Congressional investigations have been suggested regarding Russian interference into the election, whether or not Trump Tower was wiretapped, and many other ideas. Will they investigate? Who knows. But if investigations begin, keep Erwin Griswold and The Fifth Amendment Today in mind.

Daily Briefing

  • Texans have begun to receive notices of land condemnation for the wall. This woman will get $2,900 for over 1 acre of land. Sounds fair right?
  • If Democrats talk issues and how they want to use government to help most Americans, most Americans will listen.
  • Jesuits continue to help the people of Aleppo as the rest of the world ignores them.
  • Journalistic ethics has always fascinated me. I remember reading about Stephen Glass and Jayson Blair. I hope that Kevin Deutsch’s work comes out okay in the end. But we need to keep a close eye.
  • I used to have to post corrections through Snopes to far too many people’s Facebook pages. I don’t do that very often anymore. Hopefully, most of them do it on their own (or I have unfriended them). This hoax story is insane.
  • FOIA inquiries are a fundamental component of our democracy. The fact that the Obama administration spent $36 million to defend against FOIA requests dismays me.

Daily Distraction

I wish I could see a production of this show. Sunday in the Park with George is one of my favorite shows and I have heard so many good things about this production. At least, I can watch this.

One Sentence Story

He ate it up there?

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