Staff Depositions in Congressional Investigations

Publication Date: December 1999

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

Type:

Abstract:

Depositions have been used in a relatively small number of major congressional investigations in the last quarter of a century. Depositions in the legislative branch are often taken by committee staff, but Members sometimes are involved in the process. Depositions may be a desirable alternative to a committee hearing, enabling a panel to obtain the information that it needs quickly, confidentially, and without the attendance of Members. However, concerns have been raised that staff depositions may compromise the rights of deponents and restrict the role of the minority in the investigative process.

On a number of occasions, authority for committee staff to take depositions has been granted pursuant to Senate and House resolutions. Committees that have been granted deposition authority often adopt rules establishing procedures for depositions.

Assuming, arguendo, that staff depositions are appropriately authorized, the two main legal issues presented by these depositions are (a) enforcement of a subpoena for a staff deposition and (b) sanctions for false statements in such a deposition.

There are three methods of citing a witness for contempt of Congress. Statutory criminal contempt (2 U.S.C. §§ 192 and 194) and the inherent contempt power may be utilized by either the Senate or the House. The statutory civil contempt mechanism (28 U.S.C. § 1365) is, by its terms, available only to the Senate. It may be argued that any of these three methods could be utilized to enforce a subpoena for a staff deposition. However, in recent investigations in which the House has authorized staff depositions by a standing committee, the majority and minority have debated the propriety of citing a deponent for contempt for failure to appear at such a deposition or to answer questions in such a proceeding if he subsequently responds fully at a committee hearing.

A witness who makes a false statement in a deposition given before committee staff might be prosecuted under various statutory provisions, including 18 U.S.C. § 1001 (false statements), § 1505 (obstruction of investigation), or § 1621 (perjury). Of course, a prosecution under the perjury statute would be possible only if the witness was placed under oath. In resolutions adopted in recent years authorizing depositions, the House and Senate often have provided for the taking of such depositions under oath, arguably indicating that, in the view of Congress, statements at such depositions could be subject to a perjury prosecution. Although judicial decisions afford an inadequate basis for a definitive determination as to whether all of the elements of the perjury statute could be satisfied in a prosecution of a witness for a statement made in a staff deposition, administration of an oath puts a witness on notice of the significance attached by the committee to his deposition.