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Though the U.S. Constitution makes no mention of congressional oversight, there is a strong argument that getting information is a necessary part of writing effective legislation.

However, in watching the House Judiciary Committee (HJC) hearing today, it struck me that the majority on the committee sacrificed their opportunity to get information from the Attorney General Barr. Instead, the focus for them seemed to be using the hearing time to express their contempt for him by refusing to permit him (as witness) to answer their questions. The majority typically interrupted Barr’s answers mid-sentence seconds after he started to answer, sometimes yelling, “I reclaim my time” in an effort to suppress his answer. Even more alarming, were the committee members who leveled partisan accusations at the witness, without giving him time to answer their allegations.

Without getting into the partisan motivations behind this, are there any recognized checks and balances under the separation of powers to stop congress exceeding its authority (to write legislation and set the budget) by confusing oversight with prosecutorial and judicial inquiry? Ranking member Jim Jordan crystalized the concern saying:

I don't think we've ever had a hearing where the witness wasn't allowed to respond to points made, questions asked, and attacks — attacks made. Not just in this hearing, not just in this committee, but in every committee I've been on, particularly when you think about the fact that we have the attorney general of the United States here.

Later AG Barr said:

This is a hearing. I thought I was the one who was supposed to be heard.

AG Barr seems to be referring to a right to be heard being part of due process, so I guess the question becomes: is an accused right to procedural due process, which includes the concept that:

The government must provide you with an opportunity to rebut their charges against you in a meaningful way and at a meaningful time (the "hearing requirement").

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    I think the question is fine, but the title and the second paragraph seem a bit editorial and opinion-based. Consider editing them?
    – divibisan
    Commented Jul 29, 2020 at 2:45
  • I disagree with @divibisan. The question is perfectly fine.
    – markvs
    Commented Jul 29, 2020 at 3:49
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    Despite the rhetoric, AG Barr was a witness, not an accused.
    – Rick Smith
    Commented Jul 30, 2020 at 2:41
  • The link shows in writing that it is an inquiry, "to determine whether the House of Representatives should impeach" which would then have an accused.
    – Jontia
    Commented Jul 30, 2020 at 8:51
  • The last action on H.Res.1032 was on 06/30/2020: "Referred to the House Committee on Rules." The House Judiciary Committee was conducting its normal oversight role. At this point, H.Res.1032 is irrelevant. There is a difference between accuse to blame and to formally charge. The former is used in rhetoric (or speech). The latter is related to law.
    – Rick Smith
    Commented Jul 30, 2020 at 13:27

1 Answer 1

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The limits of the House Judiciary Committee are contained in the rules for the House of Representatives, of which, the relevant parts are shown below. Specifically, Congressional oversight is never limited by law, statute, or regulation; or, for that matter, the Constitution; that is to say, oversight, in and of itself, is unrestricted, as it applies to current law. Certain inquiries are restricted.

Broad as the power of inquiry is, it is not unlimited. The power of investigation may properly be employed only in aid of the legislative function. Its outermost boundaries are marked, then, by the outermost boundaries of the power to legislate. (Constitution Annotated)

The House Judiciary Committee is authorized to conduct oversight of "[a]dministrative practice and procedure" "[i]n order to determine whether laws and programs addressing subjects within the jurisdiction of a committee are being implemented and carried out in accordance with the intent of Congress ...".

While the committee is not "abusing" its oversight authority, some members of the committee may be "abusing" the process by making (or attempting to make) "political points" in their questioning of the Attorney General (AG). However, such "abuse" is Constitutionally protected in Article I, Section 5, "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member"; and by Article I, Section 6, "They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." (Embolding added.)

Without getting into the partisan motivations behind this, are there any recognized checks and balances under the separation of powers to stop congress exceeding its authority (to write legislation and set the budget) by confusing oversight with prosecutorial and judicial inquiry?

No, in practice, the House Judiciary Committee normally conducts the quasi-judicial inquiries for the impeachment process; and, if one accepts Speaker Pelosi's arguments, the House Judiciary Committee could be, for all we know, conducting an impeachment inquiry of AG Barr.

--- Rules of the House of Representatives

RULE X
Organization of Committees

Committees and their legislative jurisdictions

  1. There shall be in the House the following standing committees, each of which shall have the jurisdiction and related functions assigned by this clause and clauses 2, 3, and 4. All bills, resolutions, and other matters relating to subjects within the jurisdiction of the standing committees listed in this clause shall be referred to those committees, in accordance with clause 2 of rule XII, as follows:

...
(l) Committee on the Judiciary.

...
(2) Administrative practice and procedure.

General oversight responsibilities

2.

(a) The various standing committees shall have general oversight responsibilities as provided in paragraph (b) in order to assist the House in—

(1) its analysis, appraisal, and evaluation of—

(A) the application, administration, execution, and effectiveness of Federal laws; and
(B) conditions and circumstances that may indicate the necessity or desirability of enacting new or additional legislation; and

(2) its formulation, consideration, and enactment of changes in Federal laws, and of such additional legislation as may be necessary or appropriate.

(b)

(1) In order to determine whether laws and programs addressing subjects within the jurisdiction of a committee are being implemented and carried out in accordance with the intent of Congress and whether they should be continued, curtailed, or eliminated, each standing committee (other than the Committee on Appropriations) shall review and study on a continuing basis—

(A) the application, administration, execution, and effectiveness of laws and programs addressing subjects within its jurisdiction;

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    You said: "Specifically, Congressional oversight is never limited by law, statute, or regulation; or, for that matter, the Constitution." Is there a citation for this assertion, particularly with regard to the Constitution? What about the 10th Amendment, which reserves all powers not granted to the federal government for the states and people.
    – Burt_Harris
    Commented Jul 29, 2020 at 18:53
  • @Burt_Harris - The point I wanted to emphasize is that the U.S. Code is not a limitation on Congress. In fact either house of Congress could discuss any matter, even if the only possible result is a law that is unconstitutional. All that is required is a majority vote on a resolution to start that discussion.
    – Rick Smith
    Commented Jul 29, 2020 at 21:00
  • I understand that majority vote of a single house can (and did) start the inquiry process. My question is about the majority's tactics. I've updated the question to include quotes which raise the issue.
    – Burt_Harris
    Commented Jul 29, 2020 at 22:46
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    "It was not left to the legislative power to enact any process which might be devised. The due process article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process 'due process of law' by its mere will. " *MURRAY v. HOBOKEN LAND - 59 U.S. 272 (1855)
    – Burt_Harris
    Commented Jul 29, 2020 at 22:52
  • @Burt_Harris - MURRAY v. HOBOKEN LAND has nothing to do with Congressional hearings. There is no violation of "due process", if a committee member refuses to allow a witness to answer a question. And, while it may be considered "bad form", it is simply something that may happen during a committee hearing. This is part of the "speech and debate" privilege.
    – Rick Smith
    Commented Jul 30, 2020 at 1:09

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