Dave Rapallo

Demonstrates that the current all-or-nothing debate around minority parties’ appropriate tools for and responsibilities around investigation misses significant opportunities for minorities to conduct oversight through a continuum of powers that can be deployed selectively and strategically rather than as a binary choice between complete obstruction and total passivity.

Discusses the limited ability of individual members of Congress to compel compliance with otherwise voluntary requests while showing how organized, persistent informal “back bench actions” by the minority and individual members, such as those engaged in by Rep. Henry Waxman in his days as a Ranking Minority Committee Member, may provide a model for potentially effective actions.

Traces the debate around Congress's ability to investigate crimes as it has evolved over the course of three historical periods, including the Kilbourn v. Thompson case, the subsequent cases that dismantled Kilbourn's premises, and finally Trump's campaign to revive Kilbourn to block Congress from investigating his alleged crimes. Concludes that Congress does have the authority to investigate, and that Trump's efforts to thwart this authority have actually resulted in stronger precedent supporting it.

Examines Chief Justice John Roberts' assertion in the Trump v. Mazars decision that recipients of congressional subpoenas retain not only constitutional privileges but also common law privileges, such as the attorney-client privilege. Offers an alternative way to understand the Chief Justice's claim, stating that recipients of congressional subpoenas retain their right to assert the privilege in separate proceedings, and complying with Congress' demands does not necessarily constitute a general waiver in other settings.