Convicted perjurer Michael Cohen’s testimony next week at a congressional hearing promises to be a political spectacle.
But Cohen’s appearance may not actually be legitimate under congressional rules.
In Cohen’s case, the Government Oversight and Reform Committee’s description of the issues it will explore in his hearing include “the President’s debts and payments relating to efforts to influence the 2016 election … the President’s compliance with campaign finance laws…the President’s business practices …” even the “accuracy of the President’s public statements.”
These subjects have nothing to do with the committee’s jurisdiction. The committee’s role is to investigate the “overall economy and efficiency and management of government operations and activities.”
As a former counsel for the House of Representatives from 1976 to 1983, I believe the Cohen hearing’s broad range of subjects go far beyond the jurisdiction of the committee.
In my view, that makes this a show hearing, not a legitimate exercise of the committee’s duties.
Power of the state
Cohen is appearing willingly, almost enthusiastically, before the Government Oversight and Reform Committee.
But for many witnesses subpoenaed by congressional committees, their appearance is a fraught and frightening experience full of legal jeopardy, where they face interrogation by a committee of some of the most powerful men and women in the nation.
The seemingly all-encompassing power of Congress to investigate has been the subject of numerous Supreme Court and lower federal court rulings that attempt to limit the power of these government committees against individual witnesses. The rulings ensure that witnesses facing such awesome government power are protected by the Constitution’s guarantee of due process.
The means the courts have insisted on strict adherence by members of Congress to the rules that circumscribe committee jurisdictions.
Maintaining this balance – of the need for investigations versus protection of individual rights – is the legal challenge facing the now Democratically controlled House as it embarks on an array of investigations into the Trump administration.