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July 24, 2023 YourABA | Ethics in View

The quandary over the power to investigate

By Teresa J. Schmid, J.D., MBA, LP. D, CAE, ABA Center for Professional Responsibility

The following contains purely informational, educational or technical material. The views expressed herein represent the opinions of the author and have not been approved by the ABA House of Delegates or the Board of Governors and, accordingly, should not be construed as representing the position of the association or any of its entities.

Article I, Section 2, Clause 5 of the United States Constitution confers the sole power of impeachment on the House of Representatives. According to “Constitution Annotated,” the official congressional source of constitutional analysis and interpretation, this clause confers upon Congress the power to impeach federal officers, including judges, for “treason, bribery and other high crimes and misdemeanors.” The Constitution says nothing about congressional power to investigate.

On April 6, 2023, an investigative news source published an article describing luxury trips and other gifts received by a member of the U.S. Supreme Court from a wealthy benefactor who could have matters that come before the high court for adjudication. In a letter dated June 20, 2023, Sen. Dick Durbin, chair of the U.S. Senate Committee on the Judiciary, invited Chief Justice John G. Roberts to appear on May 2, 2023, to testify at a public hearing on Supreme Court ethics reform. In a responsive letter dated April 25, 2023, Roberts declined to appear at the proposed hearing and attached a Statement on Ethics Principles and Practices “to which all current members of the Supreme Court subscribe.” By declining to subject themselves to examination concerning questionable behavior of its members, the court effectively blocked the Judiciary Committee’s access to information about the court’s conduct.

Durbin then convened a hearing by the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights on June 14, 2023. The hearing was titled “Ensuring an Impartial Judiciary: Supreme Court Ethics, Recusal and Transparency Act of 2023.” Three experts in constitutional law appeared as witnesses and were closely questioned by subcommittee members about the oversight measures available to Congress when Supreme Court justices decline to account for their misconduct. The hearing reached a crescendo when a witness took the position that Congress has the constitutional power to impeach a justice but has no power to investigate.

The subcommittee and other witnesses were quick to point out that such a position was untenable as a matter of law. The Senate includes among its policies and procedures an implied power to investigate for itself and the House of Representatives: “Although not expressly authorized in the Constitution, the Supreme Court has firmly established Congress’ investigative authority as an essential part of its legislative responsibilities.”

The legal analysis is not particularly complicated, except to the extent that the simplest ideas are often the hardest to explain. The notion that Congress should have the power to impeach but no power to establish the factual grounds for impeachment defies reason. However, it makes more sense than the situation that gave it a forum: the Supreme Court’s refusal to acknowledge the constitutional imperative of legislative oversight.

Teresa J. Schmid is the director of the American Bar Association Center for Professional Responsibility. She is a past executive director for the Oregon State Bar and executive director for the State Bar of Arizona. She is also a past chair of the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee and a past member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct. She is licensed and active in Illinois, California and Oregon. 

The Center for Professional Responsibility provides national leadership in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection.

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