Oversight committee session with Michael Cohen looks like an illegitimate show hearing

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.”

While Congress does have authority to pursue any “subject on which legislation can be had” as well as inquiries into “fraud, waste and abuse” in government programs, that power is not unlimited.

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.

But is it legitimate for Congress to hold such show hearings? Serious questions are raised by Supreme Court precedents issued during the Red Scare era about the authority of Congress to pursue investigations that may have a political point, but which they do not have the actual authority to conduct.

Rep. Elijah Cummings, D-Md., is chairman of the House Committee on Oversight and Reform, in front of which Cohen will testify. AP/J. Scott Applewhite

Grandstanding or public interest?

According to Republicans on the committee, Cohen’s lawyer told them he “picked this committee” to tell his “story” which would include “anecdotes about his time with the President.”

The power granted to Congress in Article I of the Constitution – “all legislative powers therein shall be vested in Congress” – means that its inquiries must aid in the achievement of a legislative purpose.

But the president’s business practices or his campaign finance activities simply are outside the scope – government operations and activities – of the committee that will hear Cohen’s testimony. The House rules give jurisdiction over federal elections and campaign finance to the Committee on House Administration. Other committees could have jurisdiction to hear testimony on the president’s business practices.