Subpoena power is not reserved for prosecutors.  Congress, State Legislatures and local governing bodies have the authority to issue subpoenas with the same force of law as investigative bodies.

The power to issues subpoenas can be a valuable tool when the legislative branch does not see eye to eye with the executive branch. This recently played out in New Jersey when the Assembly Budget Committee voted to approve a resolution that would authorize the use of subpoenas to compel testimony from employees of the state, state agencies and political subdivisions.

In New Jersey, the power of lawmakers to issue subpoenas is codified by statute. Pursuant to chapter 13 of Title 52 of the Revised Statutes:

Any joint committee of the legislature, any standing committee of either house, or any special committee directed by resolution to enter upon any investigation or inquiry, the pursuit of which shall necessitate the attendance of persons or the production of books or papers, shall have power to compel the attendance before it of such persons as witnesses and the production before it of such books and papers as it may deem necessary, proper and relevant to the matter under investigation. 

Essentially, in order to issue subpoenas, lawmakers must approve a resolution that reconstitutes a Senate or Assembly committee as a special committee convened to conduct a specified investigatory task. It can then be given the authority to issue subpoenas to compel testimony and the production of documents. The resolution need not be approved by the other house or the governor and generally expires in 12 months.

On the federal level, the “power of inquiry” is considered an implied power of Congress. In fact, the Supreme Court has characterized the power to issue subpoenas as “an indispensable ingredient of lawmaking.” Under Congressional rules, all standing committees are authorized to compel witnesses to produce testimony and documents.

Although NJ lawmakers’ subpoena power has generated headlines in recent years, it is actually fairly uncommon at the state level. Lawmakers have issued subpoenas only four times in the past two decades, according to a recent NJ Spotlight article. The last time was in 2012, when the Assembly Transportation, Public Works and Independent Authorities Committee was reconstituted as a special committee of the General Assembly to investigate the finances of the Port Authority. Meanwhile, Congress has been far more active in its use of subpoenas, subpoenaing former Major League Baseball pitchers, corporate executives, and the U.S. attorney general in recent years.

On both the federal and state level, the issuance of subpoenas generally leads the legislative and executive branches to come together to reach a solution that meets the needs of both sides. This is largely due to the penalties of failing to comply, which include prison time for contempt. However, in today’s increasingly partisan environment, this may no longer be the case.

 Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.