As the permanent cadre of congressional Clinton pursuers embarks on a new and virulent campaign of investigation
into presidential pardons, there is another casualty: the constitutional basis of Congress's power to investigate.

Contrary to the assertions of the army of legal and political pundits that the congressional investigative orgy is a justifiable
exercise of legislative oversight under Article I of the Constitution, there is absolutely no legal authority for such a proposition.

Congress's power to investigate and conduct oversight inheres in its legislative power. Congress may investigate only as an
auxiliary to its power to pass laws or perform other tasks placed by Article I explicitly within its power. While such a power is
admittedly broad -- precisely because the reach of Congress's power to legislate is so vast -- it is not without limits.

The pardon power has been reserved under Article II to the president, and as every legal expert and even the members of
Congress leading the charge have conceded, the so-called "abuse of discretion" by the president, particularly for those already
pardoned, as the Supreme Court has delineated, is not a subject "on which legislation could be had" (McGrain v. Daugherty,
1926).

How then, and on what constitutional basis, does Congress inquire into the exercise of discretion by the president under a
power committed exclusively to him? This is not even a shared power -- like war powers, executive or judicial appointments or
the conduct and review of foreign policy -- where the branches must reach an accommodation because the Constitution gives
each a role.

An integral part of the separation of powers is the withdrawal from purview by coordinate branches of certain matters --
admittedly few in number -- that the Framers deemed necessary to insulate from the general scheme of checks and balances.
So, for example, the Constitution states that members of Congress shall "not be questioned in any other place" for their
legislative acts -- a provision interpreted by the Supreme Court to immunize members from any judicial or executive oversight
of such acts. The court has remarked that the Speech or Debate Clause has "enabled reckless men to slander and even destroy
others with impunity, but that was the conscious choice of the Framers."

The exclusive commitment of the pardon power to the president was also a "conscious choice," and legislative revulsion at its
use does not supply the constitutional authority to challenge it. The Constitution similarly grants the House and Senate the
exclusive power to make their own rules -- even if those rules are arbitrary, unreasonable or contrary to sound policy.

Finally, some have suggested that Congress needs to conduct investigations into the pardons so that the public can be informed
about the president's reasons for granting them. There is no such power. In 1979, the Supreme Court ruled unequivocally in
former senator William Proxmire's libel case that Congress has power only to inform itself to enable it to write laws and that
there is no constitutionally based "informing power" benefiting the general public.

As we learned in the 1950s and 1960s, when Congress tears loose from its constitutionally authorized investigative power the
courts strike down those forays as excessive, which diminishes Congress's ability to perform legitimate and needed oversight in
areas that truly warrant it.

The writer was general counsel to the House of Representatives from 1976 to 1984.

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