Balancing Executive and Legislative Branch Interests in Congressional Oversight

Operator:                                 Welcome to The Federalist Society's practice group podcast.  The following podcast, hosted by the Federalist Society's Administrative Law and Regulation Practice Group and the Article I Initiative, was recorded on Friday, June 15, 2018 during a live teleforum conference call. 

 

Mr. Wesley Hodges:               Welcome to The Federalist Society's teleforum conference call.  This afternoon, our topic is Balancing Executive and Legislative Branch Interests in Congressional Oversight and is hosted by the Administrative Law and Regulation Practice Group and the Article I Initiative.  My name is Wesley Hodges and I'm the Associate Director of Practice Groups at The Federalist Society. 

 

                                                As always, please note that all expressions of opinion are those of the experts on today's call. 

 

                                                Today, we are very happy to have with us some accomplished panel of experts and moderating them today is the Honorable Eileen O'Connor, who is, uh, the chair of our Administrative and Regulation Practice Group here at the Federalist Society.  After our speakers give their remarks, we will move to an audience Q&A.  So in the discussion, keep in mind what questions you have for either the subject or for one of our speakers today.  Thank you all for speaking with us.  Lee [sp], the floor is yours.

 

Hon. Eileen O'Connor:           Thank you, Wesley.  And thanks to all of you who have dialed in to listen to and participate in this teleforum conference.  As Wes said, I'm Eileen O'Connor, Chairman of the Executive Committee of The Federalist Society's Administrative Law Practice Group.  We decided to put this teleforum together because while congressional investigations are very much in the news these days, the news coverage gives viewers and listeners little or no context, little or no actual knowledge of the history and considerations that must go into balancing the interests of two co-equal branches of our federal government—the interest of the Legislative Branch and satisfying its oversight obligations and of the Executive Branch in enforcing the laws and investigating their possible violation without disruptive interference.

 

                                                The breathlessness, often to the point of near hysteria, of some of the reporting on the current clash between the Legislative and Executive Branches over congressional oversight would make the uninitiated belief that it is without precedent.  Far from it. 

 

                                                Our two speakers today bring a wealth of knowledge about congressional investigations from the perspective of each of the involved branches.  We have not asked them to address the current conflict, but rather to provide the context and history that is missing from news reports.  Each will make about 10 minutes of opening remarks, after which they will engage each other, and then take questions from as many of you as can ring in.  Instructions about how to do that will come as we move to that portion of the program. 

 

                                                Speaking first will be Morton Rosenberg.  Mr. Rosenberg retired from the congressional research service after a career as a senior legal analyst.  He is the author of When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, a link to which is in the email announcing this teleforum, as well as in The Federalist Society website announcement of it.

 

                                                Mr. Rosenberg will explain the history of and authority for congressional demand for information from the Executive Branch agencies. 

 

                                                William Moschella practices law in Washington D.C. with the law firm Brownstein Hyatt Farber Schreck, LLP.  Early in his career, Mr. Moschella served as legislative counsel and parliamentarian for the House Judiciary Committee.  I first met Mr. Moschella during the administration of President George W. Bush when he was Assistant Attorney General for the Office of Legislative Affairs.  That is the office responsibility for DOJ's responses to congressional inquiries.  Mr. Moschella will offer insight into Executive Branch considerations that go into responding to congressional inquiries.

 

                                                Before turning it over to our speakers, in the name of full disclosure, I'll mention that in 2014 I testified at a House Subcommittee Hearing about whether the Obama Administration was actually investigating the IRS's targeting of conservative groups.  Mr. Rosenberg, the floor is yours.

 

Mr. Morton Rosenberg:          Thank you, Lee.  Uh, I appreciate greatly the opportunity, uh, The Federalist Society is giving me to present my views on the nature, scope, and limitations of Congress' investigative oversight authority.  My understandings in this area come from my practical involvement as a senior legal analyst at the law division of the Congressional Research Service, several hundred congressional committee inquires over a period of 35 years, from 1973 to 2008, and from continued study and involvement with oversight issues over the past 10 years since my retirement. 

 

                                                This period has encompassed two distinct phases.  The first phase, which I think of as the "golden age of congressional inquiry," commenced just before the unfolding of the Watergate scandal, and reflected a renewed sense of institutional purpose, responsibility, and integrity with legislative actions that shored up or even created support mechanisms and revived long, dormant enforcement tools that provided expanded access to executive information that is essential to successfully carry out its legislative function.

 

                                                That phase effectively ended in 2002, and has been replaced by an institutional acquiesce to aggressive, executive claims of privilege that deny that the House and the Senate may exercise their presumed, constitutionally based prerogative of information access by means of the historic, self-protective processes of inherent and criminal contempt.

 

                                                Instead, they must now seek support from the courts by means of civil enforcement suits—a route that stymies timely, effective oversight.  I will try to address to closely related questions: What is the legal and historical basis and scope of the congressional oversight prerogative?  And what actions must Congress take to restore its vital co-equal status in our scheme of separated and balanced powers.

 

                                                The law in this area is clear, at least to me.  An inquiring committee need only, uh, uh, show that the information sort is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern in order to present an enforceable information demand.  Numerous Supreme Court precedents over the years have recognized this broad and encompassing power.  For p-, for present purposes, however, the Court's unanimous ruling in McGrain v. Daugherty in 1927, which provided the foundational authority for modern congressional oversight, says it all. 

 

                                                That case emanated from the infamous peapod-dome inquiries of the mid-1920s, which concerned the Justice Department.  The sec-, the Select Committee, uh, established at that time, issued a subpoena for the brother of the Attorney General, Harry Daugherty.  Daugherty refused to comply and was arrested and brought before the Senate.  The action was challenged as beyond the Senate's constitutional authority.  The case reached the Supreme Court, which upheld the Senate's authority to investigate charges concerning the propriety of the Department's administration of its statutory mission. 

 

                                                The Court first emphasized that the power of inquiry with the accompanied power, uh, to enforce it is, and I quote, "an essentially and appropriate auxiliary to the legislative function," and that, "Congress must have access to the information respecting the conditions which the legislat-, which the legislation is in intended to affect or change.  And where legis-, the legislative body does not itself possess the requisite information—which is frequently the case—recourse must be had to others who do possess it.  "Experience," the Court said, "has taught that the mere request for such, uh, for such often are unavailing, and also that information which is volunteer is not always accurate or complete."  So some means of compulsion are essential to obtain what is needed.

 

                                                The Court also made it clear that the target of the Senate investigation, the Department of Justice, like all other departments and agencies is a creation of the Congress and is subject to its plenary legislative and oversight authority in order for it to determine whether and how it is carrying out its mission.  Here is the most telling comment relevant to the current DOJ claims of immunity from that process.

 

                                                Quote, "The subject to be investigated was the administration of the Department of Justice—whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution of proceedings to punish crimes and enforce appropriate remedy against wrongdoers, specific instances of…neglect being recited.  Plainly, the subject was one "which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit.

 

                                                This becomes manifest when it is reflected that the function of the Department of Justice, the powers…" uh, "…of the Attorney General and the duties of his assistants are all subject to…congressional legislation, and that the Department is maintained and its activities are carried out under such appropriations as, in the judgment of Congress, are needed from year to year."

 

                                                But the despite the high Court's consistent recognition of the breadth of Congress, of Congress' authority to access information of executive activities, the enduring practical lesson I learned from my 35 years with CRS is that committees wishing to engage in successful oversight must establish their credibility with the White House and the executive departments and agencies that they oversee early, often, consistently, and in a manner invoking respect if not fear.

 

                                                Thus, although standing in special committees of Congress have invested with an array of formidable rules and tools to support their powers of inquiry and have developed over time a very efficacious, nuanced, and staged investigatory process, one that proceeds from one level of persuasion or pressure to the next to achieve mutually accessible bases of accommodation with the Executive, it has been absolutely critical to the success of the investigative process that there be a credible threat of meaningful consequences for refusal to provide necessary information in a timely manner.

 

                                                In the past, that threat has been the possibility of a citation for criminal contempt of Congress or a trial at the bar of the House, a so-called "inherent contempt" of an official, either of which could result in imprisonment and/or fines. 

 

                                                Inherent contempt was utilized in the earliest days of the Republic and was recognized by the Supreme Court as a constitutionally valid and essential institutional self-protected mechanism in 1821.  In 1857, Congress added a criminal contempt process as a supplement to the inherent contempt mechanism, making it clear that both of those mechanisms were designed to cover the obstructive activities of Executive Branch officials. 

 

                                                Inherent contempt continued to be successfully used until 1935.  Indeed, the landmark McGrain ruling I just spoke of arose from an inherent contempt proceeding.  It was then -- it has since been displaced because it took up too much floor time.  In 1975, oversight committees, resting on a 150 years of historical practice and judicial recognition of the Legislature's inherent constitutional authority to protect itself from non-member assaults on its prerogatives, revived the prevailing threat that a refusal to comply with a congressional subpoena could result in a citation for criminal contempt of Congress, with potential jail fine -- jail time or fine.  There is little doubt in my mind that such threats were effective until at least 2002. 

 

                                                In particular, between 1975 and 1988 there were 10 votes to hold cabinet-level officials in contempt of Congress at the subcommittee, full committee and House floor levels.  All resulted in complete or substantial compliance with the information demands at issue without the need to proceed to trial.  In fact, the threat those instances established were so credible that until 2002, even a mention of a subpoena was often sufficient to move an agency to accommodate a committee's wishes. 

 

                                                The last such instance, instance was a sales attempt—sale presidential claim of privilege—during the House Oversight Committee, uh, Chairman Dan Burton's 2001 to 2002 investigation of the two decades of informant corruption in the FBI's Boston regional office.  Indeed, that was a bipartisan effort wherein a contempt vote against the Attorney General was a certainty if Executive Branch officials had not acceded to the congressional demands.

 

                                                Since 2002, however, Congress has come under liter-, literal siege by the Executive, with particular respect to the congressional investigative oversight, uh, to congressional investigative oversight of the actions of an Executive Branch officials, there has been the adoption of an aggressive stance, first officially enunciated by the, uh, Office of Legislative Counsel of DOJ in 1984, uh, in direct response to the refusal of a district court to deny the validity of a contempt of Congress citation to the administrator of EPA for failure to comply with a subpoena for documents pertaining to open litigation cases.  It opined that the historic congressional processes of criminal and inherent contempt designed to ensure officials compliance with its core information prerogative are unconstitutional and unavailable if the President unilaterally determines that such officials should not comply.  In such instances, the Department of Justice will not present contempt citations voted by the House to a grand jury as is required by law. 

 

                                                A more recent de-, Department of Justice opinion declared that it has determitive-, determinative authority whether to prosecute an Executive official found in contempt of Congress, even in instances when presidential privilege has not be invoked.  The consequence has been that committees have been forced to seek subpoena compliance through civil enforcement action.  A tactic that has been shown in two recent cases to cause intolerable delays that seriously undermines the effectiveness, uh, the effectiveness of timely, uh, committee, uh, oversight and opens the door to aberrant and juridical rulings. 

 

                                                The most recent such litigation is an investigation initiated over seven and a half years ago and is currently being held in abeyance before the D.C. Circuit of Appeals court.  Thus far, the House has not acted to challenge the legal substantiality of the Justice Department's tactic, and its apparent acceptance of the stance that it cannot use its contempt powers has essentially mooted what were once credible threats against Executive officials.  As a predictable consequence, agencies generally have been reluctant to comply with committee information requests and demands through subpoenas in a timely and complete manner.  Indeed, there is little incentive to do so now that agencies understand that refusals require committees to see court enforcement of the demands, which they are wont to do.

 

                                                There are certainly viable options that can be considered.  Uh, Congress can create a mechanism on the model of the now-expired Independent Counsel Act, which eliminates problems raised by the original, uh, act by imposing limits on length, cost, and scope of the now-expired version.  But this would require passage of the law, which is not likely to be signed by this or any other president.

 

                                                A second option would be to promulgate und-, under the House's rulemaking authority a more seemingly inherent contempt process—one that does not embrace arrest, detention, or incarceration, but establishes a speedy process with due process protections that results in a hefty fine alone. 

 

                                                A third option, which would not be preclusive of the revised inherent contempt proceeding would be a legal challenge contesting the validity of DOJ's assertion that a criminal contempt citation is violative of the President's duty to take care that the laws are faithfully executed and his constitutional status as an Executive Branch chief law enforcer. 

 

                                                But to the contrary, it may be argued that since the Supreme Court has ruled in an analogous situation the district court judges who found a person in contempt of court is permitted to appoint a non-governmental attorney to prosecute the alleged contender as a legitimate institutional, self-protected mechanism.  Subsequently, the Supreme Court in Morrison v. Olsen cited that ruling approvingly in upholding the authority to appoint independent counsels, and also ruled that prosecutorial discretion was not a core, presidential power. 

 

                                                An argument, an argument thus can be made that the only ground available to DOJ when presented with a criminal contempt citation—which is a constitutionally based, self-protected right analogous to what the court can do—is that it would be a conflict of interest.  And that in light of DOJ's rules with respect to such conflicts, a court order, the appoint-, might order the appointment of a special counsel pursuant to its conflict of interest rules.

 

                                                With that, uh, I'm anxious to hear, uh, uh, what my friend Will has to say.  Thank you. 

 

Hon. Eileen O'Connor:           Thank you, Mort.  Will, the floor is yours.

 

Mr. William Moschella:          Great, thank you very much, Lee and Mort, it was, uh, great as usual.  Um, I come at this, uh, from, uh, I've worn a couple of different hats in my career and for all those young lawyers, uh, on the phone, uh, I had -- I hope you have someone like Mort Rosenberg, um, uh, to rely on, uh, as you're developing your legal skills.  I was a young lawyer on Capitol Hill, um, and in 1994 when Republicans were in the minority for over 40 years, um, uh, I kind of came of age when, uh, there was need for parliamentary and procedural help.  I eventually, as Lee introduced me, became a Parliamentarian of Government Reform Committee, Parliamentarian of the Judiciary Committee, and Mort Rosenberg was always available to take a call, think through a legal issue, strategize about oversight matters, and, um, I always came to respect, uh, Mort because he was a one-man OLC over there at the Congressional Research Service.  So for that Mort, I'll – I thank you very much and look to do that publicly.

 

Mr. Morton Rosenberg:          Thank you.

 

Mr. William Moschella:          Um, so, and I, and I have worn both hats as Lee said.  I was a Congressional Oversight Counsel and the Assistant Attorney General for Legislative Affairs, and I had the opportunity to respond to numerous requests for, um, information, um, some of them more painful, uh, than others.  Um, and the one thing that I would like you to come away with, uh, after listening to both of us is that the disputes between the Executive Branch and the Legislative Branch are nothing new. 

 

                                                Uh, I served for a short time at the House Rules Committee.  And I can tell you that, uh, there was a time where Republican chairmen were so upset about what they viewed as the recalcitrance of various Executive Branch officials that the House Rules Committee, uh, held a hearing just on oversight over the Executive Branch.  And the Justice Department, Department felt compelled at that time… uh, uh, it was basically a hearing in which four or five committee chairmen, uh, expressed to the Rules Committee their concerns about the responses from the Executive Branch.  And the Justice Department at the time produced a lengthy, uh, letter, uh, to then Chairmen Linder, uh, explaining and summarizing the general approach taken by the Justice Department. 

 

                                                So these disputes are not unusual.  George Washington was the first president to refuse a House Committee's request for papers.  It was relating to a foreign affairs matter.  Um, President Eisenhower, uh, refused to provide information to the Senate based on his concern about releasing material that would, um, uh, infringe on the deliberative process.  And likewise today, uh, we see, uh, the current disputes over what looks to be pending case information. 

 

                                                So over the next couple minutes, what I'd like to do is talk about a couple different concepts.  Uh, one is the notion of accommodation.  The second are, uh, the Department's approach to pending criminal cases—perhaps in the Q&A we can talk about closed cases, deliberative process, the Department's view about the provision of line agents, etc.—um, and then third, I will just touch on, um, uh, intelligence matters, uh, and, uh, the way, uh, those matters are generally, uh, handled at the Department because I do think there's some confusion when people talk about pending cases, there's some distinction between pending criminal and pending intelligence. 

 

                                                So the, uh, Executive Branch's, uh, approach to requests for information, uh, from, um, from Congress are, uh, one of accommodation where possible.  President Reagan in 1982 issued a memorandum for the heads of all, uh, Executive departments and agencies outlining the general policy, uh, toward, uh, this accommodation.  Uh, he noted in his memorandum that "executive privilege will be asserted only in the most compelling circumstances and only after careful review demonstrates that assertion of the privilege is necessary.  Historically, good faith negotiations between Congress and the Executive Branch have minimized the need for invoking executive privilege.  And this tradition of accommodation should continue as the primary means for resolving conflicts between the branches."

 

                                                "The D.C. Circuit Court of Appeals recognized the obligation of both Congress and the Executive Branch to seek accommodation, uh, to seek, uh, uh, and, and accommodate the leg-, leg-, legitimate needs of the other.  The D.C. Circuit said the framers…expect[ed] that where conflict and scope of authority arose between the coordinate branches, a spirit of dynamic compromise would promote resolution of the dispute in the manner most likely to result in efficient and effective functioning over governmental systems.  Under this view, the coordinate branches do not exist in an exclusively adversarial relationship to one another when a conflict in authority arises.  Rather, each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation, the realistic evaluation of needs of the conflicting branches, in, in the particular fact situation." 

 

                                                And Mort mentioned, uh, kind of the legal authority of, uh, the Congress to obtain information.  But I would note that, uh, this is not quintessentially -- or these disputes are not quintessentially a legal problem.  They're a political problem, more akin in my mind to a political question.  And that is why while legal tools, um, may ultimately come into play as Mort outlined, um, uh, the accommodation process between the branches is ultimately necessary, uh, so that the Congress can do -- exercise its legi-, legitimate, uh, legislative function and the Executive Branch can exercise its legitimate function. 

 

                                                So now I'll turn to, um, uh, the, the notion that, uh… and, and, and which seems to raise the most conflict in the Executive Branch's view that pending criminal case files should not be disclosed to the Congress.  Um, in 1982 the Office of Legal Counsel, uh, did a review of, um, uh, of assertions of executive privilege, um, uh, uh, in the Executive Branch.  And after that review, um, and description of the general policy to the client to provide committees of Congress with access or copies of open law enforcement files, um, uh, OLC concluded that, um, each president from President Washington and most other presidents, um, had ratified, uh,  that position.  In fact, they say quote, "No president to our knowledge has departed from this position, affirming the confidentiality and privilege nature of open law enforcement files," close quote.  Uh, and I am unaware that any president, uh, since that 1982 opinion was written, uh, has done so. 

 

                                                And so, the policy is primarily grounded in the need to protect the government's ability to prosecute fully and fairly.  In other- -- and is really built, at least on the separation of powers notion, that prosecutorial discretion is inherently an Executive Branch function. 

 

                                                Attorney General Robert Jackson articulated the position, um, in 1941.  He said, quote, "It is the position of this department be stated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the Executive Department of the government to aid in the duty laid upon the President by the Constitution to take care that the law be faithfully executed, and that the congressional or public access to them would not be in the public interest."  Um, and OLC, uh, had explained and summarized some of the prudential reasons why, uh, disclosing such information, uh, isn't a, a great idea in the view of the Executive Branch.  If congressional committees are fully apprised of the details of an investigation, uh, they would say that there is a substantial danger that congressional pressure will influence the course of the investigation. 

                                               

                                                The Department also objects, uh, to this disclosure of law enforcement files, uh, because of the potential damage to proper law enforcement that would be caused by the revelation of sensitive techniques, method, or strategy; concern over the safety of confidential informants and the chilling effect on other sources of information; sensitivity to the rights of innocent individuals who may be identified in law enforcement files, but who may not be guilty of any violation of law—I'll come back to that perhaps in Q&A—and well-founded fears that the perception of the integrity, impartiality, and fairness of the law enforcement process as a whole will be damaged if sensitive materials are distributed, uh, beyond those persons, uh, necessary to the, uh, investigation and prosecution.

 

                                                Uh, there are other reasons, um, uh, grounded in deliberative process.  I'll just note, uh, we can talk about those, uh, in Q&A, uh, but generally speaking, the idea would be that, um, uh, deliberations regarding whether or not to prosecute an individual, um, should be kept confidential so as not to chill, uh, the ability of prosecutors to do that. 

 

                                                In fact, in 2001, uh, Attorney General Ashcroft recommended to President Bush, uh, along these lines: not to disclose the written, um, uh, memoranda—deliberative memoranda—and other investigative, uh, advice and recommendations concerning whether or not to bring, uh, particular criminal prosecutions in the Campaign Finance Investigations that went on of, uh, during the Clinton Administration. 

 

                                                Um, uh, listeners might recall that, uh, prior to this time the House Government Reform Committee and the Judiciary Committee, uh, were very interested in, uh, Attorney General Reno's decision not to appoint an independent counsel.  And both Louis Freeh—then director of the FBI—and Chuck La Bella was the individual specifically brought in to, um, lead the prosecution of those sets of cases, recommending -- recommended the appointment of an independent counsel.  I can't remember if it was the La Bella, um, or Freeh memos, or both, were at one point leaked to the press, uh, and they were ultimately disclosed to, uh, Congress to satisfy their need to understand kind of their final recommendation to General Reno, but, uh, Attorney General Ashcroft recommended to President Bush not to produce anything further, kind of the deliberations kind of below that level.

 

                                                So the last thing I'll address, uh, in my time remaining are, are intelligence cases.  Um, and I'll just, uh, uh, uh, ba-, based on my own, own experience because I had one while I was Assistant Attorney General. 

 

                                                So the FBI, uh, is, um—and actually the DEA—are the two components of the Justice Department that are also members of the intelligence community.  And, um, uh, members of the intelligence community have a statutory obligation to, quote, "fully inform," uh, "the intel committees."  And periodically, the, uh, Bureau will give what are known as sensitive case briefings to the, uh, intel committees, usually just a gang of eight, and -- which are the -- the gang of eight are the chair and ranking members of both the House and Senate intel committees and then, um, uh, certain members of congressional leadership.

 

                                                Well, uh, and generally speaking at least in my experience, they didn’t get -- they don’t get too granular.  They are really, um, to inform the committee leadership about, uh, trends in, uh, intel, um, uh, uh, or coun-, counterespionage, counterintelligence.

 

                                                So, for example, if, uh, the government is observing that a foreign power is interested in a particular type of specialized research at, uh, A, B, or C university, those sorts of trend lines, um, uh, will be, uh, discussed with the intel committees, and generally we'll inform the intel committees at how their, uh, uh, pursuing, you know, uh, that counterintelligence, um, uh, mission. 

 

                                                Uh, every once in a while, one of these cases goes criminal.  And I had one such case.  And, um, and I generally did not sit in on these briefings.  These are given by, uh, the FBI.  But every once in a while, my presence, uh, was required.  And, um, uh, so the long and short of this particular matter was that, uh, the intel committees were not happy that, um, uh, information flow stopped, but a decision was made, uh, to, um, uh, take this particular case in a criminal direction. 

 

                                                Of course, intelligence investigations, counterespionage investigations don’t necessarily, uh, while they might implicate criminal laws, they're not the prim-, criminal prosecution is not the primary purpose.  So, for example, just building on the example I just used, it's quite possible that during the course of, uh, that kind of a inve-, investigation, uh, maybe professor working on certain work is meeting with, uh, uh, representatives unbeknownst to that individual for foreign power.  It might be the case that the intelligence specials may want to, uh, use the, uh, that person to provide, uh, information to -- or help gather information about that foreign power.

 

                                                So with that, I am happy to take, uh, questions, but I, uh, uh, if there's anything that you remember from what I discussed, which is the disputes between the Executive Branch and the Legislative Branch, uh, over pending, uh, criminal case information, uh, uh, is nothing new.  It has been going on for decades, and decades, and decades, and I predict will continue for decades to come.

 

Mr. Wesley Hodges:               Excellent.  Thank you, Will.  Let's go ahead and move to audience questions. 

 

Hon. Eileen O'Connor:           Thank you, Wes.  Uh, Will, you and I were talking the other day and you mentioned something about Congress doing its own fact finding rather than piggybacking off of that that the Executive Branch has already done?

 

Mr. William Moschella:          Sh-, sure.  So, um, uh, often time the, uh, you know -- in my view, the Justice Department's investigative arm should not, um, uh, be the short circuit for Congress doing its own investigation.  Congress often will, um, uh, run parallel investigations of matters of interest to it, which -- but, um, uh, should not, uh, just feel as though they can dip into, you know, DOJ files for, for whatever purpose.

 

                                                Now, I'll note, um, that, um, uh, and there's an example of, of this—at least one could argue this as an example of, of this—you know, uh, uh, then Chairman Henry Waxman, um, asked the Justice Department to provide, uh, files relating to, uh, the interviews of Dick Cheney and others, uh, in the, uh, uh, Valerie Plame CIA leak, uh, investigation.  You may recall there was a special prosecutor appointed for that purpose, um, uh Patrick Fitzgerald, and that, um, uh, Henry Waxman had an, had an interest in, uh, those -- the interview notes, I believe and the interview itself.  Um, he could've tried to ask the Vice President, I guess, directly, um, wha-, what was on his mind.  Um, my guess is he wouldn't have gotten that far.  So instead he decided to go, uh, into the Justice Department files.  Uh, Justice Department, uh, after a consultation with the President, um, uh, decided not to provide those.

 

                                                This raises an important -- another important issue that I'd just like to touch on, and I said that I'd get, get back to it, but one of the things that I mentioned as kind of the prudential reasons, um, for, uh -- not for providing, uh, at least open case, and there's still a vitally, uh, there's a strong interest in confidentiality of closed-case files, which if the government has—particularly prosecutors and investigators for the FBI—have enormous authority and power in their collecting, uh, during the course of investigations, uh, a lot of information.  And I'm of the view—I think most share this view—that the Justice Department should, uh, investigate, prosecute where appropriate, and if it's -- if it declines, then to not say anything. 

 

                                                Um, and, um, it, it, it seems it is problematic, at least, for the Legislative Branch to want to kind of unearth, uh, investigative documents certainly raises lots of, lots of concerns, uh, where those, uh, that information didn't come to life because of a public prosecution.  There's certainly lots of checks on a public prosecution.  And, um, I have no doubt that, um, uh, Mr. Waxman had, uh, his own interests in the Vice President's interview, but, um, uh, once the special prosecutor makes a decision, for whatever reason not to use that information, uh, in a prosecution, the, the, the kind of thing that shouldn't be made public and, and, you know, you don’t have to just use this -- the example of a Vice President or, you know, a cabinet official or something like that.  I mean, this could happen at a, uh, a more localized level with an individual, um, uh, that get, gets caught up in an investigation.  There may be derogatory information about that individual, and publicizing those types of files, uh, would be damaging.

 

Hon. Eileen O'Connor:           Right.  And it's contrary to, uh, Justice Department policy.  Uh, Wes, do you have some questioners lined up?

 

Mr. Wesley Hodges:               We do.  We have several questions in the queue.  Currently, we have two.  Would you like to proceed with the first caller?

 

Hon. Eileen O'Connor:           Let's do that. 

 

Mr. Wesley Hodges:               Thank you. 

 

Mr. Mike Stern [sp]:               Hey, uh, this is, uh, Mike Stern in, uh, Northern Virginia here.  Thank you, uh, Mort and Will for, uh, that, uh, very, uh, helpful summary.  Um, and I'd like to, uh, echo, uh, Will's tribute to Mort as well.  Uh, and, uh, tell, and, uh, tell everyone that I enjoyed working both with Mort and Will, uh, back in my time on the Hill. 

 

                                                Um, but there's one thing that—or one assumption, I think—that is underlying all of this discussion of congressional subpoenas and the Executive's right to resist them, uh, which is that the President has either decided or is considering asserting a constitutional privilege.  Does the Justice Department have any privilege that it can assert without the President's approval in resistance to a congressional request for information or subpoena, regardless of what the subject is? 

 

Mr. William Moschella:          Good question.  Uh, in my experience, the, the assertion is ultimately going to be one of executive privilege.  Um, and, uh, but the Justice Department, before you ever get to that, that, that place, um, will have -- likely will have, um, you know, discussed the matter, uh, at least with the, uh, counsel to the president.  Um, and you know, the Justice Department would have a general idea of, um, uh, what the White House's view, uh, on that sort of thing is so that the Justice Department's going to be able to negotiate and that sort of thing with a, uh, with the Hill knowing that. 

                                               

                                                Let me say one word about process, too, because, uh, a lot of people don’t necessarily, uh, understand this.  But there -- just in the same way that Mort was kind of keep-, keeper of the institutional prerogatives and knowledge, uh, and history at, uh, for Congress for many years, there're career lawyers really at the Office of Legal Counsel, uh, who work very closely with the Office of, uh, Legislative Affairs at DOJ in doing these things.  And it's not the case where, um, uh, it's kind of an arbitrary or capricious, um, either assertion of privilege or, um, you know, refusal to comply.  Those things are usually ver-, very well thought out in a collaborative process, um, with often time both career and then once they got to, like, you know, my level, the political appointee.

 

Mr. Morton Rosenberg:          Uh, I'm wondering about, um, the assertion that I, I, I mentioned in my, uh, in my introductory remarks that, uh, a recent, uh, Justice Department's refusal to, uh, conduct a, uh, send a, a contempt of Congress citation, uh, without, uh -- well, on their own book and not, you know, uh, uh, uh, as a result of a presidential, um, uh, claim of privilege, uh, was in the power of the Justice Department.  Uh, and this involved the, uh, uh, the contempt of Congress of, uh—I forget the lady's name now—uh --

 

Mr. William Moschella:          -- Lois Lerner?

 

Mr. Morton Rosenberg:          Lois Lerner, yeah --

 

Mr. William Moschella:          You're talking about Lois Learner?

 

Mr. Morton Rosenberg:          Now, how do you explain that, uh, uh, to assert that particular, you know, prerogative?

 

Mr. William Moschella:          Well, I don't, um, pretend to know the details of that, but my guess is that what the Justice Department would say is they looked at the -- the Justice Department…so what Mort's referring to is in the contempt statute, the contempt statute says that the U.S. attorney shall present, uh, the contempt citation to a grand jury.  And so, Mort, I take it what you mean is they never, they never presented the contempt citation to a grand jury.  And I think, uh, what the Justice Department would say -- uh, and this goes back to the early '70s.  I think the OLC opinion that you mentioned is that, you know, the "shall" can only be, to be constitutional in that instance, shall have to be interpreted as "may" because, um, the Congress can't direct the, um, uh, exercise of prosecutorial discretion. 

 

                                                I think that's probably what they would say.  I'm not as familiar with the case, but that's what it sounds like.

 

Hon. Eileen O'Connor:           All right.  Can we go to the next question?

 

Mr. Wesley Hodges:               Absolutely.  We have one more question in the queue.  If anyone would like to join with the question, just enter the star key and pound key.  Let's go and move to our second caller.

 

Caller 2:                                  Oh, hi.  This is, uh, [inaudible 48:13].  I'm calling from Atlanta.  And I have a concern about the FBI as policemen being unchecked.  So in the unfortunate facts of this case—and I acknowledge that facts often create bad situations, uh, to adjudicate—we have an Attorney General that felt like he had to accuse himself.  That led us down to assistant FBI man.  Then we had an FBI director who's leaking information and wants a special counsel to prosecute a particular situation.  It looks like to me if we have a, an uncontrolled policeman, we have the danger of a police state.  So I may not have articulated that particularly well, but that's my concern. 

 

Mr. William Moschella:          Sure.  I'll, I'll take a stab at that.  Um, I, I share your concern.  I mean, if that's something that we, we had, we should all be concerned about that.  Um, uh, but, but Congress has demonstrated an ability in the past to do oversight over the Justice Department, particularly once matters have been closed.  Mort mentioned one with regard to the use of confidential informants out of the Boston FBI office, you know, after the famous or infamous, um counterintelligence program—co-intel pro of the FBI—you know, Congress held, uh, many, many hearings.  Um, and that and other related hearings ultimately, uh, led to, um, the passage of the Foreign Intelligence Surveillance Act in 1978.

 

                                                Um, and then, outside of congressional oversight, I would say there's quite a bit of internal Justice Department oversight and judicial oversight over the things that the FBI does.  So just to name a couple, um, the FBI can—in a criminal case—can't get a subpoena without going to a prosecutor.  The FBI can't get a Title III wiretap without going to a judge, and clearing it with -- through a very cumbersome Justice Department process.  Uh, there're all kinds of, uh, uh…and then of course criminal defendants, uh, have significant due process rights under our, under our Constitution.

 

                                                Uh, so I, I do think there's a lot of, uh, and, and we've seen an example of, uh, oversight by the Inspector General, um, uh, who does a pretty good job during my…when I was at the Department, there was an issue raised about the use of national security letters and the, uh, the Justice Department ID'd significant review of that entire, that entire process.

 

                                                So, uh, I understand your concern.  I'm not sure, uh, that it's warranted in the modern age, and to the -- I do think that you can -- one can point to lots of different places where oversight occurs, both at the Department of Justice, at the Congress, and the courts.

 

Mr. Wesley Hodges:               Thank you caller for your question.  The queue is now open so if anyone has questions for our speakers before we end the call today, just go ahead and enter the star key and pound key on your telephone. 

 

                                                In the meantime, uh, Lee, do you have any additional questions for our speakers?

 

Hon. Eileen O'Connor:           I do.  Uh, first I was wondering -- well, uh, I'd like to actually comment on the, the last, uh, situation.  Uh, the caller referred to the fact that, uh, the Attorney General, Loretta Lynch, after the meeting on the tarmac said that she would accept the, uh, recommendation of—and I pause here because that's the subject of some, uh, of some misreporting.  I just confirmed this morning, uh, after meeting on the tarmac and people questioning whether, uh, her judgement on, uh, any action to be taken as a result of the investigation into, uh, Secretary Clinton's emails, uh, we-, whether she was actually impartial enough to make that decision, whether that decision would be trusted.  Uh, she said, in fact—and I just confirmed it again with contemporaneous reports—that she would def-, re-, defer to the recommendation of career prosecutors and investigators.  Uh, that's what she actually said.  The New York Times headlines said that she would let the FBI director make the call.  And that's what ultimately happened.  So that's, uh, uh, an odd situation of the tail wagging the dog.  The New York Times headline, uh, of something that was said was inaccurate, but that's what, uh, turned out to be, uh, the case.  That's, that's what, that's actually happened.

 

                                                Um, anyway, Mort or Will, do you care to comment on that?  That's really, that's really sort of off topic, but, but the question was too.  Um, More, Will, would you like to engage with each other for the last couple of minutes?

 

Mr. Morton Rosenberg:          I would like to ask Will, um, his, um, opinions with respect to, uh, uh, sometimes the need for Congress—for instance in Iran-Contra—to, uh, expose information that results in, um, uh, making of prosecutions impossible.  Uh, uh, as occurred in, you know, uh, granting immunity, for instance, to, uh, uh, Poindexter and, uh --

 

Hon. Eileen O'Connor:           -- That's another example.

 

Mr. William Moschella:          Well, so I, I view that again as part of the accommodation process.  I've actually, uh, aided in the granting of immunity to witnesses, uh, on Capitol Hill.  There is a built-in process for consultation with the Justice Department.

 

                                                But, you know, members of Congress—uh, committees of Congress—um, uh, can, you know, make an independent judgement about the importance of the information and, and kind of overwrite it.  Um, you know, sometimes they, they just wind up agreeing to disagree on that, on that point because, you know, the Congress would say that more important than the prosecution is, uh, you know, adducing this testimony for the purpose of fulling their legislative function. 

 

                                                Um, I don't know if there's an easy answer.  Hopefully, that, uh, hopefully the Department of Justice and, uh, the Congress have open lines of communication, each understands the institutional interests of, um, different, um, uh, branch and department of government, um, and then, you know, come to a rel-, resolution.

 

                                                But I can certainly foresee in situations where the Congress is going to say, "Notwithstanding the view of the Jus-, Justice Department, immunity is necessary."

 

Mr. Morton Rosenberg:          What do you think about—and I'm not talking about current, uh, situations—pardons, such as—by presidents—which occur during the, you know, the, the, you know, toward the end of the Iran-Contra investigation that, uh, uh, cut off files that were pending almost immediately.  Uh, I'm talking about, you know, the, the pardon of Caspar Weinberger, uh, and five others, who, you know, were going to be either witnesses or, or, uh, uh defendants, you know, in those trials, which would've been interesting to, to conclude exactly what went on in Iran-Contra, which we still don’t know about.

 

Mr. William Moschella:          Sure or Vice President Ford's pardon of Richard Nixon.

 

Mr. Morton Rosenberg:          Or Nixon's pardon.  Yes. 

 

Mr. William Moschella:          Um, I, um, I don't know that that has an impact—and you tell me—on the congressional oversight function.  Uh, um, the pardon won't, um, prevent somebody from testifying before Congress.  It seems to me that Congress can still do their fact finding.  Um, I don't have an opinion, and haven't given any thought about the, uh, merits or demerits of those particular pardons.  But I don't think that that gets in the way of congressional oversight.

 

                                                I do have one question for Mort.  You, you mentioned kind of strengthening the congressional oversight function, and I would just, uh, I would, uh, in an observation of the question, if you go into the library of the Government Reform Committee, you'll see on their bookshelf shelf, after shelf, after shelf of, um, of reports.  And they used to issue written reports, you know, 100, 125 or so a Congress in the, uh, you know, '60s and '70s.  I think you called those the "golden age of congressional oversight."  Do you think that, um, uh, the lack of a programmatic oversight—kind of the daily grind of looking in to the administration of programs and the expenditure of funds—um, uh, would strengthen the ability to do some of these more ho-, you know, high-profile oversight matters?  Um, what, what would you say, um, uh, at least with regard to that, the persistency point that you made?

 

Mr. Morton Rosenberg:          I think that's a great question and it's a great observation.  One of the things that's changed from my early years, uh, of working with investigating committees was—and this is particularly true of, of John Dingell's operation from ni-, you know, from, uh, 1981 through 1995.  Uh, he never started a hearing or issued a, a subpoena until he was fully aware of what was going on and what he wanted and actually knew what he was going to get. 

 

                                                And what he had in terms of staff were people who worked with the agency people, constantly keeping in touch with them to get ahead of the need for, uh, oversight, uh, and for subpoenas and things like that.  Um, the cutting down of, you know, staff—the current staff—in experience and also, you know, the, the, the turnover in, uh, you know, especially in the House, of term-limiting chairs after, uh, six years.  All of that, uh, you know, uh, works against effective oversight.  That wa-, wa-, was, uh, very endemic in those early years.  People who worked with Dingell and a few other people stayed there more than a decade.  Uh, may -- you know, were, uh, you know, had communications back and forth with, uh, key personnel in agencies who would rather, uh, often tell, uh, Dingell's staffers, "Hey, here, this is what's happening and you should know about it before it hits the front page of the Post or the Times or something like that."

 

                                                That change in, uh, uh, longevity and expertise, uh, and uh, uh, just familiarity with the process and having contacts with, uh, the oversighted, you know, uh, you know, the jurisdictional oversighted, uh, uh, governmental entities has been lost.  And that makes, uh, you know, current oversight very often ad hoc, uh, and hit or miss.  Uh, you'll have, you know, early subpoenas simply because there is no -- they couldn't figure out a way, uh, to communicate in a better way or to having continuing communications, uh, which makes, you know, for, uh, extraordinary oversight. 

 

                                                That's one of the biggest changes since --

 

Hon. Eileen O'Connor:           -- That's a very interesting observation.  It sounds like, Mort, that, uh, before the seniority rules changed, that the people on the Hill were at an advantage as compared to the people in the agencies because they had been there a long time and knew how things wormed.  Whereas people in agencies turn over every four or six or eight years. 

 

                                                Uh, we've, we've run toward the end of our time, in fact gone a little bit over, but I'll mention, uh one of -- something that you wrote early this year, Mort, and that is Why enacting H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017, is a big mistake.  Uh, that is a law that the House passed last year.  I don't think the Senate ever took it up, but, uh, I recommend to people who are interested, uh, in congressional oversight and its authority to gather information.  Uh, Mort's views on this law that would have, uh, given some teeth to congressional efforts to obtain information from, uh, Executive Branch agencies.

 

                                                Uh, Wes, we should have, uh, we should wrap up?  Uh, are there any questioners on the line?

 

Mr. Wesley Hodges:               I'm afraid we've run through our questions so it looks like we are at the end of the hour as you say.  Uh, Lee, do you have any additional comment before we close today?

 

Hon. Eileen O'Connor:           Uh, just thanks very much to you, Wes, for hosting this, and to Mort and Will who provided us, uh, all sorts of background information and there is, there's so much more.  I know that each of them could've, uh, spoken at much greater lengths about all the history, uh, of this topic.  So thank you to Mort and to Will.

 

Mr. Morton Rosenberg:          Thank you very much for the opportunity.

 

Mr. William Moschella:          Thank you.

 

Mr. Wesley Hodges:               It's been an excellent call.  And on behalf of The Federalist Society, I'd like to thank our experts for the benefit of their valuable time and expertise today.  We'll welcome all listener feedback by email at [email protected].  Thank you all for joining us.  This call is now adjourned.

 

Hon. Eileen O'Connor:           Thank you.  Bye-bye.

 

Operator:                                 Thank you for listening.  We hope you enjoyed this practice group podcast.  For materials related to this podcast and other Federalist Society multimedia, please visit the Federalist Society's website at fedsoc.org/multimedia.