tv Public Affairs Events CSPAN October 25, 2016 10:07am-12:08pm EDT
to find good answers based on solid fact-finding but i was shocked that there's an attitude out there that that the real purpose of oversight is political. do you have any observation on that? >> i might tweet sad exclamation point. >> #would be sad. [laughter] >> if i can just say it's a 20 rule. 20% of the overnight matters are cared -- gardnering 20% of the attention and happening at a bipartisan level. 80% of the work is a productive mutually beneficial process. >> do you agree with the senator that the courts may rebe responding to the partisan types of investigations and therefore benefiting more the executive branch out of concern of the merits of the equities involved because they get covered --
affected by the benghazi-type hearings? >> if you look at the red scare era cases about congressional oversight, they found a few sort of ways off the ledge with particular documents to relieve defendants of liability who they thought had been mistreated. most of the time the court would say, is it within congress' power of inquiry, if so, does the committee have jurisdiction, if so we are not -- we are not really listening to much else. then you're going get into the
balancing between a congressional need and confidentiality interest and someone has to sort that out and it's kind of a political thing to ask the court to do to say how serious the congress in the situation and how legitimate is this executive branch confidentiality and we are a third branch that's sort of calling into question the political motivations of the other two branches. so it's very uncomfortable territory but i think if we keep presenting them with that die dichotomy for judicial resolution they will have to get into resolution and bleed that analysis. >> that's another factor. this is the way we go now with the declatory judgment in courts. two years, wasn't it, in fast and furious? >> longer than that. >> longer than that. there's the factor of time and
the effect it has on the quality of the oversight specially if you have to push the subpoena and you have to go to court and the court says document by document review. that is a long time. >> executive branch strives to accommodate requests. it will provide a briefing about a matter. if it's not able to provide a line attorney or line law enforcement agent, it provides superiors who are politically accountable. the mechanisms have worked for many years. lately they haven't worked so well. >> did you provide a briefing in fast and furious? >> sure. >> on february 4th. >> of many kinds. >> were they true? [laughter] >> steve, steve. [laughter] >> steve has to move on. i have.
[laughter] >> we did our best. i really do think the documents reflect that. they were documents that eventually came out that showed high-ranking justice officials saying what's going on here, why do we have all the facts, let's make sure we are providing truthful information to congress. that wasn't self-serving. that's what people were saying by e-mail to each other in those months and i don't think there's anything that suggests that the department was engage in some kind of cover-up, people were doing their best under difficult real-time circumstances. >> can i just throw in one thing too about this, which is the idea that not all delivery processes are equal. i don't think that a ruling that the delivery process is available to the executive branch is going to be like foia, every time they're talking about an issue there's a denial. i think, you know, the other sort of political realities and dynamics of committee relations with the executive branch are
going to be there and push towards a lot more closure. i did have particular concerns about the post february 4th documents as, you know, the meta investigation, getting into the sort of what i would call separation and separation of powers. the ability of the executive branch formulate responses to congress getting hampered and in my house i actually have 13 binders full of subpoenas from the clinton administration because of a rule i had as course transition counsel out. about a thousand -- a high number of that thousand were from dan burton, predecessor on old committee. some of the subpoenas would literally hit the white house, tell us everything you said today, give us all the emails from today and the next day you get another one, it was really designed to try and actually degrade the ability of the white house and executive branch agencies during that period and chairman chaffetz have not come
anywhere close to that behavior ever, was really trying to get out degrading the executive branch ability to respond to the congressional request themselves and so this is -- this is a much milder version of that but i had a concerned about that of going after those documents that are representative of a whole lot of people trying to address in good faith congressional requests. >> that also goes to the question of the process of the issuance of subpoenas. seems to me that there's more situation growing where individual chairman have the power to issue subpoenas on their own authority as opposed to seeking our requiring majority committee rule. is that a factor in those kind of subpoenas where a member -- i mean that was the mccarthy situation where he had subpoenas, we had it in psi. i need to give it up. it was limited to psi and maybe
government oversight and the house. there were only two committees that had where the chair had sole subpoena authority. if expanded more and more members can issue subpoenas willy nilly. >> one thing and maybe ron has had the experience, it might have been my first letter that becomes the subpoena. if i sit down and read something as a staffer for a member, a chair, i write a document request letter with preamble and send it out and the chair revises it, gives to elected officials, sends it out and requests and we start encountering resistance, you know, chances are the subpoena are going to be backing up the letter and so the subpoena language that you end up litigating two years later in defense to a criminal charge of contempt or in a declaratory action is the same language that i sat the first morning that i
read an article about an issue that might be going on in the washington post or something. and so it gets baked into the cake to early, we don't have them function that sort of stops and has a evaluation of that language. i probably have been guilty of writing something that we all had to live with a lot later when i didn't have the full context in mind. >> what are your thoughts on that, steve? >> document requests and subpoenas do start at the beginning of an investigation but throughout any investigation you're always identifying priorities. if there's a subpoena involved, you don't take documents off the table, you narrow the subpoena but you do flag priorities, and if your interest hone in on patterns, if you identify priorities, usually the overwhelming majority of the time you get the documents that you need to do the oversight work.
>> what do you think the court of appeals is going to decide in the holder-lynch case? anybody have a conjecture on that? >> it's above my pay grade. [laughter] >> i think the brief that's been filed by the court is interesting and worth reading. >> i agree. i. >> i haven't seen the other side. for good background reading i should give randy a plug. those interest today find that article. who knows. do i think it's pretty clear as i say that there's now a forum, official forum for resolves disputes. the agency needs some space under the heading of deliberative process to consider how to respond to oversight and
how to do work of the agency. i'm hopeful that the circuit court would uphold that of jackson's ruling. >> under judge jackson's ruling does the president have to assert the dlif rattive process privilege or can the agency? >> under the presidential executive orders as the process matter, the president is the only person who holds executive privilege. getting something in front of the president for signature, you can't help but feel failure if you're a lawyer for a president and he has to assert privilege on that because you don't want to waste time on a dispute. that's going to have a limiting effect.
it's certainly the president and the president alone and one of the reasons some of you who work in congress might have seen letters that say, this raises significant confidentiality concerns, language like that. long-standing confidentiality concerns. that language is executive branch signal to go congress that they think this might be worthy of executive privilege but recognition of the fact that if they didn't send the letter, they can't say the words executive privilege. they are trying to reserve his or her political judgment and legal judgment whether and when to assert executive privilege. >> it's an interesting dynamic because it does involve indication of the president. the white house staff is uncomfortable, reluctant, it sounds nixonian and the white house will say to the agency, can't you work this out, can't you give them more, that was the
dynamic going on in matters that i was involved in and you try but ultimately you come back and say they're being unreasonable, and the president needs to backs up here here and executive privilege is then invoked. >> i wanted to bring up another case which is called the burwell case. have you been following that on the panel? and in that situation the executive branch is bocking turning documents in the affordable care act and in refuse to go provide documents the executive branch could spend $2.7 billion without an appropriation, the executive -- the obama administration has said, no we, we are not going to give you anything on this. congress said why? and they said congressional said
confidential privileges. what the heck are confidential privileges? [laughter] >> expanding to the confidential privilege. they don't name deliberative process or executive privilege. apparently congress can't get an explanation as to what confidential privileges are. any thoughts on that? >> obviously that's not going to be a line that could be held if congress moves to -- well, or even beyond -- even into a contempt phase. like my understanding is that it's sort of an unremedied dispute that's being discussed in the contest of the standing litigation and litigation of the substance of appropriation issues in burwell. and so to me, i don't think that that's something that's going to hold water as a stand-alone sort of principle of privilege.
i think for us to get clarity on that, congress is going to have to move through its own resources to enforce oversight prerogative to get to the bottom of what that is rather than have it be like a procedural fact and i think they'll be able to blow pass if committee moves forward with contempt threats. >> i like that answer. they are expanding the notion of privilege. do i want to take time to allow for questions from the audience. we have about 10 minutes left. so i will go with you first and then i will take you on the red shirt. >> hold on a second. >> we are on c-span and so we do need for you to use microphone so the question can be heard by the audience. he's right here in this -- you want to raise your hand so we can bring the mic to you? thank you.
>> thank you very much. i had a question for dean, i worked with steve on fast and furious and one of the things that you talked about you don't want congress mucking around the difference with fast and furious that the justice department was at the heart of the investigation. in other words, it wasn't like congress and justice department were both looking at mexican drug cartels but rather the congress was looking at number one, the justice department's involvement in approving the whole operation through the search warrant process and other ways, so misconduct, if you will, or recklessness by the justice department officials in the operation itself and two, the obstruction that involved the justice department after the february 4th letter. so wouldn't you say that those two factors against the position you said by making this case quite unusual vis-a-vis the normal process and just if i may
one more thing, you also said in the benghazi committee it was all political. the benghazi committee was the one that unearthed the secret server so did have public interest function, hillary clinton's public server. that came from the benghazi committee ultimately. they are the ones who found out and then "the new york times" wrote the article. i will just suggest that it's not just political in spite of the comment you referenced, there was also a purpose to investigating what happened there. >> the benghazi, i don't recall that that's the way the public came to know of the separate e-mail server, if you say so, but i don't recall that. as i say, you know, it appears that a lot of money and time was spent investigating a tragic death of our embassador and personnel in libya without a lot of -- lots of show about misconduct by the state department. as to fast and furious, i want to distinguish, in the first
part of your question you talked about the role of justice officials in approving a law enforcement operation. i don't think that there was an effort to stop oversight or limit oversight in that regard because that's a fair question if you believe the operation was flawed, how is it approved. we are long past approval of search warrants. we are now talking about how the department is responding to the oversight request that was initially made, so i think there was a reasonable line that was drawn prefebruary 4th, post february 4th. there was a second letter in may, the department decided it was reasonable to explain how that letter was drafted but ultimately there was a press for documents that were really about the department considering how to respond to the oversight and
that became never ending because then you're -- you could have oversight on the oversight on the oversight and i stand my ground there that at wasn't point it became legitimate. >> my main point of separation of powers but there were other law enforcement equities involved in this dispute relate today, if i recall correctly, wiretaps, maybe some grand jury material and murder investigation of bryan terry who was a border patrol agent as you all know, border patrol agent that was killed with one of the guys that had walked from the investigation. the justice department had ongoing law enforcement activities related to open files, related to the perpetrators of one of the murderers that was related to investigation. that was not as highly politically charged. >> the gentleman in the red shirt here.
could you identify yourself. >> sure, mike stern, my most relevant vierns i was -- experience was at the office prior to fast and furious. i would like to pick up on the suggestion that we heard towards the end about the president's role of invoking executive privilege. i would like to suggest that perhaps the dividing line that ought to be invocation and the reason that i say that is once the president personally invokes the executive privilege and it's a factual question i would like to ask in the fast and furious case the president actually personally signed anything because my recollection is the attorney general wrote a letter to the president asking him to
explain why executive privilege should be invoked and attorney general wrote a letter to congress saying, the president authorized me to invoke executive privilege but the president never had -- i'm sure attorney general's representation was authorized, but the president never took any personal responsibility in terms of signing anything to the best of my recollection, you guys can correct me if i'm wrong. it seems to me once the president does that, then the dispute is already sufficiently political if you want to use that term, that it's going to be very difficult for the courts to add -- add -- adjudicate it and the congress point of view, the point i take and judges are appointed by the president and many by the current president and even if they weren't appointed by the current president they seem to be sympathetic to executive branch way of looking at things as
professor wright said, the difference between the purely legal versus the negotiation and so forth, so if the president does not invoke executive privilege and i would suggest there ought to be procedures to make him do so in a timely fashion so he can't keep dragging on but if he choses not to invoke personally executive privilege, then you have pure legal dispute that's technical issue of whether the document that are being requested or responsive to the subpoena, maybe the jurisdiction of the committee but you don't have any of the broader constitutional issues or interest balancing involved. those disputes can go to court if the president choses to accept the political cost of personally invoking the privilege, then you go to the other remedy that congress has such as, you know, the appropriation power or whatever. up to impeachment in the --
>> do you have a question? >> the reaction to that suggestion. [laughter] >> do you want to hear from me? [laughter] >> whoever likes to respond. >> i'm a little bit nervous about the idea of routinely going to court for enforcement for subpoenas at variety level of dispute because it takes away the incentive to try and negotiate and i think that the best results for these things are most often what steve says is happening a lot and i agree with that, it's actual negotiated results where there's some sort of information that the committee may revise request or honor some or some sort of request and it gets there, so i hate to see it where i'm concerned about this and there's a crystallized dispute and they're going to court. i think that having the president get involved is -- is an important limiting function.
that's going to be the big limiting factor on deliberative process thing. you're going to have to walk into the white house west wing and tell the white house counsel, i need the president to put his or her reputation and politics on the line to defend this fight i'm having with my appropriators right now. and, you know, not very many executive branch officials want to do that. i think that's an important part of this and i think it's also important for constitutional purposes to make sure that that dispute, if it's really going to go to the limit, resides in the president himself who has the democratic light cri. >> overhere.
let's assume that's not true. let's assume there's bad actors. there is a cover-up. i do preserve the right of the congress to find that given the stance you are taking? >> sometimes through whistleblowers in the initial oversight into law-enforcement operation of fast and furious largely because the whistleblowers at the europe alcohol tobacco and firearms. i think congress can certainly call hearings en masse politically accountable officials to describe their
thinking and then they can answer for themselves. but you know, trying to get at the documents that are themselves literally delivered it seems to me danger is. there may be occasions when not will have to occur, but as a routine matter, congress should avoid that. again, do she will be on the other foot. there will be people right now initiating requests and sitting in agencies responding to requests. we need to have principles that are applicable across the board. >> we have time for one more question and then we need to break for 10 minutes. >> by name is richard gold for professor ray. there is a duty part of a new to attorney to preserve confidences with congressional subpoena to discharge the duty must be
willing to go to jail. >> under the right circumstances the attorney should be willing to go to jail. the d.c. bar has an opinion that i don't have at my fingertips right now they tried to grapple with this issue because there have been some situations in which congress was seeking very clearly attorney-client privilege material under normal common law roots. congress has taken the position that's got to comply with the rule of the chair. the chair is the one who authorized a subpoena, the chances of getting a super favorable ruling on your objection are minimal. my ultimate answer to your question is if you are really taking that responsibility seriously, he might have to walk the plank for your client.
that is obviously very personal. >> so we will adjourn for recess i should say. there is coffee and refreshments on the ninth floor. the pew center asked that you cannot use your cell phone on the 10th floor. you can use them on the ninth floor. we will reconvene in about 10 or 15 minute period here are second in panel on how we go forward from a knee now where we are. [applause] [inaudible conversations]
>> thank you, senator levin for those very wise remarks that comes from decades of experience. it is my privilege this morning to moderate his first panel, which will look at the development of the law and practice with respect to congressional access to executive branch information and to assess where we are now in light of recent events, and partake alert the myers case in the fast and furious pace. you are going to your fast and furious holder and lunch and those are all the same case.
fast and furious is the generic term. holder was the name of the cases brought undecided and now it has become much with the new attorney general and the cases on appeal. so all of those names are the same situation. i spent 24 years in the senate doing oversight was senator carl levin is a member of the pending governmental affairs committee now called homeland security and governmental affairs. i supervise a number of investigations of the executive branch including dod procurement , irs seizure policy, the operation of the social security disability program, department and suspension and blood tests and campaign finance reform. throughout those investigations, we took a very limited view of executive privilege in the right of the executive branch to
withhold information. it is a position very similar to the legal argument congressman issa made in the lynch case. i don't agree with congressman issa but i'm very close to him on the physician i must say. executive privilege today was limited to communications to and from the president. and even then the privilege is very narrow and dependent upon the nature of the investigation. i gave little recognition to the deliberative process exception when it involves interagency communication. i was one never claimed that kind of questions we are asking that the executive branch i don't think ever raise suspicions about the deliberative process exception,
but i must say that my attitude towards it was that we would rarely if ever recognized delivered to process in the interagency communication. in the past few years with the decisions and myers in holder, things have changed in there appears to be some greater recognition of the deliberative process are now exempt from congressional access and the court said the mechanism to settle the disputes. what that means for the future of congressional oversight. i wouldn't call it a sea change, but a significant change we need to see if it's an opening to a larger leisure refusal to provide congress with the information it needs. there are three individuals who not only have direct involvement in fast and furious, and but
also have a distinguished history of working on numerous other congressional investigations. they can draw from recent and past experience. i first introduced you to panel. first we have stephen caster. steve serves as deputy counsel for the oversight and government reform. featuring the committee staff in 2005 and has served on the committee as general counsel and chief counsel for investigation. he has served in a number of notable investigations including fast and furious, irs, steroids in baseball. he received an mba from lehigh and his jd from george washington. next we have ron weiss. serving as dean of the community of baltimore school of law. prior to that he served as assistant attorney general for legislative affairs and the justice department representing
all legislative and oversight matters before congress. he's also served as chief counsel to senators harry reid and edward kennedy and he received his ba from columbia and jd from yale. andrew wright at the savanna law school where he focuses his research on separation of powers with an emphasis on congressional oversight and national security. he previously served as counsel to the president and assistant counsel to the vice president and the obama white house as well as staff director and counsel to the national security subcommittee in the house of representatives and received his ba and jd from the university of virginia. thank you all for being here today. each panelist will have 10 to 15 minutes to present their comments and i will then ask
them a few questions and open it to the audience for additional questions. let me start with you, steve. you and the house government reform committee for fast and furious. this is only the second time, and which the house i decided to use the courts to enforce the subpoena and to seek a declaratory judgment in doing so. can you give us some background on this case is and why the congress felt obligated to seek a declaratory judgment for the district court, why you didn't use your inherent contempt authority and why you didn't seek to use the u.s. attorney to enforce the subpoena. >> thank you for having me. fast and furious as they gun trafficking case gone wrong. the decision was made along the southwest border to stop interdicting weapons that were illegally purchased by straw buyers and instead allow the
straw buyers to purchase weapons illegally and walk away with the purpose of allowing the note worked to develop. while watching them out or, the plan was to take the whole network down and to send the flow of traffic to the cartels in mexico and it didn't work. and in hindsight it is no surprise that didn't work and certainly is a case worth while congressional oversight and nobody has ever said it's not worthwhile to look into what happened. there was a significant thing to look at the local level of atf, u.s. attorney's office in phoenix all the way up to senior levels of the justice department. after the investigation commenced the very early portion of it, february 4th, 2011 a 2011 in letters written to congress that is false to nine
the charges, telling us essentially to go away. the problem with that was we had insiders providing us firsthand accounts and document. the february 4th letter was wrong. it was false. 10 months later that letter was withdrawn. part of our investigation was what happened during the drug trafficking case gone wrong, but another was what happened between february 4th in december 2nd, 2011, nearly 10 months where congress was stonewalled, obstructed, told to go away. it was not a legitimate oversight effort and the justice department and blanket fashion told us we were not entitled to any documents post february 4th. we brought contempt on the house floor, both civil contempt and
passed in bipartisan fashion. 15 or 17 democrats to join the republicans. but it was presented to the united states attorney and the united states attorney declined. so it is a criminal and civil component. the president asserted executive privilege that certainly is a major or by the u.s. attorney is not going to prosecute. we filed a civil lawsuit. the lawsuit is ongoing. we filed our appeal brief on october 6th. so as it relates to activities at the district court level although i might have a great appetite to talk about it, i do need to be restrained because it is in litigation that could be remanded. that being said, a lot of very important oversight actions have
been prior to filing lawsuits. you mentioned that hasn't been used in the house since 1916, has been used in the senate since 1934. the process of inherent contempt would involve the committee passing a contempt citation, taking it to the house for and having the speaker the house sergeant at arms to go rest the attorney general and bring the attorney general to the house jail and that hasn't been that type of enforcement mechanism hasn't been used in a very long time. we certainly are aware. it certainly has a valid means of enforcement, but it hasn't been used in so long that it's hard to consider arresting the attorney general of the united
states as an ordinary means of enforcement. >> he said u.s. attorney declined to prosecute because of executive privilege. wasn't that a deliberative process privilege? maybe you can explain the difference a little bit between executive process -- executive privilege and deliberative process. >> this is the executive branch doctrine. i'm not just speaking to congress, but you know, deliberative process that the one component of the executive privilege sort of umbrella doctrine according to a wealthy executive branch doctrine over the years. the president asserting executive privilege give it a slightly different contempt if the attorney general's under the president's order is then that was the u.s. attorney's days, maybe not act -- criminal act at
all. >> the documents that were internal largely to the justice department were just documents within the white house between to and from the president. they were also interagency documents. >> are subpoena had 22 categories. subpoenas are issued a the early part of the investigation. by the time we got to contempt, we had obtained, not necessarily from the justice department, but we had obtained many documents we need to evaluate the operation. >> i'm very proud also co-professor with senator levin on this subject. read some of her students here today. and i am pleased to be the moderator of this important panel that's going to talk about the ways to reform the current system and walk with an historical analysis of how we got to where we are provided by her great panelists beginning
with josh chase says, professor of law at cornell law school and research focuses on constitutional law, and constitutional development, legislation and legislative or feature and his second book entitled congress this constitution legislative authority and separation of powers will be published by yale university press next-line. he's also published by the scholarly journal and holds a law degree from male and a doctorate in political science from oxford. after josh will hear from david hayes at stanford and consulting with institute or the environment. prior to that served as deputy secretary and chief operating officer in both the clinton and obama administration. between his service there, he worked in the dirt and resources department at latham and watkins
international law firm. also the former chairman of the board of the environmental law institute, chairman of the board of visitors for law school and vice chair of the board of american rivers. he also formerly served as a senior fellow for this year the foundation and the world wildlife fund. he graduated from the university of notre dame and received his jd from stanford university. after david we will hear from -- up at around a little bit. actually before we hear from david, we will hear from kerry kercher. retired as general counsel for the united states house of representatives for more than 20 years nonoffice. he's known for the insistence on the office of general counsel operated not strictly a nonpartisan basis in the course of his career he participated in a significant number of high-profile cases that concerns the relation semi's and separations article i and article ii branches of the
federal government and in particular the lead counsel in the litigation and worked extensively on the myers bolton case to congressional enforcement cases we talked about today. he graduated from stanford university and also university of london. family mart rosenberg is a specialist in american public want with the division of congressional research service from 1972 to 2008. he specialized in areas of constitutional law, administrative law and process the congressional practice and besieger, labor law and the interface congress and the executive. he's the author of a number of journal articles on separation of powers and administrative law issues and is testified numerous times before national committees on these issues. he retired from crs in 2008 and is undertaken a variety of consulting projects including engagement by the constitution
project and monograph on the congressional investigative oversight entitled when congress comes crawling a primer and principles, practices and pragmatics of inquiry which is published in 2009 and students in our class that i referenced earlier will be familiar with us a rosenberg has been assigned this book. as required reading for the class. so mr. rosenberg, great to have you here as well. without i would like to start with josh and each panelist is going to provide about five to 10 minutes overview of their perspective on this issue of the current system whether it's working and whether it needs reform and after that we will open it up to questions and interact discussions. >> thank you to all of you for showing that appeared in the previous panel, he said that there was the white house and congress, these disputes over access to information as if they were in two different planets, mars and venus.
i think maybe if i want to frame the question for this panel is something like what we do in the myspace community and the venus community cannot come to an agreement over which perspective to adopt in any particular circumstance. as you may have noticed the only one speaking today without government service so perhaps that way i can best provide a handle on that is to try to give some kind of historical overview or historical background to the controversy today. we've heard a lot about major controversies. we talked about the u.s. attorney controversies, myers case, fast and fierce investigation, one of the gripping intensely divisive partisan controversies with the second bank of the united states. those of you who remember your american history or your first year of law school, of course
what gives rise to maryland, but after the supreme court upholds, and andrew jackson makes it a centerpiece of his presidency not only by vetoing the charter, but he removes all of the federal funds from the bank of the united states before bankrupting him. this makes a lot of people in the senate not terribly happy and in 1834 and response they passed the resolution of disapproval. jackson a famously irascible man was fun to the very link the message of protest to the senate basically telling the senate to mind its own business. essentially he says the only way the senate can interfere in my exercise that my constitutional prerogatives like to be toasted the power of impeachment. impeachment or shut up is when he says. this is not taken very well and so they passed a resolution accusing him of breach of
privilege. people who know the history of the power of breach of privilege and contempt are essentially the same thing going back into parliamentary history, content doubt was parliament whereas breach of privilege where they can identify a specific privilege that some outsider had reached. they are effectively the same thing in force in the same way. besides the senate calls upon the language of breach of privilege in response to jackson is very much meant to heighten the controversy. it's meant to make this much more salient, much more powerful. jackson responds that the more ill tempered messages. one question you might be wondering at this point is how does the senate in force its finding of breach of privilege in that case. there are a couple ways. in some sense the breach finding itself with its own enforcement.
at this point jackson in the senate are locked in significant battle for the hearts and minds of the public. they were then anti-jacksonians which would come to be called the links in the senate at that point and they're simply trying to get negative publicity to stick. the finding of breach of privilege, calling him a long tradition of the legislative mechanism was meant to be one mechanism of doing that. the other way they enforce a history varied use of in my book called the personnel power. they refuse nominees in the case of someone all the lawyers in the room have heard a. tommy at this point was attorney general and acting secretary of the treasury. he's been the one responsible for withdrawing the united states and jackson a month after
been nominated for secretary of the treasury. the next day the senate vote them down. though carla might delay. none of that. the next to be voted down, jackson again always interested in making ice in a few months later justice of the supreme court. this does lead to a garlic situation in the refuse to vote on it. if not for another year after that and the death of john marshall jackson again nominates and the politics have changed a little bit. the jacksonian forces and at that point finally concerned with results many of us think are perhaps less than ideal.
something similar happened a decade later and the house where the house of representatives holds john tyler in breach of privilege protesting against a house resolution that criticized him as well. the first vice president upon the death of his predecessor about 30 days after his inaccurate should. tyler is known and is hated by his own party. he's expelled five months after becoming president. in a shocking critical folly now. once again they choose to express displeasure and enforce if you will be breach of privilege finding, but also of their political disagreements is through polling and other mechanisms it has. tyler to this day has the worst record in american history as far as getting nominees confirmed.
nine supreme court justices was confirmed. not quite that bad, but pretty close to as bad nominees as well. the point i'm trying to make with these examples is it is a mistake to think about contents are breach of privilege as inherent which requires imprisonment by legalistic going through the court. congress has a tremendous number of tools that it can use in disputes with the executive ranch and he uses them all the time. another example and i promise i won't take you through the entire 19th century, but another example i find compelling is from 1866 when james frye who had then the marshal general of the army during the civil war got into a spat with an increasingly
important member of the house who don't want to have a long career in the senate after that. as a result of this at the end of the day the house passes a resolution finance brian contempt of congress. again, a month after dave marshall's general office is no more. they destroyed the entire bureau he was in charge of. again, we've seen tugging on the purse strings and it's not until the 20th century, late in the 20th century that we see any kind of attempt by house of congress to go to court. i would locate this not in the myers case but rather in watergate. the senate select committee on presidential campaign activities is the first congressional committee that seeks judicial enforcement of a subpoena.
and they don't get it. both the district court for the district of columbia and the d.c. circuit say you can't have it. a lot of their reasoning actually centers around the fact that this would interfere with ongoing grand jury investigations. this is something we heard about on the previous panel here at as if the court could not conceive of any higher interest do not go in grand jury proceedings. this is the last point i want to make and then i woke shut up for now. the issue isn't actually mars and venus. it is mars, venus and pluto. there's a hard actor and we can act as the courts are some sort of neutral arbiter outside the political process. their political actors as well. in watergate the court takes a judicially centered view and
they say you don't need the tapes. it would be interfering much grand jury investigations. what is the effect of this? immediately establish the investigation ended as a part of the whole suite of cases arising out of watergate when american lawyers think about watergate, to hear the the story we tell ourselves is often the courts. we talk about the nixon tape case which then set into motion events that lead very quickly to nixon resignation. but of course there was a parallel proceeding going on. the house is very close to articles of impeachment. what the courts do is essentially a dirt themselves. they make themselves the heroes of watergate and that has institutional powers to the court. there are all kinds of things
with the issue of timing, how long it takes to get information when it goes to court, that there is a second level problem here which is courts essentially stepped in and pushed the benefits that could otherwise accrue to congress if they were to use its own mechanisms in an attempt to get this information. go to court should be a cautionary tale. it has a slight complication at the beginning which is if you have bipartisan investigations they might be more reticent to stop them. the house investigation in watergate was famously bipartisan and yet the courts nevertheless take the first opportunity they have to step in i would suggest insofar as the institutional power we have to think about it and i would suggest we might try to draw a bit more inspiration from the
teen centric congress than watergate and post-watergate. >> the view of the courts and the courts rule in the process. i want to go next to kerry to provide additional commentary. >> is very much for being here. in light of my 20 plus years of experience that will not come as a surprise to any of you that congressional oversight is absolutely essential to both the congress' ability to legislate and the congress' ability to check the executive. i would like to make three points that pick up on josh's larger point of what you do when mars and venus but up against each other. i agree with the earlier panel
said a lot of oversight that goes on beneath the radar screen that goes on smoothly. but i want to mention when the two branches clash with each other. point number one is that litigation, while it is an option that is available to the house in senate is a very cumbersome and a very uncertain mechanism to enforce subpoenas and the congress should restore it to the vacation when it has no other options. why do i say this? do they give you three sub reasons to my first point. the identity of the judge will matter a great deal and has no ability to select which judge it will get to hear his case. the fasting. make a case study on this point. the jewish area committee files suit in march of 2008.
the judge in that case promptly agreed that he would consider the jurisprudential issues on the merits at the same time. the issues were briefed simultaneously in the form of a motion to dismiss by the department of justice and a motion for partial summary. july 31st, 2008, the district court issued a 93 page opinion that addressed every issue in the case very thoroughly from top to bottom. less than five months to start to finish. in this fast and furious case on the other hand then i leave aside the amount of time that expired before the complaints were filed in the district court. and the fast and furious case, the oversight committee files suit and oddest of 2012. one of the district court's decision is the issues would not be briefed simultaneously.
we would deal with the issues first and then turn to the merits of the case is not drawn out. that resulted in briefing the department of justice motion to dismiss which occurred by the end of that year. september 30th 2013 we had a decision on that issue that the committee had standing and largely reiterated the standing issue in the case. we are now a year into the case. it took another nine months to august of 2014 and so now we are another year into the case. as many of you have filed the case now on most of the major legal issues in the case, it did
recognizably the existence way the existence of the delivery process the number of issues were briefed in both sides of motion and the august 2014 order did not address those issues. then we went into it. of privilege logs and making decisions like determinations about individual documents and that's not for another 12 months. the committee filed a motion to compel the remaining documents until january of 2016 until you get a final judgment, which again resolves the case, but a number of issues in the course of the case. it is a difference between five months in miers and bolten and three and a half years in fast and furious.
the second plane on my litigation is not an option is the point i just made. it can be agonizingly slow. congress does not function on the court schedule but also in the senate basically on a two-year election cycle. it is hard to get anything done in the courts in that period of time. the third point i would make is because of the time it takes to dedicate and because of the possibility of power changing due to intervene in elections, they can never be certain when it initiates a case and will see the case through to completion. myers bolton is an example of that filed in 2008 as i indicated the district court ruled later that year in the fall of that year during the time that the bush administration. in the fall of baggy or of baggy or we have an election that the new cast of yours in town.
they had a different view on things and shortly thereafter the matter was settled and it never went and then appealed and the inauguration of president obama in 2009. litigation is is not a great first choice for the houses that. it is i think the last option for the house and senate when you don't have any other options. a second larger point a missile pick up on some of the things josh said is that congress needs to get the other tools in the constitutional quiver when it's dealing with these oversight matters and using those tools. the appropriations process and
the authorization process in the senate and the advice and consent power. if there's one thing the executive branch understands, it is money. the house and the senate have the ability to withhold appropriations, to threaten to withhold appropriations commit to link appropriations to compliance with requests for information or subpoenas. i think that it's not happening at the moment and has not happened for some time in a systematic way. i do believe that these other powers are used effect really, it really falls from the leadership of both branches, both houses of congress. the leadership has to step up and make sure this is a priority for the house and senate. it has to involve itself more
directly and trying to make sure the house and senate take these matters seriously. lastly, i think it means to make sure the appropriators in particular to make sure they understand that they are on the oversight team, even though they may not be connecting oversight themselves, what they do in the functions they carry out in their committees are a key component for the house and senate with the documents they see. very quickly, my last large point is given litigation will continue to be an option, there may be ways for the congress to streamline that option to make it move more smoothly and more expeditiously and the fast and furious case.
they were at odds with the census bureau plan to use statistical sampling in the 2000 cents in. with litigation over this issue enacted legislation that the cause of action will channel the litigation and did three other things that are pertinent. number one, the legislation required action be heard by a three-judge district court. member to provide a direct appeal to the supreme court and it provided an ill quote this piece for the statute. it shall be the duty of the district court hearing in action brought under this section of the supreme court to advance on the docket and expedite the greatest extent possible it seems that congress and recognition of the fundamental importance of congressional
oversight and congressional subpoena enforcement actions. >> thank you. from the perspective of the legislative sign and now from the perspective of the executive said. >> thanks very much. it's great to be here. really enjoyed the first panel. i would say that while they have some pseudo-academic qualifications after i read the article, i know virtually nothing about the academic side of this issue. i've been more in the trenches are not the trenches are not what i to talk about here. first let me say as a former deputy secretary that is controversial and many times. i do think that there is really an important function here in terms of oversight.
we see it done while and then we see it not done well. one current example where i think it's been done quite well and i credit chairman chafetz on the house right now for what he's doing in terms of the national park service and the sexual harassment concerns. it's a solid investigation on important issue with an early opportunity to publicly respond to the allegations. that is the way of oversight should work and i think that things will come out of that investigation. i should also say and my ex variant in the government i have found that the appropriations committees have done very good oversight where you can expect
adversarial relationship from the beginning, but instead in part because of the process is a much more collaborative relationship with experience congressional staff, internal folks in the agency working things out and a recognition to kerry's point that at the end of the day and there is an incentive for working things out. i will comment parenthetically that the breakdown of the appropriations process and a process that is largely dominated actually is quite distract the other traditional work of those committees, which is to actually work out the appropriate funding for appropriate uses. but in my experience when you
move away from the traditional oversight committees, my experience has been that this has not been a very good relationship between the administration and the congress. i will give two or three quick examples. the truly driven by partisanship and contacts where it appears clear that it's all about partisanship. in other words not moving towards a result that will affect policy in a different way. i think that is an important litmus test for what those investigations are all about. and a tendency to go nuclear quickly, to go to the subpoenas and this is the next thing since when does the ad will go all-out.
it's like really, and i will just say i think it is an effective. many of these investigations are in effect for all those reasons but i will give one more appeared the tendency has been to have one or two big ones, try to get the big head and it takes all of the effort of the committee staff and internally and the administration to respond to these under 70,000 places at the department of interior. there's a lot of things going wrong. there should be much more common you know, let's not try to get the big one. let's make government work better and work together better. three quick examples of the former situation where i think hopefully they'll speak for themselves. one of them was darrell issa and
the summer of 2011 he called up lisa jackson, head of the epa and need the deputy of interior. the title of the hearing for something like how the obama administration is raising your gas prices. that was the summer when the prices were going up like this. the night before the morning of the hearing there's an investigative report that were given. all one-sided, just the republicans drinking chair, and had no knowledge of it. it was a silly hearing. mr. hayes, why are you allowing oil drilling in the arctic national wildlife refuge because that would get our gas prices down and that kind of thing. that just kind of cheapens the whole process of an oversight hearing. sorry to be so explicit about it. i still remember that hearing. a couple other quick examples
for a think the inquiry was legitimate and appropriate, but then it just got carried away. i'll give you an example of the gulf oil spill. we have a huge oil spill occurred in the summer of 2010. the interior department in the middle of that were the regulatory agency involved. one of the early questions was will the president and secretary salazar put a moratorium on deepwater drilling until we find out what caused the problem and are convinced that we are safe. secretary salazar ordered a 30 day reporter. the oil is still flowing in the goals and we pulled together traffic experts to help us figure out how in the short term to make sure we make the kind of safety adjustments that would allow us to continue to do deepwater drilling. the independent experts give a
great input. it is clear that we need to do some things before we can continue the drilling. the president in part based on this report says we are going to do a six-month moratorium before we do drilling again. here's the confusing part. the cover letter that went from interior department to the president and for because of poor editing and the middle of the night at 2:00 a.m. that all of these independent experts were proposing there be a six-month moratorium. that wasn't the case. it was clarified quickly. we were relying on independent experts because ultimate ken salazar's recommendation to the president to win a half years later that investigation continued as to whether there was white house interference in this decision on this moratorium. meanwhile, there is a final decision on a moratorium.
that is taken to the chorus. the court ultimately uphold that. it's clear the final decision is not based on those experts. the final agency decision the court to prove it to get literally in august 2010 subpoenas are coming to the department of interior to in a years later about this. this is clearly the concern that there is a moratorium for too long and it was politically based. final example of something still going on right now at dealing with mountaintop fighting spirit at the end of the bush administration there was a rule called the extreme buffer zone rule that defines the types of essays that those who are coming down the mountains in west virginia and filling the streams, what they had to do in terms of protecting the streams. our view coming in was this was not a strong role so we started a new rulemaking.
ultimately by the way the 2000 april was overturned by the court so we needed a new rulemaking. early in the rulemaking and this is going to be an apa rulemaking following congress in subject to judicial review at the end of the day, early in the rulemaking and incompetent contractor was hired by the department of the interior even before there was a draftee are we ended up firing this contract are. that contractor made some allegations about how many jobs would he lost a few took a different approach to mountaintop mining. boom, the two political issue. this is deliberative process. they're obviously an interest in whether the department was biased or whatever for what was going on. fine. let's answer those questions. here we are. there were seven letters from the oversight committee.
obviously a lot of interest from a lot of congress folks. there's finally a draft eis. there will be a spy .gif and a final decision. look, the issue has been identified as a sensitive issue, but let the process continue here. we haven't apa related process here that this is a sideshow issue. but that mountaintop mining and the moratorium took all the oxygen out of the room in terms of the issues of oversight vis-à-vis the interior department. it is not time well spent. but i hope will come out of this discussion and perhaps a mars and venus situation although i don't like that analogy. i remember the books. whether you can can literature and personal life and see how that works out for you. but i do think that we need to
work together better, congress and the administration and we need to be smarter about it. but it is these kinds of things that put people in the trenches and put the defensive is up and leave to litigation that i agree with kerry is no way to solve the problem for all those reasons. fair enough. there we go again. the administration putting words in your mouth. thank you. >> your thoughts on this. >> well, 35 years of trench warfare and i see these problems and what has been going on lately and obviously a tremendously different to.
i grew up in the trenches and i work with amazing members who were ofer siders, like john mosque, john dingell, ben rosenthal, and chuck grassley. they were loyal, long-standing and it came to me with perspectives on how to get things done. did we ever do this before kind of question. over the years i've learned a
lot. i think i got a reputation for congressional oversight and that was well learned. i learned three things. first of the constitutional basis of congress and oversight power is virtually plenary and investigative authority is irrefutable. courts have consistently recognized in order to perform its core constitutional responsibility to congress can and must be able to acquire information on the president, department and agencies of the executive branch. the structure of the checks and balances grass on the principle that congress has the right to know everything that the executive is doing, including all the policy choices and all
the successes and all the sailors in the implementation of those policies. the supreme court has made it absolutely clear that article i presupposes that meaningful access to information so that it can exercise its obligation to make laws requiring or limiting executive conduct. the fund program executive policy to which it approves. they denied funds for those policies to which it disapproved and investigations of executive behaviors that raise concerns. i found in the series that committees wishing to engage in successful oversight has to establish credibility with the white house and executive branch department agencies that they oversee early, often and consistently. in a matter of respect it's out
of fear those standing with the vast array for fermentable tools, including supreme court and appellate court approvals of this is including congress has adopt did for the oversight hearing that do not accord witnesses but the full panoply of rights enjoyed by the adjudicatory proceeding. absolutely critical to the success of investigative power as it eased the credible threat of a meaningful consequence for refusals with information in a timely manner. the 1795 is the possibility of
the citation for contempt of congress or the bar at the house. there could be little doubt that such sensory effect in the past in at least 2002. i would point out that between 1975, 1998 or 10 votes to hold cabinet level officials, all of those resulted in substantial compliance before the necessity of a criminal trial. ..
>> i would add it was a bipartisan effort which was unusual for chairman burton in which the contempt vote in a bipartisan manner was a certainty if the president didn't cave in, and he did. i'm kind of surprised, you know, the discussion relates to simply these two cases, the myers case and the holder case.
it's as if everybody is thinking that came out of the blue. but those situations represent and underlie congress is under siege by the presidency. it does not suddenly come out of the blue. it is a calculated offenses. the last decade has seen, catalog this, among other significant challenges and unlawful fbi raid on a congressional office. the department of justice criminal prosecutions of members of congress that have successfully denied them protections. a presidential co-option of legislation come of legislative oversight of agency rulemaking. presidential refusal to ensure the faithful execution of
enacted statutory discretions, directions. and unsuccessful attempt at usurpation of the senate appointment power, and with respect to investigative oversight of actions of executive branch officials, the adoption of a stance that wasfie of legal counsel of doj in 1984, that the historic congressional process designed to ensure compliance with the information gathering prerogatives are unconstitutional and unavailable to a committee if the president unilaterally determined that executive officials need not comply. such an instance, the department of justice will not present -- as required by law. that's where we are today.
these two cases have come up, a reflection of a concerted effort to undermine congressional oversight. and only thing that congress can do is to step back, i agree with the utilization or attempt at utilization of confirmation powers, the appropriation power, et cetera, et cetera. but they are not talking. they are not going to frighten anybody. one of the panelists talked about transactional, you know, methods of settling, you know, disputes over information. what that is, is, translated correctly companies and ability to negotiate and stymie over a period of time. congress has to look at what powers it has and get back to
finding a credible threat that will bring the executives to the table, and to negotiate. and if not, issue either i contempt of congress criminal action or revive the inherent -- adhered congressional intent. inherent congressional attempt stop in about 1934, 1935 your not because it was an effective, it was, it just took too much time, and the criminal content process was thought to be more expeditious. neither of which are true. the inherent contempt process can be made that are, more
acceptable. there's no reason now, the supreme court has for over 100 years in four different cases established the constitutionality of inherent contempt. it has been deemed unseemly because it requires arrest, incarceration. and that isn't necessary anymore. the supreme court has made clear in a case involving the senate, you know, power over impeachment, that the trial can be preceded by conduct of
investigatioof theinvestigatione to present to the senate at its trial and cut down on the time it takes for a trial. the same thing can be done by internal rulemaking to make the inherent contempt process seemly. you can provide for an investigation, a presentation of recommendations to the floor of the house, and the penalty doesn't have to be imprisoned it. it can be a fine. there is certainly precedent for. second with regard to criminal content, that is also still necessary. the olc opinions the state the history -- mistake the history of colonel content. criminal content is absolutely
necessary, you know, to be revived. there is no doubt that there's an analogy to criminal contempt that is issued by courts when there is contempt of course. the supreme court in 1987 accepted the rights of a court to appoint a prosecutor to criminally prosecute somebody who has been found to be in contempt of course, to bring, you know, a private attorney to bring a prosecution. the next year in morrison v. olson, that case was cited prominently as a seemly and authorized means for a court to
appoint somebody, ma when there is a criminal prosecution. should be understood that it is constitutional for congress to have, congress has the same self protection that the court has, in the analogy is appropriate. and i think in the next time that there is a refusal to bring a contempt of congress to a grand jury, there should be a resolution that authorizes both an adhered contempt at the same time that there is a criminal contempt and that the supreme
court, morrison v. olson, will come and support it. that i should be and injunction because there is only, what the justice department is singly that there is a conflict of interest because their client is the president and also the executives. justice department in such situations as rules were it's as if we do the conflict of interest we will appoint a special prosecutor, either somebody within the department of justice who is walled off or someone private, like an independent counsel. both of those who should be looked at because there needs to deleverage. this is all about politics. that's what it is. congress has had it in needs to revive it and not go to court. the court process as kerry has
experienced, means delay, delay for oversight means ineffective oversight. goes away. thank you. >> i'm going to open it out to questions next, and i actually wanted to take moderators privilege and start with one. mort comes you started by talking to send you started with lessons, senator levinson we also heard from david other on a panel about the contrast between oversight and being misused its i was curious, open to the pain but certainly mort as well, what do you think enabled that strong or does enable that strong pages of oversight leadership and the figures who exemplified that in the past? and what is limiting it now? in other words, why aren't we seeing more of the type of
leaders and oversight that we've seen in years past? what has changed and what we do to maybe bring some of that leadership back? >> the sense of institution is gone, missing, been taken away. there is no sense today that if we enable effective oversight and enforced it by contempt of congress or inherent contempt, that, not any thought of it. because at the forefront will be the other party will use it, you know, and we want to be sure that doesn't happen. there is no sense that, of the responsibility and a duty of
members that's common, that is a need for cohesiveness, the need for underlying, you know, maintain the integrity of the institution itself. it's the result and it's not there today. >> well, i want to go on record as being in favor of effective oversight. so anything that will contribute to that i'm in favor of. i guess one thing i would se san this point is i suspect some of the breakdown, if you will, let be start by saying i don't agree that there is a lot of effective oversight going on. i think it is but there's lot of high profile oversight matters that suggest it's not doing well. obviously, is not doing as well i think as it has in the past.
at least in part that the function of the more polarized political world that we're living in that affects any number of things. we are living in an age of morel tribal politics. i think it makes it harder for the minority to trust majorities in congress and the majority to trust the minority, and this is at least in part is probably one i product of that. if we can figure out a way to make our politics more nice, and i suspect more bipartisan oversight will probably flow from that. but i don't have an answer to that. >> it's worth noting that we have this sort of sense that there was this great historical moment when i partisanship flourished everywhere. and to some extent that the function of the moment of which we're living right now, which is to say that for most of the 20
center bipartisan coalition of a possible. the reason is they were racists everywhere, right with the recent the colleges were possible is about the democratic party was split down the middle between its northern and southern wing, and so the republicans could make sort of common cause with usually the northern democrats, acacia and the southern. when you look at the votes often use them immigrants and some republicans. that anomaly in american history. if you look at debates certainly leading up to the civil war, the fact that the week started life as a party called anti-jacksonians should tell something, go back for them to cut the election faking it which puts the current election in some perspective in terms of historical best in this. you can look at investigations arising out of the great corruption scams of the 1890s which are almost entirely done along partisan lines. there are very few moments in american history in which bipartisan, this great kumbaya happens. it turns out it's not for
reasons we want to emulate today. i want to push back on the idea that bipartisanship is something we should see is necessarily an indication of good, healthy politics. sometimes one party controls a lot of the levers of power and sometimes that's because they are engaging effectively with the public. in the situation it's not entirely inappropriate for them to present those claims to get more of what they want to use the mechanisms of power. of the times we have divided government because the public has entrusted either party with the mechanisms of power and comfort we see playing out at those moments is it a result of democratic breakdown. it's a manifestation of the fights point out in the public at large. look around you. we have so much divided policy at the moment are why should our institutions not reflect the restrictions of the world? that would be a limited some part of our political diversity.
that doesn't seem desirable to me. >> since we're all guessing here, i'll put my own guess out there. two of the three examples that i mentioned were oversight initiatives from our authorizing committee, the house natural resources committee. the reality is there's not a lot of legislating going on, and the complete absence or near complete absence of a dialogue with the administration and across the aisle on legislation i think provide a bit of a vacuum that promotes this kind of thing. and i served on the clinton administration as well as the obama administration. i think it's getting worse, not better, in that regard. [inaudible] >> hold on. we're going to get you a microphone real quick speed and my question is to get a sense of
your advice to congressional staff on carrying out effective investigations on a day-to-day basis. i've seen this as an investigator on the senate side working for private law firm, seen is that an executive agency and the white house here in every practical way some of the lessons that i learned in the senate are not necessarily carried through, things like a big investigations confidential until they are ready to be final, making them confidential, treaty materials that are sensitive and insensitive. and in doing other things in a way for congressional staff to establish credibility. i may be using it in a different way that you used it, morton, so that there is, despite differing interests on either side of a congressional investigation there is a balance of power, about both parties can establish credibility. as a lawyer yes, we do have
different interests but we do believe that tax, and the truth should be the truth and that's what investigations committee get after. if you're getting advice to congressional staff, any of them are young and under 30 and not necessarily lawyers, what sort of institutional advice would you give them? >> i advice them first to pay attention to the more senior folks in their ranks rather than going off half cocked. i mean, i'm of the school that the executive branch takes inquiries like this very seriously. and in my experience it does. a predecessor of might and the bush administration went to jail because he lied to congress. so there are terrific incentives to be careful about how administration officials work with congress.
i think it's like any other, you know, potentially challenging situation. professionalism really pays off. when both sides recognize that they have institutional interests, but ultimately they have the same interest in government working well. and ensuring that we are serving the american people. but obviously completely one-sided reports that, you know, since chairman burton is taking it on the chin, the opening remarks of chairman burton in one of his oversight hearings was, you know, amazing to listen to. untethered by fax, but on the
other hand, chairmen dingell and chairman grassley and others not that way at all. let's start with the facts, let's talk about the facts and must develop the facts. so i do think that maybe part of the problem is that has been a little bit of a churn odyssey on both sides of the equation, some of the real pros in terms of staff, congressional investigators have moved on, and to define some of the chairmen, for example, house resources committee, bringing in new groups of investigators who don't have the experience and who are thinking of this as, i would guess, more of a political exercise than anything else. >> i'll take a brief crack at that from the standpoint of somebody who work in the general counsel's office as opposed to a committee oversight investigator of oversight lawyer.
two things i guess i would say. number one, i think because of my background as a litigator my advice would be litigation centric. you need to be focused, precise. i'm talking about subpoenas and requests for information. you need to leave as little room as possible for the departments, executive branch departments to concoct objections. so you come at it from that standpoint. the other thing that i think i would advise is given not withstanding my advice that litigation is probably not a great option for the congress, i suspect it's going to continue to be an option that will be used, and so i would be giving advice on how to shape information requests and how to conduct the investigation in a way that makes more salable in the judicial context when we get there down the road.
>> one thing, which is maybe the flipside to what you were saying, which is it probably makes sense to think about it from a sort of lawyerly litigation like perspective some of the time, but it also makes sense to think about in terms of public politics. if you think about some of the most successful like broad scope, congressional investigation in american history, so think about the 1920s munitions investigations which almost certainly late american entry into world war ii by creating a large sort of public peace movement, a movement that was skeptical of the warmaking capabilities of the administrative state. let's think of the church committee in the '70s. these are committees that were careful but they're also highly cognizant about the fact that they didn't just faced toward the executive branch, wasn't inward facing the faced out to the public. reports were written and hearings were structured so as
to convince members of the public to adopt a certain perspective. it's a reminder that facts, facts are to some, in since then but in another sense they are a symbol. there isn't a sort of situation out in the world that you job is just defined. your job is to construct a narrative about the world and convince people of that narrative your that would be my sort of advice into force you want the investigation to real public punch. >> i've always, working with those people who are legends oversight they all viewed as a stage process, that you start with a problem and try to identify it. and construct relationships with
the agencies that you were dealing with at the same time. that's the importance of having long lasting, fast, still there and going from case to case and being credible as a long-standing group, as information comes in, there is some attachment to the agencies that are being overseen. and before those kinds of relationships develop, it resulted in calls back and forth trying to avoid being a particular situation suddenly showing up in the "new york times," the post, or anything like that. and working through the kind of
problems that agencies do have in order to fulfill their objectives and the objectives of the president, as opposed to the sense that congress has in putting this power out there that process usually went from one level of pressure to another. never starting out with a subpoena. the subpoena was, through avalon project time that was there, it was a big event. and a subpoena, a scheduling a subpoena confluence -- conference to go for one triggered reactions, triggered some negotiation necessary. and if the subpoena was issued, that was a big deal. this is no longer there. subpoenas are more committees and the 114th congress,
chairman has the authority to issue subpoenas on their own. that was never there before. it results in trigger happy kind of actions. and going forward without having the full, you know, facts before them. organizations, you know, brings that forward, you know, and is part of the public panoply giving information to make that kind of oversight process really work, helping with whistleblowers, providing, you know, accurate information that necessary for going from one stage to the next. and i think that's important.
i tried to teach the people who were calling me, read this, here is, you know, it's been done before and this is why it was done before. and where you can go. we don't have that institutional memory anymore. in the committees or even in some of the support organizations that are there like crs and gao, which have been cut by the appropriations process and can't keep the steady people there. we've lost a kind of sense of how oversight should be conducted, in a way that is supportive both back and forth. >> another question from the audience. microphone.
>> thank you. thank you very much. i work for the department of labor. i am an economist by trade, not a lawyer, and just listening to the conversation. it seems to be like the executive branch, ma federal agencies are being asked to do more and more with less and less. i don't know how much of this is a function of the elections where when programs are coming online but where are the resources to fund these programs? particularly in terms of human resources, things that civil servants are being asked to do a lot handling hundreds of millions of dollars of projects et cetera. i note in the key to getting this stuff well managed, it's hard to look at congress and oversight as something positive instead of seeing it something that is distracting me from what i really need to do. i was also very pleased in the last session to the resources from professor white may be a problem affecting congress also admitted a lot of these things,
talking about institutional memory. an army of unpaid staff, any member i think would say that is a step that is the backbone of this institution runs. so there seems to be resources lacking as well to keep people to maybe do more meaningful oversight over a long-term. my question is how much is resource at the end of the baby something as simple as that causing this, lack of human resources have been a big problem and causes people to fight. and if so, how are you having these discussions to try to increase salaries, to try to hire more people, to maybe even promised list to the american people of what government will do the computer better place we could have programs that are effective, have the proper oversight and bring this together in a way that is less, seems more on the legal side,
subpoenas and things. and is hoping to never experience. [laughter] thank you spirit steed, send him a subpoena. [laughter] >> i'll be real quick. you are racing big questions about the overall funding for congress and for the agencies. those are really big issues, and beyond the scope of this conference i suggest. i would just say resources are an issue, and when there are investigations that are very broad ranging and with lots of document requests, and it appears to be clear from administration perspective that this is really partisan driven and not seriously driven to improve government and get a better result. it adds to the resentment and it makes the accommodation process more difficult. and i think probably the longest the process and makes it
difficult to have the professionals like you would have in a more situation where the tough negotiation, just get to the bottom line more quickly. i think it's an exacerbating issue. i do not think, you know, the reality is administrations find the resources they need to get these things done. but when there's not a lot of respect on either side of the aisle, not of the aisle, the administration, the avenue, then the resources issue exacerbates the problem. >> i think i agree it probably contributes to i don't really know. i don't have any empirical data. i suspect you're right that our resource issues on either side of this. i doubt if there were adequate resources on both ends of the and everybody was happy with resources, i don't think the problem goes away. i think it's a more calm at the moment police i think it's more
else optically driven conflict between the branches. >> the concerns about congressional staffing levels, and specifically having adequate staff to do oversight was one of the main driving factors of the 1947 congressional reorganization act which did increase the staff resources. but one of the more robust public polling find is that people across both parties and their members of congress have too many staffers and they think members of congress have like an order of magnitude, more step in to be. people think there's just this giant army of congressional staff. everybody in the room knows that's not true. and they want to see that. at least since the '80s it's been hard to push for more congressional staff because of the sort of two intertwined misconceptions. >> there was a third less staff at least over the last two
decades. it's tripled actually. don't stay in the, you know, the pay has been cut and that's important, incentive, you know, for having the institutional memory that allows for more effective oversight and comfortable this between the branches, and on the hill itself. >> we have time for one more question. yes, brandon. >> brandon sawyer from wayne state moscow. i do question. we talked a lot about committees and subpoena power. if you have any insight into the role of individual members who are not chairman of the committee. how can the axis vice oversight?
one of the things was innocent, these holds on nominees to get information wholly unrelated to that individuals, the merits of their nomination, if you think that's in the seemingly categories or is it sort of going nuclear category? >> all, it's not going nuclear. it's just conventional warfare. [laughter] and it's very effective. having been held up twice for many months and both times i was confirmed. don't tell anybody how effective it is, please. >> rand paul has figured this out will effectively. he did it with baron david, the first circuit, with dci, he's done it with a lot of people and his gun in the case of a lot of what he wanted out of the administration. i think -- i should qualify. i mean it's great as a sort of white of members to get what
they want to i don't agree with his goals in those particular cases, but i think it's what i started talking out. congress has all these different lovers, house has levers that control the individual members have levers that control. another thing they can do by the way, mort brought up, leaking state secrets is one way have influenced him really helpful wave actually. so, for example, -- [inaudible] >> so, for example, senator gravelle leaked the pentagon papers to the press in the '80s. of all kinds of, in the '70s, a lot of what led to the creation of the church committee was leaked that had come out of congress. in the '80s leads about cia activities can begin out of congress in ways that been tremendously helpful. as long as its members doing it on for which many cases it has
been an become solace in the early '90s in the run up to the iraq war, the first iraq war, that is one of the constitutional tools they can use. >> yes, you understand the executive branch is argued with respect to the production everything that might be since it is we can't give it to you because you believed it. >> that's the argument no matter what. whether they leaked it or not that's the argument if you look at who is leaking the most harmful stuff recently, it's all executive branch. military, edward snowden was an essay. this is, that's the art but that's the art of their goodies but they will use that argument whether it's true or not. >> nextstep, we have the vice president of the constitution project with a few remarks, but before we get to scott about you, please join me in thanking this really distinguished panel. thank you all. [applause]