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tv   Public Affairs Events  CSPAN  November 1, 2016 4:07pm-6:08pm EDT

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congress get to review how the department responded to the oversight. what we in the department sometimes call memos on memos. and there, you can get right to the heart of the ability of the executive branch to function. and so in a rough way, and steve will quibble here and there, but in a rough way, i think the dispute was, should the department -- should any executive branch agency have the ability to say let us talk within ourselves as to how we're going to respond to the yoef sight. ultimately after judge jackson's decisions, the department released a lot of tefrl that showed that the department was responding in good faith, trying to get to the bottom of the situation that officials in washington didn't fully understand, and respecting the prerogative of congress to ask questions that would further a legislative purpose. >> one thing -- >> we'll go to andy and you can give us the profess or yal view
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of the case. >> halfway through 2011, the head of atf, ken nelson, came in to speak with us without his justice department handlers and told us that the justice department was trying to keep information from congress, that the justice department was trying to push away evidence from their political officials. so that's a very relevant piece that happened in july of 2011. our investigation, you know, in part, was looking at what happened over those ten months. >> andy, did you want to give us a larger view of the -- what the significance of these cases are, especially the holder case? >> first of all, as a disclosure here, i was one of president obama's lawyers during all of this. certainly the white house component, several of them got letters from the committee during that period. the office of national drug
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control policy, the national security council staff. we had a lawyer in the office who had been a senior justice department official who also was interviewed by the committee. and the president asserted executive privilege. i had work to do on this matter so i don't want to pretend that i'm totally detached here, because i was definitely part of those various roles that have been out in the public domain. so, you know, but i will say this. first of all, i worked with steve on the democratic side in the white house, and my time in the executive branch in two white houses, the clinton white house and the obama white house, the two branches see this from totally different perspectives about how the constitution works. and so that's one thing i want to present to you for -- as food for thought. congress very much sees this as a legal process like a court. and uses all the language,
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hearings, subpoenas, you know, all of the sort of indicia of court proceedings. contempt. these are all the things we know in law. i think there's validity in that, and it comes from sort of the history of the legislative and judicial functions separated in parliament back before we were even founded. but the executive branch sees it very much from a perspective, like accommodation, where these are co-equal wranchs of government, recognizing congress's legitimate need for information, but recognizing the executive branch has confidentiality interests that need to be honored as well. and each interaction with congress is going to be some sort of negotiated result as to how can congress get what it needs without damaging the essential functions as the executive branch sees them. there's a cynical side to this. you know, congress can help upend the status quo of the executive documents by
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suggesting they are entitled to them as a legal process like you would see in a court. that's certainly within the self-interest of congress to do so. it's certainly within the self-interest of the executive branch to protect the status quo that not giving the documents over the no, n-o, by suggesting it's about someone who has leverage in the situation. i also think there's genuinely held views in the two branches going back across administration of different parties about how the constitution structure works. it is a genuinely held belief by people at the department of justice and other departments in the executive branch that that is a much more negotiated result than a legal process that is supposed to be fixed as an entitlement. that's one point i throw out as food for thought to the crowd. in terms of the particular cases, the meyers case, when it
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came out with the house judiciary committee, bringing that suit, resulted in a rejection of the executive branch, the bush white house, and of a blanket immunity from the white house counsel coming to the hill to testify. basically the ruling held that there's going to have to be a question-by question assertion of privilege before the committee. you can't say this is a senior adviser close to the president that can't come up with a subpoena. one of the principles that comes out of lynch and holder is the idea that we're not going to have this at a categorical level. what the executive branch tried mightily to resist is the idea of having to go to a document-by-document level. mostly because of burton. if you're asking for every document generated after
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february 4th getting clip services every day with stories about fast and furious, it's a large volume, and you're going to go through and do a document-by-document privilege log is a daunting thing. that's one lesson that comes out of both of those cases. this is going to be fought at the document level when you get into courts. and you can't say this category of documents should be off-limits. i think that's a big win for congress in coming out of, at least where the law stands now, depending on what the d.c. circuit does. another point we've mentioned is this principle that deliberative process complies to requests. this is one of these things where there have been two totally separate legal dock trips, one internal to congress and one in the executive branch that are like living on mars and
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venus basically. congress has taken a position forever that common-law grounded privileges do not apply to the deliberative process privilege. outside of the narrow presidential communications of the executive privilege recognized as having a constitution al basis in nixon. the executive branches always b believed executive privileges a bundle of ideas which include various things including state secrets, including deliberative processes, including presidential communications privilege, including pending adjudications, including open criminal files, et cetera. all is part of the executive privilege. all would have -- sort of characterizing legitimate essential functions of the executive branch that need some sort of protection legally. and so what's happened is the election to go to district court has brought the third branch of
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government into this in a different way. so the two branches, aren't able to have their own echo chaks changes anymore. you live by the sword and die by the sword. we're going to get rulings now that may or may not fix some of these rules, and alter some of the leveraged dynamics between the branches when they're trying to hammer out these disputes. >> is the holder case the first time a court has recognized, say, intra-agency documents as subject to deliberative process privilege? >> it is my recollection that judge jackson felt that in the sealed case espy had done that. and that she was following that precedent. that was a case that has been disputed by both branches as to its meaning. her reading seemed to adopt a more executive branch gloss on that case.
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>> so it's the strongest case we've ever had essentially on -- >> yes. >> -- recognizing a deliberative process privilege, within an agency? >> yes. >> documents within an agency. >> so the last point i'll make is, i love congressional oversight. i worked on the walter reed investigation, and payments to the taliban on our supply chain in afghanistan. and i think it's such an important tool for sort of checking the executive branch, and for helping congress learn things, to be able to legislate wisely. but i would just say that i actually think the biggest impediment to congressional oversight aren't these disputes, these very narrow crystallized disputes that have to get resolved one way or the other. but it's more about will and resources for the committees, and, you know, there are a lot of committees that are just not doing a lot of oversight. the oversight committee is an
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exception as the psi. they have long histories of doing penetrating oversight. but some other committees, i mean, i can't remember the last time the house judiciary committee or for foreign affairs committee had the infrastructure to do the penetrating oversight we need. from my perspective, while i do sort of maintain some of these executive branch views about the legitimacy of some of these confidentiality interests, i would hike to see much more robust congressional oversight as a function of congress putting its resources toward that goal that will make more meaningful efforts for jurisdictions to do more work. >> why don't you think other committees aren't doing more robust -- maybe you can answer that, too -- do you feel it's diminished over the last 20 years or so, 10 years? >> i would disagree. i think in the last five years you've seen an uptick with numerous congressional committees, the house ways and
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means commits tee, judiciary committee in the house. especially under senator grassley's leadership. >> it has been true for a while. >> it's doing more rigorous oversight. the leadership in the house has placed a yat emphasis on oversight. in 2011, speaker boehner instructed every committee in the house, all 20-some-odd committees to have an oversight function. and whether it's one staffer, or, you know, little staffs of three and five, the oversight has been there in the house since 2011. >> if i may, i'll take a position between steve and andy. i think there has been a lot of oversight in the sense of a lot of letters are sent from committees to executive branch agencies. but really focused oversight,
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effective oversight requires a lot of time, resources and patience. i think of senator levin working on the issue of oversight of the banking regulators. and he worked on that with a series of ranking members. senator collins, senator coburn and others, for many years, to achie achieve results over time. and congressman davis of virginia. of course, the standing oversight committees of the house oversight government reform committee and the senate government affairs. and it takes time. it takes patience. and i don't think a lot of committees are devoting resources to that kind of long game. but you see a lot of letters. and frankly, that's not so effective. some of it is just kind of
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burdensome and done for a quick press hit. that's not the most effective and meaningful kind of oversight. >> one thing, too, in defense of the committees i just maligned, they do have an authorization cycle that's more robust than the oversight committee which has a much smaller jurisdiction. there are incentives for the agencies to cooperate with those committees in ways that might not be present, that might require more, sort of like penetrating subpoena based oversight from the oversight committee to -- the department of defense is working with the armed services committee and their budget and their authorities are all on the line. they're more likely to play ball oftentimes. so that's true. but i do think there's still a lack of infrastructure for the sort of investigative long game stuff that ron's talking about that i would like to see congress put some resources into. >> it may not have made news, but i think in this congress, it has changed five or six house committees now have deposition
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authority. and they've been using it. the house committee on science, ways and means, energy and commerce, and deposition authority really goes a long way to getting the facts. it's hard to get to the heart of the matter quickly just by requesting documents. and just by relying on the executive branch to cooperate. that doesn't happen as much as it should. so with deposition authority, a number of these house committees, and again, it may not have made a lot of national news, but there is a lot of very hard hitting going on in the house currently. >> those witnesses are often called by subpoena or do they come voluntarily? you can only depose somebody if they come through the door. >> having the authority to issue a subpoena for a deposition is very helpful to getting
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voluntary cooperation. >> we found that. >> you know, if -- if you're invited in to participate, in some q&a about an oversight matter, if a subpoena authority exists, the witnesses are a lot more interested in cooperating. >> can i make one point. senator levin raised the issue of bipartisanship. i would like to reiterate and reinforce that point. because the credibility of these investigations really is a function largely of the ability to get both parties together to move things forward. that's not always going to be possible. but if you're representing a client as a private lawyer and they get a letter from a congressional committee, if it's signed by the ranking member and the chair, that is a completely more credible threat to your client. because you can recognize you're not going to have half of the team up there, maybe depending on this issue, sort of playing defense to a prosecutor. you're going to be on your own
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against congress. and so just the authority itself of congress is more robust, when that letter has both parties working together, maybe to check in executive excess, maybe to deal with something in the private sector. i think that's something we need to strive to achieve more often than in the present. >> we saw that in the wells fargo situation, in bringing the wells fargo ceo to task for what happened there. >> it happens a lot more than you think. chaffetz works with ranking member cummings. a lot of it isn't making the front page of the "washington post" website. so i do think it's happening a lot more than people give the house and senate credit for. the cases like fast and furious and benghazi, you know, do
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occupy a lot of headlines. but a lot of the good oversight is happening at a bipartisan level. >> i agree with that. but benghazi, i'll pick up on that. that sort of politicized oversight gives oversight a bad name, when the public sees something that just isn't on the level. there we knew it, because the house majority leader, kevin mccarthy, suggested in a sense that the committee was created to damage secretary clinton's poll numbers as she prepared to run for president. he's not speaker today in part because he was candid about what was going on with the benghazi committee. there are other examples of partisan, as opposed to the bipartisan yoef sight that steve and andy are talking about. the partisan politicized oversight that really disgusts the public, i think. it's just gamesmanship. it is kind of burdensome to the executive branch to deal with it. it's unproductive. and we'd like to see congress
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get back to the tradition of bipartisan oversight that is going to benefit the people. >> but ron, one of the best defenses, if you have done something wrong, if you were an executive pranch official, one of the best strategic things you can do is turn it into a partisan food fight. if you turn it into a partisan food fight, the democrats are on one side, the republicans are on another, and very often the partisanship is caused by the defense. and so that is a very, you know, a very real consideration. >> sometimes you walk into the cafeteria and there's a food fight going on already. we didn't have to start the food fight. >> there was a survey, and several staffers said the number one purpose of oversight is political. do you have a reaction to that? i mean, that to me is to find the facts and do fact-based
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public policy, find good answers based on solid fact-finding. i was shocked that there's an attitude out there that the real purpose of oversight is political. do you have any observation on that? >> i might tweet sad, exclamation point. >> the hash tag would be sad, okay. >> if i could say, it's an old 80/20 rule. 80% of the work is happening at a bipartisan level. 80% of the work is getting results, 80% of the work is a productive mutually beneficial process. >> do you agree the courts may be responding to the bipartisan types of investigations, and therefore, benefiting more the executive branch out of concern of the merits of the equities
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involved? because they get covered -- affected by the benghazi type hearings? >> the smaufs is changing. and i think if you're going to go into the courts for this, and traditionally courts, if you look at the sort of, you know, red scare era cases about congressional oversight, et cetera, you know, when there were a lot of criticisms of congressional overreach, the courts were -- they found a few sort of ways off the ledge with particularity in dock tins to relieve defendants of liability. 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're not really listening to much else. and i think if we're going to actually litigate against the executive branch like this, which is really different from private parties, in terms of these fights to a degree, then you're going to get into the
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balancing between a congressional need and a confidentiality interest in the executive branch. someone's going to have to sort that out. and it's kind of a political thing to ask the court to do, to say, how serious is congress' need in this situation, and how legitimate is this executive branch confidentiality. so it's very uncomfortable territory. i think if we keep presenting them with that dichotomy for judicial resolution, they'll have to get into the game of doing that. i think the atmosphere will bleed into that kind of analysis, i guess. >> it also takes time to go to court. that's another factor is that, to enforce a subpoena, this is the way we go now with the declaratory judgment in court. it holds up a congressional investigation significantly. it was two years, wasn't it, in fast and furious? >> longer than that. >> longer than that? and so there's the factor of
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time. and the effect it has on the quality of the oversight. especially if you, one, have to push the subpoena, then you have to go to court, and then the court says, document by document review. that is a long time. >> it's much better if it's done through negotiation. and that's been the tradition. and so the executive branch tries to accommodate requests where it can't provide a document, sometimes it will provide a briefing about a matter. if it doesn't -- if it's not able to provide a line attorney or a line law enforcement agent, it providers superiors who aren't particularly accountable. lately they haven't worked so well. >> did you provide a briefing in fast and furious? >> sure. >> on the february 4th letter? >> many briefings of different kinds. >> were they true? [ laughter ] >> oh, steve, steve, steve. steve has to move on. i have.
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we did our best. you know, i do think the documents reflect that. they were documents that eventually came out that showed high ranking justice department officials saying, what's going on here? why don't we have all the facts? let's gather the facts. let's make sure we're 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's come out that suggests that the department was engaged in some kind of nefarious cover-up. people were doing their best under difficult realtime circumstances. >> this idea of not all deliberative processes are equal. i don't think a ruling that the deliberative process is going to be every time two officials are talking about an official there's a denial. i think the other sort of political realities and leverages and dynamics of
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committee relations with the executive branch are going to be there, and push for a lot more disclosure. i did have concerns about the post-february 4th documents, as the meta investigation getting into the sort of -- what i would call the separation, in separation of powers. the ability of the executive branch to formulate responses to congress, getting hampered. back to the battle days, in my house, i actually have 13 binders full of subpoenas from the clinton administration. because of a rule i had as transition counsel. a high number of that 1,000 were from dan burton, a predecessor on our old committee. some of those subpoenas would literally be like, hit the white house and say, tell us everything you said today. give us all the e-mails from today. the next day you would get another one. it was really designed to try and actually degrade the ability of the white house and executive branch agencies during that
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period. and chairman issa and chairman chaffetz have not come close to that behavior ever. it was really trying to get at degrading the executive branch ability to respond to the requests themselves. this is a much milder version of that. but i had a concern about that kind 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. it seems to me there's more of a situation growing where individual chairman have the power to issue subpoenas on their own authority as opposed to seeking or requiring majority committee rule. is that a factor in those kinds of subpoenas, where a member -- i mean, that was the mccarthy situation where he had -- we had it in psi, and i loved sole subpoenas. i would hate to give it up. but it was limited to psi, and
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maybe government oversight in the house. there are only two committees that -- where the chair had sole subpoena authority. if it's expanded, you get into a situation where more and more members can just issue subpoenas willy-nilly. >> i bet steve's had a similar experience that i've had, and maybe ron has, too, but it wasn't just that the chair sent a subpoena, it might have been my first letter that becomes the subpoena. right? if i sit down and i read something as a staffer for a member, you know, a chair, i write a document request letter with the preamble, i send it out, give it to the chair, the chair revises it, gives the elected officials, and send it out in a request. and we encounter resistance. chances are the subpoena is going to be a function of backing up the letter the very first day i read an article about it. the subpoena letter, two years later in defense to a criminal charge of contempt or
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declaratory action, is the same language i sat that i first read an article about an issue that might be going on in the "washington post" or something. it gets baked into the cake so early, we don't have a function that sort of stops and has a real sort of evaluation of that language. so i've probably 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? >> the document request and subpoenas do start at the beginning of an investigation. but throughout any investigation, you're always identifying priorities. if there is a subpoena involved, you don't take documents off the table. you don't narrow the subpoena. but you do flag priorities. and if your interests hone in on fact patterns, if you identify those priorities, usually the overwhelming majority of the time, you get the documents that you need to do the oversight work.
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>> what do you think the court of appeals is going to decide in the holder-lynch case? anybody have conjecture on that? >> it's above my pay grade. >> i think the brief filed by the house is interesting. it's worth reading. >> i agree. >> i haven't seep the other side. and so the court will look at both. for good background reading i should also give andy a plug. he wrote an article in the law review that i read in preparation for this panel. and i usual those who are interested to find that article. who knows, i think it's pretty clear there's now a forum for -- judicial forum for resolving these disputes. i think the notion that an executive branch agency needs some space under the heading of deliberative process to consider how to respond to oversight, and
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how to do the work of the agency. it has a lot of force. so i'm hopeful that the circuit court would uphold that aspect of judge jackson's ruling. >> under judge jackson's ruling, does the president has to institute the deliberative process -- >> under the president -- under presidential executive order, as a process matter, the president is the only person who holds executive privilege. one of the reasons -- >> so deliberative process -- >> would be a component. >> so the president has to be the one to -- >> right. that act itself i think is a limiting function. getting something in front of the president for signature, you know, you can't help but feel failure if you're a lawyer for a president and he has to assert executive privilege. like something went wrong. because you don't want to have to waste his time on that, a dispute. so that's going to have a
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limiting effect. it's certainly the president's alone. some of you who work in congress might have seen letters that say, this raises significant confidentiality concerns. long-standing confidentiality concerns. that language is the executive branch signaling to congress that they think this might be worthy of executive privilege. but also a recognition of the fact that whoever sent that letter, if it isn't the president, they can't say the words executive privilege. so they're trying to reserve unto the president and his or her political judgment and legal judgment whether and when to assert executive privilege. >> that's an interesting dynamic, because it does involve an indication by the president. the white house staff is uncomfortable, reluctant. it sounds nixonian to invoke executive privilege. the white house will say to the agency, can't you work this out,
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can't you give them more. the sort of dynamic going on in matters i was involved in. you try, but ultimately you come back and say, they're being reasonable, we can't go to that last set of documents. so the president needs to back us up here. and executive privilege is then invoked. >> i wanted to bring up another case called the burwell case. have you been following that? and in that situation, the executive branch is balking at turning over documents related to the affordable care act. and in refusing to provide the documents which go to whether or not congress -- the executive branch could spend $2.7 billion without an appropriation, the executive -- the obama administration has said, no, we're not going to give you anything on this, because it's -- and the congress says why, what's your excuse, and they say, confidential privileges.
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what the heck are confidential privileges? this is a new term. to me, it's like a drum beat from meyers to holder, and now you've got this burr rel case where the executive branch is expanding its view of privilege to the confidential privileges. they don't even name deliberative process and executive privilege. apparently congress can't get an explanation of what confidential privileges are. >> obviously that's not going to be a line that can be held if congress moves to -- or even beyond -- even into a contempt phase. my understanding is that it's sort of an unremedied dispute that's now being discussed in the context of the standing litigation, and the lit gags over the substance of the appropriations issues in burwell. 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,
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the confidential privilege is a new line of privilege. i think for us to get clarity on that, congress is going to have to move through its own other resources to enforce its oversight prerogatives to get to the bottom of what that is, rather than have it sort of be like a procedural fact in this other substantive litigation. i think they'll be able to blow past confidential privileges if the committees move forward with contempt threats. >> i like that answer. because it makes me feel better about expanding this privilege. i want to take time to allow for questions from the audience. we have about ten minutes left. i'll go with you first. and then i'll take you in the red shirt. okay? oh, yeah, we're on c-span, so we do need for you to use the microphone so that the question can be heard by the audience. he's right here in this -- do you want to raise your hand so we can bring the mic to you? thank you.
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>> thank you very much. i had a question for dean weich. i worked with steve on fast and furious. one of the things you talked about, when you have an open investigation in the justice department, you don't want to be mucking around. the justice department itself was at the heart of the investigation. in other words, it wasn't like congress and the justice department were both looking at mexican drug cartels. the congress was looking at, number one, the justice department's involvement in approving this whole operation. through the search warrant process, and other ways. misconduct, if you will, was in the operation itself. and number two, the obstruction element that involved the justice department after the february 4th letter. so wouldn't you say that those two factors mill tate against a position you said by making this case quite unusual vis-a-vis the
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normal process? just if i may, one more thing. you also said in the benghazi committee it was all political. the benghazi committee unearthed the secret server. so the benghazi committee did have sort of a public interest function. hillary clinton's public server. that came from the benghazi committee ultimately. so i would just suggest that it's not just political, in spite of the reference. there was also a purpose to investigating what happened there. >> as to 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 ambassador, and personnel in libya. without a lot of -- a lot to show of misconduct by the state
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department. in fast and furious, in the first part of your question, you talk about the role of main justice officials in approving a law enforcement operation. i don't think there was an evident to stop oversight, or limit oversight in that regard. because that's -- you know, that's a fair question if you believe the operation was flawed. how is it approved. when you talk about post-february 4th material, we're long past approval of search warrants, we're 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 pre-february 4th, and 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
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considering how to respond to the oversight, and that just became -- you know, it's never ending. you could have oversight on the oversight on the oversight. so i stand my ground there, that i think at some point it became illegitimate. >> my main focus was the separation of powers issue about the space in the post-february 4th. there were other law enforcement equities involved in this dispute related to, if i remember correctly, wiretaps and open files that related to the murder investigation of brian terry, who was killed -- who was a border patrol agent, as you all know, and he was killed with one of the guns that had walked, quote unquote, from this investigation. so there were a couple of things that the justice department still had an ongoing law enforcement activities related to open files, related to the perpetrators of one of the murders that was related to the investigation. that was also a sensitivity. it was not as highly politically charged. >> the gentleman in the red shirt here?
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could you identify yourself? >> i'm mike stern. i guess my most relevant experience is i used to be the house counsel's office back prior to fast and furious. i'd like to pick up on the suggestion that we heard toward the end about the president's role in invoking executive privilege. i would like to suggest that perhaps the dividing line between the disputes that should go to court and the ones that should stay in the more political process, if you like, ought to be that invocation. and the reason that i say that is, once the president personally invokes executive privilege, and as a factual question i would like to ask whether in the fast and furious case, the president actually personally signed anything. because my recollection is, the attorney general wrote a letter
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to the president asking him to explain why executive privilege should be invoked, and then the attorney general later wrote a letter to congress saying the president has authorized me to invoke executive privilege. but the president never had -- i'm sure the 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. but it seems 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 adjudicate it. and it's going to put the courts in a position of trying to balance the interests of one branch against the other. and from congress' point of view, which is the point of view i tend to take, the judges are all appointed by the president, many are appointed by the current president, if they weren't appointed by the current president they tend to be sympathetic to the executive branch way of looking at things.
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as professor wright said, the difference between the purely legal versus the negotiations 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 and personal fashion, so that it doesn't -- you can't just keep dragging on. but if he chooses not to invoke executive privilege, then you have just a pure legal dispute that's basically a technical issue that the documents being requested, or responsive to the subpoena, maybe the jurisdiction of the committee, but you don't have any of these broader constitutional issues, or interests balancing involved. those issues tend to go to court. if the president chooses to accept a political cost of personally invoking the privilege, then you go to the other remedies that congress has, such as, you know, the appropriations power, or whatever. or, you know, up to
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impeachment -- >> do you have a question? >> the reaction to that suggestion. >> you want to hear from me? you know, i'm a little bit nervous about the idea of routinely going to court for enforcement of subpoenas at the more garden 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, is actually negotiated results where there's some sort of information that the committee may revise its request, or honor some sort of request, or honor a redaction or something else that the administration feels strongly about. and it gets there. i would hate to see it every time someone's at sort of first blush saying, i'm concerned about this, all of a sudden there's a crystallized dispute and they're going to court. i think having the president get
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involved is an important limiting function. i think that's going to be the big limiting factor on the deliberative process thing. if you're at hhs, you'll 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. so i really think that's an important part of this. 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, and got the democratic legitimacy. >> over here? by the way, is executive privilege constitutionally based and deliberative process common law based? and if it is, then why is it a subset of executive privilege? we can hold that.
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but isn't that an important legal question? yeah? >> danielle bryant with pogo. i want to push back and ask on the question of asserting that g that agencies should preserve this right to have this conversation. you're suggesting the reason you're comfortable with that at doj on the fast and furious is because you see on the inside that people are well meaning and that's your lens. but let's assume that's not true. let's to me there are bad actors, there is a coverup. how do you preserve the right of the congress to find that given the sort of stance you're taking? >> sometimes it will come out through whistle blowers. the initial overside into the all of operation of fast and furious was largely because of whistle blowers at alcohol, tobacco and firearms. congress can call hearings and
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ask officials to describe their thinking and they can answer for themselves. but trying to get at the documents that are literally deliberative seems to me dangerous. there are occasions that will have to occur. but i think as a routine matter, congress should avoid that. and again, it's because the shoe will be on the other foot. there will be people who are right now initiating oversight exhibits w requests who are sitting in agencies that respond to oversight requests. we have principals across the board. >> we have time for one more question, then we have to break for ten minutes. >> i'm richard golden, this is for professor wright. this is an absolute duty on the part of an attorney to preserve a client's confidences. faced with the congressional subpoena, how far must the attorney go to discharge his
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duty? must he be willing to go to jail? >> i would say under the right circumstances, yes, the attorneys should be willing to go to jail. i know that the dc bar has an opinion that i don't have at my fingerprints, all of its contours right now, to grapple with this issue, because there have been some situations in which congress was seeking very clearly attorney/client privileged material under normal sort of common law roots. and, you know, congress has taken the position that they've got to comply with the ruling of the chair. if the chair is the one who authorized the subpoena, the chances you getting a super favorable ruling on your objection are minimal. i think my ultimate answer to your question is, is you are really taking that responsibility seriously, you might have to walk the plank for
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your client. that's obviously a very personal decision. >> on that note. [ laughter ] >> we'll adjourn for recess, i should say, for ten minutes. you can go down, there's coffee and refreshments, again, on the ninth floor. the pew center asks that you not use your cellphones on the tenth floor. you can use them on the ninth floor. we'll reconvene in ten or 15 minutes and talk about how we go forward from what we know about where we are. thank you so much. [ applause ] [ room noise ]
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hi, everybody. i'm jocelyn benson. i'm the former dean of wayne state law school and now levin wayne law. we have some of our students here today. i'm pleased to be the moderator of this important panel that's going to talk about the ways to reform and improve the current system and will include an historical analysis of how we got to where we are, provided by our great panelists, beginning
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with josh chafetz, a professor of law at cornell law school. his research focusing on constitutional law, british and american constitutional development, legislation and legislative procedure. his second book, entitled "congress's constitution," will be published by yale university press next spring. he's also published widely in scholarly journals and popular press. he holds a law degree from yale and doctorate and political science from oxford. after josh we'll hear from david hayes, who is currently a distinguished visiting lecturer at stanford and consulting professor at stanforstanford's institute. prior to that he served as deputy secretary of the office of the interior in the colin of
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any clinton and obama administrations. he's chairman of the board of the environmental law institute, and the vice chair of the board of american rivers. he also formerly second as the seni served and received his jd from stanford university. after david we'll hear from -- we've moved around a little bit. actually before we hear from david, we'll hear from kerry kircher who retired recently as general counsel to the united states house of representatives where he served for more than 20 years in that office. he is known for his insistence in the office of general counsel operating on strictly a nonpartisan basis and over the course of his career with that office, he participated in a significant number of high profile cases that concerned the relations of and lines of separations between article i and article ii branches of the
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federal government and in particular he was the lead counsel in the holder litigation and worked extensively on the meyers bolton case. he graduated from stanford university and the university of michigan law school and also holds an llm from the university of london. finally we'll hear from mortgage ros rosenberg, who is a specialist in american public law with the congressional research service from 1972 to 2008. he specialized in administrative law and pro, congressional practice and procedure, labor law, and the problems raise income the interface in congress and the executive. he is the author on a number of articles on separation of powers and administrative law issues. he's undertaken a variety of consulting projects including engagement by the constitution
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project to research and write a monograph on the congressional investigative oversight entitled "when congress comes calling," which was published in 2009. students in my class are familiar with mr. rosenberg because we've assigned his book as reading in the class. with that, i would like to start with josh. each panelist is going to provide about five to ten minutes overview of their perspective on this issue of the current system, whether it's working and whether it needs reform. after that, we're going to open it up for questions and an interactive discussion. josh? >> thank you so much, jocelyn. thank you to the organizers. thanks to all of you for showing up. so in the previous panel, andy wright said something that was very interesting, he said sort of the white house and congress come at these disputes over access to information as if they were on two different planets,
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mars and venus. i think maybe the way to -- i want to frame the question for this panel is something like, how do -- what do we do when the mars-based community and the venus-based community can come to agreement over which perspective to adopt in any particular circumstance, what do we do in that particular situation. as you may have noticed, i'm the only one speaking today without significant government service. perhaps the way i can best sort of provide a handle on that is to try to give some kind of historical overview or historical background to the issues we're discussing today. we've talked about the fast and furious investigation, about benghazi. i want to talk about one of the gripping, intensely divisive partisan controversies, the controversy of the second bank of the united states. for those of you who remember your american history or for
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that matter your first year of law school, you'll remember the second bank of the united states, which gives rise to mccullough versus maryland. andrew jackson vetoes the renewal of the charter but even before that takes effect, he removes all of the federal funds from the bank of the united states, effectively bankrupting it. this makes a lot of people in the senate not terribly happy. in 1834, in response, they pass a resolution of disapproval. jackson, a famously irascible essentially says, mind your own business, the only way the senate can interfere with my constitutional prerogatives with through the power of impeachment. impeach me or shut up, is what
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he essentially says. for people who know the history of contempt power, breach of privilege and contempt are basically the same thing. contempt in parliamentary history dealt with more general contempt of parliament where is breach of privilege is what they use when they could identify a specific privilege that some outsider had breached. but they were effectively the same thing, enforced in the same ways. the fact that the senate calls upon this language of breach of privilege in response to jackson is very much meant to heighten the controversy, is meant to make this much more salient and much more powerful. jackson responds with some more ill-tempered messages. one question you might be sort of wondering at this point is, how does the senate enforce its finding of breach of privilege in that case? there are a couple of ways. one is in some sense the breach
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findings itself was its own enforcement, right? at this point jackson and the senate are locked in a significant battle for what we would today call the hearts and minds of the public. there are a number of what were then called anti-jacksonians, what we would now call the whigs. the calling of this long tradition in this mechanism is meant to be one mechanism of doing that. the other way they enforce it is through their use of what i in my forthcoming book call the personnel power. they start refusing to confirm jackson's nominees. this plays out in the case of roger brook tawny, who was attorney general and acting secretary of the treasury. he had been the one responsible for withdrawing the funds from
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the bank of the united states. jackson a month after the senate finds him in breach of privilege, jackson nominates tawny as secretary of the treasury. the next day the senate votes him down. so, you know, no garland-like delay, none of that, just next day, done. first senate nomination in american history to be voted down. jackson, again, not always interested in making nice, then a few months later nominates tawny as associate justice of the supreme court. this actually does lead to a garland-like situation, the senate refuses to vote on him. it's not for another year after that and the death of john marshall when jackson against nominates tawny this time as chief justice. at this point public politics have changed a little bit. the jacksonian forces are ascend ant against the the whigs and tawny is confirmed with results that many of us think are
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perhaps less than ideal. something similar happens a decade later in the house, when the house of representatives holds john tyler in breach of privilege for protesting against a house resolution that criticized him as well. john tyler was the first vice president to assume the presidency upon the death of his predecessor when william harrison dies. tyler is hated by his own party, he's expelled from his party five months after becoming president in a sort of shocking example of a political falling out. and once again, the way that congress chooses to express its displeasure, the way that it chooses to enforce, if you will, the breach of privilege finding but also other political disagreements with tyler is through pulling on other mechanisms that it has. tyler actually to this day has the worst record in american history as far as getting his
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nominees confirmed. he nominated i think a total of nine supreme court justices of whom one was confirmed. he had not quite that bad but pretty close to that bad record with cabinet nominees as well. the sort of point i'm trying to make with these two examples is that there are -- it's a mistake to think about contempt or breach of privilege or these sort of related mechanisms as being either, you know, inherent, which requires imprisonment, or legal going through the courts. congress had a number of tools to use with the executive branch and it 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 been the provost marshal general of the army during the
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civil war got into a spat with an increasingly important member of the house. as a result of this sort of long spat, at the end of the day the house passes a resolution finding frye in contempt of congress. okay. so again, how does it enforce that? well, about a month after it finds frye in contempt of congress, the provost marshal general's office is no more. it kicks him out of a job by destroying the entire bureau he was in charge of. we've seen using the personnel power, refusing to confirm, tugging on the pursestrings. it's not until late in the 20th century that we see any kind of attempt by a house of congress to go to court. i would locate this not actually in the meyers case but rather in watergate. so the senate select committee on presidential campaign activities is in fact the first congressional committee that seeks judicial enforcement of a
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subpoena. and they don't get it. they were seeking to enforce the subpoena for the white house tapes. both the district court for the district of columbia and the dc circuit say, sorry, i can't have it. a lot of their reasoning centers around the fact that this would interfere with ongoing grand jury investigations. this is something we heard about on the previous panel. as if the court could not conceive of any higher interest than ongoing grand jury proceedings. this is the last point i want to make, then i'll shut up for now. only for now, professors never shut up for long. the issue isn't actually mars and venus. it's mars, venus and pluto, right? there's a third actor in all this. we can't act as if the courts are some neutral arbiter. they're not. they're political actors with interests as well. in watergate the courts take a
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judicially-centered view and say, no, you don't need the tapes, it would be duplicative because a house committee already has them, it would interfere with grand jury investigations, you can't have it. what is the effect of this? it immediately sometimie i stym senate investigation. it affects what americans think about watergate. the hero, we often tell ourselves, is the courts. we have the nixon tapes which sets in motion a certain chain of events that leads quickly to nixon's resignation. of course there was a parallel proceeding going on. the house was very close to voting out articles of impeachment at the point at which that comes down. what the courts do is essentially insert themselves as the heroes, they make themselves the heroes of watergate. it's a mistake to think that if we just shunt these things off to the court, there are all kinds of other problems that
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come with it, not least the issue of timing, how long it takes congress to get information when it goes to the courts. but there's a sort of second level problem here, which is that courts essentially step in and poach the reputational benefits that could otherwise accrue to congress if congress were to use its own mechanisms in an attempt to get this information. going to court here should be a cautionary tale. i would note this actually adds a slight complication to the story that senator levin told at the beginning. he suggested if you had bipartisan investigations, the courts would be more reticent to step in. but the house investigation in watergate was famously bipartisan, but the courts nevertheless took the opportunity to step in and poach the fame and glory for themselves. i would suggest that insofar as we care about congress's institutional power, we have to think of it vis-à-vis not only the executive but the courts as well. and i suggest we try to draw
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more inspiration from 19th century congresses than from watergate and post-watergate congresses. >> that's great context as well. that view of the courts and the court's role in the process. i want to go next to kerry to provide additional commentary and more framework for our session. kerry? >> sure. thanks very much everyone for being here. i appreciate the opportunity to speak. in light of my 20-plus years of experience with the house general counsel's office, i'm sure it will not come as a surprise to any of you that i regard vigorous congressional oversight as absolutely essentially to both the congress's at to legislate and to congress's ability to check the executive. so from that perspective, i would like to make three points that sort of pick up on josh's larger point of what do you do when mars and venus butt up
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against each other. i agree with what some of the earlier panelists said, there is a lot of oversight that goes on beneath the radar screen, it goes on smoothly. what i want to mention is what do we do when the two branches clash with each other. the point number one is that litigation, while it is an option that is available to the house and to the senate, is a very cumbersome and a very uncertain mechanism by which to enforce congressional subpoenas, and that congress should resort to litigation only when it has no other options. why do i say this? let me give you three subreasons to my first larger point. number one, the identity of the judge in a district court case will matter a great deal, and congress has no ability to select which judge it will get to hear its case. meyers and bolton and fast and furious make a case study on this point. in the meyers and bolton case,
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the judiciary committee filed suit in march of 2008. the judge in that case promptly agreed that he would consider the juri jurisprudential issues the same time. those issues with briefed in a motion for partial summary judgment on the part of the committee. on july 31st, 2008, the district court in that case issued a 93-page opinion that addressed every issue in the case is he thoroughly from top to bottom. that's less than five months from start to finish. in the fast and furious case, on the other hand, and i'm leaving aside in both these cases the amount of time that expired before the complaints were filed in the district court, but in the fast and furious case the oversight committee filed suit in august of 2012. one of the judges, one of the district courts' first decision was the merits in the
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jurisprudential issues would not be briefed up simultaneously, we would deal with jurisprudential first and then turn to the merits if that case wasn't thrown out. that resulted in briefing on the department of justice's motion to dismiss, which occurred by the end of that -- ruffle oughl the end of that year. by september 30th, 2013, we had a decision on that issue, that there was in fact, the committee had standing, it was an opinion that largely reiterated the holding on the standing issue in the meyers and bolton case. so we're now a year into the case. it took another nine months to august of 2014 to get a ruling on the cross-motions for summary judgment that then followed the standing ruling. we're now another year into the case. that ruling, as many of you who have followed the case know, punted on most of the major
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legal issues in the case. it did recognize in a way the existence of a deliberative process issue. but there are a number of other issues that were briefed up in both sides' motions, and that august 2014 order simply did not address those issues. then we went into a period of, you know, privilege logs and making decisions about -- making determinations about individual documents. and it's not for another 12 months, from roughly january of 2015 when the committee filed a motion to compel production of the remaining documents, until january of 2016, until you get essentially a final judgment, which again resolves the case, but again, it punts on a number of major legal issues that had been framed up in the course of the case. it's a difference of five months
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in meyers and bolton and 3 1/2 years in fast and furious. the second point of why litigation is not a great option, the point i just made, it can be agonizingly slow. congress does not function on a court schedule but function on a basically two-year election cycle. it's very hard to it anything done in the courts in that period of time. and the third point i would make is that because of the time it takes to litigate and because of the possibility of power changing due to intervening elections, the congress can never be certain when it initiates a case that it's actually going to be able to see that case through to completion. meyers/bolton is an example of that. it was filed in 2008, as i indicated. the district court ruled later that year. in the fall of that year, obviously, this was during the time of the bush administration, in the fall of that year we had
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an election. there was a new cast of characters in town. they had a different view on things. and very shortly thereafter, that matter was settled and -- it had been appealed prior to the election but the appeal was dismissed after the inauguration of president obama in 2009. for all those reasons, litigation is not a great first choice for the house and senate. it has a place, but it really is i think the last option for the house and senate when you don't have any other options. my second alarming poilarger po this are pick up on some of the things that josh said, is that congress needs to get back to using some of the other tools it has in its constitutional quiver when it's dealing with these ov oversight matters. it needs to get serious about
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using those tools. i'm talking about principally in the house, using the authorization process, and in the senate, the advise and consent power. if there's one thing the executive branch understands, it's money. so both the house and the senate have the ability to withhold appropriations, to threaten to withhold appropriations, to link appropriations to compliance with requests for information, compliance with subpoenas. i think that is not happening at the moment, has not happened for some time in a systematic way. i do believe that if these other constitutional powers are to be used effectively, it really falls to the leadership of both branches, of both houses of congress. i think the leadership has to step up and make clear that this is a priority, compliance with oversight requests is a priority for the house and for the
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senate. i think it has to involve itself more directly in trying to resolve these things to make clear to the executive branch that the house and the senate take these matters seriously. and lastly, i think it needs to make sure that the appropriators -- the appropriators in particular, but the appropriators and authorizers as well, make sure they understand they're on the oversight team. even though they may not be conducting oversight themselves, what they do and the functions they carry out in their committees are a key component to the house and the senate being able to get the documents that they seek. very quickly, my last large point is, given that litigation presumably 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 than it has in, for example, the fast and furious case.
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in 1997, the congress and the executive were at odds over the census bureau's plan to use statistical sampling methods to conduct the 2000 census. in anticipation of litigation over this issue, congress enacted legislation that both created a cause of action to channel the expected litigation, and it did three other things that are pertinent here. number one, that legislation required that any such action be heard by a three-judge district court. number two, it provided for direct appeal to the supreme court from any decision of that three-judge court. and number three, it provided, and i'll quote this piece from the statute, it shall be the duty of the united states district court hearing and action brought under this section and the supreme court to advance on the docket and to expedite to the greatest extent pop the disposition of any such matter. it seems to me that congress, in recognition of the fundamental
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importance of congressional oversight, to the functioning of the article i branch, might consider enacting similar legislation for congressional subpoena enforcement actions. >> thank you, kerry. from the perspective of the legislative side. and now i assume from the perspective of the executive side, david. >> thanks very much, jocelyn. it's great to be here, i really enjoyed the first panel, and i should say that while i have some pseudo-academic qualifications, after i read andy's law review article i realized i know virtually nothing about the academic side of this issue. i've been more in the trenches on it. and that's what i want to talk about here. so first let me say as a former deputy secretary of a department that is controversial in many times, i do think that there's really an important function for
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congress here in terms of oversight. and we see it done well, and then we see it not done well. and in my experience, i'll mention one current example where i think it's being done quite well, and i credit chairman chafetz on the house right now in terms of what he's doing on the oversight of the national park service and the sexual harassment arising in a number of parks. he's solid investigation on an important issue. it's an early opportunity for the director of the national park service to publicly respond to the allegations. that's the way oversight should work. and i think good things will come out of that investigation. i should also say i have in my experience in the government, i have found that the appropriations committees have done very good oversight. not the traditional oversight, if you will, where you can
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expect, you know, a fairly adversarial relationship almost from the beginning, but instead, it's in part because of the process, it's a much more collaborative relationship with experienced congressional staff, experienced internal folks in the agency working things out, and a recognition to kerry's point, that at the end of the day, the money's got to come so there is incentive for working things out. i would comment parenthetically that i think the breakdown of the appropriations process and the conversion of that into a process that is largely dominated by riders actually is quite distracting from the traditional work of those committees, which is to actually try to work out the appropriate funding for appropriate uses.
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but when you moved -- in my experience, when you move away from -- toward the traditional oversight committees, my experience has been that this has not been a very good relationship between the administration and the congress. and what i have seen, i'll give two or three quick examples, are quite broad fishing expeditions, truly driven bipartisanshibipayn connections that it appears clear that it's all about partisanship. in other words, they're not moving toward a result that will affect policy in a significant way. that's an important litmus test for what those investigations are all about. and a tendency to go nuclear quickly, to go to the subpoenas, you know, this is the next thing
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since benghazi, and we're going to go all out. it's like, really? and i will just say, i think it's ineffective, many of these investigations are ineffective for all those reasons. but i'll give one more. the tendency has been, in my experience, to have one or two, you know, big ones, try to get the big hit. and it takes all of the effort of the committee staff and internally, in the administration, to respond to these, when, you know, there's 70,000 employees in the department of the interior, $14 billion budget. there are a lot of things going wrong. there should be much more, you know -- let's not try to get the big one, let's try to make government work better and work together better. i'll give you three quick examples of the former situation where i think -- well, hopefully they'll speak for themselves. one of them was darrell issa. in the summer of 2011, he called
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up lisa jackson, the head of epa, and me as the deputy at interior. the title of the hearing was 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 is an investigative report that we're given, all one-sided, just the republicans, ranking chair cummings had no knowledge of it. and it was a silly hearing. you know, mr. hayes, why aren't you allowing oil drilling in the arctic national wildlife refuge because that would get our gas prices down? that kind of thing. that just cheapens i think the whole process of an oversight hearing. sorry to be so explosive about it. i still remember that hearing. a couple of other quick examples
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that are where i think the initial 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 occurring in the summer of 2010. the interior department is obviously in the middle of it, the regulatory agency involved. one of the early questions was will the president and secretary salazar put a moratorium on deep water drilling until we find out what really caused this problem and are convinced that we're safe. secretary salazar ordered a 30-day report, literally while the oil was still flowing in the gulf. and we pulled together terrific 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 deep water
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drilling. the independent experts give a great input. it's clear that we need to do some things before we can continue the drilling. the president later, in part based on this report, says we're going to do a six-month moratorium before we do drilling again. here's the confusing part. the cover letter that went from the interior department to the president inferred because of poor editing, literally in the middle of the night at 2:00 a.m., that all of these independent experts were proposing that there be a six-month moratorium. that wasn't the case. it was clarified quickly. we weren't relying on those independent experts. it was ultimately ken salazar's recommendation to the president, 2 1/2 years later, that investigation continued, as to whether there was white house interference in this decision, on this moratorium. now, meanwhile, there is a final
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decision on a moratorium. that's taken to the courts. the courts ultimately uphold that. it's clear the final decision is not based on those independent experts. there's no question about it. there's a record, it's a final agency decision. the courts prove it. yet literally in august of 2010, subpoenas are coming to the department of the interior 2 1/2 years later about this. this is clearly the concern that there was a moratorium for too long, and it was politically based. final example is something that's still going on right now, dealing with mountain top mining. at the end of the bush administration, there was a rule called the extreme buffer zone rule that defined the types of practices that those who were 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 rule, so we started
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a new rule-making, ultimately, by the way, that 2008 rule was overturned by the courts. so we needed a new rulemaking. early in the rulemaking, and this was going to follow the strictures of congress and subject to judicial review, early in the rulemaking, an incompetent contractor was hired by the department of the interior even before there was a draft eis or anything, we ended up firing this contractor. that contractor made some allegations about how many jobs would be lost if you took a different approach to mountain top mining. boom. that's your political issue. and this is deliberative process, okay? so there is obviously interest in whether the department was biased or whatever or what was going on. fine, let's answer those questions. here we are, though, this has been -- there are seven letters
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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 final eis and a final decision. look, the issue has been identified as a sensitive issue. but let the process continue here. we have an apa-related process here that this is a side show issue. and it's -- but it took the mountain top 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's not time well spent. and what i hope will come out of this discussion, and perhaps it's a mars and venus situation, although i don't like that analogy, i remember the books, okay, i'm not sure -- you can look at your own personal life and see how that works out for you.
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but i hope -- 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 their trenches and put their defenses up and lead to, you know, litigation that i agree with kerry, it's no way to solve the problem for all those reasons. so i look forward to -- >> i didn't quite say that. >> i know, yes. fair enough. fair enough. there we go again, the administration putting words in your mouth. thank you. >> thank you, david. martin? your thoughts. >> well, i'm from 35 years of trench warfare. and i see these problems and what's been going on lately. obviously a tremendously
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different perspective. i grew up, as i say, in the trenches. i worked with amazing members who are oversighters like john morse, john dingel, ben rosenthal, jack brooks, henry waxman, carl levin, and chuck grassley. and all of them, you know, brought -- and staffs that were loyal, longstanding. and they came to me, you know, to -- sort of perspectives on how do we get these things done, did we ever do this before kind of question. and over the years, i learned a
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lot, i think. i think i have a reputation as a zealot for congressional oversight. congress's oversight power is virtually plenary. the investigative authority is irrefutable. courts have consistently recognized that in order to perform its core constitutional responsibilities, that congress can and must be able to acquire information from the president, the departments and the agencies of the executive branch. the structure of the checks and balances rests on the principle that congress has the right to have everything that the executive has, including all the
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policy choices and all the successes and all the failures in the implementation of those policies. the supreme court has made it absolutely clear that article i presupposes congress has meaningful access to information so that it can responsibly exercise its obligations to make laws requiring or limiting executive conduct, to fund programs supporting executive policies to which it approves, to deny funds for those policies for which it disproves, and pursue investigations of executive behaviors that raise concerns. i found in those years that committees wishing to engage in successful oversight had to establish their credibility with the white house and the executive branch departments and agencies that they oversee early, often, and consistently,
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and in a matter invoking respect if not fear. although standing and special committees have been vested with a vast array of formidable tools and rules to support their inquiry, including, including supreme court and appellate court approvals of practices and processes, including that congress has adopted for the conduct of its oversight and hearings, that do not accord witnesses with the full panoply of rights enjoyed by witnesses in adjudicatory proceedings. it is absolutely critical to the success of investigative power that there be a credible threat of a meaningful consequence for refusals to provide necessary information in a timely manner. in 1795, that threat has been
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the possibility for citation of criminal contempt of congress or trial at the bar of the house, either of which can result in imprisonment or fine. and there can be little doubt that such threats were effective in the past, at least until 2002. in particular i would point out that between 1975 and 1998 there were ten votes to hold cabinet level officials in contempt. all of those resulted in complete or substantial compliance with the information demands in question before the necessity of a criminal trial. it was my sense that those instances established such a credible threat that a contempt was possible, at least until 2002, even the threat of a subpoena was sufficient to move an agency to an accommodation
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with respect to document disclosures and the testimony of agency officials and the white house to allow executive office officials to testify without subpoena. the last such instance was the failed presidential claim of privilege during chairman dan burton's 2002 investigation of two decades of informant corruption in fbi's boston regional office. i would add that it was a bipartisan effort, which is unusual for chairman burton, in which a contempt vote in a bipartisan manner was a certainty if the president didn't cave in. and he did. i'm kind of surprised that, you know, the session relates to simply these two cases, the holder -- the meyers case and
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the holder case. it's as if everybody is thinking that it came out of the blue. but that, those situations, represent and underlie that congress is presently under literal siege by the executive. it has not suddenly come out of the blue. it is a calculated offensive. the last decade has seen, and i catalogued this, among other significant challenges, an unlawful fbi raid on a congressional office, the department of justice criminal prosecutions of members congress that have successfully denied them speech or debate protections, a presidential co-option of legislative oversight of agency rulemaking,
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presidential refusals to ensure the faithful resolution of enacted statutory discretion, the directions, an unsuccessful attempt as usurpation of the senate's appointment power, and with respect to investigative oversight of the actions of executive branch officials, the adoption of a stance that was first enunciated by the office of legal counsel of doj in 1984, that the historic congressional processes of criminal contempt designed to ensure compliance with its information gathering prerogatives are unconstitutional and unavailable to a committee and the president unilaterally determines that executive officials need not comply. in such an instance the department of justice will not present allegations to a grand jury as required by law.
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that's where we are today. these two cases that have come up, you know, are a reflection of a concerted effort to under mine congressional oversight. and the only thing that congress can do is to step back -- i agree with the utilization or attempted utilization of confirmation powers, the appropriation powers, et cetera, et cetera. but they're not targeted. they're 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, when translated correctly, is an ability to negotiate and stymie over a period of time.
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congress has to look at what powers it has and get back to finding a credible threat that will bring the executive to the table and to negotiate. and if not, issue, you know, either a contempt of congress criminal actions or revive the inherent congressional contempt. inherent congressional contempt stopped in about 1934, 1935, not because it wasn't effective. it was. it just took too much time and the criminal contempt process was thought to be more expeditious. neither of which is true. the inherent contempt process
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can be made better, more acceptable. there's no reason now -- the supreme court has for over a hundred 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, you know, made clear in a case involving the senate's, you know, power over impeachment. the trial can be, you know,
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preceded by conduct of investigations that will be able to present to the senate at its trial and cut down on the time it takes, you know, for a trial. the same thing can be done, you know, by internal rulemaking, to make the inherent contempt process seemly. you can provide for, you know, an investigation, a presentation of recommendations to the floor of the house. and the penalty doesn't have to be imprisonment. it can be a fine. there is certainly precedent for that. secondly, with regard to criminal contempt, that is also still necessary. and the olc opinions, you know, misstate the history of criminal
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contempt. criminal contempt is absolutely necessary as -- you know, to be revived. there is no doubt that there is an analogy to criminal contempt that is issued by courts when there is a contempt of court. the supreme court in 1987, in the louis vuitton case, accepted the right of a court to appoint a prosecutor, to criminally prosecute somebody who has, you know, been found to be in contempt of court, to bring a private attorney to bring a prosecution. the next year, in morrison versus olson, that louis vuitton case was cited prominently as a
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seemly and authorized means to -- you know, for a court to appoint somebody, you know, when there was a criminal prosecution. it should be understood that it is constitutional for congress to have -- congress has the same self protection that the the courts have. and the analogy is appropriate. and i think that 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 inherent contempt at the same time that there is a criminal contempt, and that the supreme
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court, in morrison versus olson, will come and support it, that there should be an injunction, because there is only -- what the justice department is saying is really that there is a conflict of interest because their client is the president, and also the executives. justice department in such situation has rules which says if we do have a conflict of interest we'll appoint a special prosecutor, either somebody within the department of justice who is walled off or somebody private like an independent counsel. both of those should be looked at because there needs to be leverage here. this is all about politics. that's what it is. and congress has had it, and needs to revive it, and not go to court.
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the court process as kerry has experienced means delay. delay for oversight means ineffective oversight. it goes away. thank you. >> i'm going to open it up to questions next. and i actually wanted to take moderator privilege and start with one. mort, you said you served with legends, senator dingel, levin, grassley. we've heard from david and others on our panel about the contrast between oversight used well and misused. i was curious, on this panel but mort as well, what do you think enabled that strong -- or does enable that strong fogood use o oversight leadership and the figures who simplify that in the past, and what is limiting it now? in other words, why aren't we
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seeing more of the type of leaders and oversight that we had seen in years past? what has changed and what can we do to maybe bring some of that leadership back? >> a sense of institution is missing and taken away. there is no sense today that if we enable effective oversight and enforce it by contempt of congress or inherent contempt, that there is not any thought of it, because at the forefront will be the other party will use it. you know, and we want to, you know, be sure that that doesn't happen. there is no sense that -- of the
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responsibility and the duty of members that's common that there's a need for cohesiveness, a need for, you know, 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 say on this point is, i suspect some of the breakdown, if you will, in -- and let me start by saying, i don't agree that there isn't a lot of effective oversight going on. i think there is. but there's a lot of high profile oversight matters that suggest that it's not doing well. and obviously it's not doing as
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well i think as it has in the past. but i think at least in part that's a function of the more polarized political world that we're living in we're living in an age of more triable politics. i think it makes it harder for the minority to trust the majority in congress and the majority to trust the minority. this is probably one by-product of that. so if we can figure out a way to make our politics more nice, than i suspect more bipartisan oversight will probably flow from that, but i don't have an answer to that. >> it's worth noting that there's -- we have this sort of gauzy since there was this great moment when bipartisanship flourished everywhere. to some extent, that's the function of the moment in which
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we're living in now. for much of the 20th century, bipartisan coalitions were possible. the reason is racists were everywhere. the democratic party was split down the middle between the northern and southern wing. the republicans could make common cause with the northern democrats. when you look at the votes, often you'll see some democrats and republicans. that's an anomaly in american history. if you look at debates certainly leading up to the civil war, the fact that the whigs started their life as a party called the anti-jacksonians should tell us something. go back further to 1800, which puts the current election in terms of historical nastiness. the 1890s are most entirely done along partisan lines. there are very few moments in
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history where this great sort of kumbaya happens and it's not for reasons we want to emulate today. i want to push back on the idea that bipartisan is something we should see as something necessarily an indication of good, healthy politics. sometimes one party controls a lot of the levers of power and sometimes that's because they're engaging more effectively with the public. in that situation, it is not entirely appropriate for them to press those claims. other times we have divided government and that's because the people haven't trusted either party with power. it's a sort of manifestation of the fights playing out in the public at large. look around you. we are a somewhat divided polity at the moment. why should our institutions not reflect the friction we have out in the world? that would be eliminating some
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part of some of our political diversi diversity. >> two of the three of the examples i mentioned were oversight initiatives from our authorizing committee, the house national resources committee. and 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 provides a bit of a vacuum that promotes this kind of thing. you know, i served in the clinton administration as well as the obama administration. i think it's getting worse, not better in that regard. >> sorry. we're going to get you a
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microphone real quick. >> my question for the panel 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 a private law firm, seeing this at an executive agency in the white house, and in a practical way some of the lessons i learned in the senate are not necessarily carried through. things like keeping investigations confidential until they are ready to be final. making them confidential, treating materials that are sensitive as sensitive, and in doing other things in a way for congressional staff to establish creditability. i may be using that in a different wayused, morton, but there is a balance of power and how both parties
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can establish creditability. as a lawyer, yes, we do have different interests, but we do believe facts should carry the day and the truth should be the truth, and that's what investigations are meant to get after. if you were giving advice to congressional staff -- keeping in mind many of them are young and under 30 and not necessarily lawyers, what sort of institutional advice would you give them? >> i'd advise them first to pay attention to the more senior folks in their ranks rather than going off half cocked. i'm of the school that the executive branch takes inquiries like this very seriously, and in my experience it does. a predecessor of mine in the bush administration went to jail because he lied to congress, so there are terrific incentives to be careful about how
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administration officials work with congress. and 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're serving the american people, so -- but obviously, completely one-sided reports that -- the opening remarks of chairman burton in one of his oversight hearings was amazing to listen to because
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untethered by facts. on the other hand, chairman dingell and chairman grassley and others not that way at all. let's start with the tafacts, tk about the facts, develop the facts. there has been a churn on both sides of the equation. some of the real pros have moved on and you do find some of the chairmen of 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 worked in the general counsel's office as opposed to a committee oversight
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investigator or oversight lawyer. two things i guess i would say. number one, because of my background as a litigator, my advice would be litigation centric. you need to be focused. you need to be precise. and i'm talking about subpoenas and requests for information. you need to leave as little room as possible for these departments to concoct objections. so you come at it from that standpoint. the other thing i would advise is given notwithstanding my advice that litigation is not a great option for congress i suspect it's going to continue to be an option that will be used. i would give advice on how to shape information requests and how to conduct the investigation in a way that makes it salable
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in a judicial context when we get down the road. >> one thing that's sort of the flip side to what you're 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 it in terms of public politics. if you think about some of the most successful in like the broad scope congressional investigations in american history, so think about the 1920s munitions investigations which already certainly delayed american entry into world war ii by creating a public peace movement and movement that was skeptical of the war making capabilities of the administrative state or the church committee of the 70s, these are committees that were careful, but they were also highly cognizant about the fact their work didn't face toward the executive branch but faced out to the public.
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their reports were written and their hearings were structured so as to convince members of the public to adopt a certain perspective. it's a reminder that facts aren't things -- facts are in some sense found, but in another sense they're assembled. there isn't a situation out in the world where your job is just defined. your job is to construct a narrative about the world and convince people of that narrative. that would be my advice in so far as you want the investigation to have real public punch. >> i've always experienced working with those people who were legends in oversight that they all viewed it as a stage process, that you start with a problem and try to identify it
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and construct relationships with the agencies that you're dealing with. at the same time, that's the importance of having long lasting staff, staff that's still there and going from case to case and being credible as a longstanding group, that information comes in, that there's some attachment to agencies being overseen. before those kinds of relationships developed, it resulted in pulls back and forth trying to avoid a particular situation, showing up in "the new york times" or "the post" or
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something like that and working through the kinds 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 vesting this power out. the stage of this process usually went from one level of pressure to another never starting out with a subpoena. the subpoena was -- for a long period of time, it was there it was a big event. and scheduling a subpoena conference, to vote for one, triggered reactions, triggered some of the negotiation necessary. and if a subpoena was issued, that was a big deal. this is no longer there.
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subpoenas are -- more committees have the authority to issue subpoenas on their own than never was there before, and it results in trigger happy kinds of reactions. and going forward without having the full facts before them, pogo organization, brings that forward and is part of the public panoply there giving information to make that kind of oversight process really work. helping with whistle-blowers, providing the background information that's necessary for going from one stage to the
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next, and i think that's important. i tried to teach the people who were calling me read this. it's been done before, and this is why it was done before and where you can go at particular times. we don't have that institutional memory anymore in the committees or even in some of the support organizations that are there like crs or gao, which have been cut by the appropriations process and can't keep the steady people there. we've lost a kind of a sense of how oversight should be conducted in a way that is supportive both back and forth. >> another question to the audience. let's get you a microphone.
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>> thank you very much. i work for the department of labor. i am an economist by trade, so not a lawyer. just listening to this fascinating conversation, it seems to me like the executive branch, 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 more and more programs coming online, but where are the resources to fund these programs, particularly in terms of human resources. civil servants are being asked to do a lot, handling hundreds of millions of dollars worth of project, and in the heat of getting something managed it is hard to look at committee oversight as being positive. i was also very pleased in the last session to hear that resources from professor wright
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are a problem effecting congress also and a lot of these things talking about institutional memory. anybody who has been on congress notices an army of unpaid staff. any member would say that's the staff is the backbone of how this institution runs. maybe they'll keep people to do more meaningful oversight in the long term. my question is how much resou e resources at the end of the day causing discord where lack of resources 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 promise less to the american people of what government will do so you can get to a better place where you can have programs that are effective, have the proper oversight, and bring this together in a way
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that is less -- seems more on the legal side, subpoenas, i'm just hoping to never experience. thank you. >> steve, send him a subpoena. >> i'll be real quick. you're raising obviously 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 that resources are an issue and when there are investigations that are very broad ranging and with lots and lots of document requests and it appears to be clear from an 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 difficulnd


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