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tv   Public Affairs Events  CSPAN  November 7, 2016 4:18pm-6:19pm EST

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we will give serious thought to how the congress and the executive branch can work through these challenges demands and relationships. we will have a brief wrapup at noon and adjourn at 12 #:15. >> thanks, linda, good morning. i want to welcome you all here today on behalf of the constitution project. thank you to mark rosenberg who has written the original when congress calls calling and now has updated it or is in the process. we're almost done. we're grateful and delighted the
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update is one of the bases for today's discussion. we ran out of the original long ago because it was so popular and such a useful tool for how hour government works. we're pleased the update will be available in just a few weeks. if you're interested in the update, please go back downstairs and pick up one of these forms and we'll make sure you get it. >> the other day i watched the making of "hamilton", which i had the pleasure of seeing on broad way. it was an amazing piece of theater, but a great lesson in history. and that's really what today's event is about. it is the about the history of government and the balance of powers. hamilton was about the executive branch and the differences of philosophies that ended up creating our system of
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government. it applies just as well to our current system and debates. who controls the government and in what way. how are they balanced against and by the executive branch. and ultimately what role do the courts have in resolving any disputes that cannot be resolved by the political system itself. to credit for one of the best songs in "hamilton." everyone wants to be in the room where it happens. our program today is who gets to be in the room, who makes that decision, and how policy is created once a decision is is made. hamilton made clear our democracy is not an easy or flawless system. our experts today will discuss what happens when congress comes calling. the tug of war between the executive and congressional branches has always existed and always will. while hamilton didn't turn out that well, for hamilton himself, the founders created a brilliant
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system for some seems to be on the verge of breaking apart. there is no right or wrong in this tug of war, but there must be conscientious people of goodwill to test their powers. when congress comes calling, it gives the knowledge and the tools to do their jobs responsibly and pursuant to the constitutional powers created during the time hamilton portrayed and developed in the years since then. and now i'm pleased to be able to present carl levin. he served for 36 years in the u.s. senate representing the state of michigan. he is in fact, the longest serving senator from that state. in the senate he served as chair and ranking member on the armed services committee and chair and ranking member of several oversight subcommittees on the homeland security and governmental affairs committee, including some 15 years on the
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permanent subcommittee on investigations. senator levin was known for his in-depth investigations into complicated issues, his bipartisan approach to oversight, and his commitment to uncovering the facts. these strengths played out significantly in his oversight of the financial sector, in particular the 2008 mortgage bank crisis, offshore tax shelters, and money laundering. he brings a wealth of experience and accomplishment toss any congressional oversight. we are so pleased to have him join us this morning. senator levin. [ applause ]. >> jenny, thank you so much for the introduction. according to the program here, i guess you're part of the welcome
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and i'm sort of the overview part of that line. so mine will be a little longer than a welcome. not quite as long as the paper i stuck in my pocket but longer than the other remarks. thank you so much for the great work in the constitution project. in the teaching that i do with jocelyn and at wayne state law school, we are now in the court. we used some of our texts in our course. i hope jocelyn gets here. she, until recently, was the dean of wayne state law school. and now she is taking on other responsibilities. but she's also going to continue at wayne law as director of the levin center. i thank the pew center for their
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hospitality here today. i am tremendously indebted to linda gustitis, the staff director i said is linda here. they said, oh, linda is here. everyone told me how much they loved linda. with good reason, folks. she is an extraordinary, extraordinary human being. we have four students from the levin center. i want to greet them. i wanted to give them a chance to participate here in the watch what goes on here at this particular forum.
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we're of the opinion of the power of inquiry that the power to enforce it is an essential and appropriate auxiliary to the legislative function. that position of the supreme court was reinforced in watkins. and the court clearly acknowledged congress's inherent
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power to conduct investigations stating it was a broad hour, including inquiries concerning the administration of existing laws, needed statute, effects in our social, economic or political system and prose to expose corruption or waste. it was that needed power and existing power of congress that caused me when i came here in 1979 and for the subsequent 39 years in the senate that i chose to designate a significant portion of my time as a senator to conducting oversight. in order for oversight to work, it has to know what's going on in the executive branch. and that means making demands on the executive branch for information.
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both documents and witnesses. because i take an ex pans sieve view of congress's right to know, i'm concerned about recent court developments. like the holder case where the district court recognized a broad, deliberative process privilege. but the growth of e-mail, in other words, things that could be put into print that are lasting, not just oral presentation, the growth of e-mail and hacking and leaks, i am somewhat sympathetic frankly to the need for the executive branch agencies to protect their intraagency and even their inter agency communications to the extent that they are
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communications and preparation for developing a policy position or respond to go an outstanding event. in other words, frank discussion in decision making and the decision making process has real value. so that people can talk and communicate without the fear of being characterized is taking a position, a final position either for the agency or for the administration or even a position of the purpose who is uttering the words. but that recognition like a leak in a dam, can result in a vlad over time. and the consequences, if not carefully limited, can be devastating to the role of congress in overseeing agency programs. we have actually seen some
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indication of the overbreadth that is inherent as a possibility in that approach. in the recent administration of the obama administration's actions under the affordable care act. house committees sought information that had been denied based on the administration's claim of "can confidential privileges." which is pretty vague. i also fear if congressional oversight is viewed as highly partisan as opposed to institutionally sound, the courts may respond with a more protective position than they otherwise would. in other words, if that approach becomes accepted, the unfortunate consequence, it will be that congress loses its power
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to know what's going on and the program it creates and in the executive branch and, hence, loses its power to act on an informed basis. congress doesn't have to go to court at least theoretically to enforce its subpoenas. it has its own inherent enforcement authority which means it could hold a trial on its own or hearing on a contempt resolution. and if the person is found guilty of contempt congress could actually put that person in jail, a congressional jail. congress already seems like a jail to some of its members. this is a different kind of jail. now, this sounds bizarre. but the supreme court has recognized its authority. and since 1795, congress actually used its power over 85 times. in most cases successfully. it hasn't been used in 75 years, with about reason. but the presence of of that
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inherent contempt authority does speak to the significance of congress's need and its right to know. in the recent myers case, and in the holder case, the house for the first time adopted resolution authorizing the house general counsel to bring a suit in federal court seeking enforcement of its subpoenas. in both cases, house committees were seeking information, both documents and testimony in the case of myers and documents in the case of holder and chose to go to federal district court to enforce their subpoenas. the reason they did this is because the justice department refused to bring the concept citation that the house had passed in both on instances before a grand jury despite our laws requiring that it is a
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"duty" of the u.s. attorney to do so. and by the way, the myers case contains some eloquent words that really reflect my view, and i want to read them to you. congress's power of inquiry is as broad as its power to ledge slate and lies at the very heart of congress's constitutional role. indeed the former is necessary to the proper exercise of the latter. according to the supreme court, the ability to compel testimony is "necessary on the effect of functioning courts and legislatur legislatures. cite the brian case. in this case it is no less legitimate or important than was the grand jury and the united states versus richard nixon.
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both involved core functions of a co equal branch of the federal government. now, the recent cases are only district court case, not appellate cases. so they are subject to revision and review. and the holder case is currently on appeal. but we are on new ground here. and we have to recognize that we are now in a place where we have a new congress and a new president. we have to think lieu and talk about and see if we can come to some kind of resolution of the inherent conflict we're talking about between the need of congress and the need of the executive branch. the goal of any document request is actually to avoid conflict between the branches. that we're in a political
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environment. conflict is inevitable. and that means the tension between congress and the constitutional responsibility to oversee the workings of the executive branch. on the other hand, the presidents claim of executive and deliberative process to have a free and frank discussion both have to be recognized. and the resolution of that conflict is something that i hope we can talk about here today. and, again, i just want to emphasize a point which i made briefly before. that in resolving the tension again the need of the legislative branch and the need of the executive branch that the more intensely partisan oversight becomes the more likely it is that the court will
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protect the equity that is involved in a need for a deliberative process in the administration. and i think if there was any point i would want to reinforce these remarks, it would be that. we have seen some highly partisan investigations, without going beyond that and identifying any particular one. there have been some highly partisan oversight hearings and investigation. and if that is going to be the perception of the court in trying to resolve what is the equity in the administration, the court is naturally going to say, well, if the congress is going to involve itself in highly partisan use of the investigative process and not do it on a bipartisan basis for the institutional need to use
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oversight in order to get information, that the court i believe, and this is just based on my experience, the courts are likely to respond and to give greater deference to the equities which are involved in an administration wanting to have free debate without it being characterized again as it being a decision when it is merely a discussion. so high partisan ship jeopardizes the congressional oversight role in that sense in my view and a number of other ways as well. with a new president, a new congress will begin in 2017, it will face the kind of issues which you're going to be discussing today. so this is a very meaningful time to review the rights and the rules and the principles that govern this tug of war between the branches and to
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contemplate a path forward. what's needed is to ensure that congress can-can access is the information and it needs to oversee the executive branch and are necessary to check the executive branch effectively. and how should congress at the same time be held accountable for using its oversight powers and its tools of oversight appropriately. we look forward to the panelists and these panels, we're very grateful for them coming here today and to all of you for being with us as we discuss a very i'm sure it is perceived by the public as a very dry and arnold contain issue. but it is an issue that goes right to the heart of the government. great being with you. thanks for showing up here today the. [ applause ].
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>> thank you, senator levin, for those very wise remarks that come from decades of experience. it's my privilege this morning to moderate this first panel, which will look at the development of the law and practice with respect to congressional access to executive branch information and to assess where we are now in light of recent events, in particular the myers case and the fast and furious case. you will hear fast and furious, holder, and lynch. they are all the case. fast and furious is the generic term. holder was the name of the case as it was brought undecided. now it has become lynch with the new attorney general because the case is on appeal. all of those are the name for the same case and the same situation. i spent 24 years in the senate
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doing oversight with senator carl levin as a member of the then named governmental. now homeland security. i supervised a number of the executive branch including dod procurement, irs seizure policy, the social security disability program, debarment and extension and web tech and campaign finance reform. throughout those investigations, we took a very limited view of executive privilege and the right of the executive branch to withhold information. it's a position very similar to the legal argument congressman isa made in the lynch case. i don't agree with everything but i am very close to his position on this, i must say.
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the privilege was very narrow and depended upon the nature of the investigation. i gave little recognition to the deliberative process exception when it involved intrathe agency communications. the kind of questions we were asking of the executive branch i don't think ever raised suspicions about the deliberative process exception. but i must say that my attitude towards it was that we would rarely, if ever, recognize deliberative process in the context of an intraagency communication. in the past few years, with the decisions in myers and holder, things have changed. there appears to be some grayer recognition that the
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deliberative process documents and conversations are now exempt and can be exempt from congressional access and the courts are the mechanism to settle these disputes. and we've with he got to know today what that means for the future of on congressional oversight. i wouldn't call it a seed change, but it is a significant change that we need to see if it is in open to go a larger and larger refusal by the executive branch to provide congress with the information it needs. joining me on this panel this morning are three individuals who not only had direct involvement in fast and furious but also have a distinguished history of working on numerous other congressional investigations so they can draw from both recent and past experience. so let me first introduce to you the panel. first we have steven castor. he serves at deputy general
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counsel for the house oversight and government reform. he served as general counsel and chief counsel for investigations. he has worked on a number of notable investigations, including fast and furious, the irs, steroids in baseball, and jack abramoff. next we have ron weiss. ron serves as dean of the baltimore school of law. prior to that he served as assistant attorney general for legislative affairs in the justice department. representing that department on all legislative and oversight matters before congress. he has served chief counsel to harry reid, edward kennedy and received his b.a. from columbia and j.d. from yale. third we have an true wright. andrew is an associate professor at the savannah law school where
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he focuses on separation of powers with an emphasis on congressional oversight and national security. and he previously served as associate counsel to president and assistant counsel to the vice president in the obama white house, as well as staff director and counsel to national security is subcommittee in the house of representatives. and he received his b.a. from washington and lee and j.d. from university of virginia. so i want to thank you all three for being here today. each panel will have 10 to 15 minutes to present their comments. and i will present a few questions. after that, we will open to the audience for additional questions. so let me start with you, steve. you were on the house government reform committee staff for fast and furious. this was only the second time in the myers case in which the house had decided to use the courts to enforce the subpoena
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and seek a declaratory judgment in doing so. can you give us some background on these cases and why congress felt obligated to seek a declaratory judgment from the district court, why you didn't use your inherent contempt authority and why you didn't seek to use the u.s. attorney to enforce the subpoena. >> well, thank you. thanks for having me. fast and furious was a gun trafficking case gone wrong. the decision was made along the southwest border to stop interdicting weapons purchased by straw buyers and instead allow straw buyers to purchase the weapons illegally and walk away with the purpose of allowing the network to develop. and while watching the network, the plan was to take the whole network down and to stem the flow of traffic to the cartels in mexico. and it didn't work. and in hindsight, it is no
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surprise it didn't work. it is is certainly a case worth while of congressional oversight. nobody has ever said it's not worth while to look into what happened. there was a significant thing to look at at the local level of atf, all the way up to senior levels of the justice department. after the investigation commenced, a very early portion of it, february 4th, 2011, a letter was written to congress that was false, denying charges, telling us essentially to go away. but the problem with that was we had insiders providing us firsthand accounts and documents. and the february 4th letter was wrong. it was false. 10 months later that letter was
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withdrawn. part of our investigation is what happened during the gun trafficking case gone wrong. but another part of the investigation was what happened between february 4th and december 2nd, 2011, nearly 10 months where congress was stonewalled, obstructed, told to go away, it was not a legitimate oversight effort. and the justice department blanketly, in blanket fashion told us we were not entitled to any documents post february 4th. and we brought contempt on the house floor. both civil contempt and criminal contempt. it was passed in bipartisan fashion. 15 or 17 democrats joined the republicans. but it was presented to the united states attorney and the united states attorney declined to prosecute. there was a criminal and civil component. after they declined to
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prosecute, the president exerted executive privilege that that certainly is a major factor why the u.s. attorney is not going to prosecute. we filed a civil lawsuit. the lawsuit is yon going. we filed our appeal brief on october 6th. so as it relates to activities at the district court level, although i might have a great appetite to talk about it, i do need to be restrained. it is in litigation. it could be remanded. but, you know, that being said, a lot of very important oversight actions happened prior to following the lawsuit. you mentioned inherent content. it hasn't been used in the house since 1916. it hasn't been used in the senate since 1934. the process of inherent contempt would involve the committee passing contempt citation, taking it to the house floor,
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and having the speaker instruct the house sergeant at arms to go arrest the attorney general and bring the attorney general to the house jail. and that hasn't been that type of enforcement mechanism, hasn't been used in a very long time. so we certainly are aware of inherent contempt. it certainly is a valued means of enforcement. but it hasn't been used in so long that it's hard to consider arresting the attorney general of the united states as an ordinary means of enforcement. >> you said u.s. attorney declined to prosecute because of executive privilege. but wasn't that a deliberative process privilege, or was that executive privilege? and maybe you can explain the difference a little bit between executive privilege and deliberative process privilege. >> do you want me to jump in?
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>> sure. >> this is a branch doctor here so i'm not speaking for congress. it would be one component of the executive privilege unpwrel la doctrine. so the president president gave it slightly different and that is there was no contempt if the attorney general is following executive branch policy than there was from the u.s. attorney perspective, maybe no criminal act at all. >> the documents being sought were documents that were internal largely to the justice department. they weren't just documents within the white house between -- two and from the president. they were also intra agency documents. >> our subpoena had 22 categories. and subpoenas are issued at the -- on the early part of the investigation. by the time we got to contempt,
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we had obtained, not necessarily from the justice department, but we had obtained many of the documents he needed for the operational component of fast o components of fast and furious. we sued on documents that were dated or created after the false letter, after february 4th. >> ron, do you want to respond by the executive branch, the justice department? >> sure, first of all, thank you and senator levin for hosting this event and jenny sloan and the constitution and the pugh trust for providing this wonderful space. i want to pick up on something senator levin said in his introduction. he noted the timeliness of this event, because we're two weeks out from a national election, and to put a finer point on that, we don't know how that election will come out. the poems, you know, speculate
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this and that, but we don't know. we won't know until election day who will control the agencies of the executive branch, and in this particular election, a genuine question about who will chair which party will control which senators and house members will chair the various committees and subcommittees of congress. so we have what sometimes is referred to as a vail of ignorance, where you don't know who is going to have a benefit or have an interest to consider what the proper principles and practices are, no matter who is issuing the subpoena or responding to the subpoena. so i think this is exactly the right moment to ask these questions. i'll turn to fast and furious in a minute, but let me just offer these general thoughts as someone who has been on both ends of pennsylvania avenue, as linda indicated me. i worked for senator kennedy and
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later for senator harry reid and was involved in and initiated oversight requests, and then assistant attorney general of the justice department, i was responsible for speaking for the justice department in response to those requests. and let me say at the outset and thank my colleague, steve castor for being too graceful to say i signed that february 4, 2011 letter that was false. i didn't know it was false. i'll tell you one story. when i became the assistant attorney general, someone who had the job before me, a friend, told me that i was going to sign 100,000 letters, and one was going to blow up in my face, and i didn't know. i wasn't going to know in advance which one it was going to be. it turned out to be february 4, 2011, fast and furious. i believe based on my experience over the years, both branches of government that oversight is a
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very important and legitimate function of congress. it is beneficial to the congress, in fulfilling its role and making sure public dollars are well spent in crafting new legislation or modifying existing legislation, therefore, it benefits the american people. but i would also add the executive branch agencies. at the justice department, we recognized that that kind of oversight kept us on our toes, and helped undercover mistakes and programs that weren't working as well as they should work and certainly in this case, it uncovered a law enforcement operation that was fundamentally flawed. having said that, so indeed, the public has a right to know, know, i think there is something on the other side of the ledger, there are times when the executive branch has to say no, n.o. there are several categories in which this becomes acute. especially at the justice
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department. that's the agency i know best. just to review quickly. the department is concerned any time there is oversight into open matters. when the department is conducting a criminal investigation, perhaps in the middle of a prosecution where there may already be an indictment. it is very dangerous for congress to be mucking around in there. it can alter the course of that law enforcement operation or prosecution in a very detrimental way. we urge congress to be very careful, and frankly, to withhold oversight while a matter is open. even after a matter is closed, there are concerns about deliberative process, and we've talked about that and can talk some. because executive branch officials and certainly in law enforcement decisions, need to be able to communicate with each other. senator levin spoke about e-mails, a whole new world when he and i first became lawyers. now we talk to each other
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electronically very often. it is a very efficient and effective way of doing that, especially in the justice department, which is a sprawling institution, with many, many components, not just in washington, but across the country and you can press a button and speak to 25 people at once, all of whom need to know the information that you're conveying and want to weigh in on strategic questions. but sometimes it is merely conversation. it is figuring out what we're going to do. not a pronouncement of policy or law enforcement action. we do feel, and i say we, i'm no longer there, but i refer to the we there. and you know, we feel that for executive branch officials, especially in an agency of law enforcement, like the justice department, we need some space to be able to talk among ourselves without that being revealed. there are also concerns when line attorneys or line law enforcement agencies are career
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people who are making decisions are the subject of oversight and are asked or answered before a political body, congress, for good faith career law enforcement decisions. then obviously there are national security issues. those are the kind of considerations on both sides. yes, oversight. but we need to have some boundaries. the cases that have been discussed, the meyers case and the fast and furious case, do present some new boundaries. first of all, i think it must be noted that on the congressional side of it, we now know at least from these district court decisions, we don't have an a pell -- appellate decision, congress can seek enforcement. you don't have to bring the attorney general or assistant general to jail and have the sergeant at arms watch over him or her. you go to the district court and it appears those judges will
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hear the claim that a subpoena hasn't been complied with. but judge jackson in the most recent discussion in the fast and furious case did say that there are limits to what the congress can obtain by subpoena. in fast and furious and i'll just answer real briefly. i don't mean to monopolize the microphone, but steve lays out the facts. i only quibble in this respect. certainly as the house committee sought to determine what happened in this law enforcement operation, that was legitimate oversight and i believe the department was reasonably responsive in providing that information. the committee then wanted to determine how it was that a letter was sent from the justice department that denied facts that turned out to be true. that was legitimate, and documents were provided that explained it, explained that
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individuals who had knowledge of the matter more closely had asserted facts that turned out not to be true. but then the dispute was should the congress get to review how the department responded to the oversight. what we in the department sometimes call memos on memos. and there, you are getting right to the heart of the ability of the executive branch to function and in a rough way, steve will quibble here and there, in a rough way, should the department, any executive branch agency have the ability to say wait, talk among ourselves to respond to the oversight and ultimately, after judge jackson's decisions, the department released a lot of material that i think showed that the department was responding in good faith, trying to get to the bottom of a situation that officials in washington didn't fully understand and respecting the prerogative of congress to ask
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questions that would further a legislative purpose. >> i'll let you respond, and then we'll go to andy and you can give us the professorial view of the case. >> halfway through 2011, the head of atf, ken nelson came in without his 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 is a very relevant piece that happened in july of 2011, and you know, our investigation, you know, in part was looking at what happened over those ten months. >> andy, do you want to give us the larger view of -- >> sure. >> the significance of these cases are, and especially the holder case. >> yeah, sure. let me just, you know, first of all, as a disclosure here, i was
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one of president obama's lawyers during all of this and i certainly, the white house component, several of them got letters during that period. the office of national drug control policy, security council staff. we had a lawyer in the office that had been a senior justice department official and the president asserted executive privilege. so i had some work to do on this matter, so i don't want to pretend i'm totally detached, because i was definitely part of those roles that have been out in the public domain. and so you know, but i will say this. first of all, based on my experience on the oversight committee, i worked with steve before i went into the white house on the democratic side, and my time in the executive branch in two white houses, the clinton white house and 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
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to present to you as food for thought. congress very much sees it as a legal process, like a court and uses all the language, hearings, subpoenas, you know, all of the sort of like indicia, contempt, these are things that we know in law, and i think there is validity in that, and it comes partly from the history of the legislative and judicial functions being separated at parliament before we were even founded. but executive branch sees it very much from a perspective more like negotiation and accommodation, where these are co-equal branches of government, both of whom have legitimate interests, and needs for information, but recognizing that the executive branch has very confidentiality interests that need to be honored as well and each interaction with congress will be some sort of negotiated result about how can congress get what it needs without damaging the executive, you know, essential functions as the executive branch sees them.
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so you know, there is a cynical side to this, you know, congress can help upyend thend like you would see in a court, that's certainly within the congress to do so, and certainly within the self-interest of the executive branch to protect the status quo of not giving the documents over, n-o. there is generally held views within the two branches going back across administrations of different parties that are about how the constitution structure works. it is not just a cynical exercise. it is a jen -- genuinely held belief than a legal process that is supposed to be fixed. that's just one point i throw out for your as food for thought
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to the crowd. now, in terms of these particular cases, you know, the meyers case, when it 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. and basically, the ruling held that there is going to have to be a question by question assertion of privilege in front of the committee. you can't just say this is a such a senior advisor, so close to the president, they can't come up under the circumstances of a subpoena. i think tracking that same thinking on the document context, one of the principles that comes out of lynch and holder is the idea that we are not going to have this at the categorical level, fought at the document level. one of the things that the executive branch really tried to
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resist was the idea of having to go to a document by document level, because mostly because of burton. you know, if you're asking for every document generated by fast and furious, after february 4th in the department, this getting clip services everyday with stories about fast and furious, it is a large volume. the idea that you're going to go through and go document by document privilege log was -- it is a daunting thing. and so i think that's one lesson that comes out of those cases. this will be fought at the document level when you get into courts and not be able to say this category of documents should be off-limits. that's a big win for congress coming out of these, where the law stands now, depending on what the d.c. circuit does. another point that we've mentioned was this principle that dr dr deliberati deliberative, two totally
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separate legal doctrines, one in congress internal to congress and one internal to the executive branch that are like living mars and venus basically. congress has taken the position forever that common law grounded privileges do not apply to congressional requests. attorney client privilege, spousal, et cetera, including deliberative process privilege outside of the narrow presidential communications component that was recognized as having a constitutional basis in nixon. executive branch has always believed that executive privilege is a bundle of ideas, which include various things, including state secrets, including deliberative processes, open criminal files, et cetera. >> see it all as part of executive privilege. >> yes. characterizing legitimate
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essential functions of the executive branch that need some sort of protection legally. and so what has happened is the election to go to district court has brought the third branch of government into this in a different way, and so the two, the two branches, the political branches, aren't able to sort of have their own echo chambers any more. now they're getting the light of judicial involvement, which is going to be, you know, you live by the sword and die by the sword. we'll get rulings now that may or may not fix some of these rules and alter some of the leverage die ma'am mdynamics wh they're trying to settle these disputes. >> intra agency documents as subject to deliberative process privilege. >> it is my recollection that judge jackson felt that in re espy had done that and she was following that precedent. so that was, you know, that was
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a case that was disputed by both branches, her readings seem to adopt more an executive branch gloss on that case. >> so it is the strongest case we've ever had essentially on recognizing a deliberative process privilege within an agency? >> yes. >> documents within an agency. >> dwyeah, so the last point i' make is i love congressional oversight. i walked on the walter read, taliban supply chain in afghanistan, and i think it is 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 impediments to congressional oversight aren't these disputes, narrow crystallized disputes that have to get resolved one way or the other, but more about will and resources for the
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committees, and you know, there are a lot of committees that aren't doing a lot of oversight. the reform committee is an exception, as is psi on investigations. they have long history of doing penetrating oversight. but you know, some other committees, i mean, i can't remember the last time the house judiciary committee or foreign affairs committee or other committees have built the infrastructure to do the penetrating oversight that we need. from my perspective, while i do sort of maintain some of these executive branch views about the led legitima legitimacy, i would like to see more robust congressional oversight as a result of congress putting its resources toward that goal to make more meaningful efforts to do more work. that's just another sided torial point. >> why do you think other committees aren't doing more robust oversight? do you feel it has diminished
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over the last 20 years or so, 10 years. >> i disagree. i think in the last five years, you've seen an uptick with numerous congressional committees, house ways and means committee, energy and commerce, the judiciary committee in the house. certainly in the senate under senator grassley's leadership. >> that's been true for a while. >> has been doing -- has been doing more rigorous oversight. the leadership has, in the house, has placed a great emphasize on oversight. you know, in 2011, speaker boehner instructed every committee in the house, all twenty-some odd committees to have an oversight function. and you know, whether it is 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 sort of take a position a little bit between steve and andy.
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there has been a lot of oversight in the sense of a l letters being sent, but really focused oversight, effective oversight requires a lot of time, resources and patience. i think of senator levin, and he worked with that senator collins and others for many years to achieve results over time. i think about the work of congressman waxman, often working with his ranking member, congressman davis of virginia. and of course, the standing oversight committees at the house oversight government reform committee and senator -- governor of affairs, hoger, acronyms. and it takes time. it takes patients, and i don't think a lot of committees are devoting resources to that kind
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of long game. but you see a lot of letters, an frankly, that's not so effective. some of it is just kind of burdensome, and done for a quick press hit. that's not the most effective and meaningful kind of oversight. >> well, one thing, too, in defense of the committees i just maligned, they do have an authorization cycle that's morrow best than the oversight committee which has a smaller set of authorization things in its jurisdictions. there are en sensitives for the agencies to cooperate that may not be present that might require more penetrating subpoena based types of oversight from the oversight committee to -- the department of defense is working with the armed services committee and their budget and authorities are on the line, they're more likely to play ball. so that's true. but i do think there is still a lack of infrastructure for the investigative long game stuff that ron is talking, about that i would like to see congress put
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resources into. >> you know, i may not have made news, but i do think in this congress, it has changed. five or six house committees now have deposition authority. and they have 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 is 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, i may not have, you know, made a lot of national news, but there is a lot of very hard-hitting oversight going on in the house currently. >> those witnesses are often called by subpoena, or do they come voluntarily? i mean, you can depose somebody, but you can only depose somebody if they come through the door in response to a request to testify. >> having the authority to issue
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a subpoena for a deposition. >> very helpful. >> it is very helpful to getting voluntary cooperation. >> we found that with banks. >> you know, if, you know, you're invited in to participate, some q & a about an oversight matter, if subpoena authority exists, the witnesses are a lot more interested in cooperating. >> can i make one point. senator levin raised the issue by partisanship. the credibility of these investigations really is a function largely of the ability to get both parties together to move these things forward. that's not going to always be possible. it isn't going to be total co b kumbaya, if it is signed by the ranking member and chair, it is a more credible threat to your
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client, because you can recognize, you're not going to have half of the team up thering, depending on the issue, playing defense to a pros do you remember the -- prosecutor. the authority itself of congress is more robust when that letter has the impermtory of both parties, private sector, i think that's something we really need to strife to achieve more often than we are at present. >> we saw that in the wells fargo hearing, where both parties were in accord with bringing the ceo for task what happened. >> it happens more than you think. chairman chavitz works extremely well with ranking member coup cummings. a lot of bipartisan something making the front page of the "washington post" website. it is happening a lot more than
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people give the house and senate credit for. you know, these cases like fast and furious and benghazi, you know, do occupy a lot of headlines. but a lot of good is happening at the bipartisan level. >> i agree with that, but i heard the word benghazi, so i will pick up on that. it gives oversight a bad name that the public sees something that isn't on the level. 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 is not the speaker today, in part, because he was candid about what was happening there with the benghazi committee. there are other examples of partisan, as opposed to the bipartisan oversight that steve and andy are talking about. partisan politicized oversight that really disgusts the public.
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it is gamesmanship. it is kind of burdensome to the executive branch to deal with it. it is unproductive. and we would like to see congress get back to tradition of bipartisan oversight that will benefit the people. >> but ron, one of the best defenses, you have done something wrong, executive branch 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. so that is a very real consideration. >> sometimes you walk to the cafeteria and will is a food fight already. >> there was a survey and several staffers said the number one purpose of oversight is
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political. do you have a reaction to that? that to me is a nathima, and public policy, good answers based on solid fact finding. but i was shocked that there is an attitude out there that the real purpose of oversight is political. do you have any observation on that. >> i meet sad, exclamation point. >> okay, hashtag would be sad, okay. >> old 8020 rule. 20% of the oversight matters are garnering 80% of the attention. whereas 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. >> well, do you agree with senator levin that the courts may be responding to the partisan types of
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investigations, and therefore, benefitting more of the executive branch out of concern of the merits of the equities involved? because they get covered, not affected by the ben ghazi type hearings. >> i'm not sure it is a one for one. but the atmosphere is changing. if gearing to go to the courts for this, and traditionally, courts, if you look at the red scarier scare era cases, a lot of criticisms of overreach, the courts were jengenerally, they found a few ways off the ledge to relieve defendants of liability who they thought were mistreated, most of the time the court would say is it within congress' power of inquiry. if so, does the committee have jurisdiction. if so, we're not really listening to much else. i think if we're going to litigate against the executive
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branch like this in a different -- which is really different than private parties in terms of these fights to a degree, then you're geeing to get into the balancing between a, noy, congressional need and a confidentiality interest in the executive branch. someone will have to sort that out. and it is kind of a political thing to ask the court to do, to say, how serious is congress' need in this situation. how legitimate is this executive branch confidentiality and we are a third branch that's sort of calling into question the political motivations of these other two branches, so it is very -- it is very uncomfortable territory, but if we keep presenting them with that dichotomy for judicial resolution, they'll have oh get into the game of doing that, and the atmosphere will bleed into that analysis, i guess. >> it takes time to go to court. i mean, that's another factor. to enforce the subpoena, if this is the way we go now with the declaratory judgment in courts, it holds up a congressional
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investigation, significantly. it was two years, wasn't it, in fast and furious? >> longer than that. >> longer than that. and so there is the factor of time and the effect it has on the quality of the oversight. especially if you one, have to go to -- you push the subpoena. then you have to go to court. the court says document by document review. that is a long time. >> yeah it is much better if it is done through negotiation and that's been the tradition. and so the executive branch tries to accommodate requests. it will provide a briefing about a matter. if it doesn't -- if it isn't able to provide a line attorney or a line enforcement agent, it provides superiors who are political accountable. these mechanisms have worked for many years. lately, they haven't worked so well. >> did you provide a briefing in fast and furious? >> oh, sure. >> on the february 4th letter. >> many, many briefings of different kinds.
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>> were they true? >> oh, steve, steve, steve. steve has to move on. i have. we did our best, you know. really, i do think the documents reflect that. there were documents that eventually came out that showed high ranking justice department officials saying what's going on here, why don't we have the facts. let'ser t let's gather the facts. i don't think there is anything that will help that suggests that the department was engaged in some type of nefarious coverup. >> can i throw in one thing too about this, which is this idea of not all cldeliberative processes are real. every time two officials are
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talking about an issue, there is a denial. i think the other sort of political realities and and they're going to push toward disclosure. i did have particular concerns about the post february 4th documents, as you know, the meta investigation, getting into this sort of, what i would call the separation and separation of powers. the ability of the executive branch to formulate responses to congress, getting hampered. back in the bad old days, i have 13 binders full of subpoenas from the clinton administration, because of a rule i had as course transition counsel out. and you know, about 1,000, a high number of that 1,000 were from dan burton, predecessor on the committee. some of the 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 urks get another
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one. it was really designed to try to actually degrade the ability of the white house and executive branch agencies during that period were not in, noy, chairman chavitz have not come close to that behavior, ever, you know, wag really trying to get at degrading the executive branch ability to respond to the congressional requests themselves. so 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 goes to the question of the process of the issuance of subpoenas. it seems to me there is more situation growing where individual chairmen 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 of -- i mean, that was the mccarthy situation, where he had subpoenaed -- we had it in psi,
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and i loved seoole subpoena authority. i hate to give it up. but it was limited to psi, and maybe government oversight in the house. there were only two committees that had, the chair had sole subpoena authority. if it is expanded, you get into a situation where more and more members can just issue subpoenas willy-nilly. >> one thing i bet steve had a similar experience, and maybe ron has too. it wasn't just the chair sent a subpoena. it might have been my first letter that becomes the subpoena, right. if i sit down, 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 to the chair, the chair revises it, give the elected officials, sends it out and we start encountering resistance. chances are the subpoena will be a function of backing up the letter that i wrote the very first day i wrote an article
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about it. so the subpoena language that you end up litigating two years later in defense to a criminal charge of defense or declaratory action is the same language that i sat the first morning that i read an article about an issue that might be going on in the "washington post" or something. and so it gets baked into the cake so early, we don't have a function that sort of stops and has a real sort of evaluation of that language. so i probably have been guilty of writing something that i had -- 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, steph? >> y -- steve? >> they start at the beginning of an investigation. throughout any investigation, you're identifying priorities, subpoena involved, you don't take documents off the table, narrow the subpoena, but you do flag priorities. and if you know, as your interests hone in on certain
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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. >> what do you think the court of appeals is going to decide in the holder/lynch case? anybody have a conjecture on that? >> that's above my pay grade. >> i think the brief that's been filed by the house is quite good and interesting. it is worth people -- it is worth reading. >> i agree. >> i haven't seen the other side. and so court will look at both. for good background reading, i should also give andy a plug. he wrote an excellent article that i read in preparation for this panel and i urge those who are interested to find that article. who knows. i do think it is pretty clear, as i said, there is now a forum for judicial forum for resolving these disputes, but i think the notion that an executive branch
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agency needs some space under the heading of deliberative process to consider how to respond to oversight and how to do the work of the agency, has a lot of force, so i'm hopeful that the circuit court will uphold that portion of judge jackson's ruling. >> under judge jackson's ruling, does the president have to assert the deliberative process privilege or can the agency? >> under the president -- - under presidential executive orders, as a process matter, the president is the only person who holds executive privilege. so one of the reasons - >> deliberative process would be a set of executive privilege, so the president has to be the one to -- >> right, and that act itself, i think is a limiting function, right. getting the president, getting something in front of the president for signature, mean, you know, you can't help but feel failure if you're a lawyer for a president, and he has to
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assert executive privilege. like something went wrong, bau you don't want to have to waste his time on that, a dispute. so that is going to have a limiting effect. but it certainly the president's and the president's alone. and one of the reasons, some of you who work in congress, this raises confidentiality concerns, some language like that lo long-standing concerns, that language is the executive branch signal 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 preserve onto the president in his or her political judgment and legal judgment whether and when to assert executive privilege. >> that presents an interesting dynamic, the white house staff is uncomfortable.
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they're reluctant. it sounds nixononian. can't you work this out, the dynamics going on what i was working on. you try. but they're being unreasonable, he would 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 which is called the burwell case. have you been following that on the panel? that i in that situation, they're balking about turning over documents with the affordable care act. congress, the executive branch could spend $2.7 billion without an appropriation. the executive branch, the obama administration has said no, we're not going to give you
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anything on this, because it is in the congress says why, what is your excuse. and they say confidential privileges. what the heck are confidential privileges? this is a new term, which to me, it is like this little drum beat from meyers to holder, and now this burrel case, this concept of confidentiality privileges, they don't even name deliberative process or executive privilege. apparently, congress can't get an explanation as to what confidential privileges are. any thoughts on that? >> so obviously that's not going to be a line that could be held if congress moved to -- >> the courts. >> or even beyond. i mean even into a contempt phase. my understanding is that it is sort of an unremedied dispute that is now being discussed in the context of the standing litigation and the litigation over the substance of the appropriations issues in
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burwell. to me, i don't think that's something that is going to hold water, as a stand alone sort of principle of privilege, confidential privilege is a new line of privilege. i think for us to get clarity on that congress will have to move through its own resources to enforce its oversight prerogatives to get to the bottom of what that is, rather than have it be like a procedural fact in this other substantive litigation. i think they'll be able to blow past if the committee moves forward with contempt threats. >> i like that answer. i do want to take time to allow for questions from the audience. we have about 10 minutes left. so i'll go with you, and then you in the red shirt. >> hold one second. >> we're on c-span, so we need for you to use a microphone so
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the question can be heard by the audience. right here in this -- do you want to raise your hand so we can bring the mike to you? thank you. >> thank you very much. i had a question for dean weich. i worked for steve on fast and furious, and one of the things you talked about, an open investigation in the justice department, you don't want congress mucking aroundment the difference in fast and furious, the justice department was at the heart of the investigation. it wasn't like congress were looking at mexican drug cartels, but rather, the congress was looking at, number one, the justice department in approving this, so misconduct, if you will, or recklessness in the operation itself, and two, the obstruction element that involved the justice department after the february 4th letter.
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so wouldn't you say that those two factors militate against a position you said by making this case quite unusual, vis-a-vis. and also, on the benghazi you said was all political. but it unearthed the secret server. so it did have -- hillary clinton's public server, that kim from that committee. and "the new york times" wrote the article on it. i would just suggest that it is not just political, in spite of the comment you referenced. there was a purpose investigate what happened there. >> benghazi, i don't recall that's 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.
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without a lot of -- a lot to show about misconduct by the state department. as to fast and furious, i want to distinguish in the first part of the question, you talk about the role of main justice officials in approving a law enforcement operation. i don't think there was an effort to stop oversight or limit oversight in that regard. because that, you know, a fair question, if you believe the operation was flawed. how is it approved. but when you're talking about the post february 4th material, we're long past approval of searchwarrants, we're 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 drown,pre february 4th, post february 4th. the line moved a little bit, because there was a secretary letter in may, the department decided it was reasonable to
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explain how that letter was drafted, but ultimately, there was a press for documents that were really about the department considering how to respond to the oversight, and that just became -- you know, it is never ending. because then you could have oversight on the oversight on the oversight. so i stand my ground there, that i think at some point, it became ill legitimate. >> there was also, just my main focus was the separation of powers about the space in the post february 4th, but there was law enforcement equities related to, if i recall correctly, wire taps, maybe grand jury material and an open file related to the murder investigation of brian terry, who was killed, border patrol agent, as you all know, who cawas killed with one of th guns who walked, quote-unquote with this investigation. they had an ongoing law enforcement activities related to open files, related to the perpetrators of one of the
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murders that was related to the investigation. that was also sensitive, but no, sir at politically charged. >> the gentleman in the red shirt, here. could you identify yourself, please. >> i'm mike stern. my most relevant experience, used to be with the house counsel's office, prior to fast and furious. i would 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 a factual question i would like
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to ask, whether in the fast and furious case, the president actually personally signed anything, my recollection is the attorney general wrote a letter 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 is authorized me to invoke executive privilege, but the president never had, i mean, 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. it seems to me once the president does that, then the dispute is already sufficiently political, if you want to use that term. that it is going to be very difficult for the courts to a adjudicate it. and from congress' point of view, from the point of view i tend to take, the judges are all appointed by the president, many of them are appointmented by the
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current president, even if they weren't, they tend to be sympathetic to executive branch way of looking at things. as professor wright said, the difference between the purely legal versus the negotiation and so for the, 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 -- he can't keep just dragging on. but if he chooses not to invoke executive privilege, then you have a pure legal dispute that's basically a technical issue, whether the documents being requested are responsive to the subpoena, and maybe the jurisdiction of the committee, but you don't have any of these broader constitutional issues or interests balancing involved. those kind of disputes go to court, if the president chooses to accept the political cost of personally invoking the privilege, then you go to the other remedies that congress
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has, such as, you know, the appropriations power or whatever, or you know, up to impeachment in the -- >> do you have a question? >> the reaction to that suggestion. >> was that -- do you want to hear from me? you know, i am 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 to negotiate. i think the best results for these things are most often what, you know, steve says is happening a lot. i agree with that. actual negotiated results, where there is some sort of information that may, you know, commit me may revise its request or honor a request or honor a redaction or something else that the sfraadministration feels strongly about. so i would hate to see it every time someone sort of first blush
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says i'm concerned, and then they're going to court. i think that the -- having the president get involved is a -- an important limiting function. that's going to be the big limiting factor. you're going to have to walk into the court if you're at hhs, walk into the 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. i think that's an important part of this. i think it is also important for constitutional purposes to make sure that dispute, if it goes to the limit, resides in the president themselves, who has the democratic legitimamacy. >> is executive privilege common
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law based and if it is, then why is it a subset of executive privilege? we can hold that, but isn't that an important legal question. >> danielle brian. i want to push back a little bit and ask on the question of asserting that agencies should preserve this right to have this conversation. you're suggesting the reason you're comfortable with that at d.o.j., because you see people were well meaning. let's assume that's not true, and bad actors, there is a cover-up. how do you preserve the right of the congress to find that? given sort of the stance you're taking. >> sometimes it will come out through whistleblowers, the initial oversight into the law enforcement operation of fast and furious was largely because of whistleblowers at the bureau of alcohol, tobacco and firearms. i think congress can certainly
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call hearings and ask politically accountable officials to describe their thinking and they can answer for themselves. but you know, trying to get at the documents that are themselves literally deliberative, seems to me dangerous. there may be occasions where that will have occur, but as a routine matter, congress should avoid that. again, it is because the shoe will be on the other foot. there will be people who are right now initiating oversight requests who will be sitting in agencies responding to oversight requests. we need to have principles that are applicable across the board. >> we have time for one more question. and then we need to break for ten minutes. >> my name is richard golden. professor wright, there is an absolute duty on part of an attorney to preserve a client's
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confidences. faced with the congressional subpoena, how far must the attorney go to discharge his duty, must he be willing to go to jail? >> i would say under the right circumstances, yes, they should -- the attorney should be willing to go to jail. i know the d.c. bar has an opinion that i'm not -- i don't have it at my fingertips. they tried to grapple with this issue, because there have been situations where congress was seeking very clearly attorney/client privilege under normal common law roots. and you know, congress has taken the position that it has to comply with the ruling of the chair. well, if the chair is the one who authorized the subpoena, the
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channels -- chances are minimal. if you are really taking that responsibility seriously, you might have to walk the plank for your client. that's my, you know, obviously personal decision. >> on that note -- so we'll -- we'll adjourn for recess i should say for ten minutes. you can go down, there is coffee on the ninth floor. the pew center ask you not use your cellphones on the tenth floor. you can use them on the ninth floor. we'll reconvene in 10 or 15 minutes here and hear the second panel on how do we go forward from what we now know where we are. thank you so much. [ applause ]
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hi, everybody. i'm jocelyn benson. i'm the former dean of wayne state law school and now the director of the levin senator at wayne law. also co professor on this subject. i'm pleased to be the moderator of this important panel that is going to talk about the ways to reform and improve the current system, and we'll include an historical analysis how we got to where we are, provided by our great panelists, beginning with josh chaffetz, professor of law at law school, research focusing on constitutional law, legislation and legislative procedure, and his second book,
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"congress constitution and the separation of powers" will be published by yale university press next spring. he has published widely and popular press and holds a law degree from oxford. after josh, we'll hear from david hayes, who is currently a distinguished visiting lecturer at stanford and consulting professor add stanford's wood institute. prior to that, served as deputy secretary and chief operating officer at the department of the interior in both the clin tocli obama administrations. before there, he worked in the private sector and chaired the environment. former chairman of the board visitors for stanford law school and the advice chair of the board of american rivers. and he also formerly served as
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the senior fellow for the hewlett, and graduated from university of notre dame. after david, we'll hear from -- we moved around a little bit. actually, before we hear from david, we'll hear from kerry kircher. he served for more than 20 years in the house of representatives. 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 concern the relations of in lines of separation between article one and article two, and in particular, he was the lead counsel in the holder litigation and worked extensively on the meyers/bolton case. we've talked about a lot today. he graduated from stanford university and the university of
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michigan law school and also holds an llm from the university of london. kerry will go second. and then david. finally, we'll hear from mort rosenberg, who is a specialist with the american law division from 1972 to 2008. he specialized in areas of constitutional law, administrative law and process, congressional practice and procedure, labor law and problems raised. author of a number of journal articles on separation of powers and administrative law and has testified numerous times before congressional committee on these issues. he retired from crs, and has undertaken consulting projects, including engagement to research and write a monograph on the investigative oversight entitled when congress comes calling, primer on principles and pragmatics of legislative inquiry, publicized in 2009,
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students in our class will be familiar with mr. rosenberg, because we've assigned his book as required reading for the class. with that, i would like to start with josh and each panelist will provide about five or ten minutes overview of their perspective on this issue of the current system, whether it is working and whether it needs reform. and after that, we're going to open it up for questions in an interactive discussion. >> thank you so much, jocelyn. thank you to the organizers and thanks to awful you fll of you g up. in the previous panel, andy wright said something 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, mars and venou v venus. i want to frame the question for this panel, something like how do, you know what, do we do when the mars based community and venus can't come to an agreement over which perspective to adopt
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in any particular circumstance. what do we do in that situation. as you may have noticed from jocelyn introductions, i'm the only one speaking without significant government service. programs 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 controversies we're seeing today. we've talked about the u.s. attorney's controversy giving rise to the meyers case. 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 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. after the supreme court up40eho
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it, 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 man, essentially responds with a lengthy protest to the senate. he essentially says, mind your own business. the only way the senate can interfere with my constitutional prerogatives is through the power of impeachment. impeach me or shut up, is what he essentially says. for people who know the history of contempt power, breach of privilege and contempt are basically the same thing.
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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. they were enforced in the same ways. so the fact that this 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, is meant to make this much 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 finding 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,
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which would shortly come to be called the whigs. the calling on this long tradition of this legislative mechanism was 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 basically 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. as acting secretary of the treasury, he was the one responsible for withdrawing the funds from 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
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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 simply 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 of things have changed a little bit. the jacksonian forces are ascend ant against the whigs, and tawny is confirmed with results that many of us think are perhaps less than ideal.
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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 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
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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 sort of legalistic and 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 civil war, got into a spat with an increasingly important member of the house. would go on to a long career in the senate after that. 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.
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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. again, we've seen sort of using the personnel power by refusing to confirm. we've seen 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. now, 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 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
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district of columbia and the d.c. circuit say, sorry, you 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. and we can't simply act as if the courts are some neutral arbit arbiter. they're not. they're political actors with interests as well. in watergate the courts take a 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.
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what is the effect of this? it immediately stymies the senate investigation. what it does more long term is the whole suite of cases rising out of watergate. it affects generally 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 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
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were to use its own mechanisms in an attempt to get this information. so 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 of course the house investigation into watergate was fathers and mothersly bipartisan, and yet 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 more inspiration from 19th century congresses than from
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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' ability to legislate and to congress' 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 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. i think what i want to just mention is what do we do when the two branches clash with each
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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, the judiciary committee filed suit in march of 2008. the judge in that case promptly agreed that he would consider the jurs prudential issues and
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the merits at 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 very 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 court's first decisions was the merits in the jurisprudential issues would not be briefed up simultaneously, we would deal with jurisprudential
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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 -- roughly by 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 legal issues in the case. it did recognize in a way the existence of a deliberative process issue. but there were a number of other legal issues that were briefed up in both sides' motions, and that august 2014 order simply
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did not address those issues. it then went into a period of 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, cl -- which again resolves the case. but again, it punts on a number of major league issues that had been framed up in the course of the case. it's a difference of five months in meyers and bolton and three and a half 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.
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congress does not function on a court schedule but function on a basically two-year election cycle. it's very hard to get anything down 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 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 then dismissed after the
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inauguration of president obama in 2009. so for all those reasons, i think 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 larger point is, and this will pick up on some of the things 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 oversight matters. it needs to get serious about using those tools. i'm talking principally in the house about the appropriations process and the authorization process and in the senate obviously the addition of the advise and consent power. if there's one thing the executive branch understands, it's money.
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so both the house and the senate have the ability to both 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 sometime 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 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
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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. 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
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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 possible the disposition of any such matter. it seems to me that congress, in recognition of the fundamental 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
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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 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 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
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chairman chaffetz 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 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
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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. 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
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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 by partisanship, in contexts where 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. and i think 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 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
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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 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 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
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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 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.
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we have a huge oil spill occurring in the summer of 2010. the interior department is obviously in the middle of it, we're 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 the problem and are convinced that we're safe. secretary salazar ordered a 30-day report. this is literally while the oil is 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 drilling. the independent experts give a great input. it's clear that we need to do some things before we can continue the drilling.
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the president later, in part based on this report, says we're going to do a six-month moratorium before we do drilling again. now 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. two and a half years later that investigation continued as to whether there was a white house interference in this decision on this moratorium. now, meanwhile, there is a final decision on a moratorium. that's taken to the courts. the courts ultimately uphold that.


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