Even before Espy , courts and committees consistently countered agency attempts to establish a privilege that thwarted congressional oversight efforts. Congress has vastly greater powers of investigation than those of citizen FOIA requesters. Circuit in Murphy v. The disquieting ruling in the Fast and Furious litigation and its immediate and long-range disruptive consequences for effective investigate oversight demands closer, albeit somewhat repetitive, examination.
The binding law with respect to executive privilege in the D. Those decisions made an unequivocal distinction between the constitutionally-based presidential communications privilege and the common law deliberative process privilege, which the presiding judge in COGR v. Lynch ignored. While both have common general goals—to protect in some degree sensitive internal executive deliberations—and both are qualified privileges, the resemblance for purposes of legal significance and impact ends there.
Historically, Congress has been recognized as the initial determiner of its own institutional rights and prerogatives, particularly for matters directly or indirectly related to oversight. Since the s—with the express acquiescence of the Justice Department—all subpoena demands by the Justice Department to members or component entities must first be processed and reviewed by House and Senate leadership and counsel.
The court emphasized that a critical purpose of the clause is to prevent intrusions into the legislative process. Circuit Court of Appeals. Private parties and agencies often assert that yielding to committee demands for material arguably covered by the attorney- client, work-product, or deliberative process privileges will waive those privileges in other forums.
Applicable case law, however, is to the contrary. When a congressional committee compels the production of a privileged communication through a properly issued subpoena, it does not prevent the assertion of the privilege elsewhere, 95 as long as it is shown that the compulsion was in fact resisted. The history of congressional investigations of DOJ covers a broad scope of congressional inquiries, including committee requests for:. In response, congressional inquiries into Justice Department operations have been frequently met with claims that such inquiries:.
As a result, the Justice Department has often refused to supply internal documents or testimony sought by jurisdictional committees. These lessons, outlined in detail below, should guide future committees in determining whether to undertake similar probes of DOJ or other executive agencies, as well as inform them about the scope and limits of their investigative prerogatives and the practical problems of such undertakings.
The outcomes of these inquiries provide formidable practice precedents which will allow committees to effectively engage uncooperative agencies. The Congressional Research Service review of oversight of the Justice Department over the last 95 years is a particularly instructive tool. This requirement to cooperate in investigations has applied even when there is ongoing or expected litigation.
A number of these investigations spawned seminal Supreme Court rulings that today provide the foundation for the broad congressional power of inquiry. All were contentious and involved Department claims that committee demands for agency documents and testimony were precluded either on the basis of constitutional or common law privilege or policy. To obtain documents and testimony, an inquiring committee need only show that the information sought is:.
Despite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed.
Indeed, the case law is quite to the contrary. During the inquiries covered by the CRS compilation, committees sought and obtained a wide variety of evidence, including:.
Also, those investigations encompassed virtually every component of DOJ, including its sensitive Public Integrity Section and its Office of Professional Responsibility. They also covered all levels of officials and employees in Main Justice and field offices, from attorneys general down to subordinate line personnel. There have been only four formal presidential assertions that executive privilege required withholding internal DOJ documents sought by a congressional subpoena.
Two of those claims were ultimately abandoned by the president; one was not acted on further by a House committee before the end of the th Congress; and one is pending resolution before an appeals court. The consequences of these historic inquiries at times have been profound and far-reaching. They have led directly to important legislation and the promulgation of internal administrative rules to remedy problems discovered and to the resignations Harry M.
Daugherty, J. Howard McGrath, Alberto R. Gonzales and convictions Richard Kleindienst, John Mitchell of five attorneys general. Despite the broad extent of their constitutional power to access deliberative processes, committees have generally limited themselves due to prudential considerations. Congressional committees typically weigh legislative need, public policy, and the statutory duty of committees to conduct oversight, against the potential burdens imposed on an agency if deliberative process matter is publicly disclosed.
Over time, Congress has been generally faithful to these prudential considerations. The reasons advanced by the executive branch for declining to provide information to Congress about open and closed civil and criminal proceedings have included:. Historically, DOJ has continued to assert such objections.
More recently, during the George W. Thus, the executive branch has resisted congressional efforts to seek testimony by lower-level officers or employees without presidential authorization.
Instead, the courts have granted additional time or a change of location for a trial to deal with the publicity problem. Thus, the courts have recognized that the cases pose a choice for the Congress: congressionally generated publicity may result in harming the prosecutorial effort of the executive; but access to information under secure conditions can fulfill the congressional power of investigation. They make that decision. It is not a judicial decision, or a legal decision, but a political decision of the highest importance.
However, if this concern were permitted to block congressional inquiries, this would prevent Congress from performing a major portion of its constitutionally mandated oversight. Congressional inquiries into foreign affairs and military matters call for information on strategy and assessment of weaknesses in national security matters; congressional probes into waste, fraud, and inefficiency in domestic operations call for information on strategy and weaknesses.
For Congress to forego such inquiries would be an abandonment of its oversight duties. The best way to correct either bad law or bad administration is to closely examine the methods and strategies that led to the mistakes. The many examples of congressional probes recounted in the CRS compilation demonstrate how important and effective proper congressional oversight can be. The DOJ Office of Professional Responsibility OPR , which monitors the conduct of Department personnel, is notable for its revelations of a number of sensitive, previously undisclosed internal investigations in the face of extraordinary agency resistance.
The subcommittee, chaired by Senator Arlen Specter, held 14 days of hearings in which it heard testimony from 62 witnesses, including DOJ, FBI, and Treasury officials, line attorneys and agents, obtained various internal reports from these agencies, and issued a final report.
The most important of these documents was the report of the Ruby Ridge Task Force. Marshals, and the U. The task force recommended that the matter be referred to a prosecutorial component of the department for a determination as to whether a criminal investigation was appropriate. OPR reviewed the task force report and transmitted the report to the deputy attorney general with a memorandum that dissented from the recommendation that the shooting of Vicky Weaver by the HRT member be reviewed for prosecutorial merit.
The deputy attorney general referred the task force recommendations for prosecutorial review to the criminal section of the civil rights division, which concluded that there was no basis for criminal prosecution. In the past, the executive frequently has made the broad claim that prosecution is an inherently executive function and that congressional access to information related to the exercise of that function is thereby limited.
Under this view, matters of prosecutorial discretion are off-limits to congressional inquiry, and access demands are viewed as interfering with the discretion traditionally enjoyed by the prosecutor. However, court decisions have not upheld this view and have permitted congressional inquiries into prosecutorial decisions. Morrison v.
The Supreme Court has rejected the notion that prosecutorial discretion in criminal matters is an inherent or core executive function.
In Morrison v. In United States ex rel Kelly v. The Boeing Co. Prosecution is not a core or exclusive function of the executive, but oversight is a constitutionally mandated function of Congress; therefore, a claim of executive privilege to protect the ability to prosecute a case would likely fail. Additionally, congressional oversight and access to documents and testimony, unlike the action of a court, cannot stop a prosecution or set limits on the management of a particular case.
Access to information by itself would not seem to disturb the authority and discretion of the executive branch to decide whether to prosecute a case. Given the legitimacy of congressional oversight of the law enforcement agencies of government, and the need for access to information pursuant to such activities, a claim of prosecutorial discretion by itself is unlikely to defeat a congressional need for information. The congressional action itself does not and cannot dictate prosecutorial policy or decisions in particular cases.
Judicial rulings over the past two decades in other contexts have rejected various assertions of presidential privilege that might be raised in attempts to deny congressional access to agency information.
Olson casts significant doubt on whether prosecutorial discretion is a core presidential power, a doubt that has been magnified by the appellate court rulings in Espy and Judicial Watch. Those decisions indicate that core powers include only decisions that the president alone can make under the Constitution: appointment and removal, pardoning, receiving ambassadors and other public ministers, negotiating treaties, and exercising powers as commander in chief. As discussed in Chapter 5, Espy strongly hinted, and Judicial Watch made clear, that the protection of the presidential communications privilege extends only to the boundaries of the White House and the executive office complex and not to the departments and agencies.
Court of Appeals for the D. Circuit, not decisions by the Supreme Court. However, they provide helpful guidance, especially since the D. Circuit is the court most likely to hear and rule on future claims of presidential privilege. The fact that presidential claims of privilege are often unsuccessful does not mean that DOJ policy arguments in particular situations should be immediately dismissed.
A review of the historical record of congressional inquiries and experiences with committee investigations of DOJ reveals that committees normally have been restrained by prudential considerations. Members of Congress typically weigh the considerations of legislative need, public policy, and the statutory oversight duties of congressional committees against the potential burdens and harms that may be imposed on the agency if deliberative process matter is publicly disclosed.
Under the appropriate circumstances, committees fully and properly have exercised their well-established congressional oversight authority.
Two early instances in which committees used the contempt power to successfully overcome agency claims that general confidentiality provisions in their enabling legislation prohibited disclosures to Congress are important precedents.
The first involved a investigation by the Subcommittee on Oversight and Investigations of the then-House Interstate and Foreign Commerce Committee, chaired by Rep.
John Moss, seeking to learn the degree to which Arab countries had asked U. It requested the Commerce Department to disclose to it all boycott requests filed by U. Secretary Rogers C. Morton refused on the ground that a broad confidentiality provision of the act, which did not expressly mention Congress, precluded such disclosure.
The subcommittee subpoenaed the documents but the secretary again refused to comply and was supported by an attorney general opinion that declared that the confidentiality provision did apply to Congress. The subcommittee voted the secretary in contempt after rejecting his proffer of information reflecting the number of such reports filed and other statistical information, but without revealing the names of the companies.
The subcommittee had noted that there were at least confidentiality provisions in various laws and that acceptance of their applicability to Congress would substantially undermine legislative oversight. The day prior to a scheduled vote by the full committee on contempt an agreement was reached under which the chairman of the subcommittee agreed to receive the documents in executive session and not make them public.
The second instance occurred during a investigation by the same House subcommittee which was dealing with allegations that a number of drug companies put their trade names on drugs actually manufactured by generic drug companies. The subcommittee requested pertinent company documents held by the Food and Drug Administration FDA that the companies were required to file. The secretary, supported by another attorney general opinion, refused to comply, again on the ground that a general confidentiality provision in its enabling legislation precluded disclosure to Congress.
The subcommittee rejected the contention and voted to cite the secretary for contempt. The matter was resolved by the release of the documents prior to full committee consideration. Agencies, and private party submitters of sensitive information to agencies, often claim that acquiescing in a committee demand will waive agency rights under exemption 5 of the Freedom of Information Act FOIA as well as other privileges that they might assert in any subsequent court litigation.
Exemption 5 of FOIA covers all the privileges against disclosure that would be provided under court rules governing civil litigation. While agencies have a legitimate interest in preserving these privileges, there should be no fear of waiver. In Rockwell International Corp.
Department of Justice , the court acknowledged that the existence of statutory obligations to comply with congressional information requests is sufficient to demonstrate that compliance was not voluntary. Under those circumstances, we find no Exemption 5 waiver. It is also well established that when the production of privileged communications is compelled, either by a court or a congressional committee, compliance with the order does not waive the applicable privilege in other litigation, as long as it is demonstrated that the compulsion was resisted.
Two court rulings involving the House Energy and Commerce Committee confirm that turning over documents to a committee does not necessarily waive claims of privilege. However, the rulings also highlight the importance of sufficiently challenging a subpoena to demonstrate that the turnover was, indeed, involuntary.
Both courts agreed that there would be no waiver if the document turnover had been involuntary. Instead a party must risk standing in contempt of Congress. The public release of proprietary, trade secret or other sensitive information, either through inclusion in a hearing record or via the Congressional Record, is protected by the Speech or Debate Clause. Moreover, because such information does not normally include classified material, it is unlikely that release or publication would be deemed to violate the ethics rules of the House.
The key consideration is such cases appears to be the act, not the actor. Agencies often contend that the Privacy Act prevents them from disclosing certain information to Congress in response to an official congressional inquiry. However, a review of the relevant statutory provisions, judicial interpretations, and congressional practice indicates that there is no such barrier. The Privacy Act safeguards individuals against invasions of personal privacy by requiring government agencies to maintain accurate records and by providing individuals with more control over the gathering, dissemination, and accuracy of government information about themselves.
To secure this goal, the act prohibits an agency from disclosing information in its files to any person or to another agency without the prior written consent of the individual to whom the information pertains.
Act exception, the Department was permitted to disclose to Congress details from nine U. There is some authority for the proposition that Rule 6 e , promulgated as an exercise of congressionally delegated authority and reflecting pre-existing practices, is not intended to address disclosures to Congress.
But not all matters presented to a grand jury are covered by the secrecy rule. The case law indicates that Rule 6 e would not prevent disclosure to Congress of the following types of documents:. Investigatory committees often reach a point where it becomes vital to interview or call as witnesses subordinate personnel who have unique, hands-on knowledge of events or operational details that are the subject of legislative scrutiny. Agency refusals of requests to provide particular employees typically rest on the grounds that:.
Such claims are made even in the face of subpoenas to the requested agency witnesses, or to a head of the agency to supply the named witnesses. At that point, the identified witness is placed between a rock and a hard place: in a test of wills between the committee and the agency.
Allowing the designated agency employees to appear but only if accompanied by an agency attorney is a common alternative offered by agencies. If the requesting committee has jurisdiction over the agency, and has the authority to initiate and conduct investigations and issue subpoenas, the witness must be allowed to appear.
An agency has no authority to determine who from the agency shall or shall not appear before a requesting committee or to set the terms and conditions of such appearances. Whether a witness access dispute ratchets up to a full-blown interbranch controversy depends on political factors. Rocky Flats nuclear weapons facility. The subcommittee held ten days of hearings, seven in executive session, in which it took testimony from the U. It also received voluminous FBI field investigative reports and interview summaries, and documents submitted to the grand jury not subject to Rule 6 e.
At one point in the proceedings, all the witnesses who were under subpoena, upon written instructions from the acting assistant attorney general for the Criminal Division of the Justice Department, refused to answer questions concerning internal deliberations about the investigation and prosecution of Rockwell, the DOE, and their employees.
The subcommittee members unanimously authorized the chairperson to send a letter to President Bush requesting that he either personally assert executive privilege as the basis for directing the witnesses to withhold the information or direct DOJ to retract its instructions to the witnesses. The president took neither course and DOJ subsequently reiterated its position that the matter sought would chill department personnel. The subcommittee then moved to hold one of the witnesses in contempt of Congress.
Key to the success of the investigating committee was the support of the chairperson by the ranking minority member throughout the proceeding and the perception that there were sufficient votes on the full committee for a contempt citation. Media attention to the dispute also helped, particularly coverage of grand jury members who complained about not being allowed to hand up indictments of Energy Department and Rockwell officials.
Often as an alternative, an agency may offer to allow a subordinate official or employee to be interviewed or to testify if the witness is accompanied by agency counsel. Under certain circumstances, however, this may raise conflict-of-interest problems, particularly where the investigatory hearing involves issues of agency corruption, maladministration, abuse, or waste. In such instances, the agency attorney or other official may have a conflict of interest in representing both the interests of the employee-witness and those of the agency.
Nixon , which came about when he claimed executive privilege during the Watergate investigation to get out of a grand jury subpoena and avoid handing over recordings of his conversations in the White House. What is the limit to its use and how will it be enforced are questions that continue to be debated.
Many scholars worried about that problem as soon as U. So presidents have been very reluctant to assert executive privilege, and then the courts have tried to duck the issue, and they can.
But the way things are going now, it looks not likely to be duckable — although you never know. Write to Olivia B. Waxman at olivia. Here's the History of That Presidential Power. By Olivia B. Related Stories. Please help us improve our site!
No thank you. Executive Privilege Primary tabs Executive privilege is the power of the President and other officials in the executive branch to withhold certain forms of confidential communication from the courts and the legislative branch.
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