Fight It with FOIA: How Congress Can Respond to White House Attempts to Block Congressional Oversight

 

The Trump White House took another step last week to weaken the checks and balances at the center of our constitutional system.  According to Politico, President Donald Trump’s “White House is telling federal agencies to blow off Democratic lawmakers’ oversight requests.”  As Politico reported, “a White House lawyer told agencies not to cooperate with such requests from Democrats, according to Republican sources inside and outside the administration.”

Politico’s reporting was reinforced by the release of a memorandum from the Trump Justice Department’s Office of Legal Counsel to the White House Counsel entitled “Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch.”  That memorandum states that “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”

This is a brazen statement and one for which the OLC memo lacks support.  While it is true that the long-held view of the Executive Branch has been that (absent some other statute or regulation) only Committee Chairmen are legally entitled to and so may compel information, that is not the same as saying that ranking members or individual members may not conduct oversight at all.

The Justice Department’s assertion that ranking members “do not have authority to conduct oversight” marks a sharp break from tradition, and represents an assault on the powers of Congress.  Ranking members, and other individual senators and congressmen, have long conducted executive branch oversight.  According to Congress’ own oversight manual: “The role of Members of the minority in the investigatory oversight process is governed by the rules of each house and its committees.”  For instance, the Senate Permanent Subcommittee on Investigations permits the ranking member to initiate inquiries.  The “Rule of Seven” and “Rule of Five” statute, 5 U.S.C § 2954, also empowers the minority members of the primary House and Senate government operations oversight committees to require information from the executive branch, although it has encountered some judicial enforcement challenges.  

As ranking member of the Judiciary Committee, Senator Charles Grassley (R-Iowa) hired a large oversight staff and conducted extremely active oversight of the Executive Branch during the Obama administration.  We doubt Sen. Grassley would agree that he lacked authority to conduct oversight — he has previously, for example, written to agencies saying that as “a senior member of the United States Senate and the Ranking Member” of a Committee, he “has a duty under the Constitution to conduct oversight into the actions of executive branch agencies.”  Individual members of Congress have ample reasons to be interested in the functioning of the federal agencies they have authorized, the performance of the political appointees they have confirmed, the enforcement of the laws they have enacted, and the expenditure of the funds they have appropriated.  And to perform their legislative duties they should of course conduct oversight over the federal government. After all, each of them represents hundreds of thousands, if not millions, of American citizens. Saying those members cannot conduct any oversight is akin to saying those American citizens are denied effective representation in holding their government to account.

The OLC memo goes on to state that “the Executive Branch has historically exercised its discretion in determining whether and how to respond [to requests from non-Chairmen],” and has often only provided information that would be available through the Freedom of Information Act.  Then, the memo delineates even more restrictions:  “Whether it is appropriate to respond to requests from individual members will depend on the circumstances. In general, agencies have provided information only when doing so would not be overly burdensome and would not interfere with their ability to respond in a timely manner to duly authorized oversight requests.”  In short, the OLC memo — combined with the directive from the White House to ignore requests other than those from Republican committee chairmen — indicates that this administration believes members of Congress asking for information about federal agencies are entitled to even less than members of the public.

Why? Because FOIA does not permit agencies to refuse open records requests just because doing so might be burdensome or get in the way of other obligations.  And critically, FOIA comes with something that the OLC opinion makes clear is not available to individual or ranking members of Congress who submit oversight requests: a backstop of judicial enforcement.  If an agency does not promptly respond to a FOIA request, the requester may file suit within 20 business days to compel a response.  Moreover, in response to a FOIA request, an agency must demonstrate that it has conducted a reasonable search and may not withhold documents unless they fit within certain well-delineated exemptions.  The Trump administration has taken the view that it will not provide these avenues to members of Congress or even ranking members of committees with jurisdiction over federal agencies.

So what can lawmakers do to respond to this aggressive action by the Trump White House to undermine the power of Congress as a check on the Executive Branch?  To begin, this is an instance where all members of Congress, majority and minority, should join together to protect the prerogatives of the institution.  They should do so for both institutional and selfish reasons.  Their loyalty to the institution should not be eclipsed by loyalty to party, as the Framers of the Constitution envisioned in creating a system of checks and balances.  Moreover, today’s committee chairmen could easily become tomorrow’s ranking members — and from a selfish perspective they might wish to avoid a precedent that any future administration could use against them.  So committee chairmen might think about defending their institutional and personal interests by signing onto ranking member requests and agreeing to use the full legal authority of the committees to compel responses.

But we are not naive about the partisan framework in which the Trump Administration has adopted this position.  The actions of people like Rep. Devin Nunes, the Republican chairman of the House Intelligence Committee, in running interference against legitimate investigations suggest Congress may be unlikely to subject the administration to meaningful oversight.

With that in mind, there is one card still available to individual members of Congress.  Alongside sending oversight letters to the federal agencies, they should submit parallel requests to the agencies under FOIA.  Then, at least, the Trump administration will have to respond whether or not it thinks it is a burden or it has some other requests from committee chairmen.  And if the agency does not respond in a timely fashion, does not demonstrate that it has conducted a reasonable search, and does not justify any documents it has withheld, then lawmakers can bring suit in federal court to enforce their requests.

As DOJ’s website acknowledges, there is precedent for courts allowing Congress members to file FOIA suits, and in some ways there is even clearer statutory and constitutional authority for courts to enforce FOIA lawsuits than there is for courts to enforce congressional committee oversight subpoenas.  While congressional offices may not have the legal resources on staff to fully litigate FOIA suits, we imagine there are ample non-governmental organizations and members of the private bar who would be happy to represent members of Congress at low cost — or to submit and enforce parallel FOIA requests on their own.

To be sure, FOIA is not as powerful as congressional oversight conducted through committees — the FOIA exemptions are broader than the privileges the Executive Branch can raise against committees, and the White House itself is not subject to FOIA.  But given the Trump White House’s directive to stonewall standard requests made by ranking members and others in Congress, filing parallel FOIA suits alongside the letters they send to agencies at least gives them a chance.

The Trump administration has proven that whenever it encounters a check on its power, it will seek to dismantle or simply ignore it.  Members of Congress, outside organizations, and all citizens will have to use all of the tools at our disposal to preserve and reinforce those checks.

Image: Getty

 

About the Author(s)

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).

Justin Florence

Legal Director of Protect Democracy, Former Associate Counsel to the President in the White House Counsel's Office, Former Senior Counsel to Sen. Sheldon Whitehouse on the staff of the U.S. Senate Judiciary Committee Follow Protect Democracy on Twitter (@protctdemocracy).