The Missing Khashoggi Report: A President Can’t Choose to “Decline” His Constitutional Role to Accommodate Congressional Oversight

It has now been 21 days and counting since President Trump blew the deadline for compliance with the reporting provisions of the Global Magnitsky Act with respect to the killing of journalist Jamal Khashoggi. The Act requires, when the Chairperson and Ranking member of a relevant committee so request, that the Administration submit a determination and report on the individuals mentioned in the request as to whether they are responsible for torture, extrajudicial killing, or other gross human rights violations committed against victims who sought to expose corruption or other illegality by foreign government officials or in the exercise of the freedoms of expression, religion or other internationally recognized human rights. It also requires a report on whether the person in the request has been sanctioned, or whether the President intends to impose sanctions. The statute is clear on its face: “The President shall” make the determination and submit the report within 120 days of a congressional demand.

In defiance of Congress and the law, and in the face of bipartisan furor, the White House stated: “the president maintains his discretion to decline to act on congressional committee requests when appropriate.” While all administrations zealously guard their constitutional and foreign affairs prerogatives, this response – when coupled with the President’s recent State of the Union remarks on congressional investigations – reveals a gross misunderstanding of the proper role of congressional oversight and a blatant disregard for the Magnitsky Act.

The determinations and reporting required under the Magnitsky Act are a manifestation of Congress’s oversight authority that provide a necessary check on Presidential power and maintain parity between co-equal branches of government. Indeed, it was the Reagan Administration’s stated policy to “comply with Congressional requests for information to the fullest extent consistent with the constitutional and statutory obligations of the Executive Branch.”

The current President, however, has declared that, “If there is going to be peace and legislation, there cannot be war and investigation. It just doesn’t work that way.”

So, in what way should oversight work, even in the absence of a statute, according to congressional oversight experts?

One long-serving Senator recently remarked, “oversight brings transparency, and transparency brings accountability. And, the opposite is true. Shutting down oversight requests doesn’t drain the swamp, Mr. President. It floods the swamp.” Another former Chairman of the House Oversight Committee remarked that it was high-time for aggressive and substantive scrutiny of the administration that had been previously lacking “under one-party rule in Washington … controlling both chambers of Congress and the executive branch, Congress’ chief watchdog committee has failed repeatedly to conduct meaningful and sustained investigations and hold federal executives and bureaucrats responsible for the unprecedented levels of waste, fraud, and abuse ….” Yet another lawmaker recently stated, “We are the greatest experiment in self-governance the world has ever known. And part of that self-governance includes self-scrutiny – even of the highest officials. Our country is strong enough to handle the truth. And our fellow citizens expect us to pursue the truth, wherever the facts take us.”

These are not the remarks of overzealous Democratic lawmakers. Rather, they reflect the statements (respectively) of long-serving Iowa Republican Senator Chuck Grassley, and former House GOP Oversight Committee Chairmen Darrell Issa and Trey Gowdy.

Oversight and the Accommodations Process

Following these guiding principles, previous administrations have tangled with the Hill – quite publicly in many cases – but have long recognized their obligation to engage in the complex dance that is the oversight accommodations process. As the Justice Department under Attorney General Eric Holder noted, that process, played out between two co-equal branches of government, is political, often disorderly, and contentious, but ultimately results in compromise by both branches.

Once and current Attorney General William Barr described the accommodations process as a series of escalating steps, with Congress starting by requesting information and the Executive branch responding but acknowledging that in certain circumstances the administration may resist providing some or all of the information “because of the burden of compliance or because the information is of a sensitive nature.” Occasionally, Barr, then serving as head of the Office of Legal Counsel at DOJ noted, “the process breaks down and a subpoena may be issued.” That, however, does not signal the end of the accommodations process, but rather, another step in the give-and-take between the branches.

How the executive branch accommodates the legitimate needs of the legislature (whether pursuant to a statute or under a subpoena or not) can be varied in form – from testifying at hearings, to providing classified briefings, or showing documents in camera. Regardless of the form, the administration can, and routinely does, attempt to satisfy the Hill and simultaneously safeguard its own equities. Those equities may be implicated if providing the information would, for example, compromise national security, endanger law enforcement operations, or reveal internal deliberations that could chill the ability of government officials to argue, debate, and provide candid advice in the furtherance of policymaking and other crucial government activities.

How Should the Accommodation Process Work in the Khashoggi Case?

In this case, the White House may disagree with Congress on the nation’s foreign policy direction with respect to Saudi Arabia, and the executive may claim plenary authority in this realm. It may also have constitutional objections to the Magnitsky Act provision at issue (as President Obama did, but on which reasonable minds may differ, as Ryan Goodman explored with experts here). But that does not mean they cannot, for instance, provide factual information in a closed setting so that Congress may responsibly legislate on this matter. (Indeed, CIA Director Gina Haspel already provided a classified briefing to Senators on the issue last December.) And here, where a statute specifically requires reporting to Congress, the obligation of the executive branch to engage in the accommodations process should be heightened.

The legislative branch, after all, requires such information to responsibly enact laws, appropriate funds, and ensure the government spends taxpayer funds wisely.  As the Reagan-era Department of Justice opined, “The accommodation required is not simply an exchange of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch.”

Indeed, the D.C. Circuit Court of Appeals recognized that when the legislature and the executive branches clash, the framers expected that “a spirit of dynamic compromise would promote resolution of the dispute … in cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.”

Even during some of the most combative and politically-charged oversight of the previous administration, that over Operation Fast and Furious, the Justice Department recognized the legitimacy of the Republican-led House Oversight Committee’s inquiry. Even within the sharply divided Committee, then ranking member and now Chairman of the Committee Elijah Cummings acknowledged his Republican counterparts’ efforts, stating “that the Committee has a legitimate interest in conducting vigorous oversight of this issue, and I have commended [Chairman Issa] publicly for exposing—and bringing to a halt—a series of misguided gunwalking operations.”

Although oversight is inherently political, regardless of which party controls the White House or Congress, this acknowledgement by the ranking member of the majority’s legitimate oversight interests, along with the statements from Republican congressional overseers, reflect the consistency and principled approach we should not only expect, but also demand from our elected officials. The President cannot simply “decline” to answer Congress.

And in the absence of any effort to accommodate (or even an inadequate effort), Congress can draw upon various pressure points. Indeed, Just Security’s Andy Wright has argued that “because the constitutional scheme places a premium on good-faith negotiation between Congress and the Executive Branch, congressional self-help” should be the first resort.

Several senators have introduced legislation requiring the Director of National Intelligence to issue a report on the murder of Mr. Khashoggi. Congress can call hearings, issue subpoenas, or use the power of the purse, as former Republican Appropriations Subcommittee Chairman and human rights champion Frank Wolf once threatened, to withhold one million dollars from the Justice Department for every overdue Congressionally mandated report.

In the case of a report about the malicious and horrifying assassination of an American resident and columnist for the Washington Post, Congress should not permit the President, a self-styled disruptor of politics-as-usual Washington, and his advisors to ignore a statute and simultaneously disregard what is not simply a political process, but the truest manifestation of the constitutional order and balance of powers.

IMAGE: A protest sign reading “Khashoggi way” is seen across the street from the White House in Washington, DC, on December 23, 2018. (Photo by ANDREW CABALLERO-REYNOLDS/AFP/Getty Images)

 

About the Author(s)

Edgar Chen

Edgar Chen previously served as Counsel to the Assistant Attorney General for the Criminal Division, as well as in the Office of Legislative Affairs and the Human Rights and Special Prosecutions Section, at the U.S. Department of Justice.

Alicia O'Brien

Alicia O’Brien previously served as Deputy Assistant Attorney General for the Office of Legislative Affairs and as Associate Deputy Attorney General at the U.S. Department of Justice.

Julie Rodin Zebrak

Julie Rodin Zebrak previously served as Deputy Chief of Staff to the Deputy Attorney General and agency counsel for the Criminal Division at the U.S. Department of Justice. Follow her on Twitter (@YesMomsCan)