The conflict between the executive and legislative branches escalated rapidly last week, as the House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress for failing to produce the unredacted Mueller report and related documents in response to a committee subpoena. This episode exemplifies the House’s growing frustration with the Trump administration’s refusal to cooperate with congressional investigations (on everything from the president’s tax returns and financial records to more routine oversight matters), but it also points to a far more longstanding problem. The committee can report Barr’s contempt to the House, but the House currently has no reliable mechanism for enforcing the subpoena or imposing legal consequences on Barr or the administration. Just ask former Attorney General Eric Holder, who was held in contempt of Congress in 2012 but seems to be none the worse for the experience.
Debates over Congress’s limited legal enforcement options go back decades. In the mid-1990s, congressional legal scholar Neal Devins published an article entitled “Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing.” Professor Devins argued that the existing system of negotiation and accommodation to resolve such disputes, while sometimes frustrating to both political branches, worked well enough to protect the vital interests of each. By contrast, judicial enforcement of congressional subpoenas would be “problematic” because “courts may be unwilling to assume a broad role in the resolution of information access disputes, especially those raising executive privilege issues,” and, moreover, “political resolution of information access disputes may well serve the needs of both elected branches better than judicial determinations.”
Nearly a quarter century later, doing nothing looks more and more like a bad bet for Congress. In the intervening years, the balance of frustration has tipped decidedly in one direction. Congress has repeatedly found its information requests thwarted by lengthy delays or outright refusals to comply. The inadequacy of the existing system has come into sharp relief in the opening months of the 116thCongress, but the problem has been evident for much longer.
For example, in the late 1990s, the Republican-controlled Congress often found itself stymied by the Clinton administration’s assertions of privilege in congressional investigations of matters such as campaign finance abuses and grants of executive clemency. The change in administration brought no relief. To the contrary, the George W. Bush administration not only backed the Clinton position on these matters but advanced even more sweeping theories of executive privilege.
On several occasions, Congress took the highly unusual step of going to court to resolve its disputes with the executive. In 2002, the Comptroller General brought suit to obtain records of the Cheney energy task force. In 2008, the House Judiciary Committee sued to compel high-ranking Bush White House officials to appear at a hearing about the firing of U.S. attorneys. In 2012, after finding Holder to be in contempt failed to produce any results, the House Committee on Oversight and Government Reform sued the Obama Justice Department to obtain records related to the problematic “Operation Fast and Furious” gun-trafficking investigation.
While these suits met with mixed success on the legal merits, the length of time it took to resolve them diminished their utility to Congress. As the House Select Committee on Benghazi observed in its final report with regard to the Fast and Furious lawsuit, “[a]n enforcement tool requiring three and a half years simply to get a district court order is unacceptable.” The select committee stated in its final report that “[t]he administration’s intentional failure to cooperate with this and other congressional investigations warrants changes in congressional rules and amendments to law in order to ensure the Executive Branch cooperates with congressional investigations and the American people know what their government does on their behalf and with their money.” (p. 354). Among other things, the select committee recommended that “[e]xpedited procedures for the civil enforcement of congressional subpoenas should be enacted to provide timely judicial resolution of disputes.” (p. 399). Such reforms were needed because “[i]t is not acceptable for Congress to simply acquiesce to Executive Branch obstruction.” (p. 403).
In the 115thCongress, an effort was made to implement the select committee’s recommendation with regard to civil enforcement. Representative Darrell Issa (R-Calif.) introduced H.R. 4010, the Congressional Subpoena Compliance and Enforcement Act of 2017, which provided for enforcement of congressional subpoenas in federal court and directed that both the initial disposition and any appeal of such actions be expedited to the greatest possible extent. The bill also authorized the court to impose monetary penalties on the head of a government agency or component who willfully fails to comply with a congressional subpoena. It further provided that claims of privilege for records must be accompanied by a privilege log and the failure to provide such a log in a timely manner could waive the privilege. H.R. 4010 passed the House by voice vote in October 2017, but it never received a vote in the Senate.
No such bill appears to have been introduced in the current Congress, though it seems safe to say that is not because concerns about “executive branch obstruction” have abated. We need not resolve the debate between Professors Michael McConnell and Josh Chafetz as to whether the Trump administration has taken obstruction to an unprecedented level or is merely more or less within the range of obstruction engaged in by previous administrations. Suffice to say Congress today does not believe, as perhaps it did at the time of Professor Devins’s article, that the existing enforcement mechanisms for congressional subpoenas adequately protect its interests.
It is difficult to make a firm assessment of the Trump administration’s level of obstruction. The current system places asymmetric burdens on congressional committees to jump through a series of ill-defined procedural and political hoops before reaching a point where legal consequences could, even as a theoretical matter, be imposed on recalcitrant executive officials. The administration, in the meantime, has little incentive to respect congressional deadlines or make any final decision on asserting privilege until a contempt vote has been scheduled. Indeed, although President Trump has indicated his intent to defy congressional subpoenas generally, he has formally invoked the privilege only once (prior to the contempt vote on Barr) and in that case the privilege has only been invoked as a “protective,” rather than a “conclusive,” matter.
A Proposed Change to House Rules
A change in the law that would enhance Congress’s ability to extract information from the executive branch is a heavy lift, particularly in the current climate. With that in mind, I have proposed a change to House rules which would ameliorate, though not eliminate, Congress’s structural disadvantage in executive-legislative information disputes.
The full text of the proposed rule may be found at the Good Government Now website.
The proposed rule would establish an orderly and regularized process for requesting documents from the executive branch, raising objections, and resolving disputes. It would establish consistent deadlines for agencies to either provide the requested information or make objections in writing, and it would impose consequences if these deadlines were missed. Like H.R. 4010, it would require submission of privilege logs. Finally, by channeling to court only those disputes which are capable of simple and straightforward judicial resolution, it would expedite court proceedings in a different manner, but likely more effectively, than H.R. 4010.
To illustrate how the proposed rule would work, imagine it were employed by the House Judiciary Committee in its efforts to obtain the unredacted Mueller report and underlying evidence. The committee would initiate proceedings under the rule by making a written request for the records to a “senior responsible official” (defined in the rule as an executive official with custody or control over the records or information sought and who is also a civil officer subject to impeachment and removal), which in this case would be Attorney General Barr.
The committee would provide the attorney general with a deadline for response (the rule would specify a minimum timeframe which has yet to be determined, but would likely be 5-10 days). Let’s assume the committee issued its request on April 18 (the day the redacted report was released) and set a deadline of April 29. By that date Barr would be required to either produce the requested information or file objections. As already noted, the objections would have to include a privilege log, something committees routinely request but seldom receive from the executive branch. (One of the House’s successes in the Fast and Furious lawsuit was that the district judge ordered the Department of Justice to provide a privilege log).
Assuming a timely response, the rule provides for a period of negotiation between the committee and the administration. This period responds to the executive branch position that information disputes should be resolved, if possible, by a process of negotiation and accommodation before a subpoena is issued. Note, however, the executive branch only gets the benefit of this period if it provides a timely response to the initial request.
The rule also provides for the involvement of the Office of House Counsel (where I served from 1996 to 2004) to assist the committee at this stage. House counsel brings an institutional perspective, helps to ensure consistency of legal positions among different committees, and can advise leadership on how to prioritize among various information access disputes. House counsel may also provide advice on tactical issues such as whether it would be wise, from the standpoint of potential litigation, to accept the attorney general’s offer of a limited preliminary review of the Mueller report in (mostly) unredacted form.
The committee chair has discretion as to the length of these negotiations. Once Chairman Jerrold Nadler (D-N.Y.) was satisfied that further negotiations would be fruitless, he would be authorized to issue a subpoena either unilaterally (if the ranking member did not object) or (more likely in this instance) by a vote of the committee. Ordinarily this process would likely take several weeks or longer, but nothing in the rule prevents a more compressed timeframe. Since the Judiciary committee would likely act at its regular Wednesday meetings, the subpoena typically might issue on May 15 or May 22, but given the urgency of this particular matter it could issue on May 8 or even May 1.
Once the subpoena issues, the attorney general would again be required to file timely objections, including a privilege log. The committee would then hold a hearing, which the attorney general would be required to attend (except for good cause shown), to consider and rule upon the objections. This hearing would require politically accountable actors to take a greater degree of responsibility than is now the case for raising and disposing of objections.
If the committee overrules the objections in whole or in part, it would issue an order of compliance requiring Attorney General Barr to produce the required material within 10 days. (Given our hypothetical timeline, this deadline could conceivably be as early as May 20, but more likely would fall in the weeks of June 10 or 17). If Barr failed to produce the material by the deadline, the committee would be automatically authorized to bring a civil enforcement action in federal court unlessthe president, within the 10-day period, “personally and in writing, makes a claim of executive privilege with respect to the records and information at issue.” The committee would be able to file a civil enforcement action within approximately two months of its initial document request.
In theory, the current process could move faster than this — though in reality it invariably drags on far longer. Any modest benefit is far outweighed by the costs, however. Because the current ad hoc system lacks clearly defined steps and fair procedures to consider and resolve objections, the end result of the process (a contempt report by the committee which is then adopted by the full chamber) appears to reflect a predetermined political outcome which did not truly grapple with the objections and concerns of the subpoena recipient. As Andy Wright has argued, the absence of procedures for raising objections and other due process protections in congressional investigations undermines the legitimacy of the process and impedes judicial enforcement of congressional subpoenas.
In addition to establishing an orderly and expeditious process, the proposed rule would maximize the House’s chances of prevailing in court. Because the committee would only be authorized to bring an enforcement action where the president had failed to assert executive privilege, there would be no need for a court to balance the constitutional prerogatives of the political branches. The traditional judicial reluctance to resolve executive privilege disputes should therefore not come into play. As noted above, moreover, because the rule provides the executive branch with a substantial measure of “congressional due process,” courts will likely be more comfortable in quickly resolving the case in the House’s favor.
The rule is not, of course, a silver bullet. Most obviously it permits the president to cut off a civil action under the rule simply by asserting executive privilege. It is important to realize, however, that the assertion of executive privilege only prevents the committee from being automatically authorized to bring an action. The House still retains all the tools for subpoena enforcement that it currently enjoys, including a civil action authorized by a vote of the full legislative body.
Furthermore, presidents are traditionally reluctant to invoke executive privilege, and a president who does so frequently will incur political and eventually legal costs. Even if the rule were only effective in expediting more routine oversight disputes — such as those that involve principally or solely the interests of executive agencies and are not matters of presidential concern — it would still be a substantial improvement. Establishing the principle that the executive branch must respect the congressional process would strengthen the legislative hand in all information disputes.
As currently drafted the proposed rule applies only to documents and not to oral testimony, which is more complicated to regulate in the same fashion. Nonetheless, it can be anticipated that a successful implementation of the proposed rule would create momentum toward further innovations if needed to restore a proper balance between the branches.
In short, the proposed rule would be at least a modest step toward improving the legislative branch’s position in information disputes with the executive. The House, again, would still retain all of its existing subpoena enforcement tools. It is a reform that can be implemented by the House unilaterally. It would not solve everything, but it is certainly better than nothing.