This week has seen a long-smoldering Senate investigation of CIA torture allegations burst into a public conflagration between the CIA and the Senate Select Committee on Intelligence.   As Thomas reported yesterday, Sen. Feinstein offered blistering remarks on the Senate floor and CIA Director Brennan also spoke on the topic at the Council on Foreign Relations.  There were also press reports that White House Chief of Staff Denis McDonough visited the Senate and that Brennan sent Sen. Feinstein a January 27 letter suggesting a joint inquiry into unauthorized document access.  There is a significant public rift over the constitutional roles of the two branches in congressional investigations.

Last week, I completed a draft law review article, Constitutional Conflict and Congressional Oversight (available here), that may explain some of the divergent behavior, perspectives, and reactions of Congress and the Executive Branch.  This post does not address any of the circumstances or allegations specific to this dispute, nor does it offer any opinions on the merits.  Rather, I offer a generalized context for interbranch disputes.

In my article, I argue that the two branches have fundamentally different, and incompatible, views of how the Constitution works when it comes to congressional oversight.  The two views boil down to a Congressional Litigation Model and an Executive Transactional Model:

Hierarchy and entitlement characterize the congressional perspective, with Congress in the role of overseer with fixed substantive rights to obtain desired information. Congress cloaks itself in the language of criminal investigation and litigation. In contrast, equality and competing interests characterize the Executive Branch view, such that congressional oversight requests are the opening salvo in an iterative, negotiation process between co-equal branches. The Executive Branch sees no presumptive congressional right to define the manner, form, quantity, or messenger of the information to be provided.

There is an ‘Executive is from Mars; Congress is from Venus’ quality to oversight interactions.  These competing models explain all sorts of behavior that often looks chaotic and unprincipled in the din of politics.  While the subject matter of a given dispute often has partisan motivations that fluctuate given the composition of the political branches, the models themselves are institutional and stable.

Competing constitutional visions also have significant ramifications for the appropriateness of remedies that Congress might use to vindicate its oversight interests.  There are a number of formal and informal remedies Congress uses to enforce its oversight prerogatives, including three types of contempt (inherent, criminal, and civil), appropriations leverage, legislative authorizations, Senate advice and consent, punitive oversight, and political or press narratives.  The vast majority of the time, oversight disputes are resolved out of the limelight.  When things escalate sufficiently, Congress prefers contempt as a remedy.  Contempt is problematic when the resisting party is an Executive Branch official following Executive Branch policy.  Because the constitutional scheme places a premium on good-faith negotiation between Congress and the Executive Branch, congressional self-help is generally more appropriate than litigation for interbranch oversight disputes.  Of course, self-help in the wrong hands or on the wrong grounds could disturb constitutional balance, but it is preferable for Congress to internalize the political costs of enforcement.  I go on to argue that abstention and restraint should be the hallmark of Article III courts presented with bickering political branches.  However, there is an important role for the Judiciary where the constitutional conflict is sufficiently grave such that courts should then facilitate, or approximate, accommodation and compromise.

These issues were already timely given the fact that Oversight Committee v. Holder, the congressional contempt litigation about Operation Fast and Furious, is now ripe for summary judgment rulings.  (I commented on the justiciability ruling here.)  The current dispute reinforces the same themes.  While the article cites letter exchanges, legal briefs, legal opinions, and scant available case law, its thesis also fits with my experience as a lawyer in Congress and at the White House.

Congressional oversight is extremely important, as are Executive Branch functions.  Oversight can be overwrought and responses to it may be irresponsible.  But the irreconcilable views flow from the constitutional structure itself.