TY - UNPB
T1 - Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege (Testimony on Executive Privilege Before the Senate Committee on the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights)
AU - Shaub, Jonathan David
PY - 2022/11/8
Y1 - 2022/11/8
N2 - Testimony provided to the Senate Committee on the JudiciarySubcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights at a hearing:“Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege”As I understand it, today’s hearing focuses on defining and evaluating the constitutional, statutory, and normative principles and practices governing congressional oversight. I understand the subcommittee is interested in better understanding the difficulties of conducting effective congressional oversight that have become increasingly apparent over the past 20 to 30 years and the role that executive privilege plays in shaping the executive branch’s responses to congressional requests and subpoenas for information and testimony.In my view, understanding the development of the internal, executive branch doctrine governing executive privilege is crucial to understanding the current imbalance in oversight—the executive branch’s current ability to thwart virtually any congressional inquiry with which it does not wish to comply. Accordingly, my testimony today will start by describing the legal principles that the executive branch follows in approaching congressional oversight—principles that I helped put into practice while working at OLC. I have since studied and written about these principles and their historical development. My testimony explains how the accommodation process works today from the perspective of the executive branch and why it depends almost wholly on the executive branch’s willingness to respond to a congressional request or subpoena for information. Normative practice has long undergirded much of the accommodation process. But normative practice can be dispensed with easily in the course of the intense partisan battles that have lately come to characterize oversight. My testimony concludes by illustrating the limitations and, ultimately, the impotence, of Congress’s current mechanisms for attempting to enforce its information demands. And I explain briefly why judicial consideration and resolution of some of the fundamental constitutional disagreements between the executive branch and Congress is the best—and perhaps only—route to alter the current imbalance between the branches.I would also like to note at the outset that I believe the fundamental disagreements between the branches that have led to the current state of oversight are institutional disagreements, not necessarily partisan ones. My tenure at OLC occurred mostly during the Obama Administration, but I also worked in the office during the first six months of the Trump Administration. In both administrations, we worked very closely with the White House Counsel’s Office, and almost all of my work was under the supervision of long-serving, career DOJ officials who have been working on oversight matters since the Reagan Administration. Although oversight disputes often become embroiled in partisan politics—oversight related to Operation Fast & Furious and the Mueller Report are two recent examples—the foundations of the doctrine on which the executive branch relies to withhold information and testimony are bipartisan in both their creation and execution. That is not to say that all oversight disputes are equal; some past presidential claims of privilege or related doctrines such as immunity are more extreme and have substantially less historical support than others and, as a result, warrant criticism and controversy. But they share a common wellspring—a comprehensive constitutional doctrine developed almost wholly within the executive branch that has equipped the executive branch with the tools necessary to stymie congressional oversight when it so chooses.
AB - Testimony provided to the Senate Committee on the JudiciarySubcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights at a hearing:“Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege”As I understand it, today’s hearing focuses on defining and evaluating the constitutional, statutory, and normative principles and practices governing congressional oversight. I understand the subcommittee is interested in better understanding the difficulties of conducting effective congressional oversight that have become increasingly apparent over the past 20 to 30 years and the role that executive privilege plays in shaping the executive branch’s responses to congressional requests and subpoenas for information and testimony.In my view, understanding the development of the internal, executive branch doctrine governing executive privilege is crucial to understanding the current imbalance in oversight—the executive branch’s current ability to thwart virtually any congressional inquiry with which it does not wish to comply. Accordingly, my testimony today will start by describing the legal principles that the executive branch follows in approaching congressional oversight—principles that I helped put into practice while working at OLC. I have since studied and written about these principles and their historical development. My testimony explains how the accommodation process works today from the perspective of the executive branch and why it depends almost wholly on the executive branch’s willingness to respond to a congressional request or subpoena for information. Normative practice has long undergirded much of the accommodation process. But normative practice can be dispensed with easily in the course of the intense partisan battles that have lately come to characterize oversight. My testimony concludes by illustrating the limitations and, ultimately, the impotence, of Congress’s current mechanisms for attempting to enforce its information demands. And I explain briefly why judicial consideration and resolution of some of the fundamental constitutional disagreements between the executive branch and Congress is the best—and perhaps only—route to alter the current imbalance between the branches.I would also like to note at the outset that I believe the fundamental disagreements between the branches that have led to the current state of oversight are institutional disagreements, not necessarily partisan ones. My tenure at OLC occurred mostly during the Obama Administration, but I also worked in the office during the first six months of the Trump Administration. In both administrations, we worked very closely with the White House Counsel’s Office, and almost all of my work was under the supervision of long-serving, career DOJ officials who have been working on oversight matters since the Reagan Administration. Although oversight disputes often become embroiled in partisan politics—oversight related to Operation Fast & Furious and the Mueller Report are two recent examples—the foundations of the doctrine on which the executive branch relies to withhold information and testimony are bipartisan in both their creation and execution. That is not to say that all oversight disputes are equal; some past presidential claims of privilege or related doctrines such as immunity are more extreme and have substantially less historical support than others and, as a result, warrant criticism and controversy. But they share a common wellspring—a comprehensive constitutional doctrine developed almost wholly within the executive branch that has equipped the executive branch with the tools necessary to stymie congressional oversight when it so chooses.
U2 - 10.2139/ssrn.4251779
DO - 10.2139/ssrn.4251779
M3 - Preprint
BT - Breaking the Logjam: Principles and Practice of Congressional Oversight and Executive Privilege (Testimony on Executive Privilege Before the Senate Committee on the Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights)
ER -