Thursday, May 2, 2019

Administration Continues to Thwart Attempts at Congressional Oversight

Trump Administration officials continue to thwart efforts at congressional oversight, citing separation-of-powers and congressional authority, among others, as the basis for refusing to comply with requests for testimony and documents. The particular reasons for declining to comply vary depending on the request, however, with one consistent theme: The Administration repeatedly claims that congressional requests exceed Congress's oversight authority. (It also claims that members of Congress previously adopted different positions with regard to congressional oversight of a different president, that the administration has already provided plenty of material, and that requests are politically motivated. These, of course, are not constitutional reasons not to comply.)

We posted here on the White House's arguments in support of its decision to decline to make Steve Miller available for testimony. We posted here on President Trump's lawsuit against his accountant to halt compliance with a congressional subpoena for his financial records.

Here are four new cases this week:

White House Security Clearance Process

Pat Cipollone, counsel to president, wrote to House Oversight Committee Chairman Elijah Cummings that it would not comply with Committee requests for files related to the White House security clearance process. Cipollone argued that "the Committee's inquiry is also legally unsupportable for several reasons." First, the Committee's efforts to "investigat[]" "specific individuals" is outside the Committee's oversight authority. Next, the Committee's request for individual files "has no legitimate legislative purpose." Third, the Committee seeks documents that are "at the heart of executive privilege," that reflect internal executive branch deliberations, that, if disclosed, "would undermine the investigative process, expose sensitive information that could jeopardize the FBI's ability to conduct future investigations, and raise serious separation of powers concerns," and that "implicate sensitive information." Finally, "the Committee appears to be putting public servants at risk in order to advance a partisan political agenda."

The Full Mueller Report and Materials

Assistant AG Stephen Boyd wrote to House Judiciary Chairman Nadler that DOJ would not turn over the unredacted Mueller report and supporting materials. Boyd cited past Department practice, and concluded that

Against this backdrop of the Department's compelling need to protect the autonomy and effectiveness of its investigations, as well as the extraordinary steps the Attorney General has already taken to accommodate the Committee's needs, the Committee has not articulated any legitimate legislative purpose for its request for all of the Special Counsel's investigative files. The Committee has no legitimate role in demanding law enforcement materials with the aim of simply duplicating a criminal inquiry--which is, of course, a function that the Constitution entrusts exclusively to the Executive Branch.

Moreover, "disclosing grand-jury information in response to congressional oversight requests is prohibited by [Rule 6e of the Federal Rules of Criminal Procedure]."

Barr's Testimony Before the House

AG Barr refused to show up at his House Judiciary Committee hearing today, apparently because he didn't like Nadler's rule that Committee attorneys would also question him. Best we can tell, he apparently thinks this is a separation-of-powers problem, because only members should be able to question him.

Trump's Suit Against Deutsche Bank and Capital One

President Trump filed suit against Deutsche Bank and Capital One to stop them from complying with congressional subpoenas for his financial records. The suit is similar to the one he filed against his accountants. It argues that the subpoenas exceed Congress's oversight authority, because they lack a "legitimate legislative purpose," and violate the Right to Financial Privacy Act.

https://lawprofessors.typepad.com/conlaw/2019/05/administration-continues-to-thwart-attempts-at-congressional-oversight.html

Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink

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