See You in Court

As discussed it my last post, disputes between the executive and legislative branches over the latter’s demands for information are nothing new.They have in fact occurred continuously throughout our history, beginning with the Washington administration and occurring in virtually every other administration since. Traditionally, however, these disputes have been resolved by political accommodation and compromise, not by litigation.

One might think that this situation puts Congress at a distinct disadvantage, since a failure to reach an accommodation will leave the parties in the situation where they started, ie, the executive has the information and Congress does not.Unless Congress has a means to force the executive to comply with its demands by enlisting the aid of the judicial branch, why would the executive branch have an incentive to compromise?

This question is easily answered with respect to routine congressional requests for information.An executive agency has strong incentives to provide requested information to Congress in order to ensure favorable treatment of its budgetary requests or other legislation of critical importance to it.Whatever reasons an agency might have to withhold information from Congress, these reasons are normally less important than the need to maintain a favorable relationship with the Hill.And if the agency has reasons to withhold the information that are important to it (eg, the information is embarrassing or damaging to the agency leadership), Congress can increase the pressure by raising the public profile of the dispute (by sending letters or holding hearings that get the attention of the media) or by bringing it to the attention of higher levels of the administration.In the vast majority of cases these devices are more than sufficient to get Congress the information it seeks.

This dynamic is illustrated by the dispute over the firing of the U.S. attorneys.Initially, the Justice Department attempted to answer congressional requests for information by providing the oversight committees with closed door briefings in the hope that this would make the issue go away.It quickly became apparent, however, that these briefings merely raised more questions from Congress and the media.As a result, the department was forced to provide Congress with thousands of internal emails and to make a number of Justice Department officials, from the Attorney General on down, available for congressional hearings and interviews regarding the decisionmaking process.While some of this information was embarrassing to the Department, the political pressure to be forthcoming simply overwhelmed any incentive to refuse the congressional requests.

But of course the fact that Congress has tools to force the executive to provide most requested information does not resolve the issue of what happens when the executive decides that, on balance, it would prefer to risk congressional retribution and public criticism than to provide the information requested.This may be because it views the confidentiality of the information as an important principle, because the information in question is just too damaging or sensitive, or simply because the executive believes that a fight with Congress is in its political interest.

This problem is also illustrated by the dispute over the U.S. attorney firings.Once the congressional focus moved from the Justice Department to the White House, the administration took a much harder line and refused to provide information, except under certain conditions and limitations. Specifically, the administration stated that it would provide documents relating to communications between persons in the White House and those outside, but not relating to purely internal communications.It also said that it would make available WH staffers for interviews on the same limited subject matter, but only if the interviews were private, not under oath and not transcribed, and on the condition that the oversight committees waive their right to get any additional information.While some of these conditions seem reasonable (that the testimony be private) and some unreasonable (that the committees waive the right to seek additional information), none were acceptable to Congress.

In this situation, where the branches are truly at an impasse, it might seem that it would be in Congress’s interest to have the option to seek judicial enforcement of its right to information.This, however, is less obvious than it first appears.In the first place, if there were a readily available judicial mechanism for resolving informational disputes between the branches, there would be a natural tendency to channel the more difficult disputes toward this mechanism.This would include the relatively few disputes that ultimately would result in an impasse, but it might also include many disputes that would otherwise be resolved in Congress’s favor.In other words, the net effect of a readily available judicial mechanism might be that Congress would get less information, and/or get information in a less timely fashion than it otherwise would.

Second, submitting congressional demands for information for judicial review would provide the courts the opportunity, and perhaps the necessity, of evaluating the validity and strength of the congressional need for information.As former Senate Legal Counsel Mike Davidson has said: “Members do not want courts to weigh the executive’s claim of privilege against Congress’ claim of need.This would vest enormous powers in the courts to determine and balance Congress’ needs and the executive privilege.Congress needs to determine its need for itself.”(quoted in Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal—Do Nothing, 48 Admin. L. Rev. 109 (1996)).

As Professor Devins explains, these and other factors have resulted in congressional inaction when proposals, such as the Barney Frank legislation mentioned in my last post, have been floated to enable Congress to take its case to court.

Nonetheless, whenever the executive and legislative branches reach an impasse, as in the present situation, Members of Congress begin to sound as if they would desire nothing more than to have the dispute end up in court.For example, in its contempt report on the U.S. attorney matter, the House Judiciary Committee argues that the executive branch should be required to prosecute Josh Bolten, the WH Chief of Staff, and Harriet Miers, the former WH counsel, for refusing to comply with congressional subpoenas on grounds of executive privilege. At page 49, the committee approvingly quotes an expert on executive privilege, Mark Rozell, as characterizing the Bush administration’s refusal to prosecute as “’astonishing’ and ‘almost Nixonian in its scope and breadth’, since it would provide that the executive branch alone would ‘define the scope and limit of its own powers.’”

The logic of this position, of course, is that neither the executive branch nor the legislative branch should be able to “define the scope and limit of its own powers.”Instead, the judicial branch would be asked to mediate the dispute, with uncertain results for both sides.Whether or not Congress really wants this outcome, it is heading in that direction.

Everything Old is New Again

A press release from Congressman Barney Frank states as follows:

Congressman Barney Frank (D-MA) introduced legislation today that would require the appointment of a special prosecutor each time the House votes an official of the executive branch in contempt of Congress.

“After listening to the testimony of [the Attorney General] before the Judiciary Committee and his refusal to pursue House-passed contempt citation . . ., I believe we need to change the method of dealing with contempt if we are to protect Congress’ right to get information,” Frank said.  “If we make no change in the law, Congress will face future instances in which the Justice Department simply refuses to process contempt citations and we will be left without any recourse for getting documents.”

One might assume that this press release resulted from the recent refusals of White House Chief of Staff Josh Bolten and former White House Counsel Harriett Miers to provide documents and testimony in response to congressional subpoenas regarding the removal and replacement of U.S. Attorneys.  Or perhaps it stemmed from the front page article in the Washington Post on July 20, 2007, which began “Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.”

In fact, however, the Frank press release is dated April 21, 1983, nearly a quarter of a century before the Washington Post’s breathless revelation of this “bold new assertion of executive authority.”  The Bush Administration’s position in this regard may have been bold, but it certainly was not new.  Anyone familiar with the history of congressional-executive could have told the Post that the Justice Department, under this or any other administration, would not prosecute executive branch officials for asserting executive privilege in accordance with the President’s instructions.  One would think that the fact that no executive branch official has ever been prosecuted for contempt of Congress might have been a tipoff in this regard.

The current controversy is merely the latest chapter in a longstanding debate over whether the Congress has, or should have, a legal remedy when the executive branch refuses to produce information demanded by the House or Senate.  Note that this issue is distinct from the question of whether Congress has the right to obtain information from the executive branch.  Since the administration of George Washington, the Congress has asserted, and the executive branch has acknowledged, the right of the legislative branch to call upon the executive branch for information.  In 1792, the House established an investigating committee to inquire into a failed military campaign by General St. Clair against Indian tribes in Ohio.  This committee requested documents from President Washington, who assembled his cabinet to advise him on how to respond.  As reflected by Thomas Jefferson’s notes, the cabinet reached the following conclusions:

First, that the House was an inquest and therefore might institute inquiries.  Second, that they might call for papers generally.  Third, that the Executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would endanger the public.  Fourth, that neither the committee nor the House had a right to call on the Head of a department, who and whose papers were under the President alone, but that the committee should instruct their chairman to move the House to address the President.  

Washington produced all of the papers called for by the House in the St. Clair investigation, but in later years he refused congressional requests for other materials, such as a 1796 request from the House for documents relating to John Jay’s negotiation of a treaty with Great Britain.

Although executive branch refusals to provide information to Congress often led to major battles with Congress, historically these struggles were treated as political, not legal.   The term “political” here should not be taken to mean partisan, unprincipled or insincere, the way the term is often used today.  (Ironically, much of the dispute about the U.S. attorney matter has to do with how the word “political” is used or perceived.)  Instead, the disputes were political because they had to be resolved through political pressure and negotiation, rather than legal compulsion.  If the parties could not reach an acceptable compromise, Congress had no available remedy other than the ultimate political remedy of impeachment (which would be practical, if at all, in only the most extreme circumstances).      

For example, in 1886 during the Grover Cleveland Administration, the Senate made a demand for all papers in the Department of Justice relating to the removal of a U.S. attorney.  When the Attorney General refused this demand, the matter was referred to the Senate Judiciary Committee, which reported that when papers were “unconditionally demanded” of the President or heads of Departments, “they were under a constitutional duty and obligation to furnish to either House the papers called for.”  Further, “the committee believes it to be clear from the very nature of the powers intrusted by the Constitution to the two Houses of Congress it is a necessary incident that either House must have at all times the right to know all that officially exists or takes place in any of the Departments of the Government.”  Although the Senate ultimately adopted a resolution condemning the Attorney General’s refusal to provide the documents as “in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof,” it still did not get the requested documents.

It is only since World War II, and more particularly since Watergate, that Congress began thinking about its informational disputes with the executive branch as legal disputes that could be resolved through a legal remedy.  Apart from criminal prosecution under the contempt of Congress statute, the remedies potentially available to Congress would be so-called “inherent contempt,” in which the House or Senate instructs the Sergeant at Arms to arrest the contumacious witness and then proceeds to conducts its own contempt trial on the floor, or a civil action for injunctive or declaratory relief filed in federal court.  As will be discussed in later posts, each of these options had certain legal and practical drawbacks.  For now suffice to say that Congress has to date never successfully used any of these remedies against the executive branch.

Moreover, it is by no means clear that it would be to the advantage of Congress if informational disputes with the executive were to be resolved through one of these legal mechanisms.  At first blush it may seem that the absence of a remedy works to the advantage of the executive branch, which controls the information that the legislative branch wishes to obtain.  However, as I will discuss in my next post, this is not necessarily the case.