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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.

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