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Archive of posts filed under the Oversight of the Executive category.

Harriet Miers and Assertions of Executive Privilege for Former Officials

Several months ago we discussed whether the president could assert executive privilege to prevent a former official (in that case, former FBI Director Jim Comey) from providing information to Congress, even if the former official wanted to disclose the information. Eric Columbus, a lawyer who had served in the Obama Justice Department, argued that the [...]

Can Congressional Committees Exempt their Oversight Correspondence from FOIA?

A minor kerfuffle erupted recently over letters sent by certain House committees, including the Committee on Financial Services, to agencies within their jurisdiction maintaining that future communications between the committee and the agency should be treated as “congressional records” not subject to the Freedom of Information Act. For example, this letter from Chairman Hensarling of [...]

Comey’s Choice: Congress or the Press

Former FBI Director Jim Comey’s decision to “leak” (a word which itself has generated controversy in this connection) the contents of his memos of conversations with President Donald Trump to the New York Times has led to much pontificating, but indulge me while I engage in a little more. My interest focuses on the question [...]

Comey and Executive Privilege (with Update)

[See Update below] Former FBI Director Jim Comey is scheduled to testify before the Senate Select Committee on Intelligence (SSCI) next week. He is expected to be asked questions about certain subjects, including his personal conversations with the president, that might be the subject of executive privilege claims. However, because Comey is testifying voluntarily and [...]

Congressional Staff Work on Transition Matters

At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition. Tweet

Things to do in Dirksen when You’re Dead

If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years [...]

An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, [...]

The Fast and Furious Decision: Can Congress Make Lemonade Out of Lemons?

The Court’s Decision Judge Amy Berman Jackson recently issued her decision in the subpoena enforcement action brought by the House Committee on Oversight and Government Reform (COGR) against the Attorney General. The case arose out of an October 11, 2011 subpoena from COGR to then-Attorney General Holder seeking documents in the “Fast and Furious” investigation. [...]

Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization: Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action [...]

US House of Representatives v. Burwell

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