The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

To see how this issue plays out in day to day oversight, consider these recent examples from the Senate. On November 26, 2013, Senator Barbara Boxer, chair of the Environment and Public Works Committee, wrote the Nuclear Regulatory Commission to blast “the controversial and obstructive new policy that NRC has designed in order to justify withholding information from Members of Congress.” Boxer, backed by her staff’s analysis of the NRC policy, contends that the NRC’s new policy wrongfully withholds “sensitive” non-public documents from Congress, particularly when such documents are subject to pending FOIA requests. The staff suggests that this policy ignores longstanding D.C. Circuit precedent, such as Murphy v. Dep’t of the Army, 613 F.2d 1151 (D.C. Cir. 1979), that deliberative process and similar FOIA exemptions are inapplicable to Congress and that therefore agency disclosure of documents to Members of Congress does not constitute a waiver of those exemptions.

To take another example, on December 17, 2013, the Senate Intelligence Committee pressed the nominee for CIA General Counsel on whether she would support congressional access to Office of Legal Counsel memoranda that govern sensitive CIA activities like interrogation and drone strikes. Committee Chair Diane Feinstein expressed the view that “these opinions are actually indispensable to effective oversight.” The nominee, Caroline Krass, however, indicated that she would be reluctant to release the written OLC opinions because they “represent predecisional confidential legal advice” and “[p]rotecting confidentiality of that legal advice preserves space for their [sic] to be a full and frank discussion among clients, policymakers and their lawyers within the executive branch and really furthers the rule of law and allows for effective functioning of the executive branch.”

Krass said that she would be happy to “help the committee understand the administration’s legal thinking,” but, as Senator Susan Collins suggested, such explanations rarely are designed to advance critical thinking about the administration’s position. Collins pointed to a 2011 OLC opinion (which OLC declined to release in response to my FOIA request) that reportedly would have curtailed U.S. military operations in Libya, had the President not decided to disregard the OLC opinion in favor of a more executive-friendly opinion from White House and State Department lawyers. Collins evidently suspects something other than “rule of law” concerns underlying the administration’s unwillingness to share the OLC memo.

Just a few days ago the D.C. Circuit, in Electronic Frontier Foundation v. U.S. Dep’t of Justice, held that an OLC opinion regarding the FBI’s use of “exigent letters” to request records from telephone companies was exempt from disclosure under FOIA’s deliberative process privilege. Discussing the legal reasoning of this OLC opinion, a subsequent DOJ Inspector General report concluded that “the potential use of [redacted authority] by the FBI has important policy implications” and “creates a significant gap in FBI accountability and oversight that should be examined closely by the FBI, the Department, and Congress.” The D.C. Circuit nonetheless found the OLC memo exempt from public disclosure under FOIA because it fell within the deliberative process privilege and the FBI had not waived the privilege by adopting the memo as agency policy or invoking its reasoning in public testimony before Congress.

FOIA, of course, expressly provides that it “is not authority to withhold information from Congress.” 5 U.S.C. § 552(d). Moreover, since Murphy it is settled law, at least in the D.C. Circuit, that disclosures to Congress do not waive FOIA exemptions for that very reason. As Murphy observed, FOIA’s reservation of congressional access reflects “the obvious purpose of the Congress to carve out for itself a special right of access to privileged information not shared by others.” Deeming disclosures to Congress to be FOIA waivers would be at odds with this congressional purpose and “public policy which encourages broad congressional access to governmental information.”

In fact, the OLC memo at issue in Electronic Frontier had apparently been provided to congressional oversight committees, and the court and parties took for granted that this caused no waiver. But if the Attorney General’s position in COGR v. Holder were accepted, it would seem the executive branch had no legal obligation to turn over the OLC memo on “exigent letters,” notwithstanding the need for Congress to review whether that memo created “a significant gap in FBI accountability and oversight,” as the IG alleged. Perhaps, under Ms. Krass’s variant, the Justice Department might choose instead to brief congressional oversight committees verbally on the FBI’s “redacted authority,” hopefully not using that language.

In any event, if the court validates Holder’s assertion of deliberative process privilege, one can only assume that Senators Boxer and Feinstein will find it even more difficult in the future to obtain the deliberative process materials they deem essential to effective oversight.  As COGR puts it, “[j]udicial recognition of a deliberative process privilege in the context of congressional subpoenas would downgrade Congress’s ability to obtain information from the Executive Branch to the level of civil litigants and FOIA requesters,” Motion at 32, contrary to Murphy’s recognition of Congress’s “special right of access to privileged information not shared by others.”

Now I don’t expect a stampede of Senate Democrats seeking to support the House’s position in COGR v. Holder. But they will have to live with the results nonetheless.




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