[Congressional Record Volume 163, Number 122 (Wednesday, July 19, 2017)]
[Senate]
[Pages S4077-S4079]
REMOVAL OF NOMINATION OBJECTION
Mr. GRASSLEY. Mr. President, on June 20, 2017, I notified the
majority leader of my intent to object to any unanimous consent request
relating to the nomination of Steven A. Engel, of the District of
Columbia, to be the Assistant Attorney General for the U.S. Department
of Justice Office of Legal Counsel, until he adequately responded to my
questions regarding his views on the OLC's May 1, 2017, opinion,
``Authority of Individual Members of Congress to Conduct Oversight of
the Executive Branch.''
As I have previously noted, the opinion erroneously states that
individual Members of Congress are not constitutionally authorized to
conduct oversight. It creates a false distinction between oversight and
what it calls nonoversight requests. It relegates requests from
individual Members for information from the executive branch to Freedom
of Information Act requests. I have written a letter to the President
requesting that the OLC opinion be rescinded. The executive branch
should properly recognize that individual Members of Congress have a
constitutional role in seeking information from the executive branch
and should work to voluntarily accommodate those requests.
My June 12, 2017, letter to Mr. Engel asked him several questions
about the opinion, including whether the opinion
[[Page S4078]]
met the OLC's own internal standards requiring impartial analysis,
whether individual Members of Congress are ``authorized'' to seek
information from the executive branch, and what level of deference the
executive branch should provide to individual Member requests.
Mr. Engel promptly responded to my letter on June 23, 2017, and to a
second June 27, 2017, followup letter on July 12, 2017. I ask unanimous
consent that Mr. Engel's responses be placed in the Record following my
remarks.
I also met with Mr. Engel in my office on July 19, 2017, to further
discuss and clarify his views on the authority of individual Members to
request information from the executive branch. Mr. Engel's responses,
both in writing and in person, indicate that he agrees each Member,
whether or not a chairman of a committee, is a constitutional officer
entitled to the respect and best efforts of the executive branch to
respond to his or her requests for information to the extent permitted
by law. He also agreed: No. 1, that the May 1, 2017, OLC opinion on
this topic failed to consider adverse legal authority, specifically
Murphy v. Dep't of the Army, 613 F.2d 1151 (D.C. Cir. 1979); and No. 2,
that, if confirmed, he would review the opinion; and No. 3, consider
whether a more complete analysis of the issue is necessary.
I am satisfied that Mr. Engel understands the obligation of all
Members of Congress to seek executive branch information to carry out
their constitutional responsibilities and the obligation of the
executive branch to respect that function and seek comity between the
branches. Therefore, I agree a vote should be scheduled on his
nomination, and I wish him the very best in his new role.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Washington, DC, June 23, 2017.
Hon. Charles E. Grassley,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Grassley: I write in response to your June
12, 2017 letter concerning the May 1, 2017 letter opinion of
the Office of Legal Counsel (``OLC''). I appreciate your
interest in ensuring that Members of Congress are able to
obtain the information necessary to fulfill their
constitutional responsibilities, as well as your attention to
ensuring that OLC opinions provide candid, independent, and
principled legal advice. If I am confirmed as Assistant
Attorney General, I will be committed to ensuring that OLC
complies with these principles.
I provide here my responses to the seven questions in your
June 12 Letter.
1. Are you familiar with the May 1, 2017 OLC opinion?
Response: I am not currently at the Department of Justice,
but I read the May 1, 2017 opinion shortly after it was
published.
2. In your view, does this opinion meet the standards
described in OLC guidance that require impartial analysis of
competing authorities or authorities that may challenge an
opinion's conclusions? If so, can you please point to the
portion of the opinion which you believe fully discusses
contrary authority or arguments for non-Chairmen's need for
information from the Executive Branch to carry out their
constitutional function?
Response: Because I am not currently at the Department of
Justice, I have not had occasion to review all of the
underlying precedents that may bear upon the May 1, 2017
letter opinion. I agree that an OLC opinion should candidly
and fairly address all relevant legal sources, and there are
judgment calls that must be made in determining what should
be included, particularly with respect to letter opinions
(which tend to be shorter and less formal). With respect to
the May 1, 2017 opinion, I do agree that Murphy v. Dep't of
the Army, 613 F.2d 1151 (D.C. Cir. 1979), which was cited in
your June 7, 2017 letter to the President, may bear upon the
issues addressed in the May 1, 2017 opinion. I understand
that in 1980, and again in 1984, the Department of Justice
advised that, with respect to FOIA practices, the Murphy
decision did not eliminate the legal distinction between
requests made by Committee Chairmen and those made by
individual Members of Congress. In my opinion, it would have
been useful for OLC's letter opinion to address the
Department's current understanding of the Murphy decision in
the context of congressional oversight.
3. Do you believe that individual Members of Congress, who
are not Chairmen of committees, are ``authorized'' to seek
information from the Executive Branch to inform their
participation in the legislative powers of Congress? Do you
believe they are authorized by the Constitution? Why or why
not? Do you believe that they are authorized by Congress? Why
or why not?
Response: The D.C. Circuit has recognized that each member
of Congress has a ``constitutionally recognized status'' that
includes a legitimate need ``to request such information from
the executive agencies as will enable him to carry out the
responsibilities of a legislator.'' Murphy, 613 F.2d at 1157.
I believe that individual Members are ``authorized'' to seek
such information in their roles as constitutional officers.
The question whether Congress has separately authorized such
requests would turn upon the rules of each House of Congress.
In my view, the Executive Branch should seek to satisfy the
legislative interests reflected in the information requests
of individual Members, to the extent practicable and
consistent with the confidentiality obligations of the
Executive Branch,
4. In your experience, what percentage of congressional
requests for information are answered by the Executive Branch
on a voluntary basis?
Response: In my experience at the Department of Justice,
the Executive Branch seeks to answer the majority of
congressional requests for information on a voluntary basis.
Congress rarely seeks the compulsory disclosure of
information from a Department or agency.
5. In your view, what is an appropriate reason for
withholding information requested by an individual Member of
Congress?
Response: Traditionally, the Executive Branch has sought to
provide Members of Congress with requested information except
where there is a need to protect important confidentiality
interests, such as those involving national security
information; materials that are protected by law (such as
grand jury information, taxpayer information, or materials
restricted from disclosure by the Privacy Act); information
the disclosure of which might compromise open law enforcement
or civil enforcement investigations; presidential
communications; or information involving agencies'
predecisional deliberative communications.
6. In your view, does the Executive Branch have any
Constitutional responsibility to respond to requests for
information from individual Members of Congress as part of a
process of accommodation in order to promote comity between
the branches? If not, why not?
Response: The Department of Justice has recognized that the
accommodation process ``is an obligation of each branch to
make a principled effort to acknowledge and if possible to
meet, the legitimate needs of the other branch.'' Opinion of
the Attorney General for the President, Assertion of
Executive Privilege in Response to a Congressional Subpoena,
5 Op. O.L.C. 27, 31 (1981). At the same time, the courts and
others have distinguished between official requests from
Committees and those from individual Members. See, e.g.,
Exxon v. FTC, 589 F.2d 582, 592-93 (D.C. Cir. 1978)
(recognizing that the ``principle is important that
disclosure of information can only be compelled by authority
of Congress, its committees or subcommittees, not solely by
individual members . . .''); Alissa M. Dolan et al., Cong.
Research Serv., RL 30240, Congressional Oversight Manual 65
(Dec. 19, 2014) (``[N]o judicial precedent has directly
recognized an individual Member's right, other than a
committee chair, to exercise the committee's oversight
authority without the permission of a majority of the
committee or its chair.''). In my view, the Executive Branch
should seek to satisfy the legislative needs of Members to
the extent practicable and consistent with the
confidentiality obligations of the Executive Branch.
7. Is a request from an individual, elected Member of
Congress entitled to any greater weight than a FOIA request,
given the Member's broad Constitutionally mandated
legislative responsibilities? Why or why not?
Response: In view of the constitutional responsibilities of
individual Members of Congress, the Executive Branch may well
provide information to Members that goes beyond the
requirements of the FOIA statute, and the Executive Branch
has the discretion to provide information or documents even
if it would be exempt from mandatory public disclosure under
FOIA. I understand that the Executive Branch does not treat
individual Member requests as requests under FOIA, and thus,
the Executive Branch may provide more information about
Executive Branch programs than it provides to FOIA
requestors, who are entitled to receive only documents.
I appreciate your attention to these important questions.
Please let me know if I may be of any more assistance on
these issues, or on any other matters in the future.
Sincerely,
Steven A. Engel.
____
Washington, DC, July 12, 2017.
Hon. Charles E. Grassley,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Grassley: I write in response to your June
27, 2017 letter, which continues our correspondence
concerning the May 1, 2017 letter opinion of the Office of
Legal Counsel (``OLC''). I understand your concerns with the
legal opinion, as well as with recent reports concerning
Executive Branch policies governing congressional oversight.
Because I am currently in private practice, I had no role in
drafting the May 1 opinion, and I likewise have no
familiarity with the Administration's internal policies
concerning congressional oversight requests. If I am
confirmed as Assistant Attorney General for the Office of
Legal Counsel, I will review the May 1 opinion and ensure
that OLC's legal advice reflects my best judgment of the law
and established practice in this area.
I provide here my responses to the six additional questions
raised in your letter.
[[Page S4079]]
1. You acknowledged that the OLC opinion did not examine
key additional authorities which recognize the constitutional
role of individual Members to seek information from the
Executive Branch. If confirmed, will you commit to a more
careful study of this issue and other questions I have
raised?
Response: Yes.
2. Will you commit to modifying this OLC opinion to be
consistent with your own recognition that individual Members
``are `authorized' to seek . . . information [from the
Executive Branch] in their roles as constitutional
officers?'' If not, why not?
Response: If I am confirmed, I will review the May 1
opinion and come to my best judgment of the law and
established practice in this area, including with respect to
any further guidance or clarifications to the May 1 opinion
that may be appropriate.
3. You note in your response to Question 3 that ``the
Executive Branch should seek to satisfy the legislative
interests reflected in the information requests of individual
Members.'' As I wrote in my June 7, 2017, letter to the
President, the May 1 OLC opinion draws a distinction between
``oversight'' and ``non-oversight'' requests. I have never
sent or seen a letter requesting information for ``non-
oversight'' purposes, and I still do not understand what it
means. As you know, courts have recognized that ``oversight''
is inherent in the legislative power and just as broad. As
the Court recognized in McGrain v. Daugherty, 273 U.S. 135
(1927):
A legislative body cannot legislate wisely or effectively
in the absence of information respecting the conditions which
the legislation is intended to affect or change; and where
the legislative body does not possess the requisite
information--which not infrequently is true--recourse must be
had to others who do possess it.
Id. at 175. This power of inquiry ``encompasses inquiries
concerning the administration of existing laws as well as
proposed or possibly needed statutes.'' Watkins v. United
States, 354 U.S. 178, 187 (1957). Congressional oversight
encompasses a myriad of legislative tools, processes, and
purposes, and is not simply limited to investigations of
waste, fraud, and abuse conducted by a Committee Chairman.
How exactly can a congressional inquiry be distinguished on
the basis of whether it is an ``oversight'' or a ``non-
oversight'' inquiry, to borrow the language from the May 1
opinion? More importantly, by what authority can the
Executive Branch purport to make such a determination absent
explicit direction from the Legislative Branch?
Response: If confirmed, I will review the distinction
between ``oversight'' and ``non-oversight'' inquiries, as
those terms are used in the May 1 opinion. The May 1 opinion
appears to draw a procedural distinction between information
requests made by ``a committee, subcommittee, or chairman
exercising delegated oversight authority'' and those made by
individual Members who are not acting pursuant to explicit
authorization of the Standing Rules of the Senate or the
Rules of the House of Representatives. See Office of Legal
Counsel, Letter Opinion for the Counsel to the President,
Authority of Individual Members of Congress to Conduct
Oversight of the Executive Branch at 3 (May 1, 2017). In
support, the May 1 opinion quotes the Congressional Research
Service's Congressional Oversight Manual, which advises that
when individual Members request agency records ``they are not
acting pursuant to Congress's constitutional authority to
conduct oversight and investigations.'' Alissa M. Dolan et
al., Cong. Research Serv., RL30240, Congressional Oversight
Manual 56 (Dec. 19, 2014)).
As we have previously discussed, the D.C. Circuit has
recognized that individual Members have a ``constitutionally
recognized status'' that includes a legitimate need ``to
request such information from the executive agencies as will
enable him to carry out the responsibilities of a
legislator.'' Murphy v. Dep't of the Army, 613 F.2d 1151
(D.C. Cir. 1979). This would be true, no matter whether those
requests are called ``oversight'' inquiries or something
else. If confirmed, I will consider these issues in
connection with my review of the May 1 opinion.
4. The Inspector General Empowerment Act of 2016 explicitly
authorizes any member of Congress upon request to obtain
information related to Inspector General reports that is not
otherwise prohibited from public disclosure. Do you agree
that such requests from individual Members are ``oversight''
requests? Why or why not?
Response: I have not previously studied the referenced
provision of the Inspector General Empowerment Act. As a
general matter, if a statute calls for the Executive Branch
to provide information in response to a request from a Member
of Congress, then the Executive Branch should respond--no
matter whether the Member's request would be characterized as
``oversight'' or something else--in a manner consistent with
the Department's other statutory and constitutional
obligations, including its law enforcement, litigation, and
national security responsibilities.
5. I asked in my June 12, 2017, letter whether the
Executive Branch has any Constitutional responsibility to
respond to individual Members of Congress. You noted, as the
OLC opinion notes, that requests from individual Members
cannot be compelled. But I did not ask whether individual
Members have the power to compel responses. They clearly do
not. As you noted in your response to question 4, ``Congress
rarely seeks the compulsory disclosure of information from a
Department or agency.'' Your experience matches my own. As I
noted in my June 7, 2017 letter to the President, most
responses to requests for information--from Chairmen or not--
are received voluntarily. I also believe it is important to
remember that many of the relevant case precedents examining
questions related to congressional oversight arise in a
compulsory context. By virtue of the fact that most responses
are voluntary, a court has never had occasion to consider
them.
What I want to understand is not whether the Executive
Branch will pay a legal penalty for refusing to answer
individual Member requests, but whether such requests, made
as part of their wide-ranging Constitutional
responsibilities, are due the best efforts of the Executive
Branch given the nature of those responsibilities and the
need and desire for comity between the branches. Do you
agree? Is this what you mean by your response: ``In my view
the Executive Branch should seek to satisfy the legislative
needs of Members to the extent practicable''?
Response: I agree that in the interest of comity, the
Executive Branch should give due weight and sympathetic
consideration to requests from individual Members of
Congress, even where the executive official is not faced with
a legal penalty for refusing to answer, and that is what I
meant in my prior response.
6. I asked you whether an individual Member request was
entitled to any greater weight than a Freedom of Information
Act (FOIA) request. You responded that ``the Executive Branch
may well provide information to Members that goes beyond the
requirements of the FOIA'' and that you believe ``the
Executive Branch does not treat individual member requests as
requests under FOIA, and thus, the Executive Branch may
provide more information about Executive Branch programs than
it provides to FOIA requestors, who are entitled to receive
only documents.'' However, in my experience, FOIA requestors
with ready access to judicial review and experienced FOIA
litigators often get more information even than Congressional
Committees, let alone individual Members. Unlike FOIA
litigants, a Member must first convince an entire House of
Congress to hold an executive branch official in contempt
before obtaining judicial review of an information request.
Should the Executive Branch strive to meet a higher standard
for voluntary cooperation with Congress, given its
constitutional duties, than merely disclosure of that which
could be judicially mandated? If so, what would you do to
ensure that Executive Branch officials understand the
Constitutional basis for the importance of voluntary
cooperation with Congressional information requests?
Response: Yes, I agree that the measure of the Executive
Branch's cooperation should not be simply what could be
judicially mandated. I believe that, in the interest and
spirit of comity, the Executive Branch should seek to satisfy
the legislative needs of Members, as indicated by my prior
response. That may well include providing additional
information about Executive Branch programs beyond what would
be available to FOIA requestors. If confirmed, I will ensure
that the Office of Legal Counsel's legal advice in this area
would be consistent with such principles.
I appreciate your interest in these important questions.
Please let me know if I may be of any more assistance on
these issues or on any other matters in the future.
Sincerely,
Steven A. Engel.
____________________
