..

suggested the committee was created to damage secretary clinton's poll numbers. the speaker today is handed something to the benghazi committee. and bipartisan oversight, partisan politicized oversight discuss the public, it is gamesmanship, to the executive branch, is going to benefit. >> one of the best strategic things you can do is turn it

into a partisan food fight but if you turn it into a partisan food fight democrats on one side, republicans on another. the partisanship is caused by the defense. that is a very real consideration. >> sometimes you walk into a cafeteria there is a food fight going on already. >> there was a survey, the number one purpose of oversight is political. you have a reaction to that? that is anathema to my purpose of oversight which is to find the facts and do fact-based public policy, good answers based on solid fact-finding, but i was shocked there is an attitude out there that the real purpose of oversight is political. >> i might tweet that

exclamation point. >> 20% of the oversight is garnering 80% of the attention. 80% of the work is happening, bipartisan level, 80% of the work is getting results. 80% of the work is productive, mutually beneficial process. >> do you agree that the court may be responding to partisan types of investigation and benefiting more of the executive branch with equities involved because the benghazi hearings. >> the atmosphere is changing and if you go into courts for

this, the red scare iraq cases about congressional oversight, and a few ways off of the edge. and liability to be mistreated. it is it congress's inquiry, and not really listening to much else. if we are going to litigate against the executive branch which is different from private parties in terms of these fights to a degree, you get into the balancing between congressional need and confidentiality interest in the executive branch. it is a political thing to ask the court to do, how serious is congress in this situation?

how digital it is the confidentiality, calling into question political motivation for these branches, and presenting them with that dichotomy for judicial resolution come into the game of doing that, and it will bleed into that analysis. be change takes time to go to court is that is another respect that enforces the way we go with declaratory judgment in court and it holds up congressional investigation. there is the factor of time, and oversight especially to push the subpoena, document by document review. that is a long time. >> it is much better when done

in negotiation. to accommodate requests, to provide a matter, and line enforcement agent, politically accountable, mechanisms worked for many years. >> briefing on february 4th. >> different kinds. >> steve has to move on. we did our best, documents reflect -- that eventually came out, high-ranking justice department officials, why do we have all the facts, gather the

facts providing truthful information to congress. and anything that will happen, for nefarious cover up. difficult real-time circumstances. >> the idea of processes are equal. and executive branch is going to be -- and denial. political reality that leverages and dynamics, with the executive branch are going to be there and a lot more disclosure.

the meta-investigation getting into the what i call separation of powers, the ability of the executive branch to formulate response to congress getting hampered. in my house, 13 binders of subpoenas from the clinton administration, the transition counsel, and a high number from dan burton, predecessor on the committee, some of those subpoenas hit the white house and they say tell us everything you said today and in the next day you get another one and it was designed to degrade the executive branch agencies and chairman james rosen did not come close to that behavior. it is hard to respond to a congressional request. this is a milder version of that, i had a concern about

that, going after those documents that are representative of a lot of people to address congressional requests. >> the process of the issuing of subpoenas, seems more of a situation growing where individual chairman have the power to issue subpoenas on their own authority as opposed to requiring majority committees rule. is that a factor in those subpoenas where a member, that was a mccarthy situation where he sold subpoenas. i hate to give it up but it was limited to ps i, and maybe government oversight in the house. only two committees where the chair head has subpoena vote but if it is expanding you get in a situation where more members can issue subpoenas willy-nilly. >> steve had a similar transit

that i

i haven't seen the other side. i also give andy credit, an excellent article that i read in preparation for the panel and those who are interested find that article. pretty clear there is now a forum, judicial forum for resolving the dispute. and it needs some space for the deliberative process. and the agency has a lot of force, the circuit court would uphold the ruling. >> does the president have to

assert the deliberative process? >> under the presidential executive orders the process matters. the president is the only person who holds executive privilege. >> the deliberative process a >> would be a component. >> the president is the one. >> that act itself is a limiting function. getting from the signature, can't help but feel failure. something went wrong, don't want to take time on that. that is going to have a limiting effect, the president alone. and this adds confidentiality concerns.

long-standing executive confidentiality concerns. that language, executive branch signaling to congress, executive privilege, and can't say the words executive privilege. and the political judgments and legal judgment, whether and when to assert. >> the executive dynamic, and the white house and staff, uncomfortable, it sounds nixonian, executive privilege, and can't you have a little bit more. and you try to come back and say we can't go to the last set of documents so the president needs to back up here, executive privilege has been invoked.

>> i want to bring up another case. in that situation, the executive branch is turning over documents related to the affordable care act, and refusing the documents, whether or not congress, the executive branch could spend $2.7 billion, the obama administration will not give anything on this. and what is that? confidential privileges. what are confidential privileges. he could fill a drumbeat from myers to hold her, and expanding the view to the concept of confidential privileges, they

don't name deliberative process or executive privilege and apparently congress can't give an explanation as to what confidential privileges are. any thoughts? >> that is not going to be a line if congress moves -- or even into a contempt phase. my understanding it is an unremedied dispute being discussed in the context of standing litigation over the appropriation issues. to me i don't think that will hold water as a standalone principle or privilege or confidential privileges the new line of privilege. to get clarity congress has to move through its own resources to enforce its oversight prerogative to get to the bottom of what that is rather than

being a procedural fact. they will be able to blow past confidential privileges if committees move forward with these threats. >> i like that answer. they are expanding the notion of privilege. i want to take time to allow for questions from the audience. we have ten minutes left. i will take you in the red shirt. we are on c-span so we need you to use the microphone so the question can be heard by the audience. raise your hand so we can bring the mic to you. >> i work for steve on fast and furious and we talked about an open investigation you don't want congress and looking around

but of course the difference was the justice department is at the heart of the investigation. they were looking at mexican drug cartels. congress is looking at the justice department involvement improving the cooperation. misconduct and the operation itself, and involving the justice department, and this case is quite unusual. and the benghazi committee was all political. the benghazi committee, the benghazi committee had a public interest function, that came

from the benghazi committee, and i would suggest it is not just political despite the common reference, investigating what happened there. >> the separate email server, don't recall that. it appears, is a lot to show about misconduct by the state department. to distinguish the question, the role of justice officials in approving law enforcement operation, i don't think there is an effort to stop oversight or limit oversight in that

regard. that is a fair question that the operation was flawed. when talking about that, we are long past approval of search warrants and talking how the department is responding to the oversight request that was initially made. i think there was a line that was drawn, post february 4th. there was a second letter in may, the department decided it was reasonable the way that was drafted but ultimately there was a press for documents that were really about considering how to respond to the oversight, that is never-ending. you have oversight on the oversight, and the ground -- legitimate.

>> my main focus was a separation of powers, there were law enforcement equities in this dispute. and grand jury material related to the murder investigation of ryan terry, who is a border patrol agent killed by the guns that walked from this investigation. there were a couple things, the justice department had ongoing law enforcement activities related to the perpetrators of one of the murders related to the investigation and it was not politically charged. >> the gentleman in the red shirt here? you identify yourself. >> mike stern. my most relevant experience, and

pick up the suggestion we heard toward the end of the president's will invoking executive privilege, and the dividing line between the dispute going to court in the political process, the invocation, the reason i say that, and executive privilege to ask in the fast and furious find anything because my recollection is the attorney general wrote a letter to the president asking why executive privilege and attorney general later wrote a letter to congress saying the president authorized me to invoke executive privilege, the

attorney general representation. and and was sufficiently political. and and was sympathetic to the executive branch. the difference between the purely legal or negotiations and so forth. if the president does not invoke executive privilege, and timely

and personal -- can't keep dragging on but if he chooses not to invoke executive privilege, you have to secure legal disputes, a technical issue whether the document is being requested and responsive to the subpoena and jurisdiction of the committee, and those county disputes go to court. and to accept the political cost invoking the privilege and go to the other remedies congress had such as the appropriations power or whatever. >> you want to hear from me? i am a little nervous about the idea of going to court for

enforcement of subpoenas of the garden-variety level dispute, because it takes away the incentive to negotiate and the result of these things are most often, what steve says is happening, he may revise its request or honor a request for honor read action or something else the administration feel strongly about. and first flush says there's a crystallized dispute, having the president involved is an important limiting function. and walked to the white west wing, i need the president to

put his or her reputation and politics on the line despite the fight i'm having with appropriators and not many executive branch officials want to do that. that is an important part of this and constitutional purpose is to make sure it is going to go to the limit. and has democratic legitimacy. >> over here. >> executive privilege constitutionally based, deliberative process common-law based and why is it a subset of executive privilege? isn't that an important legal question? >> daniel brian with the proposal. i want to push back a little bit and ask the question of asserting agencies should preserve the right to have this conversation.

you suggest the reason you are comfortable with that, people are well-meaning and let's assume it is not true. and how do you preserve the right of congress to find that? >> through whistleblowers and initial oversight, was largely because the bureau of alcohol, tobacco and firearms, and officials describe their thinking and answer for themselves and to get at the documents that are themselves deliberative seems dangerous. and occasions that will have to

occur. and the shoes on the other foot. initiating requests to respond to oversight requests, principles that are applicable across the board. >> time for one more question and then we need to break for ten minutes. >> i am a professor, there is an absolute duty on the part of an attorney to preserve a client's confidence and congressional subpoena to discharge his duty, mustn't be willing to go to jail. >> i would say under the right circumstances the attorney should be willing to go to jail,

the dc bar has an opinion i don't have at my fingertips to try to grapple with the issue because there have been situations in which congress was seeking attorney-client privilege material under normal common-law, and congress has taken the position that you got to comply with the ruling of the chair, the one who authorized the subpoena, chances of getting a superfavorable ruling, objections are minimal. if you are taking that responsibility seriously, you walk the plank for your client. >> on that note. >> we will adjourn for recess for ten minutes. there are coffee and refreshments on the ninth floor. the pew center asks you do not

need your cell phones on the 10th floor, you can use them on the ninth floor. and we will convene in 10 minutes and our second panel on how to go forward from what we now know. [inaudible conversations] [inaudible conversations] >> this morning house majority leader kevin mccarthy talks to the washington post about the new congress and the 2017 agenda.

see it live at 9 am eastern on c-span2. >> this afternoon senator chris coons of delaware, amy clover chart of minnesota and james langford of minnesota discuss congress and governing. we are live in the event hosted by the george washington university at 6:00 pm eastern on c-span3. >> sunday on booktv's in-depth hosting a discussion on the december 1941 attack on pearl harbor on the eve of the 75th anniversary. steve to me on the countdown to pearl harbor, 12 days to the attack and the author of japan 1941, countdown to infamy and craig nelson, pearl harbor from infamy to greatness followed by an interview for the pearl harbor survivor and author of all the gallant men, an american sailor's firsthand account of pearl harbor. we are taking phone calls, five

said email questions. go to booktv.org for the complete weekend schedule. >> we are asking students to participate in the documentary competition by telling us what is the most urgent issue for the next president, donald trump, and the incoming congress to address in 2017. our competition is open to middle school and high school students grades 6 and 12 students can work alone or in a group of up to 3, 55 to 7 minute documentary on issues selectable to grand prize of $5000 will go to the student or team with the best overall entry. $1000 in cash prizes will be awarded and shared between 150 students. this year's deadline is january 20, 2017. that is inauguration day. for more information about the competition go to our website, studentcam.org.

>> now from the constitution project forum on congressional oversight powers of the executive branch, next, law professors and former capitol hill staffers consider changes under the new administration, ways to help the branches work together. this is an hour and 25 minutes. >> hi, everybody. i am the former dean of point state law school and director of the levin center, and co-professor on this subject.

we have our students today and i am pleased to be the moderator of the panel that will talk about, and the historical analysis of how we got where we are provided by great panelists including josh james rosen, research focuses on constitutional law, constitutional development, legislation and legislative procedure, the second book entitled congressman, constitution, legislative authority and separation of powers at arl university press, and in popular press. after josh we will hear from david hayes, visiting lecturer

at stanford, institute for the environment. prior to that, deputy secretary and chief operating officer at the department of the interior, the clinton and obama administration, the forum between the service worked in the private sector and shared the environment, land and resources department, the chairman of the board of the environmental law institute, chairman of the board for stanford law school and vice chair of the board of american rivers and served as senior fellow for the foundation, graduated from university of notre dame from stanford university. before we hear from david we will hear from carrie kercher, who retired from general counsel to the house of representatives where he served for 20 years in that office, was known for his insistence on the office of

general counsel operating on nonpartisan basis and over the course of the career, he participated in a significant number of high-profile cases, and separations between article 1 and article 2, branches of the federal government and the lead counsel and worked extensively, two congressional subpoenas we talked about a lot today, he graduated from stanford university and university of michigan law school and university of london. we will hear from david and finally more rosenberg, specialist in american public law, and the congressional research service from 1972-2008 who specialized in areas of constitutional law. administered of process, congressional practice as teacher, law and interfaith congress, and the author of a number of journal articles on

separation of powers and administrative law issues testifying numerous times on these issues which retired and since then undertaken a variety of projects including engagement by the constitutional project, research and writing by the congressional investigative oversight, when congress comes calling, unprincipled, practices, inquiry, published in 2009 and students in the class i referenced earlier, even signed his book. great to have you here today. with that i would like to start with john. each panelist, and the current system whether it is working on these reforms. we will open up for questions. we start with you.

>> i thank you for showing up. the white house and congress with access to information. the panel, how do we do with the venus based community can't come, with additional processes. as you may have noticed on the only one speaking today without significant government service, perhaps the way to conduct a handle on that, is to try to give historical overview and historical background to controversies today. and the us attorneys controversy, fast and furious

investigation, benghazi, but the really gripping divisive partisan controversies in the united states. those of you who remember your american history or first year of law school will remember the second bank of the united states, after the supreme court upholds it, makes it a centerpiece of the presidency to destroy the second amendment by vetoing renewal of the charter and before that all the federal funds by bankrupting it. this makes a lot of people in the senate not terribly happy. in 1834 in response they passed a resolution of approval, jackson, famously erasable man responded with a very lengthy message of protest to the senate telling the senate the only way

the senate can interfere in my exercise of my constitutional processes the veto through the power of impeachment. impeach me or shut up. that is what he says. this is not taken terribly well. they passed a resolution accusing him of breach of privilege. people who know the history, and the problem with history, contempt dealt with more general contempt of parliament were breach of privilege is what they used when identifying specific privilege some outsider had reached but they were enforced in the same way. the fact the senate called on the language of breach of privilege in response to jackson is meant to heighten the controversy and make it much more powerful.

jackson response with a mortal tempered message. you might be wondering how the senate and forced the finding of brief budget of privilege and there are a couple ways. in some sense finding itself with its own enforcement. at this point jackson and the senate are lost in significant battles, today called the hearts and minds of the public, there are a number that were then called anti-jacksonians called the whigs in the senate at that point and trying to get some negative publicity to stick. finding breach of privilege calling on this tradition of legislative mechanism was meant to be won before doing that. the other way they enforce it is the use of what i call personnel power, start refusing to confirm

jackson's nominees and plays especially in the case, at this point both attorney general and acting secretary of the treasury, the one responsible for withdrawing from this. jackson a month after the senate finds him in breach of privilege jackson nominate him secretary of the treasury. the next they the senate votes him down. no garland like delay, it is done. for senate nomination, jackson again, not always interested in making nice and a few months later nominates tonnie as justice of the supreme court. this is a similar situation they refuse to vote on. it does not provide another year after that, the death of john marchal where jackson again

nominates tonnie, this time as chief justice and public politics changed a little bit. jacksonian forces offended against the whigs and at that point tonnie is finally confirmed, results that are less than ideal. something similar happened a decade later in the house, the house of representatives held john tyler in breach of privilege, protesting against the house resolution that criticized him. john tyler was the first vice president to assume the death of his predecessor, william henry harrison died 30 days after his inauguration. tyler is known as the accident hated by his own party and excelled from his party five month afterwards. in a sort of shocking example of political falling out and once again, the way congress chooses to express displeasure, to

enforce the breach of privilege findings and other political disagreements with tyler, pulling on other mechanisms and tyler actually to this day has the worst record in american history in getting nominees confirmed. he nominated tween 9 supreme court justices. he had a similarly record with cabinet as well. the point i am trying to make with these examples, it is a mistake to think about contempt or breach of privilege as being either inherent, rich requires imprisonment or legalistic, going through the court. congress has a tremendous number of tools it can use in disputes with the executive branch and uses them all the time.

another example i promise won't take long since the 19th century. from 1866 james frey, thurgood marshall general, got into a spat with an increasingly important member of the house who went on to the senate after that. as a result at the end of the day, finding fry in contempt of congress but how does it enforce that. a writer to an appropriations bill, it is no more. and the bureau he was in charge of. with the personnel power, tugging pursestrings, it is not until the 20th century, and any attempt by the house of congress

to go forward. in the myers case, in watergate, the senate select committee and presidential campaign acts, the first congressional committee that seek judicial enforcement of a subpoena and they don't get when seeking enforcement subpoena for the white house taste, for the district of columbia and dc circuit and a lot of reasoning centers around the fact this would interfere with ongoing grand jury investigations, something we heard a little bit about on the previous panel as if the court could not conceive of any higher interest and this is the last point i want to make, i will set up for now. the court is not -- the issue isn't actually -- of mars, venus and pluto, there is a third that

we can't simply access, the courts are a neutral arbiter, outside the political process. in watergate, they take a judicially centered view of the situation. it would be duplicative, the house has the made interview with grand jury investigations, what is the effect of this. the senate investigation, what it does long-term is part of the suite of cases arising out of watergate, when americans, americans generally think about watergate. the hero of the story, we talk about the nixon tapes case coming to the supreme court which sets in motion a chain of eventss. there was a parallel proceeding going on, the house was close

when that comes down and they assert themselves and make themselves the heroes of watergate and that increased institutional power to the court and it is a mistake to think we should these things off, there are other problems with the issue of timing when it goes to the court. and the second level problem is the court steps in poaching the reputational benefits accruing to congress if congress were to use its own mechanisms to get this information. going to court should be a cautionary tale and a complication to the story in the beginning, if you have bipartisan investigations, the house investigation in watergate was famously bipartisan, the court nevertheless take the

first opportunity they have for fame and glory themselves. i would suggest in so far as we care about congress's institutional power, not only the executive but the court as well as suggest we might draw a bit more inspiration than from watergate. >> the historical context as well and the view of the court and the process. i want to go next to carry to provide additional commentary. >> i went to appreciate the opportunity to speak, 20 plus years of experience with the house general counsel's office it will not come as a surprise in regard to congressional oversight absolutely essential to congress's ability to

legislate and congress's ability to check the executive. from that perspective i would like to make three points to pick on josh's larger point of what do you do with mars and venus up against each other? i agree with the earlier panels. a lot of oversight goes on beneath the radar screen. what you want to mention is what we do with two branches clashing with each other? number one, litigation is an option available to the house and senate, very cumbersome and uncertain mechanism by which to enforce congressional subpoenas and congress should resort to litigation only when it has no other options. there are three reasons to the point. number one, the identity of the judge in the district court case will matter a great deal of

congress has no ability to select which judge it will get to hear its case. fast and furious, a case study on this point. in the myers and bolden case the judiciary committee in march 2008 the judge in that case properly agreed he would consider the jurisprudential issues and merits at the same time, those issues were briefed simultaneously in the form to emotionally dismiss the department of justice and partial summary judgment on the part of the committee. on july 31, 2008, the district issued a 93 page opinion that addressed every issue of the case very thoroughly from top to bottom, less than five minutes from start to finish. in the fast and furious case on the other hand, leaving aside these cases the amount of time expired before the complaints

were filed, the fast and furious case, in august 2012. one of the district court's decision was the merits and jurisprudential issues would not be briefed simultaneously. that resulted in briefing on the department of justice's motion to dismiss which occurred by the end of that year. on september 30, 2013, we had a decision on that issue. it was an opinion that widely reiterated the holding of standing issue in the myers and bolden case. it took me 9 months to

august 2014 to get a ruling on cross-motions for summary judgment that followed the standing ruling. we are another year into the case. that ruling as you know punted on most of the major legal issues. it was recognized to deliver a process issue with a number of other legal issues that were briefed on both sides. it did not address those issues. it went into a period of privilege logs and making decisions, determinations about individual documents but not for another 12 months roughly january 2015 when the committee filed a motion to compel the remaining documents in january 2016 until you get final

judgment which again resolved the case and punch on a number of major legal issues framed up in the course of the case. the difference between five months in myers and holden and 31/2 years in fast and furious, litigation is not a great option, the point i just made, it can be agonizingly slow. congress does not function on the court schedule, congress, in the house and the senate, on a two year election cycle. it is hard to get anything done in the courts in that period of time which the third point i would make is because of the time it takes to litigate and the possibility of power changing due to intervening elections, congress can never be certain when it initiates the case that it will see the case through to completion.

myers bolton is an example of that filed in 2008 as indicated, district court ruled later that year. and fall of that year during the time of the bush administration, fall of that year we had an election, there was a new cast of characters, a different view on things and shortly thereafter, that matter was settled and never went -- appealed to private election and dismissed after the inauguration. for all those reasons litigation is not a great first choice for the house and senate. it has a place, but the last option for the house and senate when you don't have any other options. my second larger point we can pick on some of the things josh

said, is congress needs to get back to using some of the other tools it has in its constitutional quiver when dealing with these oversight matters, needs to get serious about using those tools, talking principally in the house about the appropriations process and the authorization process, additional advice and consent power. if there's one thing the executive branch understands, it is money. the house and senate have the ability to withhold appropriations, threaten to withhold appropriations, compliance with request information or subpoenas. that is not happening at the moment, has not happened for some time and is on its way. if these other constitutional powers are used effectively it

really falls to the leadership of both branches, both houses of congress. leadership has to step up and make clear this is a priority, compliance with oversight request is a priority for the house and senate, has to involve itself more directly to resolve these things to make clear to the executive branch the house and senate have these matters seriously and lastly, it needs and appropriators in particular, and understands they are on the oversight team even though they are not conducting oversight themselves, what they do and the functions they carry out in their committees are a key component to the house and senate to get the documents they seek. my last large point is given will continue to be an option,

there may be ways for congress to streamline to make it more smoothly and expeditiously than it has in the fast and furious case. in 1997 the congress executive work at odds over the census bureau's plan to use statistical sampling methods to conduct the 2007 census. litigation over this congress enacted legislation, and did three other things. the legislation required those would be heard by a 3-judge district court. number 2 it provided direct appeal to the supreme court. number 3, it provided, i will quote the speech from statute it shall be the duty of the united

states district court hearing an action brought under the sanction of the supreme court to advance on the docket and expedite to the extent possible disposition of any such matter. it seems to me congress in recognition of fundamental importance of congressional oversight, might consider enacting similar legislation for congressional subpoena actions. >> thank you. for the perspective of the legislative side, from the perspective of the executive side. >> thanks very much, great to be here. really enjoyed the first panel. i should say i have pseudo-academic qualifications after i read andy's view of the article i know of virtually nothing about the academic side of this issue. i have been more on the trenches and that is what i want to talk

about here. first let me say as former deputy secretary of a department that is controversial. many times, there is an important function for congress here in terms of oversight. you see it done well. and we see it not done well. my experience, i mention one current example that is being done quite well. i credit chairman james rosen for what he is doing in terms of oversight of the national park service and concerns that are rising in the number of national parks. and an opportunity for the director of the national park service to respond to the allegations. that is the way oversight should work. good things come out of that

investigation. i should also say, my experience in the government i have found the appropriations committees have done very good oversight, not the traditional oversight if you will, where you can expect an adversarial relationship from the beginning but instead in part because of the process, much more collaborative relationship with experienced congressional staff and internal folks in the agency working things out and in recognition to carry's point that at this meal of the day the money has got to come and so there is a good incentive for working things out. ..