and his commitment to uncovering the facts. these strengths played out significantly in his oversight of the financial sector, in particular the 2008 mortgage bank crisis, offshore tax shelters of wealthy individuals and multinational organizations and money laundering. he brings a wealth of experience and accomplishments to any discussion of oversight and we're so pleased to have him join us this morning. senator levin. [ applause ] >> jenny, thank you so much for the introduction. according to the program here, i guess you're part of the welcome and i'm sort of the overview part of that line. so mine is going to be a little bit longer than a welcome, not quite as long as the papers which i've stuffed into my pocket but a little longer than the other remarks. thank you so much for the great

work of the constitution project. we actually in the teaching i do with jocelyn benson at wayne state law school we are now in the middle of a course on legislation. our main focus on that course is on oversight. some of the cases and practices that are involved in oversight, we actually use mort's book as one of our texts in our course. i hope jocelyn gets here. she until recently was the dean of wayne state law school, now she is taking on other responsibilities but she's also going to continue at wayne law as director of the levin center. i thank the pugh summer for their hospitality today. obviously tremendously indebted to linda, who was my director, staff director, the one who was

also the staff director permanent subcommittee on investigations. an earlier oversight subcommittee which we had, which was called oversight of government management. walked in here, a number of people greeted me. i said, is linda here? they said, oh, linda is here and we all love her. everyone told me how much they love linda, with good reason, folks. she's an extraordinary, extraordinary human beings. we have four students from the levin center. we want to greet them, give them a chance to participate here watch what goes on here in this particular forum. let me kick off now just a few oversight remarks, overview remarks of what we're going to be talking about here today. i believe very deeply in the

constitutional responsibility of congress to serve as a check on the operations of a vast expanse of the executive branch. that responsibility has long been recognized as an integral part of our system of checks and balances. in 1927 the supreme court explicitly stated in the case, quote, we're of the opinion that the power of inquiry, with the power to enforce it is an essential and appropriate auxiliary to the legislative function. that position of the supreme court was reinforced in watkins when the court clearly acknowledged congress's inherent power to conduct investigations stating it was a broad power, including inquiries concerning the administration of existing

laws, needed statutes, defects in our economic and political system and, quote, probes to discuss corruption, inefficiency or waste. it was that needed power and existing power of congress that caused me when i came here in 1979, and for the subsequent 36 years i was in the senate to choose to dedicate a significant portion of my time as a senator to conducting oversight. in order for oversight to work, it has to know what's going on in the executive branch. that means making demands on the executive branch for information, both documents and witnesses. because i take an expansive view of congress's right to know i'm

concerned about recent court developments like the holder case where the district court recognized a broad, deliberative process -- deliberative process privilege. with the growth of e-mail -- in other words things that can be put in print, with the growth of e-mail and hacking and leaks, i am somewhat sympathetic, frankly, to the need for the executive branch agencies to protect their intraagency and even there entinteragency communications to the extent they are in preparation for developing a policy or a position or responding to an outside event.

the decision making progress has real value onso people can talk and communicate a final position for the agency or the person uttering words. that recognition like a leak in a dam can result in a flood over time. and the consequences if not limited can result in overseeing programs. we've actually seen some indication of overbreadth that is apparent.

that happening and the house's recent administration of obama's actions under affordable care act where house committees sought information that had been denied based on the the administration's clal of, quote, confidential privileges, unquote, which is pretty vague. i also feel if congressional oversight is viewed as highly partisan as opposed to institutionally sound the courts may respond with a more protective position than they otherwise would. if that approach becomes accepted the consequence can be the congress loses it's power to know, to know what's going on in the program it creates and executive branch and, hence, loses its power to act on an informed basis.

congress doesn't have to go to court at least theoretically to enforce its subpoenas. it has inherent enforcement authority which means it could issue a contempt citation, hold a trial on its own. if the person is found in contempt, the congress can put the person in jail, a congressional jail. congress already seems like a jail to some of its members. this is a different kind of a jail. but the supreme court recognized this authority and since 1795 congress actually used this power over 85 times. in most cases successfully. with good reason, but the presence of that inherent contempt authority does speak to the significance of congress's need and its right to know. in the recent myers case and in

the holder case, the house for the first time adopted resolutions authorizing the house general counsel to bring a suit in federal court seeking enforcement of its subpoenas. in both of those cases, house committees were seeking information, both documents and testimony in the case of myers and documents in the case of holder and chose to go to federal district court to federal district court to enforce their subpoenas. the reason they did this is because the justice department refused to bring the contempt citation that the house had passed in both instances before a grand jury despite our laws requirement that it is the quote duty of the u.s. attorney to do so. and by the way, the myers case contains some eloquent words that really reflect my

view, and i want to read them to you. congress's power of inquiry is as broad as its power to legislate and lies at the very heart of congress's constitutional role according to the supreme court, the ability to compel testimony is "necessary" to the effective functioning of courts and legislatures, citing the brian case, thus, congress's use and need for vindication of its subpoena power in this case is no less legitimate or important than was the grand juries in united states versus richard nixon. both involve core functions of a co-equal branch of the federal government. now, these -- the recent cases are only district court cases,

they're not appellate cases so they're subject to revision and review and the holder case is currently on appeal but we are on new ground here and we have to recognize that we're now going to face a -- have a new congress and a new president and that we have to think through and talk about and see if we can come to some kind of a resolution of the inherent conflict that we're talking about between the need of congress and the need of the executive branch. the goal of any document request is actually to avoid conflict between the branches but we're in a political environment where conflict is inevitable and of course that means that the tension between congress and the constitutional responsibility to oversee the

workings of the executive branch and on the other hand the president's claim of executive privilege and deliberative process to have a free and frank discussion both have to be recognized and the resolution of that conflict is something that i hope that we can talk about here today. and, again, i just want to emphasize a point which i made briefly before, that in resolving the tension between the need of the legislative branch and the need of the executive branch that the more intensely partisan oversight becomes, that the more likely it is the court will protect the equity that is involved and the need for a deliberative process in the administration, i think if there was any point that i would want to reinforce in these remarks, it would be that.

we've seen highly partisan investigations without going beyond that and identifying any particular one. there have been highly partisan oversight herings and investigations. and if that is going to be the perception of the court in trying to resolve that is the equity in an administration, the court is kind of naturally going to say, well, if the congress is going to involve itself in highly partisan use of the investigative process and not do it on a bipartisan basis for the institutional need to use oversight in order to get information, that the court i believe -- and this is just based on my experience, the courts are likely to respond and to give greater deference to the equities which are involved in an administration wanng to

have freedom debate without it being miskharkized again as -- free debate without it being miss characterized again without it being a decision when it's merely a discussion. so high partisanship, intense partisanship jeopardizes jeopardizes the congressional oversight role in a sense in my view in a number of other ways as well. when the new president, a new congress began in 2017 it will face the issues which you'll be discussing today so this is a very meaningful time to review the rights and the rules and the principles that govern this tug-of-war between the branches and to contemplate a path forward. what's needed is to ensure that congress can access the information that it needs to

oversee the executive branch and were necessary to check the executive branch effectively and how should congress at the same time be held accountable for how should congress at the same time be held accountable for using its oversight powers and its tools of oversight appropriately. we look forward to the panelists and these panels, we're very grateful to them for coming here today and to all of you for being with us as we discuss a very, what i'm sure is perceived by the public as a very dry and a very arcane issue but it's an issue which goes right to the heart of government. great being with you. thanks for showing up here today. [ applause ] thank you, senator levin, for those very wise remarks that come from decades of experience. it's my privilege to moderate

this first panel which will look at the development of the law and practice with respect to congressional access to computive branch information, and to assess where we are now in light of recent events, in light of the myers case and the fast and furious case. you're going to hear fast and furious, holder and lynch. those are all the same case. fast and furious is the generic term. holder was the name of the case all of those are the name for the same case and the same situation. i spent 24 years in the senate doing oversight with senator carl levin as a member of the then named government affairs committee, homeland security and governmental affairs. i supervised a number of the

investigations of the executive branch including dod procurement, irs seizure policy, the apparition of social security disability program, debarment and extension and web tech and campaign finance reform. throughout those investigations, we took a very limited view of executive privilege and the right of the executive branch to withhold information. it's a position very similar to the legal argument congressman isa made in the lynch case. i don't agree with everything but i am very close to his position on this, i must say. the privilege was very narrow and depended upon the nature of the investigation. i gave little recognition to the deliberative process exception when it involved intra-agency communications.

nor was one ever claimed. the kind of questions we were asking of the executive branch i don't think ever raised suspicions about the deliberative process exception. but i must say that my attitude towards it was that we would rarely, if ever, recognize deliberative process in the context of an intra-agency communication. in the past few years, with the decisions in myers and holder, things have changed. there appears to be some greater recognition that the deliberative process documents and conversations are now exempt and can be exempt from congressional access and the courts are the mechanism to settle these disputes. and we've got to know today what

that means for the future of congressional oversight. i wouldn't call it a sea change, but it's a significant change that we need to see if it is in an opening to a larger and larger refusal by the executive branch to provide congress with the information it needs. joining me on this panel this morning are three individuals who not only had direct involvement in fast and furious but also have a distinguished history of working on numerous other congressional investigations so they can draw from both recent and past experience. so let me first introduce to you the panel. first we have steven castor. he serves as deputy general counsel for the house oversight and government reform. he joined the committee staff in 2005 and has served on the committee as general counsel and chief counsel for investigations. he has worked on a number of notable investigations, including fast and furious, the

irs, steroids in baseball, and jack abramoff. he received ba from penn state, mba from lehigh and jd from george washington. next we have ron weiss. ron serves as dean of the university of baltimore school of law. prior to that he served as assistant attorney general for legislative affairs in the justice department. representing that department on all legislative and oversight matters before congress. he has served chief counsel to harry reid, edward kennedy and received his b.a. from columbia and j.d. from yale. third we have andrew wright. andrew is an associate professor at the savannah law school where he focuses on separation of powers with an emphasis on congressional oversight and national security. and he previously served as associate counsel to president and assistant counsel to the

vice president in the obama white house, as well as staff director and counsel to national security subcommittee in the house of representatives. and he received his b.a. from washington and lee and j.d. from university of virginia. so i want to thank you all three for being here today. each panelist will have 10 to 15 minutes to present their comments. i will ask them a few questions. after that, we will open to the audience for additional questions. so let me start with you, steve. you were on the house government reform committee staff for fast and furious. this was only the second time, the first being the myers case, in which the house decided to use the courts to enforce the subpoena and seek a declaratory judgment in doing so. can you give us some background on these cases and why congress felt obligated to seek a declaratory judgment from the district court, why you didn't

use your inherent contempt authority and why you didn't seek to use the u.s. attorney to enforce the subpoena. >> well, thank you. thanks for having me. fast and furious was a gun trafficking case gone wrong. the decision was made along the southwest border to stop interdicting weapons purchased by straw buyers and instead allow straw buyers to purchase the weapons illegally and walk away, with the purpose of allowing the network to develop. and while watching the network, the plan was to take the whole network down and to stem the flow of traffic to the cartels in mexico. and it didn't work. and in hindsight, it is no surprise it didn't work. it is is certainly a case worthwhile of congressional oversight. nobody has ever said it's not worthwhile to look into what

happened. there was a significant thing to look at at the local level of atf, all the way up to senior levels of the justice department. after the investigation commenced, a very early portion of it, february 4th, 2011, a letter was written to congress that was false, denying charges, telling us essentially to go away. but the problem with that was we had insiders providing us firsthand accounts and documents. and the february 4th letter was wrong. it was false. ten months later, that letter was withdrawn. part of our investigation is what happened during the gun trafficking case gone wrong. but another part of the investigation was what happened between february 4th and

december 2nd, 2011, nearly 10 months where congress was stonewalled, obstructed, told to go away, it was not a legitimate oversight effort. and the justice department blanketly, in blanket fashion told us we were not entitled to any documents post february 4th. and we brought contempt on the house floor. both civil contempt and criminal contempt. it was passed in bipartisan fashion. 15 or 17 democrats joined the republicans. but it was presented to the united states attorney and the united states attorney declined to prosecute. there was a criminal and civil component. after the united states attorney declined to prosecute, the president exerted executive privilege that that certainly is a major factor why the u.s. attorney is not going to prosecute. we filed a civil lawsuit.

the lawsuit is ongoing. we filed our appeal brief on october 6th. so as it relates to activities at the district court level, although i might have a great appetite to talk about it, i do need to be restrained. it is in litigation. it could be remanded. but, you know, that being said, a lot of very important oversight actions happened prior to following the lawsuit. you mentioned inherent contempt. it hasn't been used in the house since 1916. it hasn't been used in the senate since 1934. the process of inherent contempt would involve the committee passing contempt citation, taking it to the house floor, and having the speaker instruct the house sergeant-at-arms to go arrest the attorney general and

bring the attorney general to the house jail. and that hasn't been that type of enforcement mechanism, hasn't been used in a very long time. so we certainly are aware of inherent contempt. it certainly is a valid means of an enforcement but it hasn't been used in so long that it's hard to consider arresting the attorney general of the united states as an ordinary means of enforcement. >> you said u.s. attorney declined to prosecute because of executive privilege. but wasn't that a deliberative process privilege, or was that executive privilege? and maybe you can explain the difference a little bit between executive privilege and deliberative process privilege. >> do you want me to jump in? >> sure. this is executive branch doctrine here so i'm not speaking for congress certainly. but you know, deliberative process would be one component of the executive privilege sort

of umbrella doctrine according to olce, executive branch doctrine over the years. so the president asserting executive privilege gave it a slightly different and is there was no contempt if the attorney general is following executive branch policy under the president's orders, than there was, from the u.s. attorney's perspective, maybe no criminal at at all. >> the documents being sought were documents that were internal largely to the justice department. they weren't just documents within the white house between -- to and from the president. they were also intra-agency documents. >> our subpoena had 22 categories. and subpoenas are issued at the -- on the early part of the investigation. by the time we got to contempt, we had obtained, not necessarily from the justice department, but we had obtained many of the

documents we needed to evaluate the operational component of fast and furious. we ultimately sued on four of the 22 subpoena items. and we sued on documents that were dated or created after the false letter, february 4th. >> ron, do you want to respond by executive branch, department of justice's perspective on fast and furious? >> sure. first of all, thank you and senator levin for hosting this event and jenny sloan and the constitution and the pugh trust for providing this wonderful space. i want to pick up on something senator levin said in his introduction. he noted the timeliness of this event, because we're two weeks out from a national election, and to put a finer point on that, we don't know how that election will come out. the polls speculate this and that, but we don't know and we won't know until election day who will control the agencies of the executive branch. and in this particular election, a genuine question about who

will chair -- which party will control which senators and house members will chair the various committees and subcommittees of congress. so we have what sometimes is referred to as a veil of ignorance, a useful thing, where you don't know who is going to have a benefit or have an interest to consider what the proper principles and practices are, no matter who is issuing the subpoena or responding to the subpoena. so i think this is exactly the right moment to ask these questions. i'll turn to fast and furious in a minute, but let me just offer these general thoughts as someone who has been on both ends of pennsylvania avenue, as linda indicated in introducing me. i worked for senator kennedy and later for senator harry reid and was involved in and initiated oversight requests, and then assistant attorney general of the justice department, i was responsible for speaking for the justice department in response

to those requests. and let me say at the outset and thank my colleague, steve castor for being too graceful to say i signed that february 4, 2011 letter that was false. i didn't know it was false. i'll tell you one story. when i became the assistant attorney general, someone who had the job before me, a friend, told me that i was going to sign 100,000 letters, and one was going to blow up in my face, and i didn't know. i wasn't going to know in advance which one it was going to be. it turned out to be february 4, 2011, fast and furious. i believe based on my experience over the years, both branches of government that oversight is a very important and legitimate function of congress. it is beneficial to the congress, in fulfilling its role in legislating and making sure public dollars are well spent

crafting new legislation or modifying existing legislation. therefore, it benefits the american people. but i would also add that it's beneficial to the executive branch agencies. at the justice department, we recognized that that kind of oversight kept us on our toes, and helped undercover mistakes and programs that weren't working as well as they should work and certainly in this case, it uncovered a law enforcement operation that was fundamentally flawed. having said that, so indeed, the public has a right to know, k-n-o-w. i think there is sometimes on the other side of the ledger, there are times when the executive branch has to say no, n-o. there are several categories in which this becomes acute. especially at the justice department. that's the agency i know best. just to review quickly. the department is concerned any time there is oversight into open matters. when the department is conducting a criminal investigation, perhaps in the

middle of a prosecution where there may already be an indictment. it is very dangerous for congress to be mucking around in there. it can alter the course of that law enforcement operation or prosecution in a very detrimental way. we urge congress to be very careful, and frankly, to withhold oversight while a matter is open. even after a matter is closed, there are concerns about deliberative process, and we've talked about that and can talk some more. because executive branch officials and certainly in law enforcement decisions, need to be able to communicate with each other. senator levin spoke about e-mails, a whole new world when he and i first became lawyers. now we talk to each other electronically very often. it is a very efficient and effective way of doing that, especially in the justice department, which is a sprawling institution, with many, many components, not just in washington, but across the country and you can press a

button and speak to 25 people at once, all of whom need to know the information that you're conveying and want to weigh in on strategic questions. but sometimes it is merely conversation. it is figuring out what we're going to do. not a pronouncement of policy or law enforcement action. we do feel, and i say we, i'm no longer there, but i refer to the "we" there. and you know, we feel that for executive branch officials, especially in an agency of law enforcement agency like the justice department, we need some space to talk amongst our selves without that being revealed. there are also concerns when line attorneys or line law enforcement agencies are career people who are making decisions are the subject of oversight and are asked to answer before a political body, congress, for good faith career law enforcement decisions. then obviously there are national security issues.

those are the kind of considerations on both sides. yes, oversight. but we need to have some boundaries. the cases that have been discussed, the meyers case and the fast and furious case, do present some new boundaries. first of all, i think it must be noted that on the congressional side of it, we now know at least from these district court decisions, we don't have an appellate decision yet. it appears from those decisions there's a forum which congress can seek enforcement. you don't have to bring the attorney general or assistant general to jail in the basement or have sergeant-at-arms watch over him or her. you go to the district court and it appears those judges will hear the claim that a subpoena hasn't been complied with. but judge jackson in the most recent discussion in the fast and furious case did say that there are limits to what the

congress can obtain by subpoena. in fast and furious and i'll just answer real briefly. i don't mean to monopolize the microphone, but just briefly, steve lays out the facts. i only quibble in this respect. certainly as the house committee sought to determine what happened in this flawed law enforcement operation, that was legitimate oversight, and i believe the department was reasonably responsive in providing that information. the committee then wanted to determine how it was that a letter was sent from the justice department that denied facts that turned out to be true. that was legitimate, and documents were provided that explained it, explained that individuals who had knowledge of the matter more closely had asserted facts that turned out not to be true. but then the dispute was should

the congress get to review how the department responded to the oversight. what we in the department sometimes call memos on memos. and there, you are getting right to the heart of the ability of the executive branch to function and in a rough way, steve will quibble here and there, in a rough way, i think the dispute was, should the department, any executive branch agency have the ability to say wait, talk amongst our selves to respond to the oversight and ultimately, after judge jackson's decisions, the department released a lot of material that i think showed that the department was responding in good faith, trying to get to the bottom of a situation that officials in washington didn't fully understand and respecting the prerogative of congress to ask questions that would further a legislative purpose. >> i'll let you respond, and then we'll go to andy and you can give us the professorial view of the case.

>> one fact ron didn't mention was that halfway through 2011, head of atf, ken nelson came in to speak with us without his justice department handlers and told us that the justice department was trying to keep information from congress, that the justice department was trying to push away evidence from their political officials. so that is a very relevant piece that happened in july of 2011, and you know, our investigation, you know, in part was looking at what happened over those ten months. >> andy, do you want to give us the larger view of -- >> sure. >> the significance of these cases are, and especially the holder case. >> yeah, sure. let me just, you know, first of all, as a disclosure here, i was one of president obama's lawyers during all of this and i certainly -- the white house component, several of them got component, several of them got

letters during that period. the office of national drug control policy, security council staff. we had a lawyer in the office that had been a senior justice department official who also was interviewed by the committee and the president asserted executive privilege. so i had some work to do on this matter, so i don't want to pretend i'm totally detached, because i was definitely part of those various roles that have been out in the public domain. and so you know, but i will say this. first of all, based on my experience on the oversight committee, i worked with steve before i went into the white house on the democratic side, and my time in the executive branch in two white houses, the clinton white house and obama white house, the two branches see this from totally different perspectives about how the constitution works. and so that's one thing i want to present to you as food for thought. congress very much sees it as a legal process, like a court and uses all the language, hearings, subpoenas, you know, all of the sort of indicia of court

proceedings, contempt, all these things in law. i think there's validity in that. it comes from history of the legislative and judicial functions being separated at parliament before we were even founded. but executive branch sees it very much from a perspective more like negotiation and accommodation, where these are co-equal branches of government, both of whom have legitimate interesting, recognizing congress's legitimate needs for recognition but recognizing confidentiality interests as well. each and each interaction with congress will be some sort of negotiated result about how can congress get what it needs without damaging the executive, you know, essential functions as the executive branch sees them. so you know, there is a cynical side to this, you know, congress can help upend status quo of executive having documents by suggesting they are entitled to them as a legal process like you would see in a court.

that's certainly within the self-interest of congress to do so and certainly within the self-interest of the executive branch to suggest -- to protect the status quo of not giving our documents over the "know" and no." but i also think there is generally held views within the two branches going back across administrations of divot parties that are about how the constitution structure works. it is not just a cynical exercise. it is a genuinely held belief by people at the department of justice and other departments in the executive branch that that is a much more negotiated result than a legal process that is supposed to be fixed as an entitlement. that's just one point i throw out for your as food for thought to the crowd. now, in terms of these particular cases, you know, the meyers case, when it came out with the house judiciary

committee, bringing that suit, resulted in a rejection of the executive branch, the bush white house, and of a blanket immunity from the white house counsel coming to the hill to testify. and basically, the ruling held that there is going to have to be a question by question assertion of privilege in front of the committee. you can't just say this is a such a senior advisor, so close to the president, they can't come up under the circumstances of a subpoena. i think tracking that same thinking on the document context, one of the principles that comes out of lynch and holder is the idea that we are not going to have this at the categorical level, fought at the document level. one of the things that the executive branch really tried to mightily resist was the idea of having to go document by document level, mostly because of burden. you know, if you're asking for every document generated by fast and furious, after february 4th in the department, this getting

clip services every day with stories about fast and furious, it is a large volume. the idea that you're going to go through document by document privilege log i think it was a daunting thing. and so i think that's one lesson that comes out of those cases. this will be fought at the document level when you get into courts and not be able to say this category of documents should be off-limits. that's a big win for congress coming out of these, where the law stands now, depending on what the d.c. circuit does. another point that we've mentioned was this principle that deliberative process privilege applies to congressional requests. this is one of these things where there have been two totally separate legal doctrines, one in congress internal to congress and one

internal to the executive branch that are like living mars and venus basically. congress has taken the position forever that common law grounded privileges do not apply to congressional requests. attorney client privilege, spousal immunity, et cetera, including deliberative process privilege outside of the narrow presidential communications component of executive privilege recognized as having a constitutional basis in nixon. executive branch has always believed --

>> good afternoon, everybody. it's been a while since we met in this venue. it's nice to get together again. i think this briefing is going to go a little differ than we all anticipated it would 24 hours ago but i'll certainly do my best to answer many questions you have in the aftermath of the election. let me just say a couple of things at the top, three things actually. the first is that i think the president and the tone and the priorities he exhibited in the rose garden are indicative of the approach that the white house staff is taking to ensuring a smooth transition and working to insure success of president elected in leading the country. the second thing is the results of the election are not even 12 hours old. executive branch gloss on that

case. >> it's the strongest case we ever had on recognizing a deliberative process privilege within an agency? >> yes. >> the last point i'll make is i love congressional oversight. i worked on the walter reed investigation and payment, protection payments to the taliban on our supply chain. and helping congress learn things to legislate wisely. i think the biggest impediments to congressional oversight aren't these narrow chrrystallid disputes. it's about will and resources for committees. there are a lot of committees not doing oversight. the government oversight and reform committee is an

exception. they have long histories of doing penetrating oversight. i can't remember the last time the house judiciary committee built the kind of investigative infrastructure to do the penetrate ing oversight we need. while i do maintain some of these executive branch views about the legitimacy about confidentiality interests, i would like to see much more robust congressional oversight as a function of congress putting its resources towards that goal that will make more meaningful efforts for committees in their jurisdiction to do their work. >> why do you think other committees aren't doing robust oversight? why do you feel it's diminished over the last 20 years or so? >> i would disagree. in the last five years you've seen an uptick with numerous congressional committees. house ways and means committee,

energy and commerce. judiciary committee in the house. certainly in the senate under senator grassley's leadership. >> that's been true for a while. >> has been doing more rigorous oversight. the leadership in the house has placed a great emphasis on oversight. in 2011 speaker boehner instructed every committee in the house to have an oversite function. whether it's one staffer or little staffs of three and five. the oversight has been there in the house. >> i think there has been oversight in the sense a lot of letters are sent through executive branch agencies, but really focused oversight

effective oversight requires resources and patience. senator levin working on the oversight of banking regulators. he worked on that with a series of ranking members, senator collins, senator coburn and others many years to achieve results over time. the work of congressman waxman working with his ranking member. congressman davis of virginia. of course, the standing oversight commit he's, the house oversight government reform committ committee. it takes time. it takes patience. i don't think a lot of committees are devoting resources to that long game. you see a lot of letters. frankly, that's not so effective. some of it is just burdensome and done for a quick press hit.

that's not the most effective and meaningful kind of oversight. >> one thing in defense of the committees i just maligned. they do have an authorization cycle more robust than the oversight committee which has a smaller set of theirization in its jurisdiction. there are intensives for the agencies to cooperate in ways that might not be present, that might require more penetrating subpoena-based types of oversight from the oversight committee. department of defense is working with the armed services committee and their budget and their authorities are all on the line, they are more likely to play ball. that's true, but i do think there is still a lack of infrastructure for the sort of investigative long game stuff that ron's talking about that i would like to see congress put some resources into. >> it may not have made news. i think in this congress it has changed. five or six house committee have deposition authority and they

have been using it. the house committee on science, ways and means, energy and commerce. deposition authority goes a long way to getting the facts. it's hard to get to the heart of the matter quickly just by requesting documents. and just by relying on the executive branch to cooperate. that doesn't happen as much as it should. with deposition authority, a number of these house committees, and again it may not have made a lot of national news. there is a lot of very hard-hitting oversight going on in the house currently. >> those witnesses are often called by subpoena or do they come voluntarily? you can depose somebody, but only if they come through the door in response to a request to testify. >> having the authority to issue a subpoena for a deposition -- >> very helpful. >> is very helpful to getting voluntary cooperation.

if you're invited in to participate, q&a about an oversight matter, if a subpoena authority exists, the witnesses are a lot more interested in cooperating. >> can i make one point? senator levin raised the issue of bipartisanship. i would like to reenforce that point. the credibility of these investigations really is a function largely of the ability to get both parties together to move these things forward. that's not always possible. it's not going to be total kumbaya. if you're representing a client by a private lawyer and they get a congressional investigative letter, if it's signed by the ranking member and chair, that is a completely more credible threat to your client. you are not going to have half the team up there, maybe, depending on the issue, sort of playing defense to a prosecutor. you're going to be on your own against congress.

just the authority itself of congress is more robust when that letter has both parties working together, maybe to check an executive excess, maybe to deal with something that's going on in the private sector. i think that's something we need to strive to achieve more often than we are at present. >> we saw that in the wells fargo hearing, where both parties were clearly in accord bringing the wells fargo ceo to task for what happened there. >> it happens more than you think. chairman chaffitz works really well. a lot of what happens isn't making the front page of "the washington post" website. i do think it's happening a lot more than people give the house and senate credit for. fast and furious and benghazi

occupy a lot of headlines. but a lot of good oversight is happening at a bipartisan level. >> i agree with that. that politicalized oversight gives oversight a bad name. when the public sees something that isn't on the level and there we knew it because the house majority leader kevin mccarthy suggested in a sense that the committee was created to damage secretary clinton's poll numbers as she prepared to run for president. he is not the speaker today because he was candid what happened with the benghazi committee. there were other examples of partisan as opposed to the bipartisan oversight steve and andy are talking about. partisan politicalized oversight that really disgusts the public, i think. it's just gamesmanship. it is burdensome to the executive branch to deal with it. it's unproductive. we would like to see congress get back to tradition of

bipartisan oversight that is going to benefit the people. >> if you have done something wrong, one of the best strategic things you can do is turn it into a partisan food fight. democrats are on one side, republicans are on another. very often partisanship is caused by the defense. so that is a very real consideration. >> sometimes you walk into the cafeteria and there is a food fight going on already. we didn't have to start the food fight. >> several staffers said the number one purpose of oversight is political. do you have a reaction to that? that to me is an anathema of my purpose of oversight to find the

facts and find good answers based on solid fact-finding. i was shocked that there's an attitude out there that the real purpose of oversight is political. do you have any observation on that? >> i might tweet "sad!" >> it's an only 80/20 rule. 20% of oversight matters are garnering 80% of attention. 80% of the work is happening in a bipartisan level. 80% of the work is getting results. 80% of the work is a productive, beneficial process. >> do you agree with senator levin the courts may be responding to the partisan types of investigations, and therefore, benefitting more the executive branch out of concern of the merits of the equities involved?

because they get covered, affected by the benghazi type hearings? >> i'm not sure it's a one for one. the atmosphere is changing. if you're going to go into the courts for this. traditional courts, if you look at the red scare era cases about congressional oversight, et cetera, when there were a lot of criticisms of congressional overreach, the courts were still generally -- they found a few ways off the ledge with particular and other documents to relieve defendants of liability they thought mistreated. many times they would say is it within congress' power of inquiry? if so does the committee have jurisdiction? if we are going to litigate against the executive branch like this, which is different than private parties in terms of these fights to a degree, then you're going to get into the balancing between a

congressional need and a confidentiality interest in the executive branch. someone is going to have to sort that out. it's kind of a political thing to ask the court to do, to say how serious is congress' need in this situation? and how legitimate is this executive branch confidentiality and we're a third branch that's calling into question the political motivations of these other two branches. it's very uncomfortable territory. i think the atmospherics will bleed into that analysis. >> it takes time to go to court. that's another factor. to enforce a subpoena, this is what it we go now with the declaratory judgment in court. there is the factor of time and effect it has on the quality of

the oversight. especially if you push the subpoena, then you have to go to court, then the court says, document by document review. that is a long time. >> it's much better if it's done through negotiation. that's been the tradition. so the executive branch strives to accommodate requests where it can't provide a document, sometimes will provide a briefing about a matter. if it doesn't -- if it's not able to provide a line attorney or line law enforcement agent, it provides sip rumors who are politically accountable. these mechanisms have worked for many years. lately, they haven't worked so well. >> did you provide a briefing in fast and furious? >> sure. >> on the february 4th letter? >> many briefings of different kinds. >> were they true? >> oh, steve, steve, steve. steve has to move on.

i have. we did our best. i do think the documents reflect that. they were documents that eventually came out that showed high-ranking justice department officials saying what's going on here? why don't we have all the facts? let's gather the facts and make sure we're providing truthful information to congress. that wasn't self-serving. that's what people were saying by e-mail to each other in those months. i don't think there is anything that's come out that suggests the department was engaged in some nefarious cover-up. people were doing their best in realtime difficult circumstances. >> this idea not all deliberative process are equal. i don't think a ruling that the deliberative process is available to the executive branch is going to be like foya. every time two officials are talking about an issue there is a denial. the other political realities and leverages and dynamics of committee relations with the executive branch are going to be

there and push for a lot more disclosure. i did have particular concerns about the post february 4th docume documents as the meta investigation getting into this sort of, what i would call the separation in separation of power. the ability of the executive branch to formulate responses to congress getting hampered. in my house i have 13 binders full of subpoenas from the clinton administration because of a rule transition counsel out. a high number of that thousand were dan burton, predecessor on our committee. some of those subpoenas would literally be like hit the white house and they would say, tell us everything you said today. give us all the e-mails from today. next day you get another one. it was really designed to try to degrade the ability of the white house and executive branch agencies during that period.

chairman issa and chairman chaffitz have not come to too that type of behavior. this is a much milder version of that. i had a concern about that kind of going after those documents that are representative of a whole lot of people trying to address in good faith congressional requests. >> that goes to the request of the process of the issuance of subpoenas. there seems to be more situation growing where individual chairman have the power to issue subpoenas on their own authority as opposed to seeking or requiring majority committee rule. is that a factor in those kinds of subpoenas where a member -- that was the mccarthy situation where he had sole subpoena -- we had it in psi. i loved sole subpoena authority. i need to give it up. it was limited to psi and maybe

government oversight on the house. there were only two committees where the chair had sole subpoena authority. if it's expanded, you get into a situation where more and more members can just issue subpoenas willy-nilly. >> i bet steve's had a similar experience that i have. maybe ron, too. it wasn't just the chair sent a subpoena. it might have been my first letter that becomes the subpoena. if i read something as a staffer for a member, a chair, i write a document request letter with the preamble. i send it out. chair revises it, gives the elected officials, sends it out and requests. we start encountering resistance. chances are the subpoena is going to be a function of backing up the letter i wrote the very first day i read an article about it. so the subpoena language you litigate two years later in defense to a criminal charge of contempt or declaratory language

is the same as i read an article about an issue that might be going on in "the washington post" or something. it gets baked into the cake so early. we don't have a function that stops and has a real evaluation of that language. i've probably been guilty of writing something we all had to live with a lot later when i didn't have the full context in mind. >> what are your thoughts on that? >> document requests and subpoenas do start at the beginning of an investigation. throughout any investigation, you are are's always identifying priorities. there is a subpoena involved, you don't take documents off the table. you don't narrow the subpoena but you do flag priorities. as your interests hone in on certain fact patterns, if you identify those priorities, usually the overwhelming majority of the time, you get the documents that you need to do the oversight work.

>> what do you think the court of appeals is going to decide in the holder/lynch case? anybody have a conjecture on that? >> that is above my pay grade. >> i think the brief filed by the house is quite good and worth reading. i haent haven't seen the other side. for good background reading, andy wrote an excellent article in the market law review i read in preparation for this panel. i urge those who are interested to find that article. who knows? i do think it's pretty clear that there is now a forum for, judicial forum for resolving these disputes. i think the notion an executive branch agency needs some space under the heading of deliberative process to consider how to respond to oversight and how to do the work of the agency

has a lot of information. so i'm hopeful that the circuit court would uphold that aspect of judge jackson's ruling. >> under judge jackson's ruling, does the president have to assert the deliberative process privilege or can the agency? >> under presidential executive orders as a process matter, the president is the only person who holds executive privilege. one of the reasons -- >> deliberative process -- >> would be a component. >> so the president has to be the one -- >> right. that act is a limiting function. getting the president, getting something in front of the president for signature? you can't help but feel failure if you're a lawyer for a president and he has to assert executive privilege. something went wrong because you don't want to waste his time on that. a dispute. so that's going to have a limiting effect. it's certainly the president's

and the president's alone. one of the reasons, some of you who work in congress might have seen letters that say this raises signature confidentiality concerns, some language like that -- long-standing executive confidentiality concerns. that language is the executive branch signaling to congress that they think this might be worthy of executive privilege, but also a recognition of the fact whoever sent that letter, if it isn't the president, they can't say the words executive privilege. they are trying to reserve under the in the his or her political judgment and legal judgment whether and when to assert executive privilege. judge, that presents an interesting dynamic because it does involve an indication by the president, the white house staff is uncomfortable, reluctant. it sounds nixonian to invoke executive privilege. the white house will say to the agency, can't you work this out? can't you give them a bit more? that's the dynamic going on in

matters i was involved in. you try, but ultimately you come back and say they're being unreasonable. we can't go to that last set of documents, so the president needs to back us up here. executive privilege is then invoked. >> i wanted to bring up another case which is called the burwell case. have you been following that? and in that situation, the executive branch is balking at turning over documents related to the affordable care act. and in refusing to provide the documents which go to whether or not congress, the executive branch could spend $2.7 billion without an appropriation, the executive branch, the obama administration has said, no, we're not going to give you anything on this because -- congress says why? what's your excuse. they say, confidential privileges.

what the heck are confidential privileges? this is a new term. there is like this drum beat from myers to holder and burwell case where they are expanding to this confidential privileges. they don't name deliberative process or executive privilege. apparently, congress can't get an explanation as to what confidential privileges are. any thoughts on that? >> obviously, that's not going to be a line that can be held if congress moved to -- or even into a contempt phase. it's sort of an unremedied dispute that is now being discussed in the context of the standing litigation and litigation over the litigation issues in burwell. i don't think that's something that's going to hold water as a stand-alone sort of principle of privilege, confidential privilege is a new line of

privilege. i think for us to get clarity on that, congress is going to have to move through its own other resources to enforce its oversight prerogatives to get to the bottom of what that is than have it be a procedural fact in this other substantive litigation. they'll be able be to blow past confidential privileges if committees move forward with contempt threats. >> i like that answer because it makes me nervous they are expanding this notion of privilege. i do want to take time to allow for questions from the audience. we have about 10 minutes left. i'll go with you first, then i'll take you in the red shirt. we're on c-span so we do need for you to use a microphone so the question can be heard by the audience. he's right here. do you want to raise your hand so we can bring the mike to you?

s thank you. >> thank you very much. i have a question for dean weiss. as you may remember i worked for steve on fast and furious. one of the things you talk about is how you have an open investigation with the justice department you don't want congress mucking around. of course, the difference in fast and furious was the justice department itself was at the heart of the investigation. in other words, it wasn't like congress and justice department were looking at mexican drug cartels, but rather the congress was looking at number one, the justice department's involvement in 2 approving this whole operation through the search warrant process and other ways. so misconduct, if you will or recklessness by justice department officials in the operation itself. and two, the obstruction element that involved the justice department after the february 4th letter. so wouldn't you say those two factors militate against the position. you say makes this the usual

visa vie the normal process. you said benghazi committee was all political. that unearthed the secret server. the benghazi committee did have a public interest function, hillary clinton's public server. they found out and "the new york times" wrote the article on it. i would just suggest it's not just political, in spite of the comment you referenced. there was a purpose to investigating what happened there. >> as to benghazi, i don't recall that's the way the public came to know of the accept rate e-mail server. if you say so, but i don't recall that. as i say, it appears that a lot of money and time was spent investigating a tragic death of our ambassador and personnel in libya without a lot to show about misconduct by the state department. as to fast and furious, i want to distinguish in the first part

of your question you talk about the role of main justice officials in approving a law enforcement operation. i don't think there was an effort to stop oversight or limit oversight in that regard. because that's a fair question, if you believe the operation was flawed, how was it approved when you're talking about the post february 4th material, we are long past approval of search warrants, but how the department is responding to the oversight request that was initially made. i think there was a reasonable line that was drawn prefebruary 4th, post february 49. the line that moved a little bit because there was a second letter in may the department decided was reasonable to explain how that letter was drafted, but ultimately, there was a press for documents that were really about the department considering how to respond to

the oversight and that just became -- it's never-ending. you could have oversight on the oversight on the oversight. i stand my ground there that i think at some point it became illegitimate. >> my main point was the separation of powers issue about the space post february 4th. there were other law enforcement equities involved in this dispute related to, if i recall correctly, wiretaps, maybe grand jury material and open file that related to the murd investigation of brian terry who was border patrol agent, as you all know, who was killed with one of the guns that had walked, quote/unquote, from this investigation. there were a couple of things where justice department had ongoing law enforcement activities related to open files, related to the perpetrators of one of the murders that was related to the investigation. that was a sensitivity, just not as highly politically charged. >> gentleman in the red shirt here.

could you identify yourself? >> mike stern, my most relevant experience i used to be in the house counsel's office prior to fast and furious. i'd like to pick up on the suggestion that we heard toward the end about the president's role in invoking executive privilege. i would like to suggest that perhaps the dividing line between the disputes that should go to court and the ones that should stay in the more political process, if you like, ought to be that invocation. the reason i say that is once the president personally invokes executive privilege, and as a factual question i'd like to ask whether in the fast and furious case the president actually personally signed anything. my recollection is the attorney general wrote a letter to the president asking him to explain

why executive privilege should be invoked, then the attorney general later wrote a letter to congress saying the president authorized me to invoke executive privilege, but the president never had -- the president never had -- i mean, i'm sure the attorney general's representation was authorized, but the president never took any personal responsibility in terms of signing anything to the best of my recollection, you guys can correct me if i'm wrong. it seems to me once the president does that, then the dispute is already sufficiently political, if you want to use that term. that it is going to be very difficult for the courts to adjudicate it. and from congress' point of view, from the point of view i tend to take, the judges are all appointed by the president, many of them are appointed by the current president, even if they weren't, they tend to be sympathetic to executive branch way of looking at things. as professor wright said, the difference between the purely

legal versus the negotiation and so for the, so if the president does not invoke executive privilege and i would suggest there ought to be procedures to make him do so in a timely and personal fashion, so that it doesn't -- he can't keep just dragging on. but if he chooses not to invoke executive privilege, then you have a pure legal dispute that's basically a technical issue, whether the documents being requested are responsive to the subpoena, and maybe the jurisdiction of the committee, but you don't have any of these broader constitutional issues or interests balancing involved. those kind of disputes go to court, if the president chooses to accept the political cost of personally invoking the privilege, then you go to the other remedies that congress has, such as, you know, the appropriations power or whatever, or you know, up to impeachment in the -- >> do you have a question? >> the reaction to that suggestion.

>> was that -- do you want to hear from me? you know, i am a little bit nervous about the idea of routinely going to court for enforcement of subpoenas at the more garden variety level of dispute, because it takes away the incentive to try to negotiate. i think the best results for these things are most often what, you know, steve says is happening a lot. i agree with that. actual negotiated results, where there is some sort of information that may, you know, committee may revise its request or honor a request or honor a redaction or something else that the administration feels strongly about. so i would hate to see it every time someone sort of first blush says i'm concerned, and then they're going to court. i think that the -- having the president get involved is a -- an important limiting function. that's going to be the big limiting factor.

you're going to have to walk into the court if you're at hhs, walk into the west wing and tell the white house counsel, i need the president to put his or her reputation and politics on the line to defend this fight i'm having with my appropriators right now. i think that's an important part of this. i think it is also important for constitutional purposes to make sure that dispute, if it goes to the limit, resides in the president themselves, who has the democratic legitimacy. >> is executive privilege common law based and if it is, then why is it a subset of executive privilege? we can hold that, but isn't that an important legal question. >> danielle brian.

i want to push back a little bit and ask on the question of asserting that agencies should preserve this right to have this conversation. you're suggesting the reason you're comfortable with that at d.o.j., because you see people were well meaning. let's assume that's not true, and bad actors, there is a cover-up. how do you preserve the right of the congress to find that? given sort of the stance you're taking. >> sometimes it will come out through whistleblowers, the initial oversight into the law enforcement operation of fast and furious was largely because of whistleblowers at the bureau of alcohol, tobacco and firearms. i think congress can certainly call hearings and ask politically accountable officials to describe their thinking and they can answer for themselves. but you know, trying to get at

the documents that are themselves literally deliberative, seems to me dangerous. there may be occasions where that will have to occur, but as a routine matter, congress should avoid that. again, it is because the shoe will be on the other foot. there will be people who are right now initiating oversight requests who will be sitting in agencies responding to oversight requests. we need to have principles that are applicable across the board. >> we have time for one more question. and then we need to break for ten minutes. >> my name is richard golden. professor wright, there is an absolute duty on part of an attorney to preserve a client's confidences. faced with the congressional subpoena, how far must the attorney go to discharge his duty, must he be willing to go to jail?

>> i would say under the right circumstances, yes, they should -- the attorney should be willing to go to jail. i know the d.c. bar has an opinion that i'm not -- i don't have it at my fingertips. they tried to grapple with this issue, because there have been situations where congress was seeking very clearly attorney/client privilege under normal common law roots. and you know, congress has taken the position that it has to comply with the ruling of the chair. well, if the chair is the one who authorized the subpoena, the chances of you getting a super favorable ruling on your objection is minimal. if you are really taking that responsibility seriously, you might have to walk the plank for your client. that's my, you know, obviously personal decision. >> on that note -- so we'll --

we'll adjourn for recess i should say for ten minutes. you can go down, there is coffee on the ninth floor. the pew center asks you not use your cellphones on the tenth floor. you can use them on the ninth floor. we'll reconvene in 10 or 15 minutes here and hear the second panel on how do we go forward from what we now know where we are. thank you so much. [ applause ]

hi, everybody. i'm jocelyn benson. i'm the former dean of wayne state law school and now the director of the levin center at wayne law. very proud also, co-professor on this subject. i'm pleased to be the moderator of this important panel that is going to talk about the ways to reform and improve the current system, and we'll include an historical analysis of how we got to where we are, provided by our great panelists, beginning with josh chaffetz, professor of law at law school at cornell, and his research focusing on constitutional law, legislation and legislative procedure, and his second book, "congress constitution and the separation of powers" will be published by yale university press next spring. he has published widely and

popular press and holds a law degree from oxford. after josh, we'll hear from david hayes, who is currently a distinguished visiting lecturer at stanford and consulting professor at stanford's wood institute for the environment. prior to that, served as deputy secretary and chief operating officer at the department of the interior in both clinton and obama administrations. before there, he worked in the private sector and chaired the environment land and resources department. former chairman of the board visitors for stanford law school and the vice chair of the board of american rivers. and he also formerly served as the senior fellow for the hewlett foundation, and graduated from university of notre dame.

after david, we'll hear from -- we moved around a little bit. actually, before we hear from david, we'll hear from kerry kircher. he retired recently as attorney for the house of representatives. he served for more than 20 years in the house of representatives. he is known for his insistence in the office of general counsel, operating on strictly a nonpartisan basis and over the course of his career, with that office, he participated in a significant number of high profile cases that concern the relations of in lines of separation between article one and article two of branches of the federal government and in particular, he was the lead counsel in the holder litigation and worked extensively on the meye lr meyers/bolton case.

we've talked about a lot today. he graduated from stanford university and the university of michigan law school and also holds an llm from the university of london. kerry will go second. and then david. finally, we'll hear from mort rosenberg, who is a specialist with the american law division from 1972 to 2008. he specialized in areas of constitutional law, administrative law and process, congressional practice and procedure, labor law and problems raised in congress and executive. author of a number of journal articles on separation of powers and administrative law issues and has testified numerous times before congressional committee on these issues. he retired from crs in 2008, and has undertaken consulting projects, including engagement to research and write a monograph on the investigative oversight entitled when congress comes calling, primer on principles and pragmatics of legislative inquiry, published in 2009, students in our class will be familiar with mr. rosenberg, because we've assigned his book as required reading for the class.

great to have you here today as well. with that, i would like to start with josh and each panelist will provide about five or ten minutes overview of their perspective on this issue of the current system, whether it is working and whether it needs reform. and after that, we're going to open it up for questions in an interactive discussion. so josh, we'll start with you. >> thank you so much, jocelyn. thank you to the organizers and thanks to all of you for showing up. in the previous panel, andy wright said something interesting. he said sort of the white house and congress come at these disputes over access to information as if they were on two different planets, mars and venus. i want to frame the question for this panel, something like how do, you know what, do we do when the mars based community and venus can't come to an agreement over which perspective to adopt in any particular circumstance. what do we do in that situation. as you may have noticed from jocelyn introductions, i'm the only one speaking without significant government service.

perhaps the way can best sort of provide a handle on that is to try to give some kind of historical overview or historical background to the controversies we're seeing today. i want to talk about one of the gripping, intensely divisive partisan controversies, the controversy of the second bank of the united states. for those of you who remember your american history or for that matter your first year of law school, you'll remember the second bank of the united states, which gives rise to mccullough versus maryland. after the supreme court upholds it, andrew jackson vetoes the renewal of the charter but even before that takes effect, he removes all of the federal funds from the bank of the united states effectively bankrupting it.

this makes a lot of people in the senate not terribly happy. in 1834, in response, they pass a resolution of disapproval. jackson, a famously irascible man, essentially responds with a lengthy protest to the senate. he essentially says, mind your own business. the only way the senate can interfere with my constitutional prerogatives is through the power of impeachment. impeach me or shut up, is what he essentially says. for people who know the history of contempt power, breach of privilege and contempt are basically the same thing. contempt in parliamentary history dealt with more general contempt of parliament where is breach of privilege is what they use when they could identify a specific privilege that some outsider had breached.

but they were effectively the same thing. they were enforced in the same ways. so the fact that this senate calls upon this language of breach of privilege in response to jackson is very much meant to heighten the controversy, is meant to make this much more salient, is meant to make this much powerful. jackson responds with some more ill-tempered messages. one question you might be sort of wondering at this point is, how does the senate enforce its finding of breach of privilege in that case? there are a couple of ways. one is in some sense the breach finding itself was its own enforcement, right? at this point jackson and the senate are locked in a significant battle for what we would today call the hearts and minds of the public. there are a number of what were then called anti-jacksonians, which would shortly come to be called the whigs. they are trying to get some

negative publicity to stick. the calling on this long tradition of this legislative mechanism was meant to be one mechanism of doing that. the other way they enforce it is through their use of what i in my forthcoming book call the personnel power. they basically start refusing to confirm jackson's nominees. this plays out in the case of roger brook tawny, who was attorney general and acting secretary of the treasury. as acting secretary of the treasury, he was the one responsible for withdrawing the funds from the bank of the united states. jackson a month after the senate finds him in breach of privilege, jackson nominates tawny as secretary of the treasury. the next day the senate votes him down. so, you know, no garland-like delay, none of that, just next day, done. first senate nomination in american history to be voted down. jackson, again, not always

interested in making nice, then a few months later nominates tawny as associate justice of the supreme court. this actually does lead to a garland-like situation. the senate simply refuses to vote on him. it's not for another year after that and the death of john marshall when jackson against nominates tawny this time as chief justice. at this point public politics of things have changed a little bit. the jacksonian forces are ascendant against the whigs, and tawny is confirmed with results that many of us think are perhaps less than ideal. something similar happens a decade later in the house, when the house of representatives holds john tyler in breach of privilege for protesting against a house resolution that criticized him as well. john tyler was the first vice president to assume the presidency upon the death of his predecessor when william harrison dies.

about 30 days after his inauguration. tyler is hated by his own party. he's expelled from his party five months after becoming president in a sort of shocking example of a political falling out. and once again, the way that congress chooses to express its displeasure, the way that it chooses to enforce, if you will, the breach of privilege finding but also other political disagreements with tyler is through pulling on other mechanisms that it has. tyler actually to this day has the worst record in american history as far as getting his nominees confirmed. he nominated i think a total of nine supreme court justices of whom one was confirmed. he had not quite that bad but pretty close to that bad record with cabinet nominees as well. the sort of point i'm trying to make with these two examples is that there are -- it's a mistake to think about contempt or breach of privilege or these

sort of related mechanisms as being either, you know, inherent, which requires imprisonment, or sort of legalistic and going through the courts. congress had a number of tools to use with the executive branch and it uses them all the time. another example, and i promise i won't take you through the entire 19th century, but another example i find compelling is from 1866, when james frye, who had been the provost marshal general of the army during the civil war, got into a spat with an increasingly important member of the house. would go on to a long career in the senate after that. as a result of this sort of long spat, at the end of the day the house passes a resolution finding frye in contempt of congress. okay. so again, how does it enforce that? well, about a month after it finds frye in contempt of congress, the provost marshal

general's office is no more. it kicks him out of a job by destroying the entire bureau he was in charge of. again, we've seen sort of using the personnel power by refusing to confirm. we've seen tugging on the pursestrings. it's not until late in the 20th century that we see any kind of attempt by a house of congress to go to court. now, i would locate this not actually in the meyers case, but rather in watergate. so the senate select committee on presidential campaign activities is in fact the first congressional committee that seeks judicial enforcement of a subpoena. and they don't get it. they were seeking to enforce the subpoena for the white house tapes. both the district court for the district of columbia and the d.c. circuit say, sorry, you can't have it. a lot of their reasoning centers around the fact that this would interfere with ongoing grand jury investigations. this is something we heard about on the previous panel.

as if the court could not conceive of any higher interest than ongoing grand jury proceedings. this is the last point i want to make, then i'll shut upor now. only for now. professors never shut up for long. the issue isn't actually mars and venus. it's mars, venus, and pluto, right? there's a third actor in all this. and we can't simply act as if the courts are some neutral arbiter. they're not. they're political actors with interests as well. in watergate the courts take a judicially-centered view and say, no, you don't need the tapes, it would be duplicative because a house committee already has them, it would interfere with grand jury investigations, you can't have it. what is the effect of this? it immediately stymies the senate investigation. what it does more long term is the whole suite of cases rising out of watergate.

it's when americans think about watergate. the hero of the story we often tell ourselves is the courts. we have the nixon tapes which sets in motion a certain chain of events that leads quickly to nixon's resignation. of course there was a parallel proceeding going on. the house was very close to voting out articles of impeachment at the point at which that comes down. what the courts do is essentially insert themselves as the heroes. they make themselves the heroes of watergate. it's a mistake to think that if we just shunt these things off to the court, there are all kinds of other problems that come with it, not least the issue of timing, how long it takes congress to get information when it goes to the courts. but there's a sort of second level problem here, which is that courts essentially step in and poach the reputational benefits that could otherwise accrue to congress if congress were to use its own mechanisms in an attempt to get this information. so going to court here should be

a cautionary tale. i would note this actually adds a slight complication to the story that senator levin told at the beginning. he suggested if you had bipartisan investigations, the courts would be more reticent to step in. but of course the house investigation into watergate was famously bipartisan, and yet the courts nevertheless took the opportunity to step in and poach the fame and glory for themselves. i would suggest that insofar as we care about congress's institutional power, we have to think of it vis-à-vis not only the executive but the courts as well. and i suggest we try to draw more inspiration from 19th century congresses than from watergate and post-watergate congresses. >> that's great context as well. that view of the courts and the court's role in the process. i want to go next to kerry to provide additional commentary and more framework for our session. kerry? >> sure. thanks very much everyone for

being here. i appreciate the opportunity to speak. in light of my 20-plus years of experience with the house general counsel's office, i'm sure it will not come as a surprise to any of you that i regard vigorous congressional oversight as absolutely essentially to both the congress' ability to legislate and to congress' ability to check the executive. so from that perspective, i would like to make three points that sort of pick up on josh's larger point of what do you do when mars and venus butt up against each other. i agree with what some of the earlier panelists said, there is a lot of oversight that goes on beneath the radar screen. it goes on smoothly. i think what i want to just mention is what do we do when the two branches clash with each other. the point number one is that litigation, while it is an option that is available to the house and to the senate, is a very cumbersome and a very

uncertain mechanism by which to enforce congressional subpoenas, and that congress should resort to litigation only when it has no other options. why do i say this? let me give you three subreasons to my first larger point. number one, the identity of the judge in a district court case will matter a great deal, and congress has no ability to select which judge it will get to hear its case. meyers and bolton and fast and furious make a case study on this point. in the meyers and bolton case, the judiciary committee filed suit in march of 2008. the judge in that case promptly agreed that he would consider the jurisprudential issues and the merits at the same time. those issues were briefed in a motion for partial summary judgment on the part of the committee.

on july 31st, 2008, the district court in that case issued a 93-page opinion that addressed every issue in the case very thoroughly from top to bottom. that's less than five months from start to finish. in the fast and furious case, on the other hand, and i'm leaving aside in both these cases the amount of time that expired before the complaints were filed in the district court, but in the fast and furious case the oversight committee filed suit in august of 2012. one of the judges, one of the district court's first decisions was the merits in the jurisprudential issues would not be briefed up simultaneously, we would deal with jurisprudential issues first, and then turn to the merits if that case wasn't thrown out. that resulted in briefing on the department of justice's motion to dismiss, which occurred by the end of that -- roughly by the end of that year. by september 30th, 2013, we had a decision on that issue, that

there was in fact, the committee had standing, it was an opinion that largely reiterated the holding on the standing issue in the meyers and bolton case. so we're now a year into the case. it took another nine months to august of 2014 to get a ruling on the cross-motions for summary judgment that then followed the standing ruling. we're now another year into the case. that ruling, as many of you who have followed the case know, punted on most of the major legal issues in the case. it did recognize in a way the existence of a deliberative process issue. but there were a number of other legal issues that were briefed up in both sides' motions, and that august 2014 order simply did not address those issues. it then went into a period of privilege logs and making

decisions about -- making determinations about individual documents. and it's not for another 12 months, from roughly january of 2015 when the committee filed a motion to compel production of the remaining documents until january of 2016, until you get essentially a final judgment, which again resolves the case. but again, it punts on a number of major league issues that had been framed up in the course of the case. it's a difference of five months in meyers and bolton and three and a half years in fast and furious. the second point of why litigation is not a great option, the point i just made, it can be agonizingly slow. congress does not function on a court schedule but functions on a basically two-year election cycle. it's very hard to get anything

done in the courts in that period of time. and the third point i would make is that because of the time it takes to litigate and because of the possibility of power changing due to intervening elections, the congress can never be certain when it initiates a case that it's actually going to be able to see that case through to completion. meyers/bolton is an example of that. it was filed in 2008, as i indicated. the district court ruled later that year. in the fall of that year, obviously -- this was during the time of the bush administration. in the fall of that year we had an election. there was a new cast of characters in town. they had a different view on things. and very shortly thereafter, that matter was settled and -- it had been appealed prior to the election but the appeal was then dismissed after the inauguration of president obama in 2009. so for all those reasons, i think litigation is not a great

first choice for the house and senate. it has a place, but it really is i think the last option for the house and senate when you don't have any other options. my second larger point is, and this will pick up on some of the things josh said, is that congress needs to get back to using some of the other tools it has in its constitutional quiver when it's dealing with these oversight matters. it needs to get serious about using those tools. i'm talking principally in the house about the appropriations process and the authorization process and in the senate obviously the addition of the advise and consent power. if there's one thing the executive branch understands, it's money. so both the house and the senate have the ability to both withhold appropriations, to threaten to withhold

appropriations, to link appropriations to compliance with requests for information, compliance with subpoenas. i think that is not happening at the moment, has not happened for some time in a systematic way. i do believe that if these other constitutional powers are to be used effectively, it really falls to the leadership of both branches of both houses of congress. i think the leadership has to step up and make clear that this is a priority, compliance with oversight requests is a priority for the house and for the senate. i think it has to involve itself more directly in trying to resolve these things to make clear to the executive branch that the house and the senate take these matters seriously. and lastly, i think it needs to make sure that the appropriators -- the appropriators in particular, but the appropriators and authorizers as well, make sure they understand they're on the oversight team.

even though they may not be conducting oversight themselves, what they do and the functions they carry out in their committees are a key component to the house and the senate being able to get the documents that they seek. very quickly, my last large point is, given that litigation presumably will continue to be an option, there may be ways for the congress to streamline that option to make it move more smoothly and more expeditiously than it has in, for example, the fast and furious case. in 1997, the congress and the executive were at odds over the census bureau's plan to use statistical sampling methods to conduct the 2000 census.

in anticipation of litigation over this issue, congress enacted legislation that both created a cause of action to channel the expected litigation, and it did three other things that are pertinent here. number one, that legislation required that any such action be heard by a three-judge district court. number two, it provided for direct appeal to the supreme court from any decision of that three-judge court. and number three, it provided, and i'll quote this piece from the statute, it shall be the duty of the united states district court hearing and action brought under this section and the supreme court to advance on the docket and to expedite to the greatest extent possible the disposition of any such matter. it seems to me that congress, in recognition of the fundamental importance of congressional oversight to the functioning of the article i branch, might consider enacting similar legislation for congressional subpoena enforcement actions. >> thank you, kerry. from the perspective of the legislative side. and now i assume from the perspective of the executive side, david. >> thanks very much, jocelyn. it's great to be here.

i really enjoyed the first panel, and i should say while i have some pseudo-academic qualifications, after i read andy's law review article, i realized i know virtually nothing about the academic side of this issue. i've been more in the trenches on it. and that's what i want to talk about here. so first let me say as a former deputy secretary of a department that is controversial in many times, i do think that there's really an important function for congress here in terms of oversight. and we see it done well, and then we see it not done well. and in my experience, i'll mention one current example where i think it's being done quite well, and i credit chairman chaffetz on the house right now in terms of what he's doing on the oversight of the national park service and the

sexual harassment arising in a number of parks. it's solid investigation on an important issue. it's an early opportunity for the director of the national park service to publicly respond to the allegations. that's the way oversight should work. and i think good things will come out of that investigation. i should also say i have in my experience in the government, i have found that the appropriations committees have done very good oversight. not the traditional oversight, if you will, where you can expect, you know, a fairly adversarial relationship almost from the beginning, but instead, it's in part because of the process. it's a much more collaborative relationship with experienced congressional staff, experienced internal folks in the agency working things out, and a recognition to kerry's point that at the end of the day, the

money's got to come so there is incentive for working things out. i would comment parenthetically that i think the breakdown of the appropriations process and the conversion of that into a process that is largely dominated by riders actually is quite distracting from the traditional work of those committees, which is to actually try to work out the appropriate funding for appropriate uses. but when you moved -- in my experience, when you move away from -- toward the traditional oversight committees, my experience has been that this has not been a very good relationship between the administration and the congress. and what i have seen, i'll give

two or three quick examples, are quite broad fishing expeditions, truly driven by partisanship, in contexts where it appears clear that it's all about partisanship. in other words, they're not moving toward a result that will affect policy in a significant way. and i think that's an important litmus test for what those investigations are all about. and a tendency to go nuclear quickly, to go to the subpoenas, you know, this is the next thing since benghazi, and we're going to go all out. it's like, really? and i will just say i think it's ineffective, many of these investigations are ineffective for all those reasons. but i'll give one more. the tendency has been, in my experience, to have one or two, you know, big ones, try to get the big hit. and it takes all of the effort

of the committee staff and internally in the administration to respond to these when there's 70,000 employees in the department of the interior, $14 billion budget. there are a lot of things going wrong. there should be much more, you know -- let's not try to get the big one. let's try to make government work better and work together better. i'll give you three quick examples of the former situation where i think -- well, hopefully they'll speak for themselves. one of them was darrell issa. in the summer of 2011, he called up lisa jackson, the head of epa, and me as the deputy at interior. the title of the hearing was something like, how the obama administration is raising your gas prices. that was the summer when the prices were going up like this. the night before the morning of the hearing, there is an investigative report that we're given, all one-sided, just the

republicans. ranking chair cummings had no knowledge of it. and it was a silly hearing. you know, mr. hayes, why aren't you allowing oil drilling in the arctic national wildlife refuge because that would get our gas prices down? that kind of thing. that just cheapens, i think, the whole process of an oversight hearing. sorry to be so explosive about it. i still remember that hearing. a couple of other quick examples that are where i think the initial inquiry was legitimate and appropriate, but then it just got carried away. i'll give you an example of the gulf oil spill. we have a huge oil spill occurring in the summer of 2010. the interior department is obviously in the middle of it, we're the regulatory agency involved.

one of the early questions was will the president and secretary salazar put a moratorium on deep water drilling until we find out what really caused the problem and are convinced that we're safe. secretary salazar ordered a 30-day report. this is literally while the oil is still flowing in the gulf, and we pulled together terrific experts to help us figure out how in the short term to make sure we make the kind of safety adjustments that would allow us to continue to do deep water drilling. the independent experts give a great input. it's clear that we need to do some things before we can continue the drilling. the president later, in part based on this report, says we're going to do a six-month moratorium before we do drilling again. now here's the confusing part. the cover letter that went from

the interior department to the president inferred because of poor editing, literally in the middle of the night at 2:00 a.m., that all of these independent experts were proposing that there be a six-month moratorium. that wasn't the case. it was clarified quickly. we weren't relying on those independent experts. it was ultimately ken salazar's recommendation to the president. two and a half years later that investigation continued as to whether there was white house interference in this decision on this moratorium. now, meanwhile, there is a final decision on a moratorium. that's taken to the courts. the courts ultimately uphold that. it's clear the final decision is not based on those independent experts. there's no question about it. there's a record. it's a final agency decision. the courts prove it. yet literally in august of 2010, subpoenas are coming to the department of the interior two and a half years later about this.

this is clearly the concern that there was a moratorium for too long, and it was politically based. a final example is something that is still going on right now dealing with mountaintop mining. at the end of the bush administration, there was a rule called the extreme buffer zone rule that defined the types of practices that those who were coming down the mountains in west virginia and filling the streams, what they had to do in terms of protecting the streams. our view coming in was this was not a strong rule, so we started a new rulemaking. ultimately, by the way, that 2008 rule was overturned by the courts. so we needed a new rulemaking. early in the rulemaking, and this was going to follow the strictures of congress and subject to judicial review, early in the rulemaking, an incompetent contractor was hired by the department of the

interior even before there was a draft eis or anything. we ended up firing this contractor. that contractor made some allegations about how many jobs would be lost if you took a different approach to mountaintop mining. boom, that's your political issue. and this is deliberative process, okay? so there are obviously interests in whether the department was biassed or whatever or what was going on. fine, let's answer those questions. here we are, though, this has been -- there are seven letters from the oversight committee. obviously a lot of interest from a lot of congress folks. there's finally a draft eis. there'll be a final eis and a final decision. look, the issue has been identified as a sensitive issue. but let the process continue here. we have an apa-related process

here that this is a sideshow issue. and it's -- but it took the mountaintop mining and the moratorium took all the oxygen out of the room in terms of the issues of oversight vis-a-vis the interior department. it's not time well spent. and what i hope will come out of this discussion, and perhaps it's a mars and venus situation, although i don't like that analogy. i remember the books, okay? you can look at your own personal life and see how that works out for you. but i hope -- i do think that we need to work together better, congress and the administration. and we need to be smarter about it. but it is these kinds of things that put people in their trenches and put their defenses up and lead to, you know, litigation that i agree with kerry, it's no way to solve the problem for all those reasons.

so i look forward to -- >> i didn't quite say that. >> i know, yes. fair enough. fair enough. there we go again, the administration putting words in your mouth. thank you. >> thank you, david. martin? your thoughts. >> well, i'm from 35 years of trench warfare. and i see these problems and what's been going on lately. obviously a tremendously different perspective. i grew up, as i say, in the trenches. i worked with amazing members who are oversighters like john morse, john dingellbe