tonight on american history tv, programs on "great attacks of the civil war," including longstreet's attack at chi chickamau chickamauga, battles of the wilderness and virginia. it's tonight at 8:00 eastern here on c-span3. this week is authors week on "washington journal," featuring live one-hour segments with a new author each day, beginning at 8:30 a.m. eastern. wednesday, author carol anderson talks about her book, "white rage: the unspoken truth of our racial divide." and thursday, author james kitfield with "twilight warriors: the soldiers, spies and special agents who are revolutionizing the american way of war." also on friday, author kathy kramer with her book "the politics of resentment: rural consciousness in wisconsin and the rise of scott walker." but on saturday, two authors will join us, tom gelton with "a nation of nations" and robert

jones with "the end of white christian america." and finally on sunday, author tebby troy with "shall we wake the president: two centuries of disaster management from the oval office." be sure to watch authors week on "washington journal" beginning at 8:30 a.m. eastern. remarks now from congressional reporters and political scholars as they provide a preview of the 115th congress and some of the challenges of covering congress. also, republican plans for immigration reform, repealing the nation's health care law and filling vacancies on the supreme cou court. okay, we're going to get going for our next panel here. now we're transitioning to the other end of pennsylvania avenue to talk about the executive authority that's vested in the oval office and the white house

and what president-elect trump, then president trump, will be able to do with the power of the presidency, with regulatory power, with executive authority of power, with memorandum power, which is something gregory will talk about. we have four experts and reporters here. susan dudley is director of the regulatory studies center at george washington university. tom hamburger is national correspondent for the "washington post." gregory is a white house correspondent for "usa today," and tim mack is a senior correspondent for "the daily beast." each one of them will give kind of a five-minute or less kind of big-picture overview of kind of one of the key issues that they see around this issue when the new president comes into power. then i'll have a handful of questions, but i'm hoping that we'll have a lot of questions from the audience. so, this will -- this session goes until 3:20.

the overview comments will be going on for a little bit. i'll ask questions and we'll have time for questions from the audience. susan dudley, if you could get started for us. big picture, what do you expect to happen come swearing-in day? >> thank you, chris. and thanks for inviting me. i'm going to start by taking issue with what sun ming said at the end of the last one, which is that the congress is the most exciting, is the best beat in town. it is not! it is the executive branch. and that's because a lot of policy really does take place, a lot of the action is in the executive branch. and that's partly because congress passes sweeping laws that delegate authority to agencies. so that means agencies like the department of labor or the environmental protection agency. and this means that even without the support of congress, presidents can achieve their policy goals through regulation.

so, for example, president obama issued far-reaching regulations related to climate change, ener energy, workplace. president bush before him did related to homeland security and other areas. and president-elect trump has said he is coming to washington with a plan to make big cuts in regulation. so, they can do a lot through this regulatory authority. in fact, president-elect trump has said that for every one new regulation, two old regulations are going to have to be eliminated. and tom was just saying to me that i'm talking to the media a lot lately, and that's because i keep getting this question -- can he do that? so, that's what i thought i would talk to you about in my five minutes is what are the ways that president-elect trump can remove regulations? so, unlike executive orders, which presidents can eliminate with a stroke of a pen -- a new president can write one, then

they can also repeal them -- regulations, there is more of a process. and i'm going to lay out five different ways, depending on the circumstances. so, we'll start with midnight regulations. you may not know it, but we are in what is known as the midnight period. and going back to the '40s and probably earlier, we see a big uptick in regulatory activity at the end of an administration. so this administration is working hard to issue regulations before january 20th, midnight. meanwhile, on january 20th, a new team will come in and they will immediately try to start pulling those regulations back. there will be some regulations that don't quite make it to the finish line in part because the federal register where they have to be published tends to get backed up at the end. for those regulations, i'm going make a prediction, and it's my own prediction, and that is that president trump's chief of staff, one of the very first

things that he will do on the afternoon of january 20th is send a memo to all the executive branch agencies saying stop the presses, don't send any new regulations to the federal registrar, and if there are some there that haven't been published yet, pull them back. and i can make that prediction because each of the chiefs of staff have done that on inauguration day. that's the first one. the second is for regulations that have been issued over the last seven or eight months, so since about the end of may. using simple majorities in both houses of congress, congress can pass a resolution disapproving those regulations. we heard sara wi sara binder ont panel say they need 60 votes. this they don't. they only need a simple majority in the senate. now, if that resolution of disapproval were to land on president obama's desk, he would

veto it because it's his own regulations. in fact, he did veto five such resolutions over the last few years. but when that lands on president trump's desk, he will sign it and that resolution will repeal that regulation. so, that's the second way, using the congressional review act. but i think christina mentioned in passing on the last panel. then the third way is that there are several -- for controversial regulations, there is litigation ongoing. and how the new justice department handles that litigation, how it defends that litigation will definitely affect the outcome. especially since -- there are several courts lately, including the supreme court, have shown some sympathy to the argument that the executive branch has been overreaching its constitutional authority and not just in this administration but in previous administrations as well.

so, for example, there was a department of labor overtime rule that was stayed, put on hold just before thanksgiving. epa's clean power plan and the epa and the corps of engineers' waters of the united states rule, are all rules that are on hold while they work their way through the courts. and that's something that the next administration will have to deal with. related to that, one of the reasons, for all that i just mentioned, one of the grounds for challenging them is that their far-reaching exercise -- they're exercising control over matters that constitutionally are the purview of the states. so that brings the states into the equation. so i think they might -- we might see them playing an important role in the trump administration with respect to regulati regulation, especially because the republican platform said that it proposed to shift responsibility for environmental

regulation from the federal bureaucracy to the states. so now we'll come to my final way you can remove regulation, and that is the standard way, to modify or overturn a regulation that didn't fit into any of those other categories, the agencies would have to go through the same notice and comment rulemaking process that they go through to put a regulation in place in the first place. and that means doing a regulatory impact analysis, the legal justification, the economic, the scientific. so do that analysis, then put out for public comment a regulation with that background. when you get that comment, response to the comment. so you might need to change the regulation as a result. there's also interagency review involved in that, and that process takes at least a year. so, and then at the end of that process, you have a new regulation that either modifies or eliminates the old one, but

you've got two dockets now. you have the old docket saying this is why this regulation was important, and the new docket that says we should overturn it, and the courts are bound -- that is bound to be litigated. so, the final resolution of those, removal of those rules, i think, could take years. and i'll stop there. >> so, i think i'll go to gregory next and just a bit of information. gregory is the second of our two on the panel today. gregory is white house correspondent at "usa today" washington bureau and he's written quite a bit about executive authority as practiced by president obama, including some kind of twists on how he practiced that. so i was hoping you could give me an overview of how you see things going. >> great. thanks for having me. i think this is a great subject for a panel and i think it's time timely, and i think it's also extraordinary, because usually at this point in the transition, we'd be talking about the president's legislative agenda more than anything else, the traditional first 100 days is a first 100 legislative days.

and after all, trump does have also a mandate from the senate and the house, both being in republican hands. he doesn't have a supermajority in the senate, but he does have a republican congress. so a lot he would want to accomplish as far as his positive agenda he can do by legislation, which is obviously much more preferable than executive action because executive action can always be rescinded by a future president. so, there is reason to think that president trump might not have to result early on to a lot of executive authority except for some of the issues that susan raised. there's sort of this pent-up demand from republicans to just undo everything that president obama did. some of that's going to take an act of congress. some of that can be done by executive action. and president-elect trump, when he was candidate trump, talked -- one of the lines in his stump speeches was that he wanted to rescind all of the unconstitutional executive orders and presidential

memoranda that were signed by president obama. i think there's two things interesting about that formulation. one is, what's unconstitutional? clearly, there are some executive actions president obama has taken that have been, provisions of them have been struck down in the courts. i'm thinking of some provisions of his immigration actions, his clean power plan, and those are going to make their way through the courts. the other thing that trump said was he added presidential memoranda to that formulation. and so, it's a recognition -- i think actually a lot of people in congress are relatively new to this realization, that not all executive authority comes to an executive order. so i wanted to kind of maybe talk a little bit about some of the vehicles for executive action, some of the terminology so you know sort of what they are and how to look for them in the first days of a trump administration. the first is an executive order.

that's i think what we most think of and know about when we talk about executive authority. they're numbered up to the 13,000s since they started counting these. they instruct the executive branch to do something. they're binding. they have the force of law, but only on the executive branch. and they remain in effect until a future president rescinds them. most executive orders go on for years or decades without ever being rescinded by a future president. it's only a really small subset that end up being controversial, but they can do everything from, you know, set broad policy on federal contracting, antidiscrimination in the federal government, down to, there was an executive order earlier this year that allowed the peace corps to change its logo. and the only reason why president obama had to sign that executive order is because president carter had signed an executive order saying that the peace corps can't change its

logo without the approval of the president of the united states. so, that's one important thing to know about executive orders. if you're going to rescind an executive order, you have to do it by executive order. these are all published in the federal register and you can see what they are. there is a presidential memorandum that i frankly discovered early on in covering the white house, because at the time there was this big debate about had president obama used executive action more than his predecessors. and if you count up the number of executive orders, he had not. he actually was relatively restrained in executive orders, but his use of presidential memo did had gone through the roof, a historically high level of presidential memoranda. presidential memoranda have the same force and effect as an executive order. as a matter of fact, all of these things, no matter what you call them, an order from the president is an order from the president. none of these are prescribed in the constitution. they're just different terms of art for these. presidential memoranda, though, are not numbered. sometimes they're published in the federal register and that gives them more weight, and they

tend to be more regulatory. i would imagine, for example, you know, susan talked about this, regulation-deregulation idea that trump has to rescind two regulations for every new regulations. i would expect that that direction would come in the early days of the trump presidency in the form of a presidential memorandum. they tend to start regulatory actions. real quick, there's also presidential policy directives. those are executive orders but in the national securities sphere. there have been 31 or 32 of those under president obama. half of them are secret. we don't know what they say. the only reason we know there are 32 of them is because they're numbered and we're up to ppd-32. so, every once in a while, they will have skipped a bunch of numbers, so we know he must have issued some secret ppds at some point but we don't know what they are. and then there's also sort of the humble proclamation, which usually sort of a ceremonial kind of thing but can have power. president george w. bush launched the war on terror with a proclamation.

so, those are important to look out for as well and those are also published in the federal register. there's a whole set of these that sort of go back and forth from one administration to the oth other. the mexico city policy is one that's sort of famous. there are a whole bunch of policies that -- there's a set of executive actions that each new president comes in and rescinds some from the previous generation, then goes back to the old. in this case, it will be the republican playbook of executive orders and presidential memoranda and certain executive actions that had been in effect during previous republican administrations. so with that, the only thought i think i wanted to leave with you is that i keep thinking of this famous line, celina zito in "the atlantic" coined it a few months ago and it's been often repeated, that the press always took donald trump literally but not seriously, but trump voters took him seriously but not literally.

and so, i think as trump transitions from being a candidate now to president-elect to the future president, i think it's incumbent upon us, frankly, as journalists, to cover him both seriously and literally. and i think you do that by paying as much attention to what he does through executive actions as to what he says in a tweet. i think we end up chasing our tails on some of these tweets sometimes. he often sends out mixed messages, but when he takes executive action, that will have the force of law and we ought to take it literally because he will mean what he says in these executive actions, so they're very important i think for us to keep an eye on. >> thank you. tim from "the daily beast," you wrote an article earlier this year -- or i'm sorry, just a few weeks ago -- "obama's imperial presidency is now trump's." i was hoping you could maybe give me a sense of, you know what you see coming and what was the thrust of that article there? >> sure. so, i cover national security

mostly from a congressional perspective, not at the white house. but what you find out over and over again is you keep bumping into executive authority, what the white house is doing that trumps basically what congress is doing. so, i wrote an article about the kinds of authorities that the white house, the obama white house will soon be transferring to the trump white house. all sorts of expansions of power in the national security space, so we're talking things like the authority to kill an american citizen that's overseas without a trial. that happened during the obama administration. we're talking about secret courts on wiretapping. that happened under the obama administration. we're talking about waging war overseas without congressional authorization. this is happening right now with the obama administration relying on the al qaeda authorization for the use of military force, not a new one that authorizes them to fight a war against isis.

so, we have all sorts of expansion throughout the years and not much of that has -- it hasn't been covered or pointed to by all that many sources. and i think we'll start to see a lot more coverage babout the sae authorities being used under a trump administration, with the exception of the aclu and, you know, certain news outlets, the vast majority of the press has not sounded an alarm on some of the expansion on national security issues that have happened under the obama administration. the obama administration and the white house in general, the executive has enormous power over the issue of national security, and in many ways, it's been ceded to them by congress. congress has chosen not to pass an authorization of the use of military force to declare war. it could have, but it's not been able to reach an agreement on how long that will be, who would

be targeted in such a war, the actors at play, whether there are geographical limits on where that war can be waged. so right now, i think a lot of people are of the belief that war against al qaeda and related terrorist groups to include isis, even though isis wasn't around in 2001, to include isis, can be fought anywhere around the world at anytime using lethal means. which is not spelled out in the letter of the law. so, i guess the point is to say the obama administration has set all these massive precedents that will now be used, expanded even further by a new administration. other powers that the white house has over national security include things like security clearances and top-secret documents. creeding ing creating a top-secret document is an extension of the executive's power over hiding

information from the public that they believe to be necessary to be hidden for the purposes of national security. so, i'll give you a couple examples. i did a story a couple weeks ago on steve bannon, who under normal circumstances, if you put him through a security background check and he was working at dhs or something like that, he would have a very hard time getting a security clearance. why? because he has associations with far right groups in europe, because he has a charge of domestic abuse from a decade, decade and a half ago. this is a man who under normal circumstances would find it very difficult to work right next to the president, but he has an ace in the hole. at the end of the day, if the fbi and doj say this guy's not qualified, he's not -- you can't have a security clearance, he doesn't pass our minimum standard requirement, the president of the united states can just say i'm going to override that and i'm going to give that to him.

because what does it mean for something to be top-secret? it's an extension of the white house's belief that that document should not be shown to the public because it would endanger americans' lives and american interests. so, that's like another example of how powerful the white house is on national security issues. another way that the white house can use that power is to mix top-secret information with unclassified information and store that in a place where it's very difficult to get. so, i have a story today that's about documents related to the iran nuclear deal. so, we're talking letters between foreign ministers, we're talking assessments of the iranian nuclear research and development program, we're talking about the details behind a $1.7 billion cash payment to iran in exchange for hostages being released, things like that.

all these documents are in the public interest and they're unclassified, but what's happened is the obama administration has provided them to congress mixed in with top-secret documents and held in a vault on capitol hill in a special location on capitol hill called the skiff, which is for sensitive compartmentalized information. and because it's in there, you can't just walk out with documents from that, from the scif. the public can't see classified information that's in the public interest to know. so, that's another way that the white house and the presidency can use its power arguably for good, arguably for bad, on the issue of transparency here at these documents, i would argue for bad. i guess the bottom line of what i'm trying to say is, over the past eight years, we've seen a massive increase in what the

white house believes that it can do legally. and oftentimes, it uses its lawyers to interpret a law in a new way that expands its power. and we should expect and cover and investigate all of the ways over the next four years how this white house is likely to do the same. >> thank you. we have a fabulous investigative reporter for the "washington post" whose job has been birddogging the trump financial empire's finances around the world. and tom, you were telling me that the scope of that empire will cause us to kind of re-examine what we actually think of the power that he might be using in the white house. i mean, can you maybe explain that a bit? >> yes, chris. thanks so much, and thanks for inviting me to be here, and great to be here with this great panel and with all of you. i attended paul miller and press foundation events like this throughout my career. i've mostly covered money in

politics, but as part of that, i've been covered to assign the transitions of presidents going back to ronald reagan's first term when i first got to town, jimmy carter was the president. and i have to tell you that this transition strikes me as different than any we have covered before. and i think it creates a special role and opportunity for journalists, in part because in addition to the legal mechanisms that greg was talking about -- memoranda, executive orders, the executive orders and decisions that will move through the omb's regulatory apparatus and that are wonderfully visible to the press -- there is now something else going on during this transition that we've not seen before. and chris mentioned it a moment ago. and that's the arrival in town of a president-elect and his transition team, a president-elect who is

approaching the presidency and some of the traditions of the presidency, not just the powers granted in the constitution and by statute and the traditions of executive orders but is also approaching the traditions and the canon of this moment of transfer of power differently from other presidents. part of this comes because we have a president unlike we've had before, who is not just a businessman -- we have had presidents who have been in business, of course, and our government thrives, and it was originally meant to be a sort of, this is a citizens' democracy -- but this particular president has business holdings all over the world. he has shown during the transition a willingness to discuss, if not pursue, some of those business interests during the transition. it's an extraordinary and different place of power for a

president. donald trump has said that he'll have an announcement on december 15 where he'll explain how he is separating himself from his extraordinary business, unlike that of any other president that we've had that has so many entanglements with foreign businesses and also, i would argue, foreign governments. we saw just in the last couple of days a different use of transition power than we have seen before, not entirely unprecedented, but quite extraordinary, where the president-elect used his nassant executive power to persuade a foreign company not to expand as it had intended in mexico. so, let me just get briefly to the extraordinary challenge that i think we face. if we have a president who is

going to ignore to a certain extent or not abide by some of the traditions, and by the traditions i was talking about -- when jimmy carter came to town in 1976, drew eisen stat, who is one of those who led the tradition, his domestic policy chief, was in charge of assuring that the president sold any financial interests or moved into a blind trust any financial interests which might intersect with the things that gregory was just describing that an incoming president is likely to do. so, he has -- as many of you know, jimmy carter was in the peanut business -- he moved his holdings in a peanut warehouse into a blind trust that was administered by a family attorney. he went further than that. eisenstadt insisted -- actually, it was carter who insisted, but they wrote an agreement -- jimmy carter would not engage in discussion of peanut policy while he was president. and because one of his most staunch backers and most important constituents as governor of georgia had been the

coca-cola company, and because the federal issue which most affected coke was sugar policy, he said, he assigned eisenstadt, his domestic policy chief, and others to deal with sugar business and said i'm not going to touch it. this is not an isolated case. lyndon johnson moved the radio stations that were in his wife's name into a blind trust. george w. bush and george h.w. bush also took extraordinary pains to assure the public that their actions would be in the public interests and there will be no infringement on private interests or private holdings. so that's not happening in this administration, at least not so far. maybe we'll get a different announcement on december 15. but my thought would be that we have a president-elect who's already beginning to use executive powers in some unorthodox ways. the accountability for some of

these things are not -- because it's a matter of tradition, president-elect trump has said correctly that the laws of conflict of interest and the gift statutes don't govern the president, so in fact, he can do what he wants. what we're relying on is a very thin line here of presidential canon and tradition. i'm going back to the beginning of the republic. if it is breached -- and i am not saying it will be, because we don't know what will be announced on the 15th -- but my thought has been that we have a special obligation as journalists to try to track the sort of extraordinary behavior from the executive branch of a chief executive unlike any we've seen before. >> thanks, tom. let me ask a quick follow-up to tom. i have a few questions heerre, t i want questions from you, so when you're ready, raise your hands and i'll start calling on you. but tom, could you give me a brief sense of -- i mean, what is the scope of his empire

around the world? and then a secondary question is, even if some conflict of interest or some rules kind of constrained what he can do in the u.s., is there any notion that what's going on with his business holdings overseas will be kind of totally immune to those kind of restraints? >> so, the business holdings are vast. we don't understand them entirely. one of the things i'd refer you all to, because i think this is going to be one of my jobs, is something i know my panelists know very well, the office of presidential ethics doloisclosu form, because he's not bound by the ethics or gift rules, nor is the vice president, but he is bound by the transparency requirements. donald trump has issued, i think this is 96 pages of, co-lated, very fine print. you'll need glasses, my magnifying glasses. and what you'll find in here are

560 llcs, private partnerships, many of them registered in delaware, some registered overseas, very difficult to penetrate. but some of them give us a sense of where the trump holdings lie. so we see about 20 countries listed here. sometimes it will just say "djt llc" and then in parens, "a "saudi." we don't know much about this particular llc, but we know there is at least some expressed trump interest in doing some kind of business in saudi arabia. so we have these vast holdings, and they extend to across sort of the range of human activities in some ways, since it's donald trump, some of the most obvious and maybe the most consistent overseas are golf courses. and there are 18 trump golf courses around the world.

one of them came into the news -- chris, and as everyone will recall -- recently because donald trump is concerned about the view being from his golf course, from some of the wonderful links that they developed in scotland on one of his courses, he's concerned that the view will be marred by a british plan to erect a windmill farm off the north sea coast. and so, when he met post election with nigel farrage, who is the head of the up-and-coming ukip party in the british parliament, he mentioned his distaste for windmills. so, here is a president, at least in the eyes of some people, asserting his personal interests in his first discussion with an overseas official. so, i mentioned golf courses. then of course there are hotels around the world. most of donald trump's hotels are now branded.

he doesn't own many of them anymore. most are not quite franchises, but trump sells his name and then he insists on certain quality standards. but there is a very, what we think, the few agreements we've looked at, a profound economic stake in these hotels because not only does the trump organization receive up-front fees for use of the name, but often we've been able to look at a couple of the licensing agreements. he also gets a percentage of each sale. in some cases, the trump organization also manages the hotel, and so, there are percentages and income from gift shops and other things. because -- and let's see, the last thick thing on the list are the real estate, the towers that are being built around the world. there are towers that were discussed, again, during the transition being built in india.

there are two trump towers that are now under construction and half a dozen others that are under discussion. and as all of us know from our own experiences zoning and so forth in this country, building a sky scraper is in part of government enterprise. because of the permitting that's required, viralal tests and so forth. there is a huge role for government. so the question is -- and this is the argument that the press has a role to play, is it appropriate for a president to engage and pursue personal interests while in office? and a related question, if these things aren't fully disclosed, how do we know about them? there's a sort of watchdog role that i'd argue anyway is sort of upon us in a way that we haven't faced as other administrations have come into office. >> so if i could ask susan a

question then i'll turn it to you all. susan, you talked -- you mentioned the congressional review act. i was hoping you could give me a little bit more -- a little more background on that. this is something that came about during the gingrich house but it's only been used i think one time before. how come it hasn't been used before? and do we have a sense of how many -- how do they count the scope of it? the scope of days? do we have a sense of how many obama-era regulations could be a part of it? could get wrapped into it. >> okay, so, yes. the congressional review act was a bill passed in 1996 and it gives congress 60 legislative days or session days to review after a regulation is published to send a resolution of disapproval to the president but that 60 days, as you all know, is -- 60 legislative days turns into a loat more when you count the time at home and weekends,

et cetera. so the crs has estimated that it's around may 30 that any regulation issued since may 30 would be subject to disapproval by congress and -- i should back up. so the reason -- so any rule issued after that point that doesn't get the full 60 days in this congress the clock starts over again in the next congress. so 50 days in the next congress the clock starts over again so that means the new congress has another seven months or so to decide which of these regulations to vote to disapprove. how many are there? likely we're talking hundreds. maybe not -- at least over 100. over -- probably over 200. how many congress would overturn, it's going to take

time to do this. even though they're expedited procedures and the senate only needs a simple majority, it still could take 10 hours per regulation so i don't -- certainly i don't think anywhere close to all the regulations, probably less than a dozen. and then i keep remembering your questions, chris. and his other question was, it happened once, why haven't we seen it more so the one time it happened was very similar circumstances to what we are now -- it was the ergonomics regulation published at the very end of the clinton administration and so the new congress then was able to take a look at it. they sent a resolution of disapproval, it landed on george w. bush's desk and he signed it. we didn't see it being used in the transition from bush 43 to oba obama. any rule being approved, the agency cannot issue anything

substantially the same. so it's a ledge hammer. it isn't something -- i imagine the obama administration -- and i was involved in that midnight period, i was part of the team pushing things out the door, although, trust me, i was trying not to push them out the door. i think the obama administration would have tweaked it so i suspect that's why it's only been used once. >> so let's start with katie. >> i have a lot of reading to do on these processes. my question is really -- is there one avenue -- i don't know, take the regulation for clean water that you get npds permits or something. is that type of regulation -- is there really only one legislative path for it to be

repealed or can a regulation go through any of the five that you outlined and then can the gin public -- what would be their recourse? do you envision a situation in which people will question whether that was the appropriate channel to undo that regulation and what do they do to voice that? does that make sense? >> yes, four of the five options that i mentioned apply in more limited circumstances so these are water discharge regulations under the clean water act. there might be one that would be in this window that could be overturned by congress. but most of them will be things in place that the epa would have to go through notice and comment rule making. there is a lot of opportunity for the public to get involved there and if agencies don't take that public comment into account

in the final regulation, courts can overturn it, call it ash trash and capricious. so the public record on regulations is -- is important and tom talked about transparency, there is transparency in the rule making process and the public has an opportunity to weigh in before the decision is final. >> so follow up to that, is this where the chevron will come into play that they'll want to undo that quickly in order to ease the path for undoing sflegs. >> so chevron, it probably wouldn't play that well. so chevron, it's a court decision that said that when things are complicated there are several steps but the bottom line is courts tend to defer to agencies' interpretation of their own legislation so chevron could well get involved if there were litigation over the two -- say trump chose to overturn one

of the -- or write a new regulation which will take more than a year to change that regulation. courts will look at that and it will be complicated because which docket do you defer to because they're both done by the agency. >> okay. so we got quite a few questions here. we'll go to you first, you second, then i'll go over to this side of the room. and if you have -- if your question is directed at one of the four panelists, direct it specifically or just generally address it. i need to rotate the question so i'll get back in the habit of doing that. you can go here. >> my question is you can elaborate a bit more that you mentioned the president-elect will have this press conference on the 15th i assume he will state what he stated before, that he's going to turn control of his businesses over to his children but also talk to us about potential conflict of interest there because we've already seen that gray area and

blurred line ivanka trump sat down with al gore, she was at the meeting with the japanese prime minister yet his kids are running the business. what type of conflict of interest that could present and, b, is there anything to hold them to account or is this just going to be a murky gray area for the next four years? >> so briefly restating, the question is about what sort of conflict of interest will be inherited if he's turning his business over to his kids, is there any kind of way to work around that. tom? >> well, all of this is the sort of new world that we're in in addition to the conversation you mentioned ivanka trump was on the line while donald trump talked with the president of argentina where they announced two days after the conversation that a long-stalled trump tour in buenos aires is moving ahead. ivanka trump was on the line with the japanese prime minister as well.

what role ivanka trump and her husband jared will play and eric trump and donald jr. will play in an administration and advising their president and so forth is a really big question. we don't really have the answers to it. to some ethics lawyers, the sort of guiding principle goes back to the -- is the now-famous clause in the constitution with a funny name, the emolument clause which prohibits the president from accepting gifts and emoluments, favors, from a foreign leader, so if the -- if argentina's president was to give a green light to a long-stalled tower for the trump family, for which the president or his children would benefit, is that an emolument?

there are some ethics lawyers from both across the ideological perspective who think, yes, there is a constitutional issue here and it may be while the president is not bound by our traditional conflict of interest or gift prohibitions, he obviously is bound by the constitution and that could set up a constitutional crisis at some point. remember, though, that the -- ways in which you might raise those constitutional questions are limited and so those are the -- oh, there are two things i should mention. there's the emoluments clause which provides a very specific

one for the president and then there's the stock act which is focussed on congress, it requires the president and vice president be covered by this law it doesn't specifically restrict, i don't think they're covered by the conflict of interest portions of it but they are required to report transactions involved equities to this -- again the office of government ethics, oge.gov within 45 days of any transaction so there will be one additional area of disclosure and an opportunity to watch these transactions and, chris, i neglected to mention, the stock portfolio of the trump organization and of donald trump is not insignificant. tens of millions of dollars in

stocks, some of them in industries that could be affected by some of the regulations and executive orders we were talking about today. >> my name is chris washington with the "washington blade." i think a lot of our readers are concerned about the rollback of president obama's executive actions that protect minority groups. this question is for professor dudley. the first of these is the daca executive action for those who have the right to be under the dream act and the second is the executive order president obama signed which prohibits discrimination against lgbt people and the third is a broader civil rights law that prohibited sex discrimination to apply to lgbt people. can you talk to the ease with which congress could undo those two things and the last two how easy would it be for them to be compromised by inserting a

religious exemption? >> basically how easily could president trump undo some civil rights and willing president protections? >> and greg might weigh in on this, too, for the executive orders he can rescind them as quickly -- yeah, he can rescind them by signing something. by signing. now, the regulations -- and some of those you're talking about are regulations that have been issued by the department of labor. those will gong through the longer process we talked about did you want to add more? >> i think that's it. ted cruz had a line during his campaign that you live by the pen, you die by the pen. and executive actions can be rescinded by a future president. in this case the executive orders you talked about of one dealing with non-discrimination against lgbt people and federal contracting.

that's something that could be rescinded. now i'm not going to resume trump is going to do any of it. he said some things during the campaign that he loves the lgbt people and he loves the hispanic people. who knows what he's going to do. but one thing that president obama, i think, has done is raised the bar, so with many of these executive orders, every time a president takes one of these they set a new status quo. there's an example of this and the -- from president clinton to president bush where president clinton in his midnight era passed this arsenic rule and -- dramatically lowered the amount of arsenic allowable in the water and bush's new epa chief came in and said there's no science behind that, that's not the right level. we'll rescind that. it got perceived publicly not as

going back to the status quo but that bush was trying to increase the amount of arsenic allowable in the drinking water even though the organizational regulation hadn't been implemented yet. so the only protection i think that you have there is that there will be -- these things have to be done conspicuously so if president trump signs such an executive order, it will be very clear what he's doing and that he will be changing the new status quo and there's a political cost to that that's not insignificant. but can he do it? absolutely. >> throughout the campaign, we didn't really have the tendency to go into great deal with how he was going to accomplish these things and didn't seem to care for some of the more day to day operations in the presidency.

do you think when he becomes president he's going go into the more fine level or stay with the broader themes like immigration during the campaign. to whoever wants to answer it. >> well, has he been a detailed-oriented businessman? from the reporting out there, he can very much micromanage issues but it seems to happen sporadically and without -- without a really discernible pattern so he'll -- if i had to make a guess he'll focus on the gig things and then something -- something may set him off. maybe he'll still be up at 5:30 watching a fox news segment about burning the flag and it will be the most important thing to him that morning. we've seen that happen already,

there wasn't an ongoing national conversation about flag burning until one americaning the president-elect tweeted about it. so my prediction would be probably big themes but sometimes deep micromanaging on issues that we hadn't thought about. >> let's go to ben and then back to you. >> i think this is for anyone. president obama -- the obama administration has really brought more power to the presidency specifically in national security as tim was talking about. are there any indications that the current administration is trying to shrink things down a little bit ahead of the new administration or do you think they feel comfortable with the power that they've ceded or somewhere in between? >> so basically, is the current administration, the outgoing

administration, are they comfortable with where things are, are they trying to rein in some of the authority before the new guy comes in? tim? or whoever? >> i think there's a philosophical way to look at that ideologically and then there's a legal authority perspective. so during the course of the campaign the trump campaign has said that it wants to -- in some ways move away from nato. it wants to renegotiate trade agreements. it wants to reduce the role that americans are playing in wars overseas. so from a sill soskal perspective and an ideological perspective you might argue they're going to draw back a little bit. from a legal perspective, the president's authority has been increasing for years and years and years. i'm not sure if president-elect trump has thought very much

about the need for a need for a new authorization of military force. i'm not sure it's crossed his head. i'm sure it's crossed hillary clinton, she's talked about it. it was a major theme of senator tim kaine's senate career so i know they've thought about it but i've never heard president-elect trump someone say the presidency needs to be more constrained, that congress needs to be more involved in the conduct of war and military action so there's no reason to think that from a legal authorities perspective the president -- the president-elect will want to rein that in. >> just briefly, with respect to regulation i think we're seeing more of a -- more of a reach rather than less. an example of that is epa issued far 30-day comment, which is very short a very significant regulatory action on fuel economy for vehicles. it did that without going

through the internal review process that is done for all regulations, that's not the kind of thing i would think they want want the next president to be able to do but yet i guess they're anxious to get it out before the end of the administration and process wise they were willing to take quite dramatic actions. >> so i'll go to you in the back in a second but susan while i have you here could you give the journalists in the room a bit about the regulatory studies center at gw? what kind of research do you do and what resources do you have for journalists? >> well, thank you, chris, that's a great question. it's -- the george washington university regulatory studies center is part of the school of public policy and public administration. we have a date -- a weekly newsletter that's a digest on all the things that are going on in the regulatory world so just e-mail us and we'd love to put you on that so that's not just

what we're working on but what all the other think tanks and academic institutions who focus like me with a laser beam on regulatory issues, we write working papers, we file comments on individual regulations and of course we teach, we love teaching our students but we would be happy to do more things like this and talk about how regulation works. >> back in the room. do you still have a question? >> with trump appointing a variety of individuals to his transition team and starting to appoint or nominate his cabinet, there's been a lot of discussion about kind of his lack of expertise or specific expertise in different policy areas and i wonder if you think that nay

empower people who are heading these agencies more than, in, for example, the obama administration? in the obama administration a lot of directives came from the white house, the epa policy agenda for climate action plan came from the white house but in a administration do you see that changing and having agencies have a stronger foothold since, maybe, that may not be a strength of the white house? >> i had one conversation with paul light, a brookings institution person who was talking about the nature of cabinets. one of the things that distinguishes this transition from others is the level of preparation. so they're stramabling, it seems to find cabinet nominees. one of the questions is what about the subcabinet positions?

under the george w. bush white house i think where you served there was a lot of emphasis, the white house played a hands on role in reviewing appointments for deputy secretary assistants and chiefs of staff even so that the white house would have more -- it was one of the things that karl rove introduced was the idea of having the cabinet secretary and white house ability to monitor and also have consistent policy in the agencies was a big deal. obama has continued that. one of the concerns was this may give cabinet secretaries unusual power to select the junior personnel that -- whose appointments would normally either be reviewed or initiate bid the white house. >> yeah i have no inside information so i don't know. >> so we'll go to shannon and then to you there.

>> what chance to do you see -- this is for anyone. what chance do you see of clemp ke -- president-elect trump keeping the head of the fda and the head of the nih. there's pressure from certain scientific research groups to keep both of those people around. is that a possibility? >> is it possible the nih and fda would be held over, is the question. >> >> there are holdovers in any administration. it's usually a small subset. some of them are statutory. there are people like the fbi director who have a term that transcends partisan administrations there are usually some holdovers -- there's an olive branch extended by appointing prominent democrats and republicans to a cabinet in the opposite party. i'm not aware enough of the

specifics of what the policy differences might be that -- whether those would be among them. >> so the blue checked shirt. >> i'm zach tombs. what are some of the tangible steps, whether they're congressional or from another branch or ngo that could be taken to hold the trump administration accountable on financial conflicts of interest? >> the question is are there things that can be -- steps that can be taken to hold them accountable on financial conflicts. >> so there's been some -- i'm very interested in that question and went to a bunch of the lawyers and advisers who had led or worked on this area for previous transitions and there's a range of responses.

stewart eisenstaedt who was jimmy carter's adviser said it's -- in addition to the blind trust approach there's some which he is only a halfhearted subscriber who suggest the trump empire is too vast to consolidate quickly into a blind trust. it may not be fair to the children. trump has said he doesn't want to do it so they've suggested the idea of a sort of federal monitor. somebody who would oversee or sort of be a watchdog and have access to confidential and proprietary information, would occasionally make reports to the office of government ethics or something like that. i think -- this is eisenstaedt who has worked with monitors before in private corporate settings thought that was unlikely even though we're hearing a number of people talk about the idea so his

conclusion -- and it's also the conclusion i hear at the end of conversation with every other ethics lawyer is what will depend on is a free and robust press. it's up to us. except for the constitutional prohibition i mentioned earlier, this is kind of extra legal activity where there may not be specific legal remedies but there are remedies in the public realm and the response of public opinion to some of these actions. >> so cogan, this might be the last one, we might have time for one more. >> i was curious in terms of regulatory affairs how previous things go through and things like that, how much influence -- we talk about the agency heads and secretaries and assistants that get appointed but obviously there are career civil servants in these agencies all the time.

i cover the labor department which tends to be one of the more partisan ones and we didn't see a lot that happened with elaine chao and with tom perez there was a lot that happened. so how much can career civil servants influence these things? if there's something coming through that they're ideologically opposed to, can they make it the difficult to get it through? can they take their time? what do they do on that level when they disagree? >> that's a very -- >> sorry. >> i want to restate, so i guess we'll go to susan but basically what level of power do civil servants have to resist what changes might be coming from on high. >> that's an excellent point about regulation. these are mostly career civil service people who have been working for cross administrations. and i think they have a lot of influence because they develop

the docket, they do the analysis and heads of agencies are reluctant to do something to propose an action that goes against the dokts that has been developed. that isn't to say the career civil servants are -- i mean, they also might have particular goals in mind and so the dockets may reflect that but that's an excellent point. you've got civil servants and it isn't easy to just say "we're going to take shings up and do things totally different." because you have -- there are all kinds of reasons why you can't. >> we'll go with aquila if you promise to keep your questions to 20 seconds and your answer to less than 60 seconds and that will have to be it. >> this is for gregory. you mentioned taking trump seriously and literally as a prescription for journalists post-election but i'm thinking of the draw babs of that and some ruckus that was made after people turned to his response to hamilton, didn't pay attention

to the trufrt smp university settlement. so i know there's a practical line to draw but is twitter news? are trump's tweets news? >> i think we are all struggling with that because he has the ability to make news in a very sort of visceral way. the hamilton thing took off -- it has nothing to do with public policy at all. so whatever else he did in the transition that day got lost amid the national conversation over "hamilton" and the same thing with the flag burning. it's an open question about whether this is an intentional -- whether there's a bit of a head fake going on here. the hours these tweets come in, the tweet storms. i don't -- i would not presume to tell any journalist not to cover those and frankly when the

president of the united states says he wants to deport flag burners in violation of the first amendment, not to mention immigration laws, that's something we need to pay attention to, we can't completely ignore it. the point i was making was that in contrast to a tweet if the president signs an executive order that says flag burners should be deported then it will be right there in black and white. he's not going to do this but then it will be in black and white and legalese and say what is the mechanism for doing this. but two months from now his power won't be from the twitter account it will be from the signature of the president of the united states. >> with that we'll have to close this panel down. but i thank you very much. very illuminating. [ applause ] we are going to roll this panel off and bring the next three guests on and we'll get started

with that one in just a couple minutes. tonight on american history tv, programs on great attacks in the civil war including strong street's attack, the battles of the wilderness and spotsylvania courthouse. that's tonight at 8:00 eastern on c-span 3. this week on c-span, tonight at 8:00, jerry greenfield, co-founder of ben & jerry's ice cream talks about creative and responsible business practices. >> actually, the idea that we couldn't sell enough ice cream in the summer in vermont to stay in business that that forced us to look for other markets. >> wednesday night, former vice president dick cheney and former defense secretary leon panetta on the future of the department under president-elect trump. >> i think the challenges are very great and i think we have unfortunately over the course of

the last many years done serious damage. >> we're living in the period where there are a lot of flash points and a new administration is going to have to look at and define policy that we need in order to deal with that but then develop the defense policy to confront that kind of work. thursday at 8:00 p.m. eastern, a look at the career of vice president-elect mike pence. >> amidst the shifting sands of contemporary culture and law we have stood without apology for the sanctity of life, the importance of marriage, and the freedom of religion. on friday night at 8:00, farewell speeches and tributes to several outgoing senators, including harry reid, barbara boxer, kelly ayotte and dan coates. this week in prime time on c-span.

this week is authors week on "washington journal" featuring segments with a new author each day beginning at 8:30 a.m. eastern. author carol anderson will talk about her book "white rage, the unspoken truth of our racial divide." and thursday author james kitfield with "twilight warriors, the special agents revolutionizing the american way of war." and author kathy crime we are her book "the "politics of resentment." on saturday, two authors will join us, tom jell on the with "a nation of nations, a great american immigration story." and robert jones with his book, "the end of white christian america." then author testify sri troy with "shall we wake the president?" be sure to watch authors week on "washington journal" beginning at 8:30 a.m.est iran.

up next, a hearing on classification rules and procedures related to national security and intelligence documents, including information, data, secrecy and transparency. also how to make the process more efficient. good morning, the committee will come to order. without objection the chair is authorized to declare a recess at any time. we have a meeting examining the cost of overclachssification on transparency and security. sunlight is said to be the best disinfectant. without knowing what our government is doing, we can't ensure it is operating efficiently and effectively. it's also important to remember that the american people pay for

the federal government. it's -- the federal government works for the american people, not the other way around so it is, you would think, lodge cal to make sure we are as hope and transaround and accessible as possible but this is always a running battle. we always have to find the proper balance between safety and security and openness and transparency but we can't give up all of our liberties in the name of security so we have this hearing today with four experts, people who have poured their time, effort, talent, careers, really, into this topic. there's a wealth of information that they're going to share with us and that's what we're excited to hear about today. without knowing what our government is doing we can't ensure it's operating efficiently and effectively. transparency is the basis ultimately for accountability. at the same time, transparency into certain government activities can create an opportunity for those who wish to do us harm and so congress

gives some agencies the authority to withhold certain information from public disclosure. this authority classify information and create secrets is needed to protect our national security, i don't think anybody doubt there is should be a degree of this. the question is what degree. but when you give the authority to classify certain information, congress has a role to play in making sure that authority is being properly exercised estimates range from 50% to 90% of classified material is not properly labelled. in the 1990s, congress established the commission on protecting and reducing government secrecy to study those issues and develop recommendations in 1997 the commission issued a final report including 16 recommendations. three of them recommendations were implemented. seven were partially implemented and six remain open today. the chairman of the commission, the late senator patrick

moynihan wrote "if the present report is to serve any large purpose, it's to introduce the public to the thought that secrecy is a mode of regulation. in truth, it's the ultimate mode, for the citizen does not even know that he or she is being regulated." patrick moynihan, hats off to him and his leadership in understand i understanding and to examine the degree of which secrecy is needed in our nation. here the lack of accountability to both congress and the american taxpayer. the commission also warned about the dangers of restricting information from those who actually do need it. looking back, that point seems almost prophetic in light of the events that would unfold on september 11, 2001.

after conducting an exhaustive study of the attacks the 9/11 commission issued its own report that found we needed to move forward from a system of need to know to a culture of need to share. we've learned that overclassification can also be damaging to national security or at a minimum can lead to second guessing what might have been if we were only able to get the information in the right hands at the right time. according to a report by the information security oversight office at the national archives, in the last 10 years, the federal government has spent more than $100 billion on security classification activities, in fact, i'd ask unanimous consent to enter that report into the report. without objection, so ordered. last year alone, classification is estimated to have cost $16 billion. it's unclear what exactly the taxpayers got in return for this expense. there was presumably some level of greater security as a result of restricting access to certain information there's no doubt

there needs to be classification but at what level? this leads us to a number of basic questions. does the billions of dollars spent to classify make us safer? how much money did we spend on security clearances for folks who probably didn't need them in the first place? earlier this week, the "washington post" reported the department of defense found $125 billion in savings over five years by simply streamlining bureaucracy. $125 billion. to give you an idea, the entire state of utah, everything we do in utah, a smaller state, granted, but everything we do from education to the national guard and roads and paying teachers is about $14 billion. and here at the department of defense five years savings, $125 billion by simply streamlining bureaucracy. the department of defense was sufficiently embarrassed by this as they should be and decided to bury the study.

trust me, we are going to look into this. according to the article, "the pentagon imposed secrecy restrictions on the data which ensured that no one could replicate the findings." it's a prime example of what we're doing today and when agencies have a tool to keep information from the public, congress must ensure those tools aren't used for nefarious reasons. i look forward to discussing these issues with the witnesses today. i thank the panel of experts for coming before the committee to help us better understand some of the complexities of the government secrecy. i think you'll find congress in particular this committee has a keen interest on this. the committee has been a leader and a champion of the freedom of information act as one of the tools that is important for the american public to understand what their government -- their government's supposed to be working for them -- is actually doing. i look forward to this

discussion. somebody i knew who holds equal passion for this is my colleagues, elijah cummings, ranking member from maryland. i'd like to recognize him for his opening statement. >> thank you very much, mr. chairman. thank you very much for holding this hearing. government transparency is a bipartisan issue. over multiple sessions of congress our committee as made significant progress in making the federal government more open and accountable. we do this best when we work together. during this congress, we work together to strengthen the freedom of information act and those amendments were signed into law by president obama in june. just this past monday we sent another bill to the white house to strengthen protections for employees working for

contractors and grantees who blow the whistle on waste, fraud, and abuse. we now have the opportunity to work together to address the flaws in our classification system. over the past several years our committee has conducted multiple informations including our rey view of secretary clinton's e-mails that exposed serious flaws in our classification system. we've seen agencies disagree with each other on whether an e-mail was classified. we've seen information that began unclassified later being retroactively classified. we've seen documents not properly marked as classified. as we have seen documents that were classified after they had already been publicly released

and first and foremost i believe that we in congress should exercise our authority to'm prove the classification system and make government information more transparent. we can conduct oversight such as these hearings and we can investigate specific allegations of security breaches and unwarranted government secrecy. congress can also legislate. we can pass reforms that actually address the problem we will hear about today. 20 years ago we provide road maps for improving the classification system too little has been done since that report was issued. for example, they recommended congress enact a statute establishing the principles of

classification but congress still has not taken that step. the fundamental purpose underlying all of our efforts today is to provide the american people with more information. >> especially when it impacts our national security. our operating petroleum swing and a miss that a better informed electorate leads to a better functioning government on behalf of all of the american people. so, mr. chairman, i thank you for calling today's critical hearing but there's another national security area that i believe the american people should have much more information about from their government. on november 17, 2016, i wrote a letter to the chairman requesting our committee conduct a bipartisan investigation into russia's role into interfering

with and influencing the 2016 presidential election. i specifically requested that we receive a classified briefing from the intelligence community. today, nearly three weeks have now gone by. i've received no response and the committee has taken no action. now, nch, i know you have said that you do not want to do any oversight relating to president-elect donald trump until he is sworn into office and i can understand that. but these attacks on our country have already happened. they already happened. this is not something of a future threat. this has already been done. and unless we act, it mar may very well happen again. for these reasons, yesterday i joined democratic whip steny hoyer and ranking members of the committees on arms services,

homeland security intelligence, judiciary and foreign affairs and we did ourselves what this committee did not. we sent a letter to the president that all members, all of us, all members of congress, democrats and republicans be provided the opportunity to receive a classified briefing by the intelligence community with the most up-to-date information on this issue. this is not a partisan issue and it should not be. republican senator lindsey graham has t called for this type of information saying that republicans should not sit on the sidelines and let allegations about foreign governments interfering in our election go unanswer ed because it may have been beneficial to them in this instance.

republican senator marco rubio put it even more bluntly saying "today it is the democrats, tomorrow it could be us." the bottom line is that this is not a democratic issue and it is not a republican issue. this is an american issue. elections are a core american value and are central to our democracy. and when any foreign interference with our elections should be of the greatest concern to every single member of this congress. the american people deserve as money information as possible about these threats and the acts their government is taking to address them. as i say to my constituents over and over again in the last election and during these times, this is bigger than hillary

clinton, this is bigger than donald trump. this is about a struggle for the soul of our democracy. and so it is our job to ensure that we get this kind of information since it is our duty to make sure that our democracy stands strong and that our children's children can have a democracy just as strong as the one that we have experienced. and with that i yield back. >> i thank the gentlemen. we'll hold the record open for five legislative days for any members who would like to submit a written statement. we'll now rise our panel of witnesses. pleased to welcome mr. jay william leonard, former director of the information security oversight office. mr. steven aftergood, director of the project on government secrecy at the federation of american scientists, mr. tom blanton, director of the national security archive at the

george washington university and mr. scott -- is it amey? i want to make sure i pronounce that properly, mr. scott amey, general counsel for the project on government oversight. we thank you for being here. all witnesses are to be sworn before they testified. if you will please rise and raise your right hand. do you solemnly swear or affirm the testimony you are about to give will be the truth, the whole truth and nothing but the truth? thank you, you may be seated. let the record reflect that all witnesses answered in the affirmative. in order to rye how will time for discussion we would appreciate your limiting your verbal comments to no greater than five minutes so members can have ample time to ask questions, your entire written statement and extraneous materials will be entered into the record. mr. leonard, you're now recognized for five minutes. and the microphones in this committee, you have to straighten them up and put them right up uncomfortably close. thank you. >> thank you, mr. chairman.

mr. cummings, members of the committee, appreciate the opportunity to be -- to attend this meeting this morning. the ability to classify national security information is a critical tool of the federal government and its leaders to protect our nation and its citizens however when wrecks will -- recklessly applied it can create needless impediments to transparency that can undermine our form of government and its constitutional system of checks and balances. i've come to the conclusion that on its own the executive branch is both incapable and unwilling to achieve true reform in this area. incapable in that absent external pressure from either the legislative or judiciary branches of our government true reform within the executive branch when the matter involves the equities of multiple agencies can only be achieved with the direct leadership emanating from the white house. over the past 40 years, we've seen only one white house-led attempt at classification reform and that was in the 1990s,

bureaucracies response tos at those attempts were typical -- delay and food drag because agency officials no that sooner or later every administration eventually goes away providing opportunities for roleback. with respect to the executive branch's unwillingness to implement real classification reform i believe it's unreasonable to expect it to do do so since it's such an attractive tool for any administration to facilitate implementation of its national security agenda. in this record, especially since 9/11, we have seen successive administrations lay claim to new and novel authorities and to often wrap these claims in classification. this can amount to unchecked executive power. while the president must have the ability to interpret and define the constitutional authority of the office and at times to act unilaterally, the limits of the president's authority are defined by the willingness and the president of congress and the courts to constrain him. of course before the congress or

the courts can constrain presidential claims to inherent unilateral powers they must first be aware of those claims, yet a long-recognized power of the president is to declassify and thus restrict the dissemination of information in the interest of national security to include access by congress or the courts. the combination of these two powers -- that is when the president lays claim to inherent power tos act unilaterally but does so in secret is can equate to the the open-ended non-circumscribed executive authority that the constitution's framers sought to avoid in constructing a system of checks and balances. thus absent on going congressional oversight or judicial review of executive assertions of classification no one should be surprised that the authority to class information is routinely abused in matters both big and small. i've attached to my formal statement specific examples of classification abuse relating to three criminal cases in which the prosecution did not prevail in large part due to government

overreach and its claims that certain information was classified, in each of these caser, the government abused the classification system and used it for other than its intented purpose. i believe there were steps congress can take in order to address this matter. the first deals with enforcing accountability, over the past several decades a significant number of individuals have rightly been held accountable for improperly handling classified information. to my knowledge, during the same period, no one has ever been accountable and subjected to sanctions for abusing the system and improperly classifying information. despite the fact that the president's executive authority treats disclosure of classified information and inappropriate classification of information as equal violations of the order subjecting if he were traitors to comparable sanctions. absent real accountability it's no surprise overclassification occurs with immunity. a secondary ya worthy of possible legislative attention

is that of providing a mechanism for routine independent expert review of agency classification decisions, especially as a tool to be made available to the executive's two co-equal branches of government when exercising congressional oversight or judicial action and to which they could come to their own independent judgment as to the appropriateness of executive assertions of classification. traditionally both congress and the courts are understandably deferential to such assertions and nonetheless when applying the controls of classification government officials are obligated to follow the standards set forth by the president and not exceed the governing orders, prohibitions and limitations thus it's not only possible but entirely appropriate to conduct a standards-based review of classification decisions. i've attached to my formal statement one potential methodology for such reviews. i implored this committee for focusing on this critical topic to our nation's well-being and i thank you for inviting me here today, mr. chairman, i'll be happy to answer any questions

you or other committee members might have. >> thank you. now there's a model for ending right at the five-minute mark mr. aftergood, i challenge you to come within one second of that mark as well but you're now recognized for five minutes. >> thank you, mr. chairman. and ranking member cummings. as you know and as you really expressed, overclassification presents many kinds of problems, it makes your oversight job more difficult. it incurs substantial financial and operational costs and with it often leaves the public in the dark about national security matters of urgent importance that they should be aware of. why do we even have overclassification? i think there are many reasons. for one thing, it's easier for officials to restrict access to information without carefully weighing the pros and cons of what should be disclosed. overclassification many times is simply the past of least

resistance. unchecked classification can also serve the political interests of the classifiers. it's a way to manage public perceptions, to advance an agenda, to limit oversight or simply to gain a form of political advantage so what is the solution to overclassification? i don't think there is a single solution, i discuss several partial solutions in my written statement. many of those solutions depend on congress to assert itself and to affirm its own institutional interests. congress is not a spectator and it should not be a victim when it comes to overclassification. it is a co-equal branch of government. in the executive branch already a lots of fine and conscientious people who have involved in classification policy, fortunately, but we should not have to rely on their integrity,

we rely instead on congress to exercise checks and balances in performing its routine oversight duties. finally, i would like to say that we are in a peculiar moment in our history that makes this issue particularly urgent. everything i've just said about overclassification could have been said 10 years ago or 20 years ago. this is a stubborn and persistent problem. but there is something different today. we are living in a period of unusual political instability that i believe requires even greater transparency. almost everyday we see increased expressions of hostility against religious and ethnic minorities. so-called fake news has lately resulted in actual acts of violence here in washington, d.c. in the past week. and it seems that our political

institutions are under a subtle form of attack by foreign actors, as the ranking member discussed. this is not a normal situation and it's not the way that things have always been. what complicates things further is that the incoming administration, at least during the election cycle, has indicated policy preferences that depart significantly from existing law and policy in areas such as foreign policy, questions of whether or not to engage in torture, questions involving freedom of religion. in some cases these raise basic constitutional issues so the bottom line is we are entering a turbulent time. reducing classification will not solve our problems but if we fail to reduce

overclassification we are going to make those problems worse and harder to solve. thank you, again, for holding this hearing and for the essential work of oversight that you do. i would be glad to answer any questions you may have. hearing and for the essential work of oversight that you do. i would be glad to answer any questions you may have. >> thank you. mr. blanton, you're now recognized for five minutes. >> >> i'm certainly not going to match those timings. he did five minutes, he did four minutes, it was outstanding. thank you, mr. chairman and thank you ranking member cummings and other distinguished members of this committee for having me here today. i'm here to make three points. one of them is a thank you for the freedom of information act amendments that y'all mentioned because it's a model for what you can do here on classification. second is to reinforce the message of the moynihan commission report. it was actually moyihan, combest, jesse helms, john podesta commission. so you can tell when it's a unanimous bipartisan, it's something to pay attention to and the number-one

recommendation was to pass a law. to govern and fix this system. the third thing i'm here to tell you is that when a security official or officials tell you something is classified, don't believe them. most of the time they're wrong. 50% to 90% of the time as the chairman commented, they're wrong so don't believe them. i'll back that up with a few examples but first, the freedom of information act amendments and why that's a model. you've already had an impact. y'all, this committee was the leaders in this house of representatives to get those amendments passed and already the central intelligence agency has released its bay of pigs draft history they locked up for 30 years. on what grounds? well, when you read it you find out the grounds. the historian who wrote it and drafted it said after more than 20 years it appears that fear of exposing the agency's dirty linen rather than any significant security information is what prompts continued denial of request for release of these

records. that's the norm in the bureaucracy. your amendments broke this loose, the cia historian wrote on the back "well, shucks, recent 2016 changes in the freedom of information act requires us to release some drafts that are responsive to foia requests." you did it by statutes. that's the congress's role. you can do it to the classification system and i recommend the detailed list of recommendations in the back of this extraordinary report, the moynihan combest report for how you can do that. you can build in cost benefit into the originating classification decision. you can build in assessments of what's the real risk? what's the real vulnerability? what's the stream of cost to the public and efficient government operations from classifying? you can do that on the front end. you can build in a declassification board with power to release so you get a rational declassification system on the back end so the system

doesn't get completely gummed up with unnecessary secrets, you can move those 50% to 90% of what shouldn't be secret out to the public. you can do that but you have to do it by statute. as bill leonard says, the government is not going to fix itself. you have to do it. my third point is just don't believe them on classification. last month we got a nice letter from the joint chiefs of staff in answer to a freedom of information request. that's the document they gave us. it's all blacked out because releasing it would damage our national security. seriously damage. this is at the secret level, right? it was fascinating because our staff person took a look and said, whoa, that's the joint chiefs advice on a presidential policy directive back in july of 1986. that looks kind of familiar. and he flipped back in the files, turned out we got it in 2010 in full. that made us go look at the cover letter.

you know what the cover letter says? it says "we have coordinated your freedom of information review in consultation with the joint staff and the national security council." this is from the office of secretary of defense. it says "osd and nsc have no objection to declassification in full, however mr. mark patrick of the joint staff thinks it ought to be classified" and thus you got the black blotches. classic case. one office doesn't agree with another office. one says it's been released for six years, another says it's going to damage our national security. attached to my testimony i have a half dozen other examples where it's not even one office or another office, it's the same reviewer one week apart had diametrically opposed views of what would damage our national security from release. so bottom line, mr. chairman, ranking member, don't believe them. thank you very much for your time, i welcome your questions. >> thank you, we love your passion for it, it's good. mr. amey, you're recognized for

five minutes. >> that's a tough act to follow. good morning, chairman chafts chaffetz, ranking member of the committee. pogo has always recognized the tension between openness and projecting legitimate government secrets but the executive branch frequently overclassifies more information than is necessary and has developed new ways to conceal government information. such obstructions create barriers to public deliberations on policy and government spending, impede sharing and harm efforts to identify and remedy waste, fraud, and abuse. the 9/11 commission said it simply, secrecy while necessary can also harm oversight. sometimes the result of classification is not for the legitimate need of secrecy but the concealment of embarrassing information which creates public distrust. there are five main points that i want to briefly discuss today. overclassification, retroactive classification, controlled unclassified information, treatment in handling cases and finally executive branch use of

secret laws. in overclassification, overclassification might be a form of either excessive redactions or improper markings. reports by the national security archive and isu show the classification process is mostly heading in the right direction and we have seen some improvement over the last few years, especially considering the amount of electronic documents that have to be reviewed. but one number is a concern. in 2015, classification decisions were overturned in whole or part in over 50% of the challenges. that was 411 cases overturned out of 814 decisions that were made. additionally, we've heard stories about the lack of clarity and authority and standards leading different agencies come to different conclusions as mr. blanton just discussed. concerned also about the lack of clarity about what constitutes

intelligence sources and methods which also can lead to overclassification. finally classifications aren't free. as the chairman mentioned, total security classification costs exceeded $16 billion back in 2015. the moynihan commission has an excellent recommendation to improve the system. classifications decisions including establishment of special access programs no longer be based on damage to national security. additional factors such as cost of protection, vulnerability, threat, rick, value of the information and public benefit from release could also be considered when making classification decisions. pogo is an agreement such factors should be considered to reduce executive branch secrecy. on the issue of retroactive classifications, for years, expressed concerns about activities to retroactively classify government information. we were involved in instances involving area 51 and unclassified briefings to members of congress in a whistle

blower retaliation case. pogo believes reviews should include a comprehensive look at issues affecting retroactive classification including failures to classify the information appropriately, how frequent it occurs what, considerations were given to the information if it's publicly available and what constitutes constitutional issues related to prior restraints. on ot issue of controlled unclassified information, there's been a proliferation of cui. by 2010, there were over 100 different cui markings within government agencies. we've expressed -- we've witnessed examples of misuse and pogo hopes the committee will consider providing oversight of the implementation of the recently released cui regulations. we've recently heard an example and it was something we had complained about during the process that employees at dhs when given a foia were also instructed that if they have a

foia that comes in and the information is marked cui, it should not be release. that's opposite to the executive order the president issued as well as the language in the final regulation from there and isu. unequal treatment in handling cases. in the past few years, we've witnessed numerous instances of mishandling of classified or protected information. i go into more detail in my written testimony. pogo thinks if an intent is considered and high profile cases can involving senior officials, it should be considered as well as other factors in whistleblower cases. secret law, pogo has voiced many concerns about the executive branch use of secret law. how we come to conclusions in striking the right balance between our security and rights is imperative. and the legal interpretations cannot be cloaked in secrecy. secret law propose poses a serious harm to our democracy. our recommendations are in our written testimony but there's

one issue and point that the 9/11 commission made that is important about nurturing that the current system nurtures overclassification. there are no punishments for not sharing information. agencies uphold a need to know culture of protecting rather than a need to share culture of integration. thank you for inviting me to testify. i look forward to working with the committee and further exploring how to protect legitimately classified information and reducing government secrecy and costs. thank you. >> thank you. >> i appreciate all the opening statements. we'll now recognize the gentleman from mr. michigan, mr. walberg for five minutes. >> thank you, mr. chairman, and thank you for holding this hearing. it's something that probably many of us have surmised was going on. it certainly goes to a frustrating level. and i appreciate the fact that in this report that you pointed

out, mr. chairman, pentagon buries evidence of $125 billion in bureaucratic waste done by two reporters one of which certainly has established credentials for doing investigative reporting. we ought to take this seriously, but i think when i read this, the frustrating thing was the number of assertions that lawmakers don't want to do anything about this because of the impact in their districts. and certainly, there is evidence to show that, but i think this committee has lawmakers better than that, and i hope that this is a real start. mr. amey, according to that article, in the "washington post" the department of defense first commissioned and then hid, hid the unflattering results and did it aggressively, hid that, with retribution offered threats, you name it of the waste and inefficiencies. are you familiar with the report? >> yes. >> i would expect so. in your view, what reasons could

the dod have had to keep the results of the report from the republic? >> oh, boy. you're putting me on the spot on trying to predict what the department of defense was thinking but i would imagine, i don't know. i mean, it's very difficult because the report is the actually on the internet. we found it yesterday when the story came out. it has been on the internet since that time. the defense business commission actually had a slide presentation, a summary of the report on its website. and so we're trying to actually figure out and we actually reached out to the reporters to try to figure out where the secrecy was coming in and what was taking place. i would imagine it's public embarrassment. at the end of the day, we're talking about the department of defense trying to protect $125 billion, and the fact that they can't pass an audit and other scrutiny on top of them that i think that this was just an issue of we didn't want this to get out. so let's try to keep it under wraps.

>> i'm sure $125 billion doesn't sound unreasonable to you. >> no, sir. we've been saying it for years that between when you look at goods and services, most of my work is on contract oversight. when you look at department of defense, goods and services, we factored, yeah, we're probably in the tens to hundreds of billions of dollars worth of waste. >> as i read that, it just goes back to simple truth that a bureaucracy will protect itself. and a bureaucracy does not want to be downsized in any way, shape, or form. in a time of sequestration, in a time when our war fighters and their families, et cetera, are suffering reductions for this type of dollar amount to be held over and attempted at least to be hid from us is unconscionable to think that this could as i've

read cover the cost, operational costs of 50 army brigades. that's pretty significant or 3,000 f-35 strike forces or 10 strike forces of carriers. that is just unconscionable that this would have been disregarded and hidden. what can congress do to ensure that agencies engage in this type of self-analysis but then also use results to improve existing operations? >> it's a wonderful question because that's exactly what the point is at the end of the day, we've asked for inventories of contracts, of inventories of what we're buying. how many services are being provided. unfortunately, there was actually a chart out a few years ago that said that the government doesn't often know how much the government is spending and what it's being used for. that's where we need to get to the audits, specific audits, just not check the box. people do x, y, and z.

we need to specific audits of specific spending. ga o does a good job. dcaa is involved in the process but that's where i think we need to go a lot deeper in the specific programs and get to the heart of why we see so many overruns on some of these programs. there's a lot of waste out there. we have to identify and come to the solution on how to remedy it from the beginning. let's stop trying to put the milk back in the bottle after the fact. let's do it before billions is wasted. >> i trust that because of this hearing and others, i would assume that we can do that. plus starting new an fresh on january 20th, as well, that this lesson will not be lost because frankly, this is the number one responsibility of our federal government to make sure that we have the resources available, do what's necessary to defend and protect our citizens and not just protect the bureaucracy. i yield back. >> thank you, gentlemen. the chair now recognizes ranking

member mr. cummings for five minutes. >> thank you very much, mr. chair. mr. aftergood, i and many other americans have serious concerns with reports of hacking and other actions by the russian government. the 2016 -- interfering with the 2016 presidential election. the intelligence community has confirmed that the russian government or its associated entities hacked the e-mail accounts of individuals and political organizations before the presidential election. the director of national national security agency admiral michael rogers said, and i quote, there shouldn't be any doubt in anybody's minds this was not something that was done casually. this was not something that was done by chance. this was not a target that was selected purely arbitrarily.

this was a conscious effort by a nation state to attempt to achieve a specific effect. end of quote. do you believe this is an important issue for our country? and i notice in your testimony you talked about classification and you talked about the state that we find ourselves in overall today and i am just curious. >> it's a crucial issue. the integrity of the electoral process is absolutely fundamental. if we don't have credible authoritative elections, the foundation of our political system is washed away. so yes, it's an extremely serious question. i think the blanket of classification that has been spread over it needs to be re-evaluated. even before that happens, congress needs to understand exactly what did happen.

there are actually several questions here. what kind of attack occurred. what are our vulnerabilities, and what steps it can be taken to prevent future attacks of this kind. and i think all of those questions are wide open. i would also say, though, that it's important that this not be construed as a left-handed attack or attempt to undermine the incoming administration, because that would only aggravate whatever damage has already been done, at least in my opinion. so you know, i would hope that this be undertaken as you said on a bipartisan basis to say look, we've got a problem. we need to deal with it. >> i agree with you. i think it's definitely a bipartisan issue. the fbi has refused to disclose any information about its

investigation of these hacks. this is the opposite approach from the one the fbi took in the clinton e-mail investigation. i wrote to our chairman on november 17th, 2016 to request that our committee conduct a bipartisan investigation into russia's role in interfering with and influencing the presidential election again. not to take anything away from president-elect trump but just the idea of it. this should bother every single american, even republican lindsey graham, senator graham, called for an investigation into it. outside experts have also called for congress to act. a group of 158 scholars from colleges and universities around the country sent congress a letter calling for a congressional investigation. a group of experts on cyber security, defense and fair

elections wrote, and i quote, this evidence made available in an investigation might show that foreign powers have played an important role and might show that such a role was negligible. at this juncture, we can only say that existing reports are plausible enough and publicly expressed enough to warrant congress's full attention and swift action." mr. blanton, do you believe there's a role for congress in investigating these allegations? >> yes, sir. to me, one of the great headlines of the whole election season appeared in the "washington post" on november 1st when the fbi was trying to explain why it didn't sign on to that statement from the director of national intelligence and the homeland security, and the headline read, comey was concerned publicly blaming russia for hacks of democrats

could appear too political in run-up to elections. that's "the washington post" headline. it's an interesting reticence as you point out. congress should get your classified briefings. you should understand the hacking. there's a huge problem. we are constructing at the national security archive website at george washington university a whole cyber vault trying to get declassified much of the cyber security policy documents because as former national security agency director michael hayden said, one of the problems with cyber security is it was born classified. it grew up in this hot house where it was shielded a compartments. what we really need in a robust debate that involves academics, civil libertarians, tech cans this committee and this congress. that cyber vault is beginning to get populated but it needs more it needs this congress to get

into this. it needs to press the intelligence community and homeland security to release the basis of their attributions. that's the hardest part as you well know, mr. cummings. >> one last thing, mr. chairman. i have said it, and i guess at 65 i look back and i and not so much worried about my life. i'm worried about future generations. the idea, i mean i just see i'm very concerned about our democracy. mr. aftergood, i appreciate your comments because it seems as if you can just chop away and chip away and the next thing you know, you won't have a democracy. do you all have similar concerns? any of you? >> yes, mr. cummings. you know, i think you know, obviously my insights are only based upon what i've seen in open source material and whatever. i do know from being based on my past experiences this is something straight out of the

russian playbook. we've seen it repeatedly happen in europe especially in eastern europe and things along those lines. in fact, it's straight out of the kgb playbook during cold war. it was known as special measures back then and the use of disinformation and things along those lines. so clearly it does go at the swre fabric. again, this is an example of what i made reference to in my opening comment in terms of the impact that denying information to the congress can have in terms of the congress's own ability then to carry out its article 1 constitutional authorities which essentially is oversight. >> thank you. >> if i could make one more comment on that issue. i think we've got to look at this question of hacking and attribution and roles with an eye to what's the long-term fix?

if you look at what the obama administration achieved with china, the price of a state visit for the head of state of china was that china had to stop its hacking. and that whole arm of the people's liberation army kind of went on hold. and the question one of the documents, first document we published in the cyber vault was the directive that authorized our national security agency to do offensive cyber operations and that was in 1997. that was in 1997. i think one of the things congress has to look at when it's trying to figure out who is hacking us and what's the damage is what's the fix. i think we're going to have to end up with new international norms governing cyber war because our country is the most vulnerable in the cyber sphere. it's in our national security interests to impose rules on

other folks, and to cut the deals like president obama did with president xi to restrain us, to restrain them, it will also restrain us. that's in our interest. >> i would ask our panelists to help us keep within our five minutes. we've got a number of people that want to ask questions. if we can both ways. the chair now recognizes mr. farenthold for five minutes. >> thank you, mr. chairman. mr. amey, you mentioned there's no penalty for overclassification. what would you suggest that we do? obviously, you would want some penalty for self-serving classification. what other areas would you -- what would you suggest as a potential punishment, or do you just make it illegal with no punishment? >> well, i think that's -- there has to be some punishment. we can debate what the punishment will be. there has to be some kind of civil, criminal or administrative punishment that happens. rr