WASHINGTON – Senate Judiciary Committee
Chairman Chuck Grassley called on President Donald Trump to “drain the swamp”
and rescind an opinion by the Office of Legal Counsel (OLC) that attempted to
insulate unelected government bureaucrats from questions by the people’s
elected representatives in Congress.
In his letter to the President
, Grassley excoriates the OLC
opinion for its claim that congressional committees and committee chairmen are
the only “constitutionally authorized” requests for information originating in
the legislative branch.
that, Grassley said, “This is nonsense.”
lays out a thorough case for the constitutional need for every member of
Congress to request and receive information from the executive bureaucracy
regardless of committee membership, chairmanship. Grassley also emphasizes the
importance of oversight and inquiry regardless of partisan affiliation.
know from experience that a partisan response to oversight only discourages
bipartisanship, decreases transparency, and diminishes the crucial role of the
American people’s elected representatives,” Grassley said in his letter.
further notes that the Obama administration continuously relied on “tenuous
claims of privilege” to avoid scrutiny, leading to increased brinksmanship
between the Legislative Branch and Executive Branch.
has long advocated for transparency in government and strong congressional
oversight. Earlier this week, Grassley testified to the importance of
unobstructed Congressional oversight in a hearing before the House Oversight
and Government Reform Committee. The hearing covered the continuously
obstructed and still-pending investigation into Operation Fast and Furious at
the Bureau of Alcohol, Tobacco, Firearms and Explosives, a sad example of
obstruction when oversight could make for better governance and improved
June 7, 2017
Honorable Donald J. Trump
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
February, I wrote to you about the importance of empowering whistleblowers to
help you “drain the swamp.”
Today, I write to urge you to
encourage cooperation with congressional oversight as another key way to
accomplish that goal and to alert you to a bureaucratic effort by the Office of
Legal Counsel to insulate the Executive Branch from scrutiny by the elected
representatives of the American people.
Constitutional system of separation of powers grants to Congress all
The Supreme Court has recognized
time and again that the power of congressional inquiry is inherent in these
vested legislative powers.
That is because without access to
information held by the Executive Branch, Congress cannot legislate effectively
or help assure the American people that their hard?earned tax dollars are being
Every member of
Congress is a Constitutional officer, duly elected to represent and cast votes
in the interests of their constituents. This applies obviously regardless of
whether they are in the majority or the minority at the moment and regardless
of whether they are in a leadership position on a particular committee. Thus, all
members need accurate information from the Executive Branch in order to carry
out their Constitutional function to make informed decisions on all sorts of
legislative issues covering a vast array of complex matters across our massive
the May 1, 2017 Office of Legal Counsel (OLC) opinion authored by Acting
Assistant Attorney General Curtis E. Gannon on this topic completely misses the
mark. It erroneously rejects any notion that individual members of Congress who
may not chair a relevant committee need to obtain information from the
Executive Branch in order to carry out their Constitutional duties. It falsely
asserts that only requests from committees or their chairs are
and relegates requests from
non-Chairmen to the position of “non-oversight” inquiries—whatever that means.
Constitution does not mention committees or committee Chairmen at all. The
committee structure in Congress is simply how the Legislative Branch has chosen
to internally organize itself. It works through committees “[b]ecause of the
high volume and complexity of its work,” not for the purpose of cutting off the
flow of information to members who do not chair those committees.
Unless Congress explicitly tells the Executive Branch to withhold information
based on committee membership or leadership position, there is no legal or
Constitutional basis for the Executive Branch to do so.
OLC to so fundamentally misunderstand and misstate such a simple fact exposes
its shocking lack of professionalism and objectivity. Indeed, OLC appears to
have utterly failed to live up to its own standards. You are being ill-served
and ill-advised. OLC’s best practice guidelines states:
[R]egardless of the Office’s ultimate
legal conclusions, it should strive to ensure that it candidly and fairly
addresses the full range of relevant legal sources and significant
arguments on all sides of a question.
* * *
The Office must strive in our opinions
for clear and concise analysis and a balanced presentation of arguments on
of an issue.
most recent OLC opinion is anything but balanced. For example, it fails to cite
and analyze any authority that challenges its conclusion.
a result, the opinion takes an unduly restrictive and unsupported view of the
responsibilities of Members of Congress and the nature of congressional
oversight. In so doing, the opinion equates requests from individual members to
Freedom of Information Act (FOIA) requests from unelected members of the
public. But the powers vested in the Congress—both explicitly and inherently by
the Constitution—impose significant and far-reaching responsibilities on the
people’s elected representatives. They include the authorization and
appropriation of federal funds, the organization of federal departments, the
enactment of laws executing the enumerated powers, the confirmation of
nominees, the impeachment and removal of officers, and the investigation of the
execution of the laws and of waste, fraud, and abuse in federal programs. These
responsibilities are all forms of oversight, all mechanisms that support the
legislative check and balance of the executive power.
participate in deciding whether, when, and how Congress will exercise these
United States Court of Appeals for the D.C. Circuit recognized in Murphy
v. Dep’t of the Army
Members [of Congress] have a
constitutionally recognized status entitling them to share in general
congressional powers and responsibilities, many of them requiring access to
Each member “participates in the
law-making process; each has a voice and a vote in that process; and each is
entitled to request such information from the executive agencies as will enable
him to carry out the responsibilities of a legislator.”
Yet, the OLC
opinion ignores these points and authorities. It avoids good faith presentation
of any significant arguments contrary to its conclusion. It utterly fails to
acknowledge or respond to anything supporting the notion that a request from a
Member of Congress might be entitled to greater weight than a FOIA request.
OLC opinion also inexplicably asserts that this responsibility of congressional
“oversight” is restricted to only certain inquiries made by Chairmen or full
committees on the grounds that only those responses can be compelled. As the
OLC opinion notes, the rules of the House and the Senate authorize its standing
committees to conduct oversight. And that authority, as the Supreme Court has
recognized time and again, is extremely broad.
is true that through this process Congress can compel the production of
witnesses and documents. However, the scope of information Members of Congress
need from the Executive Branch in order to carry out their Constitutional
duties is far broader than merely what is obtained through compulsory process.
The vast majority of information Congress obtains, even through a Chairman’s
requests, is obtained voluntarily, not by compulsion. Yet, reading the OLC
opinion, it would seem oversight is only “oversight” if it’s mandatory.
put, that’s just not how it works.
by declaring that non-Chairman requests are not “authorized,” OLC purports to
speak for the Legislative Branch, an act which itself lacks any authority. It
simply is not the province of another branch of government to say which
information gathering activities by Members of Congress are “authorized” or
not. Voluntary requests for information from the Executive Branch by members or
groups of members without regard to committee chairmanship or membership have
occurred and have been accommodated regularly since the beginning of the
As the court further recognized in Murphy:
It would be an inappropriate intrusion
into the legislative sphere for the courts to decide without congressional
direction that, for example, only the chairman of a committee shall be regarded
as the official voice of the Congress for purposes of receiving such
, as distinguished from its ranking minority member, other
committee members, or other members of the Congress.
is just as inappropriate for the Executive Branch as it would be for the
Courts. Receiving information in response to voluntary requests is completely
different from compelling information, and Members of Congress need access to both
in order to do their jobs effectively. But the OLC opinion unnecessarily
conflates the two in order to reach its conclusions.
as noted above, nothing in the committee structure or in our internal rules
suggests that Congress meant to stifle the flow of information to non-Chairmen.
In fact, the consideration of compulsory process generally requires the consent
or other participation of non-Chairmen. That process almost always begins with
voluntary requests and negotiations with the Executive Branch. Non-Chairmen
need to, and often do, participate in receiving information voluntarily in the
course of that process in order to determine whether, and when, compulsory
process becomes necessary. And, the decision to enforce that process through
contempt belongs to the whole body—a decision in which every Member
a cursory review of House and Senate committee rules, which the OLC apparently
did not perform, plainly shows that most committees’ rules envision or require
the participation of the minority ranking member or even the full committee in
the issuance of a subpoena.
Only a handful of committees have
delegated the authority to a Chairman to unilaterally issue a subpoena without
even consulting or notifying the Ranking Member. Thus, OLC’s distinction
between Chairmen as “authorized” to seek information because such oversight can
be compelled by a Chairman acting alone is mostly false. The Executive Branch’s
so-called “longstanding” practice of responding only to Chairmen plainly does
not, and cannot, depend on the voluntariness of such a response. The actual
practice in almost every case, whether made to a Chairman or not, is that
responses are fully voluntary.
Executive Branch has in fact been voluntarily responding to requests
from individual members for the entirety of its existence, whether or not those
members did or had the power to unilaterally issue a subpoena. In most cases,
congressional requests—even from Chairmen—never reach the compulsory stage precisely
because of this process of voluntary accommodation. Traditionally, a
subpoena has been used as a last resort, when the voluntary accommodation
process has already failed. Thus that process begins, or at least ought to
begin, well before a Chairman or a committee issues a subpoena or a house
issues a contempt citation. OLC offers no authority indicating that courts
expect the other two branches to cooperate with each other only when compelled
to do so. Such a position would itself undermine the very purpose of comity and
cooperation between the branches.
in recent years, particularly under the Obama administration, the Executive
Branch has sought to rely on increasingly tenuous claims of privilege and force
congressional investigators to seek compulsory process and avoid scrutiny in
the absence of a subpoena. The OLC opinion’s refusal to recognize a voluntary
request as a legitimate, constitutionally-grounded part of the each Member’s
participation in the legislative powers will only feed this unfortunate trend.
It risks increased brinksmanship in Executive-Legislative relations and will
result in less, not more, “dynamic . . . furthering [of] the constitutional
if the Congress took a similar position and refused to voluntarily disclose any
information to an Executive Branch official unless the official was capable of
compelling an answer. Imagine Congressional legal opinion instructing Members
and staff to withhold all information about bills, nominations, or appropriations
from most Executive Branch officials on the grounds that Congress has “no
constitutional obligation to accommodate information requests from the Deputy
Undersecretary of Legislative Affairs.” It’s absurd. It would never happen, but
that is analogous to what this OLC opinion says. Members of Congress simply do
not treat Executive Branch officials with such contempt and they do not deserve
such treatment in return. This is especially true given that, unlike virtually
all Executive Branch officials, Members are elected to Constitutional
positions. Instead, the Executive Branch should work to cooperate in good faith
with all congressional requests to the fullest extent possible.
the practical implications of the policy that this opinion is reportedly
designed to support are extremely troublesome for the effective and efficient
functioning of our constitutional democracy. Notably, leaving aside the fact
that the contrived distinction between “oversight” and “non-oversight” requests
makes little sense, the opinion does not say that determinations whether
to comply voluntarily with an individual request depend or should depend upon
the party of the requester. Nonetheless, I know that bureaucrats in the
Executive Branch sometimes choose to respond only to the party in power at the
moment. I also encountered significant problems in gaining answers to my
requests from the Obama administration, whether I was in the majority or the
know from experience that a partisan response to oversight only discourages
bipartisanship, decreases transparency, and diminishes the crucial role of the
American people’s elected representatives. Oversight brings transparency, and
transparency brings accountability. And, the opposite is true. Shutting down
oversight requests doesn’t drain the swamp, Mr. President. It floods
also know from long experience that, even in a highly charged political
environment, most requests for information—by majority and minority members—are
not “partisan” or at least not intended to be so. Many requests simply seek
information to help inform Members as they perform their Constitutional duty to
legislate and fix real problems for the American people. That is the kind of
information Republicans and Democrats in Congress need to be able to do
our jobs on behalf of the people we all represent.
I respectfully request that the White House rescind this OLC opinion and any
policy of ignoring oversight request from non-Chairmen. It harms not just the
Members who happen to be in the minority party at the moment, but also, Members
in the majority party who are not currently Chairmen. It obstructs what ought
to be the natural flow of information between agencies and the committees,
which frustrates the Constitutional function of legislating.
The Honorable Dianne Feinstein
from Charles E. Grassley, Chairman, U.S. Sen. Comm. on the Judiciary to Donald
J. Trump, President of the United States (Feb. 8, 2017).
 U.S. Const.
art. I, § 1.
, 273 U.S. 135, 177, 181-182 (1927).
opinion at 2 (citing Congressional Oversight Manual at 65); id.
(noting that requests from individual members do not “trigger any obligation to
accommodate congressional needs and is not legally enforceable through a
subpoena or contempt proceedings”).
Schneider, Cong. Research Serv., RS20794, The Committee System in the U.S.
1 (Oct. 14, 2009) (“Because
of the high volume and complexity of its work, Congress divides its
legislative, oversight, and internal administrative tasks among committees and
Halchin et al., Cong. Research Serv., RL30240, Congressional Oversight
4-5 (Dec. 19, 2014).
1151, 1157 (D.C. Cir. 1979) (emphasis added).
F.2d 1151, 1157 (D.C. Cir. 1979).
opinion at 3 (quoting United States v. AT&T
, 567 F.2d 121, 130-31
(D.C. Cir. 1977)).