The Democratic Arsenal

The Arsenal of Tools Congressional Democrats Can Use To Force the Bush Administration To Cooperate with Their Efforts To Undertake Oversight:
Part Three in a Three-Part Series By JOHN W. DEAN ----

Friday, Jan. 12, 2007

In my last column, I argued that Congress has ample tools to conduct aggressive oversight of the Bush Administration, if it is only courageous enough to use them.

In this column, I will set forth each of those tools - as described in The Congressional Reference Service's (CRS) complete manual on oversight, which was updated recently, and in an excellent essay on these methods by Lou Fisher (one of the authors of the CRS manual), which is entitled "Congressional Access To Information: Using Legislative Will And Leverage."

The Appropriations Power: The "Power of the Purse

Presidents are often willing "to surrender documents they consider sensitive or confidential to obtain funds from Congress to implement programs important to the executive branch," Fisher explains. Congress has used this leverage ever since the presidency of George Washington, when the House wanted documents relating to a treaty, which is, of course, a matter for the Senate, not the House. Secretary of State Thomas Jefferson counseled Washington to provide information to both the House and the Senate, given that a House appropriations bill was needed to fund the treaty. Later, as President, Jefferson had no qualms about providing treaty information to the House when he needed its members to fund the Louisiana Purchase.
Fisher offers a few unique examples of early presidents providing information to the House. When the House wanted information about the Jay Treaty in 1796, Alexander Hamilton told President Washington that it need not be provided. Nevertheless, the House got almost everything it wanted.

Congress's funding of the government takes its oversight into every nook and cranny that receives federal funding. Fisher provides several nice contemporary examples of the leverage Congress can exert, based on its appropriations power:
It has long been the practice for presidents to refuse to produce White House staff members as witnesses before Congress. Yet Presidents Ford and Carter permitted their aides running the Office of Policy Development to appear before the House Appropriations subcommittee with jurisdiction over their office.

Later, during the Reagan Administration, when Martin Anderson took charge of that office, he refused to testify. The House then refused to give him any money. Anderson met "informally" with the subcommittee, and his budget was restored.

The Impeachment Power: Congress' Strongest Weapon

Needless to say, this is heavy ammunition - though ammunition perhaps unlikely to be used by current Democrats, in light of the Clinton impeachment debacle.

Fisher says, "Congress has especially strong leverage when it decides to initiate the impeachment process." President Washington, Fisher notes, was the first to concede this fact, but other presidents, from James Polk to Andrew Jackson have acknowledged the broad reach of an impeachment inquiry.

Fisher also cites a more recent example. Ronald Reagan gave Congress everything it wanted, regarding the Iran-Contra affair. Fisher reports, "Through this cooperation he hoped to derail any movement toward impeachment. Attorney General Edwin Meese, III, thought the Iran-Contra affair had the potential for 'toppling' the president and triggering impeachment proceedings in the House." Cooperation, indeed, did help Reagan survive, but the understanding around Washington has long been that when Reagan agreed to make Senator Howard Baker (R TN) his White House chief of staff, the Congress backed off -- believing Howard Baker would bring experienced supervision to the Reagan White House.

There can be no question that the threat of impeachment has convinced many presidents to provide Congress with information. What happens when a president refuses to cooperate, particularly when an actual impeachment inquiry is underway? The historical example, of course, is Richard Nixon. He stiffed the impeachment investigation, refusing to provide the inquiry with information requested in four subpoenas. The House prepared a bill of impeachment for Nixon's failure to produce the requested information, and Nixon resigned before he could be impeached. Not only was Nixon's gambit of not responding to the subpoenas ineffective, it actually inspired Congress to play hardball and enact a law that simply took Nixon's tapes and papers.

The Confirmation Power

Presidential appointments requiring Senate confirmation have frequently provided Congress with leverage to obtain information from the Executive Branch. Fisher cites, as an example, the nomination of Richard Kleindienst to be attorney general in 1972. At the time of this nomination, muckraking columnist Jack Anderson (correctly) charged that Kleindienst had lied about his role in the settlement of an antitrust case against International Telephone and Telegraph Corporation. This prompted the Senate Judiciary Committee to call Peter Flanigan, a Nixon White House aide who had also been involved, as a witness.

Nixon directed his counsel (yours truly) to advise the committee that under "long-established historical precedents," members of the president's immediate staff did not appear to testify before Congress. However, when the Senate Judiciary Committee made clear that without Flanigan's testimony, there would be no confirmation of Kleindienst, Nixon relented.
(As it happened, and as we all learned later, Kleindienst was protecting Nixon, who had ordered him to settle the ITT case, not Flanigan, who was unaware that Nixon had called Kleindienst. While Kleindienst committed perjury before the Senate, he was only charged with making a false statement to Congress, and given a slap on the wrist.)

Fisher notes how other high-profile nominations have resulted in the White House's acceding to requests for information about the nominee. When President Reagan nominated Associate Justice William Rehnquist to be Chief Justice, the Senate Judiciary Committee wanted to look at documents Nixon had denied them when Rehnquist was confirmed as an Associate Justice. Unfortunately, as I have written in The Rehnquist Choice, the Senate did not know what documents to ask for, so when they requested some thirty harmless documents (the titles of which appeared enticing), President Reagan was happy to allow the Senate can send someone from the committee to the Justice Department to read them. Meanwhile, the documents that might have doomed Rehnquist's move to the middle chair remained buried in the Justice Department archives.

However, the demand for documents does not always work. Rehnquist's nomination to become an Associate Justice was not blocked when Nixon refused to provided documents. In some instances, the Bush White House has let nominations such as that of Miguel Estrada, a former Justice Department assistant attorney general, grow stale, rather than producing documents. Estrada eventually requested that his nomination to the U.S. Court of Appeals for the District of Columbia be withdrawn.

One of the best leverage tools regarding presidential appointees, as Fisher mentions, is the Senate "hold." There is an informal Senate rule allowing any Senator to request that an action on the floor of the Senate be deferred -- for any reason, and often the Senator placing the "hold" remains secret. The "hold" has been successfully used to force presidents to produce information.

Fisher cites a number of examples -- to which I would add Senator Hillary Clinton's effective use of a "hold" to force the Environmental Protection Agency to give New Yorkers accurate information about the condition of the air in lower Manhattan following 9/11.

Congressional Subpoenas and Contempt Powers

There is nothing subtle about the use of subpoenas, which can be used against Executive Branch officials or private individuals. If the witness claims the Fifth Amendment right to remain silent because of self-incrimination, the Congress can grant the witness either "use" immunity, precluding the use of the witness's testimony or its fruits in a criminal prosecution, or full immunity, which precludes criminal prosecution for stated charges on any evidence, no matter how it is discovered.

The difference between use immunity and full immunity, however, is often immaterial. In high profile cases - such as that of Oliver North, who provided immunized testimony during Iran Contra - it is virtually impossible to prosecute the witness, for the testimony may have influenced potential jurors. Prosecutors, and the Congress, generally understand that the Congress's right to information can preclude the government prosecuting in many situations - though sometimes they do try to indict anyway.

A witness's failure to honor a subpoena can result in a contempt citation by the Congress, and of course, contempt can bring jail time. The mere threat of contempt has been used, on countless occasions, to force a wide array of high-level Executive Branch officials to produce the requested information. No president has yet instructed an officer to defy Congress and go to jail. However, there have been a number of close calls.

Secretary of Commerce Rogers Morton turned over information regarding an Arab boycott of Israel in 1975, rather than be held in contempt. Secretary of State Henry Kissinger avoided contempt when President Ford had a member of his National Security Council provide information Congress wanted. Secretary of Interior James Watt, and Attorney General William Smith, yielded to Congress rather than face contempt. President Reagan's EPA head, Anne Gorsuch Burford, was dangerously close when the House voted, 259-to-105, to hold her in contempt, but Reagan yielded.

Attorney General Dick Thornburgh turned over documents in 1991, rather than risk contempt. White House associate counsel William Kennedy turned over notes regarding President Clinton and the Whitewater Development Corporation, rather than be held in contempt.
The list is long, and I have cited only a few examples, but no tool is more effective than a subpoena, if the House or Senate has the will to enforce it.

Unique House Tools: Resolutions of Inquiry and the "Seven Member Rule"

There are a few tools only the House can use. For example, a House resolution of inquiry makes a direct "request" of a president, or a "demand" of other Executive Branch officials, to produce information. It is a tool that allows any member of the House to seek information.
The resolution is privileged, and if it is not reported back from the committee with jurisdiction within fourteen days (with the report stating their approval or disapproval), the member introducing it can file a motion to discharge the committee, and this is a privilege motion -- which means it is always in order to file it. Typically, the House debates a resolution of inquiry for one hour, and then votes it up or down.

When such a resolution is approved by the House, the Executive Branch officials have fourteen days to respond. Depending upon the wording of the particular resolution - such resolutions often include, along with the demand, a provision that the request not be incompatible with the public interest - the Executive Branch has little choice but to respond, or else invoke "executive privilege," which I will address shortly.

Another tool available exclusively to the House is the "Seven Member Rule." The rule, though a rarity, has recently been employed against the Bush Administration.

This device is found in a 1928 statute which discontinued a prior requirement that Executive Departments had to file certain reports, but required "every executive department and independent establishment of the government" to provide information upon the request of "any seven members" of the House Government Reform committee, or "any five members" of the Senate Government Reform committee. (Actually, it referred to a predecessor committee to the Reform committees, which now stands in place of the earlier committees.)

In 2001, California Democratic Congressman Henry Waxman, then the ranking member of the House Government Reform committee and now its chairman, was joined by sixteen other Democrats and an Independent, in requesting census data from the Secretary of Commerce, Donald Evans, using the "Seven Member Rule." Evans balked, and the Bush Administration filed a lawsuit to declare the Seven Member Rule unconstitutional.

Waxman, wisely, filed his own action in the very liberal Central District of California, rather than the District of Columbia, where judges still retain some objectivity about the Federal Government. In 2002, District Court Judge Lourdes Baird upheld Waxman's claim, denying the government's motion to dismiss, and then denying a motion from the Executive asking her to reconsider.

The government then appealed her decision to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit ducked the issue on the Seven Member Rule, after holding in another case - Carter vs. U.S. Department of Commerce - that the requested census data separately had to be produced under the Freedom of Information Act (FOIA).

The bottom line is that the Seven Member Rule remains very much in effect.

The Executive Privilege Shield

Since Richard Nixon abused the so-called "executive privilege" claim during Watergate, presidents have been reluctant to rely on this assertion to protect information, due to the cost in terms of political capital.

Nixon himself, of course, failed keep his secret tapes from the Watergate grand jury. In a unanimous ruling, eight of the Supreme Court's Justices rejected Nixon's arguments. (Then-Associate Justice Rehnquist recused himself, for he had previously advised Nixon on matters of executive privilege matters as an assistant attorney general in charge of the Office of Legal Counsel). The Supreme Court's reasoning was as follows:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

U.S. v. Nixon was the first time the High Court recognized "executive privilege," and clearly, it said there were areas where it might apply, such as, the "need to protect military, diplomatic, or sensitive national security secrets." Thus, there are plainly areas where a president may be able to claim the privilege, if its exercise is truly merited due to genuine national security or foreign policy concerns.

Members of Congress thus face a serious problem when a president exerts executive privilege, demonstrating that he (or she) is willing to spend the necessary political capital, and suffer the inevitable parallels to Nixon. In this situation, there is really nothing the Congress can do - short of impeaching the president on the theory that his improperly withholding information amounts to a high crime or misdemeanor, which itself could, of course, be a reach.

Suppose the 110th Congress does find itself being stonewalled by Bush and Cheney's claims of executive privilege. Does it then have no recourse?

Absolutely not: There is still a powerful option. Congress can take the issue to the public, and make a public case that Bush and Cheney are obstructing the legitimate operations of Congress by withholding vital information - thus ratcheting up the political pressure on the Administration. If Congress' evidence is strong enough, the Administration, though it may keep on withholding information, will incur a high cost for its unreasonable secrecy - and the Republicans may well pay that cost at the ballot box in 2008.

John W. Dean, a FindLaw columnist, is a former counsel to the president.