    [House Hearing, 116 Congress]
    [From the U.S. Government Publishing Office]

                            EXECUTIVE PRIVILEGE AND
                            CONGRESSIONAL OVERSIGHT

    =======================================================================

                                    HEARING

                                   BEFORE THE

                           COMMITTEE ON THE JUDICIARY
                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED SIXTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                  MAY 15, 2019

                                   __________

                               Serial No. 116-20

                                   __________

             Printed for the use of the Committee on the Judiciary

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

            Available http://judiciary.house.gov or www.govinfo.gov

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    37-502                      WASHINGTON : 2019

    --------------------------------------------------------------------------------------

                          COMMITTEE ON THE JUDICIARY

                       JERROLD NADLER, New York, Chairman
    ZOE LOFGREN, California              DOUG COLLINS, Georgia, Ranking
    SHEILA JACKSON LEE, Texas                Member
    STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr.,
    HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
        Georgia                          STEVE CHABOT, Ohio
    THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
    KAREN BASS, California               JIM JORDAN, Ohio
    CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
    HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
    DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
    ERIC SWALWELL, California            MATT GAETZ, Florida
    TED LIEU, California                 MIKE JOHNSON, Louisiana
    JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
    PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
    VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
    J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
    MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
      Vice-Chair                         KELLY ARMSTRONG, North Dakota
    SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
    JOE NEGUSE, Colorado
    LUCY McBATH, Georgia
    GREG STANTON, Arizona
    MADELEINE DEAN, Pennsylvania
    DEBBIE MUCARSEL-POWELL, Florida
    VERONICA ESCOBAR, Texas

                 Perry Apelbaum, Majority Staff & Chief Counsel
                    Brendan Belair, Minority Staff Director

                                C O N T E N T S

                                  ----------

                                  MAY 15, 2019
                               OPENING STATEMENTS

                                                                       Page
    The Honorable Jerrold Nadler, Chairman, Committee on the
      Judiciary......................................................     1
    The Honorable Doug Collins, Ranking Member, Committee on the
      Judiciary......................................................    20

                                    WITNESS

    Kate Shaw, Professor of Law, Benjamin N. Cardozo School of Law,
      Yeshiva University
        Oral Testimony...............................................    30
        Prepared Testimony...........................................    34
    Paul Rosenzweig, Senior Fellow, National Security &
      Cybersecurity, R Street Institute
        Oral Testimony...............................................    47
        Prepared Testimony...........................................    49
    Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public
      Interest Law, The George Washington University Law School
        Oral Testimony...............................................    66
        Prepared Testimony...........................................    68
    Neil Kinkopf, Professor of Law, Georgia State University College
      of Law
        Oral Testimony...............................................    97
        Prepared Testimony...........................................   138

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    A letter for the record submitted by the Honorable Jerrold
      Nadler, Chairman, Committee on the Judiciary...................     4
    A letter for the record submitted by the Honorable Jerrold
      Nadler, Chairman, Committee on the Judiciary...................    17
    A letter for the record submitted by the Honorable Doug Collins,
      Ranking Member, Committee on the Judiciary.....................    23
    Excerpts from a report by the Project in Government Oversight for
      the record submitted by the Honorable Jerrold Nadler, Chairman,
      Committee on the Judiciary.....................................    99

                                    APPENDIX

    A Statement and articles for the record submitted by the
      Honorable Sheila Jackson Lee, a Member of Congress from the
      State of Texas, Committee on the Judiciary.....................   188
    A Statement for the record submitted by the Honorable Sylvia
      Garcia, a Member of Congress from the State of Texas, Committee
      on the Judiciary...............................................   210
    A Statement for the record submitted by Caroline Fredrickson,
      President, American Constitution Society, and Noah Bookbinder,
      Executive Director, Citizens for Responsibility and Ethics in
      Washington, on behalf of the joint ACS/CREW Presidential
      Education Project..............................................   213

                EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT

                                  ----------

                            WEDNESDAY, MAY 15, 2019

                            House of Representatives

                           Committee on the Judiciary

                                Washington, DC.

        The committee met, pursuant to call, at 10:11 a.m., in Room
    2141, Rayburn Office Building, Hon. Jerrold Nadler [chairman of
    the committee] presiding.
        Present: Representatives Nadler, Lofgren, Jackson Lee,
    Johnson of Georgia, Deutch, Bass, Jeffries, Cicilline, Lieu,
    Raskin, Jayapal, Correa, Scanlon, Garcia, McBath, Stanton,
    Dean, Mucarsel-Powell, Collins, Chabot, Gohmert, Buck,
    Ratcliffe, Gaetz, Biggs, McClintock, Lesko, Reschenthaler,
    Cline, Armstrong, and Steube.
        Staff present: David Greengrass, Senior Counsel; John Doty,
    Senior Advisor; Lisette Morton, Director of Policy, Planning,
    and Member Services; Madeline Strasser, Chief Clerk; Moh
    Sharma, Member Services and Outreach Advisor; Susan Jensen,
    Parliamentarian/Senior Counsel; Sophie Brill, Counsel,
    Constitution Subcommittee; Will Emmons, Professional Staff
    Member, Constitution Subcommittee; Sarah Istel, Counsel; Matt
    Morgan, Counsel; Brendan Belair, Minority Chief of Staff;
    Robert Parmiter, Minority Deputy Staff Director and Chief
    Counsel; Jon Ferro, Minority Parliamentarian; Paul Taylor,
    Minority Chief Counsel, Constitution Subcommittee; Carlton
    Davis, Minority Chief Oversight Counsel; Ashley Callen,
    Minority Senior Adviser and Oversight Counsel; and Erica
    Barker, Minority Clerk.
        Chairman Nadler. The Judiciary Committee will come to
    order. Without objection, the chair is authorized to declare
    recesses of the committee at any time.
        We welcome everyone to today's hearing on executive
    privilege and congressional oversight. I will now recognize
    myself for an opening statement.
        For more than 200 years, Congress has exercised its power
    under Article I of the Constitution to conduct oversight of the
    executive branch. Congress' power of inquiry, recognized by the
    Supreme Court in case after case for nearly a century, is
    essential to our constitutional order. Without it, Congress
    would have no way to expose waste or misconduct, to inform
    itself for purposes of writing new legislation, or to ensure
    that public officials, including the President, remain
    accountable to the people they are supposed to serve.
        Congress and the executive branch have fought over requests
    for information in the past. At times, this has included
    disagreement over the scope of executive privilege, the
    doctrine that holds that certain information may be withheld
    from Congress under limited circumstances to protect the
    President's ability to seek candid advice from his or her
    advisers. But while the courts have held that the President's
    communications are entitled to some degree of confidentiality,
    they have consistently held that the privilege is not an
    absolute shield and can be overcome when the interest of
    justice require it.
        Until recently, no President had ever stated that his plan
    across the board would to be fight any and all oversight from
    Congress. In declaring that he plans to ``fight all the
    subpoenas,'' President Trump has announced his hostility to our
    system of checks and balances and is thereby seeking to hold
    himself above the law. The President's statement was not just
    isolated rhetoric. It was an admission of what this
    Administration has been doing and has really escalated since
    the start of the 116th Congress when it became clear the House
    of Representatives would carry out its duty and the will of the
    voters by engaging in constitutionally-necessary oversight of
    the executive branch.
        By this Administration's command, the White House has
    attempted to impede over 20 congressional investigations,
    including by ignoring or failing to provide meaningful
    responses to dozens of letters requesting information on topics
    ranging from the Affordable Care Act to the security of our
    elections to the policy of separating children from their
    parents at the border. Government witnesses have failed to
    appear for hearings and interviews. While in other
    administrations Congress issued subpoenas only as a last resort
    when negotiations failed, the Trump Administration has often
    been unwilling to engage with Congress at all unless and until
    a subpoena is issued and a contempt proceeding is looming. This
    constitutional brinksmanship is particularly unacceptable
    where, as here, the President is using the powers of his office
    to impede an investigation into his own alleged misconduct.
        For months, this committee and others have made clear our
    expectation that the Department of Justice must produce an
    unredacted version of Special Counsel Mueller's report as well
    as the evidence and other investigatory materials underlying
    the report. We wrote to Attorney General Barr about this in
    February. We repeated that request multiple times throughout
    the months of March and April. The committee's contempt report
    describes these exchanges in exhaustive detail.
        On April 18th, having received no substantive response from
    Attorney General Barr, the committee issued a subpoena for the
    unredacted Mueller report and the underlying materials. This is
    information to which we are constitutionally entitled and which
    we need to fulfill our legislative and oversight duties,
    including to protect the integrity of our Nation's elections.
    Yet it was only in the days and hours leading up to this
    committee's markup of the contempt report that the Justice
    Department engaged in negotiations. Even then the Department's
    ``accommodation efforts'' were wholly insufficient. I put that
    in quotes because I wouldn't even call them real accommodation
    efforts.
        The Department was willing only to discuss severely-
    restrictive terms in which a small number of members could
    review some of the redacted portions of the Mueller report. It
    remained unwilling to make any substantive offers to produce
    any underlying evidence or investigative files. Then at 10:00
    p.m. on the night before the contempt markup, the Department
    informed us that it was ending those negotiations and would
    request that President Trump assert executive privilege as to
    the redacted portions of the Mueller report and for each and
    every underlying document subject to the committee's subpoena.
        The President's protective assertion of executive privilege
    is unprecedented in its scope. The Justice Department openly
    admits that it has not even reviewed all the underlying
    documents, let alone provided any specific reasons for
    withholding them. Although the Attorney General has cited one
    example from the Clinton era in which the President made a
    protective assertion of privilege to allow more time to review
    the requested materials, in that instance the White House had
    already been providing documents to Congress on a rolling basis
    for nearly a year, and the White House completed its review
    just 15 days later.
        This Administration has produced none of the evidence
    underlying the Mueller report, and it has made no effort to
    show that it is now reviewing these documents on a good-faith
    basis to determine which ones, if any, are legitimately subject
    to privilege. In any event, as the committee has pointed out in
    multiple letters to the Attorney General, the White House has
    already waived executive privilege several times over, to the
    extent that it never could have applied to underlying evidence
    collected by the Special Counsel's Office.
        Moreover, no court has ever held that the executive branch
    can withhold documents from Congress in the face of a subpoena
    simply because they consist of law enforcement files. Congress
    routinely receives this type of information. In just the last
    Congress, the Justice Department produced hundreds of thousands
    of pages of sensitive law enforcement files in response to
    congressional subpoenas, including files pertaining to the
    Russian investigation which was ongoing at the time.
        For these and other reasons, I am deeply troubled by the
    President's 11th-hour decision to make a blanket invocation of
    executive privilege for all redacted portions of the Mueller
    report and all of the underlying materials. I invited White
    House Counsel Pat Cipollone to testify at today's hearing so
    that he could better explain and defend the White House's
    assertions of privilege. But he has declined that invitation,
    and he has instead submitted a written statement that restates
    the same arguments previously raised by the Justice Department.
    I ask unanimous consent to enter this letter into the record.
        Without objection, it will be entered.
        [The information follows:]

                    CHAIRMAN NADLER FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. I also ask unanimous consent to enter a
    letter I sent to the White House on May 10th, 2019, also on the
    topic of executive privilege.
        Again, without objection.
        [The information follows:]

                    CHAIRMAN NADLER FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. This letter sets out a more detailed
    description of our negotiations with the Department of Justice
    prior to its 11th-hour invocation of executive privilege.
        Fortunately, today's witnesses have a wealth of experience
    and expertise on matters of executive privilege, including from
    the Justice Department, the White House Counsel's Office, and
    even the office of former Independent Counsel, Kenneth Starr.
    Although these issues about privilege and document requests may
    appear technical, what they ultimately come down to is whether
    the President can shield himself from accountability to a co-
    equal branch of government. I look forward to today's
    discussion of these important matters which lie at the core of
    our nation's commitment to the basic principle that no man or
    woman is above the law.
        It is now my pleasure to recognize the Ranking Member of
    the Judiciary Committee, the gentleman from Georgia, Mr.
    Collins, for his opening statement.
        Mr. Collins. Thank you, Mr. Chairman, and I think as we
    will see today, welcome, you know, to a redo of something that
    probably should have happened a long time ago. A deliberative
    body like the Judiciary Committee commands respect, but only
    when it conducts itself in a respectable manner, and what we
    have seen in the last 5 months is their actions have put our
    influence at risk.
        In fact, no one on our side, and it is sort of crazy. No
    one on our side is questioning oversight ability of Congress. I
    have said it many times when we were in the majority and I have
    in the minority. Oversight of Congress is a powerful tool and
    should be used. Article II, many times what I have found is
    Members of Congress before I got here gave up a lot of our, you
    know, the authority that we have in Article I to Article II,
    and that is a problem, but, however, you use it in the right
    way.
        Oversight power that is properly done is a powerful tool,
    but when it is not done right, it actually weakens us. When you
    actually, as the Chairman talked about subpoena power, you
    actually threaten the Acting Attorney General at the time with
    a subpoena and then had to back off. A subpoena was not used as
    a last resort. It was used as a threat and then backed off of.
    This is what we have seen so far in this Congress. We talked
    about it last week.
        One of the reasons I believe we are having this hearing
    today is, to come to talk about executive privilege and to talk
    about these things is because last week we showed in the
    contempt hearing that the majority actually did ask for 6(e)
    information. Actually asked for 6(e) information, which they
    cannot have without going to court. It is in the subpoena, and
    there is not a law professor sitting in front of me that
    wouldn't agree that the four corners of a subpoena is what the
    judge acts on, not the intent of the majority.
        So when we do this, we continue to downplay the role of
    this committee. Many of us were lawyers before we became
    politicians, and I was actually a lawyer and a pastor before,
    beloved professions in which reason matters. When we come
    before us today in this matter, I am glad that you are all
    here. I appreciate your backgrounds and your opinions, and we
    are going to hear this today, but, again, I think we have come
    after the fact. We are now trying to go back and lay groundwork
    for what they may want to do later when this could have been
    done beforehand. We said this last week.
        You know, it is often said, and the chairman just said,
    that the Congress is a co-equal branch. I actually think it is
    the premiere branch because we are the ones that actually start
    the money. We are the ones that actually have control. We are
    the closest to the people. We are the ones that have enormous
    power, and the President does answer to Congress. And with all
    its power to enact laws and the enormous breadth, this
    committee's authority to remove a president and upending an
    entire election, that is what the majority has chosen to focus
    on. That is it.
        For the past month, the Democrats have focused on the few
    areas in which we are not given boundless prerogative. We know
    the danger of simple majority rule. We are not a country run by
    a 51 percent majority. Without a division of centralized power,
    democracy becomes anarchy, and so the Supreme Court has power.
    The Attorney General has power. And even if he is not a member
    of your party, the President has power, which we recognized
    when Mr. Obama was in power.
        But for the past months, we have besmirched this body and
    failed to do our jobs. This committee is one of the most
    important bodies in Congress and has become a parody. When the
    results of the Mueller investigation did not satisfy the
    Democrats, they quickly started peddling to the American people
    the manufactured constitutional crisis. The majority turned a
    reasonable discussion of the Mueller report into an opening of
    cannon fire for the circus that they have created. And we are
    back at the circus again, and you have been brought into it.
        We have also looked at those who are channeling outrage for
    impeachment while then going on TV and saying we need to back
    out. It is a base perception, political issue. We even have
    some that have actually on the other side become megaphone
    operators, roaring about evidence nowhere to be found and
    demanding punitive action when they cry for what is next. Never
    mind the absurdity of what is next when, for example, the
    chairman claims that a subpoena is merely the beginning of a
    dialogue weeks after assuring our committee that a subpoena is
    a powerful and coercive tool, and to be only used when our
    attempts to reach accommodation with the witness have reached
    an impasse. That is what we actually heard last week.
        Not only is a subpoena the start of a dialogue, it is to
    give us better standing in court. I mean, my law school didn't
    teach that. In fact, the judges that I went before actually
    believe the subpoena is a powerful tool, as the chairman said
    earlier this year. We are going very fast. You are here today
    to give cover, and they did so with no hearing, no groundwork
    when they held Mr. Barr in contempt. In fact, a mere 19 days
    have passed from the issuance of the subpoena and contempt.
    When the Oversight Committee held Eric Holder in contempt, 255
    days had passed, 13 times as fast.
        Now the Democrats tell us that they are taking the circus
    to court because the President has asserted executive
    privilege, a fact they claim represents a constitutional
    crisis. Today we will discuss that debate and privilege. Many
    people claim Republicans on this committee are covering for the
    President when we should join the Democrats in their demand did
    the Attorney General violate the law, which is what this
    subpoena said.
        So instead of stripping our branch and our oversight
    authority, we actually believe that we have it. But I can't
    also let it pass because, Mr. Chairman, here we are again
    having this hearing. And, again, I appreciate the witnesses
    coming and spending your time with us. But we have a crisis on
    our border. Even the New York Times, Washington Post, everybody
    else, they talk about the crisis. We have not heard anything
    about that. We have talked about DACA, but we have not talked
    about the crisis on the border. We have issues of intellectual
    property and trade on the front headlines of a deal with China.
    This is the intellectual property committee. Have we done
    anything? No. We have focused entirely on this one area.
        But the one that got me the most, frankly, as a son of a
    Georgia State trooper, was this is Police Week. This is a time
    in which we honor our police officers and law enforcement and
    which they have come. Thirty thousand almost are in D.C. this
    week, and yesterday we had one bill on the floor, bulletproof
    vests, a great bill. I was the co-sponsor, original. One bill.
    In the past we have averaged 9 to 10 addressing the issues and
    needs of our police officers.
        But what we did have from the chairman, and I ask unanimous
    consent that it be entered into the record, is a letter from
    the chairman and several of our members to General Barr wanting
    to talk about police-involved shootings and unarmed people in
    Ferguson, Baltimore, Cleveland, Chicago, Falcon Heights, Tulsa,
    Pittsburgh, and Dallas.
        [The information follows:]

                 RANKING MEMBER COLLINS FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Mr. Collins. And they list off statistics citing in 2018,
    992 people were shot and killed by police. No context. No
    thought about how many of those actually pulled a gun on an
    officer, how many of those actually were looking, and
    unfortunately what we have seen is the phenomenon of suicide by
    cop. We just throw numbers out there. Well, I am going to throw
    a couple other numbers.
        A hundred and forty-four officers died in the line of duty.
    This year over 86 have died in the line of duty. When one of
    the police organizations heard about this letter, this was
    their reaction: ``Well, that is a slap in the face.'' It is
    tone deaf. We could have waited a week then had this. Nobody
    would have said a word, but in the middle of Police Week, Mr.
    Chairman, with everything this committee has going on.
        We will have this hearing. I am glad our witness is here, I
    am glad your witnesses are here, because we are having to redo,
    get the cart before the horse again, trying to get it right for
    this one single-minded focus of hatred for a President and an
    Attorney General. The oversight of this committee is
    unquestioned. We have oversight. We will work through that. But
    we are hellbent on finding the excuse to the point that we slap
    our officers in the face.
        I have no problem with looking into these issues, none at
    all. But when we put one bill on the floor and we send this to
    the Attorney General during Police Week, I don't think there is
    a person on the other side of this dais should say anything
    about supporting police this week. Just be quiet. Go on to the
    next week, and we will get on to this letter then. And
    hopefully, Mr. Chairman, we will take something, as one of your
    members and I have talked on several occasions, maybe we will
    get to some things that we can agree on. I have got no problem
    disagreeing with the other side on policy. What I do have a
    problem with is we never get to it. We are back at the same
    thing again and again.
        So for the folks here, and our witnesses, and for both
    sides of the dais, welcome back to the circus. Another week is
    here, and we will pop the popcorn while we continue to rehash
    the past. With that, I yield back.
        Chairman Nadler. Thank you, Mr. Collins. I will now
    introduce today's witnesses. Professor Kate Shaw teaches law at
    Yeshiva University's Benjamin Cardozo School of Law. She
    received her bachelor of arts from Brown University and her
    J.D. from the Northwestern University Pritzker School of Law.
    Prior to joining Cardozo, Professor Shaw worked in the White
    House Counsel's Office under President Barack Obama as Special
    Assistant to the President and Associate Counsel to the
    President.
        Paul Rosenzweig is senior fellow for national security and
    cybersecurity at R Street Institute. He is also the
    Professorial Lecturer in Law at George Washington University
    School of Law. He received his B.A. from Haverford College, his
    J.D. from the University of Chicago Law School. His prior
    professional experience includes working as Senior Counsel on
    Independent Counsel Ken Starr's investigation of President Bill
    Clinton.
        Jonathan Turley is the J.B. and Maurice C. Shapiro
    Professor of Public Interest Law at the George Washington
    University School of Law. He is a nationally-recognized legal
    scholar and has written extensively in areas ranging from
    constitutional law to legal theory and tort law. Professor
    Turley received his B.A. from the University of Chicago and his
    J.D. from Northwestern University Pritzker School of Law. In
    2008, he was given an honorary doctorate of law from John
    Marshall Law School for his contribution to civil liberties and
    the public interest.
        Neil Kinkopf is a Professor of Law at Georgia State
    University College of Law. He graduated from Boston College
    with a B.A. and received his J.D. from Case Western Reserve
    University. Professor Kinkopf's prior professional experience
    includes serving as special assistant to the Office of Legal
    Counsel at the Department of Justice under President Bill
    Clinton. During the Clinton impeachment proceedings in 1999,
    Professor Kinkopf was the legal counsel to then Senator Joe
    Biden.
        We welcome all of our distinguished witnesses, and we thank
    them for participating in today's hearing. Now, if you would
    please rise, I will begin by swearing you in, although I must
    confess that I always feel a little silly asking people to
    swear that they will tell us their opinions truthfully.
    [Laughter.]
        Chairman Nadler. But nonetheless, do you swear or affirm
    under penalty of perjury that the testimony you are about to
    give is true and correct to the best of your knowledge,
    information, and believe, so help you God?
        [A chorus of ayes.]
        Chairman Nadler. Thank you. Let the record show the
    witnesses answered in the affirmative. You may be seated.
        Please note that each of your written statements will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in 5 minutes. To help you
    stay within that time, there is a timing light on your table.
    When the light switches from green to yellow, you have 1 minute
    to conclude your testimony. When the light turns red, it is
    signals your 5 minutes have expired.
        Professor Shaw, you may begin.

     TESTIMONIES OF KATE SHAW, BENJAMIN N. CARDOZO SCHOOL OF LAW,
    YESHIVA UNIVERSITY, NEW YORK, NEW YORK; PAUL ROSENZWEIG, SENIOR
    FELLOW, NATIONAL SECURITY & CYBERSECURITY, R STREET INSTITUTE,
    WASHINGTON, D.C.; JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO
        PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON
      UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.; AND NEIL KINKOPF,
      PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY COLLEGE OF LAW,
                            ATLANTA, GEORGIA

                         TESTIMONY OF KATE SHAW

        Ms. Shaw. Chairman Nadler, Ranking Member Collins, and
    distinguished members of the committee, I thank you for the
    opportunity to testify here today. As the chairman said, my
    name is Katie Shaw. I am a professor of law at Cardozo in New
    York City, and before I began teaching, I spent several years
    as a lawyer in the White House Counsel's Office.
        I understand that the purpose of today's hearing is to
    contextualize and assess the White House's recent protective
    assertion of executive privilege over the entirety of the
    unredacted Mueller report and underlying materials, as well as
    the committee's ongoing exchanges with the White House
    regarding former White House Counsel Don McGahn's documents and
    testimony. So in brief, my view as both a scholar and a former
    White House lawyer who does believe in a constitutionally-
    grounded executive privilege, is that blanket invocations of
    executive privilege of the sort the White House has made here
    are without substantial support in either case law or executive
    branch practice. Moreover, they are unsupported by the
    principles that underlie the privilege.
        My written testimony provides background on executive
    privilege, both generally and in the context of congressional
    oversight, so I am not going to spend much time on that
    background. I'll just say that the judicial authority in this
    area is limited both in volume and its utility. What I think is
    more significant here is the authority from the political
    branches, in particular, the numerous written opinions
    directives from presidents and senior Department of Justice
    officials from both Republican and Democratic administrations
    that have guided the executive branch's approach to these
    issues for many years.
        I won't describe those documents in detail. Instead I'll
    just say that they reflect a strong vision of executive
    privilege, an entitlement which the executive branch
    understands to have constitutional foundations to keep certain
    documents and communications confidential. But they also
    reflect a recognition of Congress' constitutional entitlement
    to access at least some executive branch information.
        So abiding by these principles, the executive branch in
    countless inquiries over the years worked with Congress to
    grant some information access while protecting documents they
    believed in good faith could ultimately be subject to an
    assertion of executive privilege. That, I believe,
    distinguishes the executive branch's approach in these
    proceedings from longstanding principles and practices. The
    White House's broad protective assertion of privilege
    encompasses documents that could not possibly be subject to a
    claim of privilege. So let me elaborate on this, first, in the
    context of the committee's request for the full, unredacted
    Mueller report and underlying materials.
        First, the White House has not identified the particular
    strains of executive privilege that might attach to the
    materials at issue here. Executive privilege isn't a free-
    floating entitlement to conceal embarrassing or inconvenient
    information from public disclosure. It protects certain narrow
    categories of information for specific reasons, chief among
    them, the importance of protecting confidential advice to the
    President. Some of the materials at issue may implicate that
    strain of executive privilege. Some may implicate other
    categories of executive privilege. But many appear to likely
    have, at best, shaky support in law and in practice.
        Second, as to those portions of the report that have
    already been publicly released, and potentially some of the
    underlying materials that are summarized and reflected in the
    Mueller report, the White House, by failing to object to public
    release, has clearly waived any plausible claim of privilege.
        Third, insofar as some of the documents contained within
    the set might contain evidence of misconduct, and even a
    cursory read of the Mueller report establishes that some very
    likely do, claims of executive privilege may be weakened or
    unavailable. That is because a number of courts have held that
    allegations of misconduct erode, if not vitiate, at least some
    forms of executive privilege. So if the documents at issue
    reveal misconduct, that should minimize the President's
    legitimate Article II interest in protecting them and increase
    congressional authority to obtain them.
        Fourth, there is some authority suggesting that in order to
    qualify for the privilege, at least the presidential
    communications privilege, right, the subset of executive
    privilege, the communications at issue must have some nexus to
    the performance of a presidential function, and must be
    consistent with presidential duty. So the D.C. Circuit, echoing
    the Supreme Court's foundational executive privilege case,
    United States v. Nixon, has emphasized that the purpose of the
    presidential communications privilege is to ensure that the
    president receives full and frank advice with regard to non-
    delegable powers. And the key D.C. Circuit cases here involve
    the appointment and removal power and the pardon powers. These
    are key presidential powers.
        So documents that pertain to the exercise of those powers
    may well fall within the privilege. But as to documents that
    reflect the President engaged in very different kinds of
    conduct, conduct like potentially endeavoring to end an
    investigation for corrupt or self-interested reasons, those
    documents might not be eligible for the assertion of privilege
    at all.
        Briefly, as to the additional documents in the possession
    of former White House Counsel Don McGahn, the White House has
    suggested that the documents sought by the committee implicate
    significant executive branch confidentiality interests and
    executive privilege, but to my knowledge has not moved to
    formerly invoke executive privilege. For several reasons, the
    White House, I believe, lacks the strong foundation for an
    assertion of privilege here as well.
        First, the White House did not assert any privilege with
    respect to McGahn's provision of information to the Special
    Counsel's Office, and, more importantly, nor did it object to
    the release of the largely-unredacted report. Now, this may not
    constitute a waiver as to all of the documents in Don McGahn's
    possession, but as to those materials that were incorporated
    into the now-public report, I do not believe there remains any
    strong privilege claim.
        Second, the President has made numerous public statements,
    as recently as last week, to put before the public his version
    of conversations with former White House Counsel Don McGahn.
    Although there's no direct judicial authority on the impact of
    such statements, there is some analogous authority, cases that
    prevent the executive from making self-serving statements, then
    retreating to privilege to prevent the disclosure of
    information that might undermine a one-sided account.
        And third--I see my time is expiring--third, where there is
    evidence of misconduct, as with materials underlying the
    Mueller report writ large, the argument against their
    disclosure is accordingly quite weakened. As to all of these,
    these are legitimate matters of congressional inquiry. And,
    again, as to those potentially misconduct-revealing documents,
    the White House does not have any strong legal basis to resist
    their disclosure. And by saying a strong executive privilege
    and strong congressional oversight authority are critically
    important principles, the sequence of events, as I understand
    them, suggests that the conduct of the White House poses a
    threat to both.
        With that, thank you, and I look forward to your questions.
        [The statement of Ms. Shaw follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. Thank you very much. Professor Rosenzweig.

                      TESTIMONY OF PAUL ROSENZWEIG

        Mr. Rosenzweig. Chairman Nadler, Ranking Member Collins,
    members of the committee, I, too, thank you for the opportunity
    to appear today and testify on the issue of executive privilege
    and congressional oversight.
        I confess I am somewhat surprised to be called today. As
    you know, Mr. Chairman, I have testified before the House and
    this committee on earlier occasions, almost always as an
    invited witness of the Republican members, and in at least one
    instance, in substantive, but I hope polite, disagreement with
    you on an issue related to the domain name system. Today,
    however, I come to speak about the rule of law and the virtue
    of its consistent application, a premise on which I hope we can
    all agree. In my written testimony today I made a few points
    which I can summarize as follows.
        First, there is a long history of congressional oversight
    of the executive branch activity that dates back to the
    founding of the American republic. I was delighted to hear,
    Congressman Collins, that you agree with Congress'
    investigative and oversight authority because just yesterday
    President Trump's attorneys argued to the contrary before the
    District Court, suggesting that investigative authority was
    limited to the executive branch, an assertion that, in my
    judgment is both wrong and almost ahistorical in its nature.
        Throughout our history, at least until recently, presidents
    have been circumspect in their assertion of a privilege to
    thwart congressional or criminal inquiry. Those views on the
    privilege have waxed and waned over time. Throughout much of
    our Nation's history, they have bent toward accommodation of
    legitimate investigative interest. Recent history sadly tells
    us a different tale, one of presidential invocations of
    privilege intended to conceal wrongful conduct or thwart
    legitimate constitutional interests.
        I saw much of that firsthand during the investigation of
    President Clinton, an investigation that resulted in repeated
    invocations of privilege that were rejected almost uniformly by
    the courts. Much the same pattern of presidential resistance to
    oversight can be seen today. For me, the application of the
    same principles that guided the Clinton inquiry should guide
    this committee. Claims of executive privilege should be narrow,
    focused, and justified only by legitimate executive interests
    in fostering candid advice to the President. Broader
    invocations are ill considered and ought to be rejected by this
    committee, by the courts to which these disputes might fall for
    adjudication, and by the American public.
        Indeed, it seems clear to me that the current broad-brush
    invocation of privilege advanced by the President stands on
    relatively weaker ground than did that of President Clinton.
    President Clinton's invocations, unlike those at issue today,
    were exclusively focused on the core of the privilege,
    presidential communications. And Congress' interest in the
    current question of Russian electoral interference is surely
    more of constitutional moment than the investigation of
    misconduct that surrounded President Clinton.
        In addition, President Clinton, unlike President Trump, did
    not seek to throw the cloak of privilege over documents that
    had already been disclosed to outside third parties, nor try
    and prevent private citizens from responding to a subpoena. And
    all of President Clinton's invocations occurred while he still
    faced potential criminal liability for his wrongdoing, a
    circumstance that, given Attorney General Barr's determination,
    no longer applies to this President.
        Finally, this particular invocation does not occur in a
    vacuum, nor is, in my judgment, this committee required to
    ignore the context in which it arises. By any measure, the
    President appears to have determined to resist almost all
    congressional inquiries through a variety of means, as
    yesterday's District Court hearing demonstrates. This pattern
    is such that this committee may fairly evaluate the instant
    invocation against that background, which might be
    characterized as an attempt to avoid or, at a minimum, delay
    scrutiny of his conduct.
        For me, true adherence to the rule of law means that rules
    have to be applied evenhandedly, regardless of whether a
    political party or other interest is immediately benefitted. It
    means not invoking privileges to conceal wrongdoing, and it
    means not invoking them to frustrate legitimate congressional
    inquiry. That obligation, to be sure, falls on all citizens,
    but, in my judgment, it falls even more strongly on the
    President, who takes an oath to uphold the law. Accordingly, if
    you continue to think that President Clinton's use of the
    privilege to avoid scrutiny of his actions was violative of his
    oath of office and deserving of condemnation, as I do, you can
    no less about President Trump.
        As James Wilson, one of the founders and members of the
    first Supreme Court, put it, ``Far from being above the laws,
    the President is amenable to them in his private character as a
    citizen.'' The framers of our Constitution rightly thought that
    presidents could and should be subject to congressional
    oversight, and the thoughtless invocation of privilege is in
    derogation of that high principle. I remain hopeful that in the
    end the Department of Justice and the Administration will
    recognize these principles and make reasonable accommodations
    to enable this committee to receive the information it needs,
    while protecting the legitimate public interest embodied in the
    privilege.
        Thank you very much, Madam Chairman.
        [The statement of Mr. Rosenzweig follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. Thank you very much. Mr. Turley.

                      TESTIMONY OF JONATHAN TURLEY

        Mr. Turley. Thank you, Chairman Nadler, Ranking Member
    Collins, members of the committee. Thank you again for the
    opportunity to appear before you to talk about a subject of
    such great importance as executive privilege and congressional
    oversight in the context of our current controversies.
        At the outset, I should repeat my well-known bias as a
    Madisonian scholar. I tend to favor the legislative branch. My
    default tends to be Article I. My academic work has defended
    the authority of Congress for over 30 years. I've represented
    members of the House of Representatives individually as well as
    the House of Representatives as a whole in defense of what I
    consider to be inherent powers of this body that were being
    usurped by the expansion of executive power.
        It is for that reason that this is a curious position for
    me to be in. But I am not here, I haven't been called, to give
    my personal view of executive privilege. I have always been a
    critic of executive privilege. I've been called to give my view
    of where the law stands now and how the courts are likely to
    view the current conflict. And on that, I will offer a
    relatively mixed account as to the relative claims of this
    committee and that of the White House.
        The greatest concern I have, which I have put in my written
    testimony, is that this committee has an obligation, a sort of
    constitutional Hippocratic oath, to first do no harm. As an
    advocate of Article I, the precedent that is used by this body
    in its very important work is not as deep or as broad as most
    of us would like it. It can easily be undermined with reckless
    litigation. For that reason, in my testimony I've isolated what
    I consider to be the strongest and best ground for this
    committee to fight on, cases that I believe you would most
    certainly win. I've also identified areas that I've cautioned
    you not to pursue because the risks are too high.
        Now, the President has a right to assert executive
    privilege, and the Attorney General is obligated to defend it,
    but this committee has to pick its fights wisely. Bad cases
    make for bad law. So Congress has an undeniable and legitimate
    interest in this information. As I have said publicly, as I say
    in my testimony, I think the President would serve the public
    and his office best by waiving executive privilege over much of
    the documents used in the special counsel's report. But we have
    to address what will happen once there's a challenge in court
    to examine that assertion.
        This body has decided to proceed on a not an impeachment
    matter. That will weigh heavily in an any fights with the White
    House. The courts have indicated that on impeachment matters,
    there's a heavy deference that is given to this body as a
    conventional oversight matter becomes more mixed. I've gone
    through five areas of information that is currently being
    withheld from this body. With some of those I believe this
    committee will lose.
        On issues of the redactions, I believe this committee will
    lose. I think the case that the Attorney General has on those
    redactions is virtually unassailable. Where I believe this
    committee can win and where I think the White House is,
    frankly, unsupportable in its position, is to try block
    witnesses from this committee. And ultimately, I believe that
    you will prevail on getting underlying material linked to the
    Mueller report.
        The question then is how do you proceed. I've listed cases
    that give you an outline as to the most likely way to prevail,
    protect your precedent, and to move this along. Privilege
    fights are like invading Russia in winter. If you get into it,
    it's not going to be fast, and you're not going to get a warm
    reception in the courts. You have to be very careful of how you
    launch that campaign.
        In Paradise Lost, Milton referred to a Serbonian bog where
    whole armies have sunk. Don't be one of those armies. If you
    attack Article II on weak grounds, you will sink in that bog.
    So what I encourage this committee in my testimony, which is
    probably too long quite frankly, is that you focus on your
    strongest suit. Focus on forcing these witnesses before your
    committee. Focus on getting the underlying documents.
        Now, in that you're going to have a mixed result on forcing
    those documents to be released. What I say in my testimony is
    that the President has a valid executive privilege claim and
    this committee has a valid oversight claim. You're not going to
    win on a threshold fight. I also believe that it is not true
    that the President has waived executive privilege by showing
    material to special counsel. On that I believe you will lose,
    and I strongly encourage you not to make that argument in
    Federal court. The case law here is quite strong. That doesn't
    mean you're going to lose. It just means you're not going to
    have a takedown on the first round.
        Now, one of the things I also advocate for you to consider
    is that when you look at the redactions, I understand that you
    want to see the full report. The report has given 98 percent of
    it to select members. I understand that there are objections to
    how rigid those limitations are. That is not good ground to
    fight on. These other areas, I would bet on you, and those are
    the areas I would encourage you to focus on.
        Thank you very much.
        [The statement of Mr. Turley follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. Thank you. Professor Kinkopf.

                       TESTIMONY OF NEIL KINKOPF

        Mr. Kinkopf. Thank you, Chairman Nadler, Ranking Member,
    and, more importantly, fellow Georgian, Mr. Collins. It's a
    real honor to be here today. This is an auspicious time for a
    hearing into executive privilege and congressional oversight
    given the range of current disputes over executive privilege
    between Congress and the executive branch. These disputes
    involve a clash between constitutional interests.
        The Constitution vests Congress with an inherent power of
    inquiry. As the Supreme Court has stated, ``The scope of the
    power of inquiry is as penetrating and far reaching as the
    potential power to enact and appropriate under the
    Constitution.'' The President also has a legitimate interest in
    confidentiality that's constitutionally rooted. The President's
    decision-making process requires that he be able to receive
    candid and robust advice from his advisers, and that advice,
    human nature tells us, would be tempered if it couldn't be
    given in confidence. Neither of these constitutionally-based
    interests overwhelms or trumps the other. Instead, they need to
    be balanced, and in the first instance, that balance is to be
    struck by the political branches themselves through a process
    of negotiation and accommodation.
        Attorney General William French Smith, who served under
    President Ronald Reagan, put it this way: ``The courts have
    referred to the obligation of each branch to accommodate the
    legitimate needs of the other. The accommodation required is
    not simply an exchange of concessions or a test of political
    strength. It is an obligation of each branch to make a
    principled effort to acknowledge and, if possible, to meet the
    legitimate needs of the other branch.'' This approach has been
    the standard model adhered to by administrations and congresses
    of both political parties. It stands in stark contrast to
    President Trump's recent declaration of a blanket intention to
    oppose all the subpoenas.
        When privilege disputes have gone to court, the courts have
    repeatedly emphasized that the balancing of constitutional
    interests should not be done in the abstract, but instead
    should be done on a case-by-case basis that takes account of
    the concrete facts and circumstances presented by the
    particular issue. The subpoenas that this committee has issued
    involve an inquiry into Russian interference in our elections.
    In the concrete factual setting of these subpoenas, Congress'
    interest is of the highest constitutional order.
        First, Congress has authority to enact statutes to
    safeguard our elections from foreign interference. The sound
    exercise of that authority is fundamental to our democracy, and
    the threat to the integrity of our electoral system is not
    abstract or speculative. Russia has interfered in our
    elections, and, according to our intelligence services, it will
    continue to do so.
        Second, the Constitution assigns Congress the primary role
    for addressing presidential misconduct. The Mueller report
    details exhaustive and voluminous evidence of presidential
    misconduct and of Russian attempts to interfere in the
    election. It details the President endeavoring to obstruct the
    investigation into Russian interference with the election. The
    report itself refrains from drawing a conclusion as to whether
    or not the President committed obstruction of justice in the
    sense of the Federal statute. It refrains because of the
    special counsel's specific determination that he does not wish
    to preempt the political branches, Congress, from their primary
    role in addressing presidential misconduct. So Congress has
    overwhelming constitutional interests in receiving the material
    that it has subpoenaed in order to inform its judgment about
    safeguarding our elections and about how to respond to
    significant allegations of presidential misconduct.
        On the other side of the balance is the President's
    interest in confidentiality. The President has not, however,
    sought to specify within the factual setting of this particular
    dispute why it is that the discreet documents that he's
    withholding are within his authority to withhold. I won't go
    through all of the specificity that Professor Shaw, I think, so
    well covered. But I would say the balance of the interest,
    Congress' very weighty interest, and, at least to this point,
    the President's only general and vague assertions, do not
    overcome Congress. And in the balance, Congress should prevail.
        [The statement of Mr. Kinkopf follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. Thank you very much. I will open up the
    questioning by recognizing myself first.
        Professor Turley, this committee issued a subpoena to
    former White House Counsel Don McGahn for records provided to
    him by the White House in the course of his cooperation with
    the special counsel investigation. The current White House
    counsel, Pat Cipollone, has instructed him not to respond on
    the grounds that these records ``implicate significant
    executive privilege confidentiality interests and executive
    privilege.'' Do you agree that those White House records are
    still legally protected from disclosure to Congress because
    they may implicate executive branch confidentiality interests?
        Mr. Turley. Thank you, Mr. Chairman. It is a tough
    question. I am going to give you middle-of-the-road answer, if
    you don't mind. First of all, the problem with calling Don
    McGahn, and, first of all, I think you have absolutely every
    right to call Don McGahn. The problem with the documents from
    McGahn is that his office sits at the very nucleus of
    presidential communication privilege. He is the really high-
    value witness for you to call in terms of the triggering of the
    constitutional fight.
        The material that he showed to the special counsel, in my
    view, is not waived because that is a conversation occurring
    within the executive branch. It is actually even within the
    Justice Department.
        Chairman Nadler. That was my next question.
        Mr. Turley. Yeah. I think the courts have already pretty
    much weighed in on that. I don't think they are going to view
    the documents that were not disclosed in the report as waived
    because it was shown to Mueller and because he is not an
    independent counsel. He is a special counsel.
        Chairman Nadler. What about those shown to McGahn's
    attorney?
        Mr. Turley. That I deal with in my testimony, and I say
    that is actually the most difficult question of all of these
    privilege fights. The courts are not clear whether if you show
    documents to an attorney it waives executive privilege. And
    what I caution about in my testimony is I think that if you
    force this to a court, it is mostly likely that the court is
    going to find an accommodating rule because, as I explained in
    my testimony, I can't thread this issue without having sort of
    rippling effects, not just on the executive privilege, but on
    you in the legislative branch.
        For example, if members of Congress have an issue that
    could affect them personally and they speak to an attorney,
    does that waive congressional privileges? This is a very
    difficult question for a court to have to deal with, and I
    think it is likely the court will run home and say, you know
    what? As long as there are restrictions on confidentiality,
    like NDAs, or non-disclosure agreements, or agreements with the
    White House counsel staff, that I think a court is more likely
    to say there is no waiver.
        Chairman Nadler. Thank you. Professor Kinkopf, you
    testified that you thought we had the right to these materials,
    as I interpreted what you said, the redacted materials of the
    highest constitutional order.
        Mr. Kinkopf. That is correct.
        Chairman Nadler. And that would disagree with what
    Professor Turley said. Now, do you agree with Professor Turley
    that in terms of obtaining these documents and other documents,
    we would have much better odds in court if we were to label
    this an impeachment inquiry?
        Mr. Kinkopf. I don't think the label matters, right,
    because you have to decide whether or not to start an
    impeachment inquiry. And impeachment, particularly impeachment
    of the President, is a grave step. It is not one that should be
    taken recklessly. It would be irresponsible without first
    having information that the allegations of wrongdoing against
    the President----
        Chairman Nadler. All right. Whether we should do it or not
    is a different question. But my question is, would it put us in
    a stronger position in court in arguing for a revelation of
    various materials?
        Mr. Kinkopf. I think it is enough that you say you are
    trying to decide whether or not to pursue impeachment. I don't
    think you have to actually invoke impeachment, and I don't
    think that the House has to actually form an impeachment
    committee.
        Chairman Nadler. You are in complete disagreement with
    Professor Turley in everything. Mr. Rosenzweig, when
    Independent Counsel Ken Starr transmitted his report to the
    House of Representatives, he also included 18 boxes of
    underlying evidence. Can you describe why Judge Starr thought
    it was important to provide that underlying evidence to
    Congress?
        Mr. Rosenzweig. His view at the time, with which I agreed,
    was that that underlying information was essential to this body
    to perform the functions of its responsibility under Article I,
    namely, to determine what, if anything, should happen
    thereafter with respect to President Clinton. It was obviously
    a slightly different context in the sense that that was a
    direct referral for impeachment purposes as opposed to purely
    for oversight purposes. But the fundamental thought that lay
    behind this was that it should not be incumbent upon this body
    to redo all of the work that he had done, nor should this body
    be forced to rely on what he thought was a good summary.
        Chairman Nadler. So in other words, you are saying it
    should not be incumbent on us now to redo all the work that Mr.
    Mueller did----
        Mr. Rosenzweig. That would be my view as well. In
    parimeteria, it is exactly what we said with respect to
    President Clinton, yes.
        Chairman Nadler. Thank you. Finally, Professor Shaw, well,
    do you agree with previous testimony on the question of waiver;
    that is to say, whether the White House waived executive
    privilege when it gave information either to Mueller or to
    McGahn's attorney?
        Ms. Shaw. I think I agree with Professor Turley that it is
    actually a quite difficult question. Certainly all the public
    materials, any privilege has been waived as to those publicly
    released, the report itself.
        Chairman Nadler. By ``publicly released,'' you mean given
    to McGahn's attorney?
        Ms. Shaw. No, I mean, you know, the redacted version of the
    report. No, the transmission to both McGahn and to his counsel,
    you know, I think that McGahn sharing with the special counsel
    is arguably an intra-executive transmission. That does not
    necessarily waive privilege. That is all still within the
    executive branch. You know, I would want to know, the White
    House counsel in his letter to you of--sorry--May 7th--sorry--
    suggests that Mr. McGahn, there was a clear understanding that
    records remain subject to the control of the White House for
    all purposes. I would kind of want to know the circumstances in
    which that understanding was communicated. That seems to be
    sort of a relevant factual question.
        I think as to the sharing of the documents with Mr.
    McGahn's outside counsel, there would be a close legal
    question. You know, the D.C. Circuit decision from 1999 sort of
    takes a mixed view of this. There is a little bit of waiver
    when they are sharing with a third party, but not waiver in any
    blanket sense. So I think it is close. I would agree with
    Professor Turley.
        Chairman Nadler. Thank you very much. My time has expired.
    The gentleman, the Ranking Member, Mr. Collins.
        Mr. Collins. Thank you, Mr. Chairman. I want to go through
    several things, and I appreciate this. Again, we were up here
    before talking about this is back to law school, and we have
    law professors and 2-and-a-half opinions. So it is pretty
    interesting to see, and this is good. I mean, I like it.
        But I do have one just sort of a yes/no question, Mr.
    Rosenzweig. When you worked with the Ken Starr investigation,
    was it not under a different, it was actually under a statute,
    correct? The independent counsel statute.
        Mr. Rosenzweig. Ken Starr was authorized to investigate by
    the Independent Counsel Act.
        Mr. Collins. Exactly. And Mr. Mueller was not, correct?
        Mr. Rosenzweig. He was authorized by the special counsel
    regulations.
        Mr. Collins. Which are different, correct?
        Mr. Rosenzweig. Yes.
        Mr. Collins. Okay. And they also have different reasons on
    what they were to release and what they were not to release,
    correct? Yes.
        Mr. Rosenzweig. I am not sure I agree with that.
        Mr. Collins. Well, when actually----
        Mr. Rosenzweig. The special counsel regulations give
    Attorney General Barr plenary discretion to release whatever he
    feels is appropriate in the public interest. The special
    counsel regulations provide that Mr. Mueller's report is
    actually to Mr. Barr. So in my judgment at least, Attorney
    General Barr, in consultation with the White House, could
    release almost all of the report, save for those portions that
    are prohibited by lawful release.
        Mr. Collins. Or in the reverse, he could release nothing
    and say this is what the Mueller report came out with, correct?
        Mr. Rosenzweig. He could certain have limited himself to a
    much lesser release if he had chosen to do so.
        Mr. Collins. Thank you. One quick thing, and I actually had
    this handed out to you because I think what was said by several
    of you is the actual issue of congressional, and are we
    actually, and I understand the majority's desire to move this
    forward. I mean, I do not deny the political aspect of this.
    But when you do, and I think Professor Turley and several of
    you have talked about the role and the authority of Congress,
    which I do truly believe in, there is such a thing as moving
    too fast where you actually undercut your own authority.
        I have handed you the subpoena that was issued for General
    Barr. You have time to read it. You can talk about it. If you
    want to take a second. Show me in here anywhere where there is
    an exception for 6(e). There is not. I will help you out. There
    is not. So to say that we are asking for the something the
    Attorney General can do is not. And I understand the intent
    that was said from this dais, well, the intent was that we will
    go to court and we will work it out together, sort of the Ken
    Starr a-la-model, which was a little bit different. But there
    is nothing in this subpoena right here that a judge would look
    at and say, no, you asked for 6(e) information, which he cannot
    do. It is illegal for him to do.
        The constitutional crisis here would be to say, Attorney
    General, break the law because we want it. That is standing in
    the middle of the aisle and just jumping up and down and
    pitching a fit. This is what this subpoena is. Now, the
    question comes back, and, by the way, GSU, I am so glad--go
    Dogs. But Mark Becker and you all, the Panthers are great and
    have amazing growth and the law school is amazing down there.
    It is good to have you all here.
        But the disagreement we have looked at, as we go back
    through the issue, and especially where you said, and, Mr.
    Turley, I am going to ask this question, but I want to
    acknowledge, is that you all both had disagreements. When he
    said that opening an inquiry, an impeachment inquiry, which by
    the way has not been said. The only issues that have been said
    from this committee are where there is an assault on the rule
    of law, that is more of an enforcement mechanism, that we are
    looking into election security, that we are concerned about
    overreach of the Administration. We have never said, well, we
    are doing this specifically for impeachment.
        Mr. Turley, is it not true, though, the courts have ruled
    that if a judicial proceeding, would they consider an
    impeachment proceeding a judicial proceeding?
        Mr. Turley. That is true, the extent of some of the case
    law. This is where we differ. The Senate Select Committee v.
    Nixon in 1974 drew the distinction the chairman was referring
    to. In that case, Congress lost because it was proceeding under
    oversight authority. This body is actually playing the worst
    card in its hand. It has a very good card to play in terms of
    initiating an impeachment inquiry. But in that case, the court
    did draw the distinction that you asked my colleague about and
    actually said that it was determinative.
        I would simply encourage this: be aware of close calls.
    This is not horseshoes and grenades. This body needs to
    litigate when it can be certain it can take down the executive
    branch. You have those issues, but be aware of close calls
    because that is where you lose precedent.
        Mr. Collins. And just reclaiming my time here for the last
    few minutes because like I said, we will go over this. I
    appreciate it. You know, the discussion has been interesting to
    hear already in a sense, but is an interesting issue when you
    have close calls, when you have, you know, Professor Shaw, your
    discussion with Professor Turley just now. There are issues.
        My concern is overriding, and this is my bigger concern.
    And you are here, in all fairness, to start a foundation for
    what was lacking last week and lacking in previous hearings
    where we go straight to subpoenas, straight to contempt,
    straight because we are so fast to get to the end of the day.
    But the concern that I have here is just expressed there, and
    some of you have expressed this because we do agree in the
    sense. And, Mr. Rosenzweig, you said you have been here for
    Republicans. The reason you are here today is to prop up really
    a bad argument, and I appreciate you being here, and the others
    are here for that. And this is why we are here.
        But my concern is past the Chairman and Ranking Member.
    This body. Look at the paintings on the wall. There is history
    here. This is beyond the moment of right now, and one day the
    two of us will not be here. My friend from New York and myself
    will be back in Georgia and be back in New York, and there will
    be other people in this chair. But if we have actually degraded
    the role of this committee by rushing to court, by rushing to
    conclusions, then we have actually taken the authority that we
    say that we are applying, and we have undercut it. And we have
    made it harder for future Congresses and future Judiciary
    Committees to actually exercise their constitutional power.
    That is my concern with it.
        But it is good to hear you all today. I am glad we are
    having this discussion I guess as we go forward. And I
    appreciate the time, and I yield back.
        Chairman Nadler. The gentleman yields back. The gentleman
    from Georgia.
        Mr. Johnson of Georgia. Thank you, Mr. Chairman, and thank
    the witnesses for being here today. We are at a crucial
    juncture in our Nation's history, and it is important that
    experts like yourselves help us clarify areas of the law that
    the Administration and perhaps some of my friends on the other
    side of the aisle may be unclear about. We are in the early
    stages of a constitutional crisis. The flaunting of
    congressional subpoenas and the willful attempts to conceal
    information rightfully requested by the Congress shows an
    underlying disrespect for the co-equal branch of government
    that is the legislative branch. And it is imperative that
    Congress be allowed to continue its investigation into foreign
    interference in American elections.
        Special Counsel Mueller was appointed because of material
    concerns that the Russian government had inappropriately
    meddled in our presidential elections. After well over a year
    of careful fact gathering and meticulous research, he and his
    team produced a 440-page report. And what did Congress get
    initially? A 4-page summary that included conclusions that
    Mueller did not find obstruction. Attorney General Barr
    essentially told us to move on, nothing to see, but that is not
    what the Mueller report said.
        We later learned that Mueller himself was concerned about
    misunderstandings about the report's contents that were
    perpetrated by the Attorney General. How can we trust when the
    Attorney General of the United States is prioritizing helping
    the President save face over the true facts of this matter? So
    we asked for the full report, and in response to our very valid
    request, the President claimed blanket executive privilege
    after the Attorney General stonewalled attempts to reach a
    reasonable accommodation. He just claimed a blanket executive
    privilege on the entire report and all of the underlying
    documents.
        Professor Shaw, what, if any, legitimate interest does the
    President have in protecting the confidentiality of White House
    communications or documents that may contain evidence of
    misconduct?
        Ms. Shaw. So where there is evidence of misconduct,
    Congressman, any Article II-based interest in protecting
    confidentiality is quite weakened. I would say that as a
    general matter, there may well be legitimate instances in which
    specific discreet documents in the possession of the special
    counsel would well be candidates for a viable privilege
    assertion. Some of the discussions between the President and
    advisers, even those that touch, you know, matters of the
    investigation, you know, so long as they are not tainted by
    misconduct. Presumably they were discussing how to respond to
    inquiries from the Special Counsel's Office, and some of those
    discussions might well qualify as the kinds of considered
    deliberation between the President and his advisers that
    establish----
        Mr. Johnson of Georgia. It is not a blanket----
        Ms. Shaw. Sorry. So all that, I think, would potentially
    qualify, but we don't know yet because they haven't given any
    specifics. As to those documents that might well be tainted by
    misconduct, I think any executive privilege interest would be
    quite weak.
        Mr. Johnson of Georgia. Professor Turley, you would agree
    with that, would you not?
        Mr. Turley. I'm not too sure in terms of where it's on the
    spectrum, in terms of the executive privilege interests raised
    by this. There's no question that when this body is
    investigating crimes, for example, the assertion of privilege
    is at its weakest. But just as the other----
        Mr. Johnson of Georgia. And let me interrupt you also.
        Mr. Turley. Yes.
        Mr. Johnson of Georgia. If we are using our oversight power
    to investigate crime, that is within our legislative
    prerogative, is it not?
        Mr. Turley. It is, but just----
        Mr. Johnson of Georgia. We don't have to limit ourselves to
    an impeachment inquiry in order to ferret out criminal
    misconduct?
        Mr. Turley. Well, you don't have to, but the problem you're
    going to have in this--and well, a prior witness noted that the
    finding of no criminal conduct worked against the White House.
    This is where it works against the committee.
        The record, as it stands----
        Mr. Johnson of Georgia. Well, we know that that was
    unsupported, though. We know that that assertion by Attorney
    General Barr was unsupported by the Mueller report. Wouldn't
    you agree with that, Professor Rosenzweig?
        Mr. Rosenzweig. Well, yes, Congressman. I joined a letter
    signed by I think it's almost 1,000 former prosecutors now,
    suggesting that in our professional judgment, the Attorney
    General's determination was not supported by the evidence.
        Mr. Johnson of Georgia. And with that, Mr. Chairman, I will
    yield back.
        Chairman Nadler. I thank the gentleman.
        The gentleman from Ohio, Mr. Chabot.
        Mr. Chabot. Thank you, Mr. Chairman.
        You know, this is the Judiciary Committee, a committee that
    was once chaired by Daniel Webster, and we could be, should be,
    using our time in important, productive ways. We could be
    working, for example, on improving control at our borders, and
    it is a real problem. Some had tried to say, oh, this is just a
    made-up issue, a made-up crisis. More and more, they are coming
    around and realizing that it is not at all a made-up crisis.
        At the very least, we ought to be able in a bipartisan
    manner to do something about the very flawed asylum system
    right now that we have. We have people coming up principally
    from Honduras and Guatemala and El Salvador, some on caravans.
    They are coming to our borders. They are told by the drug
    cartels, who they have paid thousands of dollars to, the magic
    words to say that they fear they are sent back, and so they
    don't get sent back.
        They come into the country. They are given a court date.
    They are put on a bus. They disappear somewhere in the
    continental United States, into communities from members on
    this committee and all over the place. Almost never come back
    for their court date, and essentially just disappear into the
    population.
        It is not good for the country. The American taxpayers are
    paying for this, and this committee ought to be working on
    that. We have jurisdiction over that.
        We could be working on the record number of opioid deaths
    in this country, 70,000 over the last year alone. When Ronald
    Reagan was President, he and the First Lady started their
    ``Just Say No'' campaign to try to do something about it
    because we had 10,000 deaths due to overdoses, 10,000. Now it
    is 70,000, 7 times what it was.
        And in Congress' defense, we have done some things. We
    passed CARA a few Congresses back, and we passed the SUPPORT
    Act in the last Congress. And that does make progress, but
    there are so many other things we could be doing. We have--we
    have jurisdiction, oversight over the DEA, the Drug Enforcement
    Administration, in this committee, over the FBI, law
    enforcement. Yet we are having hearings on this.
        We could be talking about reforming our prison system. Now,
    yes, we did do some second-chance legislation. That is a good
    first step, and we did it in a bipartisan manner, which we
    ought to do a lot more in this committee than we do. But these
    folks that are behind bars right now are going to be out some
    day, most of them, and if they have a skill, if we can actually
    do something with them so they have a skill, there is much less
    chance when they get out that they are going to be breaking
    into your house or hijacking your car or selling drugs to your
    kids.
        We ought to be working on that in this committee, but we
    are not. We are doing this.
        Anti-Semitism is a growing problem. We have talked about
    it. But we have got literally Members of our own institution
    who can't get out of their own way. They have demonstrated
    their own anti-Semitism. So what do we do? We pass this
    legislation that says all hate is wrong, you know, but we
    didn't focus on what the real problem was because it was too
    embarrassing.
        We have got over $20 trillion debt hanging over our heads.
    Now we are not the Budget Committee, but we do have
    jurisdiction over constitutional amendments. I was for 6 years
    the chairman of the Constitution Subcommittee in Judiciary, and
    my ranking member for those 6 years was none other than the
    current chairman of this committee, Mr. Nadler. And we worked
    together on some issues, and we need to balance that budget.
        Twenty trillion dollars, it is like every American pays a
    mortgage on a second home, and yet they are getting nothing out
    of that home. That is what what the balance--lack of a balanced
    budget amendment does. We have introduced it again. We have got
    36 Republican cosponsors, 0 Democrat cosponsors.
        So we could be doing a lot more on these and many other
    issues, but Democrats are focused on something that has
    essentially already been dealt with in the Mueller report that
    found that this President had not colluded with the Russians,
    and Attorney General Barr indicated no obstruction. But our
    Democratic colleagues just can't leave it alone. So today, we
    are wasting this committee's valuable time on executive
    privilege and blah, blah, blah.
        Professor Turley, let me ask you this. You had an article
    in The Hill recently, and in that article, you said the
    Democrats wanted to manufacture a conflict, and they have
    succeeded in doing so. What did you mean by that?
        Mr. Turley. Well, that was a column on the contempt action
    against Attorney General Bill Barr. And for full disclosure, I
    testified at his Senate confirmation. I've known him for years.
    I believe that the contempt action of this committee was
    unfounded, but I also believe that if it goes to a Federal
    court, this is another area where I think that this committee
    could lose.
        The issue of Rule 6(e) was addressed during the
    confirmation hearing, when Senators asked me why won't he
    commit to releasing the full and unredacted report? And I said
    because that would be a crime. You're asking him to commit to
    an act to secure confirmation that would violate the Federal
    law.
        If he had said that, despite our friendship, I would have
    opposed his confirmation because that would be unethical. So
    there's no question that he cannot release that Rule 6(e)
    information.
        I was counsel on the Rocky Flats case. That's the largest
    Rule 6(e) case I know of. We spent years trying to get that
    special counsel report released. So I'm not a fan of Rule 6(e),
    but we lost. And if you take a look at the McKeever case, which
    was just handed down by the D.C. Circuit, you are heading into
    a world of hurt. If you go to the D.C. Circuit and argue that
    you could order Barr, that Barr could unilaterally release Rule
    6(e) information, they just adopted a narrow view of Rule 6(e).
        And by the way, their view--and I agree with the dissent in
    that case--raises serious questions about how they're
    interpreting Haldeman v. Sirica. So you could open up that
    fight if you bring that case back to the D.C. Circuit. I'd
    encourage you not to because I happen to like Haldeman v.
    Sirica.
        But right now, the D.C. Circuit is not a hospitable place.
    They've adopted the narrower approach of a couple of circuits
    like the Eighth Circuit in interpreting those exceptions under
    Rule 6(e).
        Mr. Chabot. Thank you. My time has expired, Mr. Chairman.
        Chairman Nadler. The gentleman from Florida, Mr. Deutch?
        Mr. Deutch. Thank you, Mr. Chairman.
        Mr. Chairman, on April 18th, an hour before releasing the
    Mueller report, the Attorney General held an unusual,
    misleading press conference to spin Mueller's findings in the
    President's favor, and he said, and I quote, ``The White House
    provided unfettered access to campaign and White House
    documents, directing senior aides to testify freely, and
    asserting no privilege claims. And at the same, the President
    took no act that, in fact, deprived the special counsel of the
    documents and witnesses necessary to complete his
    investigation. Accordingly, no material has been redacted based
    on executive privilege.''
        Professor Shaw, the President had multiple opportunities to
    assert executive privilege over materials collected during the
    investigation, but he did not. Is that correct?
        Ms. Shaw. That's correct.
        Mr. Deutch. And the Attorney General sought to make a
    point--he sought to point out the decision to waive privilege,
    the decision to waive privilege to make it appear that the
    President was being fully transparent with the American people.
    Is that correct?
        Ms. Shaw. I think that's a fair characterization of the
    press conference, yes.
        Mr. Deutch. And the Attorney General said nothing in the
    Mueller report was redacted for executive privilege?
        Ms. Shaw. That's correct.
        Mr. Deutch. Professor Kinkopf, in the course of the
    investigation, what third parties would have access to
    information and documents collected?
        Mr. Kinkopf. I'm sorry. Could you----
        Mr. Deutch. During the course of the investigation, which
    third parties would have access to the information and
    documents collected? Like investigators, for example, or
    private attorneys or staffers, would they have access?
        Mr. Kinkopf. Would they have access to the special
    counsel's----
        Mr. Deutch. To the information--to the information
    collected during the investigation?
        Mr. Kinkopf. No. The internal staff would.
        Mr. Deutch. Right. Right.
        Mr. Kinkopf. Yes, yes.
        Mr. Deutch. Exactly. Are those individuals the sort of
    close advisers to the President that executive privilege is
    meant to protect?
        Mr. Kinkopf. No.
        Mr. Deutch. Right. So given that the White House made no
    executive privilege claims at all, at all, during the special
    counsel's investigation, including witness testimony or over
    the publication of the report itself, should that information
    still be considered privileged?
        Mr. Kinkopf. Certainly not presidential communications.
        Mr. Deutch. Right. So to be clear, the President waived--
    Professor Shaw, I will come back to you. The President waived
    executive privilege over these materials when he gave them to
    third parties and allowed them to be published publicly.
    Correct?
        Ms. Shaw. Congressman, the counterargument that I would
    offer is just that because these were all executive branch
    officials to whom these documents were shared without any
    interposition of an objection on the basis of executive
    privilege, that does not necessarily mean the President
    wouldn't later assert executive privilege as to another branch.
        Mr. Deutch. When the document was released, the Attorney
    General went out of his way to talk about transparency in the
    process and made no mention of executive privilege.
        Ms. Shaw. I agree that that--that that seems misleading in
    retrospect.
        Mr. Deutch. Right. So, in fact, it seems to me that the
    D.C. Circuit decided this exact issue when it held that the
    White House ``waives its claims of privilege in regard to
    specific documents that it voluntarily reveals to third parties
    outside the White House.'' That is the Espy case.
        So the Attorney General has also claimed that he is
    prohibited by law from disclosing the report's underlying
    evidence, including investigative files. Mr. Rosenzweig, based
    on your experience, is the Department of Justice prohibited
    from giving Congress law enforcement files?
        Mr. Rosenzweig. It's not prohibited by law, except to the
    limited extent of matters that are actually occurring before
    the grand jury, which is actually a very narrow case. My own
    experience----
        Mr. Deutch. How was your own experience?
        Mr. Rosenzweig. Well, my own experience 20 \1\ years ago
    was an investigation conducted by former chairman John Dingell
    into a specific case in which the Department turned over
    essentially the entire investigative file, save for the grand
    jury materials, and I personally sat for several hours of
    depositions on the matter.
    ---------------------------------------------------------------------------
        \1\ Mr. Rosenzweig requested this be changed to 27 years.
    ---------------------------------------------------------------------------
        Mr. Deutch. And in fact, Professor Shaw and Professor
    Kinkopf, in your time serving as attorneys in the executive
    branch, is it standard practice to refuse to disclose law
    enforcement information to Congress? Is that standard practice?
        Mr. Kinkopf. Yes.
        Mr. Deutch. Professor Shaw, standard practice to refuse to
    disclose law enforcement information to Congress?
        Ms. Shaw. I would say----
        Mr. Deutch. As a whole.
        Ms. Shaw. In a blanket way, I would say no. I think as to
    specific materials, it is sometimes, of course----
        Mr. Kinkopf. I would agree with that, in a blanket way, no.
    But as to specific investigations----
        Mr. Deutch. Thank you, Professor Kinkopf. Right. Thanks.
        So there is not a basis to withhold this information across
    the board. It is just not--that is just not the case. But the
    Attorney General and President are still claiming a blanket
    privilege over all of the Mueller report and all of the
    underlying materials, material that has been shared by the
    special counsel, shared with investigators on his team, shared
    with fact witnesses, former White House employees, shared with
    private attorneys. Shared, in fact, with the ranking member of
    this committee.
        So, additionally, I reviewed White House Counsel
    Cipollone's letter from last night. It leaves me with the same
    impression that the Assistant Attorney General did in his
    letter last week. The blanket protective privilege claim wasn't
    grounded in the law. It was payback because the White House and
    DOJ didn't want to comply with the subpoena, didn't want to
    negotiate compliance, and didn't want the Attorney General to
    be held in contempt for refusing to comply.
        It is important to note what is going on here, Mr.
    Chairman. The Attorney General came out in front of the
    American people and claimed transparency that the President
    didn't hold any documents back. He didn't assert a privilege.
    The President waived it. He said he didn't need it.
        The Attorney General boasted about it, and then he tried to
    claw it all back. Not because the law says he can't, but in
    retaliation against this committee because we demanded
    compliance with our subpoena and moved forward with contempt.
    It is too late for a privilege claim now.
        The President's decision to use it as a cover-up has thrown
    this system of checks and balances out the window. Yes, the
    President has a limited qualified privilege to enable him to do
    his job. It is not a blanket cloak of secrecy to cover up his
    own wrongdoing, to make it impossible for Congress to protect
    the American--Americans' healthcare, ensure we aren't
    committing human rights abuses at our border, protect our
    national security from vulnerabilities when security clearances
    are inappropriately given to family members.
        There is no cover-up privilege in our law. Mr. Chairman,
    the Constitution law and precedent say that Congress has a
    right to this information. We will go to court if we have to
    get it. The President cannot prevent Congress from
    investigating obstruction of justice by obstructing this
    Congress.
        And I yield back the balance of my time.
        Chairman Nadler. I thank the gentleman for yielding back.
        The gentleman from Texas, Mr. Gohmert.
        Mr. Gohmert. Thank you, and I appreciate my 6\1/2\ minutes
    time I will have.
        First of all, I know it is difficult these days because
    schools teach to the federally mandated tests. So they don't
    include civics. But anyway, and I know surveys have shown that
    more college students and recent college graduates can identify
    the Three Stooges more so than they can identify the three
    branches of government, but let me help in that regard.
        When the President of the United States tells the Attorney
    General that he is going to waive executive privilege with
    regard to things that he has used his White House counsel for
    and met with him and shared things with, that does not waive
    the executive privilege outside the executive branch. Because,
    see, we are a legislative branch, one of those three.
        And so the executive privilege can be contained within the
    executive branch without waiving it to another branch. So I
    know it is an acute difference, but it is worth noting,
    especially if you are going to go before a court that does know
    the difference between the three branches.
        And by the way, just for what it is worth, we have had a
    couple of weeks of hearings on what was called the Equality
    Act. We are supposed to--the majority is going to pass that out
    apparently this week. First bill in 25 years where you cannot
    have a religious freedom defense.
        So if you, for example, advise a synagogue, you may want to
    tell them that if they try to hire--if they refuse to hire a
    biological woman who says she is a man and wants to be their
    rabbi, they are looking at a lawsuit, and they cannot claim
    religious freedom in doing so. There is a lot of changes coming
    if that bill becomes law. So just a heads-up on that.
        Now we are living in a time right now that history is going
    to document. I don't know how much more this little experiment
    in self-government is going to go, but history will document
    what is now coming out. You had a former member of the Trump
    campaign who was lured overseas to meet with an FBI or DoD--
    apparently gets money from different sources--person who
    invited him. He is set up to meet another foreign official who
    tells him the Russians have Hillary Clinton's emails, and so
    that when he shares that with another set-up, then that is used
    to go get a FISA warrant to spy on a campaign.
        We are in an historic area. And what we are seeing in this
    committee as--and I know this was with regard to a different
    thing, but Professor Turley, we are flailing--this committee is
    flailing after the gates opened and the evidence has started
    coming out.
        Now I have seen the chairman react when he feels like
    things are going unfairly, and he forgets some of the rules and
    misapplies some of the rules. And I get the impression if this
    chairman had been set up the way the Trump administration and
    the Trump campaign were by an intel community abuse, a FISA
    court abuse, a DOJ FBI abuse, then I have a feeling that this
    chairman would be reacting far more in the flailing area than
    the Trump administration has been acting.
        They have been done terribly wrong, and I am hopeful we
    will get to the bottom of this. Because if we don't, then this
    will continue. We should have gotten a clue when the FISA court
    order, the application affidavit were released through
    WikiLeaks, letting us know they are using applications with no
    regard for the Fourth Amendment, no particularity as to what is
    to be searched or the things to be provided.
        They just wanted all the information Verizon had on
    everybody, and the judge said, oh, okay, and he signs off.
    Here, you can get everything they have got. That should have
    been the clue. We have got to start having hearings on the FISA
    courts. And I would love to get this same group back and have a
    good discussion on the abuses of the FISA court.
        I am about to come to the conclusion we may need to just
    get done, get rid of them altogether. They have become so
    abusive, and the fact that no FISA court has reacted violently
    to having a fraud committed on the court raises the issue that
    perhaps if we had a FISA judge or more who were part of this
    scam to take down a duly elected President.
        So this is a very important time. Everybody's questions
    will be part of the record, and you need to know that someday,
    after all of this has continued to come out and we get all of
    the truth, what side of history are you on? Were you continuing
    to flail at a candidate you didn't want elected, or are you
    going to help restore a Department of Justice and a court
    system that used to be the envy of the world? Because we are
    sure not right now.
        I yield back.
        Chairman Nadler. I thank the gentleman for yielding. I
    would observe that this Chairman could not be so set up because
    this Chairman never ran a political campaign that had 180
    contacts with a foreign power.
        The gentlelady from Texas is recognized.
        Ms. Jackson Lee. Mr. Chairman, thank you so very much.
        And as a member of the Homeland Security Committee since
    the heinous act of 9/11, I can assure you that the FISA court,
    although there needs to be firewalls, have over the years
    protected this Nation from heinous and horrific terrorist acts.
    It is a fixture that is important, and it has done work that is
    valuable to saving lives in this country.
        Let me, Mr.--Professor Kinkopf--and let me also say to each
    and every one of you, thank you so very much. As a member of
    this committee, hearing your constitutional perspectives is
    much appreciated.
        Let me indicate that recognizing the executive privilege as
    a fixture now in the law, not a constitutional. It is not so
    stated in Article II, but would you say, Mr. Kinkopf, that the
    recognizing executive privilege, it cannot be used, however, to
    interfere with the constitutional prerogatives of the United
    States Congress?
        Mr. Kinkopf. I think that's right. It has to be balanced
    with Congress' authority.
        Ms. Jackson Lee. Thank you.
        Professor Turley, yes or no?
        Mr. Turley. I'm afraid it can. Because a point of privilege
    is that it will sometimes trump committee requests, and so
    courts do balance, but at times that balance favors the White
    House.
        Ms. Jackson Lee. But it is not an absolute bar?
        Mr. Turley. Oh, absolutely. Yes, that's true. Yes.
        Ms. Jackson Lee. And there are potentials where it does not
    act in place? There are potentials? Yes?
        Mr. Turley. Yes. And in fact, this committee and the
    Congress overall prevails in many of these fights.
        Ms. Jackson Lee. I thank you. I need to proceed with my
    questions. Thank you so very much.
        Let me read this, please. ``A final area of conflict
    concerns whether certain key witnesses can be prevented from
    appearing before Congress. The President stated publicly that
    he opposes the appearance of witnesses like Robert Mueller and
    Don McGahn. For his part, Attorney General Barr has stated he
    believed that Mueller should testify.
        ``But regardless of the position taken on these witnesses,
    Congress is again in a strong position to demand their
    appearance. It would prevail ultimately in any litigation, and
    this is a fight that would be excellent ground for litigation
    on the part of the legislative branch.''
        Based on these words, Professor Kinkopf, do you agree that
    nothing should prevent Mr. McGahn from appearing before this
    committee or that the President should not be able to prevent
    that?
        Mr. Kinkopf. Yes, I agree.
        Ms. Jackson Lee. As you well know, Professor Turley, these
    are your words in your testimony. Do you agree that nothing
    should prevent Mr. McGahn from appearing before this committee?
        Mr. Turley. I'd have to agree with that excellent testimony
    that you read, yes. [Laughter.]
        Ms. Jackson Lee. It is good to have scholars in the house.
        Let me also share with you words that were said in July 16,
    2014, and I will ask each of you yes or no. This is testimony
    given, and Professor Turley and I would consider each other at
    least Judiciary Committee friends. We have seen each other in
    this room for a very long time.
        ``The fact that a majority in Congress,'' testimony before
    the Rules Committee, ``can remain silent or acquiesce to
    unconstitutional actions is regrettably nothing new to our
    country. However, such failure of principle does not change the
    character of an unconstitutional act.''
        Professor Shaw.
        Ms. Shaw. I would agree with that statement, yes.
        Ms. Jackson Lee. Professor--forgive me.
        Mr. Rosenzweig. It's okay. Rosenzweig.
        Ms. Jackson Lee. I will get it. Rosenzweig. Just the
    glasses are not strong enough.
        Mr. Rosenzweig. I agree with that testimony.
        Ms. Jackson Lee. Professor Turley.
        Mr. Turley. Yes, I think that's true.
        Ms. Jackson Lee. Professor Kinkopf.
        Mr. Kinkopf. Yes.
        Ms. Jackson Lee. There has been no legislation that has
    dealt with the executive privilege. We have taken it in a
    sacred manner that it works collegially with Article I and
    Article II. In light of our present atmosphere, not that we
    should be raging against this document, but Professor Shaw,
    what legitimate interest does the President have in protecting
    the confidentiality of White House communications or documents
    that may contain evidence of misconduct?
        Now this is being used. Would you answer both that and the
    idea of some sort of congressional framework given to this
    use--seemingly unfettered power of executive privilege?
        Ms. Shaw. Well, so the general underlying sort of theory is
    that the President has a need for and entitlement to
    unvarnished advice from advisers and that it would chill the
    sort of free flow of that advice to too lightly tread into sort
    of those confidential communications.
        But as I said, when there is some threshold showing that
    the materials sought might reveal misconduct, any legitimate
    claim to secrecy I think is quite eroded if not, you know,
    vitiated.
        In terms of the framework, you know, I think it's a
    difficult framework to encapsulate in a couple of sentences. I
    think there are very strong, legitimate, constitutionally
    grounded interests on both sides of the balance, and so it's a
    really fact-specific kind of an inquiry and a balance, which
    is, I think, what is so problematic about the kind of blanket
    assertion that we see here. It's impossible to evaluate the
    strength of the White House's legitimate need and balance it
    against the strength of Congress' legitimate need.
        In the abstract, it needs to be sort of a document by
    document and event by event sort of analysis. But at the end of
    the day, I don't think a blanket assertion of the sort we have
    seen here can possibly withstand scrutiny.
        Ms. Jackson Lee. Which is what is acting and going on at
    this point.
        Quickly, Professor Kinkopf, could you just comment on that?
        Mr. Kinkopf. Sure. I completely agree with Professor Shaw.
    And so, normally, what would happen is the executive branch
    would produce a privilege log that lists the documents being
    withheld and lists specifically as to each document the
    rationale for its withholding. That allows then the process of
    negotiation and accommodation. It allows a court to assess if
    there's an impasse in that negotiation process.
        And the blanket assertions of privilege that we've seen
    from the Trump administration just do not facilitate that
    process.
        Ms. Jackson Lee. I thank you very much. I think that has
    been enlightening for all of us, and I may be judicious in
    looking at legislation dealing with this question.
        Thank you. Thank you very much.
        Chairman Nadler. I think all members of the Judiciary
    Committee should be judicious. [Laughter.]
        Chairman Nadler. Thank you. I now recognize the gentleman
    from Colorado, Mr. Buck.
        Mr. Buck. Thank you, Mr. Chairman.
        We are here today because my colleagues on the other side
    of the aisle are throwing a tantrum over information they want,
    but know they cannot have. Not because Donald Trump says so,
    not because Attorney General William Barr says so, but because
    the law says so.
        It is important to understand that there is no
    constitutional crisis, as the chairman asserted last week. My
    friends on the other side of the dais can only blame themselves
    for the current stalemate with the administration--the
    unreasonable demands, lack of accommodation, and bad faith
    subpoenas.
        I want to highlight three reasons we are faced with the
    current impasse. First, the majority rejected an effort to work
    with Republicans to tailor a subpoena most likely to lead to
    the production of documents that Democrats say they want. On
    April 18th, the chairman issued a subpoena for the full,
    unredacted Mueller report. This subpoena presented the Attorney
    General with two terrible and unfair choices, violate Federal
    law and disclose grand jury information to comply with the
    subpoena or uphold the law and only partially comply with the
    subpoena.
        At the subpoena markup, I offered an amendment to carve out
    grand jury materials from the chairman's subpoena. This would
    give the Attorney General a subpoena he could legally comply
    with and would have resulted in the production of documents. So
    how did Democrats respond to that common sense approach? The
    chairman spoke against my amendment. Democrats voted in lock
    step with their chairman. And my amendment was defeated on a
    party-line vote.
        What is ironic here is the Democrats' remarkable flipflop
    on this issue. They voted to protect grand jury materials on
    March 14th, when they voted for the chairman's resolution on
    the floor, but then voted against the same protection in
    committee.
        Attorney General Barr predictably could not comply with the
    issued subpoena. That was not his choice. It is the law. The
    blame for this lies with the majority.
        The second reason we have an impasse is because of the
    chairman's unreasonable demands in terms of timing. It took
    Special Counsel Mueller and his team 22 months to conduct their
    investigation. That is 675 days. He had the assistance of 19
    prosecutors and 40 FBI agents. His team issued 2,800 subpoenas.
    They executed 500 search warrants. They conducted 500 witness
    interviews.
        They received court orders for 50 pen registers, had
    contact with 13 foreign governments, conducted 2 predawn SWAT
    raids, spent $35 million, and reportedly produced over 1.4
    million pages of documents. How much time did the chairman give
    the Attorney General to comply with the subpoena, to review
    over 1.4 million pages of documents? Thirteen days. Thirteen
    days. That is it.
        If Democrats were acting in good faith, you would have
    asked only for what you knew the Attorney General could legally
    provide, and you would have given the Attorney General
    sufficient time to process the request. Before the oversight
    counsel noticed a markup to hold Eric Holder in contempt of
    Congress, Mr. Holder was given 174 business days to comply with
    a subpoena. Congress even gave him a second chance by issuing
    another subpoena. How many business days did Chairman Nadler
    wait before noticing a markup to hold Attorney General Barr in
    contempt? Three business days.
        When the majority uses unreasonable timeframes in a
    subpoena and then moves so quickly toward contempt, it shows
    the motive. It is not to obtain information, but rather to pick
    a fight.
        Finally, my friends are to blame for the current impasse
    because the chairman and the majority are playing fast and
    loose with the facts and misrepresenting precedent. Professor
    Turley, the Judiciary Committee issued a subpoena to Attorney
    General Barr. Is that correct?
        Mr. Turley. Yes.
        Mr. Buck. And when considering the subpoena, does the
    Attorney General have to comply with the Federal Rules of
    Criminal Procedure 6(e) and how to handle grand jury material?
        Mr. Turley. Yes.
        Mr. Buck. If the Attorney General released grand jury
    material to this committee without a court order allowing him
    to do so, who would be liable for that action?
        Mr. Turley. Well, he would be in violation of Federal law.
    Also, some of this material beyond Rule 6(e) dealing with
    ongoing cases may involve prosecutions like that of Roger
    Stone. Some of that material may be under court order not to be
    released because they're ongoing prosecution. So, once again,
    to release that information, he has to go to a different judge
    to ask if the information can be released.
        Now all of that states the obvious, and that is he's
    between the horns of a dilemma here if the choice is to comply
    with Congress and violate standing court orders or Rule 6(e).
    And I think that's what caused this--this obvious conflict
    between two branches.
        Mr. Buck. And I heard earlier one of my colleagues on the
    other side of the aisle mentioned the President waiving
    executive privilege by saying that he wants to be transparent.
    Is that a waiver of executive privilege?
        Mr. Turley. No, the waiver--the Mueller--public Mueller
    report itself is a giant waiver----
        Mr. Buck. No, I am just saying if he holds a press
    conference and says ``I want to be transparent,'' has he waived
    executive privilege?
        Mr. Turley. No, it's not. But I also don't believe that the
    administration is claiming that the public report itself is
    subject to executive privilege. What they're claiming is that
    the subpoenaed material, the stuff that was not published or
    released, is subject to this preventive executive privilege
    assertion.
        Mr. Buck. Have you ever reviewed 1.4 million documents?
        Mr. Turley. Well, my tenure piece was pretty long, but not
    quite that long. Yeah.
        Mr. Buck. Okay. All right. Thank you.
        I yield back.
        Chairman Nadler. I thank the gentleman for yielding.
        I now recognize the gentlelady from California, Ms. Bass.
        Ms. Bass. Thank you, Mr. Chair.
        This is a question to the entire panel. The President
    recently declared that he is fighting all subpoenas issued by
    Congress, and I wanted to know in all of your different
    government experiences, have you ever heard a President say or
    do something like that?
        Ms. Shaw. If I should start, Congresswoman? No, I have not.
    I will say that I do think that background fact is relevant to
    this committee's task, but equally relevant, if not more
    relevant, I think, is the conduct of the executive branch vis-
    a-vis this committee's request. And that conduct does seem to
    have been quite consistent with that sort of baseline decision
    to essentially resist completely cooperation with this
    committee's oversight undertakings.
        Ms. Bass. Thank you.
        Mr. Rosenzweig. I would agree it is a unique--a unique
    circumstance. Kerry Kircher, who was the general counsel of the
    House under Speaker Boehner and Speaker Ryan, and before that
    deputy general counsel in both Republican and Democratic
    administrations, said nobody likes--in the executive branch
    likes congressional oversight. But heretofore, everybody
    recognized it had its place. You mostly argued about degrees.
        Now we're not arguing about degrees anymore. We're arguing
    all or nothing, and that's a significant escalation. This is a
    unique circumstance.
        Ms. Bass. Thank you.
        Mr. Turley. I would have a little more nuanced view on this
    because this is not the first time a White House has defied
    Congress. During the Obama administration, during the Clinton
    administration, there was defiance of this body. In my view,
    they were wrong in their position----
        Ms. Bass. Well, the question is all subpoenas.
        Mr. Turley. No, no. I've already been critical that I think
    that that--the assertion is wrong-headed. It cannot be
    sustained in its current force. What they're relying on is an
    opinion by Janet Reno that made a similar type of preventive
    type of assertion. That's never been tested in court.
        Ms. Bass. Thank you.
        Mr. Kinkopf. That preventive assertion was with respect to
    a specific subpoena. Never before has there been a blanket
    assertion that an administration will stonewall all subpoenas
    and all requests for documents. And when I think of a word to
    describe that, the only one that comes to my mind is
    contemptuous.
        Ms. Bass. Can executive privilege be invoked because the
    President believes Congress has a political agenda? So have you
    ever seen executive privilege invoked because of that opinion?
        Mr. Kinkopf. Me?
        Ms. Bass. Yes.
        Mr. Kinkopf. So, no. If Congress' only motive is a
    political motive, that's not a legitimate legislative interest.
    But the fact that Congress might have political motives in
    addition to legislative motives is not only--not only doesn't
    vitiate, it's not surprising. It is the premise of the
    Constitution that both Congress and the President will have
    political motives when they act.
        So that motive alone doesn't tell us anything. The only
    question is do you have a legitimate interest as well? And in
    this instance, you do.
        Ms. Bass. And Mr. Rosenzweig, I would ask you the same
    question as well. Can executive privilege and have you seen it
    in your experience be invoked because of a President believing
    that Congress has a political agenda?
        Mr. Rosenzweig. No. That--that would be most unusual. As
    Mr. Kinkopf said, Congress always has some political motive.
    That, after all, is what you're here for. But here, the
    committee clearly has legitimate interests both in, as the
    Chairman said, in examination of Russia's role in the 2016
    election, what to do about it in the future, the President's
    interactions with the Department of Justice. All of those are
    perfectly legitimate legislative matters.
        The fact that they--in addition, this occurs in a political
    environment is simply the necessary consequence of the fact
    that government is run by politicians.
        Ms. Bass. So as we said, ordinarily, Congress tries to
    avoid resorting to subpoenas in the first place, but we have
    seen a troubling pattern with this administration, where our
    requests for information are just ignored altogether.
        For example, the administration has repeatedly refused to
    respond to our document requests on topics like its refusal to
    defend the Affordable Care Act in court, its failure to enforce
    the Voting Rights Act, or its cruel policy of separating
    children from their parents at the border.
        Professor Shaw, would that have been normal behavior in the
    White House counsel's office, and can you recall any other
    example similar to that?
        Ms. Shaw. I would say absolutely not. I think it is
    certainly customary for White Houses to attempt to narrow
    requests, to sometimes find themselves unhappy with requests,
    but to just ignore repeated requests from congressional
    committees is something that I don't believe there is any
    precedent for, no.
        Ms. Bass. Well, I think my colleagues on the other side of
    the aisle suggested that maybe the administration didn't have
    enough time to respond, that there were a lot of documents. And
    so how long generally would be reasonable to respond?
        Ms. Shaw. So I agree that this committee has moved quickly
    beyond the initial sort of request stage to subpoena, to then
    the contempt vote. But I think--but that was and is, to a
    degree, justified by the total lack of response from the
    administration.
        So I think that some fairly dramatic step on the part of
    the committee was appropriate to counter what I view as a very
    dramatic step of complete noncompliance. Responding to try to
    narrow requests is absolutely customary, but a failure totally
    to respond and to produce any sorts of documents, that, I
    think, is a quite extraordinary step and I think largely does
    justify an escalation on the part of the committee.
        Ms. Bass. Mr. Rosenzweig? Oh, is my time up?
        Go ahead. Could you----
        Chairman Nadler. The gentlelady's time has expired. The
    witness may answer the question.
        Mr. Rosenzweig. I would agree with the professor, and I
    would also add that, of course, in cases of large volume, this
    committee and criminal investigations as well often receive
    documents on a rolling basis in which you begin your production
    and you explain that there are a lot. It will take us a few
    weeks to do it or a few months. And that sort of accommodation
    would also be very reasonable.
        My understanding, it, too, has not been put on the table by
    the Department.
        Chairman Nadler. The gentlelady's time has expired.
        The gentleman from Arizona, Mr. Biggs.
        Mr. Biggs. Thank you, Mr. Chairman.
        Thank you to all the witnesses for being here today.
        Executive privilege is a critical protection for the
    executive branch in our separation of powers scheme. And if
    presidential advisers know that their candid advice is subject
    to subpoena by political opponents, the effect will be that
    advisers are less willing to give candid advice, as Professor
    Shaw has previously testified today.
        However, invoking privilege preventing access to documents
    should be done sparingly and err on the side of transparency.
    But nonetheless, congressional overreach in the form of abusing
    the oversight process and using the legal process for political
    purposes is also a genuine and legitimate concern, and that is
    exactly what this chairman has been doing.
        I am concerned with the effect of the chairman's actions on
    this institution. As I iterated last week, there are so many
    other things that could have been brought before this committee
    rather than a contempt hearing and citation. Open hearings with
    Mr. Barr, who was willing to come and testify, who testified in
    the Senate. Mr. Rosenstein or Mr. Mueller, a closed hearing
    with Barr, Rosenstein, and Mueller, et cetera.
        Well, by submitting a sloppy subpoena, a subpoena that was
    overly broad, unenforceable demands, the chairman has risked
    doing lasting and real damage to the Judiciary Committee in the
    House of Representatives because bad facts make bad law. So I
    also want to comment on something that Ms. Shaw just testified
    to, and she was kind of ameliorating something that she said in
    her written statement.
        She said, ``One of the categories of information--'' This
    is from page 10 of her statement. ``--presently sought by the
    committee appears so broad as to put the executive branch
    officials to a nearly impossible task. The third item on the
    committee's subpoena consists of all documents obtained and
    investigative materials created by the special counsel's
    office.''
        And we know that the investigation involved more than 2,800
    subpoenas, 500 warrants, 250 communication records orders, and
    over 500 witnesses. What she doesn't mention is that it also
    produced 1.4 million documents.
        ``In light of this volume, the committee cannot in good
    faith expect compliance. Accordingly, the burden is on the
    committee to substantially narrow this aspect of its request.''
        Contrary to what Mr. Rosenzweig just testified to, Ms. Shaw
    has written that the burden is on the committee to
    substantially narrow this aspect of its request. If this
    committee were willing to accept rolling, rolling submission of
    documents, why did it not so state and why did it pull the plug
    on accommodation negotiations with Mr. Barr and his office?
        This committee--Ms. Shaw continues, ``The committee appears
    to believe that the executive branch has essentially withdrawn
    from the process of negotiation, providing affirmative
    authorization for Congress to do the same by moving quickly to
    subpoena and then contempt vote. These developments do not,
    however, relieve the committee of its obligation to continue to
    negotiate, to frame requests with specificity and care and,
    where possible, narrowly, both to potentially achieve some sort
    of resolution outside the courts and to allow the courts to
    adjudicate a narrow dispute if and when one party invokes their
    jurisdiction.''
        We have rushed instead in this body--as my colleague from
    Colorado, Mr. Buck, so eloquently stated, we have rushed to
    invoke the court's jurisdiction by hurriedly issuing a poorly
    drafted and overbroad subpoena, which, by the way, this
    committee in its hearing last week attempted to narrow the
    scope of the subpoena by amending the motion to hold in
    contempt.
        Think about that. You have given Mr. Barr a subpoena. You
    have demanded all documents. And then, when it comes time to
    hold him in contempt, you say, well, we didn't mean this type
    of information. Well, then how in the world do you think he
    could be held in contempt?
        Using the committee's oversight authority and subpoena
    authority for partisan political reasons, refusing to work with
    DOJ to narrow the request for information that is legitimately
    within our jurisdiction, and putting on show hearings demanding
    that the AG submit to staff questions and then later holding
    him in contempt damages the credibility of this committee.
        Issuing a subpoena that is overtly overly broad and
    attempting to narrow it when you are holding the person in
    contempt not only is sloppy, but it shows that this is being
    done for a partisan purpose to undermine, to pick a fight, and
    not to get the documents, not to get at the truth, especially
    when this chairman refuses to go down and look at the documents
    that have been provided to him with only 2 percent of the
    documents even being redacted.
        With that, my time has expired.
        Chairman Nadler. The time of the gentleman has expired.
        The gentleman from New York, Mr. Jeffries.
        Mr. Jeffries. Thank you, Mr. Chair.
        Mr. Rosenzweig, in your opinion, does the House Judiciary
    Committee have a legal basis for seeking disclosure on a
    confidential basis of the grand jury materials that are subject
    to Rule 6(e)?
        Mr. Rosenzweig. I believe it does. I believe that would be
    strengthened if impeachment proceedings were to begin. But I
    believe that the McKeever case is distinguishable on the
    grounds of this--this committee's superior legislative
    interests.
        Mr. Jeffries. Now separate and apart from the question of
    impeachment proceedings, the chairman has previously announced
    that this committee will pursue an inquiry on three different
    subjects. One, obstruction of justice; two, abuse of power from
    the administration; three, the culture of corruption that could
    possibly exist at 1600 Pennsylvania Avenue.
        Do those three independent subjects provide a basis for
    which we should have a firm foundation to seek this grand jury
    material?
        Mr. Rosenzweig. In my judgment, yes. I would say that all
    of those are suitable and cautious preliminary steps in
    anticipation of the possibility of considering impeachment. And
    therefore, this committee has not only a legitimate oversight
    interest, but one of the highest constitutional moment.
        Mr. Jeffries. Thank you.
        Professor Shaw, does executive privilege cover
    communications the President has with private citizens who do
    not work at the White House?
        Ms. Shaw. I don't believe so. No, Congressman.
        Mr. Jeffries. Does anyone on the panel disagree with that
    position?
        Mr. Turley. Well, I'm not too sure how I'd answer that. In
    my testimony, I get into the question of attorneys, private
    attorneys, and that's a difficult issue that I discuss in the
    testimony. A court could very well create new law that this
    committee would not welcome if you push that issue.
        Mr. Jeffries. Okay. Professor Turley, would the assertion
    of executive privilege cover communications between the
    President and Corey Lewandowski, who is not an attorney?
        Mr. Turley. No, I think that would be a disclosure to a
    third party. Although as I mentioned in my testimony, when it
    comes to waivers to third parties, the courts have been
    somewhat restricted in how far they'll allow that waiver to go.
        The Espy case was referred recently. The court said quite
    clearly they will not ``lightly infer'' a waiver when it comes
    to executive privilege.
        Mr. Jeffries. Roger Stone is not an attorney. Correct?
        Mr. Turley. I have no idea, unfortunately.
        Mr. Jeffries. Okay. We can stipulate that he is not. So I
    would assume that executive privilege does not blanketly cover
    communications with Roger Stone.
        Is Donald Trump Jr. an attorney?
        Mr. Turley. Once again, I have knowledge of their
    background.
        Mr. Jeffries. We can stipulate that he is not. I would
    assume that a blanket assertion of executive privilege does not
    apply with any degree of reasonable force to Donald Trump Jr.
        Is Paul Manafort an attorney?
        Mr. Turley. Once again, I don't know.
        Mr. Jeffries. Okay. Let us stipulate that he is not. I
    would assume that the assertion of executive privilege does not
    in a blanket fashion cover communications with Paul Manafort.
        Chris Christie is no longer a practicing attorney. Is that
    correct?
        Mr. Turley. I--once again, I have no idea what his practice
    is.
        Mr. Jeffries. Okay. Yeah, I would assume that the assertion
    of executive privilege does not apply in a blanket fashion to
    him either.
        Now, Professor Shaw, in the context of this question of
    waiver, it does appear that several White House employees
    talked to Bob Mueller and his investigators in the context of
    the preparation of the Mueller report without the
    administration asserting executive privilege. Is that right?
        Ms. Shaw. I believe that's right, yes.
        Mr. Jeffries. And so Hope Hicks talked to the Mueller
    investigators without the assertion of executive privilege.
    Correct?
        Ms. Shaw. That's correct.
        Mr. Jeffries. And Sarah Sanders talked to the Mueller
    investigators without the assertion of executive privilege. Is
    that correct?
        Ms. Shaw. That's correct.
        Mr. Jeffries. And I even think that Don McGahn, the White
    House counsel, talked to the Mueller investigators without the
    assertion of executive privilege. Is that correct?
        Ms. Shaw. Yes, also correct.
        Mr. Jeffries. And so what impact, if any, does the fact
    that the administration did not see fit to assert executive
    privilege in the context of an incredibly public investigation
    that the President tweets about every other day, but failed to
    assert executive privilege and now after the fact want to put
    forth this blanket assertion?
        Ms. Shaw. You know, again, I think it's a difficult
    question. I think the argument would be that to choose not to
    assert executive privilege in the context of an investigator
    inside the executive branch, which, of course, Special Counsel
    Mueller was inside the Department of Justice, is different and
    doesn't necessarily waive the opportunity to at a later date
    assert the executive privilege as against, say, Congress.
        As I said, I don't--I am not predicting that the White
    House would absolutely prevail in that argument, but I do think
    that it is a close legal question. And it is not at least
    evident that by failing to object at this earlier juncture that
    the White House has for all time it necessarily waived
    privilege as to all the contents of those communications when a
    body like this committee is seeking them.
        Mr. Jeffries. Okay. Seventeen different intelligence
    agencies concluded that Russia attacked our democracy as part
    of an effort to try and artificially place someone at 1600
    Pennsylvania Avenue. Does Congress have a strong public
    interest in getting a full understanding of what happened, how
    it happened, and how we can figure out how to prevent that from
    happening again?
        Ms. Shaw. I would say absolutely. An incredibly strong
    interest, yes.
        Mr. Jeffries. Thank you. I yield back.
        Chairman Nadler. I thank the gentleman for yielding.
        The gentleman from Virginia.
        Mr. Cline. Thank you, Mr. Chairman.
        Well, here we are again at the latest installment of the
    dramatic miniseries, the impeachment by any other name but
    impeachment. Masking as oversight, this committee has continued
    to drag on with questions about the Mueller report, what is
    behind the redactions, and the lack of attention to the actual
    issues that the American people are concerned about--securing
    our borders and addressing the immigration crisis, the opioid
    epidemic, as was addressed earlier, and as my colleague just
    mentioned, Volume 1 of the Mueller report spells out in detail
    just how Russia tried to influence our elections.
        The previous administration didn't do anything to address
    it. The current administration and this Congress need to work
    together to address it.
        But what we have instead is this committee, driven by
    animosity for the President, pushing to see what is behind the
    redactions, and yes, I would love to see what is behind the
    redactions, in compliance with the law, but that is not what
    the subpoena said. The subpoena said the entire Mueller report
    must be made available, in violation of Federal law.
        So we are waiting to see how that works itself through the
    courts. And as was testified to by Mr. Turley, we have played
    our weakest hand. So what is happening now?
        Well, now we are starting to hear that the Attorney General
    wisely has started to ask if we got it so wrong on the
    collusion question, then what actually did happen with the FISA
    court? What actually did happen with the investigation? And he
    has appointed U.S. Attorney Durham to investigate what exactly
    happened through that process. It is very appropriate that he
    has done that.
        But instead of supporting a U.S. attorney who has done work
    in previous administrations on both sides of the aisle, what we
    see is this committee trying to take the reputation of a good
    man, this Attorney General, and drag it through the Washington
    mud, claiming that by not releasing grand jury testimony, he is
    somehow in contempt of Congress.
        Well, he is actually complying with the law, not trying to
    thwart the enforcement of it. And this committee should be
    appreciating rather than trying to muddy up the reputation of
    the Attorney General.
        So I want to focus on an example of just how ridiculous
    this whole process has become. Mr. Chairman, you laid out--in
    the case for contempt, you raised three complaints against
    Barr, and these were outlined, Mr. Turley, in your article in
    The Hill, and I would ask you to elaborate on them.
        The complaints are a failure to release an unredacted
    report, which you have addressed and which is in the contempt
    citation, even though he is prohibited by law from doing so;
    making false statements; and his refusal to follow a subpoena.
    Can you expand on why those two were left out of the contempt
    citation?
        Mr. Turley. No, I don't know why the committee left out the
    common allegation that General Barr lied repeatedly to the
    committee. I disagree with those allegations. I don't see where
    perjury occurred.
        In terms of his record, I believe that he fulfilled his
    commitment to the Senate Judiciary. He said he would release as
    much as possible as fast as possible. In his testimony to the
    Senate, he said that he asked Mueller to identify grand jury
    material so that they could rapidly release the report.
        I'm still quite surprised that that request made by both
    Mueller's superiors was effectively ignored. The report came
    without identification of grand jury material, and that slowed
    the process. But in the end, the public report was 92 percent
    unredacted. To be honest, I thought that was a remarkably high
    percentage, given the nature of this material. A report given
    to select Members was 98 percent unredacted.
        My assumption then is that the grand jury material
    represents about 2 percent of the redactions. On that material,
    I can't imagine a court agreeing with some of the statements
    made here about his ability to release it. I tell my students
    all the time that only bad gamblers and bad lawyers focus on
    the prize and not the cards in their hand. This is not a good
    card to go to a court with.
        Mr. Cline. Thank you, Mr. Chairman. I yield back.
        Chairman Nadler. I thank the gentleman.
        The gentleman from California, Mr. Lieu.
        Mr. Lieu. Thank you, Mr. Chair.
        Let me just clarify that the Trump administration is not
    just denying requests from this committee. It is every single
    committee. So they are hiding information on every issue.
        Right now, we have got a committee trying to seek
    information on why the President and Bill Barr are suing to
    eliminate healthcare coverage for people with preexisting
    conditions. We can't get that information. So let us just be
    clear of what is going on.
        So, Professor Turley, I have a question for you about the
    waiver of executive privilege. Attorney General Bill Barr gave
    some Members of Congress, including the Republican ranking
    member of this committee, access to 98 percent of the report. I
    cannot see 98 percent of the report.
        Has the privilege been waived because Bill Barr clearly let
    Members of Congress actually see a lot more of this report than
    I could? So would that have waived executive privilege?
        Mr. Turley. No, it's an excellent question. We haven't
    really seen a test on that because it's sort of a conditional
    waiver. It allows for some access. We see that in other cases
    involving classified evidence, for example.
        The question I would pose to the committee, the caution I
    would give them is to not look at this through your eyes or the
    President's eyes, but look through the eyes of a judge. When
    she sees this, how is she likely to draw this line? Judges are
    loathe to create new law in this area.
        My guess is that the court will find that that is a
    conditional waiver for those Members, that it's the lesser is
    contained in the greater. But honestly, this has not been
    tested in court, so you can't say for certain how it would come
    out.
        Mr. Lieu. Thank you.
        And then just want to make sure that are you aware that we
    held Bill Barr in contempt not because he didn't provide Rule
    6(e) materials? You are aware of that, right? Because that
    action excluded Rule 6(e). We are very aware of how it works.
        The way--because I am a former prosecutor, right? The way
    you do subpoenas is you have a broad subpoena, and then the
    opposing side said, okay, well, I can provide documents A, B,
    and C, but with respect to documents X, Y, and Z, here are the
    reasons we can't provide it. And then you go forward.
        So what if a judge actually looked at what we actually
    negotiated and tried to ask for versus just what the actual
    subpoena says?
        Mr. Turley. Again, that's--again, that's a reasonable point
    to make. I must confess that if I were the judge, I would not
    be so inclined. What I would see is that in March of this year,
    this body did put forward a resolution that had two conditions.
    One, the first one was written nicely and said you should
    release publicly the report as much as possible. The second
    condition said we want the full report given to Congress, with
    no distinction for Rule 6(e).
        This committee has also repeatedly said it wants a full and
    unredacted report. And these questions are so close that you
    have to be careful in your language. I think the subpoena was a
    mistake the way it was drafted, honestly, because I think a
    court is going to look very closely at that and say, look,
    there's been this mantra that you want the full and unredacted
    report.
        And also the time you gave Barr, I have to tell you, I
    think judges are not going to like. They're going to see over a
    million pages of documents. They're going to see over a dozen
    cases ongoing that were involved, and I think that most of
    those judges would say I would not give him that limited amount
    of time.
        And judges deal with these issues all the time. They
    produce indexes. They do reviews. I think the time you gave
    Barr will be viewed by Federal judges as insufficient.
        Mr. Lieu. Thank you.
        And Mr. Rosenzweig, I would like to ask you some questions
    about obstruction of justice. You are a former Federal
    prosecutor. Correct?
        Mr. Rosenzweig. Yes.
        Mr. Lieu. And you were the former Republican investigative
    counsel on the House Transportation and Instructure Committee.
    Correct?
        Mr. Rosenzweig. Yes.
        Mr. Lieu. And then you also signed on to a letter now with
    over 900 former prosecutors saying that if anybody else in
    America had been faced with this evidence on obstruction of
    justice, they would have faced multiple felony charges if they
    weren't Donald Trump?
        Mr. Rosenzweig. I signed that letter, yes.
        Mr. Lieu. Okay. And that is because under the obstruction
    of justice statute, it is really quite broad, right? You don't
    actually have to complete an obstruction of justice act. You
    just have to endeavor to try to obstruct justice?
        Mr. Rosenzweig. That's exactly right. The statute says
    endeavor to obstruct, and typically, such obstructions fail.
    Otherwise, we wouldn't--if they succeeded, we wouldn't know
    about them.
        Mr. Lieu. So it wouldn't really matter that Don McGahn said
    no. What mattered is if Donald Trump gave the order to obstruct
    justice?
        Mr. Rosenzweig. That's exactly right, sir.
        Mr. Lieu. Secondly, under the obstruction of justice
    statute, there is no requirement you have to commit a second
    underlying crime in order to be guilty of the crime of
    obstruction of justice. Isn't that right?
        Mr. Rosenzweig. That's right. Many people would be very
    surprised to learn of that requirement since they languish in
    jail right now on that ground.
        Mr. Lieu. And in fact, lots of people get prosecuted for
    obstruction of justice because they want to protect a family
    member or a friend, or they are afraid of embarrassment from
    the investigations?
        Mr. Rosenzweig. Or political reasons as well, yes.
        Mr. Lieu. Okay. So, really, Bill Barr's theory that the
    President had to have actually committed criminal conspiracy
    with Russia is pretty cockamamie when it comes to obstruction
    of justice.
        You don't have to answer that. I want to ask you one more
    question on obstruction of justice----
        [Laughter.]
        Mr. Rosenzweig. Okay. I didn't want to characterize it.
        Mr. Lieu [continuing]. Which is the President would not
    have known if Michael Flynn, Paul Manafort, or others may have
    committed underlying crime. So with respect to stopping
    investigation against them, that clearly would have been
    obstruction of justice, whether or not the President believed
    he, himself, had done anything wrong? Is that----
        Mr. Rosenzweig. That's correct. You can obstruct justice by
    obstructing an investigation into a third party. It's not only
    limited to obstructing an investigation of your own conduct.
        Mr. Lieu. Thank you. I yield back.
        Chairman Nadler. Would the gentleman yield? Would the
    gentleman yield?
        Mr. Lieu. I will yield to the chair.
        Chairman Nadler. Thank you.
        Just, Professor Rosenzweig, you were shaking your head
    vigorously a moment ago when Professor Turley was answering
    questions from the gentleman from California about how a judge
    would regard the contempt with reference to the fact that 6(e)
    was in the original--not the contempt citation but in the
    original subpoena, but we would not have asked for it because
    we made clear that we were just seeking his cooperation in
    getting it. Could you comment on what you were shaking your
    head about?
        Mr. Rosenzweig. Yes. I guess my thought is that I don't
    think that this Committee's subpoena, it was poorly drafted or
    in any way unusual from the hundreds of subpoenas I have seen
    in my own practice as a prosecutor. You write them broadly, you
    include, as this Committee did in its instructions, a provision
    allowing the recipient to assert a privilege, and you define a
    privilege, as this Committee did, as withheld from production
    pursuant to any law, statute, rule, or policy. So in my view,
    it would have been perfectly appropriate for----
        Chairman Nadler. So that--so that subpoena was not asking
    the attorney general to break a law?
        Mr. Rosenzweig. Yeah, I don't believe it was. He would have
    been perfectly within his rights to respond--here is everything
    I can give you but there is this Rule 6(e) piece that I am not
    going to give you, and I am going to assert that pursuant to
    your own instructions to him.
        Chairman Nadler. Thank you very much. Who is next?
        The gentleman from North Dakota, Mr. Armstrong, is
    recognized.
        Mr. Armstrong. Thank you, Mr. Chairman, and I think
    sometimes we might not--these aren't always ideological
    difference. As somebody who practiced criminal defense in both
    state and federal court for a decade I have a drastically
    different impression of subpoenas being issued than prosecutors
    necessarily do.
        So I just--we just had that discussion about the subpoena
    and about Rule 6(e), so I would start--because I do think
    context matters. So I would start with Professor Turley. Do you
    agree with that back-and-forth analysis we just heard?
        Mr. Turley. No, I don't. I think it is a mistake to compare
    subpoenas used in conventional practice with a subpoena issued
    by a congressional committee. They are different creatures.
    Yes, subpoenas that are issued in litigation are often too
    broad, they are often setting the table for fights. This is not
    some litigant in a state court fighting over a subpoena. You
    have to tie your requests carefully to your authority to demand
    information.
        What I would suggest to my friend is that if Bill Barr had
    actually complied with the subpoena as written he would have
    violated federal law.
        Mr. Armstrong. Thank you.
        Mr. Turley. And this Committee also said, by the way, that
    they believed that Rule 6(e) did not bar Attorney General Barr
    from releasing the information. I think that is also not true.
        Mr. Armstrong. Well, and I have two points to add too,
    because, I mean, this is a political body for various reasons,
    so there are a lot of people on both sides of the aisle that
    have spoken up, in print, on TV, and all of those things. And I
    can tell you that up until the day of the contempt hearing,
    there is nobody out there saying that 6(e) information is not
    supposed to be disclosed. I mean, the narrative and the way
    this was working was the entire unredacted Mueller report.
        So I am just going to do this really quickly. Professor
    Shaw, if Attorney General Barr would have provided a complete
    non-redacted report, would he have violated the law?
        Ms. Shaw. I think the law protects grand jury material.
    Yeah, I would agree with that, yeah.
        Mr. Armstrong. Mr. Rosenzweig, do you agree with that?
        Mr. Rosenzweig. I agree, though I would say that nothing in
    the statute prevents him from asking a court for permission to
    provide that Rule 6(e) material.
        Mr. Armstrong. I agree with that but nothing in the statute
    or authority compels him to do that, and a subpoena surely
    doesn't compel him to go to court.
        Mr. Rosenzweig. A subpoena surely does not compel him to go
    to court.
        Mr. Armstrong. Professor Kinkopf, do you agree with that?
        Mr. Kinkopf. Sure.
        Mr. Armstrong. Okay. So, and then, so I think it is
    important, I mean, this blanket assertion of privilege happened
    the morning of a contempt hearing. I mean, we--this protective
    assertion of privilege happened the morning we were going to
    hold Attorney General Barr in contempt for information that he
    could not provide in compliance to the subpoena, by law.
        And one of the reasons I bring that up, because we have
    talked about this, Professor Turley cited, I think, the total
    report is 98.5 percent available to certain members. Of the
    obstruction side I think it is like 99.9 percent. And the
    reason I am saying this is because when I read all these cases,
    whether it is Holder or Oversight v. Holder, and we are dealing
    with all this, a big portion of the analysis is on research, or
    on accommodation and negotiations.
        And I think Professor Turley talked to it about, you know,
    the questions about conditional waivers. And so we talk like if
    the people on this Committee who have access to that, in a
    secured setting, like that becomes the end of it, but that is
    typically where we would start having this negotiation and
    accommodations, and that is what has happened in prior cases.
    That is what happened in Holder, that is how we worked our way
    through this. And, I mean, when you have one party controlling
    one branch of government and one party controlling the other
    branch of government, there is going to be combat. There is
    going to be back-and-forth. There is going to be those. We saw
    it in the Holder case, and eventually they went to court, and
    there had been documents provided over the course of months and
    months and months.
        But that didn't happen here, and outside of everything
    else, there was no time for that to happen here. This all
    happened in a span of--I mean, a very, very short period of
    time.
        So how do you deal with the negotiation and accommodation
    part of this after you have held a contempt order on a person
    who can't comply with your subpoena?
        And so I will start with Professor Shaw.
        Ms. Shaw. Well, I think the process continues. I think that
    accommodation can be ongoing today and next week, and that was
    true before the Committee contempt vote and I think it remains
    true. So I think that it is incumbent on both this Committee
    and the White House to attempt to, you know, de-escalate if
    possible. I think it is only possible if there is meaningful
    attempt to provide information to the Committee which, as I
    understand it, although I agree that the timeline is short, in
    some ways I presume the decision was made that it doesn't
    matter how much time you give to a party that is providing no
    information. You may as well proceed quickly to the next stage
    of negotiation if there is absolutely no cooperation
    forthcoming.
        Mr. Armstrong. And I don't necessarily disagree with that.
    My point would be that there was no cooperation on either side.
    I mean, we were saying, ``You are providing the whole thing,''
    and he is saying, ``I can't provide the whole thing.'' And I
    think--I am out of time so I would just say that the
    negotiation and accommodation part would work a lot better if
    the contempt order wasn't in place, and to quote somebody on
    the panel from a hearing we had earlier, I think Congress has
    met the enemy and sometimes it is us. This was in a different
    context but I think we are fully aware of what we are doing,
    how we are doing it, and why it is not the most effective way
    to accomplish our goals. Thank you.
        Mr. Raskin [presiding]. Ms. Garcia.
        Ms. Garcia. Thank you, Mr. Chairman. First of all, thank
    you to all the witnesses for being here. I think most of you
    here will agree that executive privilege serves as a vital
    function in our government's ability to make laws and protect
    our national interests. Without it, presidents and the privacy
    required to make decisions of great national interest would be
    severely limited. Frankly, I don't think any one of us here at
    the table would want to do that, and unlike some of the
    statements that have been made by my colleagues across the
    aisle, we are not here because of animosity to the President.
    We are not here, you know, on the self-described by the
    President, a witch hunt. We are really here to get to the
    bottom of the truth and to take the facts where they lead us.
        I know, for me, as a former judge and a lawyer, there is
    nothing more important in our country than the rule of law, and
    that is what we are here fighting about.
        I wanted to start first, though, to just kind of dispel
    some of the comments that have been made from across the aisle
    that somehow they think we are just all sitting here trying to
    think about impeachment or investigation, some ways to get back
    at the President, and we are not taking care of business.
        This Committee has already heard, in past, the For the
    People Act, which protects our vote and is about election
    reform and ending corruption in government. We have already
    passed a bill about preventing gun violence, protecting
    dreamers and TPS recipients, another bill reauthorizing the
    Violence Against Women Act. We have also looked at the state of
    competition in the health care markets. We have looked at the
    history and enforcement of the Voting Rights Act. We looked at
    the lack of diversity among patent holders.
        We have looked at the Equality Act, protecting all LGBTQ
    community. We looked at the Equal Rights Amendment, at hate
    crimes and the rise of white terrorism. We also have been
    looking at the family separation policy, because, yes, there is
    a crisis at the border, but it was created by this President.
    We have looked at the National Emergencies Act. We have looked
    at the proposed Sprint/T-Mobile merger and the oversight of the
    U.S. Patent and Trademark Office.
        We have been working but we also don't lose sight of the
    responsibility that we have under the Constitution, legally and
    ethically, to have oversight over the actions of this
    Administration. So it really concerns me that some would like
    to twist what we are trying to do, because, frankly, if we
    don't do it then who will? And for me I take that
    responsibility very, very highly.
        And, Ms. Shaw, I wanted to start with you, because you made
    a comment in your testimony that kind of intrigued me. You said
    that there may not be a waiver of executive privilege in intra
    transfers among the executive branch. What does that actually
    mean and how broad is that?
        Ms. Shaw. So when the comment is made that the President
    didn't assert executive privilege to prevent, say, his White
    House counsel from cooperating with the special counsel, I
    think there is an open question whether he would even need to
    assert executive privilege. Instead, you know, he could have
    just directed his White House counsel not to cooperate.
        Ms. Garcia. You are talking just about the counsel.
        Ms. Shaw. Just his immediate staff members or any executive
    branch official.
        Ms. Garcia. Having been in government many years, when you
    say intra-agency I just wanted to make sure that the public,
    who is listening, who may not understand the complexities of
    the bureaucracy, if you will, everything from the White House
    on down. And you don't mean any agency.
        Ms. Shaw. Well, so I think as an intra-executive, right,
    just within the executive branch, so allowing an executive
    branch official to talk to another executive branch official--
    --
        Ms. Garcia. Does that include Department of Justice
    lawyers?
        Ms. Shaw. Yeah. So that would be----
        Ms. Garcia. Does that include the investigators we have
    talked about earlier?
        Ms. Shaw. Yes, I believe so. So I think my point was that
    talking to all of those categories of individuals who are all
    executive branch officials of some sort presents different
    questions than allowing the dissemination to another branch of
    government of the same information.
        Ms. Garcia. Okay. You also say, in your written testimony,
    that our third category of requested information in our
    subpoena is too broad. The Committee has offered to narrow its
    request exactly as you suggest, including negotiations, and
    again, in its May 10th letter. Do you believe that it is an
    appropriate accommodation?
        Ms. Shaw. Thank you for the opportunity to address that,
    and yes, I did, in my opening statement, or in my written
    statement, suggest that that Category 3 was, in my view, too
    broad, but I now understand that the Committee has if not--I
    think it may have actually abandoned its request for documents
    in that third category in favor of just the documents
    referenced in the report, as opposed to the entire universe of
    documents, and as to that I think that is a perfectly
    appropriate accommodation.
        And if I might just comment on the general exchange about
    the kind of propriety of the breadth of the initial subpoena,
    my view is that it is quite appropriate in that this is an
    iterative process and courts understand that and all the
    participants understand that, that broad requests always get
    narrows, and that, in fact, is the whole game. And so I don't
    think there is anything inappropriate in the face of the
    subsequent narrowing that this Committee has been willing to
    make, in having made an initially broad request.
        Ms. Garcia. Okay, thank you, and I yield back. I think I am
    out of time, Mr. Chairman.
        Chairman Nadler [presiding]. I thank the gentlelady for
    yielding.
        Before I recognize the next member I ask unanimous consent
    to introduce into the records these excerpts from a report by
    the Project on Government Oversight, entitled ``When Congress
    Comes Calling: A Study on the Principles, Practices, and
    Pragmatics of Legislative Inquiry.''
        Without objection.
        [The information follows:]

                    CHAIRMAN NADLER FOR THE OFFICIAL RECORD

    =======================================================================

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Nadler. The gentleman from California, Mr.
    McClintock, is recognized.
        Mr. McClintock. Thank you, Mr. Chairman.
        Professor Turley, I keep hearing that we are on a
    constitutional crisis. To my mind, a constitutional crisis is a
    matter that our constitutional institutions cannot resolve. Is
    this a crisis or is just the normal tension between the
    executive and legislative branches?
        Mr. Turley. No, it is not a crisis. I mean, there have been
    serious fights with prior administrations. During the Obama
    administration, during the Clinton administration there were
    massive fights.
        Mr. McClintock. So what is the constitutional path to
    resolve this dispute?
        Mr. Turley. Well, I think that all of the witnesses agree
    on some salient points, but one of them is that this is a
    process that usually is resolved through a give-and-take.
        The one thing I would caution again is this discussion
    about how the subpoena was drafted. Understand what you are
    suggesting.
        Mr. McClintock. But, I mean, would we not take this to
    court at some point and say, look, the executive thinks one
    thing, the legislative thinks another. Judiciary, please weigh
    in on this?
        Mr. Turley. Right, but when you go to court with this broad
    subpoena you are guaranteeing to lose----
        Mr. McClintock. I get that, but is that the--we are
    obviously not taking that path. We haven't gone to court.
        Mr. Turley. Right.
        Mr. McClintock. Why haven't we?
        Mr. Turley. I am not sure. I think that, quite frankly, the
    Committee pulled the trigger too fast on contempt.
        Mr. McClintock. Was it possible that the legislative
    branch's case is very, very weak? You have kind of suggested
    that.
        Mr. Turley. Well, I have to say we obviously disagree on
    this point. I would have thrown myself bodily across the
    subpoena to keep it from being signed.
        Mr. McClintock. Yeah, but it has been signed as all----
        Mr. Turley. Yeah.
        Mr. McClintock [continuing]. Water under the bridge, as
    they say. But is this not an impasse that ultimately would
    either be resolved by negotiations between the two sides or by
    recourse through the judiciary?
        Mr. Turley. Well, usually this would be resolved on both
    sides. The question is, by pulling the trigger on contempt did
    you actually interrupt the process, because now you have sort
    of forced us into a formal court proceeding, and----
        Mr. McClintock. I understand that, but my point is there
    are institutional ways of dealing with this impasse.
        Mr. Turley. Right.
        Mr. McClintock. All right. On the protective assertion of
    executive privilege, my understanding is this is simply the
    executive branch saying, ``Wait a second. You guys have just
    asked for 1.4 million pages of material. Some of that is
    illegal for us to release. Some of it would interfere with
    ongoing investigations. We don't know which until we go through
    each one of those 1.4 million pages, so we are going to put a
    protective order on all of it as we go through that, and we
    will release what we can.''
        Mr. Turley. That is right. This is why I hate to come back
    to the way the subpoena was drafted. If you take that to court,
    that is why you are guaranteeing that you will lose to some
    degree. Now people have said, well, this is just a conversation
    we go over broadly.
        Mr. McClintock. I think that is why we are making all of
    this fuss and fury rather than going to the court because I
    think deep down inside our folks know, this is an extremely
    weak case.
        Mr. Turley. Well, but what a court would have to say is
    that, look, a subpoena is a demand for information. You are
    saying you must turn over this information. A subpoena is not
    some casual form of conversation----
        Mr. McClintock. If we thought----
        Mr. Turley [continuing]. To concentrate the mind.
        Mr. McClintock [continuing]. If we thought we had a strong
    case we would be in court in a New York minute.
        Mr. Turley. Right, and I think ultimately this Committee
    will prevail on getting some of this information under the
    subpoena. I think this Committee has an unassailable----
        Mr. McClintock. Right.
        Mr. Turley [continuing]. And compelling right to some of
    this information.
        Mr. McClintock. Well, again, if the Administration had
    released material protected under 6(e), or released material
    involving ongoing investigations, you know for a fact that in a
    heartbeat there would be a criminal referral against the
    Administration, either for releasing grand jury testimony and
    violating 6(e) or obstructing justice by releasing material in
    an ongoing criminal investigation.
        Mr. Turley. Well, one of the things I said earlier is that
    the reason I think this Committee should shift from the--or
    pivot from the redactions is I think you are guaranteed to lose
    some of that fight and create precedent against yourself. But
    more importantly, if the court just agrees on Rule 6(e) and
    ongoing investigation, that is virtually all the redactions in
    the report. The report itself is only 8 percent redacted.
        So you are going to a court and a court is going to look at
    you like, really? You are going to fight on this ground? Where
    you have a really strong argument is on those witnesses and the
    supporting material. But on that I think a court is going to
    view this Committee as premature when it pulled that trigger.
        Mr. McClintock. Why is it illegal to release grand jury
    testimony? Why----
        Mr. Turley. I am sorry?
        Mr. McClintock. Why is it illegal to release grand jury
    testimony?
        Mr. Turley. Well, as the D.C. Circuit said recently, the
    6(e) rule that this body helped draft understands that in grand
    juries a great deal of information is brought in that is highly
    damaging to individuals' reputations. It is not subject to a
    cross-examination. So when I have had clients go into the grand
    jury room I stand outside, and my client has to say, ``I want
    to go talk to my counsel,'' and they have to leave the grand
    jury room. Otherwise, everything can go into that grand jury
    and there are very few rules limiting the prosecutors.
        Mr. McClintock. Thank you.
        Chairman Nadler. The gentleman's time has expired. The
    gentleman from Maryland, Mr. Raskin.
        Mr. Raskin. Mr. Chairman, thank you very much.
        Mr. Rosenzweig, I don't know whether you saw this exchange
    yesterday that took place between U.S. District Court Judge
    Amit Mehta and the President's lawyer, William Consovoy, but I
    just want to read you a little passage and then get your
    reaction to it.
        Judge Mehta said, ``President Trump's finances are not
    subject to investigation?'' ``Correct,'' Consovoy said.
    ``Congress can't verify the accuracy of the President's
    financial statements?'' ``Correct.'' The judge says, ``If a
    President was involved in some corrupt enterprise, you mean to
    tell me because he is the President of the United States
    Congress would not have the power to investigate?'' ``No,''
    Consovoy said, ``because that is not pursuant to its
    legislative agenda.''
        So starting with presidential finances, is there any reason
    to believe the President's lawyer that Congress cannot
    investigate the finances of the President?
        Mr. Rosenzweig. I believe that Mr. Consovoy's statement is
    wrong, and not just wrong but frivolously wrong.
        Mr. Raskin. And what about his suggestion that Congress
    could not investigate criminal activity or corruption in the
    executive branch or on the part of the President?
        Mr. Rosenzweig. That would be contrary to more than 220
    years of congressional precedent, dating back to the first
    investigation of military disaster under President George
    Washington.
        Mr. Raskin. Thank you. Professor Shaw, there is an
    increasing pattern now of the executive branch asserting that
    this body has no proper legislative basis for its inquiries for
    information. In your experience in the executive branch, was it
    normal practice for the government to respond to oversight
    requests by saying, ``What is it to you? What does it matter?
    What is your proper basis for asking this question?''
        Ms. Shaw. Not at all, Congressman, no.
        Mr. Raskin. In other words, it has been the standard
    practice of Congress and the executive branch, for centuries,
    really, for Congress to be able to exercise its broad and
    comprehensive oversight power by asking for information from
    the executive branch, and the executive branch just complying,
    however happily or unhappily.
        Ms. Shaw. I think--I mean, I certainly think there is
    resistance at times, but I think that the general narrative has
    been one of, maybe I could call it grudging compliance, but
    recognition of the legitimacy of the requests.
        Mr. Raskin. Yeah.
        Professor Kinkopf, do you believe that the executive branch
    should be refusing to produce information based on the
    assertion that Congress really shouldn't be asking for it?
        Mr. Kinkopf. No.
        Mr. Raskin. What about the claim that moved some people
    that there are political motives? I know when, you know, the
    tables were turned and the Republicans ran these committees, we
    would often say there were political motives for the Hillary
    Clinton email investigation, for the Fast and Furious
    investigation, for the Benghazi investigation. But did that
    stop the executive branch from overwhelmingly complying with
    the requests?
        Mr. Kinkopf. It did not, no. Of course there are political
    motives involved, and involved on both sides, and the Supreme
    Court itself has said that that is completely irrelevant.
        Mr. Raskin. The existence of political motives, which is
    just in human nature and the nature of a representative
    democratic system are completely irrelevant to what our
    constitutional powers are.
        Mr. Kinkopf. Correct.
        Mr. Raskin. Okay. How do you feel about the assertion made
    yesterday by President Trump's private attorney that Congress
    has no business investigating whether the President has broken
    the law?
        Mr. Kinkopf. His view is preposterous. It--there aren't
    words for what a frivolous assertion that was. It ignores the
    necessary and proper clause, fundamentally, which gives this
    body the authority to enact all laws that are necessary and
    proper for carrying into execution all of the powers of the
    government, including those that are vested exclusively in the
    President.
        Mr. Raskin. I did a little West Law search last night, and
    I could not find a single appellate case in the last century
    where a court has found that Congress has exceeded its
    legislative authority, under the necessary and proper clause
    and other parts of the Constitution, by issuing a subpoena. Are
    any of you aware of an appellate case in the last century, or
    even beyond that, where a court has struck down a subpoena as
    being----
        Mr. Turley. Well, yeah. The Senate Select Committee v.
    Nixon, D.C. Circuit, 1974, rejected the subpoena demand under
    oversight authority. I made a distinction between this
    Committee proceeding under impeachment as opposed to oversight,
    but I would cite that opinion.
        Mr. Raskin. Okay.
        Ms. Shaw. Could I respond to that?
        Mr. Raskin. Yes, Professor Shaw.
        Ms. Shaw. I would just say that I think that at least part
    of the basis of that decision isn't the--doesn't lie just in
    the distinction between impeachment and oversight but lay in
    the duplicative nature of the request, right? The court says
    the House Judiciary Committee, right, is--happened to be, and
    maybe not just happened to be--was, you know, in a
    constitutionally relevant sense, pursuing impeachment, but that
    the Senate committee had no legitimate basis to have two
    committees, essentially, examining the same material.
        So I don't view that decision as resting so thoroughly on
    the, you know, impeachment oversight.
        Mr. Raskin. It was based on the redundancy of the request.
        Ms. Shaw. That is, I think, a fair way to read the opinion.
        Mr. Turley. Can I just ask a question?
        Mr. Raskin. Well, unfortunately, I am down to 30 seconds,
    or 13 seconds now, so forgive me, Professor Turley.
        Do we--does anyone here believe the assertion that the
    executive branch is somehow above Congress' power of inquiry
    and investigation? Does anybody believe that?
        Mr. Turley. Well, it can be if executive privilege
    assertions are valid. I mean, executive privilege assertions,
    when valid, prevent the Congress----
        Mr. Raskin. Okay, but, in general, what we are getting
    today is a statement by the executive branch that it doesn't
    have to participate at all. I mean, is anybody aware of any
    precedent?
        Let me come to you, Mr. Rosenzweig. Are you aware of any
    precedent for the President of the United States telling the
    executive branch not to cooperate with legislative inquiries,
    saying, ``No more subpoenas. Enough is enough''?
        Mr. Rosenzweig. Not in the wholesale manner here. Professor
    Turley is correct that some of the means by which the
    investigation proceeds may be subject to certain privilege
    claims that are narrow in focus, but I have never been aware of
    the executive branch being able to tell the legislative that
    that is not a fit subject for you to be inquiring into vel non.
        Mr. Raskin. Thank you very much. I yield back.
        Chairman Nadler. I thank the gentleman for yielding. The
    gentlelady from Arizona, Mrs. Lesko, is recognized.
        Mrs. Lesko. Thank you, Mr. Chairman. My question is going
    to be for Professor Turley, and I am just going to give a
    little bit of background first.
        Last week, this Committee held a business meeting to
    discuss holding the Attorney General of the United States in
    contempt of Congress. At this meeting, Chairman Nadler
    acknowledged the difference between the intent of the subpoena
    and the language in the actual subpoena itself, which we
    discussed quite thoroughly at that time.
        During a discussion about grand jury 6(e) material, which
    would require the attorney general to break the law in order to
    produce to the Committee, the chairman stated, and I quote,
    ``The reason that was in the subpoena was to increase our clout
    in court, in getting the 6(e) material, hopefully with the
    attorney general's support, but it is in no way meant to force
    him to give that support.''
        So my question for you, Professor Turley, from that
    statement do you believe it is safe to assume that the
    chairman's goal all along was to go to court and not engage in
    the accommodation negotiation process, and he went so fast with
    his subpoena, which included 6(e) material?
        Mr. Turley. Well, I don't want to venture to guess about
    the chairman's motivations, but what I will say is that I
    believe it is a mistake, if this is a serious effort to go to
    court, to put a subpoena, a demand for information, that, if
    complied with, would have violated federal law, and you are
    going to a federal court, which tends to be highly protective
    over grand jury material. They are the last group of people
    that will take this casual approach to Rule 6(e).
        So what you have is if that subpoena goes to court you will
    start out, very likely, with creating precedent against
    yourself and being very clear, for all future committees, that
    you don't have this ability. That is the reason I think that
    that subpoena should have been more narrowly tailored.
        Can I make one statement with regard to my colleague's
    statement----
        Mrs. Lesko. Of course.
        Mr. Turley [continuing]. About the earlier case? With
    regard to the Senate Select Committee v. Nixon, as I say in my
    testimony, they do refer to the duplicative aspect of the two
    committees. That is not the holding of the case, in my view.
    First of all, it would be bizarre, in my view, if the federal
    court said you have authority to this information, but because
    those guys got it I am not going to give it to you. I mean, I
    don't know of any case where that would be true.
        What the court was saying was that you are proceeding under
    oversight, those people are proceeding under impeachment, they
    have the material, and, by the way, your case for this
    information is even weaker because Congress has it on the
    impeachment side, and, by the way, it is going to be coming to
    you if they end up impeaching. That is what I believe the court
    would say.
        Mrs. Lesko. Thank you, and Mr. Turley, I have two minutes
    left, and so is there anything else you wanted to add to this
    discussion today, that you haven't said already?
        Mr. Turley. Bless you for that question. The answer is yes,
    and it is this. We have to distinguish between what is being
    discussed here in terms of waiver. I believe that at least
    Professor Shaw and I agree that there is not a waiver that took
    place because of the sharing of information between the special
    counsel and the White House. That position has been stated by
    members of this Committee and advance the position that I
    beseech you not to make in federal court, because you will
    create precedent against this body.
        The question of waiver, then, gets a little more difficult
    when you talk about disclosures to counsel, private counsel. I
    think the President has made a mistake by mixing people with
    different representational statuses and not creating walls. But
    once again, I encourage you not to push that envelope, because
    my guess is that it would create new precedent and you wouldn't
    like it, in terms of future investigations.
        So what does that leave this Committee? It leaves the
    Committee with a lot. You can fight and get these witnesses. I
    think the White House cannot maintain that position. You can
    fight and get these documents. I don't believe they can sustain
    that position. But you will have to hone your targets a little
    more closely to protect precedent. And I will simply repeat
    once again--beware of close calls. This is not a blackjack game
    in Vegas. If you do a close call, that is where you lose
    precedent, and you have an obligation to future judiciary
    committees, just as they had an obligation to you, and I
    suggest don't get into fights that are close calls. You have
    takedown cases here to bring into court. Focus on those.
        Mrs. Lesko. Thank you. I yield back my time.
        Chairman Nadler. The gentlelady from Washington, Ms.
    Jayapal, is recognized.
        Ms. Jayapal. Thank you, Mr. Chairman, and thank you all I
    think this has been a really instructive hearing.
        We were sworn to a constitutional duty to conduct oversight
    of the executive branch, along with many other things, and
    there are many ways to do this--holding hearings, requesting
    documents, issuing subpoenas, and holding people in contempt
    when our requests are ignored.
        There are over 20 investigations into Donald Trump's
    actions where the Trump administration has stonewalled our
    pursuit of the truth on behalf of the American people, and we
    have talked about a few of them. We went through all these
    steps to obtain the unredacted Mueller report, which contains
    information that is vital to protect our elections and ensure
    that the President isn't using his power to cover up certain
    things that he is doing. The President responded with a blanket
    proactive assertion of privilege over the entirety of the
    report and its underlying materials.
        We asked for Trump's tax returns, essential for the public
    to understand whether the President has complied with the law
    and paid his taxes in full, and to understand any financial
    conflicts that the President might have. The Trump
    administration said no.
        We asked for documents to understand alleged abuses into
    the White House security clearance system, abuses that may
    undermine our national security. The Trump administration said
    no. I could go on. There is a list of 20 of them.
        But let me turn to you, Mr. Rosenzweig, because as a career
    prosecutor you were independent counsel for the Office of
    Independent Counsel under Ken Starr, not typically the witness
    that the Democratic majority would call. You are an expert on
    executive privilege. And in your written testimony you explain
    that executive privilege can't be looked at, and you used the
    words ``in a vacuum.''
        Given President Trump's pattern of defying as many as 20
    different efforts to examine his own conduct, would you agree
    that the President's invocation of executive privilege has been
    undertaken in bad faith?
        Mr. Rosenzweig. It certainly is a conclusion. I would be
    reluctant to impute a motive to the President, who I don't
    know, but it certainly is a conclusion that you could
    reasonably draw, either of bad faith or a motive of delay.
        Ms. Jayapal. And, in fact, I think in your written
    testimony you do say that the President's--it suggests that the
    President's resistance--you didn't say for sure but you said it
    suggests that it was taken in bad faith.
        Given the competing interests here, including Congress'
    need to protect our elections, do you think that the blanket
    assertion of executive privilege by the White House, in
    response to our subpoena, is legally justified?
        Mr. Rosenzweig. It does not seem to be, and I think one of
    the reasons that I reached that conclusion is because of the
    context that you laid out in the premise to your question,
    which is that this particular invocation, whatever its merits
    or demerits on its own face, comes in the context of what
    appears to be a wholesale determination not to cooperate with
    any congressional investigation. That certainly colors, for me,
    an assessment of the validity of the invocation and also ought
    to color your assessment of it as well, and I think, frankly,
    would color a court's assessment too.
        Ms. Jayapal. Yeah. Thank you.
        Professor Kinkopf, you, in your response to Representative
    Bass, said, ``Never before has there been a blanket assertion
    that an administration will stonewall all subpoenas and all
    requests for documents. When I think of a word to describe
    that, the only one that comes to mind is contemptuous.''
        And just because there are a lot of people watching this
    who are not legal scholars, don't necessarily understand
    executive privilege, what is the impact for the average
    American of one branch of government being completely
    contemptuous, to use your word, of another branch of
    government's power? What does it mean for their health care?
    What does it mean for their life if that is the case?
        Mr. Kinkopf. So Congress the linchpin of our constitutional
    system, and to stonewall Congress prevents it from performing
    its proper constitutional role, and that puts everything in
    jeopardy. And you are quite right to bring it down to that sort
    of kitchen-table level of our health insurance, of everything
    else that we rely on and are engaged with every day, because it
    does filter down to that level.
        Ms. Jayapal. It is not some distant thing. It is actually
    the idea that we have no oversight or authority over another
    branch's actions, even when they are unlawful. So do you think
    that the actions of President Trump and Attorney General Barr
    in refusing to respond to any congressional subpoenas are
    permitted under the Constitution?
        Mr. Kinkopf. No.
        Ms. Jayapal. Thank you. You have actually--you have a
    footnote in your testimony where you say, ``In this connection
    the President's recent declaration of a blanket intention to
    oppose all the subpoenas is unprecedented, contrary to the
    process that the courts have regarded.''
        So this issue goes beyond partisan politics. It is about
    our democracy, our Constitution, it is about precedent that we
    set, of course, and it is about us being able to do our
    constitutional duties and to have checks and balances.
        And I see that my time has expired and I thank you, Mr.
    Chairman, and I yield back.
        Chairman Nadler. Thank you, the gentlelady for yielding. I
    now recognize the gentleman from California, Mr. Correa?
        Mr. Correa. Thank you, Mr. Chairman. I want to thank the
    witnesses for being here today. You are appreciated. I want to
    say, as a Member of Congress, a member of this Committee, I
    take my job of oversight over a co-equal branch of government
    very seriously, so I thank you for being here for your
    testimony.
        Talking about balance, reasonableness, time to respond,
    Professor Kinkopf, I want to ask you if you think the attorney
    general can legitimately claim he needs more time to conduct a
    review, given that the Committee itself made it clear for
    several months that we had a compelling need to review the
    unredacted documents and reports of the underlying evidence?
        Mr. Kinkopf. With respect to the unredacted documents, or
    the unredacted Mueller report, I think the claim of a need for
    more time is just not credible. As to the underlying documents,
    though, I think it is fair, but only for a very brief window of
    time, and I point this out in my statement. The precedent for
    this is the 1996 assertion, protective assertion by Attorney
    General Janet Reno, and a full response with privilege laws
    specifically identifying what documents are privileged and why
    each document is privileged was forthcoming two weeks later.
        Mr. Correa. You know, we offered, in a May 3rd letter, as
    well as in the April 18th subpoena itself, to prioritize
    specific defined set of underlying evidence. We essentially
    said prioritize which information you could present to us, and
    what other information you need time to present to us.
        What do you think about that information? Does that change
    your response?
        Mr. Kinkopf. Well, I think still it is fair for the
    executive branch to say we need time to look through and see
    what is privileged and what isn't. I do think, though, it bears
    on this question of whether or not you have simply issued a
    subpoena and then, moments later, issue a contempt citation.
        Mr. Correa. Professor Kinkopf, Attorney General Barr's
    letter to the--to President Trump said protective assertion was
    consistent with something that had been done during the Clinton
    administration, but in that case, about two weeks after making
    the protective assertion of privilege, the Clinton White House
    completed its review and released 1,000 pages of documents, and
    produced a privileged log as to the documents it withheld.
    Should we expect the Trump administration to do the same thing
    here?
        Mr. Kinkopf. Yes. I think the Trump administration should
    be held to the same standard. I am not sure that I would say
    that you should expect the Trump administration to do that,
    though.
        Mr. Correa. Well, the point here is we have gone through
    this exercise before. The Administration, under Clinton,
    released 1,000 pages on a timely basis and then gave us a log
    of the information that they were not releasing.
        Mr. Kinkopf. Right. I think the point here is that the idea
    of a protective assertion of privilege is basically an
    expression of exigency, as we don't have time. And it is
    justified only as long as that exigency actually exists.
        So, yes, the Administration might say 1.4 documents is
    going to take us a bit of time to go through, but the Justice
    Department has lots of lawyers and it can go through even that
    large a document request very, very quickly, and it is its duty
    to do exactly that. It is not a proper mechanism for merely
    delaying and deferring the Committee's request.
        Mr. Correa. For the people of this country watching this
    hearing today, what is a protective assertion?
        Mr. Kinkopf. A protective assertion is an assertion that we
    don't--we believe there are privileged documents within the set
    of--within the many boxes that you have requested, but we need
    some time to go through and pick out the privileged documents,
    right, to pick them out, in order to release those that aren't
    privileged.
        Mr. Correa. And do you believe this Committee's offer to
    work with the Administration, to give them time to prioritize
    the documents to be released, in their terms, is that something
    that is reasonable, that a court would look at and say Congress
    is being reasonable. They are being fair with the
    Administration.
        Mr. Kinkopf. Yes.
        Mr. Correa. Thank you very much.
        Chairman Nadler. Will the gentleman yield?
        Mr. Correa. Yes.
        Chairman Nadler. Thank you. I have one question for
    Professor Kinkopf. Professor, Professor Turley suggested that
    we don't have a narrowly tailored purpose for our subpoena, and
    Professor Turley's written testimony acknowledges that where
    Congress has a strong legislative purpose that is a factor in
    assessing executive privilege, but somehow suggested our
    investigation into alleged corruption, obstruction, and abuse
    of power is not sufficiently tied to any legislative purpose.
        Do you agree with Professor Turley's apparent position that
    this Committee does not have a valid legislative or oversight
    purpose in the subpoenaed information?
        Mr. Kinkopf. No, I do not. I couldn't disagree more
    strongly. As I point out in my written statement, and as I
    mentioned in my opening statement, I think Congress has a
    compelling interest in knowing all the details of Russian
    interference in the 2016 election in order to be able to
    legislate intelligently on how to fix the system. I believe
    that this Committee and Congress also have a compelling
    interest in investigating serious and substantiated allegations
    of presidential misconduct.
        And so those interests more than justify your request for
    those documents, and I think then impose on the executive
    branch a duty to say, with specificity, why each document it
    wishes to withhold is privileged, and is privileged in a way
    that cannot allow an accommodation of your compelling interest.
        Mr. Turley. In fairness, can I respond, Mr. Chairman?
        Chairman Nadler. Sure.
        Mr. Turley. That is not my testimony. I say in my testimony
    that, in fact, I believe--I go through each of the elements of
    Wilkinson, the three elements, including purpose, and I say
    that you have satisfied the Wilkinson condition for purpose,
    and I do not believe you would lose on that ground. I say that
    quite clearly in my testimony.
        Chairman Nadler. Well, thank you for clarifying that very
    much. I thank the gentleman for yielding to me. Does the
    gentleman have anything further to say?
        Mr. Correa. No further comments, Mr. Chairman.
        Chairman Nadler. Thank you. The gentleman yields back.
        This concludes today's hearing. I want to thank our
    distinguished witnesses for attending. Without objection, all
    members will have five legislative days to submit additional
    written questions for the witnesses or additional materials for
    the record.
        Without objection, the hearing is adjourned.
        [Whereupon, at 12:53 p.m., the committee was adjourned.]

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