[Senate Hearing 117-831]
[From the U.S. Government Publishing Office]





                          



                                                        S. Hrg. 117-831
 
                    BREAKING THE LOGJAM: PRINCIPLES
                     AND PRACTICE OF CONGRESSIONAL
                   OVERSIGHT AND EXECUTIVE PRIVILEGE

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON FEDERAL COURTS,
                        OVERSIGHT, AGENCY ACTION
                           AND FEDERAL RIGHTS

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             AUGUST 3, 2021

                               __________

                          Serial No. J-117-33

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                       COMMITTEE ON THE JUDICIARY

                   RICHARD J. DURBIN, Illinois, Chair
PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking 
DIANNE FEINSTEIN, California             Member
SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
ALEX PADILLA, California             TOM COTTON, Arkansas
JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                     THOM TILLIS, North Carolina
                                     MARSHA BLACKBURN, Tennessee
             Joseph Zogby, Chief Counsel and Staff Director
      Kolan L. Davis, Republican Chief Counsel and Staff Director

        .........................................................

 SUBCOMMITTEE ON FEDERAL COURTS, OVERSIGHT, AGENCY ACTION AND FEDERAL 
                                 RIGHTS

                SHELDON WHITEHOUSE, Rhode Island, Chair
PATRICK J. LEAHY, Vermont            JOHN KENNEDY, Louisiana, Ranking 
MAZIE K. HIRONO, Hawaii                  Member
CORY A. BOOKER, New Jersey           LINDSEY O. GRAHAM, South Carolina
ALEX PADILLA, California             MICHAEL S. LEE, Utah
JON OSSOFF, Georgia                  TED CRUZ, Texas
                                      BEN SASSE, Nebraska
                                     THOM TILLIS, North Carolina

                  Alex Aronson, Majority Staff Counsel
                 Andrew Harding, Minority Staff Counsel
                            C O N T E N T S

                              ----------                              

                       AUGUST 3, 2021, 2:34 P.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode 
  Island.........................................................     1
Kennedy, Hon. John, a U.S. Senator from the State of Louisiana...     3

                               WITNESSES

Witness List.....................................................    25
Mascott, Jennifer, assistant professor, George Mason University, 
  Arlington, Virginia............................................     9
    prepared statement...........................................    26
Rozell, Mark, dean, George Mason University, Arlington, Virginia.     7
    prepared statement...........................................    45
Shaub, Jonathan, assistant professor, University of Kentucky, 
  Lexington, Kentucky............................................     5
    prepared statement...........................................    65
Shaw, Kate, professor, Benjamin N. Cardozo School of Law, New 
  York, New York.................................................     3
    prepared statement...........................................    77


                    BREAKING THE LOGJAM: PRINCIPLES



                     AND PRACTICE OF CONGRESSIONAL



                   OVERSIGHT AND EXECUTIVE PRIVILEGE

                              ----------                              


                        TUESDAY, AUGUST 3, 2021

                              United States Senate,
                 Subcommittee on Federal Courts, Oversight,
                         Agency Action, and Federal Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:34 p.m., 
Room 226, Dirksen Senate Office Building, Hon. Sheldon 
Whitehouse, Chair of the Subcommittee, presiding.
    Present: Senators Whitehouse [presiding], Hirono, Booker, 
Ossoff, and Kennedy.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,

         A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Chair Whitehouse. Let me call this hearing of the Courts 
Subcommittee of the Senate Judiciary Committee to order and 
express my appreciation to the four outstanding witnesses who 
are here and to my distinguished colleague, Senator Kennedy of 
Louisiana, who has been very helpful in this hearing. I will 
open with a statement and some introductions of the witnesses 
and then turn to Senator Kennedy for his statement, if that's 
all right.
    I wanted to hold this hearing to help us rebuild the 
process and the substance of executive privilege 
determinations. I find there is a long-standing foundation for 
us working together to reclaim. One block in that foundation is 
Ronald Reagan's Presidential memorandum on executive privilege. 
Other blocks come from court decisions, negotiated compromises, 
and published legislative and executive memoranda.
    There are three lessons that I hope we can all agree on. 
The first is that there is much consensus about the substance 
of executive privilege. It's pretty well agreed that, A, it 
exists; B, it is not absolute but yields to other, competing 
interests; and, C, it must balance the public value of 
transparency against the need for confidentiality around 
certain Presidential decision-making. It's also pretty well 
agreed that some compulsory process is essential to support the 
also essential legislative power of inquiry, what Woodrow 
Wilson called ``vigilant oversight of administration.''
    The second lesson is that there is an established process 
for resolving conflicts. Under the Reagan memo, the executive 
agency first flags a substantial question of privilege, which 
then goes to DOJ's Office of Legal Counsel to coordinate with 
White House counsel. If they agree, it then goes to the 
President to assert the privilege.
    The ground rules are that the assertion is only made in 
compelling circumstances, after careful review, and that it 
disappears altogether as to Government misconduct, and that it 
can be waived. The branches work together in an, what's called, 
accommodations process, sometimes with the help of a court, to 
resolve conflicts.
    The third lesson is that good faith, what CRS called a 
``flexible and cooperative approach'' and what one court called 
a ``spirit of dynamic compromise,'' is needed to make all this 
work. OLC needs to be an honest ombudsman. Absent good faith, 
it becomes ``a process of intransigence and delay ending in 
stalemate,'' as one observer noted.
    I thank Senator Kennedy for his bipartisan approach to this 
hearing, which I hope enables us to reclaim this long-standing 
substance and process for executive privilege assertions. For 
those circumstances where intransigence emerges around 
executive privilege assertions, I hope we can work toward a 
bipartisan law allowing expedited consideration by courts.
    It is often enough for a court to remind the parties of 
basic executive privilege guardrails to reset the 
accommodations process and help the parties achieve resolution. 
The mere availability of rapid judicial response neuters the 
advantage of delay tactics, so this need not become a recurring 
burden for courts. The D.C. Circuit has told us we need to pass 
a law to get courts involved, so let's get to work: first, 
agreeing on and repairing the foundation, and second, solving 
the impasse dilemma.
    Senator Kennedy is an extremely able and savvy lawyer. We 
have a common interest as legislators in assuring a healthy 
process for policing executive privilege assertions. We have 
considerable foundation to build upon, and that gives me 
optimism that a solution can be achieved that will enjoy broad 
support.
    To help us achieve this solution, we have Professor Kate 
Shaw, professor of law at the Benjamin N. Cardozo School of 
Law. She's written extensively about Presidential powers, and 
her scholarly writing has appeared, among other places, in the 
Columbia Law Review, the Cornell Law Review, and the 
Northwestern University Law Review, and her popular writing in 
The New York Times, The Washington Post, and The Atlantic. She 
served as an associate counsel in the White House Counsel's 
Office, so she knows this space, and she clerked for Justice 
John Paul Stevens and Judge Richard Posner.
    Professor Jonathan David Shaub is an assistant professor at 
the University of Kentucky, J. David Rosenberg School of Law. 
His research focuses on Presidential power and congressional 
oversight, which is very appropriate and germane, and has been 
published in the Duke Law Journal and Harvard Journal on 
Legislation, among other places. He's a contributing editor for 
the Lawfare blog and previously served in the Office of Legal 
Counsel, giving him, also, practical experience, and then 
afterwards as assistant solicitor general for the State of 
Tennessee. He clerked for the Fourth Circuit and served as a 
Bristow Fellow in the U.S. Solicitor General's Office.
    Professor Mascott--I'm jumping the queue, here--is 
assistant professor of law and co-executive director of the C. 
Boyden Gray Center for the Study of Administra--State at the 
Antonin Scalia Law School of George Mason University. Let me 
put quotation marks around ``Administrative State,'' for my own 
editorial intervention. She previously also served within the 
Department of Justice in the Office of Legal Counsel and as an 
Associate Deputy Attorney General.
    Finally, Mark Rozell is the dean of the Schar School of 
Policy and Government at George Mason University, where he 
holds the Ruth and John Hazel faculty chair in public policy, 
and is the author of the book ``Executive Privilege: 
Presidential Power, Secrecy, and Accountability.''
    Thank you for your willingness to help us work through 
these issues and find common cause going forward, and I turn it 
over now to my colleague and friend, our Ranking Member, 
Senator Kennedy.

            OPENING STATEMENT OF HON. JOHN KENNEDY,

           A U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Kennedy. Thank you, Mr. Chairman. Our Chairman has 
raised some very interesting questions on a subject that I 
think we're all interested in. I came today to try to learn. 
Based on the credentials of this panel, I think I'll learn a 
lot. I want to thank you for coming. I'm going to stay as long 
as I possibly can.
    Please tell us what we need to hear. Tell us what's 
working, but I'd also like to know what's not working, and what 
you think we should do to fix it. Again, thanks to our Chair.
    Chair Whitehouse. Let me thank Senator Hirono for joining 
us and recognize that she is present, and invite the witnesses 
to give their statements for five minutes apiece, if you don't 
mind. Professor Shaw.

               STATEMENT OF KATE SHAW, PROFESSOR,

               BENJAMIN N. CARDOZO SCHOOL OF LAW,

             YESHIVA UNIVERSITY, NEW YORK, NEW YORK

    Professor Shaw. Great. Chairman Whitehouse, Ranking Member 
Kennedy, and distinguished Members of the Subcommittee, thank 
you for the invitation to testify today. My name is Kate Shaw. 
I am a professor at Cardozo Law School, and as the Chairman 
said, before I began teaching, I served as a lawyer in the 
White House Counsel's Office from 2009 to 2011. I understand 
that the purpose of today's hearing is to evaluate the current 
process for resolving conflicts between executive privilege and 
congressional oversight.
    I will start by saying that my view, as a scholar and a 
former White House lawyer who believes both in a 
constitutionally grounded executive privilege and in the 
importance of robust congressional oversight, is that the 
current process is very much in need of reform. In recent 
years, long-standing norms of interbranch cooperation and 
accommodation have largely broken down, and Congress has been 
denied meaningful access to much executive branch information. 
This development is a worrying one from the perspective of 
executive branch accountability and general separation of 
powers principles.
    My written testimony provides background on executive 
privilege, both generally and in the context of congressional 
oversight, so in the interest of time, I'll just say that the 
judicial authority in this area forms the backdrop against 
which disputes between the political branches play out. On the 
substance, it is relatively favorable to Congress, but in every 
major recent dispute that has ended up in court, the judicial 
opinion has come too late to have much impact at all.
    As important as the caselaw is, equally or more important 
is the authority from the political branches, in particular the 
numerous written opinions and directives from Presidents and 
senior DOJ officials that have guided the executive branch's 
approach to these issues for many years.
    Taken together, these documents reflect a strong vision of 
executive privilege, a power which the executive branch 
understands to have constitutional foundations, to keep certain 
information confidential, but they also reflect a recognition 
of Congress's authority to access some executive branch 
information. Guided by the need to respect these two competing 
principles, the executive branch has, in countless inquiries 
over the years, worked with Congress to grant some information 
access while withholding documents the executive branch 
believes warrant protection in keeping with the basic purposes 
of executive privilege.
    In the view of the executive branch, those purposes are 
largely, though not exclusively, about protecting the 
President's decisional processes. As the Supreme Court 
explained in United States v. Nixon, a President and those who 
assist him must be free to explore alternatives in the process 
of shaping policies and making decisions and to do so in a way 
many would be unwilling to express except privately. This 
cooperative give-and-take has largely broken down in recent 
years. I will highlight just a few developments and then 
briefly touch on several possible reforms.
    The first novel development is the emergence of protective 
or prophylactic assertions or mere suggestions of executive 
privilege, whereby witnesses appear to testify but refuse to 
answer specific questions on the grounds that the President 
might later assert executive privilege or where executive 
branch officials refuse to provide any documents or testimony 
on the grounds that some of what is sought might later be 
subject to a privilege assertion.
    The second, related, development is the outright refusal to 
cooperate in any way in particular investigations. The third is 
rooted in long-standing executive branch positions that close 
Presidential advisors enjoy absolute immunity from compelled 
testimony, but the most recent administration took an 
exceptionally broad view of that immunity.
    Briefly, what reforms would I recommend? First, internal 
executive branch reforms. The executive branch's increasing 
tendency to invoke just broad and undifferentiated 
confidentiality interests should yield to a requirement that 
assertions of executive privilege be made only upon a detailed 
description of the specific executive branch interest that 
would be threatened by the production of documents or 
testimony.
    Second, the executive branch could refine and formalize its 
approach to documents or testimony that contain evidence of 
wrongdoing or misconduct. Lawyers within the executive branch 
have generally adhered to a strong norm in which documents or 
testimony that would reveal wrongdoing are not viewed as 
candidates for an assertion of the executive privilege, but 
it's not clear that that principle has held, in recent years, 
so the practice needs to be strengthened and perhaps 
formalized.
    Since I'm running out of time, I'll touch briefly on two 
more matters. One, congressional practice. It's important that 
congressional committees engaging in oversight work to ensure 
that their requests for information or testimony are reasonable 
and not overbroad. In addition, committees should work to 
minimize the extent to which their requests duplicate or 
overlap other requests.
    The executive branch, as those of us on this panel who have 
worked there know well, is actually pretty leanly staffed, in 
particular the Office of Legal Counsel, so requests that seek 
enormous volumes of documents that require time-consuming 
review by lawyers are unrealistic and, frankly, unreasonable.
    Finally, as the Chairman alluded to in his opening, on 
courts, my view is that it would be better for most or all of 
these disputes to be resolved out of court, but if they are 
going to be resolved in court, it would be well advised to 
consider legislation that would expedite judicial resolution. I 
see my time has expired. Thank you so much for the invitation, 
and I look forward to your questions.
    [The prepared statement of Professor Shaw appears as a 
submission for the record.]
    Chair Whitehouse. Thank you, Professor Shaw. Professor 
Shaub.

             STATEMENT OF JONATHAN SHAUB, ASSISTANT

          PROFESSOR, J. DAVID ROSENBERG SCHOOL OF LAW,

          UNIVERSITY OF KENTUCKY, LEXINGTON, KENTUCKY

    Professor Shaub. Chairman Whitehouse, Ranking Member 
Kennedy, and distinguished Members of the Committee, thank you 
for the invitation to appear and talk about two subjects dear 
to my heart: congressional oversight and executive privilege. I 
am honored to be part of this esteemed panel and look forward 
to the discussion.
    Congress's authority to conduct oversight and the executive 
branch's authority to withhold information are both implicit 
constitutional authorities. Neither appears in the text of the 
Constitution. Accordingly, the scope of executive privilege has 
been, as you know, the subject of considerable controversy and 
dispute.
    In individual oversight disputes, this constitutional 
ambiguity has historically been resolved outside the courts, 
through negotiation and compromise. Known as the accommodation 
process, the back-and-forth negotiation between Congress and 
the executive branch over access to information has been called 
a dance, because it's a flexible, ever-evolving process 
governed as much by normative and historical practice, as well 
as current politics, as by legal principles.
    Normative practice fades easily in the context of the 
intense partisan battles that have lately come to characterize 
oversight, and in such disputes, the executive branch's views 
ultimately govern, because the executive branch holds the 
information.
    As later Chief Justice William Rehnquist explained when he 
was the head of OLC, the executive branch has a head start in 
any controversy with the legislative branch, since the 
legislative branch wants something the executive branch has, 
and therefore the initiative lies with the former. All the 
executive has to do is maintain the status quo, and he 
prevails. Given that head start and the lack of applicable 
judicial authority, the executive branch's internal 
constitutional doctrine is the primary source of legal 
authority that governs its responses to congressional 
oversight.
    In my view, that comprehensive doctrine, put into practice, 
has led over time to an imbalance in congressional oversight. 
By relying on its view of executive privilege as well as a 
series of prophylactic doctrines deemed constitutionally 
necessary to protect executive privilege, the executive branch 
now has the tools to stymie any congressional oversight it so 
chooses. Understanding this internal executive branch doctrine 
is vital to understanding the state of the oversight.
    My written testimony describes these principles in detail, 
principles that I helped to put into practice while I was 
working at OLC. I have since studied and written about these 
principles and their historical development. Although often 
unstated, these constitutional principles inform almost every 
aspect of the accommodation process that occurs between the 
branches today.
    Scholars and commentators have called on Congress to act 
aggressively and urged it to deploy various constitutional 
tools to attempt to rectify the current imbalance and force the 
executive branch's hand. My view, however, is that none of 
Congress's current tools are effective if the executive branch 
decides to play constitutional hardball, which it has done with 
increasing frequency. In short, in current practice, the 
executive branch has essentially unchecked authority to 
withhold any piece of information it chooses from Congress.
    I would like to note at the outset that I believe this 
fundamental disagreement between the branches that has led to 
the current imbalance is an institutional disagreement, not 
necessarily a partisan one, although oversight disputes often 
become embroiled in partisan politics. Oversight related to the 
Operation Fast and Furious during the Obama administration or 
the Mueller Report during the Trump administration are two 
recent examples. The foundations of the doctrine on which the 
executive branch relies to withhold information and testimony 
are bipartisan, both in their creation and their execution.
    That is not to say that all oversight disputes are created 
equally. Some Presidential claims of privilege or related 
doctrines such as immunity are more extreme and have 
substantially less historical support than others and, as a 
result, warrant criticism and controversy, but they share a 
common wellspring, a comprehensive constitutional doctrine 
developed almost wholly within the executive branch, that 
elevates the executive branch's institutional interests over 
Congress's.
    I do not suggest that this doctrine has been developed in 
bad faith, and few would argue with the proposition that the 
executive branch has real confidentiality interests that 
warrant consideration, but these internal constitutional tenets 
equip executive branch actors with powerful weapons that are 
difficult to resist deploying during these disputes.
    Whether this current imbalance is a problem in need of 
reform or an appropriate mechanism for protecting executive 
branch confidentiality interests is a matter of debate, of 
course, but if reform is the goal, my view is that the 
necessary first step in rebalancing the branches' respective 
authorities is judicial resolution of the fundamental 
constitutional oversight questions at the heart of the 
disagreement between the branches.
    Judicial resolution of individual disputes has proven 
ineffective, due to the length of time necessary and the 
appeals, but judicial consideration and resolution of 
antecedent constitutional questions has proven vital and 
necessary in the past, when claims of absolute constitutional 
authority have inhibited the resolution of interbranch 
disputes.
    Precedential appellate decisions on these issues have 
proven elusive, and Congress has at times chosen not to pursue 
its institutional interests in seeking such precedent. If 
reform is the goal, congressional action should be directed to 
legislation that increases the likelihood and the availability 
of a judicial decision on the merits of executive privilege. 
Thank you.
    [The prepared statement of Professor Shaub appears as a 
submission for the record.]
    Chair Whitehouse. Thank you, Professor. Mr. Rozell.

                STATEMENT OF MARK ROZELL, DEAN,

             SCHAR SCHOOL OF POLICY AND GOVERNMENT,

          GEORGE MASON UNIVERSITY, ARLINGTON, VIRGINIA

    Mr. Rozell. Ranking Member Kennedy and Senator Hirono, 
thank you for the invitation to testify. I have submitted for 
the record a detailed version of my testimony that is based on 
my past and ongoing research on executive privilege and, here, 
would like to focus on the accommodation process.
    Among scholars, there is very little debate about the 
legitimacy of executive privilege, as a principle. As this 
doctrine is well established in practice and in law, the focus 
of academic debates is the scope and limits of this power.
    It is widely recognized that Presidents have occasional 
secrecy needs, and that the right to withhold information and 
testimony from those with compulsory power also is not 
absolute, and that the power to compel disclosure, excuse me, 
is not absolute. Like other constitutionally based powers, any 
claim of executive privilege is subject to a balancing test. 
Presidents and their advisors may require confidentiality, but 
Congress needs access to information from the executive branch 
to carry out its lawmaking, oversight, and investigative 
functions.
    Not all Presidents have exercised executive privilege 
judiciously. Some have used it to cover up embarrassing or 
politically inconvenient information or even outright 
wrongdoing. As with all other grants of authority, the power to 
do good things is also the power to do bad things. The only way 
to avoid the latter is to strip away the authority altogether 
and thereby eliminate the ability to do the former.
    Permanently constraining this executive power because of 
the actions of any current or former President would not, in my 
view, serve the national interest. At various times there have 
been calls for legislative or judicial imposed restrictions on 
executive privilege, and here I disagree. It is impossible to 
determine in advance all the circumstances under which 
Presidents may have to exercise that power.
    The resolution to executive privilege disputes is found, I 
believe, in the political ebb and flow of the separation of 
powers, not in the courts defining in advance the guardrails. 
Congress already has the institutional capability to challenge 
claims of executive privilege by means other than attaching 
statutory restrictions on the exercise of that power. For 
example, Congress may withhold support for the President's 
agenda or for the President's nominees for executive branch and 
judicial positions.
    In one case during the Nixon years, the Senate Judiciary 
Committee threatened not to confirm a Cabinet nominee until the 
President dropped an executive privilege claim to prevent a 
White House staff member from testifying. Senator Sam Ervin 
even threatened to filibuster the nomination if it cleared the 
Senate. The Senate's pressure resulted in President Nixon 
withdrawing his privilege claim and allowing the White House 
aide to testify in person and to answer additional written 
questions from the Committee.
    Similarly, Members of the Senate Judiciary Committee in 
1986 threatened not to confirm the nomination of William 
Rehnquist as Chief Justice of the U.S. Supreme Court until 
President Reagan dropped an executive privilege claim over 
documents from Rehnquist's tenure in the Department of Justice. 
Here a bipartisan majority of the Committee supported a 
subpoena of key documents, leading to the President eventually 
compromising and agreeing to allow the Committee to access the 
selected categories of documents.
    If information can be withheld only for the most compelling 
reasons, it is reasonable for Congress to try to force the 
President's hand by making him weigh the importance of 
withholding the information against that of moving forward a 
nomination or a piece of legislation. Presumably, information 
being withheld for purposes of vital national security or 
constitutional concerns would take precedence for the President 
over pending legislation or a pending appointment. If not, then 
there appears to be little justification in the first place for 
withholding the information.
    Congress has many other tools, as well. Control over the 
Government's purse strings, the threat of cutting agency staff 
and funding, is a powerful tool, for sure. In addition, 
Congress has successfully used the subpoena power and contempt 
of Congress charge to compel the release of information. I cite 
numerous examples in my research where that has been very 
successful.
    In an ideal world, all such issues would be resolved on the 
objective merits of the positions of the executive and the 
legislative branches. In reality, political considerations and 
public opinion play important, often determinative, roles, as 
in most other interbranch disputes and negotiations. Again, I 
bring forth some examples to illustrate where that has worked 
in the past and where political considerations have been key in 
many of those cases.
    I believe Congress has the responsibility to consider the 
President's reasoning for an executive privilege claim. There 
are occasions when, after doing so, Congress has either given 
deference to the President's position or decided that the 
stakes involved were not worth an interbranch fight.
    The vast majority of cases in history verifies this point. 
It can be expected that the President will comply with requests 
for information, rather than withstand retaliation from 
Congress. History is replete with many such examples. If 
Members of Congress believe that a particular exercise of 
privilege poses a threat to the constitutional balance of 
power, the answer resides not in crippling Presidential 
authority, but exercising to full effect the vast array of 
tools at Congress's disposal. Thank you.
    [The prepared statement of Mr. Shaub appears as a 
submission for the record.]
    Chair Whitehouse. Thanks very much. Professor Mascott.

            STATEMENT OF JENNIFER MASCOTT, ASSISTANT

          PROFESSOR, ANTONIN SCALIA LAW SCHOOL, GEORGE

             MASON UNIVERSITY, ARLINGTON, VIRGINIA

    Professor Mascott. Chairman Whitehouse, Ranking Member 
Kennedy, and Members of the Subcommittee, good afternoon. 
Thanks for the invitation to appear today. Today I'll build on 
my prepared testimony by briefly unpacking the constitutional 
principles and history related to oversight and privilege, 
discussing practice across administrations, and addressing the 
path forward for Congress if it seeks more control over the 
substance of executive branch authority.
    First, is there a constitutional problem with executive and 
legislative disagreement over information disclosure? Are there 
roadblocks that need addressing, and if so, what are their 
scope?
    The constitutional system is designed to embody divided 
Government, both the vertical division between State and 
Federal Government and the horizontal division among the three 
Federal branches. Two of the branches, the political branches, 
have their own independent constituencies. In contrast to the 
judiciary, the executive and legislature are directly 
accountable back to the American people, and these two branches 
therefore have a natural rivalry. They favor distinct 
institutional interests by design.
    Paraphrasing the well-known Federalist Paper Number 51, the 
constitutional framers contrived the interior structure of the 
Federal Government so that its several parts, through their 
mutual and careful interactions, would be the means of keeping 
each other in their proper places. Divided Federal Government, 
at times inefficient Government that's slow and deliberate, has 
always been a key safeguard for individual rights. When the 
executive and Congress disagree over information disclosure, 
it's not surprising. In a sense, those disagreements stem from 
a mutual and constitutionally intended interbranch back-and-
forth.
    That said, all three branches have acknowledged that 
intractable conflict should be avoided wherever possible, and 
formal executive branch policy for decades has been to disclose 
as much as possible when Congress requests information related 
to its constitutional functions.
    The Supreme Court's repeatedly observed the congressional 
power to pose inquiries is broad and indispensable, but the 
courts also specify that information requests must be related 
to and in furtherance of a legitimate task. Therefore, analysis 
of executive branch disclosure should start with the threshold 
jurisdictional question of whether an information request is 
incident to one of Congress's enumerated powers.
    In other words, is the request tailored to achieve a 
legitimate legislative purpose? Only then would any potential 
privilege claim come into play. The Constitution does not 
expressly discuss executive privilege or expressly grant any 
power of oversight or investigation, but modern doctrine 
grounds executive privilege in the constitutional need for 
executive branch confidentiality and candor in advice-giving, 
and each branch has a measure of sovereignty over its 
deliberations and use of information to carry out its 
functions, such as the critical executive role in national 
security and foreign affairs.
    That said, as a practical matter, the executive branch 
often provides extensive information without asserting 
privilege, and in disputes, executive and legislative officials 
often resolve differences through the accommodation process, 
which has existed in some form since the first Presidential 
administration.
    For example, after George Washington's objection to a House 
committee request in 1792, the House narrowed the request. A 
few years later, Thomas Jefferson provided just a limited set 
of documents and summary of relevant events when Congress 
requested comprehensive records related to a possible 
conspiracy involving foreign affairs.
    Accommodation can involve negotiations over the scope of 
disclosure but also its form, with the executive branch 
sometimes providing access to documents for a limited time 
period, for in camera review, or through the provision of 
summaries of requested documents. There have been suggestions 
that recently the practice of executive privilege has 
significantly expanded, but I think, in contrast, practice over 
multiple administrations has been by and large remarkably 
consistent.
    In 1982, the Department of Justice catalogued more than 60 
instances, spanning 27 administrations, in which presidents had 
claimed executive privilege. Protective privilege assertions 
are not new, and past administrations of both political parties 
have asserted absolute testimonial immunity for certain senior 
Presidential advisors. Then, if Congress wants to assert its 
own institutional interest in exerting control over the 
substance of executive administration of law, what is the path 
forward?
    As some of my colleagues have suggested, Congress could 
pose narrower initial information requests, making even clearer 
on the face of requests their constitutional objective. 
Congress can exert control through appropriations or its role 
in consenting to nominations. Congress also could legislatively 
impose new affirmative reporting requirements, seeking data for 
potential legislation, which would relieve pressure on targeted 
oversight requests once controversy's already arisen.
    Most fundamentally, Congress can alter its balance of power 
of the executive by more vigorously enacting specific 
substantive policy instructions on the front end through 
legislation. In addition to the use of oversight as a tool 
toward legislation, Congress has the power to directly alter 
the policy itself. Congressional action will have the most bite 
when it legislatively cabins executive discretion and 
policymaking before that action ever takes place. Thank you.
    [The prepared statement of Professor Mascott appears as a 
submission for the record.]
    Chair Whitehouse. Thank you very much. This has been a 
great panel. I carefully read each of the full testimoneys that 
you all filed, and the first thing I was struck by is how much 
overlap there is amongst what you all had to say.
    In particular, I just want to make sure that I'm correct on 
this, it seems to me that each one of you agrees that we should 
do something, that the present status quo, just left to its own 
devices, would be suboptimal, and that there are good steps 
that we could take to improve the engagement between the 
executive and legislative branches on discovery and privilege. 
Is that correct? Professor Shaw is saying yes; Professor Shaub, 
yes. Mr. Rozell? Limited, but yes.
    Mr. Rozell. Yes.
    Chair Whitehouse. This is not an idle effort of ours.
    Mr. Rozell. It's not an idle effort.
    Chair Whitehouse. Professor Mascott.
    Professor Mascott. Yes, but I would address it more through 
legislative on the front end, rather than----
    Chair Whitehouse. Understood.
    Professor Mascott [continuing]. The oversight process.
    Chair Whitehouse. I think there's also pretty broad 
agreement that there's a broad, common, well-established 
understanding of the law of executive privilege. There are, of 
course, concerns around the margins, but this is not an 
undeveloped area of law nor one in which there is some massive 
conflict between one school and another. We actually have a 
pretty good substantive foundation to proceed from. Is that 
also commonly agreed? Professor Shaw is yes.
    Professor Shaub. I'm not sure. I mean, I think there are 
really fundamental disagreements between what Congress views as 
executive privilege and what the executive branch--I mean, the 
amount of information that Congress views as protected by 
executive privilege is limited to Presidential communications, 
and the executive branch has a number of components, and----
    Chair Whitehouse. Yes.
    Professor Shaub [continuing]. So I think there's a pretty 
wide disparity----
    Chair Whitehouse. There're some wide definitional questions 
in there.
    Professor Shaub. Yes.
    Chair Whitehouse. Got it. Understood. Mr. Rozell.
    Mr. Rozell. Yes. I agree. Even among scholars, although 
there is widespread agreement about the legitimacy of the 
principle of executive privilege, not everybody agrees on 
exactly what the scope and limits of that power is.
    Chair Whitehouse. Yes. Professor Mascott.
    Professor Mascott. Yes. I think historically the practice 
has been pretty consistent, yes.
    Chair Whitehouse. The actual procedure that one is expected 
to go through in a conflict over the production of information 
from the legislative branch seems to me to have been pretty 
well established by the Reagan memo, and I don't know that 
there's any different--there may be people who have not 
complied with the Reagan memo, but it seems to me that that is 
the process foundation for us to begin our work in this 
Committee. Would you agree with that?
    Professor Shaw. Yes. I mean, I think that's right, that 
there's been pretty broad bipartisan adherence to that general 
kind of flow between the branches, although, as I said in my 
opening, I think that their compliance with those general 
procedures was lacking in recent years.
    Chair Whitehouse. Yes, we've seen some real breakdowns 
recently, and that's why we're having this hearing, to try to 
see if we can find a way to steer through those breakdowns. One 
of the things that seems to be very important in this is OLC's 
role as an honest ombudsman, to help kind of be a bit of an 
honest broker for the executive branch with Congress. Is that 
important, and is that enforceable? If we could write something 
that said, ``The OLC shall be an honest ombudsman,'' would that 
be enough? Professor Shaw?
    Professor Shaw. You know, I'm not sure what it would do, 
quite honestly. I think that every administration has taken 
seriously----
    Chair Whitehouse. Let me put it a different way. Does the 
Reagan memo contemplate OLC having something of an ombudsman 
role?
    Professor Shaw. Yes, I think so. I think that every 
subsequent OLC has understood itself to have that role, but I 
think, just as Professor Shaub suggested, the contours of the 
privilege and the obligations of each administration, as 
understood by each Office of Legal Counsel, you know, sort of 
has shifted to some degree. I think OLC understands itself to 
serve that role. The larger executive branch understands OLC to 
serve that role. I mean, I think it's a question maybe for the 
Committee, how well OLC has discharged its obligations, but----
    Chair Whitehouse. Of course, whatever they do, Congress has 
very little to say about, so it's unenforceable if they should 
depart from their role as an honest ombudsman. That takes us to 
the general importance of good faith, in this process, which I 
think everybody concedes is essential to its succeeding. One, 
two, three, four, yes.
    Then what happens if good faith breaks down? That's where 
we get to where it gets interesting, to me, anyway, and what 
judicial process should look like. I'm a recovered lawyer, and 
I recall in cases where you had two contesting parties, in a 
big case where they were really fighting with each other, and 
the way in which the court would handle that would be either to 
have the judge or the magistrate judge schedule status 
conferences and give, every 30 days or 60 days, the lawyers a 
chance to come in, yell at each other in front of the 
magistrate, explain why they're being treated unfairly, and 
have the magistrate judge say, ``Look, I'm not making a ruling 
on this, but if this were to go to a ruling, you, sir, have a 
terrible argument, and you really look like you're going to 
win. So, you know, take that as a guidance, and I'll see you in 
30 days.'' Things would, you know, tick along pretty well, and 
you end up cutting through a lot of the nonsense without having 
to wait through full decision and appeal.
    Do you think the status conference procedural mechanism, 
that kind of--some kind of more constant but less final 
judicial intervention might be appropriate? If that's too much 
to ask you in the time that I have, please take that as a 
question for the record, mull on it, bring your experience and 
expertise to bear, and give me an answer for what the judicial 
approval might look at.
    Senator Kennedy. I'd like to hear their answers.
    Chair Whitehouse. All right. Let's--we'll keep rolling, 
then, with the permission of the Ranking Member. Who wants to 
jump in on that? Professor Mascott, I see you reaching for your 
button.
    Professor Mascott. Thank you. I mean, I guess if the 
question is just generally judicial involvement, I mean, just 
as--stepping back for a second, I mean, we've got the 
President's Supreme Court reform commission going on right now. 
I mean, it seems as though there are folks on all sides who 
have concerns about the amount of power that the judiciary has 
within the system. So it does seem curious that we would turn 
to the judiciary at this point to try to solve----
    Chair Whitehouse. Well----
    Professor Mascott [continuing]. This particular problem. 
Also, you know, concerns--I mean, folks on both sides 
complaining about, you know, the role in sort of emergency 
proceedings. I mean, for there to be something done in a timely 
fashion, are we going to have more process on kind of the 
emergency docket? It just seems like an awful lot of power to 
give to the apolitical branch, and the Court itself, I think, 
would be resistant to it, because in 2020, in the Mazars 
decision, it noted it had never before weighed in on an 
oversight decision.
    I guess I just sort of step back and say, generally, it 
seems to me that the political process is working fairly well 
in this area and is sort of functioning as it's supposed to, 
which sometimes is just going to have conflict but often has--
--
    Chair Whitehouse. Let me tell you where I disagree with 
you, to----
    Professor Mascott. Yes, Senator.
    Chair Whitehouse [continuing]. React.
    Professor Mascott. Okay.
    Chair Whitehouse. That is, to Mr. Rozell's point about the 
political forces being brought to bear by Congress to push for 
a resolution, that's not something one Senator does. That's 
something the entire body has to do.
    I will assert to you all that there are innumerable 
inquiries that are made for information from the executive 
branch that never rise to that level of--what did Professor 
Rozell say? Where the stakes are worth the fight of going up.
    I do think that even if the stakes aren't worth the fight 
of getting an entire house of Congress engaged in trying to get 
information to a Committee or a Subcommittee or to a Senator, 
there's still public value in a Senator having someplace to go, 
or a House Member or a Subcommittee. That's where I think some 
judicial intervention that is carefully limited so that it's 
really kind of like a--more like a status conference--anyway, 
I've said enough. We can continue the conversation. I'm turning 
to Professor Kennedy.
    I get forgotten, I guess, is my personal thing. I get 
forgotten, if it takes the Speaker of the House or the Senate 
Majority Leader for me to get an answer, and there are dozens 
of Senators like me whose concerns with not getting information 
are simply never going to rise to that level. Sorry, John.
    Senator Kennedy. No, no. Very valid point. I mean, it has 
gotten worse. I don't know whether the abuse of executive 
privilege tracks exactly the increase in partisanship in our 
country, but I bet it's close. I mean, it seems to me, and you 
folks would know better than I would but--because you've 
studied it, but inevitably there is going to be some friction, 
and there should be some friction. I don't think our objective 
ought to be to make a good faith cat love a good faith dog. 
They're not supposed to, under our separation of powers.
    There's been a lot of bad faith, and I don't know whether 
the answer is to codify the so-called Reagan memorandum. You 
can't--I mean, you can say to OLC, ``Be a neutral arbiter,'' 
but, you know, we live in a real world. I don't see any way to 
get a quick resolution without involving the judiciary. I just 
don't, as a practical matter. Should we have to? No. We don't 
live in a perfect world. I think that if you did have some sort 
of mechanism to get the judiciary involved, you would have a 
lot of people in both the legislative branch and the executive 
branch have an epiphany, and say, ``You know, maybe we ought to 
try to work these things out on our own.''
    I guess my question is, let's assume for a second we--and I 
could be wrong. Okay? You could convince me that, as the 
professor said, maybe the worst thing we could do would be to 
involve the judiciary. My mind is open. Let's assume at some 
point we do have to involve the judiciary. How would you design 
that? It would have to be quick, and it would have to be 
accessible. You shouldn't have to get the Majority Leader or 
the Minority Leader's permission or the Speaker's permission. 
For the BIPs like me, ``Barely Important Persons,'' I'd like to 
be able to have access to do it, too. But tell me how you'd 
design it, Professor Shaw.
    Professor Shaw. Maybe I'll say, in general, that there may 
be a way between the sort of two paths that we are outlining, 
one of which is essentially to cede final authority over the 
resolution of these disputes to the judiciary, and the other of 
which is to say the political branches just need to work it out 
on their own. Maybe a middle path is to design an expedited 
judicial resolution procedure that is rarely invoked because 
its very existence forces everyone to the table to actually 
resolve these disputes, so maybe it occasionally is invoked, 
but it is not----
    Senator Kennedy. Don't you think you'd have to invoke it a 
couple of times before people----
    Professor Shaw. Sure. Hopefully that would be enough, and 
then you wouldn't----
    Senator Kennedy. Sure.
    Professor Shaw. Sorry to interrupt, Senator. But----
    Senator Kennedy. Yes.
    Professor Shaw [continuing]. Yes, so that, maybe, you do a 
couple of times, and then it is clear there will be, you know, 
consequences for failure to negotiate in good faith and to 
reach reasonable accommodations. I suppose it would just be--
now, whether a Committee, a Chair and a Ranking Member 
together, or a single Member of a Committee--I guess I haven't 
thought carefully enough about who could initiate the process, 
to speak really definitively about it here, but that would 
require, you know, an expedited resolution, potentially the 
chairman's suggestion of, you know, 30-day status conferences 
until something--some kind of resolution is reached. The fact 
of the process would serve a forcing mechanism.
    I mean, my general instinct is that the less judicial 
involvement, the better. I don't think either political branch 
should want to cede the ultimate authority over these important 
constitutional questions to the judiciary, and yet we do seem 
to be at a stalemate moment in which some third party may need 
to be pulled in.
    Senator Kennedy. I don't think the judiciary will like it, 
as Professor Mascott said, but----
    Mr. Rozell. I think that's right. Yes, I don't think the 
courts would want this role, quite frankly. Political matters 
should be solved between the political branches, and there is a 
long history of an accommodation process between the 
legislative and the executive, in which these disputes have 
been resolved by good faith negotiations and compromises, over 
time. So----
    Senator Kennedy. ``Over time'' is the key----
    Mr. Rozell. Right.
    Senator Kennedy [continuing]. Expression.
    Mr. Rozell. Over time is okay, I would say. I don't see why 
there should be a rush to move things forward, necessarily. 
Part of the separation of powers system means that things 
oftentimes have to move very deliberately----
    Senator Kennedy. Yes.
    Mr. Rozell [continuing]. And take their time, and that's 
quite natural to the process, and I don't think that there's 
anything wrong with that. I don't see the courts wanting to get 
involved in this. I worry about what it says about the nature 
of the process that some would believe that the courts need to 
step in and resolve what the legislative and executive can't do 
themselves.
    Chair Whitehouse. I guess because we start from the 
proposition that this doctrine has been developed by courts, 
and that's how we are. It's Marbury v. Madison, what the law 
is. Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman. I thought the role 
of the courts is to resolve constitutional disputes. We're here 
because it would be nice if, in situations where the executive 
evokes--invokes an executive privilege and the legislative 
branch disagrees, and so it would be nice if the accommodation 
process would indeed result in that way of resolving these 
kinds of conflict, but that's not what we've seen recently.
    We're here because, in those instances, there probably 
should be some sort of an expedited review process, because I 
recall the situation related to Don McGahn, where I think it 
took a year or something for the courts to tell us that he 
indeed should have to come to testify. I think that was the 
result.
    Professor Mascott has said that, you know, she cautions us 
from giving power to the apolitical branch. I mean, we can have 
a dispute about how apolitical the judiciary actually is, but 
let's assume that for the moment. So--but that's one of the 
reasons that maybe in these conflict situations, we want the 
apolitical branch to help us figure it out.
    I kind of like the idea of the Chairman's status conference 
situation. Those of us who have practiced law, we are familiar 
with the judge coming in, or magistrate, bringing the parties 
together and saying, ``Okay, you know, I've listened to both 
sides, and here's what you should do.''
    Professor Shaw, you indicate that maybe we should think 
about some sort of an expedited process. Could you elaborate on 
that a little bit more? For example, as a structural reform, 
what if we were to give exclusive original jurisdiction to 
challenge a subpoena to a three-judge district court panel in 
the District of Columbia, say, under 20 U.S.C. Sec.  2284, 
which states that a district court of three judges shall be 
convened when otherwise required by an act of Congress? We 
could do such an act. That would expedite the proceedings.
    Professor Shaw. I think that Congress clearly has the 
constitutional authority to provide for such a procedure, and 
presumably there would be, then, direct appeal to the U.S. 
Supreme Court. I mean, I do continue to think that, 
symbolically and practically, there is something troubling 
about the political branches appearing to signal the 
superiority on matters of constitutional, you know, debate and 
interpretation to the judiciary.
    Of course, you know, Marbury v. Madison does tell us that 
the courts will say what the law is, but I think that Congress 
and the executive branch have important roles in resolving 
disputed constitutional questions, as well. I worry that too 
much--ceding too much power to the courts is a troubling 
development from the perspective of broader separation of 
powers concerns or from the perspective of the kind of value of 
the separation of powers.
    If we assume that the bridge has been crossed, right, that 
from--basically, from the 1970's, the courts have been turned 
to as kind of arbiters of these disputes between Congress and 
the executive, and the question is just how better to design a 
judicial process so that we get to some final resolution that, 
again, serves as kind of an overhang, so that most of these 
disputes can be resolved outside of the courts. I think that, 
you know, a three-judge court mechanism with a mandatory appeal 
or a right of appeal to the Supreme Court is very much worth 
considering.
    I'm not sure if you would legislate or, you know, if you 
would sort of require a 30-day process in the legislation. I'm 
not aware of any three-judge court with such a procedure, but I 
don't, at least initially, see any constitutional problems with 
requiring some such process.
    If the bridge has been crossed, then I think that this is 
very much worth considering. I guess I would just raise a 
caution: are there--are there other mechanisms that should be 
considered in lieu of or in addition to focusing exclusively on 
the judiciary?
    Senator Hirono. Do you see a status conference kind of a 
situation as a prelude to something more, such as a three-judge 
panel?
    Professor Shaw. I mean, I think that you could do them 
both, right, that the--I don't--I think that the panel itself 
could conduct such conferences. I think, to be fair, the 
district courts that have already, you know, overseen 
litigation around some of the privilege and oversight disputes, 
you know, have been pretty active in trying to move the parties 
along. I'm not sure this would be something wildly novel; it 
would just potentially kind of formalize the role. I do think, 
to a degree, it is already happening.
    Senator Hirono. Professor Shaub, do you have a comment?
    Professor Shaub. Sure. Yes. I tend to take, I guess, more 
of a view that judicial intervention is necessary, at this 
point. I mean, so, if we look at the foundational cases that--
--
    Senator Kennedy. Could you say that again?
    Professor Shaub. Sorry. I take the view that I think 
judicial intervention is--has become necessary because of the 
place that we've arrived to as a matter of sort of 
constitutional law with the two branches, right? You can 
negotiate in good faith, but if each of your good faith bases 
from which you start are wildly different, then you're never 
going to reach any sort of middle ground.
    The way that executive privilege now is sort of practiced--
in the Obama and Trump administrations, combined, there were 
two formal assertions of executive privilege. That was it. 
Despite all the controversies and disputes, there were a couple 
of protective assertions, there were claims of immunity, but in 
terms of executive privilege itself, there were two formal 
assertions, and almost everything else occurred with these 
other doctrines that surround executive privilege and that give 
the executive branch sort of rationale to deny congressional 
oversight requests.
    Of course, Congress disputes those. Congress disputes that 
those exist, and they are the subject of controversy and 
scholarship written about them, but there's no way to sort of 
statutorily fight them, because the executive branch views them 
as constitutionally grounded principles. You can pass a law, 
and the executive branch says, ``That's an unconstitutional law 
that won't be followed.'' The same--the McGahn opinion, about 
former White House counsel, and other opinions say, ``Congress 
cannot exercise even inherent contempt, lawfully, because it 
would be unconstitutional given the executive branch's 
constitutional doctrine.''
    I think there is a sort of fundamental constitutional 
disagreement that will not be resolved until there is a 
precedential appellate decision that forces the executive 
branch or Congress to sort of adjust its view and change the 
guardrails. That's what happened in Nixon. Nixon claimed an 
absolute right to privilege without any judicial review, and 
the Supreme Court rejected that.
    In the AT&T case which is cited as the basis for the 
accommodation process, Congress claimed absolutely--to be 
absolutely immune, under the speech and debate clause. Ford and 
the executive branch claimed absolute executive privilege over 
national security. The Court said, before we can get to an 
accommodation, we have to address these claims of absolute 
constitutional authority first.
    I think there needs to be a precedential opinion. This is 
about these sort of fundamental constitutional disputes, and in 
the mine run of cases, I think you will eventually come to 
this, where--the sort of extrajudicial, with a status 
conference model or whatever it might be, and you can resolve 
these disputes. First there needs to be some sort of 
fundamental constitutional principles on which both branches 
can start from, to get to an agreement.
    Chair Whitehouse. To be clear, in my questions I wasn't 
suggesting that whatever we should come up with by way of a 
judicial intervention should displace the accommodations 
process. Rather, it should provide guardrails to keep the 
accommodations process within some reasonable bounds.
    I'll give you an example. I've been looking at FBI tip line 
practices. I asked the FBI two years ago, ``What's your policy 
for how you run a tip line?'' No answer. Lindsey Graham heard 
me bother them enough that he actually got the Deputy Attorney 
General up in his office to say, ``What the hell? Would you 
please answer these questions?'' This is presumably public 
information. In fact, ultimately, by doing a search on the 
internet, we found a YouTube in which the FBI explained its tip 
line procedures, but they had refused to comply.
    If there were--you know, that's really hard to countenance 
under any process of accommodation. They didn't answer. When 
the DAG came up here, it was just mumblety-peg; nothing 
happened. If they knew that I had a court to go to, to say, 
``Come on, Your Honor, please, this is ridiculous. Can we 
formalize an accommodations process and have you supervise it 
until you're comfortable that both sides are acting in good 
faith?''--that seems to me to be a kind of sensible 
intermediate step, just for your, you know, reference, since 
you're mulling on this notion, which I will ask you to think 
more about and answer as a question for the record.
    Professor Mascott, you mentioned two things that you 
recommended: one, that when there's a subpoena or some other 
request for information, Congress should be clearer about what 
it wants and why it wants it, so it can jump over the 
legislative purpose hurdle. I agree with those things, and we 
might want to, you know, bake that into what we're doing.
    Then there's the question of misconduct, which in theory 
blows up executive privilege. Presumably, at some point early 
on, if Congress is going to assert that misconduct is the 
purpose of our investigation, we need to let that be known and 
explained pretty early on, so that anybody who's considering 
this, whether it's a court or OLC or whomever, can, A, 
determine that the misconduct concern or allegation is real 
enough to justify it; and, B, if that's the case, boom, there 
goes the privilege. Reactions?
    Professor Mascott. Yes, Senator. I mean, first, on the idea 
that the misconduct purpose is absolute, I mean, I do think the 
Court has acknowledged that, I mean, even where there are 
concerns of misconduct, that there are certain kinds of 
information like classified information or national security 
and foreign affairs concerns that still might come into play. I 
don't know that it's 100 percent absolute.
    I do--I do acknowledge that it's a concern. I guess what I 
would say, though, is, I'm not sure that even--that Congress 
has been authorized, constitutionally, just with general 
blanket investigative power. Even, I think, in the area of 
misconduct investigations, there would still presumably be a 
particular law or legal requirement that Congress had felt was 
broken and needed to see if it needed to be addressed, complied 
with more adequately, fixed in the legislative process, and 
that in explaining the need for documents, you know, there 
would need to be some tieback to legislation.
    Alternatively, of course, the constitutional process for 
investigation is an impeachment. I know, you know, there were 
obviously conflicts over wanting to get information in--in 
recent history. You know, the rules of the road change, of 
course, once the House would have authorized an impeachment 
inquiry, but that is really the constitutional method to go 
through for just pure misconduct claims. Once such an inquiry 
were started, of course there'd be different rules than if 
Congress were just acting out of its legislative power.
    If I could just say--make a couple quick comments about the 
judicial question. The Senators are obviously correct that, in 
Marbury, there's discussion about, you know, the courts having 
a role in determining constitutionality, what the law is, but 
you know, the Article III power, I think, distinct from the 
Article I and Article II powers, is just limited to resolving 
cases and controversies.
    When we're thinking about judicial process, I mean, 
there're all kinds of questions, I think, that would not maybe 
be adequately addressed by just having a new judicial 
commission to look at oversight. You know, one is, there's got 
to be a limited case and controversy. Someone has to have 
standing to bring the claim. There--what would the judicially 
manageable standards be, if the Constitution doesn't address 
information acquisition specifically?
    Then, stepping back even further, I mean, we have talked 
about today, and the Supreme Court agrees, that as part of the 
legislative function, Congress needs information. I feel like 
we're starting from an assumption that necessarily, you know, 
we should just have access to all executive branch information 
at all times, and obviously every branch is interested in----
    Chair Whitehouse. I'm not, just for the record.
    Professor Mascott. Okay. Every branch is interested in 
confidentiality, of course; the legislative staff, committee 
staff, things like that. I don't--you know, when we're talking 
about information, again, I think it needs to always be tied 
back to, what is the legislation that we're trying to put 
forward?
    If there are concerns about the executive branch having too 
much authority, it's much better to handle that through 
legislation that specifically guides and constrains what folks 
can do, rather than--what I'm concerned about on the back end 
is giving power to the executive and then, in a way that's not 
intended by the Constitution, sort of interfering with or 
questioning how it's executed. I think it's better to just give 
limited power in the first place, rather than to interrupt the 
confidentiality and candor in advice-giving that's really 
essential for the executive to get good advice, once the 
power's been given.
    Chair Whitehouse. Yes, and the interesting thing about 
pretty much everything you've said is that's all stuff that 
courts have told us is the law. That puts us right back to 
courts again, as far as I can tell.
    Senator Hirono, do you want to continue? This is--we're 
down to----
    Senator Hirono. Well, I----
    Chair Whitehouse [continuing]. The two of us. We've got a 
terrific panel and an interesting question, so have at it.
    Senator Hirono. I know. I feel as though we should make use 
of all these----
    Chair Whitehouse. I know.
    Senator Hirono [continuing]. Brains sitting in front of us. 
One description is that--and I think this is something that 
Professor, well, Mascott pointed out, that, you know, Congress 
should need to show, let's say we're in court, that there's a 
legitimate legislative purpose for the information we seek.
    Let's assume that Congress shows that. Does that shift the 
burden to the executive to show that they can withhold the 
information? They have to do more than just say, ``Well, you 
know, we're asserting executive privilege.'' They have to show 
us why. The burden shifts. Is that what should be happening?
    Professor Mascott. I think--so, the executive branch, in a 
January 2021 opinion, talked a little bit about this process 
and that the threshold jurisdictional thing that the 
executive's going to look at first is the legitimate 
legislative purpose and looking for whether it's narrowly 
tailored to the stated objectives. The Supreme Court also 
addresses this a little bit in the Mazars decision, that it 
needs to be narrowly tailored, not just a roving, broad 
request. Yes, presuming that the request is tailored toward 
legislation----
    Senator Hirono. Yes.
    Professor Mascott [continuing]. Then, adjunct to Congress's 
legislative powers, I think the general assumption would be 
that the executive branch then needs to carefully respond. You 
know, what happens as a matter of practice is often the 
accommodation process begins or executive privilege is 
asserted, but that happens in relatively rare occasions. Once 
that process is invoked, of course the executive would, you 
know, explain reasons, as it often does through letters and 
other statements to Congress about why it's not handing over 
the information.
    Senator Hirono. I think it's that part that I--the process 
that I'm interested in. When the burden shifts to the executive 
branch, they can't just simply say, ``Assert executive 
privilege.'' They have to show why they think that this 
information is--so, is it related to national security? What, 
right? They have to be very specific. Would you agree with 
that, Professor Shaw?
    Professor Shaw. Yes. I mean, just the way this works in 
practice is, so, assuming that the threshold--I'm not sure I 
fully subscribe--well, I'll say I don't fully subscribe to the 
general overview in the January 2021 OLC memo that suggests a 
pretty rigorous kind of threshold determination of the 
legitimacy of legislative purpose. I'm not sure that's an 
appropriate inquiry for the executive branch to be engaging in.
    Assuming whatever that inquiry looks like, there is a 
legitimate legislative purpose everyone believes is satisfied, 
generally speaking--so, say there are 1,000 documents that are 
in the category that have been requested, the executive branch 
will take a look and say, ``Of these 1,000, you know, maybe 900 
of them are completely, you know, uncontroversial, and we'll 
hand those over now. As to 100 of them, they may reflect 
internal deliberations, potentially even advice to or 
discussions about advising the President, and so we're going to 
need to go--we're going to need to engage in a process with you 
in which we'll ask you a little bit more specifically about the 
nature of your interest, and we can negotiate down from, you 
know, that 1,000 documents to 10 documents, and potentially, at 
the end of the day, we will need to assert executive privilege 
over those 10, if pressed, but hopefully we won't be pressed 
because you'll be able to get the information that you need, 
based on reviewing the rest of the documents.''
    I would say that would be the process that would typically 
proceed, once the threshold determination has been made and it 
is determined there is some privileged material in the larger 
set of documents that are being requested.
    Senator Hirono. Are you saying that in that process where 
you're arguing over the 100 documents that executive privilege 
may apply to, that that is not being overseen by a court?
    Professor Shaw. Typically not, no. It'll just be between--
you know, at the staff level, potentially at the member level 
and the principals level in the executive branch, that sort of 
narrowing and winnowing occurs, and yes, it often does happen--
again, in the shadow of these judicial opinions that sort of 
structure the process, but often without involving any court at 
all. Very often, at least until the last couple of years, the 
process has actually, to my mind, worked relatively well. Each 
side has been a little unhappy at the end of the day but has 
gotten most of what it views as really important.
    Senator Hirono. Yes, I think we all agree that the 
accommodation process should be the first way that we do this, 
but we're here because that--what happens when that process is 
not proceeding in good faith? Thank you, Mr. Chairman.
    Chair Whitehouse. Thanks. If I could just turn this for a 
moment--you know, we've been looking at this as, the courts, 
they have a role in this, making substantive determinations, 
but one of the things that strikes me is that part of what goes 
awry in these disputes, often, is not substantive disagreement 
but process simply not happening.
    We have been treated, particularly in this Committee, to so 
many non-assertion assertions of the privilege, that it seems 
that the process has very much broken down. My understanding is 
that it's supposed to be only in compelling circumstances that 
the assertion is made. There's got to be a careful review. It 
starts in the agency, but OLC has to come right in and offer 
its own, for want of a better word, ombudsman view and then go 
through White House counsel to the President, to say, ``Mr. 
President, this is important enough we actually want you to 
assert executive privilege here.''
    Unless, and until, the President does, there isn't a proper 
assertion of the privilege; there's only the abeyance moment 
awaiting the proper assertion of the privilege.
    It would seem to me that it would be really easy for a 
judge or a panel of judges looking at this to go through the 
checklist of, okay, agency did a compelling review; OLC has 
been involved; White House counsel is involved; oh, and the 
President has asserted the privilege. Great. Okay, now we can 
get to this.
    If those things have not been done, and the thing has 
jammed up just with an agency asserting a privilege without the 
OLC yet offering its opinion, without the White House counsel 
yet being involved, you just--like a stopper, right there at 
the agency, ``We're not answering your question; go pound 
sand,'' that's a pretty easy one for a court to break through 
without having to intervene in, you know, challenging ways in 
the larger political process, because somebody's clearly 
playing outside the foul lines on process. If we could get the 
process enforced, I think that smooths out a lot of these other 
things. Mr. Rozell?
    Mr. Rozell. Just one point. I find that you may end up in a 
challenging situation where, under those circumstances, 
Presidents would simply avoid at all costs using the words 
``executive privilege'' and resorting to other rationales for 
what----
    Chair Whitehouse. We'd see documents stamped 
``constitutional privilege'' because----
    Mr. Rozell. Right.
    Chair Whitehouse [continuing]. They didn't want to say 
``executive privilege.''
    Mr. Rozell. You know, there is a long history of that, 
right, particularly in the early post-Watergate era, when 
executive privilege had a bad name. Presidents avoided the use 
of the phrase ``executive privilege'' because they knew it was 
politically toxic, but they still wanted all the advantages, 
right?
    Chair Whitehouse. That's the case still? It doesn't seem 
like it's the case any longer.
    Mr. Rozell. I think the embarrassment over the phrase 
``executive privilege'' is not as great as it was----
    Chair Whitehouse. Yes.
    Mr. Rozell [continuing]. During that period, for sure. If 
you establish a process by which the courts are going to be 
involved, right, and anytime the President utters the words 
``executive privilege,'' you know, there's going to be this 
intervening process to try to solve these disputes, I think 
that gives an incentive for Presidents to simply, once again, 
start avoiding the use of the phrase ``executive privilege'' 
and resort to other rationales for withholding information, 
which ultimately, you know, is a kind of, you know, playing 
word games, in a sense----
    Chair Whitehouse. Yes.
    Mr. Rozell [continuing]. In order to get around the process 
that you would like to see put in place, I assume.
    Chair Whitehouse. Although I would say that they don't 
get--a President doesn't get to not give Congress information--
--
    Mr. Rozell. Right.
    Chair Whitehouse [continuing]. For no stated reason.
    Mr. Rozell. Right. Oh, I agree with that.
    Chair Whitehouse. You can say, ``Law enforcement matters.'' 
You can say, you know, ``Grand jury matters.'' You can say, 
``National security matters.'' We can say, ``Too classified for 
you'', or, ``too much danger of improper release.'' We've got 
the whole deliberative process, executive privilege nexus of 
ideas, and you can kind of call it what you want, but I think 
at the end of the day, ``No, and I'm not saying why'', isn't an 
answer that should survive any kind of scrutiny or contest. 
Professor Shaub, are you--go ahead.
    Professor Shaub. Yes.
    Chair Whitehouse. Then I'll let you all go, unless 
Professor Hirono has other questions.
    Professor Shaub. Just to sort of follow-up on the process, 
in terms of what actually happens within the executive branch, 
I mean, I think your, sort of, retelling of it is mostly 
accurate. What happens at the first stage is more of, here's a 
broad request for information. Let the agency, the counsel, 
Legislative Affairs will look and kind of see what's there. If 
there are items that are deliberative or law enforcement 
related, then a letter goes back to the committee that says, 
you know, in some timeframe, there are certain confidentiality 
interests here. That's it. Unless the committee follow--follows 
up on that or presses, there probably won't be any more 
communication or any more even look at the documents.
    It's only when there's a press that it goes up to sort of 
OLC, and they start to look and say, ``Are these within the 
components?'' The inquiry is now sort of, ``Are they within the 
components? Can we withhold it?'' As opposed to, ``Is this very 
specific information that's going to cause some harm to the 
national interest?'' It's sort of categories of 
undifferentiated confidentiality interests, as opposed to, sort 
of, problems from specific information.
    Executive privilege is never even considered or discussed 
within the executive branch, until the committee says or 
schedules a contempt vote. It's not--executive branch policy is 
not to assert privilege until immediately before a contempt 
vote has been scheduled, so it's way down the road, and 
everything before that is just consideration of ``Is this 
permissibly withheld? We'll decide whether to withhold it or 
not if they schedule a contempt vote.''
    Chair Whitehouse. We have, I think, room for considerable 
improvement in the way in which these conflicts are managed. I, 
for one, hope to find a way to make some improvements in a 
bipartisan fashion, perhaps by starting with a Committee report 
that all the Members of the Committee could get behind, that 
lays out some of the ideas. I hope you don't mind if we stay in 
touch with you as we continue to develop that. You've been a 
very helpful panel, and I'm grateful to you all for being here.
    If you could take under advisement my notion--I don't want 
to even call it anything more than that--that, if there were a 
calendar over at the District Court, and if a dispute got to a 
certain stage, and we'd have to figure out what the trigger 
was, it was allowed to go on that calendar. When it got on the 
calendar, there would have to be some regular meetings of some 
kind, not to settle the law or make final dispositive 
determinations, but to say, ``How are you guys doing at your 
process of accommodation?'', and to give each party a chance to 
blow foul on--``Well, we haven't even had an answer, and this 
seems pretty obvious. It's actually public information 
somewhere, I think''--you know, I think that could move things 
along.
    Again, my history here is that status conferences work 
pretty well at rattling the cages of parties and cut through 
tons of the discovery disputes in real litigation. I mean, you 
really don't want to annoy a judge by having to have them 
constantly rule on discovery disputes, and in a lot of status 
conferences, there is no formal ruling. The judge or the 
magistrate just says, ``Are you out of your mind? Do you really 
want to bring that notion to me, formally? How do you think 
that's going to turn out? Have you read this case?''
    Then the lawyer kind of gets abashed and says, ``All right, 
well''--goes back to the client and says, ``All right, we 
probably have to give up this document.'' It all happens again 
in an accommodations process, but it's a guided accommodations 
process, so nobody has the unilateral ability to bring it to an 
end in bad faith without recourse. That's where I think we are.
    Thank you all very much, and what do we--a week to get--
would a week be okay, to get your answers in? Two weeks? What 
would you prefer?
    Mr. Rozell. That is fine.
    Chair Whitehouse. Week's fine? We'll do a week.
    Thank you all.
    Mr. Rozell. Thank you.
    Chair Whitehouse. Hearing adjourned.
    [Whereupon, at 3:45 p.m., the hearing was adjourned.]
    [Additional material submitted for the record follows.]
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