[Congressional Record Volume 150, Number 41 (Monday, March 29, 2004)]
[House]
[Pages H1620-H1624]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    NATIONAL SECURITY ADVISOR SHOULD TESTIFY BEFORE 9/11 COMMISSION

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Michigan (Mr. Conyers) is recognized for 5 minutes.
  Mr. CONYERS. Mr. Speaker and Members of the House, I rise to review 
the debate that has been going on between the distinguished National 
Security Advisor of the President, Condoleezza Rice, and those who 
believe that she should be called back to testify under oath. The 
reason that has been put forward that this is not possible is that Ms. 
Rice claims that it is a matter of constitutional principle that the 
separation of powers prevents the President's close aides from 
testifying to Congress.
  But, as many have noted, there have been senior aides that have 
testified before. As a matter of fact, they have held the same position 
that she holds. Mr. Sandy Berger has testified before Congress and Mr. 
Zbigniew Brzezinski has, in fact, testified before the Congress. So 
what we realize now is that there is no problem here. There is no 
separation of powers argument for her to present.
  I happen to serve with the House Committee on the Judiciary, and I 
can recall when President Gerald Ford came before the committee to try 
to deal with a very extraordinary national issue in which he explained 
why he had granted some extraordinary relief or pardon to former 
President Nixon. It was a national issue. Well, in my view, I believe 
the death of more than 3,000 Americans is an extraordinarily important 
issue that should allow Ms. Rice to come before the 9/11 Commission.
  But the traditions really do not mean anything and the separations of 
power argument fails completely because it turns out that Condoleezza 
Rice has for 4 hours or more already testified before the Commission on 
February 7. So there is no issue about separation of powers.
  This would be the same as allowing a person to testify before the 
Committee on the Judiciary privately about conversations with their 
attorney, but then when they come before the Committee on the Judiciary 
they would certainly not be able to invoke the attorney-client 
privilege and refuse to testify on the same matters that they have at 
an earlier meeting.
  So what we are concerned about is about whether we can separate from 
the American people the truth of what has been happening in our White 
House.
  Now the concept of the separation of powers doctrine was conceived by 
James Madison to prevent any branch of this three-branch system of 
government from encroaching on the powers of the other two branches. 
This preserves the dispersal of power so that it is not concentrated in 
one branch, and it also preserves the constitutional system of checks 
and balances. But our friend has already testified to the Commission 
earlier. So that now that she has already given private testimony she 
cannot be heard to come back and claim that she is prevented from doing 
that.
  The only problem that this raises is whether she wants to testify 
under oath. And I think that this makes it very important that she 
listen to one of the members of the panel, former Secretary of the Navy 
Lehman, appointee of the President, who said that this is very bad 
political strategy for you to claim that you are prevented from coming 
before the committee to give formal testimony.
  It is not going to work. I think that it is very important that we 
realize that. The Congressional Research Service has done for me an 
analysis of the Presidential advisor's testimony before congressional 
committees.
  Now this is made more curious by the fact that more recently, after 
the statements made by Richard Clarke, that Ms. Rice asked the 
Commission to again come before it to respond to the allegations of Mr. 
Clarke.
  Mr. Speaker, I will insert into the Record the Report for Congress by 
the Congressional Research Service.

   CRS Report for Congress--Presidential Advisers' Testimony Before 
       Congressional Committees: A Brief Overview, April 5, 2002

   (By Harold C. Relyea, Specialist in American National Government, 
  Government and Finance Division, and Jay R. Shampansky, Legislative 
                    Attorney, American Law Division)


                                Summary

       Since the beginning of the federal government, Presidents 
     have called upon executive branch officials to provide them 
     with advice regarding matters of policy and administration. 
     While Cabinet members were among the first to play such a 
     role, the creation of the Executive Office of the President 
     (EOP) in 1939 and the various agencies located within that 
     structure resulted in a large increase in the number and 
     variety of presidential advisers. All senior staff members of 
     the White House Office and the leaders of the various EOP 
     agencies and instrumentalities could be said to serve as 
     advisers to the President.
       Occasionally, these executive branch officials playing a 
     presidential advisory role have been called upon to testify 
     before congressional committees and subcommittees. Sometimes, 
     such invited appearances have been prompted by allegations of 
     personal misconduct on the part of the official, but they 
     have also included instances when accountability for 
     policymaking and administrative or managerial actions have 
     instigated the request for testimony. Because such 
     appearances before congressional committees or subcommittees 
     seemingly could result in demands for advice proffered to the 
     President, or the disclosure--inadvertent or otherwise--of 
     such advice, there has been resistance, from time to time, by 
     the Chief Executive to allowing such testimony.

[[Page H1621]]

       Congress has a constitutionally rooted right of access to 
     the information it needs to perform its Article I legislative 
     and oversight functions. Generally, a congressional committee 
     with jurisdiction over the subject matter, which is 
     conducting an authorized investigation for legislative or 
     oversight purposes, has a right to information held by the 
     executive branch in the absence of either a valid claim of 
     constitutional privilege by the executive or a statutory 
     provision whereby Congress has limited its constitutional 
     right to information.
       A congressional committee may request (informally, or by a 
     letter from the committee chair, perhaps co-signed by the 
     ranking Member) or demand (pursuant to subpoena) the 
     testimony of a presidential adviser. However, Congress may 
     encounter legal and political problems in attempting to 
     enforce a subpoena to a presidential adviser. Conflicts 
     concerning congressional requests or demands for executive 
     branch testimony or documents often involve extensive 
     negotiations and may be resolved by some form of compromise 
     as to, inter alia, the scope of the testimony or information 
     to be provided to Congress.
                                  ____

       Since the beginning of the federal government, Presidents 
     have called upon executive branch officials to provide them 
     with advice regarding matters of policy and administration. 
     The Constitution recognized such relationships when it 
     authorized the President, in Article II, section 2, to 
     ``require the Opinion, in writing, of the principal Officer 
     in each of the executive Departments, upon any Subject 
     relating to the Duties of their respective Offices.'' There 
     were, as well, reasons to expect that such advice, whether 
     offered orally or in writing, would be held in confidence. 
     The advice was for the President's consideration and his 
     decisionmaking. The matters involved were sensitive, perhaps 
     bearing upon the foreign, military, economic, or law 
     enforcement policy of the nation. Also, the provision, 
     discussion, and use of such advice by the executive branch 
     could affect its relationships with the other coequal 
     constitutional branches. President George Washington and his 
     Cabinet had these considerations in mind, as Secretary of 
     State Thomas Jefferson's notes on their deliberations 
     reflect, when they decided upon a response to a 1792 
     congressional request for information:
       ``We had all considered, and were of one mind, first, that 
     the House was an inquest, and therefore might institute 
     inquiries. Second that it might call for papers generally. 
     Third, that the Executive ought to communicate such papers as 
     the public good would permit, and ought to refuse those, the 
     disclosure of which would injure the public; consequently 
     were to exercise a discretion. Fourth, that neither the 
     committee nor House had a right to call on the Head of a 
     Department, who and whose papers were under the President 
     alone; but that the committee should instruct their chairman 
     to move the House to address the President. . . .''
       The Cabinet, composed of the principal officers in each of 
     the executive departments, failed, for several reasons, to 
     develop as an important source of presidential advice. The 
     department heads constituting the Cabinet were often chosen 
     to satisfy interests that contributed significantly to the 
     President's election. Considerations of partisanship, 
     ideology, geography, public image and stature, and aptitude, 
     among others, figured prominently in their selection. 
     Sometimes the President was not personally well acquainted 
     with these individuals and had only minimal confidence and 
     trust in them. In a few cases, a political rival was included 
     in the Cabinet.
       It is also very likely that some activist Presidents were 
     ill suited to the group deliberation of the Cabinet. 
     Similarly, many Cabinet members might have felt unqualified, 
     or were unwilling, to offer counsel to the President on 
     matters outside of their immediate portfolios; their advice 
     was perhaps limited to, and protective of, departmental 
     interests. Finally, personal hostilities between or among 
     department heads could result in such tumult within the 
     Cabinet that little useful advice could be gained.
       Consequently, Presidents generally looked to other quarters 
     for advisers. One development in this regard was the creation 
     of circles of advisers composed of both public officials and 
     private citizens. President Andrew Jackson, whose election 
     and White House tenure occurred in an era marked by violent 
     political controversy and party instability, utilized an 
     informal group of advisers which came to be known as the 
     Kitchen Cabinet. The members represented ``rising social 
     groups as yet denied the prestige to which they felt their 
     power and energies entitled them''--newspapermen, the 
     President's private secretary, campaign organizers and 
     officials from prior administrations, and longtime personal 
     friends.
       When John Tyler succeeded to the presidency upon the death 
     of William Henry Harrison, he revived Jackson's practice. 
     Deserted by Whigs and Democrats alike, Tyler resorted to a 
     select circle of advisers composed of personal and political 
     friends from his native Virginia--a college president, a 
     state supreme court judge, four members of the state's 
     delegation in the House of Representatives, and a Senator. 
     Following this practice, several succeeding Presidents had 
     informal groups of advisers that were given colorful names by 
     the press. For example, for Grover Cleveland, it was a 
     Fishing Cabinet; for Theodore Roosevelt, a Tennis Cabinet; 
     for Warren G. Harding, a Poker Cabinet; and for Herbert 
     Hoover, a Medicine Ball Cabinet.
       Jackson's inclusion of his personal secretary in his 
     Kitchen Cabinet reflects another line of development 
     regarding presidential advisers. Beginning with Washington, 
     Presidents sought to meet the demands of their office with 
     the assistance of a single personal secretary, usually a 
     relative, compensated from their own private resources. In 
     1833, Congress authorized the President to appoint, with the 
     advise and consent of the Senate, a secretary ``whose duty it 
     shall be, under the direction of the President, to sign in 
     his name and for him, all patents for lands sold or granted 
     under the authority of the United States.'' Jackson named 
     Andrew Jackson Donelson, his wife's nephew and current 
     personal secretary, to this position, relieving himself of 
     continued personal compensation of the young man. Ultimately, 
     Congress appropriated funds to the Chief Executive in 1857 
     for an official household--a personal secretary, a steward to 
     supervise the Executive Mansion, and a messenger.
       Many years later, in 1929, Congress was persuaded to 
     authorize an increase in the President's top personnel, 
     adding two more secretaries and an administrative assistant. 
     Appointed to these senior staff positions were 
     presidential lieutenants, if not presidential intimates 
     and advisers. When Franklin D. Roosevelt came to the 
     presidency in 1933, he brought with him, from his New York 
     gubernatorial experience, a new kind of advisory circle, 
     composed of intellectuals, or at least a core group of 
     Columbia University professors who were joined by other 
     ideas people to form the ``Brains Trust.'' Because there 
     were an insufficient number of staff positions at the 
     White House to accommodate them, these advisers were 
     placed elsewhere in the executive branch, but, for the 
     most part, directly served the President.
       This staffing situation, coordination problems, and the 
     development of a new administrative management concept 
     prompted Roosevelt to create, by announcement, a study 
     panel--the President's Committee on Administrative 
     Management, under the leadership of Louis Brownlow, a 
     prominent public administration practitioner--in 1936 to 
     examine and make recommendations regarding these matters. 
     Reporting some 10 months later, the Brownlow committee 
     addressed presidential staffing in dramatic and detailed 
     terms:
       ``The President needs help. His immediate staff assistance 
     is entirely inadequate. He should be given a small number of 
     executive assistants who would be his direct aides in dealing 
     with the managerial agencies and administrative departments 
     of the government. These assistants, probably not exceeding 
     six in number, would be in addition to the present 
     secretaries, who deal with the public, with the Congress, and 
     with the press and radio. These aides would have no power to 
     make decisions or issue instructions in their own right. They 
     would not be interposed between the President and the heads 
     of his departments. They would not be assistant presidents in 
     any sense. Their function would be, when any matter was 
     presented to the President for action affecting any part of 
     the administrative work of the Government, to assist him in 
     obtaining quickly and without delay all pertinent information 
     possessed by any of the executive departments so as to guide 
     him in making his responsible decisions; and then when 
     decisions have been made, to assist him in seeing to it that 
     every administrative department and agency affected is 
     promptly informed. Their effectiveness in assisting the 
     President will, we think, be directly proportional to their 
     ability to discharge their functions with restraint. They 
     would remain in the background, issue no orders, make no 
     decisions, emit no public statements. Men for these positions 
     should be carefully chosen by the President from within and 
     without the Government. They should be men in whom the 
     President has personal confidence and whose character and 
     attitude is [sic] such that they would not attempt to 
     exercise power on their own account. They should be possessed 
     of high competence, great physical vigor, and a passion for 
     anonymity. They should be installed in the White House 
     itself, directly accessible to the President. In the 
     selection of these aides, the President should be free to 
     call on departments from time to time for the assignment of 
     persons who, after a tour of duty as his aides, might be 
     restored to their old positions.''
       In addition to the proposed addition of six assistants to 
     the President's staff, the committee's report also 
     recommended vesting responsibility in the President for the 
     continuous reorganization of the executive branch Released to 
     Congress on January 12, 1937, the report soon became lost in 
     high politics. Three weeks after submitting the Brownlow 
     committee's report to Congress, Roosevelt announced he wanted 
     to enlarge the membership of the Supreme Court. His ``court 
     packing'' plan not only fed congressional fears of a 
     presidential power grab, but also so preoccupied Congress 
     that the Brownlow committee's recommendations were ignored.


                   Executive Office of the President

       Although efforts at gaining legislative approval of the 
     Brownlow committee's recommendations lay in ruin in the 
     spring of 1938, the President had not deserted the cause. By 
     July, Roosevelt was meeting with Brownlow and the other 
     committee members. The panel would not be officially 
     reassembled, but he wanted each man's help with

[[Page H1622]]

     a reorganization authority proposal. The resulting measure 
     empowered the President to propose reorganization plans, 
     subject to a veto by a majority vote of disapproval in both 
     houses of Congress, and to also appoint six administrative 
     assistants.
       After three days of discussion and debate, the House 
     adopted the bill on March 8, 1939. Twelve days later, the 
     Senate began considering the proposal. Following two days of 
     sparring over amendments, the Senate adopted the bill. A 
     quick conference cleared the measure for Roosevelt's 
     signature on April 3. Earlier, the President had asked the 
     Brownlow committee members to assist with the preparation of 
     his initial reorganization plans.
       Following consultations with Budget Bureau Director Harold 
     D. Smith, the Brownlow group presented two reorganization 
     proposals to Roosevelt on April 23. Plan 1, submitted to 
     Congress on April 25, transferred certain agencies to the 
     Executive Office of the President, but offered no explanation 
     of that entity. In Plan 2, a presidential emergency council 
     was abolished and most of its functions were transferred to 
     the Executive Office. While both plans were acceptable to 
     legislators, their effective dates were troublesome in terms 
     of accommodating fiscal calendar necessities. By joint 
     resolution, Congress provided that both plans would be 
     effective on July 1, 1939. Following this action, the 
     President, on September 8, issued E.O. 8248, formally 
     organizing the Executive Office and, thereby, defining it 
     in terms of its components. Brownlow, who drafted the 
     initial reorganization plan, viewed the Executive Office 
     as the institutional realization of administrative 
     management and ``the effective coordination of the 
     tremendously wide-spread federal machinery.'' He called 
     the initial version ``a little thing'' compared to its 
     later size. It grew under Roosevelt and ``it continued to 
     expand and was further regularized by statute, by 
     appropriation acts, and by more reorganization plans'' 
     during the succeeding years.
       The Executive Office organized by E.O. 8248 consisted of 
     the White House Office, the Bureau of the Budget, the 
     National Resources Planning Board, the Office of Government 
     Reports, and the Liaison Office for Personnel Management. It 
     also provided that, ``in the event of a national emergency,'' 
     there could be established ``such office for emergency 
     management as the President shall determine.'' The Office for 
     Emergency Management was created by an administrative order 
     on May 25, 1940, and its functions were further specified in 
     an administrative order of January 7, 1941. It subsequently 
     served as a parent unit for a number of subordinate emergency 
     management bodies.


                      Presidential Adviser Growth

       The creation of the Executive Office of the President 
     contributed to an increase in the number of presidential 
     advisers for several reasons. First, it provided an enclave 
     for various agencies that immediately assisted the President. 
     Primary among these was the White House Office, which was no 
     longer merely the President's small office staff, but an 
     agency with hierarchically organized staff positions whose 
     personnel rapidly expanded during the next few decades.
       Second, it counted agencies, such as the Liaison Office for 
     Personnel Management and the Office for Emergency Management, 
     that were headed by an administrative assistant--and 
     adviser--to the President on the White House Office payroll. 
     It also included agencies, such as the Bureau of the Budget 
     (and its Office of Management and Budget successor), that 
     were headed by leaders for whom advising the President was a 
     primary responsibility.
       Third, senior White House Office staff would come to 
     supervise and direct the staff of other Executive Office 
     entities: the Assistant to the President for National 
     Security Affairs would direct the National Security Council 
     staff and the Assistant to the President for Domestic Policy 
     would direct the Domestic Council staff.
       Fourth, in January 1973, President Richard M. Nixon vested 
     his Secretary of the Treasury and his director of the Office 
     of Management and Budget with dual White House Office 
     positions, respectively, of Assistant to the President for 
     Economic Affairs and Assistant to the President for Executive 
     Management. He also vested his Secretary of Agriculture, 
     Secretary of Health, Education, and Welfare, and Secretary of 
     Housing and Urban Development with dual White House Office 
     positions, respectively, of Counselor to the President for 
     Natural Resources, Counselor to the President for Human 
     Resources, and Counselor to the President for Community 
     Development. Having such dual White House Office titles was 
     viewed as giving added emphasis, if not authority, to the 
     role of these officials as presidential advisers.
       In the aftermath of World War II, Congress statutorily 
     chartered most of the agencies within the Executive Office of 
     the President. Furthermore, Congress routinely appropriated 
     funds for the operating expenses of these entities. In 1944, 
     Congress had adopted an amendment to an appropriation bill 
     that was designed to restrain the creation of Executive 
     Office agencies by executive order--a frequent occurrence 
     during 1941-1944. The amendment stated:
       ``After January 1, 1945, no part of any appropriation or 
     fund made available by this or any other Act shall be 
     allotted or made available to, or used to pay the expenses 
     of, any agency or instrumentality including those established 
     by Executive order after such agency or instrumentality has 
     been in existence for more than one year, if the Congress has 
     not appropriated any money specifically for such agency or 
     instrumentality or specifically authorized the expenditure of 
     funds by it.''
       In 1982, when Title 31 of the United States Code was 
     recodified, the amendment was repealed and replaced with new 
     language at section 1347. The opening sentence of the new 
     section, which remains as operative law, states: ``An agency 
     in existence for more than one year may not use amounts 
     otherwise available for obligation to pay its expenses 
     without a specific appropriation or specific authorization by 
     law.''
       With their growing number and influence, senior staff 
     members of the White House Office and certain other Executive 
     Office agencies began to become of interest to congressional 
     committees when accountability for policymaking and 
     administrative or managerial actions prompted requests for 
     their testimony. Some, like War Production Board chairman 
     Donald M. Nelson, who was popularly known as the ``arms 
     czar,'' appeared before and cooperated with the Senate 
     Special Committee to Investigate the National Defense Program 
     (``Truman Committee'') during World War II to report on and 
     discuss war material production and related coordination 
     matters. Others, like Office of War Mobilization director 
     James F. Byrnes, who was sometimes referred to as the 
     ``assistant president,'' apparently avoided appearing 
     before congressional committees during the World War II 
     era, but were in communication with various individual 
     Members of Congress in leadership positions and served as 
     liaisons between the President and Congress on a number of 
     war matters.


                     presidential adviser testimony

       Beginning with the closing years of World War II, examples 
     are provided below of instances when a presidential adviser--
     a civilian executive branch official, other than a member of 
     the traditional Cabinet, who, as part of that official's 
     responsibilities and activities, consulted with the 
     President--testified before a congressional committee or 
     subcommittee. Because these consultations with the President 
     by such an official may be considered by the President to be 
     privileged and constitutionally protectable, examples are 
     also provided of instances when invited congressional 
     committee or subcommittee testimony by a presidential adviser 
     was refused. None of the examples involves testimony or 
     refusal to testify by a former presidential adviser:
       Jonathan Daniels, Administrative Assistant to the 
     President, White House Office, appeared before the Senate 
     Committee on Agriculture and Forestry on February 28 and 
     March 7 and 8, 1944, to discuss his involvement in the 
     personnel policy of the Rural Electrification Administration.
       Wallace H. Graham, Physician to the President, White House 
     Office, appeared before the Senate Committee on 
     Appropriations on January 13, 1948, to discuss information to 
     which he might have been privy with regard to the commodity 
     market.
       Harry H. Vaughn, Military Aide to the President, White 
     House Office, appeared before the Senate Committee on 
     Expenditures in Executive Departments (now Governmental 
     Affairs) on August 30 and 31, 1949, to discuss his personal 
     involvement in certain government procurement contracts.
       Donald S. Dawson, Administrative Assistant to the 
     President, White House Office, appeared before the Senate 
     Committee on Banking and Currency on May 10 and 11, 1951, to 
     discuss allegations he had attempted to ``dominate'' the 
     Reconstruction Finance Corporation and influence appointments 
     to that body.
       Sherman Adams, Assistant to the President, White House 
     Office, appeared before the House Committee on Interstate and 
     Foreign Commerce Committee on June 17, 1958, to discuss his 
     involvement with certain lobbyists.
       Edward E. David, Jr., Science Adviser to the President, 
     White House Office, and director, Office of Science and 
     Technology, appeared before the Senate Committee on Interior 
     and Insular Affairs on June 15, 1971, to discuss the Nixon 
     Administration's position on energy policy matters; he 
     appeared again before the House Committee on Science and 
     Astronautics on June 14, 1972, to discuss science policy 
     matters relating to Soviet-American cooperation agreements.
       Virginia H. Knauer, Special Assistant to the President for 
     Consumer Affairs, White House Office, and director, Office of 
     Consumer Affairs, appeared before the House Select Committee 
     on Small Business on June 25, 1971, to discuss consumer 
     protection and advertising standards.
       Jerome H. Jaffe, Special Consultant to the President, White 
     House Office, and director, Special Action Office for Drug 
     Abuse Prevention, appeared before the House Committee on 
     Interstate and Foreign Commerce on June 28, August 2, October 
     27, and November 8, 1971, to discuss various aspects of 
     the operations of the Special Action Office.
       Peter Flanigan, Assistant to the President, White House 
     Office, appeared before the Senate Committee on the Judiciary 
     on April 20, 1972, during the course of hearings on the 
     confirmation of Richard Kleindienst as Attorney General to 
     discuss his involvement in apparent lobbying activities by 
     the International Telephone and Telegraph Company.
       Bruce A. Kehrli, Special Assistant to the President, White 
     House Office, appeared before the Senate Select Committee on 
     Presidential Campaign Activities on May 17, 1973,

[[Page H1623]]

     to discuss matters related to the Watergate incident.
       Patrick J. Buchanan, Special Consultant to the President, 
     White House Office, appeared before the Senate Select 
     Committee on Presidential Campaign Activities on September 
     26, 1973, to discuss matters related to the Watergate 
     incident.
       Richard M. Harden, Special Assistant to the President, 
     White House Office, appeared before the Senate Appropriations 
     Subcommittee on Treasury, Postal Service, and General 
     Government on March 9, 1977, to discuss funds for the White 
     House Office; he appeared again before the House 
     Appropriations Subcommittee on Treasury, Postal Service, and 
     General Government on March 15, 1977, to discuss these same 
     matters.
       Rose Mary Woods, Personal Secretary to the President, White 
     House Office, appeared before the Senate Select Committee on 
     Presidential Campaign Activities on March 22, 1974, to 
     discuss matters related to the Watergate incident.
       J. Frederick Buzhardt, Special Counsel to the President, 
     White House Office, appeared before the Senate Select 
     Committee on Presidential Campaign Activities on April 10 and 
     May 7, 1974, to discuss matters related to the Watergate 
     incident.
       Alexander M. Haig, Jr., Staff Coordinator to the President, 
     White House Office, appeared before the Senate Select 
     Committee on Presidential Campaign Activities on May 2, and 
     15, 1974, to discuss matters related to the Watergate 
     incident.
       Leonard Garment, Assistant to the President, White House 
     Office, appeared before the Senate Select Committee on 
     Presidential Campaign Activities on May 17, 1974, to discuss 
     matters related to the Watergate incident.
       Lloyd Cutler, Counsel to the President, White House Office, 
     appeared before the Senate Judiciary Subcommittee to 
     Investigate the Activities of Individuals Representing the 
     Interests of Foreign Governments on September 10, 1980, to 
     discuss efforts by the President's brother, Billy Carter, to 
     influence the federal government on behalf of the government 
     of Libya.
       Zbigniew Brzezinski, Assistant to the President for 
     National Security Affairs, White House Office, appeared 
     before the Senate Judiciary Subcommittee to Investigate the 
     Activities of Individuals Representing the Interests of 
     Foreign Governments on September 17, 1980, to discuss efforts 
     by the President's brother, Billy Carter, to influence the 
     federal government on behalf of the government of Libya.
       Samuel Berger, Deputy Assistant to the President for 
     National Security Affairs, White House Office, appeared 
     before the Senate Committee on Foreign Relations on May 3, 
     1994, to provide a briefing on United States policy toward 
     Haiti.
       Samuel Berger, Assistant to the President for National 
     Security Affairs, White House Office, appeared before the 
     Senate Committee on Governmental Affairs on September 11, 
     1997, concerning campaign fund-raising practices in 
     connection with the 1996 federal election campaign.


                 Presidential Adviser Testimony Refused

       Beginning with the years immediately after the conclusion 
     of World War II, examples are provided below of instances 
     when invited congressional committee or subcommittee 
     testimony by a presidential adviser was refused:
       John R. Steelman, Assistant to the President, White House 
     Office, declined in March 1948 to appear before a special 
     subcommittee of the House Committee on Education and Labor.
       Herbert G. Klein, Director of White House Communications, 
     White House Office, declined on September 21, 1971, to appear 
     before the Senate Judiciary Subcommittee on Constitutional 
     Rights.
       Frederick V. Malek, Special Assistant to the President, 
     White House Office, and Charles W. Colson, Special Counsel to 
     the President, White House Office, declined in December 1971 
     to appear before the Senate Judiciary Subcommittee on 
     Constitutional Rights.
       Henry A. Kissinger, Assistant to the President for National 
     Security Affairs, declined on February 28, 1972, to appear 
     before the Senate Committee on Foreign Relations.
       David Young, Special Assistant to the National Security 
     Council, declined on April 29, 1972, to appear before the 
     House Government Operations Subcommittee on Foreign 
     Operations and Government Information.


  Why Presidential Advisers Do Not Regularly Testify Before Committees

       ``Although White House aides do not testify before 
     congressional committees on a regular basis,'' it has been 
     observed, ``under certain conditions they do. First, intense 
     and escalating political embarrassment may convince the White 
     House that it is in the interest of the President to have 
     these aides testify and ventilate the issue fully. Second, 
     initial White House resistance may give way in the face of 
     concerted congressional and public pressure.''
       Given the comity between the executive and legislative 
     branches, Congress often elects not to request the appearance 
     of presidential aides. When Congress has requested the 
     appearance of such aides, Presidents and their aides have at 
     times resisted, asserting the separation of powers doctrine 
     and/or executive privilege. These two grounds for declining 
     to comply with congressional requests for the appearance of 
     presidential aides overlap, and it is sometimes difficult to 
     determine which argument is being raised.
       President Richard M. Nixon contended: ``Under the doctrine 
     of separation of powers, the manner in which the President 
     personally exercises his assigned executive powers is not 
     subject to questioning by another branch of Government. If 
     the President is not subject to such questioning, it is 
     equally appropriate that members of his staff not be so 
     questioned, for their roles are in effect an extension of the 
     Presidency.''
       The separation of powers doctrine was also cited in 
     guidelines for White House staff issued during the Carter 
     Administration as the basis for the ``immunity'' of the staff 
     from appearing before committees. The guidelines 
     ``articulated the traditional arguments against compulsory 
     testimony to Congress by White House advisers (i.e., need for 
     `frank and candid discussions,' personal advisers are agents 
     of the President).''
       Executive privilege was invoked during the Nixon 
     Administration when congressional committees sought the 
     testimony of a White House aide at a Senate confirmation 
     hearing and the testimony of the White House Counsel at 
     Senate committee hearings on the Watergate incident and 
     related matters.


            Congress's Right to Executive Branch Information

       Congress has a constitutionally rooted right of access to 
     the information it needs to perform its Article I legislative 
     and oversight functions. Generally, a congressional committee 
     with jurisdiction over the subject matter, which is 
     conducting an authorized investigation for legislative or 
     oversight purposes, has a right to information held by the 
     executive branch in the absence of either a valid claim of 
     constitutional privilege by the executive or a statutory 
     provision whereby Congress has limited its constitutional 
     right to information.
       Efforts by congressional committees to obtain information 
     from the executive branch are sometimes met with assertions 
     of executive privilege. No decision of the Supreme Court 
     resolves the question of whether there are any circumstances 
     in which the executive branch can refuse to provide 
     information sought by Congress on the basis of executive 
     privilege, but the caselaw offers some guidance for 
     committees when the privilege is asserted. In upholding a 
     judicial subpoena in United States v. Nixon, the Supreme 
     Court found a constitutional basis for the doctrine of 
     executive privilege, rejected the President's contention that 
     the privilege was absolute, and balanced the President's need 
     for confidentiality and the judiciary's need for the 
     materials in a criminal proceeding.
       A distinction has been recognized by the courts between two 
     aspects of executive privilege--the presidential 
     communications privilege and the deliberative process 
     privilege. The former has a constitutional basis in the 
     separation of powers doctrine, relates to ``direct 
     decisionmaking by the President,'' and concerns 
     ``quintessential and non-delegable powers,'' whereas the 
     latter ``is primarily a common law privilege'' applicable 
     ``to decisionmaking of executive officials generally.'' The 
     former applies to entire documents (including factual 
     material) and ``covers final and post-decisional materials as 
     well as pre-deliberative ones.'' The latter covers 
     predecisional and deliberative materials, not ``purely 
     factual [material], unless the material is so inextricably 
     intertwined with the deliberative sections of documents that 
     its disclosure would inevitably reveal the government's 
     deliberations.'' Both privileges are qualified. When either 
     privilege is asserted, the court will balance the public 
     interests involved and assess the need of the party seeking 
     the privileged information.
       The range of executive branch officials who may 
     appropriately assert executive privilege before congressional 
     committees, and the circumstances under which they may do so, 
     remains unresolved by the courts, and is a matter that may be 
     determined by case-by-case accommodation between the 
     political branches. Some guidance in this regard was offered 
     by Chief Justice William Rehnquist, when he was Assistant 
     Attorney General in the Nixon Administration. Rehnquist 
     distinguished between ``those few executive branch witnesses 
     whose sole responsibility is that of advising the 
     President,'' who ``should not be required to appear [before 
     Congress] at all, since all of their official 
     responsibilities would be subject to a claim of privilege,'' 
     and ``the executive branch witness . . . whose 
     responsibilities include the administration of departments or 
     agencies established by Congress, and from whom Congress may 
     quite properly require extensive testimony,'' subject to 
     ``appropriate'' claims of privilege.
       Following a review of Rehnquist's statement, precedents and 
     practice concerning congressional access to executive branch 
     information (particularly, the testimony of presidential 
     advisers), and constitutional issues, it is possible to 
     suggest some key legal factors that together may determine 
     whether a congressional request for the testimony of one who 
     advises the President will be honored. (1) In the view of the 
     executive, the few individuals whose sole duty is to advise 
     the President should never be required to testify because all 
     of their duties are protected by executive privilege. (2) The 
     executive has conceded that an official who has operational 
     functions in a department or agency established by law may be 
     required to testify, although at times such an official may 
     invoke executive privilege. (3) Congress may increase its 
     leverage if the position of the potential witness is subject 
     to Senate confirmation.

[[Page H1624]]

           Procedure for Obtaining Executive Branch Testimony

       A congressional committee may request (informally, or by a 
     letter from the committee chair, perhaps co-signed by the 
     ranking Member) or demand (pursuant to subpoena) the 
     testimony of a presidential adviser. However, Congress may 
     encounter legal and political problems in attempting to 
     enforce a subpoena to a presidential adviser.
       Conflicts concerning congressional requests or demands for 
     executive branch testimony or documents often involve 
     extensive negotiations, and may be resolved by some form of 
     compromise as to, inter alia, the scope of the testimony or 
     information to be provided to Congress. If the executive 
     branch fails to comply with a committee subpoena, and if 
     negotiations do not resolve the matter, the committee may 
     employ Congress's inherent contempt authority (involving a 
     trial at the bar of the Senate or House) or statutory 
     criminal contempt authority in an effort to obtain the needed 
     information. Both of these procedures are somewhat 
     cumbersome, and their use may not result in the production of 
     the information that is sought.
       When faced with a refusal by the executive branch to comply 
     with a demand for information, Congress has several 
     alternatives to inherent and statutory contempt, although 
     these alternatives are not without their own limitations. One 
     approach is to seek declaratory or other relief in the 
     courts. Previous attempts to seek judicial resolution of 
     inter-branch conflicts over information access issues have 
     encountered procedural obstacles and have demonstrated the 
     reluctance of the courts to resolve sensitive separation of 
     powers issues. Other approaches may include, inter alia, 
     appropriations riders, impeachment, and a delay in the 
     confirmation of presidential appointees.
       In addition to the options generally available in the event 
     of a refusal by the executive to provide information sought 
     by Congress, when a presidential adviser who is not serving 
     in a department or agency declines to testify before a 
     committee, Congress might wish to establish the entity in 
     which he serves by law, and subject the head of the entity to 
     Senate confirmation.


                               Conclusion

       (1) Legal and policy factors may explain why presidential 
     advisers do not regularly testify before committees. (2) 
     Generally, a congressional committee with jurisdiction over 
     the subject matter, which is conducting an authorized 
     investigation for legislative or oversight purposes, has a 
     right to information held by the executive branch in the 
     absence of either a valid claim of constitutional privilege 
     by the executive or a statutory provision whereby Congress 
     has limited its constitutional right to information. (3) A 
     committee may request or demand the testimony of a 
     presidential adviser. Legal mechanisms available for 
     enforcing congressional subpoenas to the executive branch may 
     fail to provide the committee with the desired information. 
     (4) Negotiations may result in the production of at least 
     some of the information sought.

     

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