[Congressional Record Volume 163, Number 105 (Tuesday, June 20, 2017)]
[Senate]
[Pages S3643-S3644]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OBJECTION
Mr. GRASSLEY. Mr. President, I intend to object to any unanimous
consent request at the present time relating to the nomination of
Steven A. Engel, of the District of Columbia, to be the Assistant
Attorney General for the U.S. Department of Justice Office of Legal
Counsel until Mr. Engel responds to questions I posed to him in a June
12, 2017, letter concerning a May 1, 2017, opinion by the Office of
Legal Counsel entitled, ``Authority of Individual Members of Congress
to Conduct Oversight of the Executive Branch.''
The Senate Judiciary Committee approved Mr. Engel's nomination on
June
[[Page S3644]]
8, 2017, and my objection is not intended to question the credentials
of Mr. Engel in any way. However, at that time, no member had
sufficient opportunity to pose questions to Mr. Engel concerning the
May 1, 2017, OLC opinion. I believe each Member of my committee and of
the Senate should have the benefit of his views on the opinion as they
consider his nomination to lead the office that created it.
The opinion erroneously states that individual Members of Congress
are not constitutionally authorized to conduct oversight. It creates a
false distinction between oversight and what it calls ``nonoversight''
requests, and it relegates requests from individual Members for
information from the Executive branch to Freedom of Information Act
requests. I have written a letter to the President requesting that the
OLC opinion be rescinded. The Executive branch should properly
recognize that individual Members of Congress have a constitutional
role in seeking information from the Executive branch and should work
to voluntarily accommodate those requests.
My June 12, 2017, letter to Mr. Engel asks him several questions
about the opinion, including whether the opinion met the OLC's own
internal standards requiring impartial analysis, whether individual
Members of Congress are ``authorized'' to seek information from the
Executive branch, and what level of deference the Executive branch
should provide to individual Member requests. I ask unanimous consent
that it be printed in the Record following my remarks. I look forward
to Mr. Engel's responses.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, June 12, 2017.
Steven A. Engel,
Care of the Office of Legislative Affairs, United States
Department of Justice, Washington, DC.
Dear Mr. Engel: recently, the Committee obtained a copy of
a May 1, 2017, Office of Legal Counsel (OLC) opinion entitled
``Authority of Individual Members of Congress to Conduct
Oversight of the Executive Branch.'' That opinion asserts
that individual Members of Congress in fact do not have that
authority. Specifically, the opinion states, quite
remarkably, that individual Members of Congress are not
Constitutionally authorized to request information from the
Executive Branch. It further states that requests from non-
Chairmen essentially are subject to the same level of
deference as a request submitted from a private, unelected
member of the public pursuant to the Freedom of Information
Act (FOIA).
As you know, the Constitution imposes significant
responsibilities on each and every Member of Congress that
require them to make informed decisions and cast votes in the
best interests of their constituents on a vast array of
matters. Those responsibilities in many instances require
that the Members have access to Executive Branch information.
The OLC opinion did not entertain this and other key points
and did not attempt to address the significant and dangerous
implications it creates for the separation of powers,
bipartisan congressional oversight, transparency in
government, and accountability to the American people. Your
views on this opinion, its incomplete analysis, and its
highly problematic conclusions are very important for
``individual Members'' of the United States Senate to
carefully weigh as they consider your nomination.
Thus, please respond to the following questions by June 26,
2017. Please number your answers according to their
corresponding questions.
1. Are you familiar with the May 1, 2017 OLC opinion?
2. In your view, does this opinion meet the standards
described in OLC guidance that require impartial analysis of
competing authorities or authorities that may challenge an
opinion's conclusions? If so, can you please point to the
portion of the opinion which you believe fully discusses
contrary authority or arguments for non-Chairmen's need for
information from the Executive Branch to carry out their
constitutional function?
3. Do you believe that individual Members of Congress, who
are not Chairmen of committees, are ``authorized'' to seek
information from the Executive Branch to inform their
participation in the legislative powers of Congress? Do you
believe they are authorized by the Constitution? Why or why
not? Do you believe that they are authorized by Congress? Why
or why not?
4. In your experience, what percentage of congressional
requests for information are answered by the Executive Branch
on a voluntary basis?
5. In your view, what is an appropriate reason for
withholding information requested by an individual Member of
Congress?
6. In your view, does the Executive Branch have any
Constitutional responsibility to respond to requests for
information from individual Members of Congress as part of a
process of accommodation in order to promote comity between
the branches? If not, why not?
7. Is a request from an individual, elected Member of
Congress entitled to any greater weight than a FOIA request,
given the Member's broad Constitutionally mandated
legislative responsibilities? Why or why not?
Thank you for your cooperation in this important matter.
Should you have questions, please contact DeLisa Lay of my
Committee staff.
Sincerely,
Charles E. Grassley,
Chairman, Committee on the Judiciary.
____________________