[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OLC opinion be rescinded.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.

                          ____________________