[Congressional Record (Bound Edition), Volume 163 (2017), Part 8]
[Senate]
[Pages 11130-11132]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    REMOVAL OF NOMINATION OBJECTION

  Mr. GRASSLEY. Mr. President, on June 20, 2017, I notified the 
majority leader of my intent to object to any unanimous consent request 
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 he adequately responded to my 
questions regarding his views on the OLC's May 1, 2017, opinion, 
``Authority of Individual Members of Congress to Conduct Oversight of 
the Executive Branch.''
  As I have previously noted, 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. 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requesting that the OLC opinion be rescinded.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 asked 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.
  Mr. Engel promptly responded to my letter on June 23, 2017, and to a 
second June 27, 2017, followup letter on July 12, 2017. I ask unanimous 
consent that Mr. Engel's responses be placed in the Record following my 
remarks.
  I also met with Mr. Engel in my office on July 19, 2017, to further 
discuss and clarify his views on the authority of individual Members to 
request information from the executive branch. Mr. Engel's responses, 
both in writing and in person, indicate that he agrees each Member, 
whether or not a chairman of a committee, is a constitutional officer 
entitled to the respect and best efforts of the executive branch to 
respond to his or her requests for information to the extent permitted 
by law. He also agreed: No. 1, that the May 1, 2017, OLC opinion on 
this topic failed to consider adverse legal authority, specifically 
Murphy v. Dep't of the Army, 613 F.2d 1151 (D.C. Cir. 1979); and No. 2, 
that, if confirmed, he would review the opinion; and No. 3, consider 
whether a more complete analysis of the issue is necessary.
  I am satisfied that Mr. Engel understands the obligation of all 
Members of Congress to seek executive branch information to carry out 
their constitutional responsibilities and the obligation of the 
executive branch to respect that function and seek comity between the 
branches. Therefore, I agree a vote should be scheduled on his 
nomination, and I wish him the very best in his new role.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Washington, DC, June 23, 2017.
     Hon. Charles E. Grassley,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Grassley: I write in response to your June 
     12, 2017 letter concerning the May 1, 2017 letter opinion of 
     the Office of Legal Counsel (``OLC''). I appreciate your 
     interest in ensuring that Members of Congress are able to 
     obtain the information necessary to fulfill their 
     constitutional responsibilities, as well as your attention to 
     ensuring that OLC opinions provide candid, independent, and 
     principled legal advice. If I am confirmed as Assistant 
     Attorney General, I will be committed to ensuring that OLC 
     complies with these principles.
       I provide here my responses to the seven questions in your 
     June 12 Letter.
       1. Are you familiar with the May 1, 2017 OLC opinion?
       Response: I am not currently at the Department of Justice, 
     but I read the May 1, 2017 opinion shortly after it was 
     published.
       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?
       Response: Because I am not currently at the Department of 
     Justice, I have not had occasion to review all of the 
     underlying precedents that may bear upon the May 1, 2017 
     letter opinion. I agree that an OLC opinion should candidly 
     and fairly address all relevant legal sources, and there are 
     judgment calls that must be made in determining what should 
     be included, particularly with respect to letter opinions 
     (which tend to be shorter and less formal). With respect to 
     the May 1, 2017 opinion, I do agree that Murphy v. Dep't of 
     the Army, 613 F.2d 1151 (D.C. Cir. 1979), which was cited in 
     your June 7, 2017 letter to the President, may bear upon the 
     issues addressed in the May 1, 2017 opinion. I understand 
     that in 1980, and again in 1984, the Department of Justice 
     advised that, with respect to FOIA practices, the Murphy 
     decision did not eliminate the legal distinction between 
     requests made by Committee Chairmen and those made by 
     individual Members of Congress. In my opinion, it would have 
     been useful for OLC's letter opinion to address the 
     Department's current understanding of the Murphy decision in 
     the context of congressional oversight.
       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?
       Response: The D.C. Circuit has recognized that each member 
     of Congress has a ``constitutionally recognized status'' that 
     includes a legitimate need ``to request such information from 
     the executive agencies as will enable him to carry out the 
     responsibilities of a legislator.'' Murphy, 613 F.2d at 1157. 
     I believe that individual Members are ``authorized'' to seek 
     such information in their roles as constitutional officers. 
     The question whether Congress has separately authorized such 
     requests would turn upon the rules of each House of Congress. 
     In my view, the Executive Branch should seek to satisfy the 
     legislative interests reflected in the information requests 
     of individual Members, to the extent practicable and 
     consistent with the confidentiality obligations of the 
     Executive Branch,
       4. In your experience, what percentage of congressional 
     requests for information are answered by the Executive Branch 
     on a voluntary basis?
       Response: In my experience at the Department of Justice, 
     the Executive Branch seeks

[[Page 11131]]

     to answer the majority of congressional requests for 
     information on a voluntary basis. Congress rarely seeks the 
     compulsory disclosure of information from a Department or 
     agency.
       5. In your view, what is an appropriate reason for 
     withholding information requested by an individual Member of 
     Congress?
       Response: Traditionally, the Executive Branch has sought to 
     provide Members of Congress with requested information except 
     where there is a need to protect important confidentiality 
     interests, such as those involving national security 
     information; materials that are protected by law (such as 
     grand jury information, taxpayer information, or materials 
     restricted from disclosure by the Privacy Act); information 
     the disclosure of which might compromise open law enforcement 
     or civil enforcement investigations; presidential 
     communications; or information involving agencies' 
     predecisional deliberative communications.
       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?
       Response: The Department of Justice has recognized that the 
     accommodation process ``is an obligation of each branch to 
     make a principled effort to acknowledge and if possible to 
     meet, the legitimate needs of the other branch.'' Opinion of 
     the Attorney General for the President, Assertion of 
     Executive Privilege in Response to a Congressional Subpoena, 
     5 Op. O.L.C. 27, 31 (1981). At the same time, the courts and 
     others have distinguished between official requests from 
     Committees and those from individual Members. See, e.g., 
     Exxon v. FTC, 589 F.2d 582, 592-93 (D.C. Cir. 1978) 
     (recognizing that the ``principle is important that 
     disclosure of information can only be compelled by authority 
     of Congress, its committees or subcommittees, not solely by 
     individual members . . .''); Alissa M. Dolan et al., Cong. 
     Research Serv., RL 30240, Congressional Oversight Manual 65 
     (Dec. 19, 2014) (``[N]o judicial precedent has directly 
     recognized an individual Member's right, other than a 
     committee chair, to exercise the committee's oversight 
     authority without the permission of a majority of the 
     committee or its chair.''). In my view, the Executive Branch 
     should seek to satisfy the legislative needs of Members to 
     the extent practicable and consistent with the 
     confidentiality obligations of the Executive Branch.
       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?
       Response: In view of the constitutional responsibilities of 
     individual Members of Congress, the Executive Branch may well 
     provide information to Members that goes beyond the 
     requirements of the FOIA statute, and the Executive Branch 
     has the discretion to provide information or documents even 
     if it would be exempt from mandatory public disclosure under 
     FOIA. I understand that the Executive Branch does not treat 
     individual Member requests as requests under FOIA, and thus, 
     the Executive Branch may provide more information about 
     Executive Branch programs than it provides to FOIA 
     requestors, who are entitled to receive only documents.
       I appreciate your attention to these important questions. 
     Please let me know if I may be of any more assistance on 
     these issues, or on any other matters in the future.
           Sincerely,
     Steven A. Engel.
                                  ____

                                    Washington, DC, July 12, 2017.
     Hon. Charles E. Grassley,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Grassley: I write in response to your June 
     27, 2017 letter, which continues our correspondence 
     concerning the May 1, 2017 letter opinion of the Office of 
     Legal Counsel (``OLC''). I understand your concerns with the 
     legal opinion, as well as with recent reports concerning 
     Executive Branch policies governing congressional oversight. 
     Because I am currently in private practice, I had no role in 
     drafting the May 1 opinion, and I likewise have no 
     familiarity with the Administration's internal policies 
     concerning congressional oversight requests. If I am 
     confirmed as Assistant Attorney General for the Office of 
     Legal Counsel, I will review the May 1 opinion and ensure 
     that OLC's legal advice reflects my best judgment of the law 
     and established practice in this area.
       I provide here my responses to the six additional questions 
     raised in your letter.
       1. You acknowledged that the OLC opinion did not examine 
     key additional authorities which recognize the constitutional 
     role of individual Members to seek information from the 
     Executive Branch. If confirmed, will you commit to a more 
     careful study of this issue and other questions I have 
     raised?
       Response: Yes.
       2. Will you commit to modifying this OLC opinion to be 
     consistent with your own recognition that individual Members 
     ``are `authorized' to seek . . . information [from the 
     Executive Branch] in their roles as constitutional 
     officers?'' If not, why not?
       Response: If I am confirmed, I will review the May 1 
     opinion and come to my best judgment of the law and 
     established practice in this area, including with respect to 
     any further guidance or clarifications to the May 1 opinion 
     that may be appropriate.
       3. You note in your response to Question 3 that ``the 
     Executive Branch should seek to satisfy the legislative 
     interests reflected in the information requests of individual 
     Members.'' As I wrote in my June 7, 2017, letter to the 
     President, the May 1 OLC opinion draws a distinction between 
     ``oversight'' and ``non-oversight'' requests. I have never 
     sent or seen a letter requesting information for ``non-
     oversight'' purposes, and I still do not understand what it 
     means. As you know, courts have recognized that ``oversight'' 
     is inherent in the legislative power and just as broad. As 
     the Court recognized in McGrain v. Daugherty, 273 U.S. 135 
     (1927):
       A legislative body cannot legislate wisely or effectively 
     in the absence of information respecting the conditions which 
     the legislation is intended to affect or change; and where 
     the legislative body does not possess the requisite 
     information--which not infrequently is true--recourse must be 
     had to others who do possess it.
       Id. at 175. This power of inquiry ``encompasses inquiries 
     concerning the administration of existing laws as well as 
     proposed or possibly needed statutes.'' Watkins v. United 
     States, 354 U.S. 178, 187 (1957). Congressional oversight 
     encompasses a myriad of legislative tools, processes, and 
     purposes, and is not simply limited to investigations of 
     waste, fraud, and abuse conducted by a Committee Chairman.
       How exactly can a congressional inquiry be distinguished on 
     the basis of whether it is an ``oversight'' or a ``non-
     oversight'' inquiry, to borrow the language from the May 1 
     opinion? More importantly, by what authority can the 
     Executive Branch purport to make such a determination absent 
     explicit direction from the Legislative Branch?
       Response: If confirmed, I will review the distinction 
     between ``oversight'' and ``non-oversight'' inquiries, as 
     those terms are used in the May 1 opinion. The May 1 opinion 
     appears to draw a procedural distinction between information 
     requests made by ``a committee, subcommittee, or chairman 
     exercising delegated oversight authority'' and those made by 
     individual Members who are not acting pursuant to explicit 
     authorization of the Standing Rules of the Senate or the 
     Rules of the House of Representatives. See Office of Legal 
     Counsel, Letter Opinion for the Counsel to the President, 
     Authority of Individual Members of Congress to Conduct 
     Oversight of the Executive Branch at 3 (May 1, 2017). In 
     support, the May 1 opinion quotes the Congressional Research 
     Service's Congressional Oversight Manual, which advises that 
     when individual Members request agency records ``they are not 
     acting pursuant to Congress's constitutional authority to 
     conduct oversight and investigations.'' Alissa M. Dolan et 
     al., Cong. Research Serv., RL30240, Congressional Oversight 
     Manual 56 (Dec. 19, 2014)).
       As we have previously discussed, the D.C. Circuit has 
     recognized that individual Members have a ``constitutionally 
     recognized status'' that includes a legitimate need ``to 
     request such information from the executive agencies as will 
     enable him to carry out the responsibilities of a 
     legislator.'' Murphy v. Dep't of the Army, 613 F.2d 1151 
     (D.C. Cir. 1979). This would be true, no matter whether those 
     requests are called ``oversight'' inquiries or something 
     else. If confirmed, I will consider these issues in 
     connection with my review of the May 1 opinion.
       4. The Inspector General Empowerment Act of 2016 explicitly 
     authorizes any member of Congress upon request to obtain 
     information related to Inspector General reports that is not 
     otherwise prohibited from public disclosure. Do you agree 
     that such requests from individual Members are ``oversight'' 
     requests? Why or why not?
       Response: I have not previously studied the referenced 
     provision of the Inspector General Empowerment Act. As a 
     general matter, if a statute calls for the Executive Branch 
     to provide information in response to a request from a Member 
     of Congress, then the Executive Branch should respond--no 
     matter whether the Member's request would be characterized as 
     ``oversight'' or something else--in a manner consistent with 
     the Department's other statutory and constitutional 
     obligations, including its law enforcement, litigation, and 
     national security responsibilities.
       5. I asked in my June 12, 2017, letter whether the 
     Executive Branch has any Constitutional responsibility to 
     respond to individual Members of Congress. You noted, as the 
     OLC opinion notes, that requests from individual Members 
     cannot be compelled. But I did not ask whether individual 
     Members have the power to compel responses. They clearly do 
     not. As you noted in your response to question 4, ``Congress 
     rarely seeks the compulsory disclosure of information from a 
     Department or agency.'' Your experience matches my own. As I 
     noted in my June 7, 2017 letter to the President, most 
     responses to requests for information--from Chairmen or not--
     are received voluntarily. I also believe it is important to 
     remember that many

[[Page 11132]]

     of the relevant case precedents examining questions related 
     to congressional oversight arise in a compulsory context. By 
     virtue of the fact that most responses are voluntary, a court 
     has never had occasion to consider them.
       What I want to understand is not whether the Executive 
     Branch will pay a legal penalty for refusing to answer 
     individual Member requests, but whether such requests, made 
     as part of their wide-ranging Constitutional 
     responsibilities, are due the best efforts of the Executive 
     Branch given the nature of those responsibilities and the 
     need and desire for comity between the branches. Do you 
     agree? Is this what you mean by your response: ``In my view 
     the Executive Branch should seek to satisfy the legislative 
     needs of Members to the extent practicable''?
       Response: I agree that in the interest of comity, the 
     Executive Branch should give due weight and sympathetic 
     consideration to requests from individual Members of 
     Congress, even where the executive official is not faced with 
     a legal penalty for refusing to answer, and that is what I 
     meant in my prior response.
       6. I asked you whether an individual Member request was 
     entitled to any greater weight than a Freedom of Information 
     Act (FOIA) request. You responded that ``the Executive Branch 
     may well provide information to Members that goes beyond the 
     requirements of the FOIA'' and that you believe ``the 
     Executive Branch does not treat individual member requests as 
     requests under FOIA, and thus, the Executive Branch may 
     provide more information about Executive Branch programs than 
     it provides to FOIA requestors, who are entitled to receive 
     only documents.'' However, in my experience, FOIA requestors 
     with ready access to judicial review and experienced FOIA 
     litigators often get more information even than Congressional 
     Committees, let alone individual Members. Unlike FOIA 
     litigants, a Member must first convince an entire House of 
     Congress to hold an executive branch official in contempt 
     before obtaining judicial review of an information request. 
     Should the Executive Branch strive to meet a higher standard 
     for voluntary cooperation with Congress, given its 
     constitutional duties, than merely disclosure of that which 
     could be judicially mandated? If so, what would you do to 
     ensure that Executive Branch officials understand the 
     Constitutional basis for the importance of voluntary 
     cooperation with Congressional information requests?
       Response: Yes, I agree that the measure of the Executive 
     Branch's cooperation should not be simply what could be 
     judicially mandated. I believe that, in the interest and 
     spirit of comity, the Executive Branch should seek to satisfy 
     the legislative needs of Members, as indicated by my prior 
     response. That may well include providing additional 
     information about Executive Branch programs beyond what would 
     be available to FOIA requestors. If confirmed, I will ensure 
     that the Office of Legal Counsel's legal advice in this area 
     would be consistent with such principles.
       I appreciate your interest in these important questions. 
     Please let me know if I may be of any more assistance on 
     these issues or on any other matters in the future.
           Sincerely,
     Steven A. Engel.

                          ____________________