[House Report 116-108]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 116-108
======================================================================
AUTHORIZING THE COMMITTEE ON THE JUDICIARY TO INITIATE OR INTERVENE IN
JUDICIAL PROCEEDINGS TO ENFORCE CERTAIN SUBPOENAS AND FOR OTHER
PURPOSES
_______
June 10, 2019.--Referred to the House Calendar and ordered to be
printed
_______
Mr. McGovern, from the Committee on Rules, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H. Res. 430]
The Committee on Rules, to whom was referred the resolution
(H. Res. 430) authorizing the Committee on the Judiciary to
initiate or intervene in judicial proceedings to enforce
certain subpoenas and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the resolution as amended be agreed to.
CONTENTS
PAGE
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Hearings......................................................... 23
Committee Consideration.......................................... 23
Committee Votes.................................................. 23
Committee Oversight Findings and Recommendations................. 26
Performance Goals and Objectives................................. 26
Advisory Committee Statement..................................... 27
Section-by-Section Analysis of the Legislation................... 27
Changes in Existing House Rules Made by the Resolution, as
Reported....................................................... 28
Dissenting Views................................................. 29
The amendment is as follows:
Strike the text and insert the following:
That the chair of the Committee on the Judiciary of the House of
Representatives is authorized, on behalf of such Committee, to initiate
or intervene in any judicial proceeding before a Federal court--
(1) to seek declaratory judgments and any and all ancillary
relief, including injunctive relief, affirming the duty of--
(A) William P. Barr, Attorney General, to comply with
the subpoena that is the subject of the resolution
accompanying House Report 116-105; and
(B) Donald F. McGahn, II, former White House Counsel,
to comply with the subpoena issued to him on April 22,
2019; and
(2) to petition for disclosure of information regarding any
matters identified in or relating to the subpoenas referred to
in paragraph (1) or any accompanying report, pursuant to
Federal Rule of Criminal Procedure 6(e), including Rule
6(e)(3)(E) (providing that the court may authorize disclosure
of a grand-jury matter ``preliminarily to... a judicial
proceeding'').
Resolved, That the chair of each standing and permanent select
committee, when authorized by the Bipartisan Legal Advisory Group,
retains the ability to initiate or intervene in any judicial proceeding
before a Federal court on behalf of such committee, to seek declaratory
judgments and any and all ancillary relief, including injunctive
relief, affirming the duty of the recipient of any subpoena duly issued
by that committee to comply with that subpoena. Consistent with the
Congressional Record statement on January 3, 2019, by the chair of the
Committee on Rules regarding the civil enforcement of subpoenas
pursuant to clause 8(b) of rule II, a vote of the Bipartisan Legal
Advisory Group to authorize litigation and to articulate the
institutional position of the House in that litigation is the
equivalent of a vote of the full House of Representatives.
Resolved, That in connection with any judicial proceeding brought
under the first or second resolving clauses, the chair of any standing
or permanent select committee exercising authority thereunder has any
and all necessary authority under Article I of the Constitution.
Resolved, That the chair of any standing or permanent select
committee exercising authority described in the first or second
resolving clause shall notify the House of Representatives, with
respect to the commencement of any judicial proceeding thereunder.
Resolved, That the Office of General Counsel of the House of
Representatives shall, with the authorization of the Speaker, represent
any standing or permanent select committee in any judicial proceeding
initiated or intervened in pursuant to the authority described in the
first or second resolving clause.
Resolved, That the Office of General Counsel of the House of
Representatives is authorized to retain private counsel, either for pay
or pro bono, to assist in the representation of any standing or
permanent select committee in any judicial proceeding initiated or
intervened in pursuant to the authority described in the first or
second resolving clause.
PURPOSE AND SUMMARY
This resolution authorizes the Committee on the Judiciary
to initiate or intervene in judicial proceedings to enforce
certain subpoenas, a process commonly referred to as ``civil
contempt.''\1\ The resolution affirms that the chair of each
standing and permanent select committee, when authorized by the
Bipartisan Legal Advisory Group, retains the ability to
initiate or intervene in judicial proceedings to seek
enforcement of subpoenas issued by the committee. The
resolution provides that, in connection with any judicial
proceeding brought under the first or second resolving clause,
the chair of any standing or permanent select committee
exercising the authority thereunder has any and all necessary
authority under Article I of the Constitution. The resolution
requires the chair of any standing or permanent select
committee exercising authority as described in the first or
second resolving clause to notify the House of Representatives,
with respect to the commencement of any judicial proceeding.
The resolution allows the Office of General Counsel of the
House of Representatives, with authorization of the Speaker, to
represent any standing or permanent select committee in any
judicial proceeding initiated or intervened in pursuant to the
authority described in the first or second resolving clause.
Finally, the resolution permits that the Office of General
Counsel of the House of Representatives to retain private
counsel, either for pay or pro bono, to assist in the
representation of any standing or permanent select committee in
any judicial proceeding initiated or intervened in pursuant to
the authority described in the first or second resolving
clause.
---------------------------------------------------------------------------
\1\See, e.g., Morton Rosenberg, When Congress Comes Calling: A
Study on the Principles, Practices, and Pragmatics of Legislative
Inquiry 31 (2017) (referring to civil suits to enforce subpoenas as
``civil contempt suits''); Morton Rosenberg & Todd B. Tatelman, Cong.
Res. Serv., Congress's Contempt Power: Law, History, Practice, and
Procedure 37-46 (Apr. 15, 2008) (describing judicial proceedings to
enforce subpoenas as ``Civil Contempt in the House of
Representatives'').
---------------------------------------------------------------------------
BACKGROUND AND NEED FOR LEGISLATION
Since the start of the current 116th Congress, in
performing its constitutional duty to conduct oversight of the
Executive Branch, the House of Representatives has been met
with unprecedented stonewalling and obstruction by the White
House and Trump Administration. This cover-up is being directed
from the top. President Trump, without citing any legitimate
rationale, has vowed, ``We're fighting all the subpoenas''\2\
and declared, ``I don't want people testifying.''\3\ Since
then, the President has refused to work on legislative
priorities, such as infrastructure, until the House halts all
oversight and investigations of his Administration.\4\
---------------------------------------------------------------------------
\2\Trump vows stonewall of `All' House subpoenas, setting up fight
over powers (April 24, 2019) (online at https://www.nytimes.com/2019/
04/24/us/politics/donald-trump-subpoenas.html)
\3\Trump says he is opposed to White House aides testifying to
Congress, deepening power struggle with Hill (April 23, 2019) (online
at https://www.washingtonpost.com/politics/trump-says-he-is-opposed-to-
white-house-aides-testifying-to-congress-deepening-power-struggle-with-
hill/2019/04/23/0c7bd8dc-65e0-11e9-8985-
4cf30147bdca_story.html?utm_term=.c08cc78e2536)
\4\Trump Refuses to Repair Infrastructure Unless Congress Halts All
Investigations, New York Magazine (May 22, 2019) (online at http://
nymag.com/intelligencer/2019/05/trump-stop-investigating-me-or-
infrastructure-deal-dies.html).
---------------------------------------------------------------------------
The result of this blanket obstruction has been the Trump
Administration's failure to fully comply with, or completely
ignoring, all legitimate oversight requests. Whether it be
ignoring requests for documents, limiting in-person interviews,
refusing to attend depositions, or defying duly issued
congressional subpoenas, the Executive Branch's actions to
undermine the oversight obligations of the Legislative Branch
have been wide-ranging and systemic.
This obstruction of the oversight responsibilities of the
House is not only an affront to our constitutional system of
checks and balances, but it also serves to stifle the work of
Congress to address issues important to the American people.
From protecting Americans' access to health care and responding
to natural disasters, to protecting our clean air and water,
this Administration has failed to provide the information the
People's House requires to conduct oversight of these crucial
issues. Obstructing oversight in these areas impairs the
ability of the Congress to have sufficient information to
legislate effectively and efficiently on behalf of the American
people. As the Supreme Court has said: ``The power of inquiry
has been employed by Congress throughout our history, over the
whole range of the national interests concerning which Congress
might legislate or decide upon due investigation not to
legislate; it has similarly been utilized in determining what
to appropriate from the national purse, or whether to
appropriate. The scope of the power of inquiry, in short, is as
penetrating and far-reaching as the potential power to enact
and appropriate under the Constitution.''\5\
---------------------------------------------------------------------------
\5\Barenblatt v. United States, 360 U.S. 109, 111 (1959).
---------------------------------------------------------------------------
No one is above the law and no administration is immune
from oversight. The House of Representatives will hold this
Administration accountable, continue to advance legislation
important to the American people, and stand up for the
principle of checks and balances that is the bedrock of our
Constitution.
Investigating Critical Issues Important to the American People
The Trump Administration's unprecedented obstruction of all
Congressional oversight not only erodes our constitutional
system of checks and balances, but also prevents the People's
House from getting the answers it needs to properly oversee the
Executive Branch and adopt legislation on issues that impact
the American people. Stonewalling by the Trump Administration
is harming Americans' access to health care.
a. Harm to Americans' Access to Health Care
The Trump Administration's obstruction is stifling
Democratic efforts to provide oversight to ensure that the
American people have access to affordable healthcare. The
Committees on Oversight and Reform, Energy and Commerce, Ways
and Means, Education and Labor, and the Judiciary, are
investigating the Trump Administration's involvement in the
Department of Justice's (DOJ) sudden and significant decision
to reverse its previous position defending the
constitutionality of key provisions of the Affordable Care Act
(ACA). Despite requests for documents from DOJ and the White
House, as well as requests for interviews with key witnesses on
April 8, 2019 and May 13, 2019, neither DOJ nor the White House
has responded in any capacity.\6\
---------------------------------------------------------------------------
\6\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, Frank Pallone, Jr., Chairman, H. Comm. on Energy and
Commerce, Richard E. Neal, Chairman, H. Comm. on Ways and Means, Robert
C. ``Bobby'' Scott, Chairman, H. Comm. on Education And Labor, and
Jerrold Nadler, Chairman, H. Comm. on Judiciary, to William Barr,
Attorney General, Dept. of Justice (April 8, 2019), available at
https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/
documents/4.8.2019%20Letter%20to%20Barr%20re.%20ACA.pdf; Letter from
Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, Frank
Pallone, Jr., Chairman, H. Comm. on Energy and Commerce, Richard E.
Neal, Chairman, H. Comm. on Ways and Means, Robert C. ``Bobby'' Scott,
Chairman, H. Comm. on Education and Labor, and Jerrold Nadler,
Chairman, H. Comm. on Judiciary, to Pat Cipollone, Counsel to the
President, (April 8, 2019), available at https://oversight.house.gov/
sites/democrats. oversight.house.gov/files/2019-04-
08.EEC%20Pallone%20Neal%20Scott%20Nadler%20to%20Cipollone-
WH%20re%20ACA.pdf; Letter from Elijah E. Cummings, Chairman, H. Comm.
on Oversight and Reform, Frank Pallone, Jr., Chairman, H. Comm. on
Energy and Commerce, Richard E. Neal, Chairman, H. Comm. on Ways and
Means, Robert C. ``Bobby'' Scott, Chairman, H. Comm. on Education And
Labor, and Jerrold Nadler, Chairman, H. Comm. on Judiciary, to Pat
Cipollone, Counsel to the President (May 13, 2019), available at
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/
2019-05-13.EEC%20Pallone%20Neal%20Scott%20Nadler%20to%20Cipollone-
WH%20re%20ACA.pdf; Letter from Elijah E. Cummings, Chairman, H. Comm.
on Oversight and Reform, Frank Pallone, Jr., Chairman, H. Comm. on
Energy and Commerce, Richard E. Neal, Chairman, H. Comm. on Ways and
Means, Robert C. ``Bobby'' Scott, Chairman, H. Comm. on Education And
Labor, and Jerrold Nadler, Chairman, H. Comm. on Judiciary, to William
Barr, Attorney General, Dept. of Justice (May 13, 2019), available at
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/
2019-05-13.EEC%20Pallone%20Neal%20Scott%20Nadler%20to%20Barr-
DOJ%20re%20ACA.pdf.
---------------------------------------------------------------------------
The Trump Administration has also failed to respond to
Congressional inquiries regarding its sabotage of the American
health care system, which is increasing health care costs and
taking away coverage from American families and patients. On
February 21, 2018, the Administration released a Proposed Rule
on Short-Term, Limited Duration Insurance (STLDI). The
Administration proposed to permit the sale of junk STLDI plans
with duration terms of up to 12 months and that could be
renewed for up to three years. These unregulated junk plans
leave American families exposed to great financial risk and
increase costs for individuals with pre-existing conditions who
need comprehensive coverage. On August 3, 2018, the
Administration released the Final Rule on STLDI. On January 8,
2019, the Committees sent a letter to the Administration
requesting information, including how HHS arrived at the final
rule.\7\ HHS has failed to produce any documents in response.
---------------------------------------------------------------------------
\7\Letter from the Frank Pallone, Jr., Chairman, H. Comm. on Energy
and Commerce, Bobby Scott, Chairman, H. Comm. on Education and Labor,
Richard Neal, Chairman, H. Comm. on Ways and Means, Ron Wyden, Ranking
Member, S. Comm. on Finance, Patty Murray, Ranking Member, S. Comm. on
Health, Educ., Labor, and Pensions, to Alex Azar, Secretary, Dept. of
Health and Human Services, Alexander Acosta, Secretary, Dept. of Labor,
Steven Mnuchin, Secretary, Dept. of Treasury, Mick Mulvaney, Director,
Office of Mgmt. and Budget (Jan. 8, 2019).
---------------------------------------------------------------------------
On October 22, 2018, the Trump Administration issued
guidance on Section 1332 of the ACA that raises costs for older
and vulnerable Americans and eliminates protections for people
living with pre-existing conditions. The Committees on Energy
and Commerce and Ways and Means sent a letter to the
Administration requesting information about the proposed
changes, including an explanation as to why the Administration
decided to promulgate the changes as Section 1332 guidance
rather than go through a Notice of Proposed Rulemaking process,
as well as a comprehensive document request.\8\ The
Administration has not provided a response or the documents
requested.
---------------------------------------------------------------------------
\8\Letter from the Frank Pallone, Jr., Chairman, H. Comm. on Energy
and Commerce, Richard Neal, Chairman, H. Comm. on Ways and Means, to
Alex Azar, Secretary, Dept. of Health and Human Services, Steven
Mnuchin, Secretary, Dept. of Treasury, Seema Verma, Administrator,
Centers for Medicare & Medicaid Services, and Charles Rettig,
Commissioner, Internal Revenue Service (Nov. 29, 2018).
---------------------------------------------------------------------------
b. Threatening Environmental Protections
Stonewalling by the Administration is putting our
environment and public health at risk. The Trump Administration
has ignored good-faith Congressional inquiries for information
about chemical risk assessments that have significant
implications for human health. For example, in 2018, the
Environmental Protection Agency's (EPA) political leadership
announced it would not release an already-completed assessment
on the health effects of formaldehyde for peer review and
provided no defense of its decision. On March 4, 2019, the
Committee on Science, Space & Technology requested documents
from EPA to understand how this decision was reached, issuing a
deadline of April 5.\9\ EPA was nonresponsive so the Committee
issued a second deadline of April 19. But EPA has provided zero
documents in response to the request to date. EPA has provided
no explanation for its failures to respond.
---------------------------------------------------------------------------
\9\Letter from Eddie Bernice Johnson, Chairwoman, H. Comm. on
Science, Space & Technology, to Andrew Wheeler, Administrator,
Environmental Protection Agency (Mar. 4, 2019).
---------------------------------------------------------------------------
On January 7, the Committee on Natural Resources requested
information about attempts to work on drilling in the Arctic
during a government shutdown. The Department of the Interior
(DOI) has not provided information.\10\
---------------------------------------------------------------------------
\10\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, to David Bernhardt, Acting Secretary, Dept. of Interior
(Jan. 7, 2019).
---------------------------------------------------------------------------
On January 24, the Committee requested documents regarding
the Administration's plan to drill for oil off the coastal U.S.
DOI has not provided the documents.\11\
---------------------------------------------------------------------------
\11\Letter from Raul Grijalva, H. Comm. on Natural Resources,
Chairman, and Alan Lowenthal, Chairman, H. Comm. on Natural Resources,
Sub. Comm. on Energy and Mineral Resources, to David Bernhardt, Acting
Secretary, Dept. of Interior (Jan. 24, 201).
---------------------------------------------------------------------------
On January 30, the Committee requested six documents
relating to the undermining of protections for endangered
species. DOI has not provided the documents.\12\
---------------------------------------------------------------------------
\12\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, to David Bernhardt, Acting Secretary, Dep't of Interior, and
Wilbur Ross, Secretary, Dept. of Commerce (Jan. 30, 2019).
---------------------------------------------------------------------------
On February 11, the Committee requested documents
pertaining to the cancellation of a scientific study on the
impacts of mountaintop removal coal mining on the health of
people living in neighboring communities. DOI has not provided
the documents.\13\
---------------------------------------------------------------------------
\13\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, and Alan Lowenthal, Chairman, H. Comm. on Natural Resources,
Sub. Comm. on Energy and Mineral Resources to David Bernhardt, Acting
Secretary, Dep't of Interior (Feb. 11, 2019).
---------------------------------------------------------------------------
On February 26, the Committee requested documents
pertaining to attempts by companies to avoid rules enacted to
prevent another Deepwater Horizon-like oil spill of millions of
gallons. DOI has not provided the documents.\14\
---------------------------------------------------------------------------
\14\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, and Alan Lowenthal, Chairman, H. Comm. on Natural Resources,
Sub. Comm. on Energy and Mineral Resources, to Scott A. Angelle,
Director, Bureau of Safety and Envtl. Enforcement, Dept. of Interior
(Feb. 26, 2019).
---------------------------------------------------------------------------
On February 28 and March 1, the Committee requested
documents relating to the shrinking of our national monuments.
DOI and the Department of Commerce (DOC) have not provided the
documents.\15\\16\
---------------------------------------------------------------------------
\15\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, to Wilbur Ross, Secretary, Dept. of Commerce, and David
Bernhardt, Acting Secretary, Dept. of Interior (Feb. 28, 2019).
\16\Letter from and Raul Grijalva, Chairman, H. Comm. on Natural
Resources, to Rear Admiral Gallaudet, Deputy Adm'r, Nat'l Ocean and
Atmospheric Admin (Mar. 1, 2019).
---------------------------------------------------------------------------
On March 1, the Committee requested documents about a
massive mine proposed next to a Minnesota wilderness area. DOI
has not provided the documents.\17\
---------------------------------------------------------------------------
\17\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, Betty McCollum, Chairwoman, Comm. on Appropriations, Sub.
Comm. on Interior-Environment, and Alan Lowenthal, Chairman, H. Comm.
on Natural Resources, Sub. Comm. on Energy and Mineral Resources, to
Sonny Perdue, Secretary, Dep't of Agric., and David Bernhardt, Acting
Secretary, Dep't of Interior (Mar. 1, 2019).
---------------------------------------------------------------------------
On March 11, the Committee requested documents concerning
the Administration's efforts to enforce worker safety and
environmental protections for oil and gas wells on public
lands. DOI has not provided the documents.\18\
---------------------------------------------------------------------------
\18\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, and Alan Lowenthal, Chairman, H. Comm. on Natural Resources,
Sub. Comm. on Energy and Mineral Resources, to David Bernhardt, Acting
Secretary, Dep't of Interior (Mar. 11, 2019).
---------------------------------------------------------------------------
On March 13, the Committee requested documents about the
Administration's multiple attempts to withhold information
about their operations under the Freedom of Information Act
from the American people. DOI has not provided the
documents.\19\
---------------------------------------------------------------------------
\19\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, Elijah Cummings, Chairman, H. Comm. on Oversight and Reform,
and TJ Cox, Chairman, H. Comm. on Oversight and Reform, Sub. Comm. on
Oversight and Investigations to David Bernhardt, Acting Secretary,
Dept. of Interior (Mar. 13, 2019).
---------------------------------------------------------------------------
On March 13, several committees requested information
regarding weakening protections for whales. DOI and DOC have
not provided the information.\20\
---------------------------------------------------------------------------
\20\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, et al., Mike Pompeo, Secretary, Dept. of State, Wilbur Ross,
Secretary, Dept. of Commerce, David Bernhardt, Acting Secretary, Dept.
of Interior, Robert E. Lighthizer, Ambassador, U.S. Trade. Rep. (Mar.
13, 2019).
---------------------------------------------------------------------------
On March 26, the Committee requested a single document
detailing the risk posed by three pesticides to 1,400
threatened and endangered species. DOI has not provided the
document.\21\
---------------------------------------------------------------------------
\21\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, Jared Huffman, Chairman, H. Comm. on Natural Resources, Sub.
Comm. on Water, Oceans, and Wildlife, and Rep. Nydia Velazquez to David
Bernhardt, Acting Secretary, Dept. of Interior (Mar. 26, 2019).
---------------------------------------------------------------------------
On April 10, the Committee requested a single document
describing DOI's plan to reorganize. DOI has not provided the
document.\22\
---------------------------------------------------------------------------
\22\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, and TJ Cox, Chairman, H. Comm. on Oversight and Reform, Sub.
Comm. on Oversight and Investigations to David Bernhardt, Acting
Secretary, Dept. of Interior (April 10, 2019).
---------------------------------------------------------------------------
On May 10, the Committee requested documents concerning the
US Department of Agriculture's failure to consult with
indigenous peoples when developing protections for forested
lands. DOI has not provided the documents.\23\
---------------------------------------------------------------------------
\23\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, et. al. to Sonny Perdue, Secretary, Dept. of Agriculture
(May 10, 2019).
---------------------------------------------------------------------------
On May 13, the Committee requested information about the
Administration's failure to protect endangered birds. DOI has
not provided the documents.\24\
---------------------------------------------------------------------------
\24\Letter from Raul Grijalva, Chairman, H. Comm. on Natural
Resources, to Ms. Everson, (May 13, 2019).
---------------------------------------------------------------------------
On December 7, 2018, Energy and Commerce Committee
Democrats sent a letter to the Administration requesting
information and health and safety studies of per and
polyfluoroalkyl substances (PFAS) reviewed by EPA.\25\ After
repeated follow up by staff, Environment and Climate Change
Subcommittee Chairman Paul Tonko requested a response to the
letter from EPA Administrator Wheeler during a subcommittee
hearing on April 9, 2019. Administrator Wheeler refused to
commit to replying, and that request is still outstanding.
---------------------------------------------------------------------------
\25\Letter from Paul D. Tonko, Chairman, H. Comm. on Energy and
Commerce, Subcommittee on Environment and Climate Change, Rep. Ben Ray
Lujan, Rep. Debbie Dingell, and Rep. Peter Welch, to Andrew R. Wheeler,
Administrator, Environmental Protection Agency (Dec. 7, 2018).
---------------------------------------------------------------------------
On January 28, 2019, Energy and Commerce Committee Chairman
Pallone and Subcommittee Chairpersons Tonko and DeGette
requested information and documents related to EPA's actions to
weaken human health protections against mercury, including
information on industry compliance with EPA's standards.\26\
After his agency failed to respond, EPA Administrator Wheeler
personally committed to Chair DeGette to provide this
information in his testimony before the Committee on April 9,
2019. To date, despite repeated follow-up communications to the
agency by Committee staff, EPA has still failed to provide the
requested information.
---------------------------------------------------------------------------
\26\Letter from Frank J. Pallone, Jr., Chairman, H. Comm. on Energy
and Commerce, Diana DeGette, Chairwoman, H. Comm. on Energy and
Commerce, Sub. Comm. on Oversight and Investigations, and Paul D.
Tonko, Chairman, H. Comm. on Energy and Commerce, Sub. Comm. on
Environment and Climate Change, to Andrew R. Wheeler, Administrator,
Environmental Protection Agency (Jan. 28, 2019).
---------------------------------------------------------------------------
On January 30, 2019, Energy and Commerce Committee Chairman
Pallone and Subcommittee Chairman Tonko requested health and
safety studies used in EPA's risk assessment of Pigment Violet
29.\27\ That request was renewed on March 21.\28\ Although the
agency provided the studies on March 22, significant portions
of the studies were redacted. The agency has not provided the
redacted portions of the studies and refused to discuss the
basis for that refusal. Both the request for PFAS information
and the request for PV29 studies were made pursuant to the
Toxic Substances Control Act, which includes an explicit
requirement to provide all information reported to or otherwise
obtained by the Administrator under that law upon written
request by any duly authorized committee of Congress.
---------------------------------------------------------------------------
\27\Letter from Frank J. Pallone, Jr., Chairman, H. Comm. on Energy
and Commerce, Paul D. Tonko, Chairman, H. Comm. on Energy and Commerce,
Sub. Comm. on Environment and Climate Change, to Andrew R. Wheeler,
Administrator, Environmental Protection Agency (Jan. 30, 2019).
\28\Letter from Frank J. Pallone, Jr., Chairman, H. Comm. on Energy
and Commerce, Paul D. Tonko, Chairman, H. Comm. on Energy and Commerce,
Sub. Comm. on Environment and Climate Change, to Andrew R. Wheeler,
Administrator, Environmental Protection Agency (Mar. 21, 2019).
---------------------------------------------------------------------------
c. Putting American Workers at Risk
The Administration's obstruction is preventing the House
from conducting oversight of protections for American workers.
The Administration has rebuffed efforts to ensure that the
Department of Labor is sufficiently staffed in order to perform
its central mission of protecting workers. For example, on
April 11, 2019, the Committee on Education and Labor sent a
letter to Secretary Acosta requesting information concerning
the Department of Labor's current vacancies (excluding Senate
confirmed positions).\29\ On April 29, 2019, the Department
provided a non-responsive answer that simply attached public
budget numbers for staffing levels.
---------------------------------------------------------------------------
\29\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor to Alexander Acosta, Secretary, Dept. of Labor (April 11, 2019).
---------------------------------------------------------------------------
The Administration has stifled efforts to ensure that the
Occupational Safety and Health Administration is not
arbitrarily rolling back safety standards on carcinogens for
certain workers. For example, on April 2, 2019, the Committee
on Education and Labor sent a letter to Secretary Acosta
requesting information concerning the Occupational Safety and
Health Administration's June 27, 2017, Notice of Proposed
Rulemaking for Occupational Exposure to Beryllium and Beryllium
Compounds in Construction and Shipyards Sector.\30\
Specifically, the Committee requested information about their
required scientific and/or legal determination that rolling
back the beryllium exposure protections for those in the
construction and shipyards industries was justified. On April
26, 2019, the Department sent a non-responsive answer,
attaching public rulemaking documents that the Committee
already had and not answering any of the Committee's requests.
---------------------------------------------------------------------------
\30\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor to Alexander Acosta, Secretary, Dept. of Labor (April 2, 2019).
---------------------------------------------------------------------------
The Administration has also blocked inquiries to ensure
that its deregulatory efforts are proceeding lawfully. For
example, on April 3, 2019, the Committee on Education and Labor
sent a letter to Secretary Acosta requesting information
concerning the Department of Labor's rulemaking steps taken in
its 2017 Notice of Proposed Rulemaking Regarding Tip
Regulations Under the Fair Labor Standards Act, 2018 Notice of
Proposed Rulemaking Expanding Employment, Training, and
Apprenticeship Opportunities for 16- and 17-Year-Olds in Health
Care Occupations Under the Fair Labor Standards Act, and 2019
Notice of Proposed Rulemaking Defining and Delimiting the
Exemptions for Executive, Administrative, Professional, Outside
Sales and Computer Employees.\31\ On April 29, 2019, the
Department sent a non-responsive answer to the Committee,
attaching public rulemaking documents that the Committee
already had and not answering any of the Committee's requests.
---------------------------------------------------------------------------
\31\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor to Alexander Acosta, Secretary, Dept. of Labor (April 3, 2019).
---------------------------------------------------------------------------
d. Negatively Impacting the Education System and Student Loan Borrowers
The Administration's unprecedented obstruction is harming
oversight of our nation's education system. For example, the
Administration has rejected efforts to obtain information about
the U.S. Department of Education's decision to install Deputy
General Counsel Phillip H. Rosenfelt as the Department's Acting
Inspector General. The Committee on Education and Labor has
sent two letters, dated February 1\32\ and February 19,
2019,\33\ requesting documentation of the surrounding
circumstances leading to this decision. The Department has sent
multiple non-responsive letters which have cited ``executive
branch confidentiality interests'' and improperly invoked FOIA
exemptions as rationales for refusing to provide requested
correspondence. In another example, the Administration has
rebuffed efforts to obtain information on the Department's
implementation of the Borrower Defense to Repayment
regulations. For example, the Committee on Education and Labor
sent a letter on March 25, 2019,\34\ detailing the Department's
stonewalling of the Committee's staff-level requests for
information which date back to November 2018. Additionally,
despite repeated requests for an in person briefing on the
substantive issues as well as a document production, the
Department will not set a date or agree to hold a briefing.
---------------------------------------------------------------------------
\32\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor, Rosa DeLauro, Chairwoman, H. Comm. on Appropriations, Sub. Comm.
on Labor, Health and Human Services, Education, and Related Agencies,
and Patty Murray, Ranking Member, S. Comm. on Health, Education, Labor
and Pensions, to Betsy DeVos, Secretary, Dept. of Education (Feb. 1,
2019) available at https://edlabor.house.gov/imo/media/doc/ 2019-02-
01%20Top%20Dems%20Demand%20Answers%20 From%20ED%20
Following%20Move%20to%20 Replace%20Independent
%20Watchdog%20With%20Top%20Department%20Official.pdf.
\33\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor, Rosa DeLauro, Chairwoman, H. Comm. on Appropriations, Sub. Comm.
on Labor, Health and Human Services, Education, and Related Agencies,
Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, Patty
Murray, Ranking Member, S. Comm. on Health, Education, Labor and
Pensions, and Gary Peters, Ranking Member, S. Comm. on Homeland
Security and Governmental Affairs, to Betsy DeVos, Secretary, Dept. of
Education (Feb. 19, 2019) available at https://edlabor.house.gov/imo/
media/doc/ED%20OIG%20 Follow%20up%20Letter%202-19.pdf.
\34\Letter from Bobby Scott, Chairman, H. Comm. on Education and
Labor, and Patty Murray, Ranking Member, S. Comm. on Health, Education,
Labor, and Pensions, to Betsy DeVos, Secretary, Dept. of Education
(March 25, 2019).
---------------------------------------------------------------------------
e. Hindering Investigations into Alleged Misconduct in our Financial
System
The Administration has rebuffed efforts to investigate the
flow of illicit funds through the U.S. financial system,
businesses and real estate as well as efforts to ensure U.S.
national security. On April 15, 2019, the Committee on
Financial Services, together with the Permanent Select
Committee on Intelligence, subpoenaed documents from Deutsche
Bank. The subpoena sought information relating to the
Committees' investigations into the integrity of the U.S.
financial system and national security, including bank fraud,
money laundering, foreign influence in the U.S. political
process, and the counterintelligence risks posed by foreign
powers' use of financial leverage. Also, on April 15, 2019, the
Committee on Financial Services subpoenaed Capital One for
similar information relating to its investigation into the
efficacy of bank safety practices, banking regulations, loan
practices and anti-money laundering policies and procedures,
including as they are applied to and involve the accounts of
President Trump and his family members. President Trump filed
suit against Deutsche Bank and Capital One to prevent the banks
from complying with the Committees' validly-issued subpoenas.
In ruling to deny President Trump's motion for a preliminary
injunction in that case, Judge Ramos stated, ``[H]ere, the
committees have alleged a pressing need for the subpoenaed
documents to further their investigation, and it is not the
role of the Court or plaintiffs to second guess that need,
especially in light of the Court's conclusions that the
requested documents are pertinent to what is likely a lawful
congressional investigation.''\35\
---------------------------------------------------------------------------
\35\Transcript at 85, Donald J. Trump, et al. v. Deutsche Bank AG,
et al., 19 Civ. 3826 (ER) (S.D.N.Y. May 22, 2019).
---------------------------------------------------------------------------
President Trump's obstruction of investigations into our
financial system also extends to investigations of potential
wrongdoing in connection with his finances. For example, the
Oversight and Reform Committee issued a subpoena to the
accounting firm Mazars USA LLP in its investigation into
reports that President Trump may have inflated and deflated his
financial assets to suit his own purposes. On March 20, 2019,
the Committee sent a letter to Mazars requesting information on
how these financial statements and other financial disclosures
were prepared, including the financial statements themselves
and communications relating to their preparation.\36\ On March
27, 2019, counsel to Mazars sent a letter explaining that,
pursuant to the company's legal obligations, Mazars cannot
voluntarily turn over the documents ``unless disclosure is made
pursuant to, among other things, a Congressional
subpoena.''\37\ On April 15, 2019, the Committee issued a
subpoena to Mazars demanding the production of four categories
of responsive documents by April 29, 2019. On April 22, 2019,
President Trump and his companies sued Mazars and the Committee
to enjoin compliance with and enforcement of the subpoena,
arguing that the Committee's investigation lacked a valid
legislative purpose. After briefing and a hearing, on May 20,
2019, the trial court issued a final order in favor of the
Committee, finding that the Committee's investigation had a
valid legislative purpose.
---------------------------------------------------------------------------
\36\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, to Victor Wahba, Chairman and Chief Executive Officer,
Mazars USA LLP (Mar. 20, 2019, available at https://
www.documentcloud.org/documents/5782258-2019-03-20-EEC-to-Wahba-
Mazars.html.
\37\Letter from Jerry D. Bernstein, Counsel for Mazars USA LLP, to
Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform (Mar.
27, 2019) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/documents/2019-03-
20.EEC%20to%20Wahba-Mazars.pdf.
---------------------------------------------------------------------------
f. Jeopardizing Care for America's Veterans
The Trump Administration's obstruction is hurting the
Congress' ability to oversee the Department of Veterans
Affairs, and in turn hurting our nation's heroes. For example,
Administration officials have refused to appear before the
Veterans' Affairs Committee to testify on modernizing the
severely outdated systems used for VA benefits, on budget
requests related to veterans' readjustment benefits, and on
recommendations to improve the Department of Veterans Affairs'
effectiveness.
In a more stunning example, all VA hospitals were
instructed by VA's Office of Congressional and Legislative
Affairs to obstruct the Committee's oversight visits to observe
the first day of the $47 billion MISSION Act rollout--which
changes the way in which VA manages its network of private
doctors and health care providers and makes veterans eligible
to receive treatment from private doctors.
Veterans' Affairs Committee professional staff members who
visited the Medical Center in San Juan, Puerto Rico on June 6,
2019, were not permitted to meet with the facility or regional
emergency management directors to discuss emergency response
management and disaster preparedness for hurricane season. The
facility spokesperson informed Committee staff that no one is
more prepared for a natural disaster than the Medical Center in
San Juan, but refused to answer questions or elaborate on any
measures or steps the facility has taken to prepare, or any
measures taken since Hurricane Maria.
At four of the five VA hospitals visited by committee
personnel on June 6, staff were prevented from speaking with
key employees who would be able to answer questions about VA-
wide problems with the IT system hospital staff must use to
determine if a veteran is eligible to see a private doctor or
calculate the time it would take for a patient to drive to a
facility. System-wide glitches were reported throughout the
day. Committee staff were prevented from speaking to employees
about the training and materials they received to make rollout
of the program a success and were not permitted to tour past
the hospital lobby and waiting area.\38\
---------------------------------------------------------------------------
\38\V.A. Prepares for Major Shift in Veterans' Health Care (June 5,
2019) (online at https://www.nytimes.com/2019/06/05/us/politics/va-
health-care-veterans.html).
---------------------------------------------------------------------------
g. Slowing the Response to Natural Disasters
The Administration's continued stonewalling is preventing
investigations into our nation's response to natural disasters
that have impacted millions of Americans. For example, the
Committee on Oversight and Reform is investigating the
Administration's response to Hurricanes Maria and Irma in
Puerto Rico and the Virgin Islands. The Committee started this
investigation last Congress, on October 11, 2017, with
bipartisan requests for information. Notwithstanding the
bipartisan nature of the requests, the White House has failed
to turn over a single piece of paper to the Committee,
including information responsive to its most recent request
dated May 6, 2019.\39\
---------------------------------------------------------------------------
\39\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, et al, to Mick Mulvaney, Acting Chief of Staff, The White
House (May 6, 2019) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-05-
06.COR%20Dems%20to%20Mulvaney-
WH%20re%20Hurricanes%20Irma%20and%20Maria.pdf.
---------------------------------------------------------------------------
h. Cruel Immigration, Family Separation, and Border Wall Policies
Rather than work with Congress to find long term solutions
to the problems at our southern border and other challenges
currently facing our immigration system, the Trump
Administration has instituted a series of troubling policies,
such as separating minor children from their families to deter
asylum seekers from seeking refuge in the United States. On
January 11,\40\ and May 29, 2019,\41\ the Committee on the
Judiciary requested documents from the Department of Justice
relating to the Administration's cruel family separation (or
``zero tolerance'') policy, including information on the
Department's involvement in the initial pilot program,
reunification strategies, migrant detention, and other border-
related policies. Despite the Department identifying over two
dozen custodians for production, it has provided less than 750
pages of heavily redacted emails and publicly available court
filings. On April 16\42\ and May 29, 2019,\43\ the Committee on
the Judiciary requested information from the Department of
Homeland Security (DHS) regarding President Donald Trump's
alleged offers of presidential pardons to Acting DHS Secretary
Kevin McAleenan and other DHS personnel in response to
potential legal liability related to closing the southern
border and summarily denying asylum seekers entry into the
United States. The Judiciary Committee has not received a
response to this request.
---------------------------------------------------------------------------
\40\Letter from Jerrold Nadler, Chairman, H. Comm. on Judiciary, to
Matthew Whitaker, Acting Attorney General, Dept. of Justice (Jan. 11,
2019) available at https://judiciary.house.gov/sites/
democrats.judiciary.house.gov/files/documents/
Chairman%20Nadler%201.11%20Letter%20to%20Acting%20AG%20Whitaker.pdf.
\41\Letter from Jerrold Nadler, Chairman, H. Comm. on Judiciary, to
William Barr, Attorney General, Dept. of Justice (May 29, 2019).
\42\Letter from Jerrod Nadler, Chairman, H. Comm. on Judiciary, Zoe
Lofgren, Chairwoman, H. Comm. on Judiciary, Sub. Comm. on Immigration
and Citizenship, and Steve Cohen, Chairman, H. Comm. on Judiciary, Sub.
Comm. on Constitution, Civil Rights, and Civil Liberties, to Kevin
McAleenan, Acting Secretary, Dept. of Homeland Security (April 16,
2019) available at https://judiciary.house.gov/news/press-releases/
nadler-lofgren-and-cohen-seek-documents-and-testimony-president-trump-
s-reported.
\43\Letter from Jerrold Nadler, Chairman, H. Comm. on Judiciary, to
Kevin McAleenan, Acting Secretary, Dept. of Homeland Security (May 29,
2019).
---------------------------------------------------------------------------
The Committees on Oversight and Reform, Judiciary, and
Homeland Security are investigating the Trump Administration's
unlawful plan to release detained immigrants into sanctuary
cities as a form of retribution against the President's
political adversaries. In connection with this and related
investigations, the Committees requested documents on April 15,
2019.\44\ The White House has not responded. On April 17, 2019,
the Committee on Oversight and Reform invited Stephen Miller,
the White House Senior Policy Advisor charged with handling all
immigration and border affairs, to testify at a public
hearing.\45\ The White House refuses to make Mr. Miller
available to testify.
---------------------------------------------------------------------------
\44\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, Jerrold Nadler, H. Comm. on Judiciary, Chairman, and Bennie
G. Thompson, Chairman, H. Comm. on Homeland Security, to Mick Mulvaney,
Acting Chief of Staff, The White House, and Kevin McAleenan, Acting
Secretary, Dept. of Homeland Security (April 15, 2019) available at
https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/
documents/
Nadler%2C%20Cummings%20and%20Thompson%20letter%20to%20DHS%20%26%20WH.pdf
\45\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, to Stephen Miller, Senior Policy Advisor, The White House
(April 17, 2019) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-04-
17.EEC%20to%20Stephen%20Miller%20re%20Witness%20Invite.pdf.
---------------------------------------------------------------------------
Over the last several months, the Committee on
Appropriations has repeatedly requested information from DHS on
its policies and processes for determining when U.S. Customs
and Border Protection personnel will separate individuals who
present as family units, including requests made by members
during the FY 2020 Budget Hearing on the Department of Homeland
Security on April 30, 2019. To date, DHS has failed to provide
the requested information on the criteria used for such
separations and the related guidance issued to field personnel.
Additionally, DHS has failed to provide information on how it
defines a family for purposes of separation decisions; the
level of criminality that may serve as the basis for separating
a child from an adult; and whether its definition of a
``fraudulent family'' includes individuals who are genetically
or legally related but are not considered a family under U.S.
law. DHS has also stated that smugglers are pairing some
children with unrelated adults multiple times, but has provided
no documentation of this practice.
The Administration has also ignored Congressional inquiries
for information related to section 2808 emergency construction
authority. For example, at the February 27, 2019 hearing on the
President's 2019 National Emergency Declaration Circumventing
Congress to Build a Border Wall & its Effect on Military
Construction and Readiness, the Committee on Appropriations
requested relevant information from the Department of Defense
on the selection process for projects that will be used as a
source for the border wall. The Department has not provided any
information in response to the Committee's request. In addition
to the hearing, the Committee on Appropriations, along with the
House Armed Services Committee, sent a letter on March 7, 2019,
to the Acting Secretary of Defense, requesting information
related to the planning and use of section 2808 emergency
construction authority.\46\ However, the Department has yet to
provide all the information requested in this letter and has
not explained why the Department has failed to respond to all
elements included in the letter.
---------------------------------------------------------------------------
\46\Letter from Adam Smith, Chairman, H. Comm. on Armed Services,
Nita Lowey, Chairwoman, H. Comm. on Appropriations, John Garamendi,
Chairman, H Comm. on Armed Services, Sub. Comm. on Readiness, Peter
Visclosky, Chairman, H. Comm. on Appropriations, Sub. Comm. on Defense,
Debbie Wasserman Schultz, Chairwoman, H. Comm. on Appropriations, Sub.
Comm. on Military Construction, Veterans Affairs, and Related Agencies,
to Patrick Shanahan, Acting Secretary, Dept. of Defense (Mar. 7, 2019)
available at https://appropriations.house.gov/news/press-releases/
house-democrats-demand-information-on-use-of-pentagon-funds-for-trump-
s-border.
---------------------------------------------------------------------------
i. Obstructing Oversight of Foreign Policy
The Trump Administration's obstruction goes beyond the
domestic issues in our country and extends into foreign policy.
For example, the White House and State Department have failed
to produce a single document, make any witnesses available, or
answer written questions in response to request letters sent on
February 21\47\ and March 4,\48\ from the Chairs of the Foreign
Affairs, Oversight and Reform, and Intelligence Committees for
information related to President Trump's communications with
Russian Federation President Vladimir Putin. As part of this
effort, the Committees are investigating press reports that
President Trump may have violated the Presidential Records Act
(PRA) by destroying documents to keep the details of his
meetings with Putin secret. The White House Counsel issued a
response on March 21, criticizing the Chairmen's inquiry and
refusing to cooperate. This is despite the fact that several
requests in the March 4 letter are for materials in the control
of the White House and State Department and that they would be
required to keep under the Federal Records Act. Multiple
requests to the Department for an update on this request have
simply gone unanswered, and the Department has made no efforts
to engage in the accommodations process.
---------------------------------------------------------------------------
\47\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, Eliot Engel, Chairman, H. Comm. on Foreign Affairs, Adam B.
Schiff, Chairman, Perm. Select Comm. on Intelligence, to Mick Mulvaney,
Acting Chief of Staff, The White House (Feb. 21, 2019) available at
https://intelligence.house.gov/uploadedfiles/20190221_-_hfac-cor-
hpsci_letter_to_white_house_re_pra.pdf.
\48\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, Eliot Engel, Chairman, H. Comm. on Foreign Affairs, Adam B.
Schiff, Perm. Select Comm. on Intelligence, Chairman, to Mick Mulvaney,
Acting Chief of Staff, The White House (Mar. 4, 2019) available at
https://intelligence.house.gov/uploadedfiles/03-04-19_engel-cummings-
schiff-letter-to-mick-mulvaney-requesting-white-house-putin-interview-
documents.pdf.
---------------------------------------------------------------------------
In another example, the Chairs of the Foreign Affairs,
Intelligence, and Armed Services Committees expressed concern
in a May 16 letter about abuse of classification and
politicization of intelligence regarding Iran and other
countries in the State Department's annual arms control report
released in April of this year.\49\ While the Administration
has agreed to provide an interagency staff-level briefing, it
has failed to produce any documents about the drafting process
or the underlying factual information and analysis that
informed the report's conclusions--conclusions which many
observers interpreted as laying the groundwork for justifying
military action against countries covered in the report.
---------------------------------------------------------------------------
\49\Letter from Eliot L. Engel, Chairman, H. Comm. on Foreign
Affiars; Adam Smith, Chairman, H. Comm. on Armed Services; and Adam
Schiff, Chairman, H. Perm. Select Comm. on Intelligence, to Mike
Pomeop, Secretary, Department of State (May 16, 2019) available at
https://intelligence.house.gov/uploadedfiles/hfac-hasc-hpsci-pompeo-
letter.pdf.
---------------------------------------------------------------------------
The Committee on Oversight and Reform is investigating
allegations made by multiple whistleblowers about efforts
inside the White House to rush the transfer of highly sensitive
U.S. nuclear technology to Saudi Arabia. The White House has
not produced a single document despite the Committee's request
on February 19, 2019.\50\
---------------------------------------------------------------------------
\50\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, to Mick Mulvaney, Acting Chief of Staff, The White House
(Feb. 19, 2019) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-02-19.EEC%20to%20Mulvaney-
WH%20re%20IP3.pdf.
---------------------------------------------------------------------------
j. Preventing White House Oversight
Across the board, in every investigation, regardless of
topic, the White House itself has to date refused to produce a
single document to the Oversight and Reform Committee. During
this unprecedented obstruction, the White House has challenged
Congress' core authority to conduct oversight under the
Constitution, questioned the legislative bases for
congressional inquiries, objected to committee rules and
precedents that have been in place for decades under both
Republican and Democratic leadership, and made baseless legal
arguments to avoid producing documents and testimony.
The Committee on Oversight and Reform is investigating the
White House and Transition Team security clearance process.
While the White House has allowed the Committee to review in
camera a limited number of policy-related documents, it has
failed to turn over a single page of paper responsive to the
Committee's requests dated December 19, 2018, January 23, 2019,
February 11, 2019, March 1, 2019.\51\
---------------------------------------------------------------------------
\51\Letter from Elijah E. Cummings, Ranking Member, H. Comm. on
Oversight and Gov't. Reform, to John Kelly, Chief of Staff, The White
House (Dec. 19, 2018) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2018-12-19.EEC%20to%20Kelly-
WH%20re%20Security%20Clearances-Jan.2017.Updated.pdf; Letter from
Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Pat
Cipollone, Counsel to the President (Jan. 23, 2019) available at
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/
2019-01-23.EEC%20to%20Cipollone-WH%20re%20Security%20Clearances.pdf;
Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight and
Reform, to Pat Cipollone, Counsel to the President (Feb. 11, 2019)
available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-02-
11.EEC%20to%20Kline%20re%20Transcribed%20Interview_1.pdf; Letter from
Elijah E. Cummings, Chairman, H. Comm. on Oversight and Reform, to Pat
Cipollone, Counsel to the President (Mar. 1, 2019) https://
oversight.house.gov/sites/democrats. oversight.house.gov/files/
documents/2019-03-01.EEC%20to%20Cipollone-
WH%20re%20Security%20Clearances.pdf.
---------------------------------------------------------------------------
The Committee is investigating the use of personal email
and messaging accounts by non-career officials at the White
House in violation of White House policy and the Presidential
Records Act. The Committee made bipartisan requests for
information and documents dating back to March 8, 2017.\52\ The
Committee renewed requests on December 19, 2018 and March 21,
2019, but the White House has failed to produce a single
document in response.\53\
---------------------------------------------------------------------------
\52\Letter from Elijah E. Cummings, Ranking Member, H. Comm. on
Oversight and Gov't. Reform, Senator Elizabeth Warren, and Senator Tom
Carper, to Stefan Passantino, Deputy Counsel to the President (Mar. 8,
2017) available at https://www.warren.senate.gov/files/documents/
2017_03_08_Letter_on_Kushner_Recusals.pdf.
\53\Letter from Elijah E. Cummings, Ranking Member, H. Comm. on
Oversight and Gov't. Reform, to Pat Cipollone, Counsel to the President
(Dec. 19, 2018) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2018-12-19.EEC%20to%20Cipollone-
WH%20re%20Private%20Emails.pdf; Letter from Elijah E. Cummings,
Chairman, H. Comm. on Oversight and Reform, to Pat Cipollone, Counsel
to the President (Mar. 21, 2019) available at https://
oversight.house.gov/sites/democrats.oversight.house.gov/files/2019-03-
21.EEC%20to%20Cipollone-WH.pdf.
---------------------------------------------------------------------------
The Committee is investigating the Trump Administration's
use of and failure to disclose ethics waivers and
authorizations. The Committee requested documents and
information on May 16, 2019.\54\ The White House has not
responded to the Committee's request.
---------------------------------------------------------------------------
\54\Letter from Elijah E. Cummings, Chairman, H. Comm. on Oversight
and Reform, to Pat Cipollone, Counsel to the President (May 16, 2019)
available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2019-05-16.EEC%20to%20Cipollone-
WH%20re%20Ethics%20Waivers.pdf.
---------------------------------------------------------------------------
The Committee is investigating White House officials' use
of government-owned aircraft for personal travel and private
non-commercial aircraft for official travel. Launched as a
bipartisan investigation under then-Chairman Gowdy, the
Committee renewed its requests for documents and information on
December 19, 2018.\55\ The White House has not provided any
documents in response to this request and has instead directed
the Committee to secure the documents and information from
executive branch federal agencies.
---------------------------------------------------------------------------
\55\Letter from Elijah E. Cummings, Ranking Member, H. Comm. on
Oversight and Gov't. Reform, to John Kelly, Chief of Staff, The White
House (Dec. 19, 2018) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/
UPDATED%20White%20House%20and%20Cabinet%20Member%20Travel.pdf.
---------------------------------------------------------------------------
The Committee is investigating the use of nondisclosure
agreements imposed on White House staff and whether these gag
orders include mandatory language safeguarding the rights of
federally-protected whistleblowers to report waste, fraud, and
abuse to Congress. The White House has failed to respond to the
Committee's March 20, 2018 and May 14, 2019, requests for
documents.\56\
---------------------------------------------------------------------------
\56\Letter from Elijah E. Cummings, Ranking Member, H. Comm. on
Oversight and Gov't. Reform, and Jerrold Nadler, Ranking Member, H.
Comm. on Judiciary, to John Kelly, Chief of Staff, The White House
(Mar. 20, 2018) available at https://oversight.house.gov/sites/
democrats.oversight.house.gov/files/2018-03-
20..EEC%20%20Nadler%20to%20WH%20re%20NDAs.pdf; Letter from Elijah E.
Cummings, Chairman, H. Comm. on Oversight and Reform, to Mick Mulvaney,
Acting Chief of Staff, The White House (May 14, 2019) available at
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/
2019-05-14.EEC%20to%20Mulvaney-WH%20re%20NDAs.pdf.
---------------------------------------------------------------------------
k. Persistent Oversight Obstruction by the Trump Administration
These examples, while numerous, do not begin to encompass
every way in which the Trump Administration is obstructing
constitutional oversight activities by the House. These
examples paint a stark picture of the depths to which the Trump
Administration has gone, and continues to go, in refusing to
respect the system of checks and balances established in our
Constitution. The obstruction touches every corner of this
Administration and, in the process, the American people are not
able to get the answers they need on important issues. Of
specific note and importance, discussed in the next section, is
the Trump Administration's refusal to provide all of the
documents surrounding the investigation into Russian
interference in the 2016 U.S. Presidential election and the
obstruction of justice that occurred in the wake of that
interference.
The Mueller Report and Obstruction of Justice
The first resolved clause of H. Res. 430 authorizes the
Committee on the Judiciary to undertake several legal actions.
These actions, commonly referred to as ``civil contempt,''\57\
include the power to initiate or intervene in federal judicial
proceedings (1) to enforce the Committee's subpoena issued to
Attorney General William P. Barr for the Mueller Report as well
as key underlying evidence; (2) to enforce its subpoena issued
to former White House Counsel Donald F. McGahn for both
documents and testimony; and (3) to petition for disclosure of
information relating to the Mueller Report otherwise protected
by the grand jury secrecy rules, including where that
information is sought ``preliminary to . . . a judicial
proceeding.''
---------------------------------------------------------------------------
\57\See supra note 1.
---------------------------------------------------------------------------
The Judiciary Committee is seeking these materials in the
wake of Special Counsel Mueller's findings that, not only did
Russia interfere in our elections, but that the President
engaged in multiple acts to exert undue influence over law
enforcement investigations. More than 1000 former federal
prosecutors from across the political spectrum have written
that such conduct, but for the Office of Legal Counsel policy
against charging sitting presidents, would have resulted in the
indictment of Donald Trump for serious crimes.\58\ The
Judiciary Committee's effort to obtain these materials is
consistent with the views expressed by the House in H. Con.
Res. 24, which passed unanimously and called for ``the full
release to Congress of any report, including findings, Special
Counsel Mueller provides to the Attorney General.''\59\
---------------------------------------------------------------------------
\58\Statement by Former Federal Prosecutors (May 6, 2019) (online
at https://medium.com/@dojalumni/statement-by-former-federal-
prosecutors-8ab7691c2aa1).
\59\Roll Call Number 125, 116th Cong. (Mar. 14, 2019) 420-0, 4
present.
---------------------------------------------------------------------------
The specific details surrounding the Barr subpoena are
detailed in House Report 116-105 (``contempt report''), which
was approved by the Judiciary Committee by a vote of 24-16 on
May 8, 2019. The contempt report details the Judiciary
Committee's attempts to engage the Justice Department (DOJ) to
reach a mutually acceptable accommodation regarding access to
the Mueller Report. Since that time, the Judiciary Committee
has repeatedly made good faith efforts to accommodate.\60\
---------------------------------------------------------------------------
\60\Beginning with a May 10 letter to Attorney General Barr, the
Judiciary Committee has continued to seek an accommodation with the
Department. On May 16, 2019, in a letter to White House Counsel Pat
Cipollone, the Judiciary Committee further affirmed that the
Committee's staff is ``prepared at any time to resume discussions
regarding the open issues related to the [Barr Subpoena], as well as
the many other outstanding requests.'' On May 24, 2019 the Judiciary
Committee wrote to both Attorney General Barr and the White House
Counsel Cipollone to make yet another effort at accommodation over the
subpoena for the Mueller Report. In that letter, the Committee
unilaterally offered to reduce its request to a discrete list of fewer
than 100 documents specifically cited in Volume II of the Mueller
Report. On June 4, 2019, the Department responded that it would resume
negotiations only if the Committee agreed to ``moot[]'' its May 8
contempt vote and ``remov[e] any imminent threat'' to hold the Attorney
General in contempt.
---------------------------------------------------------------------------
Both during and after its markup, the Judiciary Committee
has also made clear that it could not accept President Trump's
assertion of ``executive privilege over the entirety of the
subpoenaed materials,'' and that this was a ``protective
assertion'' of the privilege.\61\ On May 10, 2019 the Judiciary
Committee further explained that DOJ's reliance on the actions
of President Clinton in 1996 were misplaced and
inappropriate.\62\ On May 15, the Judiciary Committee held a
hearing on the issue of executive privilege and several of the
witnesses--the majority of whom were not only legal scholars
but had previously served as Executive Branch lawyers--
questioned the appropriateness of the President's assertion of
executive privilege.\63\
---------------------------------------------------------------------------
\61\The Judiciary Committee ultimately rejected the President's
assertion of privilege as insufficient grounds for noncompliance with
the Committee's subpoena. The Committee voted 20-12 to adopt an
amendment to the contempt report offered by Chairman Nadler stating,
among several concerns, that ``the purported protective assertion is
not a valid claim of privilege, including because executive privilege
has been broadly waived in this case as a matter of law and fact'' and
concluding ``the last-minute claims of the `protective' blanket
assertion of executive privilege over the entirety of the subpoenaed
materials does not change the fact that Attorney General William P.
Barr is in contempt of Congress today for failing to turn over lawfully
subpoenaed documents.''
\62\In that case, the White House had been producing relevant
documents to Congress on a rolling basis for nearly a year but required
a limited amount of time to review certain additional documents before
a scheduled deadline. Just fifteen days later, the White House
completed its review and created a privilege log identifying specific
documents to be withheld; it then provided 1,000 pages of remaining
documents to Congress. In addition, the documents withheld were not
created contemporaneously to the matter under investigation and the
White House had not already waived executive privilege as it has here.
Moreover, the assertion was not a product of a Presidential declaration
to fight all congressional subpoenas. As the court held in Committee on
Oversight & Government Reform v. Lynch, a ``blanket assertion of
privilege over all records generated after a particular date . . .
[will not] pass muster,'' without a ``showing . . . that any of the
individual records satisf[y] the prerequisites for the application of
the privilege.
\63\Executive Privilege and Congressional Oversight: Hearing Before
the H. Comm. on the Judiciary, 116 Cong. (2019).
---------------------------------------------------------------------------
It is also important to note that the Judiciary Committee
has never suggested it was holding Attorney General Barr in
contempt for failing to unilaterally release grand jury
material. As explained in the Judiciary Committee's May 16
letter to Mr. Cipollone: the subpoena recognizes in the
instructions that DOJ may withhold any document which it
believes there is a valid reason not to produce. The Committee
was requesting only that DOJ join in an application to the
Court for authorization to release documents withheld pursuant
to Rule 6(e). The Committee did not pursue contempt based on
the DOJ's refusal to join in that application, which was made
clear in the bipartisan support for an amendment reinforcing
that the contempt was not based on Rule 6(e).\64\ In this
regard, it is our expectation that, if so requested, a court
would hold that the Judiciary Committee is entitled as a matter
of law to have access to grand jury materials currently being
withheld by the Justice Department.
---------------------------------------------------------------------------
\64\At its markup the Judiciary Committee adopted an amendment
offered by Rep. Matt Gaetz (R-FL) adding a rule of construction to the
contempt report providing that ``[n]o provision in this Resolution or
Report shall be construed as a directive for the Attorney General to
violate Federal law or rules, including but not limited to Rule 6 of
the Federal Rules of Criminal Procedure.''
---------------------------------------------------------------------------
With respect to Mr. McGahn, on April 22, 2019, Chairman
Nadler issued a subpoena for testimony and documents related to
the Committee's investigation following the public release of
the redacted Mueller Report, which revealed that Mr. McGahn was
a witness to multiple instances of potential obstruction of
justice.\65\ The subpoena requested that Mr. McGahn produce
documents shared with him or his counsel by the White House
during the Special Counsel's investigation by May 7, 2019 and
appear to testify before the Committee on May 21, 2019. On May
7, counsel to Mr. McGahn informed the Committee that the White
House had instructed him not to produce the requested documents
``because they implicate significant Executive Branch
confidentiality interests and executive privilege.''\66\ In its
response letter, the Committee disputed the validity of the
White House's invocation of executive privilege and insisted
that Mr. McGahn comply with the subpoena.\67\ On May 21, 2019,
the Judiciary Committee held its scheduled hearing on
``Oversight of the Report by Special Counsel Robert S. Mueller,
III: Former White House Counsel Donald F. McGahn, II.''\68\ Mr.
McGahn did not appear at the hearing. Since that time, the
Judiciary Committee has continued its efforts to reach an
accommodation with Mr. McGahn.\69\
---------------------------------------------------------------------------
\65\Subpoena by Authority of the House of Representatives of the
United States of America to Donald F. McGahn for documents and
testimony, signed by Representative Jerrold Nadler, April 22, 2019,
available at https://judiciary.house.gov/sites/
democrats.judiciary.house.gov/files/documents/
McGahn%20Subpoena%204.22.19.pdf.
\66\Letter from William A. Burck to Jerrold Nadler, Chairman, H.
Comm. on the Judiciary (May 7, 2019). Based on that direction, counsel
for Mr. McGahn stated his position that, where ``co-equal branches of
government are making contradictory demands on Mr. McGahn concerning
the same set of documents, the appropriate response for Mr. McGahn is
to maintain the status quo unless and until the Committee and the
Executive Branch can reach an accommodation'' and, therefore, Mr.
McGahn would not comply with the subpoena. White House Counsel
Cipollone also wrote the Judiciary Committee on May 7 to inform the
Committee that ``[t]he White House records remain legally protected
from disclosure under longstanding constitutional principles, because
they implicate significant Executive Branch confidentiality interest
and executive privilege.'' Letter to Jerrold Nadler, Chairman, H. Comm.
on the Judiciary, from Pat Cipollone, Counsel to the President (May 7,
2019).
\67\Letter to William A. Burck, Quinn Emanuel Urquhart & Sullivan,
from Jerrold Nadler, Chairman, H. Comm. on the Judiciary (May 7, 2019).
The Committee's letter noted that ``[a]s an initial matter, regarding
the subpoenaed documents, the White House Counsel's letter did not
actually invoke executive privilege, but rather merely suggested . . .
that all requested documents implicate significant Executive Branch
confidential interests and executive privilege.''' The letter further
explained that ``a subpoena recipient is not excused from compliance
with [a] Committee's subpoena by virtue of a claim of executive
privilege that may ultimately be made''' (citing Mem. Op., Comm. on
Judiciary v. Miers, No. 08-cv-0409-JDB (D.D.C. Jul. 31, 2008), at 91);
nor can ``a blanket assertion of privilege over all records generated
after a particular date . . . pass muster,'' without a ``showing . . .
that any of the individual records satisf[y] the prerequisites for the
application of the privilege.'' (citing Committee on the Judiciary,
U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C.
2008)). The letter additionally explained that even if the President
were to properly invoke privilege, any executive privilege has been
waived as to documents ``that the White House voluntarily disclosed to
Mr. McGahn and his counsel,'' as affirmed by the in D.C. Circuit in In
re Sealed Case (Espy), 121 F.3d 729, 741-42 (D.C. Cir. 1997) (``[T]he
White House waive[s] its claims of privilege in regard to specific
documents that it voluntarily reveal[s] to third parties outside the
White House.''') As to Mr. McGahn's own document production
obligations, the letter reminded Mr. McGahn that the subpoena directly
requires a privilege log for any document that is ``withheld in full or
in part on any basis,'' including on ``the basis of a privilege
asserted by or on behalf of the White House, or at the request of the
White House,'' and that ``any objections or claims of privilege are
waived'' upon failure to provide ``an explanation of why full
compliance is not possible and a log identifying with specificity the
ground(s) for withholding each withheld document prior to the request
compliance date.''
\68\On May 20, 2019, Mr. Cipollone wrote to the Judiciary
Committee, stating that the Department of Justice ``advised'' him that
``Mr. McGahn is absolutely immune from compelled congressional
testimony with respect to matters occurring during his service as a
senior adviser to the President'' and that, because ``of this
constitutional immunity, and in order to protect the prerogatives of
the Office of the Presidency, the President has directed Mr. McGahn not
to appear at the Committee's scheduled hearing on Tuesday, May 21,
2019.'' Letter to Jerrold Nadler, Chairman, H. Comm. on the Judiciary,
from Pat Cipollone, Counsel to the President (May 20, 2019). The letter
attached an opinion from the Office of Legal Counsel, dated May 20,
2019, advising that ``Congress may not constitutionally compel the
President's senior advisers to testify about their official duties.''
Mem. Op., Re: Testimonial Immunity Before Congress of the Former
Counsel to the President, Office of Legal Counsel (May 20, 2019).
\69\In a May 31, 2019 letter to Mr. McGahn and Mr. Cipollone, the
Judiciary Committee's expressed willingness ``to discuss any reasonable
accommodation(s) that would facilitate Mr. McGahn's appearance before
the Committee.'' These accommodations included ``limiting the testimony
to the specific events detailed in the Special Counsel's report,
identifying with greater specificity the precise areas of intended
inquiry, and agreeing to the presence of White House counsel during any
testimony, so that Mr. McGahn may consult regarding the assertion of
executive privilege.''
---------------------------------------------------------------------------
Bipartisan Legal Advisory Group and Subpoena Enforcement
The second resolved clause of H. Res. 430 reaffirms that
committee chairs, when authorized by the Bipartisan Legal
Advisory Group (BLAG), retain the ability to bring litigation
in Federal court to enforce their subpoenas, commonly referred
to as ``civil contempt'' proceedings.\70\ While the full House
can vote to authorize a committee to seek relief from federal
courts to enforce a subpoena duly issued by that committee, it
is also important to note that this is not the only avenue for
such authorization available to a committee. Pursuant to clause
8(b) of rule II of the House of Representatives, the BLAG,
comprised of the Speaker and the majority and minority
leaderships, speaks for and articulates the institutional
position of the House in all litigation matters; this includes
authorizing a committee to seek civil enforcement of its duly
issued subpoena. As articulated by the Chair of the Committee
on Rules in a Congressional Record statement from January 3,
2019, on civil enforcement of subpoenas pursuant to clause 8(b)
of rule II:
---------------------------------------------------------------------------
\70\See supra note 1.
Pursuant to this provision, the Bipartisan Legal
Advisory Group (BLAG) is delegated the authority to
speak for the full House of Representatives with
respect to all litigation matters. A vote of the BLAG
to authorize litigation and to articulate the
institutional position of the House in that litigation,
is the equivalent of a vote of the full House of
Representatives. For example, in the 115th Congress,
the BLAG, pursuant to Rule II(8)(b), authorized House
Committees to intervene in ongoing litigation. The BLAG
has been delegated this authority for all litigation
matters, and I want to be clear that this includes
litigation related to the civil enforcement of a
Committee subpoena. If a Committee determines that one
or more of its duly issued subpoenas has not been
complied with and that civil enforcement is necessary,
the BLAG, pursuant to House Rule II(8)(b), may
authorize the House Office of General Counsel to
initiate civil litigation on behalf of this Committee
to enforce the Committee's subpoena(s) in federal
district court.\71\
---------------------------------------------------------------------------
\71\165 Cong. Rec. 1, H30 (daily ed. Jan. 3, 2019) (statement of
Chairman James P. McGovern)
Use of the BLAG to authorize a committee to seek relief
from a federal court to enforce a subpoena duly issued by that
committee is instrumental in ensuring the House is able to
protect its constitutional duty to conduct effective oversight
of the Executive Branch. Given the unprecedented and systemic
way in which the Trump Administration has refused to comply
with duly issued congressional subpoenas thus far, there is no
reason to believe the Executive Branch will change course. As
such, the BLAG, speaking for the House, provides the most
efficient way for the House to combat this widespread and
unprecedented obstruction going forward, providing committees
an avenue to enforce their subpoenas, while still providing the
institution with the time to pursue its other constitutional
duties.
It is important to note that House committees have
previously been found by the courts to have legal standing to
seek relief from federal courts to enforce their subpoenas. The
Court of Appeals for the D.C. Circuit has recognized ``that the
House as a whole has standing to assert its investigatory
power, and can designate a member to act on its behalf.''\72\
Moreover, federal district courts in the past have found that a
standing committee has legal standing to pursue relief in
court, and have ruled in favor of committees alleging injuries
nearly identical to those that would be alleged in a lawsuit to
enforce compliance with a subpoena as authorized by this
resolution.
---------------------------------------------------------------------------
\72\United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976).
---------------------------------------------------------------------------
In Committee on the Judiciary v. Miers, the Judiciary
Committee, as part of its investigation into the politically
motivated firing of several U.S. Attorneys by the George W.
Bush Administration, sought civil enforcement of its subpoena
in federal court. The district court ruled for the Committee,
holding it had standing to enforce its subpoena. The court
rejected the White House's claim of absolute immunity from
testimony, and ordered the production of a ``detailed list and
description'' of the documents ``with[e]ld on the basis of
executive privilege sufficient to enable resolution of any
privilege claims.''\73\
---------------------------------------------------------------------------
\73\Comm. on Judiciary v. Miers, 558 F.Supp. 2d 53, 107 (D.D.C.
2008). While the Obama Administration and House of Representatives
negotiated a resolution without an appellate resolution, the district
court's decision, at the House's insistence, was not withdrawn. Irvin
B. Nathan, Protecting the House's Institutional Prerogative To Enforce
its Subpoenas (The Constitution Project--When Congress Comes Calling,
2nd ed., 2017), available at https://constitutionproject.org/wp-
content/uploads/2017/05/HouseSubpoenas.pdf.
---------------------------------------------------------------------------
Similarly, in Committee on Oversight & Government Reform v.
Holder, the Committee on Oversight and Government Reform
investigated ``Operation Fast and Furious'' and related
operations by the ATF and U.S. Attorney's Offices designed to
track illegal gun sales to Mexican gun cartels. After having
received some documents from the Department of Justice
responsive to its requests, the Oversight Committee subpoenaed
a lengthy and comprehensive set of documents. On June 19, 2012,
President Obama asserted privilege over these documents;
Attorney General Holder was thereafter held in contempt by the
House; and the Oversight Committee pursued a civil action to
obtain access to the documents. Agreeing with Miers, the
District Court made clear that the Oversight Committee had
standing to enforce its subpoena and the court had authority to
decide the case.\74\
---------------------------------------------------------------------------
\74\See Comm. on Oversight & Gov't Reform v. Holder, 979 F. Supp.
2d 1, 9-26 (D.D.C. 2013).
---------------------------------------------------------------------------
House's Commitment to Responsible Article I Oversight
The third resolved clause of H. Res. 430 specifies that
standing and permanent select committees seeking to enforce
their subpoenas in court under the Resolution have any and all
necessary authority under Article I of the Constitution. The
authority is included because of widespread and credible
allegations of misconduct and abuse of power by President Trump
as well as the President's extreme if not unprecedented actions
seeking to cover up and obstruct committee investigations.
President Trump has openly declared his opposition to, and
intent to block, Congress' exercise of its constitutional,
legislative, and oversight responsibilities. Earlier this year,
he vowed, ``We're fighting all the subpoenas,'' and ``I don't
want people testifying.''\75\
---------------------------------------------------------------------------
\75\See supra note 2.
---------------------------------------------------------------------------
As the Supreme Court has repeatedly affirmed, the ``scope
of [Congress's] power of inquiry . . . is as penetrating and
far-reaching as the potential power to enact and appropriate
under the Constitution.''\76\ It ``has been employed by
Congress throughout our history, over the whole range of
national interests concerning which Congress might legislate or
decide upon due investigation not to legislate.''\77\ Moreover,
the ``power to secure needed information'' through compulsory
process, when needed, is ``an essential and appropriate
auxiliary to the legislative function.''\78\ Without access to
necessary information, Congress would be unable to ``legislate
widely or effectively.''\79\ Additionally, neither the
Executive Branch nor the courts may second-guess or ``test[]
the motives'' of Congress when Congress seeks to enforce its
subpoena authority.\80\
---------------------------------------------------------------------------
\76\Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 50 n.15
(1975).
\77\Barenblatt v. United States, 360 U.S. 109, 111 (1959).
\78\McGrain v. Daugherty, 273 U.S. 135, 161, 174 (1927); see also
Eastland, 421 U.S. at 504 (``[i]ssuance of subpoenas . . . has long
been held to be a legitimate use by Congress of its power to
investigate'').
\79\McGrain, 273 U.S. at 175.
\80\Watkins v. United States, 354 U.S. 178, 200 (1957); see also
McGrain, 273 U.S. at 178 (``[w]e are bound to presume that the action
of the legislative body was with a legitimate legislative object''
(internal quotations omitted)).
---------------------------------------------------------------------------
Accordingly, this resolved clause is intended to make clear
that the committees have ``all necessary authorities under
Article I'' to enforce subpoenas for witnesses and documents.
To the extent any issues arise that concern overlapping areas
of jurisdiction among the committees, or uncertainties
regarding committees' respective jurisdictions, this clause
confirms that each committee has the full authority of the
House of Representatives to enforce its subpoenas. Committees
may, in connection with exercising their authority under this
resolved clause, choose to specify the precise constitutional
powers upon which they are relying, as well as the legitimate
legislative purposes and details of their work within the full
bounds of their authority under Article I, whether at or in
connection with hearings, in Committee reports, memoranda, or
through other means.
An example of a Committee being able to use ``all necessary
authority under Article I of the Constitution'' is illustrated
by the Judiciary Committee's contempt report, 116-105, which
explained the purposes of its investigation include: ``(1)
investigating and exposing any possible malfeasance, abuse of
power, corruption, obstruction of justice, or other misconduct
on the part of the President or other Members of his
Administration; 2) considering whether the conduct uncovered
may warrant amending or creating new federal authorities,
including among other things, relating to election security,
campaign finance, misuse of electronic data, and the types of
obstructive conduct that the Mueller Report describes; and 3)
considering whether any of the conduct described in the Special
Counsel's Report warrants the Committee in taking any further
steps under Congress' Article 1 powers.'' The Judiciary
Committee's report states that this includes whether to
recommend ``articles of impeachment with respect to the
President or any other Administration official, as well as the
consideration of other steps such as censure or issuing
criminal, civil or administrative referrals.'' The Committee
further noted that, ``No determination has been made as to such
further actions, and the Committee needs to review the
unredacted report, the underlying evidence, and associated
documents so that it can ascertain the facts and consider its
next steps.''\81\ As noted above, this resolution also
authorizes the Judiciary Committee to assert in court that it
is seeking information preliminary to a judicial proceeding.
---------------------------------------------------------------------------
\81\Contempt report at 21, specifying the scope of the Committee's
investigation with respect to which the information in the Barr and
McGahn subpoenas is sought.
---------------------------------------------------------------------------
Use of the full range of Article I authorities under this
Resolution is necessary to address the President and his
Administration's extensive efforts to stonewall congressional
oversight and to block enforcement of congressional
subpoenas.\82\ These measures include the unprecedented
defiance of committee subpoenas on the ground that the
committee lacks a ``legitimate legislative purpose''\83\;
assertions of executive privilege\84\ and absolute immunity
without a valid basis\85\; and withholding of information based
on other grounds that lack a statutory basis.\86\
---------------------------------------------------------------------------
\82\As the Committee on the Judiciary explained when it recommended
articles of impeachment against President Richard Nixon, when a
President ``fail[s] without lawful cause or excuse to produce papers
and things as directed by duly authorized subpoenas,'' he ``violat[es]
[] his constitutional duty to take care that the laws be faithfully
executed.'' The President cannot be permitted to ``interpos[e] the
powers of the Presidency against the lawful subpoenas of the House of
Representatives.'' H. Rep. 93-1305 (1974) pp 1-4.
\83\Complaint at 3, Trump v. Comm. on Oversight & Reform of the
United States House of Representatives, No. CV 01136 (``Chairman
Cummings' subpoena of Mazars lacks a legitimate legislative
purpose.'').
\84\Letter to Jerrold Nadler, Chairman, H. Comm. on the Judiciary,
from Pat Cipollone, Counsel to the President (May 20, 2019).
\85\Mem. Op., Re: Testimonial Immunity Before Congress of the
Former Counsel to the President, Office of Legal Counsel (May 20,
2019).
\86\Attorney General Barr redacted significant portions of the
Mueller Report, for example, on the ground that disclosure of those
portions to Congress could harm ongoing law enforcement investigations,
compromise personal privacy of third parties, or compromise
investigative sources and methods. See Letter to Hon. Jerrold Nadler,
Chairman, H. Comm on the Judiciary from William Barr, Attorney General
(Mar. 29, 2019).
---------------------------------------------------------------------------
It is in the interests of the House and the committees
first and foremost to achieve reasonable and good faith
accommodations with the Administration regarding any and all
outstanding requests, whether or not they are pursuant to duly
issued subpoenas. The record of this Congress as set forth in
this report and otherwise make that clear. Those efforts remain
ongoing of course. Notwithstanding the provisions of this
Resolution, it is to be expected the relevant committees will
continue their efforts to reach accommodation whenever
possible.
Conclusion
In examining this constant and ongoing stonewalling, it is
clear that President Trump and his Administration do not
recognize Congress as a co-equal branch of government with
independent constitutional oversight authority. The systemic
and widespread nature of the obstruction indicates it will
continue in both breadth and brazenness. If allowed to go
unchecked, the Trump Administration's obstruction means the end
of Congressional oversight and the erosion of the fundamental
bedrock principle of checks and balances that anchors our
Constitution and form of government. This Democratic Majority
is committed to defending Congress' power as an independent
branch of government to hold this or any administration
accountable. It is because of this unprecedented stonewalling
by the Trump Administration that the House will take the rare
and important step to consider this resolution authorizing the
Judiciary Committee to enforce its duly issued subpoenas
relating to the vitally important Mueller Report and reaffirms
that all committees have the ability, when authorized by the
House or the BLAG, to turn to the Federal courts to enforce its
subpoenas to get the information they need to conduct effective
oversight. House Democrats will continue to legislate,
investigate, and litigate within our Constitutional authority
and for the American people. House Resolution 430 gets to that
end.
HEARINGS
The Committee on Rules did not hold a hearing on this
measure. While Sec. 103(i) of H. Res. 6 provides a point of
order against any bill or joint resolution reported by
committee if the report does not contain a list of relevant
committee and subcommittee hearings, which includes the
designation of at least one such hearing that was used to
develop or consider the underlying measure, as a simple
resolution, this measure is not subject to that requirement.
COMMITTEE CONSIDERATION
The Committee on Rules met on June 10, 2019, in open
session and ordered H. Res. 430, favorably reported with an
amendment to the House by a record vote of 8 yeas and 4 nays, a
quorum being present.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report the legislation and amendments thereto.
A motion by Mr. Perlmutter to report the resolution, as
amended, to the House with a favorable recommendation was
agreed to by a record vote of 8 yeas and 4 nays, a quorum being
present. The names of Members voting for and against follow:
Rules Committee record vote No. 107
Motion by Mr. Perlmutter to report the resolution, as
amended, to the House with a favorable recommendation. Agreed
to: 8 yeas and 4 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Nay
Mrs. Torres..................................... Yea Mr. Woodall....................... Nay
Mr. Perlmutter.................................. Yea Mr. Burgess....................... Nay
Mr. Raskin...................................... Yea Mrs. Lesko........................ Nay
Ms. Scanlon..................................... Yea
Mr. Morelle..................................... Yea
Ms. Shalala..................................... Yea
Mr. DeSaulnier.................................. Yea
Mr. McGovern, Chairman.......................... Yea
----------------------------------------------------------------------------------------------------------------
The committee also considered the following amendments on
which record votes were requested. The names of Members voting
for and against follow:
Rules Committee record vote No. 99
Motion by Mr. Cole to postpone consideration of H. Res. 430
indefinitely, pursuant to clause 4(a)(7) of House Rule XVI. Not
Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 100
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Cole to require that before the chair of the
Committee on the Judiciary seeks such relief as described in
the first resolved clause, he certify in writing to the Clerk
of the House that he has personally reviewed all official
Government reports related to the subpoena that is the subject
of the resolution accompanying House Report 116-105. Not Agreed
to: 4 yeas to 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 101
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Cole to require that before the chair of the
Committee on the Judiciary seeks such relief as described in
the first resolving clause the chair shall certify in writing
to the Clerk of the House of Representatives that he has made a
good faith effort to negotiate with the Attorney General
regarding such subpoena. Not Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 102
Amendment to the Amendment in the Nature of a Substitute
offered by Mrs. Lesko to require that the Office of General
Counsel of the House of Representatives shall periodically
report to the House of Representatives the expenditures
incurred with respect to any judicial proceeding initiated or
intervened in pursuant to the authority described in the first
resolving clause. Not Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 103
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Burgess to provide that the Office of General
Counsel of the House of Representatives may not hire any person
who is a registered lobbyist under the Lobbying Disclosure Act
of 1995 or who is employed by a lobbying firm (as such term is
defined in section 3 of the Lobbying Disclosure Act of 1995 (2
U.S.C. 1602)). Not Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 104
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Cole to require that in the case of any judicial
proceeding initiated or intervened in pursuant to the authority
described in the first resolving clause, the Office of General
Counsel of the House of Representatives shall provide to the
Bipartisan Legal Advisory Group, and make available to any
Member of the House of Representatives upon request, a
description of, in the opinion of the General Counsel, the
likelihood of success on the merits and strategy for addressing
the decision of the Court of Appeals for the District of
Columbia in McKeever v. Barr No. 17-5149 (D.C. Cir. 2019). Not
Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 105
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Woodall to provide that 10 days prior to hiring
a lawyer or a consultant for the purpose of initiating or
intervening in a judicial proceeding pursuant to the authority
described in the first or second resolving clause, the Office
of General Counsel of the House of Representatives shall
provide to the Clerk of the House of Representatives and make
available to any Member of the House of Representatives upon
request the intended contract containing the terms of hire. Not
Agreed to: 4 yeas and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
Rules Committee record vote No. 106
Amendment to the Amendment in the Nature of a Substitute
offered by Mr. Burgess to require that in the case of any
judicial proceeding initiated or intervened in pursuant to the
authority described in the first or second resolving clause,
the chair of the relevant committee shall provide to the Clerk
of the House of Representatives and make available to any
Member of the House of Representatives upon request the source
of the funds used to pay the costs associated with such
judicial proceeding, including any corresponding reduction in
the budget of any office or committee. Not Agreed to: 4 yeas
and 8 nays.
----------------------------------------------------------------------------------------------------------------
Majority Members Vote Minority Members Vote
----------------------------------------------------------------------------------------------------------------
Mr. Hastings.................................... ............ Mr. Cole.......................... Yea
Mrs. Torres..................................... Nay Mr. Woodall....................... Yea
Mr. Perlmutter.................................. Nay Mr. Burgess....................... Yea
Mr. Raskin...................................... Nay Mrs. Lesko........................ Yea
Ms. Scanlon..................................... Nay
Mr. Morelle..................................... Nay
Ms. Shalala..................................... Nay
Mr. DeSaulnier.................................. Nay
Mr. McGovern, Chairman.......................... Nay
----------------------------------------------------------------------------------------------------------------
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee made findings and
recommendations that are reflected in this report.
PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Committee establishes the
following performance related goals and objectives for this
legislation:
The resolution authorizes the chair of the Committee on the
Judiciary, acting on behalf of the committee, to initiate or
intervene in any judicial proceeding before a Federal court to
seek enforcement of certain subpoenas duly issued by the
committee. The resolution reaffirms the ability of any
committee and permanent select committee, when authorized by
the Bipartisan Legal Advisory Group, to initiate or intervene
in any judicial proceeding before a Federal court to seek
enforcement of its duly issued subpoena. The resolution also
states that, in connection with any judicial proceeding brought
under the authorities described, the chair of any standing or
permanent select committee has any and all necessary authority
under Article I of the Constitution. The resolution requires
that when a committee initiates or intervenes in a civil
enforcement action in Federal court pursuant to the resolution
that the chair of that committee must notify the House.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
SECTION-BY-SECTION ANALYSIS
First Resolved Clause. This clause provides independent
authority for the chair of the Committee on the Judiciary, on
behalf of the Committee, to initiate or intervene in any
judicial proceeding before a Federal court to seek enforcement
of the subpoenas duly issued to William P. Barr, Attorney
General, U.S. Department of Justice, and Donald F. McGahn, II,
former White House Counsel.
Second Resolved Clause. This clause reaffirms that the
chair of each standing and permanent select committee, when
authorized by the Bipartisan Legal Advisory Group, retains the
ability to initiate or intervene in any judicial proceeding
before a Federal court on behalf of such committee, to seek the
enforcement of any subpoena duly issued by the committee.
Third Resolved Clause. This clause ensures that in
connection with any judicial proceedings brought under the
authorities described, the chair of any standing or permanent
select committee has any and all necessary authority under
Article I of the Constitution.
Fourth Resolved Clause. This clause requires that the chair
of any standing or permanent select committee notify the House
with respect to the commencement of any judicial proceeding
pursuant to the authorities described.
Fifth Resolved Clause. This clause allows the Office of the
General Counsel, when authorized by the Speaker, to represent
any standing or permanent select committee in any judicial
proceeding initiated or intervened in pursuant to the authority
described in the resolution.
Sixth Resolved Clause. This clause provides that the Office
of the General Counsel is authorized to retain private counsel,
either for pay or pro bono, to assist in the representation of
any standing or select committee in any judicial proceeding
initiated or intervened in pursuant to the authorities
described in the resolution.
CHANGES IN EXISTING HOUSE RULES MADE BY THE RESOLUTION, AS REPORTED
In compliance with clause 3(g) of rule XIII of the Rules of
the House of Representatives, the Committee finds that this
resolution does not propose to repeal or amend a standing rule
of the House.
Dissenting Views
H. Res. 430 is the latest misstep in the Democratic
Majority's journey to shadow impeach the President.
Unfortunately, this measure does not adequately provide a
pathway for the U.S. House of Representatives to fulfill its
Article I responsibilities and conduct prudent and targeted
oversight. As such, we cannot support it. The options before
the Democratic Majority to acquire the information they seek
are numerous, yet the tool they selected and enshrined in H.
Res. 430 is unwieldly and ineffective at best, and at worst,
places the credibility of the institution in court and in the
hands of an untested legal theory.
We would be remiss if we did not express our disappointment
that the Majority held no legislative hearings on the text and
moved directly to a Full Committee Markup a mere four days
after introduction, with only six Members of the Democratic
Majority joining as cosponsors. Not to mention neglecting to
have the very Chairman who authorized the underlying subpoenas
referenced in the text testify before the Rules Committee. As
we seek to understand the Majority's expedited consideration of
H. Res. 430, we find the following statement from a member of
the Democratic Caucus instructive:
``Yes, we simply do not have 400 days to wait before
making sure that we are protected in the 2020 election.
We know that in 2016, the Russians interfered with our
election so that they could help Donald Trump get
elected. Donald Trump will stand for reelection again
in a very short period of time, and we don't have 400
days to wait to determine whether or not we are in
shape to withstand any additional attempts for the
Russians to try to interfere to help Trump get
reelected.''\1\
---------------------------------------------------------------------------
\1\May 8, 2019 House Judiciary Committee Business Meeting at 148.
Members of the Democratic Majority have previously
articulated the key flaws we see in the entire process leading
this Committee to consider H. Res. 430, and indeed, in the
premise of the resolution itself. While these comments were
written in defense of a previous attorney general, they
perfectly apply to the situation before this Committee and
---------------------------------------------------------------------------
ultimately the full House:
``As a Member of Congress, I treat assertions of
executive privilege very seriously. I believe they
should be used only sparingly. In this case, it seems
clear the Administration was forced into a position by
the committee's insistence on pushing forward with
contempt. Despite the Attorney General's good-faith
offer, Mr. Chairman, it did not have to be this way. We
could have postponed today's vote and accepted the
Attorney General's offer. Instead, by not honoring the
Constitution's charge to seek accommodations when
possible, the prestige of this committee has been
diminished. As a result, that should concern us
all.''\2\
---------------------------------------------------------------------------
\2\Statement of Congressman Elijah Cummings. Oversight and
Government Reform Committee, Report Recommending that the House of
Representatives Find Eric H. Holder, Jr., Attorney General, U.S.
Department of Justice, in Contempt of Congress for Refusal To Comply
With A Subpoena Duly Issued By The Committee on Oversight and
Government Reform, June 20, 2012. Available at: https://republicans-
oversight.house.gov/wp-content/uploads/2012/06/6-19-12-Fast-and-
Furious-Contempt-Report.pdf.
While the resolution contains a number of drafting flaws,
we find three grave errors in the fundamental premise of the
legislation that are deserving of this body's careful
consideration and deliberation before further rushing to a vote
of the full House. It should also be of interest to Members of
this distinguished institution that during consideration of H.
Res. 430, we attempted to reach across the aisle to offer
solutions to some of the most basic, technical problems with
the drafting of the legislation, including ensuring that
registered lobbyists would not be paid by the House, and
therefore the American taxpayer, under the authorities provided
in H. Res. 430. This amendment, which was supported by our
Democratic colleagues in a previous Congress, was rejected by
every Democratic member of the Rules Committee--giving us
significant pause for the future of this institution in the
hands of this Democratic Majority.
The Resolution is Unprecedented in Speed and Sequencing
The U.S. House of Representatives has only sued for
documents twice, and in both cases the individuals in question
were first found in contempt of Congress at both the committee
level and by the full House. In the case of Attorney General
William P. Barr and Mr. Donald F. McGahn, the Democratic
Majority has opted not to hold these individuals in contempt of
Congress at this time despite taking action in the House
Judiciary Committee. This strategy is unprecedented in the
House. Never before has this institution moved to sue without
exercising all of its options to get the information it
desires, including first voting on criminal contempt. Not only
is H. Res. 430 unprecedented in the sequencing of events, but
also in the timeframe in which the actions compare to the two
previous instances.
------------------------------------------------------------------------
First Request Subpoena until
until Contempt in Contempt in
Committee Committee
------------------------------------------------------------------------
William Barr.................... 44 days........... 19 days
Eric Holder..................... 464 days.......... 255 days
Harriet Miers................... 138 days.......... 42 days
------------------------------------------------------------------------
The Resolution Increases Risk to the Institution
The path that H. Res. 430 forces the House upon puts this
institution on weak legal footing in the eyes of the court.
When the House sued for documents in the two previous instances
noted above, the government officials were first held in
contempt. In other words, the House had utilized all the tools
in its toolbox. That is not the case here. These untested
tactics risk the House losing in court, causing long-term
damage to the institution and an utter waste of taxpayer
resources--both time and financial. The debate over the
inclusion of 6(e) materials in the underlying subpoena related
to Attorney General Barr is of particular relevance here. While
House Judiciary Committee Chairman Jerrold Nadler has made
numerous statements, including in a May 24, 2019 letter to the
Department of Justice, that his Committee is not seeking any
documents that are properly subject to Rule 6(e), the very
subpoena he issued, and referenced in paragraph one of H. Res.
430, applies to 6(e) materials, making it impossible for
Attorney General Barr to fully comply with the subpoena without
breaking the law. As highlighted in the House Judiciary
Committee's dissenting views in House Report 116-105:
At the Committee business meeting to discuss the contempt
citation, Chairman Nadler acknowledged a difference between the
intent of the subpoena and the language in the actual subpoena
itself. Amidst a discussion about grand jury (``6(e)'')
material--which would require the Attorney General to break the
law in order to produce to the Committee--the Chairman stated:
The reason that was in the subpoena was to increase our
clout in court in getting the 6(e) material, hopefully with the
Attorney General's support, but it is in no way meant to force
him to give that support.
This astonishing admission strikes at the heart of the
matter: the Chairman is not interested in obtaining documents
through the accommodations process but rather positioning
himself for litigation.
Further, after acknowledging it was not the Chairman's
intent to include this grand jury material, he stated:
No, we are not going to issue a new subpoena. We have
no intention and never had any intention of enforcing--
of trying to force the Attorney General or anyone else
to give us 6(e) material without going to court.
The Chairman also stated:
. . . it has never been our intention, as we have
stated before, to ask the Attorney General to violate
the law. We have always intended and we have made it
very clear that we wanted him to come to court with us
to ask for an exemption to Rule 6(e).
These statements indicate the Chairman's goal all along was
to go to court and not engage in the accommodations process. If
the Chairman believed the material could not be obtained absent
going to court, he could have carved out language to that
effect in the subpoena or an accompanying cover letter. He did
not do this. Instead, he expects the Attorney General to go to
court seeking this material--something the Chairman has
provided no precedent for--and moved to hold him in contempt in
part because the Attorney General did not do this.\3\
---------------------------------------------------------------------------
\3\Dissenting views in H. Rept. 116-105--Resolution Recommending
That The House Of Representatives Find William P. Barr, Attorney
General, U.S. Department Of Justice, In Contempt Of Congress For
Refusal To Comply With A Subpoena Duly Issued By The Committee On The
Judiciary, Jun. 6,2019, pp. 24-41. Available at: https://
www.congress.gov/116/crpt/hrpt105/CRPT-16hrpt105.pdf.
---------------------------------------------------------------------------
To be clear, the Attorney General's refusal to go to court
along with Chairman Nadler is in no way a proper demand of the
Chair, nor should be considered a proper basis for this
proposed action of the House.
During the April 3, 2019 House Judiciary Committee markup
authorizing the subpoena referenced in (1)(A) of H. Res. 430,
Congressman Ken Buck (R-CO) offered an amendment stating:
This Resolution shall not be construed as authorizing
the Chairman to issue a subpoena for the production of
information where such production would violate Rule
6(e) of the Federal Rules of Criminal Procedure.\4\
---------------------------------------------------------------------------
\4\Markup of Resolution authorizing issuance of subpoena, H. Comm.
on the Judiciary, 116th Cong., 1st Session, Apr. 3, 2019, Amendment--
Buck #2, available at: https://docs.house.gov/Committee/Calendar/
ByEvent.aspx?EventID=109260.
Meaning that the subpoena in question wouldn't cover 6(e)
materials, ensuring that the Attorney General of the United
States would not be forced to choose between complying with
subpoena or complying with the law. Chairman Nadler and every
Democratic Member of the Judiciary Committee voted against this
amendment and it was rejected by a vote of 24-16.
On April 9, 2019, the Congressional Research Service
released a ``Legal Sidebar'' on a DC District Court decision
McKeever v. Holder:
On April 5, 2019, the three-judge panel in McKeever
ruled that federal courts lack ``inherent authority''
to authorize the disclosure of grand jury matters in
circumstances not covered by an explicit exception set
out in Rule 6(e) of the Federal Rules of Criminal
Procedure. It thus appears that, for the time being,
the panel's decision has closed off one potential
avenue for Congress to obtain grand jury material in
federal court in the District of Columbia (though the
decision could always be reheard en banc or overturned
by the Supreme Court).
That said, as the McKeever decision notes, Congress
previously was successful in obtaining grand jury
materials pursuant to the Rule 6(e) exception for
disclosure ``preliminarily to or in connection with a
judicial proceeding'' on the theory that an authorized
impeachment inquiry is preliminary to such a
proceeding. That avenue appears to remain available to
Congress after McKeever.
Furthermore, Congress has in the past taken the
position that it possesses independent constitutional
authority to obtain grand jury materials regardless of
the applicability of any Rule 6(e) exceptions--i.e.,
that the rule of grand jury secrecy simply does not
apply to Congress when it is acting within the ``sphere
of legitimate legislative activity.'' But while two
courts have appeared to agree with that position, the
Department of Justice (and some other courts) have
contested it.\5\
\5\Foster, Michael, ``Do Courts Have Inherent Authority to Release
Secret Grand Jury Materials?''. CRS Legal Sidebar, April 9. 2019.
Available at: https://www.crs.gov/Reports/
LSB10201?source=search&guid=e30d31d0ce6e40d6b61875dcf4867487&index=0.
The McKeever decision is instructive to the consideration
of H. Res. 430 in a few areas:
As the court ruled that federal courts lack
``inherent authority'' to authorize the disclosure of grand
jury matters in circumstances not covered by an explicit
exception set out in Rule 6(e), the subpoena authorized by
Chairman Nadler is inherently flawed and unenforceable.
Pursuing civil action to enforce a subpoena
covering material that federal courts cannot authorize
virtually ensures the House will lose and inflict long-term
damage on the institution through flawed and untested legal
theories.
The decision notes that Congress previously was
successful in obtaining grand jury materials pursuant to the
Rule 6(e) exception for disclosure ``preliminarily to or in
connection with a judicial proceeding'' on the theory that an
authorized impeachment inquiry is preliminary to such a
proceeding. In the situation before us, clear distinctions are
drawn between the previous legal success where the individuals
in question were first held in contempt, and the current
context in which the full House as not taken a single vote as
it relates to contempt.
The Resolution is the Least Effective Means
Other than securing news headlines, it is largely unclear
what Chairman Nadler and Chairman McGovern are trying to
accomplish, as this resolution upends process, bipartisanship,
and the foundation needed for this institution to have the best
chance of success in court. While H. Res. 430 purports to
replace the need for a vote of the Full House for the vote of
the three Majority Members of the Bipartisan Legal Advisory
Group, this structure only furthers our concern that taking
away the voice of the Full House on an issue of the
Constitutional separation of powers will lead to long term
damage to the institution. The risk assumed by passage of this
resolution leads us to believe that success in court and the
preservation of this institution is unfortunately being
neglected for other priorities of the Majority.
Leading us to again wonder, why are countless hours being
wasted to consider this legislation now when arguably, the
Democratic Majority could have done this months ago. We had
hoped their neglect to do so was evidence of their
understanding of the dangerous long-term implications of this
approach, but circumstances show otherwise.
While the actions of the Democratic Majority have left us
with little confidence that our concerns will be taken into
account in their abandonment of governing for the sake of
singular fixation on the results of the 2016 General Election,
we hope they will at least consider the poignant words of one
of their own chairmen:
``Why are we steamrolling ahead on a matter of such
gravity? The answer is plain and simple: politics.''
``I want this institution to be strong, I also want
the executive branch to be strong. That's part of our
duty, too. But when I see accommodation, when I see the
Attorney General trying to work with us [ . . . ] We
are very close to maintaining the integrity of both
institutions. The Constitution calls for accommodation
of each other and respect for each other.''
``It's not my way or the highway, that's not how we
operate.''\6\
---------------------------------------------------------------------------
\6\Statement of Congressman Elijah Cummings. Rules Committee
Hearing on H. Res. 706 and H. Res. 711, 112th Cong., 2nd Session, Jun.
27, 2012 available at: https://rules.house.gov/video/rules-committee-
hearing-h-res-706-and-h-res-711.
Tom Cole.
Rob Woodall.
Michael C. Burgess.
Debbie Lesko.