It’s still recess, with two weeks until the Senate reconvenes and the House has a committee work week.
House and Senate Security Manuals are now publicly available thanks to litigation brought by journalist Shawn Musgrave. The House and Senate resisted the effort, brought under a common law right of access, and only ceded ground after it became apparent that their assertions to the court were incongruent with the facts.
↣ White House pushing back against Congress’s oversight authority
↣ Clearances, classified information, and the Espionage Act
↣ Updating the ADA regs that apply to Congress
Congress’s oversight authority may once again be the subject of litigation before the Supreme Court. Protect Democracy’s William Ford apprised us of developments on the efforts of a group of Democratic Members of the House Oversight Committee to obtain info from GSA concerning the Trump Hotel lease under 5 U.S.C. § 2954 back in 2017. That statute requires federal agencies to respond to information requests submitted by any five members of HSGAC or any seven members of House Oversight. As we have come to expect, GSA refused to comply and lawmakers sued.
The D.C. District court dismissed the lawsuit for lack of standing, but a 3-judge appellate panel reversed, holding the Members do have standing. Last week, the full Circuit denied the administration’s petition requesting reconsideration of that holding.
“The source of the Plaintiffs’ informational right is not Congress’s inherent power to obtain information in aid of legislation — as, say, a committee subpoena authorized by House rules would be. Rather, it is the express provision of a federal law — 5 U.S.C. § 2954 — duly enacted by both Houses of Congress and signed into law by President Coolidge…. Their right to information, in other words, is the outcome of bicameralism and presentment, not an implicit constitutional power.”
The Administration, in Ford’s view, likely will seek Supreme Court review. It may do so narrowly, seeking a ruling only on whether members can sue to enforce requests under 5 U.S.C. § 2954. But the administration indicated in briefing before the Circuit that it may seek Supreme Court review of a broader constitutional question: whether legislative suits to compel disclosure of Executive branch information are “Cases” or “Controversies” under Article III of the Constitution.
It is the longstanding position of the Executive branch that these suits are not “Cases” or “Controversies.” If the Supreme Court were to consider and adopt this argument, it would significantly undermine Congressional oversight authority — eliminating Congress’s ability to sue to enforce its subpoenas.
The Biden administration is one in a series of administrations working to undermine Executive branch accountability to Congress in the face of a duly-enacted law. And the delay in enforcement of that law reminds us of administration efforts — backtracked in 2021 — to prevent the Treasury Department from complying with a Ways and Means request for Trump’s tax returns pursuant to another federal statute. In both circumstances, the Justice Department played a key role in running out the clock on requests for information and trying to circumscribe Congressional powers to conduct oversight.
In the waning days of the 117th, Congress should bolster its oversight of the Executive branch and weakened presidential delaying tactics. Such measures should include bringing more transparency to opinions by the Justice Department’s Office of Legal Counsel, strengthening Congress’s contempt powers, expanding whistleblower protections, improving Congress’s legal capabilities, and bolstering affirmative disclosure laws.
CLEARANCES AND CONGRESS
Rep. Phillips introduced legislation last week (H.R.8623) that would require Members of Congress to hold a TS/SCI clearance level or higher in order to access Sensitive Compartmented Information. Friends, obtaining a TS/SCI clearance occurs through an Executive branch process, and requiring members of Congress to obtain a clearance prior to conducting their legislative and oversight duties would place the Executive branch in a position to dictate the information members could obtain. It would routinize Executive branch inquiries into the personal backgrounds of all Members, a power that has been abused in the past and is wholly inappropriate. Clearances for Congress members is a bad idea.
Members of Congress have a constitutional right to access the information they need to do their jobs without impediment. Congress has its own procedures governing when and how Members of Congress are allowed access to information the Executive branch has deemed classified and there’s no reason to substitute the judgment of the national security bureaucracy about whether a Member of Congress has the right to know for the judgment of Congress.
Hundreds of thousands of Executive branch employees hold TS/SCI clearances, so it’s not like access is unusual. If anything, more high-level clearances should be available to congressional staff particularly as the Executive branch over-classifies and up-classifies information with the consequence, in the words of the DNI Haines, that it “erodes the basic trust that our citizens have in their government.” (Congressional staff don’t need clearances but obtain them as a matter of comity.)
For more on how clearances work in the legislative branch, read my primer and check out the newly-available security manuals.
DISCLOSURE OF CLASSIFIED INFO
Will you be punished for revealing classified info? Unfortunately, it depends on who you are — and whether you disclose information that would hold the national security apparatus to account. POGO’s Danielle Brian and Liz Hempowicz wrote in 2016 about the then-Obama administration’s “arbitrary approach to the classification system and its double standard in prosecuting some individuals but not others” and how it “politicizes national security and makes the entire process a sham.” The powerful get a pass and whistleblowers get a flogging.
The Espionage Act, under which some of these prosecutions are brought, has long been used to punish whistleblowers and chill the press while giving the powerful a pass. We now have a rare circumstance where it is being used against a senior Executive branch official, ex-Pres. Trump, and as Freddy Martinez writes, “we should be deeply concerned about any failure to hold Trump accountable for violations of the law precisely because he is the former president.”
Freddy’s conclusion rings true: “we need to rein in the Espionage Act by enacting common sense reforms such as Representative Rashida Tlaib’s proposal to allow a public interest defense to defendants. At the same time, we should be wary given the DOJ’s history of unequal application of the Espionage Act, especially against powerful executive branch officials.”
There are 13 vacant inspectors general positions according to remarks delivered by Sen. Grassley last week. These positions should be filled by competent IGs.
Meanwhile, DHS IG Cuffari continues to draw fire concerning obstruction of the Jan. 6 Cmte’s investigation into presidential records deleted by the Secret Service. CORE Chair Maloney and Homeland Security Chair Thompson previously called for Cuffari to recuse himself from the investigation, raised questions about whether the cover-up may have been deliberate, and have now set a deadline of August 23 for Cuffari to comply with committee requests for information.
Whether Brookings violated foreign lobbying disclosure laws in the course of its interactions with the Qatari government is the subject of a letter that Senate Judiciary Cmte RM Chuck Grassley and three other Republican senators sent to Attorney General Merrick Garland last week. Former Brookings president John Allen is currently under investigation for alleged illegal lobbying for Qatar, and we are reminded of this 2014 NYT piece entitled “foreign powers buy influence at think tanks.”
On the Federal Agents Registration Act, we’ve frequently called for better (electronic) disclosure of FARA records and improvements to the law itself.
FOIA AND GOV DOCS
Unfreedom of information. In FY 2021, the NSA refused to acknowledge the existence of 41% of all records requested via FOIA, per the Reporters Committee for Freedom of the Press. The so-called Glomar response neither confirms nor denies the existence of requested records, a practice that originated with the CIA, but has since spread to other federal agencies.
FOIA Advisory Committee announced. Government members for the 2022 – 2024 term include Paul Chalmers, Carmen A. Collins, Allyson Deitrick, Gorka Garcia-Malene, Michael Heise, Stefanie Jewett, Alina M. Semo, Bobak Talebian, and Patricia Weth. Non-government members include Jason R. Baron, David Cuillier, Gbemende Johnson, Adam Marshall, Luke Nichter, Thomas Susman, Eira Tansey, Benjamin Tingo, Alexander Howard, and Ginger Quintero-McCall.
Should Supreme Court justices be allowed to burn their papers? No, but they can as there’s no legal equivalent to the Presidential Records Act or congressional ownership of committee documents. Maybe it’s time to change that?
A Jan. 6 mural? Rep. Jackie Speier introduced legislation (H.Res. 1312) that would require the House of Representatives to acquire a mural commemorating the Jan. 6 insurrection and to select an appropriate location in the House wing of the Capitol to display the mural. While we’re at it, can we get rid of the confederate statues?
Maloney’s franking. Rep. Carolyn Maloney’s liberal use of franked fliers in the lead up to Tuesday’s primary is raising eyebrows.
Sen. Graham to testify? We’ve been watching efforts unfold to have Sen. Graham testify before a grand jury in Fulton County, Georgia “about his role in an effort to pressure Georgia officials to change the results of the 2020 presidential election.” Sen. Graham, a close ally of Trump, has resisted the effort, and has now successfully persuaded the 11th Circuit to block the subpoena, which had received the green light in federal district court, until further arguments about the scope of the subpoena are considered by the federal district court.
Graham has asserted that his two phone calls with Georgia election officials, which coincided with efforts to falsify the election results, had to do with his official duties as a senator, although District Court Judge May had ruled the exchanges may have exceeded “legislative fact-finding.” The open question is whether he can and will successfully assert his Speech or Debate privileges to avoid answering questions. The issue could be moot if Sen. Graham, who held the rank of colonel and served as an attorney with the Judge Advocate General, including as a defense attorney, Chief Prosecutor in Europe, and judge, chooses to testify before the grand jury, which plays a fact-finding role concerning criminal wrongdoing.
Rep. Michael Guest was appointed by Kevin McCarthy as ranking member of the House Ethics Committee and is expected to serve in that role through the end of the year. Guest was first appointed to the Ethics Committee in the 116th as a freshman.
Former Member charged with multiple counts of fraud. An indictment unsealed last week revealed former Rep. Terrance John “TJ” Cox has been charged with 28 counts related to alleged money laundering and fraud — including campaign contributions fraud: one scheme to pay off family and friends for their campaign contributions, and another arranging for illegal campaign donations.
A new law to limit or curtail stock tracking by Members of Congress may also strengthen financial reporting requirements for the Supreme Court, Punchbowl reported. When will the bill be unveiled? Time is running out.
ODDS AND ENDS
No appropriations, at least until the new Congress is sworn in, is the call from members of the House Freedom Caucus. The most likely result, however, is a CR in September and a full-year bill in December.
OCWR rulemaking on the ADA. The Office of Congressional Workplace Rights proposed a rulemaking to update its ADA regulations. This would bring those rules in line with those promulgated by the Department of Transportation and the Department of Justice. For the regulation to be implemented, after a notice and comment period and the Board’s adoption of the regulations, the House and/or Senate must pass a resolution putting them into effect. We are unsure, but we think public comments are due by August 26th.
Resources for US Postal Service whistleblowing are now available from the Office of the Whistleblower Ombuds. The guidance notes that most USPS employees are not protected under the Whistleblower Protection Act.
The Levin Center’s 2022 Oversight Fellows are Christina Kinane and Josh McCrain.
House barber retiring. Joe Quattrone, who has served as the House barber for the past 51-and-a-half years, retires this week.
Progressive talent pipeline. Are you a progressive thinker, communicator, or organizer interested in working in Congress or the Executive branch? The Progressive Talent Pipeline is now accepting applications for its 2022 round of endorsements. The program identifies, trains, and recommends candidates for staff roles in order to bring new perspectives and energy into government and advance progressive priorities.
Down the line
Library of Congress virtual public forum. Mark your calendars: LC’s next virtual public forum will be held in September. Details to come soon.
The FOIA Advisory Committee will hold public meetings on September 8 and 14.
Save the date for law reform. The Seventh International Conference on Legislation and Law Reform, a conversation about how laws are written in the US and around the world, will be held November 3 and 4 in-person in DC. You’ll be able to register here soon.