Justice Department memo justifies responding only to committee chairmen on Capitol Hill.
This story has been updated.
An all-but-official Trump administration directive seems to instruct agencies to respond to congressional oversight requests for information only from Republicans who control both chambers of Congress.
But Democrats in recent days have begun to protest what appears to be an unusually bold statement of policy they believe undermines bipartisan oversight, though they may have little legal leverage.
On Friday, Politico reported that White House attorney and special assistant Uttam Dhillon this spring had directed agencies not to cooperate with requests for information and documents from Democrats. The Huffington Post reported the day before that the Office of Personnel Management had declined to answer questions about cybersecurity training sent by Rep. Kathleen Rice, D-N.Y., until the lawmaker got a Republican to co-sign her information request.
On Monday, Rice took new action. “While we are not members of the president’s political party, we have a responsibility to work with this administration – as we would with any administration – on issues where we can find common ground, and we believe cybersecurity is such an issue,” Rice and Rep. Derek Kilmer, D-Wash., wrote in a June 5 letter to OPM. “If this administration is categorically prohibiting basic communication with Democrats, then they are prioritizing politics and loyalty over national security and common sense, and making it nearly impossible for members of Congress to do our jobs.”
The policy of responding only to members of the congressional majority was justified in a May 1 memo to the White House counsel from acting Assistant Attorney General Curtis Gannon and posted on the website of the Justice Department’s Office of Legal Counsel. “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee,” it noted. “They may request information from the executive branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings.”
Depending on circumstances, agencies in the past “have provided information only when doing so would not be overly burdensome and would not interfere with their ability to respond in a timely manner to duly authorized oversight requests,” said the memo, which draws on case law going back to the 1970s. “In many instances, such discretionary responses furnish the agency with an opportunity to correct misperceptions or inaccurate factual statements that are the basis for a request.”
Sen. Tom Carper, D-Del., ranking member of the Environment and Public Works Committee, protested in a Friday statement saying, “This administration continues to work tirelessly to keep the American people in the dark on their day-to-day operations of the federal government, from communicating on unofficial, unsecure devices, to holding off-the-books meetings, to suppressing the work of career staff in an attempt to mislead Congress, and refusing to properly address their conflicts of interest. This administration believes that it is somehow exempt from the basic requirements of transparency that come with representative government.”
Carper, who joined with 17 senators on May 24 in sending a letter to Trump asking him to rescind the policy of ignoring Democrats’ requests for information, said it “would be a significant departure from the practices of past administrations and seriously inhibit Congress's ability to fulfill its legislative and oversight duties.” That followed an earlier letter saying the Trump team was ignoring senators’ letters on such large issues as potential conflicts in Trump’s General Services Administration lease that allowed him to convert Washington’s Old Post Office into the Trump International Hotel.
“Every member of Congress represents hundreds of thousands of American citizens who expect their representatives in the House and Senate to fulfill their duty under the Constitution to act as a check on the executive branch in order to promote the proper functioning of federal agencies and departments,” Rep. Elijah Cummings, D-Md.--who has both sparred and cooperated with Republicans on the House Oversight and Government Reform Committee—told Government Executive on Monday. “We cannot do our jobs if the Trump administration adopts this unprecedented new policy of refusing to provide any information to Congress unless a request is backed by the implicit threat of a subpoena.”
Cummings added: “I encourage the Trump administration to reverse this misguided policy and embrace congressional oversight to make improvements to the operation of the federal government.”
Cummings’ aides noted that the conflict goes back months. In November 2016, Cummings raised concerns and requested documents about then National Security Adviser-designee Michael Flynn’s apparent “conflicts of interest and work on behalf of foreign interests,” the aide said. “Though the transition team acknowledged receipt of the letter, they never provided the information we requested.”
Late Monday, the 18 Democratic members of the House Oversight panel wrote to the General Services Administration challenging the Trump policy articulated by the Office of Legal Counsel. They cited the “seven-member rule” based on a 1928 law “explicitly delegating authority for any seven members of the Oversight Committee to require any executive agency to `submit any information requested of it relating to any matter within the jurisdiction of the committee.’”
Referring to past GSA actions during the Obama administration when GSA replied to congressional requests about Trump’s hotel lease, they accused the GSA of reversing its position in violation of a statute and again demanded all documents related to the hotel controversy.
Bill Valdez, president of the Senior Executives Association, told Government Executive, “Although this is unusual and possibly unprecedented, nonpartisan career executive leaders have historically complied with all administrations’ policies in regard to relationships with Capitol Hill. I would be surprised if career executive leaders do anything other than comply with this new policy.”
Greg Stanford, government and public affairs director of the Federal Managers Association, said, “Committee chairmen are afforded certain benefits due to their majority status, including prioritized responses for information requests from agencies. However, ordering agencies to ignore requests from all other duly elected representatives of the American people as a matter of established policy only results in distrust and further erodes civility in government. This new policy sets a dangerous, short-sighted precedent and at its core is un-American.”
Washington attorney John Maloney said he agrees with the Justice Department's opinion from a legal standpoint. "However, the spirit of bipartisanship is further degraded by that opinion," he said. "If the parties don’t fix that, the Democrats will refuse to vote for anything sought by the administration and the legislative process may grind to a halt for the remainder of the Trump administration.”
The nonprofit Project on Government Oversight, which analyzed the Justice memo in a Friday blogpost, noted that both parties have invoked such Justice Department guidance going back to 1984. “The de facto result, in present circumstances, is the diminution of oversight authority for Democratic lawmakers,” wrote Justin Rood, POGO’s director of the Congressional Oversight Initiative. “POGO has long held that because all members of Congress are responsible for overseeing the executive branch, agencies should respond fully and timely to any reasonable request from any member of Congress relating to the member's congressional duties, to the maximal extent of the law and without regard to the requester's party or status within their chamber.”
The White House did not respond to requests on Monday for comment. An OPM spokesman told Government Executive on Monday that the agency “responds to letters from individual members on a case-by-case basis. It represents a practice followed for many years, regardless of which party is in the majority. In this case, OPM will address and respond to the [Rice-Kilmer] letter directly."
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