Legislative oversight is most commonly conducted through
congressional budget, authorization, appropriations, confirmation,
and investigative processes, and, in rare instances, through
impeachment. But the adversarial, often confrontational, and
sometimes high profile nature of congressional investigations sets
it apart from the more routine, accommodative facets of the
oversight process experienced in authorization, appropriations, or
confirmation exercises. While all aspects of legislative oversight
share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the
implementation of public policy, and disclosing to the public how
its government is performing, the inquisitorial process also
sustains and vindicates Congress's role in our constitutional
scheme of separated powers and checks and balances. The rich
history of congressional investigations from the failed St. Clair
expedition in 1792 through Teapot Dome, Watergate, Iran-Contra,
Whitewater, and the current ongoing inquiries into Operation Fast
and Furious, has established, in law and practice, the nature and
contours of congressional prerogatives necessary to maintain the
integrity of the legislative role in that constitutional scheme. A
review of the historical experience pertinent to congressional
access to information regarding the law enforcement activities of
the Department of Justice indicates that the vast majority of
requests for materials are resolved through political negotiation
and accommodation, without the need for judicial resolution. Absent
an executive privilege claim or a statute barring disclosure there
appears to be no court precedent imposing a threshold burden on
committees to demonstrate a "substantial reason to believe
wrongdoing occurred" in order to obtain information. Instead, an
inquiring committee need only show that the information sought is
within the broad subject matter of its authorized jurisdiction, is
in aid of a legitimate legislative function, and is pertinent to
the area of concern. In the last 85 years, Congress has
consistently sought and obtained access to information concerning
prosecutorial misconduct by Department of Justice officials in
closed cases; and access to pre-decisional deliberative
prosecutorial memoranda-while often resisted by the Department-is
usually released upon committee insistence as well. In contrast,
the Department rarely releases-and committees rarely
subpoena-material relevant to open criminal investigations.
Typically, disputes are resolved without recourse to an executive
privilege claim. Instead, negotiations produce various compromises:
narrowing informational requests, delaying the release of
information that could have prejudicial consequences on
prosecutions, or redacting sensitive materials. However, when
Presidents do claim executive privilege, courts have been reluctant
to resolve the dispute. Indeed, litigation over the scope of
executive privilege in direct relation to congressional oversight
and investigations has been quite limited. In total, there have
been four cases dealing with executive privilege in the context of
information access disputes between Congress and the executive, and
two of those resulted in decisions on the merits. The Supreme Court
has never addressed executive privilege in the face of a
congressional demand for information.
General
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