At a Senate Judiciary Committee hearing prior to the Congressional recess, Sen. Sheldon Whitehouse (D-RI) spoke about threats to Congressional oversight power.
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00:00Questioning. I know that we're here to talk about FOIA, but at least in theory, congressional oversight, the constitutional principle of congressional oversight, should allow us, in this body, access to executive branch records, ideally better than FOIA.
00:26Because FOIA is open to the world and we have particular responsibilities in Congress to engage in executive oversight. And yet we have seen situations in which requests for information under our congressional oversight responsibilities are responded to slower than FOIA requests.
00:53And, you know, there's always an instinct here to protect the administration in power when you're a part of that party.
01:03But as we play that partisan game back and forth, what happens is that the executive continually encroaches, encroaches, encroaches until they have our congressional oversight power bucketed down to essentially nil.
01:21In theory, the Reagan memo controls this. And the Reagan memo has a number of principles about congressional oversight.
01:37The first is that the president is supposed to assert executive privilege to block congressional oversight. Otherwise, it's open season for us to look.
01:49Our boundary is executive privilege. And one of the constraints on misguided false or self-protective assertions of executive privilege is that the president has to assert it.
02:02So if some yo-ho five levels down in some organization is blowing off congressional requests because they screwed up somewhere and don't want us to know about it, well, that fact will come up to the White House as the request for an assertion of executive privilege comes up.
02:18And somebody's going to say, what? You want to make the president assert executive privilege because you screwed up? That is specifically not a defense of executive privilege.
02:30If there's a screw up, even if there is executive privilege, we're entitled to look into it.
02:35So in theory, the president is supposed to assert executive privilege. When was the last time a president asserted executive privilege?
02:43We're just getting these assertions, non-assertion assertions from anybody who can type executive privilege into their computer no matter what position they hold in the executive branch.
02:53And that's wrong, inconsistent with our responsibilities of oversight and inconsistent with the Reagan memo that they purport to be enforcing.
03:03It also requires that the Department of Justice take an intermediary role between the objecting department and Congress and try to sort through to an agreement.
03:18An accommodation is the way the words work.
03:22But the Department of Justice and its worst component, the Office of Legal Counsel, are setting up guidelines that basically destroy congressional oversight.
03:37So that there's really no way to go forward through that process because DOJ is no longer a fair interlocutor between executive agencies and Congress.
03:51It would be great if they had not blown up that role for themselves because we'd all do better.
03:57But when they blew up that role for themselves, we're now left to try to find other means of getting our oversight effectuated because we can no longer trust DOJ.
04:10It will go basically whichever way the administration sends it and OLC has set basic parameters that are highly toxic to proper congressional oversight.
04:21So I love all this conversation about FOIA.
04:26I have had to do FOIA requests because congressional oversight has become so jammed up because the Reagan memo has become so constantly overlooked.
04:38And I'm hoping, and again, my thanks to Senator Kennedy for his attention to all of these issues.
04:44This really ought to be a bipartisan thing.
04:46This is not right versus left.
04:48This is not Democrat versus Republican.
04:50This is executive versus legislative.
04:53And executive is thrashing us.
04:57And I'll just close with the observation that if we want to improve FOIA,
05:01then the HHS secretary gutting FOIA offices at CDC, FDA, and NIH,
05:08Trump firing DOJ's FOIA office head,
05:12the Trump administration terminating the entire FOIA and communications staff at OPM,
05:17and USAID having no FOIA capability because it is essentially in the process of destruction,
05:24is hardly conducive to improving transparency and access to America's citizens,
05:31to government information through FOIA.
05:40You know, it's astounding to me.
05:42I'm almost aghast, actually, that we're hearing brought up.