EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION MAY 15, 2019 Serial No. 116–20 Printed for the use of the Committee on the Judiciary ( Available http://judiciary.house.gov or www.govinfo.gov U.S. GOVERNMENT PUBLISHING OFFICE 37–502 WASHINGTON : 2019 VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING COMMITTEE ON THE JUDICIARY JERROLD NADLER, New York, Chairman ZOE LOFGREN, California DOUG COLLINS, Georgia, Ranking Member SHEILA JACKSON LEE, Texas F. JAMES SENSENBRENNER, JR., STEVE COHEN, Tennessee Wisconsin HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia STEVE CHABOT, Ohio THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas KAREN BASS, California JIM JORDAN, Ohio CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama ERIC SWALWELL, California MATT GAETZ, Florida TED LIEU, California MIKE JOHNSON, Louisiana JAMIE RASKIN, Maryland ANDY BIGGS, Arizona PRAMILA JAYAPAL, Washington TOM MCCLINTOCK, California VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania MARY GAY SCANLON, Pennsylvania, BEN CLINE, Virginia Vice-Chair KELLY ARMSTRONG, North Dakota SYLVIA R. GARCIA, Texas W. GREGORY STEUBE, Florida JOE NEGUSE, Colorado LUCY MCBATH, Georgia GREG STANTON, Arizona MADELEINE DEAN, Pennsylvania DEBBIE MUCARSEL-POWELL, Florida VERONICA ESCOBAR, Texas PERRY APELBAUM, Majority Staff & Chief Counsel BRENDAN BELAIR, Minority Staff Director (II) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING C O N T E N T S MAY 15, 2019 OPENING STATEMENTS Page The Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ............ 1 The Honorable Doug Collins, Ranking Member, Committee on the Judiciary .. 20 WITNESS Kate Shaw, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University Oral Testimony ................................................................................................. 30 Prepared Testimony ......................................................................................... 34 Paul Rosenzweig, Senior Fellow, National Security & Cybersecurity, R Street Institute Oral Testimony ................................................................................................. 47 Prepared Testimony ......................................................................................... 49 Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School Oral Testimony ................................................................................................. 66 Prepared Testimony ......................................................................................... 68 Neil Kinkopf, Professor of Law, Georgia State University College of Law Oral Testimony ................................................................................................. 97 Prepared Testimony ......................................................................................... 138 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING A letter for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................ 4 A letter for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................ 17 A letter for the record submitted by the Honorable Doug Collins, Ranking Member, Committee on the Judiciary ................................................................ 23 Excerpts from a report by the Project in Government Oversight for the record submitted by the Honorable Jerrold Nadler, Chairman, Committee on the Judiciary ................................................................................................... 99 APPENDIX A Statement and articles for the record submitted by the Honorable Sheila Jackson Lee, a Member of Congress from the State of Texas, Committee on the Judiciary ................................................................................................... 188 A Statement for the record submitted by the Honorable Sylvia Garcia, a Member of Congress from the State of Texas, Committee on the Judiciary ... 210 A Statement for the record submitted by Caroline Fredrickson, President, American Constitution Society, and Noah Bookbinder, Executive Director, Citizens for Responsibility and Ethics in Washington, on behalf of the joint ACS/CREW Presidential Education Project .............................................. 213 (III) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT WEDNESDAY, MAY 15, 2019 HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY Washington, DC. The committee met, pursuant to call, at 10:11 a.m., in Room 2141, Rayburn Office Building, Hon. Jerrold Nadler [chairman of the committee] presiding. Present: Representatives Nadler, Lofgren, Jackson Lee, Johnson of Georgia, Deutch, Bass, Jeffries, Cicilline, Lieu, Raskin, Jayapal, Correa, Scanlon, Garcia, McBath, Stanton, Dean, Mucarsel-Powell, Collins, Chabot, Gohmert, Buck, Ratcliffe, Gaetz, Biggs, McClin- tock, Lesko, Reschenthaler, Cline, Armstrong, and Steube. Staff present: David Greengrass, Senior Counsel; John Doty, Senior Advisor; Lisette Morton, Director of Policy, Planning, and Member Services; Madeline Strasser, Chief Clerk; Moh Sharma, Member Services and Outreach Advisor; Susan Jensen, Parliamen- tarian/Senior Counsel; Sophie Brill, Counsel, Constitution Sub- committee; Will Emmons, Professional Staff Member, Constitution Subcommittee; Sarah Istel, Counsel; Matt Morgan, Counsel; Brendan Belair, Minority Chief of Staff; Robert Parmiter, Minority Deputy Staff Director and Chief Counsel; Jon Ferro, Minority Par- liamentarian; Paul Taylor, Minority Chief Counsel, Constitution Subcommittee; Carlton Davis, Minority Chief Oversight Counsel; Ashley Callen, Minority Senior Adviser and Oversight Counsel; and Erica Barker, Minority Clerk. Chairman NADLER. The Judiciary Committee will come to order. Without objection, the chair is authorized to declare recesses of the committee at any time. We welcome everyone to today’s hearing on executive privilege and congressional oversight. I will now recognize myself for an opening statement. For more than 200 years, Congress has exercised its power under Article I of the Constitution to conduct oversight of the executive branch. Congress’ power of inquiry, recognized by the Supreme Court in case after case for nearly a century, is essential to our constitutional order. Without it, Congress would have no way to ex- pose waste or misconduct, to inform itself for purposes of writing new legislation, or to ensure that public officials, including the President, remain accountable to the people they are supposed to serve. (1) VerDate Sep 11 2014 01:46 Oct 11, 2019 Jkt 037502 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 E:\HR\OC\A502.XXX A502 snicholson on DSK30NT082PROD with HEARING 2 Congress and the executive branch have fought over requests for information in the past. At times, this has included disagreement over the scope of executive privilege, the doctrine that holds that certain information may be withheld from Congress under limited circumstances to protect the President’s ability to seek candid ad- vice from his or her advisers. But while the courts have held that the President’s communications are entitled to some degree of con- fidentiality, they have consistently held that the privilege is not an absolute shield and can be overcome when the interest of justice re- quire it. Until recently, no President had ever stated that his plan across the board would to be fight any and all oversight from Congress. In declaring that he plans to ‘‘fight all the subpoenas,’’ President Trump has announced his hostility to our system of checks and bal- ances and is thereby seeking to hold himself above the law. The President’s statement was not just isolated rhetoric. It was an ad- mission of what this Administration has been doing and has really escalated since the start of the 116th Congress when it became clear the House of Representatives would carry out its duty and the will of the voters by engaging in constitutionally-necessary oversight of the executive branch. By this Administration’s command, the White House has at- tempted to impede over 20 congressional investigations, including by ignoring or failing to provide meaningful responses to dozens of letters requesting information on topics ranging from the Afford- able Care Act to the security of our elections to the policy of sepa- rating children from their parents at the border. Government wit- nesses have failed to appear for hearings and interviews. While in other administrations Congress issued subpoenas only as a last re- sort when negotiations failed, the Trump Administration has often been unwilling to engage with