Category Archives: Gov Docs

The Congressional Oversight Manual

The Constitution grants Congress extensive authority to oversee and investigate executive branch activities. Towards that end, CRS developed the Congressional Oversight Manual over 30 years ago. The Manual was produced by CRS with the assistance of a number of House committee staffers. The constitutional authority for Congress to conduct oversight is designed to fulfill a number of purposes:

  • Ensure Executive Compliance with Legislative Intent
  • Evaluate Program Performance
  • Prevent Executive Encroachment on Legislative Prerogatives and Powers
  • Investigate Alleged Instances of Poor Administration, Arbitrary and Capricious Behavior, Abuse, Waste, Dishonesty, and Fraud
  • Assess Agency or Officials’ Ability to Manage and Carry Out Program Objectives
  • Review and Determine Federal Financial Priorities
  • Ensure That Executive Policies Reflect the Public Interest
  • Protect Individual Rights and Liberties

— Joe

Trump and trade agreements

On January 23, President Trump directed the United States Trade Representative to withdraw the United States as a signatory to the Trans-Pacific Partnership (TPP) agreement; the acting USTR gave notification to that effect on January 30. And on May 18, 2017, the Trump Administration sent a 90-day notification to Congress of its intent to begin talks with Canada and Mexico to renegotiate the North American Free Trade Agreement (NAFTA).

Two CRS Insight Reports cover the TPP and NAFTA developments: The United States Withdraws from the TPP (May 23, 2017, IN10646) and North American Free Trade Agreement: Notification for Renegotiation (May 19, 2017 IN10706). — Joe

CRS report: Obstruction of Congress

From the CRS report, Obstruction of Congress: A Brief Overview of Federal Law Relating to Interference with Congressional Activities (Nov. 5, 2010 RL34304):

Obstruction of justice is the frustration of governmental purposes by violence, corruption, destruction of evidence, or deceit. It is a federal crime. In fact, federal obstruction of justice laws are legion; too many for even passing reference to all of them in a single report. This is a brief description of those that outlaw interference with congressional activities.

See also Bradley J. Bondi, No Secrets Allowed: Congress’s Treatment and Mistreatment of the Attorney-Client Privilege and the Work-Product Protection in Congressional Investigations and Contempt Proceedings, 25 Journal of Law and Politics, No. 145 (2010)(“To the extent Congress refuses to accept a witness’s assertion of the attorney-client privilege or work-product protection during an investigation, this article explores avenues for challenging such an adverse determination and for resisting the disclosure of the confidential information in the face of contempt. The article concludes with a discussion of some practical ways an individual or entity subject to a congressional investigation may limit the extent of any subsequent waiver and minimize the harm caused by the release of the information.”) — Joe

Congress’s Contempt Power and the Enforcement of Congressional Subpoenas

From the summary of the CRS report, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure (May 12, 2017, RL34097):

Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance, to punish the contemnor, and/or to remove the obstruction. Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in recent times the contempt power has most often been employed in response to non-compliance with a duly issued congressional subpoena—whether in the form of a refusal to appear before a committee for purposes of providing testimony, or a refusal to produce requested documents.

Congress has three formal methods by which it can combat non-compliance with a duly issued subpoena. Each of these methods invokes the authority of a separate branch of government. First, the long dormant inherent contempt power permits Congress to rely on its own constitutional authority to detain and imprison a contemnor until the individual complies with congressional demands. Second, the criminal contempt statute permits Congress to certify a contempt citation to the executive branch for the criminal prosecution of the contemnor. Finally, Congress may rely on the judicial branch to enforce a congressional subpoena. Under this procedure, Congress may seek a civil judgment from a federal court declaring that the individual in question is legally obligated to comply with the congressional subpoena.

See also, Josh Chafetz, Executive Branch Contempt of Congress, 76 University of Chicago Law Review 1083 (2009). — Joe

Taking the Fifth in Congressional investigations

On May 26, 2017, CRS issued a Legal Sidebar titled The Fifth Amendment in Congressional Investigations. Here’s a snip:

As a general matter, witnesses may invoke the Fifth Amendment privilege during a congressional investigation with regard to testimony or documents that are: (1) testimonial (“relate[s] a factual assertion”); (2) self-incriminating (any disclosures that tends to show guilt or that furnishes any “link in the chain of evidence” needed to prosecute); and (3) compelled (not voluntarily given). Oral testimony given pursuant to a subpoena and in response to committee questioning almost always qualifies as testimonial and compelled. Therefore, the central inquiry is typically whether the responsive testimony would be “incriminating.” The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement “that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used.” Even a witness who denies any criminal wrongdoing can refuse to answer questions on the basis that he might be “ensnared by ambiguous circumstances.”

H/T to beSpacific. — Joe

New CBO analysis of American Health Care Act, H.R. 1628, as passed by the House

The Congressional Budget Office released its analysis of the health-care bill that passed the House of Representatives earlier this month. Here’s the text. For an analysis, see NPR’s GOP Health Plan Would Leave 23 Million More Uninsured, Budget Office Says. — Joe

Trump administration’s first budget released

Following up on President Trump’s budget blueprint, the Trump administration released an ideological wish list, its first budget on May 23rd. See A New Foundation for American Greatness – President’s Budget FY 2018 and Major Savings and Reform. It now heads to the House where opposition from Trump’s own party is expected. Politico reports that House Speaker Paul Ryan is standing by his alternative tax reform plan which includes a controversal “border adjustment tax” that would put a 20 percent tax on imports coming into the U.S. See The battle over the border tax. Talking points to sell the Ryan tax reform plan were released recently.

Referencing Trump’s budget blueprint, CNN identified many of Trump’s proposed budget cuts as did the New York Times here. See also, The Key Spending Cuts and Increases in Trump’s Budget, NYT, May 22, 2017. — Joe

End Note: Browse all the FY2018 budget documents here.

Text of DOJ Order No. 3915-2017: Appointment of special counsel to investigate Russian interference with the 2016 presidential election and related matters

From the source document:

ORDER NO. 3915-2017

APPOINTMENT OF SPECIAL COUNSEL
TO INVESTIGATE RUSSIAN INTERFERENCE WITH THE
2016 PRESIDENTIAL ELECTION AND RELATED MATTERS

By virtue of the authority vested in me as Acting Attorney General, including 28 U.S.C.§§ 509, 510, and 515, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of the Russian governments efforts to interfere in the 2016 presidential election, I hereby order as follows:

(a) Robert S. Mueller III is appointed to serve as Special Counsel for the United States Department of Justice.

(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Corney in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) If the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

(d) Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

May 17, 2017 ….. Rob. J. Rosenstein, Acting Attorney General

CRS reports on special counsels, independent counsels and special prosecutors

On May 11, 2017, the Congressional Research Service released Special Counsels, Independent Counsels, and Special Prosecutors: Investigations of the Executive Branch by the Executive Branch. From the introduction:

Under constitutional principles and authorities, Congress has no direct role in federal law enforcement and is limited in its ability to initiate appointments of any prosecutor for any particular matter in which there may be allegations or concerns about wrongdoing by public officials. Instead, criminal investigations and prosecutions have generally been viewed as a core executive function and are a responsibility of the Executive Branch. However, because of the potential conflicts of interest that may arise when the Executive Branch investigates itself, as a historical matter there have often been calls for an independently led inquiry to determine whether executive officials have violated criminal law. In the past, Congress has authorized independent counsels, who were requested by the Attorney General and appointed by a judicial panel, but that authority lapsed in 1999. Currently, the Attorney General has regulatory authority to appoint a special counsel to investigate allegations that may present a conflict of interest for the Department of Justice (DOJ).

Focusing on the role of Congress, see also, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress (June 20, 2013, R43112). This report provides information on the procedure for the appointment of an “independent counsel,” a “special prosecutor,” or a “special counsel” to investigate and prosecute potential or possible violations of federal criminal law by officials in the executive branch of the federal government and in federal agencies. Specifically examined is the role or authority of Congress in requiring an independent or special counsel investigation of executive branch officials.

— Joe

CRS report on protecting classified information

One snip from The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900):

The Supreme Court has never directly addressed the extent to which Congress may constrain the executive branch’s power in this area. Citing the President’s constitutional role as Commander-in-Chief, the Supreme Court has repeatedly stated in dicta that “[the President’s] authority to classify and control access to information bearing on national security … flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.” This language has been interpreted by some to indicate that the President has virtually plenary authority to control classified information. On the other hand, the Supreme Court has suggested that “Congress could certainly [provide] that the Executive Branch adopt new [classification procedures] or [establish] its own procedures—subject only to whatever limitations the Executive Privilege may be held to impose on such congressional ordering.”

— Joe

What is ‘obstruction of justice’?

In the United States, obstruction of justice is a crime that arises when someone tries to prevent, impede, or influence the administration of justice — a cloud that now hangs over President Trump’s firing of former FBI director Comey. See, e.g., Notre Dame law prof Jimmy Gurulé’s May 11, 2017 CNN commentary, Could Trump have obstructed justice? Professor Gurulé suggests readers read the law and compare it to the events unfolding in Washington because it appears that the actions of Donald Trump meet some of the required criteria for obstruction of justice.

“The general federal obstruction of justice provisions are six: 18 U.S.C. 1512 (tampering with federal witnesses), 1513 (retaliating against federal witnesses), 1503 (obstruction of pending federal court proceedings), 1505 (obstruction of pending congressional or federal administrative proceedings), 371 (conspiracy), and contempt,” quoting from the CRS report, Obstruction of Justice: An Overview of Some of the Federal Statutes That Prohibit Interference with Judicial, Executive, or Legislative Activities, (Apr. 17, 2014, RL34303). The report adds “there are a host of other statutes that penalize obstruction by violence, corruption, destruction of evidence, or deceit.” — Recommended. — Joe

FBI’s Domestic Investigations and Operations Guide

The FBI’s Domestic Investigations and Operations Guide (DIOG) was first issued to help implement the Attorney General’s Guidelines for Domestic FBI Operations that were issued earlier in 2008. The original DIOG was issued on Dec. 16, 2008. The most recent version of the Guide is the version update of Oct. 16, 2013 and was posted here on Sept. 14, 2016. — Joe

Presidential claims of executive privilege

We’re probably going to hear a lot about the Trump administration’s attempts to claim executive privilege in the coming months as the Russia probe progresses. By citing Comey’s private conversations in Trump’s termination letter to Comey, for example, has President Trump undermined any future claims of executive privilege to them?

Quoting from the CRS report, Presidential Claims of Executive Privilege: History, Law, Practice, and Recent Developments (Dec. 15, 2014 R42670):

Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. Few such interbranch disputes over access to information have reached the courts for substantive resolution.

Supreme Court decisions have left considerable gaps in the law of presidential privilege. Among the more significant issues left open include whether the President must have actually seen or been familiar with the disputed matter; whether the presidential privilege encompasses documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch, outside of the Executive Office of the President; whether the privilege encompasses all communications with respect to which the President may be interested or is confined to presidential decision making and, if so, whether it is limited to a particular type of presidential decision making; and precisely what kind of demonstration of need must be shown to overcome the privilege and compel disclosure of the materials.

— Joe

CRS report on the legal framework for protecting classified information

The Protection of Classified Information: The Legal Framework (Jan. 10, 2013, RS21900) provides an overview of the relationship between executive and legislative authority over national security information, and summarizes the current laws that form the legal framework protecting classified information, including current executive orders and some agency regulations pertaining to the handling of unauthorized disclosures of classified information by government officers and employees. The report also summarizes criminal laws that pertain specifically to the unauthorized disclosure of classified information, as well as civil and administrative penalties. — Joe

Public knowledge: Access and benefits

Public Knowledge: Access and Benefits, (Information Today, Inc., 2016), “edited by Miriam A. Drake (now deceased) and Donald T. Hawkins, is the first book in years to explore trends and issues for researchers and organizations that rely on U.S. public information. More than a dozen topic experts, information specialists, and government documents librarians discuss the challenges inherent in collecting, preserving, updating, and disseminating a deluge of information generated daily by public sources.

“They describe agencies at the forefront of managing the information, explore the role of the federal government and its corps of information professionals, and highlight how public data are being consumed by a surprising range of stakeholders in the digital information age. They remind us of the value and diversity of public information, and of the imperative to make it readily available to all American citizens, to whom it belongs. No reader interested in the latter topic can afford to miss Barbie Keiser s closing chapter on open government, Big Data, and the future of public information.”

— Joe

CRS report on the appointment and tenure of the FBI director

The FBI director is appointed by the President by and with the advice and consent of the Senate. The position of FBI Director has a fixed 10-year term, and the officeholder cannot be reappointed, unless Congress acts to allow a second appointment of the incumbent. There are no statutory conditions on the President’s authority to remove the FBI Director. FBI Director: Appointment and Tenure (Feb. 19, 2014, R41850) provides an overview of the development of the process for appointing the FBI director. — Joe

Cash-for-visa scheme: Spotlight on foreign investor visas

Kushner Companies’ recent pitch to wealthy Chinese investors to consider investing $500,000 in a New Jersey luxury apartment complex as a means to acquiring EB-5 visas puts foreign investor visas back in the spotlight. Congress created the EB-5 Program in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Interest in the program grew during the Great Recession as a vehicle for acquiring capital investments in the real estate market. Competition for the annual allotment of 10,667 visas has been fierce.

According to the CRS report, Foreign Investor Visas: Policies and Issues (Jan. 27, 2010, RL33844) investor visas offered by the United States operate on the principle that foreign direct investment into the United States should spur economic growth in the United States. “To attract foreign investors, research indicates that temporary migrants are motivated most significantly by employment and wage prospects, while permanent migrants are motivated by professional and social mobility. Theoretically, however, it is unclear to what extent potential migration provides additional incentive for investment activity. Investors from developed countries may sometimes lack incentive to settle in the United States since they can achieve foreign direct investment (FDI) and similar standards of living from their home country. Yet, in cases where foreign investors have been attracted, the economic benefits have been positive and significant,” quoting from the CRS report. — Joe

Obama’s presidential library and NARA’s new model for the preservation and accessibility of presidential records

The first images and models of Tod Williams Billie Tsien Architects’ plans for the Obama Presidential Library in Chicago have been revealed. The proposal includes a tall stone-clad museum with faceted sides and cutaway corners, sat beside a lower forum and opposite a library. See image above. For more, go here.

The new presidential library will not hold print copies of Obama’s presidential papers. Instead the Obama Foundation plans to fund digitzing them with NARA storing the original materials offsite but available for lending according to NARA’s May 3, 2017 press release, National Archives Announces a New Model for the Preservation and Accessibility of Presidential Records.

H/T to Gary Price’s InfoDocket posts. — Joe

 

Puerto Rico files for debt restructuring

The debt restructuring petition was filed by Puerto Rico’s financial oversight board in the US District Court in Puerto Rico on Wednesday under Title III of PROMESA. Title III provides a court debt restructuring process akin to US bankruptcy protection. Puerto Rico is barred from a traditional municipal bankruptcy protection under Chapter 9 of the Bankruptcy Code. The action sent Puerto Rico, whose approximately $123 billion in debt and pension obligations far exceeds the $18 billion bankruptcy filed by Detroit in 2013, into uncharted ground. Enacted only last summer the Puerto Rico Oversight, Management, and Economic Stability Act or PROMESA, Pub. L. No. 114-187 was designed help insolvent territories like the Commonwealth restructure its billions in debt and pension obligations. Next step, Chief Justice Roberts will appoint a life-tenured judge to hear the case.

CRS produced this backgrounder on PROMESA. See also Melissa Jacoby’s Presiding Over Municipal Bankruptcies: Then, Now, and Puerto Rico, 91 American Bankruptcy Law Journal __, 2017 Forthcoming, Why Puerto Rico Will Likely Rely On PROMESA Title III, Law360, March 1, 2017 and Issues To Expect In A Title III Puerto Rico Restructuring, Law360, March 8, 2017. — Joe

CRS report on statutory qualifications for Executive Branch positions

Of the 556 key senior level positions requiring Senate confirmation, the Trump administration has no nominee yet for 465 positions according to the Washington Post’s appointments tracker. See Tracking how many key positions Trump has filled so far, an interactive database-driven tool for monitoring key appointments. (Of course there are many more less senior level positions still unfilled as well.)

Nominees for many of the unfilled senior level positions must meet qualifications mandated by Congress. “The preponderance of evidence and historical practice suggests that Congress generally has the constitutional authority to establish statutory qualifications for federal government positions.” Quoting from the conclusion of the CRS report, Statutory Qualifications for Executive Branch Positions (Sept. 9, 2015, RL33886). The report adds

Although Congress enjoys broad discretion in this area, there appears to be consensus that it may not set qualifications that limit the President’s selection to the extent that the appointment is a de facto legislative designation. Neither case law nor statute has established a bright line that clearly defines the boundaries of this authority. Within this somewhat ambiguous environment, Congress, at times, has enacted standards that limit the President’s selection pool to a greater extent than the executive branch sees as legitimate.

This CRS report provides examples of department and agency leadership positions with statutory qualification requirements and similar examples for independent collegial bodies, such as regulatory boards and commissions. At the other end of the spectrum, see the GAO’s Characteristics of Presidential Appointments that do not Require Senate Confirmation (GAO-13-299R, Mar 1, 2013). — Joe