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Chairman Nadler Statement for Hearing on Executive Privilege and Congressional Oversight

Washington, May 15, 2019

Washington, D.C. –Today, House Judiciary Chairman Jerrold Nadler (D-NY) delivered the following opening remarks for the hearing on executive privilege and congressional oversight:

"For more than 200 years, Congress has exercised its power under Article I of the Constitution to conduct oversight of the Executive Branch. Congress’s "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 expose 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.

"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 a President’s ability to seek candid advice from his or her advisors. But while the courts have held that the President’s communications are entitled to some degree of confidentiality, they have consistently held that the privilege is not an absolute shield and can be overcome when the interests of justice require it.

"Until recently, no President had ever stated that his plan, across the board, would be to 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 balances, and is thereby seeking to hold himself above the law.

"The President’s statement was not just isolated rhetoric. It was an admission of what this Administration has been doing—and has recently escalated—since the start of the 116th Congress, when it became clear that 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 attempted 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 Affordable Care Act, to the security of our elections, to the policy of separating children from their parents at the border. Government witnesses have failed to appear for hearings and interviews. While in other administrations Congress issued subpoenas only as a last resort when negotiations failed, the Trump administration has often been unwilling to engage with Congress at all unless and until a subpoena is issued and a contempt proceeding is looming.

"This constitutional brinksmanship is particularly unacceptable where, as here, the President is using the powers of his office to impede an investigation into his own alleged misconduct. For months, this Committee and others have made clear our expectation that the Department of Justice must produce an unredacted version of Special Counsel Mueller’s report, as well as the evidence and other investigatory materials underlying the report. We wrote to Attorney General Barr about this in February; and we repeated that request multiple times throughout the months of March and April. The Committee’s Contempt Report describes these exchanges in exhaustive detail. On April 18, having received no substantive response from Attorney General Barr, the Committee issued a subpoena for the unredacted Mueller Report and the underlying materials.This is information to which we are constitutionally entitled, and which we need to fulfill our legislative and oversight duties—including to protect our nation’s elections.

"Yet it was only in the days and hours leading up to this Committee’s markup of the Contempt Report that the Justice Department engaged in negotiations. Even then, the Department's "accommodation" efforts were wholly insufficient. The Department was willing only to discuss severely restrictive terms on which a small number of Members could review some of the redacted portions of the Mueller Report. It remained unwilling to make any substantive offers to produce any underlying evidence or investigative files.

"Then, at 10:00 pm on the night before the contempt markup, the Department informed us that it was ending those negotiations and would request that President Trump assert executive privilege as to the redacted portions of the Mueller report and for each and every underlying document subject to the Committee’s subpoena.

"The President’s "protective assertion" of executive privilege is unprecedented in its scope. The Justice Department openly admits that it has not even reviewed all the underlying documents—let alone provided any specific reasons for withholding them. Although the Attorney General has cited one example from the Clinton era in which the President made a "protective assertion" of privilege to allow more time to review the requested materials, in that instance the White House had already been providing documents to Congress on a rolling basis for nearly a year—and the White House completed its review just 15 days later. This administration has produced none of the evidence underlying the Mueller Report, and it has made no effort to show that it is now reviewing these documents on a good-faith basis to determine which ones, if any, are legitimately subject to privilege.

"In any event, as the Committee has pointed out in multiple letters to the Attorney General, the White House has already waived executive privilege several times over, to the extent it ever could have applied to underlying evidence collected by the Special Counsel’s office. Moreover, no court has ever held that the Executive Branch can withhold documents from Congress in the face of a subpoena simply because they consist of law enforcement files. Congress routinely receives this type of information. In just the last Congress, the Justice Department produced hundreds of thousands of pages of sensitive law enforcement files in response to congressional subpoenas, including files pertaining to the Russia investigation, which was ongoing at the time.

"For these and other reasons, I am deeply troubled by the President’s 11th-hour decision to make a blanket invocation of executive privilege for all redacted portions of the Mueller Report and all of the underlying materials. I had invited White House Counsel Pat Cipollone to testify at today's hearing so that he could better explain and defend the White House’s assertion of privilege; but he has declined that invitation and he has instead submitted a written statement that restates the same arguments raised by the Justice Department.

"Fortunately, today's witnesses have a wealth of experience and expertise on matters of executive privilege, including from the Justice Department, the White House Counsel's office, and even the office of Independent Counsel Kenneth Starr. Although these issues about privilege and document requests may appear technical, what they ultimately come down to is whether the President can shield himself from accountability to a coequal branch of government. I look forward to today's discussion of these important matters, which lie at the core of our nation’s commitment to the basic principle that no man or woman is above the law."

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