Congressional Oversight in the Aftermath of the Mueller Report – By Roger Juan Maldonado

President’s Column, May 2019

On May 17, 2017, then-Deputy Attorney General Rod Rosenstein appointed Robert S. Mueller III as special counsel to conduct an investigation into the allegations of Russian interference with the 2016 presidential election and any efforts made to obstruct this investigation. On March 22, 2019, Mr. Mueller and his team of attorneys and agents completed their work and Mr. Mueller submitted his report to Attorney General William P. Barr. We were pleased that Mr. Mueller was able to finish his report, as contemplated by the special counsel guidelines that governed his investigation.[1] See 28 C.F.R. Part 600.

Now that the Mueller report has been finished, and a redacted version has been made public and shared with Congress, the question of how our government should react to the report and the evidence it discusses is a matter of concern to the public and to the bar. In particular, there exists a strong interest in congressional oversight and the consideration of legislation to prevent foreign government interference in our elections in the future. For example, should Congress consider strengthening our laws relating to campaign finance and conflicts of interest in order to prohibit campaigns from meeting with foreign government agents and discussing information about opposing candidates or business opportunities in other countries? Should Congress consider further sanctions against Russia in response to the findings in the Mueller report? Given that the report’s discussion of obstruction of justice was informed by a Department of Justice opinion providing that a sitting president may not be prosecuted, should Congress take any further measures regarding the Mueller report’s discussion of obstruction of justice?

These important decisions can be made only with a thorough understanding by Congress of the Mueller report’s unredacted findings and the evidence underlying it. In some cases, it will require testimony or documents from executive branch officials. In other instances, it may be necessary to obtain such evidence from private businesses or individuals. This need for testimony has taken on additional urgency given that Attorney General Barr’s initial public communication about the Mueller report has been shown over time to have been an incomplete summary to which Mueller and his team objected.

With this backdrop, we view with deep concern the apparent position of the White House that any congressional oversight with respect to the Mueller report will be blocked and opposed.[2] While prior administrations have often had disputes with Congress over the scope of subpoenas and the extent to which executive privilege may be invoked, the White House has gone beyond the usual back-and-forth and has taken the more extreme position that all of it is impermissible “presidential harassment.”[3]

This is contrary to our Nation’s history and laws. Under our Constitution, Congress possesses broad investigatory powers, including those necessary to carry out its role in the checks-and-balances system created by the Constitution. James Madison, the father of the Constitution and a member of the first Congress, stated that the House of Representatives “should possess itself of the fullest information in order to do[] justice to the country and to public officers.”[4] In this spirit, Congress has exercised the authority to compel witness testimony since 1795. In the 20th century, Congress conducted hearings and obtained evidence in order to better understand and determine how to address some of the most important matters of public concern of the time: the Truman Committee investigated war profiteering in the 1940s and saved an estimated $10 billion in military spending, the Church Committee of 1975 investigated serious intelligence abuses and changed how Congress oversees intelligence activities, and the Iran-Contra hearings shed important light on improper covert activities conducted by the executive branch.

In short, the Constitution’s system of checks and balances empowers Congress to conduct oversight of the executive branch. This oversight has led to important improvements in legislation and policy. It is incompatible with our Nation’s ideals for the White House to take a categorical approach in blocking subpoenas or requests for information. We urge the Administration to negotiate with Congress over the scope of subpoenas and to follow the long-standing practice in this area to allow congressional oversight without the need for court intervention. As members of the legal profession, we express our strong support for the principle of separation of powers and congressional oversight, as contemplated by the Founders and as practiced for more than 200 years, and we encourage other members of the public to do the same.

For this column, I am grateful for the assistance of Harry Sandick, chair of the City Bar’s Federal Courts Committee.

Roger Juan Maldonado is President of the New York City Bar Association.