Congressional Access to Executive Branch Information:Legislative Tools
Presidents and scholars identify a variety of constitutional principles and practicesto justify the withholding of documents and papers from Congress. No doubtreasonable grounds may be presented for withholding these materials and forpreventing some executive officials from testifying before congressional committees.However, these executive arguments are subject to legal and political limits. Executiveclaims can be offset by equally persuasive arguments that Congress needs access toinformation to fulfill its constitutional duties. In many cases, legal and constitutionalprinciples are overridden by the politics of the moment and practical considerations.Efforts to discover enduring and enforceable norms in this area invariably fall short.This report begins by reviewing the precedents established during the WashingtonAdministration for withholding documents from Congress. Close examination revealsthat the scope of presidential privilege is often exaggerated. Congress had access tomore documentation than is commonly believed and might have had more had itpressed for it. Subsequent sections focus on various forms of congressional leverage:the power of the purse, the power to impeach, issuing congressional subpoenas,holding executive officials in contempt, House resolutions of inquiry, GAOinvestigations, and blocking nominations, all of which may force executive officials torelease documents they would otherwise want to keep private and confidential. Evenif Presidents announce perfectly plausible grounds for withholding documents, theymay have to comply with the congressional will to achieve other more important goals.For a comprehensive CRS study of different techniques and authorities used byCongress to oversee executive branch activities, see “Congressional OversightManual,” CRS Report RL30240 (June 25, 1999). Legal and historical analysis onthese issues is covered by Morton Rosenberg, “Presidential Claims of ExecutivePrivilege: History, Law, Practice and Recent Developments,” CRS Report RS30319(September 21, 1999).