December 22, 2022

Whitehouse, Kennedy Issue Report Examining Boundaries of Executive Privilege and the Importance of Congressional Oversight

Chair and Ranking Member of Senate Judiciary Federal Courts, Oversight, Agency Action, and Federal Rights Subcommittee detail the executive branch’s abuse of executive privilege and related theories, and address what Congress can do to revitalize its oversight authorities

Washington, DC – Today, U.S. Senators Sheldon Whitehouse (D-RI) and John Kennedy (R-LA), the Chair and Ranking Member of the Senate Committee on the Judiciary, Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights, released a report entitled: Overprivileged: A Closer Look at Congressional Oversight, Executive Privilege and the Separation of Powers.

The new report breaks down the logjam of information disputes between the executive branch and Congress that is thwarting Congress’s constitutional authority to conduct oversight.  The Senators found that the executive branch’s compliance with the traditional “accommodation process” has waned under recent administrations of both political parties, and urged Congress to take up legislation to restore its constitutional oversight authority on a bipartisan basis.  Senators Whitehouse and Kennedy have committed to developing bipartisan legislation to deter future abuses of executive privilege.

“The accommodation process developed as a way to balance the competing, legitimate needs of Congress and the executive branch, allowing each to carry out its constitutional responsibilities while respecting those of the other branch.  That process served the country and the American people for more than 200 years, until recent developments disrupted it.  The new process, fueled by the executive branch’s overreaching interpretations of executive privilege and the separation of powers, serves recalcitrant executive branch officials, not congressional oversight,” wrote Whitehouse and Kennedy.

For over 200 years, Congress and the executive branch overwhelmingly engaged in good-faith compromise to settle disputes between Congress’s oversight authority and the executive branch’s authority to maintain confidentiality of sensitive information.  But over the last few decades, the executive branch – largely through the Justice Department’s Office of Legal Counsel (OLC) – has increasingly deployed hardball tactics and novel legal theories to obstruct congressional oversight in violation of the Constitution’s separation of powers.  

While OLC could end this obstruction by reevaluating its opinions related to congressional oversight, OLC has indicated that it is unlikely to do so voluntarily.  In their report, Whitehouse and Kennedy lay out the breadth of legislative proposals to revitalize congressional oversight authority, ranging from sharpening existing enforcement tools to speeding up judicial resolutions.  The Senators urged their fellow lawmakers to take up bipartisan reform efforts to strengthen Congress’s hand in the accommodation process. 

“Without a robust oversight power, Congress cannot serve the vital function of exposing misconduct and providing accountability that our Constitution and our democracy demand.  Accordingly, members of all parties should agree on the urgent need for reforms that would revive Congress’s oversight authority and restore Congress’s coequal position in the separation of powers,” concluded the Senators.

The report comes after the Federal Courts, Oversight, Agency Action, and Federal Rights Subcommittee held two hearings on the process and substance of executive privilege determinations during the 117th Congress.  At the first hearing in August 2021, the Subcommittee heard from a bipartisan panel of experts about the executive branch’s increasing use of executive privilege and related doctrines to withhold vast amounts of information and stymie oversight requests from Congress.  At the second hearing in October 2022, the Subcommittee heard from Christopher Schroeder, Assistant Attorney General for OLC, to better understand OLC’s perspective on executive privilege and the accommodation process.  That hearing marked the first time in 20 years that a sitting, confirmed Assistant Attorney General for OLC had appeared before Congress.

Read the new report here.

Meaghan McCabe (Whitehouse), 401-453-5294

Jess Andrews (Kennedy), 202-228-0749

Press Contact

Meaghan McCabe, (202) 224-2921