[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                        EXECUTIVE PRIVILEGE AND
                        CONGRESSIONAL OVERSIGHT

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 15, 2019

                               __________

                           Serial No. 116-20

                               __________

         Printed for the use of the Committee on the Judiciary

[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]


        Available http://judiciary.house.gov or www.govinfo.gov
                      
                               __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
37-502                      WASHINGTON : 2019                     
          
--------------------------------------------------------------------------------------
                    
                      
                      
                      COMMITTEE ON THE JUDICIARY

                   JERROLD NADLER, New York, Chairman
ZOE LOFGREN, California              DOUG COLLINS, Georgia, Ranking 
SHEILA JACKSON LEE, Texas                Member
STEVE COHEN, Tennessee               F. JAMES SENSENBRENNER, Jr., 
HENRY C. ``HANK'' JOHNSON, Jr.,          Wisconsin
    Georgia                          STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida          LOUIE GOHMERT, Texas
KAREN BASS, California               JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana        KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York         JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island     MARTHA ROBY, Alabama
ERIC SWALWELL, California            MATT GAETZ, Florida
TED LIEU, California                 MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland               ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington          TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida          DEBBIE LESKO, Arizona
J. LUIS CORREA, California           GUY RESCHENTHALER, Pennsylvania
MARY GAY SCANLON, Pennsylvania,      BEN CLINE, Virginia
  Vice-Chair                         KELLY ARMSTRONG, North Dakota
SYLVIA R. GARCIA, Texas              W. GREGORY STEUBE, Florida
JOE NEGUSE, Colorado
LUCY McBATH, Georgia
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas

             Perry Apelbaum, Majority Staff & Chief Counsel
                Brendan Belair, Minority Staff Director
                            
                            
                            C O N T E N T S

                              ----------                              

                              MAY 15, 2019
                           OPENING STATEMENTS

                                                                   Page
The Honorable Jerrold Nadler, Chairman, Committee on the 
  Judiciary......................................................     1
The Honorable Doug Collins, Ranking Member, Committee on the 
  Judiciary......................................................    20

                                WITNESS

Kate Shaw, Professor of Law, Benjamin N. Cardozo School of Law, 
  Yeshiva University
    Oral Testimony...............................................    30
    Prepared Testimony...........................................    34
Paul Rosenzweig, Senior Fellow, National Security & 
  Cybersecurity, R Street Institute
    Oral Testimony...............................................    47
    Prepared Testimony...........................................    49
Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public 
  Interest Law, The George Washington University Law School
    Oral Testimony...............................................    66
    Prepared Testimony...........................................    68
Neil Kinkopf, Professor of Law, Georgia State University College 
  of Law
    Oral Testimony...............................................    97
    Prepared Testimony...........................................   138

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

A letter for the record submitted by the Honorable Jerrold 
  Nadler, Chairman, Committee on the Judiciary...................     4
A letter for the record submitted by the Honorable Jerrold 
  Nadler, Chairman, Committee on the Judiciary...................    17
A letter for the record submitted by the Honorable Doug Collins, 
  Ranking Member, Committee on the Judiciary.....................    23
Excerpts from a report by the Project in Government Oversight for 
  the record submitted by the Honorable Jerrold Nadler, Chairman, 
  Committee on the Judiciary.....................................    99

                                APPENDIX

A Statement and articles for the record submitted by the 
  Honorable Sheila Jackson Lee, a Member of Congress from the 
  State of Texas, Committee on the Judiciary.....................   188
A Statement for the record submitted by the Honorable Sylvia 
  Garcia, a Member of Congress from the State of Texas, Committee 
  on the Judiciary...............................................   210
A Statement for the record submitted by Caroline Fredrickson, 
  President, American Constitution Society, and Noah Bookbinder, 
  Executive Director, Citizens for Responsibility and Ethics in 
  Washington, on behalf of the joint ACS/CREW Presidential 
  Education Project..............................................   213

 
            EXECUTIVE PRIVILEGE AND CONGRESSIONAL OVERSIGHT

                              ----------                              


                        WEDNESDAY, MAY 15, 2019

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The committee met, pursuant to call, at 10:11 a.m., in Room 
2141, Rayburn Office Building, Hon. Jerrold Nadler [chairman of 
the committee] presiding.
    Present: Representatives Nadler, Lofgren, Jackson Lee, 
Johnson of Georgia, Deutch, Bass, Jeffries, Cicilline, Lieu, 
Raskin, Jayapal, Correa, Scanlon, Garcia, McBath, Stanton, 
Dean, Mucarsel-Powell, Collins, Chabot, Gohmert, Buck, 
Ratcliffe, Gaetz, Biggs, McClintock, Lesko, Reschenthaler, 
Cline, Armstrong, and Steube.
    Staff present: David Greengrass, Senior Counsel; John Doty, 
Senior Advisor; Lisette Morton, Director of Policy, Planning, 
and Member Services; Madeline Strasser, Chief Clerk; Moh 
Sharma, Member Services and Outreach Advisor; Susan Jensen, 
Parliamentarian/Senior Counsel; Sophie Brill, Counsel, 
Constitution Subcommittee; Will Emmons, Professional Staff 
Member, Constitution Subcommittee; Sarah Istel, Counsel; Matt 
Morgan, Counsel; Brendan Belair, Minority Chief of Staff; 
Robert Parmiter, Minority Deputy Staff Director and Chief 
Counsel; Jon Ferro, Minority Parliamentarian; Paul Taylor, 
Minority Chief Counsel, Constitution Subcommittee; Carlton 
Davis, Minority Chief Oversight Counsel; Ashley Callen, 
Minority Senior Adviser and Oversight Counsel; and Erica 
Barker, Minority Clerk.
    Chairman Nadler. The Judiciary Committee will come to 
order. Without objection, the chair is authorized to declare 
recesses of the committee at any time.
    We welcome everyone to today's hearing on executive 
privilege and congressional oversight. I will now recognize 
myself for an opening statement.
    For more than 200 years, Congress has exercised its power 
under Article I of the Constitution to conduct oversight of the 
executive branch. Congress' 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 the 
President's ability to seek candid advice from his or her 
advisers. 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 interest of 
justice require it.
    Until recently, no President had ever stated that his plan 
across the board would to be 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 really escalated since 
the start of the 116th Congress when it became clear 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. 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 18th, 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 the integrity of 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. I put that 
in quotes because I wouldn't even call them real accommodation 
efforts.
    The Department was willing only to discuss severely-
restrictive terms in 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 
p.m. 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 that it never 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 
Russian 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 invited White 
House Counsel Pat Cipollone to testify at today's hearing so 
that he could better explain and defend the White House's 
assertions of privilege. But he has declined that invitation, 
and he has instead submitted a written statement that restates 
the same arguments previously raised by the Justice Department. 
I ask unanimous consent to enter this letter into the record.
    Without objection, it will be entered.
    [The information follows:]

      

                CHAIRMAN NADLER FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Nadler. I also ask unanimous consent to enter a 
letter I sent to the White House on May 10th, 2019, also on the 
topic of executive privilege.
    Again, without objection.
    [The information follows:]

      

                CHAIRMAN NADLER FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Nadler. This letter sets out a more detailed 
description of our negotiations with the Department of Justice 
prior to its 11th-hour invocation of executive privilege.
    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 former 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 co-
equal 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.
    It is now my pleasure to recognize the Ranking Member of 
the Judiciary Committee, the gentleman from Georgia, Mr. 
Collins, for his opening statement.
    Mr. Collins. Thank you, Mr. Chairman, and I think as we 
will see today, welcome, you know, to a redo of something that 
probably should have happened a long time ago. A deliberative 
body like the Judiciary Committee commands respect, but only 
when it conducts itself in a respectable manner, and what we 
have seen in the last 5 months is their actions have put our 
influence at risk.
    In fact, no one on our side, and it is sort of crazy. No 
one on our side is questioning oversight ability of Congress. I 
have said it many times when we were in the majority and I have 
in the minority. Oversight of Congress is a powerful tool and 
should be used. Article II, many times what I have found is 
Members of Congress before I got here gave up a lot of our, you 
know, the authority that we have in Article I to Article II, 
and that is a problem, but, however, you use it in the right 
way.
    Oversight power that is properly done is a powerful tool, 
but when it is not done right, it actually weakens us. When you 
actually, as the Chairman talked about subpoena power, you 
actually threaten the Acting Attorney General at the time with 
a subpoena and then had to back off. A subpoena was not used as 
a last resort. It was used as a threat and then backed off of. 
This is what we have seen so far in this Congress. We talked 
about it last week.
    One of the reasons I believe we are having this hearing 
today is, to come to talk about executive privilege and to talk 
about these things is because last week we showed in the 
contempt hearing that the majority actually did ask for 6(e) 
information. Actually asked for 6(e) information, which they 
cannot have without going to court. It is in the subpoena, and 
there is not a law professor sitting in front of me that 
wouldn't agree that the four corners of a subpoena is what the 
judge acts on, not the intent of the majority.
    So when we do this, we continue to downplay the role of 
this committee. Many of us were lawyers before we became 
politicians, and I was actually a lawyer and a pastor before, 
beloved professions in which reason matters. When we come 
before us today in this matter, I am glad that you are all 
here. I appreciate your backgrounds and your opinions, and we 
are going to hear this today, but, again, I think we have come 
after the fact. We are now trying to go back and lay groundwork 
for what they may want to do later when this could have been 
done beforehand. We said this last week.
    You know, it is often said, and the chairman just said, 
that the Congress is a co-equal branch. I actually think it is 
the premiere branch because we are the ones that actually start 
the money. We are the ones that actually have control. We are 
the closest to the people. We are the ones that have enormous 
power, and the President does answer to Congress. And with all 
its power to enact laws and the enormous breadth, this 
committee's authority to remove a president and upending an 
entire election, that is what the majority has chosen to focus 
on. That is it.
    For the past month, the Democrats have focused on the few 
areas in which we are not given boundless prerogative. We know 
the danger of simple majority rule. We are not a country run by 
a 51 percent majority. Without a division of centralized power, 
democracy becomes anarchy, and so the Supreme Court has power. 
The Attorney General has power. And even if he is not a member 
of your party, the President has power, which we recognized 
when Mr. Obama was in power.
    But for the past months, we have besmirched this body and 
failed to do our jobs. This committee is one of the most 
important bodies in Congress and has become a parody. When the 
results of the Mueller investigation did not satisfy the 
Democrats, they quickly started peddling to the American people 
the manufactured constitutional crisis. The majority turned a 
reasonable discussion of the Mueller report into an opening of 
cannon fire for the circus that they have created. And we are 
back at the circus again, and you have been brought into it.
    We have also looked at those who are channeling outrage for 
impeachment while then going on TV and saying we need to back 
out. It is a base perception, political issue. We even have 
some that have actually on the other side become megaphone 
operators, roaring about evidence nowhere to be found and 
demanding punitive action when they cry for what is next. Never 
mind the absurdity of what is next when, for example, the 
chairman claims that a subpoena is merely the beginning of a 
dialogue weeks after assuring our committee that a subpoena is 
a powerful and coercive tool, and to be only used when our 
attempts to reach accommodation with the witness have reached 
an impasse. That is what we actually heard last week.
    Not only is a subpoena the start of a dialogue, it is to 
give us better standing in court. I mean, my law school didn't 
teach that. In fact, the judges that I went before actually 
believe the subpoena is a powerful tool, as the chairman said 
earlier this year. We are going very fast. You are here today 
to give cover, and they did so with no hearing, no groundwork 
when they held Mr. Barr in contempt. In fact, a mere 19 days 
have passed from the issuance of the subpoena and contempt. 
When the Oversight Committee held Eric Holder in contempt, 255 
days had passed, 13 times as fast.
    Now the Democrats tell us that they are taking the circus 
to court because the President has asserted executive 
privilege, a fact they claim represents a constitutional 
crisis. Today we will discuss that debate and privilege. Many 
people claim Republicans on this committee are covering for the 
President when we should join the Democrats in their demand did 
the Attorney General violate the law, which is what this 
subpoena said.
    So instead of stripping our branch and our oversight 
authority, we actually believe that we have it. But I can't 
also let it pass because, Mr. Chairman, here we are again 
having this hearing. And, again, I appreciate the witnesses 
coming and spending your time with us. But we have a crisis on 
our border. Even the New York Times, Washington Post, everybody 
else, they talk about the crisis. We have not heard anything 
about that. We have talked about DACA, but we have not talked 
about the crisis on the border. We have issues of intellectual 
property and trade on the front headlines of a deal with China. 
This is the intellectual property committee. Have we done 
anything? No. We have focused entirely on this one area.
    But the one that got me the most, frankly, as a son of a 
Georgia State trooper, was this is Police Week. This is a time 
in which we honor our police officers and law enforcement and 
which they have come. Thirty thousand almost are in D.C. this 
week, and yesterday we had one bill on the floor, bulletproof 
vests, a great bill. I was the co-sponsor, original. One bill. 
In the past we have averaged 9 to 10 addressing the issues and 
needs of our police officers.
    But what we did have from the chairman, and I ask unanimous 
consent that it be entered into the record, is a letter from 
the chairman and several of our members to General Barr wanting 
to talk about police-involved shootings and unarmed people in 
Ferguson, Baltimore, Cleveland, Chicago, Falcon Heights, Tulsa, 
Pittsburgh, and Dallas.
    [The information follows:]

      

             RANKING MEMBER COLLINS FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Mr. Collins. And they list off statistics citing in 2018, 
992 people were shot and killed by police. No context. No 
thought about how many of those actually pulled a gun on an 
officer, how many of those actually were looking, and 
unfortunately what we have seen is the phenomenon of suicide by 
cop. We just throw numbers out there. Well, I am going to throw 
a couple other numbers.
    A hundred and forty-four officers died in the line of duty. 
This year over 86 have died in the line of duty. When one of 
the police organizations heard about this letter, this was 
their reaction: ``Well, that is a slap in the face.'' It is 
tone deaf. We could have waited a week then had this. Nobody 
would have said a word, but in the middle of Police Week, Mr. 
Chairman, with everything this committee has going on.
    We will have this hearing. I am glad our witness is here, I 
am glad your witnesses are here, because we are having to redo, 
get the cart before the horse again, trying to get it right for 
this one single-minded focus of hatred for a President and an 
Attorney General. The oversight of this committee is 
unquestioned. We have oversight. We will work through that. But 
we are hellbent on finding the excuse to the point that we slap 
our officers in the face.
    I have no problem with looking into these issues, none at 
all. But when we put one bill on the floor and we send this to 
the Attorney General during Police Week, I don't think there is 
a person on the other side of this dais should say anything 
about supporting police this week. Just be quiet. Go on to the 
next week, and we will get on to this letter then. And 
hopefully, Mr. Chairman, we will take something, as one of your 
members and I have talked on several occasions, maybe we will 
get to some things that we can agree on. I have got no problem 
disagreeing with the other side on policy. What I do have a 
problem with is we never get to it. We are back at the same 
thing again and again.
    So for the folks here, and our witnesses, and for both 
sides of the dais, welcome back to the circus. Another week is 
here, and we will pop the popcorn while we continue to rehash 
the past. With that, I yield back.
    Chairman Nadler. Thank you, Mr. Collins. I will now 
introduce today's witnesses. Professor Kate Shaw teaches law at 
Yeshiva University's Benjamin Cardozo School of Law. She 
received her bachelor of arts from Brown University and her 
J.D. from the Northwestern University Pritzker School of Law. 
Prior to joining Cardozo, Professor Shaw worked in the White 
House Counsel's Office under President Barack Obama as Special 
Assistant to the President and Associate Counsel to the 
President.
    Paul Rosenzweig is senior fellow for national security and 
cybersecurity at R Street Institute. He is also the 
Professorial Lecturer in Law at George Washington University 
School of Law. He received his B.A. from Haverford College, his 
J.D. from the University of Chicago Law School. His prior 
professional experience includes working as Senior Counsel on 
Independent Counsel Ken Starr's investigation of President Bill 
Clinton.
    Jonathan Turley is the J.B. and Maurice C. Shapiro 
Professor of Public Interest Law at the George Washington 
University School of Law. He is a nationally-recognized legal 
scholar and has written extensively in areas ranging from 
constitutional law to legal theory and tort law. Professor 
Turley received his B.A. from the University of Chicago and his 
J.D. from Northwestern University Pritzker School of Law. In 
2008, he was given an honorary doctorate of law from John 
Marshall Law School for his contribution to civil liberties and 
the public interest.
    Neil Kinkopf is a Professor of Law at Georgia State 
University College of Law. He graduated from Boston College 
with a B.A. and received his J.D. from Case Western Reserve 
University. Professor Kinkopf's prior professional experience 
includes serving as special assistant to the Office of Legal 
Counsel at the Department of Justice under President Bill 
Clinton. During the Clinton impeachment proceedings in 1999, 
Professor Kinkopf was the legal counsel to then Senator Joe 
Biden.
    We welcome all of our distinguished witnesses, and we thank 
them for participating in today's hearing. Now, if you would 
please rise, I will begin by swearing you in, although I must 
confess that I always feel a little silly asking people to 
swear that they will tell us their opinions truthfully. 
[Laughter.]
    Chairman Nadler. But nonetheless, do you swear or affirm 
under penalty of perjury that the testimony you are about to 
give is true and correct to the best of your knowledge, 
information, and believe, so help you God?
    [A chorus of ayes.]
    Chairman Nadler. Thank you. Let the record show the 
witnesses answered in the affirmative. You may be seated.
    Please note that each of your written statements will be 
entered into the record in its entirety. Accordingly, I ask 
that you summarize your testimony in 5 minutes. To help you 
stay within that time, there is a timing light on your table. 
When the light switches from green to yellow, you have 1 minute 
to conclude your testimony. When the light turns red, it is 
signals your 5 minutes have expired.
    Professor Shaw, you may begin.

 TESTIMONIES OF KATE SHAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, 
YESHIVA UNIVERSITY, NEW YORK, NEW YORK; PAUL ROSENZWEIG, SENIOR 
FELLOW, NATIONAL SECURITY & CYBERSECURITY, R STREET INSTITUTE, 
WASHINGTON, D.C.; JONATHAN TURLEY, J.B. AND MAURICE C. SHAPIRO 
    PROFESSOR OF PUBLIC INTEREST LAW, THE GEORGE WASHINGTON 
  UNIVERSITY LAW SCHOOL, WASHINGTON, D.C.; AND NEIL KINKOPF, 
  PROFESSOR OF LAW, GEORGIA STATE UNIVERSITY COLLEGE OF LAW, 
                        ATLANTA, GEORGIA

                     TESTIMONY OF KATE SHAW

    Ms. Shaw. Chairman Nadler, Ranking Member Collins, and 
distinguished members of the committee, I thank you for the 
opportunity to testify here today. As the chairman said, my 
name is Katie Shaw. I am a professor of law at Cardozo in New 
York City, and before I began teaching, I spent several years 
as a lawyer in the White House Counsel's Office.
    I understand that the purpose of today's hearing is to 
contextualize and assess the White House's recent protective 
assertion of executive privilege over the entirety of the 
unredacted Mueller report and underlying materials, as well as 
the committee's ongoing exchanges with the White House 
regarding former White House Counsel Don McGahn's documents and 
testimony. So in brief, my view as both a scholar and a former 
White House lawyer who does believe in a constitutionally-
grounded executive privilege, is that blanket invocations of 
executive privilege of the sort the White House has made here 
are without substantial support in either case law or executive 
branch practice. Moreover, they are unsupported by the 
principles that underlie the privilege.
    My written testimony provides background on executive 
privilege, both generally and in the context of congressional 
oversight, so I am not going to spend much time on that 
background. I'll just say that the judicial authority in this 
area is limited both in volume and its utility. What I think is 
more significant here is the authority from the political 
branches, in particular, the numerous written opinions 
directives from presidents and senior Department of Justice 
officials from both Republican and Democratic administrations 
that have guided the executive branch's approach to these 
issues for many years.
    I won't describe those documents in detail. Instead I'll 
just say that they reflect a strong vision of executive 
privilege, an entitlement which the executive branch 
understands to have constitutional foundations to keep certain 
documents and communications confidential. But they also 
reflect a recognition of Congress' constitutional entitlement 
to access at least some executive branch information.
    So abiding by these principles, the executive branch in 
countless inquiries over the years worked with Congress to 
grant some information access while protecting documents they 
believed in good faith could ultimately be subject to an 
assertion of executive privilege. That, I believe, 
distinguishes the executive branch's approach in these 
proceedings from longstanding principles and practices. The 
White House's broad protective assertion of privilege 
encompasses documents that could not possibly be subject to a 
claim of privilege. So let me elaborate on this, first, in the 
context of the committee's request for the full, unredacted 
Mueller report and underlying materials.
    First, the White House has not identified the particular 
strains of executive privilege that might attach to the 
materials at issue here. Executive privilege isn't a free-
floating entitlement to conceal embarrassing or inconvenient 
information from public disclosure. It protects certain narrow 
categories of information for specific reasons, chief among 
them, the importance of protecting confidential advice to the 
President. Some of the materials at issue may implicate that 
strain of executive privilege. Some may implicate other 
categories of executive privilege. But many appear to likely 
have, at best, shaky support in law and in practice.
    Second, as to those portions of the report that have 
already been publicly released, and potentially some of the 
underlying materials that are summarized and reflected in the 
Mueller report, the White House, by failing to object to public 
release, has clearly waived any plausible claim of privilege.
    Third, insofar as some of the documents contained within 
the set might contain evidence of misconduct, and even a 
cursory read of the Mueller report establishes that some very 
likely do, claims of executive privilege may be weakened or 
unavailable. That is because a number of courts have held that 
allegations of misconduct erode, if not vitiate, at least some 
forms of executive privilege. So if the documents at issue 
reveal misconduct, that should minimize the President's 
legitimate Article II interest in protecting them and increase 
congressional authority to obtain them.
    Fourth, there is some authority suggesting that in order to 
qualify for the privilege, at least the presidential 
communications privilege, right, the subset of executive 
privilege, the communications at issue must have some nexus to 
the performance of a presidential function, and must be 
consistent with presidential duty. So the D.C. Circuit, echoing 
the Supreme Court's foundational executive privilege case, 
United States v. Nixon, has emphasized that the purpose of the 
presidential communications privilege is to ensure that the 
president receives full and frank advice with regard to non-
delegable powers. And the key D.C. Circuit cases here involve 
the appointment and removal power and the pardon powers. These 
are key presidential powers.
    So documents that pertain to the exercise of those powers 
may well fall within the privilege. But as to documents that 
reflect the President engaged in very different kinds of 
conduct, conduct like potentially endeavoring to end an 
investigation for corrupt or self-interested reasons, those 
documents might not be eligible for the assertion of privilege 
at all.
    Briefly, as to the additional documents in the possession 
of former White House Counsel Don McGahn, the White House has 
suggested that the documents sought by the committee implicate 
significant executive branch confidentiality interests and 
executive privilege, but to my knowledge has not moved to 
formerly invoke executive privilege. For several reasons, the 
White House, I believe, lacks the strong foundation for an 
assertion of privilege here as well.
    First, the White House did not assert any privilege with 
respect to McGahn's provision of information to the Special 
Counsel's Office, and, more importantly, nor did it object to 
the release of the largely-unredacted report. Now, this may not 
constitute a waiver as to all of the documents in Don McGahn's 
possession, but as to those materials that were incorporated 
into the now-public report, I do not believe there remains any 
strong privilege claim.
    Second, the President has made numerous public statements, 
as recently as last week, to put before the public his version 
of conversations with former White House Counsel Don McGahn. 
Although there's no direct judicial authority on the impact of 
such statements, there is some analogous authority, cases that 
prevent the executive from making self-serving statements, then 
retreating to privilege to prevent the disclosure of 
information that might undermine a one-sided account.
    And third--I see my time is expiring--third, where there is 
evidence of misconduct, as with materials underlying the 
Mueller report writ large, the argument against their 
disclosure is accordingly quite weakened. As to all of these, 
these are legitimate matters of congressional inquiry. And, 
again, as to those potentially misconduct-revealing documents, 
the White House does not have any strong legal basis to resist 
their disclosure. And by saying a strong executive privilege 
and strong congressional oversight authority are critically 
important principles, the sequence of events, as I understand 
them, suggests that the conduct of the White House poses a 
threat to both.
    With that, thank you, and I look forward to your questions.
    [The statement of Ms. Shaw follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Nadler. Thank you very much. Professor Rosenzweig.

                  TESTIMONY OF PAUL ROSENZWEIG

    Mr. Rosenzweig. Chairman Nadler, Ranking Member Collins, 
members of the committee, I, too, thank you for the opportunity 
to appear today and testify on the issue of executive privilege 
and congressional oversight.
    I confess I am somewhat surprised to be called today. As 
you know, Mr. Chairman, I have testified before the House and 
this committee on earlier occasions, almost always as an 
invited witness of the Republican members, and in at least one 
instance, in substantive, but I hope polite, disagreement with 
you on an issue related to the domain name system. Today, 
however, I come to speak about the rule of law and the virtue 
of its consistent application, a premise on which I hope we can 
all agree. In my written testimony today I made a few points 
which I can summarize as follows.
    First, there is a long history of congressional oversight 
of the executive branch activity that dates back to the 
founding of the American republic. I was delighted to hear, 
Congressman Collins, that you agree with Congress' 
investigative and oversight authority because just yesterday 
President Trump's attorneys argued to the contrary before the 
District Court, suggesting that investigative authority was 
limited to the executive branch, an assertion that, in my 
judgment is both wrong and almost ahistorical in its nature.
    Throughout our history, at least until recently, presidents 
have been circumspect in their assertion of a privilege to 
thwart congressional or criminal inquiry. Those views on the 
privilege have waxed and waned over time. Throughout much of 
our Nation's history, they have bent toward accommodation of 
legitimate investigative interest. Recent history sadly tells 
us a different tale, one of presidential invocations of 
privilege intended to conceal wrongful conduct or thwart 
legitimate constitutional interests.
    I saw much of that firsthand during the investigation of 
President Clinton, an investigation that resulted in repeated 
invocations of privilege that were rejected almost uniformly by 
the courts. Much the same pattern of presidential resistance to 
oversight can be seen today. For me, the application of the 
same principles that guided the Clinton inquiry should guide 
this committee. Claims of executive privilege should be narrow, 
focused, and justified only by legitimate executive interests 
in fostering candid advice to the President. Broader 
invocations are ill considered and ought to be rejected by this 
committee, by the courts to which these disputes might fall for 
adjudication, and by the American public.
    Indeed, it seems clear to me that the current broad-brush 
invocation of privilege advanced by the President stands on 
relatively weaker ground than did that of President Clinton. 
President Clinton's invocations, unlike those at issue today, 
were exclusively focused on the core of the privilege, 
presidential communications. And Congress' interest in the 
current question of Russian electoral interference is surely 
more of constitutional moment than the investigation of 
misconduct that surrounded President Clinton.
    In addition, President Clinton, unlike President Trump, did 
not seek to throw the cloak of privilege over documents that 
had already been disclosed to outside third parties, nor try 
and prevent private citizens from responding to a subpoena. And 
all of President Clinton's invocations occurred while he still 
faced potential criminal liability for his wrongdoing, a 
circumstance that, given Attorney General Barr's determination, 
no longer applies to this President.
    Finally, this particular invocation does not occur in a 
vacuum, nor is, in my judgment, this committee required to 
ignore the context in which it arises. By any measure, the 
President appears to have determined to resist almost all 
congressional inquiries through a variety of means, as 
yesterday's District Court hearing demonstrates. This pattern 
is such that this committee may fairly evaluate the instant 
invocation against that background, which might be 
characterized as an attempt to avoid or, at a minimum, delay 
scrutiny of his conduct.
    For me, true adherence to the rule of law means that rules 
have to be applied evenhandedly, regardless of whether a 
political party or other interest is immediately benefitted. It 
means not invoking privileges to conceal wrongdoing, and it 
means not invoking them to frustrate legitimate congressional 
inquiry. That obligation, to be sure, falls on all citizens, 
but, in my judgment, it falls even more strongly on the 
President, who takes an oath to uphold the law. Accordingly, if 
you continue to think that President Clinton's use of the 
privilege to avoid scrutiny of his actions was violative of his 
oath of office and deserving of condemnation, as I do, you can 
no less about President Trump.
    As James Wilson, one of the founders and members of the 
first Supreme Court, put it, ``Far from being above the laws, 
the President is amenable to them in his private character as a 
citizen.'' The framers of our Constitution rightly thought that 
presidents could and should be subject to congressional 
oversight, and the thoughtless invocation of privilege is in 
derogation of that high principle. I remain hopeful that in the 
end the Department of Justice and the Administration will 
recognize these principles and make reasonable accommodations 
to enable this committee to receive the information it needs, 
while protecting the legitimate public interest embodied in the 
privilege.
    Thank you very much, Madam Chairman.
    [The statement of Mr. Rosenzweig follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Nadler. Thank you very much. Mr. Turley.

                  TESTIMONY OF JONATHAN TURLEY

    Mr. Turley. Thank you, Chairman Nadler, Ranking Member 
Collins, members of the committee. Thank you again for the 
opportunity to appear before you to talk about a subject of 
such great importance as executive privilege and congressional 
oversight in the context of our current controversies.
    At the outset, I should repeat my well-known bias as a 
Madisonian scholar. I tend to favor the legislative branch. My 
default tends to be Article I. My academic work has defended 
the authority of Congress for over 30 years. I've represented 
members of the House of Representatives individually as well as 
the House of Representatives as a whole in defense of what I 
consider to be inherent powers of this body that were being 
usurped by the expansion of executive power.
    It is for that reason that this is a curious position for 
me to be in. But I am not here, I haven't been called, to give 
my personal view of executive privilege. I have always been a 
critic of executive privilege. I've been called to give my view 
of where the law stands now and how the courts are likely to 
view the current conflict. And on that, I will offer a 
relatively mixed account as to the relative claims of this 
committee and that of the White House.
    The greatest concern I have, which I have put in my written 
testimony, is that this committee has an obligation, a sort of 
constitutional Hippocratic oath, to first do no harm. As an 
advocate of Article I, the precedent that is used by this body 
in its very important work is not as deep or as broad as most 
of us would like it. It can easily be undermined with reckless 
litigation. For that reason, in my testimony I've isolated what 
I consider to be the strongest and best ground for this 
committee to fight on, cases that I believe you would most 
certainly win. I've also identified areas that I've cautioned 
you not to pursue because the risks are too high.
    Now, the President has a right to assert executive 
privilege, and the Attorney General is obligated to defend it, 
but this committee has to pick its fights wisely. Bad cases 
make for bad law. So Congress has an undeniable and legitimate 
interest in this information. As I have said publicly, as I say 
in my testimony, I think the President would serve the public 
and his office best by waiving executive privilege over much of 
the documents used in the special counsel's report. But we have 
to address what will happen once there's a challenge in court 
to examine that assertion.
    This body has decided to proceed on a not an impeachment 
matter. That will weigh heavily in an any fights with the White 
House. The courts have indicated that on impeachment matters, 
there's a heavy deference that is given to this body as a 
conventional oversight matter becomes more mixed. I've gone 
through five areas of information that is currently being 
withheld from this body. With some of those I believe this 
committee will lose.
    On issues of the redactions, I believe this committee will 
lose. I think the case that the Attorney General has on those 
redactions is virtually unassailable. Where I believe this 
committee can win and where I think the White House is, 
frankly, unsupportable in its position, is to try block 
witnesses from this committee. And ultimately, I believe that 
you will prevail on getting underlying material linked to the 
Mueller report.
    The question then is how do you proceed. I've listed cases 
that give you an outline as to the most likely way to prevail, 
protect your precedent, and to move this along. Privilege 
fights are like invading Russia in winter. If you get into it, 
it's not going to be fast, and you're not going to get a warm 
reception in the courts. You have to be very careful of how you 
launch that campaign.
    In Paradise Lost, Milton referred to a Serbonian bog where 
whole armies have sunk. Don't be one of those armies. If you 
attack Article II on weak grounds, you will sink in that bog. 
So what I encourage this committee in my testimony, which is 
probably too long quite frankly, is that you focus on your 
strongest suit. Focus on forcing these witnesses before your 
committee. Focus on getting the underlying documents.
    Now, in that you're going to have a mixed result on forcing 
those documents to be released. What I say in my testimony is 
that the President has a valid executive privilege claim and 
this committee has a valid oversight claim. You're not going to 
win on a threshold fight. I also believe that it is not true 
that the President has waived executive privilege by showing 
material to special counsel. On that I believe you will lose, 
and I strongly encourage you not to make that argument in 
Federal court. The case law here is quite strong. That doesn't 
mean you're going to lose. It just means you're not going to 
have a takedown on the first round.
    Now, one of the things I also advocate for you to consider 
is that when you look at the redactions, I understand that you 
want to see the full report. The report has given 98 percent of 
it to select members. I understand that there are objections to 
how rigid those limitations are. That is not good ground to 
fight on. These other areas, I would bet on you, and those are 
the areas I would encourage you to focus on.
    Thank you very much.
    [The statement of Mr. Turley follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Nadler. Thank you. Professor Kinkopf.

                   TESTIMONY OF NEIL KINKOPF

    Mr. Kinkopf. Thank you, Chairman Nadler, Ranking Member, 
and, more importantly, fellow Georgian, Mr. Collins. It's a 
real honor to be here today. This is an auspicious time for a 
hearing into executive privilege and congressional oversight 
given the range of current disputes over executive privilege 
between Congress and the executive branch. These disputes 
involve a clash between constitutional interests.
    The Constitution vests Congress with an inherent power of 
inquiry. As the Supreme Court has stated, ``The scope of the 
power of inquiry is as penetrating and far reaching as the 
potential power to enact and appropriate under the 
Constitution.'' The President also has a legitimate interest in 
confidentiality that's constitutionally rooted. The President's 
decision-making process requires that he be able to receive 
candid and robust advice from his advisers, and that advice, 
human nature tells us, would be tempered if it couldn't be 
given in confidence. Neither of these constitutionally-based 
interests overwhelms or trumps the other. Instead, they need to 
be balanced, and in the first instance, that balance is to be 
struck by the political branches themselves through a process 
of negotiation and accommodation.
    Attorney General William French Smith, who served under 
President Ronald Reagan, put it this way: ``The courts have 
referred to the obligation of each branch to accommodate the 
legitimate needs of the other. The accommodation required is 
not simply an exchange of concessions or a test of political 
strength. It is an obligation of each branch to make a 
principled effort to acknowledge and, if possible, to meet the 
legitimate needs of the other branch.'' This approach has been 
the standard model adhered to by administrations and congresses 
of both political parties. It stands in stark contrast to 
President Trump's recent declaration of a blanket intention to 
oppose all the subpoenas.
    When privilege disputes have gone to court, the courts have 
repeatedly emphasized that the balancing of constitutional 
interests should not be done in the abstract, but instead 
should be done on a case-by-case basis that takes account of 
the concrete facts and circumstances presented by the 
particular issue. The subpoenas that this committee has issued 
involve an inquiry into Russian interference in our elections. 
In the concrete factual setting of these subpoenas, Congress' 
interest is of the highest constitutional order.
    First, Congress has authority to enact statutes to 
safeguard our elections from foreign interference. The sound 
exercise of that authority is fundamental to our democracy, and 
the threat to the integrity of our electoral system is not 
abstract or speculative. Russia has interfered in our 
elections, and, according to our intelligence services, it will 
continue to do so.
    Second, the Constitution assigns Congress the primary role 
for addressing presidential misconduct. The Mueller report 
details exhaustive and voluminous evidence of presidential 
misconduct and of Russian attempts to interfere in the 
election. It details the President endeavoring to obstruct the 
investigation into Russian interference with the election. The 
report itself refrains from drawing a conclusion as to whether 
or not the President committed obstruction of justice in the 
sense of the Federal statute. It refrains because of the 
special counsel's specific determination that he does not wish 
to preempt the political branches, Congress, from their primary 
role in addressing presidential misconduct. So Congress has 
overwhelming constitutional interests in receiving the material 
that it has subpoenaed in order to inform its judgment about 
safeguarding our elections and about how to respond to 
significant allegations of presidential misconduct.
    On the other side of the balance is the President's 
interest in confidentiality. The President has not, however, 
sought to specify within the factual setting of this particular 
dispute why it is that the discreet documents that he's 
withholding are within his authority to withhold. I won't go 
through all of the specificity that Professor Shaw, I think, so 
well covered. But I would say the balance of the interest, 
Congress' very weighty interest, and, at least to this point, 
the President's only general and vague assertions, do not 
overcome Congress. And in the balance, Congress should prevail.
    [The statement of Mr. Kinkopf follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Nadler. Thank you very much. I will open up the 
questioning by recognizing myself first.
    Professor Turley, this committee issued a subpoena to 
former White House Counsel Don McGahn for records provided to 
him by the White House in the course of his cooperation with 
the special counsel investigation. The current White House 
counsel, Pat Cipollone, has instructed him not to respond on 
the grounds that these records ``implicate significant 
executive privilege confidentiality interests and executive 
privilege.'' Do you agree that those White House records are 
still legally protected from disclosure to Congress because 
they may implicate executive branch confidentiality interests?
    Mr. Turley. Thank you, Mr. Chairman. It is a tough 
question. I am going to give you middle-of-the-road answer, if 
you don't mind. First of all, the problem with calling Don 
McGahn, and, first of all, I think you have absolutely every 
right to call Don McGahn. The problem with the documents from 
McGahn is that his office sits at the very nucleus of 
presidential communication privilege. He is the really high-
value witness for you to call in terms of the triggering of the 
constitutional fight.
    The material that he showed to the special counsel, in my 
view, is not waived because that is a conversation occurring 
within the executive branch. It is actually even within the 
Justice Department.
    Chairman Nadler. That was my next question.
    Mr. Turley. Yeah. I think the courts have already pretty 
much weighed in on that. I don't think they are going to view 
the documents that were not disclosed in the report as waived 
because it was shown to Mueller and because he is not an 
independent counsel. He is a special counsel.
    Chairman Nadler. What about those shown to McGahn's 
attorney?
    Mr. Turley. That I deal with in my testimony, and I say 
that is actually the most difficult question of all of these 
privilege fights. The courts are not clear whether if you show 
documents to an attorney it waives executive privilege. And 
what I caution about in my testimony is I think that if you 
force this to a court, it is mostly likely that the court is 
going to find an accommodating rule because, as I explained in 
my testimony, I can't thread this issue without having sort of 
rippling effects, not just on the executive privilege, but on 
you in the legislative branch.
    For example, if members of Congress have an issue that 
could affect them personally and they speak to an attorney, 
does that waive congressional privileges? This is a very 
difficult question for a court to have to deal with, and I 
think it is likely the court will run home and say, you know 
what? As long as there are restrictions on confidentiality, 
like NDAs, or non-disclosure agreements, or agreements with the 
White House counsel staff, that I think a court is more likely 
to say there is no waiver.
    Chairman Nadler. Thank you. Professor Kinkopf, you 
testified that you thought we had the right to these materials, 
as I interpreted what you said, the redacted materials of the 
highest constitutional order.
    Mr. Kinkopf. That is correct.
    Chairman Nadler. And that would disagree with what 
Professor Turley said. Now, do you agree with Professor Turley 
that in terms of obtaining these documents and other documents, 
we would have much better odds in court if we were to label 
this an impeachment inquiry?
    Mr. Kinkopf. I don't think the label matters, right, 
because you have to decide whether or not to start an 
impeachment inquiry. And impeachment, particularly impeachment 
of the President, is a grave step. It is not one that should be 
taken recklessly. It would be irresponsible without first 
having information that the allegations of wrongdoing against 
the President----
    Chairman Nadler. All right. Whether we should do it or not 
is a different question. But my question is, would it put us in 
a stronger position in court in arguing for a revelation of 
various materials?
    Mr. Kinkopf. I think it is enough that you say you are 
trying to decide whether or not to pursue impeachment. I don't 
think you have to actually invoke impeachment, and I don't 
think that the House has to actually form an impeachment 
committee.
    Chairman Nadler. You are in complete disagreement with 
Professor Turley in everything. Mr. Rosenzweig, when 
Independent Counsel Ken Starr transmitted his report to the 
House of Representatives, he also included 18 boxes of 
underlying evidence. Can you describe why Judge Starr thought 
it was important to provide that underlying evidence to 
Congress?
    Mr. Rosenzweig. His view at the time, with which I agreed, 
was that that underlying information was essential to this body 
to perform the functions of its responsibility under Article I, 
namely, to determine what, if anything, should happen 
thereafter with respect to President Clinton. It was obviously 
a slightly different context in the sense that that was a 
direct referral for impeachment purposes as opposed to purely 
for oversight purposes. But the fundamental thought that lay 
behind this was that it should not be incumbent upon this body 
to redo all of the work that he had done, nor should this body 
be forced to rely on what he thought was a good summary.
    Chairman Nadler. So in other words, you are saying it 
should not be incumbent on us now to redo all the work that Mr. 
Mueller did----
    Mr. Rosenzweig. That would be my view as well. In 
parimeteria, it is exactly what we said with respect to 
President Clinton, yes.
    Chairman Nadler. Thank you. Finally, Professor Shaw, well, 
do you agree with previous testimony on the question of waiver; 
that is to say, whether the White House waived executive 
privilege when it gave information either to Mueller or to 
McGahn's attorney?
    Ms. Shaw. I think I agree with Professor Turley that it is 
actually a quite difficult question. Certainly all the public 
materials, any privilege has been waived as to those publicly 
released, the report itself.
    Chairman Nadler. By ``publicly released,'' you mean given 
to McGahn's attorney?
    Ms. Shaw. No, I mean, you know, the redacted version of the 
report. No, the transmission to both McGahn and to his counsel, 
you know, I think that McGahn sharing with the special counsel 
is arguably an intra-executive transmission. That does not 
necessarily waive privilege. That is all still within the 
executive branch. You know, I would want to know, the White 
House counsel in his letter to you of--sorry--May 7th--sorry--
suggests that Mr. McGahn, there was a clear understanding that 
records remain subject to the control of the White House for 
all purposes. I would kind of want to know the circumstances in 
which that understanding was communicated. That seems to be 
sort of a relevant factual question.
    I think as to the sharing of the documents with Mr. 
McGahn's outside counsel, there would be a close legal 
question. You know, the D.C. Circuit decision from 1999 sort of 
takes a mixed view of this. There is a little bit of waiver 
when they are sharing with a third party, but not waiver in any 
blanket sense. So I think it is close. I would agree with 
Professor Turley.
    Chairman Nadler. Thank you very much. My time has expired. 
The gentleman, the Ranking Member, Mr. Collins.
    Mr. Collins. Thank you, Mr. Chairman. I want to go through 
several things, and I appreciate this. Again, we were up here 
before talking about this is back to law school, and we have 
law professors and 2-and-a-half opinions. So it is pretty 
interesting to see, and this is good. I mean, I like it.
    But I do have one just sort of a yes/no question, Mr. 
Rosenzweig. When you worked with the Ken Starr investigation, 
was it not under a different, it was actually under a statute, 
correct? The independent counsel statute.
    Mr. Rosenzweig. Ken Starr was authorized to investigate by 
the Independent Counsel Act.
    Mr. Collins. Exactly. And Mr. Mueller was not, correct?
    Mr. Rosenzweig. He was authorized by the special counsel 
regulations.
    Mr. Collins. Which are different, correct?
    Mr. Rosenzweig. Yes.
    Mr. Collins. Okay. And they also have different reasons on 
what they were to release and what they were not to release, 
correct? Yes.
    Mr. Rosenzweig. I am not sure I agree with that.
    Mr. Collins. Well, when actually----
    Mr. Rosenzweig. The special counsel regulations give 
Attorney General Barr plenary discretion to release whatever he 
feels is appropriate in the public interest. The special 
counsel regulations provide that Mr. Mueller's report is 
actually to Mr. Barr. So in my judgment at least, Attorney 
General Barr, in consultation with the White House, could 
release almost all of the report, save for those portions that 
are prohibited by lawful release.
    Mr. Collins. Or in the reverse, he could release nothing 
and say this is what the Mueller report came out with, correct?
    Mr. Rosenzweig. He could certain have limited himself to a 
much lesser release if he had chosen to do so.
    Mr. Collins. Thank you. One quick thing, and I actually had 
this handed out to you because I think what was said by several 
of you is the actual issue of congressional, and are we 
actually, and I understand the majority's desire to move this 
forward. I mean, I do not deny the political aspect of this. 
But when you do, and I think Professor Turley and several of 
you have talked about the role and the authority of Congress, 
which I do truly believe in, there is such a thing as moving 
too fast where you actually undercut your own authority.
    I have handed you the subpoena that was issued for General 
Barr. You have time to read it. You can talk about it. If you 
want to take a second. Show me in here anywhere where there is 
an exception for 6(e). There is not. I will help you out. There 
is not. So to say that we are asking for the something the 
Attorney General can do is not. And I understand the intent 
that was said from this dais, well, the intent was that we will 
go to court and we will work it out together, sort of the Ken 
Starr a-la-model, which was a little bit different. But there 
is nothing in this subpoena right here that a judge would look 
at and say, no, you asked for 6(e) information, which he cannot 
do. It is illegal for him to do.
    The constitutional crisis here would be to say, Attorney 
General, break the law because we want it. That is standing in 
the middle of the aisle and just jumping up and down and 
pitching a fit. This is what this subpoena is. Now, the 
question comes back, and, by the way, GSU, I am so glad--go 
Dogs. But Mark Becker and you all, the Panthers are great and 
have amazing growth and the law school is amazing down there. 
It is good to have you all here.
    But the disagreement we have looked at, as we go back 
through the issue, and especially where you said, and, Mr. 
Turley, I am going to ask this question, but I want to 
acknowledge, is that you all both had disagreements. When he 
said that opening an inquiry, an impeachment inquiry, which by 
the way has not been said. The only issues that have been said 
from this committee are where there is an assault on the rule 
of law, that is more of an enforcement mechanism, that we are 
looking into election security, that we are concerned about 
overreach of the Administration. We have never said, well, we 
are doing this specifically for impeachment.
    Mr. Turley, is it not true, though, the courts have ruled 
that if a judicial proceeding, would they consider an 
impeachment proceeding a judicial proceeding?
    Mr. Turley. That is true, the extent of some of the case 
law. This is where we differ. The Senate Select Committee v. 
Nixon in 1974 drew the distinction the chairman was referring 
to. In that case, Congress lost because it was proceeding under 
oversight authority. This body is actually playing the worst 
card in its hand. It has a very good card to play in terms of 
initiating an impeachment inquiry. But in that case, the court 
did draw the distinction that you asked my colleague about and 
actually said that it was determinative.
    I would simply encourage this: be aware of close calls. 
This is not horseshoes and grenades. This body needs to 
litigate when it can be certain it can take down the executive 
branch. You have those issues, but be aware of close calls 
because that is where you lose precedent.
    Mr. Collins. And just reclaiming my time here for the last 
few minutes because like I said, we will go over this. I 
appreciate it. You know, the discussion has been interesting to 
hear already in a sense, but is an interesting issue when you 
have close calls, when you have, you know, Professor Shaw, your 
discussion with Professor Turley just now. There are issues.
    My concern is overriding, and this is my bigger concern. 
And you are here, in all fairness, to start a foundation for 
what was lacking last week and lacking in previous hearings 
where we go straight to subpoenas, straight to contempt, 
straight because we are so fast to get to the end of the day. 
But the concern that I have here is just expressed there, and 
some of you have expressed this because we do agree in the 
sense. And, Mr. Rosenzweig, you said you have been here for 
Republicans. The reason you are here today is to prop up really 
a bad argument, and I appreciate you being here, and the others 
are here for that. And this is why we are here.
    But my concern is past the Chairman and Ranking Member. 
This body. Look at the paintings on the wall. There is history 
here. This is beyond the moment of right now, and one day the 
two of us will not be here. My friend from New York and myself 
will be back in Georgia and be back in New York, and there will 
be other people in this chair. But if we have actually degraded 
the role of this committee by rushing to court, by rushing to 
conclusions, then we have actually taken the authority that we 
say that we are applying, and we have undercut it. And we have 
made it harder for future Congresses and future Judiciary 
Committees to actually exercise their constitutional power. 
That is my concern with it.
    But it is good to hear you all today. I am glad we are 
having this discussion I guess as we go forward. And I 
appreciate the time, and I yield back.
    Chairman Nadler. The gentleman yields back. The gentleman 
from Georgia.
    Mr. Johnson of Georgia. Thank you, Mr. Chairman, and thank 
the witnesses for being here today. We are at a crucial 
juncture in our Nation's history, and it is important that 
experts like yourselves help us clarify areas of the law that 
the Administration and perhaps some of my friends on the other 
side of the aisle may be unclear about. We are in the early 
stages of a constitutional crisis. The flaunting of 
congressional subpoenas and the willful attempts to conceal 
information rightfully requested by the Congress shows an 
underlying disrespect for the co-equal branch of government 
that is the legislative branch. And it is imperative that 
Congress be allowed to continue its investigation into foreign 
interference in American elections.
    Special Counsel Mueller was appointed because of material 
concerns that the Russian government had inappropriately 
meddled in our presidential elections. After well over a year 
of careful fact gathering and meticulous research, he and his 
team produced a 440-page report. And what did Congress get 
initially? A 4-page summary that included conclusions that 
Mueller did not find obstruction. Attorney General Barr 
essentially told us to move on, nothing to see, but that is not 
what the Mueller report said.
    We later learned that Mueller himself was concerned about 
misunderstandings about the report's contents that were 
perpetrated by the Attorney General. How can we trust when the 
Attorney General of the United States is prioritizing helping 
the President save face over the true facts of this matter? So 
we asked for the full report, and in response to our very valid 
request, the President claimed blanket executive privilege 
after the Attorney General stonewalled attempts to reach a 
reasonable accommodation. He just claimed a blanket executive 
privilege on the entire report and all of the underlying 
documents.
    Professor Shaw, what, if any, legitimate interest does the 
President have in protecting the confidentiality of White House 
communications or documents that may contain evidence of 
misconduct?
    Ms. Shaw. So where there is evidence of misconduct, 
Congressman, any Article II-based interest in protecting 
confidentiality is quite weakened. I would say that as a 
general matter, there may well be legitimate instances in which 
specific discreet documents in the possession of the special 
counsel would well be candidates for a viable privilege 
assertion. Some of the discussions between the President and 
advisers, even those that touch, you know, matters of the 
investigation, you know, so long as they are not tainted by 
misconduct. Presumably they were discussing how to respond to 
inquiries from the Special Counsel's Office, and some of those 
discussions might well qualify as the kinds of considered 
deliberation between the President and his advisers that 
establish----
    Mr. Johnson of Georgia. It is not a blanket----
    Ms. Shaw. Sorry. So all that, I think, would potentially 
qualify, but we don't know yet because they haven't given any 
specifics. As to those documents that might well be tainted by 
misconduct, I think any executive privilege interest would be 
quite weak.
    Mr. Johnson of Georgia. Professor Turley, you would agree 
with that, would you not?
    Mr. Turley. I'm not too sure in terms of where it's on the 
spectrum, in terms of the executive privilege interests raised 
by this. There's no question that when this body is 
investigating crimes, for example, the assertion of privilege 
is at its weakest. But just as the other----
    Mr. Johnson of Georgia. And let me interrupt you also.
    Mr. Turley. Yes.
    Mr. Johnson of Georgia. If we are using our oversight power 
to investigate crime, that is within our legislative 
prerogative, is it not?
    Mr. Turley. It is, but just----
    Mr. Johnson of Georgia. We don't have to limit ourselves to 
an impeachment inquiry in order to ferret out criminal 
misconduct?
    Mr. Turley. Well, you don't have to, but the problem you're 
going to have in this--and well, a prior witness noted that the 
finding of no criminal conduct worked against the White House. 
This is where it works against the committee.
    The record, as it stands----
    Mr. Johnson of Georgia. Well, we know that that was 
unsupported, though. We know that that assertion by Attorney 
General Barr was unsupported by the Mueller report. Wouldn't 
you agree with that, Professor Rosenzweig?
    Mr. Rosenzweig. Well, yes, Congressman. I joined a letter 
signed by I think it's almost 1,000 former prosecutors now, 
suggesting that in our professional judgment, the Attorney 
General's determination was not supported by the evidence.
    Mr. Johnson of Georgia. And with that, Mr. Chairman, I will 
yield back.
    Chairman Nadler. I thank the gentleman.
    The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    You know, this is the Judiciary Committee, a committee that 
was once chaired by Daniel Webster, and we could be, should be, 
using our time in important, productive ways. We could be 
working, for example, on improving control at our borders, and 
it is a real problem. Some had tried to say, oh, this is just a 
made-up issue, a made-up crisis. More and more, they are coming 
around and realizing that it is not at all a made-up crisis.
    At the very least, we ought to be able in a bipartisan 
manner to do something about the very flawed asylum system 
right now that we have. We have people coming up principally 
from Honduras and Guatemala and El Salvador, some on caravans. 
They are coming to our borders. They are told by the drug 
cartels, who they have paid thousands of dollars to, the magic 
words to say that they fear they are sent back, and so they 
don't get sent back.
    They come into the country. They are given a court date. 
They are put on a bus. They disappear somewhere in the 
continental United States, into communities from members on 
this committee and all over the place. Almost never come back 
for their court date, and essentially just disappear into the 
population.
    It is not good for the country. The American taxpayers are 
paying for this, and this committee ought to be working on 
that. We have jurisdiction over that.
    We could be working on the record number of opioid deaths 
in this country, 70,000 over the last year alone. When Ronald 
Reagan was President, he and the First Lady started their 
``Just Say No'' campaign to try to do something about it 
because we had 10,000 deaths due to overdoses, 10,000. Now it 
is 70,000, 7 times what it was.
    And in Congress' defense, we have done some things. We 
passed CARA a few Congresses back, and we passed the SUPPORT 
Act in the last Congress. And that does make progress, but 
there are so many other things we could be doing. We have--we 
have jurisdiction, oversight over the DEA, the Drug Enforcement 
Administration, in this committee, over the FBI, law 
enforcement. Yet we are having hearings on this.
    We could be talking about reforming our prison system. Now, 
yes, we did do some second-chance legislation. That is a good 
first step, and we did it in a bipartisan manner, which we 
ought to do a lot more in this committee than we do. But these 
folks that are behind bars right now are going to be out some 
day, most of them, and if they have a skill, if we can actually 
do something with them so they have a skill, there is much less 
chance when they get out that they are going to be breaking 
into your house or hijacking your car or selling drugs to your 
kids.
    We ought to be working on that in this committee, but we 
are not. We are doing this.
    Anti-Semitism is a growing problem. We have talked about 
it. But we have got literally Members of our own institution 
who can't get out of their own way. They have demonstrated 
their own anti-Semitism. So what do we do? We pass this 
legislation that says all hate is wrong, you know, but we 
didn't focus on what the real problem was because it was too 
embarrassing.
    We have got over $20 trillion debt hanging over our heads. 
Now we are not the Budget Committee, but we do have 
jurisdiction over constitutional amendments. I was for 6 years 
the chairman of the Constitution Subcommittee in Judiciary, and 
my ranking member for those 6 years was none other than the 
current chairman of this committee, Mr. Nadler. And we worked 
together on some issues, and we need to balance that budget.
    Twenty trillion dollars, it is like every American pays a 
mortgage on a second home, and yet they are getting nothing out 
of that home. That is what what the balance--lack of a balanced 
budget amendment does. We have introduced it again. We have got 
36 Republican cosponsors, 0 Democrat cosponsors.
    So we could be doing a lot more on these and many other 
issues, but Democrats are focused on something that has 
essentially already been dealt with in the Mueller report that 
found that this President had not colluded with the Russians, 
and Attorney General Barr indicated no obstruction. But our 
Democratic colleagues just can't leave it alone. So today, we 
are wasting this committee's valuable time on executive 
privilege and blah, blah, blah.
    Professor Turley, let me ask you this. You had an article 
in The Hill recently, and in that article, you said the 
Democrats wanted to manufacture a conflict, and they have 
succeeded in doing so. What did you mean by that?
    Mr. Turley. Well, that was a column on the contempt action 
against Attorney General Bill Barr. And for full disclosure, I 
testified at his Senate confirmation. I've known him for years. 
I believe that the contempt action of this committee was 
unfounded, but I also believe that if it goes to a Federal 
court, this is another area where I think that this committee 
could lose.
    The issue of Rule 6(e) was addressed during the 
confirmation hearing, when Senators asked me why won't he 
commit to releasing the full and unredacted report? And I said 
because that would be a crime. You're asking him to commit to 
an act to secure confirmation that would violate the Federal 
law.
    If he had said that, despite our friendship, I would have 
opposed his confirmation because that would be unethical. So 
there's no question that he cannot release that Rule 6(e) 
information.
    I was counsel on the Rocky Flats case. That's the largest 
Rule 6(e) case I know of. We spent years trying to get that 
special counsel report released. So I'm not a fan of Rule 6(e), 
but we lost. And if you take a look at the McKeever case, which 
was just handed down by the D.C. Circuit, you are heading into 
a world of hurt. If you go to the D.C. Circuit and argue that 
you could order Barr, that Barr could unilaterally release Rule 
6(e) information, they just adopted a narrow view of Rule 6(e).
    And by the way, their view--and I agree with the dissent in 
that case--raises serious questions about how they're 
interpreting Haldeman v. Sirica. So you could open up that 
fight if you bring that case back to the D.C. Circuit. I'd 
encourage you not to because I happen to like Haldeman v. 
Sirica.
    But right now, the D.C. Circuit is not a hospitable place. 
They've adopted the narrower approach of a couple of circuits 
like the Eighth Circuit in interpreting those exceptions under 
Rule 6(e).
    Mr. Chabot. Thank you. My time has expired, Mr. Chairman.
    Chairman Nadler. The gentleman from Florida, Mr. Deutch?
    Mr. Deutch. Thank you, Mr. Chairman.
    Mr. Chairman, on April 18th, an hour before releasing the 
Mueller report, the Attorney General held an unusual, 
misleading press conference to spin Mueller's findings in the 
President's favor, and he said, and I quote, ``The White House 
provided unfettered access to campaign and White House 
documents, directing senior aides to testify freely, and 
asserting no privilege claims. And at the same, the President 
took no act that, in fact, deprived the special counsel of the 
documents and witnesses necessary to complete his 
investigation. Accordingly, no material has been redacted based 
on executive privilege.''
    Professor Shaw, the President had multiple opportunities to 
assert executive privilege over materials collected during the 
investigation, but he did not. Is that correct?
    Ms. Shaw. That's correct.
    Mr. Deutch. And the Attorney General sought to make a 
point--he sought to point out the decision to waive privilege, 
the decision to waive privilege to make it appear that the 
President was being fully transparent with the American people. 
Is that correct?
    Ms. Shaw. I think that's a fair characterization of the 
press conference, yes.
    Mr. Deutch. And the Attorney General said nothing in the 
Mueller report was redacted for executive privilege?
    Ms. Shaw. That's correct.
    Mr. Deutch. Professor Kinkopf, in the course of the 
investigation, what third parties would have access to 
information and documents collected?
    Mr. Kinkopf. I'm sorry. Could you----
    Mr. Deutch. During the course of the investigation, which 
third parties would have access to the information and 
documents collected? Like investigators, for example, or 
private attorneys or staffers, would they have access?
    Mr. Kinkopf. Would they have access to the special 
counsel's----
    Mr. Deutch. To the information--to the information 
collected during the investigation?
    Mr. Kinkopf. No. The internal staff would.
    Mr. Deutch. Right. Right.
    Mr. Kinkopf. Yes, yes.
    Mr. Deutch. Exactly. Are those individuals the sort of 
close advisers to the President that executive privilege is 
meant to protect?
    Mr. Kinkopf. No.
    Mr. Deutch. Right. So given that the White House made no 
executive privilege claims at all, at all, during the special 
counsel's investigation, including witness testimony or over 
the publication of the report itself, should that information 
still be considered privileged?
    Mr. Kinkopf. Certainly not presidential communications.
    Mr. Deutch. Right. So to be clear, the President waived--
Professor Shaw, I will come back to you. The President waived 
executive privilege over these materials when he gave them to 
third parties and allowed them to be published publicly. 
Correct?
    Ms. Shaw. Congressman, the counterargument that I would 
offer is just that because these were all executive branch 
officials to whom these documents were shared without any 
interposition of an objection on the basis of executive 
privilege, that does not necessarily mean the President 
wouldn't later assert executive privilege as to another branch.
    Mr. Deutch. When the document was released, the Attorney 
General went out of his way to talk about transparency in the 
process and made no mention of executive privilege.
    Ms. Shaw. I agree that that--that that seems misleading in 
retrospect.
    Mr. Deutch. Right. So, in fact, it seems to me that the 
D.C. Circuit decided this exact issue when it held that the 
White House ``waives its claims of privilege in regard to 
specific documents that it voluntarily reveals to third parties 
outside the White House.'' That is the Espy case.
    So the Attorney General has also claimed that he is 
prohibited by law from disclosing the report's underlying 
evidence, including investigative files. Mr. Rosenzweig, based 
on your experience, is the Department of Justice prohibited 
from giving Congress law enforcement files?
    Mr. Rosenzweig. It's not prohibited by law, except to the 
limited extent of matters that are actually occurring before 
the grand jury, which is actually a very narrow case. My own 
experience----
    Mr. Deutch. How was your own experience?
    Mr. Rosenzweig. Well, my own experience 20 \1\ years ago 
was an investigation conducted by former chairman John Dingell 
into a specific case in which the Department turned over 
essentially the entire investigative file, save for the grand 
jury materials, and I personally sat for several hours of 
depositions on the matter.
---------------------------------------------------------------------------
    \1\ Mr. Rosenzweig requested this be changed to 27 years.
---------------------------------------------------------------------------
    Mr. Deutch. And in fact, Professor Shaw and Professor 
Kinkopf, in your time serving as attorneys in the executive 
branch, is it standard practice to refuse to disclose law 
enforcement information to Congress? Is that standard practice?
    Mr. Kinkopf. Yes.
    Mr. Deutch. Professor Shaw, standard practice to refuse to 
disclose law enforcement information to Congress?
    Ms. Shaw. I would say----
    Mr. Deutch. As a whole.
    Ms. Shaw. In a blanket way, I would say no. I think as to 
specific materials, it is sometimes, of course----
    Mr. Kinkopf. I would agree with that, in a blanket way, no. 
But as to specific investigations----
    Mr. Deutch. Thank you, Professor Kinkopf. Right. Thanks.
    So there is not a basis to withhold this information across 
the board. It is just not--that is just not the case. But the 
Attorney General and President are still claiming a blanket 
privilege over all of the Mueller report and all of the 
underlying materials, material that has been shared by the 
special counsel, shared with investigators on his team, shared 
with fact witnesses, former White House employees, shared with 
private attorneys. Shared, in fact, with the ranking member of 
this committee.
    So, additionally, I reviewed White House Counsel 
Cipollone's letter from last night. It leaves me with the same 
impression that the Assistant Attorney General did in his 
letter last week. The blanket protective privilege claim wasn't 
grounded in the law. It was payback because the White House and 
DOJ didn't want to comply with the subpoena, didn't want to 
negotiate compliance, and didn't want the Attorney General to 
be held in contempt for refusing to comply.
    It is important to note what is going on here, Mr. 
Chairman. The Attorney General came out in front of the 
American people and claimed transparency that the President 
didn't hold any documents back. He didn't assert a privilege. 
The President waived it. He said he didn't need it.
    The Attorney General boasted about it, and then he tried to 
claw it all back. Not because the law says he can't, but in 
retaliation against this committee because we demanded 
compliance with our subpoena and moved forward with contempt. 
It is too late for a privilege claim now.
    The President's decision to use it as a cover-up has thrown 
this system of checks and balances out the window. Yes, the 
President has a limited qualified privilege to enable him to do 
his job. It is not a blanket cloak of secrecy to cover up his 
own wrongdoing, to make it impossible for Congress to protect 
the American--Americans' healthcare, ensure we aren't 
committing human rights abuses at our border, protect our 
national security from vulnerabilities when security clearances 
are inappropriately given to family members.
    There is no cover-up privilege in our law. Mr. Chairman, 
the Constitution law and precedent say that Congress has a 
right to this information. We will go to court if we have to 
get it. The President cannot prevent Congress from 
investigating obstruction of justice by obstructing this 
Congress.
    And I yield back the balance of my time.
    Chairman Nadler. I thank the gentleman for yielding back.
    The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, and I appreciate my 6\1/2\ minutes 
time I will have.
    First of all, I know it is difficult these days because 
schools teach to the federally mandated tests. So they don't 
include civics. But anyway, and I know surveys have shown that 
more college students and recent college graduates can identify 
the Three Stooges more so than they can identify the three 
branches of government, but let me help in that regard.
    When the President of the United States tells the Attorney 
General that he is going to waive executive privilege with 
regard to things that he has used his White House counsel for 
and met with him and shared things with, that does not waive 
the executive privilege outside the executive branch. Because, 
see, we are a legislative branch, one of those three.
    And so the executive privilege can be contained within the 
executive branch without waiving it to another branch. So I 
know it is an acute difference, but it is worth noting, 
especially if you are going to go before a court that does know 
the difference between the three branches.
    And by the way, just for what it is worth, we have had a 
couple of weeks of hearings on what was called the Equality 
Act. We are supposed to--the majority is going to pass that out 
apparently this week. First bill in 25 years where you cannot 
have a religious freedom defense.
    So if you, for example, advise a synagogue, you may want to 
tell them that if they try to hire--if they refuse to hire a 
biological woman who says she is a man and wants to be their 
rabbi, they are looking at a lawsuit, and they cannot claim 
religious freedom in doing so. There is a lot of changes coming 
if that bill becomes law. So just a heads-up on that.
    Now we are living in a time right now that history is going 
to document. I don't know how much more this little experiment 
in self-government is going to go, but history will document 
what is now coming out. You had a former member of the Trump 
campaign who was lured overseas to meet with an FBI or DoD--
apparently gets money from different sources--person who 
invited him. He is set up to meet another foreign official who 
tells him the Russians have Hillary Clinton's emails, and so 
that when he shares that with another set-up, then that is used 
to go get a FISA warrant to spy on a campaign.
    We are in an historic area. And what we are seeing in this 
committee as--and I know this was with regard to a different 
thing, but Professor Turley, we are flailing--this committee is 
flailing after the gates opened and the evidence has started 
coming out.
    Now I have seen the chairman react when he feels like 
things are going unfairly, and he forgets some of the rules and 
misapplies some of the rules. And I get the impression if this 
chairman had been set up the way the Trump administration and 
the Trump campaign were by an intel community abuse, a FISA 
court abuse, a DOJ FBI abuse, then I have a feeling that this 
chairman would be reacting far more in the flailing area than 
the Trump administration has been acting.
    They have been done terribly wrong, and I am hopeful we 
will get to the bottom of this. Because if we don't, then this 
will continue. We should have gotten a clue when the FISA court 
order, the application affidavit were released through 
WikiLeaks, letting us know they are using applications with no 
regard for the Fourth Amendment, no particularity as to what is 
to be searched or the things to be provided.
    They just wanted all the information Verizon had on 
everybody, and the judge said, oh, okay, and he signs off. 
Here, you can get everything they have got. That should have 
been the clue. We have got to start having hearings on the FISA 
courts. And I would love to get this same group back and have a 
good discussion on the abuses of the FISA court.
    I am about to come to the conclusion we may need to just 
get done, get rid of them altogether. They have become so 
abusive, and the fact that no FISA court has reacted violently 
to having a fraud committed on the court raises the issue that 
perhaps if we had a FISA judge or more who were part of this 
scam to take down a duly elected President.
    So this is a very important time. Everybody's questions 
will be part of the record, and you need to know that someday, 
after all of this has continued to come out and we get all of 
the truth, what side of history are you on? Were you continuing 
to flail at a candidate you didn't want elected, or are you 
going to help restore a Department of Justice and a court 
system that used to be the envy of the world? Because we are 
sure not right now.
    I yield back.
    Chairman Nadler. I thank the gentleman for yielding. I 
would observe that this Chairman could not be so set up because 
this Chairman never ran a political campaign that had 180 
contacts with a foreign power.
    The gentlelady from Texas is recognized.
    Ms. Jackson Lee. Mr. Chairman, thank you so very much.
    And as a member of the Homeland Security Committee since 
the heinous act of 9/11, I can assure you that the FISA court, 
although there needs to be firewalls, have over the years 
protected this Nation from heinous and horrific terrorist acts. 
It is a fixture that is important, and it has done work that is 
valuable to saving lives in this country.
    Let me, Mr.--Professor Kinkopf--and let me also say to each 
and every one of you, thank you so very much. As a member of 
this committee, hearing your constitutional perspectives is 
much appreciated.
    Let me indicate that recognizing the executive privilege as 
a fixture now in the law, not a constitutional. It is not so 
stated in Article II, but would you say, Mr. Kinkopf, that the 
recognizing executive privilege, it cannot be used, however, to 
interfere with the constitutional prerogatives of the United 
States Congress?
    Mr. Kinkopf. I think that's right. It has to be balanced 
with Congress' authority.
    Ms. Jackson Lee. Thank you.
    Professor Turley, yes or no?
    Mr. Turley. I'm afraid it can. Because a point of privilege 
is that it will sometimes trump committee requests, and so 
courts do balance, but at times that balance favors the White 
House.
    Ms. Jackson Lee. But it is not an absolute bar?
    Mr. Turley. Oh, absolutely. Yes, that's true. Yes.
    Ms. Jackson Lee. And there are potentials where it does not 
act in place? There are potentials? Yes?
    Mr. Turley. Yes. And in fact, this committee and the 
Congress overall prevails in many of these fights.
    Ms. Jackson Lee. I thank you. I need to proceed with my 
questions. Thank you so very much.
    Let me read this, please. ``A final area of conflict 
concerns whether certain key witnesses can be prevented from 
appearing before Congress. The President stated publicly that 
he opposes the appearance of witnesses like Robert Mueller and 
Don McGahn. For his part, Attorney General Barr has stated he 
believed that Mueller should testify.
    ``But regardless of the position taken on these witnesses, 
Congress is again in a strong position to demand their 
appearance. It would prevail ultimately in any litigation, and 
this is a fight that would be excellent ground for litigation 
on the part of the legislative branch.''
    Based on these words, Professor Kinkopf, do you agree that 
nothing should prevent Mr. McGahn from appearing before this 
committee or that the President should not be able to prevent 
that?
    Mr. Kinkopf. Yes, I agree.
    Ms. Jackson Lee. As you well know, Professor Turley, these 
are your words in your testimony. Do you agree that nothing 
should prevent Mr. McGahn from appearing before this committee?
    Mr. Turley. I'd have to agree with that excellent testimony 
that you read, yes. [Laughter.]
    Ms. Jackson Lee. It is good to have scholars in the house.
    Let me also share with you words that were said in July 16, 
2014, and I will ask each of you yes or no. This is testimony 
given, and Professor Turley and I would consider each other at 
least Judiciary Committee friends. We have seen each other in 
this room for a very long time.
    ``The fact that a majority in Congress,'' testimony before 
the Rules Committee, ``can remain silent or acquiesce to 
unconstitutional actions is regrettably nothing new to our 
country. However, such failure of principle does not change the 
character of an unconstitutional act.''
    Professor Shaw.
    Ms. Shaw. I would agree with that statement, yes.
    Ms. Jackson Lee. Professor--forgive me.
    Mr. Rosenzweig. It's okay. Rosenzweig.
    Ms. Jackson Lee. I will get it. Rosenzweig. Just the 
glasses are not strong enough.
    Mr. Rosenzweig. I agree with that testimony.
    Ms. Jackson Lee. Professor Turley.
    Mr. Turley. Yes, I think that's true.
    Ms. Jackson Lee. Professor Kinkopf.
    Mr. Kinkopf. Yes.
    Ms. Jackson Lee. There has been no legislation that has 
dealt with the executive privilege. We have taken it in a 
sacred manner that it works collegially with Article I and 
Article II. In light of our present atmosphere, not that we 
should be raging against this document, but Professor Shaw, 
what legitimate interest does the President have in protecting 
the confidentiality of White House communications or documents 
that may contain evidence of misconduct?
    Now this is being used. Would you answer both that and the 
idea of some sort of congressional framework given to this 
use--seemingly unfettered power of executive privilege?
    Ms. Shaw. Well, so the general underlying sort of theory is 
that the President has a need for and entitlement to 
unvarnished advice from advisers and that it would chill the 
sort of free flow of that advice to too lightly tread into sort 
of those confidential communications.
    But as I said, when there is some threshold showing that 
the materials sought might reveal misconduct, any legitimate 
claim to secrecy I think is quite eroded if not, you know, 
vitiated.
    In terms of the framework, you know, I think it's a 
difficult framework to encapsulate in a couple of sentences. I 
think there are very strong, legitimate, constitutionally 
grounded interests on both sides of the balance, and so it's a 
really fact-specific kind of an inquiry and a balance, which 
is, I think, what is so problematic about the kind of blanket 
assertion that we see here. It's impossible to evaluate the 
strength of the White House's legitimate need and balance it 
against the strength of Congress' legitimate need.
    In the abstract, it needs to be sort of a document by 
document and event by event sort of analysis. But at the end of 
the day, I don't think a blanket assertion of the sort we have 
seen here can possibly withstand scrutiny.
    Ms. Jackson Lee. Which is what is acting and going on at 
this point.
    Quickly, Professor Kinkopf, could you just comment on that?
    Mr. Kinkopf. Sure. I completely agree with Professor Shaw. 
And so, normally, what would happen is the executive branch 
would produce a privilege log that lists the documents being 
withheld and lists specifically as to each document the 
rationale for its withholding. That allows then the process of 
negotiation and accommodation. It allows a court to assess if 
there's an impasse in that negotiation process.
    And the blanket assertions of privilege that we've seen 
from the Trump administration just do not facilitate that 
process.
    Ms. Jackson Lee. I thank you very much. I think that has 
been enlightening for all of us, and I may be judicious in 
looking at legislation dealing with this question.
    Thank you. Thank you very much.
    Chairman Nadler. I think all members of the Judiciary 
Committee should be judicious. [Laughter.]
    Chairman Nadler. Thank you. I now recognize the gentleman 
from Colorado, Mr. Buck.
    Mr. Buck. Thank you, Mr. Chairman.
    We are here today because my colleagues on the other side 
of the aisle are throwing a tantrum over information they want, 
but know they cannot have. Not because Donald Trump says so, 
not because Attorney General William Barr says so, but because 
the law says so.
    It is important to understand that there is no 
constitutional crisis, as the chairman asserted last week. My 
friends on the other side of the dais can only blame themselves 
for the current stalemate with the administration--the 
unreasonable demands, lack of accommodation, and bad faith 
subpoenas.
    I want to highlight three reasons we are faced with the 
current impasse. First, the majority rejected an effort to work 
with Republicans to tailor a subpoena most likely to lead to 
the production of documents that Democrats say they want. On 
April 18th, the chairman issued a subpoena for the full, 
unredacted Mueller report. This subpoena presented the Attorney 
General with two terrible and unfair choices, violate Federal 
law and disclose grand jury information to comply with the 
subpoena or uphold the law and only partially comply with the 
subpoena.
    At the subpoena markup, I offered an amendment to carve out 
grand jury materials from the chairman's subpoena. This would 
give the Attorney General a subpoena he could legally comply 
with and would have resulted in the production of documents. So 
how did Democrats respond to that common sense approach? The 
chairman spoke against my amendment. Democrats voted in lock 
step with their chairman. And my amendment was defeated on a 
party-line vote.
    What is ironic here is the Democrats' remarkable flipflop 
on this issue. They voted to protect grand jury materials on 
March 14th, when they voted for the chairman's resolution on 
the floor, but then voted against the same protection in 
committee.
    Attorney General Barr predictably could not comply with the 
issued subpoena. That was not his choice. It is the law. The 
blame for this lies with the majority.
    The second reason we have an impasse is because of the 
chairman's unreasonable demands in terms of timing. It took 
Special Counsel Mueller and his team 22 months to conduct their 
investigation. That is 675 days. He had the assistance of 19 
prosecutors and 40 FBI agents. His team issued 2,800 subpoenas. 
They executed 500 search warrants. They conducted 500 witness 
interviews.
    They received court orders for 50 pen registers, had 
contact with 13 foreign governments, conducted 2 predawn SWAT 
raids, spent $35 million, and reportedly produced over 1.4 
million pages of documents. How much time did the chairman give 
the Attorney General to comply with the subpoena, to review 
over 1.4 million pages of documents? Thirteen days. Thirteen 
days. That is it.
    If Democrats were acting in good faith, you would have 
asked only for what you knew the Attorney General could legally 
provide, and you would have given the Attorney General 
sufficient time to process the request. Before the oversight 
counsel noticed a markup to hold Eric Holder in contempt of 
Congress, Mr. Holder was given 174 business days to comply with 
a subpoena. Congress even gave him a second chance by issuing 
another subpoena. How many business days did Chairman Nadler 
wait before noticing a markup to hold Attorney General Barr in 
contempt? Three business days.
    When the majority uses unreasonable timeframes in a 
subpoena and then moves so quickly toward contempt, it shows 
the motive. It is not to obtain information, but rather to pick 
a fight.
    Finally, my friends are to blame for the current impasse 
because the chairman and the majority are playing fast and 
loose with the facts and misrepresenting precedent. Professor 
Turley, the Judiciary Committee issued a subpoena to Attorney 
General Barr. Is that correct?
    Mr. Turley. Yes.
    Mr. Buck. And when considering the subpoena, does the 
Attorney General have to comply with the Federal Rules of 
Criminal Procedure 6(e) and how to handle grand jury material?
    Mr. Turley. Yes.
    Mr. Buck. If the Attorney General released grand jury 
material to this committee without a court order allowing him 
to do so, who would be liable for that action?
    Mr. Turley. Well, he would be in violation of Federal law. 
Also, some of this material beyond Rule 6(e) dealing with 
ongoing cases may involve prosecutions like that of Roger 
Stone. Some of that material may be under court order not to be 
released because they're ongoing prosecution. So, once again, 
to release that information, he has to go to a different judge 
to ask if the information can be released.
    Now all of that states the obvious, and that is he's 
between the horns of a dilemma here if the choice is to comply 
with Congress and violate standing court orders or Rule 6(e). 
And I think that's what caused this--this obvious conflict 
between two branches.
    Mr. Buck. And I heard earlier one of my colleagues on the 
other side of the aisle mentioned the President waiving 
executive privilege by saying that he wants to be transparent. 
Is that a waiver of executive privilege?
    Mr. Turley. No, the waiver--the Mueller--public Mueller 
report itself is a giant waiver----
    Mr. Buck. No, I am just saying if he holds a press 
conference and says ``I want to be transparent,'' has he waived 
executive privilege?
    Mr. Turley. No, it's not. But I also don't believe that the 
administration is claiming that the public report itself is 
subject to executive privilege. What they're claiming is that 
the subpoenaed material, the stuff that was not published or 
released, is subject to this preventive executive privilege 
assertion.
    Mr. Buck. Have you ever reviewed 1.4 million documents?
    Mr. Turley. Well, my tenure piece was pretty long, but not 
quite that long. Yeah.
    Mr. Buck. Okay. All right. Thank you.
    I yield back.
    Chairman Nadler. I thank the gentleman for yielding.
    I now recognize the gentlelady from California, Ms. Bass.
    Ms. Bass. Thank you, Mr. Chair.
    This is a question to the entire panel. The President 
recently declared that he is fighting all subpoenas issued by 
Congress, and I wanted to know in all of your different 
government experiences, have you ever heard a President say or 
do something like that?
    Ms. Shaw. If I should start, Congresswoman? No, I have not. 
I will say that I do think that background fact is relevant to 
this committee's task, but equally relevant, if not more 
relevant, I think, is the conduct of the executive branch vis-
a-vis this committee's request. And that conduct does seem to 
have been quite consistent with that sort of baseline decision 
to essentially resist completely cooperation with this 
committee's oversight undertakings.
    Ms. Bass. Thank you.
    Mr. Rosenzweig. I would agree it is a unique--a unique 
circumstance. Kerry Kircher, who was the general counsel of the 
House under Speaker Boehner and Speaker Ryan, and before that 
deputy general counsel in both Republican and Democratic 
administrations, said nobody likes--in the executive branch 
likes congressional oversight. But heretofore, everybody 
recognized it had its place. You mostly argued about degrees.
    Now we're not arguing about degrees anymore. We're arguing 
all or nothing, and that's a significant escalation. This is a 
unique circumstance.
    Ms. Bass. Thank you.
    Mr. Turley. I would have a little more nuanced view on this 
because this is not the first time a White House has defied 
Congress. During the Obama administration, during the Clinton 
administration, there was defiance of this body. In my view, 
they were wrong in their position----
    Ms. Bass. Well, the question is all subpoenas.
    Mr. Turley. No, no. I've already been critical that I think 
that that--the assertion is wrong-headed. It cannot be 
sustained in its current force. What they're relying on is an 
opinion by Janet Reno that made a similar type of preventive 
type of assertion. That's never been tested in court.
    Ms. Bass. Thank you.
    Mr. Kinkopf. That preventive assertion was with respect to 
a specific subpoena. Never before has there been a blanket 
assertion that an administration will stonewall all subpoenas 
and all requests for documents. And when I think of a word to 
describe that, the only one that comes to my mind is 
contemptuous.
    Ms. Bass. Can executive privilege be invoked because the 
President believes Congress has a political agenda? So have you 
ever seen executive privilege invoked because of that opinion?
    Mr. Kinkopf. Me?
    Ms. Bass. Yes.
    Mr. Kinkopf. So, no. If Congress' only motive is a 
political motive, that's not a legitimate legislative interest. 
But the fact that Congress might have political motives in 
addition to legislative motives is not only--not only doesn't 
vitiate, it's not surprising. It is the premise of the 
Constitution that both Congress and the President will have 
political motives when they act.
    So that motive alone doesn't tell us anything. The only 
question is do you have a legitimate interest as well? And in 
this instance, you do.
    Ms. Bass. And Mr. Rosenzweig, I would ask you the same 
question as well. Can executive privilege and have you seen it 
in your experience be invoked because of a President believing 
that Congress has a political agenda?
    Mr. Rosenzweig. No. That--that would be most unusual. As 
Mr. Kinkopf said, Congress always has some political motive. 
That, after all, is what you're here for. But here, the 
committee clearly has legitimate interests both in, as the 
Chairman said, in examination of Russia's role in the 2016 
election, what to do about it in the future, the President's 
interactions with the Department of Justice. All of those are 
perfectly legitimate legislative matters.
    The fact that they--in addition, this occurs in a political 
environment is simply the necessary consequence of the fact 
that government is run by politicians.
    Ms. Bass. So as we said, ordinarily, Congress tries to 
avoid resorting to subpoenas in the first place, but we have 
seen a troubling pattern with this administration, where our 
requests for information are just ignored altogether.
    For example, the administration has repeatedly refused to 
respond to our document requests on topics like its refusal to 
defend the Affordable Care Act in court, its failure to enforce 
the Voting Rights Act, or its cruel policy of separating 
children from their parents at the border.
    Professor Shaw, would that have been normal behavior in the 
White House counsel's office, and can you recall any other 
example similar to that?
    Ms. Shaw. I would say absolutely not. I think it is 
certainly customary for White Houses to attempt to narrow 
requests, to sometimes find themselves unhappy with requests, 
but to just ignore repeated requests from congressional 
committees is something that I don't believe there is any 
precedent for, no.
    Ms. Bass. Well, I think my colleagues on the other side of 
the aisle suggested that maybe the administration didn't have 
enough time to respond, that there were a lot of documents. And 
so how long generally would be reasonable to respond?
    Ms. Shaw. So I agree that this committee has moved quickly 
beyond the initial sort of request stage to subpoena, to then 
the contempt vote. But I think--but that was and is, to a 
degree, justified by the total lack of response from the 
administration.
    So I think that some fairly dramatic step on the part of 
the committee was appropriate to counter what I view as a very 
dramatic step of complete noncompliance. Responding to try to 
narrow requests is absolutely customary, but a failure totally 
to respond and to produce any sorts of documents, that, I 
think, is a quite extraordinary step and I think largely does 
justify an escalation on the part of the committee.
    Ms. Bass. Mr. Rosenzweig? Oh, is my time up?
    Go ahead. Could you----
    Chairman Nadler. The gentlelady's time has expired. The 
witness may answer the question.
    Mr. Rosenzweig. I would agree with the professor, and I 
would also add that, of course, in cases of large volume, this 
committee and criminal investigations as well often receive 
documents on a rolling basis in which you begin your production 
and you explain that there are a lot. It will take us a few 
weeks to do it or a few months. And that sort of accommodation 
would also be very reasonable.
    My understanding, it, too, has not been put on the table by 
the Department.
    Chairman Nadler. The gentlelady's time has expired.
    The gentleman from Arizona, Mr. Biggs.
    Mr. Biggs. Thank you, Mr. Chairman.
    Thank you to all the witnesses for being here today.
    Executive privilege is a critical protection for the 
executive branch in our separation of powers scheme. And if 
presidential advisers know that their candid advice is subject 
to subpoena by political opponents, the effect will be that 
advisers are less willing to give candid advice, as Professor 
Shaw has previously testified today.
    However, invoking privilege preventing access to documents 
should be done sparingly and err on the side of transparency. 
But nonetheless, congressional overreach in the form of abusing 
the oversight process and using the legal process for political 
purposes is also a genuine and legitimate concern, and that is 
exactly what this chairman has been doing.
    I am concerned with the effect of the chairman's actions on 
this institution. As I iterated last week, there are so many 
other things that could have been brought before this committee 
rather than a contempt hearing and citation. Open hearings with 
Mr. Barr, who was willing to come and testify, who testified in 
the Senate. Mr. Rosenstein or Mr. Mueller, a closed hearing 
with Barr, Rosenstein, and Mueller, et cetera.
    Well, by submitting a sloppy subpoena, a subpoena that was 
overly broad, unenforceable demands, the chairman has risked 
doing lasting and real damage to the Judiciary Committee in the 
House of Representatives because bad facts make bad law. So I 
also want to comment on something that Ms. Shaw just testified 
to, and she was kind of ameliorating something that she said in 
her written statement.
    She said, ``One of the categories of information--'' This 
is from page 10 of her statement. ``--presently sought by the 
committee appears so broad as to put the executive branch 
officials to a nearly impossible task. The third item on the 
committee's subpoena consists of all documents obtained and 
investigative materials created by the special counsel's 
office.''
    And we know that the investigation involved more than 2,800 
subpoenas, 500 warrants, 250 communication records orders, and 
over 500 witnesses. What she doesn't mention is that it also 
produced 1.4 million documents.
    ``In light of this volume, the committee cannot in good 
faith expect compliance. Accordingly, the burden is on the 
committee to substantially narrow this aspect of its request.''
    Contrary to what Mr. Rosenzweig just testified to, Ms. Shaw 
has written that the burden is on the committee to 
substantially narrow this aspect of its request. If this 
committee were willing to accept rolling, rolling submission of 
documents, why did it not so state and why did it pull the plug 
on accommodation negotiations with Mr. Barr and his office?
    This committee--Ms. Shaw continues, ``The committee appears 
to believe that the executive branch has essentially withdrawn 
from the process of negotiation, providing affirmative 
authorization for Congress to do the same by moving quickly to 
subpoena and then contempt vote. These developments do not, 
however, relieve the committee of its obligation to continue to 
negotiate, to frame requests with specificity and care and, 
where possible, narrowly, both to potentially achieve some sort 
of resolution outside the courts and to allow the courts to 
adjudicate a narrow dispute if and when one party invokes their 
jurisdiction.''
    We have rushed instead in this body--as my colleague from 
Colorado, Mr. Buck, so eloquently stated, we have rushed to 
invoke the court's jurisdiction by hurriedly issuing a poorly 
drafted and overbroad subpoena, which, by the way, this 
committee in its hearing last week attempted to narrow the 
scope of the subpoena by amending the motion to hold in 
contempt.
    Think about that. You have given Mr. Barr a subpoena. You 
have demanded all documents. And then, when it comes time to 
hold him in contempt, you say, well, we didn't mean this type 
of information. Well, then how in the world do you think he 
could be held in contempt?
    Using the committee's oversight authority and subpoena 
authority for partisan political reasons, refusing to work with 
DOJ to narrow the request for information that is legitimately 
within our jurisdiction, and putting on show hearings demanding 
that the AG submit to staff questions and then later holding 
him in contempt damages the credibility of this committee.
    Issuing a subpoena that is overtly overly broad and 
attempting to narrow it when you are holding the person in 
contempt not only is sloppy, but it shows that this is being 
done for a partisan purpose to undermine, to pick a fight, and 
not to get the documents, not to get at the truth, especially 
when this chairman refuses to go down and look at the documents 
that have been provided to him with only 2 percent of the 
documents even being redacted.
    With that, my time has expired.
    Chairman Nadler. The time of the gentleman has expired.
    The gentleman from New York, Mr. Jeffries.
    Mr. Jeffries. Thank you, Mr. Chair.
    Mr. Rosenzweig, in your opinion, does the House Judiciary 
Committee have a legal basis for seeking disclosure on a 
confidential basis of the grand jury materials that are subject 
to Rule 6(e)?
    Mr. Rosenzweig. I believe it does. I believe that would be 
strengthened if impeachment proceedings were to begin. But I 
believe that the McKeever case is distinguishable on the 
grounds of this--this committee's superior legislative 
interests.
    Mr. Jeffries. Now separate and apart from the question of 
impeachment proceedings, the chairman has previously announced 
that this committee will pursue an inquiry on three different 
subjects. One, obstruction of justice; two, abuse of power from 
the administration; three, the culture of corruption that could 
possibly exist at 1600 Pennsylvania Avenue.
    Do those three independent subjects provide a basis for 
which we should have a firm foundation to seek this grand jury 
material?
    Mr. Rosenzweig. In my judgment, yes. I would say that all 
of those are suitable and cautious preliminary steps in 
anticipation of the possibility of considering impeachment. And 
therefore, this committee has not only a legitimate oversight 
interest, but one of the highest constitutional moment.
    Mr. Jeffries. Thank you.
    Professor Shaw, does executive privilege cover 
communications the President has with private citizens who do 
not work at the White House?
    Ms. Shaw. I don't believe so. No, Congressman.
    Mr. Jeffries. Does anyone on the panel disagree with that 
position?
    Mr. Turley. Well, I'm not too sure how I'd answer that. In 
my testimony, I get into the question of attorneys, private 
attorneys, and that's a difficult issue that I discuss in the 
testimony. A court could very well create new law that this 
committee would not welcome if you push that issue.
    Mr. Jeffries. Okay. Professor Turley, would the assertion 
of executive privilege cover communications between the 
President and Corey Lewandowski, who is not an attorney?
    Mr. Turley. No, I think that would be a disclosure to a 
third party. Although as I mentioned in my testimony, when it 
comes to waivers to third parties, the courts have been 
somewhat restricted in how far they'll allow that waiver to go.
    The Espy case was referred recently. The court said quite 
clearly they will not ``lightly infer'' a waiver when it comes 
to executive privilege.
    Mr. Jeffries. Roger Stone is not an attorney. Correct?
    Mr. Turley. I have no idea, unfortunately.
    Mr. Jeffries. Okay. We can stipulate that he is not. So I 
would assume that executive privilege does not blanketly cover 
communications with Roger Stone.
    Is Donald Trump Jr. an attorney?
    Mr. Turley. Once again, I have knowledge of their 
background.
    Mr. Jeffries. We can stipulate that he is not. I would 
assume that a blanket assertion of executive privilege does not 
apply with any degree of reasonable force to Donald Trump Jr.
    Is Paul Manafort an attorney?
    Mr. Turley. Once again, I don't know.
    Mr. Jeffries. Okay. Let us stipulate that he is not. I 
would assume that the assertion of executive privilege does not 
in a blanket fashion cover communications with Paul Manafort.
    Chris Christie is no longer a practicing attorney. Is that 
correct?
    Mr. Turley. I--once again, I have no idea what his practice 
is.
    Mr. Jeffries. Okay. Yeah, I would assume that the assertion 
of executive privilege does not apply in a blanket fashion to 
him either.
    Now, Professor Shaw, in the context of this question of 
waiver, it does appear that several White House employees 
talked to Bob Mueller and his investigators in the context of 
the preparation of the Mueller report without the 
administration asserting executive privilege. Is that right?
    Ms. Shaw. I believe that's right, yes.
    Mr. Jeffries. And so Hope Hicks talked to the Mueller 
investigators without the assertion of executive privilege. 
Correct?
    Ms. Shaw. That's correct.
    Mr. Jeffries. And Sarah Sanders talked to the Mueller 
investigators without the assertion of executive privilege. Is 
that correct?
    Ms. Shaw. That's correct.
    Mr. Jeffries. And I even think that Don McGahn, the White 
House counsel, talked to the Mueller investigators without the 
assertion of executive privilege. Is that correct?
    Ms. Shaw. Yes, also correct.
    Mr. Jeffries. And so what impact, if any, does the fact 
that the administration did not see fit to assert executive 
privilege in the context of an incredibly public investigation 
that the President tweets about every other day, but failed to 
assert executive privilege and now after the fact want to put 
forth this blanket assertion?
    Ms. Shaw. You know, again, I think it's a difficult 
question. I think the argument would be that to choose not to 
assert executive privilege in the context of an investigator 
inside the executive branch, which, of course, Special Counsel 
Mueller was inside the Department of Justice, is different and 
doesn't necessarily waive the opportunity to at a later date 
assert the executive privilege as against, say, Congress.
    As I said, I don't--I am not predicting that the White 
House would absolutely prevail in that argument, but I do think 
that it is a close legal question. And it is not at least 
evident that by failing to object at this earlier juncture that 
the White House has for all time it necessarily waived 
privilege as to all the contents of those communications when a 
body like this committee is seeking them.
    Mr. Jeffries. Okay. Seventeen different intelligence 
agencies concluded that Russia attacked our democracy as part 
of an effort to try and artificially place someone at 1600 
Pennsylvania Avenue. Does Congress have a strong public 
interest in getting a full understanding of what happened, how 
it happened, and how we can figure out how to prevent that from 
happening again?
    Ms. Shaw. I would say absolutely. An incredibly strong 
interest, yes.
    Mr. Jeffries. Thank you. I yield back.
    Chairman Nadler. I thank the gentleman for yielding.
    The gentleman from Virginia.
    Mr. Cline. Thank you, Mr. Chairman.
    Well, here we are again at the latest installment of the 
dramatic miniseries, the impeachment by any other name but 
impeachment. Masking as oversight, this committee has continued 
to drag on with questions about the Mueller report, what is 
behind the redactions, and the lack of attention to the actual 
issues that the American people are concerned about--securing 
our borders and addressing the immigration crisis, the opioid 
epidemic, as was addressed earlier, and as my colleague just 
mentioned, Volume 1 of the Mueller report spells out in detail 
just how Russia tried to influence our elections.
    The previous administration didn't do anything to address 
it. The current administration and this Congress need to work 
together to address it.
    But what we have instead is this committee, driven by 
animosity for the President, pushing to see what is behind the 
redactions, and yes, I would love to see what is behind the 
redactions, in compliance with the law, but that is not what 
the subpoena said. The subpoena said the entire Mueller report 
must be made available, in violation of Federal law.
    So we are waiting to see how that works itself through the 
courts. And as was testified to by Mr. Turley, we have played 
our weakest hand. So what is happening now?
    Well, now we are starting to hear that the Attorney General 
wisely has started to ask if we got it so wrong on the 
collusion question, then what actually did happen with the FISA 
court? What actually did happen with the investigation? And he 
has appointed U.S. Attorney Durham to investigate what exactly 
happened through that process. It is very appropriate that he 
has done that.
    But instead of supporting a U.S. attorney who has done work 
in previous administrations on both sides of the aisle, what we 
see is this committee trying to take the reputation of a good 
man, this Attorney General, and drag it through the Washington 
mud, claiming that by not releasing grand jury testimony, he is 
somehow in contempt of Congress.
    Well, he is actually complying with the law, not trying to 
thwart the enforcement of it. And this committee should be 
appreciating rather than trying to muddy up the reputation of 
the Attorney General.
    So I want to focus on an example of just how ridiculous 
this whole process has become. Mr. Chairman, you laid out--in 
the case for contempt, you raised three complaints against 
Barr, and these were outlined, Mr. Turley, in your article in 
The Hill, and I would ask you to elaborate on them.
    The complaints are a failure to release an unredacted 
report, which you have addressed and which is in the contempt 
citation, even though he is prohibited by law from doing so; 
making false statements; and his refusal to follow a subpoena. 
Can you expand on why those two were left out of the contempt 
citation?
    Mr. Turley. No, I don't know why the committee left out the 
common allegation that General Barr lied repeatedly to the 
committee. I disagree with those allegations. I don't see where 
perjury occurred.
    In terms of his record, I believe that he fulfilled his 
commitment to the Senate Judiciary. He said he would release as 
much as possible as fast as possible. In his testimony to the 
Senate, he said that he asked Mueller to identify grand jury 
material so that they could rapidly release the report.
    I'm still quite surprised that that request made by both 
Mueller's superiors was effectively ignored. The report came 
without identification of grand jury material, and that slowed 
the process. But in the end, the public report was 92 percent 
unredacted. To be honest, I thought that was a remarkably high 
percentage, given the nature of this material. A report given 
to select Members was 98 percent unredacted.
    My assumption then is that the grand jury material 
represents about 2 percent of the redactions. On that material, 
I can't imagine a court agreeing with some of the statements 
made here about his ability to release it. I tell my students 
all the time that only bad gamblers and bad lawyers focus on 
the prize and not the cards in their hand. This is not a good 
card to go to a court with.
    Mr. Cline. Thank you, Mr. Chairman. I yield back.
    Chairman Nadler. I thank the gentleman.
    The gentleman from California, Mr. Lieu.
    Mr. Lieu. Thank you, Mr. Chair.
    Let me just clarify that the Trump administration is not 
just denying requests from this committee. It is every single 
committee. So they are hiding information on every issue.
    Right now, we have got a committee trying to seek 
information on why the President and Bill Barr are suing to 
eliminate healthcare coverage for people with preexisting 
conditions. We can't get that information. So let us just be 
clear of what is going on.
    So, Professor Turley, I have a question for you about the 
waiver of executive privilege. Attorney General Bill Barr gave 
some Members of Congress, including the Republican ranking 
member of this committee, access to 98 percent of the report. I 
cannot see 98 percent of the report.
    Has the privilege been waived because Bill Barr clearly let 
Members of Congress actually see a lot more of this report than 
I could? So would that have waived executive privilege?
    Mr. Turley. No, it's an excellent question. We haven't 
really seen a test on that because it's sort of a conditional 
waiver. It allows for some access. We see that in other cases 
involving classified evidence, for example.
    The question I would pose to the committee, the caution I 
would give them is to not look at this through your eyes or the 
President's eyes, but look through the eyes of a judge. When 
she sees this, how is she likely to draw this line? Judges are 
loathe to create new law in this area.
    My guess is that the court will find that that is a 
conditional waiver for those Members, that it's the lesser is 
contained in the greater. But honestly, this has not been 
tested in court, so you can't say for certain how it would come 
out.
    Mr. Lieu. Thank you.
    And then just want to make sure that are you aware that we 
held Bill Barr in contempt not because he didn't provide Rule 
6(e) materials? You are aware of that, right? Because that 
action excluded Rule 6(e). We are very aware of how it works.
    The way--because I am a former prosecutor, right? The way 
you do subpoenas is you have a broad subpoena, and then the 
opposing side said, okay, well, I can provide documents A, B, 
and C, but with respect to documents X, Y, and Z, here are the 
reasons we can't provide it. And then you go forward.
    So what if a judge actually looked at what we actually 
negotiated and tried to ask for versus just what the actual 
subpoena says?
    Mr. Turley. Again, that's--again, that's a reasonable point 
to make. I must confess that if I were the judge, I would not 
be so inclined. What I would see is that in March of this year, 
this body did put forward a resolution that had two conditions. 
One, the first one was written nicely and said you should 
release publicly the report as much as possible. The second 
condition said we want the full report given to Congress, with 
no distinction for Rule 6(e).
    This committee has also repeatedly said it wants a full and 
unredacted report. And these questions are so close that you 
have to be careful in your language. I think the subpoena was a 
mistake the way it was drafted, honestly, because I think a 
court is going to look very closely at that and say, look, 
there's been this mantra that you want the full and unredacted 
report.
    And also the time you gave Barr, I have to tell you, I 
think judges are not going to like. They're going to see over a 
million pages of documents. They're going to see over a dozen 
cases ongoing that were involved, and I think that most of 
those judges would say I would not give him that limited amount 
of time.
    And judges deal with these issues all the time. They 
produce indexes. They do reviews. I think the time you gave 
Barr will be viewed by Federal judges as insufficient.
    Mr. Lieu. Thank you.
    And Mr. Rosenzweig, I would like to ask you some questions 
about obstruction of justice. You are a former Federal 
prosecutor. Correct?
    Mr. Rosenzweig. Yes.
    Mr. Lieu. And you were the former Republican investigative 
counsel on the House Transportation and Instructure Committee. 
Correct?
    Mr. Rosenzweig. Yes.
    Mr. Lieu. And then you also signed on to a letter now with 
over 900 former prosecutors saying that if anybody else in 
America had been faced with this evidence on obstruction of 
justice, they would have faced multiple felony charges if they 
weren't Donald Trump?
    Mr. Rosenzweig. I signed that letter, yes.
    Mr. Lieu. Okay. And that is because under the obstruction 
of justice statute, it is really quite broad, right? You don't 
actually have to complete an obstruction of justice act. You 
just have to endeavor to try to obstruct justice?
    Mr. Rosenzweig. That's exactly right. The statute says 
endeavor to obstruct, and typically, such obstructions fail. 
Otherwise, we wouldn't--if they succeeded, we wouldn't know 
about them.
    Mr. Lieu. So it wouldn't really matter that Don McGahn said 
no. What mattered is if Donald Trump gave the order to obstruct 
justice?
    Mr. Rosenzweig. That's exactly right, sir.
    Mr. Lieu. Secondly, under the obstruction of justice 
statute, there is no requirement you have to commit a second 
underlying crime in order to be guilty of the crime of 
obstruction of justice. Isn't that right?
    Mr. Rosenzweig. That's right. Many people would be very 
surprised to learn of that requirement since they languish in 
jail right now on that ground.
    Mr. Lieu. And in fact, lots of people get prosecuted for 
obstruction of justice because they want to protect a family 
member or a friend, or they are afraid of embarrassment from 
the investigations?
    Mr. Rosenzweig. Or political reasons as well, yes.
    Mr. Lieu. Okay. So, really, Bill Barr's theory that the 
President had to have actually committed criminal conspiracy 
with Russia is pretty cockamamie when it comes to obstruction 
of justice.
    You don't have to answer that. I want to ask you one more 
question on obstruction of justice----
    [Laughter.]
    Mr. Rosenzweig. Okay. I didn't want to characterize it.
    Mr. Lieu [continuing]. Which is the President would not 
have known if Michael Flynn, Paul Manafort, or others may have 
committed underlying crime. So with respect to stopping 
investigation against them, that clearly would have been 
obstruction of justice, whether or not the President believed 
he, himself, had done anything wrong? Is that----
    Mr. Rosenzweig. That's correct. You can obstruct justice by 
obstructing an investigation into a third party. It's not only 
limited to obstructing an investigation of your own conduct.
    Mr. Lieu. Thank you. I yield back.
    Chairman Nadler. Would the gentleman yield? Would the 
gentleman yield?
    Mr. Lieu. I will yield to the chair.
    Chairman Nadler. Thank you.
    Just, Professor Rosenzweig, you were shaking your head 
vigorously a moment ago when Professor Turley was answering 
questions from the gentleman from California about how a judge 
would regard the contempt with reference to the fact that 6(e) 
was in the original--not the contempt citation but in the 
original subpoena, but we would not have asked for it because 
we made clear that we were just seeking his cooperation in 
getting it. Could you comment on what you were shaking your 
head about?
    Mr. Rosenzweig. Yes. I guess my thought is that I don't 
think that this Committee's subpoena, it was poorly drafted or 
in any way unusual from the hundreds of subpoenas I have seen 
in my own practice as a prosecutor. You write them broadly, you 
include, as this Committee did in its instructions, a provision 
allowing the recipient to assert a privilege, and you define a 
privilege, as this Committee did, as withheld from production 
pursuant to any law, statute, rule, or policy. So in my view, 
it would have been perfectly appropriate for----
    Chairman Nadler. So that--so that subpoena was not asking 
the attorney general to break a law?
    Mr. Rosenzweig. Yeah, I don't believe it was. He would have 
been perfectly within his rights to respond--here is everything 
I can give you but there is this Rule 6(e) piece that I am not 
going to give you, and I am going to assert that pursuant to 
your own instructions to him.
    Chairman Nadler. Thank you very much. Who is next?
    The gentleman from North Dakota, Mr. Armstrong, is 
recognized.
    Mr. Armstrong. Thank you, Mr. Chairman, and I think 
sometimes we might not--these aren't always ideological 
difference. As somebody who practiced criminal defense in both 
state and federal court for a decade I have a drastically 
different impression of subpoenas being issued than prosecutors 
necessarily do.
    So I just--we just had that discussion about the subpoena 
and about Rule 6(e), so I would start--because I do think 
context matters. So I would start with Professor Turley. Do you 
agree with that back-and-forth analysis we just heard?
    Mr. Turley. No, I don't. I think it is a mistake to compare 
subpoenas used in conventional practice with a subpoena issued 
by a congressional committee. They are different creatures. 
Yes, subpoenas that are issued in litigation are often too 
broad, they are often setting the table for fights. This is not 
some litigant in a state court fighting over a subpoena. You 
have to tie your requests carefully to your authority to demand 
information.
    What I would suggest to my friend is that if Bill Barr had 
actually complied with the subpoena as written he would have 
violated federal law.
    Mr. Armstrong. Thank you.
    Mr. Turley. And this Committee also said, by the way, that 
they believed that Rule 6(e) did not bar Attorney General Barr 
from releasing the information. I think that is also not true.
    Mr. Armstrong. Well, and I have two points to add too, 
because, I mean, this is a political body for various reasons, 
so there are a lot of people on both sides of the aisle that 
have spoken up, in print, on TV, and all of those things. And I 
can tell you that up until the day of the contempt hearing, 
there is nobody out there saying that 6(e) information is not 
supposed to be disclosed. I mean, the narrative and the way 
this was working was the entire unredacted Mueller report.
    So I am just going to do this really quickly. Professor 
Shaw, if Attorney General Barr would have provided a complete 
non-redacted report, would he have violated the law?
    Ms. Shaw. I think the law protects grand jury material. 
Yeah, I would agree with that, yeah.
    Mr. Armstrong. Mr. Rosenzweig, do you agree with that?
    Mr. Rosenzweig. I agree, though I would say that nothing in 
the statute prevents him from asking a court for permission to 
provide that Rule 6(e) material.
    Mr. Armstrong. I agree with that but nothing in the statute 
or authority compels him to do that, and a subpoena surely 
doesn't compel him to go to court.
    Mr. Rosenzweig. A subpoena surely does not compel him to go 
to court.
    Mr. Armstrong. Professor Kinkopf, do you agree with that?
    Mr. Kinkopf. Sure.
    Mr. Armstrong. Okay. So, and then, so I think it is 
important, I mean, this blanket assertion of privilege happened 
the morning of a contempt hearing. I mean, we--this protective 
assertion of privilege happened the morning we were going to 
hold Attorney General Barr in contempt for information that he 
could not provide in compliance to the subpoena, by law.
    And one of the reasons I bring that up, because we have 
talked about this, Professor Turley cited, I think, the total 
report is 98.5 percent available to certain members. Of the 
obstruction side I think it is like 99.9 percent. And the 
reason I am saying this is because when I read all these cases, 
whether it is Holder or Oversight v. Holder, and we are dealing 
with all this, a big portion of the analysis is on research, or 
on accommodation and negotiations.
    And I think Professor Turley talked to it about, you know, 
the questions about conditional waivers. And so we talk like if 
the people on this Committee who have access to that, in a 
secured setting, like that becomes the end of it, but that is 
typically where we would start having this negotiation and 
accommodations, and that is what has happened in prior cases. 
That is what happened in Holder, that is how we worked our way 
through this. And, I mean, when you have one party controlling 
one branch of government and one party controlling the other 
branch of government, there is going to be combat. There is 
going to be back-and-forth. There is going to be those. We saw 
it in the Holder case, and eventually they went to court, and 
there had been documents provided over the course of months and 
months and months.
    But that didn't happen here, and outside of everything 
else, there was no time for that to happen here. This all 
happened in a span of--I mean, a very, very short period of 
time.
    So how do you deal with the negotiation and accommodation 
part of this after you have held a contempt order on a person 
who can't comply with your subpoena?
    And so I will start with Professor Shaw.
    Ms. Shaw. Well, I think the process continues. I think that 
accommodation can be ongoing today and next week, and that was 
true before the Committee contempt vote and I think it remains 
true. So I think that it is incumbent on both this Committee 
and the White House to attempt to, you know, de-escalate if 
possible. I think it is only possible if there is meaningful 
attempt to provide information to the Committee which, as I 
understand it, although I agree that the timeline is short, in 
some ways I presume the decision was made that it doesn't 
matter how much time you give to a party that is providing no 
information. You may as well proceed quickly to the next stage 
of negotiation if there is absolutely no cooperation 
forthcoming.
    Mr. Armstrong. And I don't necessarily disagree with that. 
My point would be that there was no cooperation on either side. 
I mean, we were saying, ``You are providing the whole thing,'' 
and he is saying, ``I can't provide the whole thing.'' And I 
think--I am out of time so I would just say that the 
negotiation and accommodation part would work a lot better if 
the contempt order wasn't in place, and to quote somebody on 
the panel from a hearing we had earlier, I think Congress has 
met the enemy and sometimes it is us. This was in a different 
context but I think we are fully aware of what we are doing, 
how we are doing it, and why it is not the most effective way 
to accomplish our goals. Thank you.
    Mr. Raskin [presiding]. Ms. Garcia.
    Ms. Garcia. Thank you, Mr. Chairman. First of all, thank 
you to all the witnesses for being here. I think most of you 
here will agree that executive privilege serves as a vital 
function in our government's ability to make laws and protect 
our national interests. Without it, presidents and the privacy 
required to make decisions of great national interest would be 
severely limited. Frankly, I don't think any one of us here at 
the table would want to do that, and unlike some of the 
statements that have been made by my colleagues across the 
aisle, we are not here because of animosity to the President. 
We are not here, you know, on the self-described by the 
President, a witch hunt. We are really here to get to the 
bottom of the truth and to take the facts where they lead us.
    I know, for me, as a former judge and a lawyer, there is 
nothing more important in our country than the rule of law, and 
that is what we are here fighting about.
    I wanted to start first, though, to just kind of dispel 
some of the comments that have been made from across the aisle 
that somehow they think we are just all sitting here trying to 
think about impeachment or investigation, some ways to get back 
at the President, and we are not taking care of business.
    This Committee has already heard, in past, the For the 
People Act, which protects our vote and is about election 
reform and ending corruption in government. We have already 
passed a bill about preventing gun violence, protecting 
dreamers and TPS recipients, another bill reauthorizing the 
Violence Against Women Act. We have also looked at the state of 
competition in the health care markets. We have looked at the 
history and enforcement of the Voting Rights Act. We looked at 
the lack of diversity among patent holders.
    We have looked at the Equality Act, protecting all LGBTQ 
community. We looked at the Equal Rights Amendment, at hate 
crimes and the rise of white terrorism. We also have been 
looking at the family separation policy, because, yes, there is 
a crisis at the border, but it was created by this President. 
We have looked at the National Emergencies Act. We have looked 
at the proposed Sprint/T-Mobile merger and the oversight of the 
U.S. Patent and Trademark Office.
    We have been working but we also don't lose sight of the 
responsibility that we have under the Constitution, legally and 
ethically, to have oversight over the actions of this 
Administration. So it really concerns me that some would like 
to twist what we are trying to do, because, frankly, if we 
don't do it then who will? And for me I take that 
responsibility very, very highly.
    And, Ms. Shaw, I wanted to start with you, because you made 
a comment in your testimony that kind of intrigued me. You said 
that there may not be a waiver of executive privilege in intra 
transfers among the executive branch. What does that actually 
mean and how broad is that?
    Ms. Shaw. So when the comment is made that the President 
didn't assert executive privilege to prevent, say, his White 
House counsel from cooperating with the special counsel, I 
think there is an open question whether he would even need to 
assert executive privilege. Instead, you know, he could have 
just directed his White House counsel not to cooperate.
    Ms. Garcia. You are talking just about the counsel.
    Ms. Shaw. Just his immediate staff members or any executive 
branch official.
    Ms. Garcia. Having been in government many years, when you 
say intra-agency I just wanted to make sure that the public, 
who is listening, who may not understand the complexities of 
the bureaucracy, if you will, everything from the White House 
on down. And you don't mean any agency.
    Ms. Shaw. Well, so I think as an intra-executive, right, 
just within the executive branch, so allowing an executive 
branch official to talk to another executive branch official--
--
    Ms. Garcia. Does that include Department of Justice 
lawyers?
    Ms. Shaw. Yeah. So that would be----
    Ms. Garcia. Does that include the investigators we have 
talked about earlier?
    Ms. Shaw. Yes, I believe so. So I think my point was that 
talking to all of those categories of individuals who are all 
executive branch officials of some sort presents different 
questions than allowing the dissemination to another branch of 
government of the same information.
    Ms. Garcia. Okay. You also say, in your written testimony, 
that our third category of requested information in our 
subpoena is too broad. The Committee has offered to narrow its 
request exactly as you suggest, including negotiations, and 
again, in its May 10th letter. Do you believe that it is an 
appropriate accommodation?
    Ms. Shaw. Thank you for the opportunity to address that, 
and yes, I did, in my opening statement, or in my written 
statement, suggest that that Category 3 was, in my view, too 
broad, but I now understand that the Committee has if not--I 
think it may have actually abandoned its request for documents 
in that third category in favor of just the documents 
referenced in the report, as opposed to the entire universe of 
documents, and as to that I think that is a perfectly 
appropriate accommodation.
    And if I might just comment on the general exchange about 
the kind of propriety of the breadth of the initial subpoena, 
my view is that it is quite appropriate in that this is an 
iterative process and courts understand that and all the 
participants understand that, that broad requests always get 
narrows, and that, in fact, is the whole game. And so I don't 
think there is anything inappropriate in the face of the 
subsequent narrowing that this Committee has been willing to 
make, in having made an initially broad request.
    Ms. Garcia. Okay, thank you, and I yield back. I think I am 
out of time, Mr. Chairman.
    Chairman Nadler [presiding]. I thank the gentlelady for 
yielding.
    Before I recognize the next member I ask unanimous consent 
to introduce into the records these excerpts from a report by 
the Project on Government Oversight, entitled ``When Congress 
Comes Calling: A Study on the Principles, Practices, and 
Pragmatics of Legislative Inquiry.''
    Without objection.
    [The information follows:]

      

                CHAIRMAN NADLER FOR THE OFFICIAL RECORD

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    Chairman Nadler. The gentleman from California, Mr. 
McClintock, is recognized.
    Mr. McClintock. Thank you, Mr. Chairman.
    Professor Turley, I keep hearing that we are on a 
constitutional crisis. To my mind, a constitutional crisis is a 
matter that our constitutional institutions cannot resolve. Is 
this a crisis or is just the normal tension between the 
executive and legislative branches?
    Mr. Turley. No, it is not a crisis. I mean, there have been 
serious fights with prior administrations. During the Obama 
administration, during the Clinton administration there were 
massive fights.
    Mr. McClintock. So what is the constitutional path to 
resolve this dispute?
    Mr. Turley. Well, I think that all of the witnesses agree 
on some salient points, but one of them is that this is a 
process that usually is resolved through a give-and-take.
    The one thing I would caution again is this discussion 
about how the subpoena was drafted. Understand what you are 
suggesting.
    Mr. McClintock. But, I mean, would we not take this to 
court at some point and say, look, the executive thinks one 
thing, the legislative thinks another. Judiciary, please weigh 
in on this?
    Mr. Turley. Right, but when you go to court with this broad 
subpoena you are guaranteeing to lose----
    Mr. McClintock. I get that, but is that the--we are 
obviously not taking that path. We haven't gone to court.
    Mr. Turley. Right.
    Mr. McClintock. Why haven't we?
    Mr. Turley. I am not sure. I think that, quite frankly, the 
Committee pulled the trigger too fast on contempt.
    Mr. McClintock. Was it possible that the legislative 
branch's case is very, very weak? You have kind of suggested 
that.
    Mr. Turley. Well, I have to say we obviously disagree on 
this point. I would have thrown myself bodily across the 
subpoena to keep it from being signed.
    Mr. McClintock. Yeah, but it has been signed as all----
    Mr. Turley. Yeah.
    Mr. McClintock [continuing]. Water under the bridge, as 
they say. But is this not an impasse that ultimately would 
either be resolved by negotiations between the two sides or by 
recourse through the judiciary?
    Mr. Turley. Well, usually this would be resolved on both 
sides. The question is, by pulling the trigger on contempt did 
you actually interrupt the process, because now you have sort 
of forced us into a formal court proceeding, and----
    Mr. McClintock. I understand that, but my point is there 
are institutional ways of dealing with this impasse.
    Mr. Turley. Right.
    Mr. McClintock. All right. On the protective assertion of 
executive privilege, my understanding is this is simply the 
executive branch saying, ``Wait a second. You guys have just 
asked for 1.4 million pages of material. Some of that is 
illegal for us to release. Some of it would interfere with 
ongoing investigations. We don't know which until we go through 
each one of those 1.4 million pages, so we are going to put a 
protective order on all of it as we go through that, and we 
will release what we can.''
    Mr. Turley. That is right. This is why I hate to come back 
to the way the subpoena was drafted. If you take that to court, 
that is why you are guaranteeing that you will lose to some 
degree. Now people have said, well, this is just a conversation 
we go over broadly.
    Mr. McClintock. I think that is why we are making all of 
this fuss and fury rather than going to the court because I 
think deep down inside our folks know, this is an extremely 
weak case.
    Mr. Turley. Well, but what a court would have to say is 
that, look, a subpoena is a demand for information. You are 
saying you must turn over this information. A subpoena is not 
some casual form of conversation----
    Mr. McClintock. If we thought----
    Mr. Turley [continuing]. To concentrate the mind.
    Mr. McClintock [continuing]. If we thought we had a strong 
case we would be in court in a New York minute.
    Mr. Turley. Right, and I think ultimately this Committee 
will prevail on getting some of this information under the 
subpoena. I think this Committee has an unassailable----
    Mr. McClintock. Right.
    Mr. Turley [continuing]. And compelling right to some of 
this information.
    Mr. McClintock. Well, again, if the Administration had 
released material protected under 6(e), or released material 
involving ongoing investigations, you know for a fact that in a 
heartbeat there would be a criminal referral against the 
Administration, either for releasing grand jury testimony and 
violating 6(e) or obstructing justice by releasing material in 
an ongoing criminal investigation.
    Mr. Turley. Well, one of the things I said earlier is that 
the reason I think this Committee should shift from the--or 
pivot from the redactions is I think you are guaranteed to lose 
some of that fight and create precedent against yourself. But 
more importantly, if the court just agrees on Rule 6(e) and 
ongoing investigation, that is virtually all the redactions in 
the report. The report itself is only 8 percent redacted.
    So you are going to a court and a court is going to look at 
you like, really? You are going to fight on this ground? Where 
you have a really strong argument is on those witnesses and the 
supporting material. But on that I think a court is going to 
view this Committee as premature when it pulled that trigger.
    Mr. McClintock. Why is it illegal to release grand jury 
testimony? Why----
    Mr. Turley. I am sorry?
    Mr. McClintock. Why is it illegal to release grand jury 
testimony?
    Mr. Turley. Well, as the D.C. Circuit said recently, the 
6(e) rule that this body helped draft understands that in grand 
juries a great deal of information is brought in that is highly 
damaging to individuals' reputations. It is not subject to a 
cross-examination. So when I have had clients go into the grand 
jury room I stand outside, and my client has to say, ``I want 
to go talk to my counsel,'' and they have to leave the grand 
jury room. Otherwise, everything can go into that grand jury 
and there are very few rules limiting the prosecutors.
    Mr. McClintock. Thank you.
    Chairman Nadler. The gentleman's time has expired. The 
gentleman from Maryland, Mr. Raskin.
    Mr. Raskin. Mr. Chairman, thank you very much.
    Mr. Rosenzweig, I don't know whether you saw this exchange 
yesterday that took place between U.S. District Court Judge 
Amit Mehta and the President's lawyer, William Consovoy, but I 
just want to read you a little passage and then get your 
reaction to it.
    Judge Mehta said, ``President Trump's finances are not 
subject to investigation?'' ``Correct,'' Consovoy said. 
``Congress can't verify the accuracy of the President's 
financial statements?'' ``Correct.'' The judge says, ``If a 
President was involved in some corrupt enterprise, you mean to 
tell me because he is the President of the United States 
Congress would not have the power to investigate?'' ``No,'' 
Consovoy said, ``because that is not pursuant to its 
legislative agenda.''
    So starting with presidential finances, is there any reason 
to believe the President's lawyer that Congress cannot 
investigate the finances of the President?
    Mr. Rosenzweig. I believe that Mr. Consovoy's statement is 
wrong, and not just wrong but frivolously wrong.
    Mr. Raskin. And what about his suggestion that Congress 
could not investigate criminal activity or corruption in the 
executive branch or on the part of the President?
    Mr. Rosenzweig. That would be contrary to more than 220 
years of congressional precedent, dating back to the first 
investigation of military disaster under President George 
Washington.
    Mr. Raskin. Thank you. Professor Shaw, there is an 
increasing pattern now of the executive branch asserting that 
this body has no proper legislative basis for its inquiries for 
information. In your experience in the executive branch, was it 
normal practice for the government to respond to oversight 
requests by saying, ``What is it to you? What does it matter? 
What is your proper basis for asking this question?''
    Ms. Shaw. Not at all, Congressman, no.
    Mr. Raskin. In other words, it has been the standard 
practice of Congress and the executive branch, for centuries, 
really, for Congress to be able to exercise its broad and 
comprehensive oversight power by asking for information from 
the executive branch, and the executive branch just complying, 
however happily or unhappily.
    Ms. Shaw. I think--I mean, I certainly think there is 
resistance at times, but I think that the general narrative has 
been one of, maybe I could call it grudging compliance, but 
recognition of the legitimacy of the requests.
    Mr. Raskin. Yeah.
    Professor Kinkopf, do you believe that the executive branch 
should be refusing to produce information based on the 
assertion that Congress really shouldn't be asking for it?
    Mr. Kinkopf. No.
    Mr. Raskin. What about the claim that moved some people 
that there are political motives? I know when, you know, the 
tables were turned and the Republicans ran these committees, we 
would often say there were political motives for the Hillary 
Clinton email investigation, for the Fast and Furious 
investigation, for the Benghazi investigation. But did that 
stop the executive branch from overwhelmingly complying with 
the requests?
    Mr. Kinkopf. It did not, no. Of course there are political 
motives involved, and involved on both sides, and the Supreme 
Court itself has said that that is completely irrelevant.
    Mr. Raskin. The existence of political motives, which is 
just in human nature and the nature of a representative 
democratic system are completely irrelevant to what our 
constitutional powers are.
    Mr. Kinkopf. Correct.
    Mr. Raskin. Okay. How do you feel about the assertion made 
yesterday by President Trump's private attorney that Congress 
has no business investigating whether the President has broken 
the law?
    Mr. Kinkopf. His view is preposterous. It--there aren't 
words for what a frivolous assertion that was. It ignores the 
necessary and proper clause, fundamentally, which gives this 
body the authority to enact all laws that are necessary and 
proper for carrying into execution all of the powers of the 
government, including those that are vested exclusively in the 
President.
    Mr. Raskin. I did a little West Law search last night, and 
I could not find a single appellate case in the last century 
where a court has found that Congress has exceeded its 
legislative authority, under the necessary and proper clause 
and other parts of the Constitution, by issuing a subpoena. Are 
any of you aware of an appellate case in the last century, or 
even beyond that, where a court has struck down a subpoena as 
being----
    Mr. Turley. Well, yeah. The Senate Select Committee v. 
Nixon, D.C. Circuit, 1974, rejected the subpoena demand under 
oversight authority. I made a distinction between this 
Committee proceeding under impeachment as opposed to oversight, 
but I would cite that opinion.
    Mr. Raskin. Okay.
    Ms. Shaw. Could I respond to that?
    Mr. Raskin. Yes, Professor Shaw.
    Ms. Shaw. I would just say that I think that at least part 
of the basis of that decision isn't the--doesn't lie just in 
the distinction between impeachment and oversight but lay in 
the duplicative nature of the request, right? The court says 
the House Judiciary Committee, right, is--happened to be, and 
maybe not just happened to be--was, you know, in a 
constitutionally relevant sense, pursuing impeachment, but that 
the Senate committee had no legitimate basis to have two 
committees, essentially, examining the same material.
    So I don't view that decision as resting so thoroughly on 
the, you know, impeachment oversight.
    Mr. Raskin. It was based on the redundancy of the request.
    Ms. Shaw. That is, I think, a fair way to read the opinion.
    Mr. Turley. Can I just ask a question?
    Mr. Raskin. Well, unfortunately, I am down to 30 seconds, 
or 13 seconds now, so forgive me, Professor Turley.
    Do we--does anyone here believe the assertion that the 
executive branch is somehow above Congress' power of inquiry 
and investigation? Does anybody believe that?
    Mr. Turley. Well, it can be if executive privilege 
assertions are valid. I mean, executive privilege assertions, 
when valid, prevent the Congress----
    Mr. Raskin. Okay, but, in general, what we are getting 
today is a statement by the executive branch that it doesn't 
have to participate at all. I mean, is anybody aware of any 
precedent?
    Let me come to you, Mr. Rosenzweig. Are you aware of any 
precedent for the President of the United States telling the 
executive branch not to cooperate with legislative inquiries, 
saying, ``No more subpoenas. Enough is enough''?
    Mr. Rosenzweig. Not in the wholesale manner here. Professor 
Turley is correct that some of the means by which the 
investigation proceeds may be subject to certain privilege 
claims that are narrow in focus, but I have never been aware of 
the executive branch being able to tell the legislative that 
that is not a fit subject for you to be inquiring into vel non.
    Mr. Raskin. Thank you very much. I yield back.
    Chairman Nadler. I thank the gentleman for yielding. The 
gentlelady from Arizona, Mrs. Lesko, is recognized.
    Mrs. Lesko. Thank you, Mr. Chairman. My question is going 
to be for Professor Turley, and I am just going to give a 
little bit of background first.
    Last week, this Committee held a business meeting to 
discuss holding the Attorney General of the United States in 
contempt of Congress. At this meeting, Chairman Nadler 
acknowledged the difference between the intent of the subpoena 
and the language in the actual subpoena itself, which we 
discussed quite thoroughly at that time.
    During a discussion about grand jury 6(e) material, which 
would require the attorney general to break the law in order to 
produce to the Committee, the chairman stated, and I quote, 
``The reason that was in the subpoena was to increase our clout 
in court, in getting the 6(e) material, hopefully with the 
attorney general's support, but it is in no way meant to force 
him to give that support.''
    So my question for you, Professor Turley, from that 
statement do you believe it is safe to assume that the 
chairman's goal all along was to go to court and not engage in 
the accommodation negotiation process, and he went so fast with 
his subpoena, which included 6(e) material?
    Mr. Turley. Well, I don't want to venture to guess about 
the chairman's motivations, but what I will say is that I 
believe it is a mistake, if this is a serious effort to go to 
court, to put a subpoena, a demand for information, that, if 
complied with, would have violated federal law, and you are 
going to a federal court, which tends to be highly protective 
over grand jury material. They are the last group of people 
that will take this casual approach to Rule 6(e).
    So what you have is if that subpoena goes to court you will 
start out, very likely, with creating precedent against 
yourself and being very clear, for all future committees, that 
you don't have this ability. That is the reason I think that 
that subpoena should have been more narrowly tailored.
    Can I make one statement with regard to my colleague's 
statement----
    Mrs. Lesko. Of course.
    Mr. Turley [continuing]. About the earlier case? With 
regard to the Senate Select Committee v. Nixon, as I say in my 
testimony, they do refer to the duplicative aspect of the two 
committees. That is not the holding of the case, in my view. 
First of all, it would be bizarre, in my view, if the federal 
court said you have authority to this information, but because 
those guys got it I am not going to give it to you. I mean, I 
don't know of any case where that would be true.
    What the court was saying was that you are proceeding under 
oversight, those people are proceeding under impeachment, they 
have the material, and, by the way, your case for this 
information is even weaker because Congress has it on the 
impeachment side, and, by the way, it is going to be coming to 
you if they end up impeaching. That is what I believe the court 
would say.
    Mrs. Lesko. Thank you, and Mr. Turley, I have two minutes 
left, and so is there anything else you wanted to add to this 
discussion today, that you haven't said already?
    Mr. Turley. Bless you for that question. The answer is yes, 
and it is this. We have to distinguish between what is being 
discussed here in terms of waiver. I believe that at least 
Professor Shaw and I agree that there is not a waiver that took 
place because of the sharing of information between the special 
counsel and the White House. That position has been stated by 
members of this Committee and advance the position that I 
beseech you not to make in federal court, because you will 
create precedent against this body.
    The question of waiver, then, gets a little more difficult 
when you talk about disclosures to counsel, private counsel. I 
think the President has made a mistake by mixing people with 
different representational statuses and not creating walls. But 
once again, I encourage you not to push that envelope, because 
my guess is that it would create new precedent and you wouldn't 
like it, in terms of future investigations.
    So what does that leave this Committee? It leaves the 
Committee with a lot. You can fight and get these witnesses. I 
think the White House cannot maintain that position. You can 
fight and get these documents. I don't believe they can sustain 
that position. But you will have to hone your targets a little 
more closely to protect precedent. And I will simply repeat 
once again--beware of close calls. This is not a blackjack game 
in Vegas. If you do a close call, that is where you lose 
precedent, and you have an obligation to future judiciary 
committees, just as they had an obligation to you, and I 
suggest don't get into fights that are close calls. You have 
takedown cases here to bring into court. Focus on those.
    Mrs. Lesko. Thank you. I yield back my time.
    Chairman Nadler. The gentlelady from Washington, Ms. 
Jayapal, is recognized.
    Ms. Jayapal. Thank you, Mr. Chairman, and thank you all I 
think this has been a really instructive hearing.
    We were sworn to a constitutional duty to conduct oversight 
of the executive branch, along with many other things, and 
there are many ways to do this--holding hearings, requesting 
documents, issuing subpoenas, and holding people in contempt 
when our requests are ignored.
    There are over 20 investigations into Donald Trump's 
actions where the Trump administration has stonewalled our 
pursuit of the truth on behalf of the American people, and we 
have talked about a few of them. We went through all these 
steps to obtain the unredacted Mueller report, which contains 
information that is vital to protect our elections and ensure 
that the President isn't using his power to cover up certain 
things that he is doing. The President responded with a blanket 
proactive assertion of privilege over the entirety of the 
report and its underlying materials.
    We asked for Trump's tax returns, essential for the public 
to understand whether the President has complied with the law 
and paid his taxes in full, and to understand any financial 
conflicts that the President might have. The Trump 
administration said no.
    We asked for documents to understand alleged abuses into 
the White House security clearance system, abuses that may 
undermine our national security. The Trump administration said 
no. I could go on. There is a list of 20 of them.
    But let me turn to you, Mr. Rosenzweig, because as a career 
prosecutor you were independent counsel for the Office of 
Independent Counsel under Ken Starr, not typically the witness 
that the Democratic majority would call. You are an expert on 
executive privilege. And in your written testimony you explain 
that executive privilege can't be looked at, and you used the 
words ``in a vacuum.''
    Given President Trump's pattern of defying as many as 20 
different efforts to examine his own conduct, would you agree 
that the President's invocation of executive privilege has been 
undertaken in bad faith?
    Mr. Rosenzweig. It certainly is a conclusion. I would be 
reluctant to impute a motive to the President, who I don't 
know, but it certainly is a conclusion that you could 
reasonably draw, either of bad faith or a motive of delay.
    Ms. Jayapal. And, in fact, I think in your written 
testimony you do say that the President's--it suggests that the 
President's resistance--you didn't say for sure but you said it 
suggests that it was taken in bad faith.
    Given the competing interests here, including Congress' 
need to protect our elections, do you think that the blanket 
assertion of executive privilege by the White House, in 
response to our subpoena, is legally justified?
    Mr. Rosenzweig. It does not seem to be, and I think one of 
the reasons that I reached that conclusion is because of the 
context that you laid out in the premise to your question, 
which is that this particular invocation, whatever its merits 
or demerits on its own face, comes in the context of what 
appears to be a wholesale determination not to cooperate with 
any congressional investigation. That certainly colors, for me, 
an assessment of the validity of the invocation and also ought 
to color your assessment of it as well, and I think, frankly, 
would color a court's assessment too.
    Ms. Jayapal. Yeah. Thank you.
    Professor Kinkopf, you, in your response to Representative 
Bass, said, ``Never before has there been a blanket assertion 
that an administration will stonewall all subpoenas and all 
requests for documents. When I think of a word to describe 
that, the only one that comes to mind is contemptuous.''
    And just because there are a lot of people watching this 
who are not legal scholars, don't necessarily understand 
executive privilege, what is the impact for the average 
American of one branch of government being completely 
contemptuous, to use your word, of another branch of 
government's power? What does it mean for their health care? 
What does it mean for their life if that is the case?
    Mr. Kinkopf. So Congress the linchpin of our constitutional 
system, and to stonewall Congress prevents it from performing 
its proper constitutional role, and that puts everything in 
jeopardy. And you are quite right to bring it down to that sort 
of kitchen-table level of our health insurance, of everything 
else that we rely on and are engaged with every day, because it 
does filter down to that level.
    Ms. Jayapal. It is not some distant thing. It is actually 
the idea that we have no oversight or authority over another 
branch's actions, even when they are unlawful. So do you think 
that the actions of President Trump and Attorney General Barr 
in refusing to respond to any congressional subpoenas are 
permitted under the Constitution?
    Mr. Kinkopf. No.
    Ms. Jayapal. Thank you. You have actually--you have a 
footnote in your testimony where you say, ``In this connection 
the President's recent declaration of a blanket intention to 
oppose all the subpoenas is unprecedented, contrary to the 
process that the courts have regarded.''
    So this issue goes beyond partisan politics. It is about 
our democracy, our Constitution, it is about precedent that we 
set, of course, and it is about us being able to do our 
constitutional duties and to have checks and balances.
    And I see that my time has expired and I thank you, Mr. 
Chairman, and I yield back.
    Chairman Nadler. Thank you, the gentlelady for yielding. I 
now recognize the gentleman from California, Mr. Correa?
    Mr. Correa. Thank you, Mr. Chairman. I want to thank the 
witnesses for being here today. You are appreciated. I want to 
say, as a Member of Congress, a member of this Committee, I 
take my job of oversight over a co-equal branch of government 
very seriously, so I thank you for being here for your 
testimony.
    Talking about balance, reasonableness, time to respond, 
Professor Kinkopf, I want to ask you if you think the attorney 
general can legitimately claim he needs more time to conduct a 
review, given that the Committee itself made it clear for 
several months that we had a compelling need to review the 
unredacted documents and reports of the underlying evidence?
    Mr. Kinkopf. With respect to the unredacted documents, or 
the unredacted Mueller report, I think the claim of a need for 
more time is just not credible. As to the underlying documents, 
though, I think it is fair, but only for a very brief window of 
time, and I point this out in my statement. The precedent for 
this is the 1996 assertion, protective assertion by Attorney 
General Janet Reno, and a full response with privilege laws 
specifically identifying what documents are privileged and why 
each document is privileged was forthcoming two weeks later.
    Mr. Correa. You know, we offered, in a May 3rd letter, as 
well as in the April 18th subpoena itself, to prioritize 
specific defined set of underlying evidence. We essentially 
said prioritize which information you could present to us, and 
what other information you need time to present to us.
    What do you think about that information? Does that change 
your response?
    Mr. Kinkopf. Well, I think still it is fair for the 
executive branch to say we need time to look through and see 
what is privileged and what isn't. I do think, though, it bears 
on this question of whether or not you have simply issued a 
subpoena and then, moments later, issue a contempt citation.
    Mr. Correa. Professor Kinkopf, Attorney General Barr's 
letter to the--to President Trump said protective assertion was 
consistent with something that had been done during the Clinton 
administration, but in that case, about two weeks after making 
the protective assertion of privilege, the Clinton White House 
completed its review and released 1,000 pages of documents, and 
produced a privileged log as to the documents it withheld. 
Should we expect the Trump administration to do the same thing 
here?
    Mr. Kinkopf. Yes. I think the Trump administration should 
be held to the same standard. I am not sure that I would say 
that you should expect the Trump administration to do that, 
though.
    Mr. Correa. Well, the point here is we have gone through 
this exercise before. The Administration, under Clinton, 
released 1,000 pages on a timely basis and then gave us a log 
of the information that they were not releasing.
    Mr. Kinkopf. Right. I think the point here is that the idea 
of a protective assertion of privilege is basically an 
expression of exigency, as we don't have time. And it is 
justified only as long as that exigency actually exists.
    So, yes, the Administration might say 1.4 documents is 
going to take us a bit of time to go through, but the Justice 
Department has lots of lawyers and it can go through even that 
large a document request very, very quickly, and it is its duty 
to do exactly that. It is not a proper mechanism for merely 
delaying and deferring the Committee's request.
    Mr. Correa. For the people of this country watching this 
hearing today, what is a protective assertion?
    Mr. Kinkopf. A protective assertion is an assertion that we 
don't--we believe there are privileged documents within the set 
of--within the many boxes that you have requested, but we need 
some time to go through and pick out the privileged documents, 
right, to pick them out, in order to release those that aren't 
privileged.
    Mr. Correa. And do you believe this Committee's offer to 
work with the Administration, to give them time to prioritize 
the documents to be released, in their terms, is that something 
that is reasonable, that a court would look at and say Congress 
is being reasonable. They are being fair with the 
Administration.
    Mr. Kinkopf. Yes.
    Mr. Correa. Thank you very much.
    Chairman Nadler. Will the gentleman yield?
    Mr. Correa. Yes.
    Chairman Nadler. Thank you. I have one question for 
Professor Kinkopf. Professor, Professor Turley suggested that 
we don't have a narrowly tailored purpose for our subpoena, and 
Professor Turley's written testimony acknowledges that where 
Congress has a strong legislative purpose that is a factor in 
assessing executive privilege, but somehow suggested our 
investigation into alleged corruption, obstruction, and abuse 
of power is not sufficiently tied to any legislative purpose.
    Do you agree with Professor Turley's apparent position that 
this Committee does not have a valid legislative or oversight 
purpose in the subpoenaed information?
    Mr. Kinkopf. No, I do not. I couldn't disagree more 
strongly. As I point out in my written statement, and as I 
mentioned in my opening statement, I think Congress has a 
compelling interest in knowing all the details of Russian 
interference in the 2016 election in order to be able to 
legislate intelligently on how to fix the system. I believe 
that this Committee and Congress also have a compelling 
interest in investigating serious and substantiated allegations 
of presidential misconduct.
    And so those interests more than justify your request for 
those documents, and I think then impose on the executive 
branch a duty to say, with specificity, why each document it 
wishes to withhold is privileged, and is privileged in a way 
that cannot allow an accommodation of your compelling interest.
    Mr. Turley. In fairness, can I respond, Mr. Chairman?
    Chairman Nadler. Sure.
    Mr. Turley. That is not my testimony. I say in my testimony 
that, in fact, I believe--I go through each of the elements of 
Wilkinson, the three elements, including purpose, and I say 
that you have satisfied the Wilkinson condition for purpose, 
and I do not believe you would lose on that ground. I say that 
quite clearly in my testimony.
    Chairman Nadler. Well, thank you for clarifying that very 
much. I thank the gentleman for yielding to me. Does the 
gentleman have anything further to say?
    Mr. Correa. No further comments, Mr. Chairman.
    Chairman Nadler. Thank you. The gentleman yields back.
    This concludes today's hearing. I want to thank our 
distinguished witnesses for attending. Without objection, all 
members will have five legislative days to submit additional 
written questions for the witnesses or additional materials for 
the record.
    Without objection, the hearing is adjourned.
    [Whereupon, at 12:53 p.m., the committee was adjourned.]

      

                                APPENDIX

=======================================================================

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                [all]