Congressional Access to Executive Branch Information: Legislative Tools

Publication Date: May 2001

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

Type:

Abstract:

Presidents and scholars identify a variety of constitutional principles and practices to justify the withholding of documents and papers from Congress. No doubt reasonable grounds may be presented for withholding these materials and for preventing some executive officials from testifying before congressional committees. However, these executive arguments are subject to legal and political limits. Executive claims can be offset by equally persuasive arguments that Congress needs access to information to fulfill its constitutional duties. In many cases, legal and constitutional principles are overridden by the politics of the moment and practical considerations. Efforts to discover enduring and enforceable norms in this area invariably fall short.

This report begins by reviewing the precedents established during the Washington Administration for withholding documents from Congress. Close examination reveals that the scope of presidential privilege is often exaggerated. Congress had access to more documentation than is commonly believed and might have had more had it pressed for it. Subsequent sections focus on various forms of congressional leverage: the power of the purse, the power to impeach, issuing congressional subpoenas, holding executive officials in contempt, House resolutions of inquiry, GAO investigations, and blocking nominations, all of which may force executive officials to release documents they would otherwise want to keep private and confidential. Even if Presidents announce perfectly plausible grounds for withholding documents, they may have to comply with the congressional will to achieve other more important goals.

For a comprehensive CRS study of different techniques and authorities used by Congress to oversee executive branch activities, see "Congressional Oversight Manual," CRS Report RL30240 (June 25, 1999). Legal and historical analysis on these issues is covered by Morton Rosenberg, "Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments," CRS Report RS30319 (September 21, 1999).