Accommodation and Contempt of Congress: Two Oversight Case Studies

Accommodation and Contempt of Congress: Two Oversight Case Studies

INSIGHTi

Accommodation and Contempt of Congress:
Two Oversight Case Studies
June 26, 2023
During the first months of the 118th Congress, two House committees have conducted widely followed
investigations that provide instructive case studies of how committees can negotiate and use
congressional authority to conduct oversight of the executive branch and obtain documents in the face of
agency objections. In both cases, while agencies raised specific concerns about sharing specific materials,
the committees were ultimately able to review key documents after negotiating a compromise on access
conditions and threatening agency leaders with contempt of Congress resolutions.
Past practice plays a central role in the conduct of congressional oversight of the executive branch.
Therefore, the strategies and accommodations discussed in this Insight may be valuable precedents for
Congress in future disputes with the executive branch.
The House Committee on Foreign Affairs and the Department of State
On March 28, 2023, Chairman Michael McCaul of the House Foreign Affairs Committee issued a
subpoena demanding that the Department of State turn over a 2021 “dissent cable” regarding Afghanistan
signed by 23 Department of State officials. The cable has become an important element of the
committee’s review of the withdrawal of U.S. forces from Afghanistan, which the committee began
investigating during the 117th Congress. After becoming chair at the beginning of the 118th Congress,
Chairman McCaul renewed requests for documents, including the dissent cable, first made in 2021 and
2022 when he was the committee’s ranking member.
Before and after the subpoena was issued, the committee and Department negotiated the response to a
broader committee request for materials related to the Afghanistan withdrawal. Secretary of State Antony
Blinken resisted sharing the dissent document, telling the committee in a March 23, 2023 hearing, just
before the subpoena was issued, that Department regulations limited sharing of dissent cables “to protect
the integrity of the [dissent channel] process” and avoid any “chilling effect” on future use of the dissent
channel. Despite refusing to immediately share the cable, negotiations continued, with the Department
offering compromises including briefings and summaries and Chairman McCaul pressing for full
disclosure.
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When a compromise was not reached by mid-May, McCaul announced the committee would markup a
contempt resolution against Secretary Blinken on May 24, 2023. Before the scheduled markup, the
Department agreed to allow McCaul and Ranking Member Gregory Meeks to review the dissent cable in
camera (i.e., in private) and with limited redactions that addressed Department concerns regarding
disclosure of the cable’s signatories. In response, McCaul announced that the contempt resolution was on
indefinite hold. Subsequently, the Department allowed all committee members to review the cable.
According to McCaul, this was the first time the State Department allowed Congress to review a dissent
cable.
The House Committee on Oversight and Accountability and the Federal
Bureau of Investigation
During the 118th Congress, the House Oversight and Accountability Committee has been investigating the
“domestic and international business dealings” of President Joe Biden and members of his family.
Republicans on the committee had been investigating these matters while in the minority during the 117th
Congress. As part of this investigation, on May 3, 2023, Chairman James Comer (working with Senator
Chuck Grassley) reported that they had received new information from a whistleblower on relevant
Federal Bureau of Investigation (FBI) records and subpoenaed the FBI, seeking documents including any
relevant FD-1023 forms. The FBI uses the FD-1023, also known as a Confidential Human Source
Reporting form, to collect and catalog information from human sources, including reports not verified by
the FBI. On May 10, 2023, the deadline for the subpoena, the FBI responded and refused to confirm
whether a responsive FD-1023 existed. In its letter, the FBI cited its interest in protecting the integrity of
sources and investigations to support the refusal.
Through the remainder of May 2023 the committee and FBI met and negotiated but did not come to an
agreement. On May 30, 2023, Comer announced that his committee would act to hold FBI Director
Christopher Wray in contempt of Congress, scheduling a markup for June 8, 2023.
According to a draft report released by the committee, Wray, Grassley, and Comer spoke directly on May
31, 2023, and the FBI agreed to allow the chairman and ranking member to review the FD-1023 but
declined to provide access to the entire committee. At the insistence of Comer, who stated that he was still
prepared to proceed with the contempt resolution, the FBI agreed on June 7, 2023, to allow all committee
members to review the FD-1023. That evening, Comer indefinitely postponed the scheduled markup of
the contempt resolution and committee members were able to review the FD-1023 at the Capitol complex.
Potential Lessons for Future Oversight
Across recent Congresses there has been concern regarding Congress’s ability to obtain information from
the executive branch and the effectiveness of Congress’s subpoena enforcement tools, including use of the
courts to enforce congressional authority. The two case studies discussed in this Insight demonstrate that
Congress’s tools can resolve significant information conflicts between Congress and the executive branch
and that the accommodation process can be used to manage specific legal and policy objections to
disclosure of information.
In each case, negotiations and requests for voluntary compliance were not immediately successful, and
the threat of a contempt of Congress resolution closely coincided with necessary concessions from the
executive branch that allowed the committees to conduct their desired oversight. While several factors
likely caused those results, it does appear that the willingness of McCaul and Comer to consider contempt
of Congress resolutions for Secretary Blinken and Director Wray, respectively, while also continuing to
negotiate, contributed to the eventual agreements.

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Of particular interest, especially considering recent history, is that the committees were able to
successfully enforce these subpoenas relatively quickly. This may allow the committees to use what they
learn to further their investigations or support other legislative activity before the end of the Congress.
Both committees are continuing the investigations discussed in this Insight.

Author Information

Ben Wilhelm

Analyst in Government Organization and Management

Disclaimer
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