Transcripts For CSPAN Don McGahn Kathryn Ruemmler Others Discuss Congress Role In National... 20240713

Good afternoon, everyone. Notwithstanding the change in the schedule, were going to start on time, the new time. So, on behalf of myself and bob wise, who is my supremely and talented collegial codirector of the nyu law schools legislative and regulatory process clinic, i wanted to welcome you here today to the fourthyear of the form. Forum. We are joined by another nyu law entity. A nonpartisan, multidisciplinary director, and the rachel called brenner, who is here, has been invaluable in helping pull together the programs this afternoon. This forum would not be possible without the generous support of a Renowned International law firm. It gives me great pleasure to partnere peter ross, a in the chicago office, who knows a lot about what we are talking about today. He served his district for six terms, from 2002019. He chaired the house ways and means subcommittee on oversight, where he championed efforts that were supported on a bipartisan basis to overhaul the irss civil Asset Forfeiture program. Come say hello. [applause] you. Ank its an honor to be here. Its a joy for us to participate. Thank you. Its also a joy to have met many of the students who are here, front rep people, and interact and get a sense of where you are and what your experiences have been. Thank you for taking the time. My predecessor in office was henry hyde, who served in the house of representatives for 32 years. He had a great expression. Theres one thing worse than gridlock. The worst thing that gridlock is the greased chute of government. Hearing aboutre is the National Tension our founders contemplated between two branches that are at one another. Offenders had a low view of human nature. They created these branches to be in perpetual tension with one another. The news today with the impeachment moving forward out of the juicy area committee, with no sense of irony than Judiciary Committee, with no sense of irony then, the house is cooperating on the updated nafta. Therein lies the tension, the brilliance of the founders, and this is a system were the beneficiaries of. On behalf of sydni, were honored to pursue patent today honored to participate today. Thank you. Todays program is called constitutional and political struggle. We have a lot of ground to cover. For that reason, our introduction of speakers, who will be at this podium or injures, will be exceeding dish chairs,airs or in will be exceedingly brief. Also, throughout the day, we will be taking questions from the audience. You are given cards. If you wanted them. We will have students from nyu along the two sides and will collect the cards. If you want new cards, additional cards, raise your hand. Please write legibly. That will be exceedingly important. Past into the aisles where they will be collected and brought down here. We had to rearrange the schedule somewhat. Lets go to. Lets go to it. Bob . Youre on. [applause] will you do the honors of introducing our first panel . So, you have a program with the appropriate biographical background. On my left is kathy reimer, who is the head of the investigations group, has served in two white House Counsels offices, and including the one i served. She was my deputy from 20092011, and then from another three years, president Obamas White House counsel. My years is the most rewarding of her professional life. That is true. [laughter] she does not answer questions she does not wish to give the answer to. She has any experience with the topics we are going to be discussing today, which is an example nation examination of the Congress Role in National Security. On her left is don mcgahn, a partner at jones day, in charge of their governors relations and representation practice. Ive known him many years. He was the chairman of the election commission, general counsel the campaign committee, in which we also came to know each other on fairy a very friendly terms. A white houses counsel to President Trump for, ofuess, an extended period time until a couple of years. Don will join us in a conversation about the white House Counsel feud of the issues were going to be discussing today for congressional oversight and the discharge of the constitutional role. Im going to ask them at the very end to leave us with a few questions that i hope we can ask senator lee and congressman when they arrived later. Lets begin. First, fundamental question. Watching a presentation senator lee gave to the Constitutional Center and he stated that Congress Failures in this area are the biggest problems of our time. [inaudible] im sorry. Senator slee said he thought congressional oversight failures, failure to assert its role in oversight and National Security, was the longer largest additional oversight in overtime. What are the challenges for making that relationship between congress and the executive work . One of the Biggest Challenges is managing leaks. Things,of the particularly in the National Security context, that you have to deal with at the white house when youre dealing with members on all sorts of sensitive things, sometimes operational things that havent yet happened, is a concern over leaks. And not just because people dont like leaks, and National Security information, but leaks of certain types of information or have very serious relational operational and catastrophic adequate is. Consequences. I dont say that to disparage a branch of government, but if we learn anything from history, the more people that you share information with, the more likely that information will find its way into the public. I think most executive Branch Officials would say leaks from the hill are a big problem. That is one of the things, structuring, how you keep the congress informed, at what level do you brief an entire committee, lets say the senate intel committee. Do you brief the leadership . Do you brief leadership and the committees . Those other types of conversations and deliberations are what has has interest in. Youre trying to evaluate how sensitive the information is with how broadly you can respond responsibly distribute it, while also making sure that the appropriate congressional committees and overseers are informed. And before i ask don to give all of us his view, and that would address the concerns you have about the congressional role in National Security decisionmaking, what about domestic oversight . Any challenges there . Where do i begin with that . On the domestic side, there is always, in any administration, a real push and pull between the what has and the congress. Between the administration, first of all, but the white house, in particular. Congress, in particular when one chamber is controlled by the opposite party, is very interested in getting interpret internal white house documents. The white house is interested in determining the documents remain confidential. That is a longstanding push and pull that has been going on for decades. And from the white House Counsels Office Perspective you might say, why is it they care so much about keeping internal communications confidential . And thisn is that is the real world reason part of the reason is because no one wants to have their emails strewn over the front page of the washington post. Another reason is that if the president s most senior advisors, those engaging with the president on a daytoday basis about the important decisions a president is facing, heavy concern that their communications, as reflected in internal documents, will be provided in realtime or virtual realtime, to the public or to the congress, that it will essentially kill the advice that the president gets. And that is a very practical, real concern. Ive seen it happen in real life, where people start to give advice to the president differently because if their true views were known to the outside world, they would get hillaryd by this particular group or media outlet or whatever. , regarding those guarding those internal White House Communications from oversight is, i think, a primary response ability, and frankly, a primary imperative for every white house capital. Don . What was the question . [laughter] as i recall the question, i think the simple answer, which is not necessarily the most correct answer, is when it comes to oversight, particularly in Foreign Affairs and national issues, most assume a really depends, Party Composition of the white house versus the has versus the senate. If its all the same party, is easy. If its not, its hard. Certainly its true. But when it comes to National Security and Foreign Affairs, things dont necessarily break down on partisan lines. Theres a real constitutional issue buried in their, where executives have the view that they have he or she has tremendous authority under the constitution of four affairs, commanderinchief in the military and the like. Congress tends to say they have oversight and the ultimately, particularly the house has power of the purse. A lot of this sounds constitutional intervals, and that doesnt necessarily know party lines because its set of the aisle each side of the aisle has folks that dont necessarily fit with what their colleagues view of the constitution is. So, you have, on the republican side, folks that think that they have a big say. Others are suspicious of concentrated power. Its always an interesting juggling act. Decision, have the from time to time, as to who knows what and when. And the modern convention thats developed is the idea of leadership and the chair and wrecking of the intercommittees, that they are on the tree of trust and can be read in in a way that will not necessarily spread. The thing you also have to keep in mind is house members are elected. Right to knowve a somethings. Then you come back to constitutional authorities, which raises annexed question. What exactly is oversight . Does congress have oversight over decisions the president make . What are they overseeing at that point if its a power the constitution gives to the president . These are the discussions one has with elected officials and staff. Some are more willing to have that discussion than others, but it is always a challenge, and it is not as easy as saying what is the partisan composition of each chamber . Let me pick up on the question of whether oversight is eview toongress pr pursue whether they have congress to authority. There is controversy over the parties issued before leaving office. The congress didnt conduct oversight. The congress, i believe, not only the white the last what has to appear to give testimony. Can you talk about how the white house addresses this question . It gets us into accommodation, the question of whether or not they are really oversight suggests impeding on the president s duties. They opened an investigation, as well. Not just the council, but the Southern District of unit of new york, a criminal investigation. It would be interesting to go back and look at what the commentary was around that at the time. But i digress. [laughter] so, that is a very difficult question, and i think that certainly, most president s would take the view that that is beyond the purview of the legitimate and those of you who have had overion to read letters many administrations, will often see reference to the term legitimate, that the executive Branch Officials use to sort of push back on the limits of what congress can appropriately exercise oversight of. The congress would say the power of the purse, which is clearly within article one authorities, is quite expansive, and weve we frankly fund the office of the president and that allows us to exercise, have unfettered review and that is an ongoing debate that generally does result in accommodation. I think most president s have made decisions based on political judgments about whether or not to make in thate, for example, instance, the white House Counsel to provide testimony notwithstanding the fact that the Justice Department would have been advising the white house that the white House Counsel was may have been able to assert the doctrine of absolute immunity and decline to go and testify, but nevertheless, president clinton, who is now former president , but after he wasically no longer in office, the pardon was on the second to last day of his time in office. They make a judgment about what having aptics of not senior white house official testify or former senior white house official testify . Thedo those optics effect president s Political Capital and his ability to get other things that he wants to get if he still has another election, a reelection, all of these things come into the mix ere you get wh into the zone of accommodating and why historically it hasnt happened a lot, but there have been senior white house officials with testify before congress, notwithstanding the fact that the executive branch that there is a circle of advisers who should be immune from having to provide testimony to congress. Robert if it is what you refer to as a prudential judgment that affects both the legal and constitutional position the president takes and what you call optics, the potential political sensitivities of allowing testimony or not allowing testimony, let me put the question to you this way, don. If you are going to one day teach white House Counsel school and youve got a white House Counsel in front of you, what is the theoretical matter to the role of the white House Counsel were a judgment like that is not , a largegal judgment institutional judgment about what the white house should or should not do to respond to congressional command, what is the role of counsel and how does it relate to the other Component Parts of the white house . Don if i were teaching white House Counsel school, if that were a thing, maybe it should be a thing, who knows . That better . Ok. Teaching white House Counsel school, the first thing you would have to note is what you would note in any legal , thes class or lawyer 101 counsel to the president is the counsel to the president. With that comes obligation to think thinks in terms in terms of the president s authority on the constitution, statutes, and the like, and it is not a personal lawyer. We all say this. It all sounds pretty easy in the abstract. Maybe for some it is tough to forecast in the abstract but for lawyers, it is easy to say it doesnt sound that hard. And easier way to explain it to lawyers is if you are representing a corporation, you represent an entity and not a ceo or member of the board and with lawyers, it resonates better when they say, there was that one time so and so on the board wanted to do some opinion letter that they could do and you could say the bylaws are not going to permit that. The ceo and board member would be mad at you for a while but at the end of the day, you represent the entity. You may represent the ceo personally. That is a different role than institutional concerns. The first thing at white House Counsel school would be to discuss who the client is and what that means and what it doesnt mean. Ramifications for decisions, lawyers are probably not the ones best equipped to make those decisions, just as in corporate america, business judgments ought not to be made by the general counsel. It ought to be made by the ceo or board or whatever mechanisms the bylaws demand. Lawyers can weigh in on what their judgment is because all these questions eventually become questions of law and it comes tot when the more politically sensitive calculations, i dont think the lawyer ought to be the one is true those, and that not just white House Counsel, but other branches of government. The chief justice has a council, the senate has a house senate counsel. The counsel to the senate started making political decisions for senators, people would think that is way out of bounds. For white House Counsel school purposes, i would emphasize the fact that you are a lawyer for a branch of government in a way, just as there are other lawyers in other branches of government that they have similar institutions to keep in mind when they offer their advice. Robert and me ask you this question and kathy, same question to you. Does a lawyer windup intervening or expressing a question significant constitutional problems but we ought to do it anyway because of the possible ramifications. Is that a judgment the white House Counsel brings forward in the first instance, or is not something the white House Counsel offers in the way of opinion only if asked . Don theres no right or wrong answer. It depends on who the white House Counsel is, who the president is, the nature of the question. , even if political, that could raise the second or third degree legal issue. Thes the obligation of lawyer to raise it and say if you do this, even if you have the authority today, it might put pressure on another part of the analysis tomorrow that may put you in a legal box. You see this with the accommodations process. There are times to hold and times to fold. I think the lawyers job is not just to think about what are we doing on monday and tuesday, but what is going to happen thursday and friday . But nextof this week, month and next year and the next term and terms thereafter. I think that is the modern view of what the white House Counsel does. The doj still does a large part of that, offers Legal Counsel with their opinions, very much institutional analysis of the executive branch but the lawyer gets into playing political consultant. You cease being a lawyer and im not sure who would listen to you for legal advice. From a first got the job, i met with some predecessors i knew. One predecessor, that is the first thing he told me. Ill give you a hint which one it was. Kathy, thoughts about if asked for because you should anyway give advice to the president . Kathy i agree with what he said. It is important, if you are not asked, and you feel like for whatever reason it is important more of a view that is a political view or optics view, toal view, it is important emphasize to the president and members of the staff that that is what you are doing so that it can be appropriately discounted by everyone in the room if that is what they want to do. I think making sure that you maintain your difference, because there are lots of people, in every white house, there are lots of people who believe they have political expertise and the best political assessment and can give the best it is important the white House Counsel be offering a perspective that is precedent andand defending the institution. Legal don brought up the counsel of the department of justice and the relationship has also been a subject of recurrent controversy on the issues we are talking about. Whether or not privileges can be appropriately asserted and so forth, what i last the question into parts to what extent does the white House Counsel feel that is an opinion that the white House Counsel has to have as opposed to the white House Counsel reaching his or her own opinion on the subject, thewhat weight does offices legal judgment carry or should it carry . There has been a view that the white House Counsel a view that it is too close to the president and represents the in a personal sense. The only way for this order to be policed is to have an an officet body like of Legal Counsel to weigh in on these issues. Come much of a role you think the white House Counsel is obligated to afford on the types of questions we are talking about here . Don ill go first. Why not . An executive order that has been around for quite a while that states the office of Legal Counsel is the authoritative view of the executive branch, so until a president rescinds that executive order, the white house has to follow the executive order and that is the authoritative view of the adaptive executive branch, which sounds like it answers the question fully but it is not does not because they can your question or two situations. One is interagency executive branch legal issues. Counsel of agency a thinks the law is whatever they think it is and agency bs general counsel disagrees and thinks it is Something Else and something where they essentially very similaring or jurisdictions, someone has to referee that and when push comes to shove, it is the office of Legal Counsel. To beHouse Counsel tends the informal referee and you try to work through your own accommodative process where at least with legal questions, people to the white House Counsel break the tie. The second issue is the president ial authority that the president wants to do something and that gets trickier because something baked into the constitution, article one is one of the numerator powers. Congress has a list of things they can do. Executive power is executive power, whatever that means. Weve been debating that for 200 years now, so there is a lot of ways that can go depending on who is sitting in the Oval Office Making the decision. Various president s have had views of the constitution. Is wellwritten and well spoken over the years and having been chief justice, p had a developed view of president as president of what his authority was. President s bring their own strength and worldview, and when it comes to executive authority, there is no book on the shelf. You get the job of white House Counsel and you say here are the things the president can and cant do. Hundreds of years of precedents. Kathy to build on that, there certainly is no obligation on behalf of the white House Counsel to seek an opinion from the office of Legal Counsel, so whether or not to do that and in what circumstances to do that is always an important question. Because if you in fact get the opinion, then you are going that is the opinion. I think a lot of times, white House Counsels will think about when is it appropriate to consult with olc, a be careful what you wish for dynamic. Traditionally, white house whenels have gone to olc they feel the president is going to take a controversial action or doesnt have clear precedent and it would be helpful to legitimize the validity of the action to have a former formal olc opinion behind it, but there are lots of decisions that are made about president ial authority on a daytoday basis that olc is not consulted on, much less offers a formal opinion. Robert ok, so lets talk about the question of whether therefore the deck is completely stacked within the white house in a way that has the president overreaching, if you will come on executive Authority Issues and putting pressure on the doesnt square with our notions of what the relationship should be. You have a small piece of real estate which is the west wing. The white House Counsel is there is a senior aide along with the director of communications and press secretary, whatever political advisers and so forth. When argument is the white House Counsel because coopted into a meaning theeration, white House Counsel is going to be under tremendous pressure to expand and defend the expansive potential boundaries of president ial authority. Like some critics say, there ought not to be white House Counsel. The rock to be some distance between the lawyers and the white house. Youth. A practical is there an answer to that . We will start with kathy, go to don. Kathy what your answer iskathy may depend on your view of what president ial authority is. On one extreme, if you think the president s executive authorities are largely legally unconstrained but are constrained only by political constraints, meaning whatever congress can do through its oversight authorities or appropriation authorities or otherwise, that is one set of ways in which a president s actions can become tales. Curtailed. Another way is the ballot box and another way is when the courts rein it in. One view, given that, youve got the three checks on a president s exercise of his authority. Why in the world should the white House Counsel be there just to facilitate what the president wants to do, which in his view is authorized to do until someone tells him he is not. It is not a position i would agree with, but it is a rational, reasonable position grounding in the constitution. An alternative would be the white House Counsel has to play , therole of a governor white House Counsel has an independent obligation to exercise selfrestraint on a president , put some guardrails around the president. Whether or not that is because that is just a good thing for a lawyer to do, which is separate and the question you are asking, which it is in the president s interest for someone i wouldnt doez, that because it would be a train wreck versus actually thinking there is an obligation on behalf of the white house to act as an independent check. Im not sure, with some exceptions, and i think i know one you are thinking about. Im not sure you would find a practicing lawyer who would who ishat someone appointed by the president who has not gone through the Senate Confirmation process, has an otherndent obligation than what they have just by being a Government Employee and the notes to the constitution, is there to check a president s exercise of authority. Don, is there any such dependent obligation . White in some circumstances wouldnt the white House Counsel be an advocate for congressional responsibility in some circumstances . Say that again, you lost me. Robert if the white House Counsel don i was ready to go on the question you asked robert why dont we go ahead and answer the question. That way you couldnt say i didnt really answer the question, and this is washington, d. C. Be theonse would department of justice is not in the constitution. The idea there be some quads independe qua siindependent check seems unconstitutional. The doj has not been around since the founding. It goes back not that long. It is very much a 20th century creature. I also think in response to your question is watergate changed everything. Prior to watergate, i think it is safe to say the attorney is viewed as the president s lawyer. The president certainly thought of that. I think this explains why president kennedy had his brother as agee and while some grimaced at the end of the day, it is still proper because the expected agee would be working for the president. Watergate changed this and we saw the doj become more independent. Congress did toy with the idea with doj becoming independent of the president. This town could still not come to a point where they say we need an independent doj independent of the president and becomeouse counsel has more independent of the white house and filled the gap of legal analysis that fits into what would otherwise be a vacuum. Depends reaction is, it on the nature of the question. If it is a question where you know you are going to be in tension with the legislative i think your job as white House Counsel is to make the legal argument on behalf of article 2. Im not sure the duty of counsel is to rein in the power under article 2 in a situation where article 1 has tools at its disposal to fight the fight. We like to think of these fights some time as mega big policy or legal fights. That goes ongument behind closed doors are very small fights over how we move a particular rule or policy. So it is not the stuff most people care about or gets in the newspapers. An article two person or you are made to be on the bench. Thet my teeth much more on legislative side, representing a lot of legislators. I was counsel for the House Administration committee for a while. They did some oversight and a low and behold, im counsel to the president on article two. Lawyer role on both sides of this thing so i came at it with a little different view than some not all my predecessors where i was very ish able to think, how article one oversight going to think about this and take dean alice is that direction as vacuum. To this is a it is a nice academic debate over what the role is but at the end of the day, we have three branches of government and when they crash into each other, i see that as a feature, not a bug in our system of government. Thert meaning you help president fight for his share of the turf taste on article two authority. Each branch does what it does must do to defend its boundaries . Don lets take something small that is not current events. Makes it easier to just because everyone is going to see everything through the lens of today, not 10 years ago or 10 years from now. We are trying to do a high thing. Ive represented a lot of people in the u. S. Senate. They really love the fact that they have a big pic in who is on the federal courts. Under the constitution, the president makes the appointment with consent of the senate. What about all this stuff the senate has come with over the years, these and to two shall senate prerogatives Institutional Senate prerogatives where it is a subset of the senate . Is in my job as white House Counsel to say you know, the senates view i think we should take this seriously. As white House Counsel, the view is the president makes the choice, not the senator. Representating representing major senators, but there are issues like that to come up and it is not Foreign Affairs. It is not the inside baseball most people care about. Power were the constitution makes clear who the ultimate decisionmaker is, but he has advised consent of the senate. What is the job of the white House Counsel . Represent the president s views. Not to say, you know, the senate really thinks it has a larger role than you think, sir. Thats not your job at all. You are a lawyer for the president. Andy i think that example, when don is hinting at, is the difference between what are the authorities grounded in the constitution and what are the authorities that have developed over time through norms and expectations, and precedent . Congress has decided it is going to assert more authority than a a president ial lawyer might think they are entitled to by doing things they can do. Something like the blue slip system, which is a senate technique that gives senators much more practical say over judicial nomination in the constitution probably provides, that that is a practice and a norm that has developed over lots ofrs and there are debates and in inside baseball about whether or not that is a good thing or a bad thing. Likewise with respect to notions of department of justice independence and how much the attorney general be independent from the president is another thing that falls into the category of a norm and what are the expectations of people and is basically as product of the dynamic government we have ended dynamic constitution that evolved through learning and events like watergate . And through events like every time we have a Supreme Court vacancy and nomination process. We learn something new every thatthrough going through process. The executive learns and congress learns and they learn how to gain more power in that process as a result. Robert before i talk about the interactions with congress in particular, i want to push on this last point with the spin don correctly identified. The role of white House Counsel in helping the president think through what authorities he or she wishes to assert, how far they wish to go. Andke it that your view, ill question kathy, the president s come to office with expectation to get things done. There is huge expectation, half the country has expectations about what will happen with this newly elected president , so all the pressure is on the president to get stuff done. The result has been ever since imperial presence presidency, president s come into sweet obstacles out of their path. The white House Counsel have any obligation to say to the president , you took a nose to uphold the constitution. Lets talk a little an oath to uphold the constitution. Lets talk a little about limits. Cy doconstitutional lega you want to leave that is functional for you but within the constitutional bounds. Is that a weird conversation to have . Don, then kathy. Don i think it would be a weird conversation to have out of the the counselou are to the speaker of the house or Senate Leader and all of a sudden, we need to talk. The networkrganic comes issue by issue and the lawyer raises the legal points and the institutional longerterm things that if you do this decision today, it may put you in a box tomorrow. It may not be you personally, but your successor. Im not sure these jobs lend themselves to the academic nicety discussions. I think it depends on the person. Ive had clients, elected official clients who do want to have a we need to talk moment and sit for hours and debate their view of the constitution. Others dont. They are more interested in moving a piece of legislation. There is a pressure on president s to get things done. The whole first hundred days and arbitrary measures of faux success. That is just a construct you have to deal with in the modern age, but lets go back. Constitutionally, the executive power is a broad power and coupled with that, congress has passed a lot of statutes and gives a lot of power to the executive. They have given the executive quite a bit of power. Lets take a hypothetical, we need to talk. The taxing power belongs to congress. Reading, taxing power gets into duties, tariffs. Through the constitution, that is what it looks like but a number of statutes allow the president to impose tariffs for a variety of reasons. When people in Congress Howell that the president may be doing statute authorizes the president to do it. Is if the lawyers job to say personally, in law school i wrote a paper where maybe the that is your, personal view but as a lawyer, Congress Gave the authority. On Congress Says you are going too far, it is their own statute. Hypothetical a current event, there are a number of the statutes throughout that have been passed over decades, that have shifted a lot of what otherwise would be the Power Congress thinks it has over to the president for purposes of efficiency or split Decision Making, a host of government reasons, clinical reasons, you name it. It has happened. This is why these questions about these various authorities are really tricky to answer in the abstract, because it branches modern norms create and thats,gs again, kind of where we are in the modern age. Robert when you answer that question, it occurred to me ill speak about this abstractly. Reported president obama could have made and tainly have sustained meaning would have made the decision and would not have been seriously challenged, congress wouldnt have cut off funding maybe someone would have filed articles of impeachment, but not many. You advised he shouldnt. And he didnt. Could kathy whats up with that . Robert whatsapp with that, in light of the conversation were having now . Certainhere are circumstances in which you may advise the president he has the authority to do something, but maybe he shouldnt. Thereone example was one example we will not get into the specifics of, but where wasought that the decision there was enough question, and i would say there is substantial question about whether or not it was within the president s authority to do a particular thing, that he would be better served by getting the congress to agree with that decision, so to seek congressional authorization. Ont was not an obligation his part but in my view, the prudential thing to do to put what was inevitably a controversial thing on sounder footing. Ultimately, hit it was his decision to exercise the authority. If he had, i would have defended it vigorously. Viewed aswould be more legitimate if the Congress Also concurred in it. What is interesting, i think, getting back to your question about whether theres a time to sit down and say with the president , in the First Six Months of his first term in office, do you have a constitutional vision . President s, that becomes more of a historical analysis. People look at a president s tenure in office and see, is there a theory here . Is there an article two coherent position that is more, you can piece it through in retrospect through looking at individual actions which may reveal a president s preferences and perspectives on this, very likely fall over time. The president may come into office and have a robust view of article one versus article two, and once they are in the seat and have been in the sea for six months, they start to feel differently about it. Obama, forpresident example, not to get into specifics, but he actually did different moments and different moments of reflection to say ok, what have his exerciserms of of his Constitutional Authority and what is there left to do, and how do i the president think about that in a coherent way . My sense is that is pretty atypical and even then, that didnt happen very often. Ofwas much more a product these individualized decisions, individualized fact and circumstances based on what was happening in that day and week and month. Robert i want to clarify what seems to be not a difference between you and don, but an issue raised by the answer just gave. In a situation where there was a that could have been within his authority, he would have been better served by having congressional engagement and it would have been viewed as more legitimate . My question to you, and i want don to comment on it, if don is right, something policy dictated would be the best action for him to take, why is he better served by not taking it if he knows for all practical purposes he can get away with it, whose views are you concerned with . Would the white House Counsel say dont worry about it. Congress may complain publicly but you will not be impeached for it. Sounds like within the prudential response you gave, there was a touch here of concern that there is a legacy matter, however you want to characterize it. It would just be better if he restrained himself. I want you to clarify and let don respond. Kathy when i say better, i dont mean in the abstract. It would have more public legitimacy, meaning the public would be more supportive of the decision if the peoples representatives were lockstep with the president on that decision. Thats what i mean by that. Abouthere are questions and these come up pretty aequently, whether or not president , particularly in the National Security space, can take unilateral action, unilateral kinetic action, do something that would be shouldred an act of war, the president go ahead and do that unilaterally . Got theay hes authority to do it, but theres always the question about the authority to do it, is he better serve by Getting Congress to agree . Lets just take the authorization for the use of military force passed right away of 9 11, weeks after 9 11. I would argue that the action that were taken by president is, kinetic Action Target terrorists eyes ofe legitimate the the public because he had the Congressional Authority to do so. Hissure president bush and lawyers would have taken the position that he didnt need it, but he had it, and that is what im talking about, so that everyone says yes, you have this authority and you can use it. Don makes me think of the war powers resolution. It is one of these things that unless you Pay Attention or everyone in the room pays attention, whenever there is something that happens that the war powers resolution requires the president to submit papers to congress, never pursuant to. Know executives can see if the legitimacys exceed the legitimacy of the war powers resolution, but produce paperwork consistent with it. Something that just happens today or yesterday or last week were the last administration. This is something that has been with us for a long time in a writing of areas, particularly Foreign Affairs. To the extent you get congress on your side, that is just smart. It doesnt take a lawyer to know that, right . Sometimes you have to go it alone, sometimes you need to support were you can get it and every lawyer runs into be ablens where you may to do it, but it would help if you did this, that come or the other. This is not only in big issues, but small things. Somebody wants to do it would help if you had a couple of extra pieces of backup before you went off and put that in use yeah,e paper, beca thats an opinion, you can do that im thinking more in political lawyer role. A lot of things politicians can do, but it will raise questions. Yeah, maybe that is a fundraiser, but theres not enough im going to have trouble defending that. Maybe you should have more people in the room. I cant point to a law that says, but it would be easier to make the case this is fine if you do it the way im suggesting. Sometimes it gets into use of force and things that are point as a my lawyer, you want to have consistency where you recommend and advise on small decisions is consistent with the big decisions. You cant all of a sudden be some pretty somebody you are not because the stakes are higher. Lets go from process to the practical difficulties with dealing with politicians and the congress. The standard response from white House Counsels who are assailed for the president s failure to engage with the congresses, and im not speaking for everybody here, one hears that they are impossible to deal with. They dont want to take responsibility, they prefer to complain publicly, and so they delegate responsibility. When it is abused, they dont rescind the delegation, police the delegation, they also dont act to protect their constitutional equities because they want to be able to put it on the executive but at the same executiver allow the maybe opposition parties are less inclined to this, but they want to distance themselves from hard decisions. I know this isnt fair critique don the senate is designed to avoid voting on most things. Unanimous consent, do want to talk about putting something off, every branch has its moves. We all have our moves. I guess well move from white House Counsel school to representing politicians school. Ive never run from office, i never will. I always remember it takes a lot of courage. Looksain type of person themselves in the mirror and says im going to get more votes than the other person. It brings a certain kind of personality and a certain kind of confidence that most of the rest of us lack. It is a certain skill set to represent the kind of individual. For me, and bob and i have this in common,. Weve represented elected officials for many years robert we dont have to bring age in. [laughter] don i got left back when year. There are ways of doing it. I hate to say, that was not really that big a deal because id represented so many other politicians. I grew up in a political household, my alkyl was a state senator, my other uncle worked for Bobby Kennedy in june of 1968. I grew up in the game. To me, this is all normal. Im used to being around political decisions and that sort of thing. Lawyers who come out of a more refined, big law, white shoe world where they are doing memos all the time, i think it is a much bigger Culture Shock to come in and speak a language that is accepted by the folks who actually run for office. Ive always tried with clients to maintain candor and i think that continues to the present day where if anything, i am known for mutual candor with clients. Other people, a little more thereed and gun shy, but is a knack you develop as a lawyer and you have to remember, this person has won and election. They represent people. People voted for this person and that deserves a certain level of and ais, understanding, certain way to present whatever your point of view is on the to be read has through the lens of this is not advising corporation x on how they can do a Public Offering of stock. It is a different thing. It sounds like something very big to me, which is selfgovernment. Robert that was a very diplomatic response. Is it fair to say it is at least a challenge to manage this or to advise matters that affect president ialcongressional relationship . Don sure, you. How that masks itself in cases, that is in an argument in and of itself but thats part of the fun. Ill be less diplomatic because i did not come from that world. If you are more from in article one person or article two. I am very clearly and articles who she person and came from a Justice Department background, so very much used to dealing with things like facts. [laughter] kathy dealing with the hill all on in my this is early tenure and we had a traditional judicial nominee that we thought was a wonderful judicial nominated byone the president when you were still white House Counsel that i was taking over to try to get this person through, and going up and talking to senators and conversation, with one who was on the Judiciary Committee and kathy is kathy, she is spectacular, totally amazing. Not going to support her. Thing youe kind of e to deal with, how do you ill put this person forward. You dont have any issue at all with the candidate, none. You think the candidate is fantastic, but you are going to vote against her nomination. That is what you deal with in congress. Don i guess thats where im different. I would have said thats what you think today. You didnt need 60 votes, thank you very much. Don youre welcome, harry reid. Thank you, senator reid for that one. Kathy we can debate that one for a good 20 minutes. Robert this could get exciting, i could tell. Kathy Mitch Mcconnell would have changed the rules in a minute. Don would have, could have, should have mr. Y i dont think mcconnell needs permission from anybody, much less mr. Reid. Should we go back to no, now that we are getting to street level, it is getting entertaining. Kathy let me give you another example. Thatthe frustration executive Branch People feel with dealing with the hill. We got summoned to the hill by two senators, two Democratic Senators and i would say it was a reaming out of me and another senior official why the president hasnt been doing the following thing. It is outrageous. The president should be doing this, etc. At which point i said well, the reason why is because you both voted for a bill. You voted for a law that restricted the president s ability to do the very thing you are now mad at him for not doing. Staresjust like, blank back. Was that not in your staff memo . I would say the answer is probably no to that. But thosebably not, are very small examples that are, i think, indicative of sometimes why people who have worked most exclusively in the executive branch have had frustrations with those on the hill. It has happened to all of us. Ive had the same type of meetings and probably handled them differently because everyone has their own way of dealing with this, but you sometimes run into you realize you passed a law that allows a president to do this or limit it or acknowledge the president has authority in the area and you have multifactors to limit it. What did you expect the president to do with that . Just not do it . So that is tricky, but that illustrate something i am going to come back to, which when you have these discussions, everybody wants to think about what is happening today or some big picture thing. Everything is not some monumental decision that saves or kills democracy. Its a bunch of granular meetings of the sort you say where you are beating your head against the wall, but this backs up my point that you are there to represent the president and have to say this is what the president is going to do. It was awkward for me because sometimes it was people who had been former clients. I said i know what you are saying. I dont represent you today. I represent the others on pennsylvania avenue. I was fierce when i represented you and i have to be just as fierce when i represent the people down the street. I was fortunate to be around having represented folks. Can never really got to the point where it was particularly hostile. I dont think i ever had a senator blindside me on anything at a meeting, either side of the aisle. I was very fortunate in that i was never summoned. They may have thought they were summoning me, but id stop by. You know . [laughter] like anyone felt was summoning me, at least in the legislative branch [laughter] don to come see them. At least when i was white House Counsel. You know what i mean. That is a tough part of the job. , theu are a lawyer executive branch, department of justice sort, you come in, give your legal analysis, and a member of the legislature is coming from a whole different planet, which is why i said my next time line, that is what you think today but you were elected four years ago and your vote total was this send this. I know how to get your vote. I came at it from that kind of point of view, particularly dealing with senators on confirmation issues. Polite tea with the queen. That is raw who has the most votes wins kind of stuff. I am much more of an article one guy than an article two guy, butd on my career in dc, ive spent most of my government time in the executive branch. Robert i want to commend the two of you. I was occasionally summoned, never for the purpose of bestowing praise. Have a few questions as we conclude here. One question, the executive branch has the office of legal that renders opinions on the legality and constitutional constitutionality of access to congressional access to information. Congress does not have that power other than a lawsuit. Would congress benefit on having an office that functions like the office of the white House Counsel in the legislative sphere . Kathy with respect to oversight . Practically, both chambers do have that function and ive certainly had conversations with either house Legal Counsel or the senate Legal Counsel around issues of dispute around congressional oversight and what is appropriate for congress to and thats part of the accommodative process. Committeelking about counsel. Im talking about senate Legal Counsel coming in and advising senators. Yes, your request is legitimate senate Legal Counsel takes the same view about the senates authority that we do about the president s authorities, expansive perspective. Is entitledirtually to every document within the executive branch if it is pertinent to something they are looking at, but i do think that does exist, if not formalized in the way that olc exists. Robert don . Don no. No. Heres why. The house is 430 five members, the senate is 100 members. They all have a vote, they all bring to the table their own desire to represent their constituents and uphold their own oath of office, to uphold and defend the constitution. The executive branch is the executive so it makes sense to have a more centralized advice mechanism there because executive power flows from the president whereas in the legislature, it is much more dispersed. The idea of a Legal Counsel for the house and senate would be 435 buzz saws on a daily basis. Asre are plenty of lawyers the majority leaders have counsel, minority leaders have counsel, and committees have councils. Congress fromwith the executive branch point of view, your first intersection is much more with counsel to the particular committee, not the counsel to the house. That tends to be someone who gets involved much later in the process, unless you know that want to views, you may get them involved sooner and there are ways to navigate that. You pick your lawyer, on who you think gives the better answer. I think the idea of an office of Legal Counsel for the house and senate just doesnt work. I think theyve developed their own system over a couple hundred years where they have their committee system, and that is just the way it is done. Over and it is 200 years ago, maybe. But today, it wouldnt work at all. Robert i have two additional questions. Senator lee is here and i want to ask this last question. What question would you like to ask senator lee, but do you think the white House Counsel be subject to Senate Confirmation . Kathy absolutely not. Don know. No. Kathy having been don having been senate confirmed, it is a different role. That puts another later between the president and i dont think the senate has a say in who the president has in his inner circle. I dont think law clerks need it either. I dont think counsel to the speaker of the house has to be interviewed by the personnel in the executive branch. It is his core group of advisers and not advisors picked by another branch of government. Kathy i agree, absolutely. Robert last question i want to ask from the audience. What is the role of the white House Counsel addressing inside the executive branch . You talked about the problem president s in sharing information with congress, building a Partnership Around National Security issues because buthe risk of leaks, obviously we have a significant issue of leaks within the executive branch. Some of these leaks are for purposes of i say of course waging the purpose of to win anh battles argument within the executive branch, sometimes to push information to the press for a ,ariety of reasons, but clearly not all the leaking that creates the tensions between the two branches are the fault of the executive branch, but leak investigations are controversial. Im riffing a little on the question, but i think kathy i think every white house would like to prevent leaks. The reason is leaks tend to affect president ial Decision Making in a way that can undermine the integrity of this Decision Making. In other words, lets say a president is contemplating a particular decision. Not even anything that is a National Security decision but even just a personnel appointment. The president is deciding who to appoint to be the chair of the Federal Reserve . And there are people within the white house who have different views about who that appointment should be. And somebody decides they are going to put the their thumb on the scale in favor of their candidate and they leak something to the press or a Constituency Group that is opposed to the rival candidate and create a big brouhaha before the president has an opportunity to make a decision and therefore affecting the president s Decision Making as to who he thinks the right candidate is and to control the rollout of the rollout of that decision, how that decision is announced and kind of messaged, if you will, to the public. I think every White House Council is concerned about leaks if the white house for that reason. At least that is the main reason. So therefore has probably on occasion done some kind of internal review, internal investigation. It is not an investigation in the way we think of criminal investigations but trying to figure out who leaked it. Why did they do it and what was their motivation . That was not helpful to the president. Hat i think is general typically falls in the laps to have white House Counsel. Tends to be what is the right word . The person who has to deal with that kind of crap for lack of a better way to put it. By default . Kathy it does not make you a popular person when you say by the way, were going look through everybodys email to see who talked to this particular press reporter, whatever. Sometimes it has to happen. And you know, does happen. With respect to leaks across the in the executive branch, it is just a part of governing. There is not much that a white House Counsel can do other than through his or her channels of communications to talk about the importance of giving the senior Decision Makers that decision and space and it is just not fair and it is not frankly fiduciary with their continue butions. Contributions. They have to take on that role and try to convince people not to leak. T is a fact of life. Donald it is a fact of life. Loose lips sink ships. One thing you said that really rings strew the white House Counsel office is not an investigate tori office. We dont have the resources to go around and investigate things. We review things. I think what the Counsel Office when it ew spots and comes to leaks it is a team effort. The chief of staff, National Security side, all of these have to really Work Together to figure it out and when you end up in situations where you mentioned there is an infight. Some of these leaks are because there is a policy stat and people want to try to use the papers to help decide the issue, you know, that gets tricky because then you know, who knows who is actually leaking and it is a certain level of senior staff strata is it now a leak . It becomes this odd thing. Again, i go you only know what you know because of where you come from. And you know on capitol hill, it is you dont even really consider it a leak anymore. It just happens. You have these meetings and it is in paper before the meeting is even over. It is unfortunate. Everything is scripted. You have to have a premeeting for the meeting and now you need a premeeting for the premeeting for the meeting so when you have meetings they are not rell meetings. Kathy you end up having the real meeting and the fake meeting. Donald they come in and say their lines and say it. You know somebody is going to put it in the paper. Going th that, im convey to senator lee who is about to start. If there is anything you want me to ask. Ask what he thinks the best white House Counsel is. Donald i would ask a question about all of these various internal Senate Procedures that enhance the senates power at the expense of the house or the executive. You know, look, blue slip in particular, canada still has this. One member can shut down the whole operation. That was discussed at the founding and rejected. Actually you can go back. When you get into separation of powers, you can usually find a wants to for one that throw out at a cocktage tail party. T probably warms him up. Mike well, thank you very much. [applause] ok. Please remain in your seats. And it is my great pleasure and honor to introduce our next speaker, senator mike lee from utah. Again, his bio is included in your program. But i wanted specifically to acknowledge for present purposes that he has served, he is now serving on the senate Judiciary Committee and he is a recognized eader in the congress on bipartisan war powers reform. Senator lee . Youre on. [applause] senator lee thank you. I almost missed my cue. I was backstage having a conversation with someone. Really it is a pleasure to be here. Im im grateful for n. Y. U. For putting this event together. At a time when congress is hip deep in dense, disinterested, politically uncharged and otherwise uninteresting house impeachment process, you have to leave it to sibley and to n. Y. U. To put something together with such explicit sensationalism and really sex appeal as a day long symposium on constitutional separation of powers particularly the the context to have war power. So very well played on the part of sibley and n. Y. U. Honestly, you have heard from scholars and practitioners throughout the day. Dealing with American Security policy and i wish i could have joined you for all of it but i really am honored and grateful to be here and for the opportunity to speak on such an important topic and a topic that for far too long as gone unaddressed. Currently severely underaddressed. A serious conversation about the principled use of war powers under the constitution is of course not only timely but something that really should have happened a long time ago to a greater degree than it has. Much more important than most members of either house of congress or of either Political Party seem to appreciate. Bile the first to acknowledge that my own Political Party has not been very vigilant making sure we use war powers appropriately. That is one of the things i want to change. Today i will like to talk about why the founders designed the war powers process the way they did, emphasizing it wasnt done randomly or for the lack of creativity or the lack of a better idea. I want to talk about how we got into our current situation, a ituation that often involves unilateralism. Why it is essential toward the goal of restoring the Publics Trust and legitimacy in an area of Public Policy that is so important and especially an area of Public Policy where public trust is so essential to the legitimacy that any government must enjoy. In 1848 there was a young congressman from illinois who wrote to his law partner back in his home state explaining his opposition, at least his reluctance, but ultimately it was his opposition to president james k. Polks itchy trigger finger when it came to mexico. He wrote in this letter as follows, the provision of the constitution giving the war making power to congress was dictated as i understand it for the following reasons. James had always been involved in impoverishing their people in wars, pretending that the good of the people was the october. Object. This the most o pressive of all kingly oppressions. They resolved to so frame the constitution that no one man should hold the power of bringing this oppression upon s. What then representative Abraham Lincoln understood is roughly the same as the case for congressional control over federal policy making that is to say it is the same case as separation of powers generally. Pursing and for dis diffusing otherwised centralized political power placing it in the most diverse and most representative and most accountable branch of the three branches of the federal government. This case is based not on a mere political ob instruction but on the truth of human nature and the hard lessons of history. I always try to remember warnings provided by James Madison where he talked about human nature. If they were angels we would not need government. We would not need rules and external constraints on the exercise of power and were not angels and we dont have access to angels to run our government. We have to start with the abstract concept of a king, an all powerful king, a monarch. Caesar and we slice and dice the power until caesar is less of a threat. After after the iran theny of george ish caesar, king iii gave raste rise to the American Revolutionary cause, they saw this was necessary. But memberssuffered of the generation suffered both as subjects and as soldiers and the framers were keen on taking steps to preclude similar abuses within the framework of the republic they hoped to establish. They understood that if the purpose of government were to be to ensure the success and the peacefulness and the thriving of the people, then governmental success depended on this concept of diffusing power so that no one person or group of individuals could misuse too much of them. It was no less valid in Foreign Policy than in domestic and no more applicable in the power to declare war. If anything it was more powerful and more potent and sup ject the aabuse. It is important to remember that under british rule this is not how it had worked. This is why they chose the model that they did. The king of england wielded the power to send his country and ours for that matter because we were part of his country prior to the revolution, into war. Regardless of whether it was in anyones interest other than the kings. Indeed, one of the chief grievance against king george iii was that the king rendered the military independent of and superior to the civil power. The delegates wanted to make a deliberate and dramatic break from that monarchycentered model. Article one section 8 of the constitution could not have been clearer on this point making clear that Congress Shall have the power to declare war. As James Madison wrote to Thomas Jefferson in 1798, discussing this very issue, the constitution supposes what the history of all governments demonstrate, that the executive is the branch of power most interested in war and most prone to it. With studied ngly care studied war. It was not a coin toss. It was not close. Nor was a system they divides some kind of oversight. This was very, very deliberate. At the Constitutional Convention, the question did in fact coming up. South carolina delegate pierce utler proposed to the power to declare war in the president. It didnt cogo well. Delegates were n the revolutionary war. General george washington, whom everyone knew was the obvious choice to become the republics first president , butlers was not even seconded. It was dismissed out of hand. Unusual in any parliamentary body like the Constitutional Convention for a motion to be made that doesnt receive a second and yet it happened there and it is telling that it did. One of the great Unsung Heroes the conventional Constitutional Convention said he never heard the motion to empower the executive to declare war. Theythedelegates instead placed this power in congress because it knew the members of the delegates to the convention understood this was branch, ensuring this was a decision by the people and for the people. Not that members of congress wouldnt make mistakes. They would. Not because they would be infallible. They obvious auld would be. Of course ahl always would be. They could be held accountable at very regular intervals. Every two years in case of representatives. James wilson assured the Pennsylvania State ratifying convention of the merits of this very decision. This system will not hurry us into war. It will not be in the power of a single man or in a single body of men to involve us in such disstress, for the important power of declaring war is vested in the legislature at large. This deck clarings must be made with the house of representatives from this circumstance we may draw a certain conclusion that nothing but our interests can draw us into war. Prudently, the role they gave to the president was as commander in chief. His job would be to command and direct the military operations operations that the First Congress would authorize and all subsequent congresses hereafter. Alexander hamilton described which i have turned back to time and time again in my nearly nineyear stovers the United States senate. The president s role will be the same it is a king of britain but in substance much inferior to it so as to avoid the dangerous and kingly concentration of power. A Congress Status as the senior partner in war making policy was not something that went untested. In fact it was tested almost immediately after the new ocument took effect. When the wabash indians launched attacks north ohio river in 1791 and 1794 president washington in ned his measures response to those attacks, the constitution washington wrote, the power of declaring war in congress. Therefore no offensive expedition of importance can be undertaken until they have deliberated on the subject and authorized such a measure. Few years later during the socalled quasi war with france, congress authorized to seize ships sailing to french ports. John adams ordered the navy to seize ships sailing to or from a french port. After the u. S. Boston seized the was , the boston captain le. Personally liab on appeal chief Justice Marshall upheld the lower courts this ruling adams order had overstepped the clear limits of congressional authorization in that matter. President jefferson faced his own security challenge in the form to have pirates who were raiding american commercial vessels at the time in the med rainian sea. Jefferson did no more than order some ships and personnel to the region to protect american vessels from attack. Even after tripoli declared war against us in 1801, jefferson reported to congress in a state of the union that year a letter mercifully as was typical in that era and nop typical today on a battle between the cruiser u. S. S. Enterprise. To go beyond the line of defense, the vessel being disabled from committing further hostilities was liberated from its crew. In the very next photograph jefferson put the decision on whether to escalate hostilities with tripoli squarely back on congress. Congress answered his request with authorization to go tons of against tripoli. The standard under our onstitution was clear. The power to direct war resided with the commander in chief but the power to declare war to, start it, to get us into it rested solely with congress. President s madison, polk, mckinley, wilson and franklin d. Roosevelt all sought and received declarations of war under this. I submit this was not mere technicality. This was not just some nicety where they were following through the motions of something they had inherited from a by gone era. This was something meaningful. This authorization process really forced deliberate debate and it forced concentrated minds, concentrated minds that could operate as a counterbalance to concentrations of power. It clarified Mission Objectives and ensured public accountability and therefore crucial bipartisan consensus. Whether the u. S. Militarys astounding and since unmatched record of success in those conflicts was a function of this process or merely a coincidence, i will leave others to judge. I can tell you my view on it which is that it certainly wasnt a coincidence. When you force the matter to be discussed, to be debated, to be deliberated, you really elevate our country and its Foreign Policy and its military strategy. It becomes a force multiplire and we all benefit as a result of the careful deliberation that ensues. When u. S. Blood and treasure is on the line and when the lives innocent civilians in whatever theater of battle were considering are better off when we have more deliberation rather than less. The process did evolve from the eras i just dried, especially after the allies victory in world war ii. The balance between the commander and chief and congress started to change and it has continued along that trajectory ever since the end of world war ii. W the ship was relative this shift was relatively abrupt. The shift happened within just the space of a few years. It has remained more or less along the same path since then. In quick succession, military technology shrunk americas greatest traditional means of depending itself, its inherent National Defense system, the oceans that separated us from political enemies and from their entangling conflicts across the Atlantic Ocean and the pacific ocean. E rest of the world had been ravaged by war while the u. S. Homeland remained unharmed or mostly unharmed. With warfare nuclear, global, super sonic and even intercontinental, americas allies vulnerable and reliant on us more so than ever before, the natural decisiveness of the executive branch came to the forefront. The world looked to the United States for freedom and security in and the United States dutifully answered the call. Cold war president s led the long struggle against communism with congress support. President truman deployed u. S. Orces into korea to combat the sovietbacked north korean fighters. He claimed he did not need authorization. Sentence troops into harms way, into the theater of warfare abroad and far outside of our borders. The scope and the justification of trumans actions were unprecedented. But they created new precedent and they paved the way for future president s to view congressional authorization as somehow optional and certainly not essential. Even more prolonged, sustained conflicts, which would be a lot of sacrifice of american blood and treasure and a lot of casualties, not only american versares and innocent bystanders who may have had nothing to do with the conflict. Soon after truman, lyndon b. Johnson deployed sources into vietnam. It was not a declaration of war or any kind of clear authorization for the use of military force. President Ronald Reagan deployed troops to lebanon in 1982 in the midst of instability and violence. Again, without congressional authorization. Even avenue signing a resolution to withdraw forces over the course of 18 months, just days before the bombing reagan continued to assert his prerogative as commander in chief over any limitations proposed by congress. Resident George Herbert walker bush invaded iraq to protect from and said support congress would be optional. I dont think i need it. I feel i have the authority to fully implement the United Nations resolutions. He added that the basis existed because many attorneys have so advised me. President clinton denied that he needed Congressional Authority for his actions in kosovo or the potential invasion of haiti citing predecessors in both parties and u. S. U. N. Resolutions. To seek legitimacy elsewhere and in entities that have no constitutional power over the American People and no role within our constitutional structure. So regardless of what role you think the United Nations should lay or can play, or does play, it was not created as, never intend to be a tool for circumventing congress. It was never intended as a substitute for the authority to achieve constitutional legitimacy for the declaration of war. That came only from congress and not from any other body. Not from the United Nations. Not nato. Not any other at no point should any of those document, organizations, however worthwhile and peace loving and givering us pathways, the fact that they an help us do that if properly tilized doesnt mean they can. In fits and starts congress has periodically attempted to arrest this trend or at least periodically taken action so as to appear however falsely that it was arresting this trend. Responding to president nixons unauthorized engagement in vietnam Congress Passed the war powers act to reclaim congress Constitutional Authority to declare war. And to assure congress ability to swiftly instruct the president to remove troops from the battle field absent a declaration or war or statutory autsdz says for the use of military force by congress. Unfortunately, over the 46 years since it became law the ar powers act has proven to be for l toothless substitute the constitutions clear meaning and congress actual, if chronically ignored, powers to simply assert seftsd in this arena. Look no further than the unauthorized deployments, into somalia in the 1990s or the scandalously Ongoing Operations in the middle east that far exceed the missions established by congress after 9 11. Colleagues in the house and the senate have used the war powers act to challenge these engagements including this past year. An effort to bring about an end to our undeclared, unauthorized, immoral, indefensible in the civil war in yemen. But as historic as the passage of the yemen war powers resolution recalling our troops was, it was still vetoed, and Congress Still failed to override the veto. Congress still refuses to act affirmtively and resigned itself to acting defensively and intentionally weakly. In truth, the war powers act is sort of a crutch or it has become such over the 46 years of its existence. Not a crutch used by a hobbled legislature to stand upright, no. In this instance, this is a crutch used by a negligent and dishons legislative branch as a prop to help portray its shameful selfindulgence and evasiveness as mere incapacity. You know youre in a bad situation when somebody wants to portray themselves as incapable other than what they in fact are. Remember being stunned a few years ago when i first learned of our impending involvement what has become our four, soon to be five year involvement in the unconstitutional, immoral, unjustifiable civil war in yemen. This was almost unthinkable that we would have some role there and yet we became involved in that. After it went on far longer than anybody in congress wanted to admit that it would go on, i became uneasy with it and i started looking for allies in the fight against it. I got together with my friend Bernie Sanders. I love Bernie Sanders and one of the many reasons i love him is because he believes that war carries significant he believes it shouldnt be taken lightly. So we got together and ran a resolution to direct the president of the United States to bring our troops home, to withdraw from our involvement as a cobelligerent in the civil war in yemen. Weve been acting under a kingdom of saudi arabia Led Coalition against the hootsdzie rebels there in an unjustifiable manner. Bernie and i enjoyed bringing this forward and we found success in the first time of the war powers acts nearly 50 year history we got a resolution directing the president of the United States to bring troops home from a particular conflict and to disengage from that conflict. For the first time in the laws history. But, again, this ends up being used as a crutch or as a prop. We feel and act a little bit like the unarmed english body who being unarmed upon the seeing the commission of a crime yells stop or ill yell stop again. When that resolution resulted in a Veto Congress came back, we patted the table and said this isnt right. But alas we didnt have the votes. Well get back to that later. Its not a coincidence that this history of congress slow motion surrender of its constitutional role in policy making rather precisely mirrors its surrender of its domestic policy making authority. These two things have gone hand in hand. They followed more or less the same chronology and theyve taken a path that is closely reminiscent one of the other. Theyre both part of congress selfserving bipartisan shameful retreat from constitutional responsibility. The real Reason Congress defers to the executive branch on National Security and on domestic policy it has nodsing to do has the exidgeancies. No, its simply because its easier for us to be pundits than statesmen. Almost every recent use of military force Shows Congress punting its authority to the executive giving deference to the administration and refusing to exercise its prerogative. After the attack on our homeland on 9 11 the country understandably and rightfully wanted to respond. Its only human to have that desire when something that orrific happens. The authority gave to president bush, 18 years later asking has refused to revisit that authority, refuses to narrow that Authority Even as it has been used time and time again to pursue new entities across the world. In 2013, president obama came to congress after seeking authorization to involve u. S. Troops in syria. I remember this moment well. It was right about the time my wife and i were about to celebrate our 20th anniversary and i had to inform her that ive got good news and bad news, the bad news is im going to miss our anniversary. The good news is, well, i cant remember the good news. I guess the good news there was after looking at that we decided not to declare war. But then there was more bad news. After congress decided not to declare war president obama did it anyway without congress. At least to a limited degree. Ive got to give him credit for the fact that he didnt go all in as he had previously intended. He showed some restraint. But when President Trump declared his decision to withdraw troops from syria almost every member of congress, present company excluded, balked at his decision and yet still no authorization for the use of force in syria was forth coming. So you had members of congress this g their chest saying was awful. It didnt happen. Were still there. And yet, nobodys really even talking about it. Under the constitution the three branches are all coequal but they are equal only in this same sense that Michael Jordan and larry bird and i are all former basketball players. Im really good at boxing out. And other than the fact that im slow, im not terribly coordinated, im not very good at jumping and my ball handling skills arent what they should be, other than that i would have been great in the nba. In truth, Congress Domestic and Foreign Policy powers dwarf those of the other two branches and its by design. It was quite intentional that congress would be made while coequal to the other two with the most dangerous of the three. Intentionally dangerous and dangerous in the sense that it had been given broad powers. But those were subject to all these layers of constraints and accountability. Two different branches both had to act before any legislative action was cons mate. All members of the house of representatives subject to reelection every two years, a third of the senate subject to election every two years. But just as god gives burdens and also shoulders so the founders Gave Congress accountability. Representatives and senators dont want to vote on legislation or wars because doing so increases the chances that voters might gasp hold them accountable for bad decisions so they punt. Too often arguments bog down questions of efficiency. Advocates of both the modern Administrative State and executive driven warmaking point to the inherent advantages of an dwidge centralized decisionmaker over the selfevident more rass of congressional dysfunction. Advocates of congressional reassertion like me must readily admit that its much easier to make decisions in the executive branch. And lets face it, congress as an institution faces an institutional rating of about 11 , making us slightly less popular than fidel castro in america and only slightly more popular than the influencea virus which is inexblickably gaining on us. This makes it too easy for fellow members of congress to say you dont want us making these decisions. Lets hand this over to the experts in the executive branch. Those guys are professional. Dont trust the unwashed masses like us to make this decision. Only by doing that theyre really disempowering those they were elected to serve. Those they have taken an oath of office to protect and defend within our constitutional structure. But where its written that our where exactly i would ask is it written that our constitutional frame work should ever prioritize ease of Decision Making . Even a cursory reading of articles 1 and 2 of the constitution strongly suggests that for the founders inefficiency was not a bug but a feature. This was exactly what they had in mind was inefficiency. They wanted to make policy making difficulty, whether it was in domestic policy making, whether in regulatory policy making, warmaking or otherwise. As well as it should be. In a republic in any republic. Especially a republic as diverse as ours. In the absence of National Consensus its probably a better thing that there not be execive inefficiency lest there be federal law that does more damage to the federal republic than it should. One of the ways our republic accommodates diversety of viewpoint, opinion, great demographic political and Cultural Diversity is by allowing these separate semi sovereign states to exercise their own policymaking prerogatives within their own spheres. They cant do that in the area of war powers which makes it all the more important to make sure that when war powers are to be exercised the appropriate branch within the federal government actually do the job. I dont think its a coincidence that as washington has progressively ignored this maxim and abandoned its own constitutional duties both the efficacy of federal policy and public trust in federal institutions have simultaneously and correspondingly craterd. Were not to be trusted. We are not trusted because we dont deserve to be. It was only this week that we discovered that both military and civilian leaders in administrations of both Political Parties have engaged in what can only fairly be characterized as a massive conspiracy to mislead the American People about our failures in afghanistan. Trillions of dollars and thousands of lives lost on a lie. Its one of those shameful political scandals in american history. And it has already largely disappeared down washingtons shortterm memory hole. Congress surrender of its war making power is of a peace of a delegation of domestic policy to the Administrative State, to the Monetary Policy to the Federal Reserve, of social policy to the Supreme Court. Congressional authority is the fuel of the federal government was made to run on. Its the very thing thats supposed to power the federal sovereign within our system. With ke a car filled up lighter fluid, what happened in afghanistan is basically what has happened with the federal budget. When congress abandons its own responsibilities and empowers the other two branches its not a natural eve lution of republican governance as many want to make it out to be. No, its ab an affirm tiff betrayal of the American People and a violation of their constitutional right to live under a got of checks, lances, and delicately scommartment liesed and divided powers. This arrangement if followed in the harsh lights of the 24 hour news cycle would make life and reelection for members of congress more difficult is a bad thing for my colleagues. But a good thing for the American People. Or the 330 million americans represented by the 435 representatives and the 100 senators. This is something that i think we all should be quicker to acknowledge. Make no mistake, the status quo of centralized power, congressional deference and delegation, executive and judicial use pation and the Political Class willful disregard even exassbation of grave and growing problems is about nothing more complex or re mysterious than elite selfinterest. The rest ration of constitutional balance. Through congress reclamation of its rightful role in domestic and Foreign Policy making is not just one choice among many possible paths back toward stability. It is americas only path. Thank you very much. [applause] i have questions from the audience, sir, we enough questions to keep you here for another hour, which we do not have the opportunity to do. But lets begin, sir, with the first question that we have which is what would you like to see fundamentally in a new authorization for the use of military force . What do you see as the fundamental Component Parts that congress should be pushing for here . Let me push back on the premise of the question that we ought to be involved in any war right now. Im not sure i can think of a conflict in which i think we should start. Certainly not a new theater of war. Obviously we cant abruptly pull out of an existing operation like what we have in iraq and afghanistan but the fact that we cant abruptly pull out in a days time doesnt mean we shouldnt start and look for and nurture the possibility of mashe making a more timely gradual withdrawal. So any authorization for the use of military force first of all shouldnt introduce us into a new theater of war secondly ought to be geared toward getting us out of where we are now. Sir, what was your view, senator, on the war authorization amendment for iran in the ndaa that passed in the house but did not make it out of conference in the ultimate bill . What is your view right now about the posture congress should be taking toward the conflict with iran . Its a squirrely thing to do to try to add technical language in order to trick colleagues into voting for something that might be construed as a backdoor subtle authorization for the use of military force especially in a new theater of war. I think if were going to get involved militarily in iran or any other new place in the world, that needs to be bedated and discussed in front of the American People under the light of day, openly and aggressively rather than sort of squeezed into an ndaa provision somewhere. So yeah i didnt like that approach at all. When i approach these things i like to start from a point of agnosticism which is to say that if somebody wants to make an argument for why we ought to be involved, i will listen. Im going to be skeptical and i would have to be brought along. But for me its always going to require some showing that the conflict in question would make the American People safer, that not undertaking the proposed action would result in a very serious threat to american National Security. To the lives of the American People. And that there is a plan to go in, get the job done and get out and most importantly to know what the job is. The recently released michael hor wits ig report has sparked a debate about fisa and you have stated that the legitimacy of the program has been called into question. What is your view how congress should respond to the Building Movement toward a reform effort . Do you think its going to wind up as you said a few minutes ago getting swallowed up in washingtons short term memory hole . Or it will be enough to call people to a reform . I think weve reached a Tipping Point. I think whats the act and section o 7202 of that legislation, i think weve reached a Tipping Point wrrn members of congress who have in the past been the proudest and boldest defenders of that program are now seeing that there are some problems. Ive been worried about this for nearly the entire nine years ive served in the United States senate. I was largely alone for most of that time as a republican. I joined up early on with a few of my democratic colleagues on the Judiciary Committee, pat leahy and dick doiben, were the first who i worked with on this. Democrats tend to be much more sympathetic to the cause of changing section 702 and putting some more robust standards in there making it look like a real probable cause standard rather than a fake probable cause standard that tries to look like a real one. Something magical happened yesterday. Something that brought us forward much more than i ever thought we could be brought forward in this time increment. We had this hearing with inspecter general hor wits. I believe many if not most of my democratic friends still believe we need section 702 reform regardless of how they feel about the report and how significant it is in that. But a whole bunch of my republican colleagues including a whole bunch of them who have been selfdestribed intel hawks came out in public yesterday and said we need reform. I had to try to not look smug as my friend ben sass himself a selfdescribed intel hawk said one of the things that makes me mad about this report is that mike lee and i have been having this argument for five years and ive been telling mike lee hes crazy to have these concerns. And this report makes me mad because it makes mike lee right. He said if mike were a drinking man i would take him out for a drink and maybe get him drunk. It sounded like maybe a good time to start drinking but i thought ahhh. If youre ever around a mormon who starts to drink, its bad because we havent built up a tolerance. So walk away if that ever happens. Another question that has been raised here has to do with how the constitutional debates wind up being influenced by congress perception of what policy outcomes they can live with. The question put here was, your support for President Trumps decision to withdraw troops from syria and yet of course we hear policy experts saying that the withdrawal was chaotic and there was significant implications as a matter of National Security policy for our allies and for our u. S. National security. Do you have concerns that even if the constitutional point that you were making was vindicated the policy outcomes here should give us pause . Sure. Of an, look, im an admirer edmund burke, the english states mand from a couple centuries ago who always approached everything from the standpoint of starting in the world in which we lived in instead of the world in which we lived. Obviously if you fall or jump from a ten Story Building its not the fall that will kill you its the abrupt halt at the end of the fall. You have to be careful. Making them too abruptly can cause harm including to our allies. The reason i felt so strongly about voicing support for the announced intention to withdraw is that one of the first times, one of the only times in my entire lifetime when youve seen a president who under other circumstances in modern history would have been expected to double down and step on the accelerateder he was tapping the brakes. I like that. Im glad that he was at least thinking about tapping the brakes. I frankly wish he were tapping them more. If we could hold you for a couple more questions. Sure. Im vag good time. This is fun. I get to talk about separation of powers. When does that happen . You supported President Trumps decision to pull out of the treaty with russia. The question in the audience is, what is your view of the president s unilateral withdrawal from treaties that congress had to advise and consent and ratify in the first place . And what is the future of the arms control architecture given these developments but given the topic of the talk how do you view how that affects balance aff power that congress is involved in the treaty making in the first instance not involved in the termination of the treaty relationship . This is an interesting area and i havent spent as much time as i have with some others is generally my view that just as the president can sign on to a treaty and its then up to congress to ratify or not ratify, the president also has the power to take us out of a treaty. The off switch in the constitution isnt specified but i think its the natural extension of the president s Foreign Relations power in article 2 that he can make a withdrawal decision like that. I know there are people who disagree with me on that. Thats the view that i have embraced. As far as the substance of that particular decision, look, we were just getting cheated on left and right. If they were complying with the agreement, if the russians were complying with that agreement i think the merits of the decision would be different entirely. Its interesting when you go to certain air force bases where some of this equipment subject to the treaties are stored youll see signs written in russian on our air force bases. Its kind of an interesting thing. But they have not complied in anywhere close to a satisfactory manner with those. And i dont think treaties are a suicide pact in where ongoing compliance with the treaty thats been disregarded would otherwise imperil our National Security. I think president s are within their right to withdraw us. The senate Judiciary Committee on which you sit has conducted oversight of the f. B. I. And as you know and we have congressman from the House Oversight and House Intelligence Committee coming shortly to address these question ues, the re is what is your view on how all of this is the implications of recurring controversy for the power of the congress to subpoena executive Office Witnesses or documents in the name of oversight . And ill set aside for the moment the question of impeachment. Feel free to address it in any dimension that you wish. I want to make sure i understand the question. What do i think about the power of the congress to subpoena documents from the executive branch and to compel compliance with said subpoena and what the consequences are for noncompliance . Correct. Particularly given the fact theres been this very nose to nose confrontation between President Trump and the house over these particular issues some of these matters have gone into the courts and of course is now a second article that the house may vote at least on theit is asking that these refus be impeachable. As to the latter part, i precedent andbad without any constitutional mooring, to suggest that congress can come up with a set of demands and say if you do not meet these, or settle this in a court of law we will hold you in contempt of congress, and on that basis we will impeach you for what is the term they used . For obstruction of congress. I do not think that is a good argument. As for the broader argument compulsoryess authority over the executive branch to supply documents, there is a little bit of the problem. Nglish bobby we have the power of purse and to make policy, we do not have our own independent police force that operates outside the Capitol Grounds that is capable of enforcing those things. Congress finds itself in that position of saying stop or i will yell stop again. Give me this document or i will ask it again. The absence of an executive france prosecuter brand prosecutor, that creates a. Ifficult to solve problem we had had struggles with previous investigations and that led to congressional subpoenas that were not complied with. I wish i had the answer to those questions, i do not. There is not really any way to answer them because not all of these are disputes that the courts can have strong aced shown a strong inclination to settle. It depends on the two branches act unit neighborly fashion. Acting in a neighborly fashion. You have been a leader trying to obtain bipartisan powers reform. You believe that there is space for this to continue and the potential for reassembling what people believe a breakdown core nationalhe Security Issues . Off that involves saudi military action in yemen or do you think something is changing . I am so glad you asked it. I do not think this is a oneoff, i think this is a Tipping Point, and i think what we saw in yemen, bernie and i are just getting started. I am feeling the burn. The burn runs strong towards restoring separation of powers. I think the American People, republicans and democrats are yearning for this. Husbands,ms, dads, wives, sons, and daughters who have been affected by someone they know, someone they love who ,as been sent off to war sometimes deployed multiple times, and i think these things are starting to be recognized more in terms of their practical human cost than they have the past, and that has led to a appropriate loss of faith in the pagan idolatrous god known as the militaryindustrial complex. That complexes hurtful and does bad things. It manifests itself in the form humble obeisance to the executive branch, and it is wrong. Churchill wasston reported to have said, the American People will always make the right choice after they have exhausted every other alternative. That is where we are here, and we will make it. [applause] ok, congressman krishna morrissey has arrived and arrived andhi has we will talk about the current conflicts about the executive accessing information from for oversight. The congressman represents the eighth district in illinois. He is a young leader on the House Oversight committee as well as the House Intelligence Committee. He has an appointment and travel out of town and has conformed to schedule as best as he could to the end of the program. I see he isher ado, having a conversation with senator lee. With that i would like to introduce you to congressman krista krishnamoorthi. [applause] rep. Krishnamoorthi good afternoon, it is so nice to be here and thank you to have me. It is so nice to come to a place where they pronounce your name properly. Ran fororced first office in chicago ive said my name is roger krishnamoorthi. The person looked right back at Roger Christian wife murphy, nice to meet you. Irishd i did not know the made it to india. It is so nice to be here. I want to observe the three rules of public speaking. The short, sweet, and ghana. I want to ask all of you to give bob a round of applause for organizing todays event. Know bob and i have known him for a long time. The first time we met was 20 years ago. This winter. Know how i remember that . I was tasked at that time, i worked on the bill bradley president ial campaign, and i was threat tasked with driving bob from Boston Logan Airport to New Hampshire for a debate between bill bradley and al gore. Bob was assigned the role of playing al gore in the debate prep before the debate. Sowas a horrible snowstorm, i pick him up, and i was driving said, odge neon, and i bob i am sorry, i am not sure we will make it on time to this debate prep because my car does not do well in snow or any type of inclement weather. We ended up missing the debate prep, and may be the debate. Case, bob became a very good friend along with his wife, and i am so proud to be here. I want to make a few points, and then we will open it up. The first is i have to acknowledge that my joining you today comes with a tinge of sadness. I actually came here to fill the shoes of the late congressman Elijah Cummings, which of course we all know is impossible. Chairman cummings devoted his life to public service, and he never failed to be a good man. Her the last several years became a friend as well as a mentor to me as i became the chairman of one of his subcommittees thanks to him him selecting me. I want to tell you and annick that anecdote encapsulates who he was. Fiercen cummings was a supporter of oversight by congress of the executive branch. For that matter, he made sure it was ady, whether government agency, private actor, congress, and of course the president , was spared congressional oversight. Chairman cummings also never walked away from a fight. But he was always quick to make peace afterwards. One time Ranking Member as Ranking Member of the Oversight Committee. He and that then chairman had a confrontation in the hearing true, thech, this is chairman cut off his microphone. We went back to listen to this particular hearing and it turned out that after chairman the chairman cut off his microphone he continued to talk for another 10 minutes. After tempers cooled, the two buried the hatchet with the chairman apologizing and giving congressman cummings a megaphone along with a plaque that read, the gentleman will not yield. I know the chairman would be thrilled to know that we are here today to discuss congressional oversight, and i wanted to tell that story because i think that exemplifies chairman cummings life, a fierce advocate and a champion of congressional oversight. In conducting oversight, he never made war, and that is important. Even though we do contact oversight of the executive industry, andvate congress itself, we have to remember that we have to at least collaborate with each other and make sure that the government functions. I think that chairman exemplified that. Let me tell you a little bit about congressional oversight history, very briefly. As the american historian, gary wells, once wrote, accountability is the essence of democracy. If people do not know what their government is doing they cannot truly be selfgoverning. And Congress Oversight powers are implied rather than enumerated. But, since our countrys founding, courts as well as other authorities have recognized and reaffirm congresses Congress Oversight powers repeatedly. The first occurred in 7092 when James Madison led an investigation into military failures in the western territories. Since then congress has conducted interventions into clinical patronage and bribery. 1940s as america prepared to enter world war ii, stories of widespread mismanagement, inefficiently inefficiency and profiteering deeply troubled one littleknown settler senator from the midwest. This senator embarq on a tour of military embarked on a tour of military bases and found that contractors were being paid a fixed profit no matter how efficient or inefficient their operations proved to be. When he returned, the center raider put together a committee to investigate the National Defense program. His oversight efforts were instrumental in saving billions of dollars as well as thousands lives by exposing faulting faulty airplane and munitions production. It was so widely recognized that they launched into prominence. This was harry s truman, who went on to become our president. This is one example of the many people in our congressional Oversight Committee that made a difference. Let us fast forward to congressional oversight today. In a timegly, we are where the executive branch has resisted a lot of oversight. As chairman cummings put it earlier this year, our president engages in an unprecedented level of stonewalling, delay, and obstruction and has refused to comply with the most routine of oversight requests. Despite this current culture, congress has faithfully fulfilled its duty to conduct oversight. Hearingseld nearly 200 and opened investigations into multiple issues including investigations into Prescription Drug prices, impacts of trade policy, family separation disastersand natural occurring as a result of climate change. I am a chairman of the economic subcommittee, and in my role i have taken on a few issues. Theof them is fighting youth of vaping epidemic. Youth vaping epidemic. Almost 28 of High Schoolers are vaping, and last week we learned that 11 of middle schoolers are vaping. Middle schoolers. This is extremely dangerous because young brains are developing, and in that process if they are subject to ecigarettes and nicotine, they basically become damaged, and young people become prone to addiction to other substances. Because of that, i took on leadership on this particular issue to investigate why we have had this epidemic. We brought in executives from ofl, the largest maker ecigarettes with largest market with 80 of the market share. After the first hearing we conduct did, conducted back in the summer of this year, fortunately we were able to write a 50 page later letter to the fda with detailed findings from our hearings basically saying the following, which is that juul and other companies are not properly characterizing the risks associated with ecigarettes, they are advertising in ways that make youth more subtype susceptible to taking up ecigarettes, and, the very nature of the product, the fruit mint,ed ecigarettes, the mango, and creme cigarettes are appealing to young people and we have to ban the flavors. The Trump Administration cited our investigation and decided to do a couple of things. One, they issued a cease and desist letter to juul and other makers saying that you are not advertising it according to the law, and secondly they announced a ban on flavored ecigarettes. On the first issue, thankfully to being issued the cease and desist letter decided to halt all domestic advertise domestic advertising and marketing, which is a big deal especially if you were in a market like chicago ubiquitous,ds are are the on the radio, tv, billboards, and so forth. That was a positive step. On the other issue we are still grappling with the Trump Administration on how to rollout a ban. Bring up thisn i particular example is because it shows a couple of things. Can lead toht significant positive outcomes government. Vided especially, on the advertising piece. Interests and lobbyists can sometimes get in the way of proper implementation of the results. In this case, the vaping industry got the white house and was able to slow the rollout of the regulations that would ban flavored ecigarettes. We often have to grapple not only with the executive branch with but with private industry actors who might not want to see the results of our oversight be robustly implemented. But, that is why we go to the onctions, and we campaign faster implementation of certain solutions that we come up with, and, hopefully, the people will speak in the next election for a flavored ecigarettes ban, because that is something important for me and something i will be campaigning on. With that, i want to close with my favorite saying, which is that yesterday is history, tomorrow is a mystery, and today is a gift, which is why we call it a call it the present. I want to thank you for allowing me to be here for a few precious minutes to talk about oversight, and how important it is, not only in history, but today. Oversight and where we go from here. Thank you so much. [applause] some questions and i know you were on your travel and we will move you along. Very much appreciated. And as i move through these questions quickly. You have attempted to work on a variety of issues many of them across the aisle at a time when the presses so focused on polarizing stash when the press is so focused on polarizing asian. There is something to say for a young member working with the other side, and we are talking generally about the area of congressional and president ial relations of accommodations and trying to find the way the branches and the parties Work Together. Can you reflect on that . Rep. Krishnamoorthi in the vaping example, there was bipartisanship with regard to this issue, and we started a bipartisan, bicameral caucus to end youth vaping chaired by me, peter king, the republican congressman from long island, ckd senator did turbine di turbin. Us and together, 60 of said this is a nonpartisan issue and we need to act upon it. This issue of ending domestic advertising, that is something that the Trump Administration believed in, and we were able to accomplish that, because they saw the strength on both sides. Issuesere are other where we havent been able to come together, and yet we were still able to accomplish a lot. We conducted robust oversight hearings with regard to removing the Citizenship Question from the senses. There, credit goes to Elijah Cummings who was dogged in conducting these oversight hearings, even when it looked like we had no recourse. Was,ended up happening because of his pressure and additional information, the litigants were able to access more information and take it to court and the Supreme Court did the right thing in ruling as it did and the Trump Administration backed down. That was a situation where the Trump Administration was not willing to cooperate, what you do the oversight anyway because you do not know what information will surface and help others to use the court to affect change. That is an interesting set of issues that, one bipartisan, one not so much. Bob you will not be surprised to hear that a number of questions have to do with the impeachment process and the struggles between present the president and the congress. Let me ask you this process question. You sit on the intelligence and Oversight Committees. Can you speak to what you see is a distinction between their mandates and specifically, your response to the concern some have that the Intelligence Committee has strayed from its mandate in conducting impeachment hearings, that is a house Judiciary Committee function, and this sets a precedent that some find if not troubling then confusing. Rep. Krishnamoorthi as you when this whole saga began the Inspector General from the Intelligence Committee came to us with the whistleblower complaint and said that he could not reveal the contents of the complaint, what he said, and i am paraphrasing, but he said red lights flashing, do something about this because, technically nationalg director of intelligence needs to turn over the complaint to you and he is not doing it yet. And that is obviously what set the sirens and red flags off, and that is what began the impeachment inquiry. I think it was appropriate that it be conducted in the becauseence community that is the origin of the information that led to it, and the fact that we did not know what we were getting into. So, having it in the Intelligence Committee means that we have access to the infrastructure to handle sensitive or classified information. We are used to dealing with those issues and the actors coming forward with the information. I think that it was appropriate the way it was situated. Obviously, now inquiry technically ended not me back up, it has not ended, a report theprepared with preliminary findings and forwarded to the Judicial Committee for its consideration and it is considering it now as you can see on tv. Spoke, senator lee addressed the question of the second article. I am only bringing it up because it goes again to how congress protects constitutional equities in seeking information for the discharge of its various functions. That anot agree president could be subject to impeachment for taking the position that this president did that he would not cooperate with the congress in the impeachment process and did not believe it was in good faith and fairness. He would essentially take his defense to the senate once the house had impeached him. Congressman lee did not believe that congress should be standing on that as it has, or responding to it as it has in the second set of articles that the house Judiciary Committee has developed. Mustlieves that the courts decide these disputes. Do you have a comment on that . Rep. Krishnamoorthi yes. I disagree. I strongly disagree. Issue. Here is the yes, there may be some valid disputes where the executive can assert executive privilege over certain testimony or with dark with regard to certain documents. And perhaps those should be decided in court. You cant just not to over anything, you in this particular situation, not only did he not allow any production of documents from the state department, defense department, office of management and budget, or any other agency, he instructed every witness to not testify. So, even people who cannot possibly assert executive privilege, or possibly assert this crazy claim of absolute immunity which i am still trying to wrap my head around. It is something that my 10 or 14yearold might assert at home. Sizede will never wreck recognize that immunity. The point is this. Hise had confined objections to certain specific issues, and said this is executive privilege and it looks like something within the realm of a valid assertion, i think that is something that congress would have said, let us decided in the court. When it is absolute stonewalling, and saying we are not going to produce anything and to quote mick mulvaney, get over it, that will not go over well. I also want to mention that i was struck by the incredible bravery,nalism of and patriotism of all the people who came before us, 17 witnesses. That is a lot of people who defied the president and came forward, oftentimes putting their careers on the line to testify under oath. Least byed to say the their example, and it is a reminder that there are good people in our government, and we have to do everything as Public Servants to protect them and allow them to do their jobs a politically, especially as career Public Servants. Trying to win a popularity award with your schedulers. I am keeping a close eye on this. Power of the purse. Some say, why does congress not have the ultimate ability to enforce its demands. It could shut off funding in ways that is painful for the executive and to put it politely encourage them to accommodate accommodate, less politely, ring them to their knees. Is there a reason why congress does not resort to that power. Rep. Krishnamoorthi i think that is a lot of collateral that is because of the collateral damage. You do not know what the unintended consequences would be, especially in the intelligence space. It is interesting, i am in the skiff almost every day at this point, and it is not about impeachment, it is about the other programs that we have oversight four. We might disagree on occasion without the president conducts the affairs of the Intelligence Community, that we always try to find an accommodation as best as we can to make sure that the career Civil Servants in our Intelligence Community or the brave soldiers or others can do their jobs. And, once you start that is the ultimate tool. Once you abuse the power of the purse in that way, you could end up hurting a lot of people. That may not be the best way forward. Bob last question. I am whipping through these cards and picking on a few themes, whether congress would use it power for contempt and noncompliance, and there is another question of how Aggressive Congress could be. Rep. Krishnamoorthi is don mcgahn here . Bob he left before you could exercise that power. The question i could ask that brings these concerns together that asked how more extensively congress could file suit for these problems. Is there any particular reform in the way that congress or changes in the way that Congress Addresses these issues that could be most effective and begin to move us towards what could be a better balance on these oversight and investigative issues . Rep. Krishnamoorthi it is a great question because if anything comes out of this that is positive it has to be ways that we can actually conduct oversight without making it a bare knuckles brawl, which is what it has gotten into now. That inly do not think the last 50 or 60 years people anticipated this level of obstructionism, because the tools for us are going to court. We can talk about inherent withmpt, but we dispensed jail a long time ago in the house. There is no jail, we do not have it. Although some Committee Hearings could serve as a proxy. We will put you in this Committee Hearing for mark up for five hours in less you turn over the documents. Forms ofe from those house arrest, we do not have any other way to enforce our powers other than to go on court. The problem is as adam schiff said, it takes eight months to get a ruling from an appellate court, another eight months to go to the Supreme Court, and what happens is the executive branch runs out the clock. If the executive branch has the chance to run out the clock, then what is the purpose . There is no way to conduct our oversight. Thatrms of reform, i think someuld obviously require kind of constitutional amendment because, right now we are in that space between branches of government, and we cannot just put a law in place necessarily, i think, maybe someone disagrees. We could try and put a law in place that says certain types of documents should be available to us, or whatever is in the Inspector Generals possession should be available to us, but i bet you that will be taken to court right away, and it will be a constitutional case. Letould do it that way and the court decide whether these reforms are illegal, but i have a feeling that they would send it back with instructions to amend the constitution. And, sort it out among yourselves. That is the issue we have. I think the last thing i would we have thepoint is impeachment tool, but it is a blunt instrument, as you can tell. Hopefully, right now we are going through a very serious process, and i think i never used the word impeachment when i ran for office, let alone did i ever think i would be part of impeaching a president. Moment ind somber our history. As blunt a tool as it is, it is the tool we have to make sure that the peoples will is always done, and where someone in the white house might do something that is completely outside the bounds of what is in the best interest of the country, war, plausibly within the bet or, plausibly within the best interest of the country then we have to resort to this tool. Thank you so much, everybody. [applause] thank you all, you are a terrific audience, love the questions that came from you. Some of you have been here from the beginning and probably want a bathroom break badly, but between here and the next floor up there will be a reception and there is some food and drinks that you can have, and thank you for your support. We understand that parts of this and cspan is doing all of it. If you have missed something and want to see it again, be in touch with your media folks, or call cspan and find out when it is coming. Again, thank you for being such a great audience. We appreciate it. [applause] [captions Copyright National cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] the Hudson Institute and washington, d. C. Holds a discussion with the Justice Department official on u. S. Antitrust policy live monday at , onlinetern on cspan2 at cspan. Org or on the free cspan radio app. There are 23 ayes, and 17 noes. The house Judiciary Committee approving two articles of impeachment, abuse of power and obstruction of congress, the House Rules Committee will meet on the guidelines on how the debate will unfold. At 11 00erage tuesday a. M. Eastern. Watch online at cspan. Org impeachment, or listen with the free radio app. Secretary of state mike pompeo and Russian Foreign minister Sergei Lavrov held a News Conference with reporters at the state department. They spoke about current relations between the u. S. And russia. Good afternoono er