'A Subpoena is Not a Suggestion,' Says House Oversight Chairman

Sparks flew on Tuesday in the latest clash between congressional overseers and Obama administration appointees over the pace of agency document production, as lawmakers threatened the top White House regulatory official with a contempt of Congress citation.

“A subpoena is not a suggestion,” said House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah., in scolding Howard Shelanski, administrator of the White House Office of Information and Regulatory Affairs. “My view of a subpoena is that it means 100 percent. What should Congress not see?” he asked, citing past letters, hearings and a nine-month old subpoena. “What are you hiding?”

Shelanski came before the panel for the second time to explain why his unit within the Office of Management and Budget has not satisfied lawmakers’ request for documents relating to the “Waters of the United States” clean water regulation finalized by the Environmental Protection Agency last May.

“We have turned over a large number of documents” going back nine years, some 6,400 pages, that have been “prioritized with your committee staff,” Shelanski said. “But the request was very broad,” and “without knowing what you’re looking for,” many of the documents found by a half-dozen staffers working on the request “were nonresponsive, containing other information,” he said.

“We agree the committee should receive all the documents responsive to your requests. The review is ongoing,” Shelanski stressed. “We are hiding nothing, but we are not finished.”

Chaffetz, who had one point confessed that he’d better stop talking before he said something that “goes too far,” told the regulatory chief, “Let me make this clear, I want 100 percent of the documents. I’m on the verge of recommending a contempt citation.”

The hearing examined the three agencies that Chaffetz considered the least responsive to his panel’s recent surge in document demands. Besides OIRA, lawmakers quizzed attorneys from the Health and Human Services Department on their handling of documents related to the 2010 Affordable Care Act’s failing co-ops. They also questioned the Homeland Security Department’s responses to requests related to the Secret Service, the Transportation Security Administration and the Immigrations and Customs Enforcement.

“To date, OIRA has produced about 6,000 pages,” the chairman said in launching exchanges in which lawmakers referred to agency employees as “clueless” and “like children.” He added: “Roughly 80 percent of these pages are meaningless because they are either duplicates or just copies of the publicly available rule.”

But Rep. Elijah Cummings, D-Md., ranking member of the committee, saw politics at work and demanded that agencies remember to deliver copies of documents to the minority side. “While documents are an important tool that Congress uses as part of its oversight responsibilities, we also have a responsibility to avoid massive and overbroad requests that can create the very waste and inefficiency we should be trying to eliminate,” he said. “The focus of committee document requests should be on investigating actual evidence of waste or wrongdoing rather than fishing for nonexistent problems as a form of political attack.”

Cummings called for Congress to conduct reviews of agency information processes, including document preservation, collection and production, to accelerate document delivery to Congress. “The second, but equally important thing Congress can do is take a closer look at itself,” Cummings said. “We should be ending the politically motivated requests that are designed to generate headlines rather than improve effectiveness and efficiency.  Importantly, we can ask for only what we really need rather than everything under the sun. And we can work with agencies to understand their legitimate interests in protecting certain classes of information while pursuing accommodations that give us what we need to do our jobs.”

Jonathan Meyer, deputy general counsel for DHS’ Office of General Counsel, emphasized his department’s commitment to transparency and timely responses to Congress. Under Secretary Jeh Johnson, Meyer said, the department’s responsiveness to oversight requests has improved by over 60 percent and the average response time has fallen from 42 business days to less than 17. “We accomplished this in spite of a significant increase in correspondence,” he said.

“During calendar year 2015, DHS received approximately 700 oversight letters and countless more oversight requests. Of those, 70 letters came from members of this committee,” Meyer testified. “Similarly, the hearing schedule has accelerated. DHS is on pace to provide 50 percent more hearing witnesses to this committee this year than last.”

But Rep. John Mica, R-Fla., was unimpressed, lambasting DHS for “gaming that gets worse every year. You say you can produce 21,000 documents, but you don’t provide the documents we wanted,” Mica said. “And the witnesses you provide are low-level, some of whom have no clue.”

Meyer called responding to the panel “an intensive task” in the case of the Secret Service’s prostitution scandal, document request for which goes back 15 years. “Special agents are in law enforcement so they’re not trained in oversight response.” Meyer “freely admitted” that he personally had not read all 13,000 pages of Secret Service documents that his department’s sub-agency had produced, reviewed and redacted. And he noted some document requests involving ICE and U.S. Citizenship and Immigration Services involve “tens of thousands of employees and would have to be collected from all 50 states.”

When Chaffetz quizzed him about White House involvement in document production, he said he knew of little, quoting courts that “have called on legislative and executive branches to negotiate their legitimate interests” acknowledging executive privilege.

Jim Esquea, assistant secretary for legislation at the Health and Human Services Department, implored the panel to “work with us.” He told a skeptical Rep. Jim Jordan, R-Ohio, that agency employees “have worked hard” to produce 31,000 pages and two in-camera reviews of market-sensitive documents on the health care co-ops to Congress. “We have been very aggressive in responding to committee requests and will continue.”

But Chaffetz replied, “I’m not in negotiating mode. Your assumption that an in-camera review responds to subpoena is fiction, and has no basis in law.”

Some Democrats resisted. Rep. Gerry Connolly, D-Va., said, “The chairman’s questions allow an impression that [the agencies] are willfully ignoring the subpoena from Congress, which none of us would support.” Connolly mockingly invoked an image in the minds of some lawmakers that agency responses are as simple as “bringing a pickup of artifacts reading ‘Waters of the United States’ … to Congress.”

Rep. Mark Meadows, R-N.C., challenged Shelanki’s candor in responding to questions and his admission that his office had “gotten off to a slow start” in responding to last July’s subpoena. “Not a slow start, a nonstart,” Meadows said. “1,300 documents in a year, that’s only three a day, and only 47 of them were not found already online. I could come over there and fix that universe of documents in six days,” Meadows added, calling the witness “nonresponsive.”

Replied Shelanski, “I’m trying sincerely to answer questions, and when I don’t know, I say so.”

Rep. Robin Kelly, D-Ill., said, “We on the committee have an obligation to not make overly broad requests.”

In the end Cummings and others agreed that the agencies could speed up delivery. “There seems to be some rope-a-doping going on. You can do better,” he said.

Chaffetz told DHS’ Meyer he was tired of the “game playing. It makes people sick and disgusted with their government.”