Posted October 2019
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Top Trump Administration officials sought to block Congress from obtaining information from career agency officials. Secretary of State Mike Pompeo, for example, objected to congressional requests to depose State Department officials, asserting that the requests constituted “an attempt to intimidate, bully, and treat improperly the distinguished professionals of the Department of State, including several career foreign service officers.” Secretary of the Interior David Bernhardt defended his agency’s failure to schedule interviews of career employees requested by Congress by stating “when you want to shoot at me, that comes with the territory,” but “you’re talking about individual employees that have been long-standing employees within the Department.” This position is contrary to federal law, which makes it illegal for any government official to prevent career officials from sharing information with Congress.
It is also contrary to long-standing congressional precedent. Obtaining testimony of career federal agency officials has long been a critical means for congressional investigators to conduct oversight over the executive branch. Oversight committees have frequently interviewed, deposed, and received hearing testimony from career agency employees. For example, in just the two-month period during the Obama Administration between May and June 2011, at least 103 career officials testified before Congress. In a comparable two-month period during the Bush Administration between May and June 2007, at least 97 career officials testified before Congress.
Many congressional investigations have involved extensive testimony from career employees. For example, the House Select Committee on the Events Surrounding the 2012 Terrorist Attack in Benghazi -- on which Secretary of State Mike Pompeo served when he was a member of Congress -- interviewed over 60 career officials in the Departments of State and Defense and the Central Intelligence Agency. The Senate Special Committee to Investigate Whitewater Development Corporation and Related Matters took testimony from over 30 career officials across the Department of Justice, Federal Bureau of Investigation, Department of the Treasury, and the White House.
Career civil servants who have provided testimony to oversight proceedings have held a wide variety of positions, including:
Beyond the voluminous public record of career official testimony to Congress, there also have been numerous instances where congressional committees obtained testimony from career officials in transcribed interviews to advance committee oversight without even publicly identifying these individual witnesses.
Congress’ oversight authorities are inherent in its legislative powers under Article I of the Constitution. These powers include the authority to compel testimony of officials in the executive branch.
Congress has enacted at least seven laws that protect the right of Congress to receive information from federal officials. The Whistleblower Protection Act (5 U.S.C. § 2302(b)(8)) protects federal employees against adverse personnel action for disclosing information to Congress that evidences a “violation of any law, rule, or regulation or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,” if the disclosure is not prohibited by law or by an executive order that requires the information to be kept secret in the interest of national defense or foreign affairs.
The Lloyd LaFollette Act (5 U.S.C. § 7211) protects an even broader range of communications, providing that “[t]he rights of employees … to petition Congress or a member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.”
The Anti-Gag Rule (5 U.S.C. § 2302(b)(13)) makes it a prohibited personnel practice to implement or enforce any nondisclosure policy that fails to inform the affected employees of their “'rights created by existing statute … relating to … communications to Congress … or any other whistleblower protection.’”
The Obstruction of Justice Statute (18 U.S.C. § 1505) makes it a crime for any individual who "corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress."
With respect to members of the intelligence community, the Intelligence Community Whistleblower Protection Act sets forth procedures for reporting information of concern to Congress consistent with ensuring the security of classified information.
Language enacted in annual appropriations measures reinforces these protections. Section 713 of the Consolidated Appropriations Act of 2019 provides that no funds are available for the salary of any federal employee who “prohibits or prevents or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, Committee, or subcommittee of the Congress …, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the requestor inquiry of such Member, committee, or subcommittee.” Language in section 743 of the Consolidated Appropriations Act of 2019 provides that no funds may be used to implement or enforce any nondisclosure policy that does not advise federal employees of their statutory protections to communicate with Congress.
Violations of these laws can result in serious consequences. Engaging in prohibited personnel practices, such as violations of the Whistleblower Protection Act and the Anti-Gag Rule, can lead to suspension, demotion, removal from office, or debarment (5 U.S.C. § 1215). The Office of the Special Counsel has authority to investigate alleged prohibited personnel practices and recommend agency disciplinary action (5 U.S.C. § 1212). If the agency head does not act, the Special Counsel has independent authority to seek disciplinary action before the Merit Systems Protection Board (5 U.S.C. § 1215). If the prohibited personnel action involves retaliation against an employee, additional disciplinary procedures are triggered. Under the Kirkpatrick Whistleblower Act of 2017 (5 U.S.C. § 7515), a finding by the Special Counsel that an official retaliated against a whistleblower sets in motion a mandatory disciplinary proceeding in which the minimum sanction for the first retaliatory act is a suspension of at least three days and the sanction for the second retaliatory act is termination of the official.
Violations of appropriations riders are violations of the Anti-Deficiency Act (31 U.S.C. § 1341), which can trigger both civil penalties and criminal penalties. Violations of appropriations riders can also lead to a claim under the Federal Claims Collection Act (31 U.S.C. § 3711) for recoupment of salary.
The Department of Justice can prosecute violations of the Obstruction of Justice Statute (18 U.S.C. § 1505). A Congressional Research Service analysis found that a person who “conceals or covers up” material facts from Congress could also be prosecuted under the False Statements and Concealment Statute (18 U.S.C. § 1001).
As demonstrated by a 2017 action by the Trump Administration, officials who violate these laws during one administration can face sanctions for their actions in the next administration. In 2016, GAO issued an opinion recommending recoupment of salaries of officials at the Department of Housing and Urban Development based on their interference with a congressional request for testimony from a career HUD official. Although the Obama Administration took no action, the Trump Administration initiated collection efforts in 2017 “to recoup salary previously paid to [the] former Deputy Assistant Secretary.”
The House Select Committee on Events Surrounding the 2012 Terrorist Attack on Benghazi conducted dozens of transcribed interviews of career officials at the State Department during the Committee’s investigation of the 2012 attack on the State Department compound in Libya (2014-16). These included:
To assess how common testimony of career officials is, Co-Equal reviewed a two-month period in 2007 during the George W. Bush Administration after Democrats regained control of the House and Senate and a comparable two-month period in 2011 after Republicans regained control of the House during the Obama Administration. This review of the two two-month periods showed extensive testimony by career officials testifying routinely before committees. In this randomly selected two month snapshot, at least 97 career officials serving during the George W. Bush Administration testified before the House and Senate between May and June 2007 and at least 103 career officials in the Obama Administration testified before Congress between May and June in 2011.
The full list of career officials who testified during these two two-month periods can be found here.
