Rep. Elijah Cummings and his colleagues stated "The Seven Member Rule is not a regulation or guideline, but a statute that was passed by both houses of Congress and signed by the President." | AP Photo Dems step up demands for Trump hotel records Oversight fight over 'seven-member rule' could be headed to court

House Democrats are escalating their battle against a Trump administration directive instructing federal agencies not to respond to oversight requests issued by Democratic lawmakers.

The White House acknowledged the new policy last week, backed by a Justice Department legal opinion that says individual members of the House and Senate don't have a special right to obtain executive branch information beyond the way members of the public can through Freedom of Information Act requests.


Democratic lawmakers have been battling the administration over their demands for various records related to the Trump International Hotel, which operates on a lease from the federal government's General Services Administration. President Donald Trump has retained ownership of his businesses, though he has said he is not involved in managing them.

The 18 Democratic members of the House Oversight and Government Reform committee stepped up their efforts to get the documents Monday by sending a letter to the GSA invoking a somewhat-obscure 1928 law that allows any seven members of the panel to demand information from the executive branch. It provides a rare legal basis for minority-party lawmakers to conduct oversight without the approval of congressional leaders.

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"The Seven Member Rule is not a regulation or guideline, but a statute that was passed by both houses of Congress and signed by the President," the ranking Democrat on the House Oversight committee, Rep. Elijah Cummings, and his colleagues wrote in a letter to acting GSA chief Tim Horne.

"Although you may wish to limit oversight from Democratic Members of Congress through a misguided policy that responds only to Republican Chairmen, compliance with federal law is not an optional exercise that may be overridden by a new Trump Administration policy. "

The letter cites past litigation over the so-called seven-member rule, including a battle between the George W. Bush administration and Democrats that resulted in a 2002 district court ruling requiring disclosure of census data the administration did not wish to release. The Justice Department appealed that ruling to the 9th Circuit Court of Appeals, but no resolution of the appeal was ever reached because the court ordered release of the data in a parallel Freedom of Information Act case.

Asked if the Democrats would go to court if the Trump administration defies the request, a committee aide said: “Of course, our preference would not to be to pursue litigation, but rather to obtain the documents we asked for months ago. We do not understand why the Trump administration is reversing its position on this issue — especially since the president’s internal dealings with GSA should be a matter of public record.”

Democrats say they got the information from GSA under the same rule during the Obama administration. The data included monthly revenue reports for Trump's hotel, which his companies are required to submit under the lease. GSA did not respond to an email last night seeking comment on the letter. However, a GSA official said last month that the information stream was cut off at the direction of the Trump administration.

The four-page Office of Legal Counsel opinion the Justice Department released last week argues that individual lawmakers have no special right to information.

"Individual members who have not been authorized to conduct oversight are entitled to no more than 'the voluntary cooperation of agency officials or private persons,'" acting Assistant Attorney General Curtis Gannon wrote. "Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee."

The opinion, dated May 1, does not directly address the seven-member rule or cite the statute that created it. Democrats, however, argued in their letter that the rule applies to their request for information from the GSA.

"This opinion is flawed in many ways, but even taking it at face value, GSA must comply with requests submitted under the statutory Seven Member Rule," Cummings and the other Democrats wrote.

Experts on oversight disputes involving Congress and the White House said they would not be surprised if this one ends up in court.

"That's quite possible and even likely and, I would say, sadly so," said George Mason University professor Mark Rozell, who studies executive privilege fights. "Until several years ago, the parties usually had good-faith negotiations to figure out some way to compromise in these access-to-information disputes. Now, it seems the parties ratchet up the conflict and put it before the courts which is really a failure in the system."

Rozell said the legal issue falls in a "constitutional gray area" and predicted it could lead to an "excruciatingly long" court battle.

A lawsuit a House panel filed in 2012 against Attorney General Eric Holder over records in the Operation Fast and Furious investigation is still pending at a federal appeals court, nearly five years later.

Rozell said he believes the fact the current request comes solely from Democratic members increases the complexity of the battle, but doesn't mean the members will lose. "It's complicated that this is being driven by the minority party. No doubt about it," the professor said. "But mere minority status does not mean they have no standing to request information or to investigate."

Former House counsel Stanley Brand noted that in recent oversight battles that went to court those suing had a vote of the full House to authorize the litigation. However, he said the seven-member request — in this case an 18-member request — has the advantage of a full-blown statute backing it up.

"In one sense, you could argue it's a stronger demonstration of standing than the typical case where you have a single house of Congress issuing a resolution," Brand said. He said the critical question may not be whether Congress has the right to demand the information, but whether the courts have the legal authority to take up such a case without an explicit enforcement mechanism in the law.

Asked why the legal opinion issued last month made no reference at all to the provision the Democrats are invoking, Brand said the Justice Department has argued that the seven-member rule is not enforceable in court.

"They don't like the seven-member rule and they don't believe in it," he said.

The fight over the census records a decade and a half ago caused a partisan split among House leaders. Minority leader Dick Gephardt (D-Mo.) and Minority Whip Nancy Pelosi (D-Calif.) supported the suit, while Speaker Dennis Hastert (R-Ill), Majority Leader Dick Armey (R-Texas) and Majority Whip Tom DeLay (R-Texas) said the dispute should be left to the political branches.

However, Hastert was not above invoking the rather obscure rule upon occasion.

In 1994, he was part of a group that turned to the rule to obtain records related to the Whitewater affair involving President Bill Clinton. The House lawmakers embraced the rule after the courts turned down a Freedom of Information Act suit seeking the same information. The House members ultimately got the data they were seeking.