Rep. Cummings reacts to Justice Department opinion: 'We cannot do our jobs'

A Justice Department opinion stating that the executive branch can ignore information requests from individual members of Congress has drawn the ire of the top Democrat on the House oversight committee.

Rep. Elijah Cummings, D-Md., called the policy, which would give the Trump administration the ability to keep records from Democrats, "misguided," and said it directly conflicted with the legislative branch's duty to provide a check on executive agencies.

"We cannot do our jobs if the Trump administration adopts this unprecedented new policy of refusing to provide any information to Congress unless a request is backed by the implicit threat of a subpoena," Cummings said in a statement. "This has never been the standard for responding to congressional inquiries – and it should not take the threat of a subpoena to pry information free from this administration."

Cummings is the ranking member of the House Oversight and Government Reform committee, which is running an investigation into possible collusion between Trump campaign associates and Russia during the 2016 presidential election.

He’s referring to the May 1 internal opinion from the Justice Department’s Office of Legal Counsel, which was released this week, that said “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 went on to say: "They may request information from the Executive Branch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a subpoena or contempt proceedings."

The Office of Legal Counsel notes that the executive branch's "longstanding policy" is to only answer requests that come from "a committee, subcommittee or chairman authorized to conduct oversight."

This would inherently mean that members of the minority would not be able to make information requests the majority party doesn’t sign off.

Josh Chafetz, a law professor at Cornell University, said that, in essence, the OLC memo was right: The power to conduct oversight falls to each chamber of Congress, and that power is then delegated to committees and subcommittees. The committees and subcommittees can make the rules of how to exercise this power.

"An individual member who is not acting pursuant of power that can be traced back to the chamber as a whole does not have the authority to subpoena or to hold in contempt, and therefore has no enforceable way to 'demand' information," he said in an email.

Still, Chafetz noted that minority members have a "great deal of power" and that it would be wise not to annoy them.

"Agencies, who are repeat players and often have intense interactions with specific committees, generally get this, and are generally responsive even to minority members, unless ordered not to be from the White House," Chafetz said.

It’s hard to tell the scope of how this policy may be playing out on the agency level.

Since the start of the Trump administration, Democrats have complained that their requests have been ignored by the executive branch.

Coleman Lamb, a spokesman for Democratic Rep. Kathleen Rice of New York, described how the New Democrat Coalition sent a letter to the Office of Personnel Management at the beginning of May, calling on the agency to improve its cybersecurity hiring process. Rice is the co-chair of the coalition's cybersecurity task force.

When the letter went unanswered, Rice's office followed up with an OPM official. That official told the Rice staffer that the agency would not respond to the coalition's letter, Lamb said. The policy was apparently put into place by the agency's new chief of staff, Jason Simmons, who had served as a senior White House adviser from January to April and oversaw the Trump campaign in North Carolina.

"We just thought this was specific to OPM, but after talking to some other folks, there has been a growing suspicion that is has started to happen at other agencies," Lamb said.