Ruling for Minority Power Aids Both Sides Next Year

Information requests by congressional oversight panels don’t require the approval of majority members, a federal appeals court in Washington said, in a ruling that could help Republicans and Democrats alike.

Tuesday’s decision by a three-judge panel, which overturned a district court opinion for the Trump administration, could smooth the way for Republicans in the Democratic-majority House to pursue investigations that might be politically damaging to the administration of President-elect Joe Biden.

“The ruling makes it easier for members of Congress -- specifically, members of the House Oversight Committee -- to get the courts to step in if the administration fails to comply with particular requests for information,” said David Sklansky, a professor at Stanford Law School.

But the 2-to-1 ruling could also bolster Senate Democrats in conducting probes of Donald Trump in coordination with the House majority if they fail to gain control of the Senate after two Jan. 5 runoff elections in Georgia.

The appellate court’s decision affirms the right of minorities on the oversight committees, at least seven members on the House committee and five in the Senate, to request information from federal agencies. It’s distinct from the subpoena power of Congressional committees to request documents and witnesses, which requires a majority of the committee.

Right to Information

Key to Tuesday’s majority opinion “is that there is a statute which gives members of Congress the right to this information,” said Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law.

The separation of powers “is not a one-way street that runs to the aggrandizement of the executive branch,” the panel warned, sending the case back to the trial court for further proceedings.

The dispute stemmed from a 2017 effort by Democratic members of the House Oversight and Reform Committee, before Democrats took over the House, to gather details of the terms under which the General Services Administration came to lease the Old Post Office building to Trump. The building became the Trump International Hotel in Washington.

The Democratic members demanded further information about what steps the GSA had taken to address provisions in the lease prohibiting federal office holders from being involved in the business after Trump was elected president.

The GSA, which refused to produce the requested information, argued that the minority members didn’t have the authority to sue because they didn’t sustain any legal injury from its refusal. The appeals court disagreed, in an opinion that focused on the procedural issue of standing.

The lease agreement was struck in 2013, under the administration of President Barack Obama and before Trump began campaigning for office.

The dissenting judge in Tuesday’s ruling said legislative powers belong to the House itself and not its individual members and that “the consequences of allowing a handful of members to enforce in court demands for executive branch documents without regard to the wishes of the House majority are sure to be ruinous.”

©2021 Bloomberg L.P.

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