How the Senate Should Use the AG Nomination to Reclaim Congress’s Authority

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

A new study explores how, a decade ago, Senator Chuck Grassley forced the Trump White House to abandon a misguided Justice Department legal opinion in a successful effort to protect Congress’s investigative power. This history raises a question for today: will Senators take similar steps now to safeguard their core legislative authorities?

Within months of President Trump first taking office in 2017, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion proclaiming that the Administration could ignore information requests from the minority because, under the Constitution, individual members of Congress “do not have the authority to conduct oversight.”

For OLC to so fundamentally misunderstand and misstate such a simple fact exposes its shocking lack of professionalism and objectivity.

These aren’t my words, but those of Senate Judiciary Committee Chairman Chuck Grassley. He delivered a stunning rebuke of OLC’s reasoning, held up President Trump’s nominee to head OLC, and called on the White House to jettison the opinion, which it did.

The story of how this happened—as I detail in my new article Mapping Minority Investigative Powers in Congress—highlights how OLC sought to mischaracterize and minimize Congress’s oversight authority and how strong congressional pushback, including from members of the President’s own party, forced the White House to abandon OLC’s position.

This episode also raises a question: When Senators consider President Trump’s nominee for Attorney General, Todd Blanche, will they take similar steps to combat OLC’s latest attacks on their legislative authorities?

OLC’s Disregard of Constitutional and Legal Precedent

In early 2017, a White House lawyer reportedly directed agencies to stop responding to requests from Democratic lawmakers in the minority. This blanket order reversed decades of practice by administrations of both political parties publicly espousing cooperation, negotiation, and accommodation in responding to minority requests while reserving discretion to fulfill or resist them.

When the White House requested legal cover for this directive, OLC responded with its opinion, arguing that individual members had no more basis for seeking information than members of the general public filing FOIA requests.

OLC ignored the fact that each member is a duly elected constitutional officer with authority to make oversight inquiries to effectively fulfill all the tasks the Constitution assigns to them. OLC also disregarded legal precedent that undermined its conclusion.

For example, in the 1979 case of Murphy v. Department of the Army, the D.C. Circuit found: “All Members have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information.” The court added: “Each of them participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as will enable him to carry out the responsibilities of a legislator.”

OLC never mentioned this precedent. In that case, the Army provided an internal memo about a dam project to a member representing that district. The court found that the Army didn’t waive its right to invoke FOIA’s deliberative process exemption to withhold that information from the general public. Without distinguishing the constitutional role of members of Congress, the public might have demanded confidential information provided to Congress without a subpoena.

Although the court recognized each member’s authority to seek information, it did not address what happens when the Executive Branch refuses. To fend off the suggestion that members could enforce this right in court, the Justice Department issued guidance in 1984 advising agencies that although they were not required to provide information exempted under FOIA, they should “of course give very careful consideration to any access request received from a Member of Congress, with discretionary disclosure often a possibility.”

OLC nixed this approach in 2017. It adopted a “general policy” of limiting minority members to information that was already public or available through FOIA. According to an attorney who previously served at OLC, the 2017 opinion “provided express support for upending the longstanding and beneficial tradition of respect between the branches.”

OLC’s Flawed Characterization of Congress’s Authority and Procedures

OLC rested its conclusion on the inaccurate claim that minority requests are “not legally enforceable” through subpoenas. OLC made a delegation argument: Congress delegated to committee chairs authority to issue subpoenas unilaterally, but it didn’t delegate this authority to other members, so a minority request “is not properly considered an ‘oversight’ request.”

But the House and Senate have authorized two processes for issuing subpoenas, not one. Under the first, all members have been delegated rights to offer subpoena motions, debate their merits, offer amendments, and vote on whether to approve them. If approved, chairs must serve subpoenas even if they personally oppose them.

A second method evolved to allow committee chairs to issue subpoenas unilaterally, with no debate or vote. In 1995, Republicans authorized House Oversight Committee Chairman Dan Burton to issue subpoenas unilaterally. Although he was the subject of significant criticism after issuing more than 1,000 subpoenas focused predominantly on Democratic officials, this unilateral authority spread to other House committees and to some (but not all) Senate committees.

OLC focused only on the second method and ignored the first. The most significant obstacle for minority members is the reality that they may not convince enough members to support their subpoena motions. This is a practical and political impediment, not a constitutional or legal one.

A voluntary request for information is not enforceable without a subpoena, regardless of who offers it. A minority request could become binding if a majority of committee members votes to approve a subpoena, but that outcome will not be known until a vote is taken. The flip-side is also true: a request from a majority chair is not enforceable until a subpoena is issued. (There may be exceptions for statutory authorizations, such as the appropriations rider that authorizes individual members to inspect immigration detention facilities without advance notice.)

In other words, neither majority nor minority requests are “legally enforceable” until subpoenas are issued pursuant to the procedures of the House or Senate. The fact that a chair may issue a subpoena unilaterally in the future does not change the legal status of a voluntary letter request in the present. Yet, OLC treated the political likelihood of a chair issuing a subpoena tomorrow as having determinative legal effect today.

OLC’s reasoning rested on the assumption that no subpoenas could ever be issued to enforce minority requests. This assumption is wrong based on both process and precedent. A minority member has just as much authority to move for a subpoena as any other member; the difference is the likelihood of prevailing on a vote. Although chances may be slim, they are real. A recent high-profile illustration is Rep. Summer Lee’s successful subpoena motion to compel Attorney General Pam Bondi to produce the Department’s files on Jeffrey Epstein. It was debated, amended, and adopted in compliance with House rules, despite the chair’s opposition. There have also been other examples under both Democratic and Republican majorities.

Senator Grassley’s Response

The most effective response to OLC came from Chairman Grassley. His letter to the President made clear that “all members need accurate information from the Executive Branch in order to carry out their Constitutional function to make informed decisions on all sorts of legislative issues covering a vast array of complex matters across our massive federal government.”

Pointing to Murphy, he took OLC to task for failing “to cite and analyze any authority that challenges its conclusion.” He noted that all members have been delegated authority to participate in subpoena debates, while only some committee chairs have unilateral subpoena authority. He dismissed as “mostly false” OLC’s claim that only chairs have been authorized to seek information, and he condemned OLC’s effort “to insulate the Executive Branch from scrutiny by the elected representatives of the American people.”

He saved his harshest criticism for OLC’s effort to “speak for the Legislative Branch, an act which itself lacks any authority.” As he wrote, “It simply is not the province of another branch of government to say which information gathering activities by Members of Congress are ‘authorized’ or not.” He called on President Trump to “rescind this OLC opinion and any policy of ignoring oversight request from non-Chairmen.”

Senator Grassley then used the tools of the Senate and his role as chairman. He placed a hold on Steven Engel’s nomination to head OLC. He then exchanged letters with Engel, pressing him to admit OLC should have considered contrary precedents. He also got Engel’s agreement that individual members “are ‘authorized’ to seek such information in their roles as constitutional officers,” and he obtained Engel’s commitments to drop the blanket denial policy and instead “seek to satisfy the legislative needs of Members.”

Admitting OLC was wrong was significant, but another remarkable development came when the White House’s Director of Legislative Affairs, Marc Short, wrote to Chairman Grassley that OLC’s opinion “was not intended to provide, and did not purport to provide, a statement of Administration policy.” This extraordinary reversal also committed to respecting “the rights of all individual Members” and using their “best efforts to be as timely and responsive as possible in answering such requests.”

With the White House throwing OLC’s opinion overboard, Chairman Grassley lifted his hold, the Senate confirmed Engel, and OLC issued a new opinion acknowledging Murphy and these commitments to Chairman Grassley.

Future administrations no doubt will continue rejecting some minority requests for information, and even successful minority subpoena motions don’t guarantee compliance, as the ongoing fight over the Epstein documents shows. But these developments demonstrate why no court, practitioner, or scholar should ever cite OLC’s 2017 opinion as an authoritative stance on Congress’s investigative power.

Implications for AG Confirmation Process

This episode centered on OLC’s attack on Congress’s oversight authority, but it may have implications for OLC’s campaign to undermine Congress’s legislative authority. It suggests that Chairman Grassley, or any Senator, could take similar steps in the upcoming confirmation process for President Trump’s nominee for Attorney General to rescind OLC’s recent opinions that seek to degrade Congress’s authority to legislate.

One of the most glaring examples is a memo OLC just issued on April 1, 2026 unilaterally declaring the Presidential Records Act “unconstitutional.” According to OLC, it is “not a valid exercise of Congress’s Article I authority” and is “untethered from any valid and identifiable legislative purpose.”

Chairman Grassley was in the House in 1978 when he and his colleagues passed the Presidential Records Act, and he was in the Senate in 2014 when they passed a bill by unanimous consent to update and strengthen the Act. This legislation also passed the House by a vote of 420 to 0, and not a single member objected to Congress’s authority to legislate on this issue. Nor had any previous administration, until now.

Congress passed the Act after former President Nixon threatened to destroy White House tapes and other records. The law established that these records “are the property of the American public,” as Chairman Grassley recounted in 2013, and it created a process for Congress to access those records.

Through this OLC opinion, this Administration is trying to exempt itself from these transparency requirements by claiming broad unaccountable power to operate in the dark. If they are allowed to freely destroy this basic safeguard—and evidence of their deeds in office along with it—Congress and the American people will be impaired from discovering what actions the Administration took, let alone investigating allegations of corruption.

In addition, OLC again purports to “speak for the Legislative Branch, an act which itself lacks any authority,” as Chairman Grassley previously framed it. This isn’t just about the Presidential Records Act. This is the latest step in a much wider campaign that’s been underway for decades to reverse reforms Congress enacted in the Nixon era and to aggrandize power in the office of the President at the expense of the people’s representatives.

OLC’s reasoning “is a general-purpose weapon” aimed directly at Congress, as Patrick Eddington warns, and “the President’s authority over the execution of federal law—and now over the very information that would document that execution—is treated as a constitutional core that ordinary legislation cannot reach.”

Before Chairman Grassley calls a hearing with Todd Blanche, he should write again to the President, explain why this new OLC memo is dangerous to our democracy, and demand that it too be rescinded. I focus on Senator Grassley because of his commendable actions in the past and his current role as Judiciary Committee chairman. But given their overwhelmingly bipartisan support for the exact law OLC now has in its sight, all Judiciary Committee members should join together to safeguard their most fundamental authorities under the Constitution.

Executive Power, Separation of Powers and Federalism