The schedule we are going to start on time. The new time. On behalf of myself and bob bauer who is my supremely wise, talented and collegial codirector of the nyu law schools legislative and regulatory process clinic i wanted to welcome you here today to the fourth o year of the for. We are joined this year by another nyu law entity, the reef center on law and security, a nonpartisan multidisciplinary institute and the director, rachel, who is here has been invaluable in helping pull together the program for this afternoon. This b forum would not be possie without the generous support of sibley austin, a Renowned International law firm and so it gives me great pleasure to introduce to you, peter who is a partner in the chicago office. He knows a lot about what we are talking about today. He served his district in illinois in the u. S. House of representatives for six terms, from 20072019. During that time he held a number of very significant positions. One of those most pertinent to what were talking about today is that he chairs the house, ways and means subcommittee on oversight which is where he championed efforts that were supported on a bipartisan basis to overhaul the irs simple Asset Forfeiture program. Peter, say hello back. [applause] sally, its an honor to be here and on behalf of my partners its a joy for us to participate and be sponsoring todays event. Thank you very much but its also a joy to have met many of the students who are here and frontrow people and interact with you and to get a sense of where you are and what you are experiences have been. Tthank you for a team designedo reduce yourself to me. My predecessor in office was henry hyde, who served in the u. S. House of representatives for 32 years and had a great expression that i have appropriated and it is this there is one thing worse than gridlock, the worst thing than gridlock is the greased chute of government. Today what we are hearing about is the natural tension that our founders contemplated between two branches that are at one another and our founders, as you recall, had a low view of human nature and did not trust human nature and created these branches to be in perpetual tension with one another. And now the news today with the impeachment moving forward out of the Judiciary Committee with no sense of irony then that theres an announcement that the house is cooperating with the administration on the passage of the updated nafta, usmca. Therein lies, i think, attention, the billions of the isfounders and this is a system that we are the beneficiaries of. On behalf of my partners we are honored to participate here today. Thank you. Thank you. [applause]pa todays program is called constitutional questions in political struggle. Congress role in oversight and National Security. We have a lot of ground to cover and for that reason our introduction is will be at this podium or in chairs and will be exceedingly brief. There are full biographical information in your programs should have received when you arrived also, throughout the day we will be taking questions from the audience. You are given cards and if you wanted themhe when you came in d we will have the students from e nyu who will be along the two sides and will collect the cards and if you want new cards, additional cards, raise your hands. Please write legibly and that will be exceedingly important and pass them to the aisles where they will be collected and brought down here. As you know we had to rearrange the schedule somewhat and lets go to it. Bob yes, you are on. [applause] will you do the honors of introducing our first panel . Hi you have a program with the appropriate biographical and i will say this briefly. On my left is kathy, head of the global whitecollar defense [inaudible] has served into white House Counsel offices including the one in which i served and she was my deputy from 20092011 and for another three years asth president obams white House Counsel and she will tellho you the years when she ws my deputy were the most rewarding of her professional rlife. Thats true, is it not . Of course. [laughter] she does not answer questions that she does not wish to get the answer to. She has a rich experience with the topics we are going to be discussing today which is an examination from a broad institutional perspective of Congress Role as oversight and National Security and on her left is don mccann, he is a partner at jones today and in charge of the Government Relations and government representation of practice and ive known him for many years and he was the chairman and he was a general counsel for National CongressionalCampaign Committee and of course also came to know each other in very family terms and we also as you will know he was a white House Counsel to President Trump for, i guess an extended period of time until a couple of years don will join us in a conversation about the white House Counsel views of the issues that we will be discussing today congressional oversight with war powers and the discharge of constitutional role and i want to ask at the very end to give us or leave us with a few questions at the very end that i in turn hope we can ask senator lee and the congressman when they arrive later but lets begin. First cap event dunford fundamental question. I was watching a presentation that senator lee who gave it to the national and he stated that Congress Failures in these areas are the biggest constitutional problems of our time. Senator lee in his presentation stated that he thought that congressional oversight failures and congressional failure to assert its role it constitutional rolei was the largest constitutional issue of our time. From a white house perspective to begin with what are the challenges for making that relationship between congress and the executive work. One of the Biggest Challenges is managing leaks. One of the things particularly in the national scree context that you have to deal with at the white house when youit are breathing members on all sorts of sensitive things and sometimes operational things that have not yet happened ist a concern over leaks and not just because people dont Like National secure information but because leaks of certain types of information can have very serious operational and you know, potentially catastrophic consequences. I dont say that to disparage another branch of government but rather its history we learn anything from history is that the more people that you share information with in the more likelyor will find its way into the public and i think the most executive Branch Officials we say that leaks from the hill are a big problem and that is one of the things of structuring how you keep the congress informed and at what level do you brief and entire committee and let satan the Senate Intel Committee or the house until committee do you brief the leadershipdo and debrief the leadership in the committee and those are the types of conversations and deliberations all white house has to be interested to see whether don had when you are trying to evaluate how sensitive the information is with how broadly you can respond responsibly distribute it while also making sure that the appropriate congressional committees and overseers are informed. Before i asked don to give you or give all of us his view and that would address concerns you have about congressional role in National Security decisionmaking but what about domestic oversight . Any potential challenge would identify their . Where do i begin with that. On the domestic side there is always i think in any administration a real push and pull between the white house and the congress and between the Administration First of all but with the white house in particular. Congress and particularly when one chamber of commerce ishe controlled by the opposite party is very interested in getting internal white house documents and the white house is very interested in ensuring that those white house documents remain confidential and within the executive branch and that is a longstanding push and pull that has been going on for decades. From the white House Counsels Office Perspective when you might say why is it that a white house cares so much about keeping internal White House Communications confidential the enen this is both the real world reason in the parts of the world reason is no one to have their emails were strewn all over the front page of the Washington Post but another real world reason is that if the president s most senior advisors and those who are engaging with the president on a day to day basis about the importance of decisions a president is making have a concern that their communications as affected in internal documents will be providedefef an realtime or vil realtime to the public or to the congress that it will chill the advice that the president gets and thatra is a very practical real concern and ive seen it happen in real life where people start to give advice to the president differently because if their true views were known to be outside world they would get pilloried by this particular constituents in this particular media outlet or whatever. Regarding those internal White House Communications from oversight is, i think, a primary responsibly and frankly a primary imperative of virtually every white House Counsel. Don. What was the question . As i recall the question i think is the simple answer which is not necessarily the most correct answer is when it comes to oversight particularly with Foreign Affairs most of it depends the Party Composition of the white house versus house and the senate and its all the same parties its easy and not the same party and its hard but certainly its true and much harder if not the same party but when it comes to National Security and Foreign Affairs it does not necessarily break down with partisan lines but theres a real constitutional issue buried in there where the executives certainly have the view that he or she has tremendous authority under the constitution of Foreign Affairs and congress tends to say they have oversight and they ultimately particularly house has the power of the purse so a lot of this backandforth antiwar sounds constitutional possibles and that does not necessarily have a party line because each side of the aisle as folks that dont necessarily fit in with their colleagues view of what the mainstream view of the constitution is so you haveve on the revolving inside folks who think the executive branch does have a big say in ofers are suspicious a concentrated power and range in between so its interesting juggling act and you do have the decision from time to time to say who knows what and when and the modern convention that developed is the idea of leadership and the chair and ranking of the intel committees that they are on the tree of trust and can be read in an way that is not going to necessarily spread. You also have to keep in mind that house members are elected and senators are elected by the people they represent in districts and so they do have a right to know some things but then you come back to the constitutional authorities which raises maybe its the next question but what exactly is oversight and this congress have oversight over decisions the president makes that are clearly within the executive authority and what are they overseen at that time if it is a power the constitution gives to the press so these are the discussions that one has with various elected officials and staff. Some are more willing to have that discussion than others but it is a challenge and its not as easy as simply saint whats the partisan competition. Let me pick up on the question you asked about whether oversight is within congress purview and its congress authority to pursue whether evthere is question of whether e president has exclusive article to authority and kathy at the end of the clinton imitation there was congress did conduct oversight and not only conducted oversight but i believe and i dont know whether it was last white House Counsel to appear on a certain negotiator basis to give testimony white House Counsel did in the party matter can you talk about how the white house addressed the sole question because the essence of the matter of the accommodation and aggression of whether or not i they are in some way to the oversight exercise conceivably infringing on the president s constitutional duties. The footnote to that is Justice Department open investigation as well and not through a special counsel butut the Southern District of new york opened a criminal investigation into the president s exercise of pardon authorities and it would be interesting to see her go back and look at the commentary was around that at the time but i digress. That is a very difficult question and i think that certainly most president s would take the view that that is the of the legitimate exercise of Congress Oversight authority and those of you who had occasion to read letters over again many administrations you will often see reference to this term legitimate that executive Branch Officials use to sort of pushback on the limits of what congress can appropriately exercise oversight of. The congress would say well, the power of the purse which is clearly withinin article one authorities is quite expansive and frankly we have funded the executive office of the president and that allows us to exercise basically have unfettered review and thats an ongoing debate that as you mentioned generally does end up resulting in an accommodation. I think most president s have made decisions based on political judgments about whether or not to make available for example in that instance the white House Counsel to provide testimony not withstanding the fact that the Justice Department would have been advisingt the white house that the white House Counsel was may have been able to assert the doctrine of absolute immunity and declined to go and testify but nevertheless president clinton who is now former president but i think technically best testified after he was no longer in office because they were on the very last day or second last day of his time in office but they make a judgment about what are the opticss of not having a senior white house official testify or former testify and how do those optics affect the president Political Capital and his ability to get other things that he wants to get done and if he still has another election all of these things come into the mix and that is where you get into the zone of accommodating and that is why historically it has not happened a lot but there has then senior white house officials who have testified before congress notwithstanding the fact that the executive branch takes the view that there is a circle of advisers who should be immune from having to provide testimonies. If it is what you referred to as a prudential judgment about the flex the legal and constitutional part of the decision and the potential political sensitivities that are allowing islami for the question to you, don. If you are going to be or teach white House Counsel and you have white House Counsel in front of you what is the matter that is the role of white House Counsel and the one that kathy described is not just a legal judgment but a large institutional political judgment about what current circumstances the white house should or should not do to respond to the congressional demand connect what is the role of the white House Counsel and how does this relate to the participation of those decisions of other Component Parts of the white house . If i were teaching white House Counsel school and if that were think maybe it should be a thing . Who knows. If i were teaching white House Counsel school the person you have to note is in any sort of legal ethics class or lori arena 101 who is the client and counsel to the president is the counsel to the president and with that comes sort of obligation to think in terms of the Legal Authority of the president s authorities and the constitution and statutes and the like and it is not a personal lawyer we all say this and it all sounds pretty easy in the abstract and maybe for some it is toughma to pass in the abstract but for some its easy to say its not that hard but an easier way to explain it to lawyers is if you represent corporations you represent the entity, not a particular ceo or member of the border that kind of thing and im fine with lawyers that resonates that better when you say oh, they think there was at one time soandso in the board really wanted to do some opinion letter that they could go do something for the ceo wanted to do some night and had to say the bylaws would not permit that and you know the ceo and board member will be mad at you for a while but at the date you represent the entity. The first thing at white House Counsel school would be to discuss who is a client and what that means and what it doesnt m