In the context of the ongoing controversy surrounding the firing of eight U.S. attorneys, the House Judiciary Subcommittee on Commercial and Administrative Law held a hearing on March 29 that explored the oversight powers of Congress. "Ensuring Executive Branch Accountability" included testimony from several experts on executive privilege and congressional oversight powers.

Frederick Schwarz, Jr., senior counsel at the Brennan Center for Justice at New York University Law School, testified before the subcommittee. Schwarz imparted his findings on congressional powers based on his experiences as chief counsel of the Church Committee, the 1970s investigative committee that uncovered widespread FBI abuse spying on political opponents, civil rights leaders and war protestors. Schwarz called for a "broader investigation into the politicization and the credibility of the Justice Department." The U.S. attorney firings are in need of investigation, stated Schwarz, but congressional oversight should expand to include areas of national security and the interpretation and execution of legislation and policy, which impacts the entire executive branch. Schwarz asserted that without oversight, the executive branch tends toward abuse of powers; "History demonstrates that the absence of oversight allows the awesome law enforcement and national security powers of the executive branch to be turned to harmful ends."

The subcommittee also heard from John Podesta, former chief of staff for President Clinton and current president of the Center for American Progress. Podesta stressed that there are limits to executive privilege. President Clinton exercised executive privilege but also, stated Podesta, "understood that the privilege is not unqualified: that the public interests by the claim of privilege must be weighed against those that would be served by disclosure. He appreciated that even where the privilege applies, it is not absolute." Congressional oversight is necessary, because there are no formal mechanisms for oversight of the White House. Podesta stated that, "the White House has no inspector general to investigate abuses and it is not subject to the Freedom of Information Act. Only Congress can provide appropriate oversight and accountability."

For the effective exercise of congressional oversight powers, Schwarz recommended that Congress respect the following:

• Oversight need not be a partisan matter: "sensible men and women will converge on sensible courses of action."
• Contemporaneous documents and live testimony are essential in determining the facts.
• Testimony must be transcribed: "a 'hearing' without a transcript is simply a waste of time."
• Access to privileged or classified information can be obtained with appropriate procedures.
• Congress and the White House must mind the distinction between legitimate secrets and excessive use of national security powers.
• Executive privilege should not be taken at face value.

The witnesses served as advisors to a Congress in the midst of several ongoing investigations of potential abuses of executive power. The articulation of the powers and methods necessary for vigorous oversight will hopefully be put to good use by the 110th Congress.