With divided control of Congress, there’s a lot we don’t know about how Congress and the executive branch will cooperate (or not) in the next two years.
One thing you can count on is that aggressive House oversight of the administration will be driven by the principles that no grievance shall go unuttered, and agency contrition doesn’t matter unless it’s offered publicly and ritualistically.
As the last Democratic appointee responsible for explaining the conduct of an agency — the Department of Justice — to a Republican Congress, I offer a few tips for surviving what’s coming.
• Lead with your values. Agency leaders will quickly get inundated with questions involving facts — who said what to whom, on what day and why. The volume and detail of the requests will get overwhelming, which is part of the point: Every hour that Health and Human Services Secretary Kathleen Sebelius is defending herself under a perjury threat, she’s not promoting the Affordable Care Act.
The details of the oversight committee’s inquiries are important, but don’t get lost in them. Lawyers at agencies treat oversight like depositions, urging the principal to stick with the facts, if they answer at all. That’s a mistake. Oversight hearings are grueling, but they’re fantastic communications opportunities to demonstrate your values as an agency and official.
In response to a banal question about national security letters, John Ashcroft would emphatically offer some variation on “we will do whatever it takes to protect the American people.” Americans could see the eagles soaring in those moments. Janet Reno would respond to questions about charging decisions: “We’re going to look at the law, we’re going to look at the facts, and we’re going to make a fair call, and I’m going to take responsibility for that decision.”
It drove Members of Congress of both parties insane, while the public gave her the highest marks possible. Know your values, and express them consistently and forcefully.
• Distinguish between legitimate and mud-slinging oversight. There is oversight, and there is over-the-top-sight. Oversight is the straightforward public inquiry into legitimate policy and process questions. Be respectful of this — responsive, straightforward and honest about acknowledging an error when it’s occurred.
Over-the-top-sight is the shaming, stressful, “gotcha” type. Reps. Dan Burton (R-Ind.) and John Dingell (D-Mich.) are pros at this, and Sen. Arlen Specter (D-Pa.) was the sadist of his generation. The point is to humiliate and undermine the agency’s leaders, the policies they promote or both. This is personal and frequently mean — and staff can be even nastier than elected officials, in part because they don’t face voters.
The trick here is not to fall into the trap of being completely reactive to the slurry of demands and threats, some compelled by law. You’ll tie yourself in knots just trying to respond and perforce be chaotic. Respond to over-the-top-sight, but only with tactics that are consistent with the core values of the agency. Who are you? Are you “the most open government” ever? Are you scorched-earth litigators, with a “come get it” approach? Pick a posture that fits the personality of the Cabinet officer, and stick with it.
• Reorganize your team. You will need, in addition to cracker-jack Congressional relations staff, a deputy for consistency and coherence. It’s crucial that a top staffer — someone who regularly lunches with the agency head — be assigned to work with Congressional affairs to ensure that communications to Congress are consistent.
A typical scenario: One assistant secretary is happy to come brief the Speaker’s staff on a policy issue; another assistant secretary refuses to brief the Speaker’s staff without minority staff present. Inconsistency admits incoherence, undermines the policy involved and will tangle you up in endless fights. Minimize it at all costs, to the point of insisting that nobody at the agency can talk to Congress without the help of Congressional affairs. Your top officials will hate this. Too bad. Don’t give even talented people free rein.
• Don’t assert what you don’t know for a fact. Top agency officials will almost always be testifying or responding to facts that are not personal to them. Why didn’t you wait another 48 hours to kill people at Waco? Who waived the procurement rule for Goldman Sachs? Resist the temptation to repeat facts or assertions of law put in front of you by staff unless you are absolutely certain they are true — i.e., never. There’s no shame in “I am told … ,” or “the lawyers in OLC advise me that … ,” etc.
• Don’t drink too much liquid. Well into my third hour of testimony before a committee, I realized I wasn’t going to make it without a break. Do you speak this fact into the microphone, with C-SPAN covering it live? Pass a note to the staff? Think ruefully of that travel catheter your brother gave you as a gag gift? I opted for the note through staff. Then-Chairman Dan Burton announced my problem live, on camera. I still twitch at the memory.
Robert Raben, president of the Raben Group, previously served as assistant attorney general for legislative affairs and Democratic counsel to the House Judiciary Committee.