Grassley Presses Biden Administration for Information on ‘Court Reform’ Commission

Sen. Charles Grassley (R-Iowa) speaks before the Senate Judiciary Committee on Capitol Hill in Washington, on Oct. 14, 2020. Susan Walsh/AP Photo

Sen. Chuck Grassley (R-Iowa) issued a letter to Biden White House Counsel Dana Remus, requesting answers over efforts from the administration to form a “bipartisan commission” to study the federal court system and Supreme Court and develop recommendations for reform.

Grassley, the Chairman of the Senate Finance Committee and a Ranking Member on the Senate Judiciary Committee, demanded to know why the so-called “court reform” commission was formed with the support of the White House Counsel’s Office, which Grassley says could have the effect of “potentially shielding it from transparency laws and public accountability.”

President Joe Biden first floated the idea of forming such a commission during his campaign leading up to the 2020 presidential election. In an interview with 60 Minutes, he said, “If elected, what I will do is I'll put together a bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to, over 180 days, come back to me with recommendations as to how to reform the court system, because it’s getting out of whack, the way in which it’s being handled. And it’s not about court-packing.”

Grassley in his letter (pdf) cited a recent article from Politico which reported, without citing a named source, that the commission will be “housed under the purview of the White House Counsel’s office.”

He said that he is concerned about whether the commission will operate in an open and transparent manner.

“If the report is correct that the commission will be housed out of the White House Counsel’s Office, its business would likely be subject to the Presidential Records Act, which will delay any public transparency about the ‘bipartisan commission’s’ activities,” Grassley said, adding that he is skeptical of the term “bipartisan commission.”

He added, “The Executive Office of the President is shielded from many important public-transparency laws and I am concerned that any efforts to house this ‘bipartisan commission’ in the White House will therefore shield its work from the public eye. I hope that is not the case.”

Grassley provided a list of questions to Remus, asking for a reply no later than Feb. 15. Chief among the questions was a request to the Biden administration to commit to making all records from the commission publicly available and unredacted “in a timely manner.”

Questions

In his letter, Grassley asked Remus to confirm whether the commission will be housed under the office of the White House counsel. He also asked whether it will be headed by former White House Counsel Bob Bauer, as reported by Politico, and if so, what Bauer’s employment status is in the executive office.

Grassley also asked whether the commission is constituted under the Federal Advisory Committee Act, which ensures that advice by the various advisory committees is objective and accessible to the public, and if not, whether the White House would agree to have the commission abide by the Act’s public disclosure rules.

Similarly, he asked whether the commission is subject to the Presidential Records Act, which allows for public access to presidential records starting five years after the end of the administration, but lets the president invoke up to six specific restrictions to public access for up to 12 years.

“If the ‘bipartisan commission’ will be subject to the Presidential Records Act, will you nevertheless agree to give the public access to all unredacted presidential records generated by the ‘bipartisan commission’ in a timely manner, notwithstanding the provisions of the Presidential Records Act?” Grassley asked in his letter.

Grassley also asked if the White House would agree to provide regular briefings to the Judiciary Committee on the progress of the commission, since the commission is working on matters concerning the federal judiciary. He also asked whether the Biden administration had considered housing the commission in the Department of Justice, where its activities would be subject to the Freedom of Information Act.