Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and Practice
Congressional Investigations of the
Department of Justice, 1920-2007:
History, Law, and Practice
Updated August 20, 2008
Morton Rosenberg
Specialist in American Public Law
American Law Division
Congressional Investigations of the Department of
Justice, 1920-2007: History, Law, and Practice
Summary
Legislative oversight is most commonly conducted through congressional
budget, authorization, appropriations, confirmation, and investigative processes, and,
in rare instances, through impeachment. But the adversarial, often confrontational,
and sometimes high profile nature of congressional investigations sets it apart from
the more routine, accommodative facets of the oversight process experienced in
authorization, appropriations, or confirmation exercises. While all aspects of
legislative oversight share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the implementation of
public policy, and disclosing to the public how its government is performing, the
inquisitorial process also sustains and vindicates Congress’s role in our constitutional
scheme of separated powers and checks and balances. The rich history of
congressional investigations from the failed St. Clair expedition in 1792 through
Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current ongoing inquiries
into the removal and replacement of United States Attorneys, has established, in law
and practice, the nature and contours of congressional prerogatives necessary to
maintain the integrity of the legislative role in that constitutional scheme.
A review of the historical experience and legal rulings pertinent to congressional
access to information regarding the law enforcement activities of the Department of
Justice indicates that in the last 85 years Congress has consistently sought and
obtained deliberative prosecutorial memoranda, and the testimony of line attorneys,
FBI field agents and other subordinate agency employees regarding the conduct of
open and closed cases in the course of innumerable investigations of Department of
Justice activities. These investigations have encompassed virtually every component
of the DOJ and its officials and employees, from the Attorney General down to
subordinate level personnel. It appears that the fact that an agency, such as the
Justice Department, has determined for its own internal purposes that a particular
item should not be disclosed, or that the information sought should come from one
agency source rather than another, does not prevent either House of Congress, or its
committees or subcommittees, from obtaining and publishing information it
considers essential for the proper performance of its constitutional functions. There
appears to be no court precedent that imposes a threshold burden on committees to
demonstrate, for example, a “substantial reason to believe wrongdoing occurred”
before a jurisdictional committee may seek disclosure with respect to the conduct of
specific open and closed criminal and civil cases. Indeed, the case law is quite to the
contrary. An inquiring committee need only show that the information sought is
within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate
legislative function, and is pertinent to the area of concern. Moreover, there have
been only three formal presidential assertions of executive privilege with respect to
withholding of internal DOJ documents in the face of a congressional subpoena.
Those claims were ultimately abandoned, and it appears under the most recent
Supreme Court and appellate court rulings pertinent to the scope of the presidential
communications privilege and the “Take Care” clause of the Constitution, that such
a claim would be open to serious question as to its validity in the context of a
congressional probe of DOJ internal deliberative actions.
Contents
In troduction ......................................................1
The Legal Basis for Oversight........................................4
Illustrative Investigations and Case Law................................6
Teapot Dome.................................................6
Burford I: The Superfund Investigation.............................8
Burford II: The Investigation of the Claim of Presidential Privilege.......9
Rocky Flats.................................................12
Corruption in the FBI’s Boston Regional Office.....................14
Ruby Ridge.................................................16
Assessment of DOJ’s Opposition to Congressional Access to Information in
Open and Closed Litigation Files and to Internal Deliberative Materials..18
The Department’s Position.....................................18
Assessment of the Department’s Position..........................19
1. Concerns with Pre-Trial Publicity, Due Process, and Concurrent
Inves t i gat i ons .......................................19
2. Concerns Over Revelations of Government Strategies or Methods
or Weaknesses of Investigation..........................22
3. The Claim That Prosecution Is a Core Presidential Power Subject
to Assertions of Executive Privilege......................22
4. The Claim of Deliberative Process Privilege..................32
Concluding Observations...........................................34
Appendix .......................................................37
Teapot Dome ................................................37
Investigations of DOJ During the 1950’s ..........................39
1. Grand Jury Curbing.....................................40
2. Prosecution of Routine Cases.............................41
3. New York City Police Brutality............................41
Investigation of Consent Decree Program .........................42
Cointelpro and Related Investigations of FBI-DOJ Misconduct ........43
White Collar Crime in the Oil Industry ...........................44
Billy Carter/Libya Investigation .................................45
Undercover Law Enforcement Activities (ABSCAM) ................46
Investigation of Withholding of EPA Documents ...................48
E.F. Hutton Investigation.......................................51
Iran-Contra .................................................52
Rocky Flats Environmental Crimes Plea Bargain ....................53
Investigation of the Justice Department’s Environmental Crimes
Section .................................................54
Campaign Finance Investigations................................55
Misuse of Informants in the FBI’s Boston Regional Office............57
Removal and Replacement of United States Attorneys...............59
Congressional Investigations of the
Department of Justice, 1920-2007: History,
Law, and Practice
Introduction
Throughout its history, Congress has engaged in oversight of the executive
branch — the review, monitoring, and supervision of the implementation of public
policy. The first several Congresses inaugurated such important oversight techniques
as special investigations, reporting requirements, resolutions of inquiry, and use of
the appropriations process to review executive activity. Contemporary developments,
moreover, have increased the legislature’s capacity and capabilities to check on and
check the executive. Public laws and congressional rules have measurably enhanced
Congress’s implied power under the Constitution to conduct oversight.1
Congressional oversight of the executive is designed to fulfill a number of
important purposes and goals: to ensure executive compliance with legislative intent;
to improve the efficiency, effectiveness, and economy of governmental operations;
to evaluate program performance; to prevent executive encroachment on legislative
powers and prerogatives; to investigate alleged instances of poor administration,
arbitrary and capricious behavior, abuse, waste, fraud and dishonesty; to assess
agency or officials’ ability to manage and carry out program objectives; to assess the
need for new federal legislation; to review and determine federal financial priorities;
to protect individual rights and liberties; and to inform the public as to the manner
in which its government is performing its public duties, among others.2
Legislative oversight is most commonly conducted through congressional
budget, authorization, appropriations, confirmation, and investigative processes, and,
in rare instances, through impeachment. But the adversarial, often confrontational,
and sometimes high profile nature of congressional investigations sets it apart from
the more routine, accommodative facets of the oversight process experienced in
authorization, appropriations, or confirmation exercises. While all aspects of
legislative oversight share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the implementation of
public policy, and of disclosing to the public how its government is performing, the
inquisitorial process also sustains and vindicates Congress’s role in our constitutional
scheme of separated powers and checks and balances. The rich history of
congressional investigations from the failed St. Clair expedition in 1792 through
1 See generally, CRS Report RL30240, Congressional Oversight Manual, 5-17, 87-108, 114-
2 Oversight Manual at 2-4.
Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current ongoing inquiries
into the removal and replacement of United States Attorneys, has established, in law
and practice, the nature and contours of congressional prerogatives necessary to
maintain the integrity of the legislative role in that constitutional scheme.
Congress’s power of inquiry extends to all executive departments, agencies, and
establishments in equal measure. Over time, however, congressional probes of the
Department of Justice (Department or DOJ) have proved to be amongst the most
contentious, stemming from the presumptive sensitivity of its principal law
enforcement mission. Often, inquiries have been met with claims of improper
political interference with discretionary deliberative prosecutorial processes,
accompanied by refusals to supply internal documents or testimony sought by
jurisdictional committees, based on assertions of constitutional and common law
privileges or general statutory exemptions from disclosure. But the notion of, and
need for, protection of the internal deliberative processes of agency policymaking,
heightened sensitivity to premature disclosures of decisionmaking involving law
enforcement investigations, civil and criminal prosecutions, or security matters, is not
unique to the DOJ, though the degree of day-to-day involvement there with such
matters may be greater. An in-depth examination of the nature, scope, and resolution
of such past investigative confrontations with the DOJ appears useful for informing
future committees determining whether to undertake similar probes of DOJ, or other
executive agencies, as to the scope and limits of their investigative prerogatives and
the practical problems of such undertakings.
A review of the historical experience and legal rulings pertinent to congressional
access to information regarding the law enforcement activities of the Department of
Justice indicates that in the last 85 years Congress has consistently sought and
obtained deliberative prosecutorial memoranda, and the testimony of line attorneys,
FBI field agents and other subordinate agency employees regarding the conduct of
open and closed cases in the course of innumerable investigations of Department of
Justice activities. These investigations have encompassed virtually every component
of the DOJ, and all officials, and employees, from the Attorney General down to
subordinate level personnel. It appears that the fact that an agency, such as the Justice
Department, has determined for its own internal purposes that a particular item
should not be disclosed, or that the information sought should come from one agency
source rather than another, does not prevent either House of Congress, or its
committees or subcommittees, from obtaining and publishing information it
considers essential for the proper performance of its constitutional functions. There
appears to be no court precedent that imposes a threshold burden on committees to
demonstrate, for example, a “substantial reason to believe wrongdoing occurred”
before a jurisdictional committee may seek disclosure with respect to the conduct of
specific open and closed criminal and civil cases. Indeed, the case law is quite to the
contrary. An inquiring committee need only show that the information sought is
within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate
legislative function, and is pertinent to the area of concern. Moreover, there have
been only three formal presidential assertions of executive privilege with respect to
withholding of internal DOJ documents in the face of a congressional subpoena. Two
of those claims were ultimately abandoned; one is still pending resolution.3 It
appears under the most recent Supreme Court and appellate court rulings pertinent
to the scope of the presidential communications privilege and the “Take Care” clause
of the constitution, that such a claim would be open to serious question as to its
validity in the context of a congressional probe of DOJ internal deliberative actions.
Committees, however, normally have been restrained by prudential
considerations that involve a pragmatic assessment informed by weighing
consideration of legislative need, public policy, and the statutory duty of
congressional committees to engage in continuous oversight of the application,
administration and execution of laws that fall within their jurisdiction, against the
potential burdens and harms that may be imposed on an agency if deliberative
process matter is publically disclosed. In particular, sensitive law enforcement
concerns and duties of the Justice Department have been seen to merit that
substantial weight be given the agency’s deliberative processes in the absence of a
reasonable belief of a jurisdictional committee that government misconduct has
occurred. A careful review of the historical record indicates a generally faithful
congressional adherence to these prudential considerations.
The discussion will proceed as follows. The legal basis for investigative
oversight will be briefly reviewed, followed by several prominent examples of
congressional oversight that reflect significant milestones in the establishment of the
breadth and reach of the legislative investigative prerogative vis-a-vis the
Department. Next we will review and assess the Department’s contentions, based on
policy and common law and constitutional privilege, that it has asserted to attempt
to limit congressional access to agency information. An appendix to this report
provides summaries of 18 inquiries in which committees have successfully obtained
documents and testimony respecting the internal deliberative processes involving
open and closed civil and criminal cases, as well as programmatic matters that are
part of the Department’s statutory mission.
3 One of the abandoned claims involved subpoenaed documents in Burford I, discussed infra
at 8-9, which included “memoranda by Agency or Department of Justice attorneys
containing litigation and negotiation strategy, settlement positions, and other similarth
material.” H.Rept. 97-968, 97 Cong. 2d. Sess. 18, 28-29 (1982). The other concerned
documents sought in the Boston FBI matter, which were all internal DOJ materials. See
discussion infra at 14. The third presidential claim of privilege was invoked on July 16,
2008, in response to a subpoena by the House Oversight and Government Reform
Committee seeking documents concerning DOJ’s investigation by a Special Counsel of the
disclosure of the identity of a CIA agent. The documents sought and withheld include FBI
reports of the Special Counsel’s interviews with the Vice President and senior White House
staff; handwritten notes taken by the Deputy National Security Advisor during conversations
with the Vice President and senior White House officials; and other documents provided by
the White House to the Special Counsel during the investigation. See CRS Report RL30319,
Presidential Claims of Executive Privilege: History, Law, Practice, and Recent
Developments by Morton Rosenberg, at 34-35, 40-41.
The Legal Basis for Oversight
Numerous Supreme Court precedents recognize a broad and encompassing
power in Congress to engage in oversight and investigation that would reach all
sources of information necessary for carrying out its legislative function. In the
absence of a countervailing constitutional privilege or a self-imposed statutory
restriction upon its authority, Congress and its committees have virtually plenary
power to compel production of information needed to discharge their legislative
functions from executive agencies, private persons, and organizations. Within
certain constraints, the information so obtained may be made public.
Although there is no express provision of the Constitution that specifically
authorizes Congress to conduct investigations and take testimony for the purposes
of performing its legitimate functions, numerous decisions of the Supreme Court
have firmly established that the investigatory power of Congress is so essential to the
legislative function as to be implied from the general vesting of legislative power in
Congress.4 Thus, in Eastland v. United States Servicemen’s Fund, the Court
explained that “[t]he scope of its power of inquiry ... is as penetrating and far-
reaching as the potential power to enact and appropriate under the Constitution.”5
In Watkins v. United States, the Court described the breadth of the power of inquiry:
“The power of the Congress to conduct investigations is inherent in the legislative
process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed statutes.”6
The Court went on to emphasize that Congress’s investigative power is at its peak
when the subject is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power, it stated, “comprehends probes
into departments of the Federal Government to expose corruption, inefficiency, or7
waste.” “[T]he first Congresses,” it continued, held “inquiries dealing with
suspected corruption or mismanagement of government officials”8 and subsequently,
in a series of decisions, “[t]he court recognized the danger to effective and honest
conduct of the Government if the legislative power to probe corruption in the9
Executive Branch were unduly hampered.” Accordingly, the Court stated, it
recognizes “the power of the Congress to inquire into and publicize corruption,10
maladministration, or inefficiencies in the agencies of Government.”
The breadth of a jurisdictional committee’s investigative authority may be seen
in the two seminal Supreme Court decisions emanating from the Teapot Dome
inquiries of the mid-1920’s, both involving, directly and indirectly, the Department
4 McGrain v. Daugherty, 273 U.S. 135 (1927).
5 421 U.S. at 504, n. 15 (quoting Barenblatt v. United States, 360 U.S. 109, 111).
6 354 U.S. 178, 187 (1957).
7 Id.
8 Id. at 182.
9 Id. at 194-195.
10 Id. at 200 n. 33.
of Justice. As part of its investigation, the Senate select committee issued a
subpoena for the testimony of Mally S. Daugherty, the brother of the Attorney
General. After Daugherty failed to respond to the subpoena, the Senate sent its
Deputy Sergeant at Arms to take him into custody and bring him before the Senate.
Daugherty petitioned in federal court for a writ of habeas corpus arguing that the
Senate in its investigation had exceeded its constitutional powers. The case ultimately
reached the Supreme Court, where, in a landmark decision, McGrain v. Daugherty,11
the Court upheld the Senate’s authority to investigate charges concerning the
Department:
[T]he subject to be investigated was the administration of the Department of
Justice - whether its functions were being properly discharged or were being
neglected or misdirected, and particularly whether the Attorney General and his
assistants were performing or neglecting their duties in respect of the institution
and prosecution of proceedings to punish crimes and enforce appropriate
remedies against the wrongdoers - specific instances of alleged neglect being
recited. Plainly the subject was one on which legislation could be had and would
be materially aided by the information which the investigation was calculated to
elicit. This becomes manifest when it is reflected that the functions of the
Department of Justice, the powers and duties of the Attorney General and the
duties of his assistants, are all subject to congressional legislation, and that the
department is maintained and its activities are carried on under such12
appropriations as in the judgment of Congress are needed from year to year.
The Court thus underlined that the Department of Justice, like all other executive
departments and agencies, is a creature of the Congress and subject to its plenary
legislative and oversight authority.
In another Teapot Dome case that reached the Supreme Court, Sinclair v. United
States,13 a different witness at the congressional hearings refused to provide answers,
and was prosecuted for contempt of Congress. The witness had noted that a lawsuit
had been commenced between the government and the Mammoth Oil Company, and
declared, “I shall reserve any evidence I may be able to give for those courts... and
shall respectfully decline to answer any questions propounded by your committee.”14
The Supreme Court upheld the witness’ conviction for contempt of Congress. The
Court considered and rejected in unequivocal terms the witness’ contention that the
pendency of lawsuits provided an excuse for withholding information. Neither the
laws directing that such lawsuits be instituted, nor the lawsuits themselves, “operated
to divest the Senate, or the committee, of power further to investigate the actual
administration of the land laws.”15 The Court further explained: “It may be conceded
that Congress is without authority to compel disclosure for the purpose of aiding the
prosecution of pending suits; but the authority of that body, directly or through its
committees to require pertinent disclosures in aid of its own constitutional power is
11 273 U.S. 135 (1927).
12 273 U.S. at 177-78.
13 279 U.S. 263 (1929).
14 Id. at 290.
15 Id. at 295.
not abridged because the information sought to be elicited may also be of use in such
suits.”16 The Sinclair ruling inferentially indicates that the Department’s oft-proffered
distinction between open and closed cases has little weight.
Illustrative Investigations and Case Law
Perhaps most instructive and illuminating for present purposes is a review of
important precedents over the last 85 years regarding oversight of the Justice
Department. Appended to this report are brief summaries of 18 selected
congressional investigations from the Palmer Raids and Teapot Dome in the 1920’s
to Watergate and through Iran-Contra, Rocky Flats, corruption in the FBI’s Boston
regional office, and the recent inquiries into the termination and replacement of
United States Attorneys. Those investigations demonstrate that DOJ has consistently
been obligated to submit to congressional oversight, regardless of whether litigation
is pending or is anticipated, so that Congress is not delayed unduly in investigating
maladministration, misfeasance and/or malfeasance in the Justice Department and
elsewhere. A number of these investigations spawned seminal Supreme Court
rulings that today provide the foundation for the broad congressional power of
inquiry. All were contentious and involved Department claims that committee
demands for agency documents and testimony were precluded either on the basis of
constitutional or common law privilege or policy. In the majority of instances
reviewed, the testimony of subordinate DOJ employees, such as line attorneys and
FBI field agents, was taken formally or informally, and included detailed testimony
about specific instances of the Department’s failure to prosecute alleged meritorious
cases. In all instances, investigating committees were provided with documents
respecting open or closed cases that often included prosecutorial memoranda, FBI
investigative reports, summaries of FBI interviews, memoranda and correspondence
prepared during the pendency of cases, confidential instructions outlining the
procedures or guidelines to be followed for undercover operations and the
surveillance and arrest of subjects, and documents presented to grand juries not
protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure,
among other similar “sensitive” materials. The instances of DOJ oversight reviewed
of course are not exhaustive of such inquiries. The consequences of these historic
inquiries at times have been profound and far reaching, directly leading to important
remedial legislation and the resignations (Harry M. Daugherty, J. Howard McGrath,
Alberto R. Gonzales) and convictions (Richard Kleindienst, John Mitchell) of five
attorneys general.
Teapot Dome
The Teapot Dome scandal in the mid-1920’s provided the model and
indisputable authority for wide ranging congressional inquiries. While the Senate
Committee on Public Lands and Surveys focused on the actions of the Department
of the Interior in leasing naval oil reserves, a Senate select committee was constituted
to investigate “charges of misfeasance and nonfeasance in the Department of
16 Id.
Justice”17 in failing to prosecute the malefactors in the Department of the Interior, as
well as other cases.18 The select committee heard from scores of present and former
attorneys and agents of the Department and its Bureau of Investigation, who offered
detailed testimony about specific instances of the Department’s failure to prosecute
alleged meritorious cases. Not all of the cases upon which testimony was offered
were closed, as one of the committee’s goals in its questioning was to identify cases
in which the statute of limitations had not run out and prosecution was still
possible. 19
The committee also obtained access to Department documentation, including
prosecutorial memoranda on a wide range of matters. However, given the charges of
widespread corruption in the Department and the imminent resignation of Attorney
General Daugherty, it would appear that some of the documents furnished the
committee early in the hearings may have been volunteered by the witnesses and not
officially provided by the Department. Although Attorney General Daugherty had
promised cooperation with the committee, and had agreed to provide access to at
least the files of closed cases,20 such cooperation apparently had not been
forthcoming. 21
In two instances immediately following Daugherty’s resignation, the committee
was refused access to confidential Bureau of Investigation investigative reports
pending the appointment of a new Attorney General who could advise the President
about such production,22 though witnesses from the Department were permitted to
testify about the investigations that were the subject of the investigative reports and
even to read at the hearings from the investigative reports. With the appointment of
the new Attorney General, Harlan F. Stone, the committee was granted broad access
to Department files. Committee Chairman Smith Brookhard remarked that “[Stone]
is furnishing us with all the files we want, whereas the former Attorney General, Mr.
Daugherty, refused nearly all that we asked.”23 For example, with the authorization
of the new Attorney General, an accountant with the Department who had led an
investigation of fraudulent sales of property by the Alien Property Custodian’s office
appeared and produced his confidential reports to the Bureau of Investigation. The
reports described the factual findings from his investigation and his recommendations
for further action, and included the names of companies and individuals suspected
of making false claims. The Department had not acted on those recommendations,
17 McGrain v. Daugherty, 273 U.S. 135, 151 (1927).
18 Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United
States: Hearings Before the Senate Select Committee on Investigation of the Attorney
General, vols. 1-3, 68th Congress, 1st Session (1924).
19 See, e.g., id. at 1495-1503, 1529-30, 2295-96.
20 Id. at 1120.
21 Id. at 1078-79.
22 Id. at 1015-16 and 1159-60.
23 Id. at 2389.
though the cases had not been closed.24 A similar investigative report, concerning an
inquiry into the disappearance of large quantities of liquor under the control of the
Department during the prior administration of President Harding, was also
produced. 25
Burford I: The Superfund Investigation
In 1982, during the second session of the 97th Congress, the House
Transportation Committee’s Public Works Subcommittee on Oversight and the
House Energy and Commerce’s Subcommittee on Oversight and Investigations
initiated investigations of the Environmental Protection Agency’s (EPA) enforcement
of the “Superfund” law.26 The committees requested documents relating to a number
of on-going enforcement investigations from EPA Administrator Anne Gorsuch
Burford. The documents sought included memoranda of EPA and DOJ attorneys
containing litigation and negotiation strategy, settlement positions, and other similar
materials.27 After Ms. Burford’s initial refusal, the subcommittees issued subpoenas
but compliance was resisted on the grounds that the documents requested were
“enforcement sensitive”and were to be found in open law enforcement files. At the
direction of President Reagan, Ms. Burford claimed executive privilege to prevent
their disclosure.
The House Transportation Subcommittee acted first, citing Ms. Burford for
contempt of Congress, an action that was affirmed by the full Committee. The full
House of Representatives voted 259 to 105 to support the contempt citation.28 After
the DOJ’s failed attempt at obtaining a federal court order enjoining the House from
forwarding the contempt citation to the U.S. Attorney for prosecution pursuant to the
criminal contempt statute,29 and following a brief period of negotiation with the
Public Works and Transportation Committee, it was agreed that the documents
would be released to the subcommittee in stages, beginning first with briefings and
redacted copies, and eventually ending with unredacted copies that could only be
examined by committee members and up to two designated committee staffers.30
The Chairman of the House Energy and Commerce Committee, Representative
John Dingell, refused to accept the agreement between the DOJ and the House Public
Works and Transportation Committee given its limitations on access and time delays.
24 Id. at 1495-1547.
25 Id. at 1790.
26 See H.Rept. 97-968, 97th Cong. 2d Sess. (1982) [hereinafter House Report].
27 House Report at 13-20.
28 See 8 Op. O.L.C. 101, 107 (1984) [hereinafter 1984 OLC Opinion].
29 See United States v. U.S. Houses of Representatives, 556 F.Supp. 150 (D.D.C. 1983): See
also, 2 U.S.C. § 192, 194 (1980).
30 See Memorandum of Understanding Between the Committee on Public Works and
Transportation and the Department of Justice, Concerning Documents Subpoenaed from theth
Environmental Protection Agency, February 18, 1983; see also H.Rept. No. 323, 98 Cong.,st
After a threat to issue new subpoenas and pursue a further contempt citation,
negotiations were resumed. The result was an agreement that all documents covered
by the initial subpoena were to be delivered to the subcommittee. There were to be
no briefings and no multi-stage process of redacted documents leading to unredacted
documents.31 The subcommittee agreed to handle all “enforcement sensitive”
documents in executive session, giving them confidential treatment.32 The
subcommittee, however, reserved for itself the right to release the documents or use
them in public session, after providing “reasonable notice” to the EPA.33 If the EPA
did not agree, the documents would not be released or used in public session unless
the Chairman and Ranking Minority Member concurred.34 If they did not concur, the
subcommittee could vote on the release of documents and their subsequent use in a
public session.35 Staff access was to be decided by the Chairman and Ranking
Minority Member.36 The agreement was signed by Chairman Dingell, Ranking
Member James T. Broyhill, and White House Counsel Fred F. Fielding on March 9,
1983.37 The ultimate agreement is an illustration of the autonomy of jurisdictional
committees in the House of Representatives.
Burford II: The Investigation of the Claim of Presidential
Privilege
After committee access to the Superfund enforcement documents was obtained,
a number of questions about the role of the Department during the controversy
remained: whether the Department, not EPA, had made the decision to persuade the
President to assert executive privilege; whether the Department had directed the
United States Attorney for the District of Columbia not to present the contempt
certification of Burford to the grand jury for prosecution and had made the decision
to sue the House; and, generally, whether there was a conflict of interest in the
Department’s simultaneously advising the President, representing Burford,
investigating alleged Executive branch wrongdoing, and enforcing the congressional
criminal contempt statute. These and related questions raised by the Department’s
actions were the subject of an investigation by the House Judiciary Committee
beginning in early 1983. The committee issued a final report on its investigation in
December 1985.38
31 See EPA Document Agreement, CQ WEEKLY REPORT, March 26, 1983 at 685 (copy on
file with authors).
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 See, Report of the House Comm. on the Judiciary on Investigation of the Role of the
Department of Justice in the Withholding of Environmental Protection Agency Documents
from Congress in 1982-1983, H.Rept. 99-435, 99th Cong., 1st Sess. (1985) (“EPA
(continued...)
Although the Judiciary Committee ultimately was able to obtain access to
virtually all of the documentation and other information it sought from the
Department, in many respects this investigation proved as contentious as the earlier
EPA controversy from which it arose. In its final report, the committee concluded
that:
[T]he Department of Justice, through many of the same senior officials who were
most involved in the EPA controversy, consciously prevented the Judiciary
Committee from obtaining information in the Department’s possession that was
essential to the Committee’s inquiry into the Department’s role in that
controversy. Most notably, the Department deliberately, and without advising the
Committee, withheld a massive volume of vital handwritten notes and
chronologies for over one year. These materials, which the Department knew
came within the Committee’s February 1983 document request, contained the
bulk of the relevant documentary information about the Department’s activities
outlined in this report and provided a basis for many of the Committee’s
findings.39
Among the other abuses cited by the committee were the withholding of a number
of relevant documents until the committee had independently learned of their
existence,40 as well as materially “false and misleading” testimony before the
committee by the head of the Department’s Office of Legal Counsel.41
The committee’s initial request for documentation was contained in a February
1983 letter from its chairman, Peter Rodino, to Attorney General William French
Smith. The committee requested the Department to “supply all documents prepared
by or in the possession of the Department in any way relating to the withholding of
documents that Congressional committees have subpoenaed from the EPA.”42 The
letter also specifically requested, among other things, a narrative description of the
activities of each division or other unit of the Department relating to the withholding
of the EPA materials, information about the Department’s apparent conflict of
interest in simultaneously advising the Executive Branch while being responsible for
prosecuting the Burford contempt citation, and any instructions given by the
Department to the United States Attorney for the District of Columbia not to present
the Burford contempt to the grand jury.
At first the Department provided only publicly available documents in response
to this and other document requests of the committee.43 However, after a series of
meetings between committee staff and senior Department officials, an agreement was
38 (...continued)
Withholding Report”).
39 EPA Withholding Report at 1163; see also 1234-38.
40 Id. at 1164.
41 Id. at 1164-65 & 1191-1231.
42 Id. at 1167 & 1182-83.
43 Id. at 1184.
reached whereby committee staff were permitted to review the materials responsive
to these requests at the Department to determine which documents the committee
would need for its inquiry.44 Committee staff reviewed thousands of documents from
the Land and Natural Resources Division, the Civil Division, the Office of Legal
Counsel, the Office of Legislative Affairs, the Office of Public Affairs, and the
offices of the Attorney General, the Deputy Attorney General, and the Solicitor
General.45
In July 1983, the committee chairman wrote to the Attorney General requesting
copies of 105 documents that committee staff had identified in its review as
particularly important to the committee’s inquiry.46 By May 1984, only a few of
those documents had been provided to the committee, and the chairman again wrote
to the Attorney General requesting the Department’s cooperation in the investigation.
In that letter, the chairman advised the Attorney General that the committee’s
preliminary investigation had raised serious questions of misconduct, including
potential criminal misconduct, in the actions of the Department in the withholding
of the EPA documents.47 The committee finally received all of the 105 documents
in July 1984, a full year after it had initially requested access. The committee at that
time also obtained the written notes and a number of other documents that had been
earlier withheld.48
There was also disagreement about the access that would be provided to
Department employees for interviews with committee staff. The Department
demanded that it be permitted to have one or more Department attorneys present at
each interview. The committee feared that the presence of Department
representatives might intimidate the Department employees in their interviews and
stated that it was willing to permit a Department representative to be present only if
the representative was “walled-off” from Department officials involved with the
controversy, if the substance of interviews was not revealed to subsequent
interviewees, and if employees could be interviewed without a Department
representative present if so requested. The Department ultimately agreed to permit
the interviews to go forward without its attorneys present. If a Department employee
requested representation, the Department employed private counsel for that purpose.
In all, committee staff interviewed 26 current and former Department employees,
including four Assistant Attorney Generals, under this agreement.49
Partly as a result of these interviews, as well as from information in the
handwritten notes that had been initially withheld, the committee concluded that it
also required access to Criminal Division documents concerning the origins of the
criminal investigation of former EPA Assistant Administrator Rita Lavelle in order
44 Id. at 1168 & 1233.
45 Id. at 1168.
46 Id. at 1169.
47 Id. at 1172.
48 Id. at 1173.
49 Id. at 1174-76.
to determine if the Department had considered instituting the investigation to obstruct
the committee’s inquiry. The committee also requested information about the
Department’s earlier withholding of the handwritten notes and other documents to
determine whether Department officials had deliberately withheld the documents in
an attempt to obstruct the committee’s investigation.50 The Department at first
refused to provide the committee with documents relating to its Lavelle investigation
“[c]onsistent with the longstanding practice of the Department not to provide access
to active criminal files.”51 The Department also refused to provide the committee
with access to documentation related to the Department’s handling of the
committee’s inquiry, objecting to the committee’s “ever-broadening scope of ...
inquiry.”52
The committee chairman wrote the Attorney General and objected that the
Department was denying the committee access even though no claim of executive
privilege had been asserted.53 The chairman also maintained that “[i]n this case, of
course, no claim of executive privilege could lie because of the interest of the
committee in determining whether the documents contain evidence of misconduct by
executive branch officials.”54 With respect to the documents relating to the
Department’s handling of the committee inquiry, the chairman demanded that the
Department prepare a detailed index of the withheld documents, including the title,
date, and length of each document, its author and all who had seen it, a summary of
its contents, an explanation of why it was being withheld, and a certification that the
Department intended to recommend to the President the assertion of executive
privilege as to each withheld document and that each document contained no
evidence of misconduct.55 With respect to the Lavelle documents, the chairman
narrowed the committee’s request to “predicate” documents relating to the opening
of the investigation and prosecution of Lavelle, as opposed to FBI and other
investigative reports reflecting actual investigative work conducted after the opening
of the investigation.56 In response, after a period of more than three months from the
committee’s initial request, the Department produced those two categories of
material s.57
Rocky Flats
Another revealing investigation involved a 1992 inquiry of the Subcommittee
on Investigations and Oversight of the House Committee on Science, Space, and
Technology which commenced a review of the plea bargain settlement by the
50 Id. at 1176-77 & 1263-64.
51 Id. at 1265.
52 Id. at 1265.
53 Id. at 1266.
54 Id.
55 Id. at 1268-69.
56 Id. at 1269-70.
57 Id. at 1270.
Department of Justice of the government’s investigation and prosecution of
environmental crimes committed by Rockwell International Corporation in its
capacity as manager and operating contractor at the Department of Energy’s (DOE)
Rocky Flats nuclear weapons facility. 58 The settlement was a culmination of a five-
year investigation of environmental crimes at the facility, conducted by a joint
government task force involving the FBI, the Department of Justice, the
Environmental Protection Agency (EPA), EPA’s National Enforcement Investigation
Centers, and the DOE Inspector General. The subcommittee was concerned with the
size of the fine agreed to relative to the profits made by the contractor and the
damage caused by inappropriate activities; the lack of personal indictments of either
Rockwell or DOE personnel despite a DOJ finding that the crimes were “institutional
crimes” that “were the result of a culture, substantially encouraged and nurtured by
DOE, where environmental compliance was a much lower priority than the
production and recovery of plutonium and the manufacture of nuclear ‘triggers’”; and
that reimbursements provided by the government to Rockwell for expenses in the
cases and the contractual arrangements between Rockwell and DOE may have
created disincentives for environmental compliance and aggressive prosecution of the
case.
The subcommittee held ten days of hearings, seven in executive session, in
which it took testimony from the United States Attorney for the District of Colorado;
an assistant U.S. Attorney for the District of Colorado; a DOJ line attorney from
Main Justice; and an FBI field agent; and received voluminous FBI field investigative
reports and interview summaries, and documents submitted to the grand jury not
subject to Rule 6(e).59
At one point in the proceedings, however, all the witnesses who were under
subpoena, upon written instructions from the Acting Assistant Attorney General,
Criminal Division, refused to answer questions concerning internal deliberations in
which decisions were made about the investigation and prosecution of Rockwell, the
DOE and their employees. Two of the witnesses advised that they had information
and, but for the DOJ directive, would have answered the subcommittee’s inquiries.
The subcommittee members unanimously authorized the chairman to send a letter to
President Bush requesting that he either personally assert executive privilege as the
basis for directing the witnesses to withhold the information or direct DOJ to retract
its instructions to the witnesses. The President took neither course and the DOJ
subsequently reiterated its position that the matter sought would chill Department
personnel. The subcommittee then moved to hold the U .S. Attorney in contempt of
Congress.
58 See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Hearings Before
the Subcomm. on Investigations and Oversight of the House Committee on Science, Space
and Technology, 102nd Cong., 2d Sess., Vols. I and II (1992) (“Rocky Flats Hearings”);
Meetings: To Subpoena Appearance by Employees of the Department of Justice and the FBI
and To Subpoena Production of Documents From Rockwell International Corporation,
Before the Subcomm. on Investigations and Oversight of the House Comm. on Science,
Space, and Technology, 102nd Congress, 2d Sess., (1992)(“Subpoena Meetings”).
59 Rocky Flats Hearing, Vol. I, at 389-1009, 1111-1251; Vol. II.
A last minute agreement forestalled the contempt citation. Under the agreement
(1) DOJ issued a new instruction to all personnel under subpoena to answer all
questions put to them by the subcommittee, including those which related to internal
deliberations with respect to the plea bargain. Those instructions were to apply as
well to all Department witnesses, including FBI personnel, who might be called in
the future. Those witnesses were to be advised to answer all questions fully and
truthfully and specifically instructed that they were allowed to disclose internal
advice, opinions, or recommendations connected to the matter. (2) Transcripts were
to be made of all interviews and provided to the witnesses. They were not to be made
public except to the extent they needed to be used to refresh the recollection or
impeach the testimony of other witnesses called before the subcommittee in a public
hearing. (3) Witnesses were to be interviewed by staff under oath. (4) The
subcommittee reserved the right to hold further hearings in the future at which time
it could call other Department witnesses who would be instructed by the Department
not to invoke the deliberative process privilege as a reason for not answering
subcommittee questions.60
Corruption in the FBI’s Boston Regional Office
The most recent and definitive exploration and resolution of the question of the
nature and breadth of Congress’s oversight prerogative with respect to DOJ
operations occurred as a consequence of the President’s December 2001 claim of
executive privilege in response to a subpoena by the House Government Reform
Committee. That subpoena sought, among other material, Justice Department
documents relating to alleged law enforcement corruption in the Federal Bureau of
Investigation’s Boston office that occurred over a period of almost 30 years. During
that time, FBI officials allegedly knowingly allowed innocent persons to be convicted
of murder on the false testimony of a cooperating witness and two informants in
order to protect the undercover activities of those informants. Thereafter, Regional
Office agents knowingly permitted two other informants to commit some 21
additional murders during the period they acted as informants, and, finally, gave the
informants warning of an impending grand jury indictment which allowed one of
them to flee. The President directed the Attorney General not to release relevant
documents because disclosure “would inhibit the candor necessary to the
effectiveness of the deliberative processes by which the Department makes
prosecutorial decisions,” and that committee access to the documents “threatens to
politicize the criminal justice process” and to undermine the fundamental purpose of
the separation of power doctrine, “which was to protect individual liberty.” In
defending the assertion of the privilege the Justice Department claimed a historical
policy of withholding deliberative prosecutorial documents from Congress in both
open and closed civil and criminal cases.61 Pending at the time were a number of
Federal Tort Claims Act suits brought by the convicted persons and their families,
alleging that the government was aware of and knowingly allowed the false
testimony.
60 Rocky Flats Hearings, Vol. I at 9-10, 25-31, 1673-1737; Subpoena Hearings, at 1-3, 82-
61 Louis Fisher, “The Politics of Executive Privilege,” Carolina Academic Press, 108
(2004)(Fisher).
Initial congressional hearings after the claim was made demonstrated the rigidity
of the Department’s position. The Department later agreed there might be some area
for compromise, and on January 10, 2002, White House Counsel Alberto Gonzales
wrote to Chairman Burton conceding that it was a “misimpression” that
congressional committees could never have access to deliberative documents from
a criminal investigation or prosecution. “There is no such bright-line policy, nor did
we intend to articulate any such policy.” But, he continued, since the documents
“sought a very narrow and particularly sensitive category of deliberative matters” and
“absent unusual circumstances, the Executive Branch has traditionally protected
these highly sensitive deliberative documents against public or congressional
disclosure” unless a committee showed a “compelling or specific need” for the
documents.62 The documents continued to be withheld until a further hearing, held
on February 6, 2002, when the committee heard expert testimony describing over 30
specific instances since 1920 of the Department of Justice allowing congressional
access to prosecutorial memoranda for both open and closed cases and providing
testimony of subordinate Department employees, such as line attorneys, FBI field
agents and U.S. attorneys, and included detailed testimony about specific instances
of DOJ’s failure to prosecute meritorious cases. In all the described instances,
investigating committees were provided with documents respecting open and closed
cases that often included prosecutorial memoranda, FBI investigative reports,
summaries of FBI interviews, memoranda and correspondence prepared during
undercover operations, and documents presented to grand juries not protected by
Rule 6(e), among other similar “sensitive materials.” Shortly after the hearing the
committee was given access to the disputed documents.63
The committee’s final report concluded that the documents withheld from it
were indispensable to its inquiry and that the claim of presidential privilege was part
of a pattern of obstruction that impeded its investigation:
When the FBI Office of Professional Responsibility conducted an investigation
of the activities of New England law enforcement, it concluded in 1997: “There
is no evidence that prosecutorial discretion was exercised on behalf of informants
[James] Bulger and/or [Stephen] Flemmi.” This is untrue. Former U.S. Attorney
62 Fisher, Id.
63 “Everything Secret Degenerates: The FBI’s Use of Murderers As Informants,” H.Rept.
108-414, 108th Cong., 2d Sess. 2-9, 121-134 (2004)(House Report); Hearings, “ Investigation
Into Allegations of Justice Department Misconduct In New England-Volume I”, Housethst
Comm. on Government Reform, 107 Cong., 1 and 2d Sess’s. 520-556, 562-604 (May 3,
December 13, 2001; February 6, 2002) (Hearings); McIntyre v. United States, 367 F.3d 38,st
Salemme, 91 F. Supp. 2d 141, 148-63, 208-15, 322 (D.Mass. 1993) (same); United States
v. Flemmi, 195 F. Supp 243, 249-50 (D. Mass. 200); (same) Charles Tiefer, “President
Bush’s First Executive Privilege Claim: The FBI/Boston Investigation”, 33 Pres. Stud. Q.
201(2003). On July 26, 2007, a Massachusetts federal district court judge awarded the
convicted persons and their families $101.7 million under the Federal Tort Claims Act,
finding the government liable of malicious prosecution, civil conspiracy, infliction of
emotional distress, and negligence. Shelly Murphy and Brian R. Ballou, “FBI Condemned
in Landmark Ruling,” Boston Globe, July 27, 2007, A3; Robert Barrens and Paul Lewis,
“FBI Must Pay $102 Million In Mob Case,” Washington Post, July 27, 2007, A3.
Jeremiah O’Sullivan was asked in the December 5, 2002 Committee hearing
whether prosecutorial discretion had been exercised on behalf of Bulger and
Flemmi and he said that it had. A review of documents in the possession of the
Justice Department also confirms this to be true. Had the committee permitted
the assertion of executive privilege by the President to be unchallenged, this
information would never have been known. That the Justice Department
concluded that prosecutorial discretion had not benefitted Bulger or Flemmi —
while at the same time fighting to keep Congress from obtaining information64
proving this statement to be untrue — is extremely troubling.
Ruby Ridge
The instances of successful committee access to DOJ documents and witnesses
related in the above discussed inquiries (as well as those detailed in the Appendix to
this report) encompassed a wide number of divisions, bureaus, and offices at Main
Justice and U.S. Attorneys offices in the field, and involved the Department’s
politically sensitive Public Integrity Section,65 and provide a substantial basis for
arguing that no element of the DOJ is exempt from oversight by a jurisdictional
committee of the Congress. One additional case study, involving the DOJ Office of
Professional Responsibility, which monitors the conduct of Department personnel,
is notable for its revelations of a number of sensitive, undisclosed internal
investigations in the face of extraordinary agency resistance. That occurred during
the 1995 investigation by the Senate Judiciary Committee’s Subcommittee on
Terrorism, Technology and Government Information of allegations that several
branches of the Department of Justice and the Department of the Treasury had
engaged in serious criminal and professional misconduct in the investigation,
apprehension, and prosecution of Randall Weaver and Kevin Harris at Ruby Ridge,
Idaho. The subcommittee held 14 days of hearings in which it heard testimony from
62 witnesses, including Justice, Federal Bureau of Investigation, and Treasury
officials, line attorneys and agents, and obtained various Justice, FBI and Treasury
internal reports,66 and issued a final report.67
The subcommittee’s hearings revealed that the involved federal agencies
conducted at least eight internal investigations into charges of misconduct at Ruby
Ridge, none of which had ever been publically released.68 DOJ expressed reluctance
to allow the Subcommittee to see the documents out of a concern they would
interfere with the ongoing investigation but ultimately provided some of them under
conditions with respect to their public release. The most important of those
64 House Report at 3, 134-135.
65 See Hearings, supra, at 549-50, 555.
66 Hearings, “The Federal Raid on Ruby Ridge, Idaho,” before the Senate Subcommittee on
Terrorism, Technology, Government Information, Committee on the Judiciary, 104th Cong.,st
67 Ruby Ridge: Report of the Subcommittee on Terrorism, Technology and Government
Information of the Senate Committee on the Judiciary (Ruby Ridge Report). The 154-page
document appears not to have been officially reported by the full Committee. A bound copy
may be found in the United States Senate Library, catalogue number HV 8141.U56 1995.
68 Ruby Ridge Report at 1; Ruby Ridge Hearings at 722, 954, 961.
documents was the Report of the Ruby Ridge Task Force.69 The Task Force was
established by the DOJ after the acquittals of Randy Weaver and Kevin Harris of all
charges in the killing of a Deputy United States Marshal70 to investigate charges that
federal law enforcement agents and federal prosecutors involved in the investigation,
apprehension and prosecution of Weaver and Harris may have engaged in
professional misconduct and criminal wrongdoing. The allegations were referred to
DOJ’s Office of Professional Responsibility (OPR). The Task Force was headed by
an Assistant Counsel from OPR and consisted of four career attorneys from DOJ’s
Criminal Division and a number of FBI inspectors and investigative agents. The
Task Force submitted a 542 page report to OPR on June 10, 1994, which found
numerous problems with the conduct of the FBI, the U.S. Marshals Service, and the
U.S. Attorneys office in Idaho, and made recommendations for institutional changes
to address the problems it found. It also concluded that portions of the rules of
engagement issued by the FBI during the incident were unconstitutional under the
circumstances, and that the second of two shots taken by a member of the FBI’s
Hostage Rescue Team (HRT), which resulted in the death of Vicki Weaver, was not
reasonable. The Task Force recommended that the matter of the shooting be referred
to a prosecutorial component of the Department for a determination as to whether a
criminal investigation was appropriate. OPR reviewed the Task Force Report and
transmitted the Report to the Deputy Attorney General with a memorandum that
dissented from the recommendation that the shooting of Vicki Weaver by the HRT
member be reviewed for prosecutorial merit based on the view that given the totality
of circumstances, the agent’s actions were not unreasonable. The Deputy Attorney
referred the Task Force recommendation for prosecutorial review to the Criminal
Section of the Civil Rights Division which concluded that there was no basis for
criminal prosecution. The Task Force Report was the critical basis for the
Subcommittee’s inquiries during the hearings and its discussion and conclusions in
its final report.71
69 The Task Force Report was never publically released or printed in the subcommittee’s
hearing record. A bound copy of the Report provided the subcommittee may be found in
the United States Senate Library, catalogue number HV814.U55 1995.
70 Weaver was convicted for failure to appear for a trial and for commission of an offense
while on release.
71 See, e.g., Ruby Ridge Hearings at 719-737, 941-985; Ruby Ridge Report at 10-11 (“With
the exceptions of the [Ruby Ridge] Task Force Report, which was partially disavowed by
the Department, and the April 5, 1995 memorandum of Deputy Attorney General Jamie
Gorelick, it appeared to the subcommittee that the authors of every report we read were
looking more to justify agency conduct than to follow the facts wherever they lead.”), 61-69,
Assessment of DOJ’s Opposition to Congressional
Access to Information in Open and Closed
Litigation Files and to Internal Deliberative Materials
The Department’s Position
The reasons advanced by the executive for declining to provide information to
Congress about open and closed civil and criminal proceedings, most famously
articulated by then Attorney General Robert Jackson in 1941, have included avoiding
prejudicial pre-trial publicity, protecting the rights of innocent third parties,
protecting the identity of confidential informants, preventing disclosure of the
government’s strategy in anticipated or pending judicial proceedings, avoiding the
potentially chilling effect on the exercise of prosecutorial discretion by DOJ
attorneys, and precluding interference with the President’s constitutional duty to
faithfully execute the laws all of which would “seriously prejudice law
enforcem ent . ”72
Jackson’s views were reiterated by Attorney General William French Smith in
1982 during the Superfund dispute, there applying the policy to documents “which
are sensitive memoranda or notes by EPA attorneys and investigators reflecting
enforcement strategy, legal analyses, lists of potential witnesses, settlement
considerations and similar materials the disclosure of which might adversely affect
a pending enforcement action, overall enforcement policy, or the rights of
individuals. I continue to believe, as have my predecessors, that unrestricted
dissemination of law enforcement files would prejudice the cause of effective law
enforcement and, because the reasons for the policy of confidentiality are as sound
and fundamental to the administration of justice today as they were forty years ago,
I see no reason to depart from the consistent position of previous presidents and
attorney generals.” Acceding to congressional investigation demands, the Attorney
General asserted, would make Congress “in a sense, a partner in the investigation”
raising “ a substantial danger that congressional pressures will influence the course
of the investigation.” This policy is said to be “premised in part on the fact that the
Constitution vests in the President and his subordinates the responsibility to ‘Take
Care that the Laws be faithfully executed.’”73
Finally, in the 2001-2002 House Government Reform Committee investigation
of the FBI misuse of informants, the Department maintained its historic position of
withholding internal deliberative prosecutorial documents until just weeks before its
eventual abandonment. In a February 1, 2002, letter to Chairman Burton, the DOJ
Assistant Attorney General for Legislative Affairs explained:
Our particular concern in the current controversy pertains to the narrow and
especially sensitive categories of advice memoranda to the Attorney General and
72 40 Op. A.G. 45. 46-47 (1941).
73 Letter to Hon. John D. Dingell Chairman, House Subcommittee on Oversight and
Investigation, Committee on Energy and Commerce, from Attorney General William French
Smith, dated November 30, 1982, reprinted in H.Rept. No. 97-968, supra, at 37-38.
the deliberative documents making recommendations regarding whether or not
to bring criminal charges against individuals. We believe that the public interest
in avoiding the polarization of the criminal justice process required greater
protection of those documents which, in turn, influences the accommodation
process. This is not an “inflexible position,” but rather a statement of a principled74
interest in ensuring the integrity of prosecutorial decision-making.
Assessment of the Department’s Position
1. Concerns with Pre-Trial Publicity, Due Process, and Concurrent
Investigations.
As has been recounted previously, the Supreme Court has repeatedly reaffirmed
the breadth of Congress’ right to investigate the government’s conduct of criminal75
and civil litigation. The courts have also explicitly held that agencies may not deny
Congress access to agency documents, even in situations where the inquiry may
result in the exposure of criminal corruption or maladministration of agency officials.
The Supreme Court has noted, “[B]ut surely a congressional committee which is
engaged in a legitimate legislative investigation need not grind to a halt whenever
responses to its inquiries might potentially be harmful to a witness in some distinct76
proceeding ... or when crime or wrongdoing is exposed.” The Court further
explained:
The suggestion made in dissent that the questions which petitioner refused to
answer were ‘outside the power of a committee to ask’ under the Due Process
Clause because they touched on matters then pending in judicial proceedings
cannot be accepted for several reasons: First, the reasoning underlying this
proposition is that these inquiries constituted a legislative encroachment on the
judicial function. But such reasoning can hardly be limited to inquiries that may
be germane to existing judicial proceedings: it would surely apply as well to
inquiries calling for answers that my be used to the prejudice of witnesses in any
future judicial proceeding. If such were the reach of ‘due process’ it would turn
a witness’ privilege against self-incrimination into a self-operating restraint on
congressional inquiry, and would in effect pro tanto obliterate the need for that77
constitutional protection.
Nor does the actual pendency of litigation disable Congress from the
investigation of facts which have a bearing on that litigation, where the information
sought is needed to determine what, if any, legislation should be enacted to prevent78
further ills.
Although several lower court decisions have recognized that congressional
hearings may have the result of generating prejudicial pre-trial publicity, they have
74 Hearings, supra note 63.
75 See discussion of case law, supra at notes 3-15, and accompanying text.
76 Hutcheson v. United States, 369 U.S. 599, 617 (1962).
77 369 U.S. at n. 16.
78 Sinclair v. United States, 279 U.S. 263, 294 (1929).
not suggested that there are any constitutional or legal limitations on Congress’ right
to conduct an investigation during the pendency of judicial proceedings. Instead, the
cases have suggested approaches, such as granting a continuance or a change of
venue, to deal with the publicity problem.79 For example, the court in one of the
leading cases, Delaney v. United States, entertained “no doubt that the committee
acted lawfully, within the constitutional powers of Congress duly delegated to it” but
went on to describe the possible consequences of concurrent executive and
congressional investigations:
We think that the United States is put to a choice in this matter: If the United
States, through its legislative department, acting conscientiously pursuant to its
conception of the public interest, chooses to hold a public hearing inevitably
resulting in such damaging publicity prejudicial to a person awaiting trial on a
pending indictment, then the United States must accept the consequences that the
judicial department, charged with the duty of assuring the defendant a fair trial
before an impartial jury, may find it necessary to postpone the trial until by lapse
of time the danger of the prejudice may reasonably be thought to have been80
substantially removed.
The Delaney court distinguished the case of a congressional hearing generating
publicity relating to an individual not under indictment at the time (as was Delaney):
Such a situation may present important differences from the instant case. In such
a situation the investigative function of Congress has its greatest utility:
Congress is informing itself so that it may take appropriate legislative action; it
is informing the Executive so that existing laws may be enforced; and it is
informing the public so that democratic processes may be brought to bear to
correct any disclosed executive laxity. Also, if as a result of such legislative
hearing an indictment is eventually procured against the public official, then in
the normal case there would be a much greater lapse of time between the
publicity accompanying the public hearing and the trial of the subsequently
79 See e.g., Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); United States v. Mitchell,
372 F.Supp. 1259, 1261 (S.D.N.Y. 1973). For discussion of issues in addition to prejudicial
publicity that have been raised in regard to concurrent congressional and judicial
proceedings, including allegations of violation of due process, see, Contempt of Congress,
H.R. Rpt. No. 97-968, 97th Cong., 2d Sess. 58 (1982).
80 199 F.2d 107, 114 (1st Cir. 1952). The court did not fault the committee for holding
public hearings, stating that if closed hearings were rejected “because the legislative
committee deemed that an open hearing at that time was required by overriding
considerations of public interest, then the committee was of course free to go ahead with its
hearing, merely accepting the consequence that the trial of Delaney on the pending
indictment might have to be delayed.” 199 F.2d at 114-5. It reversed Delaney’s conviction
because the trial court had denied his motion for a continuance until after the publicity
generated by the hearing, at which Delaney and other trial witnesses were asked to testify,
subsided. See also, Hutcheson v. United States, 369 U.S. 599, 613 (1962)(upholding
contempt conviction of person who refused to answer committee questions relating to
activities for which he had been indicted by a state grand jury, citing Delaney)
indicted official than would be the case if the legislative hearing were held while81
the accused is awaiting trial on a pending indictment.
The absence of indictment and the length of time between congressional hearing
and criminal trial have been factors in courts rejecting claims that congressionally82
generated publicity prejudiced defendants. Finally, in the context of adjudicatory
administrative proceedings, courts on occasion have held that pressures emanating
from questioning of agency decisionmakers by Members of Congress may be
sufficient to undermine the impartiality of the proceeding. 83 But the courts have also
made clear that mere inquiry and oversight of agency actions, including agency
proceedings that are quasi-adjudicatory in nature, will not be held to rise to the level
of political pressure designed to influence particular proceedings that would require
judicial condemnation.84
Thus, the courts have recognized the potentially prejudicial effect congressional
hearings can have on pending cases. While not questioning the prerogatives of
Congress with respect to oversight and investigation, the cases pose a choice for the
Congress: congressionally generated publicity may result in harming the
prosecutorial effort of the Executive; but access to information under secure
conditions can fulfill the congressional power of investigation and at the same time
need not be inconsistent with the authority of the executive to pursue its case.
Nonetheless, it remains a choice that is solely within Congress’ discretion to make
irrespective of the consequences. The observation of the Iran-Contra Independent
Counsel is pertinent here: “The legislative branch has the power to decide whether
it is more important perhaps to destroy a prosecution than to hold back testimony
81 199 F.2d at 115.
82 See, Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), cert. denied, 400 U.S.
102 (1971)(claim of prejudicial pretrial publicity rejected because committee hearings
occurred five months prior to indictment); Beck v. Washington, 369 U.S. 541, 544
(1962)(hearing occurred a year before trial); United States v. Haldeman, 559 F.2d 31, 63
(D.C. Cir. 1976), cert. denied, 433 U.S. 933 (1977); United States v. Ehrlichman, 546 F.2d
F. 2d. 1, 4 (1 Cir. 1978) (Senate Committee determined not to heed warnings from DOJ that
insistence on defendant’s testimony would threaten or absolutely bar future prosecutions but
conviction was nonetheless upheld); United States v. Mitchell, 372 F. Supp. 1239, 1261
(S.D.N.Y. 1973)(post-indictment Senate hearing but court held that lapse of time and efforts
of committee to avoid questions relating to indictment diminished possibility of prejudice);
United States v. Mesarosh, 223 F.2d 449 (3rd Cir. 1955)(hearing only incidentally
connected with trial and occurred after jury selected).
83 See, e.g., Pillsbury Co. v. FTC, 354 F.2d 952 5th Cir. (1968).
84 See e.g., ATX, Inc. v. Department of Transportation 41 F.3d 1522 (D.C. Cir. 1994); State
of California v. FERC, 966 F.2d 154 (9th Cir. 1992); Peter Kiewet Sons’ v. U.S. Army Corps
of Engineers, 714 F.2d 163 (D.C. Cir. 1983); Gulf Oil Corp. v. FPC, 563 F.2d 588 (3d Cir.
1977), cert. denied, 434 U.S. 1062 (1978); United States v. Armada Petroleum Corp., 562
F.Supp 43 (S.D. Tex. 1982). See also, Morton Rosenberg and Jack Maskell, Congressional
Intervention in the Administrative Process: Legal and Ethical Considerations,” CRS Report
RL32113, September 25, 2003.
they need. They make that decision. It is not a judicial decision, or a legal decision,
but a political decision of the highest importance.”85
2. Concerns Over Revelations of Government Strategies or
Methods or Weaknesses of Investigation.
Attorney General and DOJ/OLC opinions raise concerns that congressional
oversight that calls for information which reflects on the government’s strategy or its
methods or weaknesses is somehow inappropriate. Arguably, however, if this type
of concern were recognized as enabling the blocking of congressional inquiry, it
would end a major portion of legislative oversight. Congressional inquiries into
foreign affairs and military matters call for information on strategy and weaknesses
in national security matters; congressional probes into waste, fraud, and inefficiency
in domestic operations calls for information on strategy and weaknesses. For
Congress to forego such inquiries might signal an abandonment of its oversight
duties: The best way to correct either bad law or bad administration is to closely
examine these matters. The many examples congressional probes recounted above
and in the Appendix to this report underline the efficacy and necessity of the
revelation of such matters.
3. The Claim That Prosecution Is a Core Presidential Power Subject
to Assertions of Executive Privilege.
In the past the executive frequently has made a broader claim that prosecution
is an inherently executive function and that congressional access to information
related to the exercise of that function is thereby limited. Prosecutorial discretion is
seen as off-limits to congressional inquiry and access demands are viewed as
interfering with the discretion traditionally enjoyed by the prosecutor with respect to
pursuing criminal cases.
Initially, it must be noted that the Supreme Court has rejected the notion that
prosecutorial discretion in criminal matters is an inherent or core executive function.
Rather, the Court noted in Morrison v. Olson, 86 sustaining the validity of the
appointment and removal conditions for independent counsels under the Ethics in
Government Act, that the independent counsel’s prosecutorial powers are executive
in that they have “typically” been performed by Executive Branch officials, but held
that the exercise of prosecutorial discretion is in no way “central” to the functioning
of the Executive Branch.87 The Court therefore rejected a claim that insulating the
independent counsel from at-will presidential removal interfered with the President’s
duty to “take care” that the laws be faithfully executed. Interestingly, the Morrison
Court took the occasion to reiterate the fundamental nature of Congress’ oversight
function (“ ... receiving reports or other information and oversight of the independent
85 Lawrence E. Walsh, “The Independent Counsel and the Separation of Powers,” 25 Hous.
L. Rev. 1, 9 (1988).
86 487 U.S. 654 (1988).
87 Id. at 691-92.
counsel’s activities ... [are] functions that we have recognized as generally incidental
to the legislative function of Congress,” citing McGrain v. Daugherty.)88
The breadth of Morrison’s ruling that the prosecutorial function is not an
exclusive function of the executive was made clear in a decision of the Ninth Circuit
Court of Appeals in United States ex rel Kelly v. The Boeing Co.,89 which upheld,
against a broad based separation of powers attack, the constitutionality of the qui tam
provisions of the False Claims Act vesting enforcement functions against agencies
by private parties. Boeing argued, inter alia, that Congress could not vest
enforcement functions outside the Executive Branch in private parties. Applying
Morrison the appeals court emphatically rejected the contention.
Before comparing the qui tam provisions of the FCA to the independent counsel
provisions of the Ethics in Government Act, we must address Boeing’s
contention that only the Executive Branch has the power to enforce laws, and
therefore to prosecute violations of law. It is clear to us that no such absolute
rule exists. Morrison itself indicates otherwise because that decision validated
the independent counsel provisions of the Ethics in Government Act even though
it recognized that “it is undeniable that the Act reduces the amount of control or
supervision that the Attorney General and, through him, the President exercises
over the investigation and prosecution of a certain class of alleged criminal
activity.” 487 U.S. at 695. The Court also stated in Morrison that “there is no
real dispute that the functions performed by the independent counsel are
`executive’ in the sense that they are law enforcement functions that typically
have been undertaken by officials within the Executive Branch.” 487 U.S. at 692
(emphasis added). Use of the world “typically” in that sentence, considered in
light of the Court’s ultimate conclusion upholding the independent counsel
provisions, must mean that prosecutorial functions need not always be
undertaken by Executive Branch officials. See Stephanie A.J. Dangel, Note, Is
Prosecution a Core Executive Function? Morrison v. Olson and the Framers’
Intent, 99 Yale L.J. 1069, 1070 (1990)(Framers intended that prosecution would
be undertaken by but not constitutionally assigned to executive officials, and that
such officials would typically but not always prosecute). Thus, we reject
Boeing’s assertion that all prosecutorial power of any kind belongs to the90
Executive Branch.
Prosecution, not being a core or exclusive function of the Executive, cannot
claim the constitutional stature of Congress’s oversight prerogative. In the absence
of a credible claim of encroachment or aggrandizement by the legislature of essential
Executive powers, the Supreme Court has held the appropriate judicial test is one that
determines whether the challenged legislative action “‘prevents the Executive Branch
from accomplishing its assigned functions’,” and, if so, “‘whether that impact is
88 Id. at 694.
89 9 F.3d 743 (9th Cir. 1993).
90 9 F.3d at 751 (emphasis supplied). See also, Vermont Agency of National Resources v.
U.S. ex. rel. Stevens, 529 U.S. 765(2000)(holding that qui tam relators meet Article III
standing requirements).
justified by an overriding need to promote objectives within the constitutional
authority of Congress’.” 91
Congressional oversight and access to documents and testimony, unlike the
action of a court, cannot stop a prosecution or set limits on the management of a
particular case. Access to information by itself would not seem to disturb the
authority and discretion of the Executive Branch to decide whether to prosecute a
case. The assertion of prosecutorial discretion in the face of a congressional demand
for information is arguably akin to the “generalized” claim of confidentiality made
in the Watergate executive privilege cases. That general claim — lacking in specific
demonstration of disruption of executive functions — was held to be overcome by
the more focused demonstration of need for information by a coordinate branch of
government. 92
Given the legitimacy of congressional oversight and investigation of the law
enforcement agencies of government, and the need for access to information pursuant
to such activities,93 a claim of prosecutorial discretion by itself would not seem to be
sufficient to defeat a congressional need for information. The congressional action
itself does not and cannot dictate prosecutorial policy or decisions in particular cases.
Congress may enact statutes that influence prosecutorial policy, and information
91 Nixon v. Administration of General Services, 433 U.S. 425, 433 (1977); Commodity
Futures Trading Commission v. Schor, 487 U.S. 833, 851 (1986); Morrison v. Olson, 487
U.S. 654, 693-96 (1988).
92 U.S. v. Nixon, 418 U.S. 683, 705-706, 711-712 (1974).
93 The recent district court ruling in House Committee on the Judiciary v. Miers, et al., Case
No. 08-00409 (D.D.C. July 31, 2008) (Miers)(slip opinion), in rejecting a claim of lack of
standing of the House Judiciary Committee to challenge an Executive assertion of absolute
immunity from compulsory congressional process, reiterated that prior Supreme Court
rulings in McGrain v. Daugherty, Eastland v. United States Servicemen’s Fund, and
Barenblatt v. United States, among others, had firmly established that Congress’s power and
authority to seek and compel information from Executive agencies in criminal and civil
enforcement contexts is constitutionally-based. In denying the claim by the Executive that
a jurisdictional committee charged with oversight of the Justice Department could not
permissibly employ its investigative resources to determine the reasons for the forced
resignations and replacement of nine United States Attorneys, the court stated that “Given
its ‘unique ability to address improper partisan influence in the prosecutorial process, . .
.[n]o other institution will fill the vacuum if Congress is unable to investigate and respond
to this evil.’. . . With the legitimacy of its investigation established, there is no reason to
belabor the argument concerning informational standing - - non-compliance with a duly
issued subpoena is a quintessential informational injury. . . .Thus, the Committee filed this
suit to vindicate both its right to the information that is the subject of the subpoena and its
institutional prerogative to compel compliance with its subpoena. A harm to either interest
satisfies the injury-in-fact standing requirement.”Slip opinion at 41. See also slip opinion
at 64:. “The exercise of Congress’s investigative ‘power,’ which the Executive concedes that
Congress has, creates rights. For instance, by utilizing its power to issue subpoenas and
proceed with an investigation via compulsory process, Congress creates a legal right to the
responsive information that those subpoenas would yield. To hold that Congress’s ability
to enforce its subpoenas in federal court turns on whether an investigative function and
accompanying authority to utilize subpoenas are properly labeled as ‘powers’ or ‘rights’
would elevate form over substance. The Court declines to do so.” (Emphasis in original).
relating to enforcement of the laws would seem necessary to perform that legislative
function. Thus, under the standard enunciated in Morrison v. Olson and Nixon v.
Administrator of General Services, the fact that information is sought on the
executive’s enforcement of criminal laws would not in itself seem to preclude
congressional inquiry.
In light of the Supreme Court’s consistent support of the power of legislative
inquiry, and in the absence of a countervailing constitutional prerogative of the
executive, reviewing courts may be disposed to be “sensitive to the legislative
importance of congressional committees on oversight and investigations and
recognize that their interest in the objective and efficient operation of ... agencies
serves a legitimate and wholesome function with which we should not lightly
interfere.”94 More particularly, future judicial decisions involving presidential claims
of privilege with respect to prosecutorial decisionmaking by DOJ likely will be
informed by two District of Columbia Circuit rulings that filled important gaps in the
law of presidential privilege that had been developed between 1977 and 1983.95
The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. Under those precedents, the privilege, which
is constitutionally rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decisionmaking
and deliberations that he believes should remain confidential. If the President does
so, the materials become presumptively privileged. The privilege, however, is
qualified, not absolute, and can be overcome by an adequate showing of need.
Finally, while reviewing courts have expressed reluctance to balance executive
privilege claims against a congressional demand for information, they have
acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed
Case,96 and its 2004 ruling in Judicial Watch, Inc. v. Department of Justice,97 these
judicial decisions had left important gaps in the law of presidential privilege which
increasingly became focal points, if not the source, of interbranch confrontations.
Among the more significant issues left open included whether the President has to
have actually seen or been familiar with the disputed matter; whether the presidential
privilege encompasses documents and information developed by, or in the possession
of, officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if
so, is it limited to any particular type of presidential decisionmaking; and precisely
what kind of demonstration of need must be shown to justify release of materials that
94 Gulf Oil Corp. v. FPC, 563 F.2d 588, 610 (3d Cir. 1977).
95 For an in-depth discussion of the Nixon and post-Watergate case law, see “Presidential
Claims of Executive Privilege: History, Law, Practice and Recent Developments,” CRS
Report RL30319, 2-9, by Morton Rosenberg.
96 121 F.3d 729 (D.C. Cir. 1997).
97 365 F.3d 1108 (D.C. Cir. 2004).
qualify for the privilege. The unanimous panel in In re Sealed Case addressed each
of these issues in a manner that may have drastically altered the future legal playing
field in resolving such disputes. The recent ruling in the Judicial Watch case
reinforces that likelihood.98
In re Sealed Case (Espy)99 arose out of an Office of Independent Counsel (OIC)
investigation of former Agriculture Secretary Mike Espy. When allegations of
improprieties by Espy surfaced in March of 1994, President Clinton ordered the
White House Counsel’s Office to investigate and report to him so he could determine
what action, if any, he should undertake. The White House Counsel’s Office
prepared a report for the President, which was publically released on October 11,
1994. The President never saw any of the underlying or supporting documents to the
report. Espy had announced his resignation on October 3, to be effective on
December 31. Meanwhile, the Independent Counsel had been appointed on
September 9 and the grand jury issued a subpoena for all documents that were
accumulated or used in preparation of the report on October 14, three days after the
report’s issuance. The President withheld 84 documents, claiming both the executive
and deliberative process privileges for all documents. A motion to compel was
resisted on the basis of the claimed privileges and after in camera review the district
court quashed the subpoena, but in its written opinion did not discuss the documents
in any detail and provided no analysis of the grand jury’s need for the documents.
The appeals court reversed.
At the outset, the court’s opinion carefully distinguishes between the
“presidential communications privilege” and the “deliberative process privilege.”
Both, the court observed, are executive privileges designed to protect the
confidentiality of executive branch decisionmaking. The deliberative process
privilege applies to executive branch officials generally, is a common law privilege
which requires a lower threshold of need to be overcome, and “disappears altogether
when there is any reason to believe government misconduct has occurred.”100
On the other hand, the court explained, the presidential communications
privilege is rooted in “constitutional separation of powers principles and the
President’s unique constitutional role” and applies only to “direct decisionmaking by
the President.”101 The privilege may be overcome only by a substantial showing that
“the subpoenaed materials likely contain[] important evidence” and that “the
evidence is not available with due diligence elsewhere.”102 The presidential privilege
98 Neither case, however, involved congressional access to information.
99 121 F.3d 729 (D.C. Cir. 1997).
100 121 F.3d at 745, 746; see also id. at 737-738 (“[W]here there is reason to believe the
documents sought may shed light on government misconduct, the [deliberative process]
privilege is routinely denied on the grounds that shielding internal government deliberations
in this context does not serve ‘the public interest in honest, effective government”’).
101 Id. at 745, 752. See also id. at 753 (“...these communications nonetheless are ultimately
connected with presidential decisionmaking”).
102 Id. at 754. See also id. at 757.
applies to all documents in their entirety103 and covers final and post-decisional
materials as well as pre-deliberative ones.104
Turning to the chain of command issue, the court held that the presidential
communications privilege must cover communications made or received by
presidential advisers in the course of preparing advice for the President even if those
communications are not made directly to the President. The court rested its
conclusion on “the President’s dependence on presidential advisers and the inability
of the deliberative process privilege to provide advisers with adequate freedom from
the public spotlight” and “the need to provide sufficient elbow room for advisers to105
obtain information from all knowledgeable sources”. Thus the privilege will “apply
both to communications which these advisers solicited and received from others as
well as those they authored themselves. The privilege must also extend to
communications authored or received in response to a solicitation by members of a
presidential adviser’s staff.”106
The court, however, was acutely aware of the dangers to open government that
a limitless extension of the privilege risks and carefully cabined its reach by
explicitly confining it to White House staff, and not staff in the agencies, and then
only to White House staff that has “operational proximity” to direct presidential
decisionmaking.
We are aware that such an extension, unless carefully circumscribed to
accomplish the purposes of the privilege, could pose a significant risk of
expanding to a large swath of the executive branch a privilege that is bottomed
on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s
decisionmaking process is adequately protected. Not every person who plays a
role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in executive branch
agencies. Instead, the privilege should apply only to communications authored
or solicited and received by those members of an immediate White House
advisor’s staff who have broad and significant responsibility for investigation
and formulating the advice to be given the President on the particular matter to
which the communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to pose a risk to
the candor of his advisers. See AAPS, 997 F.2d at 910 (it is “operational
proximity” to the President that matters in determining whether “[t]he President’s
confidentiality interests” is implicated)(emphasis omitted).
103 In contrast, the deliberative process privilege does not protect documents that simply state
or explain a decision the government has already made or material that is purely factual,
unless the material is inextricably intertwined with the deliberative portions of the materials
so that disclosure would effectively reveal the deliberations. 121 F.3d at 737.
104 Id. at 745.
105 Id. at 752.
106 Id.
Of course, the privilege only applies to communications that these advisers and
their staff author or solicit and receive in the course of performing their function
of advising the President on official government matters. This restriction is
particularly important in regard to those officials who exercise substantial
independent authority or perform other functions in addition to advising the
President, and thus are subject to FOIA and other open government statutes. See
Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir.
1996), cert denied — U.S. — -, 1 17 S.Ct. 1842, 137 L. Ed.2d 1046 (1997). The
presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for
direct decisionmaking by the President. If the government seeks to assert the
presidential communications privilege in regard to particular communications of
these “dual hat” presidential advisers, the government bears the burden of
proving that the communications occurred in conjunction with the process of107
advising the President.
The appeals court’s limitation of the presidential communications privilege to
“direct decisionmaking by the President” makes it imperative to identify the type of
decisionmaking to which it refers. A close reading of the opinion makes it arguable
that it is meant to encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and non-delegable
Presidential power.”108 In the case before it the court was specifically referring to the
President’s Article II appointment and removal power which was the focal point of
the advice he sought in the Espy matter. But it is clear from the context of the
opinion that the description was meant to juxtapose appointment and removal power
in contrast with “presidential powers and responsibilities” that “can be exercised or
performed without the President’s direct involvement, pursuant to a presidential
delegation of authority or statutory framework.”109 The reference the court uses to
illustrate the latter category is the President’s Article II duty “to take care that the
laws are faithfully executed,” a constitutional direction that the courts have
consistently held not to be a source of presidential power but rather an obligation on
the President to see to it that the will of Congress is carried out by the executive110
bureaucracy.
The appeals court, then, would appear to be confining the parameters of the
newly formulated presidential communications privilege by tying it to those Article
II functions that are identifiable as “quintessential and non-delegable,” which would
appear to include, in addition to the appointment and removal powers, the
107 Id. (footnote omitted).
108 Id. at 752.
109 Id. at 752-53.
110 See, e.g., Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-613 (1838);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); Myers v. United States,
Nixon, 492 F.2d 587, 604 (D.C. Cir. (1974): Biodiversity Associates, et al v. Cables, 357 F.
3d. 1152, 1161-63(10th Cir. 2004)(“[W]hen Congress is exercising its own powers with
respect to matters of public rights, the executive role of ‘tak[ing] Care that the Laws be
faithfully executed,’ U.S. Const. Art. II, §3, is entirely derivative of the laws passed by
Congress, and Congress may be as specific in its instruction to the executive as it wishes.”).
commander-in-chief power, the sole authority to receive ambassadors and other
public ministers, the power to negotiate treaties, and the power to grant pardons and
reprieves. On the other hand, decisionmaking vested by law in agency heads such
as prosecutorial decisionmaking, rulemaking, environmental policy, consumer
protection, workplace safety and labor relations, among others, would not necessarily
be covered. Of course, the President’s role in supervising and coordinating (but not
displacing) decisionmaking in the executive branch remains unimpeded. But his
communications would presumably not be cloaked by constitutional privilege.
Such a reading of this critical passage is consonant with the court’s view
of the source and purpose of the presidential communications privilege and its
expressed need to confine it as narrowly as possible. Relying on United States v.
Nixon ,111 the In re Sealed Case court identifies “the President’s Article II powers and
responsibilities as the constitutional basis of the presidential communications
privilege. Since the Constitution assigns these responsibilities to the President alone,
arguably the privilege of confidentiality that derives from it also should be the
President’s alone.”112 Again relying on Nixon the appeals court pinpoints the
essential purpose of the privilege: “[Tlhe privilege is rooted in the need for
confidentiality to ensure that presidential decisionmaking is of the highest caliber,
informed by honest advice and knowledge. Confidentiality is what ensures the
expression of ‘candid, objective, and even blunt or harsh opinions’ and the
comprehensive exploration of all policy alternatives before a presidential course of
action is selected.”113 The limiting safeguard is that the privilege will apply in those
instances where the Constitution provides that the President alone must make a
decision. “The presidential communications privilege should never serve as a means
of shielding information regarding governmental operations that do not call
ultimately for direct decisionmaking by the President.”114
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v.
Department of Justice115 appears to lend substantial support to the above-expressed
understanding of Espy. Judicial Watch involved requests for documents concerning
pardon applications and pardon grants reviewed by the Justice Department’s Office
of the Pardon Attorney and the Deputy Attorney General for consideration by
President Clinton.116 Some 4,300 documents were withheld on the grounds that they
were protected by the presidential communications and deliberative process
privileges. The district court held that because the materials sought had been
111 418 U.S. 683 (1974).
112 Id. at 748.
113 Id. at 750.
114 Id. at 752.
115 365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the
majority and Judge Randolph dissenting.
116 The President has delegated the formal process of review and recommendation of his
pardon authority to the Attorney General who in turn has delegated it to the Deputy Attorney
General. The Deputy Attorney General oversees the work of the Office of the Pardon
Attorney.
produced for the sole purpose of advising the President on a “quintessential and non-
delegable Presidential power” — the exercise of the President’s constitutional pardon
authority — the extension of the presidential communications privilege to internal
Justice Department documents which had not been “solicited and received” by the
President or the Office of the President was warranted.117 The appeals court reversed,
concluding that “internal agency documents that are not solicited and received by the
President or his Office are instead protected against disclosure, if at all, by the
deliberative process privilege.” 118
Guided by the analysis of the Espy ruling, the panel majority emphasized that
the “solicited and received” limitation “is necessitated by the principles underlying
the presidential communications privilege, and a recognition of the dangers of
expanding it too far.”119 Espy teaches, the appeals court explained, that the privilege
may be invoked only when presidential advisers in close proximity to the President
who have significant responsibility for advising him on non-delegable matters
requiring direct presidential decisionmaking, have solicited and received such
documents or communications or the President has received them himself. In
rejecting the Government’s argument that the privilege should be applicable to all
departmental and agency communications related to the Deputy Attorney General’s
pardon recommendations for the President, the panel majority held that “such a
bright-line rule is inconsistent with the nature and principles of the presidential
communications privilege, as well as the goal of serving the public interest.
Communications never received by the President or his Office are unlikely to be
revelatory of his deliberations ... nor is there any reason to fear that the Deputy
Attorney General’s candor or the quality of the Deputy’s pardon recommendations
would be sacrificed if the presidential communications privilege did not apply to
internal documents. Any pardon documents, reports or recommendations that the
Deputy Attorney General submits to the Office of the President, and any direct
communications the Deputy or the Pardon Attorney may have with the White House
Counsel or other immediate Presidential advisors will remain protected. It is only
those documents and recommendations of Department staff that are not submitted by
the Deputy Attorney General for the President and are not otherwise received by the
Office of the President, that do not fall under the presidential communications
privilege”120 Indeed, the Judicial Watch panel makes it clear that the Espy rationale
would preclude cabinet department heads from being treated as being part of the
President’s immediate personal staff or as some unit of the Office of the President:
Extension of the presidential communications privilege to the Attorney General’s
delegatee, the Deputy Attorney General, and his staff, on down to the Pardon
Attorney and his staff, with the attendant implication for expansion to other
Cabinet officers and their staffs, would, as the court pointed out in In re Sealed
Case, pose a significant risk of expanding to a large swatch of the executive
117 365 F.3d at 1109-12.
118 Id. at 1112, 1114, 1123.
119 Id. at 1114.
120 Id. at 1117.
branch a privilege that is bottomed on a recognition of the unique role of the121
President.
The Judicial Watch majority took great pains to explain why Espy and the case
before it differed from the Nixon and post-Watergate cases: “Until In re Sealed Case,
the privilege had been tied specifically to direct communications of the President
with his immediate White House advisors”122 The Espy court, it explained, was for
the first time confronted with the question whether communications that the
President’s closest advisors make in the course of preparing advise for the President
which the President never saw should also be covered by the presidential privilege.
The Espy court’s answer was to “espouse[ ] a ‘limited extension’ of the privilege’
‘down the chain of command’ beyond the President to his immediate White House
advisors only,” recognizing “the need to ensure that the President would receive full
and frank advice with regard to his non-delegable appointment and removal powers,
but was also wary of undermining countervailing considerations such as openness in
government.... Hence, the [Espy] court determined that while ‘communications
authored or solicited and received’ by immediate White House advisors in the Office
of the President could qualify under the privilege, communications of staff outside
the White House in executive branch agencies that were not solicited and received123
by such White House advisors could not.”
The situation before the Judicial Watch court tested the Espy principles. While
the presidential decision involved — exercise of the President’s pardon power — was
certainly a non-delegable, core presidential function, the operating officials involved,
the Deputy Attorney General and the Pardon Attorney, were deemed to be too remote
from the President and his senior White House advisors to be protected. The court
conceded that functionally those officials were performing a task directly related to
the pardon decision but concluded that an organizational test was more appropriate
for confining the potentially broad sweep that would result from a functional test;
under the latter test, there would be no limit to the coverage of the presidential
121 Id. at 1121. See also Id. at 1122.
122 Id. at 1116. See also Miers, supra at not e 93, rejecting a claim that a House Judiciary
Committee investigation of the removal and replacement as illegitimate because it intrudes
into the President’s constitutional authority to appoint and remove officers of the United
States. The court responded that “the Executive characterizes the Committee’s investigation
too narrowly. It is not merely an investigation into the Executive’s use of his removal power
but rather a broader inquiry into whether improper considerations have influenced
prosecutorial discretion. Similarly, in Nixon v. Adm’r. Gen. Services, the Supreme Court
indicated that if Congress’s need to understand how. . .political processes had in fact
operated in order to gauge the necessity for remedial legislation’ was a legitimate topic for
investigation. 433 U.S. at 453. Once again, the same can be said of the Committee’s
investigation. It defies both reason and precedent to say that the Committee, which is
charged with oversight of DOJ generally, cannot permissibly employ its investigative
resources on this subject.” Slip opinion at 40-41.
123 Id. at 1116, 1117.
communications privilege. In such circumstances, the panel majority concluded, the
lesser protections of the deliberative process privilege would have to suffice.124
Espy and Judicial Watch, taken together with Morrison v. Olson’s holding that
prosecution is not a core or exclusive function of the executive, and McGrain v.
Daugherty’s understanding that Congress’ access to prosecutorial information is
founded on its plenary authority to create, empower and fund the activities of the
Department, raise serious doubts as to the propriety of the claim to a presidential
communications privilege in a situation involving internal agency deliberative
information. Rather, a withholding claim based on “deliberative process” arguably
must be tested as one of the common law privileges available to executive agencies
that may be overcome by a showing of need by an investigatory body and, as Espy
noted, “disappears” upon a reasonable belief by such investigating body that
government misconduct has occurred. Thus, a demonstration of need by a
jurisdictional committee in most circumstances would appear to be sufficient, and a
plausible showing of fraud, waste, abuse or maladministration would likely be
conclusive.
Even before Espy, courts and committees had consistently resisted withholding
claims of agencies as attempts to establish a species of agency privilege designed to
thwart congressional oversight efforts. Thus it has been pointed out that the claim
that internal communications need to be “frank” and “open” does not merit special
support and that coupling that characterization with the notion that those
communications were part of a “deliberative process” will not add any weight to the
argument. In effect, such arguments have been seen as attempting to justify a
withholding from Congress on the same grounds that an agency would use to
withhold such documents from a citizen requester under Exemption 5 of the Freedom
of Information Act (FOIA).125
Such a line of argument is likely to be found to be without substantial basis. As
has been indicated above, Congress has vastly greater powers of investigation than
those of citizen FOIA requesters. Moreover, in the FOIA itself, Congress carefully
provided that the exemption section “is not authority to withhold information from
Congress.”126 The D.C. Circuit, in Murphy v. Department of the Army,127 explained
that FOIA exemptions were no basis for withholding from Congress because of:
the obvious purpose of the Congress to carve out for itself a special right of
access to privileged information not shared by others.... Congress, whether as a
body, through committees, or otherwise, must have the widest possible access to
executive branch information if it is to perform its manifold responsibilities
effectively. If one consequence of the facilitation of such access is that some
124 Id. at 1118-24.
125 5 U.S.C. 553(b)(5)(2000).
126 5 U.S.C. 552 d).
127 613 F. 2d 1151 (D.C. Cir. 1979).
information will be disclosed to congressional authorities but not to private
persons, that is but an incidental consequence of the need for informed and128
effective lawmakers.
Further, it may be contended that the ability of an agency to assert the need for
candor to ensure the efficacy of internal deliberations as a means of avoiding
congressional information demands would severely undermine the oversight process.
If that were sufficient, an agency would be encouraged to disclose only that which
supports its positions, and withhold that with flaws, limitations, unwanted
implications, or other embarrassments. Oversight would cease to become an
investigative exercise of gathering the whole evidence, and become little more than
a set-piece in which an agency decides what to present in a controlled “show and tell”
performance.
Moreover, every federal official, including attorneys, could assert the imperative
of timidity — that congressional oversight, by holding up to scrutiny the advice he
gives, will frighten him away from giving frank opinions, or discourage others from
asking him for them. This argument, not surprisingly, has failed over the years to
persuade legislative bodies to cease oversight. Indeed, when the Supreme Court
discussed the “secret law” doctrine in NLRB v. Sears, Roebuck & Co.129 it addressed
why federal officials — including those giving legal opinions — need not hide
behind such fears:
The probability that an agency employee will be inhibited from freely advising
a decisionmaker for fear that his advice, if adopted, will become public is slight.
First, when adopted, the reasoning becomes that of agency and becomes its
responsibility to defend. Second, agency employees will generally be
encouraged rather than discouraged by public knowledge that their policy
suggestions have been adopted by the agency. Moreover, the public interest in
knowing the reasons for a policy actually adopted by an agency supports130
...[disclosure].
Arguably, then, a “chilling effect” argument needs to be demonstrated
concretely in particular cases or else it would overwhelm investigative prerogatives.
The recent district court ruling in Committee on the Judiciary v. Harriet Miers, et131
al., appears to support such a limiting standard in the face of “chilling effect”
claims. Miers involved a congressional committee challenge to presidential assertions
that past and present senior advisers to the President are absolutely immune from
compelled congressional process when the President invokes executive privilege. The
Executive argued that in such circumstance, since the President himself is absolutely
immune from compelled congressional testimony, then advisers to the President must
be regarded as his “alter ego” and be entitled to the same absolute immunity. That is,
forcing such advisers to testify before Congress would be tantamount to compelling
the President to do so. The district court unequivocally rejected the assertion as
128 613 F. 2d at 1155-56, 1158.
129 421 U.S. 132 (1975).
130 421 U.S. at 161 (emphasis in original).
131 Civil Action No. 08-0409(JDB)(D.D.C., July 31, 2008)(Miers).
“entirely unsupported by existing case law” and contradicted by “Supreme Court
authority that is all but conclusive on this question and that powerfully suggests that
such advisers do not enjoy absolute immunity.”132 In the course of the opinion, the
court addressed the Executive’s claim that without absolute immunity there would
be a “chilling effect” on the candid and frank counsel advisers would provide a Chief
Executive. In response, the court stated:
The prospect of being hauled in front of Congress – daunting as it may be
– would not necessarily trigger the chilling effect that the Executive predicts.
Senior executive officials often testify before Congress as a normal part of their
jobs, and forced testimony before Congress does not implicate the same concern
regarding personal financial exposure as does a damages suit. Significantly, the
Committee concedes that an executive branch official may assert executive
privilege on a question-by-question basis as appropriate. That should serve as an
effective check against public disclosure of truly privileged communications,
thereby mitigating any adverse impact on the quality of advice that the President
receives . . . In any event, the historical record produced by the Committee
reveals that senior advisors to the President have often testified before Congress
subject to various subpoenas dating back to 1973. See Auerbach Decl. ¶¶ 2-3.
Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress
to testify and assert executive privilege where appropriate. Still, it is noteworthy
that in an environment where there is no judicial support whatsoever for the
Executive’s claim of absolute immunity, the historical record also does not
reflect the wholesale compulsion by Congress of testimony from senior133
presidential advisors that the executive fears.
Concluding Observations
Congress has an established right and judicially recognized prerogative,
pursuant to its constitutional authority to legislate, to receive from officers and
employees of the agencies and departments of the United States accurate and truthful
information regarding the federal programs and policies administered by such
employees and agencies. As stated by the Supreme Court, “[a] legislative body
cannot legislate wisely or effectively in the absence of information regarding
conditions which the legislation is intended to affect or change”134, and thus, what
observers might characterize as political gamesmanship must yield, according to the
courts, to the clear public interest of providing the peoples’ elected representatives
in the Congress with accurate and truthful information upon which to effectively
fashion or revise the laws for the Nation. There is no countervailing right or interest
for a federal official in an agency or department to intentionally withhold, conceal or
prevent the disclosure of truthful public policy information from the United States
Congress concerning legislation affecting the programs and policies administered by
that agency, when requested by a jurisdictional committee of the Congress. This
understanding applies with equal force to the law enforcement activities of the
Department of Justice. As detailed in this report, as a matter of law, buttressed by 85
132 Miers, slip opinon at 78.
133 Id. at 83-84 (Emphasis in original).
134 McGrain v. Daugherty, 272 U.S. 135, 175 (1927).
years history and practice, congressional committees with jurisdiction and authority
that have exercised the full panoply of oversight and investigatory power available
to them, have consistently gained access to needed information from the Department
in the form of documents or testimony from any component of the agency, regardless
of the subject matter involved and irrespective of the grade level of the officer or
employee with the information or required knowledge.
Judicial rulings over the past two decades rejecting assorted presidential
prerogatives that might deny congressional access to agency information appear to
have buttressed congressional oversight authority. The Supreme Court’s ruling in
Morrison v. Olsen casts significant doubt whether prosecutorial discretion is a core
presidential power over which executive privilege may be asserted, a doubt that has
been magnified by the appellate court rulings in Espy and Judicial Watch. In those
latter decisions, assertion of the presidential communications privilege was held to
be limited to “quintessential and nondelegable presidential power” and is confined
to communications to advisors in “operational proximity” with the President. Those
decisions indicate that core powers include only decisions that the President alone
can make under the Constitution: appointment and removal, pardoning, receiving
ambassadors and other public ministers, negotiating treaties, and exercising powers
as Commander-in-Chief. Espy strongly hinted, and Judicial Watch made clear, that
the protection of the presidential communications privilege extends only to the
boundaries of the White House and the Executive office complex and not to the
departments and agencies, even if the actions there related to a core power, unless
they are “solicited and received” by a close White House advisor or the President
himself. Judicial Watch, which dealt with pardon documents in DOJ that had not
been “solicited and received” by a close White House advisor, determined that “the
need for the presidential communications privilege becomes more attenuated the
further away the advisors are from the President [which] affects the extent to which
the contents of the President’s communications can be inferred from predecisional
communications.”135 Of course these rulings did not involve congressional requests,
but until reviewed by the Supreme Court they are the law of the circuit most likely
to hear and rule on future claims of presidential privilege.136
This is not meant to gainsay or dismiss out of hand the weight and applicability
of the DOJ policy arguments in particular situations and circumstances. Our review
of the historical record of congressional inquiries and experiences with committee
investigations of DOJ has indicated that committees normally have been restrained
by prudential considerations informed by weighing the considerations of legislative
135 365 F. 3d. at 1123.
136 It may be noted that the recent district court ruling in Committee on the Judiciary v.
Miers, supra, n. 93, however, did involve a direct confrontation between a congressional
committee and the Executive over demands for testimony and documents from present and
past senior advisers to the President, and that the court’s opinion approvingly cited the Espy
ruling five times with respect to doctrinal trends and interpretations concerning the
presidential communications privilege. See slip opinion at 32,33,34 note 15, 85 note 35, and
88 note 37. Arguably, these references reinforce the notion that Espy is the controlling law
in the District of Columbia Circuit with respect to the applicability of the privilege and its
nature and scope.
need, public policy, and the statutory duty of congressional committees to engage in
continuous oversight against the potential burdens and harms that may be imposed
on DOJ or any other agency if deliberative process matter is publically disclosed. The
sensitive law enforcement concerns and duties of the Justice Department often have
been seen to merit that substantial weight be given the agency’s deliberative
processes in the absence of a reasonable belief of a jurisdictional committee that
government misconduct has occurred. Rather, what we have addressed here the oft-
repeated rhetorical notion that the Department never has allowed congressional
access to open or closed litigation files or other “sensitive” internal deliberative
process matter and examined the legal weight to be accorded such assertions to
withhold in the face of well established congressional oversight authority.
Appendix
Selected Congressional Investigations of the
Department of Justice, 1920-2007
This appendix consists of brief summaries of 18 significant congressional
investigations of the Department of Justice which involved either open or closed
investigations in which the Department agreed to supply documents pertaining to
those investigations, including prosecutorial decisionmaking memoranda and
correspondence, and to provide high ranking officials as well as subordinate
employees such as line attorneys and investigative personnel for staff interviews and
for testimony before committees.
Palmer Raids
In 1920 and 1921, investigations were held in the Senate and House into the so-
called “Palmer raids” in which, under the direction of Attorney General A. Mitchell
Palmer, thousands of suspected Communists and others allegedly advocating the
overthrow of the government were arrested and deported. See Charges of Illegal
Practices of the Department of Justice: Hearings Before a Subcommittee of the
Senate Committee on the Judiciary, 66th Congress, 3d Session (1921)(hereinafter
“Senate Palmer Hearings”); Attorney General A. Mitchell Palmer on Charges Made
Against Department of Justice by Louis F . Post and Others: Hearings Before the
House Committee on Rules, 66th Congress, 2d Session (1920)(hereinafter “House
Palmer Hearings”). Attorney General Palmer, accompanied by his Special Assistant,
J. Edgar Hoover, during three days of testimony at the Senate hearings discussed the
details of numerous deportation cases, including cases which were on appeal. Senate
Palmer Hearings at 38-98, 421-86, 539-63. House Palmer Hearings at 3-209. In
support of his testimony, Palmer provided the Subcommittee with various
Department memoranda and correspondence, including Bureau of Investigation
reports concerning the deportation cases. E.g., Senate Palmer Hearings at 431-43,
458- 69, 472-76. Among the materials provided were the Department’s confidential
instructions to the Bureau outlining the procedures to be followed in the surveillance
and arrest of the suspected Communists, id. at 12-14, 18-19, and a lengthy
“memorandum of comments and analysis” prepared by one of Palmer’s special
assistants, which responded to a District Court opinion, at the time under appeal,
critical of the Department’s actions in these deportation cases, id. at 484-538. See
also, Harlan Grant Cohen, “The (Un)Favorable Judgment of History: Deportation
Hearings, the Palmer Raids, and the Meaning of History,” 78 NYU. L. Rev. 1431,
Teapot Dome
Several years later, the Senate conducted an investigation of the Teapot Dome
scandal. While the Senate Committee on Public Lands and Surveys focused on the
actions of the Department of the Interior in leasing naval oil reserves, a Senate select
committee was constituted to investigate “charges of misfeasance and nonfeasance
in the Department of Justice,” McGrain v. Daugherty, 273 U.S. 135, 151 (1927), in
failing to prosecute the malefactors in the Department of the Interior, as well as other
cases. Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the
United States: Hearings Before the Senate Select Committee on Investigation of the
Attorney General, vols. 1-3, 68th Congress, 1st Session (1924). The select committee
heard from scores of present and former attorneys and agents of the Department and
its Bureau of Investigation, who offered detailed testimony about specific instances
of the Department’s failure to prosecute alleged meritorious cases. Not all of the
cases upon which testimony was offered were closed, as one of the committee’s goals
in its questioning was to identify cases in which the statute of limitations had not run
out and prosecution was still possible. See, e.g., id. at 1495-1503, 1529-30, 2295-96.
The committee also obtained access to Department documentation, including
prosecutorial memoranda, on a wide range of matters. However, given the charges
of widespread corruption in the Department and the imminent resignation of Attorney
General Daugherty, it would appear that some of the documents furnished the
committee early in the hearings may have been volunteered by the witnesses and not
officially provided by the Department. Although Attorney General Daugherty had
promised cooperation with the committee, and had agreed to provide access to at
least the files of closed cases, id. at 1120, such cooperation apparently had not been
forthcoming, id. at 1078- 79.
In two instances immediately following Daugherty’s resignation, the committee
was refused access to confidential Bureau of Investigation investigative reports
pending the appointment of a new Attorney General who could advise the President
about such production, id. at 1015-16 and 1159-60, though witnesses from the
Department were permitted to testify about the investigations that were the subject
of the investigative reports and even to read at the hearings from the investigative
reports. With the appointment of the new Attorney General, Harlan F. Stone, the
committee was granted broad access to Department files. Committee Chairman
Smith Brookhard remarked that “[Stone] is furnishing us with all the files we want,
whereas the former Attorney General, Mr. Daugherty, refused nearly all that we
asked.” Id. at 2389. For example, with the authorization of the new Attorney General,
an accountant with the Department who had led an investigation of fraudulent sales
of property by the Alien Property Custodian’s office appeared and produced his
confidential reports to the Bureau of Investigation. The reports described the factual
findings from his investigation and his recommendations for further action, and
included the names of companies and individuals suspected of making false claims.
The Department had not acted on those recommendations, though the cases had not
been closed. Id. at 1495-1547. A similar investigative report, concerning an inquiry
into the disappearance of large quantities of liquor under the control of the
Department during the prior administration of President Harding, was also produced.
Id. at 1790.
As part of its investigation, the select committee issued a subpoena for the
testimony of Mally S. Daugherty, the brother of the Attorney General. After Mally
Daugherty failed to respond to the subpoena, the Senate sent its Deputy Sergeant at
Arms to take him into custody and bring him before the Senate. Daugherty petitioned
in federal court for a writ of habeas corpus arguing that the Senate in its investigation
had exceeded its constitutional powers. The case ultimately reached the Supreme
Court, where, in a landmark decision, McGrain v. Daugherty, 273 U.S. 135 (1927),
the Court upheld the Senate’s authority to investigate these charges concerning the
Department:
[T]he subject to be investigated was the administration of the Department of
Justice — whether its functions were being properly discharged or were being
neglected or misdirected, and particularly whether the Attorney General and his
assistants were performing or neglecting their duties in respect of the institution
and prosecution of proceedings to punish crimes and enforce appropriate
remedies against the wrongdoers — specific instances of alleged neglect being
recited. Plainly the subject was one on which legislation could be had and would
be materially aided by the information which the investigation was calculated to
elicit.
In another Teapot Dome case that reached the Supreme Court, Sinclair v. United
States, 279 U.S. 263 (1929), a different witness at the Congressional hearings refused
to provide answers, and was prosecuted for contempt of Congress. The witness had
noted that a lawsuit had been commenced between the government and the
Mammoth Oil Company, and declared, “I shall reserve any evidence I may be able
to give for those courts ... and shall respectfully decline to answer any questions
propounded by your committee.” Id. at 290. The Supreme Court upheld the witness’
conviction for contempt of Congress. The Court considered and rejected in
unequivocal terms the witness’s contention that the pendency of lawsuits provided
an excuse for withholding information. Neither the laws directing that such lawsuits
be instituted, nor the lawsuits themselves, “operated to divest the Senate, or the
committee, of power further to investigate the actual administration of the land laws.”
Id. at 295.
The Court further explained: “It may be conceded that Congress is without
authority to compel disclosure for the purpose of aiding the prosecution of pending
suits; but the authority of that body, directly or through its committees to require
pertinent disclosures in aid of its own constitutional power is not abridged because
the information sought to be elicited may also be of use in such suits.” Id. at 295.
Investigations of DOJ During the 1950’s
In 1952, a special House subcommittee was constituted to conduct an inquiry
into the administration of the Department of Justice. The subcommittee conducted
a lengthy investigation from 1952 to 1953, developing thousands of pages of
testimony on a range of allegations of abuses and inefficiencies in the Department.
Investigations of the Department of Justice: Hearings Before the Special
Subcommittee to Investigate the Department of Justice of the House Committee on
the Judiciary, parts 1 and 2, 82nd Congress, 2d Session (1952), parts 1 and 2, 83rd
Congress, lst Session (l953)(hereafter “DOJ Investigation Hearings”). The
subcommittee summarized its conclusions about its inquiries during the 82nd
Congress in Investigation of the Department of Justice, H.R. Rep. No.1079, 83rd
Congress, 1st Session (1953)(hereinafter “DOJ Investigation Report”). Among the
subjects of inquiry considered during these hearings were the following.
Extensive testimony was heard about a charge that the Department had
attempted improperly to curb a grand jury inquiry in St. Louis into the failure to
enforce federal tax fraud laws. After taking testimony in executive session from one
witness, the subcommittee suspended its hearings on this subject pending the
discharge of the grand jury. DOJ Investigation Hearings at 753. The subcommittee
resumed its hearings several months later, at which time testimony was taken from
the former Attorney General, a former Assistant Attorney General, the Chief of the
appellate section of the Tax Division, and an Assistant U .S. Attorney. Several
members of the St. Louis grand jury also testified before the subcommittee. In
addition to intradepartmental correspondence, see id. at 1256-57, 1270- 71, among
the materials that the subcommittee reviewed and included in the public record were
transcripts of telephone conversations between various Department attorneys
concerning the grand jury investigation. Id. at 759-66.137
The subcommittee began its hearings on the handling of the St. Louis grand jury
with a statement emphasizing that its interest “is merely to ascertain whether or not
there was in fact any attempt by the Department of Justice to influence the grand jury
in its investigation,” id. at 754, and that “the members of the subcommittee and
counsel are aware of the rule of strict secrecy surrounding the proceedings of any
grand jury . Mindful of that, our questioning will not touch upon any specific case
or evidence that may have been presented to the grand jury.” Id. The subcommittee’s
questions to the grand jurors focused on efforts by Department attorneys to prevent
them from conducting a thorough investigation and on whether the grand jury had
been pressured by those attorneys to issue a report absolving the government of
impropriety in its handling of tax fraud cases. Id. at 766-808. Similar questions were
asked of the present and former Department attorneys who testified, id. at 808-894,
1064-1117, 1256-1318, and at one point the subcommittee asked for, and an
Assistant U .S. Attorney provided, the names of certain witnesses who had appeared
before the grand jury. Id. at 811. Later that same year, the subcommittee examined
similar charges of interference by the Department with another grand jury, which had
been investigating Communist infiltration of the United Nations. The subcommittee
received testimony from a number of grand jurors and Department attorneys,
including then Criminal Division attorney Roy Cohn. Id. at 1653-1812. The
subcommittee’s chief counsel again cautioned that “[t]he sanctity of the grand jury
as a process of American justice must be protected at all costs,” and stated that the
subcommittee was seeking information solely relating to attempts to delay or
otherwise influence the grand jurors’ deliberations, not which would reveal the actual
testimony of witnesses appearing before them. Id. at 1579-80.
137 Other memoranda and documents from the Department were reviewed by the
subcommittee and kept in its confidential files, for example, a letter of instruction from the
Attorney General to the Department attorney that had been sent to St. Louis. Id. at 890. In
addition, the district court judge that had convened the grand jury gave the subcommittee
permission to use the notes of the U .S. Attorney in St. Louis and of one of the grand jurors,
with all names deleted. Id. The judge also submitted a deposition to the subcommittee about
the Department’s interference with the grand jury. Id. at 891-93.
Attorney General McGrath resigned in April 1952, in part in response to the
evidence uncovered by the subcommittee of corruption in the Department,
particularly in the Tax Division. As a result of the replacement of McGrath by James
P. McGranery, and the Administration’s concern about these reports of corruption,
the subcommittee observed “a new and refreshing attitude of cooperation which soon
appeared at all levels in the Department of Justice.” DOJ Investigation Report at 69.
The subcommittee declared that “its work has been limited only by the capacity of
its staff to digest the sheer volume of available fact and documentary evidence
relating to the Department’s work. Everything that has been requested has been
furnished, including file materials and administrative memoranda which had
previously been withheld.” Id.
For example, in investigating charges that the Department was often dilatory in
its handling of routine cases, the subcommittee staff undertook a detailed analysis of
a number of cases in which delay was alleged to have occurred. To demonstrate
publicly the nature of this problem, the subcommittee chose a procurement fraud case
that had been recently closed, and conducted a “public file review” of the case at a
subcommittee hearing. Attorneys from the Department at the hearing went document
by document through the Department’s file in the case. DOJ Investigative Hearings
(82nd Congress) at 895-964. The subcommittee was granted access to all of the
documentation collected in the case, with the exception of confidential FBI reports
which the subcommittee had agreed not to seek. However, certain communications
from the FBI to the Department concerning the prosecution of the case were
provided. Id. at 897.
During the 83rd Congress, the subcommittee turned to allegations that the
Criminal Division had entered into an agreement with the New York City Police
Department not to prosecute instances of police brutality by New York police officers
that might be violations of federal civil rights statutes. The subcommittee stated that
its purpose was not to inquire into the merits of particular cases, only to ascertain
whether such an arrangement had been entered into between the Justice Department
and the New York City police. DOJ Investigation Hearings (83rd Congress) at 26.
Justice Department witnesses had also been instructed by the Attorney General not
to discuss the merits of any pending cases. Id.
Department witnesses included a former Attorney General, several present and
former Assistant Attorneys General, as well as other Department attorneys and FBI
agents Id. at 25-294. The substance of earlier meetings between Department officials
and the New York City Police Commissioner in which this arrangement was
allegedly agreed to was probed in depth. Although questions concerning the merits
of specific cases were avoided, the subcommittee obtained from these witnesses a
chronology of the Department’s actions in a number of cases. The subcommittee
received Department memoranda and correspondence, as well as telephone
transcripts of the intradepartmental conversations of a United States Attorney. Id. at
Investigation of Consent Decree Program
In 1957 and 1958, the Antitrust Subcommittee of the House Judiciary
Committee conducted an inquiry into the negotiation and enforcement of consent
decrees by the Antitrust Division, and their competitive effect, with particular
emphasis on consent decrees that had been recently entered into with the oil-pipeline
industry and AT&T. See Consent Degree Program of the Department of Justice:
Hearings before the Antitrust Subcomm. (Subcomm. No.5) of the House Comm. on
the Judiciary, parts I & II, 85th Cong., 1st & 2d Sess. (1957-58)(hereafter “Consent
Decree Hearings”); Antitrust Subcomm. (Subcomm. No.5), 86th Cong., 1st Sess.,
Report on Consent Decree Program of the Department of Justice (Comm. Print
page hearing record, holding seventeen days of hearings on the AT&T consent decree
and four days of hearings on the oil pipeline consent decree.
The subcommittee experienced what it viewed as a lack of cooperation from the
Department throughout its investigation, stating that “[t]he extent to which the
Department of Justice went to withhold information from the committee in this
investigation is unparalleled in the committee’s experience.” Consent Decree Report
at xiii. With respect to the AT&T consent decree, DOJ unconditionally refused to
make available to the subcommittee information from its files of that case. The
subcommittee’s chairman initially had written the Attorney General, requesting that
he make available “all files in the Department of Justice relating to the negotiations
for, and signing of, a consent decree in this case.” Consent Decree Hearings at 1674.
Deputy Attorney General William P. Rogers asserted two grounds to support the
Department’s refusal to provide the subcommittee with such access. First, that the
files contained information voluntarily submitted by AT&T in the course of consent
decree negotiations. Rogers wrote the subcommittee chairman that “[w]ere [the files]
made available to your subcommittee, this Department would violate the confidential
nature of settlement negotiations and, in the process, discourage defendants, present
and future, from entering into such negotiations.” Id. at 1674-75. In a later letter, the
head of the Antitrust Division, Victor Hansen, added that “[t]hose considerations
which require that the Department treat on a confidential basis communications with
a defendant during consent decree negotiations also apply to the enforcement of a
decree.” Id. at 3706.
The second reason given by Rogers for the Department’s refusal to provide the
subcommittee access to the AT&T files was that they contained memoranda and
recommendations prepared by staff of the Antitrust Division, and the “essential
process of full and flexible exchange might be seriously endangered were staff
members hampered by the knowledge they might at some later date be forced to
explain before Congress intermediate positions taken.” Id. at 1675. Rogers stated that
this action was being taken in accordance with an earlier directive from the President
to the Department to that effect, which provided:
Because it is essential to efficient and effective administration that employees of
the executive branch be in a position to be completely candid in advising with
each other on official matters, and because it is not in the public interest that any
of their conversations or communications, or any documents or reproductions,
concerning such advice be disclosed, you will instruct employees of your
Department that in all of their appearances before [congressional] committees not
to testify to any such conversations or communications or to produce any such
document or reproductions. This principle must be maintained regardless of who
would be benefitted by such disclosures. Id.
The subcommittee in its final report asserted that initially the “Attorney General
refused access to the files of the Department of Justice primarily in order to prevent
disclosure of facts that might prove embarrassing to the Department.” Consent
Decree Report at 42. The subcommittee further concluded that such withholding had
“materially hampered the committee’s investigation.” However, it may be noted that
the subcommittee was ultimately able to obtain much of the material concerning the
AT&T consent decree that DOJ refused to provide directly from AT&T itself. Id.
The Department was, however, somewhat more forthcoming in permitting
testimony of its attorneys about the AT&T consent decree. For example, the head of
the Antitrust Division instructed two Division attorneys who had dissented from the
decision to enter into the AT&T consent decree and had been called to testify before
the subcommittee that “we do not at the present time think it appropriate ... to ...
assert any privilege on behalf of the Department with regard to any information
within [your] knowledge which is relevant to the negotiations of the decree in the
Western Electric case.” Consent Decree Hearings at 3647. These two attorneys later
testified about those negotiations, including their reasons for differing with the
Department’s decision to enter into the consent decree. Id. at 3711-44.
Cointelpro and Related Investigations of FBI-DOJ
Misconduct
Over the period 1974-1978, Senate and House committees examined the
intelligence operations of a number of federal agencies, including the domestic
intelligence operations of the FBI and various units of the Justice Department such
as the Interdivision Information Unit. See S. Rep. No.755, Books 1-3, 94th Cong.,
Senate Resolution 21: Hearings Before the Senate Select Comm. to Study
Governmental Operations with Respect to Intelligence Activities, vols. 1-6, 94th
Cong., 1st Sess. (1975)(hereafter “Senate Intelligence Hearings”); FBI Oversight:
Hearings Before the Subcomm. on Civil and Constitutional Rights of the House
Comm. of the Judiciary, parts 1-3, 94th Cong., 1st & 2d Sess. (1975-1976), parts 1-2,
95th Cong., 1st & 2d Sess. (1978)(hereafter “House FBI Hearings”). A select Senate
committee examined 800 witnesses: 50 in public session, 250 in executive sessions
and the balance in interviews. Senate Intelligence Report, Book II, at ix n.7. A
number of those providing public testimony were present and former officials of the
FBI and the Department of Justice.
The Select Committee estimated that in the course of its investigation it had
obtained from these intelligence agencies and other sources approximately 110,000
pages of documents (still more were preliminarily reviewed at the agencies). Id.
Hundreds of FBI documents were reprinted as hearing exhibits, though “[u]nder
criteria determined by the Committee, in consultation with the Federal Bureau of
Investigation, certain materials have been deleted from these exhibits to maintain the
integrity of the internal operating procedures of the FBI. Further deletions were made
with respect to protecting the privacy of certain individuals and groups. These
deletions do not change the material content of these exhibits.” Senate Intelligence
Hearings at iv n.1. The select committee concluded in its final report that the “most
important lesson” learned from its investigation was that “effective oversight is
impossible without regular access to the underlying working documents of the
intelligence community. Top level briefings do not adequately describe the realities.
For that the documents are a necessary supplement and at times the only source.”
Senate Intelligence Report, Book II, ix n. 7.
Hearings on FBI domestic intelligence operations also were held before the
House Judiciary Subcommittee on Civil and Constitutional Rights beginning in 1975.
A number of Department of Justice and FBI officials testified, including Attorneys
General Levi and Bell and FBI Director Kelly. At the request of the Chairman of the
Judiciary Committee, the General Accounting Office in 1974 began a review of FBI
operations in this area. FBI Oversight Hearings (94th Congress), part 2, at 1-2. In an
attempt to analyze current FBI practices, the GAO chose ten FBI offices involved in
varying levels of domestic intelligence activity, and randomly selected for review 899
cases (ultimately reduced to 797) in those offices that were acted on that year. Id. at
The FBI agreed to GAO’s proposal to have FBI agents prepare a summary of the
information contained in the files of each of the selected cases. These summaries
described the information that led to opening the investigation, methods and sources
of collecting of information for the case, instructions from FBI Headquarters, and a
brief summary of each document in the file. After reviewing the summaries, GAO
staff held interviews with the FBI agents involved with the cases, as well as the
agents who prepared the summaries. Id. at 3-4.
These hearings were continued in 1977 to hear the results of a similar GAO
review of the FBI’s domestic intelligence operations under new domestic security
guidelines established by the Attorney General in 1976. In its follow-up
investigation, GAO reviewed 319 additional randomly selected cases. As in its earlier
review, GAO utilized FBI case summaries followed by agent interviews. This time,
however, the Department also granted GAO access to copies of selected documents
for verification purposes, with the names of informers and other sensitive data
excised. House FBI Oversight Hearings (95th Congress), part 1, at 103.
White Collar Crime in the Oil Industry
In 1979, joint hearings were held by the Subcommittee on Energy and Power of
the House Committee on Interstate and Foreign Commerce and the Subcommittee
on Crime of the House Judiciary Committee to conduct an inquiry into allegations
of fraudulent pricing of fuel in the oil industry and the failure of the Department of
Energy and DOJ to effectively investigate and prosecute alleged criminality. See,
White Collar Crime in the Oil Industry: Joint Hearings before the Subcommittee on
Energy and Power of the House Committee on Interstate and Foreign Commerce and
the Subcommittee on Crime of the House Commerce on the Judiciary, 96th Cong.,
the hearing, testimony and evidence were received in closed session regarding open
cases in which indictments were pending and criminal proceedings were in
progressing. The Chairman of the Subcommittee on Energy and Power remarked:
“We know indictments are outstanding. We do not wish to interfere with rights of
any parties to a fair trial. To this end we have scrupulously avoided any actions that
might have affected the indictment of any party. In these hearings we will restrict our
questions to the process and the general schemes to defraud and the failure of the
Government to pursue these cases. Evidence and comments on specific cases must
be left to the prosecutors in the cases they bring to trial.” White Collar Crime
Hearings at 2. DOJ’s Deputy Attorney General, Criminal Division, praised the
Chairmen and committee members for their discreet conduct of the hearings: “I
would like to commend Chairman Conyers, Chairman Dingell, and all other
members of the committee and staff for the sensitivity which they have shown during
the course of these hearings to the fact that we have ongoing criminal investigations
and proceedings, and the appropriate handling of the question in order not to interfere
with those investigations and criminal trials.” Id. at 134.
The committees requested access to declination memoranda and the Justice
Department stated that it had no objection, except to request that the information not
be made public unless the committees had a compelling need. During the course of
the hearing a DOJ staff attorney testified in open session as to the reason for not
going forward with a particular criminal prosecution. Although a civil prosecution
of the same matter was then pending, DOJ agreed to supply the committees with
documents leading to the decision not to prosecute. Id. at 156-57.
Billy Carter/Libya Investigation
A special subcommittee of the Senate Committee on the Judiciary was
constituted in 1980 to investigate the activities of individuals representing the
interests of foreign governments. Due to the short time frame which it was given to
report its conclusions to the Senate, the subcommittee narrowed the focus of its
inquiry to the activities of the President’s brother, Billy Carter, on behalf of the
Libyan government. See Inquiry into the Matter of Billy Carter and Libya: Hearings
Before the Subcommittee to Investigate the Activities of Individuals Representing
the Interests of Foreign Governments of the Senate Comm. on the Judiciary, vols. 1-
111, 96th Cong., 2d Sess. (1980)(hereafter “Billy Carter Hearings”); Inquiry into the
Matter of Billy Carter and Libya, S. Rep. No. 1015, 96th Cong., 2d Sess.
(1980)(hereafter “Billy Carter Report”). A significant portion of this inquiry
concerned the Department’s handling of its investigation of the Billy Carter matter,
in particular whether Attorney General Benjamin R. Civiletti had acted improperly
in withholding certain intelligence information about Billy Carter’s contacts with
Libya from the attorneys in the Criminal Division responsible for the investigation,
or had otherwise sought to influence the disposition of the case.
Although there was early disagreement as to the extent of the subcommittee’s
access to certain information from the White House, there was no attempt by the
Department to limit access to its attorneys involved with the Billy Carter case. The
subcommittee heard testimony from several representatives of the Department,
including Attorney General Civiletti, the Assistant Attorney General in charge of the
Criminal Division, Philip B. Heymann, and three of his assistants. These witnesses
testified about the general structure of decisionmaking in the Department, the nature
of the investigation of Billy Carter’s Libyan ties, the Attorney General’s failure to
immediately communicate intelligence information concerning Billy Carter to the
Criminal Division attorneys conducting the investigation, the decision to proceed
civilly and not criminally against Carter, and the effect of various actions of the
Attorney General and the White House on that prosecutorial decision. Billy Carter
Hearings at 116-30, 683-1153. The subcommittee also took depositions from some
of these witnesses. Pursuant to a Senate Resolution providing it with such power,
subcommittee staff took 35 depositions, totaling 2,646 pages. Id. at 1741-42.
The subcommittee also was given access to documents from the Department’s
files on the Billy Carter case. The materials obtained included prosecutorial
memoranda, correspondence between the Department and Billy Carter, the
handwritten notes of the attorney in charge of the foreign agents registration unit of
the Criminal Division, and FBI investigative reports and summaries of interviews
with Billy Carter and his associates. Id. at 755-978. Not included in the public record
were a number of classified documents, which were forwarded to and kept in the files
of the Senate Intelligence Committee. These classified documents were available for
examination by designated staff members of the subcommittee and the Intelligence
Committee, and some of the documents were later used by the subcommittee in
executive session.
Undercover Law Enforcement Activities (ABSCAM)
In 1982, the Senate established a select committee to study the law enforcement
undercover activities of the FBI and other components of the Department of Justice.
See Law Enforcement Undercover Activities: Hearings Before the Senate Select
Comm. to Study Law Enforcement Undercover Activities of Components of the
Department of Justice, 97th Cong., 2d Sess. (1982)(hereafter “Abscam Hearings”);
Final Report of the Senate Select Comm. to Study Undercover Activities of
Components of the Department of Justice, S. Rep. No.682, 97th Cong., 2d Sess.
(1982). Representatives from the Department, including FBI Director William
Webster, testified generally about the history of undercover operations engaged in by
the Department, their benefits and costs, and the policies governing the institution
and supervision of such operations, including several sets of guidelines promulgated
by the Attorney General. These witnesses also testified about Abscam and several
other specific undercover operations conducted by the FBI and other units of the
Department. Abscam Hearings at 10-85, 153-226, 255-559, 895-924, 1031-70.
In addition to the witnesses from the Department providing public testimony,
committee staff conducted interviews with a number of present and former
Department attorneys and FBI agents. Abscam Report at 8-10. Among those
testifying or interviewed were several present and former members of the
Department’s Brooklyn Organized Crime Strike Force. The Department wrote the
committee that it “does not normally permit Strike Force attorneys to testify before
congressional committees [and] have traditionally resisted questioning of this kind
because it tends to inhibit prosecutors from proceeding through their normal tasks
free from the fear that they may be second-guessed, with the benefit of hindsight,
long after they take actions and make difficult judgements in the course of their
duties.” Id. at 486. The Department, nevertheless, agreed to this testimony, “because
of their value to you as fact witnesses and because you have assured us that they will
be asked to testify solely as to matters of fact within their personal knowledge and
not conclusions or matters of policy .” Id.
The most extensive focus of the committee’s inquiry was on the FBI’s Abscam
operation, which lasted from early 1978 through January 1980, and resulted in the
criminal conviction of one Senator, six Members of the House of Representatives,
several local officials, and others. As part of this review, the subcommittee was
“given access to almost all of the confidential documents generated during the covert
stage of the undercover operation known as Abscam.” Id. at; v. In all, the committee
reviewed more than 20,000 pages of Abscam documents, as well as video and audio
tapes and tape transcripts, id. at 9, provided under the terms of an elaborate access
agreement negotiated with the Department.
Pursuant to the agreement, the subcommittee was provided copies of
confidential Abscam materials other than grand jury materials barred from disclosure
under Rule 6(e) of the Federal of Criminal Procedure without a court order and
certain prosecutorial memoranda from the Abscam cases. Under the agreement, the
Department was also permitted to withhold from the committee documents that
might compromise ongoing investigations or reveal sensitive sources or investigative
techniques, though the Department was required to describe each such document
withheld, explain the basis of the denial, and give the committee an opportunity to
propose conditions under which the documents might be provided. The committee
further agreed to a “pledge of confidentiality” under which it was permitted to use
and publicly disclose information derived from the confidential documents and to
state that the information came from Department files, but was prohibited from
publicly identifying the specific documents from which the information was
obtained. All confidential documents were kept in a secure room, with access limited
to the committee’s members, its two counsel, and several designated document
custodians. See generally, id. at v, 472-84. Later, DOJ agreed to permit access to
those materials by other committee attorneys as well.
In addition to the documents to which it was given direct access, the committee
received extensive oral briefings, including direct quotations, on basic factual
material from the prosecutorial memoranda that were withheld, as well as from
documents prepared or compiled by the Department’s Office of Professional
Responsibility as part of an internal investigation of possible misconduct in the
Abscam operations and prosecutions. Id. at v.
Under the general framework established by this agreement, there was
considerable give and take between the committee and the Department as to the
degree of access that would be provided to specific documents. For example, the
committee’s counsel had sought access to a report prepared in the Criminal Division
on FBI undercover operations. Abscam Hearings at 514. The committee’s chairman
had also written the Attorney General requesting access to that report. Abscam
Report at 485. An agreement was reached whereby the report could be examined by
committee members or counsel at the Department and notes taken on its contents, but
it could neither be copied or removed from the Department. Id. at 494. Committee
counsel utilized this procedure, but the committee determined that such limited
access made it impractical for its members to personally review the report, and the
committee’s chairman again wrote the Attorney General asking for release of a copy.
Id. at 498. The Department ultimately agreed to provide a copy of the report to each
member of the committee, with the understanding that the report would not be
disseminated beyond the members of the committee and its counsel, no additional
copies would be made, and the copies provided by the Department would be returned
at the conclusion of the committee’s work. Id. at 501.
Finally, the committee retained the right under the access agreement to seek
unrestricted access to documents if it determined that the limited access set forth in
the agreement was insufficient to permit it to effectively conduct its investigation. Id.
at v.
A similar investigation was conducted by the House Judiciary Subcommittee on
Civil and Constitutional Rights, which held a total of twenty-one hearings over a
period of four years. See FBI Undercover Activities, Authorization; and H.R. 3232:
Oversight Hearings Before the Subcomm. on Civil and Constitutional Rights of the
House Comm. on the Judiciary, 98th Cong., 1st Sess. (1983); FBI Undercover
Operations: Hearings Before the Subcomm. on Civil and Constitutional Rights of the
House Comm. on the Judiciary, 97th Cong., 1st Sess. (1981); FBI Oversight:
Hearings Before the Subcomm. on Civil and Constitutional Rights of the House
Comm. on the Judiciary, 96th Cong., 1st & 2d Sess. (1979-80). The subcommittee
examined in detail the FBI’s Operation Corkscrew undercover operation, an
investigation of alleged corruption in the Cleveland Municipal Court, with access
to confidential Department documents provided to it under an agreement patterned
after the access agreement negotiated by the Senate select committee. Subcomm. on
Civil and Constitutional Rights of the House Comm. on the Judiciary, FBI
Undercover Operations, 98th Cong., 2d Sess. 91-93 (Comm. Print 1984).
Investigation of Withholding of EPA Documents
One of the most prominent Congressional investigations of the Department grew
out of the highly charged confrontation at the end of the 97th Congress concerning
the refusal of Environmental Protection Agency Administrator Ann Gorsuch Burford,
under orders from the President, to comply with a House subcommittee subpoena
requiring the production of documentation about EPA’s enforcement of the
hazardous waste cleanup legislation. This dispute culminated in the House of
Representatives’ citation of Burford for contempt of Congress, the first head of an
Executive Branch agency ever to have been so cited by a House of Congress. It also
resulted in the filing of an unprecedented legal action by the Department, in the name
of the United States, against the House of Representatives and a number of its
officials to obtain a judicial declaration that Burford had acted lawfully in refusing
to comply with the subpoena.
Ultimately, the lawsuit was dismissed, U.S. v. House of Representatives, 557 F.
Supp. 150 (D.D.C. 1983), the documents were provided to Congress, and the
contempt citation was dropped. However, a number of questions about the role of the
Department during the controversy remained: whether the Department, not EPA, had
made the decision to persuade the President to assert executive privilege; whether
the Department had directed the United States Attorney for the District of Columbia
not to present the contempt certification of Burford to the grand jury for prosecution
and had made the decision to sue the House; and, generally, whether there was a
conflict of interest in the Department’s simultaneously advising the President,
representing Burford, investigating alleged Executive branch wrongdoing, and
enforcing the Congressional criminal contempt statute. These and related questions
raised by the Department’s actions were the subject of an investigation by the House
Judiciary Committee beginning in early 1983. The committee issued a final report on
its investigation in December 1985. See Report of the House Comm. on the Judiciary
on Investigation of the Role of the Department of Justice in the Withholding of
Environmental Protection Agency Documents from Congress in 1982-1983, H.Rept.
Although the Judiciary Committee ultimately was able to obtain access to
virtually all of the documentation and other information it sought from the
Department, in many respects this investigation proved as contentious as the earlier
EPA controversy from which it arose. In its final report, the committee concluded
that:
[T]he Department of Justice, through many of the same senior officials who were
most involved in the EPA controversy, consciously prevented the Judiciary
Committee from obtaining information in the Department’s possession that was
essential to the Committee’s inquiry into the Department’s role in that
controversy. Most notably, the Department deliberately, and without advising the
Committee, withheld a massive volume of vital handwritten notes and
chronologies for over one year. These materials, which the Department knew
came within the Committee’s February 1983 document request, contained the
bulk of the relevant documentary information about the Department’s activities
outlined in this report and provided a basis for many of the Committee’s
findings.
EPA Withholding Report at 1163; see also 1234-38. Among the other abuses cited
by the committee were the withholding of a number of other relevant documents until
the committee had independently learned of their existence, id. at 1164, as well as
materially “false and misleading” testimony before the committee by the head of the
Department’s Office of Legal Counsel, id. at 1164-65 & 1191-1231.
The committee’s initial request for documentation was contained in a February
1983 letter from its chairman, Peter Rodino, to Attorney General William French
Smith. The committee requested the Department to “supply all documents prepared
by or in the possession of the Department in any way relating to the withholding of
documents that Congressional committees have subpoenaed from the EPA.” Id. at
1167 & 1182-83. The letter also specifically requested, among other things, a
narrative description of the activities of each division or other unit of the Department
relating to the withholding of the EPA materials, information about the Department’s
apparent conflict of interest in simultaneously advising the Executive Branch while
being responsible for prosecuting the Burford contempt citation, and any instructions
given by the Department to the United States Attorney for the District of Columbia
not to present the Burford contempt to the grand jury.
At first the Department provided only publicly available documents in response
to this and other document requests of the committee. Id. at 1184. However, after a
series of meetings between committee staff and senior Department officials, an
agreement was reached whereby committee staff were permitted to review the
materials responsive to these requests at the Department to determine which
documents the committee would need for its inquiry. Id. at 1168 & 1233. Committee
staff reviewed thousands of documents from the Land and Natural Resources
Division, the Civil Division, the Office of Legal Counsel, the Office of Legislative
Affairs, the Office of Public Affairs, and the offices of the Attorney General, the
Deputy Attorney General, and the Solicitor General. Id. at 1168.
In July 1983, the committee chairman wrote to the Attorney General requesting
copies of 105 documents that committee staff had identified in its review as
particularly important to the committee’s inquiry. Id. at 1169. By May 1984, only a
few of those documents had been provided to the committee, and the chairman again
wrote to the Attorney General requesting the Department’s cooperation in the
investigation. In that letter, the chairman advised the Attorney General that the
committee’s preliminary investigation had raised serious questions of misconduct,
including potential criminal misconduct, in the actions of the Department in the
withholding of the EPA documents. Id. at 1172. The committee finally received all
of the 105 documents in July 1984, a full year after it had initially requested access.
The committee at that time also obtained the written notes and a number of other
documents that had been earlier withheld. Id. at 1173.
There was also disagreement about the access that would be provided to
Department employees for interviews with committee staff. The Department
demanded that it be permitted to have one or more Department attorneys present at
each interview. The committee feared that the presence of Department
representatives might intimidate the Department employees in their interviews and
stated that it was willing to permit a Department representative to be present only if
the representative was “walled-off” from Department officials involved with the
controversy, if the substance of interviews was not revealed to subsequent
interviewees, and if employees could be interviewed without a Department
representative present if so requested. The Department ultimately agreed to permit
the interviews to go forward without its attorneys present. If a Department employee
requested representation, the Department employed private counsel for that purpose.
In all, committee staff interviewed 26 current and former Department employees,
including four Assistant Attorney Generals, under this agreement. Id. at 1174-76.
Partly as a result of these interviews, as well as from information in the
handwritten notes that had been initially withheld, the committee concluded that it
also required access to Criminal Division documents concerning the origins of the
criminal investigation of former EPA Assistant Administrator Rita Lavelle in order
to determine if the Department had considered instituting the investigation to obstruct
the committee’s inquiry. The committee also requested information about the
Department’s earlier withholding of the handwritten notes and other documents to
determine whether Department officials had deliberately withheld the documents in
an attempt to obstruct the committee’s Investigation. Id. at 1176-77 & 1263-64. The
Department at first refused to provide the committee with documents relating to its
Lavelle investigation “[c]onsistent with the longstanding practice of the Department
not to provide access to active criminal files.” Id. at 1265. The Department also
refused to provide the committee with access to documentation related to the
Department’s handling of the committee’s inquiry, objecting to the committee’s
“ever-broadening scope of ... inquiry.” Id. at 1265.
The committee chairman wrote the Attorney General and objected that the
Department was denying the committee access even though no claim of executive
privilege had been asserted. Id. at 1266. The chairman also maintained that “[i]n this
case, of course, no claim of executive privilege could lie because of the interest of the
committee in determining whether the documents contain evidence of misconduct by
executive branch officials.” Id. With respect to the documents relating to the
Department’s handling of the committee inquiry, the chairman demanded that the
Department prepare a detailed index of the withheld documents, including the title,
date, and length of each document, its author and all who had seen it, a summary of
its contents, an explanation of why it was being withheld, and a certification that the
Department intended to recommend to the President the assertion of executive
privilege as to each withheld document and that each document contained no
evidence of misconduct. Id. at 1268-69. With respect to the Lavelle documents, the
chairman narrowed the committee’s request to “predicate” documents relating to the
opening of the investigation and prosecution of Lavelle, as opposed to FBI and other
investigative reports reflecting actual investigative work conducted after the opening
of the investigation. Id. at 1269-70. In response, after a period of more than three
months from the committee’s initial request, the Department produced those two
categories of materials. Id. at 1270.
E.F. Hutton Investigation
In 1985 and 1986, the Crime Subcommittee of the House Judiciary Committee
conducted an investigation to determine why no individuals were charged in
connection with an investigation of E.F. Hutton in which the company pled guilty to
2,000 felony counts. See, E.F. Hutton Mail and Wire Fraud, Report of the House
Subcommittee on Crime, Committee on the Judiciary, 99th Cong. 2d Sess.
(Committee Print, Serial No. 13, December 1986) (Hutton Report). As part of this
investigation, the subcommittee sought letters to Hutton employees promising not to
prosecute, draft indictments, and internal DOJ communications regarding proposals
by or within the Justice Department regarding the disposition of charges against
Hutton employees. Hutton Report at 1119. Assistant Attorney General Trott
responded to the request by stating:
We understand this to be a request for prospective memoranda.... It now appears
that there is one document prepared early in the investigation that may fall within
your request. We will produce that for the Subcommittee after appropriate
redactions have been made. We believe that the necessary redactions are those
principally set out in In re Grand Jury Investigation(Lance), 610 F. 2d 202, 216-th
17 (5 Cir. 1080) (opinions or statement based on knowledge of grand jury
proceedings may be disclosed “provided, of course, the statement does not reveal
the grand jury information on which it is based.”) Thus, such information as the
identity of witnesses who testified before the grand jury and the substance of
their testimony and the identity of documents which were subpoenaed by the
grand jury must be redacted.” Hutton Report at 1217.
The Justice Department also recommended that the subcommittee go to court to
obtain access to all of the information, including that covered by Rule 6(e). Hutton
Report at 1218. The Justice Department went to court to seek guidance regarding the
applicability of Rule 6(e) to the documents sought by the subcommittee. In court, the
Justice Department argued only on 6(e) grounds, and never claimed that any
documents should be withheld on deliberative process grounds. The court dismissed
the case because it presented no case or controversy. However, the court expressed
“serious doubt” as to the applicability of Rule 6(e) to the documents sought by the
subcommittee.
The Subcommittee report includes as exhibits a number of deliberative
prosecutorial documents. One 21-page memorandum contains a detailed discussion
of Hutton’s money management practices, and concludes “these money management
techniques violated numerous federal criminal statutes and, therefore, prosecution is
appropriate and recommended.” (See Hutton Report at 1328.) The committee was
also provided with a series of memoranda prepared by a line attorney which analyzed
the defenses which could be offered by Hutton officers, and the DOJ’s responses to
those defenses. These memoranda are among many examples of deliberative
prosecutorial memoranda provided by DOJ. See Hutton Report 1329-35.
Iran-Contra
In the late 1980s, an intense Congressional investigation focused, in part, on
Attorney General Meese’s conduct during the Iran-Contra scandal. The House and
Senate created their Iran-Contra committees in January, 1987. The Iran-Contra
committees demanded the production of the Justice Department’s files, to which
Assistant Attorney General John Bolton responded, on behalf of Attorney General
Meese, by attempting to withhold the documents on the claim that providing them
would prejudice the pending or anticipated litigation by the Independent Counsel.
The Iran-Contra committees disputed that contention, required the furnishing of all
Justice Department documents, and questioned all knowledgeable Justice Department
officers up to, and including, Attorney General Meese.
One major aspect of the Iran-Contra Committees’ investigation focused on the
inadequacies of the so-called “Meese Inquiry,” the team led by Attorney General
Meese which looked into the National Security Council (NSC) staff in late
November, 1987. The Iran-Contra committees concluded, that this inquiry had the
effect of forwarning the NSC staff to shred their records and fix upon an agreed false
story, and by the Meese team’s methods the last vital opportunity to uncover the
obscured aspects of the scandal was foreclosed. The Congressional investigation
provided documentary evidence regarding incompetence, at best, by the Attorney
General’s inquiry team during the Meese Inquiry. The Congressional report summed
up such matters as the Attorney General’s taking no notes and remembering no
details of his crucial interviews of CIA Director Casey and others, the Justice
Department inquiry’s not taking any steps to secure the remaining unshredded
documents, and the Justice Department team’s allowing the shredding to occur while
the team was in the room; the inquiry team excluded the Criminal Division and the
FBI from the case until it was too late. According to the Congressional report the
Attorney General gave his press conference of November 25, 1986, with an account
that in key respects misstated and concealed embarrassing information which had
been furnished to him. See, Report of the Congressional Committees Investigating
the Iran-Contra Affair, H.R. Rep. No.433 and S. Rep. No.216, 100th Cong., 1st Sess.
Rocky Flats Environmental Crimes Plea Bargain
In June 1992 the Subcommittee on Investigations and Oversight of the House
Committee on Science, Space, and Technology commenced a review of the plea
bargain settlement by the Department of Justice of the government’s investigation
and prosecution of environmental crimes committed by Rockwell International
Corporation in its capacity as manager and operating contractor at the Department of
Energy’s (DOE) Rocky Flats nuclear weapons facility. See Environmental Crimes
at the Rocky Flats Nuclear Weapons Facility: Hearings Before the Subcomm. on
Investigations and Oversight of the House Committee on Science, Space and
Technology, 102nd Cong., 2d Sess., Vols. I and II (1992) (“Rocky Flats Hearings”);
Meetings: To Subpoena Appearance by Employees of the Department of Justice and
the FBI and To Subpoena Production of Documents From Rockwell International
Corporation, Before the Subcomm. on Investigations and Oversight of the House
Comm. on Science, Space, and Technology, 102nd Congress, 2d Sess.,
(1992)(“Subpoena Meetings”).
The settlement was a culmination of a five-year investigation of environmental
crimes at the facility, conducted by a joint government task force involving the FBI,
the Department of Justice, the Environmental Protection Agency (EPA), EPA’s
National Enforcement Investigation Centers, and the DOE Inspector General. The
subcommittee was concerned with the size of the fine agreed to relative to the profits
made by the contractor and the damage caused by inappropriate activities; the lack
of personal indictments of either Rockwell or DOE personnel despite a DOJ finding
that the crimes were “institutional crimes” that “were the result of a culture,
substantially encouraged and nurtured by DOE, where environmental compliance
was a much lower priority than the production and recovery of plutonium and the
manufacture of nuclear ‘triggers’”; and that reimbursements provided by the
government to Rockwell for expenses in the cases and the contractual arrangements
between Rockwell and DOE may have created disincentives for environmental
compliance and aggressive prosecution of the case.
The subcommittee held ten days of hearings, seven in executive session, in
which it took testimony from the United States Attorney for the District of Colorado;
an assistant U .S. Attorney for the District of Colorado; a DOJ line attorney from
Main Justice; and an FBI field agent; and received voluminous FBI field investigative
reports and interview summaries, and documents submitted to the grand jury not
subject to Rule 6(e). Rocky Flats Hearing, Vol. I, at 389-1009, 1111-1251; Vol. II.
At one point in the proceedings all the witnesses who were under subpoena,
upon written instructions from the Acting Assistant Attorney General, Criminal
Division, refused to answer questions concerning internal deliberations in which
decisions were made about the investigation and prosecution of Rockwell, the DOE
and their employees. Two of the witnesses advised that they had information and, but
for the DOJ directive, would have answered the subcommittee’s inquiries. The
subcommittee members unanimously authorized the chairman to send a letter to
President G. H. W. Bush requesting that he either personally assert executive
privilege as the basis for directing the witnesses to withhold the information or direct
DOJ to retract its instructions to the witnesses. The President took neither course and
the DOJ subsequently reiterated its position that the matter sought would chill
Department personnel. The subcommittee then moved to hold the U .S. Attorney in
contempt of Congress.
A last minute agreement forestalled the contempt citation. Under the agreement
(1) DOJ issued a new instruction to all personnel under subpoena to answer all
questions put to them by the subcommittee, including those which related to internal
deliberations with respect to the plea bargain. Those instructions were to apply as
well to all Department witnesses, including FBI personnel, who might be called in
the future. (2) Transcripts were to be made of all interviews and provided to the
witnesses. They were not to be made public except to the extent they needed to be
used to refresh the recollection or impeach the testimony of other witnesses called
before the subcommittee in a public hearing. (3) Witnesses were to be interviewed
by staff under oath. (4) The subcommittee reserved the right to hold further hearings
in the future at which time it could call other Department witnesses who would be
instructed not to invoke the deliberative process privilege as a reason for not
answering subcommittee questions. Rocky Flats Hearings, Vol. I at 9-10, 25-
Investigation of the Justice Department’s Environmental
Crimes Section
From 1992 to 1994, the House Commerce Committee’s Subcommittee on
Oversight and Investigations conducted an extensive investigation into the impact of
the Department of Justice (DOJ) on the effectiveness of the Environmental Protection
Agency’s (EPA) criminal enforcement program. The probe involved two public
hearings, nearly three years of staff work, intensive review of documents (many of
which were obtained only though subpoenas), and the effort to overcome persistent
Department resistance. The investigation focused on allegations of mismanagement
of the Environmental Crimes Section (ECS), the DOJ Headquarters component
charged with environmental prosecution responsibilities; and the effect on the
relationship between U.S. Attorneys’ offices and the ECS as a consequence of Main
Justice’s decision to centralize control of environmental prosecution in Washington,
DC at the very same time that all other areas of prosecution control were being
decentralized.
The Subcommittee’s investigation was delayed for months by DOJ refusals of
requests to interview DOJ line attorneys and the denial of access to numerous
primary decisionmaking documents as well as documents prepared in response to the
Subcommittee’s investigation. The initial phase of the investigation required
overcoming refusals to produce internal EPA documents bearing on 17 closed
criminal environmental cases. The documents ultimately produced by EPA included
Reports of Investigation, case agent notes, internal reports and memoranda,
communications with private parties, and correspondence with DOJ. The next phase
concentrated on attempts to obtain staff interviews with DOJ line attorneys with first
hand information on whether various closed cases had been mishandled, including
three Assistant United States Attorneys. DOJ officials initially refused on the ground
of the chilling effect such access would have and the historic reluctance of the
Department to allow such access, offering instead to provide access to the head of
ECS instead. The Subcommittee responded that it was premature to interview the
ECS head without interviewing line attorneys who had first hand knowledge of the
facts in question. The change of administration in 1993 did not result in an easing
of DOJ’s resistant posture and in May 1993 the Subcommittee voted to issue 26
subpoenas to present and former DOJ attorneys. In June 1993 DOJ acquiesced to
staff interviews of the subpoenaed attorneys pursuant to a negotiated agreement.
Document subpoenas were also authorized but not issued. However, continued
refusal to voluntarily produce the documents resulted in their issuance and service
in March 1994 on the Attorney General and the Acting Assistant Attorney General
for the Environment and Natural Resources Division. Some of these documents
involved closed cases, but DOJ claimed they were “deliberative” in nature and that
only limited access could be allowed for them. Other documents withheld involved
internal DOJ communications respecting responses to the Subcommittee’s
investigation after the six cases were closed. At the time the subpoenas were served,
the Acting Assistant Attorney General’s nomination for the position was before the
Senate Judiciary Committee. The Chairman of the Subcommittee advised the
Judiciary Committee of the withholding and a hold was put on her nomination. In
late March, DOJ agreed to comply with the subpoena and the documents were
provided over a period of months. Coincidentally the Senate hold was lifted.
The major results of the investigation and its revelations were the reversal of the
policy of centralization of control of environmental prosecutions in Washington, DC,
and the return of such control to the U.S. Attorney’s offices; and the replacement of
the top management of the ECS. See “Damaging Disarray: Organizational
Breakdown and Reform in the Justice Department’s Environmental Crimes
Program,” 103rd Cong., 2d Sess. 1-4, 10-40 (1994)(Comm. Print #103-T).
Campaign Finance Investigations
Allegations of violations of campaign finance laws and regulations surfaced
during the latter stages of the 1996 presidential election campaign and became
objects of investigations by committees in both Houses between 1996 and 2000.
Several of the committee inquiries focused on the nature and propriety of DOJ
actions and non-actions during the course of investigations undertaken by the
Department. Two are illustrative.
In 1997, the Senate Governmental Affairs Committee began an investigation
into allegations of improprieties with respect to the flow of money into campaigns,
particularly into the Republican and Democratic National Committees, and especially
with respect to money from foreign sources. After the first round of hearings, the
committee became concerned with the quality of DOJ’s prosecution efforts as well
as with evidence of a lack of cooperation and coordination between Main Justice and
the FBI. In 1999 the committee held hearings on DOJ’s handling of the investigation
of Yah Lin “Charlie” Trie, a person from Arkansas with a long time friendly
relationship with President Clinton, who had frequent access to the White House and
was alleged to have funneled $220,000 from foreign sources to the Democratic
National Committee. Mr. Trie also provided the President’s Legal Expense Trust
(PLET) with $789,000 in sequentially numbered money orders. During the course
of the DOJ investigation, Mr. Trie fled the country, leaving an agent in control of his
business. In April 1997, the committee subpoenaed business documents relating to
its campaign finance investigation and documents relating to the PLET. At the same
time the DOJ’s Campaign Finance Task Force was engaged in a parallel
investigation. As early as June 1997 FBI Agents in Little Rock became convinced
that Trie’s agent was destroying subpoenaed documents, a process that continued
until October 1997. During that period the FBI attempted to obtain a search warrant
to prevent further document destruction. DOJ Task Force supervisory attorneys
declined to grant permission to seek a search warrant on the ground there was
insufficient probable cause. The committee subpoenaed four FBI special agents who
testified to their efforts to procure a search warrant, as well as the Task Force
supervisory attorney who refused its issuance and the Chief of the Public Integrity
Section of DOJ. The committee also obtained from DOJ the investigatory notes of
the special agents, the draft affidavit in support of the warrant requests, the notes of
the Task Force supervisor, and a memo from one of the special agents to FBI
Director Freeh expressing concern over DOJ handling of the investigation. See,
Hearing, The Justice Department’s Handling of the Yah Lin “Charlie” Trie Case,
before the Senate Committee on Governmental Affairs, 106th Cong., 1st Sess. 3-4, 14-
In December 1997, press reports indicated that FBI Director Freeh had sent a
memorandum to Attorney General Reno suggesting that she seek appointment of an
independent counsel to conduct the campaign finance investigation in order to avoid
an appearance of a political conflict of interest. The House Committee on
Government Reform and Oversight scheduled a hearing and requested that Freeh
appear and produce the memo. The Attorney General intervened and explained that
she would not comply on the grounds of the longstanding DOJ policy prohibiting
sharing of deliberative material in open criminal cases with the Congress, and to
prevent the chilling effect such disclosures would have on Department personnel in
future investigations. The committee issued subpoenas on December 5, 1997, and
both Reno and Freeh refused to comply. At no time did the Attorney General make
a claim of executive privilege. In July 1998 the committee learned that the head of
DOJ’s Campaign Finance Task Force, Charles La Bella, had prepared a lengthy
memorandum for the Attorney General which concluded that the Attorney General
was required by both the mandatory and discretionary provisions of the independent
counsel law to appoint an independent counsel. On July 24, 1998, the committee
issued a subpoena for both the Freeh and La Bella memos. The Attorney General
refused compliance again and on August 6, 1998, the committee voted to hold the
Attorney General in contempt of Congress. See Contempt of Congress, Report of the
Committee on Government Reform and Oversight on the Refusal of Attorney
General Janet Reno to Produce Documents Subpoenaed by the Government Reform
and Oversight Committee, H.Rept. 105-728, 105th Cong., 2d Sess. (1998). However,
the contempt report was not taken up on the House floor prior to the end of the 105th
Congress.
On March 10, 2000, following press reports indicating that the La Bella memo
had been leaked in its entirety to a newspaper, the committee again subpoenaed the
memos. The Attorney General still refused to release the memos but offered to allow
committee staff unredacted review but without any note taking. Negotiations
continued but the committee began review under the DOJ conditions. Ultimately, an
accommodation was reached in which all memoranda subject to subpoena were to
be produced to the committee. The documents would be kept in a secure facility with
access restricted to a limited number staff. The committee agreed to give DOJ notice
in advance of its intent to release the documents and to allow DOJ the opportunity
to explain why they should not be disclosed. The committee notified the Attorney
General of its intent to release the documents at a June 6 hearing. The memos were
released to the public on that date by unanimous consent.
Misuse of Informants in the FBI’s Boston Regional Office
In early 2001, the House Committee on Government Reform commenced an
investigation on FBI corruption in its Boston Regional office that encompassed
events that extended back to the mid-1960s. After repeated instances of lack of
cooperation with requests for documents, the committee issued a subpoena on
September 6, 2001, for a number of prosecution and declination memoranda relating
to its investigation of the handling of a confidential informants in New England. DOJ
officials made it clear that it would not comply. In December 2001 the committee
renewed its request for the subpoenaed documents. (A hearing on the request
scheduled for September 13, 2001, had been postponed because of the September 11
terrorist attacks.) That subpoena sought, among other material, Justice Department
documents relating to alleged law enforcement corruption in the Federal Bureau of
Investigation’s Boston office that occurred over a period of almost 30 years. During
that time, FBI officials allegedly knowingly allowed innocent persons to be convicted
of murder on the false testimony of a cooperating witness and two informants in
order to protect the undercover activities of those informants. Later, the FBI
knowingly permitted two other informants to commit some 21 additional murders
during the period they acted as informants, and, finally, gave the informants warning
of an impending grand jury indictment which allowed one of them to flee.
The President directed the Attorney General not to release the documents
because disclosure “would inhibit the candor necessary to the effectiveness of the
deliberative processes by which the Department makes prosecutorial decisions,” and
that committee access to the documents “threatens to politicize the criminal justice
process” and to undermine the fundamental purpose of the separation of power
doctrine, “which was to protect individual liberty.” In defending the assertion of the
privilege the Justice Department claimed a historical policy of withholding
deliberative prosecutorial documents from Congress in both open and closed civil
and criminal cases. See, Louis Fisher, “The Politics of Executive Privilege,” Carolina
Academic Press, 108 (2004)(Fisher). Pending at the time were a number of Federal
Tort Claims Act suits brought by the falsely convicted persons and their families,
claiming the government knowingly used fabricated testimony to achieve the
conviction.
Initial congressional hearings after the privilege claim was made demonstrated
the rigidity of the Department’s position. The Department later agreed there might
be some area for compromise, and on January 10, 2002, White House Counsel
Gonzales wrote to Chairman Burton conceding that it was a “misimpression” that
congressional committees could never have access to deliberative documents from
a criminal investigation or prosecution. “There is no such bright-line policy, nor did
we intend to articulate any such policy.” But, he continued, since the documents
“sought a very narrow and particularly sensitive category of deliberative matters” and
“absent unusual circumstances, the Executive Branch has traditionally protected
these highly sensitive deliberative documents against public or congressional
disclosure” unless a committee showed a “compelling or specific need” for the
documents. See, Fisher, id. The documents continued to be withheld until a further
hearing, held on February 6, 2002, when the committee heard expert testimony
describing over 30 specific instances since 1920 of the Department of Justice giving
access to prosecutorial memoranda for both open and closed cases and providing
testimony of subordinate Department employees, such as line attorneys, FBI field
agents and U.S. attorneys, and included detailed testimony about specific instances
of DOJ’s failure to prosecute meritorious cases. In all instances, investigating
committees were provided with documents respecting open and closed cases that
often included prosecutorial memoranda, FBI investigative reports, summaries of FBI
interviews, memoranda and correspondence prepared during undercover operations,
and documents presented to grand juries not protected by Rule 6(e), among other
similar “sensitive materials.” Shortly after the hearing the committee was given
access to the disputed documents.”Everything Secret Degenerates: The FBI’s Use of
Murderers As Informants,” H.Rept. 108-414, 108th Cong., 2d Sess. 2-9, 121-134
(2004) (House Report); Hearings, “ Investigation Into Allegations of Justice
Department Misconduct In New England-Volume I,” House Comm. on Government
Reform, 107th Cong., 1st and 2d Sess’s. 520-556, 562-604 (May 3, December 13,
2001; February 6, 2002) (Hearings); McIntyre v. United States, 367 F.3d 38, 42-51
(1st Cir. 2004)(recounting background of FBI corrupt activities); United States v.
Salemme, 91 F. Supp. 2d 141, 148-63, 208-15, 322 (D. Mass. 1993) (same); United
States v. Flemmi, 195 F. Supp 243, 249-50 (D. Mass. 200) (same); Charles Tiefer,
“President Bush’s First Executive Privilege Claim: The FBI/Boston Investigation,”
33 Pres. Stud. Q. 201(2003). On July 26, 2007, a Massachusetts federal district court
judge awarded the convicted persons and their families $101.7 million under the
Federal Tort Claims Act, finding the government liable for malicious prosecution,
civil conspiracy, infliction of emotional distress, and negligence. Shelly Murphy and
Brian R. Ballou, “FBI Condemned in Landmark Ruling,” Boston Globe, July 27,
2007, A3; Robert Barrens and Paul Lewis, “FBI Must Pay $102 Million In Mob
Case,” Washington Post, July 27, 2007, A3.
The committee’s final report concluded that the documents withheld from it
were indispensable to the success of its investigation and that the claim of
presidential privilege was part of a pattern of obstruction that impeded its
investigation:
When the FBI Office of Professional Responsibility conducted an investigation
of the activities of New England law enforcement, it concluded in 1997: “There
is no evidence that prosecutorial discretion was exercised on behalf of informants
[James] Bulger and/or [Stephen] Flemmi.” This is untrue. Former U.S. Attorney
Jeremiah O’Sullivan was asked in the December 5, 2002 committee hearing
whether prosecutorial discretion had been exercised on behalf of Bulger and
Flemmi and he said that it had. A review of documents in the possession of the
Justice Department also confirms this to be true. Had the committee permitted
the assertion of executive privilege by the President to be unchallenged, this
information would never have been known. That the Justice Department
concluded that prosecutorial discretion had not benefitted Bulger or Flemmi —
while at the same time fighting to keep Congress from obtaining information
proving this statement to be untrue — is extremely troubling. See, House Report
at 3, 134-135.
Removal and Replacement of United States Attorneys
Commencing in early 2007, the House Judiciary Committee and its
Subcommittee on Commercial and Administrative Law and the Senate Judiciary
Committee began investigations of the termination and replacement of nine United
States Attorneys in 2006; The committees sought an explanation of the reasons for
the terminations, who was involved in the removal and replacement decisions, and
what factors may have influenced the considerations for removal and replacement.
During the initial phase of the investigations DOJ voluntarily provided former and
current Department officials and employees for closed door interviews and testimony
at hearings. The House subcommittee held five days of hearings, on March 6, March
on May 10 and May 23, 2007. DOJ personnel provided included, among others, the
Attorney General; the Deputy Attorney General; the removed Untied States
Attorneys; the Chief of Staff to the Deputy Attorney General; the former Chief of
Staff to the Attorney General; the acting Associate Attorney General; the Principal
Associate Deputy Attorney General; the Deputy Assistant Attorney General and
Chief of Staff of the Criminal Division; the Principal Deputy Director of the
Executive Office of U.S. Attorneys; the former Director of the Office of U.S.
Attorneys and current U.S. Attorney for the Western District of Pennsylvania; the
Associate Deputy Attorney General; and the Acting Attorney General for New
Mexico.
On the basis of the testimony of the witnesses and records produced by them and
DOJ, the committees turned their attention to the role the White House played in the
removals and sought similar voluntary provision of witnesses and documents. The
White House Counsel responded with a proposal under which the committees were
offered limited availability to some documents and limited access to witnesses in
closed sessions, but without any transcripts of the interviews and under limitation as
to permissible areas of questions. Also, as a condition of this proposal the committees
had to commit in advance not to subsequently pursue any additional White House-
related information by any other means, regardless of whatever the initial review of
documents should reveal.
Upon the failure to procure White House documents and witnesses on a
voluntary basis, on June 13, 2007, the chairman of the House and Senate committee
issued subpoenas to Joshua Bolten, the White House Chief of Staff (as custodian of
the White House Documents) for relevant White House documents, returnable on
June 28, 2007. On that date, the House committee chairman issued a subpoena for
documents and testimony to former White House Counsel Harriet Meirs, returnable
on July 12, 2007; and the Senate committee chairman issued a similar subpoena to
former White House Political Director Sara Taylor, returnable on July 11, 2007. The
White House Counsel thereafter announced that no documents would be produced
by Mr. Bolten on the basis of a claim of Executive privilege by the President, and that
no logs of the withheld documents would be provided; and that Ms. Miers had been
directed to claim Executive privilege by the President and not to appear at the
hearing at all based on the notion that the assertion of presidential privilege cloaked
a witness with “absolute immunity” from even appearing in response to a subpoena.
On the return dates of the subpoenas Ms. Miers did not appear and Mr. Bolten did not
supply the subpoenaed documents.
On July 12, the House subcommittee voted 7-5 to hold Miers in contempt of
Congress, and on July 19, Bolten was held in contempt by the subcommittee by a 7-3
vote. On July 25 both Miers and Bolten were held in contempt by the full Judiciary
Committee by a vote of 21-17. The full House of Representatives voted to hold Ms.
Miers and Mr. Bolten in contempt of Congress on February 14, 2008 by a vote of
223-32. The House passed three accompanying resolutions to guide the next steps in
the enforcement process. H.Res. 979 provided that the Speaker of the House shall
certify the contempt of the House report to the U.S. Attorney for the District of
Columbia for presentation of the matter to a grand jury. H.Res. 980 authorized the
Chairman of the House Judiciary Committee to initiate a civil action in federal
district court to seek declaratory and injunctive relief “affirming the duty of any
individual to comply with any subpoena.” H.Res. 982 adopted the terms of H.Res.
Upon submission of the certified report to the U.S. Attorney by the Speaker, the
Attorney General announced that because Ms. Miers and Mr. Bolten were acting
pursuant to direct orders of the President, he had determined that their refusals to
comply with the subpoenas did not constitute a crime and that the contempt citation
would not be presented for grand jury action. With criminal enforcement foreclosed,
the Committee filed a civil action seeking a declaratory judgment and injunctive
relief to enforce the subpoena on March 10, 2008. On July 31, 2008, the District
Court granted the Committee’s motion for partial summary judgment, declaring that
“Ms. Miers is not immune from compelled congressional process” and that “she is
legally required to testify pursuant to a duly issued congressional subpoena” from the
Committee. It ordered that Ms. Miers and Mr. Bolten “shall produce all non-
privileged documents required by the applicable subpoenas and shall provide to [the
Committee] a specific description of the documents withheld from production on the
basis of executive privilege consistent with the terms of the Memorandum Opinion
issued on this date.” See Report of the Committee on the Judiciary, House of
Representatives, H.Rept. 110-423 (2007) (Contempt Report); Committee on the
Judiciary, U.S. House of Representatives v. Harriet Miers, et. al., Civil Action No.
Presidential Claims of Executive Privilege: History, Law, Practice, and Recent
Developments, by Morton Rosenberg; and CRS Report RL34097, Congress’
Contempt Power: Law, History, Practice, and Procedure, by Morton Rosenberg and
Todd B. Tatelman.