Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice

Congressional Investigations of the

Department of Justice, 1920-2012: History,

Law, and Practice

(name redacted)

Legislative Attorney

(name redacted)

Legislative Attorney

November 5, 2012

Congressional Research Service

7-....

www.crs.gov

R42811

CRS Report for Congress

Prepared for Members and Committees of Congress

Congressional Investigations of the Department of Justice, 1920-2012

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 Operation Fast and Furious, 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 pertinent to congressional access to information regarding

the law enforcement activities of the Department of Justice indicates that the vast majority of

requests for materials are resolved through political negotiation and accommodation, without the

need for judicial resolution. Absent an executive privilege claim or a statute barring disclosure

there appears to be no court precedent imposing a threshold burden on committees to demonstrate

a “substantial reason to believe wrongdoing occurred” in order to obtain information. Instead, 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. In the last 85 years, Congress has consistently sought and obtained access

to information concerning prosecutorial misconduct by Department of Justice officials in closed

cases; and access to pre-decisional deliberative prosecutorial memoranda—while often resisted

by the Department—is usually released upon committee insistence as well. In contrast, the

Department rarely releases—and committees rarely subpoena—material relevant to open criminal

investigations. Typically, disputes are resolved without recourse to an executive privilege claim.

Instead, negotiations produce various compromises: narrowing informational requests, delaying

the release of information that could have prejudicial consequences on prosecutions, or redacting

sensitive materials. However, when Presidents do claim executive privilege, courts have been

reluctant to resolve the dispute. Indeed, litigation over the scope of executive privilege in direct

relation to congressional oversight and investigations has been quite limited. In total, there have

been four cases dealing with executive privilege in the context of information access disputes

between Congress and the executive, and two of those resulted in decisions on the merits. The

Supreme Court has never addressed executive privilege in the face of a congressional demand for

information.

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Congressional Investigations of the Department of Justice, 1920-2012

Contents

Introduction...................................................................................................................................... 1

The Legal Basis for Oversight ......................................................................................................... 3

Constitutional Authority to Perform Oversight and Investigative Inquiries .............................. 3

Legislative Purpose ................................................................................................................... 4

The Department’s Historical Responses to Congressional Requests for Internal DOJ

Documents and Communications ................................................................................................. 6

Assessment of the Department’s Opposition to Congressional Access to Internal DOJ

Materials ....................................................................................................................................... 8

DOJ’s Policy Objections to Disclosure: Concerns About Pre-Trial Publicity, Due

Process, and Concurrent Investigations.................................................................................. 8

Assertion of Common Law and Constitutional Privileges Against Disclosure ....................... 10

Appendixes

Appendix. Selected Congressional Investigations of the Department of Justice, 19202012 ............................................................................................................................................ 15

Contacts

Author Contact Information........................................................................................................... 49

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Congressional Investigations of the Department of Justice, 1920-2012

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 Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current

ongoing inquiries into Operation Fast and Furious, 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

1

See generally CRS Report RL30240, Congressional Oversight Manual, by (name redacted) et al., (June 10, 2011) at 517, 87-108, 114-40 [hereinafter Oversight Manual].

2

Id. at 2-4.

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disclosures of decision making 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 pertinent to congressional access to information regarding

the law enforcement activities of the Department of Justice indicates that the vast majority of

requests for materials are resolved through political negotiation and accommodation, without the

need for judicial resolution. Absent an executive privilege claim or a statute barring disclosure

there appears to be no court precedent imposing a threshold burden on committees to demonstrate

a “substantial reason to believe wrongdoing occurred” in order to obtain information. Instead, 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. In the last 85 years, Congress has consistently sought and obtained access

to information concerning prosecutorial misconduct by Department of Justice officials in closed

cases; and access to pre-decisional deliberative prosecutorial memoranda—while often resisted

by the Department—is usually released upon committee insistence, as well. In contrast, the

Department rarely releases—and committees rarely subpoena—material relevant to open criminal

investigations.3 Typically, disputes are resolved without recourse to an executive privilege claim.

Instead, negotiations produce various compromises: narrowing informational requests, delaying

the release of information that could have prejudicial consequences on prosecutions, or redacting

sensitive materials.4 However, when Presidents do claim executive privilege, courts have been

reluctant to resolve the dispute. Indeed, litigation over the scope of executive privilege in direct

relation to congressional oversight and investigations has been quite limited. In total, there have

been four cases dealing with executive privilege in the context of information access disputes

between Congress and the executive,5 and two of those resulted in decisions on the merits.6 The

Supreme Court has never addressed executive privilege in the face of a congressional demand for

information.

Committees, however, normally have been restrained by prudential considerations that involve a

pragmatic assessment of the costs and benefits of demanding disclosure of information.

Committees often weigh the legislative need, public policy, and their statutory duty to engage in

continuous oversight of the application, administration, and execution of laws that fall within

their jurisdiction against the potential burdens and harms to an agency if deliberative process

matters are 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 committee’s reasonable belief that government

3

See Todd David Peterson, Congressional Oversight of Open Criminal Investigations, 77 NOTRE DAME L. REV. 1373,

1410-11 (2002).

4

See Roberto Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal

Criminal Investigations and Prosecutions, 87 IOWA L. REV. 1559, 1594-95 (2002).

5

United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976) [hereinafter AT&T]; Senate Select Comm. on

Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) [hereinafter Senate Select Committee];

Miers, 558 F.Supp.2d 53; United States v. House of Representatives of U.S., 556 F. Supp. 150 (D.D.C. 1983)

[hereinafter House of Representatives].

6

Senate Select Committee, 498 F.2d 725; Miers, 558 F. Supp. 2d 53.

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misconduct has occurred. A careful review of the historical record indicates a generally faithful

congressional adherence to these prudential considerations.

This report will briefly review the legal basis for investigative oversight, followed by several

prominent examples of congressional oversight that reflect the significant breadth and reach of

the legislative investigative prerogative vis-à-vis the Department. Next we will review and assess

the Department’s contentions, based on policy, 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 20 inquiries in which committees have successfully obtained

documents and testimony respecting a wide variety of Department materials and memoranda.

The Legal Basis for Oversight

Constitutional Authority to Perform Oversight and Investigative

Inquiries

Generally, Congress’s authority and power to obtain information, including, but not limited to,

classified and/or confidential information, is extremely broad. While there is no express provision

of the Constitution or specific statute authorizing the conduct of congressional oversight or

investigations, the Supreme Court has firmly established that such power is essential to the

legislative function as to be implied from the general vesting of legislative powers in Congress.7

In Eastland v. United States Serviceman’s Fund, for instance, the Court stated that the “scope of

its power of inquiry ... is as penetrating and far-reaching as the potential power to enact and

appropriate under the Constitution.”8 Also, in Watkins v. United States, the Court emphasized that

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.”9 The Court further stressed that Congress’s power to

investigate is at its peak when focusing on alleged waste, fraud, abuse, or maladministration

within a government department. Specifically, the Court explained that the investigative power

“comprehends probes into departments of the federal government to expose corruption,

inefficiency, or waste.”10 The Court went on to note that the first Congresses held “inquiries

dealing with suspected corruption or mismanagement of government officials.”11 Given these

factors, the Court recognized “the power of the Congress to inquire into and publicize corruption,

maladministration, or inefficiencies in the agencies of Government.”12

7

See, e.g., Nixon v. Administrator of General Services, 433 U.S. 435 (1977); Eastland v. United States Servicemen’s

Fund, 421 U.S. 491 (1975); Barenblatt v. United States, 360 U.S. 109 (1959); Watkins v. United States, 354 U.S. 178

(1957); McGrain v. Daugherty, 273 U.S. 135 (1927).

8

421 U.S. at 504 n.15 (quoting Barenblatt, 360 U.S. at 111).

9

354 U.S. at 187.

10

Id.

11

Id. at 182.

12

Id. at 200 n.33.

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Legislative Purpose

While the congressional power of inquiry is broad, it is not unlimited. The Supreme Court has

admonished that the power to investigate may be exercised only “in aid of the legislative

function”13 and cannot be used to expose for the sake of exposure alone. The Watkins Court

underlined these limitations, stating that

There is no general authority to expose the private affairs of individuals without justification

in terms of the functions of the Congress ... nor is the Congress a law enforcement or trial

agency. These are functions of the executive and judicial departments of government. No

inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the

Congress.14

A committee’s inquiry must have a legislative purpose or be conducted pursuant to some other

constitutional power of Congress, such as the authority of each House to discipline its own

members, judge the returns of the their elections, and to conduct impeachment proceedings.15

Although the 1927 Supreme Court decision in Kilbourn v. Thompson16 held that the investigation

in that case was an improper probe into the private affairs of individuals, the courts today

generally will presume that there is a legislative purpose for an investigation. A House or Senate

rule or resolution authorizing the investigation does not have to specifically state the committee’s

legislative purpose.17 In In re Chapman,18 the Court upheld the validity of a resolution authorizing

an inquiry into charges of corruption against certain Senators despite the fact that it was silent as

to what might be done when the investigation was completed. The Court stated the following:

The questions were undoubtedly pertinent to the subject matter of the inquiry. The

resolutions directed the committee to inquire “whether any Senator has been, or is,

speculating in what are known as sugar stocks during the consideration of the tariff bill now

before the Senate.” What the Senate might or might not do upon the facts when ascertained,

we cannot say nor are we called upon to inquire whether such ventures might be defensible,

as contended in argument, but it is plain that negative answers would have cleared that body

of what the Senate regarded as offensive imputations, while affirmative answers might have

led to further action on the part of the Senate within its constitutional powers.

Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry

because the preamble and resolutions did not specify that the proceedings were taken for the

purpose of censure or expulsion, if certain facts were disclosed by the investigation. The

matter was within the range of the constitutional powers of the Senate. The resolutions

adequately indicated that the transactions referred to were deemed by the Senate

reprehensible and deserving of condemnation and punishment. The right to expel extends to

all cases where the offense is such as in the judgment of the Senate is inconsistent with the

trust and duty of a Member.

13

Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).

Watkins, 354 U.S. at 187.

15

See, e.g., McGrain, 273 U.S. 135; see also In Re Chapman, 166 U.S. 661 (1897).

16

103 U.S. 168 (1881).

17

McGrain, 273 U.S. 135; see also Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938); LEADING CASES ON

CONGRESSIONAL INVESTIGATORY POWER 7 (Comm. Print 1976) [hereinafter Leading Cases]. For a different assessment

of foundational case law concerning the requirement of a legislative purpose, see Allen B. Moreland, Congressional

Investigations and Private Persons, 40 SO. CAL. L. REV. 189, 232 (1967).

18

166 U.S. 661, 669 (1897).

14

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We cannot assume on this record that the action of the Senate was without a legitimate

object, and so encroach upon the province of that body. Indeed, we think it affirmatively

appears that the Senate was acting within its right, and it was certainly not necessary that the

resolutions should declare in advance what the Senate meditated doing when the

investigation was concluded.19

In McGrain v. Daugherty,20 the original resolution that authorized the Senate investigation into

the Teapot Dome Affair21 made no mention of a legislative purpose. A subsequent resolution for

the attachment of a contumacious witness declared that his testimony was sought for the purpose

of obtaining “information necessary as a basis for such legislative and other action as the Senate

may deem necessary and proper.”22 The Court found that the investigation of the DOJ was

ordered for a legitimate object. It wrote,

The only legitimate object the Senate could have in ordering the investigation was to aid it in

legislating, and we think the subject matter was such that the presumption should be

indulged that this was the real object. An express avowal of the object would have been

better; but in view of the particular subject-matter was not indispensable. ...

The second resolution—the one directing the witness be attached—declares that this

testimony is sought with the purpose of obtaining “information necessary as a basis for such

legislative and other action as the Senate may deem necessary and proper.” This avowal of

contemplated legislation is in accord with what we think is the right interpretation of the

earlier resolution directing the investigation. The suggested possibility of “other action” if

deemed “necessary or proper” is of course open to criticism in that there is no other action in

the matter which would be within the power of the Senate. But we do not assent to the view

that this indefinite and untenable suggestion invalidates the entire proceeding. The right view

in our opinion is that it takes nothing from the lawful object avowed in the same resolution

and is rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object

were affirmatively and definitely avowed.23

The court also emphasized that the DOJ, like all other executive departments and agencies, is a

creature of Congress and subject to its legislative and oversight authority.24 Moreover, when the

investigation’s asserted purpose is supported by reference to specific problems which in the past

have been, or in the future may be, the subject of appropriate legislation, it has been held that a

court cannot say that a committee of Congress exceeds its power when it seeks information in

such areas.25 In the past, the types of legislative activity which have justified the exercise of the

power to investigate have included the primary functions of legislating and appropriating,26 the

function of deciding whether or not legislation is appropriate,27 oversight of the administration of

the laws by the executive branch,28 and the essential congressional function of informing itself in

19

In re Chapman, 166 U.S. at 699.

273 U.S. 135 (1927).

21

See Appendix section “Teapot Dome.”

22

McGrain, 273 U.S. at 321.

23

Id. at 179-80.

24

Id. at 177-78.

25

Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968), cert denied, 393 U.S. 1024 (1969).

26

Barenblatt v. United States, 360 U.S. 109 (1959).

27

Quinn v. United States, 349 U.S. 155, 161 (1955).

28

McGrain, 273 U.S. at 295.

20

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matters of national concern.29 In addition, Congress’s power to investigate such diverse matters as

foreign and domestic subversive activities,30 labor union corruption,31 and organizations that

violate the civil rights of others32 have all been upheld by the Supreme Court.

Despite the Court’s broad interpretation of legislative purpose, Congress’s authority is not

unlimited. Courts have held that a committee lacks a legislative purpose if it appears to be

conducting a legislative trial rather than an investigation to assist in performing its legislative

function.33 Furthermore, although “there is no congressional power to expose for the sake of

exposure,”34 “so long as Congress acts in pursuance of its constitutional power, the Judiciary

lacks authority to intervene on the basis of the motives which spurred the exercise of that

power.”35

The Department’s Historical Responses to

Congressional Requests for Internal DOJ

Documents and Communications

The executive branch has advanced several arguments 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. These rationales have included a desire to avoid

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 a potential 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. In the 1941 opinion, Attorney General Jackson argued that

“congressional or public access to [internal DOJ documents] would not be in the public interest”

because it would “seriously prejudice law enforcement.”36

Jackson’s views were reiterated by Attorney General William French Smith in 1982 during the

Superfund dispute,37 there applying the policy to specific types of documents:

[the documents withheld] 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

29

United States v. Rumely, 345 U.S. 4, 43-45 (1953); see also Watkins v. United States, 354 U.S. 178, 200 n.3 (1957).

See, e.g., Barenblatt, 360 U.S. 109 (1959); Watkins, 354 U.S. 178 (1957); McPhaul v. United States, 364 U.S. 372

(1960).

31

Hutcheson v. United States, 369 U.S. 599 (1962).

32

Shelton v. United States, 404 F.2d 1292, 1292 (D.C. Cir. 1968).

33

See United States v. Icardi, 140 F. Supp. 383 (D.D.C. 1956); United States v. Cross, 170 F. Supp. 303 (D.D.C. 1959).

34

Watkins v. United States, 354 U.S. 178, 200 (1957). However, Chief Justice Warren, writing for the majority, made

it clear that he was not referring to the “power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Id.

35

Barenblatt, 360 U.S. at 132.

36

Positions of the Exec. Dept. Regarding Investigative Reports, 40 Op. A.G. 45. 46-47 (1941).

37

See Appendix section “Investigation of Withholding EPA Documents.”

30

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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.38

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.”39 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.’”40

In the 2001-2002 House Government Reform Committee investigation of the FBI misuse of

informants,41 the Department maintained its historic position of withholding internal deliberative

prosecutorial documents, before finally disclosing the documents following increased

congressional pressure. 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 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 principled interest in ensuring the integrity of prosecutorial decision-making.42

Finally, during the House Oversight investigation of Operation Fast and Furious, the DOJ resisted

committee requests for access to internal deliberative communications made in response to the

committee’s investigation. The DOJ argued that their disclosure

would inhibit the candor of such Executive Branch deliberations in the future and

significantly impair the Executive Branch’s ability to respond independently and effectively

to congressional oversight. This would raise substantial separation of powers concerns and

potentially create an imbalance in the relationship between these two co-equal branches of

the government.43

38

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 at 37-38 [hereinafter Dingell Letter].

39

Id. (quoting former Deputy Assistant General Thomas E. Kauper).

40

Id.

41

See Appendix section “Misuse of Informants in the FBI’s Boston Regional Office.”

42

Investigation Into Allegations of Justice Department Misconduct In New England-Volume I, Hearings Before the H.

Comm. on Government Reform, 107th Cong. 520-56, 562-604 (May 3, December 13, 2001; Feb. 6, 2002).

43

Letter from Attorney Gen. Eric Holder to President Obama (June 19, 2012) available at http://www.justice.gov/olc/

2012/ag-ff-exec-priv.pdf [hereinafter June 19 Letter].

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Assessment of the Department’s Opposition to

Congressional Access to Internal DOJ Materials

DOJ’s Policy Objections to Disclosure: Concerns About 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 criminal and civil litigation.44 The

courts have also 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

distinct proceeding ... or when crime or wrongdoing is exposed.”45 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 may 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 that constitutional protection.46

Additionally, the pendency of litigation does not prohibit Congress from investigating facts that

have a bearing on that litigation, where the information sought is needed to determine what, if

any, legislation should be enacted to prevent further ills.47

Although several lower court decisions have recognized that congressional hearings may generate

prejudicial pre-trial publicity, they have not expressly suggested that there are any constitutional

or legal limitations on Congress’s right to conduct an investigation while judicial proceedings are

pending. Instead, the cases have suggested approaches, such as granting a continuance or a

change of venue, to deal with the publicity problem.48 For example, the court in one of the

leading cases, Delaney v. United States, stated that “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:

44

See discussion of case law, supra at notes 7-35, and accompanying text.

Hutcheson v. United States, 369 U.S. 599, 617 (1962).

46

Id. at 617 n.16.

47

Sinclair v. United States, 279 U.S. 263, 294 (1929).

48

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. REP. No. 97-968, at 58 (1982).

45

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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 been

substantially removed.49

The Delaney court distinguished the case of a congressional hearing generating publicity relating

to an individual not under indictment at the time:

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 indicted official than

would be the case if the legislative hearing were held while the accused is awaiting trial on a

pending indictment.50

The absence of an indictment and the length of time between a congressional hearing and

criminal trial have been factors considered by courts that reject claims that congressionally

generated publicity prejudiced defendants.51 Finally, in the context of adjudicatory administrative

proceedings, courts on occasion have held that pressures caused by Members of Congress

questioning agency decision makers may be sufficient to undermine the impartiality of the

proceeding.52 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

49

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.” Id. at

114-15. 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, 369 U.S. at 613 (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).

50

199 F.2d at 115.

51

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 910, 917 (D.C. Cir.

1976), cert. denied, 429 U.S. 1120 (1977); United States v. Romano, 583 F. 2d. 1, 4 (1st 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).

52

See, e.g., Pillsbury Co. v. FTC, 354 F.2d 952 (5th Cir. 1968).

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rise to the level of political pressure, designed to influence particular proceedings, that would

require judicial condemnation.53

Thus, the courts have recognized the potentially prejudicial effect congressional hearings can

have on pending cases. While not directly questioning its prerogatives with respect to oversight

and investigation, the cases pose a choice for the Congress. It faces weighing the harm caused by

congressionally generated publicity to the prosecutorial effort of the executive against the fact

that access to information under secure conditions can fulfill the congressional power of

investigation. 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 they need. They make that decision. It is not a judicial

decision, or a legal decision, but a political decision of the highest importance.”54

Assertion of Common Law and Constitutional Privileges Against

Disclosure

In the past the executive frequently has made a broad claim that prosecution is an inherently

executive function and that congressional access to information related to the exercise of that

function is thereby limited. Citing the “need to protect the government’s ability to prosecute fully

and fairly,” the executive views questions about the exercise of prosecutorial discretion and

demands for access to open law enforcement files as beyond the scope of proper congressional

inquiry. The executive views these inquiries as interfering with the discretion traditionally

enjoyed by the prosecutor with respect to pursuing criminal cases.55 Similarly, the Justice

Department has objected to releasing internal deliberative documents, since it believes their

disclosure would substantially chill future deliberations.56 These concerns are usually resolved

through the traditional negotiation and accommodation process.57 However, in rare instances the

executive branch may respond to a congressional demand to produce information with an

assertion of executive privilege by the President. For example, during the congressional

investigation of Operation Fast and Furious, the DOJ released numerous documents related to the

program, but President Obama specifically claimed executive privilege over DOJ internal

documents that were responsive to the committee’s subpoena.58

53

See, e.g., ATX, Inc. v. Dep’t 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 CRS Report RL32113, Congressional Intervention in the

Administrative Process: Legal and Ethical Considerations, by (name redacted), September 25, 2003.

54

Lawrence E. Walsh, The Independent Counsel and the Separation of Powers, 25 HOUS. L. REV. 1, 9 (1988).

55

Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel

Act, 10 Op. O.L.C. 68, 76 (1986).

56

See Appendix section “Operation Fast and Furious.”

57

See, e.g., Neal Devins, Congressional-Executive Information Access Disputes: A Modest Proposal: Do Nothing, 48

ADMIN. L. REV. 109-137 (1996); Joel D. Bush, Congressional-Executive Access Disputes: Legal Standards and

Political Settlements, 9 J.L. & POL. 717 (1993); Stephen W. Stathis, Executive Cooperation: Presidential Recognition

of the Investigatory Authority of Congress and the Courts, 3 J.L. & POL. 183 (1986).

58

See Appendix section “Operation Fast and Furious.”

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In the few controversies that have reached a judicial forum, federal courts have been highly

reluctant to rule on the merits.59 For example, in United States v. AT&T,60 the Justice Department

sought to enjoin a congressional subpoena for letters the FBI sent to AT&T. The D.C. District

Court held that there is a constitutional duty for the executive and Congress to attempt to

accommodate each other’s needs, and refused to resolve the dispute because both branches had

not yet done so. The court displayed the same reluctance in United States v. House of

Representatives,61 where it dismissed a Justice Department suit seeking a declaratory judgment

that the Administrator of the Environmental Protection Agency (EPA), Anne Gorsuch Burford,

“acted lawfully in refusing to release certain documents to a congressional subcommittee” at the

direction of the President.62 The court dismissed the case, without reaching the executive

privilege claim, on the ground that judicial intervention in a dispute “concerning the respective

powers of the Legislative and Executive Branches ... should be delayed until all possibilities for

settlement have been exhausted. ... Compromise and cooperation, rather than confrontation,

should be the aim of the parties.”63 Finally, the D.C. Circuit Court sketched the outer limits of the

executive’s power to withhold information in Committee on the Judiciary v. Miers,64

unequivocally rejecting the executive’s claim that present and past senior advisers to the

President—in this case former White House Counsel Harriet Miers and Chief of Staff Joshua

Bolten—were absolutely immune from compelled congressional process. However, the case did

not provide any discussion of the merits of the specific claims of executive privilege, but rather

held that executive privilege could be asserted “in response to any specific questions posed by the

Committee” while providing testimony.65

If a court does reach the merits of an executive privilege claim asserted against a congressional

inquiry, its analysis may be influenced by In re Sealed Case (Espy)66 and Judicial Watch v.

Department of Justice,67 two D.C. Circuit cases that addressed issues left unresolved by the

Watergate executive privilege cases.68 The Espy case distinguished 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 decision making.

The deliberative process privilege, which applies to executive branch officials generally, is a

common law privilege that requires a lower threshold of need to be overcome, and “disappears

59

In total, there have been four cases dealing with executive privilege in the context of information access disputes

between Congress and the Executive, United States v. Am. Tel. & Tel. Co., 551 F.2d 384 (D.C. Cir. 1976); Senate

Select Committee, 498 F.2d 725; Miers, 558 F. Supp. 2d 53; House of Representatives, 556 F. Supp. 150 (D.D.C.

1983). Two of those resulted in decisions on the merits, Senate Select Committee and Miers. No decision of the

Supreme Court has yet resolved the question of whether there are any circumstances in which the executive branch can

refuse to provide information sought by Congress on the basis of executive privilege.

60

567 F.2d 121 (D.C. Cir. 1977) [hereinafter AT&T II].

61

556 F. Supp. 150 (D.D.C. 1983).

62

Id. at 151. See Appendix section “Investigation of Withholding EPA Documents.”

63

House of Representatives, 556 F. Supp. at 152-53.

64

558 F. Supp. 2d 53 (D.D.C. 2008).

65

Id. at 105.

66

121 F.3d 729 (D.C. Cir. 1997).

67

365 F.3d 1108 (D.C. Cir. 2004). The panel split 2-1, with Judge Rogers writing for the majority and Judge Randolph

dissenting.

68

See Nixon v. Sirica, 487 F.2d 750 (D.C. Cir. 1973); Senate Select Committee, 498 F.2d 725. United States v. Nixon,

418 U.S. 683 (1974) and Nixon v. Administrator of General Services, 433 U.S. 425 (1977) are the only executive

privilege cases to be decided by the Supreme Court.

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altogether when there is any reason to believe government misconduct has occurred.”69 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.”70 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.”71 The court held that the

presidential communications privilege covers communications authored or solicited and received

by close presidential advisers in the course of preparing advice for the President even if those

communications are not made directly to the President. The court, however, carefully restricted its

reach by explicitly confining the privilege to staff within the executive office of the President that

has “operational proximity” to the President.

The D.C. Circuit affirmed the limits of the privilege in Judicial Watch, a case involving requests

for documents about pardon applications reviewed by the Justice Department’s Office of the

Pardon Attorney and the Deputy Attorney General for consideration by President Clinton.72 The

district court held that because the materials sought had been 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 presidential communications privilege

applied.73 The appeals court reversed, explaining that the privilege may be invoked only when

documents or communications are authored or solicited and received by the President himself or

by presidential advisers in close proximity to the President who have significant responsibility for

advising him on matters requiring presidential decision making.74 While the exercise of the

President’s pardon power was certainly a non-delegable, core presidential function, the officials

involved, the Deputy Attorney General and the Pardon Attorney, were deemed to be too removed

from the President and his senior White House advisers to be protected by the privilege.75

These two D.C. Circuit cases appear to highlight two key considerations that should be examined

when determining if the presidential communications privilege can be properly asserted. First, the

protected communication must be “authored or solicited and received by”76 the President or a

close White House advisor with “operational proximity” to the President.77 Second, a

communication may have to relate to decision making in the context of a “quintessential and nondelegable presidential power.” Espy and Judicial Watch do not establish this as a requirement for

applying the presidential communications privilege. However, both cases deal exclusively with

quintessential and non-delegable presidential powers—the appointment and removal and pardon

69

In re Sealed Case (Espy), 121 F.3d 729, 745-46 (D.C. Cir. 1997) [hereinafter Espy]; see also id. at 737-38 (“[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.’”).

70

Id. at 745, 752; see also id. at 753 (“... these communications nonetheless are ultimately connected with presidential

decisionmaking”).

71

Id. at 754, 757.

72

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.

73

Judicial Watch v. Department of Justice, 365 F.3d 1108, 1109-12 (D.C. Cir. 2004).

74

Id. at 1112.

75

Id. at 1116-18.

76

Espy, 121 F.3d at 757.

77

Id. at 752.

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power. Therefore, one could argue that the Presidential communications privilege is limited to

exclude materials concerning presidential decision making pursuant to statutory delegations of

authority to the President or other executive branch officials.

If an executive privilege claim was challenged in litigation that proceeded to the merits of the

claim, the DOJ may argue that the materials withheld are properly covered under the presidential

communications privilege. If the materials satisfied the “operational proximity” test laid out

above, the DOJ would then have to confront the type of decision making being exercised in the

materials. In the case of a claim based on prosecutorial discretion, the Supreme Court’s ruling in

Morrison v. Olson78—sustaining the validity of the appointment and removal conditions for

independent counsels under the Ethics in Government Act—casts doubt on whether prosecution is

a quintessential and non-delegable presidential power. The Court held that the exercise of

prosecutorial discretion is in no way “central” to the functioning of the executive branch79 and

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. If a court

determined that the presidential communications privilege could only apply to decision making

related to quintessential and non-delegable presidential powers, the reasoning in Morrison may

prevent the DOJ from successfully shielding Congress from accessing materials regarding

prosecutorial discretion by asserting this privilege.

Even if certain documents fall within the presidential communications privilege, this does not

necessarily mean that disclosure of the documents can never be compelled by Congress. The

Supreme Court in U.S. v. Nixon made clear, in the context of a subpoena for information from a

special prosecutor for use in a criminal proceeding, that executive privilege is not absolute, but

rather remains a qualified privilege. While the Supreme Court has not addressed executive

privilege in the face of a congressional demand for information, the D.C. Circuit has stated that

the presidential communications privilege may be overcome where the “subpoenaed evidence is

demonstrably critical to the responsible fulfillment of the Committee’s functions.”80

If a court finds that the withheld material does not qualify under the presidential communication

privilege, then the executive may fall back on the less comprehensive deliberative process

privilege. A “deliberative process” claim may be viewed as a common law privilege available to

executive agencies that may be overcome by a showing of need by an investigatory body and, as

Espy noted, “disappears” when that body reasonably believes that government misconduct has

occurred.81 No court has delineated the precise weight afforded to common law privileges in the

face of a congressional investigation. In practice, the committee exercises its own discretion in

deciding whether to accept the assertion of common law privileges. For example, when faced

with a claim of attorney-client privilege, a common law privilege, a committee has “weigh[ed]

the legislative need for disclosure against any possible resulting injury.”82 The legal basis for

78

487 U.S. 654 (1988).

Id. at 691-92.

80

Senate Select Committee, 498 F.2d at 731.

81

Espy, 121 F.3d at 745-46. See also id. at 737-38 (“[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.’”).

82

International Uranium Cartel Vol. 1, H. Comm. on Interstate and Foreign Commerce, Subcomm. on Oversight and

Investigations, 95th Cong. 123 (1977). See CRS Report 95-464, Investigative Oversight: An Introduction to the Law,

Practice and Procedure of Congressional Inquiry, 43-55 (out of print; available from the authors); see also Glenn A.

Beard, Congress v. the Attorney-Client Privilege: A “Full and Frank Discussion,” 35 AMER. CRIM. L. REV. 119, 122(continued...)

79

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Congress’s practice in this area is based upon its implicit constitutional prerogative to investigate,

which has been long recognized by the Supreme Court as broad, and at its peak when the subject

is waste, fraud, abuse, or maladministration within a government department.83 Common law

privileges are not constitutionally based, but rather judge-made exceptions to the normal principle

of full disclosure in the adversary process.84 Thus, a demonstration of need by a jurisdictional

committee in most circumstances would appear to be sufficient to overcome common law

privileges. An opinion issued by the Legal Ethics Committee of the District of Columbia Bar in

1999 clearly acknowledges the long-standing congressional practice of exercising discretion over

acceptance of common law privileges like attorney-client privilege.85 The D.C. Bar opinion urges

attorneys to press every appropriate objection to a congressional subpoena that demands

disclosure of information subject to the attorney-client privilege until no further avenues of

appeal are available.86 However, it also allows the attorney to disclose the materials subject to

attorney-client privilege at the earliest point that he is put in legal jeopardy, such as being

threatened with a contempt of Congress action.

(...continued)

127 (1997) (“[C]ongressional witnesses are not legally entitled to the protection of the attorney-client privilege, and

investigating committees therefore have discretionary authority to respect or overrule such claims as they see fit.”);

Thomas Millett, The Applicability of Evidentiary Privileges for Confidential Communications Before Congress, 21

JOHN MARSHALL L. REV. 309 (1988).

83

Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 504 n.15. (1975); Watkins v. United States, 354 U.S.

178, 187 (1957); McGrain v. Daugherty, 273 U.S. 135, 177 (1927).

84

Westinghouse Electric Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423 (3d Cir. 1991).

85

Opinion No. 288, Compliance With Subpoena from Congressional Committee to Produce Lawyers’ Files Containing

Client Confidences or Secrets, Legal Ethics Committee, District of Columbia Bar, Feb. 16, 1999 (D.C Ethics

Committee Opinion).

86

A direct suit to enjoin a committee from enforcing a subpoena has been foreclosed by the Supreme Court’s decision

in Eastland, 421 U.S. at 501, but that ruling does not appear to foreclose an action against a “third party,” such as the

client’s attorney, to test the validity of the subpoena or the power of a committee to refuse to recognize the privilege.

See, e.g., AT&T II, 567 F. 2d 121 (entertaining an action by the Justice Department to enjoin AT&T from complying

with a subpoena to provide telephone records that might compromise national security matters).

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Appendix. Selected Congressional Investigations of

the Department of Justice, 1920-2012

This Appendix consists of brief summaries of 21 significant congressional investigations of the

Department of Justice that involved either open or closed investigations. In each case, the

Department agreed to supply documents pertaining to those investigations, including

prosecutorial decision-making memoranda and correspondence, or to make high ranking officials

and subordinate employees, such as line attorneys and investigative personnel, available for staff

interviews and testimony before committees. These investigations demonstrate that DOJ has

consistently been subjected to congressional oversight, which has examined misconduct in the

Justice Department and elsewhere. A number of these investigations spawned seminal Supreme

Court rulings that today provide the foundation for the generally broad congressional power of

inquiry discussed above. In most cases, the DOJ claimed that committee demands for documents

and testimony were precluded either by a constitutional or common law privilege or executive

branch policy. In many cases, investigating congressional committees were provided with

documents regarding closed cases that were considered to be “sensitive” materials.87 Several of

these inquiries appear to have led to important remedial legislation and the resignations88 and

convictions89 of several Attorneys General. While this appendix examines many notable instances

of congressional investigations of the DOJ, it is not an exhaustive list of such inquiries.

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.90 Attorney General Palmer, accompanied by his Special Assistant, J. Edgar

Hoover, during three days of testimony at Senate hearings discussed the details of numerous

deportation cases, including cases that were on appeal.91 In support of his testimony, Palmer

provided the Subcommittee with various Department memoranda and correspondence, including

Bureau of Investigation reports concerning the deportation cases.92 Among the materials provided

were the Department’s confidential instructions to the Bureau outlining the procedures to be

87

These sensitive materials 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. Additionally, investigating committees often obtained the testimony of subordinate DOJ employees, such as

line attorneys and FBI field agents, both formally and informally, on specific matters of DOJ’s operations.

88

Resignations have included Attorneys General Harry M. Daugherty (1924), J. Howard McGrath (1952), Alberto R.

Gonzales (2007).

89

Attorneys General Richard Kleindienst was convicted of perjury (1973) and John Mitchell was convicted of

obstruction of justice, conspiracy, and perjury (1975).

90

See Charges of Illegal Practices of the Department of Justice: Hearings Before a Subcomm. of the Senate Comm. on

the Judiciary, 66th Cong. (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 H. Comm. on Rules,

66th Cong. (1920) [hereinafter House Palmer Hearings].

91

Senate Palmer Hearings at 38-98, 421-86, 539-63; House Palmer Hearings at 3-209.

92

E.g., Senate Palmer Hearings at 431-43, 458-69, 472-76.

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followed in the surveillance and arrest of the suspected Communists,93 and a lengthy

“memorandum of comments and analysis” prepared by one of Palmer’s special assistants, which

responded to a district court opinion, pending appeal, that was critical of the Department’s actions

in these deportation cases.94

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,”95 in failing to prosecute

wrongdoers in the Department of the Interior, as well as other cases.96 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 where the

statute of limitations had not run out and prosecution was still possible.97

The committee also obtained access to DOJ 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 to 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,98 such cooperation apparently had not been

forthcoming.99

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.100 Witnesses from

the Department were still permitted to testify about the investigations that were the subject of the

reports and were even allowed to read from the reports at the hearings. 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.”101 For example, with the authorization of the new Attorney General, an

93

Id. at 12-14, 18-19.

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, 1451-56 (2003) (recounting historical context of

Palmer Raids).

95

McGrain v. Daugherty, 273 U.S. 135, 151 (1927).

96

Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United States: Hearings Before the S.

Select Comm. on Investigation of the Attorney General vols. 1-3, 68th Cong. (1924) [hereinafter Daugherty Hearings].

97

See id. at 1495-1503, 1529-30, 2295-96.

98

Id. at 1120.

99

Id. at 1078-79.

100

Id. at 1015-16, 1159-60.

101

Id. at 2389.

94

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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 written 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.102 A similar investigative report, concerning an inquiry into

the disappearance of large quantities of liquor under the control of the Department during

Harding Administration, was also produced.103

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. Following his detention by the Deputy Sergeant at Arms, Daugherty petitioned

in federal court for a writ of habeas corpus arguing that the Senate’s investigation had exceeded

its constitutional powers. The case ultimately reached the Supreme Court, where, in a landmark

decision,104 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.105

In another Teapot Dome case that reached the Supreme Court, Sinclair v. United States,106 a

different witness at the congressional hearings refused to answer questions, 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.”107 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.”108 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

102

Id. at 1495-1547.

Daugherty Hearings at 1790.

104

McGrain, 273 U.S. 135.

105

Id. at 177.

106

279 U.S. 263 (1929).

107

Id. at 290.

108

Id. at 295.

103

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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.109

Investigations of the DOJ During the 1950’s

In 1952, the Special Subcommittee to Investigate the Department of Justice of the House

Committee on the Judiciary was constituted. 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.110 Among the subjects of inquiry considered during

these hearings were the following.

1. Grand Jury Curbing

Extensive testimony was heard about a charge that the Department had attempted improperly to

curb a St. Louis grand jury inquiry 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.111 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,112 among the materials that the

subcommittee reviewed and included in the public record were transcripts of telephone

conversations between various DOJ attorneys concerning the grand jury investigation.113

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,”114 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.”115 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

109

Id.

Investigations of the Dep’t of Justice: Hearings Before the Special Subcomm. to Investigate the Dep’t of Justice of

the H. Comm. on the Judiciary, pt 1 & 2, 82nd Cong. (1952), part 1 & 2, 83rd Cong. (l953) [hereinafter 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 Cong. (1953) [hereinafter DOJ Investigation

Report].

111

DOJ Investigation Hearings at 753.

112

See id. at 1256-57, 1270-71.

113

Id. at 759-66. Other memoranda and documents from the Department were reviewed by the Subcommittee and kept

in its confidential files. For example, these documents included 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.

114

Id. at 754.

115

Id.

110

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attorneys to issue a report absolving the government of impropriety in its handling of tax fraud

cases.116 The present and former Department attorneys who testified were asked similar

questions,117 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.118 Later that

same year, the subcommittee examined similar charges of DOJ interference 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.119 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 information that would reveal

the actual testimony of witnesses appearing before them.120

2. Prosecution of Routine Cases

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. After the

replacement of McGrath by James P. McGranery, and the Administration’s concern about these

corruption reports, the subcommittee observed “a new and refreshing attitude of cooperation

which soon appeared at all levels in the Department of Justice.”121 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.”122

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.123 The

subcommittee was granted access to all of the documentation collected in the case, with the

exception of confidential FBI reports that the subcommittee had agreed not to seek. However,

certain communications from the FBI to the Department concerning the prosecution of the case

were provided.124

116

Id. at 766-808.

Id. at 808-94, 1064-1117, 1256-1318.

118

DOJ Investigation Hearings at 811.

119

Id. at 1653-1812.

120

Id. at 1579-80.

121

DOJ Investigation Report at 69.

122

Id.

123

DOJ Investigation Hearings at 895-964.

124

Id. at 897.

117

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3. New York City Police Brutality

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 (NYPD) 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 DOJ and the NYPD had entered into such an

agreement.125 Justice Department witnesses had also been instructed by the Attorney General not

to discuss the merits of any pending cases.126

Department witnesses included a former Attorney General, several present and former Assistant

Attorneys General, as well as other Department attorneys and FBI agents.127 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 DOJ memoranda and correspondence, as well as telephone transcripts of the

intradepartmental conversations of a U.S. Attorney.128

Investigation of Consent Decree Program

In 1957 and 1958, the Antitrust Subcommittee of the House Judiciary Committee conducted an

inquiry into the negotiation, enforcement, and competitive effect of consent decrees by the DOJ

Antitrust Division, with particular emphasis on consent decrees that had been recently entered

into with the oil-pipeline industry and AT&T.129 The subcommittee developed a 4,492-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.”130 The subcommittee’s chairman, requesting that the Attorney General disclose “all

files in the Department of Justice relating to the negotiations for, and signing of, a consent

decree” with AT&T.131 The DOJ unconditionally refused to grant the subcommittee access to any

of these documents. Deputy Attorney General William P. Rogers asserted two grounds to support

the Department’s refusal to cooperate. First, Rogers maintained that since the files contained

information voluntarily submitted by AT&T in the course of consent decree negotiations,

125

DOJ Investigation Hearings at 26.

Id.

127

Id. at 25-294.

128

Id. at 62-63, 233-34, 239-41, 258-59, 262, 269-73.

129

See Consent Degree Program of the Department of Justice: Hearings before the Antitrust Subcomm. (Subcomm. No.

5) of the H. Comm. on the Judiciary, pt. 1-2, 85th Cong. (1957-58) [hereinafter Consent Decree Hearings]; REPORT OF

TH

THE ANTITRUST SUBCOMM. (SUBCOMM. NO. 5), OF THE H. COMM. ON THE JUDICIARY, 86 CONG., REPORT ON CONSENT

DECREE PROGRAM OF THE DEPT. OF JUSTICE (Comm. Print 1959) [hereinafter Consent Decree Report].

130

Consent Decree Report at xiii.

131

Consent Decree Hearings at 1674.

126

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disclosing the files to the subcommittee “would violate the confidential nature of settlement

negotiations and, in the process, discourage defendants, present and future, from entering into

such negotiations.”132 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.”133

Second, Rogers argued that the “essential process of full and flexible exchange” of ideas when

crafting memoranda and recommendations would 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.”134 Rogers stated that the DOJ’s refusal to comply was 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.135

The subcommittee asserted in its final report 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.”136 The subcommittee further concluded that such

withholding had “materially hampered the committee’s investigation.”137 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.138

The Department was, however, somewhat more forthcoming in permitting attorneys to testify

about the AT&T consent decree. For example, the head of the Antitrust Division informed two

Division attorneys, who had dissented from the decision to enter into the AT&T consent decree

and were called to testify, 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.”139

These two attorneys later testified before the subcommittee about those negotiations, including

their reasons for differing with the Department’s decision to enter into the consent decree.140

132

Id. at 1674-75.

Id. at 3706.

134

Id. at 1675.

135

Id.

136

Consent Decree Report at 42.

137

Id.

138

Id.

139

Consent Decree Hearings at 3647.

140

Id. at 3711-44.

133

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Cointelpro and Related Investigations of FBI-DOJ Misconduct

Between 1974 and 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.141 A Senate Select

Committee examined 800 witnesses: 50 in public session, 250 in executive sessions, and the

balance in interviews.142 A number of those providing public testimony were present and former

FBI and DOJ officials.

The Select Committee estimated it had obtained approximately 110,000 pages of documents from

these intelligence agencies and other sources, with still more being preliminarily reviewed at the

agencies.143 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 were 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.”144 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.”145

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 DOJ and FBI

officials testified, including Attorneys General Edward Levi and Griffin Bell and FBI Director

Clarence Kelly. At the request of the chairman of the Judiciary Committee, the General

Accounting Office (GAO) also began a review of FBI operations in this area in 1974.146 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 899 cases from those offices that

year to review.147

The FBI agreed to GAO’s proposal to have FBI agents prepare a summary of each selected cases’

file. These summaries described the information that led to opening the investigation, the

methods and sources used to collect 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

141

See S. REP. NO. 755, Books 1-3, 94th Cong. (1976) [hereinafter Senate Intelligence Report]; Intelligence Activities,

Senate Resolution 21: Hearings Before the Senate Select Comm. to Study Governmental Operations with Respect to

Intelligence Activities, vols. 1-6, 94th Cong. (1975) [hereinafter Senate Intelligence Hearings]; FBI Oversight: Hearings

Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. of the Judiciary, pt. 1-3, 94th Cong. (19751976), pt. 1-2, 95th Cong. (1978) [hereinafter FBI Oversight Hearings].

142

Senate Intelligence Report, Book 2, at ix n.7.

143

Id.

144

Senate Intelligence Hearings at iv n.1.

145

Senate Intelligence Report, Book 2, ix n. 7.

146

FBI Oversight Hearings pt. 2 at 1-2.

147

Id. at 3. The review was ultimately reduced to 797 cases.

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interviews with the FBI agents involved with the cases, as well as the agents who prepared the

summaries.148

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 obtained FBI case summaries and then conducted

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.149

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.150 During the course of the hearings, testimony and evidence were

received in closed session regarding open cases in which indictments were pending and criminal

proceedings were in progress. 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.151

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.”152

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.

148

Id. at 3-4.

FBI Oversight Hearings pt. 1 at 103.

150

See White Collar Crime in the Oil Industry: Joint Hearings before the Subcomm. on Energy and Power of the H.

Comm. on Interstate and Foreign Commerce and the Subcomm. on Crime of the H. Comm. on the Judiciary, 96th Cong.

(1979) [hereinafter White Collar Crime Hearings].

151

White Collar Crime Hearings at 2.

152

Id. at 134.

149

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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.153

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 that 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.154 A significant portion of this inquiry concerned the Department’s

handling of its investigation of Billy Carter, in particular whether Attorney General Benjamin R.

Civiletti acted improperly by withholding certain intelligence information about Billy Carter’s

contacts with Libya from the Criminal Division attorneys 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

White House information, DOJ made no attempt to limit the subcommittee’s access to the

attorneys involved with the Billy Carter case. The subcommittee heard testimony from several

representatives of the Department, including Attorney General Civiletti, and the Assistant

Attorney General in charge of the Criminal Division, and three of his assistants. These witnesses

testified about various topics, including the general structure of decision making in the

Department, the nature of the Billy Carter investigation, the Attorney General’s failure to

communicate intelligence information concerning Billy Carter to the Criminal Division attorneys

immediately, 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.155

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.156

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.157 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 and the Intelligence Committee, and some of the subcommittee

documents were later used by the subcommittee in executive session.

153

Id. at 156-57.

See Inquiry into the Matter of Billy Carter and Libya: Hearings Before the Subcomm. to Investigate the Activities of

Individuals Representing the Interests of Foreign Governments of the Senate Comm. on the Judiciary, vols. 1-3, 96th

Cong. (1980) [hereinafter Billy Carter Hearings]; Inquiry into the Matter of Billy Carter and Libya, S. REP. NO. 961015 (1980) [hereinafter Billy Carter Report].

155

Billy Carter Hearings at 116-30, 683-1153.

156

Id. at 1741-42.

157

Id. at 755-978.

154

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Undercover Law Enforcement Activities (ABSCAM)

In 1982, the Senate established a select committee to study the undercover law enforcement

activities of the FBI and other components of the Department of Justice.158 Representatives from

the Department, including FBI Director William Webster, testified generally about the history of

the DOJ’s undercover operations, 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.159

In addition to the public testimony from Department witnesses, committee staff conducted

interviews with a number of present and former Department attorneys and FBI agents.160 Among

those testifying or interviewed were several present and former members of the Department’s

Brooklyn Organized Crime Strike Force. The Department told the committee that it “does not

normally permit Strike Force attorneys to testify before congressional committees [and has]

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.”161 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.”162

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.”163 In all, the

committee reviewed more than 20,000 pages of Abscam documents, as well as video and audio

tapes and tape transcripts,164 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 the Federal Rules of

Criminal Procedure165 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.

158

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. (1982) [hereinafter Abscam Hearings];

Final Report of the Senate Select Comm. to Study Undercover Activities of Components of the Department of Justice,

S. REP. NO. 97-682 (1982) [hereinafter Abscam Report].

159

Abscam Hearings at 10-85, 153-226, 255-559, 895-924, 1031-70.

160

Abscam Report at 8-10.

161

Id. at 486.

162

Id.

163

Id. at v.

164

Id. at 9.

165

Federal Rule of Criminal Procedure 6(e) bars disclosure of a “matter occurring before the grand jury” except, inter

alia, by court order. FED. R. CRIM. P. 6(e).

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However, 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.166 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 withheld

prosecutorial memoranda and 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.167

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.168 The committee’s chairman had also

written to the Attorney General requesting access to that report.169 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 nor removed from the Department.170

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 him to release a copy.171 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.172 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.173

A similar investigation was conducted by the House Judiciary Subcommittee on Civil and

Constitutional Rights, which held a total of 21 hearings over a period of four years.174 The

166

See generally Abscam Report at v, 472-84.

Id. at v.

168

Abscam Hearings at 514.

169

Abscam Report at 485.

170

Id. at 494.

171

Id. at 498.

172

Id. at 501.

173

Id. at v.

174

See FBI Undercover Activities, Authorization; and H.R. 3232: Oversight Hearings Before the Subcomm. on Civil

and Constitutional Rights of the H. Comm. on the Judiciary, 98th Cong. (1983); FBI Undercover Operations: Hearings

Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 97th Cong. (1981); FBI

Oversight: Hearings Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 96th

(continued...)

167

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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 investigating Abscam.175

Investigation of Withholding of EPA Documents

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.176 The committees requested documents relating to a

number of on-going enforcement actions 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.177 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 part of 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.178 The DOJ’s first attempted to obtain 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 (discussed in depth in the next section), but

failed.179 Following a brief period of negotiation with the Public Works and Transportation

Committee, DOJ reached an agreement for release of the documents. The documents were

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.180

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. After a threat to issue new subpoenas

and pursue a further contempt citation, negotiations were resumed. The result was an agreement

(...continued)

Cong. (1979-80).

175

REPORT OF THE SUBCOMM. ON CIVIL AND CONST. RIGHTS OF THE H. COMM. ON THE JUDICIARY, FBI UNDERCOVER

OPERATIONS, 98th Cong. 91-93 (Comm. Print 1984).

176

See H. REP. No. 97-968 (1982) [hereinafter Gorsuch Burford House Contempt Report].

177

Id. at 13-20.

178

See 8 Op. O.L.C. 101, 107 (1984) [hereinafter 1984 OLC Opinion].

179

See House of Representatives, 556 F. Supp. 150; see also 2 U.S.C. §§192, 194.

180

See Memorandum of Understanding Between the Committee on Public Works and Transportation and the

Department of Justice, Concerning Documents Subpoenaed from the Environmental Protection Agency, February 18,

1983; see also H. REP. No. 98-323, at 18-20 (1983).

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that all documents covered by the initial subpoena would be delivered to the subcommittee. There

were to be no briefings and no multi-stage process of redacted documents leading to unredacted

documents.181 The subcommittee agreed to handle all “enforcement sensitive” documents in

executive session, giving them confidential treatment.182 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.183 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. If they did

not concur, the subcommittee could vote on the release of documents and their subsequent use in

a public session. Staff access was to be decided by the chairman and ranking minority Member.

The agreement was signed by Chairman Dingell, Ranking Member James T. Broyhill, and White

House Counsel Fred F. Fielding on March 9, 1983.184

Burford II: The Investigation of the Claim of Presidential Privilege

After the House voted to hold Burford in contempt of Congress, the Department, in the name of

the United States, filed an unprecedented legal action against the House. The DOJ attempted to

obtain to obtain a judicial declaration that Burford had acted lawfully in refusing to comply with

the subpoena. Ultimately, the lawsuit was dismissed,185 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 the EPA, had

made the decision to persuade the President to assert executive privilege; whether the Department

had directed the U.S. Attorney for the District of Columbia not to present the Burford contempt

citation 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

1985.186

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

181

See EPA Document Agreement, CQ WEEKLY REPORT, March 26, 1983 at 685.

Id.

183

Id.

184

Id.

185

See generally House of Representatives, 556 F. Supp. 150.

186

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. REP. 99-435 (1985)

[hereinafter EPA Withholding Report].

182

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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.187

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,188 as well as

materially “false and misleading” testimony before the committee by the head of the

Department’s Office of Legal Counsel.189

The committee’s initial request for documentation was contained in a February 1983 letter from

its chairman, Representative Peter Rodino, to Attorney General William French Smith. The

committee requested that the Department “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.”190 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 U.S. Attorney not to present the Burford contempt to a grand jury.

At first, the Department provided only publicly available documents in response to this and other

document requests from the committee.191 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.192 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.193

In July 1983, the committee chairman wrote to the Attorney General requesting copies of 105

documents that committee staff identified during review as particularly important to the

committee’s inquiry.194 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 Department’s decision to withhold EPA documents.195 The

committee finally received 105 documents in July 1984, a full year after it had initially requested

187

EPA Withholding Report at 1163; see also id. at 1234-38.

Id. at 1164.

189

Id. at 1164-65, 1191-1231.

190

Id. at 1167, 1182-83.

191

Id. at 1184.

192

Id. at 1168, 1233.

193

EPA Withholding Report at 1168.

194

Id. at 1169.

195

Id. at 1172.

188

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access. At that time, the committee also obtained the written notes and a number of other

documents that had been earlier withheld.196

There was also disagreement about the access committee staff would have to interview

Department employees. 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 Attorneys general, under this agreement.197

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 about the origins of the criminal investigation of former EPA Assistant

Administrator Rita Lavelle. The committee needed these documents 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.198

The Department at first refused to provide the committee with documents relating to its Lavelle

investigation, citing its withholding as “[c]onsistent with the longstanding practice of the

Department not to provide access to active criminal files.”199 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.”200

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.201

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.”202 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 that included 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; a certification that it contained no evidence of

misconduct; and a certification that the Department intended to recommend the President assert

196

Id. at 1173.

Id. at 1174-76.

198

Id. at 1176-77, 1263-64.

199

EPA Withholding Report at 1265.

200

Id.

201

Id. at 1266.

202

Id.

197

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executive privilege over it.203 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.204 In response, more than

three months after the committee’s initial request, the Department produced those two categories

of materials.205

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, an American stock brokerage firm that pled guilty to 2,000 felony counts.206 As

part of this investigation, the subcommittee sought letters to Hutton employees promising not to

prosecute, draft indictments, and internal DOJ communications regarding proposals discussing

the disposition of charges against Hutton employees.207 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).208 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.”209

The Justice Department also recommended that the subcommittee go to court to obtain access to

all of the information, including that which could not be released under the Federal Rules of

Criminal Procedure Rule 6(e).210 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 did express “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 that “these money management techniques violated numerous federal

203

Id. at 1268-69.

Id. at 1269-70.

205

EPA Withholding Report at 1270.

206

See E.F. HUTTON MAIL AND WIRE FRAUD, REPORT OF THE H. SUBCOMM. ON CRIME, H. COMM. ON THE JUDICIARY, 99th

Cong. (Comm. Print, Serial No. 13, December 1986) [hereinafter Hutton Report].

207

Hutton Report at 1119.

208

610 F.2d 202, 216-17 (5th Cir. 1982) (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”).

209

Hutton Report at 1217.

210

Id. at 1218. See FED. R. CRIM. P. 6(e).

204

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criminal statutes and, therefore, prosecution is appropriate and recommended.”211 The

Subcommittee was also provided with a series of memoranda prepared by a line attorney, which

analyzed the defenses that 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 to the investigating congressional committee by DOJ.212

Iran-Contra

In the late 1980s, an intense congressional investigation focused, in part, on Attorney General

Edwin Meese’s conduct during the Iran-Contra scandal. The House and Senate created their IranContra committees in January 1987. The Iran-Contra Committees demanded the production of the

Justice Department’s files. Assistant Attorney General John Bolton responded to this request, on

behalf of Attorney General Meese, by attempting to withhold the documents by asserting that

disclosure would prejudice the pending or anticipated litigation by the Independent Counsel. The

Iran-Contra Committees disputed that contention, required the production 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 that examined the

National Security Council (NSC) staff in late November 1987. The Iran-Contra Committees

concluded that this inquiry had the effect of forewarning the NSC staff to shred their records and

fix upon an agreed false story, ending any opportunity to uncover the obscured aspects of the

scandal. The congressional investigation provided documentary evidence regarding

incompetence, at best, by the Attorney General’s team during the Meese Inquiry. The

congressional report documented this incompetence, which included the Attorney General taking

no notes and remembering no details of his crucial interviews of CIA Director Casey and others;

the DOJ inquiry taking no steps to secure the remaining unshredded documents; and the Justice

Department team allowing the documents to be shredded while the team was in the room.

Furthermore, the inquiry team excluded the Criminal Division and the FBI from the case until it

was too late.213

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 DOJ-negotiated plea bargain

settlement in the investigation and prosecution of Rockwell International Corporation. Rockwell

was accused of committing environmental crimes in its capacity as manager and operating

contractor of the Department of Energy’s (DOE) Rocky Flats nuclear weapons facility.214

211

Hutton Report at 1328.

See id. at 1329-35.

213

See Report of the Congressional Committees Investigating the Iran-Contra Affair, H. REP. No. 433 & S. REP. No.

216, 100th Cong. 310, 317, 314, 317-18, 647 (1987).

214

See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Hearings Before the Subcomm. on

Investigations and Oversight of the H. Comm. on Science, Space and Technology, vols. I and II, 102nd Cong. (1992)

[hereinafter 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, Meetings Before

(continued...)

212

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The settlement was the culmination of a five-year investigation, conducted by a joint government

task force involving the FBI, the DOJ, the Environmental Protection Agency (EPA), the EPA’s

National Enforcement Investigation Centers, and the DOE Inspector General. The subcommittee

was concerned by several details, including with the size of the settlement fine 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 U.S. 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; it also

received voluminous FBI field investigative reports, interview summaries, and documents

submitted to the grand jury not subject to Rule 6(e).215

At one point in the proceedings all the witnesses who were under subpoena, upon written

instructions from the Acting Assistant Attorney General for the 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 on these matters 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 George 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 information 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 DOJ had to issue

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 also to apply to all Department witnesses, including FBI

personnel, who might testify in the future. Additionally, 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. Witnesses were to be interviewed by staff

under oath. Finally, 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.216

(...continued)

the Subcomm. on Investigations and Oversight of the H. Comm. on Science, Space, and Technology, 102nd Cong. No.

146 (1992) [hereinafter Subpoena Meetings].

215

Rocky Flats Hearing, vol. I, at 389-1009, 1111-1251.

216

Id. at 9-10, 25-31, 1673-1737; Subpoena Hearings at 1-3, 82-86, 143-51.

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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 DOJ on the

effectiveness of the EPA’s 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 DOJ resistance. The

investigation focused on allegations of mismanagement of the Environmental Crimes Section

(ECS), a division of DOJ charged with environmental prosecution responsibilities. It also

examined DOJ’s decision to centralize control of environmental prosecution in ECS, in

Washington, while simultaneously decentralizing other areas of prosecutorial contrail and how

this impacted the relationship between ECS and U.S. Attorney’s offices.

The Subcommittee’s investigation was delayed for months by DOJ’s refusal to cooperate with

requests for interviews and documents. 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 U.S. Attorneys. DOJ officials initially refused, arguing that allowing access would have

a chilling effect on Department officials and noting the Department’s historic reluctance to

comply with such requests. Instead, it offered 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 produce the documents voluntarily resulted in issuance of document subpoenas in March 1994

to 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. Other

documents withheld involved internal DOJ communications about 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.

As a result of the investigation, the policy of centralizing control of environmental prosecutions

in Washington, DC was reversed, and control was returned to the U.S. Attorney’s offices.

Additionally, the ECS top management was replaced.217

217

See DAMAGING DISARRAY: ORGANIZATIONAL BREAKDOWN AND REFORM IN THE JUSTICE DEPARTMENT’S

ENVIRONMENTAL CRIMES PROGRAM, A STAFF REPORT PREPARED FOR THE USE OF THE SUBCOMM. ON OVERSIGHT AND

(continued...)

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Ruby Ridge

The next 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,

previously 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

DOJ 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 DOJ, FBI, and Treasury officials, line attorneys and

agents, obtained various internal reports from these agencies,218 and issued a final report.219

The subcommittee’s hearings revealed that the federal agencies involved conducted at least eight

internal investigations into charges of misconduct at Ruby Ridge, none of which had ever been

publically released.220 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 agreed-upon conditions regarding their public release. The most important of those

documents was the Report of the Ruby Ridge Task Force.221 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 U.S. Marshal222 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 fired 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 the agent’s actions were

(...continued)

INVESTIGATIONS OF THE H. COMM. ON ENERGY AND COMMERCE, 103rd Cong. 1-4, 10-40 (Comm. Print 1994).

218

The Federal Raid on Ruby Ridge, Idaho: Hearings before the Senate Subcommittee on Terrorism, Technology,

Government Information, Committee on the Judiciary, 104th Cong. (1995) [hereinafter Ruby Ridge Hearings].

219

Ruby Ridge: Report of the Subcommittee on Terrorism, Technology and Government Information of the Senate

Committee on the Judiciary [hereinafter 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.

220

Ruby Ridge Report at 1; Ruby Ridge Hearings at 722, 954, 961.

221

See generally Ruby Ridge Report.

222

Weaver was convicted for failure to appear for a trial and for commission of an offense while on release.

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not unreasonable considering the totality of the circumstances. The Deputy Attorney General

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.223

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 the subjects 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. The following two investigations 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 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, an Arkansas native 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, believing there was insufficient probable cause. The

committee subpoenaed four FBI special agents who testified about their efforts to procure a

search warrant, 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.224

223

See, e.g., Ruby Ridge Hearings at 719-37, 941-85; 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.”); see also id. at 61-69, 115, 12223, 134-35, 139, 145-49; David Johnston, Idaho Siege Report Says F.B.I. Agents Violated Procedure, N.Y. TIMES,

December 13, 1994, at A1.

224

See The Justice Department’s Handling of the Yah Lin “Charlie” Trie Case: Hearing before the Senate Comm. on

Governmental Affairs, 106th Cong. 3-4, 14-63, 105-33 (1999).

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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 the appearance of a political conflict

of interest.225 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, citing longstanding DOJ policy prohibiting disclosure of

deliberative material in open criminal cases to Congress and concerns about 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 formal 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.226 However, the

contempt report was not taken up on the House floor prior to the end of the 105th Congress.

On May 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.227 The Attorney General

still refused to release the memos but offered to allow committee staff to review unredacted

copies without taking any notes. Negotiations continued while the committee began review under

the DOJ conditions. Ultimately, an accommodation was reached in which all subpoenaed

memoranda were to be produced to the committee. The documents would be kept in a secure

facility with access restricted to a limited number of staff. The committee agreed to give DOJ

notice in advance if it intended to release the documents and to allow DOJ to argue its case

against disclosure. The committee notified the Attorney General of its intent to release the

documents at a June 6 hearing.228 The memos were released to the public on that date by

unanimous consent.229

225

See, e.g., Roberto Suro, FBI to Brief 2 Lawmakers on Details of Freeh’s Memo; Document on Independent Counsel

Recommendation Won’t Be Shared in Fund-Raising Probe, WASH. POST, December 18, 1997, at A04; Robert Suro,

Freeh’s Tightrope Act Plays Well on the Hill; FBI Chief Retains Equilibrium, Displays Political Skill Despite Pressure

From Many Sides, WASH. POST, December 11, 1997, at A14; Editorial Desk, Mr. Freeh’s Truth Grenade, N.Y. TIMES,

December 3, 1997, at A34; Francis X. Clines, The Attorney General’s Decision: The Dissenter; Rebuffed, FBI Chief

Skips Reno’s Statement on Counsel, N.Y. TIMES, December 3, 1997, at A30.

226

See Contempt of Congress, Report of the Comm. on Government Reform and Oversight on the Refusal of Attorney

General Janet Reno to Produce Documents Subpoenaed by the Government Reform and Oversight Comm., H.Rept.

105-728 (1998).

227

Justice Department’s Implementation of the Independent Counsel Act, Hearing before the H. Comm. on Government

Reform, 106th Cong., No. 106-231, June 6, 2000, at 5 [hereinafter Independent Counsel Hearing]; see, e.g., George

Stuteville, Burton’s Inquiry Puts Heat on Gore; Justice Memos on Alleged Fund-Raising Abuses Driving Probe,

Congressman Says, THE INDIANAPOLIS STAR, June 18, 2000, at 01A.

228

See Independent Counsel Hearing at 5.

229

See id. See, e.g., Evidence Ignored in Funds Probe? Report Urged Look at Clinton, Gore, THE ATLANTA JOURNAL

AND CONSTITUTION, June 8, 2000, at 12A; David Johnston, Papers Reveal Bitter Battle over Fund-Raising Inquiry,

N.Y. TIMES, June 7, 2000, A26.

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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 extending back to the mid1960s. After continued refusal to cooperate with requests for documents, the committee issued a

subpoena on September 6, 2001 for a number of prosecution and declination memoranda about

DOJ’s investigation of the handling of confidential informants in New England.230 DOJ officials

made it clear that they would not comply. In December 2001, the committee renewed its request

for the subpoenaed documents after a hearing on the request scheduled for September 13, 2001,

was postponed because of the September 11 terrorist attacks.231 That subpoena sought, among

other material, Justice Department documents relating to alleged law enforcement corruption in

the FBI’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.232

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.”233 Additionally, the executive branch argued 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.”234 In defending the assertion of the privilege, the Justice Department claimed

it was following a historical policy of withholding deliberative prosecutorial documents from

Congress in both open and closed civil and criminal cases.235 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 room 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 brightline policy, nor did we intend to articulate any such policy.”236 However, he continued, since the

documents “sought a very narrow and particularly sensitive category of deliberative matters” and

230

Everything Secret Degenerates: The FBI’s Use of Murderers As Informants, H.Rept. 108-414, 129 (2004)

[hereinafter Everything Secret].

231

Id. at 130.

232

Id. at 2-9.

233

Memorandum for the Attorney General from President George W. Bush, Congressional Subpoena for Executive

Branch Documents, December 12, 2001, available at http://www.gpo.gov/fdsys/pkg/WCPD-2001-12-17/html/WCPD2001-12-17-Pg1783.htm.

234

Id.

235

See LOUIS FISHER, THE POLITICS OF EXECUTIVE PRIVILEGE, 108 (2004) [hereinafter FISHER].

236

Letter from Alberto R. Gonzales, Counsel to the President, to Rep. Dan Burton, chairman of H. Government Reform

Comm., Jan. 10, 2002, at 1.

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“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.237 The documents continued to be

withheld until a February 6, 2002 hearing, when the committee heard expert testimony describing

over 30 specific instances since 1920 in which the DOJ disclosed deliberative documents to

Congress. These materials included prosecutorial memoranda for both open and closed cases,

testimony of subordinate Department employees, such as line attorneys, FBI field agents and U.S.

Attorneys, and detailed testimony about specific instances of DOJ’s failure to prosecute

meritorious cases. In all instances, investigating committees also received documents from open

and closed case files, including 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.238 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.239

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 executive 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.240

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 U.S. Attorneys in 2006; The committees sought an

237

See FISHER, supra note 238.

Everything Secret at 2-9, 121-134; Investigation Into Allegations of Justice Department Misconduct In New

England-Volume I, Hearings Before the H. Comm. on Government Reform, 107th Cong. 520-556, 562-604 (May 3,

December 13, 2001; Feb. 6, 2002). See, e.g., 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); United States v. Flemmi, 195 F. Supp. 2d 243, 249-50 (D. Mass. 2001); Charles Tiefer, President Bush’s First

Executive Privilege Claim: The FBI/Boston Investigation, 33 PRES. STUD. Q. 201 (2003).

239

Shelly Murphy & Brian R. Ballou, FBI Condemned in Landmark Ruling, BOSTON GLOBE, July 27, 2007, at A3;

Robert Barrens & Paul Lewis, FBI Must Pay $102 Million In Mob Case, WASH. POST, July 27, 2007, at A3.

240

See Everything Secret at 3, 134-135.

238

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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 made available former and current

Department officials and employees for closed door interviews and testimony at hearings. The

House subcommittee held five days of hearings,241 while the full committee held two days of

hearings.242 DOJ witnesses included, among others: the Attorney General, the Deputy Attorney

General, the removed U.S. 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 witness testimony and records produced by the 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 by offering the

committees limited availability to some documents and limited access to witnesses in closed

sessions, but without any transcripts of the interviews and with limited permissible questions. 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 what the initial

review of documents might reveal.

After failing 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 Mr. Bolten would not produce any documents on the basis of a

presidential claim of executive privilege and that no privilege logs would be provided.

Furthermore, he announced the Ms. Miers had been directed not to appear at the hearing at all

based on the notion that the privilege assertion cloaked a witness with “absolute immunity” from

even appearing in response to a subpoena.243 On the return dates of the subpoenas, Ms. Miers did

not appear and Mr. Bolten did not produce the subpoenaed documents.

241

Restoring Checks and Balances in the Confirmation Process of United States Attorneys, Hearing Before the

Subcomm. on Commercial and Administrative Law, H. Committee on the Judiciary, 110th Cong., March 6, 2007;

Ensuring Executive Branch Accountability, Hearing Before the Subcomm. on Commercial and Administrative Law, H.

Comm. on the Judiciary, 110th Cong., March 29, 2007; Continuing Investigation into the U.S. Attorneys Controversy,

Hearing Before the Subcomm. on Commercial and Administrative Law, H. Comm. on the Judiciary, 110th Cong., May

3, 2007; Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part II), Hearing Before

the Subcomm. on Commercial and Administrative Law, H. Comm. on the Judiciary, 110th Cong., June 21, 2007;

Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part III), Hearing Before the

Subcomm. on Commercial and Administrative Law, H. Comm. on the Judiciary, 110th Cong., July 12, 2007.

242

United States Department of Justice, Hearing Before the H. Comm. on the Judiciary, 110th Cong., May 10, 2007;

Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part I), Hearing Before the H.

Comm. on the Judiciary, 110th Cong., May 23, 2007.

243

Letter from Fred F. Fielding, Counsel to the President, to Chairman Leahy and Chairman Conyers, June 28, 2007,

available at http://www.judiciary.senate.gov/resources/documents/upload/110thCongress-2007Documents.pdf at 108(continued...)

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On July 12, the House subcommittee voted 7-5 to hold Ms. Miers in contempt of Congress, and

on July 19, Mr. Bolten was held in contempt by the subcommittee by a 7-3 vote. On July 25, both

Ms. Miers and Mr. Bolten were held in contempt by the full House Judiciary Committee by a vote

of 21-17.244 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 223-32.245 The House passed one

resolution, H.Res. 982 that incorporated two other resolutions, H.Res. 979 and 982. 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.”

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.246 With

criminal enforcement foreclosed, the Committee filed a civil action on March 10, 2008 seeking a

declaratory judgment and injunctive relief to enforce the subpoena. On July 31, 2008, the District

Court granted the Committee’s motion for partial summary judgment, declaring that “Ms. Miers

is not absolutely immune from congressional process”247 and that “she must appear before the

Committee to provide testimony” when faced with a duly issued congressional subpoena.248 It

ordered Ms. Miers and Mr. Bolten to “produce all non-privileged documents required by the

applicable subpoenas and... 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.”249

CIA Agent Identity Leak

In July 2003, Robert D. Novak wrote a column revealing the identity of Valerie Plame Wilson—a

covert CIA agent. His column appeared shortly after Ms. Plame’s husband, former U.S.

ambassador Joseph Wilson, criticized the Bush Administration for claiming that Saddam Hussein

bought uranium from Niger. This sequence sparked an FBI investigation into whether White

House officials had illegally disclosed Ms. Plame’s identity in retaliation for Mr. Wilson’s

remarks. On March 6, 2007, I. Lewis “Scooter” Libby, Vice President Cheney’s Chief of Staff,

was convicted of perjury, obstruction of justice, and making a false statement to federal

investigators concerning the leak. During the criminal investigation, Special Counsel Patrick J.

(...continued)

111.

244

Meeting to Consider: a Resolution and Report Recommending to the House of Representatives that Former White

House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten be Cited for Contempt of Congress,

Committee on the Judiciary, U.S. House of Representatives, July 25, 2007, records available at

http://judiciary.house.gov/hearings/July2007/hear_072507.html.

245

Roll call vote available at http://www.cq.com/doc/floorvote-208660000.

246

Letter from Michael B. Mukasey, Attorney General, to Speaker Nancy Pelosi, Feb. 29, 2008, available at

http://legaltimes.typepad.com/files/mukasey_letter.pdf.

247

Miers, 558 F. Supp. 2d at 98.

248

Id. at 106.

249

Id. at 108. See H.Rept. 110-423 (2007).

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Fitzgerald interviewed Vice President Dick Cheney, President Bush, and other senior White

House officials about the incident. Mr. Libby’s trial raised a number of questions concerning their

role in the affair. Following its conclusion, the House Oversight and Government Reform

Committee (the “Committee”) launched an investigation into the disclosure, aiming to discover:

“(1) How did such a serious violation of our national security occur? (2) Did the White House

take the appropriate investigative and disciplinary steps after the breach occurred? And (3) what

changes in White House procedures are necessary to prevent future violations of our national

security from occurring?”250

On July 16, 2007, Henry Waxman, Chairman of the Committee, requested that Mr. Fitzgerald

produce all information from his investigation relevant to answering these questions.251 On

January 18, 2008, the Department of Justice permitted the review of redacted interviews with

White House staff, but argued that separation of powers and confidentialit

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