# Congressional Investigations of the Department of Justice, 1920-2007: History, Law, and Practice

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URL: https://www.frixlaw.com/law-library/documents/crs%3ARL34197

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** August 20, 2008
- **Citation:** RL34197

## Text

Order Code RL34197

Congressional Investigations of the
Department of Justice, 1920-2007:
History, Law, and Practice

Updated August 20, 2008

Morton Rosenberg
Specialist in American Public Law
American Law Division

Congressional Investigations of the Department of
Justice, 1920-2007: History, Law, and Practice
Summary
Legislative oversight is most commonly conducted through congressional
budget, authorization, appropriations, confirmation, and investigative processes, and,
in rare instances, through impeachment. But the adversarial, often confrontational,
and sometimes high profile nature of congressional investigations sets it apart from
the more routine, accommodative facets of the oversight process experienced in
authorization, appropriations, or confirmation exercises. While all aspects of
legislative oversight share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the implementation of
public policy, and disclosing to the public how its government is performing, the
inquisitorial process also sustains and vindicates Congress’s role in our constitutional
scheme of separated powers and checks and balances. The rich history of
congressional investigations from the failed St. Clair expedition in 1792 through
Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current ongoing inquiries
into the removal and replacement of United States Attorneys, has established, in law
and practice, the nature and contours of congressional prerogatives necessary to
maintain the integrity of the legislative role in that constitutional scheme.
A review of the historical experience and legal rulings pertinent to congressional
access to information regarding the law enforcement activities of the Department of
Justice indicates that in the last 85 years Congress has consistently sought and
obtained deliberative prosecutorial memoranda, and the testimony of line attorneys,
FBI field agents and other subordinate agency employees regarding the conduct of
open and closed cases in the course of innumerable investigations of Department of
Justice activities. These investigations have encompassed virtually every component
of the DOJ and its officials and employees, from the Attorney General down to
subordinate level personnel. It appears that the fact that an agency, such as the
Justice Department, has determined for its own internal purposes that a particular
item should not be disclosed, or that the information sought should come from one
agency source rather than another, does not prevent either House of Congress, or its
committees or subcommittees, from obtaining and publishing information it
considers essential for the proper performance of its constitutional functions. There
appears to be no court precedent that imposes a threshold burden on committees to
demonstrate, for example, a “substantial reason to believe wrongdoing occurred”
before a jurisdictional committee may seek disclosure with respect to the conduct of
specific open and closed criminal and civil cases. Indeed, the case law is quite to the
contrary. An inquiring committee need only show that the information sought is
within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate
legislative function, and is pertinent to the area of concern. Moreover, there have
been only three formal presidential assertions of executive privilege with respect to
withholding of internal DOJ documents in the face of a congressional subpoena.
Those claims were ultimately abandoned, and it appears under the most recent
Supreme Court and appellate court rulings pertinent to the scope of the presidential
communications privilege and the “Take Care” clause of the Constitution, that such
a claim would be open to serious question as to its validity in the context of a
congressional probe of DOJ internal deliberative actions.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Legal Basis for Oversight . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Illustrative Investigations and Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Teapot Dome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Burford I: The Superfund Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Burford II: The Investigation of the Claim of Presidential Privilege . . . . . . . 9
Rocky Flats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Corruption in the FBI’s Boston Regional Office . . . . . . . . . . . . . . . . . . . . . 14
Ruby Ridge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Assessment of DOJ’s Opposition to Congressional Access to Information in
Open and Closed Litigation Files and to Internal Deliberative Materials . . 18
The Department’s Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Assessment of the Department’s Position . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Concerns with Pre-Trial Publicity, Due Process, and Concurrent
Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Concerns Over Revelations of Government Strategies or Methods
or Weaknesses of Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3. The Claim That Prosecution Is a Core Presidential Power Subject
to Assertions of Executive Privilege . . . . . . . . . . . . . . . . . . . . . . 22
4. The Claim of Deliberative Process Privilege . . . . . . . . . . . . . . . . . . 32
Concluding Observations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Teapot Dome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Investigations of DOJ During the 1950’s . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. Grand Jury Curbing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Prosecution of Routine Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
3. New York City Police Brutality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Investigation of Consent Decree Program . . . . . . . . . . . . . . . . . . . . . . . . . 42
Cointelpro and Related Investigations of FBI-DOJ Misconduct . . . . . . . . 43
White Collar Crime in the Oil Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Billy Carter/Libya Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Undercover Law Enforcement Activities (ABSCAM) . . . . . . . . . . . . . . . . 46
Investigation of Withholding of EPA Documents . . . . . . . . . . . . . . . . . . . 48
E.F. Hutton Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Iran-Contra . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Rocky Flats Environmental Crimes Plea Bargain . . . . . . . . . . . . . . . . . . . . 53
Investigation of the Justice Department’s Environmental Crimes
Section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Campaign Finance Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Misuse of Informants in the FBI’s Boston Regional Office . . . . . . . . . . . . 57
Removal and Replacement of United States Attorneys . . . . . . . . . . . . . . . 59

Congressional Investigations of the
Department of Justice, 1920-2007: History,
Law, and Practice
Introduction
Throughout its history, Congress has engaged in oversight of the executive
branch — the review, monitoring, and supervision of the implementation of public
policy. The first several Congresses inaugurated such important oversight techniques
as special investigations, reporting requirements, resolutions of inquiry, and use of
the appropriations process to review executive activity. Contemporary developments,
moreover, have increased the legislature’s capacity and capabilities to check on and
check the executive. Public laws and congressional rules have measurably enhanced
Congress’s implied power under the Constitution to conduct oversight.1
Congressional oversight of the executive is designed to fulfill a number of
important purposes and goals: to ensure executive compliance with legislative intent;
to improve the efficiency, effectiveness, and economy of governmental operations;
to evaluate program performance; to prevent executive encroachment on legislative
powers and prerogatives; to investigate alleged instances of poor administration,
arbitrary and capricious behavior, abuse, waste, fraud and dishonesty; to assess
agency or officials’ ability to manage and carry out program objectives; to assess the
need for new federal legislation; to review and determine federal financial priorities;
to protect individual rights and liberties; and to inform the public as to the manner
in which its government is performing its public duties, among others.2
Legislative oversight is most commonly conducted through congressional
budget, authorization, appropriations, confirmation, and investigative processes, and,
in rare instances, through impeachment. But the adversarial, often confrontational,
and sometimes high profile nature of congressional investigations sets it apart from
the more routine, accommodative facets of the oversight process experienced in
authorization, appropriations, or confirmation exercises. While all aspects of
legislative oversight share the common goals of informing Congress so as to best
accomplish its tasks of developing legislation, monitoring the implementation of
public policy, and of disclosing to the public how its government is performing, the
inquisitorial process also sustains and vindicates Congress’s role in our constitutional
scheme of separated powers and checks and balances. The rich history of
congressional investigations from the failed St. Clair expedition in 1792 through
1

See generally, CRS Report RL30240, Congressional Oversight Manual, 5-17, 87-108, 114140 (Oversight Manual).
2

Oversight Manual at 2-4.

CRS-2
Teapot Dome, Watergate, Iran-Contra, Whitewater, and the current ongoing inquiries
into the removal and replacement of United States Attorneys, has established, in law
and practice, the nature and contours of congressional prerogatives necessary to
maintain the integrity of the legislative role in that constitutional scheme.
Congress’s power of inquiry extends to all executive departments, agencies, and
establishments in equal measure. Over time, however, congressional probes of the
Department of Justice (Department or DOJ) have proved to be amongst the most
contentious, stemming from the presumptive sensitivity of its principal law
enforcement mission. Often, inquiries have been met with claims of improper
political interference with discretionary deliberative prosecutorial processes,
accompanied by refusals to supply internal documents or testimony sought by
jurisdictional committees, based on assertions of constitutional and common law
privileges or general statutory exemptions from disclosure. But the notion of, and
need for, protection of the internal deliberative processes of agency policymaking,
heightened sensitivity to premature disclosures of decisionmaking involving law
enforcement investigations, civil and criminal prosecutions, or security matters, is not
unique to the DOJ, though the degree of day-to-day involvement there with such
matters may be greater. An in-depth examination of the nature, scope, and resolution
of such past investigative confrontations with the DOJ appears useful for informing
future committees determining whether to undertake similar probes of DOJ, or other
executive agencies, as to the scope and limits of their investigative prerogatives and
the practical problems of such undertakings.
A review of the historical experience and legal rulings pertinent to congressional
access to information regarding the law enforcement activities of the Department of
Justice indicates that in the last 85 years Congress has consistently sought and
obtained deliberative prosecutorial memoranda, and the testimony of line attorneys,
FBI field agents and other subordinate agency employees regarding the conduct of
open and closed cases in the course of innumerable investigations of Department of
Justice activities. These investigations have encompassed virtually every component
of the DOJ, and all officials, and employees, from the Attorney General down to
subordinate level personnel. It appears that the fact that an agency, such as the Justice
Department, has determined for its own internal purposes that a particular item
should not be disclosed, or that the information sought should come from one agency
source rather than another, does not prevent either House of Congress, or its
committees or subcommittees, from obtaining and publishing information it
considers essential for the proper performance of its constitutional functions. There
appears to be no court precedent that imposes a threshold burden on committees to
demonstrate, for example, a “substantial reason to believe wrongdoing occurred”
before a jurisdictional committee may seek disclosure with respect to the conduct of
specific open and closed criminal and civil cases. Indeed, the case law is quite to the
contrary. An inquiring committee need only show that the information sought is
within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate
legislative function, and is pertinent to the area of concern. Moreover, there have
been only three formal presidential assertions of executive privilege with respect to
withholding of internal DOJ documents in the face of a congressional subpoena. Two

CRS-3
of those claims were ultimately abandoned; one is still pending resolution.3 It
appears under the most recent Supreme Court and appellate court rulings pertinent
to the scope of the presidential communications privilege and the “Take Care” clause
of the constitution, that such a claim would be open to serious question as to its
validity in the context of a congressional probe of DOJ internal deliberative actions.
Committees, however, normally have been restrained by prudential
considerations that involve a pragmatic assessment informed by weighing
consideration of legislative need, public policy, and the statutory duty of
congressional committees to engage in continuous oversight of the application,
administration and execution of laws that fall within their jurisdiction, against the
potential burdens and harms that may be imposed on an agency if deliberative
process matter is publically disclosed. In particular, sensitive law enforcement
concerns and duties of the Justice Department have been seen to merit that
substantial weight be given the agency’s deliberative processes in the absence of a
reasonable belief of a jurisdictional committee that government misconduct has
occurred. A careful review of the historical record indicates a generally faithful
congressional adherence to these prudential considerations.
The discussion will proceed as follows. The legal basis for investigative
oversight will be briefly reviewed, followed by several prominent examples of
congressional oversight that reflect significant milestones in the establishment of the
breadth and reach of the legislative investigative prerogative vis-a-vis the
Department. Next we will review and assess the Department’s contentions, based on
policy and common law and constitutional privilege, that it has asserted to attempt
to limit congressional access to agency information. An appendix to this report
provides summaries of 18 inquiries in which committees have successfully obtained
documents and testimony respecting the internal deliberative processes involving
open and closed civil and criminal cases, as well as programmatic matters that are
part of the Department’s statutory mission.

3

One of the abandoned claims involved subpoenaed documents in Burford I, discussed infra
at 8-9, which included “memoranda by Agency or Department of Justice attorneys
containing litigation and negotiation strategy, settlement positions, and other similar
material.” H.Rept. 97-968, 97th Cong. 2d. Sess. 18, 28-29 (1982). The other concerned
documents sought in the Boston FBI matter, which were all internal DOJ materials. See
discussion infra at 14. The third presidential claim of privilege was invoked on July 16,
2008, in response to a subpoena by the House Oversight and Government Reform
Committee seeking documents concerning DOJ’s investigation by a Special Counsel of the
disclosure of the identity of a CIA agent. The documents sought and withheld include FBI
reports of the Special Counsel’s interviews with the Vice President and senior White House
staff; handwritten notes taken by the Deputy National Security Advisor during conversations
with the Vice President and senior White House officials; and other documents provided by
the White House to the Special Counsel during the investigation. See CRS Report RL30319,
Presidential Claims of Executive Privilege: History, Law, Practice, and Recent
Developments by Morton Rosenberg, at 34-35, 40-41.

CRS-4

The Legal Basis for Oversight
Numerous Supreme Court precedents recognize a broad and encompassing
power in Congress to engage in oversight and investigation that would reach all
sources of information necessary for carrying out its legislative function. In the
absence of a countervailing constitutional privilege or a self-imposed statutory
restriction upon its authority, Congress and its committees have virtually plenary
power to compel production of information needed to discharge their legislative
functions from executive agencies, private persons, and organizations. Within
certain constraints, the information so obtained may be made public.
Although there is no express provision of the Constitution that specifically
authorizes Congress to conduct investigations and take testimony for the purposes
of performing its legitimate functions, numerous decisions of the Supreme Court
have firmly established that the investigatory power of Congress is so essential to the
legislative function as to be implied from the general vesting of legislative power in
Congress.4 Thus, in Eastland v. United States Servicemen’s Fund, the Court
explained that “[t]he scope of its power of inquiry ... is as penetrating and farreaching as the potential power to enact and appropriate under the Constitution.”5
In Watkins v. United States, the Court described the breadth of the power of inquiry:
“The power of the Congress to conduct investigations is inherent in the legislative
process. That power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly needed statutes.”6
The Court went on to emphasize that Congress’s investigative power is at its peak
when the subject is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power, it stated, “comprehends probes
into departments of the Federal Government to expose corruption, inefficiency, or
waste.”7 “[T]he first Congresses,” it continued, held “inquiries dealing with
suspected corruption or mismanagement of government officials”8 and subsequently,
in a series of decisions, “[t]he court recognized the danger to effective and honest
conduct of the Government if the legislative power to probe corruption in the
Executive Branch were unduly hampered.”9 Accordingly, the Court stated, it
recognizes “the power of the Congress to inquire into and publicize corruption,
maladministration, or inefficiencies in the agencies of Government.”10
The breadth of a jurisdictional committee’s investigative authority may be seen
in the two seminal Supreme Court decisions emanating from the Teapot Dome
inquiries of the mid-1920’s, both involving, directly and indirectly, the Department

4

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

5

421 U.S. at 504, n. 15 (quoting Barenblatt v. United States, 360 U.S. 109, 111).

6

354 U.S. 178, 187 (1957).

7

Id.

8

Id. at 182.

9

Id. at 194-195.

10

Id. at 200 n. 33.

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of Justice. As part of its investigation, the Senate select committee issued a
subpoena for the testimony of Mally S. Daugherty, the brother of the Attorney
General. After Daugherty failed to respond to the subpoena, the Senate sent its
Deputy Sergeant at Arms to take him into custody and bring him before the Senate.
Daugherty petitioned in federal court for a writ of habeas corpus arguing that the
Senate in its investigation had exceeded its constitutional powers. The case ultimately
reached the Supreme Court, where, in a landmark decision, McGrain v. Daugherty,11
the Court upheld the Senate’s authority to investigate charges concerning the
Department:
[T]he subject to be investigated was the administration of the Department of
Justice - whether its functions were being properly discharged or were being
neglected or misdirected, and particularly whether the Attorney General and his
assistants were performing or neglecting their duties in respect of the institution
and prosecution of proceedings to punish crimes and enforce appropriate
remedies against the wrongdoers - specific instances of alleged neglect being
recited. Plainly the subject was one on which legislation could be had and would
be materially aided by the information which the investigation was calculated to
elicit. This becomes manifest when it is reflected that the functions of the
Department of Justice, the powers and duties of the Attorney General and the
duties of his assistants, are all subject to congressional legislation, and that the
department is maintained and its activities are carried on under such
appropriations as in the judgment of Congress are needed from year to year.12

The Court thus underlined that the Department of Justice, like all other executive
departments and agencies, is a creature of the Congress and subject to its plenary
legislative and oversight authority.
In another Teapot Dome case that reached the Supreme Court, Sinclair v. United
States,13 a different witness at the congressional hearings refused to provide answers,
and was prosecuted for contempt of Congress. The witness had noted that a lawsuit
had been commenced between the government and the Mammoth Oil Company, and
declared, “I shall reserve any evidence I may be able to give for those courts... and
shall respectfully decline to answer any questions propounded by your committee.”14
The Supreme Court upheld the witness’ conviction for contempt of Congress. The
Court considered and rejected in unequivocal terms the witness’ contention that the
pendency of lawsuits provided an excuse for withholding information. Neither the
laws directing that such lawsuits be instituted, nor the lawsuits themselves, “operated
to divest the Senate, or the committee, of power further to investigate the actual
administration of the land laws.”15 The Court further explained: “It may be conceded
that Congress is without authority to compel disclosure for the purpose of aiding the
prosecution of pending suits; but the authority of that body, directly or through its
committees to require pertinent disclosures in aid of its own constitutional power is
11

273 U.S. 135 (1927).

12

273 U.S. at 177-78.

13

279 U.S. 263 (1929).

14

Id. at 290.

15

Id. at 295.

CRS-6
not abridged because the information sought to be elicited may also be of use in such
suits.”16 The Sinclair ruling inferentially indicates that the Department’s oft-proffered
distinction between open and closed cases has little weight.

Illustrative Investigations and Case Law
Perhaps most instructive and illuminating for present purposes is a review of
important precedents over the last 85 years regarding oversight of the Justice
Department. Appended to this report are brief summaries of 18 selected
congressional investigations from the Palmer Raids and Teapot Dome in the 1920’s
to Watergate and through Iran-Contra, Rocky Flats, corruption in the FBI’s Boston
regional office, and the recent inquiries into the termination and replacement of
United States Attorneys. Those investigations demonstrate that DOJ has consistently
been obligated to submit to congressional oversight, regardless of whether litigation
is pending or is anticipated, so that Congress is not delayed unduly in investigating
maladministration, misfeasance and/or malfeasance in the Justice Department and
elsewhere. A number of these investigations spawned seminal Supreme Court
rulings that today provide the foundation for the broad congressional power of
inquiry. All were contentious and involved Department claims that committee
demands for agency documents and testimony were precluded either on the basis of
constitutional or common law privilege or policy. In the majority of instances
reviewed, the testimony of subordinate DOJ employees, such as line attorneys and
FBI field agents, was taken formally or informally, and included detailed testimony
about specific instances of the Department’s failure to prosecute alleged meritorious
cases. In all instances, investigating committees were provided with documents
respecting open or closed cases that often included prosecutorial memoranda, FBI
investigative reports, summaries of FBI interviews, memoranda and correspondence
prepared during the pendency of cases, confidential instructions outlining the
procedures or guidelines to be followed for undercover operations and the
surveillance and arrest of subjects, and documents presented to grand juries not
protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure,
among other similar “sensitive” materials. The instances of DOJ oversight reviewed
of course are not exhaustive of such inquiries. The consequences of these historic
inquiries at times have been profound and far reaching, directly leading to important
remedial legislation and the resignations (Harry M. Daugherty, J. Howard McGrath,
Alberto R. Gonzales) and convictions (Richard Kleindienst, John Mitchell) of five
attorneys general.

Teapot Dome
The Teapot Dome scandal in the mid-1920’s provided the model and
indisputable authority for wide ranging congressional inquiries. While the Senate
Committee on Public Lands and Surveys focused on the actions of the Department
of the Interior in leasing naval oil reserves, a Senate select committee was constituted
to investigate “charges of misfeasance and nonfeasance in the Department of

16

Id.

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Justice”17 in failing to prosecute the malefactors in the Department of the Interior, as
well as other cases.18 The select committee heard from scores of present and former
attorneys and agents of the Department and its Bureau of Investigation, who offered
detailed testimony about specific instances of the Department’s failure to prosecute
alleged meritorious cases. Not all of the cases upon which testimony was offered
were closed, as one of the committee’s goals in its questioning was to identify cases
in which the statute of limitations had not run out and prosecution was still
possible.19
The committee also obtained access to Department documentation, including
prosecutorial memoranda on a wide range of matters. However, given the charges of
widespread corruption in the Department and the imminent resignation of Attorney
General Daugherty, it would appear that some of the documents furnished the
committee early in the hearings may have been volunteered by the witnesses and not
officially provided by the Department. Although Attorney General Daugherty had
promised cooperation with the committee, and had agreed to provide access to at
least the files of closed cases,20 such cooperation apparently had not been
forthcoming.21
In two instances immediately following Daugherty’s resignation, the committee
was refused access to confidential Bureau of Investigation investigative reports
pending the appointment of a new Attorney General who could advise the President
about such production,22 though witnesses from the Department were permitted to
testify about the investigations that were the subject of the investigative reports and
even to read at the hearings from the investigative reports. With the appointment of
the new Attorney General, Harlan F. Stone, the committee was granted broad access
to Department files. Committee Chairman Smith Brookhard remarked that “[Stone]
is furnishing us with all the files we want, whereas the former Attorney General, Mr.
Daugherty, refused nearly all that we asked.”23 For example, with the authorization
of the new Attorney General, an accountant with the Department who had led an
investigation of fraudulent sales of property by the Alien Property Custodian’s office
appeared and produced his confidential reports to the Bureau of Investigation. The
reports described the factual findings from his investigation and his recommendations
for further action, and included the names of companies and individuals suspected
of making false claims. The Department had not acted on those recommendations,

17

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

18

Investigation of Hon. Harry M. Daugherty, Formerly Attorney General of the United
States: Hearings Before the Senate Select Committee on Investigation of the Attorney
General, vols. 1-3, 68th Congress, 1st Session (1924).
19

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

20

Id. at 1120.

21

Id. at 1078-79.

22

Id. at 1015-16 and 1159-60.

23

Id. at 2389.

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though the cases had not been closed.24 A similar investigative report, concerning an
inquiry into the disappearance of large quantities of liquor under the control of the
Department during the prior administration of President Harding, was also
produced.25

Burford I: The Superfund Investigation
In 1982, during the second session of the 97th Congress, the House
Transportation Committee’s Public Works Subcommittee on Oversight and the
House Energy and Commerce’s Subcommittee on Oversight and Investigations
initiated investigations of the Environmental Protection Agency’s (EPA) enforcement
of the “Superfund” law.26 The committees requested documents relating to a number
of on-going enforcement investigations from EPA Administrator Anne Gorsuch
Burford. The documents sought included memoranda of EPA and DOJ attorneys
containing litigation and negotiation strategy, settlement positions, and other similar
materials.27 After Ms. Burford’s initial refusal, the subcommittees issued subpoenas
but compliance was resisted on the grounds that the documents requested were
“enforcement sensitive”and were to be found in open law enforcement files. At the
direction of President Reagan, Ms. Burford claimed executive privilege to prevent
their disclosure.
The House Transportation Subcommittee acted first, citing Ms. Burford for
contempt of Congress, an action that was affirmed by the full Committee. The full
House of Representatives voted 259 to 105 to support the contempt citation.28 After
the DOJ’s failed attempt at obtaining a federal court order enjoining the House from
forwarding the contempt citation to the U.S. Attorney for prosecution pursuant to the
criminal contempt statute,29 and following a brief period of negotiation with the
Public Works and Transportation Committee, it was agreed that the documents
would be released to the subcommittee in stages, beginning first with briefings and
redacted copies, and eventually ending with unredacted copies that could only be
examined by committee members and up to two designated committee staffers.30
The Chairman of the House Energy and Commerce Committee, Representative
John Dingell, refused to accept the agreement between the DOJ and the House Public
Works and Transportation Committee given its limitations on access and time delays.

24

Id. at 1495-1547.

25

Id. at 1790.

26

See H.Rept. 97-968, 97th Cong. 2d Sess. (1982) [hereinafter House Report].

27

House Report at 13-20.

28

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

29

See United States v. U.S. Houses of Representatives, 556 F.Supp. 150 (D.D.C. 1983): See
also, 2 U.S.C. § 192, 194 (1980).
30

See Memorandum of Understanding Between the Committee on Public Works and
Transportation and the Department of Justice, Concerning Documents Subpoenaed from the
Environmental Protection Agency, February 18, 1983; see also H.Rept. No. 323, 98th Cong.,
1st Sess., 18-20 (1983) (copy on file with authors).

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After a threat to issue new subpoenas and pursue a further contempt citation,
negotiations were resumed. The result was an agreement that all documents covered
by the initial subpoena were to be delivered to the subcommittee. There were to be
no briefings and no multi-stage process of redacted documents leading to unredacted
documents.31 The subcommittee agreed to handle all “enforcement sensitive”
documents in executive session, giving them confidential treatment.32 The
subcommittee, however, reserved for itself the right to release the documents or use
them in public session, after providing “reasonable notice” to the EPA.33 If the EPA
did not agree, the documents would not be released or used in public session unless
the Chairman and Ranking Minority Member concurred.34 If they did not concur, the
subcommittee could vote on the release of documents and their subsequent use in a
public session.35 Staff access was to be decided by the Chairman and Ranking
Minority Member.36 The agreement was signed by Chairman Dingell, Ranking
Member James T. Broyhill, and White House Counsel Fred F. Fielding on March 9,
1983.37 The ultimate agreement is an illustration of the autonomy of jurisdictional
committees in the House of Representatives.

Burford II: The Investigation of the Claim of Presidential
Privilege
After committee access to the Superfund enforcement documents was obtained,
a number of questions about the role of the Department during the controversy
remained: whether the Department, not EPA, had made the decision to persuade the
President to assert executive privilege; whether the Department had directed the
United States Attorney for the District of Columbia not to present the contempt
certification of Burford to the grand jury for prosecution and had made the decision
to sue the House; and, generally, whether there was a conflict of interest in the
Department’s simultaneously advising the President, representing Burford,
investigating alleged Executive branch wrongdoing, and enforcing the congressional
criminal contempt statute. These and related questions raised by the Department’s
actions were the subject of an investigation by the House Judiciary Committee
beginning in early 1983. The committee issued a final report on its investigation in
December 1985.38

31

See EPA Document Agreement, CQ WEEKLY REPORT, March 26, 1983 at 685 (copy on
file with authors).
32

Id.

33

Id.

34

Id.

35

Id.

36

Id.

37

Id.

38

See, Report of the House Comm. on the Judiciary on Investigation of the Role of the
Department of Justice in the Withholding of Environmental Protection Agency Documents
from Congress in 1982-1983, H.Rept. 99-435, 99th Cong., 1st Sess. (1985) (“EPA
(continued...)

CRS-10
Although the Judiciary Committee ultimately was able to obtain access to
virtually all of the documentation and other information it sought from the
Department, in many respects this investigation proved as contentious as the earlier
EPA controversy from which it arose. In its final report, the committee concluded
that:
[T]he Department of Justice, through many of the same senior officials who were
most involved in the EPA controversy, consciously prevented the Judiciary
Committee from obtaining information in the Department’s possession that was
essential to the Committee’s inquiry into the Department’s role in that
controversy. Most notably, the Department deliberately, and without advising the
Committee, withheld a massive volume of vital handwritten notes and
chronologies for over one year. These materials, which the Department knew
came within the Committee’s February 1983 document request, contained the
bulk of the relevant documentary information about the Department’s activities
outlined in this report and provided a basis for many of the Committee’s
findings.39

Among the other abuses cited by the committee were the withholding of a number
of relevant documents until the committee had independently learned of their
existence,40 as well as materially “false and misleading” testimony before the
committee by the head of the Department’s Office of Legal Counsel.41
The committee’s initial request for documentation was contained in a February
1983 letter from its chairman, Peter Rodino, to Attorney General William French
Smith. The committee requested the Department to “supply all documents prepared
by or in the possession of the Department in any way relating to the withholding of
documents that Congressional committees have subpoenaed from the EPA.”42 The
letter also specifically requested, among other things, a narrative description of the
activities of each division or other unit of the Department relating to the withholding
of the EPA materials, information about the Department’s apparent conflict of
interest in simultaneously advising the Executive Branch while being responsible for
prosecuting the Burford contempt citation, and any instructions given by the
Department to the United States Attorney for the District of Columbia not to present
the Burford contempt to the grand jury.
At first the Department provided only publicly available documents in response
to this and other document requests of the committee.43 However, after a series of
meetings between committee staff and senior Department officials, an agreement was

38

(...continued)
Withholding Report”).
39

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

40

Id. at 1164.

41

Id. at 1164-65 & 1191-1231.

42

Id. at 1167 & 1182-83.

43

Id. at 1184.

CRS-11
reached whereby committee staff were permitted to review the materials responsive
to these requests at the Department to determine which documents the committee
would need for its inquiry.44 Committee staff reviewed thousands of documents from
the Land and Natural Resources Division, the Civil Division, the Office of Legal
Counsel, the Office of Legislative Affairs, the Office of Public Affairs, and the
offices of the Attorney General, the Deputy Attorney General, and the Solicitor
General.45
In July 1983, the committee chairman wrote to the Attorney General requesting
copies of 105 documents that committee staff had identified in its review as
particularly important to the committee’s inquiry.46 By May 1984, only a few of
those documents had been provided to the committee, and the chairman again wrote
to the Attorney General requesting the Department’s cooperation in the investigation.
In that letter, the chairman advised the Attorney General that the committee’s
preliminary investigation had raised serious questions of misconduct, including
potential criminal misconduct, in the actions of the Department in the withholding
of the EPA documents.47 The committee finally received all of the 105 documents
in July 1984, a full year after it had initially requested access. The committee at that
time also obtained the written notes and a number of other documents that had been
earlier withheld.48
There was also disagreement about the access that would be provided to
Department employees for interviews with committee staff. The Department
demanded that it be permitted to have one or more Department attorneys present at
each interview. The committee feared that the presence of Department
representatives might intimidate the Department employees in their interviews and
stated that it was willing to permit a Department representative to be present only if
the representative was “walled-off” from Department officials involved with the
controversy, if the substance of interviews was not revealed to subsequent
interviewees, and if employees could be interviewed without a Department
representative present if so requested. The Department ultimately agreed to permit
the interviews to go forward without its attorneys present. If a Department employee
requested representation, the Department employed private counsel for that purpose.
In all, committee staff interviewed 26 current and former Department employees,
including four Assistant Attorney Generals, under this agreement.49
Partly as a result of these interviews, as well as from information in the
handwritten notes that had been initially withheld, the committee concluded that it
also required access to Criminal Division documents concerning the origins of the
criminal investigation of former EPA Assistant Administrator Rita Lavelle in order

44

Id. at 1168 & 1233.

45

Id. at 1168.

46

Id. at 1169.

47

Id. at 1172.

48

Id. at 1173.

49

Id. at 1174-76.

CRS-12
to determine if the Department had considered instituting the investigation to obstruct
the committee’s inquiry. The committee also requested information about the
Department’s earlier withholding of the handwritten notes and other documents to
determine whether Department officials had deliberately withheld the documents in
an attempt to obstruct the committee’s investigation.50 The Department at first
refused to provide the committee with documents relating to its Lavelle investigation
“[c]onsistent with the longstanding practice of the Department not to provide access
to active criminal files.”51 The Department also refused to provide the committee
with access to documentation related to the Department’s handling of the
committee’s inquiry, objecting to the committee’s “ever-broadening scope of ...
inquiry.”52
The committee chairman wrote the Attorney General and objected that the
Department was denying the committee access even though no claim of executive
privilege had been asserted.53 The chairman also maintained that “[i]n this case, of
course, no claim of executive privilege could lie because of the interest of the
committee in determining whether the documents contain evidence of misconduct by
executive branch officials.”54 With respect to the documents relating to the
Department’s handling of the committee inquiry, the chairman demanded that the
Department prepare a detailed index of the withheld documents, including the title,
date, and length of each document, its author and all who had seen it, a summary of
its contents, an explanation of why it was being withheld, and a certification that the
Department intended to recommend to the President the assertion of executive
privilege as to each withheld document and that each document contained no
evidence of misconduct.55 With respect to the Lavelle documents, the chairman
narrowed the committee’s request to “predicate” documents relating to the opening
of the investigation and prosecution of Lavelle, as opposed to FBI and other
investigative reports reflecting actual investigative work conducted after the opening
of the investigation.56 In response, after a period of more than three months from the
committee’s initial request, the Department produced those two categories of
materials.57

Rocky Flats
Another revealing investigation involved a 1992 inquiry of the Subcommittee
on Investigations and Oversight of the House Committee on Science, Space, and
Technology which commenced a review of the plea bargain settlement by the

50

Id. at 1176-77 & 1263-64.

51

Id. at 1265.

52

Id. at 1265.

53

Id. at 1266.

54

Id.

55

Id. at 1268-69.

56

Id. at 1269-70.

57

Id. at 1270.

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Department of Justice of the government’s investigation and prosecution of
environmental crimes committed by Rockwell International Corporation in its
capacity as manager and operating contractor at the Department of Energy’s (DOE)
Rocky Flats nuclear weapons facility. 58 The settlement was a culmination of a fiveyear investigation of environmental crimes at the facility, conducted by a joint
government task force involving the FBI, the Department of Justice, the
Environmental Protection Agency (EPA), EPA’s National Enforcement Investigation
Centers, and the DOE Inspector General. The subcommittee was concerned with the
size of the fine agreed to relative to the profits made by the contractor and the
damage caused by inappropriate activities; the lack of personal indictments of either
Rockwell or DOE personnel despite a DOJ finding that the crimes were “institutional
crimes” that “were the result of a culture, substantially encouraged and nurtured by
DOE, where environmental compliance was a much lower priority than the
production and recovery of plutonium and the manufacture of nuclear ‘triggers’”; and
that reimbursements provided by the government to Rockwell for expenses in the
cases and the contractual arrangements between Rockwell and DOE may have
created disincentives for environmental compliance and aggressive prosecution of the
case.
The subcommittee held ten days of hearings, seven in executive session, in
which it took testimony from the United States Attorney for the District of Colorado;
an assistant U.S. Attorney for the District of Colorado; a DOJ line attorney from
Main Justice; and an FBI field agent; and received voluminous FBI field investigative
reports and interview summaries, and documents submitted to the grand jury not
subject to Rule 6(e).59
At one point in the proceedings, however, all the witnesses who were under
subpoena, upon written instructions from the Acting Assistant Attorney General,
Criminal Division, refused to answer questions concerning internal deliberations in
which decisions were made about the investigation and prosecution of Rockwell, the
DOE and their employees. Two of the witnesses advised that they had information
and, but for the DOJ directive, would have answered the subcommittee’s inquiries.
The subcommittee members unanimously authorized the chairman to send a letter to
President Bush requesting that he either personally assert executive privilege as the
basis for directing the witnesses to withhold the information or direct DOJ to retract
its instructions to the witnesses. The President took neither course and the DOJ
subsequently reiterated its position that the matter sought would chill Department
personnel. The subcommittee then moved to hold the U .S. Attorney in contempt of
Congress.

58

See Environmental Crimes at the Rocky Flats Nuclear Weapons Facility: Hearings Before
the Subcomm. on Investigations and Oversight of the House Committee on Science, Space
and Technology, 102nd Cong., 2d Sess., Vols. I and II (1992) (“Rocky Flats Hearings”);
Meetings: To Subpoena Appearance by Employees of the Department of Justice and the FBI
and To Subpoena Production of Documents From Rockwell International Corporation,
Before the Subcomm. on Investigations and Oversight of the House Comm. on Science,
Space, and Technology, 102nd Congress, 2d Sess., (1992)(“Subpoena Meetings”).
59

Rocky Flats Hearing, Vol. I, at 389-1009, 1111-1251; Vol. II.

CRS-14
A last minute agreement forestalled the contempt citation. Under the agreement
(1) DOJ issued a new instruction to all personnel under subpoena to answer all
questions put to them by the subcommittee, including those which related to internal
deliberations with respect to the plea bargain. Those instructions were to apply as
well to all Department witnesses, including FBI personnel, who might be called in
the future. Those witnesses were to be advised to answer all questions fully and
truthfully and specifically instructed that they were allowed to disclose internal
advice, opinions, or recommendations connected to the matter. (2) Transcripts were
to be made of all interviews and provided to the witnesses. They were not to be made
public except to the extent they needed to be used to refresh the recollection or
impeach the testimony of other witnesses called before the subcommittee in a public
hearing. (3) Witnesses were to be interviewed by staff under oath. (4) The
subcommittee reserved the right to hold further hearings in the future at which time
it could call other Department witnesses who would be instructed by the Department
not to invoke the deliberative process privilege as a reason for not answering
subcommittee questions.60

Corruption in the FBI’s Boston Regional Office
The most recent and definitive exploration and resolution of the question of the
nature and breadth of Congress’s oversight prerogative with respect to DOJ
operations occurred as a consequence of the President’s December 2001 claim of
executive privilege in response to a subpoena by the House Government Reform
Committee. That subpoena sought, among other material, Justice Department
documents relating to alleged law enforcement corruption in the Federal Bureau of
Investigation’s Boston office that occurred over a period of almost 30 years. During
that time, FBI officials allegedly knowingly allowed innocent persons to be convicted
of murder on the false testimony of a cooperating witness and two informants in
order to protect the undercover activities of those informants. Thereafter, Regional
Office agents knowingly permitted two other informants to commit some 21
additional murders during the period they acted as informants, and, finally, gave the
informants warning of an impending grand jury indictment which allowed one of
them to flee. The President directed the Attorney General not to release relevant
documents because disclosure “would inhibit the candor necessary to the
effectiveness of the deliberative processes by which the Department makes
prosecutorial decisions,” and that committee access to the documents “threatens to
politicize the criminal justice process” and to undermine the fundamental purpose of
the separation of power doctrine, “which was to protect individual liberty.” In
defending the assertion of the privilege the Justice Department claimed a historical
policy of withholding deliberative prosecutorial documents from Congress in both
open and closed civil and criminal cases.61 Pending at the time were a number of
Federal Tort Claims Act suits brought by the convicted persons and their families,
alleging that the government was aware of and knowingly allowed the false
testimony.
60

Rocky Flats Hearings, Vol. I at 9-10, 25-31, 1673-1737; Subpoena Hearings, at 1-3, 8286, 143-51.
61

Louis Fisher, “The Politics of Executive Privilege,” Carolina Academic Press, 108
(2004)(Fisher).

CRS-15
Initial congressional hearings after the claim was made demonstrated the rigidity
of the Department’s position. The Department later agreed there might be some area
for compromise, and on January 10, 2002, White House Counsel Alberto Gonzales
wrote to Chairman Burton conceding that it was a “misimpression” that
congressional committees could never have access to deliberative documents from
a criminal investigation or prosecution. “There is no such bright-line policy, nor did
we intend to articulate any such policy.” But, he continued, since the documents
“sought a very narrow and particularly sensitive category of deliberative matters” and
“absent unusual circumstances, the Executive Branch has traditionally protected
these highly sensitive deliberative documents against public or congressional
disclosure” unless a committee showed a “compelling or specific need” for the
documents.62 The documents continued to be withheld until a further hearing, held
on February 6, 2002, when the committee heard expert testimony describing over 30
specific instances since 1920 of the Department of Justice allowing congressional
access to prosecutorial memoranda for both open and closed cases and providing
testimony of subordinate Department employees, such as line attorneys, FBI field
agents and U.S. attorneys, and included detailed testimony about specific instances
of DOJ’s failure to prosecute meritorious cases. In all the described instances,
investigating committees were provided with documents respecting open and closed
cases that often included prosecutorial memoranda, FBI investigative reports,
summaries of FBI interviews, memoranda and correspondence prepared during
undercover operations, and documents presented to grand juries not protected by
Rule 6(e), among other similar “sensitive materials.” Shortly after the hearing the
committee was given access to the disputed documents.63
The committee’s final report concluded that the documents withheld from it
were indispensable to its inquiry and that the claim of presidential privilege was part
of a pattern of obstruction that impeded its investigation:
When the FBI Office of Professional Responsibility conducted an investigation
of the activities of New England law enforcement, it concluded in 1997: “There
is no evidence that prosecutorial discretion was exercised on behalf of informants
[James] Bulger and/or [Stephen] Flemmi.” This is untrue. Former U.S. Attorney

62
63

Fisher, Id.

“Everything Secret Degenerates: The FBI’s Use of Murderers As Informants,” H.Rept.
108-414, 108th Cong., 2d Sess. 2-9, 121-134 (2004)(House Report); Hearings, “ Investigation
Into Allegations of Justice Department Misconduct In New England-Volume I”, House
Comm. on Government Reform, 107th Cong., 1st and 2d Sess’s. 520-556, 562-604 (May 3,
December 13, 2001; February 6, 2002) (Hearings); McIntyre v. United States, 367 F.3d 38,
42-51 (1st Cir. 2004)(recounting background of FBI corrupt activities); United States v.
Salemme, 91 F. Supp. 2d 141, 148-63, 208-15, 322 (D.Mass. 1993) (same); United States
v. Flemmi, 195 F. Supp 243, 249-50 (D. Mass. 200); (same) Charles Tiefer, “President
Bush’s First Executive Privilege Claim: The FBI/Boston Investigation”, 33 Pres. Stud. Q.
201(2003). On July 26, 2007, a Massachusetts federal district court judge awarded the
convicted persons and their families $101.7 million under the Federal Tort Claims Act,
finding the government liable of malicious prosecution, civil conspiracy, infliction of
emotional distress, and negligence. Shelly Murphy and Brian R. Ballou, “FBI Condemned
in Landmark Ruling,” Boston Globe, July 27, 2007, A3; Robert Barrens and Paul Lewis,
“FBI Must Pay $102 Million In Mob Case,” Washington Post, July 27, 2007, A3.

CRS-16
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. 64

Ruby Ridge
The instances of successful committee access to DOJ documents and witnesses
related in the above discussed inquiries (as well as those detailed in the Appendix to
this report) encompassed a wide number of divisions, bureaus, and offices at Main
Justice and U.S. Attorneys offices in the field, and involved the Department’s
politically sensitive Public Integrity Section,65 and provide a substantial basis for
arguing that no element of the DOJ is exempt from oversight by a jurisdictional
committee of the Congress. One additional case study, involving the DOJ Office of
Professional Responsibility, which monitors the conduct of Department personnel,
is notable for its revelations of a number of sensitive, undisclosed internal
investigations in the face of extraordinary agency resistance. That occurred during
the 1995 investigation by the Senate Judiciary Committee’s Subcommittee on
Terrorism, Technology and Government Information of allegations that several
branches of the Department of Justice and the Department of the Treasury had
engaged in serious criminal and professional misconduct in the investigation,
apprehension, and prosecution of Randall Weaver and Kevin Harris at Ruby Ridge,
Idaho. The subcommittee held 14 days of hearings in which it heard testimony from
62 witnesses, including Justice, Federal Bureau of Investigation, and Treasury
officials, line attorneys and agents, and obtained various Justice, FBI and Treasury
internal reports,66 and issued a final report.67
The subcommittee’s hearings revealed that the involved federal agencies
conducted at least eight internal investigations into charges of misconduct at Ruby
Ridge, none of which had ever been publically released.68 DOJ expressed reluctance
to allow the Subcommittee to see the documents out of a concern they would
interfere with the ongoing investigation but ultimately provided some of them under
conditions with respect to their public release. The most important of those
64

House Report at 3, 134-135.

65

See Hearings, supra, at 549-50, 555.

66

Hearings, “The Federal Raid on Ruby Ridge, Idaho,” before the Senate Subcommittee on
Terrorism, Technology, Government Information, Committee on the Judiciary, 104th Cong.,
1st Sess. (1995) (Ruby Ridge Hearings).
67

Ruby Ridge: Report of the Subcommittee on Terrorism, Technology and Government
Information of the Senate Committee on the Judiciary (Ruby Ridge Report). The 154-page
document appears not to have been officially reported by the full Committee. A bound copy
may be found in the United States Senate Library, catalogue number HV 8141.U56 1995.
68

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

CRS-17
documents was the Report of the Ruby Ridge Task Force.69 The Task Force was
established by the DOJ after the acquittals of Randy Weaver and Kevin Harris of all
charges in the killing of a Deputy United States Marshal70 to investigate charges that
federal law enforcement agents and federal prosecutors involved in the investigation,
apprehension and prosecution of Weaver and Harris may have engaged in
professional misconduct and criminal wrongdoing. The allegations were referred to
DOJ’s Office of Professional Responsibility (OPR). The Task Force was headed by
an Assistant Counsel from OPR and consisted of four career attorneys from DOJ’s
Criminal Division and a number of FBI inspectors and investigative agents. The
Task Force submitted a 542 page report to OPR on June 10, 1994, which found
numerous problems with the conduct of the FBI, the U.S. Marshals Service, and the
U.S. Attorneys office in Idaho, and made recommendations for institutional changes
to address the problems it found. It also concluded that portions of the rules of
engagement issued by the FBI during the incident were unconstitutional under the
circumstances, and that the second of two shots taken by a member of the FBI’s
Hostage Rescue Team (HRT), which resulted in the death of Vicki Weaver, was not
reasonable. The Task Force recommended that the matter of the shooting be referred
to a prosecutorial component of the Department for a determination as to whether a
criminal investigation was appropriate. OPR reviewed the Task Force Report and
transmitted the Report to the Deputy Attorney General with a memorandum that
dissented from the recommendation that the shooting of Vicki Weaver by the HRT
member be reviewed for prosecutorial merit based on the view that given the totality
of circumstances, the agent’s actions were not unreasonable. The Deputy Attorney
referred the Task Force recommendation for prosecutorial review to the Criminal
Section of the Civil Rights Division which concluded that there was no basis for
criminal prosecution. The Task Force Report was the critical basis for the
Subcommittee’s inquiries during the hearings and its discussion and conclusions in
its final report.71

69

The Task Force Report was never publically released or printed in the subcommittee’s
hearing record. A bound copy of the Report provided the subcommittee may be found in
the United States Senate Library, catalogue number HV814.U55 1995.
70

Weaver was convicted for failure to appear for a trial and for commission of an offense
while on release.
71

See, e.g., Ruby Ridge Hearings at 719-737, 941-985; Ruby Ridge Report at 10-11 (“With
the exceptions of the [Ruby Ridge] Task Force Report, which was partially disavowed by
the Department, and the April 5, 1995 memorandum of Deputy Attorney General Jamie
Gorelick, it appeared to the subcommittee that the authors of every report we read were
looking more to justify agency conduct than to follow the facts wherever they lead.”), 61-69,
115, 122-23, 134-35, 139, 145-49.

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Assessment of DOJ’s Opposition to Congressional
Access to Information in Open and Closed
Litigation Files and to Internal Deliberative Materials
The Department’s Position
The reasons advanced by the executive for declining to provide information to
Congress about open and closed civil and criminal proceedings, most famously
articulated by then Attorney General Robert Jackson in 1941, have included avoiding
prejudicial pre-trial publicity, protecting the rights of innocent third parties,
protecting the identity of confidential informants, preventing disclosure of the
government’s strategy in anticipated or pending judicial proceedings, avoiding the
potentially chilling effect on the exercise of prosecutorial discretion by DOJ
attorneys, and precluding interference with the President’s constitutional duty to
faithfully execute the laws all of which would “seriously prejudice law
enforcement.”72
Jackson’s views were reiterated by Attorney General William French Smith in
1982 during the Superfund dispute, there applying the policy to documents “which
are sensitive memoranda or notes by EPA attorneys and investigators reflecting
enforcement strategy, legal analyses, lists of potential witnesses, settlement
considerations and similar materials the disclosure of which might adversely affect
a pending enforcement action, overall enforcement policy, or the rights of
individuals. I continue to believe, as have my predecessors, that unrestricted
dissemination of law enforcement files would prejudice the cause of effective law
enforcement and, because the reasons for the policy of confidentiality are as sound
and fundamental to the administration of justice today as they were forty years ago,
I see no reason to depart from the consistent position of previous presidents and
attorney generals.” Acceding to congressional investigation demands, the Attorney
General asserted, would make Congress “in a sense, a partner in the investigation”
raising “ a substantial danger that congressional pressures will influence the course
of the investigation.” This policy is said to be “premised in part on the fact that the
Constitution vests in the President and his subordinates the responsibility to ‘Take
Care that the Laws be faithfully executed.’”73
Finally, in the 2001-2002 House Government Reform Committee investigation
of the FBI misuse of informants, the Department maintained its historic position of
withholding internal deliberative prosecutorial documents until just weeks before its
eventual abandonment. In a February 1, 2002, letter to Chairman Burton, the DOJ
Assistant Attorney General for Legislative Affairs explained:
Our particular concern in the current controversy pertains to the narrow and
especially sensitive categories of advice memoranda to the Attorney General and

72
73

40 Op. A.G. 45. 46-47 (1941).

Letter to Hon. John D. Dingell Chairman, House Subcommittee on Oversight and
Investigation, Committee on Energy and Commerce, from Attorney General William French
Smith, dated November 30, 1982, reprinted in H.Rept. No. 97-968, supra, at 37-38.

CRS-19
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.74

Assessment of the Department’s Position
1. Concerns with Pre-Trial Publicity, Due Process, and Concurrent
Investigations.
As has been recounted previously, the Supreme Court has repeatedly reaffirmed
the breadth of Congress’ right to investigate the government’s conduct of criminal
and civil litigation.75 The courts have also explicitly held that agencies may not deny
Congress access to agency documents, even in situations where the inquiry may
result in the exposure of criminal corruption or maladministration of agency officials.
The Supreme Court has noted, “[B]ut surely a congressional committee which is
engaged in a legitimate legislative investigation need not grind to a halt whenever
responses to its inquiries might potentially be harmful to a witness in some distinct
proceeding ... or when crime or wrongdoing is exposed.”76 The Court further
explained:
The suggestion made in dissent that the questions which petitioner refused to
answer were ‘outside the power of a committee to ask’ under the Due Process
Clause because they touched on matters then pending in judicial proceedings
cannot be accepted for several reasons: First, the reasoning underlying this
proposition is that these inquiries constituted a legislative encroachment on the
judicial function. But such reasoning can hardly be limited to inquiries that may
be germane to existing judicial proceedings: it would surely apply as well to
inquiries calling for answers that my be used to the prejudice of witnesses in any
future judicial proceeding. If such were the reach of ‘due process’ it would turn
a witness’ privilege against self-incrimination into a self-operating restraint on
congressional inquiry, and would in effect pro tanto obliterate the need for that
constitutional protection.77

Nor does the actual pendency of litigation disable Congress from the
investigation of facts which have a bearing on that litigation, where the information
sought is needed to determine what, if any, legislation should be enacted to prevent
further ills.78
Although several lower court decisions have recognized that congressional
hearings may have the result of generating prejudicial pre-trial publicity, they have

74

Hearings, supra note 63.

75

See discussion of case law, supra at notes 3-15, and accompanying text.

76

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

77

369 U.S. at n. 16.

78

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

CRS-20
not suggested that there are any constitutional or legal limitations on Congress’ right
to conduct an investigation during the pendency of judicial proceedings. Instead, the
cases have suggested approaches, such as granting a continuance or a change of
venue, to deal with the publicity problem.79 For example, the court in one of the
leading cases, Delaney v. United States, entertained “no doubt that the committee
acted lawfully, within the constitutional powers of Congress duly delegated to it” but
went on to describe the possible consequences of concurrent executive and
congressional investigations:
We think that the United States is put to a choice in this matter: If the United
States, through its legislative department, acting conscientiously pursuant to its
conception of the public interest, chooses to hold a public hearing inevitably
resulting in such damaging publicity prejudicial to a person awaiting trial on a
pending indictment, then the United States must accept the consequences that the
judicial department, charged with the duty of assuring the defendant a fair trial
before an impartial jury, may find it necessary to postpone the trial until by lapse
of time the danger of the prejudice may reasonably be thought to have been
substantially removed.80

The Delaney court distinguished the case of a congressional hearing generating
publicity relating to an individual not under indictment at the time (as was Delaney):
Such a situation may present important differences from the instant case. In such
a situation the investigative function of Congress has its greatest utility:
Congress is informing itself so that it may take appropriate legislative action; it
is informing the Executive so that existing laws may be enforced; and it is
informing the public so that democratic processes may be brought to bear to
correct any disclosed executive laxity. Also, if as a result of such legislative
hearing an indictment is eventually procured against the public official, then in
the normal case there would be a much greater lapse of time between the
publicity accompanying the public hearing and the trial of the subsequently

79

See e.g., Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); United States v. Mitchell,
372 F.Supp. 1259, 1261 (S.D.N.Y. 1973). For discussion of issues in addition to prejudicial
publicity that have been raised in regard to concurrent congressional and judicial
proceedings, including allegations of violation of due process, see, Contempt of Congress,
H.R. Rpt. No. 97-968, 97th Cong., 2d Sess. 58 (1982).

80

199 F.2d 107, 114 (1st Cir. 1952). The court did not fault the committee for holding
public hearings, stating that if closed hearings were rejected “because the legislative
committee deemed that an open hearing at that time was required by overriding
considerations of public interest, then the committee was of course free to go ahead with its
hearing, merely accepting the consequence that the trial of Delaney on the pending
indictment might have to be delayed.” 199 F.2d at 114-5. It reversed Delaney’s conviction
because the trial court had denied his motion for a continuance until after the publicity
generated by the hearing, at which Delaney and other trial witnesses were asked to testify,
subsided. See also, Hutcheson v. United States, 369 U.S. 599, 613 (1962)(upholding
contempt conviction of person who refused to answer committee questions relating to
activities for which he had been indicted by a state grand jury, citing Delaney)

CRS-21
indicted official than would be the case if the legislative hearing were held while
the accused is awaiting trial on a pending indictment.81

The absence of indictment and the length of time between congressional hearing
and criminal trial have been factors in courts rejecting claims that congressionally
generated publicity prejudiced defendants.82 Finally, in the context of adjudicatory
administrative proceedings, courts on occasion have held that pressures emanating
from questioning of agency decisionmakers by Members of Congress may be
sufficient to undermine the impartiality of the proceeding. 83 But the courts have also
made clear that mere inquiry and oversight of agency actions, including agency
proceedings that are quasi-adjudicatory in nature, will not be held to rise to the level
of political pressure designed to influence particular proceedings that would require
judicial condemnation.84
Thus, the courts have recognized the potentially prejudicial effect congressional
hearings can have on pending cases. While not questioning the prerogatives of
Congress with respect to oversight and investigation, the cases pose a choice for the
Congress: congressionally generated publicity may result in harming the
prosecutorial effort of the Executive; but access to information under secure
conditions can fulfill the congressional power of investigation and at the same time
need not be inconsistent with the authority of the executive to pursue its case.
Nonetheless, it remains a choice that is solely within Congress’ discretion to make
irrespective of the consequences. The observation of the Iran-Contra Independent
Counsel is pertinent here: “The legislative branch has the power to decide whether
it is more important perhaps to destroy a prosecution than to hold back testimony

81

199 F.2d at 115.

82

See, Silverthorne v. United States, 400 F.2d 627 (9th Cir. 1968), cert. denied, 400 U.S.
102 (1971)(claim of prejudicial pretrial publicity rejected because committee hearings
occurred five months prior to indictment); Beck v. Washington, 369 U.S. 541, 544
(1962)(hearing occurred a year before trial); United States v. Haldeman, 559 F.2d 31, 63
(D.C. Cir. 1976), cert. denied, 433 U.S. 933 (1977); United States v. Ehrlichman, 546 F.2d
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).
83
84

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

See e.g., ATX, Inc. v. Department of Transportation 41 F.3d 1522 (D.C. Cir. 1994); State
of California v. FERC, 966 F.2d 154 (9th Cir. 1992); Peter Kiewet Sons’ v. U.S. Army Corps
of Engineers, 714 F.2d 163 (D.C. Cir. 1983); Gulf Oil Corp. v. FPC, 563 F.2d 588 (3d Cir.
1977), cert. denied, 434 U.S. 1062 (1978); United States v. Armada Petroleum Corp., 562
F.Supp 43 (S.D. Tex. 1982). See also, Morton Rosenberg and Jack Maskell, Congressional
Intervention in the Administrative Process: Legal and Ethical Considerations,” CRS Report
RL32113, September 25, 2003.

CRS-22
they need. They make that decision. It is not a judicial decision, or a legal decision,
but a political decision of the highest importance.”85
2. Concerns Over Revelations of Government Strategies or
Methods or Weaknesses of Investigation.
Attorney General and DOJ/OLC opinions raise concerns that congressional
oversight that calls for information which reflects on the government’s strategy or its
methods or weaknesses is somehow inappropriate. Arguably, however, if this type
of concern were recognized as enabling the blocking of congressional inquiry, it
would end a major portion of legislative oversight. Congressional inquiries into
foreign affairs and military matters call for information on strategy and weaknesses
in national security matters; congressional probes into waste, fraud, and inefficiency
in domestic operations calls for information on strategy and weaknesses. For
Congress to forego such inquiries might signal an abandonment of its oversight
duties: The best way to correct either bad law or bad administration is to closely
examine these matters. The many examples congressional probes recounted above
and in the Appendix to this report underline the efficacy and necessity of the
revelation of such matters.
3. The Claim That Prosecution Is a Core Presidential Power Subject
to Assertions of Executive Privilege.
In the past the executive frequently has made a broader claim that prosecution
is an inherently executive function and that congressional access to information
related to the exercise of that function is thereby limited. Prosecutorial discretion is
seen as off-limits to congressional inquiry and access demands are viewed as
interfering with the discretion traditionally enjoyed by the prosecutor with respect to
pursuing criminal cases.
Initially, it must be noted that the Supreme Court has rejected the notion that
prosecutorial discretion in criminal matters is an inherent or core executive function.
Rather, the Court noted in Morrison v. Olson, 86 sustaining the validity of the
appointment and removal conditions for independent counsels under the Ethics in
Government Act, that the independent counsel’s prosecutorial powers are executive
in that they have “typically” been performed by Executive Branch officials, but held
that the exercise of prosecutorial discretion is in no way “central” to the functioning
of the Executive Branch.87 The Court therefore rejected a claim that insulating the
independent counsel from at-will presidential removal interfered with the President’s
duty to “take care” that the laws be faithfully executed. Interestingly, the Morrison
Court took the occasion to reiterate the fundamental nature of Congress’ oversight
function (“ ... receiving reports or other information and oversight of the independent

85

Lawrence E. Walsh, “The Independent Counsel and the Separation of Powers,” 25 Hous.
L. Rev. 1, 9 (1988).
86

487 U.S. 654 (1988).

87

Id. at 691-92.

CRS-23
counsel’s activities ... [are] functions that we have recognized as generally incidental
to the legislative function of Congress,” citing McGrain v. Daugherty.)88
The breadth of Morrison’s ruling that the prosecutorial function is not an
exclusive function of the executive was made clear in a decision of the Ninth Circuit
Court of Appeals in United States ex rel Kelly v. The Boeing Co.,89 which upheld,
against a broad based separation of powers attack, the constitutionality of the qui tam
provisions of the False Claims Act vesting enforcement functions against agencies
by private parties. Boeing argued, inter alia, that Congress could not vest
enforcement functions outside the Executive Branch in private parties. Applying
Morrison the appeals court emphatically rejected the contention.
Before comparing the qui tam provisions of the FCA to the independent counsel
provisions of the Ethics in Government Act, we must address Boeing’s
contention that only the Executive Branch has the power to enforce laws, and
therefore to prosecute violations of law. It is clear to us that no such absolute
rule exists. Morrison itself indicates otherwise because that decision validated
the independent counsel provisions of the Ethics in Government Act even though
it recognized that “it is undeniable that the Act reduces the amount of control or
supervision that the Attorney General and, through him, the President exercises
over the investigation and prosecution of a certain class of alleged criminal
activity.” 487 U.S. at 695. The Court also stated in Morrison that “there is no
real dispute that the functions performed by the independent counsel are
`executive’ in the sense that they are law enforcement functions that typically
have been undertaken by officials within the Executive Branch.” 487 U.S. at 692
(emphasis added). Use of the world “typically” in that sentence, considered in
light of the Court’s ultimate conclusion upholding the independent counsel
provisions, must mean that prosecutorial functions need not always be
undertaken by Executive Branch officials. See Stephanie A.J. Dangel, Note, Is
Prosecution a Core Executive Function? Morrison v. Olson and the Framers’
Intent, 99 Yale L.J. 1069, 1070 (1990)(Framers intended that prosecution would
be undertaken by but not constitutionally assigned to executive officials, and that
such officials would typically but not always prosecute). Thus, we reject
Boeing’s assertion that all prosecutorial power of any kind belongs to the
Executive Branch.90

Prosecution, not being a core or exclusive function of the Executive, cannot
claim the constitutional stature of Congress’s oversight prerogative. In the absence
of a credible claim of encroachment or aggrandizement by the legislature of essential
Executive powers, the Supreme Court has held the appropriate judicial test is one that
determines whether the challenged legislative action “‘prevents the Executive Branch
from accomplishing its assigned functions’,” and, if so, “‘whether that impact is

88

Id. at 694.

89

9 F.3d 743 (9th Cir. 1993).

90

9 F.3d at 751 (emphasis supplied). See also, Vermont Agency of National Resources v.
U.S. ex. rel. Stevens, 529 U.S. 765(2000)(holding that qui tam relators meet Article III
standing requirements).

CRS-24
justified by an overriding need to promote objectives within the constitutional
authority of Congress’.” 91
Congressional oversight and access to documents and testimony, unlike the
action of a court, cannot stop a prosecution or set limits on the management of a
particular case. Access to information by itself would not seem to disturb the
authority and discretion of the Executive Branch to decide whether to prosecute a
case. The assertion of prosecutorial discretion in the face of a congressional demand
for information is arguably akin to the “generalized” claim of confidentiality made
in the Watergate executive privilege cases. That general claim — lacking in specific
demonstration of disruption of executive functions — was held to be overcome by
the more focused demonstration of need for information by a coordinate branch of
government.92
Given the legitimacy of congressional oversight and investigation of the law
enforcement agencies of government, and the need for access to information pursuant
to such activities,93 a claim of prosecutorial discretion by itself would not seem to be
sufficient to defeat a congressional need for information. The congressional action
itself does not and cannot dictate prosecutorial policy or decisions in particular cases.
Congress may enact statutes that influence prosecutorial policy, and information
91

Nixon v. Administration of General Services, 433 U.S. 425, 433 (1977); Commodity
Futures Trading Commission v. Schor, 487 U.S. 833, 851 (1986); Morrison v. Olson, 487
U.S. 654, 693-96 (1988).

92
93

U.S. v. Nixon, 418 U.S. 683, 705-706, 711-712 (1974).

The recent district court ruling in House Committee on the Judiciary v. Miers, et al., Case
No. 08-00409 (D.D.C. July 31, 2008) (Miers)(slip opinion), in rejecting a claim of lack of
standing of the House Judiciary Committee to challenge an Executive assertion of absolute
immunity from compulsory congressional process, reiterated that prior Supreme Court
rulings in McGrain v. Daugherty, Eastland v. United States Servicemen’s Fund, and
Barenblatt v. United States, among others, had firmly established that Congress’s power and
authority to seek and compel information from Executive agencies in criminal and civil
enforcement contexts is constitutionally-based. In denying the claim by the Executive that
a jurisdictional committee charged with oversight of the Justice Department could not
permissibly employ its investigative resources to determine the reasons for the forced
resignations and replacement of nine United States Attorneys, the court stated that “Given
its ‘unique ability to address improper partisan influence in the prosecutorial process, . .
.[n]o other institution will fill the vacuum if Congress is unable to investigate and respond
to this evil.’. . . With the legitimacy of its investigation established, there is no reason to
belabor the argument concerning informational standing - - non-compliance with a duly
issued subpoena is a quintessential informational injury. . . .Thus, the Committee filed this
suit to vindicate both its right to the information that is the subject of the subpoena and its
institutional prerogative to compel compliance with its subpoena. A harm to either interest
satisfies the injury-in-fact standing requirement.”Slip opinion at 41. See also slip opinion
at 64:. “The exercise of Congress’s investigative ‘power,’ which the Executive concedes that
Congress has, creates rights. For instance, by utilizing its power to issue subpoenas and
proceed with an investigation via compulsory process, Congress creates a legal right to the
responsive information that those subpoenas would yield. To hold that Congress’s ability
to enforce its subpoenas in federal court turns on whether an investigative function and
accompanying authority to utilize subpoenas are properly labeled as ‘powers’ or ‘rights’
would elevate form over substance. The Court declines to do so.” (Emphasis in original).

CRS-25
relating to enforcement of the laws would seem necessary to perform that legislative
function. Thus, under the standard enunciated in Morrison v. Olson and Nixon v.
Administrator of General Services, the fact that information is sought on the
executive’s enforcement of criminal laws would not in itself seem to preclude
congressional inquiry.
In light of the Supreme Court’s consistent support of the power of legislative
inquiry, and in the absence of a countervailing constitutional prerogative of the
executive, reviewing courts may be disposed to be “sensitive to the legislative
importance of congressional committees on oversight and investigations and
recognize that their interest in the objective and efficient operation of ... agencies
serves a legitimate and wholesome function with which we should not lightly
interfere.”94 More particularly, future judicial decisions involving presidential claims
of privilege with respect to prosecutorial decisionmaking by DOJ likely will be
informed by two District of Columbia Circuit rulings that filled important gaps in the
law of presidential privilege that had been developed between 1977 and 1983.95
The Nixon and post-Watergate cases established the broad contours of the
presidential communications privilege. Under those precedents, the privilege, which
is constitutionally rooted, could be invoked by the President when asked to produce
documents or other materials or information that reflect presidential decisionmaking
and deliberations that he believes should remain confidential. If the President does
so, the materials become presumptively privileged. The privilege, however, is
qualified, not absolute, and can be overcome by an adequate showing of need.
Finally, while reviewing courts have expressed reluctance to balance executive
privilege claims against a congressional demand for information, they have
acknowledged they will do so if the political branches have tried in good faith but
failed to reach an accommodation.
However, until the District of Columbia Circuit’s 1997 ruling in In re Sealed
Case,96 and its 2004 ruling in Judicial Watch, Inc. v. Department of Justice,97 these
judicial decisions had left important gaps in the law of presidential privilege which
increasingly became focal points, if not the source, of interbranch confrontations.
Among the more significant issues left open included whether the President has to
have actually seen or been familiar with the disputed matter; whether the presidential
privilege encompasses documents and information developed by, or in the possession
of, officers and employees in the departments and agencies of the Executive Branch;
whether the privilege encompasses all communications with respect to which the
President may be interested or is it confined to presidential decisionmaking and, if
so, is it limited to any particular type of presidential decisionmaking; and precisely
what kind of demonstration of need must be shown to justify release of materials that

94

Gulf Oil Corp. v. FPC, 563 F.2d 588, 610 (3d Cir. 1977).

95

For an in-depth discussion of the Nixon and post-Watergate case law, see “Presidential
Claims of Executive Privilege: History, Law, Practice and Recent Developments,” CRS
Report RL30319, 2-9, by Morton Rosenberg.
96

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

97

365 F.3d 1108 (D.C. Cir. 2004).

CRS-26
qualify for the privilege. The unanimous panel in In re Sealed Case addressed each
of these issues in a manner that may have drastically altered the future legal playing
field in resolving such disputes. The recent ruling in the Judicial Watch case
reinforces that likelihood.98
In re Sealed Case (Espy)99 arose out of an Office of Independent Counsel (OIC)
investigation of former Agriculture Secretary Mike Espy. When allegations of
improprieties by Espy surfaced in March of 1994, President Clinton ordered the
White House Counsel’s Office to investigate and report to him so he could determine
what action, if any, he should undertake. The White House Counsel’s Office
prepared a report for the President, which was publically released on October 11,
1994. The President never saw any of the underlying or supporting documents to the
report. Espy had announced his resignation on October 3, to be effective on
December 31. Meanwhile, the Independent Counsel had been appointed on
September 9 and the grand jury issued a subpoena for all documents that were
accumulated or used in preparation of the report on October 14, three days after the
report’s issuance. The President withheld 84 documents, claiming both the executive
and deliberative process privileges for all documents. A motion to compel was
resisted on the basis of the claimed privileges and after in camera review the district
court quashed the subpoena, but in its written opinion did not discuss the documents
in any detail and provided no analysis of the grand jury’s need for the documents.
The appeals court reversed.
At the outset, the court’s opinion carefully distinguishes between the
“presidential communications privilege” and the “deliberative process privilege.”
Both, the court observed, are executive privileges designed to protect the
confidentiality of executive branch decisionmaking. The deliberative process
privilege applies to executive branch officials generally, is a common law privilege
which requires a lower threshold of need to be overcome, and “disappears altogether
when there is any reason to believe government misconduct has occurred.”100
On the other hand, the court explained, the presidential communications
privilege is rooted in “constitutional separation of powers principles and the
President’s unique constitutional role” and applies only to “direct decisionmaking by
the President.”101 The privilege may be overcome only by a substantial showing that
“the subpoenaed materials likely contain[] important evidence” and that “the
evidence is not available with due diligence elsewhere.”102 The presidential privilege

98

Neither case, however, involved congressional access to information.

99

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

100

121 F.3d at 745, 746; see also id. at 737-738 (“[W]here there is reason to believe the
documents sought may shed light on government misconduct, the [deliberative process]
privilege is routinely denied on the grounds that shielding internal government deliberations
in this context does not serve ‘the public interest in honest, effective government”’).
101

Id. at 745, 752. See also id. at 753 (“...these communications nonetheless are ultimately
connected with presidential decisionmaking”).
102

Id. at 754. See also id. at 757.

CRS-27
applies to all documents in their entirety103 and covers final and post-decisional
materials as well as pre-deliberative ones.104
Turning to the chain of command issue, the court held that the presidential
communications privilege must cover communications made or received by
presidential advisers in the course of preparing advice for the President even if those
communications are not made directly to the President. The court rested its
conclusion on “the President’s dependence on presidential advisers and the inability
of the deliberative process privilege to provide advisers with adequate freedom from
the public spotlight” and “the need to provide sufficient elbow room for advisers to
obtain information from all knowledgeable sources”.105 Thus the privilege will “apply
both to communications which these advisers solicited and received from others as
well as those they authored themselves. The privilege must also extend to
communications authored or received in response to a solicitation by members of a
presidential adviser’s staff.”106
The court, however, was acutely aware of the dangers to open government that
a limitless extension of the privilege risks and carefully cabined its reach by
explicitly confining it to White House staff, and not staff in the agencies, and then
only to White House staff that has “operational proximity” to direct presidential
decisionmaking.
We are aware that such an extension, unless carefully circumscribed to
accomplish the purposes of the privilege, could pose a significant risk of
expanding to a large swath of the executive branch a privilege that is bottomed
on a recognition of the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s
decisionmaking process is adequately protected. Not every person who plays a
role in the development of presidential advice, no matter how remote and
removed from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in executive branch
agencies. Instead, the privilege should apply only to communications authored
or solicited and received by those members of an immediate White House
advisor’s staff who have broad and significant responsibility for investigation
and formulating the advice to be given the President on the particular matter to
which the communications relate. Only communications at that level are close
enough to the President to be revelatory of his deliberations or to pose a risk to
the candor of his advisers. See AAPS, 997 F.2d at 910 (it is “operational
proximity” to the President that matters in determining whether “[t]he President’s
confidentiality interests” is implicated)(emphasis omitted).

103

In contrast, the deliberative process privilege does not protect documents that simply state
or explain a decision the government has already made or material that is purely factual,
unless the material is inextricably intertwined with the deliberative portions of the materials
so that disclosure would effectively reveal the deliberations. 121 F.3d at 737.
104

Id. at 745.

105

Id. at 752.

106

Id.

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Of course, the privilege only applies to communications that these advisers and
their staff author or solicit and receive in the course of performing their function
of advising the President on official government matters. This restriction is
particularly important in regard to those officials who exercise substantial
independent authority or perform other functions in addition to advising the
President, and thus are subject to FOIA and other open government statutes. See
Armstrong v. Executive Office of the President, 90 F.3d 553, 558 (D.C. Cir.
1996), cert denied — U.S. — -, 1 17 S.Ct. 1842, 137 L. Ed.2d 1046 (1997). The
presidential communications privilege should never serve as a means of shielding
information regarding governmental operations that do not call ultimately for
direct decisionmaking by the President. If the government seeks to assert the
presidential communications privilege in regard to particular communications of
these “dual hat” presidential advisers, the government bears the burden of
proving that the communications occurred in conjunction with the process of
advising the President.107

The appeals court’s limitation of the presidential communications privilege to
“direct decisionmaking by the President” makes it imperative to identify the type of
decisionmaking to which it refers. A close reading of the opinion makes it arguable
that it is meant to encompass only those functions that form the core of presidential
authority, involving what the court characterized as “quintessential and non-delegable
Presidential power.”108 In the case before it the court was specifically referring to the
President’s Article II appointment and removal power which was the focal point of
the advice he sought in the Espy matter. But it is clear from the context of the
opinion that the description was meant to juxtapose appointment and removal power
in contrast with “presidential powers and responsibilities” that “can be exercised or
performed without the President’s direct involvement, pursuant to a presidential
delegation of authority or statutory framework.”109 The reference the court uses to
illustrate the latter category is the President’s Article II duty “to take care that the
laws are faithfully executed,” a constitutional direction that the courts have
consistently held not to be a source of presidential power but rather an obligation on
the President to see to it that the will of Congress is carried out by the executive
bureaucracy.110
The appeals court, then, would appear to be confining the parameters of the
newly formulated presidential communications privilege by tying it to those Article
II functions that are identifiable as “quintessential and non-delegable,” which would
appear to include, in addition to the appointment and removal powers, the

107

Id. (footnote omitted).

108

Id. at 752.

109

Id. at 752-53.

110

See, e.g., Kendall ex rel. Stokes v. United States, 37 U.S. (12 Pet.) 522, 612-613 (1838);
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952); Myers v. United States,
272 U.S. 52, 177 (1926)(Holmes, J., dissenting); National Treasury Employees Union v.
Nixon, 492 F.2d 587, 604 (D.C. Cir. (1974): Biodiversity Associates, et al v. Cables, 357 F.
3d. 1152, 1161-63(10th Cir. 2004)(“[W]hen Congress is exercising its own powers with
respect to matters of public rights, the executive role of ‘tak[ing] Care that the Laws be
faithfully executed,’ U.S. Const. Art. II, §3, is entirely derivative of the laws passed by
Congress, and Congress may be as specific in its instruction to the executive as it wishes.”).

CRS-29
commander-in-chief power, the sole authority to receive ambassadors and other
public ministers, the power to negotiate treaties, and the power to grant pardons and
reprieves. On the other hand, decisionmaking vested by law in agency heads such
as prosecutorial decisionmaking, rulemaking, environmental policy, consumer
protection, workplace safety and labor relations, among others, would not necessarily
be covered. Of course, the President’s role in supervising and coordinating (but not
displacing) decisionmaking in the executive branch remains unimpeded. But his
communications would presumably not be cloaked by constitutional privilege.
Such a reading of this critical passage is consonant with the court’s view
of the source and purpose of the presidential communications privilege and its
expressed need to confine it as narrowly as possible. Relying on United States v.
Nixon ,111 the In re Sealed Case court identifies “the President’s Article II powers and
responsibilities as the constitutional basis of the presidential communications
privilege. Since the Constitution assigns these responsibilities to the President alone,
arguably the privilege of confidentiality that derives from it also should be the
President’s alone.”112 Again relying on Nixon the appeals court pinpoints the
essential purpose of the privilege: “[Tlhe privilege is rooted in the need for
confidentiality to ensure that presidential decisionmaking is of the highest caliber,
informed by honest advice and knowledge. Confidentiality is what ensures the
expression of ‘candid, objective, and even blunt or harsh opinions’ and the
comprehensive exploration of all policy alternatives before a presidential course of
action is selected.”113 The limiting safeguard is that the privilege will apply in those
instances where the Constitution provides that the President alone must make a
decision. “The presidential communications privilege should never serve as a means
of shielding information regarding governmental operations that do not call
ultimately for direct decisionmaking by the President.”114
The District of Columbia Circuit’s 2004 decision in Judicial Watch, Inc. v.
Department of Justice115 appears to lend substantial support to the above-expressed
understanding of Espy. Judicial Watch involved requests for documents concerning
pardon applications and pardon grants reviewed by the Justice Department’s Office
of the Pardon Attorney and the Deputy Attorney General for consideration by
President Clinton.116 Some 4,300 documents were withheld on the grounds that they
were protected by the presidential communications and deliberative process
privileges. The district court held that because the materials sought had been

111

418 U.S. 683 (1974).

112

Id. at 748.

113

Id. at 750.

114

Id. at 752.

115

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

116

The President has delegated the formal process of review and recommendation of his
pardon authority to the Attorney General who in turn has delegated it to the Deputy Attorney
General. The Deputy Attorney General oversees the work of the Office of the Pardon
Attorney.

CRS-30
produced for the sole purpose of advising the President on a “quintessential and nondelegable Presidential power” — the exercise of the President’s constitutional pardon
authority — the extension of the presidential communications privilege to internal
Justice Department documents which had not been “solicited and received” by the
President or the Office of the President was warranted.117 The appeals court reversed,
concluding that “internal agency documents that are not solicited and received by the
President or his Office are instead protected against disclosure, if at all, by the
deliberative process privilege.” 118
Guided by the analysis of the Espy ruling, the panel majority emphasized that
the “solicited and received” limitation “is necessitated by the principles underlying
the presidential communications privilege, and a recognition of the dangers of
expanding it too far.”119 Espy teaches, the appeals court explained, that the privilege
may be invoked only when presidential advisers in close proximity to the President
who have significant responsibility for advising him on non-delegable matters
requiring direct presidential decisionmaking, have solicited and received such
documents or communications or the President has received them himself. In
rejecting the Government’s argument that the privilege should be applicable to all
departmental and agency communications related to the Deputy Attorney General’s
pardon recommendations for the President, the panel majority held that “such a
bright-line rule is inconsistent with the nature and principles of the presidential
communications privilege, as well as the goal of serving the public interest.
Communications never received by the President or his Office are unlikely to be
revelatory of his deliberations ... nor is there any reason to fear that the Deputy
Attorney General’s candor or the quality of the Deputy’s pardon recommendations
would be sacrificed if the presidential communications privilege did not apply to
internal documents. Any pardon documents, reports or recommendations that the
Deputy Attorney General submits to the Office of the President, and any direct
communications the Deputy or the Pardon Attorney may have with the White House
Counsel or other immediate Presidential advisors will remain protected. It is only
those documents and recommendations of Department staff that are not submitted by
the Deputy Attorney General for the President and are not otherwise received by the
Office of the President, that do not fall under the presidential communications
privilege”120 Indeed, the Judicial Watch panel makes it clear that the Espy rationale
would preclude cabinet department heads from being treated as being part of the
President’s immediate personal staff or as some unit of the Office of the President:
Extension of the presidential communications privilege to the Attorney General’s
delegatee, the Deputy Attorney General, and his staff, on down to the Pardon
Attorney and his staff, with the attendant implication for expansion to other
Cabinet officers and their staffs, would, as the court pointed out in In re Sealed
Case, pose a significant risk of expanding to a large swatch of the executive

117

365 F.3d at 1109-12.

118

Id. at 1112, 1114, 1123.

119

Id. at 1114.

120

Id. at 1117.

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branch a privilege that is bottomed on a recognition of the unique role of the
President.121

The Judicial Watch majority took great pains to explain why Espy and the case
before it differed from the Nixon and post-Watergate cases: “Until In re Sealed Case,
the privilege had been tied specifically to direct communications of the President
with his immediate White House advisors”122 The Espy court, it explained, was for
the first time confronted with the question whether communications that the
President’s closest advisors make in the course of preparing advise for the President
which the President never saw should also be covered by the presidential privilege.
The Espy court’s answer was to “espouse[ ] a ‘limited extension’ of the privilege’
‘down the chain of command’ beyond the President to his immediate White House
advisors only,” recognizing “the need to ensure that the President would receive full
and frank advice with regard to his non-delegable appointment and removal powers,
but was also wary of undermining countervailing considerations such as openness in
government.... Hence, the [Espy] court determined that while ‘communications
authored or solicited and received’ by immediate White House advisors in the Office
of the President could qualify under the privilege, communications of staff outside
the White House in executive branch agencies that were not solicited and received
by such White House advisors could not.”123
The situation before the Judicial Watch court tested the Espy principles. While
the presidential decision involved — exercise of the President’s pardon power — was
certainly a non-delegable, core presidential function, the operating officials involved,
the Deputy Attorney General and the Pardon Attorney, were deemed to be too remote
from the President and his senior White House advisors to be protected. The court
conceded that functionally those officials were performing a task directly related to
the pardon decision but concluded that an organizational test was more appropriate
for confining the potentially broad sweep that would result from a functional test;
under the latter test, there would be no limit to the coverage of the presidential

121

Id. at 1121. See also Id. at 1122.

122

Id. at 1116. See also Miers, supra at not e 93, rejecting a claim that a House Judiciary
Committee investigation of the removal and replacement as illegitimate because it intrudes
into the President’s constitutional authority to appoint and remove officers of the United
States. The court responded that “the Executive characterizes the Committee’s investigation
too narrowly. It is not merely an investigation into the Executive’s use of his removal power
but rather a broader inquiry into whether improper considerations have influenced
prosecutorial discretion. Similarly, in Nixon v. Adm’r. Gen. Services, the Supreme Court
indicated that if Congress’s need to understand how. . .political processes had in fact
operated in order to gauge the necessity for remedial legislation’ was a legitimate topic for
investigation. 433 U.S. at 453. Once again, the same can be said of the Committee’s
investigation. It defies both reason and precedent to say that the Committee, which is
charged with oversight of DOJ generally, cannot permissibly employ its investigative
resources on this subject.” Slip opinion at 40-41.
123

Id. at 1116, 1117.

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communications privilege. In such circumstances, the panel majority concluded, the
lesser protections of the deliberative process privilege would have to suffice.124
4. The Claim of Deliberative Process Privilege.
Espy and Judicial Watch, taken together with Morrison v. Olson’s holding that
prosecution is not a core or exclusive function of the executive, and McGrain v.
Daugherty’s understanding that Congress’ access to prosecutorial information is
founded on its plenary authority to create, empower and fund the activities of the
Department, raise serious doubts as to the propriety of the claim to a presidential
communications privilege in a situation involving internal agency deliberative
information. Rather, a withholding claim based on “deliberative process” arguably
must be tested as one of the common law privileges available to executive agencies
that may be overcome by a showing of need by an investigatory body and, as Espy
noted, “disappears” upon a reasonable belief by such investigating body that
government misconduct has occurred. Thus, a demonstration of need by a
jurisdictional committee in most circumstances would appear to be sufficient, and a
plausible showing of fraud, waste, abuse or maladministration would likely be
conclusive.
Even before Espy, courts and committees had consistently resisted withholding
claims of agencies as attempts to establish a species of agency privilege designed to
thwart congressional oversight efforts. Thus it has been pointed out that the claim
that internal communications need to be “frank” and “open” does not merit special
support and that coupling that characterization with the notion that those
communications were part of a “deliberative process” will not add any weight to the
argument. In effect, such arguments have been seen as attempting to justify a
withholding from Congress on the same grounds that an agency would use to
withhold such documents from a citizen requester under Exemption 5 of the Freedom
of Information Act (FOIA).125
Such a line of argument is likely to be found to be without substantial basis. As
has been indicated above, Congress has vastly greater powers of investigation than
those of citizen FOIA requesters. Moreover, in the FOIA itself, Congress carefully
provided that the exemption section “is not authority to withhold information from
Congress.”126 The D.C. Circuit, in Murphy v. Department of the Army,127 explained
that FOIA exemptions were no basis for withholding from Congress because of:
the obvious purpose of the Congress to carve out for itself a special right of
access to privileged information not shared by others.... Congress, whether as a
body, through committees, or otherwise, must have the widest possible access to
executive branch information if it is to perform its manifold responsibilities
effectively. If one consequence of the facilitation of such access is that some

124

Id. at 1118-24.

125

5 U.S.C. 553(b)(5)(2000).

126

5 U.S.C. 552 d).

127

613 F. 2d 1151 (D.C. Cir. 1979).

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information will be disclosed to congressional authorities but not to private
persons, that is but an incidental consequence of the need for informed and
effective lawmakers.128

Further, it may be contended that the ability of an agency to assert the need for
candor to ensure the efficacy of internal deliberations as a means of avoiding
congressional information demands would severely undermine the oversight process.
If that were sufficient, an agency would be encouraged to disclose only that which
supports its positions, and withhold that with flaws, limitations, unwanted
implications, or other embarrassments. Oversight would cease to become an
investigative exercise of gathering the whole evidence, and become little more than
a set-piece in which an agency decides what to present in a controlled “show and tell”
performance.
Moreover, every federal official, including attorneys, could assert the imperative
of timidity — that congressional oversight, by holding up to scrutiny the advice he
gives, will frighten him away from giving frank opinions, or discourage others from
asking him for them. This argument, not surprisingly, has failed over the years to
persuade legislative bodies to cease oversight. Indeed, when the Supreme Court
discussed the “secret law” doctrine in NLRB v. Sears, Roebuck & Co.129 it addressed
why federal officials — including those giving legal opinions — need not hide
behind such fears:
The probability that an agency employee will be inhibited from freely advising
a decisionmaker for fear that his advice, if adopted, will become public is slight.
First, when adopted, the reasoning becomes that of agency and becomes its
responsibility to defend. Second, agency employees will generally be
encouraged rather than discouraged by public knowledge that their policy
suggestions have been adopted by the agency. Moreover, the public interest in
knowing the reasons for a policy actually adopted by an agency supports
...[disclosure].130

Arguably, then, a “chilling effect” argument needs to be demonstrated
concretely in particular cases or else it would overwhelm investigative prerogatives.
The recent district court ruling in Committee on the Judiciary v. Harriet Miers, et
al.,131 appears to support such a limiting standard in the face of “chilling effect”
claims. Miers involved a congressional committee challenge to presidential assertions
that past and present senior advisers to the President are absolutely immune from
compelled congressional process when the President invokes executive privilege. The
Executive argued that in such circumstance, since the President himself is absolutely
immune from compelled congressional testimony, then advisers to the President must
be regarded as his “alter ego” and be entitled to the same absolute immunity. That is,
forcing such advisers to testify before Congress would be tantamount to compelling
the President to do so. The district court unequivocally rejected the assertion as

128

613 F. 2d at 1155-56, 1158.

129

421 U.S. 132 (1975).

130

421 U.S. at 161 (emphasis in original).

131

Civil Action No. 08-0409(JDB)(D.D.C., July 31, 2008)(Miers).

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“entirely unsupported by existing case law” and contradicted by “Supreme Court
authority that is all but conclusive on this question and that powerfully suggests that
such advisers do not enjoy absolute immunity.”132 In the course of the opinion, the
court addressed the Executive’s claim that without absolute immunity there would
be a “chilling effect” on the candid and frank counsel advisers would provide a Chief
Executive. In response, the court stated:
The prospect of being hauled in front of Congress – daunting as it may be
– would not necessarily trigger the chilling effect that the Executive predicts.
Senior executive officials often testify before Congress as a normal part of their
jobs, and forced testimony before Congress does not implicate the same concern
regarding personal financial exposure as does a damages suit. Significantly, the
Committee concedes that an executive branch official may assert executive
privilege on a question-by-question basis as appropriate. That should serve as an
effective check against public disclosure of truly privileged communications,
thereby mitigating any adverse impact on the quality of advice that the President
receives . . . In any event, the historical record produced by the Committee
reveals that senior advisors to the President have often testified before Congress
subject to various subpoenas dating back to 1973. See Auerbach Decl. ¶¶ 2-3.
Thus, it would hardly be unprecedented for Ms. Miers to appear before Congress
to testify and assert executive privilege where appropriate. Still, it is noteworthy
that in an environment where there is no judicial support whatsoever for the
Executive’s claim of absolute immunity, the historical record also does not
reflect the wholesale compulsion by Congress of testimony from senior
presidential advisors that the executive fears.133

Concluding Observations
Congress has an established right and judicially recognized prerogative,
pursuant to its constitutional authority to legislate, to receive from officers and
employees of the agencies and departments of the United States accurate and truthful
information regarding the federal programs and policies administered by such
employees and agencies. As stated by the Supreme Court, “[a] legislative body
cannot legislate wisely or effectively in the absence of information regarding
conditions which the legislation is intended to affect or change”134, and thus, what
observers might characterize as political gamesmanship must yield, according to the
courts, to the clear public interest of providing the peoples’ elected representatives
in the Congress with accurate and truthful information upon which to effectively
fashion or revise the laws for the Nation. There is no countervailing right or interest
for a federal official in an agency or department to intentionally withhold, conceal or
prevent the disclosure of truthful public policy information from the United States
Congress concerning legislation affecting the programs and policies administered by
that agency, when requested by a jurisdictional committee of the Congress. This
understanding applies with equal force to the law enforcement activities of the
Department of Justice. As detailed in this report, as a matter of law, buttressed by 85
132

Miers, slip opinon at 78.

133

Id. at 83-84 (Emphasis in original).

134

McGrain v. Daugherty, 272 U.S. 135, 175 (1927).

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years history and practice, congressional committees with jurisdiction and authority
that have exercised the full panoply of oversight and investigatory power available
to them, have consistently gained access to needed information from the Department
in the form of documents or testimony from any component of the agency, regardless
of the subject matter involved and irrespective of the grade level of the officer or
employee with the information or required knowledge.
Judicial rulings over the past two decades rejecting assorted presidential
prerogatives that might deny congressional access to agency information appear to
have buttressed congressional oversight authority. The Supreme Court’s ruling in
Morrison v. Olsen casts significant doubt whether prosecutorial discretion is a core
presidential power over which executive privilege may be asserted, a doubt that has
been magnified by the appellate court rulings in Espy and Judicial Watch. In those
latter decisions, assertion of the presidential communications privilege was held to
be limited to “quintessential and nondelegable presidential power” and is confined
to communications to advisors in “operational proximity” with the President. Those
decisions indicate that core powers include only decisions that the President alone
can make under the Constitution: appointment and removal, pardoning, receiving
ambassadors and other public ministers, negotiating treaties, and exercising powers
as Commander-in-Chief. Espy strongly hinted, and Judicial Watch made clear, that
the protection of the presidential communications privilege extends only to the
boundaries of the White House and the Executive office complex and not to the
departments and agencies, even if the actions there related to a core power, unless
they are “solicited and received” by a close White House advisor or the President
himself. Judicial Watch, which dealt with pardon documents in DOJ that had not
been “solicited and received” by a close White House advisor, determined that “the
need for the presidential communications privilege becomes more attenuated the
further away the advisors are from the President [which] affects the extent to which
the contents of the President’s communications can be inferred from predecisional
communications.”135 Of course these rulings did not involve congressional requests,
but until reviewed

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3ARL34197. Public record. Not legal advice.