[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                ENSURING EXECUTIVE BRANCH ACCOUNTABILITY

=======================================================================

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 29, 2007

                               __________

                           Serial No. 110-12

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


                                 ______

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. SCOTT, Virginia            HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts      CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts   RIC KELLER, Florida
ROBERT WEXLER, Florida               DARRELL ISSA, California
LINDA T. SANCHEZ, California         MIKE PENCE, Indiana
STEVE COHEN, Tennessee               J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia                STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York          LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California           JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

           Subcommittee on Commercial and Administrative Law

                LINDA T. SANCHEZ, California, Chairwoman

JOHN CONYERS, Jr., Michigan          CHRIS CANNON, Utah
HANK JOHNSON, Georgia                JIM JORDAN, Ohio
ZOE LOFGREN, California              RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts   TOM FEENEY, Florida
MELVIN L. WATT, North Carolina       TRENT FRANKS, Arizona
STEVE COHEN, Tennessee

                     Michone Johnson, Chief Counsel

                    Daniel Flores, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 29, 2007

                           OPENING STATEMENT

                                                                   Page
The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Chairwoman, Subcommittee on 
  Commercial and Administrative Law..............................     1
The Honorable Chris Cannon, a Representative in Congress from the 
  State of Utah, and Ranking Member, Subcommittee on Commercial 
  and Administrative Law.........................................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on Commercial and 
  Administrative Law.............................................    19

                               WITNESSES

Mr. John D. Podesta, former White House Chief of Staff to 
  President Clinton, President and CEO, Center for American 
  Progress
  Oral Testimony.................................................    26
  Prepared Statement.............................................    28
Ms. Beth Nolan, former White House Counsel to President Clinton, 
  Partner, Crowell & Moring
  Oral Testimony.................................................    31
  Prepared Statement.............................................    34
Mr. Noel J. Francisco, former Associate Counsel to President 
  George W. Bush, Partner, Jones Day
  Oral Testimony.................................................    41
  Prepared Statement.............................................    42
Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center 
  for Justice, NYU School of Law
  Oral Testimony.................................................    45
  Prepared Statement.............................................    48

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Chris Cannon, a 
  Representative in Congress from the State of Utah, and Ranking 
  Member, Subcommittee on Commercial and Administrative Law......     4
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, Member, 
  Subcommittee on Commercial and Administrative Law, and 
  Chairman, Committee on the Judiciary...........................    25

                                APPENDIX
               Material Submitted for the Hearing Record

Response to Post-Hearing Questions from John Podesta, former 
  White House Chief of Staff to President Clinton, President and 
  CEO, Center for American Progress..............................   107
Response to Post Hearing Questions from Noel J. Francisco, former 
  Associate Counsel to President George W. Bush, Partner, Jones 
  Day............................................................   108
Response to Post-Hearing Questions from Frederick A.O. Schwarz, 
  Jr., Senior Counsel, Brennan Center for Justice, NYU School of 
  Law............................................................   109
Letter from Fred F. Fielding, Counsel to the President, to the 
  Chairman Leahy, Chairman Conyers, Ranking Member Specter, 
  Ranking Member Smith, and Congresswoman Sanchez................   117
Congressional Research Service Memorandum on Oversight and 
  Executive Privilege Issues Pertaining to the March 29, 2007 
  Hearing on ``Ensuring Executive Branch Accountability''........   120
Prepared Statement of Bruce Fein, on behalf of the American 
  Freedom Agenda.................................................   129


                ENSURING EXECUTIVE BRANCH ACCOUNTABILITY

                              ----------                              


                        THURSDAY, MARCH 29, 2007

                  House of Representatives,
                         Subcommittee on Commercial
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 1:30 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Linda 
Sanchez (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Sanchez, Conyers, Johnson, 
Delahunt, Cannon, and Jordan.
    Ms. Sanchez. The hearing of the Committee on the 
Judiciary's Subcommittee on Commercial and Administrative Law 
will come to order.
    And I will recognize myself for a short statement.
    Since President George W. Bush came into office in 2001, 
the executive branch has been vocally resistant to transparency 
and accountability in its own Government practices.
    Under this Administration's broad view of executive power, 
the executive branch has consistently rebuffed Congress's 
legitimate right to the information it needs to perform its 
article I legislative and oversight functions. In fact, this 
Administration seems to regard any attempt at oversight as an 
assault on the Constitution.
    In instances such as Vice President Cheney's energy task 
force, the FBI's abuse of national security letters, and the 
botched Federal response to Hurricane Katrina, this 
Administration has failed to share necessary information that 
would ensure executive branch accountability.
    The latest example of this Administration's unwillingness 
to be forthright with the Congress and the American public is 
the growing controversy over the firing of the U.S. attorneys.
    On March 6, 2007, this Subcommittee held a hearing 
entitled, ``H.R. 580, Restoring Checks and Balances in the 
Confirmation Process of United States Attorneys.'' The 
testimony heard at that hearing raised numerous and serious 
questions concerning a potential partisan scheme to purge 
Federal prosecutors.
    As a result of that hearing, the Judiciary Committee is 
engaged in a formal investigation of the matter.
    Evidence of shifting explanations for U.S. attorneys' 
dismissals, close coordination between the White House and 
Justice Department on the firings, and a White House plan to 
dismiss all 93 U.S. attorneys has guided our investigation to 
Administration officials directly linked to the purge scheme.
    Despite requests for voluntary information and testimony on 
the record from these officials, the White House has offered 
informal, private meetings without transcripts or oaths. 
Additionally, the White House has refused to produce 
information on internal White House communications involving 
this matter.
    To date, the White House has ignored efforts to negotiate 
these conditions, and the President, using the blanket claim of 
executive privilege, has publicly stated that he is willing to 
go to the mat to prevent the information Congress is seeking 
from becoming public.
    While I recognize the need for Presidents to receive candid 
and frank advice from aides, the courts have found that the 
presidential communications privilege is not absolute. In the 
seminal Supreme Court case of U.S. v. Nixon, the court held 
that the interest in the confidentiality of presidential 
communications was not sufficient to resist disclosure because 
of the strong public need for the information.
    Based on the possibility that a crime of obstruction of 
justice or misleading Congress in the U.S. attorneys case may 
have taken place, executive privilege must give way to 
Congress's legitimate oversight responsibilities and the public 
need for information.
    In fact, news reports that Karl Rove does 95 percent of his 
e-mailing from his Republican National Committee account 
indicates that these e-mails are not intended in his function 
as an advisor to the President and suggest that the claim of 
executive privilege may not even apply to Mr. Rove's e-mails.
    The restrictive conditions offered by the White House are 
also based on President Bush's unfounded concerns about 
precedents that might be set if he allows his aides to testify. 
By contrast, there is ample precedent that presidential 
advisors of both political parties have testified before 
Committees and Subcommittees of Congress.
    According to a report by the nonpartisan Congressional 
Research Service, presidential advisors have testified before 
Congress at least 74 times since 1944. Specifically, 
presidential advisors, ranging from Franklin Delano Roosevelt's 
assistant to several of Richard Nixon's advisors, have 
testified in public hearings before congressional Committees. 
Even a sitting President, President Gerald Ford, testified 
before the House Judiciary Committee about his rationale for 
pardoning President Richard Nixon.
    More recently, White House advisors in the Clinton 
administration, two of whom we are pleased to have here today, 
frequently testified before Congress. And in contrast with his 
current viewpoint, President George W. Bush has allowed close 
advisors, such as Tom Ridge, then Assistant to the President 
for Homeland Security, and Condoleezza Rice, then Assistant to 
the President for National Security Affairs, to testify.
    Given the substantial history of White House officials 
testifying before Congress and the questionable applicability 
of executive privilege in the U.S. attorney case, it is my hope 
that the Committee on the Judiciary and the White House can 
quickly come to an agreement and allow us to proceed with our 
investigation.
    To help us further explore these issues, we have a truly 
notable witness panel. We are pleased to have John Podesta, 
former White House chief of staff to President Bill Clinton; 
Beth Nolan, former White House counsel to President Bill 
Clinton; Noel Francisco, former associate White House counsel 
to President George W. Bush; and Frederick A. O. Schwarz, Jr., 
senior counsel at the Brennan Center for Justice.
    Accordingly, I very much look forward to hearing the 
testimony from these witnesses.
    And I would now like to recognize my colleague and Ranking 
Member, Mr. Cannon, for his opening remarks.
    Mr. Cannon. Thank you, Madam Chair.
    I think I will ask unanimous consent to submit my written 
statement for the record.
    Ms. Sanchez. So ordered.
    Mr. Cannon. Thank you.
    And I would just like to say--this is nothing new here. I 
look forward to information from the panel. I am actually quite 
honored that the people have come here today, who I think are 
sterling scholars and thoughtful people. And I expect that we 
will get some insight.
    This hearing, of course, is not going to be all that 
significant, in the legal context. It is more, I view it, as a 
matter of informing us of what the parameters are. And we have 
people who were called by the majority and who served in 
Democratic Administrations; they are people who command a great 
respect and whose intellect I have actually experienced in the 
past, and look forward to hearing their insights here.
    So thank you all for coming today. We appreciate it. I am 
personally honored by the fact that you would come down here to 
work with us on this issue.
    This is the beginning of an issue--I would take slight 
exception to what the Chair has said about what is going on 
currently with the Attorney General and these U.S. attorneys. 
But that is actually not very important in the context of the 
information that you will help us to understand as we look 
forward to what we are going to do if we have a battle over 
getting information.
    And just let me point out that whether you worked for the 
Clinton administration or the Bush administration, I am in 
Congress, and we up here on the dais are in Congress, and the 
staff behind us are careful of the prerogatives of Congress, 
and we actually care what the parameters are. So it is not so 
much a partisan issue as how we govern ourselves here in 
America.
    So, thank you. I appreciate the opportunity to hear from 
you.
    And, Madam Chair, I yield back.
    [The prepared statement of Mr. Cannon follows:]

 Prepared Statement of the Honorable Chris Cannon, a Representative in 
 Congress from the State of Utah, and Ranking Member, Subcommittee on 
                   Commercial and Administrative Law




    Ms. Sanchez. Thank you, Mr. Cannon.
    I would now like to recognize Mr. Conyers, the Chairman of 
the Committee on the Judiciary, for an opening statement.
    Mr. Conyers. Madam Chair and distinguished witnesses, I ask 
unanimous consent to put my statement into the record.
    Ms. Sanchez. Without objection, so ordered.
    Mr. Conyers. And all I want to remind us of is that this is 
indeed a very important hearing. This is not light. These 
witnesses are all experienced.
    And were the Judiciary Committee to accept Mr. Fred 
Fielding's offer for off-the-record interviews without 
transcripts, maybe, as I have suggested, at a pub, that we 
would be accepting a process doomed to failure.
    The mass firing of these U.S. attorneys has been shrouded 
in confusion and contradiction from the beginning. But in the 
last week, we learned that the Attorney General may have misled 
us about his role in the firings. A high-ranking Department of 
Justice official has asserted her constitutional right to use 
the fifth amendment. The Department of Justice has acknowledged 
that they misled us about Karl Rove's role in the firings.
    So, in this context, does anyone not think that a 
transcript might be more than a little useful in helping us get 
to the truth?
    We want to achieve a compromise with the White House on the 
U.S. attorney matter. I have written them two letters, which I 
ask be put into the record----
    Ms. Sanchez. Without objection, they will be.
    [The letters follow:]
    
    
    
    Mr. Conyers [continuing]. Offering to meet and discuss 
their concerns. And so far, we wait patiently, and even 
sometimes less patiently, for a response.
    I hope that over the recess cooler heads will prevail and 
we can develop a process to allow us to get to the truth.
    And so, the witnesses today are important in discussing 
executive branch accountability. And I congratulate the 
Chairwoman of this Committee on holding this hearing.
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
    in Congress from the State of Michigan, Member, Subcommittee on 
   Commercial and Administrative Law, and Chairman, Committee on the 
                               Judiciary

    Today we consider whether the White House is subject to legitimate 
congressional oversight, particularly where evidence of misconduct if 
not worse exists.
    For more than 200 years, most of us had understood that 
congressional oversight was the very bed rock of our system of checks 
and balances. Unfortunately, last week, this Committee received an 
unprecedented ``take it or leave it'' offer from the White House, 
denying us access to relevant documents as well as on the record 
interviews with witnesses. The question before us today is whether such 
actions are consistent with law, precedent or any reasonable notion of 
checks and balances.
    I can find nothing in the text or spirit of the Constitution which 
would allow an across the broad assertion of executive privilege. To 
the extent courts have recognized privilege, it has generally been when 
advice was given directly to the President, and it has been limited to 
specific communications only, not broad categories of information as 
asserted by this White House. What is puzzling to me is how such a 
privilege can even exist where the President himself has essentially 
denied any substantive knowledge of the firings. If this is the case, 
there would be very little privileged advice to the President that 
warrants protection.
    It also seems odd to be asserting privilege for communications that 
emanated not within the White House but from the Republican National 
Committee (RNC). I have a hard time believing the Constitution was 
intended to protect these emails, especially when there are indications 
they may have been sent from the RNC in order to circumvent the usual 
procedures for saving and storing emails.
    We have an entire host of precedents indicating that congressional 
committees are entitled to call White House witnesses to interviews and 
hearings and to receive White House documents. Several of the witnesses 
testifying before us today have all been hauled before congressional 
panels and have turned over thousands of pages of White House 
communications. The Bush Administration allowed White House staff to 
testify before the House Oversight Committee two weeks ago. And some of 
us remember when President Ford himself testified before this Committee 
concerning the pardoning of President Nixon.
    If this Committee were to accept Mr. Fielding's offer of off the 
record interviews without transcripts, we would be accepting a process 
doomed to failure. The mass firing of U.S. Attorneys has been shrouded 
in confusion, contradiction and outright falsehoods from the very 
beginning. Within the last week alone we learned that the Attorney 
General may have misled us about his role in the firings; a high 
ranking Department of Justice official was forced to assert her Fifth 
Amendment rights; and the Department acknowledged they misled us about 
Karl Rove's role in the firings. In this context, does anyone not think 
that a transcript might be a little useful in helping us get to the 
truth?
    As I have stated repeatedly, I hope we can achieve a reasonable 
compromise with the White House on the U.S. Attorney matter. I have 
written them two letters, offering to meet and discuss their concerns. 
So far, both letters have been ignored. I hope that over the recess 
cooler heads will prevail, and we can develop a process to allow us to 
get to the truth. We hope to hear from today's witnesses about the 
importance of Executive Branch accountability, including the need for 
the White House to provide requested information.

    Ms. Sanchez. I thank the gentleman for his statement.
    And, without objection, other Members' opening statements 
will be included in the record.
    Without objection, the Chair will be authorized to declare 
a recess of the hearing. I understand that we have votes 
expected shortly.
    I have wonderful, glowing introductions for each of you, 
but I am going to dispense with those because we are very 
interested in getting to your testimony. And I appreciate all 
your willingness and your patience with the hearing today.
    Without objection, your full statements will be placed into 
the record, so we are going to ask that you limit your oral 
statements to 5 minutes.
    You will note that we have a lighting system--I am sure 
most of you are familiar--that starts with a green light. At 4 
minutes, it turns yellow. And then right at 5 minutes, we would 
ask that when you see that red light you try to wrap up your 
testimony.
    After each witness has presented his or her testimony, 
Subcommittee Members will be permitted to ask questions subject 
to the 5-minute limit.
    Mr. Podesta, we would like to jump in and have you proceed 
with your testimony.

TESTIMONY OF JOHN D. PODESTA, FORMER WHITE HOUSE CHIEF OF STAFF 
 TO PRESIDENT CLINTON, PRESIDENT AND CEO, CENTER FOR AMERICAN 
                            PROGRESS

    Mr. Podesta. Thank you, Madam Chair and Chairman Conyers. 
Thank you, both of you, for the invitation.
    And, Mr. Cannon, thank you for your kind remarks.
    Mr. Delahunt tried to give us a little extra time here, and 
I appreciate that, but I am glad we didn't set any precedent 
about not having a transcript of the hearing.
    So, as I noted in my prepared comments, I have a somewhat 
unusual perspective, having served as both a senior White House 
official and a senior congressional aide. I spent almost 10 
years, most of that time on the Senate Judiciary Committee. So 
I have a healthy appreciation for the responsibility of each 
branch to defend its own constitutional prerogatives.
    I have to say, it is a pleasure to be here as a private 
citizen. Mr. Johnson, it was always worse to be here as a 
Government employee with my own private counsel and being on 
the receiving end of those billable hours.
    So I appreciate the opportunity to talk to you.
    The text of the Constitution, of course, says nothing about 
the right of Congress to demand information from the executive 
branch or the right of the executive to withhold it. Yet the 
Supreme Court has long recognized the power to investigate and 
the attendant power to use compulsory process. And they are 
inherent in the legislative function vested in Congress by 
article I of the Constitution.
    So our system of checks and balances requires that Congress 
have the ability to obtain information it needs to make the 
laws and to oversee and investigate the activities of the 
executive branch. It also requires that the President have the 
ability to resist demands for disclosures of information that 
could threaten important national security interests, 
particularly disclosures that would harm the national security 
or foreign relations of the United States, but also including 
those that would jeopardize ongoing criminal investigations or 
interfere with the ability to obtain frank and candid advice.
    President Clinton, from time to time, invoked the privilege 
when he felt it was necessary to protect presidential 
communications and deliberations from overly broad and 
intrusive requests for information. But he also understood that 
the privilege was not unqualified, that the public interests 
protected by the claim of privilege must be weighed against 
those that would be served by the disclosure.
    I think he appreciated that even where the privilege 
applies, it is not absolute. It can be overcome by a strong 
showing that the information request is focused, that there are 
not other practical means of obtaining the information, and 
that the information is genuinely needed by the Committee and 
is demonstrably critical to the responsible fulfillment of the 
Committee's functions.
    I think, since this President Bush and particularly since 
Vice President Cheney came into office, I think one of their 
exercises has been to increase the power of the executive, to 
some extent, at the expense of both other branches of 
Government.
    And I would note that because I think it is ironic, in that 
the greater the power the White House accumulates, the greater 
I think is the need for congressional access to White House 
documents and personnel.
    Such scrutiny I think is especially needed to investigate 
allegations of misconduct by the White House officials. Unlike 
executive branch agencies, there is no I.G. in the White House. 
The White House is not subject to the Freedom of Information 
Act. Only Congress can provide appropriate oversight and 
accountability.
    In my prepared statement, I noted numerous examples of 
presidential advisors who have testified in front of 
congressional Committees. They have included White House chiefs 
of staff, national security advisors, White House counsels, 
amongst others. I added a few, for those keeping accurate 
count, who have read the CRS report on this.
    I, in my own time, testified four times under oath before 
congressional Committees. I did so with the support of the 
President, who authorized my testimony. I made no claim of 
executive privilege. On each of those occasions, I raised my 
right hand, I swore to tell the whole truth and nothing but the 
truth. And I am proud that I did it, and I am proud that the 
President gave me the opportunity to do so.
    I detail some other experience that I had in that regard, 
as well.
    I would just make two points, because I know my time is 
short.
    One I think is that this inquiry that you are currently 
involved in is, I think, particularly important. At the heart 
of congressional oversight and investigations, I think in the 
history of investigations, have been ones that ensured the fair 
administration of justice. And I think that that is what this 
inquiry is all about.
    And I would just, if I could, reflect for a moment on the 
question of U.S. attorneys and the importance of this hearing.
    It has been said that U.S. attorneys serve at the pleasure 
of the President. And, of course, that is true. But the fact 
that the President has the power to remove a U.S. attorney 
doesn't make it proper for him to do so. It depends, really, on 
the reason.
    I put forward some different reasons, from poor performance 
to strong policy disputes. I think some of those are quite 
legitimate.
    But I think one reason that is not legitimate is if the 
removal occurred to try to influence the conduct of an ongoing 
case or if the White House was viewing this as the U.S. 
attorney not pursuing the case with great enough vigor. I think 
that is where you cross the line.
    I don't know that those are the circumstances, but I think 
this is a legitimate inquiry to determine whether that is, in 
fact, what is at the bottom of these firings or at least some 
of these firings in this matter.
    Thank you.
    [The prepared statement of Mr. Podesta follows:]

                 Prepared Statement of John D. Podesta

    Thank you, Madame Chair, and members of the subcommittee. I am John 
Podesta, President and Chief Executive Officer of the Center for 
American Progress. I am also a Visiting Professor of Law at the 
Georgetown University Law Center, where I teach a course on 
Congressional Investigations.
    I served as Chief of Staff to President Bill Clinton from 1998 to 
2001. I previously served in other roles in the White House, including 
Assistant to the President and Staff Secretary from 1993-1995, and 
Deputy Chief of Staff from 1997-1998.
    Having appeared before congressional committees a number of times 
as a senior White House aide, let me say what a pleasure it is to be 
testifying today as a private citizen--albeit one with a deep respect 
for and intimate knowledge of the institution of the presidency and the 
important role that institution, regardless of occupant, plays in the 
leadership of our country and the world.
    I also have some experience in back of the dais, Madame Chair, 
having served as Counselor to former Senate Democratic Leader Tom 
Daschle, Chief Counsel for the Senate Agriculture Committee, and Chief 
Minority Counsel for the Senate Judiciary Subcommittees on Patents, 
Copyrights, and Trademarks; Security and Terrorism; and Regulatory 
Reform.
    My service in both Congress and the White House gave me a healthy 
appreciation for the responsibility of each branch to defend its 
constitutional prerogatives.
    The text of the Constitution says nothing about the right of 
Congress to demand information from the executive branch--or the right 
of the executive to withhold it. Yet the Supreme Court has long 
recognized that the power to investigate and the attendant use of 
compulsory process are inherent in the legislative function vested in 
the Congress by Article I of the Constitution.\1\
---------------------------------------------------------------------------
    \1\ E.g. McGrain v. Daugherty 273 US 135 (1927); Sinclair v. United 
States 279 U.S. 263 (1929); Watkins v. United States 354 U.S. 178 
(1957)
---------------------------------------------------------------------------
    Our system of checks and balances requires that Congress have the 
ability to obtain the information it needs to make the laws and to 
oversee and investigate the activities of the executive branch. And it 
also requires that the president have the ability to resist demands for 
disclosures of information that could threaten important national 
interests, particularly disclosures that would harm the national 
security or foreign relations of the United States, and including those 
that would jeopardize ongoing criminal investigations or interfere with 
his ability to obtain frank and candid advice.
    President Clinton from time to time invoked the privilege when he 
felt it was necessary to protect presidential communications and 
deliberations from overly broad and intrusive requests for information.
    But he also understood that the privilege is not unqualified: that 
the public interests protected by the claim of privilege must be 
weighed against those that would be served by the disclosure. He 
appreciated that even where the privilege applies, it is not absolute. 
It can be overcome by a strong showing that the information request is 
focused, that there are not other practical means of obtaining the 
information, and that the information is genuinely needed by the 
Committee and is ``demonstrably critical to the responsible fulfillment 
of the Committee's functions.'' \2\
---------------------------------------------------------------------------
    \2\ See Senate Select Committee on Presidential Campaign Activities 
v. Nixon, 498 F.2d 725 (D.C.Cir. 1974).
---------------------------------------------------------------------------
    Some in the present administration appear to believe that 
presidential advisers are immune from giving testimony on the theory 
that Congress does not have jurisdiction to oversee the Office of the 
President.
    No president in our country's history has attempted to make such an 
extraordinary claim and no precedent provides a legal justification to 
support that perspective. But I was not surprised by this justification 
for the White House's refusal to cooperate in the Judiciary Committee's 
legitimate inquiries into the recent sacking of the U.S. Attorneys. It 
is part and parcel of the larger campaign that has occupied the Bush 
administration from the moment the president took office: to increase 
the power of the executive at the expense of the other branches of 
government.
    The irony is that the greater the power that the White House 
accumulates, the greater is the need for congressional access to White 
House documents and personnel. Such scrutiny is especially needed to 
investigate allegations of misconduct by White House officials. Unlike 
executive branch agencies, the White House has no inspector general to 
investigate abuses and it is not subject to the Freedom of Information 
Act. Only Congress can provide appropriate oversight and 
accountability.
    When the president unreasonably refuses to cooperate with its 
inquiries, Congress can prevail only if it musters the political will 
to do so.
    In 1973, President Nixon attempted to block congressional testimony 
by members of the White House staff. He claimed, ``Under the doctrine 
of separation of powers, the manner in which the president personally 
exercises his assigned powers is not subject to questioning by another 
branch of government. If the president is not subject to such 
questioning, it is equally appropriate that members of his staff not be 
so questioned, for their roles are in effect an extension of the 
presidency.'' \3\
---------------------------------------------------------------------------
    \3\ Richard Nixon, Remarks Announcing Procedures and Developments 
in Connection with the Watergate Investigations (Apr 17, 1973), in 
Public Papers of the Presidetns of the United States: Richard Nixon, 
1973, at 299, quoted in Louis Fisher, Congressional Access to 
Information: Using Legislative Will and Leverage, 52 Duke L.J. 323 at 
394-95 (2002).
---------------------------------------------------------------------------
    Yet within months, Congress had summoned a parade of witnesses from 
the Nixon White House to testify in connection with the Watergate 
affair.
    Post-Watergate presidents were more cooperative. President Ford 
agreed to testify in person on the circumstances leading to his 
decision to pardon President Nixon.
    In 1980, President Carter instructed all members of the White House 
staff to cooperate fully with the Senate Judiciary Committee in its 
investigation of Billy Carter's connections with the Libyan government.
    In 1987, President Ronald Reagan waived executive privilege for his 
entire staff during the Iran-Contra affair.
    In 1994, I was one of numerous Clinton administration officials 
called to testify before congressional panels investigating the failed 
Madison Guaranty Savings and Loan and the White Water Development 
Corporation.
    All in all, the Congressional Research Service reports that 
presidential advisers have testified before congressional committees at 
least 73 times since 1944--including individuals occupying the most 
senior positions in the White House from Chiefs of Staff to National 
Security Advisors to White House Counsels.\4\
---------------------------------------------------------------------------
    \4\ Harold C. Relyea and Jay R. Shampansky, Presidential Advisers' 
Testimony Before Congressional Committees: An Overview, CRS Report for 
Congress (April 14, 2004).
---------------------------------------------------------------------------
    For those interested in keeping an accurate count, I can add 
several more instances not covered by the CRS review.
    In 1995, I testified before the Government Reform and Oversight 
Committee, during Chairman Clinger's tenure, concerning an internal 
White House review I had conducted concerning the firing of employees 
working in the White House travel office.
    In 2001, I, together with Ms. Nolan and our colleague Bruce Lindsey 
testified before the Government Reform and Oversight Committee, chaired 
by Congressman Burton concerning pardons granted by President Clinton.
    While I was no longer a White House employee at the time of those 
two appearances, the testimony I gave solely concerned actions, duties 
and advice I gave to the president while a senior White House employee 
and would clearly have been subject to claims of executive privilege.
    On each of these occasions, I did so with the support of the 
president, who had authorized my testimony and made no claim of 
executive privilege. And on each of these occasions, I came into a 
public hearing room, in front of television cameras, with a full 
transcript being kept; I raised my right hand, I swore to tell the 
truth, the whole truth and nothing but the truth and I am proud of the 
fact that I did so and proud of the president for giving me the 
opportunity to do so.
    Again, for the record, I also gave depositions, under oath, to 
committee counsel in both the House and the Senate. And in 1993, I 
appeared informally before separate partisan caucuses of this committee 
and took questions for several hours with respect to the travel office 
matter I previously mentioned.
    Given that experience, I would like to comment on the current 
investigation of the circumstances surrounding the firing of the U.S. 
Attorneys.
    At stake is a question of whether there was interference in the 
administration of justice for political ends. The history of 
Congressional oversight and investigations is replete with instances of 
Congressional Committees exercising their jurisdiction to ensure the 
fair administration of justice.
    From Teapot Dome, to the ITT investigation, to Watergate, to Waco, 
Congress has a long history of investigating allegations of 
interference by the White House with the Department of Justice and 
other law enforcement agencies.
    Indeed, the heart of the Whitewater investigation concerned whether 
the White House had improper contacts with the Treasury Department on 
whether or not to refer the Madison Guaranty case to the Justice 
Department for enforcement action. While one can question the excess of 
spending more than $60 million in a series of investigations that two 
independent counsels concluded involved no criminal activity and 
outside reviews concluded involved no ethical transgressions, no one 
questioned the right of the Congressional Committees to pursue their 
investigations or the need for the White House to cooperate.
    Simply put, issues surrounding the administration of justice are 
paramount and constitute the heart of a legitimate legislative inquiry.
    That is why we are here today.
    This committee, and its Senate counterpart, have clear jurisdiction 
over the matter under investigation and a legitimate need to hear from 
key White House officials--on the record and under oath. No other means 
exists to ascertain what communication occurred inside the White House 
among White House aides and between White House Officials and 
Department of Justice officials concerning the true motivations for the 
firings.
    It has been said many times in the course of this affair that U.S. 
Attorneys ``serve at the pleasure of the president.'' As a matter of 
law, this is a non-debatable proposition. Once confirmed, they can be 
removed for any reason, or for no reason at all.
    But that cannot be the end of the story. The fact that the 
president has the power to remove them doesn't make it proper for him 
to do so. Depending on the reason for his actions, it may be highly 
improper and even illegal.
    Many different reasons have been suggested for these dismissals. 
Indeed, the Attorney General has offered quite a few different 
explanations himself. Obviously until your inquiry has been completed 
we will not know the truth of the matter. But we can try to separate 
out the legitimate reasons from illegitimate ones.
    The first reason is ``poor performance.'' This was the reason 
originally given by the Department, and it is a perfectly appropriate 
reason to fire somebody. Unfortunately, it appears that was not the 
reason in any but perhaps one of these cases.
    The second reason is to give the job to somebody else. It has been 
established that this was the reason for at least one dismissal, and 
perhaps others. For those who value loyalty and experience, this is not 
an attractive reason, and it certainly is a departure from long 
established practice. But it is not improper unless the replacement is 
unqualified to serve.
    The third reason is that the U.S. Attorney has policy differences 
with Main Justice. There are indications that this may have been the 
reason for one or more of the dismissals. If so, it does not seem an 
improper reason to me. It is the prerogative of the president to set 
policy, and it is reasonable for him to expect that his appointees will 
carry it out.
    The final reason is that the president and his allies in Congress 
were unhappy with the particular prosecutions a U.S. Attorney was 
bringing--or failing to bring. This is the crux of the matter. If the 
president fires a U.S. Attorney to obstruct or interfere with a pending 
prosecution or to influence the course of a prospective prosecution, he 
has crossed the line. Such interference is not only improper but 
depending on the circumstances may be illegal as well.
    In other words, while it is true that U.S. attorneys are 
``political appointees,'' they are not ordinary political appointees. 
They wield extraordinary power in this country--the power to protect 
our families and communities from harm, and the power to destroy 
innocent lives and reputations. Attorney General Robert Jackson said in 
1940, ``The prosecutor has more control over life, liberty, and 
reputation than any other person in America. His discretion is 
tremendous.'' \5\
---------------------------------------------------------------------------
    \5\ Robert Jackson, The Federal Prosecutor, Address Delivered at 
the Second Annual Conference of the United States Attorneys (April 1, 
1940).
---------------------------------------------------------------------------
    Once they take their oath of office, the 93 U.S. Attorneys are the 
personification of the system of justice in this country. If that 
system is to command popular respect, they must be beyond reproach. 
That is why it is essential that they be seasoned professionals and not 
just political hacks who do the bidding of the president who appointed 
them in the prosecution of justice. And that is why it is essential 
that the Congress get to the bottom of why these U.S. Attorneys were 
fired.
    Unfortunately, the inability or unwillingness of the White House to 
give the Congress and the American people a straight and complete 
answer on this matter means that we do not know exactly why the eight 
U.S. Attorneys were fired (and I would add one more, the firing of 
Frederick Black, the former interim U.S. Attorney for Guam and the 
Commonwealth of the Northern Mariana Islands).
    This is the concern which makes it imperative that this committee 
get the facts so it can determine precisely what happened in these 
cases.
    Let me sum up. As a former senior White House advisor, I believe 
deeply in the independence of the executive branch and the need for 
presidents to receive candid, unvarnished advice from their advisors. 
These are important constitutional considerations that should be 
thoroughly weighed and seriously guarded. Yet they must also be 
balanced against the legitimate needs of Congress to oversee and, where 
necessary, investigate the actions of the White House. Congress should 
be cautious in its assertions a need for the testimony of presidential 
advisors, limiting such assertion to circumstances in which disclosure 
would clearly serve the national interest. This seems to me to be 
clearly one of those times.
    This is not just a case about shifting explanations of underlying 
conduct that was legitimate; it is a case where the legitimacy of the 
conduct itself is seriously in doubt, and where the inconsistency of 
the explanations and the invocation of the 5th Amendment privilege by a 
senior Justice Department aide have deepened that doubt. Nor is this 
merely a political fishing expedition. There is more than enough 
evidence here to raise profound concerns--the smoke is rising and it 
needs to be investigated.
    The underlying issue at stake--whether the executive branch 
illegitimately ordered the removal of independent U.S. attorneys to 
advance outside interests or partisan political needs--is a serious 
matter related to a core element of our constitutional system--the 
administration of justice.
    Cooperation and honesty by the White House could allay many doubts 
and start to restore some credibility for the executive branch. As I 
have previously noted, from Presidents Clinton, Reagan, Carter, and 
Ford, going all the way back to President Washington presidents have 
permitted senior aides to testify in Congressional investigations. It 
is time for President Bush to show some of the same kind of healthy 
flexibility.
    If the White House will not adhere to these standards, then the 
Congress should intervene to ensure that justice is being served by in 
a fair and impartial manner. The American public must be confident that 
its courts and prosecutors are independent and unbiased in the 
administration of justice.
    I thank you for inviting me today, and would be happy to answer any 
and all questions you may have.

    Ms. Sanchez. Thank you for your testimony, Mr. Podesta.
    Ms. Nolan?

    TESTIMONY OF BETH NOLAN, FORMER WHITE HOUSE COUNSEL TO 
          PRESIDENT CLINTON, PARTNER, CROWELL & MORING

    Ms. Nolan. Thank you, Madam Chair and Mr. Cannon and 
Members of the Subcommittee. I am Beth Nolan, a partner in the 
law firm of Crowell & Moring, and I served as counsel to the 
President in the Clinton administration.
    Congress has heard numerous assertions that it may not 
compel the testimony of White House officials. Too frequently, 
these claims are made as if there are absolutes in this area.
    We have little case law illuminating the contours of 
executive privilege. But what we do have makes one thing 
perfectly clear: The President's constitutional authority to 
assert executive privilege is not absolute but is instead to be 
balanced against the legitimate needs of the coordinate 
branches of Government in undertaking their constitutionally 
assigned responsibilities.
    Under this approach, each branch has a constitutional duty 
to consider, respect and accommodate the needs of the other.
    As a general matter, I agree with the proposition that the 
President's White House advisors should not be called to 
testify before Congress or even to provide interviews without 
careful congressional consideration of the needs justifying 
such a request. To use one standard we have heard much-repeated 
lately, Congress should not use White House officials to engage 
in fishing expeditions.
    But close advisors to the President have indeed been 
subpoenaed by congressional Committees, testified under oath, 
had their testimony transcribed and made part of the public 
record, and been called back for subsequent testimony.
    I, like Mr. Podesta, personally testified four times before 
congressional Committees on matters directly related to my 
White House duties: three times while I was serving in the 
White House and once soon after President Clinton left office. 
My testimony was conducted under oath, with a transcript.
    At least some of those appearances were also made pursuant 
to subpoena, sometimes without even the opportunity offered to 
appear voluntarily. On those occasions, the President did not 
assert a privilege to preclude my testimony.
    On another occasion, the President, upon recommendation of 
the Attorney General, asserted the privilege in response to a 
subpoena from a congressional Committee seeking my testimony. 
The Attorney General relied on the longstanding view of the 
Justice Department that the President and his immediate 
advisors should be considered immune from compelled 
congressional testimony, but, appropriately, also considered 
the balance of executive and legislative interests in the 
particular matter to conclude that my testimony was protected 
from congressional compulsion.
    I subsequently testified before that same Committee with 
respect to the same subject, presidential pardons, after the 
President waived any privileges he might have asserted--
different presidential pardons, I should mention.
    This personal history makes clear that historically there 
have been no absolutes in this arena. And there should be none. 
Despite Justice Department precedents that speak in terms of a 
general immunity from testimony, the White House has offered a 
number of advisors for testimony over the years, recognizing 
that the privilege must give weight to the legitimate needs of 
Congress in certain investigations or oversight.
    I am still troubled by how often, when I was in the White 
House, we received subpoenas as the first indication of 
congressional interest and by the great numbers of White House 
advisors who were called to testify--procedures that raise 
questions about whether Congress always sought to accommodate 
the legitimate interests of the executive.
    But those troubling elements don't seem to be present here. 
Instead, there has been an exchange between the White House and 
Congress, leading to Mr. Fielding's offer to provide four White 
House witnesses, only with significant limitations.
    This offer might be sufficient in another situation, 
because it is a balance. But here, legitimate and serious 
questions have been raised in at least two areas: whether U.S. 
attorneys were replaced to affect the prosecution or non-
prosecution of particular cases; and whether full and accurate 
information has been provided to Congress with respect to this 
matter.
    Under those circumstances, it seems that Congress has not 
just a right but, indeed, a responsibility to investigate the 
allegations. Because the constitutional interests of Congress 
are particularized and strong in this matter, they deserve to 
be given great weight in the accommodation process.
    In my view, the current offer on the table from the White 
House, if indeed the President is unwilling to consider further 
compromise, deprives Congress of the cooperation from the 
executive branch to which it is entitled.
    [The prepared statement of Ms. Nolan follows:]

                    Prepared Statement of Beth Nolan



    Ms. Sanchez. Thank you, Ms. Nolan. And you came in just at 
the 5-minute mark. I am impressed. [Laughter.]
    Ms. Nolan. Thanks.
    Ms. Sanchez. Great panel, so far.
    Mr. Francisco, please proceed.

  TESTIMONY OF NOEL J. FRANCISCO, FORMER ASSOCIATE COUNSEL TO 
          PRESIDENT GEORGE W. BUSH, PARTNER, JONES DAY

    Mr. Francisco. Madam Chairman, Ranking Member, Members of 
the Subcommittee, my name is Noel Francisco. I am a partner at 
the law firm of Jones Day and formerly served as associate 
counsel to President George W. Bush and Deputy Assistant 
Attorney General in the Office of Legal Counsel.
    Thank you for inviting me to testify today.
    ``If there is a principle in our Constitution more sacred 
than another, it is that which separates the legislative, 
executive and judicial powers.'' Those are the words of James 
Madison.
    Our founding fathers recognized that the division of power 
among three separate branches of Government was essential to 
the preservation of liberty.
    As Alexander Hamilton explained, ``The separation of powers 
ensures that the two greatest securities the people can have 
for the faithful exercise of any delegated power are the 
restraints of public opinion and the opportunity of discovering 
with facility and clearness the misconduct of the people they 
trust.''
    By locating power in separate and distinct branches of 
Government, the people know who is responsible for its exercise 
and accountable for its abuse.
    The present inquiry into the President's decision not to 
reappoint eight United States attorneys threatens a 
constitutional confrontation that would undermine our 
constitutional structure and the liberties it protects. In that 
system of separated powers, it is the President's exclusive 
prerogative to appoint and remove United States attorneys.
    That nondelegable power of the President is not shared with 
the legislative branch. Nor is the confidential advice of the 
President's closest advisors subject to congressional review. 
The President has a constitutional privilege over those 
discussions, recognized by the Supreme Court as falling within 
his executive privilege.
    No one would tolerate a demand by the President that a 
Member of this body divulge the confidential advice he or she 
receives from senior staff members in deciding whether or not 
to vote against a bill. By the same token, no one should 
tolerate a demand that the President divulge the confidential 
advice that he receives.
    The constitutional structure protects the branches from 
each other, but, more importantly, the balance that it creates 
protects the liberty of the people by dispersing and diluting 
governmental power.
    Requiring the President to divulge confidential advice 
would be particularly inappropriate here, in light of the 
information that the President has agreed to provide. Indeed, 
it is my understanding that the only information that the 
President has not agreed to provide pertains to internal White 
House communication, including the public, sworn testimony of 
certain senior White House advisors.
    But this testimony is precisely that for which executive 
privilege provides the strongest protection. Unlike members of 
the Cabinet, these senior White House advisors have no 
operational authority. Their sole function is to provide the 
President with advice in order to assist in the execution of 
his constitutional duties and responsibilities. Demanding the 
sworn testimony of these senior White House advisors is 
tantamount to demanding the sworn testimony of the President 
himself.
    This is why Presidents of both political parties have 
consistently maintained that executive privilege is at its 
strongest with respect to these senior advisors. As the late 
Chief Justice Rehnquist once explained, ``Such individuals 
should not be required to appear before Congress at all.''
    Here, the question of executive privilege is a narrow one: 
Does Congress's power to conduct oversight entitle it to demand 
that the President divulge the advice of his closest advisors 
on a quintessential and nondelegable presidential power? With 
all due respect, I believe that that question answers itself.
    At a minimum, however, Congress would have to examine the 
extensive information that it does have, specifically identify 
the need for the information that it seeks, and establish that 
the incremental information is, in the words of the D.C. 
Circuit, ``demonstrably critical to the fulfillment of its 
function.''
    At this early stage in the proceedings, however, I do not 
believe that Congress could possibly overcome the privilege 
that presumptively attaches to these core, internal White House 
communications.
    In the end, however, it is doubtful whether such a 
confrontation between Congress and the President will be in 
either's interest. Historically, the President has not exerted 
executive privilege over the whole range of privileged 
information, but instead----
    Ms. Sanchez. Mr. Francisco? Your time is running short. If 
you could just summarize and conclude.
    Mr. Francisco. I will, Madam Chairman.
    Instead, the President and the Congress generally seek to 
seek an accommodation, as some of our other witnesses have 
explained.
    I think that the President has attempted to do that here by 
putting on the table what I view to be an eminently reasonable 
offer. And I think that that offer provides the proper 
framework within which these negotiations can begin.
    Speaking as a citizen and as someone who has devoted much 
of my professional career to studying these issues, I, for one, 
would hope that this is the manner in which the present 
controversy, too, would be resolved.
    Thank you.
    [The prepared statement of Mr. Francisco follows:]

                Prepared Statement of Noel J. Francisco

    Madame Chairman, Ranking Member, and Members of the Subcommittee:
    My name is Noel John Francisco. I am a partner at the law firm of 
Jones Day. I served as Associate Counsel to President George W. Bush 
from 2001 to 2003, and Deputy Assistant Attorney General in the 
Department of Justice's Office of Legal Counsel from 2003 to 2005. It 
is an honor to appear before you to discuss the important issue of 
Executive Privilege.
    ``If there is a principle in our Constitution . . . more sacred 
than another, it is that which separates the Legislative, Executive, 
and Judicial powers.'' 1 Annals of Cong. 581 (Joseph Gales ed., 1834) 
(remarks of James Madison). Our Founding Fathers recognized that the 
division of power among three separate branches of government was 
essential to the preservation of liberty. As Alexander Hamilton 
explained, this separation of powers ensures ``the two greatest 
securities [the people] can have for the faithful exercise of any 
delegated power''--``the restraints of public opinion'' and ``the 
opportunity of discovering with facility and clearness the misconduct 
of the persons they trust.'' The Federalist No. 70. In short, by 
locating power in separate and distinct branches of government, the 
People know who is responsible for its exercise and accountable for its 
abuse.
    The present inquiry into the President's decision not to reappoint 
eight United States Attorneys threatens a constitutional confrontation 
that would undermine our constitutional structure and the liberties it 
protects. In that system of separated powers subject to limited checks 
and balances, it is the President's exclusive prerogative to appoint 
and remove United States Attorneys. That non-delegable power of the 
President is not shared with the Legislative Branch; nor is the 
confidential advice of the President's closest advisors concerning whom 
to appoint or remove from these positions subject to congressional 
review. The President has a constitutional privilege over those 
discussions--recognized by the Supreme Court as falling within his 
Executive Privilege. See United States v. Nixon, 418 U.S. 683, 705-06 
(1974). No one would tolerate a demand by the President that a Member 
divulge the confidential advice he receives from senior staff members 
on whether to vote for or against a bill (or in the Senate, for or 
against a nominee). By the same token, no one should tolerate a demand 
that the President divulge the confidential advice he receives on whom 
to appoint or remove from the position of United States Attorney. The 
President and Congress's role in this regard is both constitutionally 
prescribed and constitutionally limited. These constitutional 
strictures protect the Branches from each other; but more importantly, 
the balance that they create protects the liberty of the citizenry by 
spreading and diluting governmental power.
    It is understandable that this body would have less sympathy for 
the President's point of view. Congress is, after all, a co-equal 
branch of our government, with its own vital role and constitutional 
duties. Our constitutional structure, however, is not designed to 
protect the President or the Congress. It is designed to protect the 
People. As Justice Kennedy has elegantly stated, ``[w]hen structure 
fails, liberty is always in peril.'' Public Citizen v. U.S. Dep't of 
Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring in the 
judgment). The Constitution thus also recognizes the danger of 
Executive or Judicial encroachment on Congress's ability to carry out 
its functions--a recognition embodied in, among other places, the 
Speech and Debate Clause.
    Requiring the President to divulge confidential advice would be 
particularly inappropriate in light of the information that the 
President has agreed to provide. It is my understanding that the 
President has agreed to produce the following:

          Department of Justice officials, who will testify to 
        their role in the removal of the eight United States Attorneys 
        and their conversations with the White House;

          Department of Justice e-mails and memoranda related 
        to this issue, including e-mails and memoranda exchanged 
        between the Department of Justice and the White House;

          White House e-mails and memoranda exchanged with any 
        outside entity, including the Department of Justice and Members 
        of Congress;

          -Non-public interviews of specified senior White 
        House advisers about their communications with outside 
        entities, including the Department of Justice and Members of 
        Congress.

I understand that the only information that the President has not 
agreed to provide pertains to internal White House communications, 
including the public, sworn testimony of certain White House advisors. 
Thus, the present dispute appears to be limited to this last category 
of information.
    The incremental information that the President has not agreed to 
provide is precisely the information for which Executive Privilege 
provides the strongest protection. Unlike members of the Cabinet or 
other agency employees, the White House Staff has no operational 
authority. It cannot prosecute criminals. It cannot issue binding rules 
and regulations. It cannot sign an Executive Order. Instead, its sole 
function is to provide the President with advice in order to assist the 
President in the execution of his constitutional duties and 
responsibilities. Thus, demanding the sworn testimony of these senior 
White House advisors is tantamount to demanding the sworn testimony of 
the President himself. It necessarily follows that the importance of 
confidentiality with respect to this small group of presidential 
advisers is particularly acute. This is why the historical view of the 
Executive Branch is that ``the few individuals whose sole duty is to 
advise the President should never be required to testify because all of 
their duties are protected by executive privilege.'' CRS Report for 
Congress, Presidential Advisers' Testimony Before Congressional 
Committees: An Overview (April 14, 2004), at p. 27.
    This is not a partisan issue. To be sure, presidential 
administrations have differed somewhat as to the outer contours of 
Executive Privilege. For example, according to the Congressional 
Research Service, President Eisenhower, a Republican, ``took the most 
expansive approach [to Executive Privilege], arguing that the privilege 
applied broadly to advice on official matters among employees of the 
executive branch.'' CRS Report for Congress, Presidential Claims of 
Executive Privilege: History, Law, Practice and Recent Developments 
(Sept. 21, 1999), at p. 11. The Congressional Research Service reports 
that the Clinton administration likewise took the ``expansive position 
that all communications within the White House and any federal 
department and agency [were] presumptively privileged.'' Id. In 
contrast, ``[t]he Reagan Justice Department appears to have taken a 
slightly narrower view of the scope of the privilege.'' Id. But 
regardless of the outer boundaries, presidents of both political 
parties have consistently maintained that the privilege is at its 
strongest with respect to the President's senior White House advisors--
``the few individuals whose sole duty is to advise the President.'' 
Presidential Advisers' Testimony Before Congressional Committees, 
supra. As the late Chief Justice Rehnquist explained while serving in 
the Department of Justice, such individuals ``should not be required to 
appear [before Congress] at all.'' U.S. Congress, Senate Committee on 
the Judiciary, Subcommittee on Separation of Powers, Executive 
Privilege: The Withholding of Information by the Executive, hearings, 
92nd Cong., 1st sess. (Washington: GPO, 1971), p. 427. ``[T]he aim,'' 
said the Chief Justice, ``is not for secrecy of the end product--the 
ultimate Presidential decision is and ought to be a subject of the 
fullest discussion and debate, for which the President must assume 
undivided responsibility. But few would doubt that the Presidential 
decision will be a sounder one if the President is able to call upon 
his advisers for completely candid and frequently conflicting advice 
with respect to a given question.'' Id. at 425.
    This view has also been validated by the few court cases addressing 
claims of Executive Privilege. Understandably, the federal judiciary 
has been reluctant to resolve inherently ``political'' disputes between 
the President and Congress--including disputes over information held by 
one of the branches. See, e.g., United States v. AT&T, 551 F.2d 384, 
395-96 (D.C. Cir. 1976); United States v. The House of Representatives 
of the United States, 556 F.Supp. 150, 152-53 (D.D.C. 1983). But in the 
only instance in which a federal court did resolve such a dispute, it 
held that Congress's ``asserted power to investigate and inform'' was, 
standing alone, insufficient to overcome a claim of privilege and so 
refused to enforce the congressional subpoena. Senate Select Committee 
on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731-32 
(D.C. Cir. 1974). Other cases, which have generally arisen in the 
context of criminal investigations and prosecutions, have likewise 
recognized that internal White House communications are at the core of 
the protections of Executive Privilege. See, e.g., In re Sealed, 121 
F.3d at 752 (the privilege encompasses ``communications authored or 
solicited and received by those member's of an immediate White House 
adviser's staff who have broad and significant responsibility for 
investigating and formulating the advice to be given the President on 
the particular matter to which the communications relate''); see also 
Association of American Physicians and Surgeons v. Clinton (AAPS), 997 
F.2d 898, 909 (D.C. Cir. 1993) (the ``Article II right to confidential 
communications attaches . . . to discussions between [the President's] 
senior advisors,'' because ``Department Secretaries and White House 
aides must be able to hold meetings to discuss advice they secretly 
will render to the President'').
    Finally, it bears re-emphasizing that the issue here--the 
appointment and removal of United States Attorneys--is a 
``quintessential and non-delegable Presidential power.'' In re Sealed, 
121 F.3d at 753. United States Attorneys are political appointees who 
may be removed by the President for any reason--good or bad--or for no 
reason at all. They exercise extraordinary power. The decisions of 
United States Attorneys can deprive individuals of their liberty and, 
in some cases, their lives. Ultimately, it is not the unelected United 
States Attorneys who are accountable for these decisions, but the 
President, who alone in the Executive Branch is answerable to the 
People. Indeed, the only way that United States Attorneys may be held 
democratically accountable for their decisions (short of impeachment) 
is through the President. This is why ``confidentiality is particularly 
critical in the appointment and removal context; without it, accurate 
assessments of candidates and information on official misconduct may 
not be forthcoming.'' In re Sealed, 121 F.3d at 753. Indeed, Executive 
Privilege is at its zenith when it applies to the President's decisions 
regarding his appointment power. Cf. Public Citizen v. Department of 
Justice, 491 U.S. 440, 466-67 (1988); id. at 468-69 (Kennedy, J., 
concurring in the judgment).
    Here, the question of Executive Privilege is a narrow one: Does 
Congress's power to conduct oversight entitle it to demand that the 
President divulge the advice of his closest advisors on a 
``quintessential and non-delegable Presidential power''? With all due 
respect, I believe that the question answers itself. Indeed, in my 
view, it is arguable that Congress can never require that the President 
divulge these confidential communications, as the Executive Branch has 
consistently maintained.
    At a minimum, however, Congress would need to exhaust all other 
avenues for obtaining this information and then demonstrate why it 
needs the information withheld. Cf. Cheney v. United States District 
Court, 542 U.S. 367, 388 (2004). Thus, Congress would first have to 
examine the extensive information that the President has made available 
to it--testimony from Department of Justice officials, communications 
within the Department of Justice and between the Department of Justice 
and the White House, and non-public interviews of White House 
officials. It would then have to specifically identify why it needs the 
information that it does not have. And finally, it would have to 
establish that the incremental information it seeks--information at the 
core of Executive Privilege--is ``demonstrably critical to the 
responsible fulfillment of [its] functions.'' Senate Committee, 498 
F.2d at 731-32. At this early stage of the proceedings, however, there 
is no such record, in the absence of which Congress could not, in my 
view, possibly overcome the privilege that presumptively attaches to 
these core, internal White House communications.
    In the end, however, it is doubtful whether such a confrontation 
between Congress and the President will be in either's interest. 
Historically, the President has not asserted Executive Privilege over 
the full range of privileged information. Instead, as a matter of 
comity between the branches, the President typically has attempted to 
accommodate Congress's legitimate need for information with the 
President's equally legitimate need to safeguard confidential 
communications. That is what the President appears to be doing here, 
where he has agreed to provide Congress with all relevant information 
save a limited amount relating to his closest, most confidential 
advisors. And even with respect to these individuals, the President 
stands ready to provide Congress with informal, non-public interviews. 
This seems to me to be an eminently reasonable offer, and one which 
provides the framework in which the present controversy may be resolved 
without provoking a constitutional confrontation involving all three 
branches of our government. Speaking as a citizen and as someone who 
has devoted much of my professional career to the respective roles of 
the President, Congress, and the Judiciary, it is the way that I for 
one would hope that this matter would be resolved.
    This concludes my prepared statement. I would be happy to answer 
any questions that you may have.

    Ms. Sanchez. Thank you, Mr. Francisco.
    Mr. Schwarz?

 TESTIMONY OF FREDERICK SCHWARZ, JR., SENIOR COUNSEL, BRENNAN 
             CENTER FOR JUSTICE, NYU SCHOOL OF LAW

    Mr. Schwarz. Thank you, Madam Chairman.
    Thank you, everybody else.
    I just want to make two points out of my written testimony, 
based on my experience as chief counsel of the Church Committee 
30 years ago that investigated the most sensitive national 
security matters.
    During our hearings, we heard and took sworn testimony from 
high-ranking presidential advisors--national security 
advisors--from the White House in the Truman, Eisenhower, 
Kennedy, Johnson and Nixon administrations. So, again, there 
are precedents for that being done.
    Another point from our experience in the Church Committee 
is: Watch out for labels, like the label, ``national 
security,'' which we dealt with all the time, which is just so 
vague. And here, you are hearing the label, ``performance.'' 
Well, ``performance'' just doesn't tell you anything about what 
it actually means. And I would suppose that President Nixon, 
when he fired Archibald Cox, would say, ``The reason I fired 
him was because of his performance.''
    Now, another point, historical point, is that I think you 
have to look at executive privilege in terms of what actual 
powers the White House officials now have.
    When this Constitution started, there weren't any White 
House officials. There was President Washington and then the 
secretary of the state and the secretary of the treasury. Then 
we started to have White House officials. Now the White House 
officials, clearly, de facto have the power to tell the 
departments what to do.
    So, it seems to me, without knowing your record completely, 
that is what is involved here--not a question of advice to the 
President, but instructions from these people to the 
departments. And I think that raises quite different questions 
on the theory of executive privilege.
    Another point I suggest in my written testimony is that it 
would be a good thing for this Committee to do a more 
comprehensive analysis of the Justice Department. I know you 
have done that, to some extent, on the Civil Rights Department, 
but another area where I think you particularly should be 
paying attention is the Office of Legal Counsel.
    It is the Office of Legal Counsel that has set the nation 
down a course that has been extremely harmful to our national 
reputation and has been extremely harmful to the efforts to 
combat terrorism. Because by condoning torture and actions such 
as warrantless wiretapping and writing opinions to that effect, 
which include a theory which is one that both Republicans and 
Democrats in the Congress and in the country should be very 
concerned about, which is a theory that the President has the 
right to violate congressional laws--that is a theory which has 
been in the OLC opinions.
    Now, most of those opinions have not yet been released; 
they have been kept secret. And there is no justification for 
keeping secret an opinion of the Office of Legal Counsel that 
determines the law and which also decides that the President 
has the power to disregard the law.
    So the final point that I would make--and, Madam Chairman, 
I am shooting to finish in less than 5 minutes, and I expect 
appropriate kudos for that if I do---- [Laughter.]
    Ms. Sanchez. You will win the prize of the panel.
    Mr. Schwarz. The final point I would make is that I think 
this Committee, particularly, along with the Intelligence 
Committees, should take a very close look at the subject of 
secrecy--excessive classification. I think any objective person 
would say we have too much that is kept secret, stamped 
``secret.''
    When we did the Church Committee, we concluded, after our 
year and a half of investigation of five Administrations, 
Roosevelt through Nixon, all of which abused their national 
security powers, both Republican and Democratic 
Administrations, we concluded that secrecy stamps were used 
very, very often to protect the Administration from 
embarrassment and to protect them from the American public 
knowing things they had been doing that were wrong.
    Congress has given the President wide power to determine 
classification. And I think you should, in a very careful way--
this is something that is very serious and merits extensive 
thought--you should look at how secrecy stamps have been used 
and whether there is not a need in the national interest to 
reduce the amount of stuff that is kept secret and away from 
the American public.
    Thank you very much.
    [The prepared statement of Mr. Schwarz follows:]

           Prepared Statement of Frederick A. O. Schwarz, Jr.




    Ms. Sanchez. Thank you for your testimony. And you did, in 
fact, make it in under the 5-minute rule.
    We have been called for a series of votes, unfortunately. 
There is going to be a series of three 15-minute votes, which 
means potentially we will be on the floor for 45 minutes, a 
little bit less if we can get people back here.
    I would ask--and I know it is asking a lot because you have 
been extremely patient--I would ask the witnesses, if they 
could stick around, that they do so, so we could do 
questioning. I think this is a nice, natural break for the 
Members to get to the floor to vote.
    So if, because of time constraints, you cannot stay for 
questioning, we certainly understand, but we will be submitting 
questions to you to have you respond in writing.
    So, again, we really appreciate your time and your 
testimony.
    And the Committee will stand in recess.
    [Recess.]
    Ms. Sanchez. Okay. The Committee will reconvene.
    I want to thank our witnesses for sticking around. We will 
be joined shortly by some of our colleagues, but I wanted to go 
ahead and recognize myself for the first round of questions.
    Mr. Podesta, I read your written testimony and was very 
interested in getting your views on the potential reasons for 
dismissal of U.S. attorneys and whether politics or performance 
is involved, and how that relates to executive privilege.
    Mr. Podesta. Thank you, Madam Chair.
    I think that Mr. Sampson in his testimony this morning, 
over on the Senate side, he said there is not a difference 
between performance and political considerations. I guess I beg 
to disagree.
    I think that where politics becomes partisanship is when 
you are trying to actually influence the outcome of the cases 
for partisan gain or for personal gain. Then it seems to me 
that is beyond the realm of the normal course of politics with 
respect to the duties of a U.S. attorney.
    I think really at the bottom line, that is really what the 
case is here. If this was simply trying to dismiss people who 
weren't doing a very good job in their offices, that would be 
one thing, but that does not appear to be from what we know 
today, what was at issue.
    I think that if you go back, and Fritz is the expert on the 
Nixon administration, but I think if you go back and look at 
what President Nixon did in the ITT investigation, where he 
ordered then-Deputy Attorney General Kleindienst to not appeal 
the ITT case to the Supreme Court, that that was really what 
was at the heart of the issue.
    Of course, President Nixon argued it was just a policy 
matter, that he was just exercising his responsibility as the 
President to do it. But when he called Mr. Kleindienst and 
said, ``Mr. Kleindienst, you son of a bitch, don't you 
understand the English language? Don't appeal this case,'' he 
was of course going way beyond the normal exercise of policy in 
that matter.
    We don't know what the circumstances are here. That is why 
it is important that the Justice Department come forward with 
its testimony and the White House give you an explanation of 
what they are up to.
    Ms. Sanchez. I appreciate the answer.
    I just want to note that, Mr. Francisco, in your testimony 
you said that the White House had provided information, and 
that we needed to look at executive privilege in the context 
the White House has provided, or the offers that they have made 
to provide.
    I just wanted to note that so far to date, we have received 
nothing from the White House--no documents, no witnesses to 
come and testify. We have received redacted documents from the 
Department of Justice. But just so you know, so far we have 
received nothing from the White House.
    I wanted to ask the whole panel this question, because I 
find it very interesting and relevant. Recently, the National 
Journal reported that a former White House official familiar 
with Karl Rove's work habits indicated that Mr. Rove does about 
95 percent of his e-mailing using his RNC-based account, not 
his official account.
    In your experience with the contours of executive 
privilege, can the White House make a valid claim of executive 
privilege as to any communications originating outside of the 
White House? I would be interested in getting all of the 
panel's views on that, beginning with Mr. Podesta.
    Mr. Podesta. I think that under the precedents certainly in 
this circuit, you would be very hard-pressed to claim privilege 
once you have moved out beyond the senior level people inside 
the White House.
    If that is true, and of course we don't know that that is 
true, but if that is true, the Presidential Records Act seems 
to be violated also, because again post-Watergate and post-the 
claim that those were personal records of President Nixon, the 
Congress passed the Presidential Records Act that dealt really 
with these circumstances and dealt specifically with material 
that involved political activity, but that intersected with 
official governmental activity.
    I can't believe that Mr. Rove is spending 95 percent of his 
time only engaged in partisan political activity and only 5 
percent of his time on--he is the deputy chief of staff in the 
White House--on the affairs of the Government.
    Ms. Nolan. I do think it is very important that this law we 
have, the Presidential Records Act, is intended to preserve 
communications on official White House business. They are 
supposed to be made public after a certain period under the 
law.
    So if in fact Mr. Rove or others are trying to conduct 
official White House business outside the official channels of 
communication, then I think that really is very serious and 
problematic, and would certainly raise questions about how you 
can both treat this as something outside the White House, and 
yet claim a privilege on it.
    Mr. Francisco. I would like to be clear, since I don't 
really know exactly what is going on with Mr. Rove's e-mails, I 
can't comment on that specifically. But in terms of the general 
question, the core of executive privilege is obviously intra-
White House communications that take place among the White 
House staff.
    But second only to that in terms of how strong the 
privilege applies are communications to the White House. So in 
theory, a communication that originates outside of the White 
House, but goes into the White House is still protected by the 
executive privilege, provided that it is something that relates 
to official White House business. So in theory, the executive 
privilege still would apply even if the communication did 
originate outside of the White House and was made to the White 
House.
    Ms. Sanchez. So would it be fair to say or believe that 
there is a blanket privilege for all outside communications 
originating into the White House, intra-White House 
communications would all be covered by the privilege, and under 
no circumstances would there be exceptions?
    Mr. Francisco. Well, to be clear, at least in the cases 
that have been decided, none of which have involved 
congressional subpoenas for information, with the exception of 
one old case, in the cases that have been decided in other 
areas, courts have adopted a balancing test. So to say at least 
in those cases there is an absolute privilege, I probably 
wouldn't agree with that.
    With respect to core internal intra-White House 
communications, I do believe that would be very difficult for 
the Congress ever to overcome the presumption of a privilege 
that applies to those core communications. Communications that 
originate outside the White House probably are less protected 
because they are not as much at the core of the privilege.
    Mr. Schwarz. I would say first the fact that someone is 
located in the White House cannot be the answer to the 
question. The question is whether they are functioning as a 
governmental official when they are in the White House.
    For example, if I visited the White House one day and I was 
there for a chat about something relating to the Government, 
and while I was in the White House, I communicated to the 
Attorney General and said, ``Here is what you should do,'' you 
couldn't possibly say that is privileged because I was in the 
White House.
    Now, as I understand the facts, and here I don't understand 
the facts, but what I have heard about the facts really only 
this afternoon I think in your opening comments, was that Mr. 
Rove when he was physically in the White House was using a 
computer system that wasn't a White House computer system. If 
that is true, he is not functioning as a governmental official, 
and so clearly it is not privileged. It is not covered by the 
executive privilege.
    If you think about the attorney-client privilege, that 
protects communications from an attorney to the client when the 
attorney is functioning as an attorney. As we all know, there 
are many lawyers who sometimes have the lawyer's degree and 
call themselves a lawyer, but they are actually working as 
business people. If they give business advice to their client, 
the fact that they are labeled as a lawyer doesn't make it 
privileged.
    So if someone is physically in the White House and they are 
sending e-mails that are not on a White House governmental 
system, but are on some private system, there is no possibility 
that that is privileged under an executive privilege, in my 
judgment, hearing the facts for the first time today and 
reacting to your question today.
    Ms. Sanchez. Thank you, Mr. Schwarz.
    I now would like to recognize our Ranking Member, Mr. 
Cannon.
    Mr. Cannon. Let's follow up on the same line of 
questioning. Let me just ask Mr. Podesta, and then we will go 
down the panel.
    If someone, before we had VoIP, so you are talking about an 
old telephone system, lifted up the phone and made a phone call 
from the White House, the Old Executive Office Building, and 
that went through a switch downtown, there would be no question 
that that you would not lose executive privilege based upon 
going through a switch downtown. Right?
    Mr. Podesta. I don't think the technology would matter in 
that context. The question is whether it falls within the 
privilege itself.
    Mr. Cannon. Right. But nobody is going to disagree with 
that conclusion, right?
    Now, I think the question that we are going to have here is 
Karl Rove used something, not an old telephone system, it is a 
new e-mail system, so Karl Rove uses an e-mail system to 
communicate from himself to someone else in the White House. 
Now, there are all kinds of reasons for doing that, but it 
won't be that the system is based outside the White House that 
diminishes the privilege, whatever that might be otherwise.
    Mr. Podesta. Well, I think quite frankly, Mr. Cannon, I 
raise the Presidential Records Act. I think the Presidential 
Records Act requires--and I was involved in litigation on this 
that began in the Reagan administration----
    Mr. Cannon. We can come back to this. But it will not be 
the fact that you got a service-provider outside the White 
House that diminishes the----
    Mr. Podesta. It may not be the question of whether it was 
hosted outside the White House, but Mr. Rove if he was 
conducting official governmental business was required to use 
the assets of the Government in order to capture and retain 
those governmental communications.
    Look, we are speculating here completely because we don't 
know in fact what he did and whether it was engaged or 
involved. We know to some extent that his deputy was using 
these accounts for official business, but we don't know what 
Mr. Rove did. But if he was using those separate e-mail 
accounts that were essentially off the books of the White 
House, why was he doing that?
    Mr. Cannon. There may be many reasons why, but it would 
certainly not mean that those records were not part and don't 
come under the purview of the Presidential Records Act. Right?
    Mr. Podesta. Again, we, as a result of litigation that 
began at the end of the Reagan administration as a result of 
Iran-Contra, they were trying to clean the e-mail records of 
the NSC and Ollie North's records. Litigation was brought. That 
litigation lasted for 6 years.
    We implemented a system to retain and capture official 
governmental records. That system still exists, I believe, 
inside the White House, to capture e-mail records of the 
Administration. That was approved by the National Archives and 
we ultimately settled the case as a result of implementing that 
system.
    If he was conducting official business on the separate 
political accounts, then it seems to me that was an avoidance 
of his obligation under the Presidential Records Act. So if he 
felt that that was an official action, then it wouldn't be 
privileged. If he thought it was, he was violating the 
Presidential Records Act. But I think it is one or the other.
    Mr. Cannon. Depending upon how he did it, and granted there 
are many questions that are out there, you would certainly not 
say that these don't become presidential records because of 
some cloak of using an alternative system. Whatever the 
Presidential Records Act covers, those will be included in it, 
whether they were used in the inner-system or not.
    Mr. Podesta. Well, I think if he was conducting official 
business, he was creating presidential records and he should 
have been doing that----
    Mr. Cannon. If he was creating presidential records, then 
he is going to have a presidential privilege regardless of what 
the external system that it goes through uses.
    Mr. Podesta. Well, as I said, I think that as a result of 
litigation that the White House settled, the obligation of 
White House employees with formal guidance was that you could 
not participate in a way of conducting official business in the 
manner that you are describing.
    Mr. Cannon. We understand that. We are not litigating this 
case right here. We are just saying it is not the fact that it 
sits on or went through an external system that makes it not a 
privileged communication.
    Mr. Podesta. Well, it would be my view that it would 
certainly diminish or eliminate the presumption that that 
document was privileged.
    Mr. Cannon. I am sorry. You are suggesting that if it goes 
through--there are many unknowns here, and that was a pretty 
blanket statement. It is not the fact that it goes through an 
external system that eliminates the presumption. If he is 
trying to avoid the Presidential Records Act, that might 
eliminate the presumption, but it is not the system that it 
goes through that represents the elimination of the 
presumption.
    Mr. Podesta. I am saying that the system inside the White 
House was set up to capture those records as a result of the 
obligations of the White House to retain records under the 
Presidential Records Act.
    Mr. Cannon. I see that my time has expired.
    Ms. Sanchez. The time of the gentleman has expired.
    We will have a second round of questioning.
    Mr. Cannon. I would just make a point, hopefully it won't 
do that, at least I don't want to be here for the second round. 
Let me just make the point----
    Ms. Sanchez. You are not required to be here for the second 
round. [Laughter.]
    Mr. Cannon. It is not a presumption. It is a privilege. And 
the privilege is undefined to some degree.
    Thank you. I appreciate that.
    Ms. Sanchez. Thank you, Mr. Cannon.
    Mr. Johnson?
    Mr. Johnson. Thank you.
    Mr. Francisco, you indicated or you stated in your opening 
that if there is a principle in our Constitution more sacred 
than any other, it is that which separates the legislative, 
executive and judicial powers. I am sure that all of us will 
agree that that setup has indeed worked well in our governance.
    Do you respect the notion that these three branches are co-
equal?
    Mr. Francisco. Yes, Congressman, I do.
    Mr. Johnson. And you do you know of any legal precedent 
that suggests that Congress does not have jurisdiction to 
oversee the office of the President?
    Mr. Francisco. I do know it is the longstanding position of 
the executive branch, articulated both in Republican and 
Democratic Administrations that White House staff-members are 
subject to an executive privilege that shields them from being 
called upon to testify before Congress absent the President's 
agreement for them to appear to testify.
    Mr. Johnson. Well, it is not an absolute privilege, though, 
is it?
    Mr. Francisco. I think that, in my view, with respect to 
White House staff-members being required to testify under 
compulsion before the Congress, I do believe that it is the 
longstanding position----
    Mr. Johnson. But is it absolute privilege?
    Mr. Francisco. In terms of the positions that Democrat and 
Republican Presidents have taken, yes.
    Mr. Johnson. What about that third branch of Government, 
the courts? How have they interpreted this question of 
unqualified immunity, if you will?
    Mr. Francisco. There is only one decision that has ever 
addressed Congress's subpoena of the President, in the face of 
an assertion of executive privilege. And in that one case, the 
court said that Congress was not entitled to enforce the 
subpoena. That was the Senate Committee case. It is a 
relatively old case, but it is the only one that there is on 
this issue.
    Mr. Johnson. What about that case involving the firing, or 
the issuance of subpoenas by Congress for the White House 
tapes?
    Mr. Francisco. I believe that you are referring to the 
Nixon case.
    Mr. Johnson. Yes, the Nixon case.
    Mr. Francisco. My understanding, and I can be corrected, is 
that that was the subpoena issued by a special prosecutor, 
rather than the Congress.
    Mr. Johnson. Well, I guess that the bottom line would be 
that the executive privilege is not absolute. It is qualified 
and can be subject to other concerns such as Congress's ability 
to oversee the office of the President.
    What factors must be assessed in balancing executive 
privilege against congressional oversight functions, Ms. Nolan?
    Ms. Nolan. First of all, I would like to say that no court 
has ever addressed this claim that former Presidents have made, 
and this President seems to be making, that White House 
advisors are immune from being called to testify. There is no 
judicial decision on that. The judicial decisions we do have 
say that executive privilege involves balancing, and that is 
the question you have: What factors would be balanced?
    I think what you are looking for is what are the legitimate 
and important constitutional interests and prerogatives of each 
branch. We have seen that courts may look, for instance, in a 
case such as this where I think there is no question that 
Congress has oversight authority with respect to these matters, 
then is Congress able to obtain the information in another way. 
That would be one question that you might look to.
    Mr. Johnson. Well, according to Mr. Francisco's view, 
conversations intra-White House, intra-White House 
communications, would be immune, and also communications from 
outside of the White House flowing into the White House would 
be immune. So that would severely limit the available material 
for the Congress to be able to exercise legislative authority 
or oversight authority.
    Ms. Nolan. Well, I think it is correct that the 
presidential communications privilege, those communications 
between advisers who are advising the President directly, do 
have the strongest claim to privilege.
    Now, I think Mr. Schwarz made a very good point that we 
don't know here that what we are talking about were advisers 
advising the President. It seems like they were directing the 
Justice Department instead. So we don't even know that that 
would be the claim.
    But even if it is a stronger claim, it doesn't mean that 
Congress's interest won't overcome that claim. What is 
important here is that while we have a very limited number of 
judicial decisions or law on the question, we have decades and 
decades of practice.
    And executive privilege is really nine parts practice and 
one part law. It is what the branches have agreed to and 
accommodated. I would say here there is plenty of precedent for 
the idea that those internal White House communications can be 
provided.
    Mr. Johnson. You yourself have provided testimony.
    Ms. Nolan. I have, and we did it again and again.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Johnson. All right. Thank you.
    Ms. Sanchez. Mr. Delahunt?
    Mr. Delahunt. Somewhere in the U.S. criminal code is there 
a criminal sanction imposed for testimony that is misleading to 
the Congress? Anybody?
    Mr. Francisco. I believe it is----
    Mr. Podesta. Yes, it is 18 U.S.C. 1001.
    Mr. Delahunt. Okay.
    Mr. Podesta. ``Misleading,'' I think, threw us. You can't 
lie to Congress.
    Mr. Delahunt. That is the point.
    You know, I understand the distinction we are making here, 
I think, Mr. Francisco is in terms of the rationale for the 
dismissal, if you will, of the U.S. attorneys. But what I would 
suggest is that there is uncertainty now in terms of whether 
there has been a violation of the United States criminal code.
    We have heard significant and germane variations on 
statements by the Attorney General of the United States. Would 
you agree, Mr. Francisco, that there is a rationale and a basis 
for the issuance of a subpoena, given the predicate of the 
potential violation of the U.S. criminal code?
    Mr. Francisco. My understanding is that the Administration 
has agreed to make the Attorney General and other Department of 
Justice officials available for testimony to the Congress. I 
may be wrong on that, but that is at least my understanding.
    Ms. Sanchez. In a limited scope.
    Mr. Francisco. And if that is the case, then the people who 
you believe may or may not have provided false testimony to the 
Congress are accessible to the Congress.
    Mr. Delahunt. I understand. Even if that is the case, 
however, the conduct of a criminal investigation implicates far 
more than just the testimony of an individual that may or may 
not invoke the fifth amendment.
    Mr. Francisco. In the context of a criminal investigation, 
that is where the courts have said that where a prosecutor is 
investigating a case and trying to uncover evidence of a crime, 
that is where the interest is the strongest in terms of 
overcoming executive privilege. But they have not said the same 
thing in the context of a congressional investigation.
    Mr. Delahunt. So then what the Congress ought to do if it 
feels appropriate or it feels that there is a quantum of 
evidence that there may have been a potential violation of the 
United States criminal code, is to request the appointment of a 
special prosecutor.
    Mr. Francisco. I think it would be appropriate for Congress 
to make that request.
    Mr. Delahunt. Mr. Podesta?
    Mr. Podesta. Well, my experience with the independent 
counsel leads me to think that that is an extraordinary remedy. 
And so I would urge you to try to work to get the----
    Mr. Delahunt. I am not suggesting. We let the independent 
counsel statute die.
    Mr. Podesta. There are special counsel provisions that Mr. 
Fitzgerald was appointed by.
    But just to clarify one thing, Mr. Delahunt, I think that 
it is still okay to lie to the press, which I think, if I 
understood Mr. Sampson's testimony this morning when he 
suggested that the Attorney General's statements weren't 
accurate, that those were press statements, rather than 
statements before Congress. Now, Mr. McNulty and others I think 
did testify before Congress.
    Mr. Delahunt. Well, then I guess I would suggest that there 
is the predicate for a conspiracy. In other words, we are 
focused on the dismissal at this point in time, as opposed to a 
rationale which would implicate the U.S. criminal code.
    I am not suggesting that the Attorney General has misled to 
lied to Congress, but what I am saying is exactly because we 
don't know, should mandate or should I think diminish the 
rationale for the invocation of executive privilege.
    We just saw a case here in Washington, the Libby case. It 
had nothing to do with leaking to the press. It had to do with 
testimony before the grand jury. What I am suggesting is if the 
White House reflects on this particular issue and there is an 
examination of testimony before Congress by individuals who may 
or may not have been informed by superiors in the Department of 
Justice, as well as the White House, that misled Congress, 
there is, one can theorize, a case, that there has been a 
violation of our criminal statutes.
    That, in and of itself, should, in my judgment, be 
sufficient for the White House to recognize that this is more 
than just simply dismissal of eight U.S. attorneys.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Jordan?
    Mr. Jordan. I thank the Chair and the panel for being here 
today.
    I am going to yield the balance of my time to the Ranking 
Member.
    Mr. Cannon. Thank you, Mr. Jordan.
    What has gone on with the U.S. attorneys has gone on. It is 
going to take a little bit of time to sort out. Let me just 
reassert the importance of the prerogatives of Congress.
    I think there is actually an interesting point that the 
gentleman from Massachusetts is making, if someone gave 
incorrect information knowing that it was going to come to 
Congress, there is a problem there somewhere and we need to 
pursue that.
    Now, Ms. Nolan, in your written testimony, you stated that 
some in the present Administration appear to believe that 
presidential advisers are immune from giving testimony on the 
theory that Congress does not have jurisdiction to oversee the 
office of the President. No precedent in our country's history 
has attempted to make such an extraordinary claim and no 
precedent provides a legal justification to support that 
perspective.
    Would you be surprised to learn that Robert Lipschutz, the 
former White House counsel in the Carter administration, wrote 
a memo on February 8, 1979 to White House staff stating--and by 
the way, Madam Chair, I would like to insert this letter from 
Mr. Lipschutz to the White House staff into the record.
    Ms. Sanchez. Without objection.
    [The letter follows:]
    
    
    Ms. Nolan. Mr. Cannon, you are saying that is from my 
testimony?
    Mr. Cannon. Oh, well, pardon me here. This is Mr. Podesta's 
testimony.
    The problem is no reasonable man would mind being at 
crosswords with you, but your rapier-like mind is beyond the 
competence of most of us, so let's get away from you and to 
someone who---- [Laughter.]
    Mr. Podesta, I think you said that.
    Let me just read a little portion of the letter: ``While 
the investigative power of congressional Committees is 
extremely broad, the personal staff of the President is immune 
from testimonial compulsion by Congress. This immunity is 
grounded in the constitutional doctrine of separation of 
powers.''
    Mr. Podesta. Mr. Cannon, the statement I was referring to 
goes to the back-end of that sentence, that Congress does not 
have jurisdiction to oversee the office of the President. That 
has been repeated from the White House podium on several 
occasions, including last Monday by Ms. Perino. And that is 
just not true.
    Mr. Cannon. What did she have to say? Do you recall her 
actual words?
    Mr. Podesta. I probably have it here, and I will find it 
for you.
    But on several occasions, I think that the White House has 
made the claim that the Congress has no authority over the 
White House, that they have no oversight authority over the 
White House, and that is just patently not true.
    Mr. Cannon. Well, they are separate branches, but they 
don't mean that Congress can't investigate the President. That 
can't possibly be what----
    Mr. Podesta. I would provide for the record the statements 
that have been made by the White House over the course of the 
last week. I think they would support the testimony that I gave 
here.
    Mr. Cannon. Well, they are a public record. If you could 
find them, that would be nice. We have an obligation here to 
also look for them.
    Let me just say, I think that we have come to a point where 
there is not a lot of disagreement here about what is 
privileged and what it not privileged. This case, as I think 
Mr. Schwarz pointed out earlier, raises some very interesting 
particular questions that may be new. We will sort through 
those.
    The scope of this is, and what I think we have agreed to, 
is that there is no absolute privilege. There is a right based 
upon a separation of powers. That right has come down to 
internal discussions versus external discussions.
    I think the President's offer, by the way, has been 
remarkably open in that regard. They have made everything 
available that has been into the White House, even discussions 
which I think Mr. Francisco would say may have been privileged, 
that is, ideas that have come from outside of the White House, 
inside the White House.
    If what we are doing is trying here in Congress to get to 
the truth, to find out how significant the problem is, then we 
could do so by pursuing the offer the President has made and 
seeing where that leads us. It may lead to a more significant 
revelation or not.
    Personally, I don't think the revelations that have come 
out so far as substantial. Certainly, there has been nothing 
significant of the testimony of the U.S. attorneys themselves 
is definitive that there is no attempt to avoid corruption 
charges or investigations, or that any investigations were not 
interrupted by the firings and would not be harmed by the 
firings.
    So what we are dealing with here may be angels on the head 
of a pin, but your contribution today has been very helpful in 
clarifying that. It seems to me that we have come down to a 
pretty clear sense of the scope of Congress's ability, and that 
is something that we will pursue aggressively on both sides of 
the aisle.
    Ms. Sanchez. The time of the gentleman has expired.
    I have one last question, and we will see if there are 
other questions. I want to pick up on the point that Mr. 
Delahunt was trying to make, and Mr. Cannon tried to flesh out 
a little bit.
    Regarding the potential of the invocation of presidential 
communications privilege as it pertains to matters surrounding 
the current case of the dismissals of the United States 
attorneys, is it necessary for Congress to establish a 
likelihood of criminal wrongdoing in order to overcome the 
presumption of privilege? Or would an indication of 
inefficiency or maladministration be sufficient?
    Mr. Podesta?
    Mr. Podesta. I think there is no definitive answer to that. 
I think clearly the Congress has jurisdiction and the Supreme 
Court has recognized that they have the authority to 
investigate for purposes of uncovering maladministration or 
other kinds of oversight issues. I think that there is a whole 
line of Supreme Court cases that uphold that right.
    The real question is, when you are faced with an executive 
privilege, have you overcome that right just because you are 
essentially operating in that zone? The one case that I am 
familiar with again goes back to Watergate, where the select 
Committee, the Watergate Committee, tried to get a set of tapes 
from the Nixon White House, and the court of appeals here 
concluded that they had not overcome the privilege because they 
had not demonstrated the need.
    The reason for that was that this Committee, the House 
Judiciary Committee, which was engaged in the impeachment 
process, had already received that same set of tapes, and the 
Watergate Committee in the Senate no longer needed them because 
the process had moved along. So I think that is a question that 
would be a first impression if it actually got to a court.
    Ms. Sanchez. Ms. Nolan, any thoughts?
    Ms. Nolan. Yes. I agree with Mr. Podesta that we don't have 
a definitive answer, but I don't understand there to be any law 
that would suggest that an actual determination of criminal 
wrongdoing is necessary to overcome the privilege. The cases 
have largely been in the criminal area, and so that is what the 
cases address. We don't have the same kind of explanation from 
the courts with respect to Congress.
    Ms. Sanchez. If we had to just assume a hypothetical that 
there was an intention in the firing of U.S. attorneys to 
disrupt certain investigations that were taking place, would 
the suggestion of that be enough to overcome the assertion of 
privileged communications?
    Ms. Nolan. I certainly think yes. If you have something 
that looks like obstruction of justice, an attempt to interfere 
with individual cases for reasons that really should be outside 
the authority of officials to do, then I think that is exactly 
the kind of thing.
    You are talking then about issues, whether they are 
criminal obstruction of justice or whether it is simply 
questions about the administration of justice, impartial 
execution of prosecutorial discretion, questions that really go 
to the heart of the rule of law and our criminal justice 
system, then I would say not only does Congress have the right 
to receive information relevant to that, but it has a 
responsibility. That is what the American people look to 
Congress to do.
    So without judging particular facts, in your hypothetical, 
yes.
    Ms. Sanchez. That would be a situation that would warrant 
it.
    Ms. Nolan. Absolutely.
    Ms. Sanchez. I am curious to know, must a claim of 
privilege be asserted by the President personally?
    Ms. Nolan. Yes. In the accommodation process, it is not 
always escalated to that point. That is, Congress and the 
executive reach an agreement before there is a personal 
assertion, a direct assertion by the President. But if the 
Administration is seeking to assert a privilege in a formal 
way, the accommodation process has failed. Then it is the 
President and the President only.
    Ms. Sanchez. Must that be in writing, that invocation?
    Ms. Nolan. I don't know the answer to that.
    Ms. Sanchez. Does anybody know the answer to that on the 
panel?
    Mr. Francisco. I think the practice has varied from 
President to President, which would suggest that it doesn't 
have to be in writing. But again, I would agree that I am not 
sure there is a definitive answer to that question.
    Ms. Sanchez. Okay. Thank you.
    Mr. Cannon, do you have any more questions, a second round 
of questions? Anybody else have questions?
    Mr. Johnson?
    Mr. Cannon passes.
    Mr. Johnson, you are recognized.
    Mr. Johnson. All right. Thank you.
    I will ask this of Mr. Schwarz.
    I want you to assume that there is a White House political 
director who decides that he wants to replace one U.S. attorney 
with another U.S. attorney for the reason that he wants the new 
U.S. attorney to institute a vindictive prosecution against a 
candidate for President from a different party in an upcoming 
election. And he wants that new U.S. attorney to institute 
criminal proceedings, or at least an investigation, against 
this presidential candidate, who may have some connections to 
that particular venue where the U.S. attorney is being 
replaced.
    Would that be a legitimate area of congressional inquiry?
    Mr. Schwarz. Well, sure, it is an area of congressional 
inquiry. It seems to me it gets back to the dialogue that the 
Chairwoman started and the Ranking Member continued about this 
discussion that somebody in the White House was using a 
political account to send their e-mails. It seems to me what 
that shows is that persons wasn't functioning as a Government 
official so the privilege wouldn't arise in the first instance.
    On your hypothetical, you have described an instance where 
someone was a political official and not a governmental 
official, and if they are a political official, and they are 
working in the White House----
    Mr. Johnson. Well, I want you to assume that the political 
official is actually a White House official, working in the 
White House, with the title of White House political director.
    Mr. Schwarz. To me, the question is whether the person is 
in fact a governmental official, or is a political person.
    Mr. Johnson. Let's assume that they are a governmental 
official as well as a political official.
    Mr. Schwarz. It is like my hypothetical of the attorney-
client privilege. If someone who is a lawyer and a businessman 
communicates to a client, and what they are communicating is 
business advice, not legal advice, then it is not privileged, 
even though they were a lawyer in a law firm.
    By the analogy, I would think if someone in the White House 
was in part a governmental official and in part a political 
official, to the extent they are a political official, I don't 
see why the presumption in favor of there being some sort of 
privilege should apply at all.
    I think your question is getting at it, and frankly I have 
never thought about this subject until it came up today, so 
perfectly, possibly I am giving you off-the-cuff reactions 
which wouldn't be supported after I had a chance to think about 
it further.
    But in starting to think about it, I think if there is a 
person physically in the White House who is in part a 
governmental official and in part a political official, when 
they are being a political official they are not protected by 
any privilege associated with the executive privilege, and 
shouldn't be.
    And that is, by the way, not a partisan issue, because it 
would be something that would bite on any future or past 
President and any future or past White House.
    Mr. Johnson. Mr. Podesta, let me ask you this question. The 
power to remove a United States attorney certainly vests in the 
President, and no one is disputing that.
    Do you think that the fact that the President has the 
unfettered discretion to appoint and to--well, I won't say to 
``appoint,'' but he certainly has unfettered discretion to 
dismiss.
    The fact that he has that unfettered discretion, does that 
insulate the reason for the dismissal from congressional 
inquiry and oversight?
    Mr. Podesta. No, Mr. Johnson. I think that U.S. attorneys 
serve at the pleasure of the President. So he could dismiss 
them on a whim, but he can't dismiss them for improper purpose.
    I think, again, if the purpose was to interfere with 
specific cases--I am not alleging that in this case. We don't 
know the facts. But if those were the facts, then I think that 
is inappropriate and improper. You could posit circumstances 
under which that would violate the criminal law.
    Ms. Sanchez. The time of the gentleman has expired.
    Mr. Delahunt?
    Mr. Delahunt. I will try to be brief. I will go back to 
what I was speaking to earlier.
    The Chair set a standard of likelihood. I would suggest 
that is too high. But in terms of obviating the ability for the 
White House to claim privilege, the appointment of a special 
prosecutor based on a quantum of evidence that would trigger 
the need for a special prosecutor would accomplish that. The 
question is, what is that quantum of evidence?
    If, for example, there was a decision made in the White 
House to stonewall, to resist explanation for the rationale for 
the dismissals, and a variety of explanations were explored, 
which had the consequence of misleading Congress in testimony, 
then I would suggest that, again, based on an analysis, there 
could be a sufficient quantum of evidence to trigger a request 
by this Committee in a bipartisan way to seek a special 
prosecutor.
    If I am correct in my analysis of executive privilege and 
the precedents, that would end the issue surrounding executive 
privilege.
    Comments? Mr. Francisco?
    Mr. Francisco. Sure. I think I said it would be appropriate 
for you to request a special prosecutor, but I tend to agree 
with Mr. Podesta that I don't think it would be appropriate for 
the Department of Justice to appoint one. I think the best way 
for that case to be handled----
    Mr. Delahunt. Why?
    Mr. Francisco. Well, I think for many of the same reasons 
you all decided not to reauthorize the independent counsel 
statute.
    Mr. Delahunt. We decided not to reauthorize the independent 
counsel statute, but left available, given potential conflicts, 
the ability to appoint, by the Attorney General, a special 
prosecutor.
    Mr. Francisco. That is absolutely true. My own personal 
belief is that when you hand these issues off to the career 
prosecutors in the public integrity sections in the U.S. 
attorneys' offices in the Department of Justice, those 
attorneys are generally better able to assess whether a case 
should be pursued.
    Mr. Delahunt. Well, I would be happy to have Mr. 
Fitzpatrick come back and assume that responsibility.
    Mr. Francisco. Sure. My concern----
    Mr. Delahunt. It is not a question of ``who.'' It is a 
question of if there is a trigger, whether it is a special 
prosecutor or whether it is assigned to an individual who is 
given independence within the Department of Justice, to 
investigate. That does obviate the invocation of the privilege.
    Mr. Francisco. Well, it doesn't obviate the invocation of 
the privilege. What the courts have said is that in the context 
of a criminal investigation, if there is a sufficient showing 
of need, it can obviate the privilege. We would be into the 
balancing world that Ms. Nolan was discussing and that the 
Supreme Court employed in the Nixon case.
    Mr. Delahunt. Thank you.
    Ms. Nolan?
    Mr. Podesta?
    Ms. Nolan. Mr. Delahunt, I would, like both of the people 
on either side of me, I am not a big fan of the special 
counsel, independent counsel, special prosecutor, whatever you 
want to call it. But I can't think of a situation that cries 
out it more than this one. There is no possibility that the 
Attorney General or the deputy Attorney General could be 
expected to oversee an investigation and prosecution of this.
    Mr. Delahunt. Absolutely.
    Thank you. With that, I am going to yield back my time.
    But before I do, I am going to request the Chair consult 
with the Ranking Member and the Chair of the full Committee and 
the Ranking Member of the full Committee to explore the 
possibility of a request from the Judiciary Committee to the 
Attorney General for the appointment of a special prosecutor.
    Ms. Sanchez. The Chair will take that suggestion under 
advisement.
    Mr. Cannon. If the gentleman would yield, I think that is a 
very appropriate thing to do. I think that what we have heard 
from the panel is that we need to find something substantial 
before we take that leap.
    If the gentleman would continue to yield, I would just like 
to submit for the record the case of Judicial Watch v. Justice 
Department, wherein the Appellate Circuit for the District of 
Columbia has said, ``However, the issue of whether a President 
must personally invoke the privilege remains an open 
question.'' So I am not sure that is definitive and will submit 
that for the record.
    [The information referred to follows:]

    
    
    
    Ms. Sanchez. Okay. The time of the gentleman has expired.
    I want to once again thank all of the witnesses for your 
testimony today.
    Without objections, Members will have 5 legislative days to 
submit any additional written questions, which we will forward 
to the witnesses, and ask that you answer as promptly as you 
can, so that they can be made part of the record.
    Without objection, the record will remain open for 5 
legislative days for the submission of any additional 
materials.
    Again, thank you for your time and your patience. You have 
been very generous.
    The hearing of the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 3:46 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Response to Post-Hearing Questions from John D. Podesta, former White 
 House Chief of Staff to President Clinton, President and CEO, Center 
                         for American Progress

Question from Chairwoman Sanchez

    In a letter dated April 12, 2007, Chairman Conyers and I requested 
that the Republican National Committee (RNC) produce all communications 
by current or former government employees stored on RNC servers related 
to the Judiciary Committee's investigation concerning the recent 
firings of eight United States Attorneys and related matters. In 
response, the White House indicated that it will review these 
communications for claims of executive privilege before they are 
disclosed to the Judiciary Committee. Is an executive privilege claim 
by the White House appropriate? Please explain.

Response of Mr. Podesta

    It is unlikely that a claim of privilege would be sustained in this 
instance even if the presidential communications in question had been 
conducted through official channels. This is because the presidential 
communications privilege is not unqualified, and the presumption of 
privilege can be rebutted by a strong showing that the subpoenaed 
evidence is critical to the responsible fulfillment of the Committee's 
functions. See Senate Select Committee on Presidential Campaign 
Activities v. Nixon, 498 F.2d 725 (D.C.Cir. 1974). This is a burden 
which I believe the Committee would meet.
    The fact that the communications in question were transmitted via 
unofficial, non-White House email accounts does not necessarily 
extinguish a claim of privilege, but under such circumstances, the 
presumption, at a minimum, should be reversed. The emails still might 
be privileged if they were ``authored or solicited and received by 
those members of an immediate White House adviser's staff who have 
broad and significant responsibility for investigating and formulating 
the advice to be given the President on the particular matter to which 
the communications relate.'' In re Sealed Case (Espy), 121 F.3d 729, 
752 (D.C. Cir. 1997). But given the use of RNC email accounts, the 
burden is on the White House to show that the communications should be 
treated as presidential communications.
    I would therefore urge the Committee to insist that the White 
House: (a) turn over all records that do not meet the Espy test; and 
(b) produce a privilege log with respect to any records with respect to 
which it wishes to assert a claim of privilege, identifying the date, 
author, and recipient of each document withheld as well as a general 
statement of the nature of each document and the basis for the 
privilege on which the document was withheld. See Espy at 735. Only 
then will the Committee be in a position to assess the validity of any 
claims of privilege with respect to these documents.
    It is fair to conclude that the authors of the subpoenaed 
communications transmitted them outside of official channels for one of 
two reasons: either they did not believe they were presidential 
communications, or they were seeking to evade the requirements of the 
Presidential Records Act. In either case, their behavior was 
inconsistent with a claim of privilege.
    Given the use of RNC email accounts, the burden necessarily belongs 
with the White House to show that the communications should be treated 
as presidential communications.
   Response to Post Hearing Questions from Noel J. Francisco, former 
   Associate Counsel to President George W. Bush, Partner, Jones Day

Question from Chairwoman Sanchez

    In a letter dated April 12, 2007, Chairman Conyers and I requested 
that the Republican National Committee (RNC) produce all communications 
by current or former government employees stored on RNC servers related 
to the Judiciary Committee's investigation concerning the recent 
firings of eight United States Attorneys and related matters. In 
response, the White House indicated that it will review these 
communications for claims of executive privilege before they are 
disclosed to the Judiciary Committee. Is an executive privilege claim 
by the White House appropriate? Please explain.

Answer

    The reported case law in this area is somewhat murky. In my view, 
however, executive privilege is broad enough to cover communications to 
White House officials, including those received by such officials on 
non-White House e-mail accounts. For example, if a White House official 
were working from home and received work-related messages on his or her 
home e-mail account, then I believe such e-mail messages would fall 
within the scope of Executive Privilege. The same principle would, in 
my view, apply to messages received on other e-mail accounts. 
Therefore, depending upon the nature of the communications, I believe 
that the invocation of Executive Privilege by the White House would be 
appropriate.

 Response to Post-Hearing Questions from Frederick A.O. Schwarz, Jr., 
     Senior Counsel, Brennan Center for Justice, NYU School of Law




Letter from Fred F. Fielding, Counsel to the President, to the Chairman 
Leahy, Chairman Conyers, Ranking Member Specter, Ranking Member Smith, 
                       and Congresswoman Sanchez



 Congressional Research Service Memorandum on Oversight and Executive 
Privilege Issues Pertaining to the March 29, 2007 Hearing on ``Ensuring 
                   Executive Branch Accountability''




            Prepared Statement of Bruce Fein, on behalf of 
                      the American Freedom Agenda




                                 
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