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



 
  IMPLEMENTATION OF THE U.S. DEPARTMENT OF JUSTICE'S SPECIAL COUNSEL 
                               REGULATION

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


                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                   COMMERCIAL AND ADMINISTRATIVE LAW

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           FEBRUARY 26, 2008

                               __________

                           Serial No. 110-172

                               __________

         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. ``BOBBY'' 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
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General 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

                              ----------                              

                           FEBRUARY 26, 2008

                                                                   Page

                           OPENING STATEMENT

The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Chairwoman, Subcommittee on 
  Commercial and Administrative Law..............................     1

                               WITNESSES

Carol Elder Bruce, Esquire, Venable, LLP, Washington, DC
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8
Neal Katyal, Esquire, Professor, Georgetown University Law 
  Center, Washington, DC
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61
Lee A. Casey, Esquire, Baker and Hostetler, LLP, Washington, DC
  Oral Testimony.................................................    92
  Prepared Statement.............................................    94
Barry Coburn, Esquire, Coburn and Coffman, PLLC, Washington, DC
  Oral Testimony.................................................   105
  Prepared Statement.............................................   107
The Honorable Patrick J. Fitzgerald, United States Attorney for 
  Northern District of Illinois, former Special Counsel, United 
  States Department of Justice, Chicago, IL
  Oral Testimony.................................................   128

          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......     3

                                APPENDIX
               Material Submitted for the Hearing Record

Answers to Post-Hearing Questions from Carol Elder Bruce, 
  Esquire, Venable, LLP, Washington, DC..........................   136
Post-Hearing Questions submitted to Neal Katyal, Esquire, 
  Professor, Georgetown University Law Center, Washington, DC....   143
Answers to Post-Hearing Questions from Lee A. Casey, Esquire, 
  Baker and Hostetler, LLP, Washington, DC.......................   145
Answers to Post-Hearing Questions from Barry Coburn, Esquire, 
  Coburn and Coffman, PLLC, Washington, DC.......................   152
Answers to Post-Hearing Questions from the Honorable Patrick J. 
  Fitzgerald, United States Attorney for Northern District of 
  Illinois, former Special Counsel, United States Department of 
  Justice, Chicago, IL...........................................   154
Supplement to Answers to Post-Hearing Questions from the 
  Honorable Patrick J. Fitzgerald, United States Attorney for 
  Northern District of Illinois, former Special Counsel, United 
  States Department of Justice, Chicago, IL......................   157


  IMPLEMENTATION OF THE U.S. DEPARTMENT OF JUSTICE'S SPECIAL COUNSEL 
                               REGULATION

                              ----------                              


                       TUESDAY, FEBRUARY 26, 2008

              House of Representatives,    
                     Subcommittee on Commercial    
                            and Administrative Law,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:50 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Linda 
Sanchez (Chairwoman of the Subcommittee) presiding.
    Present: Representatives Conyers, Sanchez, Johnson, 
Lofgren, Cannon, and Feeney.
    Staff present: Eric Tamarkin, Majority Counsel; Daniel 
Flores, Minority Counsel; and Adam Russell, Majority 
Professional Staff Member.
    Ms. Sanchez. This hearing on the Committee of the 
Judiciary, Subcommittee on Commercial and Administrative Law 
will now come to order.
    I will now recognize myself for a short statement. In 
response to the Watergate scandal and President Richard Nixon's 
executive dismissal of independent special prosecutor Archibald 
Cox, the independent counsel provisions were originally enacted 
as Title VI of the Ethics and Government Act of 1978.
    Specifically, the special prosecutor independent counsel 
provisions were adopted to deal with the unusual circumstance 
of an inherent conflict of interest that would arise when the 
Attorney General and the President, while supervising the 
Department of Justice and Federal prosecutors, would control 
the investigation and possible prosecution of allegations of 
their own criminal wrongdoing or other high-level officials in 
their administration.
    During the nearly 21-year span of the law, 20 independent 
counsels were appointed at a cost of approximately $230 million 
to the American people. When the independent counsel law 
expired, regulations were promulgated concerning the 
appointment of outside temporary counsel.
    According to the regulations, such special counsels are to 
be appointed by the Attorney General to conduct investigations 
and possible prosecutions of certain sensitive criminal matters 
where the Department may have a conflict of interest, and where 
the circumstances determine that such an appointment would be 
in the public interest.
    These regulations make clear that the special counsel 
should come from outside of the Government. They also provide 
that at the conclusion of his or her work, the special counsel 
must produce a confidential report explaining the prosecutions 
or the decision not to prosecute.
    Additionally, at the conclusion of the investigation, the 
Attorney General is obligated to notify the Chairman and 
Ranking minority Members of the House and Senate Judiciary 
Committee. This notification is essential if Congress is to 
fulfill its oversight duties and its constitutional obligation 
to provide a check on executive branch action.
    Recently, these special counsel regulations have been all 
but ignored. Despite several opportunities to do so, Attorneys 
General in the Bush administration have yet to utilize the 
special counsel regulations. In the CIA leak matter, U.S. 
Attorney Patrick Fitzgerald was given the title of special 
counsel, but did not come from outside of Government and was 
not required to abide by the Department's special counsel 
regulations.
    The practical implication of this arrangement was that Mr. 
Fitzgerald had significantly more power and less supervision 
than a special counsel under the regulation. Similarly, with 
regard to the detainee interrogation videotapes investigation, 
Attorney General Mukasey has appointed Assistant U.S. Attorney 
John Durham to be the acting U.S. attorney for the Eastern 
District of Virginia.
    While Mr. Durham's qualifications and reputation are 
admirable, as are Mr. Fitzgerald's, I remain concerned about 
potential conflicts of interest and a lack of procedural 
safeguards in place for his appointment. I am also concerned 
about the scope of Mr. Durham's investigation. The Attorney 
General has indicated that Mr. Durham will investigate the 
destruction of the tapes. However, he has made clear that Mr. 
Durham will not investigate the activities recorded on the 
tapes, including the use of waterboarding.
    Because of these concerns, I joined 18 of my colleagues on 
the Judiciary Committee in a letter to Attorney General Mukasey 
requesting that he appoint an outside special counsel in the 
videotapes case. To date, we have yet to receive a response to 
our request.
    I am very interested in whether the special counsel 
regulations are functioning properly, and whether the 
Department should revise the regulations in light of Mr. 
Fitzgerald's experience. I am also interested in whether we 
should revisit the independent counsel statute, or whether we 
should consider a new legislative approach that strikes the 
proper balance of independence and accountability.
    Although the Subcommittee examined the expiring independent 
counsel statute and newly promulgated special counsel 
regulations in several hearings during the 106th Congress, this 
is the first hearing that I am aware of that the Subcommittee 
has conducted regarding oversight of the implementation of the 
special counsel regulations.
    Accordingly, I am very much looking forward to hearing from 
our witnesses on today's panel.
    At this time I would now like to recognize my colleague Mr. 
Cannon, the distinguished Ranking Member of the Subcommittee, 
for his opening statement.
    Mr. Cannon. Thank you, Madam Chair. This is, of course, a 
very complicated issue that has been dealt with in many 
different ways over time. I look forward to hearing our 
witnesses, and given the fact that we have votes coming up, I 
would ask unanimous consent that my opening statement be 
inserted into the record.
    Ms. Sanchez. Without objection, so ordered.
    [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
    Thank you Madame Chair and welcome to our witnesses.
    I would like offer some perspective before we start. This 
subcommittee spent the better part of a year looking into the U.S. 
Attorneys' matter. The purported object of that investigation was to 
assure that the Department of Justice was ``independent'' of undue 
influence by Administration politics.
    I don't think the predicates for the doubts about the Department's 
independence were true, but the U.S. Attorneys' investigation did bring 
us a new Attorney General and a new Deputy Attorney General who is 
waiting for Senate confirmation. And their independence is not subject 
to serious question.
    So when the news of the destruction of CIA tapes broke, I would 
have thought we might hear the majority cry ``We have an independent 
DOJ to investigate this!''
    But we didn't.
    Instead we heard we can't trust the new Attorney General and the 
Department of Justice to investigate and we have to have a special 
counsel, an outsider.
    The disconnect is dizzying because layering the Department of 
Justice with political charges does nothing for the independence, 
confidence and reputation of the Department.
    I fear we may be off to the same political start to this session as 
we were with the last, but I hope I am wrong.
    In order to avoid the political temptation presented by this 
hearing the fair questions will be to extract information needed for 
oversight and will focus on the Special Counsel Regulations that 
replaced the old Independent Counsel Act--a piece of legislation that a 
bipartisan list of notables from Chris Dodd to Ken Starr, Cass Sunstein 
to Robert Bork, said had to be scrapped.
    I look forward to learning more about whether the experience thus 
far under the Special Counsel regulations shows if there's anything 
really wrong with the regulations.
    For example, whether infrequent decisions to appoint special 
counsels means the regulations aren't working or instead simply that 
hard-working career employees and appointed officials have routinely 
proved themselves capable of investigating politically charged cases, 
just as we expect them to be.
    And, consistent with that, whether the Department's decision to 
investigate the CIA tapes matter itself--as it has investigated similar 
matters for over a century--was the right one.
    I look forward to the testimony and yield back the remainder of my 
time.

    Ms. Sanchez. And I appreciate your attempt to try to move 
this along. Without objection, other Members' opening 
statements will be included in the record; and without 
objection, the Chair will be authorized to declare a recess of 
the hearing at any point.
    I am now pleased to introduce the first witness panel for 
today's hearing. Our first witness is Carol Elder Bruce, a 
partner at Venable, LLP. Carol Elder Bruce is a litigator whose 
practice focuses on white-collar criminal defense and complex 
civil litigation. She represents individuals and corporations 
in criminal grand jury investigations and in criminal and civil 
trials and appeals. She also represents clients in hearings and 
proceedings before the U.S. House of Representatives, the 
United States Senate, and administrative proceedings within 
Federal agencies and in the conduct of internal corporate 
investigations.
    Ms. Bruce served as the independent counsel appointed by a 
special panel of the U.S. Court of Appeals for the D.C. Circuit 
to investigate matters concerning Interior Secretary Bruce 
Babbitt. She previously served as the deputy independent 
counsel in the investigation of matters concerning Attorney 
General Edwin Meese, and also was assistant United States 
Attorney for the District of Columbia for 10 years, where she 
was lead counsel in over 115 jury trials, and managed a grand 
jury presentation of more than 100 additional case.
    Ms. Bruce is a fellow of the American College of Trial 
Lawyers, and she has completed a 2-year tenure as chair of the 
college's International Committee. She is also a vice-chair of 
the white-collar committee of the National Association of 
Criminal Defense Lawyers. She serves on the honorary board of 
the Innocence Project of the national capital region and on the 
George Washington University Law School dean's board of 
advisors. Welcome to you, Ms. Bruce.
    Our second witness is Neal Katyal. Did I pronounce that 
correctly? Professor Katyal is a professor at Georgetown 
University Law School. He is an expert in matters of 
constitutional law, particularly the role of the President and 
Congress in time of war, and theories of constitutional 
interpretation. His other primary academic interests are 
criminal law and education law.
    Professor Katyal previously served as National Security 
Advisor in the U.S. Justice Department. He also served as Vice 
President Al Gore's co-counsel in the Supreme Court election 
dispute of 2000, and represented the deans of most major 
private law schools in the landmark University of Michigan 
affirmative action case, Grutter v. Bollinger.
    Professor Katyal clerked for Supreme Court Justice Stephen 
Breyer as well as Judge Guido Calabresi of the U.S. Court of 
Appeals. Professor Katyal was named Lawyer of the Year in 2006 
by Lawyers USA, and has also been awarded the town of Salem, 
Massachusetts prize for 2007. He has appeared on several major 
American nightly news programs as well as other venues such as 
the Colbert Report--a very brave man indeed.
    Our third witness is Lee Casey, a partner at Baker & 
Hostetler, LLP. Mr. Casey focuses on Federal, environmental, 
constitutional, elections, and regulatory law issues, as well 
as international and humanitarian law. His practice includes 
Federal, district, and appellate court litigation, as well as 
matters before Federal agencies.
    Prior to joining Baker & Hostetler, Mr. Casey was an 
associate with Hunton & Williams, practicing in international, 
environmental, and constitutional law. From 1986 to 1993, Mr. 
Casey served in various capacities in the Federal Government, 
including the Office of Legal Counsel and the Office of Legal 
Policy at the U.S. Department of Justice. In addition, from 
1990 to 1992, Mr. Casey served as Deputy Associate General 
Counsel at the U.S. Department of Energy.
    Before joining the Government in 1986, Mr. Casey was an 
associate in the Los Angeles firm of Mitchell Silberberg & 
Knupp, practicing in the litigation section with an emphasis on 
copyright, contract, and first amendment issues.
    From 1982 to 1984 he practiced at the Detroit firm of 
Dykema Gossett, focusing on corporate securities, commercial, 
and intellectual property litigation.
    From 1984 to 1985, Mr. Casey served as law clerk to the 
Honorable Alex Kozinski, then Chief Judge of the United States 
Claims Court.
    Our final witness on our first panel is Barry Coburn. Mr. 
Coburn has been litigating complex criminal and civil cases for 
over 25 years. His experience encompasses several years with 
the United States Department of Justice Antitrust Division, 
where he served as the Special Assistant in the Office of 
Operations. Additionally, he served 4 years in the United 
States Attorney's Office for the District of Columbia, and has 
been in private practice for 18 years.
    Mr. Coburn is a fellow of the American College of Trial 
Lawyers, and is a member of the District of Columbia Committee 
and Access to Justice Committee. He has taught continuing legal 
education courses in the areas of trial practice, the Federal 
sentencing guidelines, witness issues, securities fraud, and 
other subjects sponsored by the American Bar Association, the 
District of Columbia Bar, the American College of Trial 
Lawyers, and other entities.
    Mr. Coburn has guest-taught at Georgetown University, 
George Washington University, and the University of Virginia 
law schools, and at the Department of Justice's National 
Advocacy Center, and authored numerous articles. I want to 
thank you all for your willingness to participate in today's 
hearing.
    Without objection, your written statements will be placed 
into the record in their entirety, and we are going to ask that 
you please limit your oral remarks to 5 minutes. You will note 
that we have a lighting system there on the desk. When your 
time begins you will see a green light start; when you are 4 
minutes into your time you will get the yellow warning light 
that you have a minute left; and alas, when the light turns red 
your time has expired. If you are in the middle of a sentence 
or a final thought we will, of course, allow you to complete 
that thought before we move on to our next witness.
    After each witness has presented his or her testimony, 
Subcommittee Members will be permitted to ask questions subject 
to the 5-minute limit. With that made explicit, I would invite 
Ms. Bruce to please proceed with her testimony.

           TESTIMONY OF CAROL ELDER BRUCE, ESQUIRE, 
                  VENABLE, LLP, WASHINGTON, DC

    Ms. Bruce. Thank you very much, Madam Chair. Good 
afternoon, Madam Chair, Mr. Cannon, and other Members of the 
Committee.
    We probably would not be having this conversation today 
about whether, when, and how a special counsel should be 
appointed to conduct an investigation of possible criminal 
activity by public officials, if it were not for the latest 
decision of our new Attorney General to assign a Federal 
prosecutor, and not an outside special counsel, to the task of 
investigating whether any CIA or other Government officials 
committed obstruction of justice by destroying videotapes of 
certain interrogation sessions involving waterboarding of 
certain detainees who were suspected al-Qaeda operatives.
    The prosecutor selected, John Durham of Connecticut, 
apparently has an impeccable reputation as an honest, 
aggressive, no-nonsense investigator and prosecutor. He has 
quickly assembled a small but impressive team of current 
Federal prosecutors from Boston. He has been given the full 
authority of the U.S. attorney, for his appointment in this 
matter, as the acting U.S. attorney for the Eastern District of 
Virginia. This appointment has been applauded my many Members 
of Congress, newspaper editors, and legal commentators.
    With respect, though, the appointment is flawed because Mr. 
Durham must conduct his investigation within the usual 
reporting and approval processes of the very department that 
was so deeply involved in supporting and sanctioning the 
waterboarding that took place, and that was videotaped by 
Government agents--the very department that apparently later 
gave the CIA advice about whether they must preserve the 
videotapes.
    This is an extraordinarily important obstruction of justice 
investigation that should be handled by a special prosecutor 
outside of the usual reporting and approval channels within the 
Department of Justice.
    Three things I would ask the Committee to consider as you 
deliberate on the question of whether, what, and how to enact 
new laws with respect to special counsel regulations. I believe 
it is clear, from internal Government memoranda and public 
statements, that high-level Justice Department and White House 
officials ignored the law, common sense, and decency to justify 
torturing terror suspects in order to extract confessions and 
intelligence from them. These approving officials included, 
among others, according to public accounts, the Vice President, 
his chief lawyer, David Addington, counsel to the President 
Alberto Gonzales, Office of Legal Counsel Chief Jay Bybee, who 
is now a Ninth Circuit judge, and his Deputy, John Yoo.
    Second, it is also clear from public accounts that 
experienced CIA officials had doubts about the wisdom or 
effectiveness of torturing detainees. From a practical 
perspective, they questioned the value of the information 
obtained from enhanced interrogation techniques. After all, a 
man will say anything to stop being tortured, and certainly 
will say whatever he thinks his interrogators want him to say.
    And many CIA interrogators worry that if we engage in such 
extreme practices, how can we complain when foreign tyrants 
torture our soldiers? Related to these concerns is the moral 
perspective--a perspective expressed so eloquently by Senator 
McCain--that it is not about who they are, it is about who we 
are.
    But these well-founded reservations in the CIA were 
overridden by forceful White House pronouncements sanctioning 
controversial enhanced interrogation practices and by Justice 
Department memos solicited by and written to the then Counsel 
for the President, Alberto Gonzales.
    We just learned recently that the Office of Professional 
Responsibility of the Justice Department has been reviewing the 
ethical implications of these Justice Department memos for a 
number of years now.
    Third, and finally, the pubic records already are full of 
reports of the countless meetings CIA officials, including the 
former head of the Clandestine Services, Jose Rodriguez, the 
man who apparently gave the order to destroy the tapes, had 
with high-ranking lawyers at the Justice Department, the White 
House, the CIA, among others--places to get advice and 
instructions about whether the recordings could be destroyed. 
These meetings all took place while court cases were 
progressing in which evidence preservation orders had been 
issued.
    The 9/11 Commission was seeking evidence about the 
interrogations, and Congress was reviewing detainee treatment 
policies. With this context and this background, this is a case 
in which the prosecutor investigating the matter should be 
independent from the Justice Department's reporting and 
approval process. As things presently stand, Mr. Durham is not 
independent.
    I respectfully submit that the Attorney General should 
appoint a new outside special prosecutor under the same 
provisions of the United States Code that Patrick Fitzgerald 
was appointed by acting Attorney General Comey--I see my light 
is expired. I just have a few sentences----
    Ms. Sanchez. Please go ahead and finish your thought.
    Ms. Bruce [continuing]. In the Valerie Plame matter in 
2003, and Robert Fiske was appointed 9 years earlier under the 
same provision by Attorney General Reno in the Whitewater 
investigation. I further submit that the special counsel should 
be a private lawyer, and not an employee of the Justice 
Department. Thank you.
    [The prepared statement of Ms. Bruce follows:]
                Prepared Statement of Carol Elder Bruce







































































































    Ms. Sanchez. Thank you so much for your testimony, Ms. 
Bruce. At this time I would invite Professor Katyal to provide 
us with his testimony.

   TESTIMONY OF NEAL KATYAL, ESQUIRE, PROFESSOR, GEORGETOWN 
             UNIVERSITY LAW CENTER, WASHINGTON, DC

    Mr. Katyal. Thank you, Chairwoman Sanchez, Representative 
Cannon, and Members of the Subcommittee, for inviting me here 
today and for this hearing, which has been a long time in 
coming. The special counsel regulations derive from two 
principles fundamental since our Nation's founding: 
accountability, and the need to take care that the laws be 
faithfully executed.
    My job at the Justice Department, from 1998 to 1999, 
involved running a department-wide group to examine the 
Independent Counsel Act. Attorney General Reno then tasked me 
with drafting the Justice Department regulations that would 
replace this act. After a wide-ranging consultation, both 
within the Department and with this Committee and others in 
Congress, the special counsel regulations became effective in 
June 1999, when the Independent Counsel Act lapsed.
    You have asked me here today to discuss the development of 
these regulations, and I have therefore prepared an extensive 
statement that walks the Committee through each aspect of the 
regulations, as well as discussing the recent appointments of 
Senator Danforth and Patrick Fitzgerald.
    In the remaining minutes, I will discuss the recent 
investigation regarding the CIA's alleged destruction of the 
videotapes. I believe that the Attorney General's recent 
testimony stating that the Justice Department will not 
investigate the underlying conduct on the destroyed tapes, 
including confirmed instances of waterboarding, highlights a 
strong possible need for a special counsel.
    The Attorney General told this Committee that waterboarding 
``cannot possibly be the subject of a criminal Justice 
Department investigation because that would mean the same 
department that authorized the program would now consider 
prosecuting somebody who followed that advice.'' This statement 
reflects the complicated institutional dynamics of this 
investigation--one in which the department must investigate not 
just the CIA, but also itself.
    This underscores why a special counsel may be appropriate. 
Attorney General Mukasey took the position that he did not want 
to investigate waterboarding because the interrogators relied, 
in good faith, on legal opinions drafted by the Office of Legal 
Counsel in 2002. This position may very well be justified, 
depending on what the OLC opinions say, but it is literally 
impossible to assess this claim without seeing the opinions 
themselves.
    I deeply believe the executive branch should have a zone of 
secrecy to operate, and that legal opinions that disclose the 
existence of secret war-fighting techniques should not be 
publicly disclosed except in extreme circumstances; but that 
claim cannot apply to waterboarding. After all, the OLC 
opinions on which the Attorney General claims officials relied 
have been withdrawn.
    The use of this technique has also been recently confirmed 
by our Nation's top officials in recent sworn testimony. And 
most importantly, the Attorney General and the director of the 
CIA have both told this Committee that America is not now using 
waterboarding.
    Given these facts and the important legislative interest in 
the issue, the Attorney General should, at a minimum, disclose 
the waterboarding opinions to this Committee. The 
Administration has elevated these OLC legal opinions into a 
status akin to law, using them as definitive interpretations of 
this Congress' work product. Just as our founders would not 
have tolerated secret laws made by Congress, they would not 
have tolerated a system of secret law made by the executive 
branch, particularly on an issue that is of utmost importance 
to our Nation's character.
    The Attorney General's position, evidently, is that the law 
made by his department is so secret that even this body, the 
Congress of the United States, a body that article 1 of our 
Constitution vests with responsibility for making law, cannot 
be told about it. If the Attorney General does not disclose 
these opinions, he will essentially be asking Congress to let 
him shut down a potential criminal investigation on the basis 
of a putative good faith defense based on secret opinions that 
Congress has never seen.
    If the Attorney General refuses to disclose these opinions 
to appropriate individuals in Congress, then Congress may very 
well be justified in questioning his conclusions about the good 
faith defense, and may instead insist on the appointment of a 
special counsel.
    Regardless of what happens with the OLC opinions, at a 
minimum the reporting requirements to Congress that are 
embodied in the special counsel regulations should be applied 
to the tapes investigation immediately, and my statement goes 
through the reasons why.
    In sum, given Attorney General Mukasey's well-deserved 
reputation for independence and honesty, I do not believe 
interference is likely. But our Government was founded on the 
idea that checks and balances must be laced into the system to 
guard against mistakes by well-meaning individuals. Applying 
the modest reporting requirements in the special counsel 
regulations will reassure the public that Congress will be 
informed about any interference with such a sensitive 
investigation.
    As such, if Mr. Durham's investigation finds no crime has 
occurred, the reporting requirement will shield the 
Administration from accusations of impropriety. And if, as I 
predict, no interference by the Attorney General takes place, a 
reporting requirement to Congress will have little effect 
outside of the positive precedent it will set for other 
extremely sensitive investigations with future Attorneys 
General.
                   Prepared Statement of Neal Katyal






























































    Ms. Sanchez. Thank you, Professor. Your time has expired. I 
would now invite Mr. Casey to please begin his testimony.

              TESTIMONY OF LEE A. CASEY, ESQUIRE, 
            BAKER AND HOSTETLER, LLP, WASHINGTON, DC

    Mr. Casey. Thank you, Madam Chairwoman, and thank you for 
inviting me today to address the Committee on this important 
subject. And I would also like to note that my remarks here are 
delivered on my own behalf, and not on behalf of my law firm or 
any of our clients.
    In 1940, then Attorney General Robert Jackson warned that 
the greatest potential for prosecutorial abuse exists when 
individuals, rather than offenses, are targeted for 
investigation. If proof of this were needed, it was provided 
nearly 40 years later with the enactment of the independent 
counsel statute.
    An ill-judged reaction to the Watergate affair, by its very 
nature the independent counsel law required a prosecutorial 
focus on individuals and not on offenses. Although that law was 
upheld against constitutional attack in Morrison v. Olsen, 
Justice Antonin Scalia challenged the majority's rule and 
reasoning in what must surely be rated one of the most 
prescient judicial dissents in our history.
    Noting that issues like those raised by the independent 
counsel statute frequently ``will come before the Court clad, 
so to speak, in sheep's clothing,'' he made clear that ``this 
wolf comes as a wolf.'' As he explained later in his opinion, 
putting a finger precisely on that law's problematic core: 
``Nothing is so politically effective as the ability to charge 
that one's opponent and his associates are not merely 
wrongheaded, naive, ineffective, but in all probability, 
crooks.
    And nothing so effectively gives an appearance of validity 
to such charges as a Justice Department investigation and, even 
better, prosecution.'' Throughout the 1980's and 1990's, a 
series of relentless independent counsel investigations 
overwhelmed successive presidential Administrations.
    The independent counsel law expired in 1999, and it was not 
reauthorized. If the special counsel regulations the 
Subcommittee is today considering have one great and 
indisputable virtue, it is that they are not the independent 
counsel statute.
    Among their clear improvements are the following: They make 
clear that appointment of a special counsel should be an 
extraordinary act reserved for extraordinary circumstances 
where the public interest demands it, not a foregone conclusion 
simply because a high level official has been accused of 
criminal wrongdoing.
    Appointment of a special counsel is truly within the 
Attorney General's discretion. Although a special counsel may 
hire staff, the regulation's clear import is that he or she 
should first and foremost depend on the Justice Department's 
existing staff and resources, including its experienced career 
prosecutors.
    The special counsel's jurisdiction is established by the 
Attorney General, and only the Attorney General can expand that 
jurisdiction. The special counsel's annual budget is subject to 
review and approval by the Attorney General and, on an annual 
basis, the Attorney General must determine whether the 
investigation should continue.
    Perhaps most significantly of all, the regulations require 
that the special counsel comply with ``the rules, regulations 
and procedures and policies of the Department of Justice,'' and 
permit his or her removal for failing to follow those policies. 
A special counsel appointed under these rules is far more 
effectively subject to the Justice Department's overall 
resource constraints and perspective. It is that perspective, 
where consideration must be given to the importance of pursuing 
a particular investigation in the context of the department's 
other work, that can act as a most effective check on the 
potential for prosecutorial abuse.
    With regard to the most recent calls for appointment of a 
special counsel to investigate the 2005 destruction of CIA 
tapes showing the interrogation of high-level Al Qaeda 
prisoners, there is no doubt that Attorney General Mukasey has 
made the right decision in not appointing a special counsel.
    By designating an experienced career prosecutor to act in 
the matter, he has achieved the very kind of accommodation that 
is contemplated by 28 CFR 600.2, allowing the Attorney General 
to take ``appropriate steps to mitigate any conflicts of 
interest such as recusal of particular officials.'' No 
individual should be above the law.
    Neither, however, should any individual be subject to its 
particular prosecutorial focus merely because he or she holds 
public office. Allegations of criminal wrongdoing by Federal 
officials must be investigated, but in all but the most 
extraordinary of circumstances they should be pursued through 
the normal investigative and prosecutorial processes of the 
United States Department of Justice. Thank you.
    [The prepared statement of Mr. Casey follows:]
                   Prepared Statement of Lee A. Casey






















    Ms. Sanchez. Thank you, Mr. Casey. And I would invite Mr. 
Coburn to provide his testimony.

              TESTIMONY OF BARRY COBURN, ESQUIRE, 
            COBURN AND COFFMAN, PLLC, WASHINGTON, DC

    Mr. Coburn. Thank you so much, Madam Chairwoman, and Mr. 
Cannon, and other Members of the Subcommittee. I am very 
honored to be asked to address you on this matter today.
    I submit that what the Committee, or Subcommittee, is 
grappling with here, essentially, is a fundamental structural 
constitutional issue, which is a function--an inevitable 
function, if you will--of the fact that the executive branch, 
under the Constitution, is charged with the task of prosecuting 
Federal criminal offenses.
    Hence, when the problem arises that potential Federal 
criminal offense may exist that has been committed, or 
allegedly committed, or possibly committed by someone within 
the executive branch, perhaps a key person in the executive 
branch, or, alternatively, the offense at issue is one in which 
the executive branch has a direct policy-related or personal 
interest, that is a problem which is not--in the most 
fundamental way, it is not addressed in the Constitution. And 
in some sense, it is not a perfectly soluble problem at all.
    And hence, my submission to the Subcommittee is that the 
policy response to this problem--and it is not an easy problem 
at all, it is highly ambiguous--but it has fluctuated like a 
pendulum between extremes. And the extremes that have been 
adopted have been, essentially, a function of sort of the most 
recent stimulus, which is to say, most recent problem that has 
been perceived as a result of an attempt to deal with this kind 
of a problem, this kind of a prosecutorial imperative.
    And the most recent problem, or set of problems, that have 
engendered, essentially, the response that we are seeing today 
are the ones that my colleague, Mr. Casey, was just alluding 
to. There is a perception that, pursuant to the Independent 
Counsel Act and the Independent Counsel Reauthorization Act of 
1994, that the number, at least, of the particular independent 
counsel who fulfilled that engaged in excesses of one kind or 
another.
    I am not here to suggest to this Subcommittee that the 
answer to the problem that was posed by the Chairperson in her 
opening remarks is some sort of a wholesale re-adoption of the 
Independent Counsel Act. I have the distinction, if it is 
indeed a distinction at all, I believe, of having actually 
prosecuted in a courtroom more independent counsel cases than 
anybody else.
    And from my own experience as part of the In re Espy 
investigation, and also a very brief experience as an 
assistant, or deputy independent counsel, a--person in Ms. 
Bruce's In re Babbitt investigation, but particularly with 
respect to the former investigation, I can tell the 
Subcommittee that, I mean, there were some very significant 
issues, some very significant problems that were posed by the 
Independent Counsel Act.
    But the answer to the problem here, I submit, is not just 
to look at that set of problems, because it is my submission to 
the Subcommittee that a much more serious set of problems, and 
a much more fundamental and critical set of problems, arose 
earlier, in 1973--particularly October 1973, which is what 
engendered the Independent Counsel Act to begin with. And that, 
essentially, is the phenomenon that the Chairwoman alluded to 
in her opening remarks of the Saturday Night Massacre.
    I think we all have a vivid recollection of the events of 
October 19th and 20th, 1973, when Archibald Cox, Professor from 
Harvard Law School who was conducting the Watergate 
investigation at that time, sought the White House tapes, and 
the Stennis Compromise was proposed; and he quite rightly 
rejected that compromise, and then a demand was made that he be 
fired. I see that my time is expiring quickly.
    The problem that was engendered that is exemplified by the 
Saturday Night Massacre, and even before that in the early 
1950's by the tax scandals--the problem of potential political 
interference with an investigation of this type is of critical, 
just fundamental constitutional importance. And I submit that 
it receives short shrift when one says that the answer to this 
problem is simply to have a line person within the Department 
of Justice conduct a highly sensitive investigation like this, 
because there is an inherent and essential conflict of interest 
in that solution.
    That cannot be the answer. A much better answer is the 
appointment of a special counsel, or some other solution that 
the Subcommittee, or Committee, might explore that might take 
account of some of the issues that arose earlier.
    Thank you very much. I don't know if that means my time has 
expired. [Laughter.]
    [The prepared statement of Mr. Coburn follows:]
                   Prepared Statement of Barry Coburn






















    Ms. Sanchez. No, the red light rules here. That is really 
the signal that we are going to have votes across the way. In 
the effort to try to move this hearing along, I am going to go 
ahead and begin the round of questioning, and I will begin with 
myself and recognize myself for 5 minutes. After that, we will 
most likely need to head across the street to vote, but we will 
return to ask further questions of this panel and then we will 
let you go. But we will try to get this done as quickly as 
possible.
    My first question is for Ms. Bruce. In your written 
testimony, you emphasize the importance of a requirement that a 
special counsel draw up the full report for the Attorney 
General explaining the investigation and the decision of 
whether or not to prosecute. Why do you think that a final 
report is so important?
    Ms. Bruce [continuing]. Madam Chair, so that there is a 
historical record. And I suggested it be directed to the 
Attorney General and to no one else because I do agree with 
some of what has been said today, that I don't think reviving 
the Independent Counsel Statute and the regime where there was 
a three-judge panel who appointed independent counsel is a wise 
move.
    Instead, we should leave accountability with the Justice 
Department. But most prosecutors, and I was one as you 
indicated earlier for 10 years, when they decide not to 
prosecute a case, have to file a declination memo with their 
superiors. Usually those are one or two-page memos. But in a 
very significant public corruption, or public official 
investigation, such as the one that is being conducted now by 
Mr. Durham, there should be a full report as to what their 
findings were even if there is no prosecution.
    Ms. Sanchez. With respect to the issue of accountability, I 
mean, then, do you think it would not be important to also 
allow that report be made available to Congress? Do you think 
it should solely rest within the Department of Justice?
    Ms. Bruce. It should be the discretion of the Attorney 
General. I say the discretion of the Attorney General because I 
really do believe that we should try, with any new set of 
regulations, to, as much as possible, give responsibility--
principle responsibility--to the Justice Department, to ensure 
that the laws have been faithfully executed.
    I do believe that there is shared responsibility with 
Congress, and so perhaps a summary report should be submitted 
to Congress that would summarize the reasons why. But I am real 
mindful, having served as a deputy and an independent counsel 
of the privacy issues with respect to individuals. If I am 
subject to an independent counsel, special counsel 
investigation, I don't want a whole story out there that I 
don't have a forum to respond to in the public domain.
    Ms. Sanchez. I understand. Thank you.
    Professor Katyal, in testimony before this Committee, and 
you alluded to it in your oral remarks, Attorney General 
Mukasey testified that waterboarding ``cannot possibly be the 
subject of a criminal Justice Department investigation because 
that would mean that the same Department that authorized the 
program would now consider prosecuting somebody who followed 
that advice.'' Do you believe that Mr. Mukasey's testimony 
acknowledges that the Justice Department has a conflict of 
interest with respect to the CIA tapes investigation?
    Mr. Katyal. I do. And I think that if he does not disclose 
the tapes, the case for a special--disclose, excuse me, the 
written opinions by the Office of Legal Counsel, the case for a 
special counsel will become very strong indeed. I mean, after 
all, these legal opinions--the Office of Legal Counsel 
opinions--evidently say that waterboarding is permissible, back 
in 2002; and they have been withdrawn.
    Now those are opinions about your law, the law that you 
wrote in Congress. They are defining the law. I didn't write 
them; Ms. Bruce didn't write them. You wrote them. And the 
Attorney General is saying you can't even see them. And that 
strikes me as a very, very dangerous road to go down. He is 
asking this Committee to say, ``Trust me, not just about the 
investigation, but also about the underlying legal opinions.'' 
That, I think----
    Ms. Sanchez. I would love to; I have limited amount of time 
and want to----
    Mr. Cannon. I would certainly ask unanimous content to have 
your----
    Ms. Sanchez. Okay, then I will yield to the gentleman.
    Mr. Cannon. I am trying to follow your discussion, Mr. 
Katyal, and I think the point was well-made here. But you are 
saying that we should have a special counsel to investigate the 
decision not to prosecute based upon the opinions--are you 
saying that some Committee in this body of Congress should 
review those documents?
    Mr. Katyal. I am saying the latter, sir, that the Attorney 
General has said that he won't prosecute the underlying conduct 
on the tapes--the waterboarding--because of the inherent 
conflict of interest, that the department is essentially 
investigating itself if they investigate waterboarding----
    Mr. Cannon. No, no. It is not saying that they are 
investigating themselves. It is saying that they would be 
investigating something that they had decided before the 
waterboarding was an acceptable activity.
    Mr. Katyal. Exactly.
    Mr. Cannon. So, why could that be subject to a special 
prosecutor, as opposed to oversight of what the content of 
those opinions were?
    Mr. Katyal. I think it should be the subject of oversight. 
I am not saying that the Attorney General's decision to use a 
waterboarding investigation is itself grounds for a special 
counsel. What I am saying is, there is a very strong case to be 
made that the conduct on the tapes may have been criminal, and 
the only way to understand whether that conduct was criminal is 
to see those underlying legal opinions. And the only way to do 
that, I think, is for you to see them.
    Mr. Cannon. Thank you. That would be not a special counsel, 
but an oversight action by this Congress----
    Mr. Cannon [continuing]. That I support vastly. And by the 
way, Madam Chair, I yield back. But first let me ask unanimous 
consent that the Chair be granted an additional 2 minutes.
    Ms. Sanchez. I appreciate that. If there is no objection, I 
will continue with my round of questioning. I think, Professor 
Katyal, you have touched on what, as a Member of the Judiciary 
Committee, we find very troubling. It is this idea of: Trust 
us, this is what these, you know, opinions said, and that it is 
legal.
    And therefore, because there was sort of, if you will, a 
detrimental reliance, people cannot be prosecuted for that. I 
have a hard time swallowing that, the, ``Trust us,'' you know, 
and no oversight, no ability to look into the matter further 
than to just accept it at face value. And I, as a Member of 
Congress, and particularly a Member of the Judiciary Committee, 
find that extremely troubling.
    Mr. Coburn, in your written testimony you indicate that 
there are consequences for failing to appoint a special counsel 
in the CIA tapes matter. And I would like for you to please 
describe some of the consequences that this Committee should be 
concerned with.
    Mr. Coburn. Well absolutely, Madam Chairwoman. Thank you so 
much for asking me that question. The principle consequence, I 
think, is one that if we all think back to the date that I 
mentioned in my opening remarks, October 20, 1973, I think a 
lot of us--all of us, I would submit--have probably, many of us 
on both sides of the aisle, had this just sort of awful sinking 
feeling at the time that Professor Cox demanded access to what 
was obviously just sort of the most critical evidence--
audiotapes, in that case, not videotapes in this case--that 
were made in the privacy of the Oval Office. And he was 
essentially stonewalled and then fired.
    And, I mean, that really was, essentially, I think just 
sort of an unimaginable act. On which, I think, shaped a lot of 
people's perceptions about Government. And I think it was, 
frankly, a wonderful thing for the republic, that it responded 
the way that it did, and that the tapes ultimately did come to 
light, and that Elliot Richardson, I think, very much to his 
credit, who was the Attorney General at the time, resigned in 
protest, as did his deputy.
    And eventually, of course, as we all know, the disclosure 
of those tapes led inevitably, just essentially in lockstep 
fashion, to President Nixon's resignation. But here we have a 
situation which, I would submit, is very similar.
    And these situations arise periodically; and it doesn't, 
frankly, matter whether we are talking about a Democratic 
administration or a Republican administration. This kind of 
situation is inevitable, that there is going to be alleged 
misconduct within the context of the Administration--
potentially criminal misconduct which has to be investigated--
and it is a matter of fundamental public confidence in the 
process.
    It is a matter of deep fundamental fairness. It is a matter 
of fairness to each and every individual who has ever, him or 
herself, been the subject of a criminal inquiry. It is just the 
most basic kind of right, as opposed to wrong, that an 
investigation like this be conducted in a full, fair, 
unfettered fashion, without conflict of interests.
    And the kinds of conflict of interest that exist here, with 
respect to the alleged destruction of the CIA tapes, are just 
obvious. They are as plain as--I mean, anyone can see them, and 
they have been alluded to by my co-panelists, and the 
Administration's obviously kind of staked out as clear a 
position as it possibly could, with respect to this issue.
    And so for the Administration, essentially, via the 
Department of Justice, and particularly given the reporting 
scheme that we have for Mr. Durham, where he has to report to 
the deputy Attorney General, he has to--I mean, if you think 
about the implications of this, you know, Mr. Durham, before he 
essentially does anything--before he issues a subpoena, before 
he seeks an indictment, before he does anything of consequence 
in this investigation, he must seek the approval of a political 
appointee within the Department of Justice.
    That is grossly unacceptable, and what it does, just to 
respond directly to the Chairwoman's question, is it leads to a 
crisis of confidence. And it leads to a deep-seated sense of 
cynicism within the populous. And as I alluded to in my written 
testimony, I mean, the signs of this kind of cynicism--the same 
sort of cynicism that we saw during the Watergate era--are 
already, you know, they are particularly evident in the 
Internet. I mean, the various entities within the Internet: 
Salon and various other Web sites that I referred to, I mean, 
you know, the concerns--the kind of deep-seated, really, I 
would submit, not particularly partisan sort of concerns, but 
just fairness-related concerns--as to whether or not a real, 
unfettered, fair, unbiased investigation will be done here, as 
to this alleged criminal misconduct, is just rife.
    It is obvious. And I submit it poses a very serious problem 
for all of us.
    Ms. Sanchez. Thank you, Mr. Coburn. We have been summoned 
for votes, so we will stand in recess.
    [Recess.]
    Ms. Sanchez. I want to welcome everybody back, and again I 
want to apologize for the schedule that has kept you here well 
beyond, I am sure, when you imagined you would be. Since I 
finished my round of questioning, at this time I would like to 
recognize my Ranking Member for 5 minutes of questions. Mr. 
Cannon?
    Mr. Cannon. Thank you, Madam Chair. It is odd to break such 
an intense discussion for so long, and then come back and pick 
up where we were. I can't remember where we were. I will have 
to rely on my notes.
    I wanted to thank both Mr. Casey and Mr. Coburn, who I 
thought--this is a complicated issue. We have done the rounds 
on this, historically, and what we want to do is come down in 
the right spot. And that may not be a perfect spot, I think, 
Mr. Coburn, as you pointed out, there probably isn't a perfect 
solution to this issue, but it is an issue that deserves some 
thoughtful attention. I appreciate that.
    On the other hand, while we have very esteemed witnesses 
across the board, I couldn't help thinking of the term 
Jeremiad, the difference being--that derives from the Old 
Testament prophet Jeremiah, whose intense expressions of 
concern about society were subsequently vindicated.
    And as I listen to the testimony, I couldn't help but 
wonder what we are actually doing here, in this; and so I 
pulled out the memorandum for the hearing, which I have here 
someplace, yes. And what we are talking about is the--in light 
of the Bush administration's reluctance to appoint special 
counsels, under the regulations members of the CAL Subcommittee 
may consider whether legislation in this area is appropriate.
    And what I have heard is that the Administration's bad. And 
I am not sure, after some questioning, and I appreciate the 
Chair's indulgence in asking a clarifying question earlier, 
about what the bad is, I am not sure where we are is that bad.
    And what I am actually really interested in, here, is: What 
should we do with legislation to improve the regulations, or 
the law under which we are currently doing special counsels?
    And I take it, Mr. Coburn and Mr. Casey, you recognize the 
complexities of the system and you have not suggested--I don't 
think you have suggested--ways to improve current law. Do 
either of you have suggestions, or do you think that where we 
are right--I know, Mr. Coburn, that you are concerned about how 
it is being applied, but is there a way to improve the law 
itself?
    Mr. Coburn. I think that is a very interestingly and well-
posed question that you just stated, and it is a highly complex 
and ambiguous situation, as I alluded to before the break.
    I guess I cannot honestly say that I have given great deal 
of intensive thought to precisely what the appropriate 
legislative solution is to this problem. But I guess I don't 
think that purely elective DOJ regulations, which can be 
invoked or not invoked at an Administration's discretionary 
pleasure, is the right answer.
    Because I think the temptation in a situation like this, 
where you are dealing with a naturally highly-politically 
charged issue--one in which the Administration has staked out a 
position very forcefully in a number of different instances--
the temptation, I think, not to want an independent, unfettered 
investigation into potential alleged criminal conduct is just 
too great.
    And so I tend to be skeptical of the notion that a kind of 
a purely internal DOJ regulatory solution is the right answer. 
But in saying that, like I indicated in my earlier remarks, I 
do acknowledge that there were problems--and I think they were 
very real problems--in the prior Independent Counsel Act, and I 
think those problems should be addressed head-on.
    Mr. Cannon. Isn't the very complexity of it what makes it 
so much more difficult to create an environment where there is 
less discretion to prosecute these issues that might be subject 
to prosecution under some circumstances? But didn't you argue--
I thought you argued rather forcefully, or rather well--that 
the political environment has a tendency to take care of those 
excesses.
    And do we want to have a less--do we want to have less 
discretion and take the pressure off politics, or do we want to 
have politics play a greater role in how we govern ourselves?
    Mr. Coburn. Well that is, again, I think, a very 
interesting question. I guess the problem, from my point of 
view, with a purely political solution is that it is not, I 
guess, a purely political problem that we are dealing with. 
From my point of view, as somebody who practices largely in the 
criminal arena, allegedly criminal misconduct is something 
special.
    And regardless of whether the alleged--and I don't mean to 
opine, here, on whether or not there is that kind of underlying 
conduct here or not. I think that would have to be the subject 
of, you know, the result of an actual investigation.
    But if there is, that kind of conduct is something 
different from a purely political problem. And I guess, like I 
was alluding to earlier in response to the Chairwoman's 
question, if that is what we are looking at--if there is 
creditable allegations of potential criminal misconduct here--I 
tend to think that the political system is not adequate to 
address that, because there, you are dealing with kind of a 
deep fundamental problem of fairness.
    If somebody who is politically involved, if you have a 
politically involved Administration official who is, in fact, 
complicit in that kind of conduct, they need to be investigated 
and prosecuted just as if I, or anyone on this panel, or anyone 
in the audience, or any other individual in the United States 
engaged in criminal misconduct.
    And I think it is sort of just critical, fundamental to the 
system, that we all feel that everyone know that no matter who 
it is, no matter how politically, you know, connected, or 
involved, or what political role a person might play, that if 
they step over that line, that they are going to be subject to 
the same kind of investigation and prosecution as anybody else.
    Mr. Cannon. If I might just add--I see my time is expired, 
Madam Chair--but let me just say I believe that the Justice 
Department guidelines focus on the person's status, so a 
politician is more likely to be prosecuted, generally 
speaking--not the President, particularly, or the 
Administration, but a politician--is more likely to be 
prosecuted because he is higher profile.
    And so, in a world where we work very hard to have 
prosecutorial guidelines that make sense, I think part of your 
statement is answered; and I appreciate, though, the 
thoughtfulness of your responses. I yield back, Madam Chair.
    Ms. Sanchez. Thank you. At this time, I would like to 
recognize the Chairman of the full Committee who has joined us, 
Mr. Conyers, for any questions he may have.
    Mr. Conyers. Thank you, Madam Chairwoman. And I am deeply 
regretful that I missed earlier testimony, but I consider this 
to be an important hearing called by the Chairperson of the 
Commercial and Administrative Law Subcommittee because we are 
examining a very vital area of the Department of Justice with 
regard to the utilization of special counsel regulations.
    And I think we have got a hearing here that is going to 
help us in terms of how we move forward. The refusal to use the 
special counsel regulations has highlighted a recurrent theme 
of this Administration: that of a unitary executive, completely 
devoid--well, I won't say completely devoid of accountability. 
There are instances where they have had accountability.
    The other thing that is important to me is that all the 
times we could have used special counsel and didn't--and I am 
going to put this in the record--but, one, two, three, four, 
five, six, seven, eight, nine instances that we could discuss 
at great, great length.
    The next point I would like to make, and I invite all of 
your comments or observations, is that not withstanding having 
appointed attorney Patrick Fitzgerald, who was not appointed 
under the regulations to perform the Scooter Libby 
investigation, the Administration undermined any fruitful 
information that could have been acquired.
    And the last point is that Attorney General Mukasey should 
have utilized the special counsel regulations to appoint 
outside counsel to investigate the CIA tapes destruction and 
related issues. In that regard, and I would like to get any 
comments that you might have, there are two letters that we 
sent to the Attorney General, Mr. Mukasey, one dated January 
15, 2008, the other dated January 31, 2008, that deals with 
this question of how this special counsel concept is utilized.
    Do any of you--would you like to give us a little opinion 
about the mental state of mind that I have as indicated by 
these comments? Professor?
    Mr. Katyal. Sure, I will take a stab at it. I, when you 
sent those initial letters, Mr. Chair, I thought that maybe 
they were a little premature--the idea of a special counsel at 
that early stage in the investigations. I now, since the 
Attorney General has testified before this Committee and has 
said that he can't investigate the underlying conduct, that is 
waterboarding, because of secret Office of Legal Counsel 
opinions that he says would provide a good faith defense for 
the officials who engaged in waterboarding, and so he says 
``The department can't investigate itself.''
    That strikes me as a very strong point in your favor, and 
suggests to me maybe another letter needs to be written to say: 
The Attorney General, himself, has pointed to the conflict of 
interest with this investigation, and therefore, a special 
counsel is looking more and more like an appropriate course of 
action.
    That isn't--I don't think, the way Representative Cannon 
said it, I don't think this means that, you know, anyone is 
characterizing the Administration as being bad, or anything 
like that. I, personally, have deep respect for the Attorney 
General and think he is doing a good job. But good people----
    Mr. Conyers. I am glad that you do. That is very reassuring 
to me. I am feeling better already that you think that. But I 
should have his confidence. He should not have lost my 
confidence at this point.
    Mr. Katyal. Yes. Good people can make bad decisions, and 
this is one bad decision that strikes me, to say that we are 
not going to prosecute on the basis of a secret opinion that he 
won't even let you, in this body, see.
    Mr. Casey. If I could just say something with respect to 
the question of conflict of interest with this investigation, 
with the investigation of the tapes. I think we are kind of 
mixing and matching here.
    As I understood the Attorney General, what he was saying 
is, the Justice Department could hardly go after the CIA agents 
for waterboarding because, to the extent it was engaged in, it 
was based upon Justice Department advice. I don't think that 
creates a conflict of interest for the department; it creates a 
serious due process problem in any prosecution to go after 
those individuals if they had relied upon department opinions.
    Mr. Conyers. But wouldn't that be a consideration that 
would come after you have appointed a special counsel? I mean, 
we are not asking for a judge and jury right out of the box, 
but to say that everything, in terms of special counsel, is out 
of the question because of--and then we get the legal response.
    Don't you think, Mr. Casey, that we could have started an 
inquiry? This is unitary government again: Please, 
investigative arm of the Congress, Oversight Committee, don't 
bother us with this. There is no way we can look at it now. It 
is over and done with. It is closed. I forget all the reasons 
that he gave, but would you mind if we had a special counsel 
appointed?
    Suppose he would say there are some very serious problems 
here? And I would be willing to go along with that. But to say 
it is out, period, don't even try it. Forget it. We know the 
law, we know our situation, and in our judgment, goodbye House 
Judiciary Committee, goodbye this Subcommittee on Commercial 
and Administrative Law
    Ms. Bruce. If I could, there is an analogy to recusal, and 
I think the Chairman hit the nail on the head. There should not 
have been a legal decision already made about the merits or the 
worthiness of an investigation or prosecution, saying there is 
no need to even go down this course, because the person making 
that decision is somebody who should recuse himself, or 
should--not because Mr. Mukasey himself is in any way involved 
in this matter that is under investigation--but the Justice 
Department should step back and have a special counsel 
investigate the case.
    And just one other comment with respect to some of the 
earlier remarks: This isn't about a bad Justice Department. I 
would rival anyone with my affection and respect for the 
Justice Department. I served there for many years.
    Mr. Conyers. Is it about a good Justice Department?
    Ms. Bruce. What this is about is the judgment of 
individuals. And we are just taking issue with, Mr. Katyal and 
I, we are taking issue with, in our earlier testimony that you 
were not able to attend, Mr. Chairman, with the judgment call 
of not appointing a special counsel in this particular case. 
And on that score I would just like to say that all indications 
are that Mr. Durham is an extremely competent, capable, good 
person.
    But this isn't about whether someone is a good person or a 
bad person; it is about whether or not he can--or anyone can--
in the structure that is now being utilized, have a fully 
independent, as Mr. Coburn keeps saying, unfettered 
investigation where he will make the legal decisions about 
sovereign immunity, qualified immunity, advice of counsel 
defense, all of those things that a good prosecutor will have 
to determine.
    Mr. Conyers. You are helping me get my mental attitude 
corrected a bit here, because I am feeling better about our 
Department of Justice the more we talk about it.
    In the January 31st letter, which I am going to give you 
all a copy as soon as we adjourn, here were the issues that 
were raised about, just a few: Politicization of the Department 
of Justice. Wouldn't you think that we would get a special 
counsel for the firing of nine U.S. attorneys? That is an in-
house matter--that they will--Mr. Gonzales and now Mr. Mukasey 
will take care of themselves? I don't think so.
    Waterboarding and torture. Assuming that this confuses--and 
by the way, my 12-year-old is not confused about waterboarding 
and whether it is legal or criminal or not--but waterboarding 
and torture, since the Attorney General has such a difficult 
time with this subject that we have to look at it case by case, 
implying that there is some permissible waterboarding and then 
there is impermissible waterboarding. It depends on, as 
everything else in law, the facts.
    Okay, what about selective prosecution? I would like you to 
examine that, and of course the investigation into the 
destruction of the tapes.
    And then finally, voter suppression and civil rights 
enforcement. And there, Attorney Bruce, the accumulation of all 
these matters made me begin to question the Department and its 
leadership and its decisions. But you make me feel better. You 
say it is not about good or bad, Mr. Chairman, it is really 
about good people maybe making an error now and then.
    But, you know, these errors accumulate. I mean, after they 
start rising off the table, and then others are talking about 
the unitary system of Government, and the Vice President has 
brought in all these neocons to infiltrate the Government, my 
patience is being taxed. Mr. Coburn?
    Mr. Coburn. Yes, Mr. Chairman, I can easily understand 
that. And I have very similar feelings about a number of the 
issues that you just referred to, but specifically with respect 
to this question of the destruction of the CIA tapes. When you, 
Mr. Chairman, refer to this question of unitary government, or 
the question of the politicization of the Justice Department, I 
mean, here we have a situation in which, you know, you think 
about the notion of an entity investigating itself.
    We have a prosecutor who was appointed--and really, I would 
submit, a fundamental structural problem that the Committee is 
dealing with here--a prosecutor who was appointed who 
essentially must report with respect to every piece of 
significant decision-making to the deputy Attorney General. And 
the deputy Attorney General is a political appointee; and in 
fact, he is a highly-political appointee.
    And so the notion, you know, that we have here is one in 
which the Administration has staked out a position--a very 
clear and unambiguous position--with respect to the 
permissibility of the underlying conduct which is supposedly 
reflected in these destroyed videotapes.
    That Administration is personified in the deputy Attorney 
General to whom the criminal investigator must report, and from 
whom the criminal investigator must, apparently, receive 
permission for seeking a grand jury subpoena, or certainly 
returning an indictment. I mean, that is a very serious 
fundamental, structural problem--one which, I think, would lead 
one not to feel too good about the current state of the way the 
Justice Department is handling these issues.
    Thank you for your generosity, Chairman
    Mr. SConyers. But Mr. Casey, my old apprehensions are 
returning. Can you make me feel better as we close this 
Subcommittee hearing down?
    Mr. Casey. Well, I will try. I think that there--if, to the 
extent there are systematic, fundamental problems, they are 
problems inherent in the constitutional system of separation of 
powers itself, yes. The executive branch has wide power, and it 
may be, on many occasions, that both the Department of Justice 
and other departments take actions of which the Congress 
disapproves.
    I would urge the Committee, to the extent that has been the 
case with the Justice Department, to use its oversight 
authority and the many other political measures that the 
Constitution--or powers--that the Constitution has given you, 
to yourself look at some of these things. I mean, I think the 
Constitution intends that ultimately you are the check. I mean, 
I disagree with what has been said about the individual issues, 
but ultimately, you are the check. You have the power.
    Mr. Conyers. Well, just remember when we talk about the 
issuing of contempt citations from the Congress that we have an 
Attorney General who announces, in advance of anything 
happening, that he will not honor the contempt citations.
    Now, where do I go in the Constitution or in the decisions 
of the Federal court to say, ``Well, this is a tension that our 
founding fathers anticipated''?
    Mr. Casey. I think exactly that. It is inherently the 
providence of the judiciary to say what the law is. You go to 
court and get a decision that supports your position, or not. 
But, I mean, that is where you go.
    Ms. Bruce. O you hire an independent counsel to---- 
[Laughter.]
    Mr. Conyers. Thank you so much for your generosity----
    Ms. Sanchez. Time has expired, and I want to thank the 
witnesses for their patience. We are going to dismiss the first 
panel, and we are going to call the second panel. But know, 
too, that we will be submitting, also, questions in writing, 
and we would ask that you respond to those as soon as possible 
so that we can make those a part of the record as well. But 
thank you, again, for your testimony.
    I am now pleased to introduce the witness for our second 
panel for today's hearing, but before I do that I wanted to 
check--I understand that you have a flight to catch, is that 
correct?
    Mr. Fitzgerald. Yes, but I should be okay.
    Ms. Sanchez. Okay. Our witness for this panel is the 
Honorable Patrick Fitzgerald. Mr. Ftzgerald began serving as 
United States Attorney for the Northern District of Illinois on 
September 1, 2001. He served on the Attorney General's Advisory 
Committee from 2001 to 2005, and was Chair of the Subcommittee 
on Terrorism.
    He is also a member of the President's Corporate Fraud 
Taskforce. As a U.S. attorney, Mr. Fitzgerald served as his 
district's top Federal law enforcement official. His district, 
the Northern District of Illinois, covers 18 northern Illinois 
counties across the top tier of the state, with a population of 
approximately 9 million people.
    During the last 4 years, Mr. Fitzgerald has provided 
leadership and played a personal role in many significant 
investigations involving terrorism financing, public 
corruption, corporate fraud, and violent crime including 
narcotics and gang prosecutions.
    In December of 2003, he was named special counsel to 
investigate the alleged disclosure of the identity of a 
purported employee of the Central Intelligence Agency. Through 
this, Mr. Fitzgerald was delegated all the authority of the 
Attorney General in the matter, and that occurred under 
Department of Justice Regulation 28, CFR Part 600.
    In February 2004, acting Attorney General Comey clarified 
the delegated authority and stated that Mr. Fitzgerald had 
plenary authority.
    Prior to his service in Chicago, Mr. Fitzerald served as an 
assistant U.S. attorney in the United States Attorney's Office 
for the Southern District of New York for 13 years. He served 
as the Chief of the Organized Crime Terrorism Unit, in addition 
to holding other supervisory positions during his tenure in 
that office.
    Among Mr. Fitzgerald's award and honors are the Attorney 
General's Award for Exceptional Service in 1996, the Stimson 
Medal from the Association of the Bar of the City of New York 
in 1997, and the Attorney General's Award for Distinguished 
Service in 2002. We want to welcome you, and again, thank you 
for your patience. At this time we would invite you to begin 
your testimony.

TESTIMONY OF THE HONORABLE PATRICK J. FITZGERALD, UNITED STATES 
  ATTORNEY FOR NORTHERN DISTRICT OF ILLINOIS, FORMER SPECIAL 
   COUNSEL, UNITED STATES DEPARTMENT OF JUSTICE, CHICAGO, IL

    Mr. Fitzgerald. Thank you. And I appreciate the Chairwoman 
and the Ranking Member having me, and the Chairman of the 
Committee, and I am just here to answer questions, so I will be 
happy to take them.
    Ms. Sanchez. Great, thank you. We appreciate your presence 
here, and we will begin our round of questioning. I will 
recognize myself for 5 minutes. Mr. Fitzgerald, do you believe 
that a President should consult with a special counsel when 
deciding whether to commute the sentence of an Administration 
official who was the subject of the special counsel's 
prosecution?
    Mr. Fitzgerald. I wasn't anticipating that I would be 
testifying on the commutation issue today, and all I can say is 
I recognize the President has the power to pardon or commute, 
and I won't go beyond that.
    Ms. Sanchez. Did the President or anyone with the 
Administration actually consult with you, as they would with 
the department generally, prior to the commutation of Scooter 
Libby's sentence?
    Mr. Fitzgerald. I don't know what generally happens. I know 
that I was notified the day the decision was made before it was 
being announced--shortly before. But I was notified, not--I 
wasn't consulted in the decision, I was notified of it. But I 
hadn't anticipated testifying about that issue, so I don't want 
to go beyond that.
    Ms. Sanchez. Okay. I appreciate that. With regard to your 
appointment as special counsel, you were told by Deputy 
Attorney General James Comey to follow the facts, do the right 
thing, and that you can pursue it wherever you want to pursue 
it.
    Do you believe that all special counsels should be given 
the freedom to determine the scope of their investigation?
    Mr. Fitzgerald. I think I would back up and say that I 
think the scope of my investigation, if you mean the subject 
matter, I was not given the freedom to do that. I think what 
Mr. Comey delegated to me was the power of the Attorney General 
to conduct an investigation into a subject matter.
    I was not given the authority to expand the subject matter. 
I was not appointed as a counsel; I was effectively delegated 
the powers of the Attorney General.
    So if I was looking at some conduct and for some reason 
began to suspect anyone had engaged in tax fraud, for example, 
that was outside the scope of my mandate. I could not decide, 
all of a sudden, that it was important for me to investigate 
tax fraud. I could go, in that circumstance, to the Attorney 
General, or in that case the acting Attorney General, and say, 
``I have reason to believe there is tax fraud,'' and they would 
decide what the scope of that was.
    So I think that has been often misunderstood in the sense 
that the subject matter jurisdiction was given to me; it was 
not up to me to expand it. But in terms of following the facts 
wherever they took me within the subject matter, I had that 
authority. So I could go wherever the facts took me, in terms 
of what I was investigating, but I couldn't decide to expand my 
mandate beyond that.
    Ms. Sanchez. Okay. I wanted to throw out a hypothetical 
situation for you here. If Assistant U.S. Attorney John Durham 
is given essentially the same authority that you were given in 
your role, do you think that it would be proper or improper for 
him to investigate the underlying conduct of the tapes?
    Mr. Fitzgerald. I think I will conduct myself the way I did 
when I was special counsel, which is to stay within the lane of 
my authority, and I can answer what I know as special counsel, 
but I really don't feel comfortable opining about what someone 
else should do in another case that isn't under my authority. I 
really don't.
    Ms. Sanchez. I will let you refuse to opine on that out of 
respect for the job that you do. By all accounts, you and your 
team that were investigating the CIA leak investigation 
expended significant time and energy on that case.
    Do you think that you should have been required to submit a 
report to the Attorney General at the conclusion of your 
investigation explaining the prosecutions or the decision not 
to prosecute?
    Mr. Fitzgerald. I have already answered this, so I can tell 
you I was not required to by--there was no statute in effect--
and I think in terms of if you are asking submitting a report 
to the Attorney General, the Attorney General was recused and 
because a charge resulted, I think people learned a fair amount 
about what we did; they didn't learn everything.
    But if you are talking about a public report, that was not 
provided for, and I actually believe and I have said it before, 
I think that is appropriate. I think that when a grand jury is 
used in an investigation, as it was in that case, we both 
expect everyone to come forward and cooperate with the grand 
jury, we expect them to be fully candid, and in fact, that is 
what led to a prosecution, when someone lied under oath to the 
grand jury. But we owe it back to people to respect the secrecy 
of the grand jury, and you can't tell people, ``Come into the 
grand jury, it will remain secret,'' and then later, when 
people want you to explain what it is that you did, pull back 
the cloak of secrecy.
    I think we have to--when we go down that road, we have to 
follow through the rules. So we did not reveal anything that 
had not otherwise been revealed. So I don't think a public 
report was allowed, and I don't think it should have been 
called for.
    Ms. Sanchez. Do you think a report to Congress is something 
that would be prudent in order to increase transparency, or do 
you think that that would be a bad idea as well?
    Mr. Fitzgerald. Well, I don't want to speak outside my lane 
again. I fully recognize that the Congress has an appropriate 
role to play in oversight. I also recognize that the executive 
branch has to have space within which it can do business and 
confer amongst itself. And I also think there has to be an 
ability for prosecutors to make prosecutive decisions knowing 
that the discussion stays behind closed doors, and also knowing 
that the grand jury rules, which prohibit sharing of grand jury 
information that is not otherwise public, are not violated. So 
I see the concerns on both sides.
    I know, just from my narrow point of view, we can't break 
the grand jury rules and do something that is not authorized. 
As to the larger tension between the executive branch's 
independence and confidentiality and the Congress' right to 
conduct oversight, I think I should not be the spokesperson for 
that.
    Ms. Sanchez. Okay, thank you. My time has expired. At this 
time I will recognize Mr. Cannon for 5 minutes of questions.
    Mr. Cannon. I am still puzzling over the Chair's 
distinction between a public report and a report to Congress.
    Ms. Sanchez. Well----
    Mr. Cannon. Just in jest.
    Ms. Sanchez. There is a theoretical separation, at least.
    Mr. Cannon. At least one more door that the information has 
to pass through, I suppose. I am intrigued by your testimony, 
Mr. Fitzgerald, and I appreciate your forthrightness. I wanted 
to have you talk, if you would, a little bit about the 
distinction, or not, between being a special prosecutor and the 
kind of prosecutions that happen every day in the Department of 
Justice and in the various U.S. Attorney's Offices.
    And would you mind commenting--we have, in the guidance for 
U.S. attorneys, a great deal of material that is born of 
experience. Is it your sense, in the kind of stressful 
situation that you are in with Mr. Libby, that--or any other 
kind of situation like that--that we should use the same kind 
of guides that the Justice Department has in place?
    Mr. Fitzgerald. You mean the Justice Department guidelines?
    Mr. Cannon. Yes.
    Mr. Fitzgerald. They were--yes, and in fact, I think one 
common misunderstanding about my role and the team's role in 
the investigation involving the Plame matter and the 
prosecution, is that people believe that we did not follow the 
Justice Department guidelines, or it has been said often enough 
that people start to believe it. That is not the case. As a 
Department of Justice official, I was bound by those 
guidelines.
    Now what had happened was, I was delegated the authority of 
Attorney General; so many of the procedures that had to be 
followed, I was the decision-maker.
    Mr. Cannon. Right.
    Mr. Fitzgerald. But the guidelines were not abrogated for 
us. And so, when you prosecute as U.S. attorneys, you follow 
the DOJ guidelines. When I was given the authority, in this 
matter, delegated from the Attorney General, I also followed 
those guidelines.
    But to answer your first question, I think in an ordinary 
case a U.S. attorney has an awful lot of power. We can bring 
indictments, we can obviously issue most subpoenas without 
seeking approval from anyone, we can do lots of things, and in 
many cases--the volume of our cases--we can bring charges that 
could imprison someone for life without parole without ever 
going to main justice for approval.
    It is in certain narrow areas that are important--and that 
comes up in a smaller fraction of the cases. We cannot seek a 
wiretap without getting the approval of main justice before 
going to court, we cannot seek transactional immunity--
statutory immunity--for witnesses telling them they have to 
testify but won't be prosecuted, we can't authorize a 
Government appeal, we cannot subpoena an attorney, or subpoena 
a member of the media.
    There are a number of things--we cannot file a racketeering 
charge. So in those cases, a U.S. attorney has to seek approval 
from the Department of Justice; often it is granted, but then 
sometimes there is a disagreement. But I think sometimes people 
can forget, but we try not to forget, that the power of a 
United States attorney is pretty strong, even in an ordinary 
case.
    Mr. Cannon. So even in an ordinary case you have a great 
deal of power, and we have guidelines that have been developed 
over a great, long period of time about how to use that power. 
And so, I think your conclusion is that if you have a special 
circumstance, where you have a special prosecutor, those 
guidelines are very important in the process.
    Mr. Fitzgerald. I think in the--as I understand it--the 
regulations part 600, which talks about special counsel outside 
the department of justice, requires that those special counsel 
have the powers of the United States attorney, but should 
confide, to the extent possible, with the Department of Justice 
guidelines. I was not appointed under that; I was inside the 
department, but I was bound by those guidelines.
    So whether you are inside or outside, those rules should 
apply.
    Mr. Cannon. Exactly. And we have had a number of cases 
where U.S. attorneys have pursued very high-profile political 
kinds of cases. Like in your district now, you are pursuing Mr. 
Tony Roscoe. You don't have to comment on that, but the comment 
that I would ask you about is: Is the Justice Department, 
generally speaking, capable of these high-profile kinds of 
cases, or do we need to have a whole new unit that would have 
special powers?
    Mr. Fitzgerald. I would answer this way, not talking about 
a pending matter. In my tenure, my office indicted Governor 
Ryan--as United States Attorney's Office. We indicted his 
campaign fund while he was a sitting governor. We did not need 
authority to do the investigation, but we did need authority 
when we sought a racketeering charge because that is a 
racketeering statute. So I think in an ordinary case, even a 
politically-charged case with a high-level official, we have 
lots of power, but sometimes those powers are circumscribed 
when we use certain techniques.
    Mr. Cannon. And among your guidelines, you do consider the 
public prominence of a potential person that may be charged 
with a crime. And as I understand, your guidelines do include, 
for a political person, that that makes it more of a priority 
for prosecution, does it not?
    Mr. Fitzgerald. I don't necessarily agree with that. What I 
would tell you is, it is the nature of the crime. Obviously, in 
the case of Governor Ryan, which is past history I can discuss, 
widespread corruption in the government of Illinois is 
something we ought to prosecute, not because he is a famous 
person, but because what he did corrupted Government at a high 
level, and it sends a strong deterrent message.
    But that is no different than in a drug enterprise, or a 
gang. We will go after the most harmful gangs and the ones that 
are most visible to send a deterrent message. So I think we 
consider someone's position if they abused it because it makes 
it more of a crime, but not going after someone simply because 
they have a high profile----
    Mr. Cannon [continuing]. Time has expired. Can I just 
follow up with one short question, which is: If you have 
guidelines that deal with--help you balance--those kind of 
priorities with the political--corruption, with the effective 
corruption, with the kind of gang--do you have guidelines that 
help you sort cases based on those issues?
    Mr. Fitzgerald. There are lots of guidelines that we read, 
but I tell you, the most important thing that we do is sit in 
our U.S. Attorney's Office and take career prosecutors and vet 
the case: Can we prove it? Is it against the law? What is the 
harm? And we hash those out internally before we bring charges, 
looking to many of the considerations set forth in the 
guidelines. But our process really is to get a team of people 
who have experience and bat ideas around.
    Mr. Cannon. Thank you, Mr.
    Mr. Fitzgerald. Madam Chair, I yield back.
    Ms. Sanchez. Thank you. At this time I would like to 
recognize Mr. Conyers for 5 minutes of questions.
    Mr. Conyers. Thank you, Madam Chair. Mr. Patrick 
Fitzgerald, we are honored that you would come before the 
Committee. We thank you for it.
    Mr. Fitzgerald. Thank you. Thanks very kind of you.
    Mr. Conyers. Did the investigation that you pursued cost 
$1.5 million, or did it cost more than that?
    Mr. Fitzgerald. That is a good question. I think the last 
number I saw, which doesn't account for the last 6 months or 
so, has a bookkeeping cost of something in the ballpark of $2.4 
million. And I would say a bookkeeping cost because what they 
did in this case was, the salaries of all the people who worked 
on the case were counted as expenses, but none of us were paid, 
with the exception of one person who left the Government and 
received a nominal hourly rate.
    So if I worked--if anyone on my team worked 50 hours on a 
special counsel matter, and 50 hours on either main justice 
business or the Chicago U.S. attorney's business, we still 
received the same paycheck.
    But for bookkeeping purposes, they put that salary as a 
cost of the investigation. So if you back out, I think, the 
$1.5 million in salary, we actually--out-of-pocket, it was much 
less than that. I think it was almost closer to--much closer to 
zero. The out-of-pocket cost of the investigation, I think, was 
around $550,000 by last count. And of that $550,000, I think 
$300,000 was just travel expenses, and I think another $100,000 
was court reporter transcripts. We didn't have rent, since we 
used our existing offices and DOJ.
    So one of the things that gets confusing is, for 
bookkeeping purposes it looks as if we spent $2.4 million, 
which I think compares favorably with many other 
investigations; but in fact, if you actually looked at what 
went out of pocket, it was in the ballpark of $550,000 as of 
the last accounting, which I think took us through the trial, 
but before sentencing.
    Mr. Conyers. Thank you for your detailed response. And 
finally, did we ever find out who leaked the name of a CIA 
agent?
    Mr. Fitzgerald. I would say that the trial established that 
the name of Ms. Plame, without getting into the mental states, 
was discussed with reporters by three different officials, one 
of whom was charged with perjury. And that was the nature of 
what led the investigation to be appointed to a special 
counsel. But those names were publicly discussed.
    Mr. Conyers. Thank you very much. Thank you, Madam Chair.
    Ms. Sanchez. Will the gentleman yield back the remainder of 
his time?
    Mr. Conyers. How much time do I have left? No, I yield 
back. [Laughter.]
    Ms. Sanchez. Thank you, Mr. Chairman. There was just one 
question on my list that I was interested in asking you before 
we wrap up for the day. Do you believe that conflicts of 
interest subvert the confidence in the Justice Department and 
our judicial system?
    Mr. Fitzgerald. That is a pretty broad question. All I can 
tell you is that everyone in the Department of Justice--
everyone I work with--looks to avoid conflicts of interest; and 
we fill out conflict of interest forms in our cases, and if we 
see one we recuse ourselves----
    Ms. Sanchez. And why do you do that when there are 
conflicts of interest?
    Mr. Fitzgerald. We do that because----
    Ms. Sanchez. What is the purpose?
    Mr. Fitzgerald. So that you carry out justice both on a 
substantive level and create the appearance of propriety. And 
we are very diligent to make sure that if I am in--I don't have 
stocks that qualify, but if I had Federal stockholdings, I 
would make sure I am not investing in a company where it could 
affect my wealth. I am blessed with not having to be that 
concerned.
    Ms. Sanchez. So there is a big concern for conflicts of 
interest because the appearance of them, for policy purposes, 
could undermine confidence?
    Mr. Fitzgerald. There has always been concern in the 
Department of Justice to make sure we avoid anything that 
undermines confidence, including conflicts of interest.
    Ms. Sanchez. Thank you. I appreciate your answer. I would 
like to thank you again for your witness, or for your testimony 
today. Without objection, Members will have 5 legislative days 
to submit any additional written questions. And, Mr. 
Fitzgerald, because you are a Government employee, we are going 
to ask permission to submit written questions to you. Would 
that be acceptable?
    Mr. Fitzgerald. Yes. And if I can answer them I will, and 
if won't I will politely advise you of that.
    Ms. Sanchez. I appreciate that. And if you do choose to 
answer those, those will be made a part of the official record. 
Without objection, the record will remain open for 5 
legislative days for the submission of any additional 
materials. Again, I want to thank everybody for their time and 
patience. This hearing on the Subcommittee on Commercial and 
Administrative Law is adjourned.
    [Whereupon, at 4:29 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

  Answers to Post-Hearing Questions from Carol Elder Bruce, Esquire, 
                      Venable, LLP, Washington, DC














                                

 Post-Hearing Questions submitted to Neal Katyal, Esquire, Professor, 
            Georgetown University Law Center, Washington, DC




--------
Note: The Subcommittee had not received a response to these questions 
prior to the printing of this hearing.


                                

     Answers to Post-Hearing Questions from Lee A. Casey, Esquire, 
                Baker and Hostetler, LLP, Washington, DC














                                

     Answers to Post-Hearing Questions from Barry Coburn, Esquire, 
                Coburn and Coffman, PLLC, Washington, DC




                                

    Answers to Post-Hearing Questions from the Honorable Patrick J. 
 Fitzgerald, United States Attorney for Northern District of Illinois, 
 former Special Counsel, United States Department of Justice, Chicago, 
                                   IL


























                                

  Supplement to Answers to Post-Hearing Questions from the Honorable 
Patrick J. Fitzgerald, United States Attorney for Northern District of 
Illinois, former Special Counsel, United States Department of Justice, 
                              Chicago, IL



                                 
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