[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
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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