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


 
                     COMMITTEE DEPOSITION AUTHORITY 

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

                                HEARING

                               before the

                           COMMITTEE ON RULES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                                   on

                              H. RES. 836

 GRANTING THE AUTHORITY PROVIDED UNDER CLAUSE 4(c)(3) OF RULE X OF THE 
RULES OF THE HOUSE OF REPRESENTATIVES TO THE COMMITTEE ON EDUCATION AND 
     LABOR FOR PURPOSES OF ITS INVESTIGATION INTO THE DEATHS OF 9 
INDIVIDUALS THAT OCCURRED AT THE CRANDALL CANYON MINE NEAR HUNTINGTON, 
                                  UTAH

                               __________

                            DECEMBER 5, 2007

                               __________

             Printed for the use of the Committee on Rules

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                           COMMITTEE ON RULES

               LOUISE M. SLAUGHTER, New York, Chairwoman
JAMES P. McGOVERN, Massachusetts     DAVID DREIER, California
ALCEE L. HASTINGS, Florida           LINCOLN DIAZ-BALART, Florida
DORIS O. MATSUI, California          DOC HASTINGS, Washington
DENNIS A. CARDOZA, California        PETE SESSIONS, Texas
PETER WELCH, Vermont
KATHY CASTOR, Florida
MICHAEL A. ARCURI, New York
BETTY SUTTON, Ohio

                       Dan Turton, Staff Director
            Hugh Nathanial Halpern, Minority Staff Director

















                            C O N T E N T S

                              ----------                              

                            December 5, 2007

                                                                   Page
Opening statement of the Hon. Louise M. Slaughter, chairwoman of 
  the Committee on Rules.........................................     1
Opening statement of the Hon. David Dreier, ranking member of the 
  Committee on Rules.............................................     2
Statement of:
    Miller, Hon. George, a Representative in Congress from the 
      State of California [prepared statement p. 5]..............     3
    McKeon, Hon. Howard, a Representative in Congress from the 
      State of California [prepared statement p. 10].............     6
    Halstead, T.J., Legislative Attorney for the Congressional 
      Research Service [prepared statement p. 23]................    21
Additional Material Submitted for the Record:
    Letter trom Jonathan L. Snare, Acting Solicitor of Labor.....     7


EMERGENCY MEETING ON H. RES. 836, GRANTING THE AUTHORITY PROVIDED UNDER 
 CLAUSE 4(c)(3) OF RULE X OF THE RULES OF THE HOUSE OF REPRESENTATIVES 
      TO THE COMMITTEE ON EDUCATION AND LABOR FOR PURPOSES OF ITS 
  INVESTIGATION INTO THE DEATHS OF 9 INDIVIDUALS THAT OCCURRED AT THE 
               CRANDALL CANYON MINE NEAR HUNTINGTON, UTAH

                              ----------                                



                      WEDNESDAY, DECEMBER 5, 2007

                          House of Representatives,
                                        Committee on Rules,
                                                    Washington, DC.
    The committee met, pursuant to call, at 2:00 p.m. in room 
H-313, The Capitol, Hon. Louise M. Slaughter [chairwoman of the 
committee] presiding.
    Present: Representatives Slaughter, McGovern, Hastings of 
Florida, Matsui, Cardoza, Welch, Castor, Arcuri, Sutton, 
Dreier, Hastings of Washington, and Sessions.
    The Chairwoman. The Rules Committee will please come to 
order.
    We are here to consider H. Res. 836, Granting the Authority 
Provided under clause 4(c)(3) of rule X of the Rules of the 
House of Representatives to the Committee on Education and 
Labor for Purposes of its Investigation into the Deaths of 9 
Individuals that Occurred at the Crandall Canyon Mine near 
Huntington, Utah.
    On August 6 of this year, pillars in Utah's Crandall Canyon 
Mine exploded and tragically killed six miners. The entire 
Nation watched around the clock as rescuers made their best 
effort to recover these six persons. Unfortunately, tragedy 
struck again just 10 days later when three rescuers themselves 
died in the midst of their heroic efforts.
    The rescue effort ultimately was called off, and the mine 
was closed. Although any mine rescue will be treacherous, 
serious questions were raised about the rescue efforts of the 
Labor Department's Mine Safety and Health Administration and 
the mine owner, Murray Energy, and the safety of the mine 
itself.
    Since the mine accident, the Education and Labor Committee 
has been engaged in exhaustive investigation into not only any 
safety problems in the mine that were known to MSHA and Murray 
Energy prior to the accident, but also the conduct of Murray 
Energy and MSHA in attempting the rescue. The investigation has 
consisted of countless staff interviews, document requests, a 
subpoena and a hearing.
    While the committee has attempted to obtain needed 
information through voluntary interviews and document requests, 
some individuals have indicated that they will not cooperate 
voluntarily with the investigation. Whether such recalcitrance 
was caused by the fear of retaliation or by the fear of self-
incrimination, it is hindering a legitimate congressional 
investigation into all of the most recent of several mining 
incidents.
    This resolution provides the authority that the Education 
Committee needs to uncover what happened and what needs to be 
done to prevent future accidents.
    House Resolution 836 would extend the authority that 
already exist in the House rules and will permit the committee 
to call witnesses for Member and staff depositions. It is 
important to know that the deposition authority in H. Res. 836 
is limited to the committee's investigation of the mine deaths 
at Crandall Canyon Mine. It does not extend to any other 
investigation or even any accident in any other mine.
    In addition, the minority members of staff must be afforded 
equitable treatment with respect to notice and participation in 
any depositions. These are just a few of the many provisions in 
the authority that protect the rights and prerogatives of the 
Members. Just a few hours ago, the Education Committee adopted 
deposition rules in anticipation of H. Res. 836 passing the 
House. The committee rules provide significant protections to 
the committee members and witnesses called for depositions.
    I ask that during their testimony Chairman Miller and 
Ranking Member McKeon describe for us these precautions, 
protections and how they will differ from past deposition 
rules. I believe that the resolution and the committee rules 
provide a reasonable tool for the continuation of the Crandall 
Canyon Mine investigation.
    It is my understanding that the Education Committee's 
ranking member has been involved closely in the development of 
the resolution and the rule and that many, if not all of his 
concerns have been addressed.
    I hope that this committee and the House will approve the 
resolution so that the investigation can continue and that the 
truth of Crandall Canyon can be uncovered and that the 
information obtained can be used to prevent future mine 
accidents.
    I now recognize Mr. Dreier for an opening statement.
    Mr. Dreier. Thank you very much, Madam Chairman.
    As I listen to your very thoughtful opening remarks, I am 
of course brought, as we all are, back to those days in August. 
In many ways it seems like it is a long time ago. It is hard to 
believe it was just 3 months ago. I can remember vividly 
sitting up late, as we all do, when disasters like this hit and 
there are people whose lives are threatened, who are waiting 
and watching these reports that were coming from the Crandall 
Canyon Mine disaster.
    I do think that it is essential that everything that 
possibly can be done to ensure that what we faced then never 
happens again. This is not a first. This has obviously happened 
repeatedly. I remember when our former Rules Committee 
colleague, Mrs. Capito, was dealing just a few years ago with 
the tragic loss of life there. I remember what a roller coaster 
ride that was when they came that night, do you remember, and 
said that everyone was safe, and, then, of course they got the 
reverse before long.
    I can't say how saddened I am to having thought about that 
situation again. I want to express my condolences.
    I will say that we are at the end of the day going to be 
supportive of this effort, but I would like to raise a couple 
of concerns that I have seen on this. We all know that this is 
an extraordinary procedure that we are talking about here. I 
just wrote down what you said in your opening remarks. You said 
this already exists in House Rules.
    It does exist in House Rules in that on the opening day 
when we passed the rules package, which, not surprisingly, Mr. 
McKeon and I and Mr. Hastings opposed for numerous reasons, 
which we outlined at that point, one of those included 
providing our California colleague, Mr. Waxman, with basically 
blanket and extraordinary authority. In fact, Madam Chairman, 
back in the 105th Congress you were a signatory to minority 
views which described that as extraordinary.
    I will say that I believe it very important that we move as 
carefully as we possibly can. I think that Mr. McKeon will 
probably point to the fact that while, as you said in your 
remarks there, that there may be some people who, for one 
reason or another, feel that they do not want to come forward, 
subpoena authority does exist. I do believe that we have the 
ability to glean the necessary information.
    I also want to say that if you look at the package here in 
dealing with the Education and Labor Committee, it is far 
better than what you described as already existing in the House 
rules, the package that was put into place on the opening day 
of the 110th Congress. I wish very much that the model that has 
been put forward for Chairman Miller and Mr. McKeon would have 
been the model utilized for Mr. Waxman's committee.
    In closing, I would simply say, Madam Chairman, that this 
is the first original jurisdiction hearing of the Rules 
Committee for the 110th Congress. I hope very much that it 
won't be the last as we proceed with the very important 
jurisdiction which falls within the Rules Committee.
    Thank you very much.
    The Chairwoman. Thank you very much.
    Let me call Mr. Miller, the Chair, and Ranking Member 
McKeon to the table.
    Mr. Miller, we would be happy to hear from you.

   STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Miller. Thank you. Thank you for this hearing and for 
the resolution.
    Madam Chairman, you and Mr. Dreier have pointed out the 
reason why we are here, the tragedy at Crandall Canyon Mine and 
our obvious need to investigate what transpired there over a 
considerable period of time from the approval of plans to the 
accidents and the aftermath of the accidents. As you know, not 
only were the miners killed, but then three who went in to 
rescue them were killed in that process.
    We believe that this authority is necessary to engage in 
these depositions. A number of people we have talked to from 
various aspects of this accident have indicated that they will 
not cooperate for different reasons, and that is certainly 
their right currently. But we believe that their testimony and 
our ability to probe them is essential to the success of this 
investigation.
    Mr. McKeon said this morning, and you mentioned it, that 
there is an investigation going on by MSHA, but MSHA itself--
its activities and responses are a part of that investigation, 
so that this can't be left just to theirs. We have been 
respectful of their investigation. We have pursued this 
investigation parallel with theirs and others that have taken 
place by the State of Utah and others, and we have worked 
cooperatively with them.
    But at this stage we believe that this authority is 
necessary, and the resolution that you have under consideration 
is obviously essential to our having the authority to do it in 
this fashion.
    It is unusual. There is no permanent rule for the 
committees, as you pointed out. Authority was granted to 
Government Reform but not to us, and that is obviously why we 
are here.
    This committee has sought that authority, I think, in the 
past, when we were doing the Teamsters investigation a number 
of years ago. That authority was given.
    Mr. Dreier has noted that this is different than that 
authority. In working with the Rules Committee, with Government 
Reform, and with the minority on this, we have made some 
changes.
    We think that our rules now are reflecting the consensus 
and cooperation that Members would receive 3 days notice before 
the chairman issues the subpoenas, the chairman's rulings on 
objections in the depositions are promulgated to the Members 
before the ruling is implemented and can be overruled by the 
full committee. Members are given an opportunity to object to 
the introduction of deposition testimony into evidence before 
the committee at such time that evidence is offered. The 
Republicans are consulted before subpoena notice goes out. 
Minority counsel is given a full opportunity to question the 
deponents and participate in the depositions with the majority 
counsel. For the deponent, they can bring personal counsel in 
applicable cases, agency counsel or corporate counsel to advise 
the deponent and respect the deponent's rights.
    The deponents do not have to answer questions for which a 
privileged objection is made. In the first instance, subject to 
overruling that privilege, that objection by the committee, the 
depositions are taken by counsel, not attorney staff, who are 
able to consider, respect the deponent's constitutional rights 
and of the privileges. As you know, you can't exercise 
privileges before a congressional committee, but the 
congressional committee has the authority to override them.
    But we protect those rights, we protect the rights of the 
majority and the minority with respect to notice participation 
and rotating the ability to ask the questions, to go back and 
forth in selected periods of time in that inquiry. So we think 
it does meet the test of fairness and protection of the rights 
of all parties to this. We recognize this is unusual authority, 
but we clearly believe that it is necessary at this stage of 
the investigation.
    Thank you.
    [The prepared statement of Mr. Miller follows:]

Prepared Statement of Hon. George Miller, Chairman, House Committee on 
                          Education and Labor

    Madam Chairwoman, thank you for the opportunity to speak with your 
Committee today about H. Res. 836.
    This resolution would grant authority to the Education and Labor 
Committee to compel witnesses to appear for depositions in our ongoing 
investigation into the tragic deaths of nine men at the Crandall Canyon 
Mine in Utah in August 2007.
    Six coal miners who were trapped in a collapse at the mine remain 
entombed there. Three rescuers who made valiant efforts to reach the 
trapped miners also paid with their lives.
    Given the seriousness of this disaster, it clearly warrants a full 
and independent investigation.
    Although the federal Mine Safety and Health Administration has 
begun its own investigation, the agency simply cannot be entrusted with 
this responsibility.
    That is why, soon after the tragedy, I began a Committee 
investigation into the circumstances leading up to, during, and 
following the collapse.
    I believe that a mechanism for full and independent investigations 
of mining tragedies must be enshrined into law. My committee has 
already approved legislation that would do just that.
    But now, in the absence of such a mechanism, it is essential that 
Congress fully investigate what happened at Crandall Canyon.
    In most investigations, a combination of documentary and 
testimonial evidence provides the greatest insight. Our committee has 
begun to receive documentary evidence, including emails and memoranda, 
that have helped our work.
    To conduct a thorough investigation, however, we also need to have 
the ability to collect testimonial evidence.
    We need to know who knew what, when they knew it, and how they came 
to know it. We need to know about face-to-face meetings and telephone 
conversations they had.
    Emails and memos are important, but they will only tell a part of 
the story. The technical aspects of mining plans, the mining plan 
approval process, and other features specific to the mining industry 
will require precise questioning in fully transcribed, bipartisan 
deposition sessions.
    While we would prefer that individuals come forward voluntarily to 
supply the Committee with information, we believe this step is 
necessary to ensure that we get the information we need from all 
relevant witnesses, whether they volunteer the information or not.
    And the seriousness of this matter requires that interviews be 
conducted under oath, as they would be in a deposition.
    I am pleased to say that, earlier today, the Education and Labor 
Committee approved new bipartisan committee rules governing the use of 
this deposition authority.
    We developed these rules in close consultation with Senior 
Republican Member McKeon and his staff. These rules will protect the 
rights of the deponents and the rights of the minority.
    The Committee's majority and minority staffs include attorneys 
experienced in litigation, investigations, and House procedure. This 
deposition authority will enable them to pursue this investigation as 
effectively and efficiently as possible.
    Madam Chairwoman, earlier this year my Committee heard from family 
members of the miners and rescuers who died at Crandall. They want to 
know what happened to their loved ones. They have a right to know what 
happened.
    With a full and independent investigation, we will learn what went 
wrong and what steps could be taken now to help prevent future 
tragedies. We owe that to the families of the miners who have died and 
to the thousands of miners who risk their lives working underground 
every day.
    Thank you.

    The Chairwoman. Thank you, Mr. Miller.
    Mr. McKeon.

   STATEMENT OF THE HON. HOWARD McKEON, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. McKeon. Thank you, Madam Chairman, Ranking Member 
Dreier and Members of the committee. I appreciate the 
opportunity to testify on the proposal to grant deposition 
authority to the Committee on Education and Labor and the 
investigation of the Crandall Canyon mining disaster.
    I joined my colleagues in that just a short time ago to 
establish rules to govern these depositions. The rule adopted 
by our committee to direct this process was developed 
cooperatively to ensure that this authority, regardless of 
whether it is merited, will be exercised fairly and with the 
full consultation of the minority.
    Based on his actions up to this point, I have every 
confidence that the chairman will treat this respectfully in 
this process. While I did not object to the parameters of the 
deposition authority, I expressed caution, and just as I do 
now, that this authority is premature, unnecessary and has the 
potential to cause great harm.
    The Education and Labor Committee has a history of working 
carefully and cooperatively to ensure safety in our Nation's 
mines.
    Last year we oversaw the development and enactment of the 
Miner Act, the most sweeping mine safety reforms in a 
generation. We take seriously our commitment to mine safety, 
which includes appropriate oversight.
    Because of that, I do not believe we should take lightly 
this proposal to diverge from our accepted oversight 
capabilities.
    At a minimum, this proposal is premature. Our committee has 
already made significant progress in our investigation through 
existing authority to conduct hearings, demand documents and 
interview witnesses and experts. Our colleagues on the other 
side of the Capitol are engaged in similar exercises.
    At the same time, the U.S. Department of Labor and the 
State of Utah have undertaken a series of investigations into 
the cause of the mine collapse and handling of the events in 
its wake. There are inquiries into the cause of the collapse, 
inquiries into the development and observance of the mine 
safety plans and inquiries into the handling of the rescue by 
both the mine operator and Federal regulators.
    There is no shortage in the number and scope of these 
inquiries. Our role in these investigations is to conduct 
robust oversight.
    To that end, the committee has requested, and the 
Department of Labor has produced, hundreds of thousands of 
pages of documents related to this mine and its collapse.
    More documents are on the way. We also have significant 
tools at our disposal, even without this new and extraordinary 
authority, to hold hearings, interview witnesses and officials, 
insert findings into the official record and compel the 
disclosure of documents. We have not come close to exhausting 
the resources at our disposal to investigate the incident.
    Not only is the deposition authority premature at this 
juncture, it also appears to be unnecessary. Although the 
majority staff have refused to discuss who they intend to 
depose, we have been told that only four or five witnesses 
would need to be subpoenaed. I see no reason why the regular 
hearing process could not accommodate that small number of 
witnesses.
    Today, however, we are beginning down a path that I believe 
goes far beyond our charge to conduct oversight. By granting 
the Education and Labor Committee the authority to depose 
witnesses, we are venturing into an arena rarely entered by 
Congress and then only under circumstances such as national 
security, the impeachment of a President and the alleged 
defrauding of a national organization by its leadership. 
Deposition authority will allow dozens of interviews to be 
conducted under oath and be compelled by subpoena. This could 
create the possibility of a potential web of conflicts of 
interest, produce claims and rulings, requests for immunity, 
leaks and contradictory evidence.
    Previous congressional probes would serve as a cautionary 
tale as we head down this path. Tactics used in the 
congressional oversight investigation of the Iran Contra Affair 
caused key testimony against Oliver North to be thrown out and 
his convictions to be overturned.
    In early September, the Acting Solicitor of Labor wrote to 
Chairman Miller and myself, along with the leadership of the 
House, expressing concerns that the committee's parallel 
investigation may compromise the integrity of MSHA's law 
enforcement investigation and potentially jeopardize its 
ability to enforce the law and hold violators accountable.
    Madam Chairman, I would like to include that letter in the 
record. The danger described in the letter is as real today as 
it was then.
    The Chairwoman. Without objection.
    [The information follows:]

                               Department of Labor,
                                   Office of the Solicitor,
                                Washington, DC, September 11, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Chairman Miller: I am writing to express grave concerns that 
the Committee's current plans to pursue its own parallel investigation 
of the Crandall Canyon mine accident may compromise the integrity of 
the Mine Safety and Health Administration's (MSHA's) law enforcement 
investigation and potentially jeopardize its ability to enforce the law 
and hold violators accountable. Specifically, the Department is 
concerned about the Committee's plans to interview witnesses and hold a 
public hearing before MSHA's officially constituted accident 
investigation team has the chance to interview the witnesses and carry 
out its statutorily mandated law enforcement responsibilities. For the 
Committee's parallel inquiry to proceed while MSHA's investigation is 
ongoing and in its early stages is likely to result in confusion for 
the families and the public and may taint the ongoing accident 
investigation to such a degree that MSHA is unable to prosecute any 
violations of mine safety and health standards that contributed to or 
exacerbated the accident. In light of these concerns, the Department 
requests that the Committee postpone witness interviews for a few weeks 
and that the October 3, 2007, public hearing be rescheduled for a date 
following completion of the witness interview phase of the law 
enforcement investigation.
MSHA's statutory law enforcement obligations
    As you know, MSHA has been overseeing rescue and recovery 
operations at the Crandall Canyon coal mine as a result of a mine 
accident on August 6, 2007. Pursuant to its mine accident investigation 
authority under Section 103 of the Federal Mine Safety and Health Act 
of 1977 (Mine Act), 30 U.S.C. Sec. 813, and consistent with general law 
enforcement investigation protocols, MSHA investigates mine accidents 
and issues formal reports summarizing the findings and conclusions of 
the investigation, identifying causes of the accident and how the 
incident unfolded. At the conclusion of the investigation, should MSHA 
discover violations of safety or health standards that contributed to 
the accident, the responsible parties are cited civilly. If there is 
evidence of intentional or willful violations, criminal referrals will 
be made to the appropriate U.S. Attorney's office. Accordingly, on 
August 30, 2007, MSHA announced that its investigation team will review 
relevant documents, conduct interviews of relevant witnesses, including 
the mine owner, mine management, other miners, and MSHA employees 
involved in oversight of Crandall Canyon. At the completion of the 
investigation, the results of the investigation as well as the 
transcripts of non-confidential witness interviews will be made 
available to the public.
    In accord with MSHA practice, the investigations will be conducted 
under law enforcement investigation protocols. For example, the MSHA 
investigation team looking into the accident itself will conduct 
government-only witness interviews jointly with the State of Utah. 
Information from interviews or transcripts will only be released after 
MSHA's chief investigator and the designated Utah official determine 
that a release will not jeopardize the integrity of the investigation. 
All witnesses will be asked not to discuss the substance of their 
interviews with other witnesses or the public in order to protect the 
integrity of the investigation and to prevent prejudice to the 
testimony of other witnesses.
    In addition to the accident investigation, the Department announced 
on August 30, 2007, the appointment of independent outside mine safety 
experts to review the actions of MSHA relative to the Crandall Canyon 
Mine accident. That review will include actions taken before the August 
6 accident and the ensuing rescue operations and will consist of a 
thorough examination of documents relevant to the Crandall Canyon Mine 
and interviews of MSHA employees with personal knowledge of MSHA's 
inspection responsibilities and enforcement procedures at the mine.
Committee staff rejected proposed accommodation
    On September 6, 2007, the investigative staff of the Education and 
Labor Committee informed the Department of Labor that they were 
planning to interview employees of MSHA Region 9 in Denver, Colorado. 
On September 7, the Department of Labor contacted the Committee's 
investigative staff to discuss the request. Committee staff again 
stated that they intended to question MSHA employees on various aspects 
of the accident on September 12 and also indicated that the Committee 
intended to call some of the interviewees for a hearing on October 3, 
2007. The Department explained that MSHA's ongoing law enforcement 
investigation would not be complete by the time of the interviews 
proposed for this week and that it would jeopardize the law enforcement 
investigation for the Committee to interview witnesses before the MSHA 
law enforcement investigation team had done so. Committee staff stated 
they could not wait beyond September 12 or 13 for the Department to 
produce the following witnesses for interviews: the MSHA district 
manager, the roof control specialist who approved the Crandall Canyon 
roof control plan, and the roof control specialist's supervisor.
The Department requests a short delay that will minimize the potential 
        prejudice to the open law enforcement investigation
    The Department has no objection to providing the Committee with 
background information and information on MSHA procedures that pertain 
to the Crandall Canyon accident or to allowing Committee staff to 
interview appropriate MSHA personnel at an appropriate time in the near 
future. The Department, however, strongly believes that interviews at 
this time and a public hearing would jeopardize the law enforcement 
investigation. Although the Committee has a legitimate interest in 
determining how the Department enforces statutes, congressional 
investigations during the pendency of the law enforcement investigation 
pose an inherent threat to the integrity of that investigation. Your 
parallel investigation could prejudice the testimony of other 
witnesses, subject witnesses to possible intimidation, tip off 
potential civil or criminal violators that they are under suspicion, 
and/or taint the investigation such that any enforcement action is 
precluded from being brought. See, e.g., Walkins v. United States, 354 
U.S. 178 (1957) (noting that Congress is not ``a law enforcement 
agency'' as that is a function of the executive branch); Letter of 
Assistant Attorney General Robert Raben (Jan. 27, 2000); Opinion of 
Attorney General Jackson, 40 Op. Att'y. Gen. 45, 46 (1941) (citing 
Attorney Generals from the beginning of the 20th Century). Accordingly, 
the Department has serious concerns about a parallel investigation by 
the Education and Labor Committee proceeding while the Department's 
investigation is ongoing.
    The Department also takes very seriously its responsibility to 
protect the privacy interests of individuals about whom information is 
developed during a law enforcement process. The reputations of 
individuals mentioned in investigations could be severely damaged by 
the public release of incomplete circumstantial information about them, 
especially when they may be exonerated by additional investigation and 
other evidence later developed.
    In conducting its own parallel but limited investigation before an 
October 3 hearing, it is likely the Committee will not know all the 
facts and may come to conclusions on the accident that are later 
contradicted by other evidence. The public airing of that incomplete 
information on October 3 will inevitably affect the testimony of any 
witnesses not interviewed by the accident team before October 3, tip 
off possible targets, confuse the victims' families and the public, and 
possibly unfairly tarnish the reputation of innocent individuals.
The Department will continue to cooperate with the Committee
    The Department respects the prerogatives of the Committee to 
conduct oversight and, as you know, has previously responded to a 
number of Committee letters requesting information on other matters as 
well as dozens of requests from your staff for documents and 
information, briefed the Committee on a number of occasions on mine 
safety issues, and testified before the Committee. The Department has 
already provided the Committee with non-confidential documents in the 
course of the Crandall Canyon investigation in response to requests and 
will continue to provide requested information as it becomes available.
    The Department asked the Committee staff to delay its investigation 
for a short period of time to enable the law enforcement investigative 
team to complete the interviews and fact-gathering phase, after which 
the Department would be pleased to facilitate the Committee's 
inquiries. However, because staff represented during a conference call 
on Friday with Department attorneys that the Committee intended to 
forge ahead despite the serious concerns expressed, MSHA has already 
asked the requested personnel to be available on September 12 in 
Colorado for a brief interview by your staff. In response to this 
particular Committee request, the Department is providing access to 
these witnesses for non-public interviews only. The Department believes 
that disclosure of the contents of these interviews could adversely 
impact our law enforcement efforts by prematurely revealing information 
to other witnesses. Accordingly, the Department requests that the 
Committee take appropriate steps to ensure that such disclosures do not 
occur and otherwise to conduct your investigation in a manner that will 
avoid risks of compromising our efforts. In view of our concerns, the 
Department trusts you will find this to be a good faith accommodation.
    The Department remains particularly concerned that a public hearing 
would complicate our efforts to hold any culpable parties accountable 
for any legal violations that may have caused or contributed to the 
mine accident. Accordingly, the Department respectfully urges you to 
delay the Committee's inquiry appropriately.
            Sincerely,
                                         Jonathan L. Snare,
                                         Acting Solicitor of Labor.

    Mr. McKeon. The majority has thus far heeded our warnings 
and the Department of Labor. Interviews have proceeded 
cautiously to avoid any inadvertent sabotage of our pending 
inquiries. Our hearing was structured in such a way as to avoid 
endangering the investigations.
    I am concerned that by granting unfettered deposition 
authority the House is backing away from that cautious approach 
and rekindling the threat that our activities could undermine 
the aggressive enforcement that MSHA and that other 
investigators have an obligation to pursue. The deposition 
authority today is crafted narrowly not only to cover the 
Crandall Canyon Mine collapse. I have serious questions about 
the timing and necessity of this discrete authority.
    Beyond that, however, I want to make it perfectly clear 
that the narrow authority being granted in this instance should 
in no way be viewed as a precedent for future oversight 
functions of our committee.
    Our committee rules allow for a range of tools and 
resources that can be used to conduct rigorous oversight, tools 
that, I would add, are not being fully utilized in this 
instance.
    If there is any effort to begin granting a more wide-
ranging deposition authority, I believe the dangers will be 
multiplied exponentially. As such, my objections will be 
multiplied as well.
    Before yielding back, I would like to commend the chairman, 
thank him for the openness and really working with the minority 
on this. They granted many of our requests, which the chairman 
outlined, and I think have made for a better process.
    I thank him for that and look forward to working with him 
on it as we move forward on this and other issues.
    [The prepared statement of Mr. McKeon follows:]

      Prepared Statement of Rep. Howard P. ``Buck'' McKeon (R-CA)

    Thank you Madam Chair, Ranking Member Dreier, and members of the 
Committee. I appreciate the opportunity to testify on the proposal to 
grant deposition authority to the Committee on Education and Labor in 
the investigation of the Crandall Canyon mining disaster. I joined my 
colleagues in that committee just a short time ago to establish rules 
to govern these depositions. The rule adopted by our committee to 
direct this process was developed cooperatively to ensure that this 
authority--regardless of whether it is merited--will be exercised 
fairly and with the full consultation of the minority. Based on his 
actions up to this point, I have every confidence that the Chairman 
will treat us respectfully in this process. While I did not object to 
the parameters of the deposition authority, I expressed caution then, 
just as I will do now, that this authority is premature, unnecessary, 
and has the potential to cause great harm.
    The Education and Labor Committee has a history of working 
carefully and cooperatively to ensure safety in our nation's mines. 
Last year, we oversaw development and enactment of the MINER Act, the 
most sweeping mine safety reforms in a generation. We take seriously 
our commitment to mine safety, which includes appropriate oversight.
    Because of that, I do not believe we should take lightly this 
proposal to diverge from our accepted oversight capabilities. At a 
minimum, this proposal is premature. Our committee has already made 
significant progress in our investigation through existing authority to 
conduct hearings, demand documents, and interview witnesses and 
experts. Our colleagues on the other side of the Capitol are engaged in 
similar exercises.
    At the same time, the U.S. Department of Labor and the State of 
Utah have undertaken a series of investigations into the cause of the 
mine collapse and the handling of events in its wake. There are 
inquiries into the cause of the collapse; inquiries into the 
development and observance of the mine's safety plans; and inquiries 
into the handling of the rescue by both the mine operator and federal 
regulators. There is no shortage in the number and scope of these 
inquiries.
    Our role in this collage of investigations is to conduct robust 
oversight. To that end, the Committee has requested--and the Department 
of Labor has produced--hundreds of thousands of pages of documents 
related to this mine and its collapse. And more documents are on the 
way. We also have significant tools at our disposal, even without this 
new and extraordinary authority, to hold hearings, interview witnesses 
and officials, insert findings into the official record, and compel the 
disclosure of documents. We have not come close to exhausting the 
resources at our disposal to investigate this incident.
    Not only is the deposition authority premature at this juncture, it 
also appears to be unnecessary. Although the majority staff has refused 
to discuss who they intend to depose, we have been told that only 
``four or five'' witnesses would need to be subpoenaed. I see no reason 
why the regular hearing process could not accommodate that small number 
of witnesses.
    Today, however, we are beginning down a path that I believe goes 
far beyond our charge to conduct oversight. By granting the Education 
and Labor Committee the authority to depose witnesses, we are venturing 
into an arena rarely entered by Congress, and then, only under 
circumstances such as national security, the impeachment of a 
President, and the alleged defrauding of a national organization by its 
leadership.
    Deposition authority will allow dozens of interviews to be 
conducted under oath and compelled by subpoena. This could create the 
possibility of a potential web of conflicts of interest, privilege 
claims and rulings, requests for immunity, leaks, and contradictory 
evidence.
    Previous congressional probes should serve as a cautionary tale as 
we head down this path. Tactics used in the congressional investigation 
of the Iran-Contra affair caused key testimony against Oliver North to 
be thrown out, and his convictions to be overturned.
    In early September, the Acting Solicitor of Labor wrote to Chairman 
Miller and I, along with the leadership of the House, expressing 
concerns that the Committee's ``parallel investigation . . . may 
compromise the integrity of MSHA's law enforcement investigation and 
potentially jeopardize its ability to enforce the law and hold 
violators accountable.'' Madam Chair, I would like to include that 
letter in the record. The danger described in that letter is as real 
today as it was then.
    The majority has thus far heeded our warnings and those of the 
Department of Labor. Interviews have proceeded cautiously to avoid any 
inadvertent sabotage of the pending inquiries. Our hearing was 
structured in such a way as to avoid endangering the investigations. 
I'm concerned that by granting unfettered deposition authority, the 
House is backing away from that cautious approach and rekindling the 
threat that our activities could undermine the aggressive enforcement 
that MSHA and other investigators have an obligation to pursue.
    The deposition authority proposed today is crafted narrowly to 
cover only the Crandall Canyon mine collapse. I have serious questions 
about the timing and necessity of this discrete authority. Beyond that, 
however, I want to make it perfectly clear that the narrow authority 
being granted in this instance should in no way be viewed as a 
precedent for future oversight functions of our committee. Our 
committee rules allow for a range of tools and resources that can be 
used to conduct rigorous oversight--tools that, I would add, are not 
fully being utilized in this instance. If there is any effort to begin 
granting a more wide-ranging deposition authority, I believe the 
dangers will be multiplied exponentially. As such, my objections will 
be multiplied as well. With that, I yield back.

    The Chairwoman. Thank you, Mr. McKeon. One question for 
either of you that I have is, if I am correct in this, this 
mine has already been mined, retreat mined and abandoned. 
Murray Energy was able to buy it for a few cents on the dollar; 
is that correct?
    Mr. Miller. I don't know all the particulars. The mine was 
a mine that I guess, you know, they say played itself out. But 
with new technologies and these new technologies you can go 
back in.
    Retreat mining is an old practice, you have pillars in the 
mine that are out of coal, and you pull them out. Basically you 
are running a series of controlled collapses in the mine.
    The Chairwoman. As you leave.
    Mr. Miller. It is very dangerous. Alan Mollohan, our 
colleague, used to do this for a living. He can explain this to 
you. It sounds like a horrendous place to work.
    The Chairwoman. It sounds awful, but in that case if they 
are allowed to use abandoned mines that are already retreat 
mines--then the legislation that you spoke of last year in mine 
safety, did it deal with that in any way?
    Mr. Miller. I don't believe that it dealt with that 
particular practice. This mine was already operating at that 
process.
    The Chairwoman. The laws that exist.
    Mr. Miller. I believe there is precedence elsewhere about 
how the plans were approved and all of that. That is part of 
the investigation, but I don't think we spoke specifically to 
retreat mining in the Miner Act of last year.
    The Chairwoman. It is true that MSHA is basically made up 
of mine owners?
    Mr. Miller. Well, they have people from the industry who 
have been brought to the regulatory agency. That is not that 
unusual, but they haven't been the swiftest agency in 
responding to these accidents that have happened, the loss of 
life that has taken place over the last several years.
    Their early actions on the Crandall mine in the first few 
hours are called into question, especially when you had the 
owner, Mr. Murray, handing out information to the press that 
was of questionable value or accuracy or truthfulness. MSHA, in 
this sense, is supposed to take over the release of 
information.
    There was a lot of questions here by a lot of different 
parties. That is essentially why we need this authority. We are 
down to, as Mr. McKeon pointed out, a limited number of people, 
but we believe they are important. My investigators tell me 
they are important, and they are not at this point willing to 
cooperate.
    The Chairwoman. Mr. McGovern.
    Mr. McGovern. I am losing my voice, so I want to be very 
brief here.
    I just want to say for the Record that I trust you both to 
use this very wisely, and I think all of us are interested in 
the same thing; that is, getting to the truth and getting some 
semblance of justice and trying to make sure these things don't 
happen again in the future. I expect you will work with us and 
you will also work with the Department of Labor. As was 
mentioned, this is not unprecedented. In this particular case, 
it is limited to a single investigation.
    I agree with Chairman Slaughter and Ranking Member Dreier 
when I say I think you have both worked together in a 
cooperative way to craft a carefully worded statute that I 
think strikes the right balance. I just want to say thank you 
for your cooperation and for a commitment that is reasonable.
    Thank you.
    The Chairwoman. Mr. Dreier.
    Mr. Dreier. Thank you very much, Madam Chairman.
    Thanks, as everyone said, to both of you, for working hard 
on this. I will say that, again, you can say this is not 
precedent setting, but it is--but it has been granted in the 
past Congresses. We did it again on the opening day rules, the 
opening day rules package for the Government Reform Committee.
    I am, as Mr. McKeon pointed out in his statement, concerned 
about this, I guess I would ask both of you the following 
question. You both referred to the fact that the other has been 
cooperative in this process.
    Do you, Mr. McKeon, feel as if you were cooperative in 
being willing to say, at the committee level, the notion of 
subpoenaing any of these five witnesses about whom you have 
spoken to come before the committee and provide answers to the 
very tough questions that obviously are out there, did you in 
any way stand in the way of the committee's ability to do just 
that?
    I say that because it seems to me, as you said in your 
statement, the tools are already there. I understand that 
deposing someone is different from having testified before a 
hearing, I understand that. But these questions are out there. 
I think most of us know what they are. Everyone here has raised 
them.
    I clearly have more than a few myself as we all followed 
that horror. But I wonder if you do feel that you were going to 
do everything that you possibly could to ensure that the 
committee would have had the ability to do exactly what this 
measure that we are dealing with here is designed to address.
    Mr. McKeon. A word on the minority, we don't select the 
witnesses. Generally, if there are more witnesses, we get one. 
So all we get on a regular hearing is the opportunity to submit 
the name for a witness.
    Mr. Dreier. Well, on this you certainly would have. I mean, 
I think you both agree, you just said, George, these four or 
five witnesses are the people in question here who may for some 
reason feel the prospect is threatening or they fear some sort 
of retribution.
    Mr. McKeon. Not by us.
    Mr. Dreier. No, no, no, obviously within their community in 
some way.
    Mr. Miller. There has been no issue here about the 
hearings. We have had a hearing on this. We have been working 
together. There is no issue here.
    You have people who don't want to cooperate at this level. 
I could subpoena them and bring them before the committee, but 
it may not be terribly helpful in the sense that their 
information may be preliminary to another part of the 
investigation. Some of this is technical. Some people only want 
to come under a subpoena, with all due respect. They say you 
want me, subpoena me. I am not coming voluntarily because I 
work here, I work there, fine.
    But a lot of that, if you were trying to manage it with 27 
members of the committee asking questions at the same time, it 
is really not very good for the witness. And it is not very 
good in terms of drilling down on the particular evidence that 
you are looking for to fill in the puzzle.
    That is why this is done. That is why it is done at the 
depositional stage because it may not be information that you 
can get out if every member has 5 minutes to ask a question on 
whatever comes into their mind.
    Mr. Dreier. Let me just say that is clearly part of the 
legislative process. There is no question, there is no 
committee in this institution that for the nearly three decades 
I have been privileged to serve here does as good a job at that 
than the Energy and Commerce Committee.
    John Dingell and that team, without this authority, 
regularly--I remember in the 1980s when he as chairman of the 
Investigations and Oversight Subcommittee there went very, very 
diligently at more than a few witnesses.
    Mr. Miller. Mr. Dreier, we can do it. It is a choice. I am 
chairman of the committee. In my meetings with the 
investigative staff who have long, long experience in these 
kinds of complex investigations, they have made a 
determination. We have talked it over. I think they are right.
    I have gone through complex investigations, did the Exxon 
Valdez. It took a very, very long time. In fact, there, because 
everything was put out in the hearing, it did destroy the legal 
case.
    In fact, members of the minority took information from our 
conversation on the floor and put them into the Congressional 
Record.
    I am very aware of the ability to sabotage hearings and how 
careful you have to be. I think this allows us to get the 
information at a level out of the public eye so people can talk 
to us, tell us what is on their mind, and we can, as Mr. McKeon 
said, we can protect the other parallel investigations that are 
taking place at the same time. That is all.
    Mr. Dreier. I hope you appreciate--I am just looking at the 
institution and the fact that this has never been done before 
in the 110th Congress.
    Mr. Miller. We gave authority to Mr. Hoekstra to do the 
Teamsters investigation in our committee because you had the 
same problem. There are people there that said I ain't coming 
forward to talk to you guys, you know, subpoena me.
    Mr. Dreier. But a concern that I have is just the notion of 
our continuing to do this, since it has been done, you know, 
first, as I say in an opening day rules package and here.
    Mr. Miller. I disagree with you, I disagree. I think this 
is absolutely critical. I think every committee that has this 
kind of authority that you have over these programs, this is 
part of separation of powers, this is a part of the authority 
of the Congress to be able to do its job.
    Mr. Dreier. I am doing all I possibly can to ensure 
oversight.
    Mr. Miller. That is not the discussion here tonight.
    Mr. Dreier. Thank you, Madam Chairman.
    Mr. Miller. I think to have depositional subpoena power is 
critical to the stages of the investigation.
    The Chairwoman. I am sure that is why we are here, Mr. 
Miller.
    Mr. Hastings.
    Mr. Hastings of Florida. Thank you very much, Madam 
Chairman.
    The courts have repeatedly held that Congress has 
investigatory prerogatives. The thing that is inherent in this 
particular measure, as offered, is the transparency and the 
minority participation.
    When Mr. McKeon decided on a very critical matter dealing 
with Oliver North what he may not be privy to and there were 
other investigations that were conducted, incidentally, I 
happened to have served when a very similar deposition was put 
forward with reference to the Iran-Bosnia hearings which have 
been on the dustbin that nobody bothered to review.
    So this isn't as precedent setting, as my friend from 
California suggests, as it is Congress pursuing its 
prerogative.
    That said, the only thing that I would ask of you 
particularly, Mr. Miller, is what potential national policy 
outcomes, further investigation in this specific case, do you 
see? Otherwise, the conflicts, the parallels, the question that 
I literally subscribe to that you addressed, I think, 
appropriately. As my colleague, Mr. McGovern said, obviously we 
have great confidence in you and Mr. McKeon to protect matters.
    One of the things that has not been said here is there are 
families who expect it of the Labor Department. I might add, 
they would, if I know correctly, take a very long time to come 
to some conclusions. There obviously are potential litigation 
circumstances, particularly civil. I don't know about any 
criminal investigation, but Congress' prerogative should not be 
precluded.
    What do you see as some kind of national policy outcome 
from this, Mr. Miller, and that would be my only question? 
Thank you, Madam Chairman.
    Mr. Miller. I would say that one of the questions that is 
sort of central to this is we see energy prices continuing to 
increase, coal that was left in the ground at one time has now 
become valuable. Where you made a decision that it was unsafe 
to mine this coal when oil was $30 a barrel, at $100 a barrel 
this coal looks pretty valuable.
    The national policy implications for the miners and their 
families and for the owners of these mines is under what 
conditions and how would you approve these mines?
    I mean, people willingly walked out of these mines and they 
said it was too dangerous. We are closing the mine here and 
went looking for another property to mine.
    Price changed all of that. It does so in the oil and gas 
business, too. You reopen wells that you didn't think were 
worth much 5 years ago, and you are pumping oil today. This has 
ramifications because people have to go into these 
arrangements.
    We have had a series of hearings where we have been looking 
at safety procedures and survival procedures and all the rest 
of that. It is very contentious. This is a pretty independent 
mining industry, and they like doing business the way they have 
been doing it.
    But clearly change came on with the Miner Act of last year. 
We have additional legislation proposed for this year. The 
whole idea of retreat mining really wasn't on the scale until 
the price of energy went up so high.
    But how that is done, and a central question has been 
raised on what was the approval of these plans and who provided 
for that approval, was it done in regular order, and were there 
a series of questions that should have been asked and were 
they, in fact, asked.
    I don't know the answer to that, but I know that it has 
been focused and clearly in the public also. Those issues 
clearly have been raised in our hearings.
    There are serious implications for this because this is an 
activity, as I said, that would have been abandoned in a 
different energy situation.
    Mr. Hastings of Florida. Thank you very much for your 
answer. Thank you.
    The Chairwoman. Mr. Hastings.
    Mr. Hastings of Washington. Thank you, Madam Chairman.
    As I listen to your testimony here and what you are trying 
to accomplish, I certainly sense that there is bipartisan 
effort to try to find out and get to the bottom of what 
happened there. It sounds to me, at least on Mr. McKeon's 
testimony, that at least the rules and regulations that you 
have set up, how you are going to proceed will be fair. All of 
that process seems pretty good, which I congratulate you both 
on.
    But there is one area where it seems like there hasn't been 
correspondence, and I would ask both of you to respond to that, 
and that is how many people will be deposed. Mr. McKeon said he 
wasn't sure. After talking to staff it was four or five.
    This seems to me that this is something that has broader 
national or broader interest within the bipartisan Education 
Committee. Why would that part not be something that would be 
discussed in a bipartisan way so that you could agree on who 
should be coming to testify and why wouldn't the minority, 
prior to coming here, know who you want to----
    Mr. Miller. We don't know where this testimony is going to 
take us. That is the nature of these investigations. We don't 
know. We think we are down to a handful of people that this 
might apply to. I think in fact in some cases it may be when 
they find out we have the authority they may come. I don't 
know, but I am not going to limit it to that because that is 
illegal.
    We will notify and discuss the witnesses and set up the 
procedures as is outlined in the rule change and with the 
approval of the resolution. But I don't know.
    Mr. Hastings of Washington. That echoes the heart of my 
question, and maybe you have answered it, and I don't want to 
put words in your mouth, I hope I understood what you said 
correctly, but you have gotten down--I understand you don't 
know where investigations will go until you ask a question. 
That may be something else prompts some other questions.
    I guess where you have some broad agreement before, why 
would not the minority know at least who you are thinking about 
talking about? That is my question.
    Mr. Miller. We are conducting--I am responsible for this 
investigation. I am conducting it in a fashion that I think is 
fair. As we also know that there are parallel investigations 
going on, we are talking to those investigators in those other 
agencies. In some cases, they may want to take a crack at a 
person before we do, but we still want them for a different 
reason. That is not helpful to our case to have or to the 
investigation, I should say, not to the case, to the 
investigation, to have that discussed.
    Mr. Hastings of Washington. Mr. McKeon.
    Mr. McKeon. Our whole purpose in this--we did pass the 
Miner Act last year, it has a 3-year implementation, and we are 
only 18 months into that. Now we passed, at least in the House, 
this other mining safety bill, which we see could have some 
potential problems, and now we are getting more involved in 
this investigation.
    My whole hope on this is that we can really find out what 
happened there, that this isn't just--and I don't think it is. 
I hope I am not also putting words into people's mouths. This 
is not just a political witch hunt. I haven't seen that, and I 
think the real purpose on both sides is to find out what really 
happened and if somebody was at fault to bring them to justice.
    My concern is that you have been a judge. You know a lot 
more about that. I am not an attorney. I just know there is a 
risk out there of doing damage to a potential case. I have 
talked to enough people associated with mining and with this 
accident that I think there was, I think there is some problem.
    Mr. Miller. If I might, let me just say something. We have 
had a series of accidents in this country, and for whatever 
reasons those accidents weren't very thoroughly investigated 
either in this Congress or otherwise when they took place.
    I have gone to West Virginia, I have gone to Kentucky, and 
I have met with the families of the miners who were killed and 
we have had them here in Washington, D.C. They were not allowed 
to come and testify about their loss or what they knew about 
the investigations in those earlier accidents.
    I just made a flat-out commitment to those families that on 
my watch that will never happen again. This investigation is 
part of that, and we are going to find out what happened at 
Crandall Canyon, and we are going to find out what happened at 
those other mines. This is a tool that I am asking you to put 
in our quiver.
    We will use it sparingly, properly and responsibly. But I 
can't have the investigation that those families deserve 
without this.
    Any of us who have been involved in litigation in any form, 
this is just fundamental. This is just fundamental. I don't 
need governmental agencies asking our questions. This committee 
doesn't need somebody else asking our questions, and that is 
just that fundamental with me.
    I have watched these families over the last couple of years 
and that agony and when they couldn't get answers from the 
government, from the Congress or from anybody else. It is just 
not going to be that way on my watch.
    Mr. Hastings of Washington. Last thing, just to clarify 
because you said this is Crandall Canyon and others, but this 
is just narrowly drafted.
    Mr. Miller. This is just Crandall Canyon. The others are a 
different type of investigation and much more time has passed. 
It is different, but I am just saying, those aren't unfinished 
on our agenda either.
    Mr. Hastings of Washington. You implied they will be looked 
at.
    Mr. Miller. No, this applies just to this investigation.
    Mr. Hastings of Washington. The others will be done under 
regular order then presumably?
    Mr. Miller. Yes.
    Mr. Hastings of Washington. Thank you.
    The Chairwoman. Ms. Matsui.
    Ms. Matsui. Thank you, Madam Chairman.
    I just want to follow up on your comments, Mr. Miller. I 
noted that there were several mining accidents this year, quite 
a few, in fact, I realize this is narrowly prescribed. I 
believe that, and I understand Department of Labor has its 
investigation, MSHA certainly has, but we have an oversight 
responsibility.
    We have constituents, we represent the people. I believe it 
is our role to have this responsibility. Things have happened, 
and we know that. We can't exactly pin the responsibility at 
this point in time.
    I think this is very necessary. My understanding is that 
you have issued subpoenas and information was not forthcoming, 
particularly with perhaps Mr. Murray. So, therefore, I believe 
the deposition authority is very, very necessary.
    I also understand that we have to be careful, and it seems 
to me that this particular committee, because of its history of 
working together, will make sure that this is narrowly 
prescribed. In essence, I think you said, Mr. McKeon, and maybe 
Mr. Miller also, that, in essence, you have looked at this. You 
probably understand where you need to go right now with 
witnesses. Perhaps you need to depose, but you are not sure 
yet.
    I think a lot of this happens to be a tool that is 
necessary because there are people who do not want to speak in 
public and would rather speak in private, but they also need to 
be subpoenaed to do that, too. I think this is a very necessary 
tool. I believe the way it has been organized and put together 
here is the proper way to go.
    I thank you both very much. I believe that this authority 
is very necessary.
    Thank you.
    The Chairwoman. Mr. Sessions.
    Mr. Sessions. Thank you, Madam Chairman.
    Mr. McKeon, I am reading your testimony that you have here, 
and I find it interesting that one says that there is no 
shortage in the number and scope of these inquiries that is 
taking place already by the Federal Government and the State of 
Utah, top of page 2.
    What I am saying is lots of people are dealing with this.
    Mr. McKeon, would you anticipate at any point your 
committee would gain knowledge into or seek information which 
would change the behavior of this from becoming an 
investigation into a criminal investigation?
    Mr. McKeon. I don't know. I think there is information that 
we don't have. I think that is what the chairman is trying to 
get.
    I don't understand if there are other investigations going 
on, if there are criminal investigations.
    Mr. Miller. Yes. I don't want to comment on that, because I 
don't know where MSHA's investigations are taking them, where 
the State of Utah, the attorney general there is taking them. I 
really don't know that, and I don't want to speculate on people 
who have been called to testify.
    Mr. Sessions. Chairman, I would like to ask you then at any 
point do you intend to delve into the difference between 
criminal investigation and oversight? Do you understand the 
difference between criminal investigation and oversight?
    Mr. Miller. Yes, I think I do.
    Mr. Sessions. Do you mind discussing that with us? You said 
you didn't want too get into it.
    Mr. Miller. I have conducted oversight this year on the 
Reading First program. We have recommended to the Justice 
Department that they take action.
    I think we just had another investigation on boot camps 
where a young person died in a boot camp, and it was not 
properly investigated. The FBI has now taken that again under a 
criminal investigation. There is a point at which we say----
    Mr. Sessions. So it is a certain point.
    Mr. Miller. Well, let me finish the answer. There is a 
point at which we make a decision that this now has moved 
beyond us. And we send our material, our evidence, our letter 
of transmittal, our reasons why to, in this case, I should say 
the Justice Department, for their action.
    Mr. Sessions. Okay. Do you believe that in any way, and I 
know we have had some conversations here about precedent-
setting circumstances, that this is going to lead us into 
getting into things that happened in colleges where there are 
shootings or Columbines or things like that?
    Mr. Miller. I have no way of knowing that.
    Mr. Sessions. You have no way of knowing that.
    Mr. Miller. I am sorry, I don't know if you were here. I 
happen to believe--I don't want to get trapped here.
    I happen to believe that this authority resides under these 
kinds of conditions between the majority and minority in 
committees of jurisdiction, with legislative jurisdiction over 
these programs. I just think that is part of our oversight. The 
Congress hasn't done that. I respect that, and that is why we 
are here.
    Mr. Sessions. This Member, notwithstanding what any other 
Member thinks, this Member believes it is true what was said 
here, there is no shortage in the number and scope of 
inquiries, that if the Department of Labor, State of Utah are 
engaged in this issue, and that I would really prefer to have 
the committee, just maybe myself, to be able to offer some 
evaluation as a result of professionals who would go in and 
look at and do their own investigation and then for you to 
grill those people after they have completed their 
investigation. That would be my own personal take on this.
    I believe there is a sense that I have--a sense that I have 
that there may be some criminal element that is engaged here, 
not just mine safety, rather willful misconduct or other things 
which could take place.
    I think the committee is ill prepared, not only that it 
lacks the jurisdiction, in my opinion, to even accurately see 
the bigger picture in that.
    So my point would be I would like to see you not do that. 
Let them go and investigate it. Once it is all over go grill 
whoever you would like to go grill. I think, in my opinion, we 
are not a professional organization that is prepared to 
understand criminal law.
    I yield back.
    The Chairwoman. Thank you.
    Mr. Cardoza.
    Mr. Cardoza. I don't have any questions.
    The Chairwoman. Mr. Welch.
    Mr. Welch. I have no questions, but I certainly support the 
use of the committee having the tools it needs to the oversight 
and the Congress to do what the Congress has the ability to do.
    The Chairwoman. Ms. Castor.
    Ms. Castor. I want to thank you gentlemen, with all of the 
items on your agenda, all of the national policies, the. 
Education and Labor initiatives, your landmark college aid 
package you passed this year. For you to say we are not going 
to give up on this investigation is an important commitment to 
these families and to the American people who really want you 
to get to the bottom of this terrible tragedy at the mine.
    I thought the memo from Mr. Halstead was very well written. 
Of course the memo recognizes, of course, as I do, the 
preponderance of authority and expansion of the Congress and 
the oversight, and that includes the ability of the committees 
to conduct depositions and, of course, issue subpoenas.
    I thought the memo was very thoughtful and did detail that 
since 1974 this has been done at least 10 times. So I support 
the rule change and wish you luck with the investigation.
    The Chairwoman. Mr. Arcuri.
    Mr. Arcuri. Thank you.
    Gentlemen, thank you very much for being here. I think that 
you are actually right to be delving into this area. I mean, 
most prosecutors welcome other agencies looking into issues. I 
mean, all they hope for is that the other agency recognized the 
fact that there is the possibility that there may be criminal 
investigation as well.
    Certainly, I think you can't abdicate our responsibility as 
Congress of looking into something, because, frankly no 
criminal agency, no criminal office, no prosecutor's office, no 
criminal agency may look into this. Then the people who look 
into this, the people who may have done something improper will 
not receive the thorough review that is so needed by this.
    So I think from a prosecutorial, a prosecution perspective, 
your actions are welcome.
    Mr. Miller. I would just say, that is an interesting point 
you just raised. We did an investigation of these boot camps 
where kids are taken out and sort of given some form of tough 
love, but it is a real problem. A young person died, wasn't a 
resident of the State, wasn't a resident of the county. The 
corporation was from another State, the State had no laws.
    They looked at that and they said this person died of 
natural causes. When the GAG went in and looked, and the 
Inspector General went in and looked at the autopsy and the 
amount of abuse this young person received, they said, no, that 
is not what happened here.
    Now that is under a full criminal investigation because 
nobody else really had any stake in the game, tragically so. 
For a considerable period of time, it was just a closed case, 
and that has changed. That would not have happened without this 
investigation.
    Mr. Arcuri. I will take it a step further. I think by doing 
what you are doing you are actually aiding potential 
prosecutions, if, again, that is what is necessary--because you 
will be doing fact finding, you will be uncovering, perhaps, 
issues that may not otherwise get uncovered and eventually get 
you a prosecutor. It will be very beneficial. So I say that.
    The second point I wanted to make that I think is 
important, obviously, in terms of doing depositions, anybody 
can do a deposition. The problem with doing a good deposition 
is that you need to have expertise into the background of 
what's going on. Clearly, your committee has that expertise.
    You know, there is no substitute for being able to know 
that a person you are asking a question of is not telling you 
the truth or not giving you all the facts clearly. Your 
committee coming down around and being part of the jurisdiction 
is clearly beneficial in terms of looking into it. I think that 
you doing it in this limited area is really putting the first 
team in and essentially basically helping us get to the bottom 
of it.
    So I commend it. I support it, and I thank you both for 
your consideration.
    The Chairwoman. Ms. Sutton.
    Ms. Sutton. Thank you, Madam Chairman. I wholeheartedly 
support what you are doing, briefing, regulations have been 
pulled back. This Congress has a distinct, a distinct 
responsibility to provide accountability and oversight so that 
we can prevent this from happening ever again.
    Mr. Miller. Thank you.
    The Chairwoman. I thank you both. This is very personal to 
me as well. I was born in the coal fields of Kentucky.
    I think the most distressing thing I heard here was that 
family members of mine victims had not been allowed to testify. 
I hope that wasn't because benefits were not tied to that. That 
really is an appalling thing which I would like to know about.
    If this leads to criminal charges, so be it. People die 
here in a mine where they may not have needed to be in the 
first place.
    I thank you very much. I think after 12 years of no 
investigation in this House people are afraid of it. Wherever 
it leads, it should be done.
    Mr. Miller. I think Mr. McKeon and I are both committed to 
the idea that we want to get to the end of this story. He has 
been very supportive of this effort. I don't want my passion to 
suggest that somehow people haven't been cooperative. This has 
all gone very well to date.
    The Chairwoman. Yes, indeed, thank you.
    Mr. Miller. Thank you.
    The Chairwoman. You are welcome. Now I am happy to call 
T.J. Halstead, Legislative Attorney of Congressional Research.
    Without objection, Mr. Halstead, your full statement will 
appear in the Record, and we will welcome your summary, if you 
will give us one. Thanks for being here.

      STATEMENT OF T. J. HALSTEAD, LEGISLATIVE ATTORNEY, 
                 CONGRESSIONAL RESEARCH SERVICE

    Mr. Halstead. Thank you, Members of the committee. I thank 
you for inviting me to testify today regarding the committee's 
consideration of H. Res. 836, which would imbue, as you heard, 
the House Committee on Education and Labor with the authority 
to adopt a rule authorizing and regulating the taking of 
depositions by a member or counsel of the Committee on 
Education and Labor relating to the committee's ongoing 
investigation into the tragedy that occurred last August at the 
Crandall Canyon Mine. .
    The mechanics of deposition practice are similar in the 
judicial, executive, and legislative context, but I think it is 
essential to analyze the vesting of staff deposition authority 
in relation to point constitutional authority that Congress 
possesses in the oversight context.
    A long line of Supreme Court precedent establishes 
Congress' power to engage in oversight and investigation of any 
matter related to its legislative function, to the extent that 
it is unremarkable, I think, to state that the Supreme Court 
has held conclusively that congressional and investigatory 
power is so essential that it is implicit in the general 
vesting of legislative power in the Congress.
    Viewed in light of that expansive power, I don't think 
there is any discernible basis upon which it can be 
successfully argued that Congress lacks the ability to 
authorize staff depositions.
    I think this conclusion is supported by the fact that 
deposition authority has factored prominently in an increasing 
number of significant congressional investigations since the 
Watergate era. For instance, in a report accompanying a 1997 
resolution granting deposition authority to the Committee on 
Government Reform and Oversight, this committee observed that 
the House had granted deposition authority in at least 10 major 
investigations since 1974.
    I have laid this information out more specifically in my 
prepared statement, but there are several additional stamps 
dating from the 1970s to today where deposition authority has 
been granted pursuant to Senate and House resolution----
    Ms. Castor. Would the gentleman yield for just one moment? 
Did I misspeak? Was it the Government and Oversight Reform 
Committee?
    Mr. Halstead. No. For instance, in 1977--that I referenced 
in my paper, that was pertaining to a specific investigation 
regarding campaign finance, campaign finance improprieties in 
the report accompanying the resolution that this committee 
passed granting that authority to the House Government 
Oversight and Reform Committee. The report noted at least 10 
instances where authority had been given as a general matter.
    The Chairwoman. It was part of the packet?
    Mr. Halstead. And there are, again, numerous additional 
examples where that authority has been granted pursuant to 
either a Senate or a House Resolution. This authority has been 
extended in the current Congress, for instance, to the Senate 
Committee on Homeland Security and Governmental Affairs, as 
well as to the House Committee on Oversight and Government 
Reform. And as Congressman Dreier alerted earlier, that is a 
bit of a distinction there because it is a general authority 
vested in the Oversight Committee that had not been done 
previously. And as you well know, the resolution before the 
committee today would simply extend the House Oversight 
Committee's deposition authority to the Committee on Education 
and Labor with the restriction that it be applied specifically 
to the Crandall Canyon investigation.
    In light of those factors, I think it is evident that there 
is ample support for the proposition that Congress may delegate 
this deposition authority to its committees and staff. But as 
has been mentioned earlier, the committee may also wish to 
consider practical and legal factors that may affect the 
exercise of deposition authority. It has been argued in the 
past that staff depositions may circumvent the traditional 
committee process that consists of hearings and informal 
interviews, and can impact the rights of deponents and restrict 
the role of the minority in the investigative process.
    Furthermore, to the extent that the current proposal 
contemplates inquiries into the administration of relevant laws 
by government agencies, including the Department of Labor and 
the Mine Safety and Health Administration, executive agencies 
may raise legal, constitutional, and policy objections to the 
attendance of agency officials at those depositions. However, 
in many instances depositions can serve as a desirable 
alternative to a hearing, since they can enable a committee to 
obtain information that it needs quickly and confidentially, 
and without the logistical constraints that often impede robust 
oversight activity in the traditional hearing context. This 
factor ameliorates the burden imposed by conducting field 
hearings that require the presence of members, and may be of 
particular utility in the current scenario given the logistical 
and investigative difficulties imposed by conducting a 
traditional hearing-based Congressional oversight inquiry into 
a mine disaster in the State of Utah. Finally, the efficacy of 
the staff deposition process appears to have been enhanced by 
congressional action taken over the past 10 years that 
emphasizes that criminal sanctions pertaining to the 
obstruction of a congressional investigation into the making of 
false statements applied during the taking of depositions.
    Ultimately, the House's action on this issue will 
necessarily hinge upon a determination as to whether the 
potential benefits of vesting staff deposition authority in the 
committee outweigh the perceived risks to traditional oversight 
practice.
    Madam Chairman, I will conclude my statement there. The 
Congressional Research Service stands ready to assist the 
committee in its consideration of any of these issues, and I 
would be happy to answer any questions that you or the members 
of the committee may have.
    [The prepared statement of Mr. Halstead follows:]

Prepared Statement of T.J. Halstead, Legislative Attorney, American Law 
                Division, Congressional Research Service

    Madam Chairman and Members of the Committee: My name is T.J. 
Halstead. I am a Legislative Attorney with the American Law Division of 
the Congressional Research Service at the Library of Congress, and I 
thank you for inviting me to testify today regarding the Committee's 
consideration of H. Res. 836.\1\
---------------------------------------------------------------------------
    \1\ H. Res. 836, 110th Cong., 1st Sess. (2007).
---------------------------------------------------------------------------
    H. Res. 836 would imbue the House Committee on Education and Labor 
with the authority to adopt a rule authorizing and regulating the 
taking of depositions by a Member or counsel of the Committee in 
furtherance of the Committee's investigation into the deaths of nine 
individuals that occurred in August 2007 at the Crandall Canyon Mine 
near Huntington, Utah. H. Res. 836 would authorize such depositions to 
be taken pursuant to a subpoena issued in accordance with the Rules of 
the House of Representatives, and would also authorize the Committee to 
provide that a deponent be directed to subscribe an oath or affirmation 
as administered by an authorized individual. The resolution under 
consideration would accomplish this by extending to the Committee by 
reference the authority that is currently exercised by the House 
Committee on Oversight and Government Reform pursuant to clause 4(c)(3) 
of rule X of the Rules of the House of Representatives.
    Generally speaking, a deposition is a pre-trial discovery device 
commonly used in litigation that typically involves the oral 
questioning of a witness (the deponent) by an attorney for one party, 
outside the courtroom, and out of public view. A deposition is taken 
following notice to the deponent, and is sometimes accompanied by a 
subpoena. The deposition testimony is given under oath or affirmation 
and a transcript is made and authenticated. While the mechanics of 
deposition practice are similar in the judicial and legislative 
spheres, the vesting of deposition authority in a Committee and its 
staff is best analyzed in relation to the exercise of oversight 
authority by Congress generally. While there is no definitive 
constitutional or statutory provision imbuing Congress with oversight 
authority, a long line of Supreme Court precedent establishes Congress' 
power to engage in oversight and investigation of any matter related to 
its legislative function.\2\ Unless there is a countervailing 
constitutional privilege or a self-imposed statutory restriction upon 
its authority, Congress and its committees possess the essentially 
unfettered power to compel necessary information from executive 
agencies, private persons and organizations. Indeed, even though the 
Constitution does not contain any express provision authorizing 
Congress to conduct investigations and take testimony in support of its 
legislative functions, the Supreme Court has held conclusively that 
congressional investigatory power is so essential that it is implicit 
in the general vesting of legislative power in the Congress.\3\
---------------------------------------------------------------------------
    \2\ For a thorough analysis of legal principles governing 
congressional oversight, See Morton Rosenberg, Investigative Oversight: 
An Introduction to the Law, Practice and Procedure of Congressional 
Inquiry, Congressional Research Service Report No. 95-464A, April 7, 
1995.
    \3\ E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v. 
United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 
U.S. 109 (1959); Eastland v. United States Servicemen's Fund, 421 U.S. 
491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425 
(1977); See also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir. 
1976) and 567 F.2d 1212 (D.C. Cir. 1977).
---------------------------------------------------------------------------
    In Eastland v. United States Serviceman's Fund, for instance, the 
Court stated that the ``scope of its power of inquiry . . . is as 
penetrating and far-reaching as the potential power to enact and 
appropriate under the Constitution.'' \4\ Also, in Watkins v. United 
States, the Court emphasized that the ``power of the Congress to 
conduct investigations is inherent in the legislative process. That 
power is broad. It encompasses inquiries concerning the administration 
of existing laws as well as proposed or possibly needed statutes.'' \5\
---------------------------------------------------------------------------
    \4\ 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at 
111).
    \5\ 354 U.S. at 187.
---------------------------------------------------------------------------
    Viewed in light of the expansive power possessed by Congress in the 
oversight context, there is no discernible basis upon which it may be 
argued that Congress lacks the ability to authorize the procurement of 
information through means short of a formal hearing, including through 
the conduct of a deposition.\6\ Likewise, there would not appear to be 
any support for the proposition that the investigatory prerogatives of 
Congress do not extend to authorizing the conduct of such depositions 
by congressional staff.\7\
---------------------------------------------------------------------------
    \6\ The courts have upheld another alternative to a congressional 
hearing, statutes requiring the filing of information with 
administrative agencies, on the ground that they are an exercise of the 
legislative power to obtain information. See Electric Bond & Share Co. 
v. SEC, 303 U.S. 419 (1938) (upholding statutory provision requiring 
public utility holding companies to register with SEC); United States 
v. Rappeport, 36 F. Supp. 915 (S.D.N.Y.), aff'd sub nom. United States 
v. Herling, 120 F.2d 236 (2nd Cir. 1941). There is also specific 
statutory recognition of the use of depositions in congressional 
probes. In 1978, Congress granted the District Court for the District 
of Columbia original jurisdiction over civil actions brought by the 
Senate to enforce process issued by the Senate, including Senate 
subpoenas to respond to depositions. See, e.g., 28 U.S.C. Sec. 1365.
    \7\ In light of the fact that staff can conduct interviews (see 
United States v. Weissman, 1996 U.S. Dist. LEXIS 19125 (S.D.N.Y. Dec. 
19, 1996)) and pose questions at hearings (see House Rule XI, cl. 
2(j)(2)(C)), then it would seem that they can be permitted to take 
depositions. The Supreme Court has recognized, in a decision extending 
constitutional immunity under the speech or debate clause to 
congressional staff, that ``the day-to-day work of such aides is so 
critical to Members' performance that they must be treated as the 
latter's alter egos. . . .'' Gravel v. United States, 408 U.S. 606, 
616-17 (1972) (emphasis added). The value of the information elicited 
at a deposition is not diminished by the fact that it is obtained by 
staff since, presumably, a transcript of the deposition will be 
available for Members of the committee to read. Cf. Christoffel v. 
United States, 338 U.S. 84, 91 (1949) (Jackson, J., dissenting).
---------------------------------------------------------------------------
    This conclusion is buttressed by the fact that deposition authority 
has factored prominently in an increasing number of significant 
congressional investigations over the last thirty years. One of the 
early investigations to make extensive use of this authority was the 
Senate's 1980 probe of the relationship between President Carter's 
brother, Billy Carter, and Libya, in which thirty-five depositions were 
taken.\8\ Additionally, approximately 250 sworn depositions were taken 
by committee counsel and/or one or more Members of Congress under 
authority vested in the House and Senate committees that investigated 
the Iran-Contra affair.\9\ Moreover, in a report accompanying a 1997 
resolution granting deposition authority to the Committee on Government 
Reform and Oversight for purposes of its investigation of alleged 
political fund-raising improprieties, this Committee observed that the 
House had granted deposition authority in ``at least 10 major 
investigations'' since 1974.\10\
---------------------------------------------------------------------------
    \8\ See, ``Inquiry into the Matter of Billy Carter and Libya: 
Hearings before the Subcommittee to Investigate the Activities of 
Individuals Representing the Interests of Foreign Governments of the 
Senate Judiciary Committee,'' 96th Cong., 2nd Sess., Vol. III (App.) at 
1741 (1980).
    \9\ S. Rept. 100-216, 100th Cong., 1st Sess. at xiv, 685 (1987).
    \10\ H. Rept. 105-139, 105th Cong., 1st Sess. 12 (1997).
---------------------------------------------------------------------------
    Regarding authorization for staff depositions, it is generally 
conceded that ``committee staff may take depositions only if the 
committee is given that authority by its parent house.'' \11\ Apart 
from the authorization extended to the House Committee on Oversight and 
Government Reform pursuant to clause 4(c)(3) of rule X, neither house 
of Congress has rules that specifically authorize staff depositions. 
However, as noted above, such specific authority has been granted 
pursuant to Senate and House resolutions on a number of occasions. Such 
authority has likewise been extended, for instance, to the Senate 
Committee on Homeland Security and Governmental Affairs.\12\ Numerous 
other examples of such authorizations may be found in a Congressional 
Research Service report entitled ``Staff Depositions in Congressional 
Investigations.'' \13\ When vested with such authority, a committee 
will normally adopt procedures for the taking of depositions, including 
provisions for notice (with or without a subpoena), transcription of 
the Deposition, the right to be accompanied by counsel, and the manner 
in which objections to questions are to be resolved. The House 
Committee on Oversight and Government Reform has adopted such 
procedures in relation to the authority extended to it by clause 
4(c)(3) of rule X.\14\
---------------------------------------------------------------------------
    \11\ John C. Grabow, ``Congressional Investigations: Law and 
Practice, Sec.  3.3 (1988). It should be noted that both the Senate and 
the House have previously asserted that standing committees possessed 
the authority to conduct staff depositions in certain investigations 
despite the absence of an authorizing resolution. See, e.g., S. Res. 
495, Sec. 3 96th Cong. (1980) (stating in a provision granting 
deposition authority that ``this resolution shall supplement without 
limiting in any way the existing authority of Senate committees and 
subcommittees to conduct examinations and depositions.'' (emphasis 
added)); See also, H. Rept. 104-472 at 12, 104th Cong. (1996) (stating, 
with regard to a resolution granting staff deposition authority to the 
House Committee on Government Reform and Oversight, that nothing 
``shall be construed as undermining or reversing procedural precedents 
established in the course of past congressional investigations. . . . 
[T]he committee is aware that, in the past, sworn testimony has been 
taken from witnesses [at staff depositions] in the absence of a 
specific resolution authorizing the taking of such statements.'').
    \12\ See S. Res. 89, 110th Cong., 1st Sess. Sec. 11(e)(3)(E) 
(2007).
    \13\ Jay R. Shampansky, ``Staff Depositions in Congressional 
Investigations,'' Congressional Research Service, Report No. 95-949A 
(1999).
    \14\ See House Committee on Oversight and Government Reform, 
Committee Rules and Jurisdiction, Rule 22 (available at [http://
oversight.house.gov/rules/]).
---------------------------------------------------------------------------
    From the above analysis, it is evident that there is ample 
precedent for the proposition that Congress may delegate deposition 
authority to its committees and staff. However, the Committee may wish 
to consider several factors, both legal and pragmatic, that adhere to 
the vesting of deposition authority in committees and staff. From one 
perspective, staff deposition may be seen as affording a number of 
significant advantages for committees engaged in complex 
investigations.
    For instance, the imprimatur conveyed by such delegated authority 
may encourage a more rapid and robust response to general staff 
requests for information. Additionally, the actual conduct of such 
depositions may enable committee staff to obtain relevant information 
quickly and confidentially, without the necessity of Members devoting 
time to lengthy hearings that may be unproductive because witnesses do 
not have the facts needed by the committee, or refuse to cooperate. 
Depositions are conducted in private and may be more conducive to 
candid responses than would be the case at a public hearing.\15\ 
Statements made by witnesses that might defame or even tend to 
incriminate third parties can be verified before they are repeated in 
an open hearing. Depositions can likewise prepare a committee for the 
questioning of witnesses at a formal hearing and may also serve as a 
screening mechanism to filter witnesses who do not possess pertinent 
information. The deposition process may also serve to obviate the time 
and resource constraints that impede full utilization of the formal 
hearing process, and enables the questioning of witnesses outside of 
Washington, D.C. This factor ameliorates the burden imposed by 
conducting field hearings that require the presence of Members, and may 
be of particular utility in the current scenario, given the logistical 
and investigative difficulties posed by conducting a traditional 
hearing-based congressional oversight inquiry into a mine disaster in 
Utah. Finally, the efficacy of the staff deposition process would 
appear to be enhanced by congressional action emphasizing that criminal 
sanctions pertaining to the making of false statements apply during the 
taking of depositions.\16\
---------------------------------------------------------------------------
    \15\ Committee staff engaged in the taking of depositions may wish 
to consider the issues adhering to grants of immunity by Congress. See 
Frederick M. Kaiser, et al., ``Congressional Oversight Manual,'' 
Congressional Research Service, Report No. RL30240 (2007).
    \16\ See, e.g., 18 U.S.C. Sec. 1001 and the False Statements 
Accountability Act of 1996, P.L. 104-292, where Congress acted in 
response to the Supreme Court's decision in Hubbard v. United States, 
514 U.S. 695 (1995) (which held that 18 U.S.C. 1001 applied only to 
false statements made in executive branch department and agency 
proceedings).
---------------------------------------------------------------------------
    Conversely, it has been argued that staff depositions may 
``circumvent the traditional committee process'' (i.e., hearings and 
informal staff interviews) and, depending on the terms of the 
resolution authorizing such depositions and related committee 
procedural rules, compromise the rights of deponents and restrict the 
role of the minority in the investigative process.\17\ Furthermore, to 
the extent that the current proposal contemplates inquiries ``into the 
administration of relevant laws by government agencies, including the 
Department of Labor and the Mine Safety and Health Administration,'' 
executive agencies may raise legal, constitutional, and policy 
objections to the attendance of agency officials at staff 
depositions.\18\ Finally, from a practical perspective, it might be 
argued that staff depositions present a ``cold record'' of witness 
testimony that might not be as useful to Members as in person 
investigations. The Congressional Research Service stands ready to 
assist the Committee in its consideration of any of the aforementioned 
issues.
---------------------------------------------------------------------------
    \17\ H. Rept. 105-139, supra note 3, at 20-26 (minority views).
    \18\ See Shampansky, n.13, supra, at 2. Depending on the issues and 
personnel implicated, a host of issues ranging from executive privilege 
to separation of powers concerns might be raised. For example, the 
Final Report of the Select Subcommittee to Investigate the U.S. Role in 
Iranian Arms Transfers to Croatia and Bosnia (``The Iranian Green Light 
Subcommittee''), 104th Cong., 2nd Sess. 44-64 (1996) [hereinafter, The 
Iranian Green Light Subcommittee Report], illustrates the potential for 
such conflict in the staff deposition context. Agencies cooperated to 
some extent with the efforts of the Iranian Green Light Subcommittee to 
obtain deposition testimony. The Department of Defense made agency 
personnel (with the exception of the Secretary of Defense) available 
for subcommittee depositions (id. at 50) while the Department of State 
questioned the authority of the subcommittee to take depositions from 
``principals'' (the Secretary, Deputy Secretary, and Undersecretary) 
(id. at 54). The White House asserted that the President's deliberative 
process (executive privilege) would be infringed by efforts of the 
subcommittee to obtain deposition testimony from senior National 
Security Council staff. Id. at 55-57. Executive privilege was asserted 
``on dozens of occasions in depositions'' taken by the House Committee 
on Government Reform and Oversight in its investigation of the White 
House Travel Office firings and related matters. H. Rept. 104-849, 
104th Cong., 2d Sess. 178 (1996). Compromise between the branches in a 
controversy over executive compliance with a congressional request for 
attendance at a staff deposition may be possible. Alternatives to a 
staff deposition may include an interview (distinguished from a 
deposition by the absence of an oath and a transcript) and a briefing 
of Members by senior executive branch officials. The Iranian Green 
Light Subcommittee Report, supra, at 55, 57.
---------------------------------------------------------------------------
    Madam Chairman, that concludes my prepared statement. I would be 
happy to answer any questions that you or other Members of the 
Committee might have, and I look forward to working with all Members 
and staff of the Committee on this issue in the future.

    The Chairwoman. Thank you, Mr. Halstead. That was very 
helpful. I appreciate it very much, and the efforts and time 
you put in to come here today.
    Mr. Halstead. My pleasure.
    The Chairwoman. Mr. McGovern.
    Mr. McGovern. I, too, would like to say thank you for your 
very comprehensive statement. If I am understanding your 
statement correctly here, there is nothing that we are doing 
here that is unprecedented. The courts have ruled that this 
authority does, in fact, appropriately rest with Congress in 
certain cases, and that nothing we are doing here is 
threatening or undermining the institution. And so the case 
that Mr. Miller has made, and I think, you know, which I find 
is a compelling case, in my opinion, justifies us supporting 
this resolution. And I thank you very much.
    Mr. Halstead. You are welcome.
    The Chairwoman. Mr. Hastings.
    Mr. Hastings of Washington. Thank you, Madam Chair, and 
thank you, Mr. Halstead, for being here. Just, first did I hear 
or understand in your testimony that this authority was first 
vested to the Congress and ultimately sustained by the courts 
in the Watergate hearings?
    Mr. Halstead. Well, it is beginning in the Watergate era 
that you see an increasing utilization of this mechanism. There 
is actually no record when it was first employed. We have not 
been able to identify that. There is a long history, 
particularly in internal administrative matters of the 
Congress, of deposition authority being utilized.
    Mr. Hastings of Washington. I just wanted to get a sense 
because I don't think there is any argument, frankly on any 
side, that this authority does not exist within the Congress. 
The question is as a matter of degree and how that is used. And 
my friend from Massachusetts said that there is nothing 
unprecedented about this. And I would just ask the question to 
say is there any precedent in the past that you could find 
where deposition authority was given carte blanche to a 
committee in the standing rules of the House?
    Mr. Halstead. That has been a recent development with the 
110th Congress.
    Mr. Hastings of Washington. So there is no precedent before 
the 110th Congress?
    Mr. Halstead. Right. To my knowledge from my research has 
not revealed a prior instance where the type of authority that 
the House Committee on Oversight and Government Reform and the 
Senate Committee on Homeland Security and Governmental Affairs 
now possess by virtue----
    The Chairwoman. Would the gentleman yield?
    Mr. Hastings of Washington. I would be happy to yield.
    The Chairwoman. I probably misunderstood what you said. My 
understanding was you said that was not an unprecedented act, 
and had been given to other committees in the rules package.
    Mr. Halstead. Oh, I am sorry. No, generally speaking, they 
are ad hoc resolutions that are committed----
    The Chairwoman. As needed.
    Mr. Halstead [continuing]. As needed, There are, however, 
examples on the Senate side, I believe, of the Permanent Select 
Committee on Intelligence and the Senate Committee on Aging 
that have had long-standing staff deposition authority. It is 
not specifically referenced in the rules package itself, but it 
has been I believe for the Committee on Aging it was first 
adopted in the 70s, late 1977, '78. And they do exercise that 
authority to this day.
    The Chairwoman. Thank you. I did misunderstand. Thank you 
for yielding, Mr. Hastings.
    Mr. Hastings of Washington. You are welcome. I just wanted 
to make the point nobody really argues that CRS can't go back 
and find out specifically when it started, but if the 
escalation was post-Watergate it would only be logical, I 
guess, to assume that if it were done in the standing 
committees before that would be easier to find. So this--we 
really are setting a precedent, have set a precedent in this 
Congress by giving at least one standing committee that 
authority in the House rules.
    Mr. Halstead. I would say with regard to the House of 
Representatives that is----
    Mr. Hastings of Washington. That is all we are worrying 
about. Sometimes we reference the other body and sometimes not 
in nice ways, so I am only focusing on what I am saying here on 
the House of Representatives. Okay. Well, I again, the concern 
that we have, part of the concern we have is that we are glad 
this is focused as narrowly as the ranking member has 
suggested, but we have a little bit of a caution on how it is 
being used, given the precedent in this Congress of 
establishing that for a standing committee. So I thank you for 
clarifying that.
    Mr. Halstead. You are quite welcome.
    The Chairwoman. Ms. Matsui.
    Ms. Matsui. Thank you, Madam Chair. I have no questions. I 
just want to thank you very much for testifying.
    Mr. Halstead. Thank you.
    The Chairwoman. Mr. Sessions.
    Mr. Sessions. Thank you, Madam Chairman. Mr. Halstead, 
thank you so much for your comprehensive brief and you being 
here with us today. Mr. Halstead, have civil lawsuits been 
struck in this case?
    Mr. Halstead. I am sorry, regarding----
    Mr. Sessions. Are there civil lawsuits that exist in this 
case?
    Mr. Halstead. Pertaining to the mine investigation?
    Mr. Sessions. Yes.
    Mr. Halstead. As I say, I am not privy to the mine 
investigation itself. I am focusing specifically on the 
institutional issues of staff deposition authority. So I would 
have to plead ignorance on that point.
    Mr. Sessions. Has this extensive, comprehensive brief that 
you have done and this background investigation, has there ever 
been a circumstance where it dealt with where Congress decided 
to get in what I would say pretty up front, as opposed to 
behind, receiving information from others that may do an 
investigation, but not out on-site, just of the people who--the 
investigators where there was a civil lawsuit involved?
    Mr. Halstead. Again, not to my knowledge. But I would be 
happy to do some follow-up research to try to identify. It 
wouldn't surprise me if that would be the case, but I am not 
aware off the top of my head of that being of any particular 
instance.
    Mr. Sessions. The documents that might be yielded as a 
result of this investigation is there any privacy related to 
those, or are all of those just open to anyone who would want 
to see them----
    Mr. Halstead. Well, Congress itself can ensure a degree of 
privacy should it in its negotiation in the receipt of 
testimony.
    Mr. Sessions [continuing]. Should it choose to?
    Mr. Halstead. Uh-huh.
    Mr. Sessions. But there is no real--is there any----
    Mr. Halstead. Not that I am aware of as a prophylactic 
matter.
    Mr. Sessions. Typically speaking, where there are 
interviews that would take place by let us say a congressional 
investigator, are those typically available to people?
    Mr. Halstead. It is really something that is done on an ad 
hoc basis. The House Committee on Oversight and Government 
Reform, for instance, on their Web site, has made available a 
deposition that they conducted, I believe, in June of 2007 with 
an official from, I believe the Executive Office of the 
President. I am drawing a blank on the name. It may be Julie 
Stone, something of that nature. So it has been done on 
occasion, but there are certainly many instances where the 
information would not be released.
    Mr. Sessions. In your comprehensive analysis, have you 
discovered any sort of a code of ethics that would be required 
for an investigation by an oversight committee in this case, 
oversight, as it related to discussions with other legal 
counsel, for instance, perhaps someone that filed a civil 
lawsuit where they would or would not be included in or receive 
information? Or is there a code of ethics related to the 
investigators? Or can they talk to the media, can they talk to 
anybody that is perhaps considering a lawsuit or----
    Mr. Halstead. As a fundamental matter, the authority that 
has been given to the House Committee on Oversight and 
Government Reform under rule 10 and that will be extended in 
the Committee on Education and Labor is limited to the taking 
of depositions by members and staff that are counsel. So by 
incorporation that would extend for committee staff who are 
counsel, they would be fully covered by the bar rules of their 
particular State.
    Mr. Sessions. In this case, would they be under a court? 
Because all lawyers are, wherever they are licensed, they are 
part of a court, responsible to a court. Is there any 
responsibility under their legal duties, these lawyers, to be 
under the jurisdiction, supervision or adherence to any court 
structure, in this case I assume which would be Utah?
    Mr. Halstead. It would raise an interesting question, 
actually, as to whether or not the State of Utah would consider 
the staff depositions being conducted at that locus to qualify 
as the practice of law in the State of Utah. I would think as a 
fundamental matter the interpretation that would prevail would 
be that a state level restriction of that nature could not 
serve to trump a congressional investigation.
    Mr. Sessions. In this case, would you assume that a Federal 
district court that might have jurisdiction would at some point 
have jurisdiction, or are we under our constitutional duties of 
the first branch of government immune to that?
    Mr. Halstead. Yeah, I would be--I think it would be 
exceptional for a court to try to involve itself in a 
congressional investigation.
    Mr. Sessions. So in other words, a court might, if they 
felt some need to become engaged, they would simply look at our 
rules and make sure we followed our rules, the internal ethical 
standards or procedures that had been established.
    Mr. Halstead. Potentially. I would be hard pressed to 
conceive of a situation that would arise where something of 
that nature would become justifiable.
    Mr. Sessions. I could think of one real quickly. And that 
is that you have civil lawsuits that have been filed and civil 
people went and talked to the lawyers about the investigation.
    Mr. Halstead. Yeah, there is certainly----
    Mr. Sessions. I can do that in half a second. I am 
surprised that you didn't think of that.
    Mr. Halstead. No, there are numerous instances that can 
arise as a practical matter regarding the impact the 
congressional investigation can have, both on civil lawsuits 
and certainly on criminal investigations as well. Congress, 
should it so desire, can essentially destroy a criminal 
investigation through the granting of immunity.
    Mr. Sessions. Right. As has been stated. So you believe 
then that inasmuch as the application of this to the committee, 
that we would be giving two lawyers, which is a higher standard 
in my opinion, and I think you would say that, too, because you 
have been versed in the law as opposed to investigation, that 
you would understand a tight set of circumstances by which you 
are operating to gain information to offer immunity, to do 
those kinds of things as opposed to a wide open game. So you 
think we would go out with those careful set of understandings 
about what we were trying to do.
    Mr. Halstead. Yeah, I think that the committee staff are 
certainly professional staff, and certainly Congress itself can 
monitor to ensure that they are behaving and operating in an 
appropriate fashion.
    Mr. Sessions. Okay. I guess the last question I have is, is 
there any responsibility to ask for or share in information 
that would be considered criminal that would be outside the 
scope of what you think they would be granted?
    Mr. Halstead. Under this resolution?
    Mr. Sessions. Yes.
    Mr. Halstead. No, I don't see any limitation that would 
prevent them from inquiring to that end.
    Mr. Sessions. So in other words it is not, you are saying 
it is not a well-crafted, careful, cautious, well-understood. 
You are saying they have full authority to branch out. However, 
they would be lawyers and bound by whatever.
    Mr. Halstead. Right. And that would be similar not in the 
staff deposition context, but, for instance, with regard to 
Chairman Burton's investigation into misconduct of the Boston 
FBI field office. That was another example of a congressional 
investigation----
    Mr. Sessions. Is that where the FBI had----
    Mr. Halstead. Yes.
    Mr. Sessions [continuing]. Lied to and coerced----
    Mr. Halstead. Right. I believe that led to the first 
invocation of executive privilege by the Bush administration, 
that was then ultimately withdrawn.
    Mr. Sessions. Yes.
    Mr. Halstead. But certainly there is always that potential. 
And it is incumbent upon entities that are engaged in these 
types of investigations to operate in a responsible fashion.
    Mr. Sessions. I want to thank you for being here today and 
for taking your time. And I appreciate the gentlewoman's 
extended time to me.
    Mr. Halstead. You are quite welcome.
    The Chairwoman. Mr. Welch.
    Mr. Welch. No questions, thank you.
    Ms. Castor. No questions, thank you.
    The Chairwoman. Mr. Arcuri.
    Mr. Arcuri. Just a couple questions. One is the actions 
that the Congress will be taking would in no way violate any 
double jeopardy problems in Utah. Is that correct?
    Mr. Halstead. I would be hard pressed, again, to really 
conceive of that. You know, Congress's power again in this 
context is quite expansive.
    Mr. Arcuri. This person would be able to be tried for any 
criminal matter in the State of Utah. There would be no double 
jeopardy problems as a result of the hearings that are going 
on. Is that correct?
    Mr. Halstead. I wouldn't think so.
    Mr. Arcuri. And there is no authority here to give Congress 
any conferral of immunity authority or make any conferral of 
immunity.
    Mr. Halstead. Not within this particular resolution. There 
are standards in place at a general level that apply to the 
granting of immunity.
    Mr. Arcuri. Right. It would be use immunity, though, right? 
Which means the person would still be able to be prosecuted?
    Mr. Halstead. That would be one of the options available, 
certainly.
    Mr. Arcuri. Thank You. Nothing further.
    Ms. Sutton. I have no questions, thank you.
    The Chairwoman. Mr. Halstead, we thank you very much for 
your time and for your statement. It was very helpful to us.
    Mr. Halstead. Thank you. You are quite welcome.
    The Chairwoman. That will end the hearing portion of this 
matter. We will proceed to the original jurisdictional markup 
of H. Res. 836, and the Chair will be in receipt of a motion.
    Mr. McGovern. Madam Chair, I move that the committee 
favorably report House Resolution 836, granting the authority 
provided under clause 4(c)(3) of rule 10 of the Rules of the 
House of Representatives to the Committee on Education and 
Labor for purposes of its investigation into the deaths of nine 
individuals that occurred at the Crandall Canyon mine near 
Huntington, Utah.
    The Chairwoman. Thank you, Mr. McGovern. You have heard the 
motion of the gentleman from Massachusetts. Are there any 
amendments?
    Mr. Dreier. Madam Chair, I would just like to ask Mr. 
McGovern to repeat the motion and read it a little more loudly.
    The Chairwoman. Mr. McGovern is indisposed somewhat.
    Mr. Dreier. That is the reason I asked.
    The Chairwoman. Can he pass to me?
    Mr. Dreier. That is good. We have no amendments, Madam 
Chair.
    The Chairwoman. In that case we will proceed to the 
question. All in favor say aye. Aye. All opposed, no. In the 
opinion of the Chair the ayes have it. It will be carried for 
the majority by me.
    Mr. Dreier. And Madam Chair, I am scheduled to do this, and 
I would like to state for the record we do have minority views 
that we would like to have incorporated.
    The Chairwoman. Absolutely. Without objection. The Rules 
Committee stands adjourned. Thank you all very much.
    [Whereupon, at 3:17 p.m., the committee was adjourned.]

                                  
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