[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
OBSTRUCTION OF JUSTICE: DOES THE JUSTICE DEPARTMENT HAVE TO RESPOND TO 
          A LAWFULLY ISSUED AND VALID CONGRESSIONAL SUBPOENA?

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



                                HEARING

                               before the

                         COMMITTEE ON OVERSIGHT
                         AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 13, 2011

                               __________

                           Serial No. 112-61

                               __________

Printed for the use of the Committee on Oversight and Government Reform


         Available via the World Wide Web: http://www.fdsys.gov
                      http://www.house.gov/reform



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              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                 DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana                  ELIJAH E. CUMMINGS, Maryland, 
JOHN L. MICA, Florida                    Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania    EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio              CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina   ELEANOR HOLMES NORTON, District of 
JIM JORDAN, Ohio                         Columbia
JASON CHAFFETZ, Utah                 DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida                 JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan                WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma             STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan               JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York          GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona               MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho              DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania         BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee          PETER WELCH, Vermont
JOE WALSH, Illinois                  JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina           CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida              JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania

                   Lawrence J. Brady, Staff Director
                John D. Cuaderes, Deputy Staff Director
                     Robert Borden, General Counsel
                       Linda A. Good, Chief Clerk
                 David Rapallo, Minority Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 13, 2011....................................     1
Statement of:
    Rosenberg, Morton, fellow, the Constitution Project; Todd B. 
      Tatelman, legislative attorney, American Law Division, 
      Congressional Research Service; Louis Fisher, scholar in 
      residence, the Constitution Project; and Charles Tiefer, 
      Commissioner, Commission on Wartime Contracting............     8
        Fisher, Louis............................................    44
        Rosenberg, Morton........................................     8
        Tatelman, Todd B.........................................    28
        Tiefer, Charles..........................................    56
Letters, statements, etc., submitted for the record by:
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............     6
    Fisher, Louis, scholar in residence, the Constitution 
      Project, prepared statement of.............................    46
    Issa, Hon. Darrell E., a Representative in Congress from the 
      State of California, prepared statement of the Department 
      of Justice.................................................    91
    Rosenberg, Morton, fellow, the Constitution Project, prepared 
      statement of...............................................    11
    Tatelman, Todd B., legislative attorney, American Law 
      Division, Congressional Research Service, prepared 
      statement of...............................................    31
    Tiefer, Charles, Commissioner, Commission on Wartime 
      Contracting, prepared statement of.........................    58


OBSTRUCTION OF JUSTICE: DOES THE JUSTICE DEPARTMENT HAVE TO RESPOND TO 
          A LAWFULLY ISSUED AND VALID CONGRESSIONAL SUBPOENA?

                              ----------                              


                         MONDAY, JUNE 13, 2011

                          House of Representatives,
              Committee on Oversight and Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 1 p.m., in room 
2154, Rayburn House Office Building, Hon. Darrell E. Issa 
(chairman of the committee) presiding.
    Present: Representatives Issa, Chaffetz, Lankford, Amash, 
Buerkle, Cummings, and Connolly.
    Staff present: Michael R. Bebeau, assistant clerk; Richard 
A. Beutel, senior counsel; Robert Borden, general counsel; 
Molly Boyl, parliamentarian; Lawrence J. Brady, staff director; 
Steve Castor, chief counsel, investigations; John Cuaderes, 
deputy staff director; Carlton Davis, Jean Humbrecht, Jessica 
L. Laux, and Jonathan J. Skladany, counsels; Adam P. Fromm, 
director of Member services and committee operations; Justin 
LoFranco, deputy director of digital strategy; Mark D. Marin, 
senior professional staff member; Ashok M. Pinto, deputy chief 
counsel, investigations; Laura L. Rush, deputy chief clerk; 
Rebecca Watkins, press secretary; Ashley Etienne, minority 
director of communications; Jennifer Hoffman, minority press 
secretary; Carla Hultberg, minority chief clerk; Justin Kim, 
Donald Sherman, and Carlos Uriarte, minority counsels; Chris 
Knauer, minority senior investigator; Lucinda Lessley, minority 
policy director; Leah Perry, minority chief oversight counsel; 
Dave Rapallo, minority staff director; and Susanne Sachsman 
Grooms, minority chief counsel.
    Chairman Issa. The committee will come to order.
    Today's hearing is on, ``Obstruction of Justice: Does the 
Justice Department Have to Respond to a Lawfully Issued and 
Valid Congressional Subpoena?''
    The Oversight Committee mission statement is: We exist to 
secure two fundamental principles. First, Americans have a 
right to know that the money Washington takes from them is 
well-spent. And, second, Americans deserve an efficient, 
effective government that works for them. Our duty on the 
Oversight and Government Reform Committee is to protect these 
rights. Our solemn responsibility is to hold government 
accountable to taxpayers, because taxpayers have a right to 
know what they get from their government. We will work 
tirelessly, in partnership with citizen watchdogs, to deliver 
the facts to the American people and bring genuine reform to 
the bureaucracy.
    Today's hearing, in specific, is on the question of the 
powers and execution between the co-equal branches of 
government and the constitutional role of Congress to maintain 
a check on the executive branch.
    As the principal investigative committee of the U.S. House 
of Representatives, this committee serves to protect the right 
of the American people to know what their government is doing. 
The compulsory authority of this committee is an essential tool 
of transparency and accountability of the Federal bureaucracy. 
Without it, the executive branch would be free from any 
oversight, shielded from the vigilant eye of the American 
people and their elected representatives, and prone to more 
waste, more fraud, and more abuse than the Nation has ever 
seen.
    No administration, not the last one I served under nor this 
one, likes congressional oversight. And we often are accused of 
doing it for partisan reasons or because of a particular 
administration. For the most part, we do it because 
administrations come and go but the bureaucracy goes on and 
outlasts any President and any Cabinet officer.
    Every administration needs oversight. This administration 
has had more money and more challenges to deal with that are 
fiscal in nature than most. However, the checks and balances on 
the Constitution are, to a great extent, what we are dealing 
with here today.
    The administration has not yet come to recognize the role 
that this committee plays in preserving the rule of law, 
eliminating waste and fraud and abuse in the Federal 
Government. The U.S. Supreme Court has long held that the power 
of the Congress to conduct the investigations is inherent in 
the legislative process. Moreover, the Court has recognized 
that this power is broad.
    Since first learning of the controversial program Operation 
Fast and Furious, I have worked closely with Senator Chuck 
Grassley to get to the bottom of the strategy by the Federal 
Bureau of Alcohol, Tobacco, and Firearms to allow heavy-duty 
arms to traffic into the hands of Mexican drug cartels. ATF 
field agents opposed this reckless program, which has been 
responsible for the deaths of innocent civilians in Mexico and 
even responsible for the death of a 40-year-old Border Patrol 
agent named Brian Terry.
    Together with Senator Grassley, I have sent 16 letters to 
Department of Justice and ATF requesting information on this 
program. After giving the administration enough time to respond 
to a formal request, it has become clear that the compulsory 
process was needed. On March 31st, I authorized a subpoena for 
material documents needed to conduct thorough investigations 
into this matter. To date, the administration has provided only 
a handful of documents, all of which--I repeat, all of which--
were already publicly available on the Internet, while 
withholding those that provide real answers.
    Our committee was asked whether we would come for an in-
camera interview--or, in-camera observation of additional 
documents. We went, only to find out that those documents were 
so redacted as to be useless, even for in-camera review.
    Since that time, as many as 31 Democratic Members of 
Congress have expressed their serious concerns about the 
administration's response to this committee's investigation. 
These Members noted that ``the American people deserve prompt 
and complete answers to the questions surrounding this 
operation.'' Moreover, these Democratic Members do not believe 
that the DOJ investigation should ``curtail the ability of 
Congress to fulfill its oversight duties.''
    Today's hearing is not--I repeat, not--about the facts of 
the Fast and Furious program. On Wednesday, the committee will 
have ample opportunity to hear about the program and how it has 
affected the lives of people living on both sides of our shared 
Mexican border. Rather, today's hearing is about a 
constitutional question: It is about whether the administration 
is legally bound to respond to a lawfully issued and valid 
congressional subpoena.
    To obstruct a congressional investigation in this way is a 
serious matter. This is not the first administration to flirt 
with this breach of the public trust, and it will probably not 
be the last. But on our watch--and this is our watch--this 
Congress will not shrink from its constitutional responsibility 
and this committee will leverage every power at its disposal to 
enforce the rule of law.
    Today's witnesses will help the committee as we wade 
through the constitutional waters, and I look forward to a 
vigorous debate among our Members.
    I might note that this hearing is one of the most important 
because it may in fact be the one that sets the course for 
whether we work together on a bipartisan fashion to do our 
constitutional obligations of oversight.
    With that, I recognize the ranking member for his opening 
statement.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    And I welcome our panel of distinguished witnesses.
    And we have a valuable opportunity today to examine not 
only Congress' authority to conduct investigations but also the 
historical precedent of committees in exercising that 
authority.
    Today's hearing is being held in the broader context of 
investigations currently being conducted by two different 
branches of government. On one hand, the Department of Justice 
is prosecuting dozens of individuals in Federal court, 
including defendants accused of murdering Border Patrol Agent 
Brian Terry in Arizona on December the 14th, as well as 20 
other defendants indicted for firearms trafficking and other 
crimes involving international drug cartels. On the other hand, 
in March, this committee launched an investigation into 
allegations that mismanagement and abuse in ATF gun-trafficking 
investigations may have enabled some of the same crimes.
    The allegations made to date are very troubling, and new 
information we obtained raises additional concerns about the 
role of various actors involved in these incidents. I believe 
that the executive branch and Congress can and must achieve 
both of these objectives. The Department's interest in 
prosecuting these crimes and the committee's interest in 
investigating the management of ATF programs are not--and I 
repeat, are not--mutually exclusively.
    I am particularly mindful that Agent Terry's family has 
lost someone they held very dear. They deserve not only for the 
killers and gun traffickers to be brought to justice after the 
fact, but they also deserve direct and straightforward answers 
from their government about whether more could have been done 
to prevent his murder.
    To answer the question posed by the title of today's 
hearing, yes--and I repeat, yes--I do believe the Department 
must respond to the committee's subpoena, even though it was 
issued unilaterally without committee debate only 15 days after 
the chairman's original request for documents. I believe this 
committee has both the authority and the ability to play a 
constructive role in investigating these matters.
    But there is a second question the hearing title should 
have posed: Does the committee have an obligation--and I want 
the witnesses to listen to me carefully--to proceed responsibly 
to avoid irreparable damage to ongoing prosecutions? Again, I 
believe the answer to that question is ``yes.''
    Historically, Congress has taken great care to ensure that 
its investigations do not harm ongoing criminal cases. In most 
instances, committees have tailored the scope of their 
inquiries to avoid impairing open cases. Committees have been 
meticulous in providing the Department with opportunities to 
warn them if information they obtain is under seal, relates to 
grand-jury information, identifies cooperating witnesses, may 
endanger someone's safety, or would impair ongoing criminal 
investigations if released publicly. And I hope the witnesses 
will address that question also.
    No member of this committee wants to risk compromising 
criminal prosecutions involving alleged murderers and gun 
traffickers for international drug cartels. That is why these 
types of reasonable accommodations protect not only the 
integrity of the criminal investigation but the integrity of 
the committee. Reckless disclosures could complicate a trial 
and cast a cloud over the committee's current and future 
investigations. I believe that both the executive branch and 
Congress have an obligation to help the other achieve their 
constitutional responsibilities rather than manufacturing 
unnecessary conflict.
    For the benefit of our witnesses, let me note that the 
Department has now asserted executive privilege--has not 
asserted executive privilege to withhold documents to date. It 
has produced or made available for review more than 1,300 
pages, some public and some not.
    The Department and the committee have agreed on search 
terms for electronic searches of responsive e-mails, which are 
now being conducted for 19 officials approved by our committee 
staff. Last week, the committee conducted a 6-hour interview of 
the special agent in charge of ATF's Phoenix office, and we 
have scheduled an interview of his supervisor, the ATF deputy 
assistant director. These actions demonstrate good faith.
    At the same time, the Department has expressed serious and 
legitimate concerns about the scope of the documents 
encompassed by Chairman Issa's subpoena, including records that 
identify individuals who are assisting in the investigation, 
that identify sources and investigative techniques, that 
present risks to individuals' safety, and that prematurely 
inform subjects and targets about our investigation in a matter 
that permits them to evade and obstruct our prosecutorial 
efforts.
    Finally, it is in this area that the committee stands to 
benefit most from the expertise of our witnesses. I look 
forward to hearing about the ways other committees have 
conducted their investigations to obtain the information they 
needed while accommodating the Department's legitimate 
interests.
    And I trust that our panelists will not only address the 
first question but address the second question, too, that I 
just posed. Thank you.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]
[GRAPHIC] [TIFF OMITTED] 70820.001

[GRAPHIC] [TIFF OMITTED] 70820.002

    Chairman Issa. I thank the ranking member.
    All Members will have 7 days to submit opening statements 
and extraneous material for the record.
    We now recognize our panel of witnesses.
    Mr. Morton Rosenberg is a fellow at The Constitution 
Project here in Washington, DC.
    Mr. Todd Tatelman is a legislative attorney in the 
Congressional Research Service American Law Division. He is 
certainly someone we rely on constantly.
    Mr. Louis Fisher is a specialist in constitutional law at 
the Law Library of the Library of Congress.
    I am sorry. Mr. Fisher, did I get something wrong?
    Mr. Fisher. Yeah, I retired about a year ago. I am with The 
Constitution Project also.
    Chairman Issa. OK, you are with The Constitution Project. 
But your tenure at the Library of Congress is also appreciated, 
even if slightly in the rearview mirror.
    And Professor Charles Tiefer is a Commissioner serving on 
the Commission on Wartime Contracting, along with our former 
member, Mr. Shays, I gather.
    Gentlemen, you will all have 5 minutes each, plus or minus, 
and then we will have a round of questioning.
    Pursuant to the committee rules, all witnesses here are to 
be sworn. Would you please rise to take the oath and raise your 
right hands?
    [Witnesses sworn.]
    Mr. Issa. Let the record reflect that all witnesses 
answered in the affirmative.
    Again, we don't have an extremely busy dais here, although 
we may have many more Members flying in in the next few 
minutes. So try to summarize your written statements in 5 
minutes. Understand that your entire written statement will be 
put into the record.
    We first recognize Mr. Rosenberg for 5 minutes.

   STATEMENTS OF MORTON ROSENBERG, FELLOW, THE CONSTITUTION 
 PROJECT; TODD B. TATELMAN, LEGISLATIVE ATTORNEY, AMERICAN LAW 
DIVISION, CONGRESSIONAL RESEARCH SERVICE; LOUIS FISHER, SCHOLAR 
  IN RESIDENCE, THE CONSTITUTION PROJECT; AND CHARLES TIEFER, 
        COMMISSIONER, COMMISSION ON WARTIME CONTRACTING

                 STATEMENT OF MORTON ROSENBERG

    Mr. Rosenberg. Mr. Chairman, members of the committee, I 
want to thank you for affording me the opportunity of appearing 
here today to talk about these important and interesting 
issues.
    A little over 9 years ago, I appeared here with my friend 
and fellow panelist, Charles Tiefer, when this committee was 
successfully investigating the bizarre cover-up of over 20 
murders by informants with the knowledge of their FBI handlers 
and the likely acquiescence of their FBI and Department of 
Justice superiors. That case, to get into Mr. Cummings' 
question, involved open investigations that were going on at 
that particular time.
    Charles remarked to me before today's hearing that the 
committee could have saved a lot of time and effort by playing 
a video of the 2002 hearing. But, as I will briefly detail, 
though our conclusions with respect to what we found in 2002 
are the same--that law and history require the Justice 
Department to comply with your lawfully issued and valid 
subpoenas--there are differences here that need to be thought 
about and perhaps addressed.
    I have a sense that is expressed by--I am sorry--that was 
expressed by Conan Doyle's Sherlock Holmes in ``The Hound of 
the Baskervilles'' that there is a dog here that has not yet 
barked.
    When I first began working in this area in the mid-1970's, 
the mere threat of a subpoena was usually sufficient to get 
compliance. The only exception was when the target was a 
Cabinet-level official, and that tended to require a subpoena 
followed by a threat of a contempt citation and, sometimes, a 
subcommittee vote on contempt.
    When the executive pushback began in the early 1970's, the 
investigative world changed. A subpoena became virtually always 
necessary, and threats and actual votes of subpoenas were 
frequent and were countered by direct executive claims of 
Presidential privilege. By 2008, there had been 12 votes of 
contempt against Cabinet-level officials, 3 by votes in the 
full House.
    All ultimately resulted in substantial and complete 
compliance with congressional informational demands, and all 
relied on the established caselaw on investigative authority, 
starting with McGrain v. Daugherty, which dealt with the 
Justice Department, and Sinclair v. The United States, which 
also dealt with the important question--and settled the 
important question, I think--that an ongoing Department of 
Justice trial doesn't stop Congress from getting witnesses to 
talk.
    But the true key to those successes was evidenced in the 
will of those investigating committees--an aspect of inquiry 
that may be severely tested in this and in future 
investigations. One of the differences that I have alluded to 
is that, in 2002, the President expressly asserted executive 
privilege. But the rationale given for invoking the privilege 
then was exactly the same as is now being urged by DOJ: the 
longstanding policy of the Department that it never shares 
information with congressional committees about open or closed, 
criminal or civil litigation or investigations because either 
it would undermine the independence and effectiveness of its 
law enforcement mission; damage by pre-trial publicity; reveal 
identities of informants; disclosing government strategies, 
methods, and operational weaknesses; chilling the exercise of 
prosecutorial discretion by DOJ attorneys; and, most important, 
interfering with the President's constitutional duty to 
faithfully execute the laws.
    To me, that is the same dress with a different coat. They 
are setting up a possible claim that is very interesting. But I 
will get to that. That is the dog.
    A second difference is that the law respecting executive 
privilege, and more particularly the Presidential 
communications privilege, has dramatically changed over the 
last 15 or 20 years. As I indicated in my written testimony, 
the Supreme Court's 1988 ruling in Morrison v. Olson cast a 
significant doubt as to whether prosecutorial discretion was a 
core Presidential power over which executive privilege may be 
asserted.
    And that doubt was magnified by two D.C. Court of Appeals 
opinions dealing with Espy and Judicial Watch in 1997 and 2004. 
Taken together with previous High Court decisions, it is now 
the law of the circuit most likely to rule on privilege 
disputes that an assertion of Presidential communications 
privilege will be held to be limited to the quintessential 
power and nondelegation of Presidential power, and those are 
the core functions in the Constitution. And one of the core 
functions is not prosecutorial discretion.
    The third difference emanates from the important 2008 
District Court ruling in House Judiciary Committee v. Miers. 
That case arose out of the removal and replacement of nine U.S. 
attorneys in 2006. White House Counsel Harriet Miers and Chief 
of Staff Josh Bolton were subpoenaed by the committee for 
testimony and documents, but, at the direction of the 
President, they refused to comply and were ordered not to even 
appear on the return date, on the ground that the claim of 
privilege by the President gave them absolute immunity from 
committee process.
    Both were held in contempt of Congress, but the Attorney 
General ordered the U.S. attorney not to present the citation 
to a grand jury, as is required by the congressional contempt 
statute. By resolution of this House, the committee filed a 
civil enforcement action. The Department of Justice contested 
the validity of the authorizing resolution and defended the 
notion of absolute immunity. The court upheld the validity of 
the authorizing resolution, finding that the longstanding 
Supreme Court recognition of implied power to investigate and 
to compel production of information included an implied cause 
of action to redress the institutional injury caused by the 
depravation of the information that was being sought. It also 
rejected out of hand the absolute immunity claim of the 
President.
    The Miers case, I believe, is the dog that hasn't barked. 
It is a two-edged sword. While it recognizes the House's right 
to seek judicial assistance to vindicate its constitutionally 
based institutional right to secure information from the 
Executive and refutes the notion that the President can cloak a 
subordinate official with absolute immunity from the compulsory 
process, it leaves open the door for Executive judicialization 
of the congressional subpoena enforcement power.
    Current DOJ dogma is that it is unconstitutional for either 
house of Congress to use the criminal contempt statute or the 
inherent contempt power to punish Presidential appointees for 
following Presidential orders to withhold information from 
Congress.
    DOJ currently has the potential power to string out your 
investigation, to refuse to obey it, and then, when the time 
for contempt comes, can say, ``No, you can't go to court for 
criminal contempt; you can't use inherent contempt power. All 
you can do is to bring a civil action.'' And a civil action 
will extend and delay your constitutional ability to enforce 
what the caselaw and what the many examples that we have shown, 
you know, in our papers about your powers.
    [The prepared statement of Mr. Rosenberg follows:]
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    [GRAPHIC] [TIFF OMITTED] 70820.019
    
    Chairman Issa. Thank you.
    Mr. Tatelman.

                 STATEMENT OF TODD B. TATELMAN

    Mr. Tatelman. Thank you, Mr. Chairman and Ranking Member 
Cummings. I appreciate the opportunity for CRS to be invited 
here to testify. And, on behalf of that institution, we thank 
you for all of the work that you do for us, and we hope that we 
can continue to be of service to the committee as we move 
forward.
    Like my colleague, or former colleague, Mort Rosenberg, I 
want to focus a little bit more on sort of the traditional 
history and sort of lay the groundwork for the congressional 
prerogative here and the constitutional basis for the power 
that the committee is asserting to exercise.
    It is important to note--and I think that all of our 
written testimonies do so note--that there is a long and 
consistent practice of legislative oversight of the other 
branches of government, be they either executive branches or, 
in some cases, judicial branch in oversight of the courts. That 
history goes all the way back to the British Parliament and 
rights of the Parliament against the Crown. It was confirmed 
and further practiced by the various colonial legislatures in 
the pre-constitutional era. The early Congresses made 
absolutely no hesitation--and I will go through an example here 
in a moment--about their ability to conduct extensive inquiry 
and oversight into actions of the executive branch.
    State courts and, ultimately, the U.S. Supreme Court have 
consistently and overwhelmingly affirmed Congress' 
constitutional authority to conduct almost exclusive oversight 
of the executive branch, broad oversight of private persons and 
parties, and investigations into any and all areas in which 
Congress feels there is a legitimate legislative purpose.
    Probably the best and most persuasive example that I can 
find for you is, in fact, Congress' own actions early on during 
the constitutional era. Back in 1792, the Second Congress 
instituted an investigation and started an inquiry to determine 
the cause of more than a thousand American casualties in the 
Ohio Valley at the hand of some Indian tribes, involving the 
actions of Major General Arthur St. Clair and his military 
exploits in that era.
    Initially after Congress found out about the issue, there 
was a motion on the floor of the House of Representatives to 
pass a resolution calling for the President or the executive 
branch to conduct the inquiry into St. Clair's defeat all on 
its own. This was completely rejected by a floor vote on the 
House of 35 to 21.
    A second motion was subsequently filed to create a select 
committee of Members of the House of Representatives and to 
vest that committee with the power to call for all persons, 
papers, and records as may be necessary to assist the committee 
in its inquiries. This resolution passed 44 to 10, with 
luminaries such as James Madison both voting against the 
Presidential investigation and for the formation of a 
congressional select committee.
    What is even more interesting, however, and more of note 
and relevant here is the response that they got from the 
executive branch, which also included many Framers and Founders 
who had been present at the Constitutional Convention, 
including President Washington and then-Secretary of the 
Treasury Alexander Hamilton. According to notes from Thomas 
Jefferson, after the committee was formed and sent its inquiry 
to Secretary of War Henry Knox asking for the Presidential 
papers related to St. Clair's expedition, the Cabinet met in 
President Washington's study and agreed that the House had a 
legitimate right and interest in both conducting the inquiry 
and in requesting the papers and documents.
    They also agreed that the information should be given over 
to the Congress unless there would be injury to the public, and 
absent a showing of that injury to the public, the documents 
were to be disclosed. And, in fact, several days later, Mr. 
Knox made the documents available to the committee.
    I think what is most relevant and important about this 
early example is not only the participation of those who helped 
draft the founding documents that attorneys and specialists in 
the Constitution like this panel are currently interpreting 
today, but also the consistency with which all of the people, 
whether they be in the Congress or in the executive branch, 
viewed the House's prerogative to both create the committee of 
inquiry, demand the papers, and receive them from the executive 
branch, who obviously had a vested interest in performing its 
own investigation of the events that had occurred.
    I want to briefly jump forward about 200 years, or a little 
less than 200 years, to McGrain v. Daugherty, which is, as Mort 
mentioned, the seminal case that sets forth the Supreme Court's 
opinion of Congress' oversight and investigatory power. Now, as 
most of you probably are aware, McGrain v. Daugherty was 
ultimately a spinoff of what was then the Teapot Dome 
investigation into the oil leases that the executive branch was 
engaged in. Specifically, it was an investigation into then-
Attorney General Daugherty's failure to prosecute and bring 
certain causes of action against various people who had 
participated in that scandal.
    There was a committee subpoena to one Mally Daugherty, who 
was the Attorney General's brother. He was located in Ohio as 
president of a bank out there. He ultimately was subpoenaed 
both to appear before the Senate and testify as well as to 
provide records and papers. He refused and remained in Ohio. 
The Congress passed a resolution issuing a warrant for his 
arrest and that he be brought before the bar of the Senate for 
an inherent contempt trial.
    When he was arrested in Ohio, he immediately applied for a 
writ of habeas corpus from a district court in Cincinnati. That 
writ was granted and subsequently appealed by the U.S. 
Government to the Supreme Court. The Supreme Court reversed 
unanimously and described, as Chairman Issa quoted, the power 
of inquiry of Congress as, ``an essential and appropriate 
auxiliary to the legislative function.''
    McGrain's rationale and theory has been picked up and cited 
extensively by Supreme Courts since then. Courts such as the 
Supreme Court in Watkins v. The United States said, ``The power 
of 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.''
    Moreover, in 1975, the Supreme Court in a case called 
Eastland v. United States Servicemen's Fund, again relying on 
the precedent set by McGrain and ultimately Sinclair and 
Watkins, said, ``The scope of Congress' power of inquiry is as 
penetrating, as far-reaching as the power to enact and 
appropriate funds under the Constitution.''
    In sum, Mr. Chairman and Mr. Ranking Member, there is very 
little question that Congress' constitutional authority vested 
under Article I is sufficiently broad to encompass the inquiry 
that the committee is trying to seek. That is not to say, 
however, that Congress' power is unlimited or not subject to 
certain constraints. The question really is whether or not any 
of those constraints are legally based or politically based.
    Legally based constraints would include, say, for example, 
the power not to conduct unlawful searches and seizures, or 
require that people at the direction of this House, such as the 
Capitol Police or the Sergeant at Arms, engage in violations of 
the Fourth Amendment. Another example would be compelling 
witness testimony when it might be contrary to their Fifth 
Amendment rights against self-incrimination. And yet a third 
legal possibility would be a legitimate and valid claim of 
Executive privilege, or Presidential communications privilege, 
which the Court in United States v. Nixon in 1973 recognized as 
constitutionally based.
    On the other side of that coin are the concerns Ranking 
Member Cummings raised, which I term as ``political,'' which is 
not to say they are illegitimate, but meaning they are not 
legally or constitutionally based, which gets into questions 
such as whether or not this is a responsible course of action 
or whether or not the committee has any sort of an interest in 
seeing the prosecution successfully completed or not 
interfering with the Justice Department's internal 
investigations or processes.
    Those are completely legitimate questions for this 
committee to consider, but they are ultimately for this 
committee to determine whether or not they are proper or proper 
exercises of this committee's power. The Constitution makes no 
such limitations or restrictions and places no such limitations 
or requirements that Congress overcome those. Merely, those are 
left for the political branches to negotiate and work out 
amongst themselves.
    And, with that, I will turn it over to my panelists.
    [The prepared statement of Mr. Tatelman follows:]
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    Chairman Issa. Thank you.
    Mr. Fisher.

                   STATEMENT OF LOUIS FISHER

    Mr. Fisher. Thank you very much. It is a very important 
hearing to explore this.
    When committees ask for documents from the administration, 
they are typically told initially that you can't have them; it 
is part of the ``deliberative process,'' it is part of the 
``active litigation file,'' it has do with either pending or 
ongoing investigations. That is just the opening statement by 
the administration. And, as you know, at that time it all falls 
back to the committee as to how determined you are of your 
understanding of your constitutional duties.
    I refer in my statement to a study in 1949 by an attorney 
who worked at the Justice Department who said that when 
Congress and the administration collide, the administration 
prevails every time. Of course, that wasn't true in 1949 or 
before or after. It is much more complicated, and you have to 
have each branch understand its limits and each understand its 
duties.
    I think a much better explanation of what Congress can get 
through its constitutional duties comes from another attorney 
who worked at the Justice Department, and his name, Antonin 
Scalia. And he testified in 1975 before a Senate committee, and 
at that time he was the head of the Office of Legal Counsel. 
And he said--and I think his words are quite good--that when 
there is an impasse between the two branches--his language--the 
answer is likely to lie in the hurly burly, the give and take 
of the political process between the legislative and executive. 
Then he said, when it comes to an impasse, the Congress has the 
means at its disposal to have its will prevail.
    Now, on these clashes, it may be tempting to think that 
there is a winner and a loser. I think when Congress does not 
push its constitutional powers and gets the document it needs 
for a thorough investigation that there is a loser, and the 
loser is the public, its constitutional government, and the 
system of checks and balances.
    In 1982, President Reagan, I think, set a good framework 
for these document fights. He said, ``Historically, good-faith 
negotiations between Congress and the executive branch have 
minimized the need for invoking executive privilege. And this 
tradition of accommodation should continue as the primary means 
of resolving conflicts between the branches.''
    At present time, you have a subpoena, and, as you said in 
your opening statement, a subpoena is not satisfied when you 
have to have committee staff travel to the Justice Department 
to sit in camera and look at documents that are heavily 
redacted. There is no way the committee can satisfy its 
constitutional duties.
    In 1981, Attorney General William French Smith said that, 
when Congress is going after documents, it has a better chance 
of getting it when it is pursuant to legislation rather than 
pursuant to oversight. I don't think there is anything to that 
distinction at all. You have as much right to oversee the laws 
as you do to enact them. And if there is anything to that 
distinction, every time you do an oversight hearing you could 
just introduce legislation. So it doesn't make any sense to me.
    As far as getting access to documents in cases of ongoing 
criminal investigations, Mort talked about the FBI corruption 
case that was on that. My statement goes into a good deal of 
detail into the Inslaw matter--again, active criminal 
investigations, and Congress got the documents it needed.
    Finally, your success in getting documents I think depends 
a lot on bipartisan support. A committee acting in a bipartisan 
manner is much stronger. In this case, I think it is even 
stronger when the two chambers of Congress are after the same 
documents.
    If you do not get the documents you want, there is always 
the next step, after subpoena is not satisfied, to go toward 
contempt. And my statement gives a lot of examples where that 
has come about in the past. And through the contempt procedure, 
Congress can get the information it needs to satisfy its 
constitutional duties.
    Thank you very much.
    [The prepared statement of Mr. Fisher follows:]
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    Chairman Issa. Thank you.
    Professor Tiefer.

                  STATEMENT OF CHARLES TIEFER

    Mr. Tiefer. Thank you, Mr. Chairman and ranking minority 
member.
    For 15 years, I was counsel to Congress--4 years as 
assistant Senate legal counsel and 11 years as deputy general 
counsel and general counsel in the House of Representatives. 
During that time, I worked on a very large number of 
investigations like this of the Justice Department or of 
enforcement agencies, and I reviewed the extensive history that 
my colleagues at the panel have talked about. I want to briefly 
point out the similarities of those instances before focusing 
on today.
    In 2002, as Mort Rosenberg has described, I gave full-
length written and oral testimony to this committee about a 
similar issue during the Bush administration involving an FBI 
informant program. And, as was laid out in my full-length memo 
at that time, which I am including as an appendix to my 
testimony today, this showed that this particular committee has 
the full right to obtain the documents it needs for oversight 
over enforcement programs, then FBI, today ATF.
    In 1992, I worked with a House subcommittee investigating 
the Rocky Flats matter. That was a grand-jury matter. And the 
same extreme arguments made by the Justice Department, that 
Congress can't go anywhere near grand-jury investigations, were 
raised then, and the committee succeeded, nevertheless, in 
getting the evidence that it sought.
    In 1987, I was special deputy chief counsel on the House 
Iran-Contra Committee. And I want to point out some 
similarities of the arguments raised today and then, points 
that were correctly raised by Mr. Cummings--and I will talk 
about the two sides, both that these are not arguments that 
disable the committee from going ahead, merely that call for it 
to follow an orderly process, as it is following today and as 
it should follow down the road.
    Were there cooperating witnesses at that time who were 
called before congressional committees after deliberation? Yes. 
Robert McFarlane, former national security advisor, a co-
conspirator of Oliver North and John Poindexter, who were the 
key defendants, was called and questioned, even with the risk 
that would create lines of his testimony that could be used to 
say, ``Look, he is saying one thing in one place and a 
different things another place.''
    Was there a possibility that the congressional 
investigation could endanger ongoing investigations or could 
complicate the trial? Absolutely. Oliver North was called as a 
witness. John Poindexter was called as a witness. They were 
shown the documents that would be used against them. They were 
shown the most persuasive arguments and most persuasive 
questions, the most persuasive things that could be used to 
show that they had engaged in illegal conspiracy. And, in a 
way, they got a preliminary view of what the trial would 
consist for them.
    I would say that doesn't mean one drives roughshod over the 
Justice Department. One starts, as this committee is doing 
today and as its predecessors have done, as I have testified--
and, for that matter, 30 years ago when I was just starting in 
this business, I came to a House subcommittee and heard people 
who are the age that I am now talk about Watergate and the 
struggles they had had during Watergate with getting evidence. 
So it is a live progression. It is not just in books up on the 
shelf with dust on them. It is live committee chairmen dealing 
with real issues like the ones you have today.
    What is the way the Justice Department should make its 
points? Well, first of all, it should provide most of the 
important documents. It doesn't start by withholding; it starts 
by providing.
    Second, for anything that it doesn't deliver right off the 
bat, it should issue an invitation for them to be viewed by 
Members and staff. I heard the chairman describe that an 
inadequate invitation had been made, heavily redacted documents 
under circumstances that couldn't be viewed. That is not the 
right way to proceed.
    And, finally, if they do say, ``We are going to withhold 
some documents because they are highly prejudicial in a 
concrete way to an open case,'' then they have to provide a 
privilege log so that the committee, itself, can decide what 
should be withheld. I might say that, during the recent 
litigation over the U.S. attorneys' terminations in the 
previous administration, one of the arguments that prevailed in 
court on behalf of the congressional inquiry was that the 
administration had not provided that privilege log. A document-
withholding claim is not valid unless a privilege log is 
provided.
    And I thank the committee.
    [The prepared statement of Mr. Tiefer follows:]
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    Chairman Issa. Thank you.
    And I recognize myself for 5 minutes to get started here.
    Professor Tiefer, you mentioned Ollie North and Iran-
Contra. In Iran-Contra, Ollie North was a participant in the 
Iran-Contra and ultimately was charged, convicted, and then 
overturned, to a certain extent because of congressional 
activity, meaning we, the Congress, granted some partial 
immunity; that immunity led to a decision that the inevitable 
discovery wasn't met, that discovery was based on, if you will, 
his testimony.
    Is that roughly your understanding?
    Mr. Tiefer. That is well-stated, Mr. Chairman.
    Chairman Issa. So this would be a classic example of what 
we have to avoid. We must avoid providing immunity to somebody 
that we believe is guilty of a crime unless we understand right 
off the bat that immunity is essential to further discovery and 
that this individual is, by definition, not the perpetrator. 
The worst thing to do is to get the kingpin and let them off. 
And I am not trying to disparage Colonel North, but it does 
appear as though he was, to a great extent, at the center, 
ultimately the target, and he got off.
    Well, to that extent, let's get to the current case, even 
though all of you were talking in great terms of Watergate and 
Teapot Dome and all of which I have reviewed in preparation for 
today. In this case, if I understand correctly, Fast and 
Furious starts off with charges against a murderer who shot and 
killed Brian Terry and the people involved.
    The weapons happened to have been weapons that were allowed 
to walk under Fast and Furious, is there any conceivable way, 
if we are not talking to the murder suspects or people 
involved, that we are touching that investigation? Do you 
believe that we are, by not looking at that at all but rather 
looking at the actions of high-ranking Federal officials, 
mostly here in Washington at ATF and Justice, that we in any 
way are close to allowing a murderer of a law enforcement agent 
to walk?
    If you see--and I am not asking you to see something that 
isn't there. But do you see any way that we are--or any line 
that we shouldn't cross in relation to that, since we don't 
intend to?
    Mr. Fisher.
    Mr. Fisher. Yeah, I think you can conduct your 
investigation without going across that line.
    I just wanted to add on Iran-Contra, Charles and I were on 
the House Iran-Contra Committee. And the independent counsel at 
the time met with us, and he certainly--going through the 
prosecution, and he said that Congress, as a co-equal body, has 
a right to conduct an investigation even if it complicated his 
prosecution. So that is the constitutional judgment by the 
prosecutor at that time.
    Chairman Issa. OK. Well, one thing that I can assure the 
Members on the dais is, I want the people involved in killing 
Brian Terry to be tried and convicted. I do not want to in any 
way come anywhere close to that. And that is something I will 
be communicating steadily to Justice.
    On the other hand, what I would like the questions answered 
here, it has become this committee's view that the decision 
process leading to many of the actions taken under Fast and 
Furious well above the level of the Phoenix district office or 
the U.S. attorney there is, in fact, what we believe is flawed, 
ill-conceived, and potentially covered up. And that is what we 
are investigating.
    That would seem to be the question for all of you, and I 
want to get your answer. They have asserted that, you know, we 
are in the way of some meth addicts who got $200 a gun who are 
being charged and a murderer, and they are saying that our 
investigation of their decision process in Fast and Furious--we 
are talking about officials here in Washington involved--that 
the two are connected.
    Do you see any connection, Mr. Rosenberg?
    Mr. Rosenberg. No. I think that what you are doing is 
looking at their strategies, their methods, their operational 
weaknesses. And this is well within the investigative authority 
of committees. That is what they are supposed to do. You fund 
these programs, empower them to do those sorts of things. And 
what you are looking at now is right in the wheelhouse of 
McGrain. Look at how they defined, you know, what it was that 
was being looked at and what was appropriate: how they were 
operating, what decisions they made, were the decisions good or 
bad. And, at that particular point, there is nothing that would 
exculpate or, you know, taint those--what went on.
    It is very much like what you looked at in 2002--Mr. Burton 
looked at in 2002. We were trying to find out who knew what, 
how high it went, and how we can change it.
    Another, you know, investigation that I helped out on was 
John Dingell's investigation of the environmental crimes 
section of DOJ between 1992 and 1994. They involved a 
centralization of environmental crimes prosecution decisions in 
main Justice when, at the same time, they were decentralizing 
almost all other criminal investigations at that time. And the 
committee looked at that, was strenuously opposed by not only 
the Justice Department but groups outside, former attorneys 
general. But zeroing in on what was going on, what was the 
effect of those kinds of decisions, organizational decisions, 
ultimately won the day. The policy was reversed. Many of the 
people in the environmental crimes section had to resign or 
were fired, and everything was put right.
    Chairman Issa. Thank you.
    Mr. Cummings.
    Mr. Cummings. I want to thank all of you. As a lawyer, I 
tell you, this is a very interesting discussion.
    And as an officer of a court, I wholeheartedly agree with 
the chairman that I, too, and I think everybody on this side of 
the aisle wants to make sure that anyone who is responsible for 
Brian Kelly's death to be prosecuted. I think it would be a sin 
and a shame if that did not happen. And it is in that vein that 
I am posing these questions.
    Now, Professor Tiefer, I have contended that both the 
executive branch and Congress have legitimate interests. The 
Justice Department is trying to prosecute alleged murderers and 
gun traffickers. As a matter of fact, come June 17th, someone 
will be on trial with regard to the murder of Brian Kelly--
Terry. I am sorry. And we are trying to investigate allegations 
of abuse and mismanagement within the same agencies.
    I think we should be able to achieve both goals. And I 
think that is--you talked about negotiations, and I just think 
we have an interest in achieving both. I agree that Congress 
has the authority to investigate. We can issue subpoenas, we 
can demand documents, and we can conduct depositions. But we 
have to exercise that authority responsibly, especially when 
these are--and there are open criminal cases ongoing.
    I would like to ask you about some steps other committees 
have taken in the past to avoid compromising ongoing 
prosecutions.
    First, the Department has raised serious questions with 
some of the documents covered by the committee's subpoena. 
According to the Department, they may include records that--and 
this is the Department now--they say that may identify 
individuals who are assisting in the investigation, that 
identify sources and investigative techniques, that present 
risks to individuals' safety, and that prematurely inform 
subjects and targets about their investigation in a manner that 
permits them to evade and obstruct our prosecutorial efforts.
    My question is not whether we have a right to these 
documents. We already have some of them. My question is whether 
we should entertain a request from the Department to talk to 
them before we release them publicly, assuming they have not 
been released already publicly.
    Mr. Tiefer. Thank you for your questions, Mr. Cummings.
    By the way, a slight detour. I mentioned mostly chairs when 
I talked about these past investigations. The House Iran-Contra 
ranking minority member was Dick Cheney. I don't know if you 
quite see him as your sort of model, but I will say that----
    Chairman Issa. I do.
    Mr. Cummings. I will remain silent on that one.
    Mr. Tiefer. Anyway.
    I gave the Iran-Contra Committee as an example of a 
congressional committee going full speed ahead. At the other 
end, I cited the Abscam Committee in my memo, and that was a 
committee which said, ``We need to be extremely cautious. We 
don't want to get in the way. We are going to be asking for 
nerve-center testimony at the heart of the''--and so they held 
off. They had the discussions you are talking about, and they 
decided, with the Justice Department behaving properly and 
respectfully toward the committee, telling it what there was, 
they decided that they would wait until the trials were over.
    I mention that because that was an FBI informant 
investigation because of the way Abscam had been done, and just 
like the ATF investigation, it was something important for 
Congress to do.
    I have said that I think the Justice Department should be 
starting by providing more documents, allowing better in-camera 
examination and privilege logs. And I think then the discussion 
that you are saying is very important before things are 
released would be on a basis that the committee should pursue--
should pursue.
    Mr. Cummings. Let me ask you this, because I only have a 
limited amount of time. Again, assuming that the decisions are 
released, these documents ultimately rest with the committee, 
do you think it would be prudent to give the Department an 
opportunity to warn us if a public release could put people in 
danger or impair their investigation?
    Let me make it clear, and I made a mistake earlier and said 
``Brian Kelly'' and I meant ``Brian Terry.''
    But go ahead.
    Mr. Tiefer. I will be brief, given the time limit.
    Yes, it is prudent in an open criminal case situation for 
the committee to hear from the Justice Department before making 
things public.
    Mr. Cummings. You know, as I listen to you, it seems like--
I am always reminded of this book, ``The Speed of Trust.'' And 
it talks about how important it is--by Covey. And he talks 
about how important it is to establish a trusting relationship.
    And I take--it is sounds like what you are saying is you 
almost have to have some trust going on here to get to the 
point of negotiations--that is, between the committee and the 
Justice Department. Is that a reasonable conclusion?
    Mr. Tiefer. I certainly think the Justice Department should 
try harder to earn the committee's trust. But, yes, it has to 
be a relationship of trust.
    Mr. Cummings. And just one more question, Mr. Chairman.
    I just don't see any harm in taking the step--we retain the 
authority to make the final decision, but our decision is 
better informed. In the past, have other committees consulted 
with the Department before releasing documents publicly?
    Mr. Tiefer. Very much so.
    Mr. Cummings. I am sorry, I didn't hear you.
    Mr. Tiefer. Yes, before releasing documents publicly, if 
there is a stated Justice Department concern, there has been 
this consultation about how the committee, which has the 
authority to decide, should exercise that authority, yes.
    Mr. Cummings. I see my time has expired. Thank you.
    Chairman Issa. No problem.
    The gentleman from Utah, Mr. Chaffetz, is recognized for 5 
minutes.
    Mr. Chaffetz. Thank you, Mr. Chairman.
    And thank you all for being here.
    If a President and/or an Attorney General states that 
mistakes were potentially made, that something went awry, does 
that give the committee an added need or imperative to pursue 
these documents? Does that add weight to the idea that they 
should be producing these documents?
    Yes, Mr. Fisher?
    Mr. Fisher. I think when you look at the departments of 
government--Interior, all the other--Commerce--departments can 
be looked at by the Justice Department. Who looks after the 
Justice Department? I think, when you have reason to believe 
there is mismanagement inside the Justice Department, to leave 
that to the Justice Department is not acceptable to me.
    So I think that has been the concern. If there is one--
there is one department where you do not want mismanagement and 
abuse, it is the Justice Department. And I think your committee 
has every right to find out exactly what the conditions are.
    Mr. Chaffetz. But is that heightened from the fact that if 
the Attorney General and/or the President were to state that, 
yes, something went awry there, does that give us more 
imperative to pursue those documents and comply with----
    Mr. Fisher. I think it does better justify your inquiry, 
yes.
    Mr. Chaffetz. Yes, Mr. Tatelman?
    Mr. Tatelman. Congressman, not to completely disagree with 
Mr. Fisher, but I think the concern that at least one could 
envision in a situation like that--and the way I would answer 
your question is, no, I don't think it changes the calculus one 
iota in either direction, which is to say you do not want to 
find the committee's position where they start to set a 
standard where you begin to suggest that only in circumstances 
where there has been an admission does Congress' right kick in 
or only--and one I hear very commonly in my work at CRS is, 
isn't it true that Congress can only investigate waste, fraud, 
and abuse? No, you are not limited under those circumstances in 
that way, at least not from a legal perspective.
    I can understand the question from perhaps a political one, 
which is you might have an easier time selling the committee's 
actions publicly or justifying the committee's time in a public 
setting under those circumstances. But I would caution against 
anybody thinking that it changes your legal rights or 
authorities in any direction.
    Mr. Chaffetz. So that doesn't diminish them at all----
    Mr. Tatelman. Absolutely not.
    Mr. Chaffetz. OK. What is the remedy? I mean, if Department 
of Justice just says, ``No, we are not going to do this,'' what 
is the remedy? What is the next step?
    Mr. Fisher? Go ahead, Mr. Fisher.
    Mr. Fisher. That they are not going to turn over documents?
    Mr. Chaffetz. Yeah. If they just decide, ``No, we are not 
going to do this,'' they continue to refuse to comply with a 
subpoena, what is the remedy?
    Mr. Fisher. The next step--and it is taken many times--of 
course, is the contempt citation. And it has to go to the floor 
of either chamber. And not to many people like to be held in 
contempt of Congress. And that is--the administration should do 
everything it can to avoid that step. But already, because of 
your experience with your subpoena, you are thinking in that 
direction. But that is the last step.
    Mr. Chaffetz. Anybody else care to comment on that?
    Mr. Tatelman. Well, I think it is exactly that, the other 
remedy is further negotiations or, you know, further----
    Mr. Chaffetz. Well, why should a committee have to 
negotiate? What is the----
    Mr. Tatelman. I think contempt is a big escalation and a 
big step forward, both politically and I think definitely 
legally. I mean, it involves, as Lou mentioned----
    Mr. Chaffetz. You just argued that we didn't have a 
diminished right. So, I mean, the right in your----
    Mr. Tatelman. Agreed, Congressman; it is not a rights 
question. But escalating it to the level of holding an 
executive branch official in contempt, which in this case I 
think would be the acting director of ATF who is officially the 
person under subpoena, if I understood the chairman's 
documents, that has only happened 12 times in the history of 
this country, and only 3 times has it gone to the full floor of 
the House of Representatives. The other 9 have only been 
committee or subcommittee votes.
    That is a pretty big escalation by the House against an 
executive branch official. It is certainly a justifiable one, 
but it is a big one.
    Mr. Rosenberg. Let me give an example that may help you in 
your question.
    In one of the iterations of Whitewater, this committee, 
once again--I think the chairman was Mr. Clinger--went after 
the White House counsel, Jack Quinn, who was the holder of 
the--was the custodian of the documents that the committee was 
going after. And the President never claimed executive 
privilege but alluded to it and kept putting it off and, at one 
point, made a conditional claim of executive privilege 
depending on X, Y, and Z.
    Well, the committee and Clinger got fed up, and what they 
did was schedule a contempt vote for 2 weeks hence--no, 
actually, they had already contempted Quinn, but scheduled a 
vote on the floor of the House for 2 weeks hence. And within 
that 2-week period, the documents were all turned over.
    So that kind of an opportunity, it is what we call a staged 
process, which I believe that investigative oversight is. You 
go from one point of persuasion to the next, to the next, to 
the next. And what has happened over the last 15, 20 years is, 
we have skipped threats of, you know, of a subpoena and then 
subpoenaing and we are up to threats of contempt and then 
holding contempt over somebody's head. Well, Jack Quinn did not 
want to be held in contempt. That is what I understand.
    Mr. Chaffetz. And, Mr. Chairman, my time has expired, but 
let me just--from my vantage point, nobody wants to have to go 
to this step. But here you have, in this particular case, a 
President and an Attorney General who are both claiming to be 
oblivious to what was going on, which I think weighs in on the 
issue of executive privilege. But both have also----
    Mr. Rosenberg. That is what the recent caselaw says, that--
--
    Mr. Chaffetz [continuing]. But have also----
    Chairman Issa. And the gentleman's time has expired.
    Mr. Chaffetz. Then I will yield back.
    Chairman Issa. I thank the gentleman.
    The gentleman from Virginia, Mr. Connolly.
    There will be a second round for those who can stay.
    Mr. Connolly.
    Mr. Connolly. Thank you, Mr. Chairman. And thank you for 
having this hearing. It really is actually an intellectual 
feast. Because this is where the tectonic plates between the 
two branches come together, and we either collide or we gently 
subside. So it is a fascinating topic.
    Let me ask, Mr. Tatelman, is it your view that Congress has 
an unfettered right to access to information it requires, or 
believes it requires, irrespective of the judicial 
consequences? If something is under adjudication, litigation, 
or a criminal trial, that is all fascinating but that has 
nothing to do with the exercise of Congress' absolute right to 
access information it seeks. Is that your position?
    Mr. Tatelman. Absent some countervailing constitutionally 
based claim, yes.
    Mr. Connolly. An absolute right.
    Mr. Tatelman. Yes.
    Mr. Connolly. Is that your position, Professor Tiefer?
    Mr. Tiefer. I find in the Supreme Court opinions that what 
the persuasive opinion of Justice Brennan in Hutcheson v. 
United States said was that if there was an immediate, pending 
trial, that he would hope that there would be something other 
than an interference with that trial by the congressional 
committee.
    So, in other words, the judicial position is that there 
should be some--I am hesitant to use the word ``accommodation'' 
because--but there should be other than the congressional 
committee proceeding full speed ahead without thinking about 
the consequences.
    Mr. Connolly. But, to his credit, Mr.--``Tatelman?''
    Mr. Tatelman. Tatelman.
    Mr. Connolly. Tatelman, excuse me.
    Mr. Tatelman does not quibble it is an absolute right, as 
he reads the Constitution. While the late Supreme Court Justice 
Brennan may wish for consideration on our part, the 
Constitution doesn't mandate it. As a matter of fact, Mr. 
Tatelman's reading of the Constitution is, that is all in the 
fine print, but we can, if we wish, choose to ignore the 
consequences, even if it is pending litigation or criminal 
trial.
    Is that your reading, as well? Or do you believe that 
ruling or that opinion by Mr. Brennan puts some check and 
balance on the otherwise unfettered right of Congress to seek 
information from the executive branch?
    Mr. Tiefer. I think what is being said is that the Court 
would do what it wants within its power if the Congress ran 
roughshod over the--in the case of an immediately--that is the 
phrase in the case--immediately pending trial.
    Mr. Connolly. Well, let me--thank you.
    Let me ask, let's deal with a hypothetical here. Well, 
let's actually not deal with a hypothetical; let's deal with 
the example the chairman gave you about Oliver North. Now, 
refresh my memory, but if the sequence is right, Oliver North 
was indicted and convicted in a court of law of a crime.
    Mr. Tiefer. Correct.
    Mr. Connolly. And that conviction he appealed, and, 
subsequently, the appeal was successful in part because of what 
was perceived to be compromised testimony here in the Congress. 
Is that correct?
    Mr. Tiefer. Well, I would more narrowly--and I think the 
statement by the chairman was correct on this point. On the 
issue of immunity, the obtaining of a court immunity order, 
that was the basis on which the appeal was successful.
    Mr. Connolly. OK. Fair enough. But here's my hypothetical. 
What if somebody in Congress, or a whole bunch of people in 
Congress, at that time decided willfully to taint his testimony 
in order to ensure subsequently that he could not be found 
guilty or that an appeal would be successful, that was a 
deliberate strategy here in the Congress? If Mr. Tatelman is 
correct on his interpretation of the Constitution, even though 
you and I might agree that would be wrong morally, it is 
nonetheless the right of Congress to do that. Is that your 
opinion?
    Mr. Rosenberg. Not to do that. I don't think--well, I won't 
talk for Mr. Tatelman.
    Mr. Connolly. Well, I am just following the logic here. If 
Congress----
    Mr. Rosenberg. There is law out there that----
    Mr. Connolly. Excuse me. This is my time, sir.
    If we have, as Mr. Tatelman says, an unfettered, absolute 
right to information from the executive branch irrespective of 
the consequences, what is to stop an unbridled Congress, not 
like this one but one that might be more politically motivated, 
to deliberately taint the outcome of a pending criminal trial?
    You look like you are ready to answer, Mr. Fisher.
    Mr. Fisher. I would say, on the absolute right, I think 
there are--you have to establish in a committee that you have 
legitimate inquiry, and I think you do. There are some 
inquiries which I don't think would be legitimate, perhaps 
going into some individual's, an employee in the executive 
branch, private file and so forth. So you have to a establish 
some legitimate business here.
    Mr. Connolly. Mr. Chairman, I know that I am going to have 
another chance, and thank you.
    I would simply say to you, though, the Constitution does 
not say that. It doesn't talk about ``legitimate'' and 
``illegitimate.'' We will come back to it in my next round.
    Thank you.
    Chairman Issa. I look forward to it.
    The gentlelady from New York.
    Ms. Buerkle. Thank you, Mr. Chairman. And thank you for 
calling this hearing.
    Thank you this afternoon to our panelists for being here. 
Congress and the American people have the right to know how 
their money is being spent. And one of the panelists mentioned 
that the American people lose when we don't get the information 
that we are seeking, so this is a very important inquiry.
    I just have one question, and then I am going to yield my 
time back to the chairman for any further questions he might 
have. I would like to ask each one of the panelists, if you 
look at the circumstances in this case, is there any reason why 
the Department of Justice should not comply with our request?
    I will start with Mr. Rosenberg, and we can go right down. 
And I think that is just a ``yes'' or ``no'' answer.
    Mr. Rosenberg. From all that I know, what is in the papers 
that I received and looking at it, there is nothing yet that 
would dissuade me from saying that they should comply.
    Ms. Buerkle. Thank you.
    Mr. Tatelman.
    Mr. Tatelman. I would be even more cautious than that. I 
think when you phrase the question as you have, Congresswoman, 
it is complicated. I think there may be some--in other words, 
we don't know enough, as members of the public or based on what 
we have seen thus far, I mean, I wouldn't feel comfortable 
answering that question either way. I simply don't have enough 
information to know for sure whether there is something lurking 
out there that might give them a more legitimate reason.
    Based on what they have asserted thus far, it is arguable. 
But there may be things out there and maybe other information 
that we are just simply not aware of yet.
    Ms. Buerkle. Thank you.
    Dr. Fisher.
    Mr. Fisher. Yeah, you are just getting into some documents, 
some access, so you don't have a full picture, but you have 
enough of a picture, I believe, that there is at least concern 
about mismanagement and possible abuse. And I think that the 
Department of Justice would be very wise to work with your 
committee. Otherwise, it could be easily interpreted as some 
kind of an obstruction to make sure that embarrassing 
information does not come to light.
    Ms. Buerkle. Thank you, Dr. Fisher.
    Professor.
    Mr. Tiefer. As things stand now, they owe you the 
documents. It is their job to make a record that would support 
keeping anything back. And so far, they haven't set out to make 
such a case.
    Ms. Buerkle. Thank you.
    And I yield my time back to the chairman.
    Chairman Issa. Thank you.
    Professor Tiefer, you sort of gave the answer I was hoping 
to have my followup on. What you said earlier and I think what 
you repeated here I want to you elaborate on. When we ask a 
question, we can, in fact, be unreasonable in our broadness. It 
can happen, because we don't know what we don't know. 
Ultimately, the negotiation that I think we were talking about 
earlier is about telling us why our discovery is overly broad, 
making the case for what we don't need or we may consider 
narrowing, and then, as I think you are saying, make the case 
for what is not being delivered for some specific reason, 
either it is imprudent, which is our decision, or it is 
constitutionally protected, which is their decision and their 
responsibility to assert.
    Would that sort of summarize your position?
    Mr. Tiefer. Yes, Mr. Chairman.
    Chairman Issa. Well, I want to go quickly to Mr. Connolly's 
statement, though, which I think, Mr. Tatelman, you got the 
bullet on. The 27th Amendment exists because, at the founding 
of our country, they were very afraid that Congress would raid 
the Treasury. Isn't that true, that is why we are not allowed 
to raise our own pay arbitrarily during a term?
    Mr. Tatelman. In part, yes, absolutely.
    Chairman Issa. Now, the reason it got passed 200 years 
later was that the American people objected to a pay raise that 
Congress gave itself enough to put it over the top, after 
having sort of lingered out there for all those years. Isn't 
that your recollection?
    Mr. Tatelman. Yeah, I believe it was the State of Michigan 
that finally came around and provided the necessary last votes, 
yes.
    Chairman Issa. And, by the way, I approve of that 
amendment, albeit the last.
    But let's go back to Mr. Connolly's statement. If, in fact, 
we were arbitrary or capricious, let's just say that we were 
trying to cover up Joe Smith, a Congressman's wrongdoing by 
interfering with the actual prosecution, defend our Speaker, 
John Smith. Wouldn't the court reasonably take an objection 
from the administration, from the Attorney General, and 
consider it as its obligation to balance us every bit as much 
as it would balance the executive branch wrongful assertions? 
Isn't that the role of the court?
    Mr. Tatelman. Yes, Mr. Chairman. But also, more so, it is 
the role of all of your respective constituents. If they 
believe that the Congress has gone far beyond what is 
reasonable or what is prudent, as you put it, the remedy----
    Chairman Issa. Right, but that relief would only be granted 
every 2 years.
    Mr. Tatelman. Correct. But in the particular case at hand, 
yes, in part it is the court's duty and balance, but in part it 
is also, you know, Congress and the executive, all three 
branches, in some sense, working together.
    I think the question that I was responding to was narrowly 
phrased with respect to Congress' right, which I think is----
    Chairman Issa. Right. And I agree.
    Mr. Fisher, if you could respond, and then our time is up.
    Mr. Fisher. Yeah, you mentioned on how a court would 
decide. I think it is in the interest of your committee and 
Congress and the administration not to go in that direction 
because no one knows what a court will do. You don't know who 
is going to be selected; you don't know what the result is. So 
I think both branches should figure out politically what 
accommodation meets your mutual interest.
    Chairman Issa. I agree with you that it is better to rely 
on caselaw than to try to make it.
    With that, we recognize the gentleman from Oklahoma for 5 
minutes.
    Mr. Lankford. Thank you very much.
    And thanks for being here to be able to have this 
testimony. It is very important to us.
    Operation Fast and Furious utilized a lot of components of 
DOJ, including its domestic intelligence operations, Public 
Integrity Section, and its Office of Personnel Responsibility. 
Historically, congressional investigations have covered all 
levels of DOJ officials and employees, from the Attorney 
General down to subordinate line personnel.
    What has been the scope of past congressional inquiries 
into the DOJ? Can you just define out, when we have done--are 
we within the scope at all to be able to ask questions of DOJ? 
And is there a legitimate reason for DOJ to withhold documents 
and information from this information, in your own personal 
perspective?
    And anyone can answer that. I will let you just jump in as 
you choose to.
    Mr. Tiefer. Well, if we could point to even one single 
House investigation, it was called the Superfund investigation, 
1982-1983, in which the House did overcome a claim of executive 
privilege for an investigation of the Justice Department.
    And there was a followup House Judiciary Committee 
investigation. It looked at the Criminal Division, it looked at 
the Civil Division, and it looked at the Lands Division. I 
don't think that there is an office--this committee held the 
Attorney General herself, Janet Reno, in contempt.
    Nothing is off-limits.
    Mr. Lankford. OK. Thank you.
    Mr. Fisher. Yeah, I would agree that the Justice Department 
is not immune from these investigations at all. I think all of 
us have given examples, and our statements are fairly detailed 
on that.
    Mr. Lankford. Thank you. On a separate issue----
    Mr. Rosenberg. Look at----
    Mr. Lankford. Go ahead.
    Mr. Rosenberg [continuing]. Ruby Ridge, which dealt with 
the killings that were investigated and the investigations of 
four or five different agencies, including Justice Department, 
with regard to whether there was inappropriate, you know, 
activity with respect to the rules of engagement, etc. And a 
Senate committee got all those documents and exposed them. And 
this is the most sensitive part of the DOJ, you know, the 
Office of Professional----
    Mr. Lankford. Yeah, we understand all these things are very 
sensitive and, obviously, very delicate. But there is a 
reasonable role for oversight in this committee, to be able to 
engage in the oversight.
    Let me ask in a separate way, under the Privacy Act 
exception for congressional committees, do you know of any 
reason that DOJ can't voluntarily produce documents to a 
congressional committee if they chose to?
    So, not necessarily from a subpoena or us to push them, but 
just to be able to say--can they voluntarily disclose these 
things and say, you know, ``There is a letter that has been 
given; I want to engage in this to be able to help in every way 
that I can.'' Do you know of any reason they couldn't just 
voluntarily do this?
    Mr. Rosenberg. The Privacy Act says that documents--that 
the privacy-covered documents shall be available to all joint 
committees, committees, and subcommittees. I don't see why 
giving it to a joint committee, committee, or a subcommittee 
can't be done voluntarily.
    Mr. Lankford. Thank you.
    Anyone else want to make a comment on that?
    Mr. Tiefer. Yes. There are some narrowly limited grounds in 
which the Justice Department can't, on its own, provide 
documents: grand-jury documents that you have to have a court 
order for; income tax returns, there are some very narrow 
specifications about what can be provided. Outside of those 
narrow grounds, the answer is, they can provide it voluntarily.
    Mr. Lankford. OK.
    All right. With that, I would yield back to the chairman.
    Chairman Issa. Thank you.
    You know, earlier, there was a discussion about the U.S. 
attorneys case, the firing of the U.S. attorneys. I sat on 
Judiciary and here, so I remember it very well. I want to get 
into that for just a moment.
    The administration claimed that it had an absolute right to 
hire and fire U.S. attorneys. And that was, in fact, confirmed. 
And yet, we went forward with the investigation because we were 
trying to get to the bottom of whether or not one or more of 
those individuals was fired for reasons related to the 
performance of their doing--in other words, to thwart 
prosecutions, to protect political friends of the 
administration, and so on.
    Wouldn't that be the best example of legitimate overseeing, 
not just of the U.S. attorneys and the Attorney General but 
even of the administration? Because they questioned the 
President as to whether or not he had the authority to fire 
without a review of whether that firing was for some other 
reason other than his constitutional right.
    Yes, Mr. Fisher?
    Mr. Fisher. Yeah, I think that was a very powerful case 
because I can't imagine anything more dangerous than for the 
Justice Department to use U.S. attorneys in a partisan way, and 
that was the issue. So that was a terrifying moment, and 
Congress had every right to find out.
    I don't think Congress ever got as much information as is 
needed to understand what actually went on. And there was no 
accountability, from the President to the AG on down. No one 
seemed to know exactly who did what.
    Chairman Issa. Professor Tiefer, did you have anything else 
on that?
    Mr. Tiefer. That was, indeed, a very strong, strong reason 
to do that oversight.
    Chairman Issa. OK.
    And, with that, I think we are ready for a second round. 
Since I just talked, I will hold mine for a moment and go to 
the ranking member.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    I would like to ask the witnesses about the status of the 
committee's investigation to see how it compares to other 
historical precedents.
    On March 16, 2011, Chairman Issa initiated this committee's 
investigation by writing to ATF to request a wide range of 
documents. He certainly had the right to do so. These included 
memoranda, reports, emails, and other communications relating 
to the death of Agent Terry, Operation Fast and Furious, and 
other related topics.
    The letter requested that all documents be produced in just 
2 weeks, by March 30, 2011. When we did not receive the 
documents, the chairman issued a unilateral subpoena for these 
documents the next day, on March 31, 2011. There was no 
committee business meeting or debate or vote on the subpoena.
    Professor Tiefer, before today were you aware that Chairman 
Issa's subpoena came only 15 days after his original request 
for documents? Were you aware of that?
    Mr. Tiefer. The answer is, no, I hadn't gotten details.
    Mr. Cummings. And the majority staff memo for this hearing 
states that, after the subpoena was issued, ``DOJ subsequently 
refused to produce documents responsive to the subpoena.'' But 
the Department, in fact, had produced to the committee or made 
available to the committee staff for review approximately 1,336 
pages of subpoenaed documents to date.
    Professor Tiefer, were you aware of that fact?
    Mr. Tiefer. My sense is that, to say they produced 
documents responsive is implying to say they didn't produce 
other documents responsive, and that was my sense, yes. It was 
a mixture of--including the withholding of important documents.
    Mr. Cummings. And so, Professor Tiefer, your testimony 
seems to assume that the Department has asserted executive 
privilege to withhold documents. Before today, you were aware 
that the Department has not asserted any kind of executive 
privilege to withhold any documents from the committee. Is that 
right?
    Mr. Tiefer. That is correct, and I would expand on that. I 
believe in as much interplay, not just negotiating but, 
frankly, fighting, between the committee and the Justice 
Department before taking the ultimate step.
    Mr. Cummings. All right.
    Mr. Tiefer. One of the steps is to force--and this has 
worked in the past, and the people at this table have been with 
me in this--force the executive branch to say, ``We are going 
to claim executive privilege,'' or, ``We are not going to claim 
executive privilege.'' And, at this point, they haven't been 
put to that.
    Mr. Cummings. Now, if they are still--let's say we have a 
situation where Justice is trying to gather the documents, you 
know, gather responsive documents based on search protocols 
agreed to by the committee, but have not completed that 
process, and is acting in good faith. A little earlier, you 
talked about a privilege log. At what point does that log come 
up? I mean, if they are still trying to get the documents, at 
one point does the log come up? Is that a little premature?
    Because it seems to me, you got to figure out what you have 
in response to the subpoena, and then it seems to me that then 
you have to make a list of documents that, you know, you don't 
think should be submitted and tell why. And that is basically 
what the log is all about, right?
    Mr. Tiefer. On the one hand, that has certainly been the 
way the Justice Department has done it in the past, and our 
efforts to wean it off of that process haven't succeeded. I 
have often wished that, instead, they would turn over the 
things that aren't privileged as they come across them and only 
log the things that they are withholding.
    But you are right, the usual process has been the way you 
are saying. They want to have them all before they decide what 
they are going to claim privilege on.
    Mr. Cummings. So let me make sure I understand this. Are 
you saying that you think they should just turn over all the 
documents and then say, ``Look, don't give us back these?'' 
That is not what you are saying, is it? The ones that we think 
are privileged? Is that what you are saying?
    Mr. Tiefer. Well, let me put it to you this way, because I 
was at both ends of this process. I represented the House of 
Representatives when we had incoming subpoenas from them. And 
they weren't willing to sit there and wait while we went 
through all the documents. They wanted right away the important 
ones that we couldn't claim privilege on.
    But when the shoe is on their foot, then they want to count 
all the documents before they decide which to claim privilege 
on. And that has been the traditional way through all 
administrations.
    Mr. Cummings. So, right now, I guess you are aware the 
Department is now conducting these searches for 19 officials 
approved by the committee staff. You were aware of that, right?
    Mr. Tiefer. I believe it. They would be--having gotten a 
subpoena, they would be in big trouble if they weren't.
    Mr. Cummings. But you said something very interesting. You 
said that you believe there has to be a fight. Is that what you 
said? You don't usually hear that word in this committee.
    Mr. Tiefer. Yes. Yes. There has to be a fight. Yes. This is 
not a lovemaking process.
    Chairman Issa. Well, we are doing really well there, 
Elijah. Finally, I found out that we are doing our job just 
right up here.
    Mr. Cummings. Thank you, Mr. Chairman.
    Chairman Issa. Thank you.
    Mr. Lankford.
    Mr. Lankford. Thank you.
    I have one quick statement, and I would like to be able to 
yield some time to the chairman after that.
    But my statement would be, Justice Department informed our 
committee on May the 2nd that they would make 400 pages of 
documents available. When the staff went to go view those 
documents, they were heavily redacted.
    Is it appropriate--and I am going to ask this of Dr. 
Fisher--is it appropriate for DOJ to redact documents, 
sometimes heavily, page after page after page, in response to a 
subpoena?
    Mr. Fisher. I don't think it is appropriate, and I think it 
sends the wrong signal, that it looks like there are some 
things they don't want you to see. So if they are trying to 
establish their bona fides, that is not a good way to do it.
    Mr. Lankford. Right. Hundreds of pages of documents don't 
help to be able to count that they have turned over hundreds of 
pages when they are all heavily redacted at that point.
    With that, I would yield back to the chairman.
    Chairman Issa. Thank you.
    I am going to followup on that good line of questioning. 
You know, as all of you I think know, the only discovery that 
has been literally handed over to us was all 100 percent 
available on the Internet. So it was public record. And I know 
sometimes even public record can be sensitive, but not in this 
case.
    However, the question, I think for everyone's edification 
up here, in-camera review is historically, in most criminal 
cases and civil cases, so that people can see with no 
redaction. Of course, they don't get to take it with them.
    Is that your understanding of what is normally appropriate 
when you don't deliver something and yet you bring them in for 
a briefing and an in-camera review so you can then decide how 
to, Solomonesque, split the baby in half?
    Mr. Fisher. Yeah, I think it is inconsistent. If it is in-
camera, you should be able to see the documents.
    Chairman Issa. I guess I am getting pretty much yeses from 
everyone.
    Professor Tiefer, you talk about the long history you have 
of knowing how Justice does business, both sides. I certainly 
remember when they raided William Jefferson's office without 
notice and took, at gunpoint, everything they wanted. That 
certainly was not showing any deference or negotiation with the 
Speaker or with our constitutional separation.
    Are we doing something similar here, from what you can see?
    Mr. Tiefer. I think there was no deference whatsoever in 
that process, that it was a serious affront to the separation 
of powers, and that one can argue at the margins here about 
whether the proper process could be stretched out a little more 
or not. But there is no comparison; you are respecting the 
separation of powers much more than they did in the Jefferson 
raid.
    Chairman Issa. Now, for the record, I would like to mention 
that Ranking Member Grassley, Senator Grassley, had been 
requesting these documents, and we had in our possession a 
letter saying that they wouldn't give it to him because he 
wasn't a chairman. And he had been requesting them since 
January or even before, but, certainly, formally, since 
January.
    So I just want to be on the record that, yes, we did, Mr. 
Cummings, we did only allow 2 weeks, but we allowed 2 weeks 
because they basically said, we have the documents, we just 
won't give them to you because you are not entitled; Chairman 
Leahy would have had to request them. And so I figured, well, 
Chairman Issa, Chairman Leahy, we are somewhat similar, and I 
had an expectation that we would get something.
    Professor Tiefer, I wanted to followup on something, 
though. You talked in terms of the history of AG and their 
operations, Justice. Rolling discovery, isn't that the norm in 
most other discovery that this committee does, where people say 
it is voluminous, and they start giving you them as they get to 
them, if you are working with Department of Interior, most of 
the other areas, from your knowledge?
    Mr. Tiefer. Yes. It does vary from office to office. I 
think they have a problem here because some of the best 
evidence is emails, and it is not so easy to do rolling 
discovery of emails. But as far as documents and categories of 
documents, yes, that would be the normal practice.
    Chairman Issa. Mr. Tatelman, the same thing, that you are 
used to seeing information come out in dribs and drabs, even 
when we are asking for legislative language or research, we ask 
you for something, and then you get additional? And just for 
the record, that is my experience with everybody else, is you 
get what is easy and then you end up with what is very hard at 
the end.
    I do want to set the record straight on one thing. I was 
off last week in my district, and so I was not aware DOJ has 
produced 80 pages of non-public documents as of last Friday. 
And I look forward to reading those.
    And, with that, I recognize the gentleman from Virginia for 
5 minutes.
    Mr. Connolly. Thank you again, Mr. Chairman.
    And, Mr. Rosenberg, I want to give you--I know you were 
champing at the bit, and I didn't mean to cut you off, but I 
was running out of time.
    Where we left, Mr. Tatelman, was you agreed with the 
assertion that Congress, as you read the Constitution, has an 
unfettered, absolute right to seek information, irrespective of 
the judicial consequences from the executive branch. 
Subsequently to the chairman's question, I think you indicated 
that but, of course, a court ultimately adjudicates the 
dispute, should there be a dispute, between the two branches. 
Am I reading you correctly?
    Mr. Tatelman. Your question, Congressman, was whether or 
not Congress has the right to access the information. And the 
answer to that question--I will stand by my original answer--
was they have absolutely a right, subject to countervailing 
constitutional privileges being asserted, but that there may be 
reasons, either political or otherwise, why Congress may choose 
not to assert that.
    Mr. Connolly. Yes, yes. No, I heard that. I was just trying 
to establish what your view was. But you would agree that, in 
the event of a dispute, the ultimate arbiter of a dispute is a 
court of law?
    Mr. Tatelman. Not necessarily in a dispute between the 
legislative and executive branches. Chairman Issa's 
hypothetical involved a criminal trial with which there is a 
judicial role to play there. But if you eliminate that part of 
the situation, no, not necessarily. I think Congress and the 
executive branch can and often do resolve these disputes over 
their rights and privileges and prerogatives without involving 
courts of law quite frequently.
    Mr. Connolly. But what if they don't? What if they can't?
    Mr. Tatelman. Well, there are certainly precedents to 
establish the fact that the courts are routinely cautious and 
very hesitant to get involved. You have the two AT&T cases in 
the late 1970's where the court, the D.C. Circuit Court, on two 
occasions refused to rule on the merits.
    Mr. Connolly. Well----
    Mr. Tatelman. Even the Miers situation, Congressman, the 
court doesn't rule on the merits of that dispute. It ruled 
Congress had a right to bring the case, it had standing to 
pursue it, it had a right to the information, but it didn't 
rule on the merit.
    Mr. Connolly. Mr. Tatelman, I have a limited amount of 
time. I get your point. Thank you.
    But let me pose this question. Does the executive branch 
have a legitimate right to be concerned about the protection of 
FBI informants?
    Mr. Tatelman. Yes.
    Mr. Connolly. And if Congress were seeking even in-camera 
unredacted documents that would reveal the identity of those 
informants, might the FBI, and the executive branch by 
extension, have legitimate reason nonetheless to fear, 
wittingly or unwittingly, the revelation of such information?
    Mr. Tatelman. They have a legitimate reason to fear that, 
not a legal reason to withhold it.
    Mr. Connolly. No legal reason to withhold it.
    Mr. Tatelman. None that I am aware of.
    Mr. Connolly. All of you agree with that?
    Mr. Fisher.
    Mr. Fisher. I wouldn't put it that way. I think you raise a 
nice question because both sides have to make judgments about 
whether their course of action is not only legitimate but plays 
well in the public. So any effort by Congress to say, we want 
the names of some informants or we want the name of the chief 
of staff at some CIA--you don't do that. You are going to get 
injured. And I think the executive branch has to worry that it 
doesn't injure itself also. So everyone makes, on both sides, 
some judgments.
    Mr. Connolly. Would you--well, Mr. Rosenberg, I want to 
give you a chance because I, sadly, had to cut you off. But you 
were reacting to the discussion about, well, what if we had a 
Congress that deliberately, as a strategy, sought this 
information in fact to negatively influence the outcome of a 
pending trial?
    Mr. Rosenberg. I think a question would be raised at that 
point.
    Mr. Connolly. I am sorry?
    Mr. Rosenberg. Congress' powers to upset and to, you know, 
screw up a particular trial is certainly there. But there is a 
particular line that I think I am aware of in the caselaw, that 
if there is an attempt to interfere with or to help convict 
someone, that would raise serious due-process questions.
    Mr. Connolly. OK. So there are inherently some limits on 
Congress' otherwise unfettered right to seek access to 
information from the executive branch; this might be one of 
those cases?
    Mr. Rosenberg. Very rare.
    Mr. Connolly. Very rare. But is it not also relatively 
infrequent that Congress seeks this kind of information when 
there, in fact, is a pending investigation or a criminal trial? 
Is it frequent that Congress brushes that aside and seeks to 
subpoena information nonetheless?
    Mr. Fisher.
    Mr. Fisher. The question again, please?
    Mr. Connolly. Well, how frequent is it that Congress 
chooses, even when there is a pending investigation, ongoing 
criminal open investigation, nonetheless to subpoena documents 
that may be related to that investigation?
    I am under the impression Congress has always shown--I am 
sorry--has mostly shown, historically, some restraint under 
those circumstances.
    Mr. Fisher. Well, it can show restraint. But if what you 
are just saying has to be done to fulfill a legislative 
purpose, then I think you have to go ahead.
    Mr. Connolly. That is a different question. My question, 
Mr. Fisher, was, how frequent is it that Congress brushes aside 
those concerns and pursues the subpoena nonetheless?
    Mr. Fisher. I don't think Congress brushes aside, but it is 
frequent that Congress does go after the kind of information 
you are asking. It is frequent.
    Mr. Connolly. When there is an open criminal investigation?
    Mr. Fisher. Yes.
    Mr. Connolly. Professor Tiefer, is that your understanding?
    Chairman Issa. I would ask the gentleman have an additional 
30 seconds.
    Mr. Connolly. Oh, I thank the chair. I am sorry. I was 
unmindful of time.
    Chairman Issa. No, no, you are doing fine. Another 30 
seconds.
    Mr. Tiefer. If we broaden it because the same argument is 
made for open cases of other kinds--environmental, enforcement, 
and so forth--our memos show a number of times, a number of 
times. And for criminal ones, the most famous instances in 
history, like Teapot Dome but especially Watergate and Iran-
Contra, are criminal cases. Does it happen often? No. Does it 
happen? Yes.
    Mr. Rosenberg. But it is enough so that we can take it that 
it is a prerogative of Congress to do it.
    Mr. Connolly. I would just remind Professor Tiefer that, in 
the case of the investigations here in Congress, the Watergate 
hearings, they proceeded before criminal investigations were 
under way. The Erwin hearings proceeded a full year before 
those criminal investigations.
    I yield back.
    Chairman Issa. Thank you. And I guess the professor stands 
corrected here.
    I would ask unanimous consent that the statement delivered 
to us by the Department of Justice on today's hearing be 
entered into the record.
    Without objection, so ordered.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 70820.058
    
    [GRAPHIC] [TIFF OMITTED] 70820.059
    
    Chairman Issa. I am going to followup on that line of 
questioning.
    Mr. Rosenberg, in the Bulger case, weren't we dealing with 
informants? Wasn't the whole case about informants who were 
committing crimes under the protection of Department of 
Justice?
    Mr. Rosenberg. Absolutely.
    Chairman Issa. And didn't--I think this would have been 
Clinger and then Burton. Didn't they basically, you know, 
pursue that in spite of initial pushback by DOJ?
    Mr. Rosenberg. There were claims that there were ongoing 
investigations, that there was ongoing litigation. Part of one 
of the litigations was members of the families of some of the 
20 or 25 victims who were bringing tort claim suits, and----
    Chairman Issa. So, just following up on that line from the 
gentleman from Virginia, it is for us to decide whether or not 
it is appropriate to hold back, that ultimately has to be 
something in which we see enough to know that it may be prudent 
to delay or in some other way explore; it can't be unilateral 
by the executive branch. Isn't that what caselaw shows?
    Mr. Rosenberg. Yes.
    Chairman Issa. And do some of you remember a Congressman 
who now works down the hall, Mr. Waxman? Weren't there criminal 
cases and civil cases going in the Fallujah Four and in the Pat 
Tillman case? Weren't both of those, when the chairman of this 
committee brought both of those before the Congress, including 
testimony, weren't those--didn't they both have other 
activities going on?
    Anyone remember? I mean, I do, but I want to make sure that 
I am remembering correctly.
    Mr. Fisher. I think for Pat Tillman, I remember that, yes.
    Chairman Issa. OK. So it seems like we do have a strong 
issue.
    I think, Mr. Fisher, at one point, you had talked in terms 
of the political--and I think Mr. Tatelman did, too--political 
versus legal and political versus constitutional. Our 
investigation about whether the policy, including a 20-year-old 
policy, or 22-year-old policy, at ATF that has been asserted to 
say that it is OK for guns to walk, it is OK for deadly weapons 
to get in the hands of people who then could kill a Federal 
agent or some other innocent bystander, that questioning that 
policy, which is at the heart of this investigation, should we 
wait while that ATF rule is still in place, while there still 
may, in fact, be guns or explosives or drugs walking?
    That is the real question here, is, is the balance of 
prosecutions versus the balance of this policy, is that a 
legitimate question for this committee to explore sooner rather 
than later?
    Mr. Rosenberg.
    Mr. Rosenberg. Absolutely, that you are right to do it. 
And, as I mentioned, the Dingell investigation of the 
environmental crimes unit was exactly that. A policy of 
centralizing the prosecutorial decisions in Washington as 
opposed to any other kinds of prosecutorial decisions was one 
that was ongoing. And the point of the ongoingness was 
disturbing, in that it made for perhaps discriminatory kinds of 
decisions being made not on the ground, not by the people who 
were investigating them, but from Washington itself. And it 
took 2\1/2\ years and there was a voluntary recision of that 
particular policy.
    But to wait around until they, you know, talked about it 
and discussed it would seem to Mr. Dingell at the time to be, 
you know, unquestionable, that they had to go after it.
    Chairman Issa. Well, you are in rarefied and good company 
if your investigation is compared even in a small way to 
Chairman Dingell's.
    Mr. Fisher.
    Mr. Fisher. I would use the two words ``political'' and 
``legal.'' I think the way you described it, the two words come 
together, because you have a political concern about this ATF 
policy in place for a long time and you have legitimate legal 
concerns, that this is something that you have to investigate 
to make sure it doesn't continue.
    Chairman Issa. Well, with that, I am going to do something 
unusual. I am going to yield back my own time, and thank all 
four of our panelists for probably the most--I hope if C-SPAN 
watchers are watching this, that they appreciate that, except 
for possibly with Thomas Jefferson alone in his study, we 
haven't brought this much intellectual capital to a hearing in 
a very, very long time.
    I thank you for your testimonies.
    And we stand adjourned.
    [Whereupon, at 2:45 p.m., the committee was adjourned.]

                                 
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