[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
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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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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.]