[Congressional Record Volume 144, Number 66 (Thursday, May 21, 1998)]
[House]
[Pages H3634-H3640]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  PROVIDING FOR CONSIDERATION OF HOUSE RESOLUTION 432, SENSE OF HOUSE 
  CONCERNING PRESIDENT'S ASSERTION OF EXECUTIVE PRIVILEGE, AND HOUSE 
RESOLUTION 433, CALLING UPON THE PRESIDENT TO URGE FULL COOPERATION BY 
    FORMER POLITICAL APPOINTEES, FRIENDS, AND THEIR ASSOCIATES WITH 
                      CONGRESSIONAL INVESTIGATIONS

  Mr. SOLOMON. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 436 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 436

       Resolved, That upon the adoption of this resolution it 
     shall be in order to consider in the House the resolution (H. 
     Res. 432) expressing the sense of the House of 
     Representatives concerning the President's assertions of 
     executive privilege. The resolution shall be considered as 
     read for amendment. The resolution shall be debatable for one 
     hour equally divided and controlled by the Majority Leader or 
     his designee and a Member opposed to the resolution. The 
     previous question shall be considered as ordered on the 
     resolution to final adoption without intervening motion.

[[Page H3635]]

       Sec. 2. After disposition of or postponement of further 
     proceedings on House Resolution 432, it shall be in order to 
     consider in the House the resolution (H. Res. 433) calling 
     upon the President of the United States to urge full 
     cooperation by his former political appointees and friends 
     and their associates with congressional investigations. The 
     resolution shall be considered as read for amendment. The 
     resolution shall be debatable for one hour equally divided 
     and controlled by the Majority Leader or his designee and a 
     Member opposed to the resolution. The previous question shall 
     be considered as ordered on the resolution to final adoption 
     without intervening motion.

  The SPEAKER pro tempore (Mr. Bonilla). The gentleman from New York 
(Mr. Solomon) is recognized for 1 hour.
  Mr. SOLOMON. Mr. Speaker, for purposes of debate only, I yield half 
our time to my good friend, the gentleman from Massachusetts (Mr. 
Moakley), pending which I yield myself such time as I may consume. 
During consideration of the resolution, all time yielded is for 
purposes of debate only.
  Mr. Speaker, House Resolution 436 is a rule providing for 
consideration of two House resolutions. The first of these is House 
Resolution 432, expressing the sense of the House of Representatives 
concerning the President's assertion of executive privilege introduced 
by the gentleman from Texas (Mr. DeLay), the Majority Whip.
  Second is House Resolution 433, calling upon the President of the 
United States to urge full cooperation by his former political 
appointees and friends and their associates with congressional 
investigations. That resolution is introduced by myself.
  Mr. Speaker, the rules provide that House Resolution 432 concerning 
executive privilege shall be debatable in the House for 1 hour, equally 
divided and controlled by the majority leader and his designee, and an 
opponent.
  The rule further provides that House Resolution 433 relating to the 
cooperation of witnesses before congressional investigations shall be 
debatable in the House for 1 hour, equally divided and controlled by 
the majority leader and his designee and an opponent.
  Mr. Speaker, over the last several days this House has undertaken an 
effort to broaden the discussions of ethics in the Nation's Capital 
from one of internal House committee procedures to criminal procedures 
generally, and the rule of law. Members on both sides of the aisle have 
been troubled by personal attacks, as I have.
  We can take the personalities away and the efforts to engage in 
personalities on the floor, but the questions that trouble our 
constitutional system of government are not going to go away. Every day 
we are seeing more of it in the papers across the country.
  Tuesday, we voted overwhelmingly, 402 to zero, to express that the 
House should immunize and should hear testimony from four witnesses 
whose testimony has been blocked by the minority of the Committee on 
Government Reform and Oversight. We have had several hours of debate 
yesterday and votes on a number of amendments to the defense 
authorization bill expressing the House's position on transfers of 
sophisticated satellite technology in China.
  Those votes passed 417 to 7, 414 to 4, 412 to 6, and 364 to 54, that 
was overwhelming bipartisan support, opposing the President's actions 
of turning over missile technology to a potential enemy of the United 
States that will, in the near future, have their weapons of mass 
destruction trained on the children of this Nation.
  Mr. Speaker, the House should proceed to consider these two 
resolutions and fulfill our constitutional obligations to press for 
answers to the severe questions raised by this technology transfer to 
Communist China.
  Mr. Speaker, the first resolution this rule allows the House to 
debate concerns the President's assertion of executive privilege.

                              {time}  1130

  We should all pay attention. Many of us have been here for a long 
time, my good friend the gentleman from Massachusetts (Mr. Moakley) 
even longer than I, and I have been here for two decades.
  Mr. Speaker, the President has invoked executive privileges in three 
congressional inquiries and two court proceedings prior to his current 
assertions before a Washington, D.C. grand jury in a criminal 
investigation. Executive privilege, as Members are aware, is rarely 
invoked by Presidents, if ever invoked at all. It has only happened 
twice in the history of this Nation, once by a President named Nixon 
and now by a President named Clinton.
  President Reagan's counsel has recently written that President Reagan 
insisted the White House would not assert executive privilege over any 
materials even in the controversial Iran Contra investigation. The 
Reagan White House staff honored that pledge. That information was 
turned over to this Congress. President Clinton's own counsel has 
advised a similar approach to executive privilege, but it would seem 
that the Clintons have not followed that advice. Mr. Speaker, something 
is wrong.
  Former White House counsel Lloyd Cutler, if Members are back in their 
offices, I want them to listen to this, former White House counsel 
Lloyd Cutler, a very respected gentleman, wrote a special memorandum to 
the executive departments and agencies in 1994, stating that in 
circumstances involving communications relating to investigations of 
personal wrongdoing by government officials, it is our practice not to 
assert executive privilege, either in judicial proceedings or in 
congressional investigations and hearings.
  Mr. Speaker, the case law is strongest in favor of a President's 
claim of executive privilege over matters relating to national security 
and diplomatic issues, but the law is skeptical of a general claim of 
executive privilege. Courts typically must balance the assertion of 
executive privilege by a President with the public's right to know.
  Mr. Speaker, press accounts have indicated that the President has 
asserted executive privilege before the independent counsel in regard 
to conversations with staff and with the First Lady over the 
appropriate political response to allegations of perjury and 
obstruction of justice in the White House. The media has further 
reported that a Federal judge has rejected this claim and an appeal is 
being contemplated by the White House. The decision itself is under 
seal. In addition, many prominent news organizations have filed briefs 
to make the proceedings regarding executive privilege public so that 
the American people can see for themselves.
  Mr. Speaker, I think it is eminently reasonable to protect grand jury 
testimony and presume the innocence of the individuals impacted by this 
investigation. However, an assertion of executive privilege which has 
no relation to national security whatsoever, and which is the subject 
of a great debate in law schools and on the editorial pages around this 
country right today, should be discussed on the floor of this House.
  Mr. Speaker, the second resolution this rule will allow the House to 
consider, my legislation, relates to the President's former political 
appointees and friends who have failed to cooperate with congressional 
investigations. Over 90 witnesses, Mr. Speaker, 90 witnesses in the 
campaign finance investigation have fled this country or have taken the 
Fifth Amendment privilege before the committee.
  Mr. Speaker, this is a level of noncompliance that the highly 
regarded director of the FBI, Louis Freeh, who we all have great 
respect for, has compared to an organized crime case.
  Mr. Speaker, that is just terrible.
  Mr. Speaker, last year the House voted to empower the Committee on 
Government Reform and Oversight with additional procedural tools to 
enhance its ability to gather evidence at home and overseas. I put that 
out of the Committee on Rules. The House has spoken on one occasion and 
endorsed the importance of this inquiry by granting authorities beyond 
what is available in the House rules today.
  Mr. Speaker, all Members should support the mechanisms needed to 
allow the truth to be aired in this scandal. We are talking about 
breaches of national security that affect the strategic interests and 
the future of this great democracy of ours.
  The minority on the Committee on Government Reform and Oversight has 
opposed on two occasions the granting of immunity to four witnesses, 
which the Department of Justice has approved before the committee. 
Perhaps the minority will come to regret their two votes against 
immunity in the

[[Page H3636]]

coming weeks, especially when we see what has been taking place now on 
the front pages and in the editorials of this Nation across this 
country, when it looks like that we have literally sold this country 
down the drain by giving away the kind of missile technology, again, 
which is going to allow a potential enemy of the United States to train 
long range missiles of mass destruction against this country.
  Press accounts on a daily basis are reporting that the Justice 
Department is investigating whether the White House decision to export 
commercial satellite technology to China was based on campaign 
contributions. We need to know, Mr. Speaker. If that is true, that is 
truly, truly outrageous.
  Johnny Chung, we have all heard his name mentioned all across the 
headlines now for months, a Democrat fund-raiser who pled guilty in the 
campaign finance probe in March, has reportedly told the Justice 
Department that he received $300,000 from a senior executive in a 
State-run Chinese aerospace firm to give to the Democrat party. Chung 
then contributed approximately $366,000 thousand to the Democratic 
National Committee for the 1996 election cycle.
  Mr. Speaker, two of the witnesses whom the Democrats have blocked 
immunity for in the Committee on Government Reform and Oversight were 
coworkers of Johnny Chung. Think about that. They were coworkers of 
Johnny Chung.
  Consideration, Mr. Speaker, of House Resolution 433 will give the 
House an opportunity to express its support for returning these 
individuals to the United States and obtaining the necessary testimony 
so that Americans can have some confidence that the United States 
foreign policy and security interests were not sold to the highest 
bidder. We need to debate that on the floor of this House.
  When the number of unavailable witnesses in a legitimate 
congressional inquiry into the executive branch reaches the level of an 
organized crime probe, which is what Louis Freeh said, something is 
terribly wrong in the Nation's Capital and we need to get to the bottom 
of it.
  Mr. Speaker, it is troubling that the highest level officials at the 
White House refuse to even confirm if a sweeping, precedent-setting 
assertion of executive privilege has been made. I believe that a 
conspiracy of silence has descended over this town, and it is time for 
the House to debate this issue. If Members believe that they have a 
right to know as constitutional officers of this body and the public 
has a right to know, then they should vote for this rule. If they want 
to have a discussion on the House floor of how personal ethics, the 
rule of law and the public interest intersect in this town, come over 
here and vote for this rule.
  Mr. Speaker, I reserve the balance of my time.
  Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I thank my dear friend, my chairman, the gentleman from 
New York (Mr. Solomon), for yielding me the customary half hour.
  Mr. Speaker, both of the resolutions we are considering here today 
were created as nothing more than an unfortunate form of political 
retaliation. Last Thursday the gentleman from New York (Mr. Solomon) 
announced we would be considering these resolutions because of the 
action of the Democratic House leadership. In case that statement was 
ambiguous, this Monday's Roll Call newspaper quoted a Republican leader 
as saying, ``This is retaliation, this is war.''
  I do not think it could be any clearer, Mr. Speaker. These 
resolutions are intended to punish House Democrats for asserting their 
rights on the House floor. They are to attack the President because of 
the perceived refusal of his friends and employees to cooperate with 
the many congressional allegations and investigations.
  Mr. Speaker, I do not think I need to remind anybody that retaliation 
is really not a very good reason for legislation. Improving our 
Nation's schools is a great reason for legislation. Cleaning up our 
air, cleaning up our water is a great reason for legislation. Creating 
jobs for American workers is a great reason for legislation. Punishing 
political opponents is not a good reason for legislation.
  Mr. Speaker, that is exactly what my Republican colleagues are doing 
here today, under their own admission. Mr. Speaker, they are not doing 
it very well. Last Thursday the Committee on Rules was scheduled to 
meet at 3:00 for the defense authorization bill. At 3 minutes before 
3:00 I got a call saying the Committee on Rules would be adding an 
emergency matter to the defense meeting.
  Given the subject matter, Mr. Speaker, I think it is a stretch to 
call these partisan resolutions emergencies. I hope that last-minute 
additions of this nature do not become a regular practice of the 
committee. Up until now we have got great notice, we have got ample 
notice so that we are adequately prepared when we go into that 
committee room, but 3 minutes before the meeting we were given these 
resolutions.
  And lest anyone gets too serious about these resolutions, I would 
remind my colleagues that they are simply resolutions expressing the 
opinion of the majority of the House. They carry no legislative weight, 
and I think at this time they are just a waste of time.
  Given the enormous number of partisan investigations taking place in 
the House these days, and if anybody has to be reminded, there are over 
40 investigations going on currently in the House of Representatives, 
taking up the time of 12 of the 20 standing committees. Given the 
hundreds of people who have been subpoenaed, it is no wonder a few of 
them have declined to cooperate. I do not remember the victims of the 
Salem witchcraft trials running to be burned at the stake. The last 
time I looked, they had not changed the Fifth Amendment protection 
which grants a person the right to refuse to testify.
  The other resolution dealing with executive privilege is so poorly 
written, I am not sure exactly what they are after. The resolution 
calls for all documents relating to the claims of executive privilege. 
Now, does that mean legal documents asserting the right to executive 
privilege, which are currently sealed in the courts, or does that mean 
documents dealing with the subject matter the President is privileged 
to keep to himself?
  Mr. Speaker, as my Republican colleagues know, it does not matter 
because as legally binding documents, these resolutions are not worth 
the paper they are written on. To make matters worse, they are being 
brought up under a closed rule which not even allows the Democrats a 
motion to recommit.
  Now, if we had brought such a rule 3 minutes before the committee 
scheduled to meet, my Republican colleague, my able Republican 
colleague would be 8 feet off the floor screaming and hollering, what 
has happened to our democratic process? But now, Mr. Speaker, they are 
in the majority so they are somewhat less indignant at the loss of 
minority rights than they were just a few years ago.
  So I urge my colleagues to oppose this rule and these partisan 
resolutions. I feel the American people are just sick and tired of 
their representatives using the power of the Congress to attack Members 
of the other party.
  Mr. Speaker, my dear friend and colleague said that President Reagan 
never invoked executive privilege. I will include in the Record the CRS 
study on the history of executive privilege where it shows President 
Reagan used the executive privilege three times and President Bush also 
used it one time.
  Mr. Speaker, I include for the Record the following:

 Fact Sheet on Presidential Claims of Executive Privilege: Background, 
 History, Case Law, Recent Invocations, and Process for Claims--March 
                                27, 1998


                            i. introduction

       Within the last year the Supreme Court and federal appeals 
     courts have ruled upon presidential claims of the executive 
     privilege (In re Sealed Case) attorney-client and work 
     product privileges (In re Grand Jury Subpoena, In re Sealed 
     Case), and temporary immunity from civil suit for unofficial 
     acts (Clinton v. Jones). While none of the rulings directly 
     involved congressional demands for testimony or documents, 
     their rationales potentially impact the conduct of current 
     and future committee investigations. This fact sheet outlines 
     the background of the development of presidential executive 
     privilege, including the nature of the conflicting interests 
     of Congress and the Executive, the role of the courts and the 
     existing case law, and the history of recent presidential 
     invocations of the privilege and the process of such 
     invocations.

[[Page H3637]]

   ii. Congressional Challenges to Presidential Claims of Executive 
                               Privilege

     A. Understanding the nature of interbranch conflict
       Congressional challenges to presidential claims of 
     executive privilege do not represent a breakdown in our 
     scheme of separated powers but rather are part of the dynamic 
     of conflict built into the constitutional scheme to achieve 
     workable accommodations which will preclude the exercise of 
     arbitrary power. The framers, rather than attempting to 
     define and allocate all governmental power in minute detail, 
     relied on the expectation that were conflicts in scope of 
     authority arose between the political branches, a spirit of a 
     mutual accommodation would promote resolution of the dispute 
     in the manner most likely to result in efficient and 
     effective functioning of our governmental system. Thus, the 
     coordinate branches are not to be seen as existing in an 
     exclusively adversarial relationship to one another when a 
     conflict in authority arises. Instead, each branch is 
     enjoined to take cognizance of the implicit constitutional 
     mandate to seek optimal accommodation through a realistic 
     evaluation of the needs of the conflicting branches in the 
     particular fact situation. The essence of that dynamic was 
     captured by Mr. Justice Jackson in the Steel Seizure Case:
       ``While the Constitution diffuses power the better to 
     secure liberty, it also contemplates that the practices will 
     integrate the dispersed powers into a workable government. It 
     enjoins upon its branches separateness but independence, 
     autonomy but reciprocity.''
       Despite the notoriety of Watergate and more recent clashes 
     over invocation of the privilege, history indicates that such 
     confrontations are rare and that the implicit constitutional 
     injunction to accommodate has been honored in almost all 
     instances of notoriety.
     B. Conflicting interests of Congress and the President and 
         their supporting constitutional powers
       (1) Congress needs information--
       (a) for the formulation and enactment of legislation;
       (b) to ensure executive compliance with legislative intent;
       (c) to inform the public;
       (d) to evaluate program performance;
       (e) to protect the integrity, dignity, reputation and 
     prerogatives of the institutions;
       (f) to investigate alleged instances of poor 
     administration, arbitrary and capricious behavior, abuse, 
     waste, fraud, corruption and unethical conduct; and
       (g) to protect individual rights and liberties.
       (2) The President needs to withhold information--
       (a) to meet the challenges and requirements of modern 
     national security, military and diplomatic policy 
     decisionmaking which often demand rapid, decisive and secret 
     decisions and responses to protect the integrity of the 
     decisional process;
       (b) to secure accurate, frank and robust advice and 
     information from subordinates, particularly from close 
     advisors, in order to perform his constitutional functions;
       (c) to protect the integrity of its law enforcement 
     function which would be undermined by revelation of 
     prosecution strategies, legal analysis, potential witnesses, 
     and settlement considerations; and
       (d) to protect presidential privacy.
       (3) To gain access to information congressional committees 
     may--
       (a) initiate formal investigations;
       (b) issue subpoenas to compel production of documents and 
     testimony;
       (c) find an executive officer in contempt and seek a 
     criminal indictment of the official;
       (d) threaten and withhold appropriations for executive 
     programs;
       (e) fail to act on presidential legislative initiatives and 
     on nominations;
       (f) call for the appointment of an independent counsel;
       (g) file a civil suit to enforce compliance with subpoenas; 
     and
       (h) threaten and seek impeachment of the official refusing 
     to comply.
       (4) The President may resist by--
       (a) delaying compliance until the congressional need is 
     ended;
       (b) order subpoenaed officers to claim privilege;
       (c) direct the United States attorney not to bring a 
     contempt before a grand jury;
       (d) challenge an indictment on appropriate privilege 
     grounds;
       (e) negotiate a disclosure that does the least damage to 
     executive interests; and
       (f) utilize the ``bully pulpit'' of the presidency to 
     convince the public that Congress is overreaching.
     C. The role of the courts
       The courts have been exceedingly reluctant to become 
     involved in resolving the merits of presidential privilege 
     claims against information demands of the coordinate 
     branches. The Supreme Court has recognized the constitutional 
     basis for a qualified claim of privilege for presidential 
     communications but in that instance held that the privilege 
     was outweighed by the need of the judiciary for the 
     information in a criminal prosecution. Most recently, a 
     federal appeals court made the most extensive examination to 
     date of the nature, scope and operation of the privilege, 
     determining how far down the line of command from the 
     President the presidential privilege extends, and what kind 
     of demonstration of need must be shown to justify release of 
     materials that qualify for such a privilege.
       (1) United States v. Reynolds, 345 U.S. 1 (1952) 
     (recognition of absolute privilege to withhold national 
     security matters from a private party in a civil case).
       (2) Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) 
     (presumptive privilege for confidential presidential 
     conversations overcome by showing a need for evidence by 
     grand jury).
       (3) Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. 
     Cir. 1974) (upholding presidential claim of privilege because 
     committee had failed to demonstrate that sought-after 
     information was ``critical'' to its function, emphasizing 
     that the committee's investigation substantially overlapped 
     that of the House impeachment committee which already has 
     access to the subject tapes).
       (4) United States v. Nixon, 418 U.S. 683 (1974) 
     (recognizing constitutional basis of a qualified claim of 
     privilege but holding that it was outweighed by need of 
     judiciary for the information in a criminal prosecution).
       (5) United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976); 
     567 F.2d 121 (D.C. Cir. 1977 (court twice declines to decide 
     merits, ordering further attempts at resolution by the 
     parties).
       (6) United States v. House of Representatives, 556 F. Supp. 
     150 (D.D.C. 1983) (dismissing suit to enjoin certification to 
     U.S. Attorney of contempt of Congress citation).
       (7) In re Sealed Case, 116 F.3d 550 (D.C. Cir. 1997) 
     (holding that presidential communications privilege extended 
     to communications authored by or solicited and received by 
     presidential advisers which involved information regarding 
     governmental operations that ultimately call for direct 
     decisionmaking by the President, but that the independent 
     counsel had overcome the privilege by a demonstration that 
     each discrete group of subpoenaed materials likely contained 
     important evidence, and that the evidence was not available 
     with due diligence elsewhere).
     D. History of and process for Presidential invocations of 
         privilege
       (1) Early Confrontations
       (a) Washington
       (b) Adams
       (c) Jefferson
       (d) Jackson
       (2) Expansion of the Privilege
       (a) Truman
       (b) Eisenhower
       (3) Watergate and Post-Watergate Confrontations
       (a) Nixon
       i. Assertion of privilege at direction of President by 
     Attorney General Mitchell to withhold FBI reports (1970)
       ii. Assertion of privileges by Secretary of State Roger at 
     direction of President to withhold information on military 
     assistance programs (1971)
       iii. Claim of privilege asserted to prevent White House 
     advisor from testifying on IT&T settlement during 
     consideration of Kleindienst nomination for Attorney General 
     (1972)
       iv. Claim of privilege as Watergate tapes (1973)
       (b) Ford and Carter
       i. President Ford directed Secretary of State Kissinger to 
     withhold documents relating to State Department 
     recommendations to National Security Council to conduct 
     covert activities (1975)
       ii. President Carter directed Energy Secretary Duncan to 
     claim privilege for documents relating to development and 
     implementation of a policy to impose a petroleum import fees 
     (1980)
       (c) Reagan
       i. James Watt/Canadian Land Leases (1981-1982)
       ii. Ann Burford/EPA Superfund Enforcement (1982-1983)
       William Rehnquist nomination/OLC Memos (1986)
       (d) Bush
       i. President Bush ordered Defense Secretary Cheney not to 
     comply with a subpoena for a document related to a 
     subcommittee's investigation of cost overruns in a Navy 
     aircraft program (1991)
       (e) Clinton
       i. Kennedy Notes (1995) (executive privilege initially 
     raised but never formally asserted)
       ii. White House Counsel Jack Quinn/Travelgate (1996)
       iii. FBI-DEA Drug Enforcement Memo (1996)
       iv. Haiti/Political Assassinations Documents (1996)
       v. In re grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th 
     Cir. 1997), cert denied, 117 S.Ct. 2482 (1997) (executive 
     privilege claimed and then withdrawn at district court. 
     Appeal court rejected applicability of common interest 
     doctrine to communications with White House counsel's office 
     attorneys and private attorneys for the First Lady)
       vi. In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (Espy 
     case) (executive privilege asserted but overcome with respect 
     to documents revealing false statements)
       (4) The Process for Presidential Invocations of Privilege
       (a) Eisenhower--Broad authority given to Executive Branch 
     officers and employees to claim presidential privilege in the 
     face of congressional information demands.
       (b) Kennedy and Johnson--Informal agreements with Congress 
     that privilege would only be invoked by the President 
     himself.
       (c) Nixon--Established first formal procedure for 
     invocation of privilege: agency head advises Attorney General 
     of potential claim. If both agree on need to invoke 
     privilege, the Counsel to the President is informed. If 
     President approves, the agency head informs Congress.

[[Page H3638]]

       (d) Reagan--Memorandum to all department and agency heads 
     of November 4, 1982. No invocation without presidential 
     authorization. Pinpoints national security, deliberative 
     communications that form part of the decisionmaking process, 
     and other information important to discharge of Executive 
     Branch constitutional responsibilities, as subject to 
     privilege. If the head of an agency, with the advise of 
     agency counsel, decides that a substantial question is raised 
     by a congressional demand, the Attorney General, through the 
     Office of Legal Counsel, and the White House Counsel's 
     Office, to be promptly notified and consulted. If one or more 
     of the presidential advisors deemed the issue substantial, 
     the President is informed and decides and the decision is 
     communicated to by the agency head to the Congress.
       (e) Clinton--Memorandum of September 28, 1994, from White 
     House Counsel Lloyd Cutler to all department and agency 
     general counsels modified the Reagan policy by requiring the 
     agency head to directly notify the White House Counsel of any 
     congressional request for ``any document created in the White 
     House . . . or in a department or agency, that contains 
     deliberations of, or advice to or from, the White House'' 
     which may raise privilege issues. The White House Counsel is 
     to seek an accommodation and if that does not succeed, he is 
     to consult of the Attorney General to determine whether to 
     recommend invocation of privilege to the President. The 
     President than determines whether to claim privilege, which 
     is then communicated to the Congress by the White House 
     Counsel.


iii. implications of in re sealed case for congressional investigations

       A. The court distinguished between a ``presidential 
     communications privilege'' which is constitutionally based 
     and applies only to direct presidential decisionmaking and 
     which may be overcome by a substantial showing that the 
     subpoenaed materials contain important evidence, and that the 
     evidence is not available elsewhere; and ``the deliberative 
     process privilege,'' which is a common law privilege that 
     applies to executive officials generally and whose negation 
     by courts or congressional committees is subject to less 
     demanding scrutiny, and ``disappears altogether when there is 
     any reason to believe government misconduct occurred.''
       (1) Court's limitation of communications privilege to 
     ``direct presidential decision making,'' and utilizing 
     President's need for information to exercise his appointment 
     and removal power as its example in the decision, may 
     indicated that only core presidential powers are within the 
     protection of the privilege. thus decisions vested in an 
     agency by Congress, such as rulemaking, environmental policy, 
     or procurement, which do not implicate foreign affairs, 
     military or national security functions would not be covered.
       (2) Court's recognition of the deliberative process 
     privilege as a common law privilege when claimed by executive 
     department and agency official's, which is easily overcome, 
     and which ``disappears'' upon the reasonable belief by an 
     investigating body that government misconduct has occurred, 
     may severely limit the common law claims of agencies against 
     congressional investigative demands. A demonstration of need 
     of a jurisdictional committee would appear to be sufficient, 
     and a plausible showing of fraud waste, abuse or 
     maladministration would be conclusive. Moreover, the 
     diminished status of common law claims would certainly apply 
     to others, such as the attorney-client and work product 
     privileges.
       (3) The In re Sealed Case Court's intent was to limit how 
     afar down the chain of command the cloak of the President's 
     communication privilege could extend. However, the case 
     involved only White House officers and employees tasked (or 
     sub-tasked) to advise the President about the Espy matter. It 
     did not involve department or agency officers or employees. 
     The question left open is whether, and how far, the privilege 
     would extend if the President seeks the advice of a cabinet 
     member. If the rationale of the court is in fact to limit the 
     breath of the privilege, then much will depend on how future 
     courts construe the term ``direct presidential 
     decisionmaking.'' If it is limited to so-called ``core'' 
     presidential prerogatives decisions which Congress has 
     committed by law solely to the President. it will not serve 
     to cloak the assistance an agency head gets from his 
     subordinates if it involves a non-core function. Example: 
     communications between the Environmental Protection Agency 
     (EPA) and the White House with respect to the final shape of 
     its Clear Air Act rule. Environmental rulemaking is committed 
     by law to the Administrator of EPA and thus there is no 
     ``direct'' decisionmaking required by the President.
       (4) The In re Sealed Case court expressly reserved the 
     question whether the same balancing test (substantial showing 
     that materials contain important evidence and evidence is not 
     available with due diligence elsewhere) applied to determine 
     if a grand jury subpoena overcame privilege claim would also 
     apply to congressional compulsory process. It is significant, 
     however, that the court found that independent counsel had 
     met his burden and ordered production of all withheld 
     documents that contained evidence of false statements.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SOLOMON. Mr. Speaker, I yield myself such time as I may consume.
  The gentleman has just brought up President Reagan. Of course, 
everyone knows he was my hero and what a great President he was, and we 
can all be so proud of what he accomplished on a bipartisan basis, 
working with a Democrat-controlled Congress and vetoing fewer bills 
than any other President I remember, because he taught me and others 
the art of compromise, the fact you could not have it all your own way 
and that to accomplish something you had to work together. That was 
Ronald Reagan.
  Here is a letter that appeared on May 4, 1998 in the Washington Post, 
a letter to the editor.

          President Reagan Did Not Invoke Executive Privilege

       In the April 5 Outlook section, Stephen E. Ambrose wrote 
     that in the Iran-contra case the Reagan administration 
     ``dared'' to withhold evidence from congressional committees 
     and/or a special prosecutor and to invoke the doctrine of 
     executive privilege. His statement is wrong.
       In November 1986, when the Reagan White House voluntarily 
     disclosed the so-called diversion of funds from the Iranian 
     arms sales to support the Nicaraguan Democratic Resistance, 
     President Reagan called for the appointment of an independent 
     counsel, pledged cooperation with the independent counsel and 
     congressional committees, and stated that he would not assert 
     the attorney-client privilege and executive privilege with 
     respect to the Iran-contra matter. The Reagan White House 
     honored that pledge.
       The only controversy I recall, as White House counsel from 
     March 1987 through the end of the Reagan administration, was 
     that the White House initially rejected suggestions that the 
     select committees be provided a ``computer dump'' of all 
     electronic mail generated by certain former senior National 
     Security Council officials, whether or not the electronic 
     messages were relevant to the investigation. The committees' 
     computer consultant believed that such a ``dump'' might 
     retrieve electronic mail previously deleted. That controversy 
     was resolved by the Reagan White House's directing its 
     computer consultant to create a program to retrieve any 
     deleted electronic mail generated by those NSC officials. The 
     relevant material produced by that search was produced to 
     Congress and to the independent counsel.
       I also am unaware of any serious suggestion that the Reagan 
     White House ``dared'' to withhold evidence from congressional 
     committees or the independent counsel. When, during the 1989 
     criminal trial of Oliver North, seven documents were 
     introduced that allegedly had not been produced in 1987 to 
     the congressional committees, this matter was investigated by 
     both Congress and the independent counsel. The simple 
     explanations were human error (one NSC file with three 
     relevant documents inadvertently was not searched in 1987, 
     and three other documents apparently were overlooked by FBI 
     agents working for the independent counsel who searched 
     hundreds of sensitive NSC files), confusion (the White House 
     had a signed receipt for one document that Congress could not 
     find two years later) and new searches had yielded new 
     material (Mr. North obtained discovery of executive branch 
     documents broader in scope than that agreed to by Congress 
     and the independent counsel which required White House files 
     to be searched yet again after the congressional 
     investigation had ended).
       The far more important points are (1) that the Reagan White 
     House never asserted executive privilege and voluntarily 
     produced to Congress and to the independent counsel many 
     documents that were far more interesting and potentially 
     damaging to President Reagan than the seven documents 
     introduced at the North trial and (2) that none of those 
     seven documents challenged the president's repeated assertion 
     that he was unaware of the diversion of funds from the 
     Iranian arms sales to the Nicaraguan Democratic Resistance.
                                        Arthur B. Culvahouse, Jr.,
                                                       Alexandria.

                              {time}  1145

  ``President Reagan did not invoke executive privilege.'' Goes on to 
site that, ``In November of 1986, when the Reagan White House 
voluntarily disclosed the so-called diversions of funds from the 
Iranian arms sales to support the Nicaraguan democratic resistance,'' 
which by the way we should have been supporting because we stopped 
communism dead in its tracks in this hemisphere, ``to support the 
Nicaraguan democratic resistance, President Reagan called for the 
appointment of an independent counsel himself, pledged cooperation with 
the independent counsel and congressional committees, and stated that 
he would not assert the attorney-client privilege and executive 
privilege with respect to the Iran Contra,'' and I will supply that, 
Mr. Speaker, for the Record.
  The gentleman has gone on at length to say that he does not know what 
we are after. Well, let me tell the gentleman that what we are after, 
and

[[Page H3639]]

first of all, let us say who we are, we are the American people, the 
American people want the truth. The bill he is referring to, the 
executive privilege bill, let me just go back and repeat something I 
said in my opening remarks.
  Lloyd N. Cutler, who was special counsel to President Carter, and one 
of the most respected lawyers in this town, in a memorandum to the 
general counsels in 1994 of all executive departments and agencies 
wrote, ``In circumstances involving communications relating to 
investigations of personal wrongdoing by government officials, it is 
our practice not to assert executive privilege either in judicial 
proceedings or in congressional investigations and hearings.''
  Now, that is one of the whereas's. Look at the next whereas. It says, 
``Whereas President Clinton is the first President since President 
Nixon and the second in the history of the United States to withhold 
information under claims of executive privilege,'' and it goes on.
  Now, the gentleman has said he is not sure what we are after. Let me 
just read what we are after in the resolve of this legislation. It 
says: ``Resolved, that it is the sense of this Congress.'' And the 
gentleman is right, it is only a sense of Congress. Perhaps we should 
bring something that has more teeth to it, but this is a sense of 
Congress, meaning this is how this Congress feels.
  ``It is the sense of the House of Representatives that in the 
interest of full disclosure, consistent with principles of openness in 
government operations, all records or documents, including legal 
memoranda, briefs and motions relating to any claims of executive 
privilege asserted by the President, should be immediately made 
publicly available.''
  Now, my good friend the gentleman from Massachusetts (Mr. Moakley) is 
saying we cannot do that, that the President has the right to keep that 
closed. Yes, he does. But is he not the President of the United States 
of America? What has he to hide? Why can he not just come out here, 
come into this well, as a matter of fact, and tell the American people? 
Instead, all he says is, well, there is no evidence. He did not say he 
did not do this or he did not do that. He simply says there is no 
evidence that I did this or that.
  So I do not know if we should get into this until we really get into 
the debate on the resolution, but the truth of the matter is we should 
bring this to the floor, and we should have an intelligent, honest and 
sincere debate, without getting upset with each other about getting the 
truth out on this issue.
  Mr. DeLAY. Mr. Speaker, will the gentleman yield?
  Mr. SOLOMON. I yield to the gentleman from Texas, the majority whip 
and sponsor of the executive privilege legislation.
  Mr. DeLAY. Mr. Speaker, I appreciate the chairman yielding, and I ran 
up here to answer the question why we are doing this.
  In my mind, and from my perspective, because I have one of the 
resolutions in this rule, the reason we are doing this is this has been 
4\1/2\, almost 5 years; 4\1/2\, almost 5 years of the American people 
not being able to get to the truth. And the reason they have not been 
able to get to the truth is that the President of the United States has 
used executive privilege. He has hidden behind his lawyers, he has 
hidden behind the courts, he has hidden behind hiding documents, 
documents are slow to come, they are redacted when they come, time and 
time again.
  We know what the strategy here is, and the strategy is to get past 
the next election. And now we find, if we look at what has happened in 
the other body and what has happened in this body, some in the party on 
the other side of the aisle are participating in this process of 
dragging their feet, using procedures to hide behind, to make sure that 
the American people do not get to the truth.
  It is time. It is about time that this House starts debating and 
looking at what has been going on for 4\1/2\ years, and that is the 
reason that we brought this rule to the floor, and that is the reason 
that I want to present my resolution to the body.
  Mr. SOLOMON. Mr. Speaker, I reserve the balance of my time.
  Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume, 
and I thank my dear friend, the majority whip, for the explanation, but 
all I am doing is restating what appeared in Roll Call that said the 
Republicans said this was retaliation for the House Democrats' action 
on the floor and this is war.
  Now, my dear friend from New York, and he is my dear friend, brought 
up President Reagan first. I did not bring him up. And he may quote 
from the Washington Post saying that President Reagan never exerted 
executive privilege, but I think the Congressional Research Service, 
who did the study on it, is much more authority than The Washington 
Post, and it cites three separate and distinct times that the President 
exerted executive privilege.
  And I say this because I know the gentleman from New York reveres 
President Reagan as an idol. And I just wanted to show him that if 
President Reagan thought it was proper to use executive privilege, then 
other Presidents probably followed his role.
  Mr. Speaker, I yield 5 minutes to the gentlewoman from Connecticut 
(Ms. DeLauro).
  Ms. DeLAURO. Mr. Speaker, I rise to congratulate my Republican 
colleagues on the speed with which they have brought these two 
resolutions to the floor of the House. Clearly, investigations of 
wrongdoing are serious matters and ones which this House ought to 
consider, to be very serious about, to debate thoroughly, and no one 
questions that. No one questions that in this body because it, in fact, 
is our responsibility as public officials.
  Let me just mention to my colleagues that there are a number of 
issues, serious issues, which the Republican leadership in this House 
has stalled on, refused to bring to this floor. Now, as we are prepared 
to recess, to go off for the Memorial Day holiday, and we will leave 
here tomorrow afternoon, I join with the American people, with 
Americans across this country in wondering and conjecturing why this 
House has not addressed and voted on the critical issue of campaign 
finance reform.
  The chairman of the Committee on Rules has cited various 
transgressions of campaign financing. If that is the case, why does 
this body not have the time to vote to fix up a broken-down campaign 
finance system? If we are genuine about wanting to reform that system 
and to prevent transgressions, then we would be voting on that issue 
today.
  Why does the Republican leadership not bring up the Patient Bill of 
Rights to this floor with equal speed? Millions of Americans are crying 
out for protection from unscrupulous health insurance companies, and 
every single day patients are denied, they are denied, the information 
and the health care that they have paid their insurance companies to 
give out to them.
  What the American people support is congressional action to protect 
the doctor's ability to make medical decisions along with patients 
without interference from insurance companies, bureaucrats and 
accountants. Why has that bill not been brought to this House when 
there is tremendous bipartisan support for that legislation in this 
body? That is what we should be voting on today.
  We have other health issues to debate. My Breast Cancer Patient 
Protection Act has 218 votes, enough to pass this House. This would say 
that women cannot be treated as outpatients for a mastectomy. Women 
today in this country are going home less than 24 hours after a 
mastectomy, with drainage tubes, groggy from anesthesia. We have the 
votes in this House to pass that bill, and they refuse to allow it to 
be brought to the floor. That is what we should be passing today in 
this body.
  Why are we not doing something about child care legislation so that 
working families today will have the opportunity to go to work but to 
feel that they have affordable, safe child care in which their kids can 
thrive and be ready for the future?
  Why have we not done anything about education and passing a 
modernization bill that says that what we are going to do is to make 
class sizes smaller; have better and tougher standards? Why can we not 
have education legislation in this House that, in fact, says let us 
reduce the size of our classes? Let us make it a better atmosphere, 
with tougher standards for more

[[Page H3640]]

opportunity and a better environment for our kids to learn? That is 
what we should be debating in this House today. That is what we should 
be passing on. That is what parents are concerned about, and rightly 
so.
  And, in fact, why are we not debating in this House tobacco 
legislation? They are doing that in the other body today. Why do we not 
want to prevent underage kids from being able to smoke and a tobacco 
industry that has targeted 12 years old? An R. J. Reynolds report in 
1984 says that 12 years old are replacement smokers. They are the new 
revenue stream.
  Three thousand of our kids take up smoking every single day; 1,000 of 
them will die from a tobacco-related illness. That is what this body 
ought to be debating, is how we prevent our children from smoking and 
how we prevent the tobacco industry from targeting our young people. 
That is what our obligation is. That is what our responsibility is.
  But this House is too busy. This House is too busy to consider all of 
this legislation. Let me just say that these resolutions have been 
brought up in an instant. That is the prerogative of the majority in 
this body, to bring up legislation, to schedule it, to get it passed. 
The majority in this body has decided to bring up an investigation.
  And we should investigate. Again, I said at the outset no one 
questions our need to investigate. But the American people are crying 
out for a Congress, for a House of Representatives that says do 
something about my living standard, do something about my ability to 
get my kids to school, do something about my health insurance and my 
retirement security, do something about preventing my kids from using 
tobacco and illness and potentially death. That is what our obligation 
is here today. We should take it seriously and be true public servants.
  Mr. SOLOMON. Mr. Speaker, I yield myself such time as I may consume, 
and I will try to expedite matters, because I know there are some 
church services that are going to be starting soon.
  Before yielding time to the majority whip, I would like to say that I 
wish the same people who come to this floor and criticize tobacco would 
at the same time take this floor in outrage, in outrage, over the 
illegal use of marijuana and other drugs that are literally killing, 
killing our young children today. Think about that, folks, because that 
is ten times more important than tobacco.
  The gentlewoman from Connecticut just spoke about campaign finance 
transgressions that we are bringing up, and, yes, we are bringing it 
up. We will be debating today campaign finance reform on this floor and 
for several days to come, and it will be the fairest and most 
comprehensive debate ever held on this floor on campaign finance reform 
or probably anything else. But before we start debating on campaign 
finance reform, we want to find out why existing campaign laws have 
been criminally broken.
  Should we not wonder why these existing laws have been broken? That 
is what this debate is all about today.
  Mr. Speaker, I yield what time he may consume to the gentleman from 
Texas (Mr. DeLay), the majority whip.
  Mr. DeLAY. Mr. Speaker, let me just say, in evaluating what we just 
witnessed from the gentlewoman from Connecticut, that I appreciate her 
passion for the issues that she thinks are important that we should 
bring to the floor.

                              {time}  1200

  And we will carry out our obligations. Our committees are working. 
They are putting out legislation. We marked up a budget just this week. 
We will have the budget on the floor in a couple of weeks. Our 
appropriations process is working. The House is doing the people's 
business.
  But what we are seeing by what we just witnessed was an effort, a 
concerted effort, by Democrats of this House to change the subject. 
They do not want to talk about this subject. They will do anything to 
change the subject. They are very upset that we are bringing this to 
the floor and saying, what is the reason for bringing this to the 
floor?
  I say to my good friend, and I do have the utmost respect for the 
ranking member of the Committee on Rules, that when he cited that 
President Reagan invoked executive privilege three times, he is right, 
but mostly for national security reasons. But what he did not invoke 
executive privilege for was to withhold information under claims of 
executive privilege from a grand jury investigating allegations of 
personal wrongdoing and possible crimes in the White House. That is 
what we are talking about here.
  Another reason we want to bring this resolution to the floor, and I 
hope Members will vote for the rule, is that the President is hiding 
behind the courts, as I said earlier, and he knows very well that the 
courts are not going to uphold his claim of executive privilege to 
withhold information of personal wrongdoing. But if he engages in 
enough appeals process, we might get past November's election and he 
will think he will be home free because he will have only 2 years left 
of his term.
  But we want the next court that hears the appeal of the President's 
executive privilege claim to know how the people's House feel about 
executive privilege, and that is the reason I am bringing my 
resolution.
  The next court could be the Court of Appeals or the Supreme Court. 
But they ought to know how the people's House feels about a President 
that invokes executive privilege for himself, the First Lady and his 
staff in order to withhold information from a grand jury investigating 
allegations of personal wrongdoing and possible crimes in the White 
House.
  Mr. SOLOMON. Mr. Speaker, I yield myself such time as I may consume.
  I would say to my good friend, there are church services starting. We 
need to determine whether or not there is going to be a vote. So I will 
not entertain any other speakers besides myself to briefly close, if 
the gentleman would like to yield back his time.
  Mr. MOAKLEY. Mr. Speaker, I yield myself such time as I may consume 
to make one statement.
  My dear friend, the Majority Whip, said that President Reagan used 
executive privilege because of national defense things. Well, the three 
occasions I have, and maybe the gentleman from Texas (Mr. DeLay) has 
others, but one time he used it because of James Watts' connection with 
the Canadian land leases, which is not national defense. Another one 
was with superfund enforcement, which was not national security. And 
the other one was with the William Rehnquist nomination.
  Maybe he did use some other national security, but these were the 
three I was referring to.
  Mr. Speaker, I have no further requests for time, and I yield back 
the balance of my time.
  Mr. SOLOMON. Mr. Speaker, I yield myself the balance of the time.
  Let me again just say that the rule we are debating here will bring 
to the floor in a few minutes the DeLay resolution, which urges the 
President to immediately make public any claims of executive privilege 
and documentation or records pertaining to them so that the American 
people can know.
  My own resolution will follow that, which urges the President that he 
should use all legal means to compel all people who left the country or 
have taken the fifth, many of them are his associates or friends or 
friends of friends, to return to this country and to honestly come 
forth and let the American people know what is going on.
  Mr. Speaker, I yield back the balance of my time, and I move the 
previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.

                          ____________________