[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.
____________________