[Congressional Record Volume 144, Number 66 (Thursday, May 21, 1998)]
[House]
[Pages H3640-H3646]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENSE OF HOUSE CONCERNING PRESIDENT'S ASSERTIONS OF EXECUTIVE PRIVILEGE
Mr. ARMEY. Mr. Speaker, pursuant to House resolution 436, I call up
the resolution (H. Res. 432) expressing the sense of the House of
Representatives concerning the President's assertions of executive
order, and I ask for its immediate consideration.
The Clerk read the title of the resolution.
The text of House Resolution 432 is as follows:
H. Res 432
Whereas a unanimous Supreme Court held in United States v.
Nixon that ``[a]bsent a claim of need to protect military,
diplomatic, or sensitive national security secrets,
[[Page H3641]]
we find it difficult to accept the argument that even the
very important interest in confidentiality of Presidential
communications is significantly diminished by production of
such material'' that is essential to the enforcement of
criminal statutes (418 U.S. 683, 706 (1974));
Whereas during the Watergate investigation, the Supreme
Court unanimously held in United States v. Nixon that the
judicial need for the tapes of President Nixon ``shown by a
demonstrated, specific need for evidence in a pending
criminal trial'' outweighed the President's ``generalized
interest in confidentiality . . .'' (418 U.S. 683, 713
(1974));
Whereas the Supreme Court further held in United States v.
Nixon that ``neither the doctrine of separation of powers,
nor the need for confidentiality of high-level
communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial
process under all circumstances'' (418 U.S. 683, 706 (1974));
Whereas executive privilege is qualified, not absolute, and
should ``never serve as a means of shielding information
regarding governmental operations that do not call ultimately
for direct decisionmaking by the President'' (In re Sealed
Case, 116 F.3d 550 (D.C. Cir. 1997), reissued in unredacted
form, 121 F.3d 729, 752 (D.C. Cir. 1997));
Whereas on September 28, 1994, Special Counsel to the
President Lloyd N. Cutler, in a memorandum to the general
counsels of all executive departments and agencies, wrote,
``[i]n 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'';
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, from a grand jury investigating allegations of
personal wrongdoing and possible crimes in the White House;
Whereas the President's assertions of executive privilege
have recently been denied by a United States district court;
Whereas in January 1998, President Clinton said that the
``American people have a right to get answers'' regarding
certain matters being investigated by the Office of the
Independent Counsel;
Whereas President Clinton has promised to give ``as many
answers as we can, as soon as we can, at the appropriate
time, consistent with our obligation to also cooperate with
the investigations''; and
Whereas the people of the United States and their duly
elected representatives have a right to judge for themselves
the merits or demerits of the President's claim of executive
privilege: Now, therefore, be it
Resolved, That it is the sense of the House of
Representatives that, in the interests of full disclosure
consistent with principles of openness in governmental
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.
The SPEAKER pro tempore. Pursuant to House Resolution 436, the
gentleman from Texas (Mr. Armey) and a Member opposed each will control
30 minutes.
The Chair recognizes the gentleman from Texas (Mr. Armey).
Mr. ARMEY. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I want to personally thank the gentleman from Texas (Mr.
DeLay) for introducing this resolution. The resolution is very simple.
It simply says that all documentation related to the White House claims
of executive privilege should be made public.
Mr. Speaker, this is a serious debate. It is a serious discussion.
And really what we are trying to sort out here needs to be focused on
for just one moment.
There is, despite all of the stonewalling, despite all of the
tardiness, slowness, failed memories, inability to find people,
secrecy, there is ample evidence that one can read in the Nation's
press, and there has been for some time ample evidence, even as it
relates to millions of dollars of returned campaign contributions after
the last election that were admittedly returned because they were
subsequent to the elections discovered to have been illegal
contributions.
So that everybody in America must deal with a very serious question.
And really we have two questions, one coming mostly from this side of
the aisle, one coming from the other side of the aisle. We are saying
that, given that people in highly elected office and positions of
public trust must be honest and honorable beyond any shadow of a doubt
and the interest of the security, national and domestic, of this
Nation, that it is the Congress' responsibility to find out the truth
about illegal activities, violations of law by people that are, in
fact, in these highest positions of trust.
The other side of the aisle, as we just heard just a moment ago, is
arguing that there is some possibility that the system might have
corrupted some people and, therefore, we must change the system and
they are arguing that the more important and more immediate business is
to get on with changing the system.
I want to make a point here, Mr. Speaker, and I want to make it as
emphatically as I can. When dealing with the choice of how do we
prioritize the actions by the Congress of the United States relative
to, one, the question of discerning the truth about the honesty, honor
and integrity of people in highly elected offices, especially with
respect to the manner in which they have acquired those offices; or,
two, changing the rules of protocol and law that govern the financing
of campaigns, that the latter must be clearly understood to be the
matter of lesser priority.
Stated another way, if this Congress is incapable of recognizing, if
the press is incapable of recognizing, if the American people are
incapable of recognizing, and if the White House is incapable of
recognizing that all matters of doubt regarding the honesty, the
integrity, the legality of people in the highest elected offices of
this land is a matter of crucial and utmost concern that must be given
priority over the manners in which the laws are written, that they will
therefore then, having not addressed, as my colleagues equally feel, to
continue violating as they violated the previous laws, then surely we
are lost.
There are serious questions related to the movement of money in
campaigns, and no doubt we will address those in due time. But there
can be no question of money that can be allowed to take precedence over
questions of honesty, integrity, fidelity, duty and honor in those
people that we would trust with dominion over the lives of our
children's future.
Mr. Speaker, I yield the remainder of the time to the gentleman from
Texas (Mr. DeLay); and I ask unanimous consent that he be able to yield
time as he sees fit.
The SPEAKER pro tempore (Mr. LaHood). Is there objection to the
request of the gentleman from Texas?
There was no objection.
The SPEAKER pro tempore. Does the gentleman from Michigan (Mr.
Conyers) claim the 30 minutes in opposition?
Mr. CONYERS. Yes, Mr. Speaker, I do.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Mr. Speaker, this is a bit of an amazing short-
sightedness on the part of Republican leadership in advancing the
incredibly partisan resolutions like the one being sponsored by the
gentleman from Texas (Mr. DeLay) which, if actually passed, might do
lasting damage to the institution of the presidency.
This resolution, if I read it correctly, seeks to have the President
divulge all records and documents relating to any assertion of
executive privilege to where? The Congress? To the press? To the
public?
The administration has already joined with news organizations in
seeking to make public both the legal papers filed by his lawyers and
the judge's decisions concerning executive privilege. Questions about
sealing such proceedings and preventing public access is, my
colleagues, a question for the courts. It is one that our judicial
system decides by hearings and carefully balancing the competing
interests.
Never in the history of the Congress has the Congress said we ought
to take that over and ask you, Mr. President, to just cooperate with
us.
This is a meaningless resolution. The administration cannot do
anything about this. These questions are court questions, questions
already residing in the judiciary for determination. And if the
gentleman from Texas (Mr. DeLay) were concerned about this issue,
instead of attempting to politicize it, this resolution would be
directed to the courts, not to ourselves or to the President of the
United States.
But in reading it, it goes further and demands that all documents
concerning the invocations of executive privilege now be made public.
Why, this goes beyond Kenneth Starr and the independent counsel.
[[Page H3642]]
Just who do we think we are? If the demands are to be taken
seriously, that would include confidential recommendations from the
President's closest advisors. There is no question that these kinds of
recommendations deserve confidential treatment.
The supporters of this resolution, like my friend the chairman, the
gentleman from Indiana (Mr. Burton), have a hard time recognizing what
should and what should not be released to the public.
{time} 1215
Any President of either party is entitled to confidential advice
concerning the invocation of executive privilege. Elementary. The
Reagan administration invoked executive privilege quite frequently. The
Bush administration withheld documents and witnesses from congressional
committees on numerous occasions based on concerns about executive
privilege.
Republicans have never sought to pierce the confidentiality of the
advice given to those Presidents, and I am afraid that they only seek
to do so now because of their partisan intent to discredit the
President of the United States.
Mr. Speaker, I reserve the balance of my time.
Mr. DeLAY. Mr. Speaker, I yield myself as much time as I may consume.
Mr. Speaker, this is very serious business. As I said weeks ago, and
I wish my voice was clearer so that the American people would hear from
me in a very clear way, I think this is very serious business. This is
not partisan politics.
The gentleman says, Mr. Speaker, that we are attempting to inflict
lasting damage to the institution of the Presidency. We think this
President has already inflicted that damage on the office of the
Presidency by claiming executive privilege to cover up information of a
personal wrongdoing or possible crimes in the White House, by
stonewalling the American people when, on the one hand, months ago, the
President said, ``I will tell the American people the truth in a very
expeditious manner, in a timely manner'', and yet has hid behind
lawyers and courts and attack dogs.
I think this is very serious. I rise today because I believe the
American people have a right to know the truth. That is what this is
all about. The American people have a right to know the truth.
Mr. Speaker, the list is very long and far from distinguished:
Whitewater; the Travel Office Affair; the collection of classified FBI
files; foreign campaign contributions to the DNC, the Democratic
National Committee; Webster Hubbell; the appointment of numerous
Independent Counsels to investigate Cabinet members; the transfer of
sensitive missile technology to the Communist Chinese.
Do the American people know the full truth about what happened in
even one of these scandals after 4\1/2\ years? The answer, as we all
too well know, is a resounding no.
The lengths to which this administration has gone to hide from the
light of day are breathtaking. Sadly, congressional Democrats have lent
the administration a helping hand every misguided step of the way. They
have made sure that every hearing, every investigation is met with a
coordinated campaign of misinformation and stonewalling.
The gentleman from Indiana (Mr. Burton), chairman; the gentleman from
Iowa (Mr. Leach), chairman; the gentleman from Pennsylvania (Mr.
Clinger), chairman; Chairman Senator Thompson, Chairman Senator
D'Amato, Special Counsel Starr, FBI Director Freeh, each has been the
victim of relentless personal attacks and slander from this
administration, the administration's hit men and Democrats from
Congress.
Why? Because the one thing the Democrats fear the most is that the
American people will find out the truth. They will go to any length to
stop that from happening. The only strategy left to them is to draw
these investigations out as long as possible so that they will never
have to answer these questions or any questions. The only people
President Clinton and the Democrats have to blame for these
investigations are themselves.
The Democrats have chosen a new tool, executive privilege. Mr.
Speaker, executive privilege is an essential constitutional safeguard
in my mind. It is vital to the protection of our national security.
Almost every President since George Washington has made use of
executive privilege in one way or another.
But this administration is the first since President Nixon and only
the second in the history of our country, only the second presidency in
the history of our country to withhold information under claims of
executive privilege from a Grand Jury investigating allegations of
personal wrongdoing and possible crimes in the White House.
President Clinton is obliged to claim executive privilege if he is
doing so to protect national security. But President Clinton has
repeatedly claimed executive privilege to shield himself, the First
Lady, and some of his aides from testifying in a criminal
investigation.
Nearly 25 years ago, in the United States versus Nixon, the Supreme
Court wrote about President Nixon's use of executive privilege under
similar circumstances. I quote:
To read the constitutional powers of the President as
providing an absolute privilege against subpoena essential to
enforcement of criminal statutes on no more than a
generalized claim of the public interests and confidentiality
of nonmilitary and nondiplomatic discussions would upset the
constitutional balance of a workable government.
The Supreme Court. The Supreme Court could not have been more clear.
Executive privilege may be used only to protect national security, not
to shield information in a criminal proceeding.
Less than 4 years ago, the President's own special counsel, Lloyd
Cutler, had this to say, and I quote:
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.
That is President Clinton's own Special Counsel that wrote that.
The New York Times, a surprising new member of the right-wing
partisan conspiracy, had this to say about the President's use of
executive privilege:
To invoke that privilege in a broad and self-serving way,
as the Clinton White House has done to shield itself from
Kenneth Starr's inquiry, is to abuse it.
But this White House is not easily embarrassed. It has
tried to invoke the hallowed attorney/client privilege even
when attorneys are servants of the public, not the
President's private lawyers.
All this legal inventiveness carries the implicit assertion
that Mr. Clinton is somehow above the law and thus raises the
kind of constitutional questions that ought to be exposed to
public debate.
The New York Times.
Mr. Speaker, that is all we are asking here today, that the President
be honest with the American people about his use of executive
privilege. Like the American people, I want to believe President
Clinton. But what are reasonable people to believe when the President
will not even level with them?
We are not asking that the President tell us the substance of private
conversations with his lawyers, although that would be nice. No, we are
simply asking the President to be honest with the American people, with
the people of the United States. Just be honest. Just be honest.
Mr. Speaker, I urge my friends and colleagues on the other side of
the aisle to support this resolution and send a message to the Appeals
Court. I urge you to go to the President and tell him, tell the
American people what you are doing. It is so simple. If you have
nothing to hide, come clean.
Mr. Speaker, I reserve the balance of my time.
Mr. CONYERS. Mr. Speaker, I yield 4 minutes to the gentleman from
Colorado (Mr. Skaggs).
Mr. SKAGGS. Mr. Speaker, I thank the gentleman for the time.
Mr. Speaker, I do not question the sincerity of the motives of the
gentleman who just spoke and the reasons behind his drafting and
offering of this resolution.
If I could have the gentleman's attention, I would appreciate it.
I just wanted to engage the gentleman in a discussion of what seems
to me to be a troubling set of implications from the way the
``Resolved'' clause in the gentleman's resolution has been prepared.
[[Page H3643]]
I do not want to misread it; and if I am, I would like to be
corrected. If I am not, I think we have a very serious problem on our
hands. The ``Resolved'' clause speaks to ``all records or documents
relating to any claims of executive privilege'' and that they should be
immediately made public.
I do not know the full scope of documents and materials that would be
covered by this language. It seems to me entirely possible that they
would extend to matters that had legitimate national security or
classification constraints imposed upon them.
I understand the gentleman's concern that we do not want that to be
used as a way of manipulating information, but let us stipulate for the
moment that we could be embracing with this language some real national
security information that is at least tangentially implicated in these
assertions of executive privilege.
I hope it is not the gentleman's intention to suggest that that,
willy-nilly, should be made public, but that is what that language
implies.
Mr. Speaker, I yield to the gentleman from Texas (Mr. DeLay).
Mr. DeLAY. Mr. Speaker, I appreciate the gentleman yielding. It is a
very good question, and I appreciate the gentleman asking it.
First, let me answer it by saying this is a sense of Congress. This
is not a binding law. This is expressing how the House feels about what
the President has done in the executive privilege. That is number one.
Number two is, of course, we are not saying, reveal all documents,
especially those documents that may undermine the national security of
this country. There is precedent that would allow the President to
claim executive privilege based upon national security. But we all know
what the intent is here. We are not stopping the President from
revealing the truth to the American people.
Mr. SKAGGS. Mr. Speaker, reclaiming my time, I appreciate the
gentleman's answer. Whether this is sense of Congress or law, it seems
to me we should be careful in its drafting and in its consequences.
I am afraid that the gentleman, in his sweeping desire to get at
everything, has made no provision for what needs to be dealt with here
in the eventuality that real national security information is covered
by this language.
Mr. DeLAY. Mr. Speaker, would the gentleman yield?
Mr. SKAGGS. Members have imposed a rule that prohibits amendments. We
might be able to address this were it not for that constraint.
Mr. Speaker, I am glad to yield again.
Mr. DeLAY. Mr. Speaker, the courts would not allow us to impose upon
the President, even if this was a statute, impose upon the President
the revealing of documents that would undermine national security. The
gentleman is trying to change the subject. The subject is that, if the
President wanted to reveal the truth to the American people, he could
do so, and we want to send a message to the courts that are taking his
appeal.
I am not trying to change the subject at all. I believe that when we
are dealing with something as nuanced and delicate and as important as
this interrelationship between the executive branch and the legitimate
investigative responsibilities of the legislative branch, we ought to
proceed with due care.
This seems to me to be, in its expansiveness, a little bit glib in
the way it deals with a very, very important matter, and I think that
the Members should take that seriously and not just dispense with it,
because we know, of course, what this is really about.
Mr. DeLAY. Mr. Speaker, I yield 3 minutes to the gentleman from New
York (Mr. Solomon), the chairman of the Committee on Rules.
Mr. SOLOMON. Mr. Speaker, the previous speaker is a very close friend
of mine. He is going to be retiring. He is a former Marine. So,
naturally, I have great respect for him.
But he has a real disadvantage standing up here today because he is a
lawyer. Sometimes lawyers get tied up in nitpicking things, and they do
not look at it from a sincere point of view; not that he is not
sincere, because he is, but sometimes because of their education in
law, he is sort of misled.
I am glad to say I am not a lawyer. Having said that, I want the
gentleman to look at it the way Joe Six-pack, the way my American
constituents look at it from the Hudson Valley.
{time} 1230
I think I do not want to know about all this nitpicking stuff. They
wanted to know this. Read page 3 of the bill. It says, ``Whereas, in
January 1998, President Clinton said,'' and this is a quote now of the
President, ``the American people have a right to get answers''
regarding matters being investigated. That is the end of his quote.
Mr. Speaker, instead of openly answering the questions to Members of
Congress, but more than that, to members of the press, who are out
there trying to get the information for the public, he simply says time
and time again, there is no evidence of that. He does not deny it, he
says there is no evidence of that.
Well, we do not have to worry about that part of the resolve clause,
about whether there are documents there dealing with national security.
The gentleman knows, nobody stands up here more for national security
than I do. I am blocking an encryption bill that would expose our
ability to track terrorism, communists and people that would bring down
this government. So do not come over here and say we have a question
about national security. There is no evidence of that. We want the
President to come forward and give the answers. I salute the gentleman.
Mr. SKAGGS. Mr. Speaker, will the gentleman yield?
Mr. SOLOMON. I yield to the gentleman from Colorado.
Mr. SKAGGS. Mr. Speaker, I am not questioning the gentleman's
sincerity about taking national security issues seriously. Far be it
from that. Contrary to what the gentleman is suggesting, I think we
should adhere to and aspire to a particularly high standard of
precision in the work of this body and not just say hey, ``Joe six-pack
knows what we are talking about, don't not sweat the small stuff.'' I
think we are here to pick some nits and make sure we are doing careful
work.
Mr. SOLOMON. Mr. Speaker, reclaiming my time, I thank the gentleman,
and I would say the American people want the answers. Mr. President,
come forth and give them to them. He is capable of doing that. He can
do that.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may use.
Mr. Speaker, I would like to begin by telling the distinguished
chairman of the Committee on Rules that I am very glad he is not a
lawyer too, so we are in total agreement on that; but not being a
lawyer, he may have some handicap in reading the decisions of the
United States Supreme Court. Some of them you do not have to be a
lawyer to understand.
The Supreme Court has said in the Nixon case, and I underline the
``Nixon'' case, how executive privilege should be asserted. It would be
important for the proponents of this resolution to have studied that
case. The proponent is proudly, I presume, not a lawyer as well.
It said in that decision that the courts, not the Congress, determine
the question of whether an executive privilege can be asserted. So the
gentleman from Texas either does not appreciate the decision that
exists as current guidance on the subject, or perhaps it has not been
brought to his attention that we cannot tell the court how it should
handle itself.
I guess we can advise the President that he should release all
records or documents, including legal memoranda, briefs and motions
relating to any claims of executive privilege asserted by the
President, and it should be made publicly available. Well, this is
already in the courts.
There is not one word, with all respect to the patriotism of the
gentlemen on that side of the aisle, about documents dealing with
national security matters being excluded. Not a word.
I think what the gentleman from Colorado was pointing out was that if
you really mean this, and, as the gentleman from Texas has said twice,
this is a serious matter, you had better change this to make everyone
understand that, of course, defense matters, secret matters, secrecy of
documents, are not included. We should just understand that.
[[Page H3644]]
Well, I do not think we can just understand that, I would say to the
gentlemen from the other side, whether you are lawyers or not lawyers,
or whatever it is you might be. This is a flawed resolution, assuming
you want to do what you said. You want to give the President some free
advice. ``Give us everything you have got on executive privilege,''
which is already in the courts.
I do not think that the system is ready to work that way. Never in
the history of the Congress have we ever had such a resolution put
forward with reference to the President of the United States.
Mr. Speaker, I reserve the balance of my time.
Mr. DeLAY. Mr. Speaker, I yield 4 minutes to the gentleman from Ohio
(Mr. Boehner), the distinguished Chairman of the Republican Conference.
Mr. BOEHNER. Mr. Speaker, I thank the gentleman from Texas for
yielding me time.
Mr. Speaker, the American people have entrusted the President of the
United States with many exclusive privileges not available to the
average person. Because of the travel demands that he bears as the
leader of the free world, he has got the privilege of traveling across
the world on Air Force One; because of his need for constant security
as the leader of our government, he has the privilege of round-the-
clock protection from the Secret Service, even after he leaves office;
and because of the need for national security, he is entrusted with a
special privilege, probably more sacred than any of these, and that is
executive privilege.
Let us be perfectly clear, Mr. Speaker. The President has the right
to claim executive privilege in matters of national security. But no
one has the privilege of being above the law; not Members of this
House, not Members of the other body, not even the Chief Executive of
the United States of America. But it seems that this important
privilege is being used to block the people's right to know on a much
broader range of issues.
Mr. Speaker, I think there is a pattern developing in the Executive
Branch. While reassuring the public that they are anxious to get to the
truth, certain officials have consistently stood in the way of
legitimate legal inquiries into activities of our government at the
White House.
Just yesterday, in fact, a White House spokesman bluntly claimed that
the administration has fully cooperated with Congressional questions
about these very troubling technology transfers to China. It was a
reassuring thing to hear, but it just was not true.
Congressional leaders from the Committee on National Security and
from the Committee on International Relations have written the
Secretary of Defense, the Secretary of State and the Director of the
U.S. Arms Control Agency, and the chairman of the Committee on
Intelligence wrote to the Secretary of Defense as well. Our Committee
on Science, both Democrats and Republicans, have raised the issue of
China with NASA. Even a letter sent to the President by the Speaker and
the Majority Leader of the Senate has fallen on defense ears. To date,
all of these requests have been met with either silence or reassurance.
But all requests for information have been denied.
Mr. Speaker, it is time for the stonewall tactics to end and the
cooperating to begin. Whether it is stalling on basic requests for
information or invoking executive privilege, the result is the same;
the American people are denied the right to know what is going on
inside their White House. In the end, Mr. Speaker, this is what this
fight is about, the American people's right to know what happens in
their government.
This government does not belong to politicians in Washington D.C.
This government belongs to the American people, and they have a right
to know what happens in Washington, D.C. They have a right to know what
is going on in their White House.
I think the stonewalling should end, and the cooperating and the
truth needs to be discovered.
Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I would like to bring to the attention of the gentleman
from Texas, who has brought forth this resolution, a little bit of
history about executive privilege and how it has operated.
In 1992, the White House refused to permit White House Counsel C.
Boydon Gray and C. Nicholas Rostow of the National Security Council to
testify before the House Committee on Banking and Financial Services
concerning the allegations that the Bush Administration had attempted
to conceal from Congress the extent of its assistance to Iraq prior to
the Gulf War. That was an assertion of executive privilege.
In 1991, 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. It came to
the Committee on Government Operations.
During the administration of President Bush, in response to requests
from the Committee on Government Operations, Vice President Quayle's
Council on Competitiveness cited executive privilege in refusing to
make public its contacts with companies affected by proposed
regulations that it was charged with reviewing.
President Bush invoked executive privilege in refusing to respond to
a subpoena issued by the House Committee on the Judiciary seeking an
opinion written by the Department of Justice Office of Legal Counsel
authorizing the FBI to snatch fugitives on foreign soil.
Again during the Bush Administration, Attorney General Thornburgh
cited exclusive executive privilege in withholding hundreds of
documents from the Committee on the Judiciary concerning the Justice
Department's controversial purchase of a $180 million computer system.
In 1986, the Bush Administration even supported former President
Nixon's claim of executive privilege which he asserted to prevent the
National Archives from releasing the Nixon White House papers.
Again, President Reagan invoked executive privilege with respect to
the controversies concerning Mr. James Watt and certain Canadian land
leases, Anne Burford and the EPA Superfund enforcement in 1982, and
Department of Justice memos concerning the nomination of Chief Justice
William Rehnquist in 1986. So those were three other instances in 1981,
1982 and 1986 where there have been presidential assertions of
executive privilege.
Now, there is a process in which we can go into court, but never
before in my memory and my research have we ever put a special
resolution on the floor asking the President to go far beyond specific
material, but asking him that in the interest of full disclosure,
consistent with the principles of openness in government, 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.
That was never done in the numerous examples of the assertion of
executive privilege under Republicans.
But, more than that, would you really want the President to do what
you are asking for in the resolved clause? Would you really want all of
these materials released to the public? I do not really think you mean
what you are saying here. I think maybe you would like to get to some
more arguments on executive privilege, which, by the way, are being
handled in the court. But would you want this much information?
This goes far beyond anything that would ever be brought up in a
court. It goes far beyond anything necessary for us to understand why
the assertion of executive privilege is being made, and it is a matter
being debated and resolved in the courts as we stand here in the well.
{time} 1245
So I would just say in mustering the most benefit I can to explain
the reason for House Resolution 432 is that perhaps the author went
beyond what it is he really wanted to know and forgot that everything
means everything, that all means all, that any means any, no
exceptions, none.
I do not think anybody really would want that to happen. Therefore,
it is my position that this resolution is fatally flawed.
Mr. Speaker, I reserve the balance of my time.
Mr. DeLAY. Mr. Speaker, I reserve the right to close, and I have no
other
[[Page H3645]]
speakers, and I am working with the gentleman from Colorado on an
amendment, so if the gentleman has no more speakers, I will close.
Mr. CONYERS. Mr. Speaker, I do have more speakers, so if the
gentleman does not mind, I yield such time as he may consume to the
gentleman from Massachusetts (Mr. Delahunt), a distinguished member of
the Committee on the Judiciary.
Mr. DELAHUNT. Mr. Speaker, I thank my friend and colleague, the
gentleman from Michigan (Mr. Conyers) for yielding me this time.
I think it is important to note, because we have heard the refrain
today about the President setting himself above the law. Well, there is
nowhere that I have heard or read or observed where this President is
suggesting that he is above the law.
Mr. Speaker, to me and to I think most Americans, it is clear that
the President feels he has a constitutional obligation to assert
executive privilege where he feels it is necessary to secure the
independence of the executive branch.
Now, some may or may not like that particular assertion, but it has
been and will be tested, by the third branch of government, our courts,
our judiciary. I believe that the American people have great confidence
in our constitutional democracy, whether they be lawyers or whether
they be Joe Six-pack, because ultimately, the Constitution of the
United States is a document above viable democracy. It is about the
separation of powers, and it is a document that has worked well for
this Nation since its birth back in the late 1700s.
So the President is working within the confines of the Constitution,
that great American document, that document that so many have fought
for and died for and served in this Nation's military, including the
Marine Corps. This is all about the United States Constitution and
about constitutional democracy and about respect for each branch of
government.
Mr. CONYERS. Mr. Speaker, I have no other speakers, and I reserve the
balance of my time.
Mr. DeLAY. Mr. Speaker, I have no other speakers, and I reserve the
right to close.
Request To Amend House Resolution 432 Offered by Mr. DeLay
Mr. DeLAY. Mr. Speaker, I ask unanimous consent to add at the end of
the resolving clause an amendment prepared by the gentleman from
Colorado that states, ``Such public disclosure shall not extend to
legitimate national security information.''
The SPEAKER pro tempore (Mr. LaTourette). The Clerk will report the
amendment.
The Clerk read as follows:
Add at the end of the resolved clause: ``Such public disclosure shall
not extend to legitimate national security information.''
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Texas?
Mr. CONYERS. Mr. Speaker, reserving the right to object, I have not
seen this amendment and I have no inclination to support it without
having seen it, and so I object.
The SPEAKER pro tempore. Objection is heard.
Does the gentleman from Michigan wish to use additional time before
the gentleman closes?
Mr. CONYERS. Mr. Speaker, I yield back the balance of my time.
Mr. DeLAY. Mr. Speaker, I yield myself such time as I may consume.
This is amazing, it is just amazing. The display of objections to the
people's right to know the truth and the President's right to claim
executive privilege that has been interpreted by the courts and not
revealed any documents. But so be it.
The real intent of my resolution is to try to get the President of
the United States to reveal information that has been withheld for all
of these 4\1/2\ years in some cases, and information that the President
is claiming executive privilege for.
The gentleman cited all of these claims by other Presidents. Not one
of those cites that the gentleman listed has anything to do with claims
of executive privilege involving allegations and information given to a
grand jury on information of personal wrongdoing and possible crimes in
the White House, not one of them. This President is only the second
President after Nixon in the entire history of the country that has
made those kinds of claims, and yet the gentleman still supports the
President.
The gentleman says that the House of Representatives has no
responsibility or authority to tell the courts what to do. Well, the
gentleman and I have a very strong difference of opinion as to what the
House of Representatives and the Congress of the United States is, its
standing in the country, and particularly, its standing relative to the
judiciary branch. We are not a sub-branch of the judiciary.
Now, for years, almost 40 years, the majority of this House has
allowed the judiciary to rule law across this country and this body has
not asserted itself. But now, under a new majority, we think we hold an
equal standing with the judiciary that the Constitution gives us every
opportunity to send messages to the judiciary and indeed, this week,
this House overwhelmingly voted to limit the jurisdiction of the
judiciary when it came to early release of convicts for the reason of
prison overcrowding.
Now, the gentleman must believe that we are subservient to the
judiciary, but I do not, and this resolution is the sense of Congress
that says such, and we are sending a message to the appeals courts that
are hearing the case of this President of the United States bringing
executive privilege.
Congress, under the Constitution, has about as much right and duty to
address the issues of constitutional import as any other branch.
Congress considers issues every day that implicate the Constitution.
The courts are the final decisionmakers, as we learned in Marbury v.
Madison. However, the court considers the views of coordinate branches,
equal branches of government.
This resolution merely says that the President's reasons for
asserting executive privilege should be made public. If the President
wanted to talk, he should not hide behind the courts. That is the truth
of what is going on here.
The D.C. Circuit Court of Appeals and the Supreme Court should know
that this House believes that court proceedings regarding executive
privilege should be open to the public, and we are going to take a vote
in a moment to express ourselves to those courts.
But the bottom line here, Mr. Speaker, is we should not participate
in strategies of stonewalling or keeping the American people away from
the truth. The bottom line of what we are trying to do here is the fact
that the American people have the right to know the truth and we are
calling on the President of the United States to tell the American
people the truth, and I urge adoption of my resolution.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I stand in opposition to the
adoption of House Resolution 432.
First, I would like to express my dismay at the way the Republican
leadership brought this resolution to the floor. When the agenda was
set for this week, the Rules Committee minority leaders were only given
approximately five minutes notice to prepare for consideration of this
proposed resolution. Furthermore, the Judiciary Committee, which also
has probable jurisdiction on this matter, was not even given the
opportunity to review its text. If House majority leadership wants to
maintain any semblance of impartiality, I suggest that they resist the
temptation to take political ``potholes'' at every opportunity.
Fellow colleagues, this resolution does nothing more than embroil
Congress in a dispute that is more properly before an Article III
Court.
I believe that almost every member of Congress agrees that an
executive privilege exists. In its purest manifestation, it protects us
from the divulgence of information which threatens our national
security. The scope of this privilege is still somewhat of an unknown
quantity. The Bush Administration invoked the privilege on several
occasions, many of which did not involve national security.
Colleagues, we are not the Supreme Court. It is not our task to
divine the meaning of the Constitution. A rejection of this resolution
is a clear signal to the American people that this Congress still
recognizes the concept of separation of powers.
I also object to this resolution because it does nothing but make a
recommendation that the President, that he waive his executive
privilege. This is a right to be asserted by the President, under
advisement of his lawyer only. In a legislative body, how can we fail
to recognize the impropriety of stepping on the toes of the attorney-
client relationship. Remember all of us under the law are innocent
until proven otherwise.
[[Page H3646]]
I ask my colleagues to oppose this resolution, in order to send a
clear message to the American people that we understand and respect the
role of the legislature in our democratic system.
Mr. DeLAY. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate has expired.
The resolution is considered read for amendment.
Pursuant to House Resolution 436, the previous question is ordered.
The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. DeLAY. Mr. Speaker, I object to the vote on the ground that a
quorum is not present and make the point of order that a quorum is not
present.
The SPEAKER pro tempore. Evidently a quorum is not present.
The Sergeant at Arms will notify absent Members.
The vote was taken by electronic device, and there were--yeas 259,
nays 157, answered ``present'' 6, not voting 11, as follows:
[Roll No. 176]
YEAS--259
Abercrombie
Aderholt
Archer
Armey
Bachus
Baesler
Baker
Ballenger
Barcia
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bereuter
Berry
Bilbray
Bilirakis
Bliley
Blunt
Boehlert
Boehner
Bonilla
Bono
Boswell
Brady (TX)
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Castle
Chabot
Chambliss
Chenoweth
Christensen
Coble
Coburn
Collins
Combest
Condit
Cook
Cooksey
Cox
Cramer
Crane
Cubin
Cunningham
Danner
Davis (VA)
Deal
DeLay
Diaz-Balart
Dickey
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Ensign
Etheridge
Evans
Everett
Ewing
Fawell
Foley
Forbes
Fossella
Fowler
Fox
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Gilman
Goode
Goodlatte
Goodling
Goss
Graham
Granger
Green
Greenwood
Gutknecht
Hall (TX)
Hamilton
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Holden
Horn
Hostettler
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Istook
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kildee
Kim
King (NY)
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Lewis (KY)
Linder
Lipinski
Livingston
LoBiondo
Lucas
Maloney (CT)
Manzullo
McCarthy (NY)
McCollum
McCrery
McDade
McHale
McHugh
McInnis
McIntosh
McIntyre
McKeon
McKinney
Metcalf
Mica
Miller (FL)
Mink
Moran (KS)
Morella
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Oxley
Packard
Pappas
Parker
Pascrell
Paul
Paxon
Pease
Peterson (MN)
Peterson (PA)
Petri
Pickering
Pitts
Pombo
Porter
Portman
Price (NC)
Pryce (OH)
Quinn
Radanovich
Ramstad
Redmond
Regula
Riggs
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryun
Salmon
Sanford
Saxton
Scarborough
Schaefer, Dan
Schaffer, Bob
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Sherman
Shimkus
Shuster
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Linda
Snowbarger
Solomon
Souder
Spence
Stabenow
Stearns
Stenholm
Strickland
Stump
Sununu
Talent
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Thune
Tiahrt
Traficant
Turner
Upton
Walsh
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
NAYS--157
Ackerman
Allen
Andrews
Baldacci
Becerra
Bentsen
Bishop
Blagojevich
Blumenauer
Bonior
Borski
Boucher
Boyd
Brady (PA)
Brown (CA)
Brown (FL)
Brown (OH)
Capps
Cardin
Carson
Clay
Clayton
Clement
Clyburn
Conyers
Costello
Coyne
Cummings
Davis (FL)
Davis (IL)
DeFazio
DeGette
Delahunt
DeLauro
Deutsch
Dicks
Dingell
Dixon
Doggett
Dooley
Doyle
Edwards
Engel
Eshoo
Fattah
Fazio
Filner
Ford
Frank (MA)
Frost
Furse
Gejdenson
Gephardt
Gordon
Hall (OH)
Hastings (FL)
Hefner
Hilliard
Hinchey
Hinojosa
Hooley
Houghton
Hoyer
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson, E.B.
Kanjorski
Kennedy (MA)
Kennedy (RI)
Kennelly
Kilpatrick
Kleczka
Klink
Kucinich
LaFalce
Lampson
Lantos
Lee
Levin
Lewis (GA)
Lofgren
Lowey
Luther
Maloney (NY)
Manton
Markey
Martinez
Mascara
Matsui
McCarthy (MO)
McGovern
McNulty
Meehan
Meek (FL)
Menendez
Millender-McDonald
Miller (CA)
Minge
Moakley
Mollohan
Moran (VA)
Murtha
Nadler
Neal
Oberstar
Olver
Ortiz
Owens
Pallone
Pastor
Payne
Pelosi
Pickett
Pomeroy
Poshard
Rahall
Rangel
Reyes
Rodriguez
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Scott
Serrano
Skaggs
Skelton
Slaughter
Smith, Adam
Snyder
Spratt
Stark
Stokes
Stupak
Tanner
Tauscher
Thompson
Thurman
Tierney
Towns
Velazquez
Vento
Visclosky
Waters
Watt (NC)
Waxman
Wexler
Weygand
Wise
Woolsey
Wynn
Yates
ANSWERED ``PRESENT''--6
Barrett (WI)
Berman
Johnson (WI)
Kind (WI)
Obey
Rivers
NOT VOTING--11
Bateman
Crapo
Farr
Gonzalez
Gutierrez
Harman
Kaptur
McDermott
Meeks (NY)
Schumer
Torres
{time} 1318
Mr. CUMMINGS, and Mr. DAVIS of Florida changed their vote from
``yea'' to ``nay.''
Messrs. PASCRELL, ABERCROMBIE, and STRICKLAND changed their vote from
``nay'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________