[Congressional Record Volume 146, Number 142 (Wednesday, November 1, 2000)]
[House]
[Pages H11727-H11728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               COMMITTEE ON RESOURCES CONTEMPT RESOLUTION

  (Mr. GEORGE MILLER of California asked and was given permission to 
revise and extend his remarks at this point in the Record.)
  Mr. GEORGE MILLER of California. Mr. Speaker, I rise again in strong 
opposition to this Contempt of Congress resolution.

  When there are so many important issues such as energy and health 
care and education policy which have languished in this Congress, it is 
ridiculous that this vendetta is taking the time of the House.
  The crime charged in this resolution is the refusal of three 
witnesses to answer certain questions from Republican members of the 
Committee on Resources.
  Let's be clear: these three individuals have worked to assure that 
the taxpayers receive a fair share of the royalties from oil companies 
drilling on public lands.
  Those same oil companies, who have never received a Republican 
subpoena, have shortchanged the taxpayers by billions of dollars in 
royalty under payments, as most recently evidenced by a total of $438 
million in settlement payments in litigation which inspired the 
committee's investigation.
  We should be spending our time and resources in Congress on issues 
that really matter to the American people.
  We should not use the vast powers of Congress to punish those who 
helped to blow the whistle on the oil company rip-offs and who, 
understandably, refused to cooperate with a rogue committee operating 
without regard to the House rules.
  And we should not be burdening the U.S. Attorney, who has plenty of 
work to do combating serious crimes, with an ill-conceived contempt 
resolution based on an investigation so procedurally flawed that the 
criminal charges would not survive judicial review.
  Let's start by making it clear what this contempt resolution is not 
about.
  The question before the House is not whether the arrangement between 
the project on Government Oversight and two Federal employees to share 
royalty underpayment litigation awards was illegal or even improper.
  Federal employees have been allowed, under certain circumstances, to 
participate as whistle blowers in False Claims Act litigation. In this 
case, the POGO arrangement is under active investigation by the 
Department of Justice.
  But no one has been indicted, no one has been tried, and certainly no 
one has been convicted. For Congress to prejudice that process with 
premature conclusions of illegality would be irresponsible.
  So, let us be clear what this resolution is about.
  The real question before the House is whether three individuals who 
were subpoenaed as witnesses by the Committee on Resources should serve 
up to a year in prison for violating a Federal criminal statute.
  As is the case with all criminal statutes, the three individuals 
cannot be convicted of Contempt of Congress unless guilt is proven 
beyond a reasonable doubt in a court of law.
  Before we consider a resolution that could subject three citizens to 
criminal jeopardy, let's look carefully at the case the committee has 
brought before the House.
  The courts have held the congressional process in strict scrutiny, 
and in 1983 acquitted the last person charged by the House with 
contempt.
  In this investigation, the Committee Republicans have repeatedly 
failed to follow the House Rules. For over a year, they ignored House 
Rule XI governing investigations despite Democratic objections. They 
further violated House Rules by curbing the rights of Democratic 
members to question witnesses at hearings.
  They abused those witnesses by, among other things, not allowing them 
to make opening statements at hearings, despite Democratic objections.
  One Republican member called the Department of the Interior employee 
a ``common thief'' prior to his appearance before the committee.
  In short, as we detail in the Dissenting Views, this partisan 
investigation has been biased, unfair, and was a rogue operation that 
violated the Rules of the House and of the committee.
  Moreover, the committee Republicans failed to demonstrate--either to 
the witnesses or the Democratic members--a clear nexus between the 
questions and the purpose of the investigation. Specifically, they 
failed to establish a foundation for the questions that make them 
``pertinent'' for purposes of applying the contempt statute to refusals 
to answer.
  And the courts have insisted that questions must be ``pertinent'' at 
the time they are asked of a witness at a hearing. After the fact 
rationale is not sufficient.
  My point in mentioning the procedural flaws in the committee' 
investigation is to show that there are many reasons for members to be 
very cautious before concluding that these three citizens are guilty of 
Contempt of Congress.
  And unless members are convinced that the committee's process can 
withstand judicial scrutiny and the statutory elements of contempt have 
been proven beyond a reasonable doubt, then they should not vote for 
this resolution.


                                Congress of the United States,

                                 Washington, DC, October 31, 2000.

                       Stop the POGO Persecution

       Dear Colleague: Today the House will unwisely reconsider 
     the resolution (brought up on the floor last Friday and 
     withdrawn by its sponsor) that charged three individuals with 
     the crime of Contempt of Congress for failing to cooperate 
     with a Committee on Resources investigation. This rare 
     exercise of congressional power could subject these 
     individuals to criminal prosecution and up to one year in 
     jail.
       This charge was prompted by the Project on Government 
     Oversight's (POGO) decision

[[Page H11728]]

     to share $767,200 of a $1.2 million False Claims Act 
     settlement with two federal employees who had long worked to 
     curb underpayments of royalties owed to the United States by 
     oil companies. Faced with multi-billion dollar allegations of 
     royalty rip-offs, 15 oil companies have reached settlements 
     with the Department of Justice totaling $438 million.
       The Department of Justice is investigating whether the 
     payments by POGO were inappropriate or illegal actions. 
     Despite that review, the Resources Committee Majority has 
     duplicated DOJ's effort and issued dozens of subpoenas, held 
     multiple hearings, and consumed nearly two years and many 
     tens of thousands of dollars searching for additional 
     evidence of wrongdoing by POGO and its associates while 
     proclaiming their alleged guilt.
       And what about the oil companies who have paid $438 million 
     in settlement for cheating the American people--and 
     especially children whose schools utilize royalty payments--
     out of the money they are owed? The Committee Majority has 
     let the oil company misconduct go scot free:
       ZERO--Hearings on oil royalty underpayments;
       ZERO--Investigations of oil royalty underpayments;
       ZERO--Subpoenas issued to oil companies.
       ZERO--Condemnation of oil company royalty rip-offs.
       To bring the full power of the committee down upon three 
     individuals who have worked to curb oil company fraud without 
     any effort to address billions of dollars in fraudulent 
     underpayments is a blatant misuse of the Committee's 
     resources and the Congress' time. For the House to further 
     condemn these individuals because they declined on advice of 
     counsel to respond to questions which were not pertinent in 
     an abusive investigation which was not conducted in 
     compliance with House rules, is beneath the standard Congress 
     should use when employing the weighty hand of criminal 
     contempt.
       If the Majority insists on further discussion and votes on 
     the Contempt resolution, we strongly advise you to vote 
     ``No'' and protect private citizens and whistleblowers from 
     such misuse of Congress' prosecutorial authority.
           Sincerely,
         George Miller, Edward Markey, Earl Blumenauer, Peter 
           DeFazio, Bob Filner, Carolyn Maloney, Robert Underwood, 
           Jay Inslee, Janice Schakowsky.
                                  ____

                                         House of Representatives,


                                       Committee on Resources,

                                 Washington, DC, October 31, 2000.

 The POGO Investigation: Contempt for Individual Rights and the House 
                                 Rules

       Dear Colleague: The Committee on Resources' Majority is 
     asking you to vote for a resolution which charges three 
     citizens with the statutory crime of contempt of Congress. 
     Those three individuals, associated with the Project on 
     Government Oversight (POGO), would be subject to criminal 
     prosecution and up to one year in prison. The contempt 
     resolution, which will come up again on the floor tonight, is 
     a substitute for much broader charges of contempt reported by 
     the committee.
       Before you vote to send three people you've never ever seen 
     to jail, consider whether you can rely on a rogue committee 
     investigation that has abused the rights of witnesses and 
     Members and failed to adhere to the House rules. In applying 
     the criminal contempt statutes, the Supreme Court has 
     required that a committee strictly follow its own rules and 
     those of the House. Yellin v. United States, 374 U.S. 109 
     (1962). Yet the conduct of the Committee on Resources' 
     investigation related to the pending contempt resolution is 
     so egregious that it would dishonor the House to subject it 
     to judicial review Among the many procedural deficiencies are 
     the following:
       (1) Failure to conduct the investigation within the 
     jurisdiction of the committee under House Rule X, Clause 1. 
     The Majority has not maintained a consistent purpose for its 
     investigation within the scope of the committee's authority 
     as delegated by the House. The Supreme Court has held that a 
     clear line of authority for the committee and the 
     ``connective reasoning'' to its questions is necessary to 
     prove pertinency in statutory contempt. Gojack v. United 
     States, 384 U.S. 702 (1966). Instead, the Majority has 
     constantly shifted their explanations of what they are 
     investigating and why. For example, on March 6, 2000, 
     Chairman Young wrote to POGO's attorney to explain that broad 
     subpoenas were necessary ``to begin weighing the merits of 
     those conflicting statements'' made in civil litigation. How 
     a probe of potential perjury in a lawsuit relates to the 
     committee's legislative jurisdiction over oil royalty 
     management laws and policies was not clear at the time to 
     witnesses--who declined to answer questions which were not 
     pertinent--and remains unclear to Democratic Members.
       (2) Failure to follow House Rule XI, Clause 2(k) applicable 
     to investigative hearing procedures. It was not until June 
     27, 2000--over a year after subpoenas were issued--that 
     Chairman Young authorized Subcommittee Chairman Cubin to 
     ``begin an investigation to complement the oversight inquiry 
     underway.'' This is a meaningless effort to draw a 
     distinction between ``oversight'' and an ``investigation'' 
     when no such distinction exists for purposes of House Rule 
     XI, Clause 2. Accordingly, over the protests of Democratic 
     Members, the Majority failed to follow House Rues applicable 
     to the rights of witnesses in Subcommittee hearings held May 
     4, and May 18, 2000. These flaws range from the failure to 
     provide witnesses with the committee and House Rules prior to 
     their testimony, to the failure to go into executive session.
       (3) Failure to allow Members to question witnesses under 
     House Rule XI, Clause 2(j). On multiple occasions, the 
     Subcommittee Chair prevented Democratic Members from 
     exercising their rights to question witnesses, either under 
     the five-minute rule or time allocated to the Minority under 
     clause 2(j)(B).
       (4) Failure to have a proper quorum under committee Rule 
     3(d). The Committee rules require a quorum of members, yet no 
     such quorum was present during the hearings at the times of 
     votes on sustaining the Subcommittee Chairman's rulings on 
     whether questions were ``pertinent.''
       (5) Failure to allow subpoenaed witnesses to make an 
     opening statement under committee Rule 4(b). This rules 
     states, ``Each witness shall limit his or her oral 
     presentation to a five-minute summary of the written 
     statement, unless the Chairman, in conjunction with the 
     Ranking Minority Member, extends this time period.'' In 
     contravention of this rule and longstanding committee 
     practice, the Chair refused to grant hearing witnesses the 
     opportunity to make opening statements. Democratic 
     objections were overruled.
       (6) Failure to hold a hearing on the contempt issues. It is 
     fundamentally unfair not to allow the parties charged with 
     contempt an opportunity to explain their legal arguments for 
     declining to answer questions or supply specific documents in 
     contention. The Chair repeatedly refused the efforts of 
     Democratic Members to recognize legal counsel to address the 
     Subcommittee on these issues. The failure to provide due 
     process in a hearing to those accused of violating a criminal 
     statute further weakens the Majority's case.
       (7) Failure to fully inform Members of the committee. At 
     the July 19th committee markup of the contempt resolution, 
     the Majority failed to provide Members with the language of 
     the contempt statutes. They cited no judicial standards or 
     precedents of the House for applying those criminal statutes 
     in a contempt proceeding. They did not adequately explain or 
     refute the legal rationale that the subpoenaed parties, based 
     on advice from counsel, had asserted when they declined to 
     answer specific questions which were not pertinent to the 
     investigation. And they neglected to explain to Members that 
     the witnesses had appeared at hearings and produced thousands 
     of pages of documents in compliance with multiple subpoenas.
       No matter what wrongdoing may be alleged, all citizens of 
     the United States have the right to expect that they be given 
     fair treatment and due process in compliance with the rules. 
     The real threat to the integrity of the House of 
     Representatives stems from the abusive and irresponsible 
     manner in which the Committee on Resources investigation was 
     conducted. To subject this record to judicial review--in what 
     would be the first contempt of Congress referral since 1983--
     could threaten to undermine the powers of the House to 
     conduct legitimate oversight and investigations in the 
     future.
       By offering a substitute for the original resolution, the 
     sponsors have tacitly acknowledged that the broad contempt 
     charges of contempt reported by the committee were 
     unsustainable. Especially when considered in the context of 
     the myriad procedural deficiencies in this investigation, 
     this latest change of direction ought to give Members ample 
     reason to vote ``NO'' on the contempt charges.
           Sincerely,
                                                    George Miller,
     Senior Democratic Member.

                          ____________________