[House Report 105-728]
[From the U.S. Government Publishing Office]
House Calendar No. 252
105th Congress, 2d Session - - - - - - - - House Report 105-728
CONTEMPT OF CONGRESS
__________
REPORT
by the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
together with
ADDITIONAL VIEWS, MINORITY VIEWS
AND
ADDITIONAL MINORITY VIEWS
ON THE
REFUSAL OF ATTORNEY GENERAL JANET RENO TO PRODUCE DOCUMENTS SUBPOENAED
BY THE GOVERNMENT REFORM AND OVERSIGHT COMMITTEE
September 17, 1998.--Referred to the House Calendar and ordered to be
printed
COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
CHRISTOPHER COX, California EDOLPHUS TOWNS, New York
ILEANA ROS-LEHTINEN, Florida PAUL E. KANJORSKI, Pennsylvania
JOHN M. McHUGH, New York GARY A. CONDIT, California
STEPHEN HORN, California CAROLYN B. MALONEY, New York
JOHN L. MICA, Florida THOMAS M. BARRETT, Wisconsin
THOMAS M. DAVIS, Virginia ELEANOR HOLMES NORTON, Washington, DC
DAVID M. McINTOSH, Indiana CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, JOHN F. TIERNEY, Massachusetts
South Carolina JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont
BOB BARR, Georgia (Independent)
DAN MILLER, Florida
RON LEWIS, Kentucky
Kevin Binger, Staff Director
Barbara J. Comstock, Chief Counsel
David A. Kass, Parliamentarian and Deputy Counsel
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
LETTER OF TRANSMITTAL
----------
House of Representatives,
Washington, DC, September 17, 1998.
Hon. Newt Gingrich,
Speaker of the House of Representatives,
Washington, DC.
Dear Mr. Speaker: The Committee on Government Reform and
Oversight has been conducting an investigation into campaign
fundraising abuses since January 1997. As part of its
investigation, the Committee has been conducting oversight of
the Department of Justice investigation of the campaign finance
scandal. Since the beginning of the Committee's investigation,
I have had severe misgivings regarding the ability of the
Attorney General to conduct an independent and thorough
investigation of allegations involving her direct superior, the
President of the United States, and his close advisors.
My misgivings have been confirmed throughout the
Committee's investigation. The Committee has investigated
allegations that the Justice Department failed adequately to
investigate and prosecute a number of cases involving major
Democratic National Committee fundraisers and donors. The
Committee has learned that the two top advisors to the Attorney
General on these issues--FBI Director Louis Freeh, and the
Attorney General's hand-picked chief prosecutor, Charles La
Bella--came to similar conclusions, and recommended that the
Attorney General appoint an independent counsel to investigate
the campaign finance scandal.
In July 1998, the Committee subpoenaed two memoranda
prepared by the FBI Director, Louis Freeh, and the lead
attorney for the Justice Department Campaign Finance Task
Force, Charles La Bella. The memoranda reportedly contain the
detailed legal reasoning of Director Freeh and Mr. La Bella,
demonstrating that the Attorney General is required by law to
appoint an Independent Counsel. The Committee has a need to
review these documents as part of its oversight of the Justice
Department's campaign finance investigation. It is of
fundamental importance to the Committee to learn whether the
Attorney General is following the law as it has been drafted by
Congress. The Attorney General's top two advisors on these
matters have apparently concluded that she is not.
Therefore, I issued a subpoena for these two memoranda.
However, the Attorney General has failed to comply with that
subpoena. She has not provided any legal justification for
failing to comply with the subpoena. The Attorney General has
ignored the Justice Department's own internal guidelines for
complying with congressional subpoenas, and she has repeatedly
made misleading statements regarding the nature of the
Committee's subpoena. Therefore, the Committee voted to approve
the attached report. I am now transmitting this report and the
resolution contained within it, and recommend it to the House
of Representatives for favorable action.
Dan Burton,
Chairman.
House Calendar No. 252
105th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 105-728
_______________________________________________________________________
CONTEMPT OF CONGRESS
_______
September 17, 1998.--Referred to the House Calendar and ordered to be
printed
_______________________________________________________________________
Mr. Burton, from the Committee on Government Reform and Oversight,
submitted the following
REPORT
Introduction
On August 6, 1998, the Committee on Government Reform and
Oversight, by a vote of 24 to 19, adopted the following report,
including the following resolution, recommending to the House
of Representatives that Attorney General Janet Reno be cited
for contempt of Congress:
Resolved, That pursuant to sections 102 and 104 of
the Revised Statutes of the United States (2 U.S.C.
Sec. Sec. 192 and 194), the Speaker of the House of
Representatives shall certify the report of the
Committee on Government Reform and Oversight, detailing
the failure of Janet Reno, as Attorney General of the
United States, to produce papers to the Committee on
Government Reform and Oversight, to the United States
Attorney for the District of Columbia, to the end that
Janet Reno, Attorney General of the United States, be
proceeded against in the manner and form provided by
law.
The Committee reluctantly took this position after the
Attorney General refused to comply with its subpoena for two
memoranda prepared by FBI Director Louis J. Freeh and Campaign
Finance Task Force Chief Charles G. La Bella. These memoranda
represent the factual and legal reasoning of the two highest-
ranking lawyers working on the campaign finance scandal. Both
have recommended that the Attorney General appoint an
independent counsel. As part of its investigation into the
campaign finance scandal, the Government Reform and Oversight
Committee is conducting oversight of
the Department of Justice's handling of its investigation. It
has been apparent from an early point that the Independent
Counsel Act requires the Attorney General to appoint an
independent counsel. It also has been obvious to observers
across a broad ideological spectrum, including former President
Jimmy Carter, Senator Patrick Moynihan, and House and Senate
Judiciary Chairmen Henry Hyde and Orrin Hatch, that the
Department cannot credibly continue to investigate the campaign
finance scandal.
In an effort to obtain information which is vital in
reviewing the Attorney General's failure to appoint an
independent counsel, the Committee issued a subpoena on July
24, 1998, to the Attorney General to obtain the memoranda
written by FBI Director Freeh and Task Force Supervising
Attorney La Bella. On July 28, 1998, the Attorney General
informed Chairman Burton that she would not comply with the
Committee's subpoena. Although the Committee has read accounts
of the memoranda in the press, Congress must be able to
evaluate the analyses of the campaign finance investigation for
itself.
The Committee is reviewing why the Attorney General has
failed to follow the law, as well as the recommendations of her
chief investigator and lead attorney in the campaign finance
investigation. The Attorney General inexplicably has failed to
follow the advice of the FBI Director and the Task Force
Supervising Attorney, who advised the Attorney General that an
independent counsel is warranted under both the mandatory and
discretionary provisions of the statute. The press has reported
that Mr. La Bella's memorandum advises the Attorney General
that she ``must seek an independent counsel if she herself is
going to obey the law.'' \1\ When the Attorney General and the
Justice Department do not appear to follow the law or do not
appear to be appropriately pursuing criminal and investigative
matters, Congress must assume its basic oversight role with
regard to the proper administration of the law.
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\1\ Roberto Suro, Reno's Handling of Justice Memo on Funds Probe
Attracts Scrutiny, Washington Post, Aug. 2, 1998, at A8.
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I. Facts, Background and Chronology
In the closing days of the 1996 election, a number of news
stories broke regarding the suspect fundraising practices of
the Democratic National Committee. Despite the high level of
public interest in the story, the White House delayed turning
over information on many key figures involved until after the
November election. By February 1997, the Democratic National
Committee [DNC] had started to return substantial amounts of
contributions that had been raised illicitly. A number of
individuals suspected of raising or making illegal
contributions, such as Yah Lin ``Charlie'' Trie and Pauline
Kanchanalak, had fled the country. In January 1997, the
Committee on Government Reform and Oversight began its
investigation of political fundraising improprieties and other
violations of law. The Committee soon began to issue subpoenas
for documents and testimony, but found that a number of close
associates of the President and other key figures involved in
the investigation were not cooperative. Between the beginning
of the investigation and the present, over 110 individuals have
either invoked their fifth amendment rights or fled the country
rather than cooperate with the investigation. Among this number
are: Mark Middleton, former Special Assistant to the President;
Webster Hubbell, former Associate Attorney General; John Huang,
former Principal Deputy Assistant Secretary of Commerce and
Vice Chair for Finance of the DNC; and Yah Lin Trie, close
friend of the President and appointee to a Presidential trade
commission. Many of their friends and associates are among the
dozens of others who have invoked their Fifth Amendment rights
or fled the country.
One of the difficulties faced by the Committee in the
course of its investigation is that few witnesses have had an
incentive to cooperate with the investigation. Despite the
clear role of a number of individuals in efforts to funnel
foreign money into the U.S. elections or to create elaborate
straw donor schemes, the Justice Department has been slow to
investigate them. In late 1996, the Department established a
Campaign Financing Task Force charged with investigating
allegations relating to the 1996 elections. For the first year,
the investigation foundered, culminating with the replacement
of the lead attorney with Charles La Bella. There were few
indictments prior to Mr. La Bella's arrival. The Task Force
then brought charges against individuals such as Charlie Trie,
Antonio Pan, and Pauline Kanchanalak, each of whom was an
obvious participant in schemes to make foreign contributions
and conduit contributions to the DNC. However, it appears the
Justice Department has failed to focus on other central figures
in the campaign finance scandal, notably, John Huang, who is
clearly connected to numerous questionable contributions. This
delay has caused the Committee great concern that the
Department does not have the necessary independence to pursue
charges against high-level White House or DNC officials.
It has been apparent from the earliest days of the
investigation that the Attorney General should not be
conducting this investigation. Under the independent counsel
law, she is required to appoint an independent counsel when she
receives information alleging violation of a law by a covered
official.\2\ She also has the discretion to appoint an
independent counsel when she determines that an investigation
of a particular person by the Department may result in a
personal, financial, or political conflict of interest.\3\ In
an investigation of White House officials and high-ranking DNC
officials, the Attorney General clearly has a political
conflict of interest of precisely the type mentioned in the
Independent Counsel Act.
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\2\ 28 U.S.C. Sec. 591(a).
\3\ 28 U.S.C. Sec. 591(c)(1).
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In December 1997, the Committee learned that the FBI
Director had prepared a lengthy memorandum in November 1997
with his analysis of the facts and law implicated in the
Department's investigation of the campaign finance scandal.
Press reports indicated that Director Freeh had concluded that
the Attorney General was required by both the mandatory and
discretionary provisions of the law to appoint an independent
counsel. However, the Attorney General made it clear that she
did not accept Director Freeh's interpretation of either the
law or the facts, and refused to appoint an independent
counsel. The Attorney General indicated that she was receiving
contrary advice from other Department lawyers, but she declined
to identify them, or even confirm that they had any detailed
knowledge of the case.\4\ The Attorney General's failure to
appoint an independent counsel, despite the strong
recommendations of Director Freeh and Mr. La Bella, compels
congressional oversight. Quite simply, is the Attorney General
following the law or defying the law? This is a very serious
issue. Many members of the Committee have recognized the need
for an independent counsel for almost 2 years.
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\4\ See House Committee on Government Reform and Oversight, hearing
on the Current Implementation of the Independent Counsel Act, Dec. 9,
1997, at 67-68.
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On December 2, 1997, Chairman Burton wrote to Director
Freeh requesting his attendance at a Committee hearing, and
requesting him to produce his memorandum to the Committee. On
December 4, 1997, the Attorney General sent a letter to the
Chairman refusing to comply with the request. Attorney General
Reno cited the Department's general policy against giving to
Congress investigative materials regarding open cases. On
December 5, Chairman Burton wrote to the Attorney General,
explaining that Congress had a right to receive the Freeh
memorandum, and that the receipt of the memorandum was
consistent with a long line of precedent regarding
congressional oversight of the Department of Justice. Also, on
December 5, 1997, the Chairman issued a subpoena to the
Attorney General, requiring her to produce the Freeh memorandum
by December 8. On December 8, the Attorney General and FBI
Director wrote to the Chairman, reiterating their opposition to
producing the memorandum. After the Attorney General and
Director Freeh testified at a hearing before the Committee on
December 9, the Chairman reached an accommodation with the
Department of Justice. It was agreed that Department staff
would give an oral briefing regarding the memo to the Chairman,
the Ranking Minority Member, and their respective chief
counsels. This compromise measure satisfied the Committee's
needs at the time, but, developments of July 1998 changed those
circumstances drastically.
On July 23, 1998, the New York Times reported that the
departing lead prosecutor on the Justice Department Task Force,
Charles La Bella, had prepared a 100-page memorandum for the
Attorney General reviewing the facts he had gathered during the
investigation.\5\ According to press reports, La Bella
concluded that Attorney General Reno was required by both the
mandatory and discretionary provisions of the independent
counsel law to appoint an independent counsel for the campaign
finance investigation. Almost immediately, the Attorney General
appeared to minimize the impact of the La Bella report, stating
that ``[t]here are a range of lawyers within the Department who
have had long experience with the Independent Counsel Act. And
what we do is hear from everybody, not just one lawyer . . .
.'' \6\
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\5\ David Johnston, Report to Reno Urges a Counsel Over Donations,
New York Times, July 23, 1998, at A1.
\6\ Roberto Suro and Michael Grunwald, Independent Probe of '96
Funds Urged, Washington Post, July 24, 1998, at A21.
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Given that the Attorney General seemed to be repeating the
experience of December 1997, only this time with the even more
conclusive findings of her own hand-picked head of the campaign
finance investigation, the Committee sought both the Freeh and
La Bella memoranda. On July 23, the Chairman issued a formal
request for the Freeh and La Bella memoranda to evaluate the
recommendations which indicate that the Attorney General is not
following the law in the appointment of an Independent Counsel
in the campaign finance investigation. The Committee staff was
informed by telephone on July 24, 1998, that Attorney General
Reno would not comply with the request.
On July 24, 1998, the Committee issued a subpoena to
Attorney General Reno for the two memoranda. The Committee's
subpoena notably exempted from production any grand jury
information covered by Rule 6(e) of the Federal Rules of
Criminal Procedure. The subpoena to the Attorney General was
served upon the Special Counsel to the Deputy Attorney General,
Craig Iscoe, on July 24, 1998, and was returnable at 5 p.m., on
July 27, 1998. At 5:05 p.m., July 27, 1998, the Chairman
received a letter from Acting Assistant Attorney General L.
Anthony Sutin, stating:
This responds to your letter of July 23, and subpoena
of July 24, seeking copies of a recent memorandum to
the Attorney General from Charles LaBella and a
November 1997 memorandum to the Attorney General from
FBI Director Freeh.
We would be happy to meet with your staff at their
earliest convenience to discuss ways to accommodate the
Committee's information needs to the fullest extent
that we can, consistent with our law enforcement
responsibilities. Because of the ongoing criminal
investigation into the matters that are the subject of
the memoranda, we are unable to provide the documents
that you request at this time. Our position is based
principally on the longstanding Department policy of
declining to provide congressional committees with
access to nonpublic information on open law enforcement
investigations. We will provide to the Committee a
detailed statement of our position tomorrow.\7\
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\7\ Letter to Hon. Dan Burton, Chairman of the Committee on
Government Reform and Oversight from L. Anthony Sutin, Acting Assistant
Attorney General, July 27, 1998.
Upon receipt of the July 27, 1998 letter, the Committee's
Chief Counsel contacted Mr. Sutin to ask for a meeting as
offered in the letter. In that discussion, it was requested
that if there were to be a meeting, the Committee would ask
that those who are involved in the decisionmaking process at
the Department of Justice attend this meeting. Pointedly, the
Chief Counsel requested that low-level legislative affairs
officials not attend the meeting since it was clear that they
were not familiar with the facts pertinent to the investigation
and how such facts might interact with the independent counsel
law. Despite this request, on July 28, 1998, the Justice
Department sent two Office of Legislative Affairs officials,
Anthony Sutin and Faith Burton, to basically reiterate the same
points made in the Department's correspondence with the
Committee. These individuals were not familiar with the facts
in the investigation.
On July 28, 1998, the Attorney General and the FBI Director
sent another, more detailed letter detailing their opposition
to turning over both the Freeh and LaBella memoranda to the
Committee. The Attorney General and FBI Director outlined
policy concerns of the Department, but did not make any claim
of privilege in withholding the documents, citing only the
Department's policy concerns. On July 31, 1998, the Attorney
General and the FBI Director met with the Chairman and the
Ranking Minority Member to discuss the subpoena. Unfortunately,
the Attorney General merely reiterated the Department's policy
grounds for refusing to comply with the subpoena. On August 3,
1998, the Chairman sent a letter to the Attorney General
informing her that he had considered and rejected all of her
objections, and insisted upon the production of the subpoenaed
documents.
While the Committee understands the concerns expressed by
the Attorney General and FBI Director, congressional authority
to conduct oversight overrides such policy concerns,
particularly in this extraordinary situation where the Attorney
General has repeatedly rejected the advice of the two top
officials she has put in charge of the campaign finance
investigation.
II. Authority and Legislative Purpose
A. The Committee's Investigative Jurisdiction
The Committee on Government Reform and Oversight is a duly
established Committee of the House of Representatives, pursuant
to the Rules of the House of Representatives. House Rule X
grants the Committee on Government Reform and Oversight
jurisdiction over, inter alia, ``The overall economy,
efficiency and management of government operations and
activities . . . .'' \8\ Rule X further states that the
Committee ``may at any time conduct investigations of any
matter . . . .'' \9\ Pursuant to this authority, the Committee
on Government Reform and Oversight is engaged in such an
investigation.
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\8\ House Rule X(1)(g).
\9\ House Rule X(4)(c)(2).
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The Committee is currently engaged in an investigation of
political fundraising improprieties and possible violations of
law. It began this investigation at the start of the 105th
Congress. The investigation represents an exercise of the
Committee's core oversight responsibilities, as it encompasses
the role of government officials in campaign fundraising
improprieties and related matters, and the impact of those
improprieties upon government operations. On June 17, 1997, the
Committee received special investigative authorities from the
House of Representatives. House Resolution 167 granted the
Committee power to take staff depositions, order the taking of
interrogatories, or apply for the issuance of letters rogatory
with respect to the Committee's campaign finance investigation.
House Report 105-139, which was prepared by the Rules Committee
in conjunction with House Resolution 167, describes the
investigation as of June 19, 1997.
Numerous Supreme Court precedents establish and support a
broad and encompassing power in Congress to engage in oversight
and investigation that reaches all sources of information that
enable it to carry out its legislative function. In general,
Congress and its committees, particularly the Committee on
Government Reform and Oversight, have virtually plenary power
to compel information needed to discharge its legislative
function from executive agencies, private persons and
organizations, and within certain constraints, the information
so obtained may be made public.\10\
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\10\ See, e.g., 5 U.S.C. Sec. 2954 (Executive agencies required to
provide requested information to the Committee).
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Several decisions of the Supreme Court have firmly
established that the investigative power of Congress is so
essential to the legislative function as to be implicit in the
general vesting of legislative power in Congress. Thus, in
Eastland v. United States Servicemen's Fund the court explained
that ``[t]he scope of its power of inquiry . . . is as
penetrating and far reaching as the potential power to enact
and appropriate under the Constitution.'' \11\ In Watkins v.
United States the Court further described the breath of the
power of inquiry: ``[t]he power of the Congress to conduct
investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly
needed statutes.'' \12\ The Court went on to emphasize that
Congress's investigative power is at its peak when the subject
is alleged waste, fraud, abuse, or maladministration within a
government department. The investigative power it stated,
``comprehends probes into departments of the Federal Government
to expose corruption, inefficiency, or waste.'' \13\ ``[T]he
first Congresses,'' it continued, held ``inquiries dealing with
suspected corruption or mismanagement of government officials''
\14\ and subsequently, in a series of decisions, ``[t]he Court
recognized the danger to effective and honest conduct of the
Government if the legislative power to probe corruption in the
Executive Branch were unduly hampered.'' \15\ Accordingly, the
Court stated, it recognizes ``the power of the Congress to
inquire into and publicize corruption, maladministration, or
inefficiencies in the agencies of Government.'' \16\
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\11\ 421 U.S. 491, 504 n.15 (quoting Barenblatt v. United States,
360 U.S. 109, 111 (1950)).
\12\ 354 U.S. 178, 187 (1957).
\13\ Id.
\14\ Id., at 182.
\15\ Id., at 194-95.
\16\ Id., at 200 n.33.
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B. Subpoena Authority
Clause 2(m) of House Rule XI specifically authorizes the
Committee to delegate subpoena authority to the full Committee
chairman. The rules of the Committee on Government Reform and
Oversight were approved by unanimous voice vote, a majority
being present, on February 12, 1997. In accordance with the
rules of the House, Rule 18 of the Committee rules provide that
the chairman, ``shall: (d) Authorize and issue subpoenas as
provided in House Rule XI, clause 2(m), in the conduct of any
investigation or activity or series of investigations or
activities within the jurisdiction of the committee.'' This
rule is not new or novel. It is the same authority contained in
the House Government Reform and Oversight Committee's Rule 18
during the 104th Congress and for many prior years.
The subpoena authority granted to the Chairman of the House
Government Reform and Oversight Committee is not unlike the
subpoena authority utilized by similar investigative committees
of Congress. For example, Rule 9 of the Rules of Procedure for
the Senate Select Committee on Presidential Campaign
Activities, more commonly know as the Watergate Committee,
empowered its chairman to issue subpoenas for the attendance of
witnesses and the production of documents.\17\
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\17\ S. Rept. No. 93-981, 93d Cong., 2d sess., 418 (1974).
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Other committees of the House of Representatives, 105th
Congress, have authorized their chairmen to issue subpoenas
without the authorization of a majority of its committee
members. The Committee on Ways and Means, in its committee rule
14, ``delegated to the Chairman of the full Committee, as
provided for under clause 2(m)(2)(A) of Rule XI of the House of
Representatives.'' Rule 7 of the Committee on Small Business
provides that ``[a] subpoena may be authorized and issued by
the Chairman of the committee . . . as he deems necessary. The
ranking minority member shall be promptly notified of the
issuance of such a subpoena.'' Rule 7 of the Permanent Select
Committee on Intelligence provides that ``subpoenas . . . may
be issued by the chairman, or any member of the committee
designated by the chairman.'' These examples demonstrate that
the authority of the Chairman of the House Government Reform
and Oversight Committee to issue subpoenas is not unusual or
irregular, and in fact, is the same as that enjoyed by other
committees of the House of Representatives.
Recently, the Committee voted to add an additional
provision to the subpoena process. In a unanimous vote on June
23, 1998, the Committee approved changes to its Document
Protocol that affected the process for the issuance of
subpoenas. The Document Protocol, as amended, requires the
Chairman to provide proposed subpoenas to the Committee
minority 24 hours prior to their issuance. If the Ranking
Minority Member concurs with the subpoena, the Chairman may
issue it. If the Ranking Minority Member objects to the
subpoena, the Chairman sends the subpoena to a Subpoena Working
Group, composed of the Chairman, the Vice Chairman, a majority
member selected by the Chairman, the Ranking Minority Member,
and a minority member selected by the Ranking Minority Member.
The Working Group may deliberate about the subpoena, but if it
does not reach consensus about the subpoena, upon motion of the
Chairman, the Working Group may render its vote regarding the
issuance of the subpoena. The Chairman has agreed to abide by
the recommendations of the Working Group when deciding to issue
subpoenas.
Pursuant, therefore, to its responsibilities and authority
as mandated by the House of Representatives, the Committee has
issued subpoenas for documents, records and other information
which, as prescribed by Committee rules, were deemed essential
to its inquiry. The subpoenas, which form the basis of this
contempt report, were issued in full conformance with this
authority.
C. Issuance of the Committee Subpoena
Shortly after learning of the existence of the La Bella
memorandum, the Chairman wrote to the Attorney General on July
23, 1998, requesting her to produce the Freeh and La Bella
memoranda to the Committee. The Attorney General's staff
informed the Committee staff by telephone that the Attorney
General would not comply with the request. Also on July 23,
1998, the Chairman informed the Ranking Minority Member that he
intended to issue a subpoena for the Freeh and La Bella
memoranda if they were not produced voluntarily. Ranking
Minority Member Waxman's staff informed majority Committee
staff that Congressman Waxman objected to the issuance of such
a subpoena. Therefore, on the morning of July 24, 1998, the
Chairman convened a meeting of the Subpoena Working Group to
discuss the issuance of the subpoena. At an early morning
meeting, Chairman Burton, Mr. Cox, Mr. Waxman, and Mr. Lantos
discussed the subpoenas, but were unable to reach consensus.
The Working Group convened again later in the day to resume its
deliberations. At this meeting, the Chairman moved that the
Working Group render its vote on the subpoena. Chairman Burton,
Mr. Cox and Mr. Hastert voted in favor of the issuance of the
subpoena, and Mr. Waxman voted against the issuance of the
subpoena. Mr. Lantos did not attend the meeting.
The Chairman therefore signed and issued the subpoena to
the Attorney General on July 24, 1998. By the end of the day,
the subpoena was served by hand upon Craig S. Iscoe, Special
Counsel to the Deputy Attorney General, who had agreed to
accept service for the Attorney General. The subpoena required
the requested documents to be produced to the Committee by 5
p.m., on July 27, 1998.
On July 27, the Committee received a one page letter from
L. Anthony Sutin, Acting Assistant Attorney General for
Legislative Affairs, stating that ``we are unable to provide
the documents that you request at this time.'' The Attorney
General and FBI Director sent a letter to the Committee on July
28, further explaining the reasons for the Attorney General's
refusal to comply with the Committee's subpoena. Neither in the
letter of July 27, 1998, nor in the letter of July 28, 1998,
has the Attorney General invoked a legal privilege to avoid
compliance with the subpoena. Each letter has contained a flat
refusal to comply, followed by a statement of the Department of
Justice's general policy against providing such information to
Congress. On August 3, 1998, the Chairman sent a letter to the
Attorney General rejecting her objections, and demanding that
she comply with the Committee's July 24, 1998, subpoena.
As indicated above, Attorney General Janet Reno was
summoned to furnish materials in her custody and control
pursuant to valid and duly executed subpoenas of the Committee;
however, she deliberately failed to comply with the terms of
the subpoenas, thereby purposefully thwarting the Committee's
investigation and necessitating a finding that Attorney General
Reno is in contempt of Congress.
III. The Committee's Need for the Subpoenaed Records
The Committee is conducting its own investigation of
campaign finance matters, and therefore has a unique knowledge
of the facts and law with which the Department of Justice is
working. Because the Committee possesses much of the same
information as the Task Force, the Committee is concerned that
the Department of Justice has a conflict in the investigation,
as much of the information leads to the highest levels of the
White House and Democratic National Committee.
The two memoranda subpoenaed by the Committee are written
by the FBI Director and the Justice Department Task Force
Supervising Attorney. These two individuals have the greatest
overall knowledge of the facts of the investigation. They
provided the Attorney General with their application of the
facts to the law of the Independent Counsel Act and concluded
that under either the mandatory or discretionary provisions of
the Independent Counsel Act, the Department of Justice has a
conflict of interest in investigating the campaign finance
matter. They also advised that they believed the Attorney
General had misinterpreted the law, thereby creating an
artificially high standard for invoking the act.
While it is likely that the Committee is already in
possession of most of the facts cited by the FBI Director and
the Justice Department, the Committee needs to know the
particular facts relied upon by these officials and the legal
reasoning from those facts to their conclusion that an
independent counsel must be appointed. This will enable the
Committee to assess, on one hand, the strength of their
recommendations to the Attorney General and, on the other hand,
will hopefully provide the Committee with some insight into the
reasons that the Attorney General continues to reject these
recommendations. In the event that the Attorney General has
identified some loophole in the statute that enables her to
resist the appointment of an independent counsel contrary to
the evident purpose of the Independent Counsel Act, this
Committee will be able to recommend legislative changes to
eliminate that loophole. Thus, the subpoena of the two
memoranda represents an exercise of its basic oversight
responsibilities.
A. Why an Independent Counsel Is Essential in the Campaign Finance
Investigation
The concept of an independent counsel grew out of the
Watergate investigation.\18\ The first recommendation of the
Watergate report was to create an institution, the office of
independent counsel, where the President would have no
influence over the prosecutor.\19\ The recommendation was later
introduced in the Watergate Reform Legislation, and was
ultimately enacted in 1978.\20\ Chief Counsel to the Watergate
Committee Sam Dash, who many consider the creator of the
Independent Counsel Act, explained that the statute is not
related to the integrity of the Attorney General, but rather,
is meant to appeal to the public perception of justice, ``when
serious charges are brought against the president or a high
executive, the public has confidence that it is seriously
investigated.'' \21\ In fact, the Attorney General agreed with
sense of that statement in her comments on the reauthorization
of the Independent Counsel Act during her appearance before the
Senate Governmental Affairs Committee on May 14, 1993:
---------------------------------------------------------------------------
\18\ Frontline: Secrets of an Independent Counsel, (PBS Television
Broadcast, May 19, 1998).
\19\ Id.
\20\ Id.
\21\ Id.
The reason that I support the concept of an
independent counsel with statutory independence is that
there is an inherent conflict whenever senior Executive
Branch officials are to be investigated by the
Department and its appointed head, the Attorney
General.\22\
---------------------------------------------------------------------------
\22\ S. 24, The Independent Counsel Reauthorization Act of 1993:
Hearing before the Senate Committee on Governmental Affairs, 103d
Cong., 1st sess., 11 (1993).
The language of the statute provides both a mandatory and
discretionary provision for appointment of an independent
counsel.\23\ The statute is triggered when the Attorney General
receives information alleging a violation of law by a covered
official. Covered officials, in turn, include, the President
and Vice President, cabinet members, senior employees in the
Executive Office of the President, senior Justice Department
employees, the Director and Deputy Director of the Central
Intelligence Agency, the Commissioner of the Internal Revenue
Service, and ``the chairman and treasurer of the principal
national campaign committee exercising authority at the
national level, during the incumbency of the President.'' \24\
The Attorney General, in her discretion, may appoint an
independent counsel to investigate alleged criminal violations
of any person, not just covered persons listed in the statute,
if she determines that an investigation of a particular person
by the Justice Department ``may result in a personal,
financial, or political conflict of interest.'' \25\
---------------------------------------------------------------------------
\23\ 28 U.S.C. Sec. 591 (1994).
\24\ 28 U.S.C. Sec. 591(b)(6) (1994).
\25\ 28 U.S.C. Sec. 591(c)(1) (1994).
---------------------------------------------------------------------------
The independent counsel statute was meant to provide a
mechanism for investigating and prosecuting violations of law
in cases where the potential for a conflict of interest is
inherent in the relationship of the investigator to the
investigated. Former Chairman of the House Judiciary Committee
Peter W. Rodino wrote the following about the need for
independent counsels:
My experiences in serving as Chairman of the House
Judiciary Committee during Watergate and Iran Contra
have unambiguously convinced me that there is an
overriding and recurring need for an Independent
Counsel. Indeed, the reaction of Congress and the
American public to the nascent ``Whitewater'' affair
confirms the expectation that allegations of wrongdoing
by those at the highest levels of the Executive Branch
should not be handled through normal channels, but
should be dealt with by an Independent Counsel.\26\
---------------------------------------------------------------------------
\26\ Peter W. Rodino, Jr., ``The Case for the Independent
Counsel,'' 19 Seton Hall Legis. J. 5, 24 (1994).
Attorney General Reno's previous statements about the
Independent Counsel Act were similar to those of Chairman
Rodino. She stated in testimony about the reauthorization of
---------------------------------------------------------------------------
the act:
The Independent Counsel Act was designed to avoid
even the appearance of impropriety in the consideration
of allegations of misconduct by high-level Executive
Branch officials and to prevent, as I have said, the
actual or perceived conflicts of interest. The Act thus
served as a vehicle to further the public's perception
of fairness and thoroughness in such matters, and to
avert even the most subtle influences that may appear
in an investigation of highly placed Executive
officials.\27\
---------------------------------------------------------------------------
\27\ S. 24, The Independent Counsel Reauthorization Act of 1993:
Hearing before the Senate Committee on Governmental Affairs, 103d
Cong., 1st sess., 12 (1993).
The campaign finance case not only reaches the highest
levels of the White House, but also includes close associates
of the President and high-level DNC officials. The Committee
has seen much of the same evidence on which the Attorney
General bases her decisions on whether to appoint an
independent counsel, and has concluded that an independent
counsel is warranted in this case. In addition, the two
individuals with the most comprehensive knowledge of the
Justice Department's Task Force investigation agree that an
independent counsel should be appointed and have urged the
Attorney General to do so. The Attorney General herself
recognized that it is absolutely necessary to have the
confidence of the public in investigations involving high level
officials, ``[i]t is absolutely essential for the public to
have confidence in the system and you cannot do that when there
is conflict or an appearance of conflict in the person who is,
in effect, the chief prosecutor.'' \28\
---------------------------------------------------------------------------
\28\ Id.
---------------------------------------------------------------------------
The subpoena of the memoranda written by FBI Director Freeh
and Task Force Supervising Attorney La Bella, respectively, is
an exercise of the Committee's oversight jurisdiction in
reviewing the Department of Justice's nonfeasance or
malfeasance in the campaign finance investigation.
Historically, Congress has conducted such oversight of the
Department. Former House Judiciary Committee Chairman Rodino
has written that he does not subscribe to the notion that the
Constitution alone is sufficient to police an Attorney General
who ``does not discharge [her] statutory duty to investigate
the President.'' As Chairman Rodino wrote in 1994: ``While I
respect this high-minded view of our government, political
pragmatism moves me to wonder who is going to investigate the
Attorney General if such a breach of duty occurs.'' \29\
---------------------------------------------------------------------------
\29\ Peter W. Rodino, Jr., ``The Case for the Independent
Counsel,'' 19 Seton Hall Legis. J. 5, 25 (1994).
---------------------------------------------------------------------------
Although the Independent Counsel Act has drawn criticisms
in the past, it nevertheless must be enforced. Watergate
Special Prosecutor Archibald Cox testified before Congress
prior to the enactment of the first Independent Counsel Act,
``[t]he pressure, the divided loyalty, are too much for any
man, and as honorable and conscientious as any individual might
be, the public could never feel entirely easy about the vigor
and thoroughness with which the investigation was pursued. Some
outside person is absolutely essential.'' \30\ The Committee is
responsible for ensuring that the Department of Justice acts in
a manner consistent with the law. In this situation, the
oversight interests of the Congress are greater than the
institutional policy concerns of the Department of Justice. The
memoranda are essential for the Committee to carry out its
responsibilities and review how the Independent Counsel Act has
been followed in relation to the campaign finance
investigation.
---------------------------------------------------------------------------
\30\ S. 24, The Independent Counsel Reauthorization Act of 1993:
Hearing before the Senate Committee on Governmental Affairs, 103d
Cong., 1st sess., 12 (1993) (quoting the Cox testimony).
---------------------------------------------------------------------------
B. FBI Director Freeh's Memorandum to Attorney General Reno
One of the subpoenaed records at issue is a November 1997
memorandum from FBI Director Louis Freeh to Attorney General
Janet Reno. Press reports of the memorandum emerged in early
December 1997, citing a conflict between the FBI Director and
Attorney General over the application and interpretation of the
Independent Counsel Act.\31\ Because of concerns for the
integrity of the Department of Justice investigation, the
Committee originally subpoenaed the memorandum on December 5,
1997. At that time, the Committee accommodated the Department
of Justice by agreeing to a confidential oral briefing on the
Freeh memorandum for the Chairman and Ranking Member.
---------------------------------------------------------------------------
\31\ David Johnston, ``F.B.I.'s Chief Tries to Influence Reno, Memo
Argues for Appointment of Independent Prosecutor,'' New York Times,
Dec. 2, 1997, A1.
---------------------------------------------------------------------------
On July 15, 1998, Senator Fred Thompson, who was also
briefed on the Freeh memorandum, disclosed substantive portions
of the memorandum during a hearing at which Attorney General
Reno testified.\32\ Senator Thompson stated that Director
Freeh's conclusion was that the independent counsel statute
should be triggered under either the mandatory or discretionary
provisions. Ultimately, Director Freeh disagreed with Attorney
General Reno's interpretation of the law and her application of
the facts to the law.
---------------------------------------------------------------------------
\32\ Department of Justice Oversight, Hearing before the Senate
Committee on the Judiciary, 105th Cong., 2d sess., (1998) (Statement of
Senator Fred Thompson).
---------------------------------------------------------------------------
Senator Thompson quoted directly from the memorandum, ``It
is difficult to imagine a more compelling situation for
appointing an independent counsel.'' \33\ Director Freeh
discussed the mandatory provision of the statute and found that
the FBI's investigation led to the highest levels of the White
House, including the President and Vice President. The
memorandum also takes account of the legislative history of the
Independent Counsel Act, noting that Congress intended that
where unprecedented legal issues or differences of legal
opinion occurred, such as in the instant case, an independent
counsel would be sought.
---------------------------------------------------------------------------
\33\ Id.
---------------------------------------------------------------------------
In addition, Director Freeh pointed out that the Department
of Justice is investigating other persons who, in addition to
covered persons under the statute, give the appearance of a
conflict of interest because of the nature of their
relationship with the President. He raised concerns about a
possible conflict due to the obligation of the FBI and Justice
Department to keep the President informed of national security
information which may be related to the investigation. He also
pointed out that the Independent Counsel Act arose from the
Watergate investigation, and therefore had a unique
relationship to the campaign finance laws.
The last section of the memo compares the campaign finance
investigation to the Attorney General's previous appointments
of independent counsels. There were other instances in which
the Attorney General relied upon the discretionary section of
the act, and it would be consistent with her precedents to
appoint an independent counsel in the campaign finance
investigation as well. For example, in her application for an
independent counsel in the Whitewater matter, the Attorney
General wrote:
I have concluded that the circumstances of this
matter call for the appointment of an independent
counsel pursuant to 28 U.S.C. Sec. 592(c)(1)(A),
because investigation by the Department of Justice of
the allegations of criminal law by McDougal and other
individuals associated with President and Mrs. Clinton
in connection with Madison Guaranty Savings & Loan,
Whitewater Development Corporation, and Capital
Management Services, Inc., would present a political
conflict of interest.\34\
---------------------------------------------------------------------------
\34\ United States v. McDougal, 906 F. Supp, 499, 500 (E.D. Ark.
1995) (quoting from Attorney General Reno's application with the
Special Division to request the appointment of an independent counsel
in the Whitewater matter).
Clearly in the Whitewater case, the Attorney General recognized
the obvious political conflict. The same conflicts are present
here with any number of close associates of the President who
are providing large amounts of money to the DNC.
C. Justice Department Task Force Supervising Attorney Charles La
Bella's Report to Attorney General Reno
Director Freeh's conclusions were later echoed by Task
Force Supervising Attorney Charles La Bella. The impetus for
the Committee's subpoena was the disclosure in the media of the
report written by La Bella to the Attorney General, described
below. It is important at this time for all of the Committee
members to have access to both documents to review and analyze
the arguments which the Attorney General is failing to follow.
The Committee learned about the contents of Mr. La Bella's
report in the same manner it first learned of the Freeh
memorandum--through the media's disclosure. The only knowledge
the Committee has of the report is from newspaper accounts.\35\
Media reports noted that ``government officials'' were the
source of the information contained in Mr. La Bella's report,
and the accounts indicated that Mr. La Bella concluded Attorney
General Reno had misinterpreted the independent counsel law,
thereby creating an ``artificially high standard'' \36\ in
order to avoid invoking the statute. Mr. La Bella, along with
Director Freeh, previously had recommended an independent
counsel during Attorney General Reno's preliminary
investigation of the President and Vice President's fundraising
phone calls.
---------------------------------------------------------------------------
\35\ David Johnston, ``Report to Reno Urges a Counsel Over
Donations,'' New York Times, July 23, 1998, at A1.
\36\ Id.
---------------------------------------------------------------------------
On July 24, 1998, the Committee issued a subpoena to
Attorney General Reno for Mr. La Bella's report, as well as
Director Freeh's November 1997 report. After learning of Mr. La
Bella's recommendations, it was incumbent on the Committee to
exercise its oversight authority over the decisionmaking
process at the Department of Justice, specifically, Attorney
General Reno's failure to appoint an independent counsel in the
face of the second report indicating she misinterpreted the
law.
Mr. La Bella found that there was sufficient information to
warrant the appointment of an independent counsel based on both
the mandatory or discretionary provisions of the statute. Mr.
La Bella found enough specific information to justify an
investigation of high level officials. He also determined that
the Department of Justice could not objectively investigate
such persons on its own. Mr. La Bella also suggested that an
independent counsel should examine both national political
parties'' practices relating to issue advertising.
Mr. La Bella wrote the 100-plus-page report to Attorney
General upon his departure from the Campaign Financing Task
Force after 10 months as supervising attorney. The report was
meant to summarize the investigation up until the point of La
Bella's departure and to make his recommendations for future
action. Because Mr. La Bella was the supervising attorney on
the Task Force, he has the most intimate knowledge of the
facts.
IV. The Attorney General's Refusal to Produce the Subpoenaed Records
A. The Justice Department Has Never Raised a Valid Basis to Avoid
Compliance
After receiving the Committee's subpoena on July 24, 1998,
the Attorney General responded with two letters. The first, on
July 27, stated that ``[b]ecause of the ongoing criminal
investigation into the matters that are the subject of the
memoranda, we are unable to provide the documents that you
request at this time.'' \37\ The following day, the Attorney
General and the FBI Director wrote that they were strongly
opposed to releasing the subpoenaed documents.\38\ Then, on
July 31, 1998, the Attorney General met with the Chairman and
Committee staff, and reiterated her opposition to producing the
subpoenaed documents. The Attorney General has raised a number
of objections to producing the subpoenaed documents. The
objections have consisted solely of an enunciation of general
Department policy against providing investigative materials to
Congress, and an explanation of that policy, and the Attorney
General has not asserted any claim of privilege in response to
the Committee's subpoena.
---------------------------------------------------------------------------
\37\ Letter from L. Anthony Sutin, Acting Assistant Attorney
General to Chairman Dan Burton, July 27, 1998.
\38\ Letter from Attorney General Janet Reno and FBI Director Louis
Freeh to Chairman Burton, July 28, 1998.
---------------------------------------------------------------------------
The Attorney General's response to the Committee's subpoena
is wholly inadequate. The Committee has issued a lawful
subpoena, and the Attorney General has not made a claim of
privilege in response. Rather, she has simply refused to comply
with the subpoena. It is difficult to conceive of a more simple
case for contempt of Congress. The Attorney General has not
even attempted to interpose a legally adequate response to the
subpoena.
The Attorney General primarily relies upon a 1986
memorandum by then-Assistant Attorney General Charles Cooper
for the existence of a Department of Justice policy against
granting congressional access to the Department's open
investigative files. However, the Cooper memorandum makes clear
that this policy governs only ``in responding to an informal
congressional request for information,'' where ``the Executive
Branch is not necessarily bound by the limits of executive
privilege.'' \39\ Once a valid congressional subpoena is issued
for such information, the only potential basis for refusing to
comply is a properly-invoked claim of executive privilege.\40\
The Cooper memorandum itself makes this clear:
---------------------------------------------------------------------------
\39\ 10 Op. O.L.C. 68, 75.
\40\ The Cooper memorandum notes that the validity of a
congressional subpoena can be challenged based upon lack of
jurisdiction. 10 Op. O.L.C. at 89-91. No such challenge has been, or
could be, made in the present case.
[t]herefore, Congress could not, as a matter of
statutory or constitutional law, invoke the criminal
contempt of Congress procedure set out in 2 U.S.C.
Sec. Sec. 192 and 194 against the head of an Executive
Branch agency, if he acted on the instructions of the
President to assert executive privilege in response to
a congressional subpoena.\41\
---------------------------------------------------------------------------
\41\ 10 Op. O.L.C. at 85 (emphasis added).
Moreover, as the Cooper memorandum acknowledges, the mere fact
that a congressional Subpoena is allegedly inconsistent with
the Department's ``policy'' does not mean that executive
privilege can or should be invoked.\42\ In the present case a
claim of executive privilege, if asserted, would be highly
dubious.\43\ In any event, the President has not invoked
executive privilege with respect to the Committee's subpoena
(as he must in order for the privilege to be validly asserted),
nor has the Attorney General even indicated that she intends to
ask him to do so. Thus, even if the Department's policy
concerns were well-grounded (which, as discussed below, they
are not), there would be no legal basis for the Attorney
General's refusal to comply.
---------------------------------------------------------------------------
\42\ See 10 Op. O.L.C. at 92 (``Under the terms of the Reagan
Memorandum, executive privilege cannot be asserted vis-a-vis Congress
without specific authorization by the President, based on
recommendations made to him by the concerned department head, the
Attorney General, and the Counsel to the President. That decision must
be based on the specific facts of the situation, and therefore it is
impossible to predict in advance whether executive privilege could or
should be claimed as to any particular types of documents or
information.'').
\43\ As the D.C. Circuit has recently held, the doctrine of
executive privilege which arises from the constitutional separation of
powers applies only to decisionmaking of the President. In re. Sealed
Case (Espy), 121 F.3d 729, 745 (D.C. Cir. 1997). Since the subject of
the Committee's subpoena is not one that does (or legally could)
involve Presidential decisionmaking, no constitutional privilege could
be invoked here. The ``deliberative process'' privilege, which is a
common-law privilege applicable to executive branch decisionmaking
generally, has no application here because it is not of constitutional
dimension. In any event, the deliberative process privilege is easily
overcome by a proper showing of need or allegation of potential
wrongdoing. Thus, even if the deliberative process privilege could be
properly invoked here, it would not justify refusal to comply with the
Committee's subpoena. See id., at 737-38, 745, 746 (holding that the
deliberative process privilege ``disappears altogether when there is
any reason to believe that government misconduct has occurred'').
---------------------------------------------------------------------------
B. The Objections Raised by the Department
As outlined above, the Committee first subpoenaed the Freeh
memorandum in December 1997. The Committee declined to enforce
that subpoena as it came to an accommodation with the
Department. Under that agreement, the Chairman, the Ranking
Minority Member, and the majority and minority chief counsels
were briefed on the Freeh memorandum.
However, in July 1998, the Committee learned from press
accounts of the existence of the La Bella report. The Committee
immediately requested a copy of the La Bella report, and was
informed orally that it would not be provided with a copy.\44\
Therefore, on July 24, the Committee issued a subpoena for the
report. The response to the subpoena was due July 27, 1998. The
Department of Justice initially replied on July 27 by providing
the Committee with a one-paragraph letter explaining that it
would not comply with the subpoena. The July 27 letter stated
that further explanation would be forthcoming. The following
day, Department officials met with Committee staff to explain
their position. In this meeting, Acting Assistant Attorney
General L. Anthony Sutin and Faith Burton of the Office of
Legislative Affairs outlined the Department's policy concerns,
and assured the Committee that further correspondence would be
forthcoming. They stated that this correspondence would explain
the legal privilege that formed the basis of the Department's
refusal to comply with the Committee's subpoena.
---------------------------------------------------------------------------
\44\ See letter from Chairman Dan Burton to Attorney General Janet
Reno, July 23, 1998.
---------------------------------------------------------------------------
Later on July 28, 1998, the Committee received a letter
containing the Department's reasons for failing to comply with
the Committee subpoena of July 24. Despite the assurances of
Department staff, it did not contain any claim of privilege or
other legal justification for the Department's failure to
comply. Rather, it contained a listing of the Department's
policy concerns about providing the subpoenaed documents to the
Committee. The concerns voiced in the July 28 letter were
largely the same as those listed in earlier correspondence with
the Department regarding the Freeh memorandum. None of the
concerns stated in the July 28 letter, or in any other
correspondence with the Department about the memoranda, amounts
to a valid basis to refuse compliance with the Committee's
subpoena. Nevertheless, we address the concerns voiced by the
Department below.
1. ``Congressional Interference with the Department's Investigation''
The Department's July 28 letter to the Committee states
that ``providing a congressional committee with confidential
details about active criminal investigations would place the
Congress in a position to exert pressure or attempt to
influence the prosecutions of criminal cases.'' \45\ The
concern cited by the Attorney General and the FBI Director
would have some validity if a congressional committee were
attempting to influence a decision whether or not to prosecute
a particular person. Here, however, the Committee is
investigating the Attorney General's failure to seek an
independent counsel in the campaign finance investigation and
her interpretation of the Independent Counsel Act, a statute
specifically designed to remove the Attorney General from cases
in which she has an actual or potential conflict of interest.
Thus, the Committee's interest is not in particular
prosecutorial decisions made with respect to the campaign
finance investigation, but in ensuring that those decisions are
made by a conflict-free prosecutor as required by the
Independent Counsel Act.\46\ If Congress cannot obtain
information regarding how the Attorney General is interpreting
and applying the Independent Counsel Act, it would be unable to
ensure that the Attorney General is complying with the recusal
provisions of the Independent Counsel Act as Congress intended,
or, if necessary, make legislative changes to express
congressional intent more forcefully.\47\
---------------------------------------------------------------------------
\45\ Letter from Attorney General Janet Reno and FBI Director Louis
Freeh to Chairman Burton, July 28, 1998, at 2.
\46\ This is not even a case where the Attorney General has
concluded that no investigation is required because there is no
``specific and credible'' evidence that a crime has been committed. If
Congress sought information regarding such a decision (as it has in the
past), it might at least plausibly be argued that the Attorney
General's exercise of prosecutorial discretion was being questioned.
Here there is no disagreement that investigation is required; the only
question is who should head this investigation. Congressional oversight
of that decision can hardly be characterized as interference with the
exercise of traditional prosecutorial discretion.
\47\ The Cooper memorandum recognizes this fact as well: ``Congress
does, however, have a legitimate legislative interest in overseeing the
Department's enforcement of the Independent Counsel Act and relevant
criminal statutes and in determining whether legislative revisions to
the Act should be made.'' 10 Op. O.L.C. 68, 74.
---------------------------------------------------------------------------
However, the ability of a congressional committee to
oversee the activities of the Department of Justice, even those
activities involving open cases, is well established. The
Committee takes its oversight responsibilities very seriously.
While it will not use them to interfere with the Department's
investigation, it will not shirk those duties and allow the
Department's work to suffer potential harm from within. Such
oversight is essential to Congress' duty to oversee the
activities of the executive branch. The Supreme Court has
recognized that ``[t]he power of the Congress to conduct
investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the
administration of existing laws as well as proposed or possibly
needed statutes.'' \48\ While this Committee intends to take
care to see that it does not interfere with the Department's
investigation, it is of great importance to ensure that the
Department does not interfere with the Committee's
constitutional oversight duties. As the Supreme Court has
stated: ``[t]he Court recognized the danger to effective and
honest conduct of the Government of the legislative power to
probe corruption in the Executive Branch were unduly
hampered.'' \49\
---------------------------------------------------------------------------
\48\ Watkins v. United States, 354 U.S. 178, 187 (1957).
\49\ Id., at 194-95.
---------------------------------------------------------------------------
The record bears out the fact that the Committee has a
history of assisting, not hampering, the Department's
investigation. It has provided numerous leads and documents to
the Campaign Financing Task Force. It has consistently
refrained from granting immunity to witnesses when requested by
the Department. Similarly, it has refrained from publicly
releasing subpoenaed documents when requested by the
Department, even though it has the right to release the
documents under established Committee protocols. The Committee
has shown similar sensitivity in this case, by requesting that
the Department redact all grand jury information from the
memoranda. The Committee will continue to take every precaution
to see that the investigation and prosecution of cases related
to the campaign finance scandal are pursued. While the
Department's concerns are not groundless, the Committee's
legitimate oversight needs simply outweigh those concerns.
Of greater concern are actions taken by the Department that
have a greater prejudicial effect on the work of the Task Force
than any potential acts of the Committee. For example, the
original supervising attorney on the Task Force departed after
a short period of time, and now, the second supervising
attorney has departed, with his recommendations being rejected
to date, or at least appearing to have been minimized by the
Attorney General.\50\ The disruption caused by this rapid
turnover likely has a greater impact upon the efficiency,
morale, and likely, even the independence of the probe, than
the Committee's action. In addition, the Department appears to
have failed to make an aggressive attempt to obtain foreign
records relating to its investigation. With all of the
resources of the executive branch at its disposal, the Task
Force's failure in this area is troubling, and adds to the
common perception that the Department has a conflict in
investigation potential wrongdoing at high levels of the
Executive branch.
---------------------------------------------------------------------------
\50\ See Roberto Suro and Michael Grunwald, ``Independent Probe of
'96 Funds Urged,'' Washington Post, July 24, 1998, at A21.
---------------------------------------------------------------------------
2. ``Chilling Effect on the Attorney General's Advisors''
The Attorney General also has claimed that compliance with
the Committee's subpoena would have a ``chilling effect'' upon
the willingness of the advisors of the Attorney General to
render their candid advice and recommendations to her.\51\ The
Committee has considered this claim, and is sensitive to the
concerns raised by the Attorney General and the FBI Director.
Nevertheless, the arguments raised in the July 28 letter do not
amount to a countervailing claim of privilege that can outweigh
the Congress' fundamental oversight duties.
---------------------------------------------------------------------------
\51\ Letter from Attorney General Janet Reno and FBI Director Louis
Freeh to Chairman Burton, July 28, 1998, at 2; letter from Attorney
General Janet Reno and FBI Director Louis Freeh to Chairman Dan Burton,
Dec. 8, 1997, at 1.
---------------------------------------------------------------------------
Furthermore, the claim that the Committee's interest in the
memoranda will have a chilling effect on the Attorney General's
advisors is unconvincing. The conclusions of the Freeh
memorandum were leaked to the media almost as soon as it was
given to the Attorney General. The public discussion of
Director Freeh's candid advice has not appeared to have any
chilling effect on Department lawyers, as 7 months later, Mr.
La Bella prepared an even more frank assessment of the
Department's work.
Moreover, based on press accounts of the Freeh and La Bella
memoranda, it appears that Congress has had far greater
interest in the memoranda than has the Attorney General. She
has refused to act on the recommendations of either memorandum,
despite the fact that they contain detailed factual reviews and
legal analyses of the campaign finance scandal by the two
persons best situated to offer such reports. It is far more
likely that the Attorney General's refusal to consider the
recommendations of her close advisors will have a chilling
effect on their willingness to offer such advice in the future.
3. ``The Memoranda Offer a `Road Map' to the Investigation''
The Attorney General claims that the production of the
Freeh and La Bella memoranda could offer suspects in the
campaign finance investigation a ``road map'' to the Task
Force's investigation, allowing them to evade prosecution.\52\
Such concerns are unfounded. First, the Committee's subpoena
explicitly calls for all information covered by Rule 6(e) to be
redacted from the memoranda. This would prevent grand jury
information from being made available to suspects. Second, this
argument ignores the numerous cases where Congress has received
this type of information without harming the prosecution of
targeted individuals. In fact, in this case, as in past cases,
congressional oversight, and the Committee's receipt of the
memoranda, is intended to facilitate the efficient
investigation and prosecution of targeted individuals. Third,
the Attorney General has disseminated these so-called ``road
maps'' throughout the Department, including, perhaps, to
political appointees. They also have been leaked extensively to
the press. If these memoranda contained such valuable
prosecutorial information, it is likely that the Department
would show greater care in how it handled them. Finally, the
Committee is prepared to evaluate the memoranda upon its
receipt of them, and take the necessary steps to ensure that
information prejudicial to the prosecution is redacted prior to
public release.
---------------------------------------------------------------------------
\52\ Id.
---------------------------------------------------------------------------
4. ``This is an Unprecedented Demand''
In their letter of December 8, 1997, the Attorney General
and the FBI Director claimed that ``[i]t is unprecedented for a
Congressional committee to demand internal decisionmaking
memoranda generated during an ongoing criminal investigation.''
\53\ In the meeting between staff of the Department of Justice
Office of Legislative Affairs and Committee staff on July 28,
the Justice Department staff stated that they stood by this
assertion. However, even a cursory review of the history of
congressional oversight of the Justice Department shows that
this statement is clearly false. Not only is it common for
congressional committees to demand this type of information,
but also, the Department has frequently complied with precisely
these types of demands.
---------------------------------------------------------------------------
\53\ Letter from Attorney General Janet Reno and FBI Director Louis
Freeh to Chairman Dan Burton, Dec. 8, 1997, at 2.
---------------------------------------------------------------------------
5. ``Grand Jury Information is Contained in the Memoranda''
The Committee's subpoena explicitly asks the Attorney
General to redact from the memoranda any information covered by
Rule 6(e) of the Federal Rules of Criminal Procedure.
Nevertheless, the Department of Justice has raised the issue
that the memoranda ``rely heavily on information obtained by
the grand jury'' during the criminal investigation. However,
such an observation clearly cannot rise to the level of an
objection, as the Committee's subpoena does not call for such
material. In addition, in the July 31 meeting with the Chairman
and the Attorney General, the FBI Director stated that
information covered by Rule 6(e) was a ``very small part'' of
both memoranda. However, the Committee is mindful of the
varying interpretations of exactly what material is covered by
Rule 6(e), and when it does obtain the memoranda, will seek to
ensure that the Department redacts only that information which
is legitimately covered by the rule.
C. Precedent for the Committee's Action
The Attorney General has claimed that not only would the
Committee's receipt of the subpoenaed documents be
unprecedented, but also that the Committee's demand itself is
without precedent.\54\ This is simply not the case. There are a
number of precedents for both the demand and receipt of records
relating to open Department of Justice investigations. In these
cases, congressional committees investigating malfeasance or
nonfeasance by the Department of Justice have received a wide
array of information, ranging from internal Department
documentary evidence to testimonial evidence from Department
officials. Such oversight by Congress has uncovered serious
instances of wrongdoing within the Department, and has made
possible the prosecution of criminal suspects when otherwise
the Department would not have pursued such cases.
---------------------------------------------------------------------------
\54\ See letter from Attorney General Janet Reno and FBI Director
Louis Freeh to Chairman Dan Burton, Dec. 8, 1997, at 2.
---------------------------------------------------------------------------
1. Palmer Raids Investigation
In the early 1920's, the Senate and the House held hearings
into the raids and arrests of suspected communists conducted by
the Department of Justice under Attorney General A. Mitchell
Palmer. During the course of their investigation, the
committees received a number of Department records relating to
the raids. Included in the documents provided to the committees
was a ``memorandum of comments and analysis'' prepared by a
Department lawyer, responding to a District Court opinion,
which was under appeal, and which criticized the Department's
actions.\55\ This document was provided to the committee even
though it contained facts and the Department's legal reasoning
regarding an open case.
---------------------------------------------------------------------------
\55\ Charges of Illegal Practices of the Department of Justice:
hearings before a Subcommittee of the Senate Committee on the
Judiciary, 66th Cong., 2d sess., at 484-538 (1921).
---------------------------------------------------------------------------
2. Teapot Dome Scandal
Later in the 1920's, the Senate conducted an investigation
into the Department of Justice's handling of the Teapot Dome
scandal, specifically, charges of ``misfeasance and nonfeasance
in the Department of Justice.'' \56\ The Senate committee heard
testimony from Justice Department attorneys and agents who
offered extensive testimony about the Department's failure to
pursue cases. Likewise, the Committee also received documentary
evidence from the Department about the Department's
nonfeasance. Testimony and documents were received from a
number of cases, some of which were still open.\57\
---------------------------------------------------------------------------
\56\ McGrain v. Daugherty, 273 U.S. 135, 151 (1927).
\57\ See, e.g., hearings before the Senate Select Committee on
Investigation of the Attorney General, vols. 1-3, 68th Cong., 1st
sess., (1924) at 1495-1503, 1529-30, 2295-96.
---------------------------------------------------------------------------
In one notable example, the Attorney General permitted an
accountant with the Department to testify and produce documents
relating to an investigation that he conducted. The accountant
produced his confidential reports in which he had described his
factual findings and made recommendations for further action.
The Department had failed to act upon his recommendations,
although the case was still open.\58\ The Government Reform and
Oversight Committee has actually asked the Justice Department
for much less than the Senate committee was seeking. The only
difference is that the Senate committee was faced with a
cooperative Department that sought to assist the committee in
exercising its oversight duties. Attorney General Reno, unlike
Attorney General Harlan F. Stone, has not cooperated with
Congress, forcing the Committee to issue a subpoena.
---------------------------------------------------------------------------
\58\ Id., at 1495-1547.
---------------------------------------------------------------------------
3. White Collar Crime in the Oil Industry
In 1979, the House Committee on Interstate and Foreign
Commerce and the House Committee on the Judiciary held joint
hearings on allegations of fraudulent pricing in the oil
industry. As part of that inquiry, the committees examined the
failure of the Justice Department to properly investigate and
prosecute related cases. As part of their hearings, the
committees held closed sessions in which they received evidence
regarding open cases in which indictments were pending.\59\ In
open session, the committees called a Justice Department staff
attorney who testified as to the reasons for not proceeding
with a certain criminal case, despite the fact that a civil
prosecution of the same case was pending. The Department
similarly provided the committees with documentary evidence
relating to this case.\60\
---------------------------------------------------------------------------
\59\ See White Collar Crime in the Oil Industry: Joint Hearings
before the Subcommittee on Energy and Power of the House Committee on
Interstate and Foreign Commerce and the Subcommittee on Crime of the
House Committee on the Judiciary, 96th Cong., 1st sess., (1979).
\60\ Id., at 156-57.
---------------------------------------------------------------------------
4. Gorsuch/EPA Investigation
In the early 1980's the Subcommittee on Oversight and
Investigations of the House Committee on Public Works and
Transportation investigated the enforcement policy of the
Environmental Protection Agency [EPA] with regard to the
Superfund program. The Subcommittee investigated the EPA's
enforcement policy with respect to both criminal and civil
matters.\61\ In response to the Committee's document requests,
the EPA, with the advice and assistance of the Justice
Department, objected to the request on the basis that
``[i]nternal enforcement documents which form the basis for
ongoing or anticipated civil or criminal prosecutions are
extremely sensitive. These documents include, for example,
memoranda by Agency or Department of Justice attorneys
containing litigation and negotiation strategy, settlement
positions, names of informants in criminal cases, and other
similar material.'' \62\ After the Committee's issuance of a
subpoena for the documents, President Reagan asserted executive
privilege over the documents, stating that ``a controversy has
arisen . . . over the EPA's unwillingness to permit copying of
a number of documents generated by attorneys and other
enforcement personnel within the EPA in the development of
potential civil or criminal enforcement actions against private
parties.'' \63\ The Department of Justice took the position in
the case that the policy against providing Congress with access
to open law enforcement files applied to both civil and
criminal matters.\64\
---------------------------------------------------------------------------
\61\ Contempt of Congress, Report of the Committee on Public Works
and Transportation, H. Rept. 97-968 at 10 (1982).
\62\ Id., at 28 (letter from Robert M. Perry, Associate
Administrator and General Counsel to Chairman Elliott H. Levitas, Oct.
7, 1982).
\63\ Id., at 42 (memorandum from President Ronald Reagan to the
Administrator of the Environmental Protection Agency).
\64\ Id., at 87-88 (memorandum from Assistant Attorney General
Theodore B. Olson to Attorney General William French Smith).
---------------------------------------------------------------------------
Despite the President's invocation of executive privilege
in the Gorsuch matter, the Committee and the House of
Representatives voted to hold Administrator Gorsuch in contempt
of Congress for refusing to produce the subpoenaed documents.
Ultimately the documents were produced, and the contempt
citation was withdrawn.
5. Iran-Contra
The most well-known example of congressional oversight of
the Justice Department involving the demand and receipt of
information from open case files is the investigation of the
Iran-Contra affair. As part of their work, the Iran-Contra
committees investigated the nature of the Department of
Justice's initial inquiry into the affair. The investigating
committees demanded the production of the Department's files
regarding their initial inquiry. The House committee requested,
inter alia:
(b) All records relating to Justice Department
consideration of, or action in response to, the request
of October 17, 1986, by members of the House Committee
on the Judiciary for an application for appointment of
an independent counsel.
(c) All records relating to the consideration of, and
ultimate preparation and submission of, an application
for appointment of an Independent Counsel on the Iran
matter.
(d) All records from January 1, 1984, to December 15,
1986, relating to requests to, by, or through the
Department of Justice to stop or delay ongoing
investigations relating to the anti-government forces
in Nicaragua and assistance being provided to them . .
. .\65\
---------------------------------------------------------------------------
\65\ Letter from Chairman Lee Hamilton to Attorney General Edwin
Meese III, January 14, 1987.
The Department resisted, making claims similar to those
Attorney General Reno is making now. The Department claimed
that the production of documents to the committees would
prejudice the upcoming prosecutions by the independent counsel.
The committees overruled this objection, and received all
requested documents, despite the fact that the independent
counsel was pursuing the prosecution of a number of open cases.
The committees obtained both documentary evidence and the
testimonial evidence of a number of high-level Department
officials, including Attorney General Meese.\66\
---------------------------------------------------------------------------
\66\ See Report of the Congressional Committees Investigating the
Iran-Contra Affair, H. Rept. No. 433 and S. Rept. No. 216, 100th Cong.,
1st sess., 310, 317, 314, 647 (1987).
---------------------------------------------------------------------------
6. Other Cases
In other cases where congressional oversight committees
sought access to Department of Justice records relating to
prosecution of cases, the cases at issue were closed. However,
those committees were investigating the fact that the cases
were closed, because they were closed through alleged
malfeasance on the part of the Department. For example, in the
Rocky Flats case, and in the case of Congressman Dingell's
investigation of the Department's environmental crimes
prosecutions, there were allegations that the Department was
allowing guilty parties out of criminal prosecutions with only
minimal punishment. In the Rocky Flats matter, Congressman
Dingell described the Department's objections to disclosure,
which are similar to those asserted here, as ``misguided and
legally unjustifiable.'' Ultimately, over the objection of the
Department, investigating committees obtained a number of
sensitive internal documents. In the Rocky Flats case, the
committee even obtained testimony from line attorneys at the
Department. It also obtained documents, witness interviews, and
other records submitted to the grand jury, but not subject to
Rule 6(e).\67\
---------------------------------------------------------------------------
\67\ Another notable example of the scope and need for
congressional oversight of the Justice Department can be found in
Watergate. In his testimony in the House Judiciary Committee's INSLAW
hearings, House Counsel Steven R. Ross addressed the nature of
congressional oversight in the Watergate scandal:
The Impeachment Report concluded, ``Unknown to Congress,
the efforts of the President, through Dean, his counsel''--
specifically, having the Assistant Attorney General tell
Congress to hold off its investigation because of pending
proceedings--``had effectively cut off the investigation.''
Of course, the excuse of pending proceedings did not keep
Congress out of investigating Watergate forever; it only
delayed that Congressional investigation. By Spring of
1973, Congressional committees were no longer accepting the
claim of parallel proceedings as an excuse for withholding
evidence. Ultimately, Watergate and its cover-up, including
the role of Attorney General Mitchell, the role of Attorney
General Kleindienst in related matters, and the
manipulation of the Justice Department and the FBI, were
thoroughly probed by the Senate Watergate Committee and the
House Judiciary Committee. This probing occurred at the
same time as the pending investigations and proceedings of
Special Prosecutors Cox and Jaworski. . . .
Watergate was a dramatic instance where the House and
Senate investigations had to overcome, not mere claims of
pendency of civil proceedings--let alone, as here, mere
pendency of the appeal from such proceedings--but claims of
impact on soon-to-be-tried criminal cases. It was up to the
committees to determine what evidence they needed, not to
the Justice Department to measure whether to block those
committees. History reflects that it was only because this
Committee insisted on obtaining all the documents and other
evidence from the Justice Department, despite any claims
about pending proceedings, that the depths of the scandal
were ultimately plumbed.
It is an appropriate note to this period that two
Attorneys General--Kleindienst and Mitchell--were
eventually convicted of perjury before Congressional
investigations.
The Attorney General's Refusal to Provide Congressional Access to
``Privileged'' INSLAW Documents, hearing before the House Committee on
the Judiciary, 101st Cong., 2d sess., December 5, 1990, at 88-90
(Statement of Steven R. Ross). Based on his review of this and the
other precedents discussed above, Ross concluded that the Justice
Department's policy of refusing access to open civil or criminal law
enforcement files has been consistently rejected by the courts and by
Congress. Id., at 84, 94.
---------------------------------------------------------------------------
Summary
Therefore, the Committee has considered and rejected all of
the objections raised by the Attorney General in response to
the subpoena. The receipt of the subpoenaed memoranda by the
Committee is necessary for the Committee's investigation, and
consistent with the Congress'' constitutional oversight role,
as well as the precedents established by earlier congressional
committees.
V. Rules Requirements
A. Committee Action and Vote
Pursuant to clause 2(l)(2) (A) and (B) of House Rule XI, a
majority of the Committee having been present, this report was
approved by a vote of 24 ayes to 19 nays.
B. Statement of Committee Oversight Findings and Recommendations
Pursuant to clause 2(l)(3)(A) of House Rule XI and clause
2(b)(1) of House Rule X, the findings and recommendations of
the Committee are contained in the foregoing sections of this
report.
C. Statement on New Budget Authority and Related Items
Pursuant to clause 2(l)(3)(B) of House Rule XI and Section
308(a)(1) of the Congressional Budget Act of 1974, the
Committee finds that no new budget authority, new spending
authority, new credit authority, or an increase or decrease in
revenues or tax expenditures result from an enactment of this
resolution.
D. Statement of CBO Cost Estimate and Comparison
Pursuant to House Rule XI(2)(l)(3)(C) and Section 403(a) of
the Congressional Budget Act of 1974, the Committee finds that
a statement of Congressional Budget Office cost estimate is not
required as this resolution is not of a public character.
E. Statement of Constitutional Authority
Pursuant to House Rule XI(2)(l)(4), the Committee finds
that a statement of constitutional authority to enact is not
required as this resolution is not of a public character.
F. Changes in Existing Law
Pursuant to House Rule XIII(3), the Committee finds that a
statement of changes in existing law is not necessary, as the
resolution does not alter existing law.
G. Statement of Committee Cost Estimate
Pursuant to House Rule XIII(7)(a), the Committee finds that
a statement of Committee cost estimate is not necessary as this
resolution is not of a public character.
H. Statement of Federal Mandates
Pursuant to the Unfunded Mandates Reform Act and Section
423 of the Congressional Budget Act of 1974, the Committee
finds that a statement of Federal mandates is not necessary as
this resolution is not of a public character.
Conclusion
The Committee has conducted an investigation into campaign
fundraising abuses for over a year and a half. It has become
increasingly obvious during that period of time that the
Attorney General cannot conduct a credible, independent
investigation of that scandal, when it involves so many high-
level friends and associates of the President. Now it appears
that the Attorney General's two closest advisors with knowledge
of the Department's campaign finance investigation, the
Director of the FBI and the former head of the investigation,
agree. Both have written memoranda telling the Attorney General
that it is her legal duty to appoint an independent counsel.
However, to date, the Attorney General has rejected all calls
for her to follow the law and appoint an independent counsel.
The Attorney General's decision represents an insupportable
interpretation of both the facts and the law applicable to this
investigation. Moreover, her decision to ignore the
recommendations of her closest advisors has created an
impression that she is incapable of conducting an independent
investigation, free from political pressures. Therefore, the
Committee needs access to those memoranda, to make its own
evaluation of the Attorney General's judgment. Such access is a
key part of the Committee's oversight responsibilities.
The objections raised by the Attorney General to complying
with the Committee's subpoena are without merit. They are based
on policy arguments that are either inapplicable to the present
case, or simply wrong. As explained above, the Committee's
actions are consistent with those of a number of other
congressional committees that have sought and obtained similar
documents.
In the final analysis, it is the mission of this Committee
to provide oversight of matters in its jurisdiction, namely to
investigate maladministration, malfeasance or nonfeasance in
the Government of the United States. It is one of the key
purposes of a congressional investigation to illuminate the
facts. To that end, the Committee must preserve its lawful
prerogatives based upon the issuance of the subpoena duly
served upon the Attorney General. The Committee believes that
the principle of true equality under law, with no citizen being
above the law, compels us to seek action in this matter.
[Supporting documentation follows:]
ADDITIONAL VIEWS OF HON. DAN BURTON
I write to address several issues that have arisen since
the main portion of the contempt report was prepared. Together,
these events have had the effect of confirming my views
regarding the need for the Committee's action. First, during
the week leading up to the Committee's vote approving the
contempt report, I was disappointed that the Attorney General
seemed to behave in a partisan manner, working with the
Committee minority in a political fashion rather than seeking
ways to comply with the Committee's subpoena. The Independent
Counsel Act was designed to shield the Attorney General from
precisely these kinds of political battles. Second, these views
address some of the arguments regarding the allegedly
``unprecedented'' nature of the Committee's action. Critics of
the Committee's action have continued to repeat this charge,
despite the fact that it is demonstrably false. Finally, I
address the concern of many parties that the subpoenaed
documents would be made public upon their receipt by the
Committee. During the Committee's August 4 hearing and August 6
business meeting on this issue, I and other Members expressed
our strong interest in receiving this material in executive
session. The majority members clearly indicated at the hearing
and business meeting that we seek these documents so that we
can evaluate the Attorney General's decisionmaking process and
carry out our oversight responsibilities, not to disseminate
sensitive information to the public.
I. The Attorney General's Conduct
In the days since the contempt report was drafted, the
Committee has had a number of contacts with Attorney General
Reno which have only confirmed my strong concerns regarding the
Attorney General's ability to conduct an independent
investigation. Rather than seeking compromise on this serious
matter, she has repeatedly confronted the members of the
Committee in what appears to be a partisan manner.
On August 4, 1998, the Committee held a hearing on the need
for the appointment of an independent counsel to investigate
campaign finance matters. The Committee heard from FBI Director
Louis Freeh, the former head of the Justice Department's
Campaign Finance Task Force, Charles La Bella and the FBI agent
in charge of the Task Force, James DeSarno. Before the
witnesses began their testimony, the Committee took the formal
action of ratifying my letter to the Attorney General dated
August 3, 1998. In that letter, I considered and rejected all
of the Attorney General's objections to producing the
subpoenaed memoranda. By ratifying my letter, the Committee
affirmed the fact that it, as a body, rejected the reasons put
forth by the Attorney General for her failure to comply with
the Committee's subpoena. Despite this clear indication of the
Committee's resolve, the Attorney General still did not offer
any reasonable accommodation, and still refused to comply with
the Committee's subpoena.
Fifteen minutes before the Committee's August 4 hearing,
the Attorney General called me and asked if she could testify
at the hearing. The Attorney General had already spoken with
Representative Waxman.\1\ I told her that it would be
inappropriate for her to appear at the hearing without giving
the Members notice and an opportunity to prepare for her
appearance. She had never indicated previously that she wanted
to testify at the hearing, including at my meeting with her the
previous week. Less than an hour after I spoke with the
Attorney General, she sent a four-page letter to me detailing
her position. This letter was received by the Committee
minority before I had ever seen it. In fact, the first time I
heard of it was when Representative Lantos read it into the
hearing record.
---------------------------------------------------------------------------
\1\ Business meeting, Consideration of Contempt Citation Against
Attorney General Janet Reno, Committee on Government Reform and
Oversight, Aug. 6, 1998. In that hearing, Mr. Waxman stated ``She
called the Chairman before that hearing. She called me first and said
`I'm going to call the Chairman. I want to come in. I feel strongly
about it. How should I handle it.' And I said `Well, you ought to call
the Chairman first.' ''
---------------------------------------------------------------------------
The letter itself contained little of consequence. Rather,
it consisted of a reiteration of the same arguments made by the
Justice Department in correspondence dating back to December
1997. All of those same arguments had already been rejected by
the Committee when it ratified my August 3, 1998, letter to the
Attorney General. The Attorney General still failed to invoke
executive privilege or any other valid legal privilege in
response to the Committee's subpoena. As pointed out in the
main body of this report, only a claim of executive privilege
is a valid defense to the Committee's subpoena. This fact is
succinctly stated in the 1986 Office of Legal Counsel [OLC]
memorandum by Charles Cooper which was repeatedly cited by the
Attorney General. During his questioning of Director Freeh and
Mr. La Bella, the Vice Chairman of the Committee,
Representative Cox, demonstrated that the Attorney General has
not even discussed a claim of executive privilege with Director
Freeh or Mr. La Bella:
Representative Cox. . . . And so I will ask each of
the three of you whether you are aware of any effort
made to appropriately under this OLC opinion to fail to
respond to the subpoena issued by this Committee. . . .
Mr. La Bella. You are asking me if I am aware of
anybody asserting executive privilege with respect to
this memo?
Rep. Cox. Whether, according to this OLC memorandum,
the process it sets out is being followed in this case.
Mr. La Bella. I am not aware of anything in the
Department.
Rep. Cox. Director Freeh.
Director Freeh. Not aware of it, sir.
Mr. Desarno. Nor am I aware of it, sir.
Rep. Cox. Do you have any reason to disagree, since
this was the subject of your testimony today, disagree
with the 1986 OLC memo that the Attorney General cites?
Director Freeh. No.
Mr. La Bella. No.
Rep. Cox. So may we expect, then, that at least
insofar as you are concerned, that the Justice
Department will appropriately adhere to that precedent?
Director Freeh. I think the--I think the fact that
the Attorney General cites that indicates that that is
the opinion by which she is being guided in this
manner. As to the specific decisions or developments
from here on in, I certainly can't predict.\2\
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\2\ Hearing, The Need for an Independent Counsel in the Campaign
Finance Investigation, Committee on Government Reform and Oversight,
Aug. 4, 1998.
While the Attorney General still views the 1986 Cooper
memorandum as controlling precedent for her actions in this
case, she did not follow this legal authority and claim
executive privilege. Instead, the Attorney General simply
refused to comply with the Committee's subpoena.
In the days leading up to the Committee's vote to hold the
Attorney General in contempt, the Justice Department failed to
engage in meaningful discussions with the Committee on how to
comply with the subpoena, and instead began a wide-ranging
lobbying effort with the members of this Committee. Members of
the Attorney General's staff, including the Deputy Attorney
General, called Republican Members, and lobbied them to vote
against the contempt report.
Finally, the day of the Committee's contempt vote, the
Attorney General called and made what she claimed was a
``compromise offer.'' In reality though, what she suggested was
a step backwards from her earlier proposals. She recommended
that in 3 weeks, when she had completed her review, she would
come and give a public briefing to the members of the
Committee. However, since the briefing would be public, it
would contain little if any of the content of the memoranda. If
the Attorney General's prior public briefings, such as that
before this Committee on December 9, 1997, are any indication,
it would be practically useless. Nevertheless, before the
Committee held its business meeting, I presented the Attorney
General's ``offer'' to the majority members of the Committee,
who unanimously rejected it. At that time, I called the
Attorney General's office to inform her that the majority of
the Committee considered this offer unacceptable. I also noted
that a claim of executive privilege--the only basis for
withholding a subpoenaed document from Congress--had not been
asserted. The Attorney General had gone to a meeting at the
White House, and I left this message with her staff.
Since the Committee's contempt vote, I have not received
any communication from the Justice Department. The Attorney
General has not engaged in any meaningful attempt to reach an
accommodation with the Committee. While I have not been
surprised by the Attorney General's failure to negotiate with
the Committee meaningfully, I am surprised by what she has told
the public. In her press briefing on August 13, 1998, when
asked if she had had any discussions with the Committee since
the contempt vote, the Attorney General stated ``I can't
remember the timing as to whether I had any further discussions
or not.'' \3\ The fact is that there have been no discussions
since the contempt vote, and there were no meaningful offers
from the Justice Department even before the contempt vote.
---------------------------------------------------------------------------
\3\ Reuters Transcript, Weekly Press Briefing of Attorney General
Janet Reno, Aug. 13, 1998.
---------------------------------------------------------------------------
Since this Committee subpoenaed Director Freeh's and Mr. La
Bella's memoranda, the Attorney General appears to have taken
sides in what has amounted to a partisan debate in this
Committee. The entire debate has revolved around whether the
Attorney General has the ability to investigate independently
and completely her superior, the President. The Independent
Counsel Act is designed to protect the Attorney General from
these very questions, and it is intended to keep her out of the
partisan fray. It was created in part, to offer Attorneys
General a way to recuse themselves from investigations of their
superiors in the Administration, so that they remained free of
even the appearance of a conflict of interest.
II. Historical Precedent for the Committee's Action
During the August 4 hearing and the August 6 business
meeting, the Committee minority often made the argument that
the Committee's action in subpoenaing the Freeh and La Bella
memoranda was unprecedented. This complaint was also frequently
echoed by the Attorney General. In correspondence with the
Attorney General, I pointed out the numerous precedents for the
Committee's action. However, in her August 4 letter, she
claimed that ``we have analyzed your examples, and none of them
deal with the demand you have made: to turn over law
enforcement sensitive documents during a pending criminal
investigation.'' \4\ The Attorney General repeated this claim
during her press conference of August 4. However, the Attorney
General did not provide any further explanation for her
conclusory argument.
---------------------------------------------------------------------------
\4\ Letter from Attorney General Janet Reno to Chairman Dan Burton,
Aug. 4, 1998.
---------------------------------------------------------------------------
As explained in the main body of this report, there are a
number of precedents for the Committee's action. While the
Attorney General never attempted to distinguish these
precedents from the Committee's action, the Committee minority
did attempt to do so during the August 6 business meeting where
the contempt report was approved. Representative Tierney
attempted to distinguish the cases cited in the report in a
number of ways. However, the distinctions he cited are either
meaningless, or they fail to alter the fundamental fact that
the Committee's action is supported by a number of historical
precedents.
For example, Mr. Tierney took issue with our citation of
the Palmer Raids case, claiming that the example was
inapplicable because the trials had been concluded before the
prosecution memos at issue were reviewed. However, Mr. Tierney
failed to point out that the Palmer Raids cases were under
appeal, and by their very definition were still open. Mr.
Tierney also claimed that the Teapot Dome example was
inapplicable because Congress received ``not a prosecution
memorandum, but a report of an accountant working on the
investigation.'' \5\ Again, this claim is simply mistaken.
During the Teapot Dome investigation, Congressional committees
received access to a wide range of Justice Department
information, including prosecution memos and Justice Department
investigative reports, regarding open cases. The Committees
also did receive the referenced accountant's report, but by no
means was that the only Justice Department information
received. Among other cases, Mr. Tierney also took exception
with our reference to the Iran-Contra case. While his comments
did not clearly state why the Iran-Contra case was
inapplicable, a review of the facts will show that it is one of
the closest analogies to the present situation. In Iran-Contra,
Congressional committees received extensive internal Justice
Department investigative documents while Independent Counsel
Lawrence Walsh was pursuing his case against various Iran-
Contra defendants.\6\ The fact that it was an independent
counsel, rather than the Justice Department pursuing the case,
has no bearing on the fact that investigating congressional
committees received internal Justice Department documents
relating to open criminal cases.
---------------------------------------------------------------------------
\5\ Business meeting, Consideration of Contempt Citation Against
Attorney General Janet Reno, Committee on Government Reform and
Oversight, Aug. 6, 1998.
\6\ The Iran-Contra investigating committees took a day-long
deposition of Attorney General Meese, and even received his hand-
written notes regarding his investigation of the Iran-Contra matter.
The Iran-Contra precedent provides support for the receipt of materials
far beyond anything that the Committee is currently seeking.
---------------------------------------------------------------------------
Similarly, Representative Waxman claimed that the Attorney
General ``stands on long precedent,'' and that ``[t]here is not
a single case where the information from an ongoing
investigation has ever been turned over to Congress.'' \7\
Again, Mr. Waxman is just wrong. It is this Committee that
stands on long precedent, not the Attorney General. Mr. Waxman
should be familiar with those precedents from his time serving
on the Oversight and Investigations Subcommittee of the
Committee on Energy and Commerce. In 1993-1994, that
Subcommittee conducted an investigation of the Department of
Justice that demanded and received a number of internal
decisionmaking documents from the Department, and also received
testimony from line attorneys at the Department of Justice. The
report from that investigation, ``Damaging Disarray,'' was
endorsed by Mr. Waxman, as a member of the Subcommittee. The
report cites with approval all of the precedents cited in this
contempt report.\8\ Those precedents make it clear that
Congressional committees have demanded and received information
like these memoranda from the Justice Department regarding open
cases.
---------------------------------------------------------------------------
\7\ Id.
\8\ See Damaging Disarray, staff report, Subcommittee on Oversight
and Investigations of the Committee on Energy and Commerce, December
1994, at 333. The Damaging Disarray report contains a memorandum
prepared by the Congressional Research Service containing a number of
precedents for the Committee's action. The memorandum is practically
identical to the CRS memorandum contained in this contempt report. In
the ``Damaging Disarray'' case, the Subcommittee was investigating only
closed cases. However, it cited for support all of the same precedents
we have cited. Many of those same cases show that Congress has
consistently reserved the right to subpoena documents regarding open
Justice Department cases.
---------------------------------------------------------------------------
It is frustrating that the debate regarding the Committee's
action is fraught with so many misrepresentations. Starting
with correspondence in December 1997, and again in the
Committee's August 4 hearing, August 6 meeting, and in the
Attorney General's subsequent correspondence and press
conferences, we have heard repeatedly that the Committee's
action is unprecedented. As I have just pointed out, this is
not true. Fortunately, not every party involved in the debate
has disregarded the facts. Like the Attorney General, FBI
Director Freeh believes that the Committee should not seek to
obtain the Freeh and La Bella memoranda. However, in his
appearance before the Committee, he did not dispute the
Committee's right to obtain the documents. He stated that
``[y]our subpoena is not an unprecedented one, but it is
extraordinary.'' \9\ He also agreed with the Committee's
analysis about the Attorney General's failure to claim a
privilege in response to the subpoena, stating ``the arguments
that you make are cogent with respect to privileges and the
lack of a privilege.'' \10\ The FBI Director clearly indicated
that the Committee has a legal right to receive the documents.
I can only reiterate that the Attorney General's extraordinary
refusal to comply with a lawful subpoena has required the
Committee to take extraordinary action.
---------------------------------------------------------------------------
\9\ Hearing, The Need for an Independent Counsel in the Campaign
Finance Investigation, Committee on Government Reform and Oversight,
Aug. 4, 1998.
\10\ Id.
---------------------------------------------------------------------------
III. The Freeh and La Bella Memoranda Will Be Received in Executive
Session
The one theme that has been consistent in all of the
arguments raised by the Committee minority and the Justice
Department is that the memoranda would somehow be released
publicly and would cause harm to the Department's
investigation. The main body of this report addresses these
arguments, and in a letter to the Attorney General dated August
3, 1998, the Committee rejected these arguments. However,
several obvious facts regarding the subpoenaed documents should
be pointed out.
First, the subpoenaed memoranda would be received by the
Committee in executive session, and could be released only
through a vote of the Committee. The Committee has never
considered receiving these sensitive documents and then
immediately releasing them publicly. During the August 4
hearing and the August 6 contempt vote, I and a number of
Republican Members committed to refrain from releasing any
sensitive information in the memoranda.
The Committee takes seriously its obligation to make sure
confidential documents stay that way. The Committee Chief
Counsel and I received a briefing regarding the Freeh memo in
December 1997, and not a word about that memo was shared with
anyone even on the Committee staff. In his appearance before
the Committee, the FBI Director stated that ``I would also like
to thank the Committee, everyone on the Committee and your
staff, for handling a lot of the very sensitive and classified
information that we have provided to you over the last few
months, and particularly the briefing which we provided which
summarized the memo at issue.'' \11\
---------------------------------------------------------------------------
\11\ Id.
---------------------------------------------------------------------------
The record shows that the leaks regarding the Freeh and La
Bella memoranda have come from the Department of Justice, not
this Committee. During the August 4 hearing, Representative
Kanjorski spoke at length regarding the fact that both of these
memoranda has leaked from the Justice Department, even
suggesting that the Department of Justice be renamed the
``Department of Sieve.'' \12\ In his testimony before the
Committee, Charles La Bella stated that he made only three
copies of his report, one for himself, one for the FBI
Director, and one for the Attorney General. However, the
Attorney General promptly made at least nine copies of the
report and distributed it to a number of advisors including
political appointees. The Attorney General has argued that if
she complies with the Committee's subpoena, it will leak out
and provide a ``road map'' of the investigation to targets of
the probe. However, the reality as described by Mr. La Bella
and Director Freeh is very different. It shows that the leaks
clearly come from the Department of Justice. It also suggests
that the real concern should be that the ``road map'' to the
Task Force's investigation is being shared with a number of
political appointees, and that someone at the Justice
Department has already leaked information.\13\
---------------------------------------------------------------------------
\12\ Id.
\13\ At the hearing, Mr. La Bella testified that one of the
recipients of his report was Robert Litt. It should be noted that Mr.
Litt gave $1,000 to the Clinton-Gore campaign, and $500 to the
Democratic Congressional Campaign Committee, and is a political
appointee. See Sam Skolnik, The Right's Punching Bag, Legal Times, Aug.
10, 1998, at 1.
---------------------------------------------------------------------------
The arguments of the Justice Department and the minority
are based upon an assumption that this Committee would publicly
release the subpoenaed documents. However, the Committee has
indicated that it will receive the documents in executive
session, and during the August 6 business meeting, the Members
stated a strong desire not to release the information if such
action would impact upon pending criminal cases.
Conclusion
The issue before the Committee is a simple one. The
Attorney General was served with a valid subpoena, and she has
refused to honor that subpoena. She has not cited any valid
legal privileges--she has simply failed to respond. It is
regrettable, but not surprising, that the Committee minority
would turn what should be a bipartisan issue about
Congressional prerogatives into a partisan debate. In similar
circumstances during the 104th Congress, when this Committee
approved a contempt resolution against White House Counsel Jack
Quinn, Representative Shays noted:
I have never voted against any effort by the then
majority Democrats for a subpoena, and, as God is my
witness, I would never oppose a motion to hold someone
in contempt who didn't honor that subpoena.
* * * * *
This institution has stood together when the
executive branch took action and contempt of our
constitutional responsibilities. This is neither a
Republican or a Democrat issue. It is an issue of the
authority of the House of Representatives to perform
oversight over the executive branch. That is the charge
of the Government Reform and Oversight Committee as the
primary oversight committee in the House of
Representatives.
The actions of the current White House to ignore
these subpoenas, if allowed to stand without any action
by this body, will set a precedent for all future
Congresses, and I might add someday we will be in the
minority, and you will regret that, and will inhibit
all our ability to perform our constitutionally
mandated role of oversight.\14\
---------------------------------------------------------------------------
\14\ Business meeting, Proceedings Against John M. Quinn, David
Watkins, and Matthew Moore, Committee on Government Reform and
Oversight, May 9, 1996, at 47.
Representative Shays' words were not heeded by the minority
in 1996, and unfortunately, similar sentiments have been
ignored by the minority at this time as well. However,
Representative Shays' comments stand as a reminder that the
fundamental issue before this Committee is an institutional
one, upon which all Members should agree. A valid Congressional
subpoena seeking relevant records should not be ignored by the
Attorney General, the highest law enforcement officer in the
land.
The actions of this Committee are consistent with the law
and with sound policy. Senator Fred Thompson, who himself has
faced with similar stonewalling from the Administration in his
campaign finance investigation, has stated that:
[t]he Burton Committee stands on sound legal ground.
It has offered to let all sensitive investigative
matters to be deleted from the report. The Justice
Department has become so used to offering ``ongoing
criminal investigation'' as a reason for withholding
materials from Congress that they apparently assume
that there is a legal justification for it.
There is not.
Contempt is an unusual proceeding but these are
unusual circumstances--circumstances the Attorney
General and the Justice Department have created.\15\
---------------------------------------------------------------------------
\15\ Statement of Senator Fred Thompson, Aug. 6, 1998. Similarly,
Senator Hatch, Chairman of the Senate Judiciary Committee, has publicly
stated that he does not oppose the Committee's action, and has noted
that his statements have been misrepresented by the minority. See
statement of Senator Orrin Hatch regarding contempt citation, Aug. 7,
1998.
The events of the past week confirm what Senator Thompson
has observed - that this contempt report is the Attorney
General's doing. By refusing to comply with the Committee's
subpoena, by making no effort to reach a reasonable
accommodation, and by refusing to follow the law, the Attorney
General has brought the Committee to this point. The Committee
is obligated to assert its institutional rights to conduct
oversight in this matter where the Attorney General's own top
aides state that she is not following the law.
Hon. Dan Burton.
[Supporting documentation follows:]
MINORITY VIEWS OF HON. HENRY A. WAXMAN, HON. TOM LANTOS, HON. ROBERT E.
WISE, JR., HON. MAJOR R. OWENS, HON. EDOLPHUS TOWNS, HON. PAUL E.
KANJORSKI, HON. BERNARD SANDERS, HON. CAROLYN B. MALONEY,
HON. ELEANOR HOLMES NORTON, HON. CHAKA FATTAH, HON. ELIJAH E.
CUMMINGS, HON. DENNIS J. KUCINICH, HON. ROD R. BLAGOJEVICH, HON.
DANNY K. DAVIS, HON. THOMAS H. ALLEN, AND HON. HAROLD E. FORD, JR.
Introduction
On August 6, 1998, the Committee on Government Reform and
Oversight voted on party lines (24 to 19) to cite Attorney
General Janet Reno for contempt of Congress. This action
constituted an abuse of the contempt power, which is the most
coercive and rarely invoked power of Congress. It follows
nearly 2 years of mishaps and systematic abuses of power by the
majority. As Norman Ornstein, congressional expert with the
conservative American Enterprise Institute, has observed, ``I
think the Burton investigation is going to be remembered as a
case study in how not to do a congressional investigation.''
\1\
---------------------------------------------------------------------------
\1\ House Probe of Campaign Fund-Raising Uncovers Little, Los
Angeles Times (May 2, 1998).
---------------------------------------------------------------------------
There was no reasonable basis for proceeding with the
contempt citation. The Attorney General was cited for contempt
because she did not give the Committee memoranda written by
Louis B. Freeh, the Director of the FBI, and Charles G. La
Bella, the former head of the Department of Justice's
investigative task force on campaign finance. These memoranda
contain prosecution recommendations and other sensitive and
detailed information regarding the Department's largest ongoing
criminal investigation. The Attorney General's refusal to turn
over this information was consistent with 100 years of
precedent in which both Republican and Democratic
administrations have refused to provide Congress with
prosecution memoranda in ongoing criminal investigations. The
Committee's contempt vote occurred just 2 days after Director
Freeh, Mr. La Bella, and the lead FBI agent in the
investigation, James V. Desarno, Jr., testified that releasing
the memoranda would provide a ``road map'' of the investigation
to criminal defendants and be ``devastating'' to future
prosecutions.
Further, the contempt proceeding itself has questionable
legal merit because the subpoena calling for the Freeh and La
Bella memoranda was not validly issued. The Chairman violated
Committee rules in issuing the subpoena because the Working
Group that is supposed to evaluate such subpoenas did not make
a ``good faith'' effort to reach a consensus. It is doubtful
that a court would uphold this subpoena.
The Attorney General made every effort to reach an
accommodation with the Committee, including offering to brief
the Chairman and Ranking Minority Member on the contents of the
memoranda and testify before the full Committee at a public
hearing. She requested only that before taking these steps, she
be given three weeks to complete her review of the LaBella
memorandum and make her decisions free of political influence.
The Chairman rejected every attempt at accommodation.
The Committee proceeded with the contempt citation in an
apparent effort to intimidate the Attorney General. The
Committee appears to want to force her to choose between
seeking the appointment of an independent counsel to
investigate the President or going to prison for contempt of
Congress. In fact, in a meeting with the Attorney General in
his office on July 31, Chairman Burton explicitly linked his
efforts to hold the Attorney General in contempt to her
decision on an independent counsel. As the Washington Post
wrote in an editorial after the Committee vote, ``Mr. Burton's
approach to the matter has been nothing less than thuggish. . .
. [Ms. Reno] is right in her refusal to be bullied.'' \2\
---------------------------------------------------------------------------
\2\ Mr. Burton and Ms. Reno, Washington Post, A24 (Aug. 7, 1998).
---------------------------------------------------------------------------
Unfortunately, the Committee's irresponsible vote to hold
the Attorney General in contempt adds to a long history of
misconduct by the Committee in the campaign fund-raising
investigation. The vote follows nearly 2 years of mistakes,
partisanship, and raw abuses of power by the majority. These
actions have thoroughly discredited the investigation and
reduced it to irrelevancy.
This report details the minority's views on the August 6
contempt finding. It is organized as follows:
I. The Attorney General is justified in not turning
over the Freeh and La Bella memoranda to Congress
A. Release of the memoranda would
``devastate'' the Justice Department's ongoing
investigation
B. Release of the memoranda would improperly
inject politics into prosecutorial decisions
C. Release of the memoranda would have a
``chilling effect'' on the Attorney General's
ability to receive confidential advice
D. A century of precedent supports the
Attorney General's position not to produce the
memoranda
II. The contempt proceeding is an apparent attempt to
intimidate the Attorney General
A. There is a tradition of accommodation
between the executive and legislative branches
of government
B. The Attorney General has made
``extraordinary'' efforts to accommodate the
Committee
C. Chairman Burton should have followed
Senator Hatch's example and accepted the
Attorney General's proposals
D. The Committee is apparently seeking to
intimidate the Attorney General
III. The contempt citation will bring the Committee
into further disrepute
A. The majority has a lengthy record of
mishaps and abuses of power
B. The contempt citation has produced a new
round of public criticism
IV. The contempt citation is legally flawed and would
not be upheld by a court
V. The majority's arguments are not persuasive
A. The precedents cited by the majority are
inapplicable
B. The majority's pledge of confidentiality
cannot be relied upon
C. Redaction of grand jury material is not
sufficient
D. An assertion of a claim of executive
privilege is not necessary
E. Former Attorneys General do not support
the contempt citation
I. The Attorney General is Justified in Not Turning Over the Freeh and
La Bella Memoranda to Congress
a. release of the memoranda would ``devastate'' the justice
department's ongoing investigation
The partisan nature of the Committee's action is
illustrated by its approach to the advice offered by Director
Freeh, Mr. La Bella, and Mr. Desarno. When the issue is whether
an independent counsel should be appointed, Republican Members
laud these three men's credentials and rely on their
professional advice. For instance, Chairman Burton has called
them ``outstanding figures in law enforcement'' and ``the three
most senior people in the investigation, who have the greatest
knowledge of the facts.'' \3\
---------------------------------------------------------------------------
\3\ Press releases from Chairman Burton (July 23, 1998; July 27,
1998).
---------------------------------------------------------------------------
But when the issue is whether their memoranda should be
released to the Committee, the professional opinions of
Director Freeh, Mr. La Bella, and Mr. Desarno are conveniently
overlooked. Each of these officials strongly cautioned the
Committee against seeking the memoranda because of the adverse
consequences that release of the memoranda could have on the
Justice Department's investigation. Yet the majority simply
disregarded this advice.
The Committee's decision to ignore the recommendations of
the senior law enforcement officials involved in the Justice
Department's campaign finance investigation poses great peril
for that investigation. Although the majority claims to want a
thorough investigation by an independent counsel, its
insistence on obtaining the memoranda could undermine any
investigation that an independent counsel might bring. The
Miami Herald succinctly described the situation in an editorial
written on the day of the Committee vote:
If you want to rid your house of rats, one extremely
effective way is to burn down the house. That's
essentially what U.S. Rep. Dan Burton seems willing to
do by threatening Attorney General Janet Reno with
contempt of Congress. . . . Mr. Burton's request is . .
. bereft of any sign that he has weighed what these
memos, if leaked, could do to the Justice Department's
own investigation.\4\
---------------------------------------------------------------------------
\4\ Tell Him No, Ms. Reno! Don't Yield to Burton, Miami Herald
(Aug. 6, 1998).
In arguing against the release of these memoranda, Attorney
General Reno stated: ``The disclosure of these memoranda could
provide a `road map' of the Department's investigation. . . .
The investigation could be seriously prejudiced.'' \5\
Moreover, according to the Attorney General: ``Criminals,
targets and defense lawyers alike can all agree on one thing--
they would love to have a prosecutor's plans.'' \6\
---------------------------------------------------------------------------
\5\ Letter from Attorney General Reno and Louis B. Freeh to
Chairman Burton (July 28, 1998).
\6\ Letter from Attorney General Reno to Chairman Burton (Aug. 4,
1998).
---------------------------------------------------------------------------
The Attorney General's warnings were echoed by Director
Freeh, Mr. La Bella, and Mr. Desarno when they testified before
the Committee on August 4, 1998. In his written opening
statement, Director Freeh explained: ``The need for
confidentiality is especially important during an ongoing
criminal investigation. . . . As the chief investigator, I am
most reluctant to publicly provide a `road map' to potential
subjects and witnesses.'' \7\
---------------------------------------------------------------------------
\7\ Opening statement of Louis B. Freeh before the House Committee
on Government Reform and Oversight (Aug. 4, 1998).
---------------------------------------------------------------------------
Mr. La Bella went even further and expressed his opposition
to release of his memorandum several times during the
Committee's hearing:
The last thing in the world that I want to see as the
prosecutor heading this task force is that this memo
ever get disclosed. . . . I don't think it should ever
see the light of day because this, in my judgment,
would be devastating to the investigations that the men
and women of the task force are working on right now,
and that I've put my blood, sweat, and tears into, and
I don't want to see that jeopardized. I would even be
stronger than the Director. I can't see a set of
circumstances under which this report should see the
light of day.
* * * * *
It is my opinion, my considered opinion, that this
could hurt the investigators and the investigation in a
hundred different ways. You don't make a white collar
case by going to the target, tapping him or her on the
shoulder, and say ``confess, please.'' You make them by
inches, sometimes centimeters. You get a document. You
go after a witness. You crack that witness. You go up
the ladder. You crack that witness. You go up. You
crack the next witness. That's how you make these
cases. And those witnesses, wherever they are on the
ladder, are important. . . . I think it is important
that no one who is within the range, whether they are
covered, non-covered, within the range of our criminal
investigation, be given access to this information.\8\
---------------------------------------------------------------------------
\8\ Testimony of Charles G. La Bella before the House Committee on
Government Reform and Oversight (Aug. 4, 1998) (emphasis added).
Similarly, when Mr. Desarno was asked about the impact of
producing the La Bella memorandum to Congress, he agreed with
Mr. La Bella's assessment: ``Yes, I think it would be
devastating if that report were to be made public.'' \9\
---------------------------------------------------------------------------
\9\ Testimony of James V. Desarno, Jr., before the House Committee
on Government Reform and Oversight (Aug. 4, 1998).
---------------------------------------------------------------------------
Clearly, the prudent course for Congress to follow is to
defer to the assessments of ``the three most senior people in
the investigation, who have the greatest knowledge of the
facts.'' \10\ The campaign finance investigation is the largest
ongoing criminal investigation in the Department of Justice,
with more than 120 agents and attorneys working on the
investigation. Congress should not blindly follow a course that
could irreparably damage this investigation.
---------------------------------------------------------------------------
\10\ See supra note 3.
---------------------------------------------------------------------------
b. release of the memoranda would improperly inject politics into
prosecutorial decisions
Not only would release of the memoranda be damaging to the
Justice Department's ongoing investigation, it also would
improperly inject partisan political pressures into the work of
the Justice Department. Historically, both Republican and
Democratic Attorneys General have strived to ensure that
prosecutorial decisions are based solely on the facts and the
law, not partisan political pressures from Congress.
On August 4, 1998, Attorney General Reno wrote to Chairman
Burton about the importance of preserving the independence of
the Department of Justice. Her letter stated: ``Even when
conducting vigorous oversight, Congress has respected the
principle that law enforcement must be free from even the
appearance of partisan political tampering. And the Justice
Department has adhered to this position for the better part of
a century, under presidents from Teddy Roosevelt to Ronald
Reagan--and under FBI Directors from J. Edgar Hoover to Louis
Freeh.'' \11\
---------------------------------------------------------------------------
\11\ Letter from Attorney General Reno to Chairman Burton (Aug. 4,
1998) (attached).
---------------------------------------------------------------------------
The Attorney General's position is the same as the position
taken by the Justice Department during the Reagan
administration. In 1986, Assistant Attorney General Charles J.
Cooper explained that ``the Department of Justice has an
obligation flowing from the Due Process Clause to ensure that
the fairness of the decision making with respect to the
prosecutorial function is not compromised by excessive
congressional pressure.'' \12\
---------------------------------------------------------------------------
\12\ Charles J. Cooper, Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. 68 (Apr. 28, 1986).
---------------------------------------------------------------------------
The Attorney General's position is also supported by many
of her other predecessors. Former Attorney General Nicholas
deB. Katzenbach, for example, wrote Representative Waxman that
``it is hard to imagine a less appropriate subject for a
subpoena or one more calculated to politicize the Department. .
. . For Congress to attack her independent judgment by use of
subpoena and contempt is simply the wrong way to resolve a
disagreement of this kind and would do great damage to the
integrity of the Department.'' \13\ As the Washington Post
reported in an editorial on August 9, and as is further
discussed infra in part V.E., most other former Attorneys
General share the same view.
---------------------------------------------------------------------------
\13\ Letter from Nicholas deB. Katzenbach to Representative Waxman
(Aug. 5, 1998).
---------------------------------------------------------------------------
The Committee's decision to hold the Attorney General in
contempt ignores these principles. The Committee is seeking
sensitive prosecution memoranda from the Attorney General
before the Attorney General has even completed her review of
one of the memorandum. If the Attorney General succumbed to the
Committee's pressure and allowed Congress to interject itself
in this way in her decisionmaking process, public confidence in
the integrity and independence of Federal prosecutors would be
destroyed.
c. release of the memoranda would have a ``chilling effect'' on the
attorney general's ability to receive confidential advice
The Committee's attempt to obtain these memoranda also
disregards the impact such congressional oversight would have
on sensitive deliberations within the Justice Department.
During his testimony before the Committee on August 4, 1998,
Director Freeh repeatedly emphasized this point. For example,
he stated: ``If we were to set . . . an unnecessary precedent
where prosecution memos--and these are in effect prosecution
memos--are disclosed and publicly discussed, the chilling
effect that that would have on prosecutors, assistant U.S.
attorneys and investigators in my professional judgment would
be very severe.'' \14\
---------------------------------------------------------------------------
\14\ Testimony of Louis B. Freeh before the House Committee on
Government Reform and Oversight (Aug. 4, 1998).
---------------------------------------------------------------------------
At another point during the hearing, Director Freeh
described a discussion he had recently had with a prosecutor as
follows:
One of the attorneys who is working in the task force
just the other day expressed a concern about whether or
not he should put into writing a recommendation that he
was about to make, and his concern stemmed directly
from the fact that he was unsure whether that
recommendation would later be discovered and
subpoenaed, and something that would require him to
appear here today and discuss or explain.\15\
---------------------------------------------------------------------------
\15\ Id.
Director Freeh's anecdote is a vivid illustration of the
negative impact that political pressure can have on sensitive
decisions within the Justice Department. If the confidentiality
of prosecution memoranda is lost through congressional
interference, Justice Department prosecutors may frequently be
unwilling to provide their candid views and recommendations in
written memoranda. The result will be to deny the Attorney
General exactly the kind of advice she most needs. As the Los
Angeles Times wrote in an editorial on the day of the Committee
vote: ``The precedent Rep. Burton seeks could make the
executive branch a ground for all sorts of witch hunts by those
who second-guess motives and judgments of decision makers.''
\16\
---------------------------------------------------------------------------
\16\ Buck Stops With Reno, Los Angeles Times (Aug. 6, 1998).
---------------------------------------------------------------------------
Director Freeh's view mirrors the position taken by
President Reagan's Justice Department. A 1986 legal opinion by
the Department stated that ``[e]mployees of the Department
would likely be reluctant to express candidly their views and
recommendations on controversial and sensitive matters if those
views could be exposed to public scrutiny by Congress on
request.'' \17\ Former Attorney General Griffin B. Bell, who
served under President Carter, expressed the same view in a
letter to Mr. Waxman, stating: ``I believe it is of paramount
importance to preserve the confidentiality of internal
communications between the Attorney General and advisors or
investigators in order to ensure that such advisors feel free
to render candid advice that is not swayed by public opinion or
fear of future disclosure to Congress.'' \18\ Similarly,
William H. Webster, who served as FBI Director and CIA Director
under Democratic and Republican administrations, wrote in a New
York Times opinion: ``Intrusive Congressional demands to see
such reports and recommendations could keep decision makers
from seeking the best available advice.'' \19\
---------------------------------------------------------------------------
\17\ Charles J. Cooper, Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. 68 (April 28, 1986).
\18\ Letter from Griffin Bell to Representative Waxman (Aug. 6,
1998).
\19\ William H. Webster, Congress Exceeds its Reach, New York Times
(Aug. 11, 1998).
---------------------------------------------------------------------------
Prior to the Committee's vote, there had been a bipartisan
understanding that congressional oversight into politically
sensitive criminal investigations must not be so intrusive that
it significantly impairs the functioning of the Justice
Department. Regrettably, the Committee has chosen to disregard
this understanding.
d. a century of precedent supports the attorney general's position not
to produce the memoranda
In deciding not to turn over the Freeh and La Bella
memoranda, Attorney General Reno is relying on a long history
of Justice Department precedents. Without exception, these
precedents support her refusal not to turn over prosecution
memoranda to Congress. The strength of these precedents was
summarized by Charles J. Cooper, Assistant Attorney General
during the Reagan administration, in a 1986 legal opinion:
This policy [of not turning over investigative
materials] was first expressed by President Washington
and has been reaffirmed by or on behalf of most of our
Presidents, including Presidents Jefferson, Jackson,
Lincoln, Theodore Roosevelt, Franklin Roosevelt, and
Eisenhower. No President, to our knowledge, has
departed from this position affirming the
confidentiality and privileged nature of open law
enforcement files.\20\
---------------------------------------------------------------------------
\20\ Charles J. Cooper, Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. (Apr. 28, 1996) (emphasis added).
As the following discussion demonstrates, Justice
Departments under administrations of both parties have refused
to turn over to Congress the very type of materials that the
Committee is now seeking.
1. Theodore Roosevelt Administration
In January 1909, the Senate requested that the
administration provide information as to why no legal
proceedings were being instituted against U.S. Steel. President
Roosevelt instructed his Attorney General ``not to respond to
that part of the [Senate] resolution which calls for a
statement of his reasons for nonaction . . . because I do not
conceive it to be within the authority of the Senate to give
directions of this character to the head of an executive
department, or to demand from him reasons for his action.''
\21\
---------------------------------------------------------------------------
\21\ 43 Congressional Record 528 (1909).
---------------------------------------------------------------------------
2. Franklin Roosevelt Administration
In 1941, a House committee requested all Justice Department
investigative materials relating to labor strikes involving
naval contractors. Attorney General Robert H. Jackson refused
to provide the information, stating: ``[A]ll investigative
reports are confidential documents of the executive department
of the Government [and] congressional or public access to them
would not be in the public interest.'' \22\
---------------------------------------------------------------------------
\22\ Opinion of Attorney General Robert H. Jackson (1941).
---------------------------------------------------------------------------
3. Eisenhower Administration
In 1956, a House committee requested that the Justice
Department provide all files relating to a consent decree
between the government and AT&T. The Justice Department
declined, stating: ``Department policy does not permit
disclosure of staff memoranda or recommendations.'' \23\
---------------------------------------------------------------------------
\23\ Letter from Dept. of Justice to House Judiciary Committee
(July 13, 1956).
---------------------------------------------------------------------------
4. Nixon Administration
In 1969, during a House committee investigation into the My
Lai massacre, the Army was asked to provide all materials from
its ongoing investigation into the incident. On behalf of the
Army, Thomas Kauper, Deputy Assistant Attorney General, refused
to provide the materials, stating: ``If a congressional
committee is fully apprised of all details of an investigation
as the investigation proceeds, there is a substantial danger
that congressional pressures will influence the course of the
investigation.'' \24\
---------------------------------------------------------------------------
\24\ Thomas E. Kauper, Submission of Open CID Investigation Files
(Dec. 19, 1969).
---------------------------------------------------------------------------
5. Ford Administration
In 1976, Congresswoman Bella Abzug, who chaired a
subcommittee of the Government Operations Committee, requested
FBI investigative files concerning domestic intelligence
matters. Deputy Attorney General Harold R. Tyler, Jr., refused
to provide the information, stating: ``[I]f the Department
changes its policy and discloses investigative information, we
could do serious damage to the Department's ability to
prosecute prospective defendants and to the FBI's ability to
detect and investigate violations of criminal law.'' \25\
---------------------------------------------------------------------------
\25\ Letter from Harold R. Tyler, Jr., to Representative Bella
Abzug (Feb. 26, 1976).
---------------------------------------------------------------------------
6. Reagan Administration
In 1986, the Justice Department's Office of Legal Counsel
was asked to provide its opinion on whether the Attorney
General could disclose to Congress the contents of reports
filed with a court pursuant to the Independent Counsel Act.
Assistant Attorney General Charles J. Cooper concluded that
such materials could not be provided, because ``the executive .
. . has the exclusive authority to enforce the laws adopted by
Congress, and neither the judicial nor legislative branches may
directly interfere with the prosecutorial discretion of the
Executive Branch by directing the executive to prosecute
particular individuals.'' \26\
---------------------------------------------------------------------------
\26\ Charles J. Cooper, Response to Congressional Requests for
Information Regarding Decisions Made Under the Independent Counsel Act,
10 Op. O.L.C. 68 (Apr. 28, 1996).
---------------------------------------------------------------------------
7. Bush Administration
In 1989, the Justice Department's Office of Legal Counsel
was asked to provide its opinion on whether agency inspectors
general were required to provide information to Congress about
open criminal investigations. Assistant Attorney General
Douglas W. Kmiec concluded that there was no obligation to
provide such confidential law enforcement information, stating:
``[T]he executive branch has generally declined to make any
accommodation for congressional committees with respect to open
cases: that is, it has consistently refused to provide
confidential information.'' \27\
---------------------------------------------------------------------------
\27\ Douglas W. Kmiec, Congressional Requests for Information from
Inspectors General Concerning Open Criminal Investigations, 13 Op.
O.L.C. 93 (Mar. 24, 1989).
---------------------------------------------------------------------------
8. The Majority's Arguments
The majority has stated that these precedents are
inapplicable and that the Justice Department has turned over
investigative materials to Congress in the past. The majority's
arguments on this point are inaccurate, as is discussed in part
V. What the historical record in fact shows is that the
Committee's contempt citation departs from 100 years of
bipartisan consensus about the need to preserve the
confidentiality of prosecution memoranda in ongoing criminal
investigations.
II. The Contempt Proceeding is an Apparent Attempt to Intimidate the
Attorney General
Article II of the Constitution vests the power to execute
and enforce the laws of the United States in the executive
branch.\28\ The courts have long recognized that criminal
prosecution is exclusively the province of the executive
branch.\29\ By statute, moreover, the responsibility and
authority to recommend appointment of an independent counsel
rests exclusively with the Attorney General.\30\ Nevertheless,
under the pretext of the Committee's generalized responsibility
to oversee the activities of the executive branch, Chairman
Burton appears to be using the extraordinary power of criminal
contempt to intimidate the Attorney General into making a
discretionary decision of his liking.
---------------------------------------------------------------------------
\28\ U.S. Const. Art. II, Sec. Sec. 1, 3.
\29\ E.g. Heckler v. Chaney, 470 U.S. 821, 832 (1985).
\30\ See 28 U.S.C. Sec. 592 (1998).
---------------------------------------------------------------------------
a. there is a tradition of accommodation between the executive and
legislative branches of government
The Committee's decision to seek contempt against Attorney
General Reno is contrary to the spirit of accommodation that
has long characterized disputes between the executive and
legislative branches. As the D.C. Circuit Court of Appeals has
observed, ``[t]he framers . . . expect[ed] that where conflicts
in scope of authority arose between the coordinate branches, a
spirit of dynamic compromise would promote resolution of the
dispute in a manner most likely to result in efficient and
effective functioning of our governmental system.'' \31\ For
this reason, ``each branch should take cognizance of an
implicit constitutional mandate to seek optimal accommodation
through a realistic evaluation of the needs of the conflicting
branches in the particular fact situation.'' \32\
---------------------------------------------------------------------------
\31\ United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).
\32\ Id.
---------------------------------------------------------------------------
Similarly, Attorney General William French Smith, who
served under President Reagan, observed that ``[t]he
accommodation required is not simply an exchange of concessions
or a test of political strength. It is an obligation of each
branch to make a principled effort to acknowledge, and if
possible to meet, the legitimate needs of the other branch.''
\33\
---------------------------------------------------------------------------
\33\ 5 Op. O.L.C. 27, 31 (1981).
---------------------------------------------------------------------------
Unfortunately, the Committee's refusal to consider any
alternatives offered by the Attorney General, and its failure
to offer any constructive alternatives of its own, have
needlessly and irresponsibly precipitated a constitutional
confrontation between coordinate branches of government.
b. the attorney general has made ``extraordinary'' efforts to
accommodate the committee
In keeping with her obligation to try to accommodate the
legitimate needs of the Committee, Attorney General Reno
offered several measures to provide information about the Freeh
and La Bella memoranda to the Committee without compromising
her decisionmaking under the Independent Counsel Act or the
integrity of the ongoing task force investigations. Chairman
Burton, however, rejected every offer by the Attorney General.
In a letter dated July 28, 1998, Attorney General Reno and
Director Freeh expressed their concern over the production of
the Freeh and La Bella memoranda. Explaining the long standing
policy of refusing to turn over such documents during the
pendency of criminal investigations, the damage that disclosure
of such materials could cause to the ongoing work of the
campaign finance task force, and the chilling effect the
production would have on the provision of candid advice within
the Department of Justice, Attorney General Reno and Director
Freeh nonetheless made an offer of accommodation. They wrote:
We remain committed to seeking to accommodate the
committee's oversight responsibilities and information
needs to the fullest extent that we can, consistent
with our law enforcement responsibilities. We are
prepared to make the same accommodation that the
Committee agreed to last year with respect to the Freeh
memorandum and, after the Attorney General has
completed her evaluation of Mr. La Bella's
recommendation, provide a confidential briefing on
appropriate portions of the La Bella memorandum.\34\
---------------------------------------------------------------------------
\34\ Letter from Attorney General Reno and FBI Director Freeh (July
28, 1998) (attached).
On July 31, Attorney General Reno and Director Freeh
requested a meeting with Chairman Burton and Mr. Waxman to make
another attempt at accommodation. In a letter to the Attorney
General recounting the events of the July 31 meeting, Mr.
---------------------------------------------------------------------------
Waxman observed:
During the meeting, you proposed an alterative to Mr.
Burton. You said that you were still considering the La
Bella memorandum, that you wanted other lawyers in the
Department to review the memorandum, and that you
wanted to make the best decision possible. You stated
that your review of the issues would take you about
three weeks to complete. You offered to meet with Mr.
Burton and me after you had made your decision to
explain your decision. You indicated that you would be
prepared to discuss the contents of the La Bella
memorandum with Mr. Burton at that time, but that it
would be inappropriate to do so before a decision was
made.\35\
---------------------------------------------------------------------------
\35\ Letter from Representative Waxman to Attorney General Reno
(July 31, 1998) (attached).
Unfortunately, Chairman Burton did not accept these offers.
On August 3, Chairman Burton responded in writing to the
Attorney General's July 28 letter, indicating that he had
considered and rejected all of her attempts at
accommodation.\36\ Resting his decision on the Committee's
power to obtain the memoranda, rather than the prudence of
exercising that power, Chairman Burton wrote: ``This Committee
cannot accept a recitation of policy arguments and a
recapitulation of points made in correspondence many months ago
in the place of compliance with its subpoena.'' \37\ Chairman
Burton offered no compromise or indication that an
accommodation would be possible.
---------------------------------------------------------------------------
\36\ Letter from Chairman Burton to Attorney General Reno (Aug. 3,
1998).
\37\ Id.
---------------------------------------------------------------------------
The next day, the Attorney General asked Chairman Burton
for permission to testify at the Committee's August 4 hearing,
so that she could explain her position in person to the full
Committee. Chairman Burton rejected even this request, however.
Having been denied the opportunity to address the Committee,
the Attorney General wrote again to the Chairman to reiterate
her interest in reaching an accommodation with the Chairman.
She wrote:
Last week, Director Freeh and I again offered an
accommodation that we believe protects both your
oversight role and prosecutorial responsibilities. We
explained that this memo is extensive, that I need to
review it carefully and thoroughly, and then when I
finish my review, I may or may not decide to trigger
the Independent Counsel Act. The Justice Department is
willing to provide the leadership of the Committee with
a confidential briefing on appropriate portions of the
La Bella Memorandum after I have had an opportunity to
evaluate it fully, in approximately three weeks.\38\
---------------------------------------------------------------------------
\38\ Letter from Attorney General Reno to Chairman Burton (Aug. 4,
1998) (attached).
Director Freeh was asked about the Attorney General's
efforts to reach an accommodation during the August 4 Committee
hearing. In an exchange with Representative Barr, he called the
---------------------------------------------------------------------------
Attorney General's efforts ``extraordinary'':
Mr. Barr. Is there not some way that some of the
essence of what we're trying to get at here could be
conveyed to us----
Mr. Freeh. There's a very good way. And with all due
respect we did this last year in agreement with the
chairman and Mr. Waxman and the Attorney General. . . .
And having discussed it with her, she's offering a very
extraordinary presentation, from my point of view,
which is a briefing to the committee [chairman and
ranking member] on the document once she's had the
opportunity to make a decision.
* * * * *
And I think that's just a very good opportunity for
everybody to compromise on an issue that avoids a
constitutional confrontation.\39\
---------------------------------------------------------------------------
\39\ Testimony of Louis B. Freeh before the House Committee on
Government Reform and Oversight (Aug. 4, 1998).
Despite these extraordinary efforts on behalf of the
Attorney General, Chairman Burton continued to resist any
---------------------------------------------------------------------------
attempt to reach an accommodation. He observed:
There's been no offer whatsoever, other than you'll
get together with me and the Minority, Ranking Minority
Member to discuss this. And that's not going to be
sufficient. We have a lot of Members who want to be
informed about this, because it's been leaked to the
papers.\40\
---------------------------------------------------------------------------
\40\ Remarks of Chairman Burton, House Committee on Government
Reform and Oversight (Aug. 4, 1998).
On August 6, the Attorney General contacted Chairman Burton
by telephone and once again made an attempt at accommodation.
In response to the Chairman's statement that all members of the
Committee should be briefed about the contents of the
memoranda, Attorney General Reno said that after she had
reviewed the La Bella memorandum, she would be willing to
appear before the full Committee and, to the extent that it
would not prejudice the ongoing criminal investigation, explain
Mr. La Bella's legal rationale.
At the August 6 Committee meeting, however, Chairman Burton
rejected even this offer at accommodation:
The Attorney General has not budged an inch from the
position she took last week. She wants to do a partial
briefing for only two members of the committee, myself
and Mr. Waxman, a month from now. She wants to deny any
information whatsoever to the other 42 members of the
committee. Given the serious nature of what we're
looking into, that's unacceptable.\41\
---------------------------------------------------------------------------
\41\ Remarks of Chairman Burton, House Committee on Government
Reform and Oversight (Aug. 6, 1998).
In his very next sentence, however, Chairman Burton
acknowledged that the Attorney General had more than ``budged''
from her previous position and, in fact, had met Chairman
Burton's demand that she provide information to all Committee
members. Nonetheless, Chairman Burton continued to reject her
---------------------------------------------------------------------------
offer:
This morning, she made another offer which was also
unacceptable, which I presented to our committee
members, and that was that we would wait until we came
back in September and in open forum she would express
some of the reasons why Mr. La Bella and Mr. Freeh said
there should be an independent counsel. But in an open
forum, there's no doubt in any of our minds that the
guts of the reasons would not be able to be made
available to us.\42\
---------------------------------------------------------------------------
\42\ Id.
---------------------------------------------------------------------------
c. chairman burton should have followed senator hatch's example and
accepted the attorney general's proposals
The proposals that the Attorney General made were
reasonable ones that would not have impeded the work of the
Committee. In essence, what Attorney General Reno requested was
a 2-week delay from the date the Committee voted to cite her
for contempt of Congress to allow her to finish her
consideration of the La Bella memorandum free from
congressional interference. After that, she said she would be
willing to brief Chairman Burton and Mr. Waxman in private or
to testify to the full Committee in open session. Given that
the House departed for its month-long August recess the day
after the Committee voted to cite the Attorney General for
contempt, it is difficult to understand how Chairman Burton or
the Committee could possibly have been prejudiced by the brief
delay requested by the Attorney General.
The unreasonableness of the Committee's position is
underscored when it is compared to the position being taken by
the House and Senate Judiciary Committees--neither of which are
demanding the memoranda prior to the a final decision by the
Attorney General. In contrast to Chairman Burton, Senator Orrin
G. Hatch, Chairman of the Senate Judiciary Committee, agreed to
give the Attorney General the time she requested to review
thoroughly Mr. La Bella's memorandum. In fact, Senator Hatch
said on national television that he was ``happy to give her
that time.'' \43\ He told NBC's Tim Russert that he plans to
sit down with Chairman Hyde and the Attorney General after she
has had time to study La Bella's report, probably at the end of
August. At that point they will discuss the memorandum and her
position on the appointment of an independent counsel.
According to Senator Hatch, only after that discussion would he
consider issuing a subpoena for the memorandum.\44\
---------------------------------------------------------------------------
\43\ NBC's Meet the Press (Aug. 2, 1998).
\44\ Id.
---------------------------------------------------------------------------
This is a very different approach from the one taken by
this Committee. Chairman Burton issued the subpoena to the
Attorney General on July 24, 1998, only 1 week after Mr. La
Bella gave his memorandum to the Attorney General. He then
proceeded to reject each of the many attempts at accommodation
initiated by the Attorney General. At no point did Chairman
Burton or the Committee make any serious effort to accommodate
the many legitimate concerns raised by Attorney General Reno,
Director Freeh, Mr. La Bella, and Mr. Desarno about the impact
of releasing the memoranda.
d. the committee is apparently seeking to intimidate the attorney
general
There is an explanation for why Chairman Burton and the
Committee rejected each of the Attorney General's attempts at
accommodation. The Chairman and the Committee do not want to
reach a reasonable understanding with the Attorney General.
Instead, they appear to be pursuing contempt charges as a means
of improperly pressuring the Attorney General to seek the
appointment of an independent counsel. Their goal seems to be
to force the Attorney General to choose between seeking the
appointment of an independent counsel or facing the $1,000 fine
and year of imprisonment that are the criminal penalties for
being held contempt of Congress.
Chairman Burton made these intentions explicit during the
July 31 meeting requested by the Attorney General and the FBI
Director. During this meeting, the Chairman told the Attorney
General that he would drop his efforts to seek contempt if she
would seek the appointment of an independent counsel. As Mr.
Waxman wrote to the Attorney General after the meeting:
The Chairman's remarks were a blatant attempt to
influence your decision. You were told that you could
avoid being held in contempt of Congress if you acceded
to Mr. Burton's demands that you seek appointment of an
Independent Counsel. Conditioning a contempt citation
on your willingness to appoint an Independent Counsel
is clearly coercive.
* * * * *
Mr. Burton's tactics are not subtle. He knows that
you cannot turn over the La Bella memorandum. . . .
Thus, Mr. Burton is seeking to place you in an
untenable position. In effect, he has given you only
two choices: (1) become the first Attorney General in
history to be held in contempt of Congress because you
cannot turn over the La Bella memorandum or (2) appoint
the Independent Counsel that he demands.\45\
---------------------------------------------------------------------------
\45\ Letter from Representative Waxman to Attorney General Janet
Reno (July 31, 1998).
The Chairman's spokesman, Will Dwyer, confirmed the
Chairman's intent. As reported in the Washington Post on August
1, Mr. Dwyer conceded that ``[t]he only one real objective here
is getting an independent counsel, as these documents advise
her to do. . . . If she follows that advice, there will be no
need for the documents.'' \46\
---------------------------------------------------------------------------
\46\ Democrats Say Burton Made Threat Against Reno, the Washington
Post, A1 (Aug. 1, 1998).
---------------------------------------------------------------------------
Attorney General Reno has properly resisted these efforts
at intimidation. As she explained on August 4: ``Chairman
Burton told me Friday that if I triggered the appointment of an
independent counsel, I would not have to produce the memos. If
I give in to that suggestion, then I risk Congress turning all
decisions to prosecute into a political football.'' \47\
---------------------------------------------------------------------------
\47\ Press conference of Attorney General Reno, unofficial
transcript (LEXIS, ``Scripts'') (Aug. 4, 1998).
---------------------------------------------------------------------------
III. The Contempt Citation Will Bring the Committee into Further
Disrepute
The Committee's decision to hold Attorney General Reno in
contempt of Congress is only the latest in a continuing series
of events that has subjected the Committee to criticism and
even ridicule from across the country. Since the investigation
began in January 1997, dozens of editorials from across the
Nation have condemned the Committee's investigation as
partisan, wasteful, and inept. Many have called for the
resignation of Chairman Burton.
Unfortunately, the Committee's vote to hold the Attorney
General in contempt will only add to the disdain with which the
Committee's campaign finance investigation is already regarded.
a. the majority has a lengthy record of mishaps and abuses of power
From the outset of the investigation in January 1997, the
Committee's investigation has been characterized by mishaps and
abuses of power. The Committee has issued subpoenas to the
wrong witnesses,\48\ staked out the home of an innocent
individual,\49\ released the President's private fax
number,\50\ falsely accused the White House of altering
videotapes of fundraising events,\51\ and caused an
international incident on a trip to Taiwan.\52\
---------------------------------------------------------------------------
\48\ See Investigators Issue Subpoena to Wrong DNC Donor, the Los
Angeles Times (Apr. 15, 1997).
\49\ See Burton's Men Nailed Wrong Ma, the Washington Post (Sept.
12, 1997).
\50\ See House Panel Posts Clinton's Fax Line On Internet,
Associated Press (Nov. 20, 1998).
\51\ See Representative Dan Burton, CBS's Face the Nation (Oct. 19,
1997); letter from Representative Waxman to Chairman Burton (Oct. 30,
1997).
\52\ See Burton's Campaign-Finance Probe Is Drawing Criticism for
Mounting Costs and Slow Progress, the Wall Street Journal (Mar. 27,
1998).
---------------------------------------------------------------------------
Even Republican Members and staff have called the
investigation ``a big disaster,'' \53\ ``incompetent,'' \54\
``unprofessional,'' \55\ and ``an embarrassment, like Keystone
Cops.'' \56\ According to one former senior Republican
investigator, Charles Little, ``[n]inety percent of the staff
doesn't have a clue as to how to conduct an investigation.''
\57\
---------------------------------------------------------------------------
\53\ GOP Memo Targets 3 N.E. Congressman to Co-Opt Democrats, the
Boston Globe (May 6, 1998).
\54\ Cox Leads Defeat of Burton, Waxman Agreement, Roll Call (Sept.
29, 1997).
\55\ Burton Tape Fiasco Pitted Panel's Pros Vs. Pols, the Hill (May
13, 1998).
\56\ CNN's Inside Politics (Sept. 16, 1997).
\57\ Burton Tape Fiasco Pitted Panel's Pros Vs. Pols, the Hill (May
13, 1998).
---------------------------------------------------------------------------
Virtually every power that has been given to the Committee
has been abused. From the McCarthy era through 1994, no
Democratic Chairman ever issued a subpoena unilaterally without
either the consent of the Ranking Minority Member or a
Committee vote. Since the beginning of the Committee's campaign
finance investigation, however, Chairman Burton has issued 684
unilateral subpoenas--675 (over 99%) of these subpoenas have
been targeted at Democrats.
The Committee's deposition authority has been similarly
abused. As documented in detail in letters from Mr. Waxman to
Chairman Burton, the Committee has abused the deposition power
by harassing witnesses during depositions and using depositions
as fishing expeditions.\58\ In total, 160 witnesses have been
called for over 700 hours of depositions, but only 14 of these
witnesses have ever been asked to testify in a public hearing.
In one case, a witness who serves in the Clinton administration
but has been accused of no wrongdoing has been forced to appear
for 5 separate days of depositions spanning more than 21
hours.\59\
---------------------------------------------------------------------------
\58\ See, e.g., letter from Representative Waxman to Chairman
Burton (Sept. 10, 1997).
\59\ See letter from Representative Waxman to Chairman Burton (Apr.
1, 1998); letter from Representative Waxman to Chairman Burton (Apr. 3,
1998).
---------------------------------------------------------------------------
The Committee has also abused its power to confer immunity.
Due to errors committed by the majority staff, one of the first
witnesses given immunity by the Committee unexpectedly
testified to potentially serious tax and immigration
violations, thereby receiving an unintended ``immunity bath.''
The testimony the Committee received from this witness in
exchange for the grant of immunity turned out to be
demonstrably false.\60\
---------------------------------------------------------------------------
\60\ See Committee on Government Reform and Oversight Minority
Staff Report, at 1, 5-6 (Oct. 9, 1997). See also letter from
Representative Waxman to Chairman Burton (Oct. 22, 1997).
---------------------------------------------------------------------------
Even the Committee's power to release documents has been
abused. Under the Committee's Document Protocol, the Chairman
was given the unilateral authority to release confidential
records received by the Committee during the investigation.
Chairman Burton then used this power to release doctored
transcripts of the Webster Hubbell prison tapes. This action
misled the public because exculpatory statements were
systematically edited out of the transcripts.\61\ It also
violated Mr. Hubbell's rights to privacy, because the tapes
released by Chairman Burton contained intimate conversations
between Mr. Hubbell and his wife and family.
---------------------------------------------------------------------------
\61\ See Republican Congressman Comes Under Attack for Releasing
Hubbell Transcripts, the New York Times (May 4, 1998); Democrats Hit
Burton Over Tapes Of Hubbell, the Washington Post (May 4, 1998);
Portions of Hubbell Prison Tapes Released, the Los Angeles Times (May
5, 1998).
---------------------------------------------------------------------------
The majority's first chief counsel, John Rowley, resigned
in protest over the Committee's abuses. In his letter of
resignation, Mr. Rowley stated that he had ``been unable to
implement the standards of professional conduct I have been
accustomed to at the U.S. Attorney's office.'' \62\ Ten months
later, Speaker Newt Gingrich forced Chairman Burton to fire his
chief investigator, David Bossie. At a closed-door meeting of
the Republican Conference, Speaker Gingrich said to Chairman
Burton, ``I'm embarrassed for you, I'm embarrassed for myself,
and I'm embarrassed for the conference at the circus that went
on at your committee.'' \63\
---------------------------------------------------------------------------
\62\ Letter from John P. Rowley III to Chairman Burton (July 1,
1997).
\63\ Burton Apologizes to GOP, Washington Post (May 5, 1998).
---------------------------------------------------------------------------
At one point in the investigation, Chairman Burton even
called President Clinton ``a scumbag.'' He went on to say,
``That's why I'm after him.'' \64\
---------------------------------------------------------------------------
\64\ Dan Burton's Dogged Pursuit of the President, the Indianapolis
Star (Apr. 16, 1998).
---------------------------------------------------------------------------
These mistakes and abuses have led to widespread criticism
of the Committee's campaign finance investigation and its
Chairman, Dan Burton. The headlines in editorials across the
Nation speak for themselves:
``Ethically Comprised Inquisitor'' \65\
---------------------------------------------------------------------------
\65\ Hartford Courant (Mar. 11, 1997).
---------------------------------------------------------------------------
``Reining In Dan Burton'' \66\
---------------------------------------------------------------------------
\66\ New York Times (Mar. 20, 1997).
---------------------------------------------------------------------------
``Mr. Burton Should Step Aside'' \67\
---------------------------------------------------------------------------
\67\ Washington Post (Mar. 20, 1997).
---------------------------------------------------------------------------
``Millstone of Partisanship; House Campaign Finance
Inquiry Appears Short on Credibility'' \68\
---------------------------------------------------------------------------
\68\ Los Angeles Times (Apr. 11, 1997).
---------------------------------------------------------------------------
``A House Investigation Travesty'' \69\
---------------------------------------------------------------------------
\69\ New York Times (Apr. 12, 1997).
---------------------------------------------------------------------------
``A Chairman Without Credibility'' \70\
---------------------------------------------------------------------------
\70\ San Francisco Chronicle (Apr. 14, 1997).
---------------------------------------------------------------------------
``A Disintegrating House Inquiry'' \71\
---------------------------------------------------------------------------
\71\ New York Times (July 12, 1997).
---------------------------------------------------------------------------
``Reno Roast Embarrasses Nobody But Congress;
Grilling Of Attorney General Is A Sorry Partisan
Spectacle'' \72\
---------------------------------------------------------------------------
\72\ Los Angeles Times (Dec. 10, 1997).
---------------------------------------------------------------------------
``Soap Opera'' \73\
---------------------------------------------------------------------------
\73\ Roll Call (Apr. 17, 1998).
---------------------------------------------------------------------------
``A Chairman Out of Control'' \74\
---------------------------------------------------------------------------
\74\ The Hill (Apr. 29, 1998).
---------------------------------------------------------------------------
``What Is Dan Burton Thinking?'' \75\
---------------------------------------------------------------------------
\75\ Minneapolis Star Tribune (May 5, 1998).
---------------------------------------------------------------------------
``Burton's Vendetta'' \76\
---------------------------------------------------------------------------
\76\ Boston Globe (May 5, 1998).
---------------------------------------------------------------------------
``Dan, Go to Your Room'' \77\
---------------------------------------------------------------------------
\77\ Boston Herald (May 5, 1998).
---------------------------------------------------------------------------
``Dan Burton Is a Loose Cannon'' \78\
---------------------------------------------------------------------------
\78\ Hartford Courant (May 5, 1998).
---------------------------------------------------------------------------
``Congressman Plays Dirty with Tapes'' \79\
---------------------------------------------------------------------------
\79\ Allentown Morning Call (May 5, 1998).
---------------------------------------------------------------------------
``Rep. Burton Goes Too Far'' \80\
---------------------------------------------------------------------------
\80\ The Times Union (Albany, NY) (May 5, 1998).
---------------------------------------------------------------------------
``Abuse of Privacy; Burton Should Be Censured'' \81\
---------------------------------------------------------------------------
\81\ Harrisburg Patriot-News (May 5, 1998).
---------------------------------------------------------------------------
``Give Dan Burton the Gate'' \82\
---------------------------------------------------------------------------
\82\ Chicago Tribune (May 6, 1998).
---------------------------------------------------------------------------
``Headcase'' \83\
---------------------------------------------------------------------------
\83\ New York Daily News (May 6, 1998).
---------------------------------------------------------------------------
``Burton Bumbles in Bad Faith'' \84\
---------------------------------------------------------------------------
\84\ San Antonio Express-News (May 6, 1998).
---------------------------------------------------------------------------
``Wild Card: Chairman's Rampage Demeans Entire
House'' \85\
---------------------------------------------------------------------------
\85\ Fayetteville Observer-Times (May 6, 1998).
---------------------------------------------------------------------------
``Remove Burton From Money Probe'' \86\
---------------------------------------------------------------------------
\86\ Seattle Post-Intelligencer (May 7, 1998).
---------------------------------------------------------------------------
``Out of Control'' \87\
---------------------------------------------------------------------------
\87\ Roll Call (May 7, 1998).
---------------------------------------------------------------------------
``The Dan Burton Problem'' \88\
---------------------------------------------------------------------------
\88\ New York Times (May 8, 1998).
---------------------------------------------------------------------------
``Burton Unfit to Lead Clinton Probe'' \89\
---------------------------------------------------------------------------
\89\ Milwaukee Journal-Sentinel (May 8, 1998).
---------------------------------------------------------------------------
``Mistakes Were Made: Burton Inquiry Can't Reach a
Credible Conclusion'' \90\
---------------------------------------------------------------------------
\90\ Sacramento Bee (May 11, 1998).
Prior to the Committee's efforts to cite the Attorney
General for contempt, at least 40 newspapers around the country
had criticized the Committee's investigation in over 60
editorials. Some, like the New York Times and the Washington
Post, had written five or six editorials each lambasting the
investigation.\91\
---------------------------------------------------------------------------
\91\ New York Times editorials included: Reining In Dan Burton
(Mar. 20, 1997); A House Investigation Travesty (Apr. 12, 1997); The
Bipartisan Subpoena Squeeze (May 13, 1997); A Disintegrating House
Inquiry (July 12, 1997); and The Dan Burton Problem (May 8, 1998).
Washington Post editorials included: Mr. Burton Should Step Aside (Mar.
20, 1997); Faking It On Campaign Finance (May 30, 1997); Will the House
Do It Again? (June 26, 1997); A Touch of Civility (July 1, 1997); The
Hubbell Tapes (May 3, 1998); and Mr. Burton's Transcripts (May 6,
1998).
---------------------------------------------------------------------------
b. the contempt citation has produced a new round of public criticism
It is unfortunate that the Committee would compound its
record of mishaps and abuses by seeking to hold the Attorney
General in contempt of Congress for simply doing her job. Yet
this is exactly what has happened. The result has been a new
round of public criticism of the investigation.
Since August 8, 1998, Chairman Burton and the Committee
have been criticized for their attempt to cite the Attorney
General in contempt in newspapers from New York to Los Angeles
and from Chicago to Miami. Examples of these editorials include
the following:
Mr. Burton and Ms. Reno, Washington Post
(August 7, 1998): ``The House Government Reform and
Oversight Committee's vote yesterday to cite the
attorney general for contempt of Congress is a
dangerous political interference in a law enforcement
decision that threatens to undermine the Justice
Department's campaign finance investigation--an
interference, ironically, by the same people who
purport to want a vigorous investigation. . . . Mr.
Burton's approach to the matter has been nothing less
than thuggish.''
Buck Stops With Reno, Los Angeles Times
(August 6, 1998): ``Congress has no business
threatening Reno with contempt charges. . . . This is a
fishing expedition by Chairman Dan Burton. . . . The
precedent Rep. Burton seeks could make the executive
branch a ground for all sorts of witch hunts by those
who second-guess motives and judgments of
decisionmakers.''
Tell Him No, Ms. Reno! Don't Yield to Burton,
Miami Herald (August 6, 1998): ``If you want to rid
your house of rats, one extremely effective way is to
burn down the house. That's essentially what U.S. Rep.
Dan Burton seems willing to do by threatening Attorney
General Janet Reno with contempt of Congress. . . . Mr.
Burton's request is dangerous. It's more than laced
with his palpable political motives. Worse, it's also
bereft of any sign that he has weighed what these
memos, if leaked, could do to the Justice Department's
own investigation.''
The Foolish Threat Against Reno, Chicago
Tribune (August 6, 1998): ``Given their professed
desire to see that the law is enforced, you would think
Burton and his GOP colleagues would be leery of any
step that might hinder prosecutors. The threat of
contempt citation makes sense only if their real
purpose is to embarrass the administration.''
Giving Ms. Reno Time To Study, New York Times
(August 6, 1998): ``[W]e think it is better to give
[Attorney General Reno] the time than to hold her in
contempt of Congress, as proposed by Representative Dan
Burton. . . . Two wiser students of the Democratic
campaign abuses, Senator Orrin Hatch and Representative
Henry Hyde, favor giving Ms. Reno the requested time so
she can think her way through this. . . . [A]
confrontation over the reports would be unsound on
legal grounds and counterproductive.''
Do It Justice, Appoint An Independent Counsel
in the Campaign Finance Mess But Hold on to the Memos,
New York Newsday (August 6, 1998): ``This is sheer
pigheadedness on Burton's part.''
In short, by needlessly citing Attorney General Reno for
contempt and provoking a constitutional crisis, Chairman Burton
and the Republican majority on the Committee have once again
brought the actions of the Committee into widespread public
disrepute.
IV. The Contempt Citation is Legally Flawed and Would not be Upheld by
a Court
In issuing the subpoena for the memoranda written by
Director Freeh and Mr. La Bella, Chairman Burton failed to
follow the basic procedures required by the Committee's
Document Protocol. As a result, the contempt citation is
legally flawed. Even if the full House votes to approve the
contempt citation, it is doubtful that any reviewing court
would uphold the contempt citation.
Under the Committee's Document Protocol, if the Ranking
Minority Member of the Committee objects to the issuance of a
subpoena, the Chairman must present the subpoenas to a five-
member ``Working Group'' comprised of the Chairman, the Ranking
Minority Member, the Vice Chairman, a minority member chosen by
the Ranking Minority Member, and another majority member chosen
by the Chairman. The Protocol requires that ``[t]he Working
Group shall endeavor in good faith to reach consensus.'' The
Working Group is supposed to vote on subpoenas only if it fails
to reach a consensus after a good faith effort.\92\
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\92\ House Committee on Government Reform and Oversight, Protocol
for Documents, part A(2)(a) (June 23, 1998).
---------------------------------------------------------------------------
On July 23, 1998, Chairman Burton notified the minority
that he intended to issue the subpoena. Mr. Waxman indicated to
him that he would object to the issuance of this subpoena, and
the Chairman scheduled a meeting of the Working Group. On July
24, the Chairman convened a meeting of the Working Group
attended by Representatives Lantos, Cox, and Waxman, but the
four Members deadlocked on the merits of the subpoena. The
Chairman, not having the majority vote, stated the group would
reconvene later near the House floor so that Representative
Hastert could attend the meeting.
Four Members--the Chairman and Messrs. Waxman, Cox, and
Hastert--were present when the Working Group reconvened. The
Chairman did not allow Mr. Waxman to present his views to Mr.
Hastert or engage in any meaningful discussion with him.
Instead, he rushed to a vote of the Working Group after less
than 5 minutes of cursory discussion. This process directly
contradicted the Protocol's mandate that the Working Group make
a ``good faith'' effort to ``reach consensus.''
As Mr. Waxman wrote to Chairman Burton in protesting this
action:
Last month, when you were seeking the minority's
support for immunity for four witnesses, you stated
that ``[w]e have offered to make our five-Member
working group meet to vote on any subpoenas that you
oppose, and I have pledged to abide by the working
group's decisions.'' You also assured me that ``[t]hese
are not cosmetic changes.'' Unfortunately, your conduct
today conflicts with these assurances. A process that
denies the minority the opportunity to present its
views is simply a sham process.\93\
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\93\ Letter from Representative Waxman to Chairman Burton (July 24,
1998).
Supreme Court precedent holds that legislative committees
must follow their own rules, and the Court has reversed a
contempt conviction where a congressional committee failed to
observe its rules.\94\ The U.S. Court of Appeals for the
District of Columbia also has reversed contempt convictions of
witnesses, where these witnesses were compelled to appear
before a Senate subcommittee by subpoenas issued in violation
of a Senate resolution.\95\ In one case, a subpoena was issued
to a witness by the subcommittee's Chairman after conferring
with his chief counsel and at most only one other subcommittee
member. Because the entire subcommittee had not decided or even
considered whether the witness should be compelled to testify,
the subpoena was invalid and the witness's contempt conviction
did not stand.\96\
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\94\ See Yellin v. United States, 374 U.S. 109, 114 (1963).
\95\ See Liveright v. United States, 347 F.2d 473 (D.C. Cir. 1965);
Shelton v. United States, 327 F.2d 601 (D.C. Cir. 1963).
\96\ Liveright v. United States, 347 F.2d 473, 474-75.
---------------------------------------------------------------------------
In light of the precedent reversing contempt convictions
where committees have violated their own rules, this
Committee's failure to observe the Protocol in issuing the
subpoena to Attorney General Reno undermines the legal merits
of the contempt proceeding against her. It is doubtful that the
House will ever act on the Committee's contempt citation. But
even if it does, no court is likely to uphold a contempt
citation based on a subpoena that was issued without the good
faith effort to reach a consensus that is required under the
Committee rules.
V. The Majority's Arguments are not Persuasive
In the draft report and during the Committee debate on
August 6, several arguments were made by the majority in
support of the contempt citation. These arguments, however, are
not persuasive and do not withstand careful scrutiny.
a. the precedents cited by the majority are inapplicable
The majority has cited several precedents in its draft
contempt report in support of its demand for the Freeh and La
Bella memoranda. None of these precedents, however, resembles
the fact situation currently before the Committee. In
particular, none of the precedents involves a congressional
attempt to obtain a prosecution memorandum during an open
criminal investigation.
1. Palmer Raids Investigation
The majority cites the fact that, in the course of
congressional investigations into the deportation of suspected
Communists in 1920-1921, the Justice Department produced a
``memorandum of comments and analysis'' by a Justice Department
lawyer of a trial court opinion that was under appeal.
The Palmer Raids case is distinguishable from the current
circumstances for at least two important reasons, however.
First, in the Palmer Raids investigation, the trial had ended.
Second, the document produced was not a prosecution memorandum,
but rather simply a legal analysis of a trial court opinion.
2. Teapot Dome Scandal
The majority claims that the Senate Committee that
investigated the Teapot Dome scandal in 1920's received
documents related to ongoing criminal investigations.
In fact, the circumstances surrounding Teapot Dome are
fundamentally different than those surrounding the Freeh and La
Bella memoranda. At the time the Justice Department produced
documents to Congress, it had finished investigating the matter
and had finished considering legal action. Moreover, the
primary document produced was not a prosecution memorandum, but
the report of an accountant working on the investigation.
3. White Collar Crime in the Oil Industry
The majority cites as precedent a 1979 congressional
investigation into the Justice Department's alleged failure to
prosecute fraudulent pricing in the oil industry. During this
investigation, the Justice Department discussed, mostly in
closed hearings, the reasons for not going forward with certain
cases.
This case is also significantly different from the current
circumstances. In the oil industry investigation, it appears
that the Justice Department did not turn over documents
relating to open criminal cases. In fact, the Chairman of the
House Subcommittee on Energy and Power stated: ``We know
indictments are outstanding. We do not wish to interfere with
the rights of any parties to a fair trial. . . . Evidence and
comments on specific cases must be left to the prosecutors in
the cases they bring to trial.''
4. Gorsuch/EPA Investigation
The majority also cites as precedent a 1983 investigation
in which House Judiciary Chairman Rodino requested and received
documents relating to the Environmental Protection Agency's
enforcement of hazardous waste cleanup laws.
This case is distinguishable, however, because the
documents that were produced by the Justice Department were
documents generated by EPA, not the Justice Department.
Moreover, the documents related to civil, not criminal,
enforcement of the Superfund statute.
5. Iran-Contra
The majority cites the Iran-Contra investigation as a
recent example in which sensitive law enforcement documents
were given to Congress by the Justice Department.
In the Iran-Contra investigation, however, the documents
produced to Congress were not generated as part of a criminal
investigation by the Justice Department. Rather, they related
to an internal administration review, led by Attorney General
Meese, that was designed to determine why different agencies in
the Reagan administration were making conflicting public
statements regarding Iran-Contra. This civil investigation was
completed before the Department's criminal investigation, which
was conducted by the Department's criminal division, had even
begun. Moreover, the civil investigation was completed before
the documents were produced to Congress.
6. Rocky Flats Case; Other Environmental Crimes Cases
These investigations are distinguishable because, as the
majority acknowledges in its draft report, these investigations
involved cases that were closed at the time the documents were
produced to Congress. For example, in the Rocky Flats matter,
the criminal case was closed and a plea had been obtained when
the Justice Department provided Congress with access to certain
documents.
7. Watergate
The majority draft report discusses Watergate as ``another
notable example of the scope and need for Congressional
oversight of the Justice Department.'' However, the majority
does not allege that the Justice Department turned over
documents relating to an ongoing criminal investigation during
Watergate.
b. the majority's pledge of confidentiality cannot be relied upon
During the August 6 Committee meeting, the majority argued
that production of the Freeh and La Bella memoranda would not
jeopardize the Department's criminal investigation because the
Committee could be trusted to keep the memoranda confidential,
as if received in ``executive session'' of the Committee.
This contention was properly rejected by the Justice
Department. The majority's argument overlooks the fact that
executive session material can be released upon a majority vote
of the Committee at any time. The Committee has an unfortunate
record on voting to release documents despite objections by the
Justice Department. For example, the Committee voted on August
4 to release certain checks relating to Charlie Trie despite
having received a letter from the Acting Assistant Attorney
General Mark Richard which stated:
I am writing to request that the checks not be
released at this time. . . . Certain facts surrounding
the travelers checks are under active investigation and
are crucial to our determination whether additional
crimes are charged. Release of the checks now would
inevitably compromise our ability to develop new
evidence by alerting witnesses and conspirators about
the nature and direction of the investigations.\97\
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\97\ Letter from Mark M. Richard to Chairman Burton (July 30,
1998).
Moreover, there is ample reason to doubt that the majority
would succeed in preventing the contents of the memoranda from
being leaked. Since the beginning of the campaign finance
investigation, the Committee has been the source of many
documents leaked for political gain--without regard for the
impact of those leaks on the Committee, criminal
investigations, or the rights of private citizens.
In November 1996, even before Mr. Burton was elected
Chairman, the first leaks occurred. As Roll Call reported,
``Burton confirmed that . . . one of his top aides leaked the
confidential phone logs of former Commerce Department official
John Huang . . . to the media.'' \98\
---------------------------------------------------------------------------
\98\ Burton Admits Aide Leaked Huang Record, Roll Call (Nov. 25,
1996).
---------------------------------------------------------------------------
On February 21, 1997, two senior majority staff interviewed
businesswoman Vivian Mannerud at her place of business and
without her counsel present. The staff assured her that her
interview would be used only for official business. On April 4,
1998, however, the New York Times, citing ``congressional
investigators,'' published a front-page story about
contributions Ms. Mannerud allegedly solicited for Democrats
from a convicted drug smuggler.\99\
---------------------------------------------------------------------------
\99\ Letter from Representative Waxman to Chairman Burton (June 4,
1997).
---------------------------------------------------------------------------
Around August 1997, Chairman Burton or his staff appear to
have leaked documents subpoenaed by the Committee to the
plaintiffs suing the Federal Government to overturn the
Interior Department's decision to deny a casino application in
Hudson, WI. DNC employee David Mercer testified under oath at
his deposition that he was contacted by a Milwaukee reporter
and asked about certain documents in the Committee's
possession. When Mr. Mercer asked how the reporter got the
documents, the reporter told him that ``investigators had
released documents from the House committee to lawyers in the
litigation, and then the lawyers in the litigation released it
to the press.'' \100\
---------------------------------------------------------------------------
\100\ House Government Reform and Oversight Committee, Deposition
of David Mercer, at 150 (Aug. 26, 1997).
---------------------------------------------------------------------------
On February 27, 1998, Chairman Burton released his staff's
notes of an interview with former Senate aide Steven Clemons
even though his staff assured Mr. Clemons that the notes would
not be made public without his consent. Following the release,
Mr. Clemons issued a statement which said that ``the notes have
significant inaccuracies and misrepresentations about the
important matters which were discussed.'' \101\
---------------------------------------------------------------------------
\101\ Steven Clemons, Press Release (Feb. 25, 1998).
---------------------------------------------------------------------------
The most well publicized leak occurred when Chairman Burton
released subpoenaed Bureau of Prisons tape recordings of
Webster Hubbell's private phone conversations. At the time the
tapes were produced to the Committee, the Justice Department
wrote Chairman Burton that ``[m]any of these audiotapes may
implicate the personal privacy interests of Mr. Hubbell and
other individuals. . . . We understand that the Committee
appreciates the sensitivity of these audiotapes and will
safeguard them accordingly.'' \102\ Chairman Burton, however,
ignored these warnings and leaked excerpts of the tapes to the
media.
---------------------------------------------------------------------------
\102\ Letter from Assistant Attorney General Andrew Fois to
Chairman Burton (July 2, 1997).
---------------------------------------------------------------------------
The content of the tapes were first leaked to the Wall
Street Journal, which ran a story on them on March 19,
1998.\103\ The leaked excerpts of conversations between Mr.
Hubbell and his wife concerned family matters such as what Mrs.
Hubbell should prepare for dinner--not criminal conduct nor any
other matters relevant to the Committee's campaign finance
investigation. After Mr. Waxman wrote to Chairman Burton to
protest this leak of Committee documents,\104\ Chairman Burton
acknowledged being the source of the tapes, but claimed to have
authorization from the Committee.\105\ In fact, no such
authorization had been granted to the Chairman.\106\
---------------------------------------------------------------------------
\103\ Glenn R. Simpson, As He Wasted Away, the Prisoner Had But One
Thing On His Mind, Wall Street Journal (Mar. 19, 1998).
\104\ Letter from Representative Waxman to Chairman Burton (Mar.
20, 1998).
\105\ Letter from Chairman Burton to Representative Waxman (Mar.
27, 1998).
\106\ Letter from Representative Waxman to Chairman Burton (Apr. 2,
1998). Chairman Burton initially claimed that the tapes were entered
into the Committee records on Dec. 10, 1997. However, there is no
reference to such tapes in the transcript of the Committee hearing on
that date. Chairman Burton later claimed that the tapes were entered
into the record on Dec. 9, 1997. Though certain records relating to
payments to Mr. Hubbell were entered into the record on that date, the
hearing transcript does not refer to the tapes and cannot reasonably be
interpreted to include tape recordings of Mr. Hubbell's private
conversations, such as those released in March. See letter from
Representative Waxman and Representative Lantos to Chairman Burton
(Apr. 27, 1998).
---------------------------------------------------------------------------
To compound the problem, Chairman Burton released
selectively edited transcripts of additional conversations to
the media on April 30, 1998. The excerpts omitted crucial
portions of the conversations--including exculpatory
statements--while highlighting damaging statements taken out of
context. As Mr. Waxman wrote Chairman Burton, this second
release of information from the Hubbell tapes also violated the
Committee's Document Protocol.\107\ Chairman Burton responded
to criticism about this second release by releasing the tapes
in their entirety, without regard for Mr. Hubbell's legitimate
privacy concerns.
---------------------------------------------------------------------------
\107\ Letter from Representative Waxman to Chairman Burton (May 3,
1998).
---------------------------------------------------------------------------
Finally, even if the Committee could provide credible
assurance that the Freeh and La Bella memoranda would not be
leaked, it would still be improper to provide the memoranda to
the Committee. As discussed in part I.B., Congress has no role
interjecting itself into prosecutorial decisions. These
decisions should be made on the merits, without interference
from congressional oversight committees. Allowing the Committee
to obtain the memoranda before the Attorney General has
completed her review would violate this important principle of
separation of powers.
c. redaction of grand jury material is not sufficient
The majority claims that production of the prosecution
memoranda is proper because the Committee will agree to allow
the Justice Department to redact material that is derived from
grand jury testimony. This is hardly a concession, since
disclosure by the Justice Department of such material is
prohibited by Federal Rule of Criminal Procedure 6(e). Such
redactions, however, do not make disclosure of the memoranda
proper.
Disclosure of non-6(e) information may be difficult in a
memorandum that combines grand jury material with other
information. Moreover, contrary to the majority's assertion,
disclosure of non-6(e) information may be just as damaging to
the Justice Department's investigation as disclosure of 6(e)
material. As Attorney General Reno explained in a letter to
Chairman Burton:
According to Director Freeh, these memoranda offer a
road map to confidential, ongoing criminal
investigations. Even excluding grand jury information--
which you are not seeking--such documents lay out the
thinking, theories and strategies of our prosecutors
and investigators, and the strengths and weaknesses of
our cases.\108\
---------------------------------------------------------------------------
\108\ Letter from Attorney General Reno to Chairman Burton (Aug. 4,
1998) (emphasis added).
---------------------------------------------------------------------------
d. an assertion of a claim of executive privilege is not necessary
The majority has argued that it would not have voted for
contempt if the President had invoked a claim of ``executive
privilege'' over the prosecution memoranda. There was no
reason, however, to insist on a claim of executive privilege in
this case. As discussed in part II.B., the Attorney General
made extraordinary efforts to accommodate the Committee. The
Committee has a parallel obligation to seek to accommodate the
legitimate law enforcement needs of the Attorney General.
Regrettably, no such efforts were made in this case.
Moreover, it was entirely proper for Attorney General Reno
to avoid a claim of executive privilege. The matters in the
Freeh and La Bella memoranda may concern the President and
persons associated with him. When the administration makes a
claim of executive privilege, the person who retains the
authority to support or overrule the assertion is the
President. If the Attorney General had asserted executive
privilege and the President did not overrule her, the President
would have been accused by the majority of ``covering up''
evidence of his own potential wrongdoing. Moreover, the
Attorney General could have been accused of jeopardizing the
investigation by discussing the memoranda with the President or
his counsel. Invoking executive privilege in this matter would
have only inflamed this dispute.
e. former attorneys general do not support the contempt citation
At the Committee's August 4 hearing, Chairman Burton
claimed that he and his staff had ``talked to former attorneys
general who concur with the actions we're taking.'' \109\ When
Mr. Waxman requested that the Chairman identify which former
attorneys general support the Committee's subpoena for the
prosecution memoranda, Chairman Burton refused, stating only
that ``my staff talked to at least three and I'm not going to
divulge their names.'' \110\
---------------------------------------------------------------------------
\109\ Remarks of Chairman Burton at hearing before House Committee
on Government Reform and Oversight (Aug. 4, 1998).
\110\ Id.
---------------------------------------------------------------------------
After the August 4 hearing, the minority staff contacted
former attorneys general for their opinions, and three of
them--Griffin Bell, Nicholas Katzenbach, and Ramsey Clark--
responded with letters stating their opposition to the
Committee's actions.\111\ A fourth, Elliot Richardson, stated
his opposition in a voice mail message for the minority staff.
After the Committee vote, when contacted by the media, two
other former Attorneys General--Benjamin Civiletti and Richard
Thornburgh--publicly stated their opposition to forcing Ms.
Reno to turn over the memoranda.\112\
---------------------------------------------------------------------------
\111\ Letter from Griffin B. Bell to Representative Waxman (Aug. 6,
1998); letter from Ramsey Clark to Representative Waxman (Aug. 5,
1998); letter from Nicholas deB. Katzenbach (Aug. 5, 1998) (all
attached).
\112\ Former Attorneys General, Washington Post (Aug. 9, 1998).
---------------------------------------------------------------------------
The fact that no former attorneys general have publicly
supported the Committee's actions is indicative of the
tenuousness of the majority's position. As the Washington Post
concluded in an August 10 editorial: ``[T]he separation of
powers is real, and Congress should not try to force the
executive branch to yield these sensitive materials. And if it
does so, Ms. Reno has an obligation to protect pending law
enforcement investigations even at the cost of hindering Mr.
Burton's oversight of her conduct. Mr. Burton's comments
notwithstanding, our past attorneys general don't, by and
large, seem to doubt that.'' \113\
---------------------------------------------------------------------------
\113\ Id.
---------------------------------------------------------------------------
Hon. Henry A. Waxman.
Hon. Tom Lantos.
Hon. Robert E. Wise, Jr.
Hon. Major R. Owens.
Hon. Edolphus Towns.
Hon. Paul E. Kanjorski.
Hon. Bernard Sanders.
Hon. Carolyn B. Maloney.
Hon. Eleanor Holmes Norton.
Hon. Chaka Fattah.
Hon. Elijah E. Cummings.
Hon. Dennis J. Kucinich.
Hon. Rod R. Blagojevich.
Hon. Danny K. Davis.
Hon. Thomas H. Allen.
Hon. Harold E. Ford, Jr.
[Supporting documentation follows:]
ADDITIONAL VIEWS OF HON. THOMAS M. BARRETT
I agree with views presented in sections I through III of
the minority report.
Hon. Thomas M. Barrett.