[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.
---------------------------------------------------------------------------
    \1\ Roberto Suro, Reno's Handling of Justice Memo on Funds Probe 
Attracts Scrutiny, Washington Post, Aug. 2, 1998, at A8.
---------------------------------------------------------------------------

                  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.
---------------------------------------------------------------------------
    \2\ 28 U.S.C. Sec. 591(a).
    \3\ 28 U.S.C. Sec. 591(c)(1).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \8\ House Rule X(1)(g).
    \9\ House Rule X(4)(c)(2).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \10\ See, e.g., 5 U.S.C. Sec. 2954 (Executive agencies required to 
provide requested information to the Committee).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

                         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\
---------------------------------------------------------------------------
    \17\ S. Rept. No. 93-981, 93d Cong., 2d sess., 418 (1974).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.

                               
