[House Report 109-230]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 109-230
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DIRECTING THE ATTORNEY GENERAL TO TRANSMIT TO THE HOUSE OF
REPRESENTATIVES NOT LATER THAN 14 DAYS AFTER THE DATE OF THE ADOPTION
OF THIS RESOLUTION DOCUMENTS IN THE POSSESSION OF THE ATTORNEY GENERAL
RELATING TO THE DISCLOSURE OF THE IDENTITY AND EMPLOYMENT OF MS.
VALERIE PLAME
_______
September 22, 2005.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
together with
DISSENTING VIEWS
[To accompany H. Res. 420]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 420) directing the Attorney General to
transmit to the House of Representatives not later than 14 days
after the date of the adoption of this resolution documents in
the possession of the Attorney General relating to the
disclosure of the identity and employment of Ms. Valerie Plame,
having considered the same, reports unfavorably thereon without
amendment and recommends that the resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 8
Committee Consideration.......................................... 8
Vote of the Committee............................................ 8
Committee Oversight Findings..................................... 9
New Budget Authority and Tax Expenditures........................ 9
Committee Cost Estimate.......................................... 9
Performance Goals and Objectives................................. 9
Constitutional Authority Statement............................... 9
Section-by-Section Analysis and Discussion....................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Markup Transcript................................................ 10
Dissenting Views................................................. 21
Purpose and Summary
House Resolution 420, introduced by Rep. Holt on July 29,
2005, directs the Attorney General to transmit to the House of
Representatives not later than 14 days after the date of
adoption of the resolution all physical and electronic records
and documents in his possession related to the disclosure of
the identity of Ms. Valerie Plame as an employee of the Central
Intelligence Agency during the period May 6, 2003 through July
31, 2003.
Background and Need for the Legislation
HOUSE RESOLUTION OF INQUIRY
House Resolution 420 is a resolution of inquiry. House of
Representatives Rule XIII clause 7 provides that if the
Committee to which a resolution of inquiry is referred does not
act on the resolution within 14 legislative days, a privileged
motion to discharge the Committee is in order on the House
floor. In calculating the days available for Committee
consideration, the day of introduction and the day of discharge
are not counted.\1\
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\1\William Holmes Brown, House Practice: A Guide to the Rules,
Precedents and Procedures of the House 819 (2003).
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Upon introduction, H. Res. 420 was referred to the
Committee on the Judiciary. Similar resolutions have been
referred to the Committees on Armed Services, International
Relations, as well as the Permanent Select Committee on
Intelligence.\2\ These resolutions are substantially similar to
H.Res. 499, which the Committees on the Judiciary, Armed
Services, and International Relations and the Permanent Select
Committee on Intelligence reported adversely in the 108th
Congress.\3\
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\2\See H.Res. 417, 109th Cong. (2005); H.Res. 418, 109th Cong.
(2005); H.Res. 419, 109th Cong. (2005).
\3\See H.Rpt. No. 108-413, Parts I-IV (2004).
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Under the rules and precedents of the House, a resolution
of inquiry allows the House to request information from the
President of the United States or to direct the head of one of
the executive departments to provide such information.
According to Deschler's Precedents, it is a ``simple resolution
making a direct request or demand of the President or the head
of an executive department to furnish the House of
Representatives with specific factual information in the
possession of the Executive Branch.''\4\
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\4\7 Lewis Deschler, Precedents of the House of Representatives,
ch. 24, Sec. 8, p. 407 (1976).
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A Committee that receives a referral of a resolution of
inquiry may act on the resolution in a number of ways. It may
vote on the resolution without amendment, or it may amend it.
It may report the resolution favorably, adversely, or with no
recommendation. A Committee that adversely reports a resolution
of inquiry does not necessarily oppose the resolution under
consideration. In the past, resolutions of inquiry have been
reported adversely for various reasons, including that the
request would compete with an ongoing investigation, or that it
seeks sensitive documents or information.
Under the first scenario, a Committee may decide to report
a resolution of inquiry adversely because it may compete with
another investigation that is regarded as the more appropriate
avenue for inquiry. In addition, a Committee may deny the
request because it seeks sensitive information without any
demonstrated need. The Committee on the Judiciary reports
H.Res. 420 adversely for both of these reasons.
H. Res. 420 would direct the Attorney General to transmit
to the House of Representatives all documents on a matter that
is subject to an ongoing criminal investigation by the
Department of Justice and United States Attorney Patrick
Fitzgerald. There has been no credible allegation that Mr.
Fitzgerald has in any way been derelict in his duties. Indeed,
the Ranking Member of this Committee has stated that Mr.
Fitzgerald ``appears to have undertaken a nonpartisan,
aggressive and leak-free investigation'' in this matter, and
suggested that the Attorney General appoint him to lead other
investigations.\5\ Moreover, the investigation may involve
classified information, such as the work Ms. Plame may have
done for the Central Intelligence Agency. Additionally, the
resolution requests other sensitive information, such as
personnel records and records of internal deliberations, for
which there has been no demonstrated need.
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\5\Letter from The Honorable John Conyers, Jr., Ranking Member,
Committee on the Judiciary, to Attorney General John Ashcroft (June 2,
2004) (requesting that the Attorney General appoint United States
Attorney Patrick Fitzgerald to lead the ongoing investigation of
allegations that Pentagon officials have engaged in certain criminal
wrongdoing), available at http://www.house.gov/judiciary--democrats/
fitzgeraldpentagonltr9304.pdf.
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COMPETING INVESTIGATION
The ongoing criminal investigation stems from a July 14,
2003 article by syndicated columnist Robert Novak, questioning
why retired diplomat Joseph Wilson would be sent to Niger on a
CIA mission.\6\ Mr. Novak wrote that ``Wilson never worked for
the CIA, but his wife, Valerie Plame, is an Agency operative on
weapons of mass destruction. Two senior administration
officials told [Novak] Wilson's wife suggested sending him to
Niger to investigate. . . .''\7\
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\6\Robert Novak, Editorial, Mission to Niger, Chi. Sun-Times, July
14, 2003, at 31.
\7\Id.
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In response to questions raised by his article, Mr. Novak
wrote an explanation on October 1, 2003 that ``[t]his story
began July 6 when Wilson went public and identified himself as
the retired diplomat who had reported negatively to the CIA in
2002 on alleged Iraq efforts to buy uranium yellowcake from
Niger.''\8\ He went on to state that he ``was curious why a
high-ranking official in President Bill Clinton's National
Security Council was given this assignment.''\9\ Mr. Novak
explained that ``[d]uring a long conversation with a senior
administration official, [he] asked why Wilson was assigned the
mission to Niger.'' [The Senior Administration official] said
Wilson had been sent by the CIA's counterproliferation section
at the suggestion of one of its employees, [Wilson's] wife. It
was an offhanded revelation from this official, who is no
partisan gunslinger. When [Novak] called another official for
confirmation, [that official] said: ``Oh, you know about
it.''\10\
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\8\Robert Novak, Editorial, Columnist Wasn't Pawn for Leak, Chi.
Sun-Times, Oct. 1, 2003, at 49.
\9\Id.
\10\Id.
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In late September, the Department of Justice opened an
investigation as to whether officials who revealed Ms. Plame's
identity violated Federal law that prohibits identifying covert
agents.\11\ On October 3, 2003, the White House Counsel sent a
notice to all White House employees to turn in copies of
documents for the ongoing probe into who leaked the name of a
CIA operative.\12\ That same day, the media reported that the
investigation had moved beyond the White House and CIA to
include the State and Defense Departments.\13\
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\11\Justice Dept. Probes White House Leak Charge, FOXNews.com
(Sept. 29, 2003), available at http://www.foxnews.com/story/
0,2933,98522,00.html (last viewed Jan. 29, 2004).
\12\White House Staff Put On Notice, CNN.com/Inside Politics (Oct.
3, 2003), available at http://www.cnn.com/2003/ALLPOLITICS/10/03/
leak.main/ (last viewed Jan. 29, 2004).
\13\Leak Probe Moves Beyond White House, CIA, FOXNews.com (Oct. 3,
2003), available at http://www.foxnews.com/story/0,2933,98930,00.html
(last viewed Jan. 29, 2004); Steve Turnham, Leak Probe Widens To
Include State, Defense Departments CNN.com/Inside Politics (Oct. 23,
2003), available at http://www.cnn.com/2003/ALLPOLITICS/10/02/
leak.main/ (last viewed Jan. 29, 2004).
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In late October, media accounts stated that ``[t]he FBI has
interviewed more than three dozen Bush administration
officials, including political adviser Karl Rove and press
secretary Scott McClellan, in its investigation into the leak
of an undercover CIA officer's identity.''\14\ The Associated
Press reported that ``[b]oxloads of documents have been
forwarded to the FBI team, including White House phone logs and
e-mails. More documents are being produced, as the contents of
individual items sometimes lead agents to request additional
materials, one official said.''\15\
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\14\Curt Anderson, Rove, McClellan Interviewed in CIA Leak Probe,
A.P. Newswires, Oct. 23, 2003.
\15\Id.
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Attorney General Ashcroft recused himself from the case in
December 2003,\16\ and Deputy Attorney General James Comey
appointed United States Attorney Patrick Fitzgerald to lead the
investigation soon thereafter.\17\ USA Today reported that Mr.
Comey gave Mr. Fitzgerald ``more independence than required
under Justice Department regulations. Fitzgerald will not have
to seek approval from Justice officials in Washington before
issuing subpoenas or granting immunity. U.S. attorneys must get
approval before taking such steps.''\18\
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\16\Toni Locy, Attorney General Recuses Himself from CIA Probe,
USATODAY.com (Dec. 30, 2003), available at http://www.usatoday.com/
news/washington/2003-12-30-cia-leak--x.htm (last visited Jan. 29,
2003). Attorney General Alberto Gonzales similarly recused himself from
this matter shortly after being sworn into office. See Mark Sherman,
Gonzales Recused From Probe, Char. Obs., February 12, 2005, at 12A.
\17\Id.
\18\Id.
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In late January, the press reported that a grand jury had
convened in Washington, D.C., to hear testimony in this
matter.\19\ Further confirmation that a grand jury is
investigating is found in a February 10, 2004 Washington Post
article which says that a ``Federal grand jury has questioned
one current and two former aides to President Bush, and
investigators have interviewed several others, in an effort to
discover who revealed the name of an undercover CIA officer to
a newspaper columnists, sources involved in the case said
yesterday.''\20\ It further states that: ``White House press
secretary Scott McClellan said yesterday that he talked to the
grand jury on Friday. Mary Matalin, former counselor to Vice
President Cheney, testified Jan. 23, the sources said. Adam
Levine, a former White House press official, also testified
Friday, the sources said.''\21\
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\19\John Dickerson & Viveca Novak, Grand Jury Hears Plame Case,
+Time.com, Jan. 22, 2004, available at http://www.time.com/time/nation/
article/0,8599,581456,00.html (last visited Jan. 29, 2004).
\20\Mike Allen & Susan Schmidt, Bush Aides Testify in Leak Probe,
W.Post, Feb. 10, 2004, at A01.
\21\Id.
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Press reports in the spring of 2005 indicated that Mr.
Fitzgerald completed the bulk of the preliminary investigation
by October 2004, except for testimony from two reporters
(Matthew Cooper of Time and Judith Miller of the New York
Times) who had challenged a court order requiring them to
provide testimony in the probe.\22\ The United States Court of
Appeals for the District of Columbia Circuit upheld the order
in April 2005.\23\ The reporters then appealed to the Supreme
Court, which declined to hear the case.\24\ Time, Inc. then
agreed to comply with the court order to deliver Mr. Cooper's
notes to investigators,\25\ and Cooper later testified before
the grand jury.\26\ Ms. Miller refused to testify, was held in
civil contempt, and has been ordered to be detained in a
Federal facility until she agrees to testify or until the
expiration of the grand jury.\27\ The grand jury investigation
apparently remains ongoing, and press reports have suggested
that Mr. Fitzgerald may be examining whether certain witnesses
may have committed perjury or obstructed justice.\28\
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\22\Mark Sherman, CIA Leak Probe Complete Since October, Except for
Reporters' Testimony, Prosecutor Says, Associated Press, April 7, 2005.
\23\In re Grand Jury Subpoena: Judith Miller, 397 F.3d 964 (D.C.
Cir. 2005), aff'd per curiam, 405 F.3d 17 (D.C. Cir. 2005), cert.
denied, 125 S.Ct. 2977 (2005).
\24\Miller v. United States, 125 S.Ct. 2977 (2005).
\25\Pat Milton, Time Magazine to Hand Over Reporter Notes,
Associated Press, June 30, 2005.
\26\Matthew Cooper, What I Told the Grand Jury, +Time, July 25,
2005, at 38.
\27\Richard Schmitt, Judge Orders Reporter Jailed, +L.A. Times,
July 7, 2005 at B01.
\28\David Johnston, et al, For Two Aides in Leak Case, Second Issue
Rises, +N.Y. Times, July 22, 2005, at A1.
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INVESTIGATION CONDUCTED THOROUGHLY AND PROFESSIONALLY
By all public accounts, United States Attorney Fitzgerald
has conducted this investigation with complete thoroughness and
professionalism. According to one United States Senator, Mr.
Fitzgerald is ``the straightest shooter I've ever known as a
prosecutor,'' someone who ``calls them as he sees them'' and
who ``if he believes the law has been broken, then I'll stand
by him. If he believes it has not, then I'll stand by him
still.''\29\ Another Senator has noted that Mr. Fitzgerald's
appointment has meant that the investigation would be pursued
``without fear or favor,'' and that the Senator ``has some
faith that we would get to the bottom of this.''\30\ In fact,
the Ranking Minority Member of this Committee wrote to the
Attorney General last year to request that Mr. Fitzgerald be
appointed to lead another investigation involving alleged
criminal wrongdoing by Pentagon officials in the handling of
classified information.\31\ According to the request, Mr.
Fitzgerald had ``undertaken a nonpartisan, aggressive and leak-
free investigation'' in this matter sufficient to justify his
appointment in the Pentagon investigation.\32\ Mr. Fitzgerald
has conducted his investigation aggressively and in a
nonpartisan manner. The Committee determines that he should
continue to do so unimpeded by H.Res. 420.
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\29\United States Senator Richard J. Durbin (D-IL), Press
Conference on Karl Rove and Valerie Plame, July 13, 2005.
\30\United States Senator Charles E. Schumer (D-NY), Press
Conference on Karl Rove and Valerie Plame, July 13, 2005.
\31\Letter from The Honorable John Conyers, Jr., Ranking Member,
Committee on the Judiciary, to Attorney General John Ashcroft (June 2,
2004) (requesting that the Attorney General appoint United States
Attorney Patrick Fitzgerald to lead the ongoing investigation of
allegations that Pentagon officials have engaged in certain criminal
wrongdoing), available at http://www.house.gov/judiciary--democrats/
fitzgeraldpentagonltr9304.pdf.
\32\Id.
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PRECEDENT FOR DEFERRING TO ONGOING INVESTIGATIONS
``The Federal grand jury enjoys sweeping authority''\33\
that allows investigators to subpoena witnesses and request the
same documents requested in H. Res. 420, including telephone
and electronic mail records, logs and calendars, personnel
records, and records of internal discussions. This Committee
has previously reported a resolution of inquiry adversely to
avoid jeopardizing a grand jury investigation.
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\33\Charles Doyle, Congressional Research Service Report for
Congress: Federal Grand Juries: the Law in a Nutshell 1 (Feb. 5, 2002).
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In 1980, for example, H. Res. 571 directed the Attorney
General to furnish the House with ``all evidence compiled by
the Department of Justice and the Federal Bureau of
Investigation against Members of Congress in connection with
the Abscam investigation,'' which was a Justice Department
undercover operation that led to charges of criminal conduct
against certain Members of Congress. The resolution also asked
for ``the total amount of Federal moneys expended in connection
with the Abscam probe.'' [126 Cong. Rec. 4071 (1980).] The
House Judiciary Committee reported the resolution adversely.
[H. Rept. No. 96-778, 96th Cong., 2d Sess. (1980).] Committee
opposition to the resolution was unanimous. [126 Cong. Rec.
4073 (statement by Rep. McClory).] The Justice Department
``vigorously oppose[d]'' the resolution. [H. Rept. No. 96-778,
at 2 (letter to Assistant Attorney General Philip B. Heymann).]
The objections raised by the department, with which the
Committee agreed, centered on the concern that disclosure of
evidence to the House would jeopardize the ability of the
department to successfully conduct grand jury investigations
and to prosecute any indictments, and that the release of
unsifted and unevaluated evidence ``would injure the
reputations of innocent people who may be involved in no
ethical or legal impropriety.'' [id.]\34\
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\34\Louis Fisher, Congressional Research Service Report for
Congress: House Resolutions of Inquiry 14-15 (May 12, 2003).
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As previously noted, this Committee also reported adversely
H.Res. 499 in the 108th Congress, which requested substantially
the same information from the Attorney General as H.Res. 420,
because it would compete with the ongoing grand jury
investigation.
This Committee has also adversely reported a resolution of
inquiry because of other types of competing investigations. For
instance, on July 17, 2003, this Committee adversely reported
H. Res. 287, a resolution of inquiry, due to an ongoing
competing investigation of the Inspector General of the
Department of Justice. That resolution of inquiry directed the
Attorney General to transmit all physical and electronic
records and documents in his possession related to any use of
Federal agency resources in any task or action involving or
relating to Members of the Texas Legislature in the period
beginning May 11, 2003, and ending May 16, 2003, except
information the disclosure of which would harm the national
security interests of the United States. The Committee's report
stated:
According to a May 12, 2003, press release issued by
the Texas Department of Public Safety, the public was
asked for assistance in locating 53 Texas legislators
who had ``disappeared.'' According to the release,
under the Texas Constitution, the majority of members
present in session in the Texas State House can vote to
compel the presence of enough members to make a quorum.
Members of the House did so and directed the Sergeant-
at-Arms of the House and the Department of Public
Safety to locate the absent members and bring them back
to the State capital.
On May 27, 2003, Sen. Joseph Lieberman of Connecticut
sent a letter to the Office of the Inspector General of
the U.S. Department of Justice asking for ``a full
investigation into this matter.'' After receipt of the
letter from the Senator, in a statement to the press,
the Office of the Inspector General disclosed that on
June 4, 2003, it began investigating what, if any,
Department of Justice resources were expended in
connection with this matter. As of the filing of this
report, that investigation is still ongoing.
The Committee believes that an investigation by the
Inspector General of the Department of Justice is the
more appropriate avenue. . . .\35\
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\35\H.R. Rep. No. 108-215 at 3 (2003).
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SENSITIVE DOCUMENTS AND INFORMATION REQUESTED
The second reason the Committee reports this resolution
adversely is because it requests sensitive documents and
information from the Department of Justice without any
demonstrated need. Among other items, H.Res. 420 seeks
``personnel records, and records of internal discussions''
relating to the disclosure of the identity of Ms. Plame. Such
documents could reveal classified information regarding Ms.
Plame's work at the Central Intelligence Agency. The documents
also could contain private personnel and employment information
about individuals, including Ms. Plame, typically protected
from public disclosure. Finally, the resolution specifically
requests documents and information reflecting any internal
Department of Justice discussions of this matter, which, if
such deliberative information exists, may be privileged.
Although the Committee reserves the right to request similar
information from the Department of Justice or other sources in
the future, in the absence of a demonstrated compelling need,
it will not do so here.
CONCLUSION
The Committee continues to believe that the current grand
jury investigation is the more appropriate avenue for
determining the facts of this case and any criminal wrongdoing.
Because this resolution of inquiry competes with that
investigation, because there have been no allegations that the
investigation has been anything other than nonpartisan,
aggressive and leak-free, and because the resolution requests
sensitive documents and information without a compelling need,
the resolution is reported adversely.
Hearings
No hearings were held in the Committee on the Judiciary on
H. Res. 420.
Committee Consideration
On September 14, 2005, the Committee met in open session
and adversely reported the resolution H. Res. 420 without an
amendment by a rollcall vote of 15 yeas to 11 nays, a quorum
being present.
Vote of the Committee
In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee sets forth the
following rollcall vote that occurred during the Committee's
consideration of H. Res. 420:
Final Passage. The motion to report the resolution, H. Res.
420, adversely was agreed to by a rollcall vote of 15 yeas to
11 nays.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................
Mr. Chabot......................................................
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon......................................................
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt.................................................... X
Mr. Wexler......................................................
Mr. Weiner......................................................
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz...........................................
Mr. Sensenbrenner, Chairman..................................... X
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Total....................................................... 15 11
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Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of Rule XIII of the Rules
of the House of Representatives, the Committee estimates the
costs of implementing the resolution would be minimal. The
Congressional Budget Office did not provide a cost estimate for
the resolution.
Performance Goals and Objectives
H. Res. 420 does not authorize funding. Therefore, clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives is inapplicable.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds that the rule
does not apply because H. Res. 420 is not a bill or joint
resolution that may be enacted into law.
Section-by-Section Analysis and Discussion
H. Res. 420 directs the Attorney General to transmit to the
House of Representatives not later than the date that is 14
days after the date of the adoption of the resolution, all
documents, including telephone and electronic mail records,
logs and calendars, personnel records, and records of internal
discussions in the possession of the Attorney General relating
to the disclosure of the identity of Ms. Valerie Plame as an
employee of the Central Intelligence Agency during the period
beginning on May 6, 2003 and ending on July 31, 2003.
Changes in Existing Law Made by the Resolution,
as Reported
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, the Committee notes that H. Res.
420 makes no changes to existing law.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, SEPTEMBER 14, 2005
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present.
Pursuant to the order, we will now call up House Resolution
420, directing the Attorney General to transmit to the House of
Representatives no later than 14 days after the date of
adoption of this resolution documents in the possession of the
Attorney General relating to the disclosure of the identity and
employment of Ms. Valerie Plame for purposes of markup and move
that it be reported adversely to the House of Representatives.
Without objection, the resolution will be considered as
read and open for amendment at any point, and the Chair
recognizes himself for 5 minutes to explain the resolution.
[The resolution, H. Res. 420, follows:]
Chairman Sensenbrenner. This morning the Committee
considers House Resolution 420, a resolution of inquiry
relating to Ms. Valerie Plame.
Under clause 7 of rule 13 of the House rules, we are
required to report this resolution within 14 legislative days
after its introduction or a privileged motion to discharge the
Committee from consideration would be in order on the House
floor.
This resolution is substantially similar to House
Resolution 499 from the previous Congress, which the Committee
considered and reported adversely on February 27, 2004.
Like its predecessor H.Res. 420 again requests that the
Attorney General transmit to the House all documents in his
possession, including personnel records and records of internal
deliberations relating to the disclosure of the identity of Ms.
Plame as an employee of the Central Intelligence Agency during
the period May 6 through July 31st 2003.
Again, today, I have moved that the Committee report the
resolution adversely for the same reason I did the last time
the Committee took up this issue. The investigation is still
ongoing and the transmittal of evidence to the House would
likely jeopardize the ability of the Justice Department to
conduct and complete its investigation.
As has been made abundantly clear in published reports and
statements of the Department of Justice, there is and has been
for many months an ongoing active grand jury investigation in
this matter.
According to recent press accounts, the investigation is
moving toward completion and the Committee has not received
credible allegations that the special counsel, or the grand
jury have in any way been derelict in their duties. We should
let the special counsel and the grand jury complete their work
without interference, just as we have done since last year.
Four Committees, including Judiciary, Armed Services,
International Relations, and the Permanent Select Committee on
Intelligence, have reviewed a similar resolution during the
previous Congress and rejected it for substantially the same
reason. Nothing has occurred in the last year which supports
changing that conclusion.
I urge the Members once again to support the motion to
report adversely. I yield back the balance of my time, and
recognize the gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman, Members of the
Committee.
We are gathered here today because this present
administration refuses to police itself in the midst of ethical
and criminal misconduct.
We are here because this Congress continues to turn a blind
eye to the wrongful and wrongdoing of this Administration.
Now, over 2 years ago, we've been investigating. In July
2003, a Bush administration official committed one of the most
serious and treacherous breaches of national security in recent
American history by disclosing to the press the identity of an
undercover Central Intelligence Agency operative.
And even worse, it likely was done for political reasons to
retaliate against the operative's husband for successfully
challenging the President's claim that Iraq had sought nuclear
material in Africa.
And so we are confronted with this resolution of inquiry
filed by the gentleman from New Jersey, Mr. Holt, in which we
examine it and it is very simple. The purpose of the resolution
is to get to the bottom of what happened and why the Justice
Department is still slow walking this investigation.
We know that, despite urgent pleas from the Central
Intelligence Agency for a criminal investigation into the
leaker, the Department of Justice and the White House dragged
their feet. The Department waited 3 days before notifying the
White House of the breach and subsequent investigation.
The White House then waited 11 hours more before telling
the staff to preserve evidence. Despite these serious
irregularities early last year, my colleagues on the other side
of the aisle rejected a similar measure. They apparently did
not believe that the Judiciary Committee, whose job is to
police the Justice Department, should look into a national
security breach, and they delayed the investigation.
There have been significant developments in this case,
though, since the last time that I believe should lead them to
support it this time.
Things have changed. More evidence has come to light.
First, for the past 2 years, the White House has denied that
any of its top officials, specifically Deputy White House Chief
of Staff, Karl Rove; Vice Presidential Chief of Staff, Lewis
Libby; or National Security Council official, Elliot Abrams,
were involved in any way in the leak of Mrs. Wilson's covert
identity. We now know that both Rove and Libby spoke to
reporters about Mrs. Wilson's identity. Public information.
Second, when the Justice Department first started
investigating, the President made it clear that he'd fire
anyone involved in the leak. But when it became obvious that
his top political advisor, Mr. Rove, was implicated, he changed
his ethical standards. This past July the President said he
would fire someone only if that person committed a crime,
raising the bar for firing someone like Mr. Rove.
Further, we now know that Attorney General Ashcroft
insisted on being briefed on Department reviews of Mr. Rove
that were conducted in connection with the leak, despite his
longstanding ties to Mr. Rove.
What were they? Well, Mr. Rove had paid--Mr. Ashcroft had
paid Mr. Rove nearly $750,000 for work on several campaigns.
And Mr. Ashcroft eventually recused himself, demonstrating that
there were conflicts----
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Conyers. I ask for one additional minute, Mr. Chairman.
Chairman Sensenbrenner. Without objection. The gentleman is
recognized.
Mr. Conyers. Mr. Chairman, I'll be brief. It's time for
Congress to exercise its duty to oversee the Executive Branch.
I plead with my colleagues this morning. Although some will
claim that we shouldn't look into a matter that's being
investigated by the Justice Department, but that has never been
our standard. This year alone we've held hearings on
allegations of numerous claims of criminal misconduct. For
example, in the United Nations Oil-for-Food Program, the same
misconduct was being reviewed by the U.S. Attorney for the
Southern District of New York. Congress has been looking into
the Jack Abramoff scandal at the same time as the Justice
Department.
So let's not forget the endless hearings in this Committee.
Chairman Sensenbrenner. The time of the gentleman has once
again expired.
Mr. Conyers. I ask unanimous consent to put my statement in
the record.
Chairman Sensenbrenner. Without objection. So ordered.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
We are here because the Bush administration refuses to police
itself in the midst of criminal and ethical misconduct. We are here
because this Congress continues to turn a blind eye to the wrongdoing
of this administration. In July 2003, over two years ago, a Bush
administration official committed one of the most serious breaches of
national security in recent history by disclosing to the press the
identity of an undercover Central Intelligence Agency operative. Even
worse, it likely was done for political reasons, to retaliate against
the operative's husband for successfully challenging the President's
claim that Iraq had sought nuclear material in Africa.
The purpose of this resolution is to get to the bottom of what
happened and why the Justice Department slow-walked the investigation
at the beginning. We know that, despite urgent pleas from the CIA for a
criminal investigation into the leaker, the Justice Department and
White House dragged their feet. The Department waited three days before
notifying the White House of the breach and subsequent investigation.
The White House, then waited eleven hours before telling staff to
preserve evidence.
Despite these serious irregularities, early last year, my
colleagues on the other side of the aisle rejected this same measure.
They apparently did not believe that the Judiciary Committee, whose job
it is to police the Justice Department, should look into a national
security breach and delayed investigation.
There have been significant developments in the case since that
time that I believe should lead them to support it this time. First,
for the past two years, the White House has denied that any of its top
officials, namely Deputy White House Chief of Staff Karl Rove, vice
presidential Chief of Staff I. Lewis Libby, or National Security
Council official Elliot Abrams, were involved in any way in the leak of
Mrs. Wilson's covert identity. We now know that both Karl Rove and
Lewis Libby spoke to reporters about Mrs. Wilson's identity.
Second, when the Justice Department first started investigating,
the President made it clear that he would fire anyone involved in the
leak. But when it became clear that his top political advisor, Mr.
Rove, was implicated, he changed his ethical standards. This past July,
the President said he would fire someone only if that person
``committed a crime,'' raising the bar for firing someone like Mr.
Rove.
Further, we now know that then-Attorney General John Ashcroft
insisted on being briefed on Department interviews of Mr. Rove that
were conducted in connection with the leak. He did so despite his long-
standing ties to Mr. Rove; Mr. Ashcroft had paid Mr. Rove almost
$750,000 for work on several campaigns. That Mr. Ashcroft eventually
recused himself demonstrates there were conflicts of interest with his
continued involvement.
It is time for Congress to exercise its duty to oversee the
Executive Branch. Some will claim that we should not look into a matter
that is being investigated by the Justice Department. That is not and
has never been our standard. This year alone, Congress has held
hearings on allegations of criminal misconduct in the United Nation's
Oil-for-Food Program; the same misconduct being reviewed by the U.S.
Attorney for the Southern District of New York. Congress also has been
looking into the Jack Abramoff scandal at the same time as the Justice
Department.
Let us not forget the endless hearings in this Committee and others
on alleged Clinton-Gore campaign finance violations, the Whitewater
claims, and Clinton White House Travel Office firings. These were
matters all under Justice Department review at the time of our
hearings.
Finally, I must remind my colleagues of the numerous House and
Senate hearings on Watergate that were simultaneous with the Justice
Department's own investigation.
I urge my colleagues vote ``Yes'' on this resolution.
Mr. Conyers. And I thank the Chairman.
Chairman Sensenbrenner. Are there amendments? Are there
amendments?
If there are no amendments, the question occurs----
Mr. Delahunt. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Delahunt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Delahunt. Mr. Chairman, I can tell by the numbers here
that this--that the proponent of the measure before us will not
prevail.
But I genuinely believe that we're making a mistake. I
think we're making an error, and I say that not just as a
Committee, but as an institution and by the institution I mean
the institution that was created by article I of the
Constitution.
Again and again and again, there are examples of Congress
either refusing or hesitating to exercise its oversight
responsibilities. The suggestion has been made that somehow if
we should secure these documents that we would be interfering
with a criminal investigation. That's far from the truth. It
just is simply inaccurate. Can problems emerge when there are
simultaneous investigations? Yes, they can. The best evidence
of that, of course, was the investigation conducted by Congress
better than a decade ago involving Colonel Oliver North. But
that's when the use of immunity was implicated. That's not the
case here. We know that this is a political decision, because
there is potential embarrassment to the Administration.
That will always be the case, however, when a Committee of
Congress exercises oversight. That's just the way our system
works, and it's not working now. It just isn't.
Mr. Conyers alluded to two instances where there have been
investigations by congressional Committees and by Department of
Justice, whether independent prosecutors or Department of
Justice attorneys.
In 2005, the Government Reform Subcommittee on the Federal
Workforce investigated allegations that scientists falsified
information regarding the Yucca Mountain nuclear repository.
The Justice Department is and was investigating the same matter
simultaneously.
In 2000, 2001, the House Government Reform Committee
investigated the Boston FBI field office use of confidential
informants.
There was a Department of Justice Task Force investigating
that situation simultaneously. In fact, a former--an FBI
agent--or a former FBI agent was indicted, prosecuted, and
convicted.
The record is replete, replete, with simultaneous
investigations. I'm concerned about the perception of the
American people that Congress is abrogating its oversight
responsibilities. And I say this to my friends and colleagues
on the other side of the aisle.
If we continue in this direction, the American people I
dare say will reach a conclusion that these--that this reality
is a result of a single-party state, where there are no checks
and balances. Here you have a situation where the House
majority is Republican. The Senate majority is Republican. And
Republicans control the White House. And we are failing in our
obligation as an independent branch of Government by not
pursuing these matters.
And we will be held accountable sooner or later by the
American people as an institution. This is about the role of
Congress. Let's put aside the political consequences here, and
have the courage to support the resolution.
Chairman Sensenbrenner. The gentleman's time has expired.
Without objection, all Members may place opening statements in
the record. Are there amendments?
There are no amendments. A reporting quorum is present. The
question occurs on the motion to report House Resolution 420
adversely. All those in favor will say aye.
Opposed, no?
The ayes appear to have----
Mr. Conyers. Mr. Chairman, I'd like a record vote, please.
Chairman Sensenbrenner. A record vote will be ordered.
Those in favor of reporting the resolution adversely will, as
your names are called, answer aye; those opposed, no. And the
clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly.
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Cannon?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
[No response.]
The Clerk. Mr. Hostettler?
[No response.]
The Clerk. Mr. Green?
Mr. Green. Aye
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes.
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye. Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye. Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye. Mr. Gohmert?
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no. Mr. Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
[No response.]
The Clerk. Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt.
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no. Mr. Wexler?
[No response.]
The Clerk. Mr. Weiner?
[No response.]
The Clerk. Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no. Ms. Sanchez?
[No response.]
The Clerk. Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no. Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members who wish to cast or change
their votes. The gentleman from Indiana, Mr. Hostettler.
Mr. Hostettler. Yes.
The Clerk. Mr. Hostettler, aye.
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no.
Chairman Sensenbrenner. The other gentlewoman from
California, Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Meehan.
Mr. Meehan. No.
The Clerk. Mr. Meehan, no.
Chairman Sensenbrenner. Further Members in the chamber who
wish to cast of change their votes?
If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 15 ayes and 11 noes.
Chairman Sensenbrenner. And the motion to report the
resolution adversely is agreed to. Without objection, the staff
is directed to make any technical and conforming changes and
all Members will be given 2 days as provided by the House rules
in which to submit additional dissenting, supplemental, or
minority views.
Relative to the remainder of today's schedule, Ranking
Member Conyers has expressed his opposition toward bringing up
for consideration the three Katrina-related measures that were
scheduled for today's markup.
Judiciary Committee rule 2(d) provides that the Chairman,
with such notice as is practicable, the authority to call and
convene as he considers necessary additional meetings of the
Committee for the consideration of any bill or resolution
pending before the Committee or for the conduct of other
Committee business.
While this Committee rule permits us to consider the three
Katrina-related bills before the Committee this morning, we
will not be taking up these three Katrina-related measures at
today's markup in response to Mr. Conyers' objection.
The business before the Committee having been concluded.
Without objection, the Committee stands adjourned.
[Whereupon, at 10:20 a.m., the Committee was adjourned.]
Dissenting Views
We strongly dissent from the Majority's decision to report
unfavorably H. Res. 420, a resolution of inquiry directed to
the Attorney General regarding the leak of the identity of a
covert operative. By doing so, the Majority has abdicated the
Committee's responsibility to oversee the Justice Department
and to ensure the faithful execution of the laws.
Over 2 years ago, in July 2003, a Bush administration
official committed one of the most serious breaches of national
security in recent history by disclosing to the press the
identity of an undercover Central Intelligence Agency
operative. Even worse, it likely was done for political
reasons, to retaliate against the operative's husband for
successfully challenging the President's claim that Iraq had
sought nuclear material in Africa.
The purpose of this resolution was getting to the bottom of
what happened due to the total absence of a good faith effort
at an investigation by the administration. We believe that the
Justice Department and White House slow-walked the
investigation in its beginning stages. We also believe that,
despite numerous White House denials early on, senior White
House officials were involved in the leak. Furthermore, the
President first promised that he would fire anyone involved in
the leak but then changed the standard when his top political
advisor was implicated. Finally, then-Attorney General John
Ashcroft insisted on being briefed on Department interviews
conducted in connection with the leak, notwithstanding his ties
to individuals who were questioned.
This resolution of inquiry was a necessary step for getting
to the truth. From Watergate to Whitewater, Congress has
exercised its constitutional authority to hold the Executive
accountable for its actions. A breach of national security by a
Republican White House demands no less and, in fact, demands
even more.
I. BACKGROUND
A. LThe Leak
In February 2002, the CIA sent former ambassador Joseph
Wilson, IV, to Niger on behalf of the Bush administration to
investigate claims that Iraq was attempting to buy yellow cake
uranium in that country.\1\ When Ambassador Wilson returned, he
informed the CIA and the State Department that the claims were
unsubstantiated.\2\
---------------------------------------------------------------------------
\1\Mike Allen & Dana Priest, Bush Administration is Focus of
Inquiry, Wash. Post, Sept. 28, 2003, at A1. Ambassador Wilson was a
diplomat for twenty-two years and served as President Clinton's
Director of African affairs on the National Security Council.
\2\Id.
---------------------------------------------------------------------------
Nearly a year later, during his 2003 State of the Union
address, the President stated that Iraq tried to purchase
uranium in Africa: ``The British government has learned that
Saddam Hussein recently sought significant quantities of
uranium from Africa.''\3\ In response, Ambassador Wilson
published an op-ed in July 2003 publicizing his findings, or
lack thereof.\4\ Approximately 2 weeks later, Robert Novak used
his syndicated column to defend the administration's invasion
of Iraq and to call the Ambassador's credibility into
question.\5\ Painting the Ambassador's assignment to Niger as a
favor to his wife, Mr. Novak stated, ``Wilson never worked for
the CIA, but his wife, Valerie Plame, is an Agency operative on
weapons of mass destruction. Two senior administration
officials told me Wilson's wife suggested sending him to Niger
to investigate.''\6\ It soon was revealed that those
administration officials called at least six members of the
press to disseminate Mrs. Wilson's undercover identity. It is
widely suspected that the motivation was revenge for publicly
discrediting the President's primary justification for invading
Iraq.
---------------------------------------------------------------------------
\3\The President, State of the Union (Jan. 28, 2003).
\4\Joseph C. Wilson, IV, What I didn't Find in Africa, N.Y. Times,
July 6, 2003.
\5\Robert Novak, The Mission to Niger, Chicago Sun-Times, July 14,
2003, at 31.
\6\Id.
---------------------------------------------------------------------------
B. LPotential Violations of Federal Statutes and Regulations
Disclosing the identity of a covert U.S. agent can be a
violation of numerous Federal criminal statutes and
administrative regulations. Such violations carry with them
penalties including imprisonment, fines, termination of
employment, and revocation of security clearance. The following
is a list and description of such statutes and regulations.
1. LRevealing the identity of certain undercover
intelligence officers, agents, informants, and
sources
Subsection 421(a) of title 50, United States Code, makes it
unlawful for someone, having or having had access to classified
information that identifies a covert agent, to intentionally
disclose such information to an unauthorized recipient knowing
the disclosure identifies the agent and knowing that the
government is taking affirmative measures to conceal the
agent's relationship to the United States. The penalty includes
a fine, imprisonment for not more than 10 years, or both.
Subsection 421(b) makes it unlawful for someone who, as a
result of having access to classified information, learns the
identity of a covert agent and intentionally discloses any
information disclosing that identity to any person not
authorized to receive it. The defendant must know that the
information disclosed identifies the agent and that the
government is taking steps to conceal the identity. The penalty
includes a fine, imprisonment for not more than 5 years, or
both.
Subsection 421(c) criminalizes the disclosure of any
information that identifies a person as a covert agent as part
of a pattern intended to identify and expose such agents and
with reason to believe such activities would impair the
nation's foreign intelligence activities. Such disclosure must
be to a person not authorized to receive it and be done knowing
that the disclosure identifies an agent and the United States
is taking steps to conceal it. The penalty includes a fine,
imprisonment for not more than 3 years, or both.
2. LConveying public money, property or records
Section 641 of title 18, United States Code, makes it a
criminal offense to convey anything of value that belongs to
the United States. More specifically, it imposes criminal
penalties on anyone who ``embezzles, steals, purloins, or
knowingly converts to his use or the use of another, or without
authority, sells, conveys, or disposes of any record, voucher,
money, or thing of value of the United States or of any
department or agency thereof.'' The penalty for a violation of
this statute is a fine, imprisonment for not more than years,
or both. The Bush administration already has used this statute
to successfully prosecute a government official who leaked
government information.\7\
---------------------------------------------------------------------------
\7\See John Dean, It Doesn't Look Good for Karl Rove, CNN.com, July
15, 2005. Jonathan Randel, a former Drug Enforcement Administration
employee, leaked to the media the fact that the name Lord Michael
Ashcroft of Great Britain appeared in the DEA's money laundering files.
In 2002, the Justice Department obtained an indictment against Mr.
Randel for violating section 641. Mr. Randel ultimately pled guilty and
was sentenced to 1 year in prison and 3 years of probation. While he
was sentencing Mr. Randel, U.S. District Judge Richard Story stated,
``Anything that would affect the security of officers and of the
operations of the agency would be of tremendous concern, I think, to
any law-abiding citizen in this country.''
---------------------------------------------------------------------------
3. LGathering, transmitting, or losing defense information
Section 793(d) of title 18, United States Code, prohibits
the unauthorized transmission of any information vital to
national defense. It makes it a crime for anyone who has lawful
possession of ``information relating to the national defense
which information the possessor has reason to believe could be
used to the injury of the United States or to the advantage of
any foreign nation, [to] willfully communicate, deliver,
transmit . . . to any person not entitled to receive it.'' The
penalty for a violation of this law includes a fine,
imprisonment for not more than 10 years, or both.
4. LGathering or delivering defense information to aid a
foreign government
Subsection 794(a) of title 18, United States Code,
prohibits the transmission or delivery of any document or
information related to national defense to any foreign
government or foreign agent. Such conduct is illegal if even
the transmission is direct or indirect. The penalty includes
death or imprisonment for any term of years.
5. LLeaking diplomatic codes and correspondence
Section 952 of title 18, United States Code, imposes
criminal penalties on ``whoever, by virtue of his employment by
the United States, obtains from another or has or has had
custody of or access to, any official diplomatic code or any
matter prepared in any such code . . . and without
authorization or competent authority, willfully publishes or
furnishes to another any such code or matter.'' The penalty
includes a fine, imprisonment for not more than 10 years, or
both.
6. LCommunication of classified information by government
officer or employee
Subsection 783(a) of title 50, United States Code,
prohibits any government officer or employee, without
authorization of the President or head of the employing
department, from communicating in any manner to any other
person whom the officer or employee knows or has reason to
believe is an agent or representative of a foreign government
any information classified by the President or head of an
agency that affects national security. The officer or employee
must know or have reason to know that the information was
classified. The penalty includes a fine of not more than
$10,000, imprisonment for not more than 10 years, or both. In
addition, the person would be ineligible to hold any office
created by the Constitution or laws of the United States.
7. LExecutive Order 12958
Presidential Executive Order 12958 prescribes a uniform
system for classifying, declassifying, and protecting
information related to the national defense. It requires each
agency head to implement controls over the distribution of
classified information. Section 5.5 provides that, if the
Director of the Information Security Oversight Office finds
that a violation of the Order has taken place, the Director
must report to the appropriate agency head so corrective action
may occur. Further, sanctions for such violations include:
``reprimand, suspension without pay, removal, termination of
classification authority, loss or denial of access to
classified information, or other sanctions in accordance with
applicable law and agency regulation.''
Finally, section 5.5 of the Order provides that:
(d) The agency head, senior agency official, or other
supervisory official shall, at a minimum, promptly
remove the classification authority of any individual
who demonstrates reckless disregard or a pattern of
error in applying the classification standards of this
order.
(e) The agency head or senior official shall: (1) take
appropriate and prompt corrective action when a
violation or infraction . . . occurs; and (2) notify
the Director of the Information Security Oversight
Office when a violation . . . occurs.
In effect, any supervisor of an individual with access to
classified information must sanction such individual if he
illegally discloses the information.
8. LClassified Information Nondisclosure Agreement (SF-312)
Prior to gaining access to classified information, a
government official or employee must sign a Classified
Information Nondisclosure Agreement (SF-312). The Agreement
states that breaches (i.e., disclosure of classified
information) could result in termination of security clearances
and removal from employment.
II. THE ADMINISTRATION HAS FAILED TO COOPERATE WITH
THE INVESTIGATION
The Executive Branch's handling of the leak has been rife
with political and procedural irregularities. Initially, the
Justice Department failed to open an investigation into the
leak. Immediately after Mr. Novak's piece was published, the
CIA contacted the Justice Department four times in the span of
3 weeks to (1) notify it that the disclosure of Wilson's name
and covert status probably violated the law and (2) to request
a criminal investigation.\8\ On September 29, 2003, over a
month after the first CIA notification, the Department finally
confirmed that the FBI would investigate the leak.
---------------------------------------------------------------------------
\8\Letter from Stanley M. Moskowitz, Director of Congressional
Affairs, CIA, to the Honorable John Conyers, Jr., Ranking Member, U.S.
House Comm. on the Judiciary (Jan. 30, 2004).
---------------------------------------------------------------------------
Unfortunately, the Department's handling of the case still
was subject to delays and conflicts of interest. For example,
the Department waited 3 days before notifying the White House
of the investigation, and the White House in turn waited eleven
hours before asking all White House staff to preserve any
evidence.\9\ What evidence that employees have turned over has
been screened for ``relevance'' by White House counsel, perhaps
filtering out critical information.\10\ With respect to the
pace of the investigation, FBI sources were quoted as saying
that the Department was ``going a bit slower on this one
because it is so high-profile.''\11\ For many, all these
factors have worked in tandem to create at the very least the
appearance of impropriety warranting some sort of independent
investigation.
---------------------------------------------------------------------------
\9\Investigating Leaks, N.Y. Times, Oct. 2, 2003, at A30
(editorial).
\10\Richard Stevenson & Eric Lichtblau, Leaker May Remain Elusive,
Bush Suggests, N.Y. Times, Oct. 8, 2003, at A28.
\11\Richard Stevenson & Eric Lichtblau, Attorney General is Closely
Linked to Inquiry Figures, N.Y. Times, Oct. 2, 2003, at A1.
---------------------------------------------------------------------------
Also, law enforcement officials close to the investigation
have indicated that then-Attorney General Ashcroft was
personally and privately briefed on FBI interviews of Karl
Rove, then a senior advisor to the President and now the Deputy
White House Chief of Staff.\12\ This disclosure is troubling
because, at the time of these events, Mr. Ashcroft had personal
and political connections to Mr. Rove. Mr. Rove was an adviser
to Mr. Ashcroft during the latter's political campaigns,
earning almost $750,000 for his services. Mr. Rove also had
urged the President to nominate Mr. Ashcroft to be Attorney
General after Mr. Ashcroft lost his Senate re-election
campaign. The fact that Mr. Ashcroft eventually recused himself
demonstrates that there in fact were conflicts of interest with
his continued involvement in the investigation. The fact that
he did not recuse himself early on and was briefed on the
matter may well have violated ethical rules and guidelines.\13\
---------------------------------------------------------------------------
\12\Murray Waas, What Now, Karl? Rove and Ashcroft Face new
Allegations in the Valerie Plame Affair, Village Voice, Aug. 13, 2005.
\13\Federal law requires the Attorney General to promulgate rules
mandating the disqualification of any officer or employee of the
Justice Department ``from participation in a particular investigation
or prosecution if such participation may result in a personal,
financial, or political conflict of interest, or the appearance
thereof.'' 28 U.S.C. Sec. 528 (emphasis added). Pursuant to this
requirement, the Department has promulgated regulations stating that:
no employee shall participate in a criminal investigation
or prosecution if he has a personal or political
relationship with: (1) any person . . . substantially
involved in the conduct that is the subject of the
investigation or prosecution; or (2) any person . . . which
he knows or has a specific and substantial interest that
would be affected by the outcome of the investigation or
---------------------------------------------------------------------------
prosecution. 28 C.F.R. Sec. 45.2.
To reiterate the importance of preventing conflicts of interest, the
Justice Department has further explicated the guidelines in its U.S.
Attorneys' Manual. The Attorneys' Manual provides that:
When United States Attorneys, or their offices, become
aware of an issue that could require a recusal in a
criminal or civil matter or case as a result of a personal
interest or professional relationship with parties involved
in the matter, they must contact General Counsel's Office
(GCO), EOUSA. The requirement of recusal does not arise in
every instance, but only where a conflict of interest
exists or there is an appearance of a conflict of interest
or loss of impartiality. U.S. Dep't of Justice, U.S.
Attorneys' Manual Sec. 3-02.170.
Furthermore, rules of professional conduct bar lawyers from matters
in which they have conflicts of interest. Because Department attorneys
must follow the ethical rules of the bar in which they practice, 28
U.S.C. Sec. 530B, as an official at Main Justice Mr. Ashcroft would
have been obligated to comply with the District of Columbia Bar's Rules
of Professional Conduct. These Rules state that, without consent, a
lawyer shall not represent a client if ``the lawyer's professional
judgment on behalf of the client will be or reasonably may be adversely
affected by the lawyer's responsibilities to or interests in a third
party or the lawyer's own financial, business, property, or personal
interests.'' District of Columbia Bar, Rules of Professional Conduct
1.7(b)(4). The American Bar Association mimics this guideline in Rule
1.7 of its own Model Rules of Professional Conduct. See American Bar
Association, Model Rules of Professional Conduct 1.7(a)(2).
On December 30, 2003, the Attorney General finally recused
himself from the investigation.\14\ Then-Deputy Attorney
General James Comey became the acting Attorney General for the
matter and simultaneously appointed Patrick Fitzgerald, the
U.S. Attorney for the Northern District of Illinois, as a
special counsel to lead the investigation.\15\ Despite the
appointment of a special counsel and the empaneling of a grand
jury, the investigation has been thwarted and obstructed in
numerous ways despite administration promises of full
cooperation.\16\
---------------------------------------------------------------------------
\14\U.S. Dep't of Justice, Deputy Attorney General Comey Holds
Justice Department News Conference (Dec. 30, 2003) (statement of the
Deputy Attorney General).
\15\Id. The grand jury reportedly expires on October 28, 2005, the
same date on which Mr. Fitzgerald's 4-year appointment as U.S. Attorney
expires.
\16\President Bush initially promised the full cooperation of the
White House: ``if there is a leak out of my administration, I want to
know who it is.. . . I welcome the investigation.'' The President,
President Discusses Job Creation with Business Leaders (Sept. 30, 2003)
(transcript available at http://www.whitehouse.gov/news/releases/2003/
09/20030930-9.html).
---------------------------------------------------------------------------
For instance, in order for a journalist to reveal his or
her source before a grand jury, he or she must receive a waiver
from the source authorizing such disclosure. Absent such a
waiver, the journalist would protect the First Amendment right
of the press and the confidentiality agreement with the source
by refusing to testify. In an attempt to get around these
obstacles, prosecutors often force potential sources to sign
general waivers, waivers that permit any journalist with whom
they spoke to testify.\17\ To ensure the voluntariness of the
waiver, however, journalists recognize only personal waivers
that are directed to specific journalists.\18\ While some
administration officials have granted personal waivers in the
leak investigation, not all have done so, thus impeding the
investigation.
---------------------------------------------------------------------------
\17\See Howard Kurtz, Lawyers Secured Rove's Waiver; Executives
Hear Reporters' Anger, Wash. Post, July 16, 2005, at A6; Adam Liptak,
Reporter Jailed after Refusing to Name Source, N.Y. Times, July 5,
2005, at A1.
\18\See Kurtz, supra note 17; Liptak, supra note 17.
---------------------------------------------------------------------------
It has been reported that I. Lewis ``Scooter'' Libby, Chief
of Staff to the Vice President, met with New York Times
reporter Judith Miller on July 8, 2003, and discussed Mrs.
Wilson.\19\ Because this meeting took place 6 days before
columnist Robert Novak reported the covert information, Mr.
Fitzgerald reportedly determined that it is relevant to the on-
going probe.\20\ However, according to the same report, his
investigation has been impeded by Mr. Libby's failure to
produce a personal waiver to Ms. Miller.\21\ Indeed, in a
filing with the court overseeing the case, Mr. Fitzgerald
stated he could not close the matter because of Ms. Miller's
inability to testify about conversations with senior government
officials.\22\ In response to similar concerns expressed by Mr.
Fitzgerald about Time reporter Matthew Cooper, Mr. Rove granted
a personal waiver to Mr. Cooper.
---------------------------------------------------------------------------
\19\Murray Waas, The Meeting, The American Prospect Online Edition
(Aug. 6, 2005) (available at http://www.prospect.org/web/
page.ww?section=root&name=ViewWeb&articleId=10077).
\20\Id.
\21\Ms. Miller apparently believes that the general waivers issued
by White House officials are ``inherently coercive'' and inadequate.
\22\See In re: Special Counsel Investigation, 374 F. Supp.2d 238
(D.D.C. 2005).
---------------------------------------------------------------------------
It should be noted that Mr. Libby's conduct is contrary to
the President's guarantees of full cooperation. The President
publicly stated that his administration would ``fully
cooperate'' with the investigation.\23\ Mr. Libby's failure to
comply with this mandate has obstructed the inquiry.
---------------------------------------------------------------------------
\23\The President, Remarks at a Joint Press Availability with
Australian Prime Minister John Howard (June 3, 2004) (available at
http://www.whitehouse.gov/news/releases/2004/06/20040603-3.html).
---------------------------------------------------------------------------
Furthermore, the President has abandoned his duty to
discipline his advisors for their roles in the leak and, in
fact, has turned away from promises to discipline the leaker.
He refused to respond to a request by approximately one-hundred
Members of Congress that he ask Karl Rove to either disclose
his role in the outing of Mrs. Wilson or resign.\24\ Second, on
July 18, 2005, the President changed the threshold for
terminating staff from leaking the identity of Mrs. Wilson\25\
to the necessity for an actual crime to have been
committed.\26\ On repeated occasions, the President has
permitted his staff to mislead and/or lie to the American
people in connection with this matter without disciplinary
consequences. For instance, White House Press Secretary Scott
McClellan assured the American people several times that
neither Mr. Rove, Mr. Libby, nor National Security Council
official Elliot Abrams were involved in the leak;\27\ just
these past few months, however, we learned that both Mr. Rove
and Mr. Libby were sources for Mrs. Wilson's identity.\28\ Mr.
McClellan remains undisciplined for his statements, and Mr.
Rove and Mr. Libby apparently still have security clearances.
---------------------------------------------------------------------------
\24\See Letter from the Honorable John Conyers, Jr., Ranking
Member, U.S. House Comm. on the Judiciary, et al. to the President
(July 14, 2005).
\25\President George W. Bush, President Bush Holds Press Conference
Following the G8 Summit (June 10, 2004) (transcript available at http:/
/www.whitehouse.gov/news/releases/2004/06/20040610-36.html).
\26\President George W. Bush, President, Prime Minister of India
Discuss Freedom and Democracy (July 18, 2005) (transcript available at
http://www.whitehouse.gov/news/releases/2005/07/20050718-1.html).
\27\White House Press Secretary Scott McClellan, Press Briefing
(Oct. 10, 2003) (transcript available at http://www.whitehouse.gov/
news/releases/2003/10/20031010-6.html).
\28\See Lorne Manly & David Johnston, Reporter Says He First
Learned of CIA Operative from Rove, N.Y. Times, July 18, 2005, at A1.
---------------------------------------------------------------------------
The administration's failure to punish the leaker is in
stark contrast to its past practice, at least with respect to
punishment of administration critics. When former Bush Treasury
Secretary Paul O'Neill appeared on CBS's 60 Minutes and showed
``Secret'' documents to support his assertion that the
President planned from his first days in office to attack Iraq,
the Treasury Department asked its Inspector General to
investigate whether O'Neill had improperly released classified
documents.\29\ The Inspector General later found that the
Department itself mislabeled the documents and allowed their
release.\30\
---------------------------------------------------------------------------
\29\Dana Milbank, White House Fires Back at O'Neill on Iraq, Wash.
Post, Jan. 13, 2004, at A1.
\30\Michael Janofsky, Treasury is Faulted for Papers' Release, N.Y.
Times, Mar. 23, 2004, at A18.
---------------------------------------------------------------------------
III. THE MAJORITY'S OBJECTIONS TO H. RES. 420 ARE
UNFOUNDED AND UNPRECEDENTED
The Majority has raised two primary and groundless
objections to this resolution. They first contend that Congress
should not investigate a matter simultaneously with the Justice
Department. They also allege that the Committee is not
permitted to obtain secret grand jury material, as they claim
this resolution seeks to do. Each of these objections is
discussed in turn.
A. LCongress has Investigated Crimes Simultaneous with the Justice
Department
Contrary to the Majority's claims, the Justice Department
is not investigating the leak properly and passage of this
resolution would not interfere with that inquiry. There are, in
fact, numerous precedents for this Committee and others
investigating concurrently with the Justice Department:
LIn 1997, the Committee held hearings on
campaign improprieties in the 1996 presidential
election.\31\ In addition to taking testimony from
Attorney General Janet Reno, the Committee requested
all documents, including deliberative memoranda,
relating to the appointment of a special counsel. The
Department provided many of these documents to the
Committee. The Justice Department was conducting its
own investigation and determining whether an
independent counsel was warranted.\32\
---------------------------------------------------------------------------
\31\Oversight of the Department of Justice: Hearing Before the
House Comm. on the Judiciary, 105th Cong., 1st Sess. (1997).
\32\Attorney General Janet Reno, Statement of the Attorney General
(Dec. 2, 1997).
LIn 1995, the Subcommittee on Crime heard
several days of testimony as part of a congressional
investigation into Federal actions at Waco, with
soldiers, officers, ATF, FBI and Treasury Department
officials testifying.\33\ The full Committee took
testimony from the Attorney General, the Director of
the FBI, and Davidian victims.\34\ Numerous criminal
and civil cases relating to the Branch Davidians were
pending at the time of the hearing.
---------------------------------------------------------------------------
\33\Activities of Federal Law Enforcement Agencies toward the
Branch Davidians: Hearings Before the Subcomm. on Crime of the U.S.
House Comm. on the Judiciary, 104th Cong., 1st Sess. (July 28, 31 &
Aug. 1, 1995).
\34\Events Surrounding the Branch Davidian Cult Standoff in Waco,
Texas: Hearing Before the U.S. House Comm. on the Judiciary, 103rd
Cong., 1st Sess. (Apr. 28, 1993).
LIn 1990-92, the Committee investigated
whether the Justice Department helped run INSLAW, a
small computer company into insolvency.\35\ The
Committee subpoenaed documents, heard testimony from
government officials and Federal judges while an
independent counsel investigated criminal allegations.
---------------------------------------------------------------------------
\35\The INSLAW Affair, H. Rep. No. 102-857 (1992).
LIn the 1970's, congressional committees held
extensive hearings on Watergate as the Justice
Department investigation was on-going.\36\
---------------------------------------------------------------------------
\36\Impeachment of Richard M. Nixon, President of the United
States, H. Rep. No. 93-1305; Debate on Articles of Impeachment:
Hearings Before the U.S. House Comm. on the Judiciary, 93rd Cong., 2d
Sess. (July 24-27, 29-30, 1974); Impeachment Inquiry: Hearings Before
the U.S. House Comm. on the Judiciary, 93rd Cong., 2d Sess. (Jan. 31-
July 23, 1974).
In fact, congressional committees have long been
investigating matters that are under criminal review by the
---------------------------------------------------------------------------
executive branch. For example:
LFrom 2004-2005, the House Government Reform
Committee,\37\ the House Energy and Commerce
Committee,\38\ the House Appropriations Committee, and
the Senate Homeland Security and Governmental Affairs
Committee\39\ have held hearings on the U.N.'s Oil for
Food Program. These hearings have been held
simultaneously with an investigation into the same
Program by the U.S. Attorney for the Southern District
of New York.\40\
---------------------------------------------------------------------------
\37\Oil for Food Program: Hearing Before the Subcomm. on National
Security, Emerging Threats, and Int'l Relations of the U.S. House Comm.
on Gov't Reform, 109th Cong., 1st Sess. (Apr. 12, 2005); The U.N. Oil
for Food Program, Cash Cow Meets Paper Tiger: Hearing Before the
Subcomm. on National Security, Emerging Threats, and Int'l Relations of
the U.S. House Comm. on Gov't Reform, 108th Cong., 2d Sess. (Oct. 5,
2004); The Iraqi Oil-for-Food Program, Starving for Accountability:
Hearing Before the Subcomm. on National Security, Emerging Threats, and
Int'l Relations of the U.S. House Comm. on Gov't Reform, 108th Cong.,
2d Sess. (Apr. 21, 2004).
\38\The United Nations Oil-For-Food Program--A Review of the 661
Sanctions Committee: Hearing Before the Subcomm. on Oversight and
Investigations of the U.S. House Comm. on Energy and Commerce, 109th
Cong., 1st Sess. (June 21, 2005); The United Nations Oil-for-Food
Program: Saddam Hussein's Use of Oil Allocations to Undermine Sanctions
and the United Nations Security Council: Hearing Before the Subcomm. on
Oversight and Investigations of the U.S. House Comm. on Energy and
Commerce, 109th Cong., 1st Sess. (May 16, 2005).
\39\Oil For Influence--How Saddam Used Oil to Reward Politicians
Under the United Nations Oil-for-Food Program: Hearing Before the
Permanent Subcomm. on Investigations of the U.S. Senate Comm. on
Homeland Security and Governmental Affairs, 109th Cong., 1st Sess. (May
17, 2005); The United Nations' Management and Oversight of the Oil-for-
Food Program: Hearing Before the Permanent Subcomm. on Investigations
of the U.S. Senate Comm. on Homeland Security and Governmental Affairs,
109th Cong., 1st Sess. (Feb. 15, 2005); How Saddam Hussein Abused the
United Nations Oil-for-Food Program: Hearing Before the Permanent
Subcomm. on Investigations of the U.S. Senate Comm. on Homeland
Security and Governmental Affairs, 108th Cong., 2d. Sess. (Nov. 15,
2004).
\40\See Judith Miller & Julia Preston, 2 Inquiries are at Odds,
N.Y. Times, Jan. 31, 2005, at A8.
LIn 2005, the Senate Indian Affairs Committee
has investigated the lobbying activities of Jack
Abramoff.\41\ At the same time, the Justice Department,
IRS, and Interior Department have been conducting their
own investigations.\42\
---------------------------------------------------------------------------
\41\In re Tribal Lobbying Matters: Hearing Before the U.S. Senate
Select Comm. on Indian Affairs, 109th Cong., 1st Sess. (June 22, 2005).
\42\See Susan Schmidt, Abramoff Cited Aid of Interior Official,
Wash. Post, Aug. 28, 2005, at A1.
LIn 2005, the House Government Reform
Subcommittee on the Federal Workforce and Agency
Organization has investigated allegations that
scientists falsified information regarding the Yucca
Mountain nuclear repository.\43\ The Justice Department
is investigating the same matter.\44\
---------------------------------------------------------------------------
\43\See Matthew L. Wald, Disagreement over Data on Waste Site, N.Y.
Times, Apr. 6, 2005, at A18.
\44\Id.
LIn 2001, the House Government Reform
Committee investigated the Boston FBI field office's
use of confidential informants.\45\ The Committee
subpoenaed FBI files, direct evidence, such as wiretap
logs, and deliberative memos. At the time of this
investigation, an FBI agent, John Connolly, was under
indictment.\46\
---------------------------------------------------------------------------
\45\The FBI's Controversial Handling of Organized Crime
Investigations in Boston--the Case of Joseph Salvati: Hearing Before
the U.S. House Comm. on Gov't Reform, 107th Cong., 1st Sess. (May 3,
2001).
\46\See Tom Farmer, FBI Feels Heat, Boston Herald, May 14, 2001, at
1.
LIn 2001, the House Government Reform
Committee investigated President Clinton's use of his
pardon authority.\47\ The Majority issued 153 requests
and subpoenas for documents and ultimately received
over 25,000 pages. The U.S. Attorney for the Southern
District of New York, Mary Jo White, was conducting her
own criminal investigation at the time.\48\
---------------------------------------------------------------------------
\47\The Controversial Pardon of International Fugitive Marc Rich:
Hearings Before the U.S. House Comm. on Gov't Reform, 107th Cong., 1st
Sess. (Feb. 8 & Mar. 1, 2001).
\48\David Johnston, U.S. Attorney in New York will Coordinate
Inquiry on Pardons, N.Y. Times, Mar. 14, 2001, at A14.
LFrom April 1998 to May 1999, the House
International Relations Committee and House Science
Committee convened hearings on potentially illegal
transfers of technology by Lockheed Martin, Loral, and
Hughes to China. The House Select Committee on U.S.
National Security and Military/ Commercial Concerns
with the People's Republic of China also held hearings
and issued a report.\49\ While these hearings were
being held, the Justice Department and a grand jury
were conducting an investigation that led to penalties
against the violators.\50\
---------------------------------------------------------------------------
\49\H. Rep. No. 105-851.
\50\Jeff Gerth & Raymond Bonner, Companies are Investigated for Aid
to China on Rockets, N.Y. Times, Apr. 4, 1998, at A1.
LIn 1997-2000, the House Government Reform
Committee conducted its own investigation into possible
campaign improprieties by the Clinton Administration
and the Democratic party.\51\ The Committee had
Attorney General Janet Reno testify during hearings and
subpoenaed deliberative memos from FBI Director Louis
Freeh and Campaign Task Force Leader Charles LaBella.
When the Attorney General refused to comply, the
Committee held her in contempt. Eventually the
Committee received all the documentation it requested.
---------------------------------------------------------------------------
\51\The Role of Yah Lin ``Charlie'' Trie in Illegal Political
Fundraising: Hearing Before the U.S. House Comm. on Gov't Reform, 106th
Cong., 2d Sess. (Mar. 1, 2000); The Role of John Huang and the Riady
Family in Political Fundraising: Hearing Before the U.S. House Comm. on
Gov't Reform, 106th Cong., 1st Sess. (Dec. 15-17, 1999); The Need for
an Independent Counsel in the Campaign Finance Investigation: Hearing
Before the U.S. House Comm. on Gov't Reform, 105th Cong., 2d Sess.
(Aug. 4, 1998); Campaign Finance Improprieties and Possible Violations
of Law: Hearing Before the U.S. House Comm. on Gov't Reform, 105th
Cong., 1st Sess. (Oct. 8, 1997).
LIn 1997-99, the Senate Governmental Affairs
Committee investigated campaign financing while the FBI
and the Department's Campaign Finance Task Force was
conducting a criminal investigation. The Committee
subpoenaed FBI agents, Task Force attorneys, and
obtained a number of documents including the notes of
special agents, draft affidavits, notes of the Task
---------------------------------------------------------------------------
Force supervisor and internal memos.
LIn 1995, the House Government Reform
Committee investigated Federal law enforcement actions
at Waco.\52\ The Committee subpoenaed FBI files,
interviewed 20 FBI agents and reviewed over a million
documents. At the same time, former Senator John
Danforth was investigating as a Special Counsel.\53\
---------------------------------------------------------------------------
\52\Activities of Federal Law Enforcement Agencies toward the
Branch Davidians: Hearings Before the Subcomm. on National Security,
Int'l Affairs, and Criminal Justice of the U.S. House Comm. on Gov't
Reform, 104th Cong., 1st Sess. (July 19-21, 24-28, 31 & Aug. 1, 1995).
\53\David Johnston, Ex-Senator Picked by Reno to Head New Waco
Inquiry, N.Y. Times, Sept. 9, 1999, at A1.
In fact, in 4 years, the Clinton administration turned over 1.2
million pages of documents (including criminal investigators'
files, evidence, and deliberative memoranda) to the House
Government Reform Committee alone despite on-going criminal
investigations.
There are scores of examples from other committees also:
LFor example, in 2002 the House Energy and
Commerce Committee investigated the collapse of Enron
and its outside auditor Arthur Andersen\54\ while the
Justice Department and SEC investigated.\55\ The
Committee took testimony from several executives during
hearings. In all, there were 30 hearings within the
House and Senate between 2001 and 2003.
---------------------------------------------------------------------------
\54\Financial Collapse of Enron: Hearings Before the Subcomm. on
Oversight and Investigations of the U.S. House Comm. on Energy and
Commerce, 107th Cong., 2d Sess. (Feb. 7, 14 & Mar. 14, 2002);
Developments Relating to Enron Corp.: Hearing Before the U.S. House
Comm. on Energy and Commerce, 107th Cong., 2d Sess. (Feb. 6, 2002); The
Findings of Enron's Special Investigative Committee with respect to
Certain Transactions between Enron and Certain of its Current and
Former Officers and Employees: Hearing Before the Subcomm. on Oversight
and Investigations of the U.S. House Comm. on Energy and Commerce,
107th Cong., 2d Sess. (Feb. 5, 2002); The Destruction of Enron-Related
Documents by Andersen Personnel: Hearing Before the Subcomm. on
Oversight and Investigations of the U.S. House Comm. on Energy and
Commerce, 107th Cong., 2d Sess. (Jan. 24, 2002).
\55\Rebecca Smith, U.S. Puts Task Force on Criminal Probe of Enron,
Wall St. J., Jan. 10, 2002, at A3; Alex Berenson, SEC Opens
Investigation into Enron, N.Y. Times, Nov. 1, 2001, at C4.
LIn 2002, the House Energy and Commerce
Committee investigated Martha Stewart for insider
trading allegations involving ImClone stock.\56\ Both
Ms. Stewart and ImClone officials were under
investigation by the Justice Department.\57\
---------------------------------------------------------------------------
\56\An Inquiry into the ImClone Cancer-Drug Story: Hearing Before
the Subcomm. on Oversight and Investigations of the U.S. House Comm. on
Energy and Commerce, 107th Cong., 2d Sess. (June 13 & Oct. 10, 2002).
\57\Constance L. Hays, Investigators Said to be Frustrated in
Stewart Case, N.Y. Times, Aug. 12, 2002, at C4.
LIn 2002, the House Financial Services
Committee investigated the WorldCom scandal while
criminal and civil cases were pending.\58\ During
hearings, analysts and the chairman of the board
testified, while other executives refused to testify
citing the 5th Amendment.
---------------------------------------------------------------------------
\58\Wrong Numbers: The Accounting Problems at WorldCom: Hearing
Before the U.S. House Comm. on Financial Servs., 107th Cong., 2d. Sess.
(July 8, 2002).
Finally, the Government Accountability Office (``GAO'') has
conducted investigations while the administration was pursuing
---------------------------------------------------------------------------
criminal investigations. For example:
LIn 1998-2001, the GAO investigated the
actions of FBI investigators in the Wen Ho Lee
espionage case.\59\ Mr. Lee was under investigation by
the FBI from 1996 until his indictment in 1999.\60\
---------------------------------------------------------------------------
\59\Letter from the General Accounting Office to the Honorable
Arlen Specter, U.S. Senate, et al. (June 28, 2001).
\60\Matthew Purdy & James Sterngold, The Prosecution Unravels--The
Case of Wen Ho Lee, N.Y. Times, Feb. 5, 2001, at A1.
LIn 1999-2000, the GAO investigated the Waco
incident while Special Counsel Danforth was still
conducting his investigation.\61\
---------------------------------------------------------------------------
\61\U.S. General Accounting Office, Military Assistance Provided at
Branch Davidian Incident (Aug. 1999).
LIn 1994-96, the GAO investigated the White
House Travel Office under the Clinton
administration.\62\ This occurred while criminal
investigations were being conducted by the Department,
the IRS, the Treasury Department Inspector General and
the Office of Professional Responsibility.\63\
---------------------------------------------------------------------------
\62\Letter from the General Accounting Office to the Honorable
William F. Clinger, Chairman, U.S. House Comm. on Gov't Reform and
Oversight (Sept. 18, 1996).
\63\U.S. General Accounting Office, White House Travel Office
Operations (May 1994).
---------------------------------------------------------------------------
B. LThis Resolution would not Violate Grand Jury Secrecy Rules
The Majority incorrectly argues that disclosure of the
requested information would violate grand jury secrecy rules.
Federal Rule of Criminal Procedure 6(e) prohibits the
disclosure of a ``matter occurring before a grand jury,''\64\
and a grand jury has been convened to investigate the leak. As
the Justice Department's own Federal Grand Jury Practice manual
explains, however:
---------------------------------------------------------------------------
\64\Fed. R. Crim. P. 6(e)(2).
Rule 6(e) does not cover all information developed
during the course of a grand jury investigation, but
only information that would reveal the strategy or
direction of the investigation, the nature of the
evidence produced before the grand jury, the views
expressed by members of the grand jury, or anything
else that actually occurred before the grand jury. . .
. In short, to come within the Rule 6(e) secrecy
prohibition, the material in question must `reveal some
secret aspect of the inner workings of the grand
jury.\65\
---------------------------------------------------------------------------
\65\Executive Office for U.S. Attorneys, U.S. Dep't of Justice,
Federal Grand Jury Practice 40 (Aug. 2000) (emphasis added) (citing
United States v. Smith, 123 F.3d 140, 148 (3d Cir. 1997); Anaya v.
United States, 815 F.2d 1373, 1379 (10th Cir. 1987); Fund for
Constitutional Gov't v. National Archives & Records Serv., 656 F.2d
856, 869 (D.C. Cir. 1981); In re Grand Jury Investigation, 630 F.2d
996, 1000 (3d Cir. 1980); In re Grand Jury Investigation (Lance), 610
F.2d 202, 217 (5th Cir. 1980); United States v. Stanford, 589 F.2d 285,
291 (7th Cir. 1978); United States Industries v. United States Dist.
Court, 345 F.2d 18, 21-22, (9th Cir. 1965); United States v. Interstate
Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960)).
The documentation requested by H. Res. 420 would not betray
the ``inner workings of the grand jury.'' Material created
independently of the grand jury has long been held to be
outside of the grand jury secrecy rules.\66\ In particular,
investigative material gathered by law enforcement agents
instead of a grand jury repeatedly has been found to be outside
of Rule 6(e).\67\ That information is gathered with an ``eye
toward ultimate use in a grand jury proceeding'' does not
invoke secrecy protections.\68\ As long as the investigative
information was not collected at the direction of a grand jury
nor is presented in a manner that reveals what took place in
front of the grand jury, disclosure is proper. In fact, Justice
Department disclosure of this material will continue its
history of routine disclosure of criminal investigative
information in response to pressing congressional inquiries
such as this.\69\
---------------------------------------------------------------------------
\66\Id.
\67\In re Grand Jury Subpoena, 920 F.2d 235, 242-43 (4th Cir.
1990); Anaya, 815 F.2d at 1379-80; In re Grand Jury Matter (Catania),
682 F.2d 61, 64 (3rd Cir. 1982); United States v. Interstate Dress
Carriers, 280 F.2d 52, 54 (2d Cir. 1960).
\68\Catania, 682 F.2d at 64.
\69\Morton Rosenberg, Congressional Research Serv., Investigative
Oversight: An Introduction to the Law, Practice and Procedure of
Congressional Inquiry 29-32 (Apr. 7, 1995). See also Investigation into
Allegations of Justice Department Misconduct in New England--Volume 1:
Hearings Before the U.S. House Comm. on Gov't Reform of the U.S. House
of Representatives, 107th Cong., 1st & 2nd Sess. (2001-02) (testimony
of Morton Rosenberg, Congressional Research Service, American Law
Division) (listing eighteen distinct congressional investigations that
acquired criminal files from the Justice Department).
---------------------------------------------------------------------------
CONCLUSION
This resolution of inquiry was necessary because the Bush
administration has consistently refused to police itself in the
midst of criminal and ethical misconduct. It has permitted a
breach of national security to go unchecked and to be subject
to political machinations. In such times, it is the duty of
Congress to hold the administration accountable; unfortunately,
this Congress has turned a blind eye to the wrongdoing of this
administration. The Majority's rejection of this resolution of
inquiry represents not only an abdication of Congress's
responsibility but also another example of its predilection for
placing partisan interest above national security.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
William D. Delahunt.
Robert Wexler.
Anthony D. Weiner.
Adam B. Schiff.
Linda T. Sanchez.
Debbie Wasserman Schultz.