[Senate Report 110-522]
[From the U.S. Government Publishing Office]
Calendar No. 1125
Calendar No. 1126
110th Congress Report
SENATE
2d Session 110-522
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_______
November 19, 2008.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. Res. 707 and S. Res. 708]
The Committee on the Judiciary, reports favorably on
original resolutions (S. Res. 707) authorizing the President of
the Senate to certify the facts of the failure of Joshua
Bolten, as the Custodian of Records at the White House, to
appear before the Committee on the Judiciary and produce
documents as required by Committee subpoena, and (S. Res. 708)
authorizing the President of the Senate to certify the facts of
the failure of Karl Rove to appear and testify before the
Committee on the Judiciary and to produce documents as required
by Committee subpoena, and recommends that the resolutions do
pass.
CONTENTS
Page
I. Purpose and Background of Resolutions............................2
II. Hearings and Interviews..........................................4
III. Committee's Efforts To Reach Accommodation Were Futile...........9
IV. Non-compliance with Committee's Subpoenas.......................12
V. Ruling on Executive Privilege and Immunity Claims...............13
VI. Resolutions of Contempt.........................................20
VII. The Privilege and Immunity Claims Are Not Legally Valid to Excuse
Compliance......................................................24
VIII.Continued Non-Compliance Despite District Court's Decision in
House Judiciary Committee Lawsuit Dismissing the Administration's
Immunity and Blanket Privilege Claims...........................39
IX. Department of Justice's Internal Investigation Confirmed Judiciary
Committee's Findings Though Impeded by White House Refusal to
Cooperate.......................................................42
X. Conclusion......................................................48
XI. Minority Views of Senators Specter and Grassley.................49
XII. Minority Views of Senators Kyl, Sessions, Brownback and Coburn..54
I. Purpose and Background of the Resolutions
Since the beginning of the 110th Congress, the Judiciary
Committee has conducted an investigation into the unprecedented
mass firings of Federal prosecutors by those in the
administration of the President who appointed them.
The investigation began after news reports in late 2006 and
early 2007 revealed that seven U.S. Attorneys had been fired on
December 7, 2006: David C. Iglesias, District of New Mexico;
Carol Lam, Southern District of California; John McKay, Western
District of Washington; Daniel Bogden, District of Nevada; Paul
K. Charlton, District of Arizona; Margaret Chiara, Western
District of Michigan; and Kevin Ryan, Northern District of
California. The Committee subsequently learned that H.E.
``Bud'' Cummins, III, Eastern District of Arkansas, was told to
resign in June 2006, and that Todd Graves, Western District of
Missouri, was asked to resign in January 2006. According to a
joint investigation by the Department's Office of Inspector
General (IG) and Office of Professional Responsibility (OPR),
28 U.S. Attorneys appeared on lists of those being considered
for firing between the beginning of 2005 and the end of
2006.\1\ The report verified news accounts that several dozen
U.S. Attorneys were considered for firing.
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\1\See ``An Investigation into the Removal of Nine U.S. Attorneys
in 2006,'' U.S. Department of Justice Office of the Inspector General
and U.S. Department of Justice Office of Professional Responsibility,
September 29, 2008, chart at 18-19.
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In the course of this investigation, which led to the
resignations of the Attorney General, the senior leadership of
the Justice Department, their staff, and several high-ranking
White House political officials, the Committee has uncovered
grave threats to the independence of law enforcement from
political manipulation. The evidence accumulated from the
testimony of nearly 20 current and former Justice Department
officials, as well as documents released by the Department,
shows that the list for firings was compiled with participation
from the highest political ranks in the White House, including
former White House Deputy Chief of Staff Karl Rove. The
evidence shows that senior officials were focused on the
political impact of Federal prosecutions and whether Federal
prosecutors were doing enough to bring partisan voter fraud and
corruption cases. It is now apparent that the reasons given for
these firings, including those reasons provided in sworn
testimony by the Attorney General and Deputy Attorney General,
were contrived as part of a cover-up.
The Committee's attempts to obtain information from the
White House, first requested voluntarily and later legally
compelled by subpoena, have been met with stonewalling. In the
process, the White House has asserted blanket claims of
executive privilege, and novel claims of absolute immunity, to
block current and former officials from testifying and
producing documents in compliance with the Committee's
subpoenas.
The constitutional powers of Congress and the
responsibilities of this Committee to the Senate and the
American people overcome unsubstantiated privilege claims by
the White House. The Supreme Court has long recognized that
Congress has ``broad'' power to investigate ``the
administration of existing laws'' and to ``expose corruption,
inefficiency, waste'' within the executive branch.\2\ The
evidence obtained by the Judiciary Committee's investigation,
and the resulting reports issued by the Department of Justice's
Inspector General and Office of Professional Responsibility,
raises concerns about the violation of Federal laws, including
possible obstruction of justice, laws that prohibit providing
misleading or inaccurate testimony to Congress, and possible
violations of laws, including the Hatch Act, that prohibit
retaliation against Federal employees for improper political
reasons. The Committee has a responsibility to conduct
investigations and obtain information from the executive branch
in order to consider legislation within its jurisdiction,\3\
including legislation related to the appointment of U.S.
Attorneys, and to protect the Committee's role in evaluating
nominations pursuant to the Senate's constitutional
responsibility to provide advice and consent.
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\2\See Watkins v. United States, 354 U.S. 178, 187 (1957).
\3\See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
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The Supreme Court has long held that oversight is
``inherent in the legislative process'' and vital for
``prob[ing] into departments of the Federal Government to
expose corruption, inefficiency or waste.''\4\ The
investigation demonstrated the relationship between the
Committee's oversight and investigative powers, and its
responsibilities to legislate and evaluate nominations. In
fact, in connection to this investigation, the Judiciary
Committee considered and reported the ``Preserving United
States Attorney Independence Act of 2007'' (S. 214), a bill
introduced by Senator Feinstein and which was signed into law
on June 14, 2007, to close a loophole exploited by the
Department of Justice and the White House to enable abuses to
occur. The new law rescinded the Attorney General's power to
appoint interim U.S. Attorneys to serve indefinitely without
congressional approval.\5\
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\4\Watkins v. United States, 354 U.S. 178, 187 (1957).
\5\See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109-177, Title
V, 502, 120 Stat. 546 (Mar. 9, 2006); amended by Pub. L. No. 110-34, 2,
121 Stat. 224 (June 14, 2007).
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Not only does the Senate have the power to confirm a
President's U.S. Attorney nominations, a matter under Senate
rules within the jurisdiction of this Committee, but the
appointment power is given to Congress by the Constitution. In
Article II, the President's appointment power is limited by the
power of Congress. In addition, constitutional provisions
calling for appointments with the advice and consent of the
Senate and for the President's limited power to make recess
appointments, the Constitution provides: ``But the Congress may
by law vest the appointment of such inferior officers, as they
think proper, in the President alone, in the courts of law, or
in the Heads of Departments.''\6\ In 2007, the Eastern District
of Arkansas joined at least two other courts addressing the
interim appointment of U.S. Attorneys--the First Circuit in
United States v. Hilario,\7\ and the Ninth Circuit in United
States v. Gantt in concluding that U.S. Attorneys are
``inferior officers.''\8\ Thus, Congress--and in particular
this Committee--has a vested interest in obtaining information
relating to the appointment and removal of U.S. Attorneys in
order to fulfill its constitutional duty to provide for the
appointment of inferior officers.
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\6\U.S. Const. Art. II, 2, cl. 2.
\7\218 F.3d 19 (1st Cir. 2000) (upholding the constitutionality of
the pre-Patriot Act reauthorization law on interim appointments,
including the role of the district court about which the administration
earlier this year raised separation of powers concerns).
\8\See United States v. Baker, 504 F.Supp.2d 402, 412 (2007).
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On November 29, 2007, Chairman Leahy ruled that the White
House's claims of executive privilege and immunity are not
legally valid to excuse current and former White House
employees from appearing, testifying and producing documents
related to this investigation. Accordingly, Chairman Leahy
directed Karl Rove and White House Chief of Staff Joshua Bolten
to comply immediately with the Committee's subpoenas by
producing documents and testimony. They failed to do so, and on
December 13, 2007, a bipartisan majority of the Committee voted
to report favorably resolutions finding Mr. Rove and Mr. Bolten
in contempt of Congress.
II. Hearings and Interviews
A. SENATE JUDICIARY COMMITTEE HEARINGS
January 18, 2007
Hearing: Oversight of the U.S. Department of Justice.
Senate Judiciary Committee.
Witnesses:
Alberto Gonzales, Attorney General, U.S.
Department of Justice
February 6, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys.
Senate Judiciary Committee.
Witnesses:
Mark Pryor, U.S. Senator, Arkansas
Paul J. McNulty, Deputy Attorney General,
U.S. Department of Justice
Mary Jo White, Partner, Debevoise &
Plimpton, LLP, New York, NY
Laurie L. Levenson, Professor of Law, Loyola
Law School, Los Angeles, CA
Stuart M. Gerson, Partner, Epstein Becker &
Green, Washington, DC
March 6, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part II.
Senate Judiciary Committee.
Witnesses:
H.E. ``Bud'' Cummins, III, Former U.S.
Attorney for the Eastern District of Arkansas
David C. Iglesias, Former U.S. Attorney for
the District of New Mexico
Carol Lam, Former U.S. Attorney for the
Southern District of California
John McKay, Former U.S. Attorney for the
Western District of Washington
March 29, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part III.
Senate Judiciary Committee.
Witnesses:
D. Kyle Sampson, former Chief of Staff to
the Attorney General, U.S. Department of Justice
April 19, 2007
Hearing: Department of Justice Oversight.
Senate Judiciary Committee.
Witnesses:
Alberto Gonzales, Attorney General, U.S.
Department of Justice
May 15, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part IV.
Senate Judiciary Committee.
Witnesses:
James B. Comey, former Deputy Attorney
General, U.S. Department of Justice
June 5, 2005
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part V.
Senate Judiciary Committee.
Witnesses:
Panel I
Bradley J. Schlozman, Associate
Counsel to the Director, Executive Office for
U.S. Attorneys, former Interim U.S. Attorney
for the Western District of Missouri, former
Principal Deputy Assistant Attorney General and
Acting Assistant Attorney General for the Civil
Rights Division, U.S. Department of Justice
Panel II
Todd Graves, former U.S. Attorney
for the Western District of Missouri
June 27, 2007
Hearing: Oversight of the Federal Death Penalty.
Senate Judiciary Committee, Subcommittee on the
Constitution.
Witnesses:
Panel I
Barry Sabin, Deputy Assistant
Attorney General, U.S. Department of Justice
Panel II
David I. Bruck, Esq., Federal Death
Penalty Resource Counsel, Lexington, VA
Paul K. Charlton, former U.S.
Attorney for the District of Arizona
David B. Mulhausen, Ph.D., Senior
Policy Analyst, Center for Data Analysis, The
Heritage Foundation, Washington, DC
William G. Otis, former Chief of the
Appellate Division, U.S. Attorney's Office,
Eastern District of Virginia
Roberto J. Sanchez Ramos, Secretary
of Justice, Commonwealth of Puerto Rico
Hilary O. Shelton, Director,
Washington Bureau, National Association for the
Advancement of Colored People
July 11, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part VI.
Senate Judiciary Committee.
Witnesses:
Sara M. Taylor, former Deputy
Assistant to the President and Director of
Political Affairs, The White House
August 2, 2007
Hearing: Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of
U.S. Attorneys?--Part VII.
Senate Judiciary Committee.
Witnesses:
J. Scott Jennings, former Deputy Director of
Political Affairs, The White House
B. HOUSE JUDICIARY COMMITTEE HEARINGS
March 6, 2007
Hearing: H.R. 580, Restoring Checks and Balances in the
Confirmation Process of U.S. Attorneys.
House Judiciary Committee, Commercial and Administrative
Law Subcommittee.
Witnesses:
Panel I
William E. Moschella, Principal
Associate Deputy Attorney General, U.S.
Department of Justice
Panel II
Carol C. Lam, Former U.S. Attorney
for the Southern District of California
David C. Iglesias, Former U.S.
Attorney for the District of New Mexico
Daniel Bogden, Former U.S. Attorney
for the District of Nevada
Paul K. Charlton, Former U.S.
Attorney for the District of Arizona
H. E. Cummins III, Former U.S.
Attorney for the Eastern District of Arkansas
John McKay, Former U.S. Attorney for
the Western District of Washington
Panel III
Darrell E. Issa, Member, U.S. House
of Representatives
Asa Hutchinson, former Member, U.S.
House of Representatives
John A. Smietanka, former U.S.
Attorney for the Western District of Michigan
Altee W. Wampler III, President,
National Association of Former U.S. Attorneys
George J. Terwilliger III, Partner,
White and Case LLP
T.J. Halstead, Legislative Attorney,
American Law Division, Congressional Research
Service
March 29, 2007
Hearing: Ensuring Executive Branch Accountability.
House Judiciary Committee, Subcommittee on Commercial and
Administrative Law.
Witnesses:
Noel J. Francisco, former Associate Counsel
to President George W. Bush, Partner, Jones Day
Washington, D.C.
Beth Nolan, former White House Counsel to
President Bill Clinton, Partner, Crowell & Moring
Washington, D.C.
John Podesta, former White House Chief of
Staff to President Bill Clinton, President and Chief
Executive Officer Center for American Progress,
Washington, D.C.
Frederick A.O. Schwarz, Jr., Senior Counsel,
Brennan Center for Justice at NYU School of Law
May 3, 2007
Hearing: The Continuing Investigation into the U.S.
Attorneys Controversy Witnesses.
House Judiciary Committee, Subcommittee on Commercial and
Administrative Law.
Witnesses:
James B. Comey, former Deputy Attorney
General, U.S. Department of Justice
May 10, 2007
Hearing: Oversight Hearing on the United States Department
of Justice.
House Judiciary Committee.
Witnesses:
Alberto Gonzales, Attorney General, U.S.
Department of Justice
May 23, 2007
Hearing: The Continuing Investigation into the U.S.
Attorneys Controversy and Related Matters.
House Judiciary Committee.
Witnesses:
Monica Goodling, former Justice Department
White House Liaison
June 21, 2007
Hearing: The Continuing Investigation into the U.S.
Attorneys Controversy and Related Matters.
House Judiciary Committee.
Witnesses:
Paul J. McNulty, Deputy Attorney General,
U.S. Department of Justice
C. INTERVIEWS (CONDUCTED BY HOUSE AND SENATE JUDICIARY COMMITTEE STAFF
UNLESS OTHERWISE NOTED)
March 30, 2007
Interview with Michael Elston, Chief of Staff, Office of
the Deputy Attorney General [House only].
April 11, 2007
Interview with William Mercer, Acting Associate Attorney
General, U.S. Department of Justice.
April 12, 2007
Interview with Michael Battle, former Executive Director,
Executive Office for U.S. Attorneys.
April 15, 2007
Interview with D. Kyle Sampson, Former Chief of Staff to
the Attorney General of the United States.
April 18, 2007
Interview with D. Kyle Sampson, Former Chief of Staff to
the Attorney General of the United States.
April 24, 2007
Interview with William E. Moschella, Principal Associate
Deputy Attorney General, U.S. Department of Justice.
April 27, 2007
Interview with Paul J. McNulty, Deputy Attorney General,
U.S. Department of Justice.
May 1, 2007
Interview with David Margolis, Associate Deputy Attorney
General.
May 4, 2007
Interview with Matthew Friedrich, Chief of Staff and
Principal Deputy Assistant Attorney General, Criminal Division,
U.S. Department of Justice.
May 8, 2007
Interview with Larry Gomez, Acting U.S. Attorney for the
District of New Mexico.
May 21, 2007
Interview with David Nowacki, Principal Deputy Director,
Executive Office for U.S. Attorneys.
June 15, 2007
Interview with Mary Beth Buchanan, U.S. Attorney for the
Western District of Pennsylvania, former Director of the
Executive Office for U.S. Attorneys, U.S. Department of
Justice.
July 10, 2007
Interview with D. Kyle Sampson, former Chief of Staff to
the Attorney General of the United States.
September 14, 2007
Interview with Dana Simpson, attorney from Alabama [House
only].
III. Committee's Efforts To Reach Accommodation Were Futile
Before the issuance of the Committee's first subpoena to
White House officials, the Committee sought, to no avail, the
voluntary cooperation of the White House and its current and
former employees. Instead, the President and the White House
counsel conditioned any limited availability of information on
a demand that whatever the White House were to provide
initially would end the matter, and the Senate Judiciary
Committee would agree to halt its investigation. They also
demanded that any information provided be shared behind closed
doors, not under oath and without a transcript. Despite
mounting evidence of significant involvement by White House
political officials, the White House did not produce a single
document or allow even one White House employee or former
employee involved in these matters to be interviewed
voluntarily.
The administration has continued to rebuke the Committee's
efforts to reach an accommodation since this initial,
unacceptable ``take it or leave it'' offer. At each step, the
Committee has sought an accommodation, but the White House has
reiterated its initial offer. Chairman Leahy issued Committee-
authorized subpoenas only after extensive efforts to reach a
voluntary accommodation, and having concluded that further
efforts to reach an accommodation would be futile.
Before issuing the subpoenas, the Committee sent nearly a
dozen letters seeking voluntary cooperation from the White
House and its current and former employees with the
investigation:
On March 13, 2007, Chairman Leahy and Senator
Specter, the Committee's Ranking Member, sent a letter to White
House Counsel Fred Fielding echoing a March 9, 2007, request
from the House Judiciary Committee for documents and interviews
with White House officials related to the U.S. Attorney
investigation. Chairman Leahy and Senator Specter also sent
letters to then White House Deputy Chief of Staff Karl Rove,
then Deputy White House Counsel William Kelley, and former
White House Counsel Harriet Miers seeking their voluntary
cooperation with the Committee's investigation. On March 15,
2007, Chairman Leahy and Senator Specter sent a similar letter
to Special Assistant to the President and Deputy Director of
Political Affairs J. Scott Jennings.
On March 20, 2007, Mr. Fielding sent a letter to
the Senate and House Judiciary Committees making a ``take it or
leave it'' offer of off-the-record interviews with current and
former White House employees, with no transcript, no oath, and
no ability to follow up. Mr. Fielding offered to produce a
small subset of the documents requested, but only as part of an
agreement to the offer, which would prejudice any further
investigative steps.
On March 22, 2007, Chairman Leahy and nine Members
of the Senate Judiciary Committee sent a letter to Mr. Fielding
explaining that this ``take it or leave it'' offer was
unacceptable because it would constrain the Committee's and the
public's access to key information, and prejudge the outcome of
the investigation. Republican Members of the Committee also
publicly and privately recognized that such off-the-record
meetings would be inadequate, and inhibit the Committee's
exercise of its investigative, oversight and legislative
functions. On the same day, the Committee authorized subpoenas
for Mr. Rove, Ms. Miers, and Mr. Kelley.
On March 28, 2007, having received no response
from the White House to the March 22, 2007, letter, Chairman
Leahy and House Judiciary Committee Chairman Conyers, in an
effort to further the investigation, sent Mr. Fielding a letter
seeking to narrow the dispute and gain access to documents the
White House had previously offered to provide as part of its
``take it or leave it'' proposal.
Still having received no response from Mr.
Fielding to the previous two letters, Chairman Leahy sent Mr.
Fielding another letter on April 5, 2007, asking for the
``reviews by White House staff'' that led the President to say
on March 20, 2007, that there was no wrongdoing.
On April 11, 2007, Chairman Leahy and Senator
Specter sent a letter to then White House Director of Political
Affairs Sara M. Taylor seeking her voluntary cooperation with
the Committee's investigation.
On April 12, 2007, in light of the Committee's
request for White House emails related to the investigation,
Chairman Leahy and Senator Specter sent a letter to Mr.
Fielding requesting information about revelations that dozens
of White House officials used non-governmental Republican
National Committee email accounts for official government
business. No White House emails have been turned over to the
Committee.
On April 12, 2007, and April 25, 2007, the
Judiciary Committee authorized subpoenas for White House Chief
of Staff Joshua Bolten as custodian of documents for the White
House and Mr. Jennings and Ms. Taylor, respectively.
Still having not received answers to the previous
letters nearly two months after rejecting the White House's
initial offer as unacceptable, Chairman Leahy sent Mr. Fielding
a letter on May 16, 2007, recounting the previous requests for
information and summarizing the evidence gathered by the
investigating Committees of the Senate and House. This evidence
showed that White House officials played a significant role in
originating, developing, coordinating and implementing the plan
for firing U.S. Attorneys, and the Justice Department's
response to congressional inquiries about it. This evidence
also included an apparent effort to minimize admissions of the
involvement by White House officials. The letter repeated the
request for voluntary cooperation, but notified Mr. Fielding
that the Chairman would have no choice but to issue subpoenas
if it was not forthcoming.
On June 7, 2007, Mr. Fielding sent a letter to the
Senate and House Judiciary Committees disputing any wrongdoing
and reiterating the same ``take it or leave it'' offer from
March 20, 2007, for backroom interviews that the Committee
rejected three months earlier. No documents accompanied the
letter.
After exhausting avenues of voluntary cooperation,
on June 13, 2007, and July 26, 2007, Chairman Leahy issued
subpoenas, authorized by the Committee in April 2007, for White
House documents from Mr. Bolten and for documents and testimony
from Mr. Rove. These subpoenas were met with non-compliance,
eliciting blanket claims of executive privilege and immunity
from the White House.
On August 14, 2007, at the urging of Senator
Specter, Chairman Leahy wrote to President Bush suggesting a
meeting to work out differences with respect to the
investigation before the Committee would be forced to consider
citations for contempt of Congress by current and former White
House officials. Mr. Fielding responded for the President on
August 17, 2007, rejecting the offer.
This stonewalling is a dramatic break from the practices of
every administration since World War II in responding to
congressional oversight.\9\ In that time, presidential advisors
have testified before congressional committees 74 times, either
voluntarily or compelled by subpoenas. During the Clinton
administration, White House and administration advisors were
routinely subpoenaed for documents or to appear before
Congress. For example, in 1996 alone, the House Government
Reform Committee issued at least 27 subpoenas to White House
advisors. According to the Congressional Oversight Manual
produced by the non-partisan Congressional Research Service,
most disputes between Congress and the executive branch about
access to documents and information are resolved through
compromise.\10\ The veil of secrecy this administration has
insisted upon is unprecedented and damaging to the tradition of
open government that has been a hallmark of this Republic.
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\9\See March 21, 2007, letter from Congressman Henry A. Waxman,
Chairman, House Committee on Oversight and Government Reform, to
Senator Patrick Leahy and Congressman John Conyers, Jr.
\10\Morton Rosenberg, Congressional Oversight Manual, CRS-39.
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Failure to provide information through accommodation
despite the established public need for it bolsters the need to
overcome claims of executive privilege. Executive privilege is
overcome where the subpoenaed materials likely contain
important information and where that information is not
available elsewhere.\11\ The evidence the Committee obtained in
this investigation shows significant involvement by senior
White House officials, but the White House has closed all
avenues for obtaining materials necessary to answer critical
questions about its involvement.\12\
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\11\In re Sealed Case, 121 F.3d at 755.
\12\The minority views filed by Senators Kyl, Sessions, Brownback
and Coburn quote Chairman Leahy and other Democratic Senators out of
context to suggest that the actions taken by the Committee in this
investigation stand in contrast to past statements recognizing that
``issuing a subpoena was a serious matter that should be undertaken
only after substantial deliberation.'' To the contrary, as demonstrated
in exhaustive detail in this report, this Committee undertook extensive
efforts to reach an accommodation with the administration before
authorizing subpoenas, before issuing subpoenas, before issuing any
rulings, and before voting on contempt resolutions. Judge Bates of the
District Court for the District of Columbia recounted the extent of the
efforts taken by both the House and Senate Judiciary Committees to
reach an accommodation with the administration in rejecting the
administration's claims of absolute immunity and blanket
unsubstantiated privilege. Judge Bates acknowledged that these efforts
had been to no avail in light of the administration's continued
reliance on its initial ``take it or leave it'' proposal for off-the-
record, backroom interviews with no transcript, no oath, and no ability
to follow up, which would deny Congress the ability to fulfill its
legislative and oversight responsibilities.
The Bush Administration's approach is a sharp break from the
approach of past administrations, such as the Clinton Administration,
in which 47 presidential advisors testified before Congress. Indeed,
the Committee's deliberation in continuing to seek an accommodation
with the administration even after voting to adopt the contempt
resolutions has led Senators Specter and Grassley to file minority
views to question whether the matter is now ``somewhere between moot
and meaningless'' because so much time has passed. Although the
administration has continued to stonewall the investigation, three
reports from the Department of Justice's Inspector General and Office
of Professional Responsibility have confirmed the Committee's findings
of serious wrongdoing, a federal court has rejected the
administration's immunity and privilege claims, and the Attorney
General has referred the matter to a Special Prosecutor for further
investigation to determine whether crimes occurred.
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IV. Former and Current White House Officials Failed To Comply With the
Senate Judiciary Committee's Subpoenas, Citing Blanket Executive
Privilege and Immunity Claims
In response to Senate Judiciary Committee subpoenas for
White House documents and for documents and testimony from
current and former White House officials related to the mass
firings of U.S. Attorneys, White House Counsel Fred Fielding
has conveyed President Bush's blanket claim of executive
privilege over all information from the White House related to
the Committee's investigation. In addition to its privilege
claims, the White House has asserted the novel claim that Karl
Rove, subpoenaed by this Committee for testimony and documents,
is immune as an ``immediate Presidential Advisor'' from
appearing at all.\13\
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\13\Letter from Fred Fielding, White House counsel, to Chairman
Leahy and Senator Specter (August 1, 2007).
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The effects of the White House's assertions of privilege
and immunity have been to withhold critical information related
to the Committee's investigation. The Committee has
demonstrated that it needs the subpoenaed materials in order to
perform its constitutional legislative, investigative, and
oversight functions and to explore the veracity of
administration responses to requests for information from the
Committee.
On June 13, 2007, Chairman Leahy issued a subpoena
authorized April 12, 2007, to Mr. Bolten, the White House
custodian of records, for documents related to the Committee's
investigation. The return date for the documents from Mr.
Bolten was June 28, 2007.
On June 28, 2007, Mr. Fielding sent a letter to the Senate
and House Judiciary Committees making a blanket claim of
executive privilege on behalf of President Bush, refusing to
turn over any documents compelled by subpoenas.\14\
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\14\Mr. Fielding's letter also responded to a subpoena issued June
13 to former White House employee Sara Taylor for documents and
testimony. Mr. Fielding's letter asserted that the testimony of Ms.
Taylor would be subject to a claim of executive privilege. That same
day, Mr. Fielding informed Ms. Taylor's attorney, W. Neil Eggleston,
that the President claimed executive privilege over all responsive
documents. Mr. Eggleston by letter informed the Committee that Ms.
Taylor was not producing the compelled documents, but rather turning
responsive documents over to the White House. Ms. Taylor was directed
by Mr. Fielding not to testify, and when she appeared before the Senate
Judiciary Committee on July 11, 2007, she selectively invoked Mr.
Fielding's letter to answer some, but not to answer many other,
questions regarding the firings.
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In response to the White House's blanket privilege claims,
on June 29, 2007, the Chairmen of the Senate and House
Judiciary Committees sent Mr. Fielding a letter asking the
White House to provide the Committees with the specific factual
and legal bases for its privilege claims regarding each
document withheld and a privilege log. They asked the White
House to provide this information so that it could substantiate
its claim. A serious assertion of privilege would include an
effort to demonstrate to the Committees which documents, and
which parts of those documents, are covered by any privilege
that is asserted to apply and why. The White House declined
this opportunity in a July 9, 2007, letter to the Committee
Chairmen. No factual basis for the blanket claims and no
specificity with respect to those claims of privilege have been
provided.
On July 26, 2007, Chairman Leahy issued a subpoena to Mr.
Rove for documents and testimony related to the Committee's
investigation. This subpoena had been authorized by the
Committee on March 22, 2007. It had a return date of August 2,
2007. Mr. Fielding sent a letter August 1, 2007, to Chairman
Leahy and Senator Specter informing the Committee that the
President would invoke the blanket claim of executive privilege
to direct Mr. Rove not to produce responsive documents or
testify before the Committee about the firings.\15\ In
addition, this letter asserted that Mr. Rove was ``immune from
compelled congressional testimony'' as an ``immediate
presidential advisor'' and would not even appear in response to
the Committee's subpoena.\16\
---------------------------------------------------------------------------
\15\Mr. Fielding's August 1, 2007, letter also informed the
Committee that the President would invoke the blanket claim of
executive privilege in response to a July 26, 2007, subpoena of Scott
Jennings. On August 2, 2007, Mr. Fielding sent a letter to Mr. Jennings
informing him that he was ``directed'' not to produce documents or
testify before Congress regarding the U.S. Attorney firings due to the
President's blanket privilege claim. When Mr. Jennings appeared before
the Senate Judiciary Committee on August 2, 2007, he selectively
invoked Mr. Fielding's letter not to answer most questions from members
of the Committee.
\16\Letter from Fred Fielding, White House Counsel, to Chairman
Leahy and Senator Specter (August 1, 2007).
---------------------------------------------------------------------------
Before ruling on the White House's executive privilege and
immunity claims, Chairman Leahy wrote to President Bush on
August 14, 2007, at the urging of Senator Specter, suggesting a
meeting to work out differences with respect to the
investigation before the Committee. Mr. Fielding responded for
the President on August 17, 2007, and rejected the request for
a meeting.
Executive privilege is not a broad and sweeping authority
the President can hide behind because he does not want to
cooperate with congressional oversight because White House
actions are embarrassing or worse. It should not prevent
Congress from examining White House documents vitally important
to a legitimate investigation. While courts have recognized a
qualified executive privilege, that privilege, even when
properly invoked, is not absolute and must be balanced against
the Committee's compelling need for the information in order
for Congress to perform its constitutional functions.
V. Ruling on Executive Privilege and Immunity Claims
Having been unable to reach accommodation with the White
House, on November 29, 2007, Chairman Leahy ruled on the
privilege and immunity claims. He held them not legally valid
and directed Mr. Rove and Mr. Bolten to comply with the Senate
subpoenas. His ruling is reprinted below:
VI. Resolutions Finding Joshua Bolten and Karl Rove in Contempt of
Congress for Failure To Comply With the Senate Subpoenas
Despite Chairman Leahy's ruling, Mr. Rove and Mr. Bolten
continued in noncompliance with the subpoenas. Mr. Bolten was
scheduled to appear and provide documents to the Committee by
June 28, 2007, and Mr. Rove was summoned to testify before the
Judiciary Committee on August 2, 2007. Both failed to appear.
On December 13, 2007, the Judiciary Committee found Mr. Rove
and Mr. Bolten to be in contempt of Congress for failing to
comply with the subpoenas issued in connection with the
Committee's investigation into the mass firings of U.S.
Attorneys. The bipartisan vote to report the contempt
resolutions came two weeks after Chairman Leahy ruled that the
President's claims of executive privilege were overbroad and
not legally valid to excuse Mr. Rove and Mr. Bolten from
providing Congress with subpoenaed documents and testimony.
A. FORM OF THE RESOLUTIONS
The resolutions of contempt, certifying the noncompliance
of Mr. Rove and Mr. Bolten are reprinted below:
RESOLUTION
Authorizing the President of the Senate to certify the
facts of the failure of Joshua Bolten, as the Custodian of
Records at the White House, to appear before the Committee on
the Judiciary and produce documents as required by Committee
subpoena.
WHEREAS, since the beginning of this Congress, the Senate
Judiciary Committee has conducted an investigation into the
removal of United States Attorneys;
WHEREAS, the Committee's requests for information related
to its investigation, including documents and testimony from
the White House and White House personnel, were denied;
WHEREAS, the White House has not offered any accommodation
or compromise to provide the information requested that is
acceptable to the Committee;
WHEREAS, on April 12, 2007, pursuant to its authority under
Rule 26 of the Standing Rules of the Senate, the Senate
Committee on the Judiciary authorized issuance to the Custodian
of Records at the White House, a subpoena which commands the
Custodian of Records to provide the Committee with all
documents in the possession, control, or custody of the White
House related to the Committee's investigation;
WHEREAS, on June 13, 2007, the Chairman issued a subpoena
pursuant to the April 12, 2007, authorization to White House
Chief of Staff Joshua Bolten as the White House Custodian of
Records, for documents related to the Committee's
investigation, with a return date of June 28, 2007;
WHEREAS, on June 28, 2007, in response to subpoenas for
documents issued by the Senate and House Judiciary Committees,
White House Counsel Fred Fielding conveyed the President's
claim of executive privilege over all information in the
custody and control of the White House related to the
Committee's investigation;
WHEREAS, based on this claim of executive privilege, Mr.
Bolten refused to appear and produce documents to the Committee
in compliance with the subpoena;
WHEREAS, on June 29, 2007, the Chairmen of the House and
Senate Judiciary Committees provided the White House with an
opportunity to substantiate its privilege claims by providing
the Committees with the specific factual and legal bases for
its privilege claims regarding each document withheld and a
privilege log to demonstrate to the Committees which documents,
and which parts of those documents, are covered by any
privilege that is asserted to apply and why;
WHEREAS, the White House declined this opportunity in a
July 9, 2007, letter to the Committee Chairmen from Mr.
Fielding, while reiterating the privilege claim;
WHEREAS, on August 17, 2007, Mr. Fielding rejected the
Chairman's request for a meeting with the President to work out
an accommodation for the information sought by the Committee;
WHEREAS, on November 29, 2007, the Chairman ruled that the
White House's claims of executive privilege and immunity are
not legally valid to excuse current and former White House
employees from appearing, testifying and producing documents
related to this investigation and directed Mr. Bolten, along
with other current and former White House employees, to comply
immediately with the Committee's subpoenas by producing
documents and testifying;
WHEREAS, Mr. Bolten has not complied with the Committee's
subpoenas or made any offer to cure his previous noncompliance;
WHEREAS, the Committee's investigation is pursuant to the
constitutional legislative, oversight and investigative powers
of Congress and the responsibilities of this Committee to the
Senate and the American people; including the power to: (1)
investigate the administration of existing laws, and obtain
executive branch information in order to consider new
legislation, within the Committee's jurisdiction, including
legislation related to the appointment of U.S. Attorneys; (2)
expose any corruption, inefficiency, and waste within the
executive branch; (3) protect the Committee's role in
evaluating nominations pursuant to the Senate's constitutional
responsibility to provide advice and consent; and (4) examine
whether inaccurate, incomplete, or misleading testimony or
other information was provided to the Committee;
BE IT RESOLVED, that the President of the Senate certify
the facts in connection with the failure of Joshua Bolten, as
the Custodian of Records at the White House, though duly
summoned, to appear and to produce documents lawfully
subpoenaed to be produced before the Committee, under the seal
of the United States Senate, to the United States Attorney for
the District of Columbia, to the end that Joshua Bolten may be
proceeded against in the manner and form provided by law.
----------
RESOLUTION
Authorizing the President of the Senate to certify the
facts of the failure of Karl Rove to appear and testify before
the Committee on the Judiciary and to produce documents as
required by Committee subpoena.
WHEREAS, since the beginning of this Congress, the Senate
Judiciary Committee has conducted an investigation into the
removal of United States Attorneys;
WHEREAS, the Committee's requests for information related
to its investigation, including documents and testimony from
the White House and White House personnel, were denied;
WHEREAS, the White House has not offered any accommodation
or compromise to provide the requested information that is
acceptable to the Committee;
WHEREAS, on March 22, 2007, pursuant to its authority under
Rule 26 of the Standing Rules of the Senate, the Senate
Committee on the Judiciary authorized issuance to Karl Rove,
Deputy Chief of Staff to the President, subpoenas in connection
with the Committee's investigation;
WHEREAS, on June 28, 2007, in response to subpoenas for
documents issued by the Senate and House Judiciary Committees,
White House Counsel Fred Fielding conveyed the President's
claim of executive privilege over all information in the
custody and control of the White House related to the
Committee's investigation;
WHEREAS, on June 29, 2007, the Chairmen of the House and
Senate Judiciary Committees provided the White House with an
opportunity to substantiate its privilege claims by providing
the Committees with the specific factual and legal bases for
its privilege claims regarding each document withheld and a
privilege log to demonstrate to the Committees which documents,
and which parts of those documents, are covered by any
privilege that is asserted to apply and why;
WHEREAS, the White House declined this opportunity in a
July 9, 2007, letter to the Committee Chairmen from Mr.
Fielding, while reiterating the blanket privilege claims;
WHEREAS, on July 26, 2007, the Chairman issued a subpoena
authorized March 22 to Mr. Rove for documents and testimony
related to the Committee's investigation, with a return date of
August 2;
WHEREAS, the Chairman noticed an August 2, 2007, Judiciary
Committee hearing under its Rules at which Mr. Rove was
subpoenaed to testify;
WHEREAS, Mr. Fielding, in an August 1, 2007, letter to the
Chairman and Ranking Member, informed the Committee that the
President would invoke a claim of executive privilege and a
claim of immunity from congressional testimony for Mr. Rove,
and directed Mr. Rove not to produce responsive documents or
testify before the Committee about the firings, and that Mr.
Rove would not appear in response to the Committee's subpoena;
WHEREAS, based on these claims of executive privilege and
absolute immunity, Mr. Rove refused to appear or to produce
documents or to testify at the Committee's August 2, 2007,
hearing in compliance with the subpoena;
WHEREAS, on August 17, 2007, Mr. Fielding rejected the
Chairman's request for a meeting with the President to work out
an accommodation for the information sought by the Committee;
WHEREAS, on November 29, 2007, the Chairman ruled that the
White House's claims of executive privilege and immunity are
not legally valid to excuse current and former White House
employees from appearing, testifying and producing documents
related to this investigation and directed Mr. Rove, along with
other current and former White House employees, to comply
immediately with the Committee's subpoenas by producing
documents and testifying;
WHEREAS, Mr. Rove has not complied with the Committee's
subpoenas or made any offer to cure his previous noncompliance;
WHEREAS, the Committee's investigation is pursuant to the
constitutional legislative, oversight and investigative powers
of Congress and the responsibilities of this Committee to the
Senate and the American people; including the power to: (1)
Investigate the administration of existing laws, and obtain
executive branch information in order to consider new
legislation, within the Committee's jurisdiction, including
legislation related to the appointment of U.S. Attorneys; (2)
expose any corruption, inefficiency, and waste within the
executive branch; (3) protect the Committee's role in
evaluating nominations pursuant to the Senate's constitutional
responsibility to provide advice and consent; and (4) examine
whether inaccurate, incomplete, or misleading testimony or
other information was provided to the Committee;
BE IT RESOLVED, that the President of the Senate certify
the facts in connection with the failure of Karl Rove, though
duly summoned, to appear and testify before the Judiciary
Committee and to produce documents lawfully subpoenaed to be
produced before the Committee, under the seal of the United
States Senate, to the United States Attorney for the District
of Columbia, to the end that Karl Rove may be proceeded against
in the manner and form provided by law.
B. VOTE ON THE RESOLUTIONS
The Senate Judiciary Committee considered the resolutions
on December 13, 2007. After debate, the Committee agreed to
report the resolutions favorably to the Senate by the following
vote:
YEAS (12) NAYS (7)
Biden (Del.) Brownback (Kan.)
Cardin (Md.) Coburn (Okla.)
Durbin (Ill.) Cornyn (Texas)
Feingold (Wis.) Graham (S.C.)
Feinstein (Calif.) Hatch (Utah)
Grassley (Iowa) Kyl (Ariz.)
Kennedy (Mass.) Sessions (Ala.)
Kohl (Wis.)
Leahy (Vt.)
Schumer (N.Y.)
Specter (Pa.)
Whitehouse (R.I.)
VII. The Privilege and Immunity Claims Are Not Legally Valid To Excuse
Compliance
A. THE PRESIDENT'S LACK OF INVOLVEMENT IN THE FIRINGS UNDERMINES
PRIVILEGE CLAIMS
Mr. Fielding's executive privilege assertion on behalf of
the President is surprising in light of the lack of evidence
that the President was involved in these firings. To date, the
President has not taken responsibility for the firings, and his
own statements regarding the firings deflect responsibility to
others for the decisions that were made. Attorney General
Alberto Gonzales's former chief of staff, the former political
director at the White House and Attorney General Gonzales
himself testified under oath that they did not talk to the
President about these firings.
On March 14, 2007, addressing the growing controversy
related to the firings, President Bush stated that the Justice
Department made the decisions in the firings:
I do have confidence in Attorney General Gonzales. I
talked to him this morning, and we talked about his
need to go up to Capitol Hill and make it very clear to
members in both political parties that the Justice
Department made the decisions it made, make it clear
about the facts, and he is right, mistakes were
made.\17\
---------------------------------------------------------------------------
\17\President George W. Bush, Joint Media Availability with
President Calderon of Mexico, Merida, Mexico, March 14, 2007 (emphasis
added).
President Bush echoed this statement in subsequent
statements on March 20, 2007, and March 31, 2007, continuing to
point to the need for Attorney General Gonzales to resolve the
scandal by telling the truth.\18\ He did not take
responsibility for the firings, nor did he express at any point
that he had been advised about them.
---------------------------------------------------------------------------
\18\See President George W. Bush, Press Conference Addressing the
Resignations of U.S. Attorneys, March 20, 2007; President George W.
Bush, Remarks with President Luiz Ignacio Lula De Silva of Brazil, Camp
David, MD, March 31, 2007.
---------------------------------------------------------------------------
Indeed, the sworn testimony of White House and Department
of Justice officials indicate that the President was not
involved. Kyle Sampson, former chief of staff to the Attorney
General who ``aggregated'' the lists of those U.S. Attorneys to
be fired, testified that the President was not present at a
single meeting to discuss the decision to remove the U.S.
Attorneys, and no presidential decision document endorsing the
replacement plan existed.\19\ Former Deputy Attorney General
Paul McNulty, on whose recommendations and advice Attorney
General Gonzales said he relied, testified that he was ``not
aware of the President being consulted'' in regards to the U.S.
Attorney firings.\20\ Ms. Taylor, former White House political
director, testified that to her knowledge the President was not
involved with any U.S. Attorney removal decisions.\21\ And in a
statement on March 13, the Attorney General stated that he took
responsibility for the firings,\22\ later testifying to the
same effect before the Committee.
---------------------------------------------------------------------------
\19\Interview with D. Kyle Sampson, Former Chief of Staff to the
Attorney General, Department of Justice (April 15, 2007).
\20\Testimony of Paul McNulty, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part II, Senate Committee on the Judiciary,
110th Congress at 76 (February 6, 2007).
\21\Testimony of Sara M. Taylor, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part VI, Senate Committee on the Judiciary,
110th Congress at 105-106 (July 11, 2007).
\22\Attorney General Alberto Gonzales, Press Conference on the
Firing of U.S. Attorneys (March 13, 2007).
---------------------------------------------------------------------------
Courts analyzing executive privilege claims have made clear
that the purpose of the privilege is to protect the President's
ability to receive candid advice. According to the leading case
on executive privilege from the D.C. Circuit, the presidential
communications privilege applies to communications ``intimately
connected to his presidential decision-making.''\23\ Where, as
here, the President by all accounts, including his own, was not
involved, there are serious questions whether information
sought by the Committee could be withheld based on a claim of
executive privilege.
---------------------------------------------------------------------------
\23\In re Sealed Case, 121 F.3d at 753.
---------------------------------------------------------------------------
The court decisions reviewing executive privilege claims do
not support such a broad scope for executive privilege claims
beyond communications directly involving the President. Senate
Select Committee on Presidential Campaign Activities v. Nixon
case dealt solely with tapes of presidential conversations.\24\
Nixon v. United States\25\ and Nixon v. Administrator of
General Services,\26\ the leading Supreme Court cases on the
issue of executive privilege, consider similarly limited
assertions of privilege.\27\
---------------------------------------------------------------------------
\24\Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974)
(holding that tapes of Presidential conversations that had already been
released to another committee were protected by executive privilege).
\25\Nixon v. United States, 418 U.S. 683 (1974).
\26\Nixon v. Administrator of General Services, 433 U.S. 425
(1977).
\27\In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir. 1997)
(the D.C. Circuit case which recently defined the scope of executive
privilege involved a grand jury subpoena and expressly excluded
congressional subpoenas from this extension of the privilege claim,
recognizing the different balance that would govern: ``Our
determination of how far down into the executive branch the
presidential communications privilege goes is limited to the context
before us, . . . and we take no position on how the institutional needs
of Congress and the President should be balanced.'' Even in that case,
the scope of privilege was limited to aides within ``operational
proximity'' of the President who were ``members of an immediate White
House adviser's staff who have broad and significant responsibility for
investigating and formulating the advice to be given the President on
the particular matter to which the communications relate'' but not
``staff outside the White House in executive branch agencies'').
---------------------------------------------------------------------------
The administration seeks to have it both ways by claiming
that the President was not involved in the removal decisions,
but simultaneously that executive privilege, premised on the
need to secure candid advice for the President, should apply.
If the White House wishes to assert executive privilege, it
should describe the involvement the President had in the
decision making process. It has not done so and the evidence is
that the President was not involved. Accordingly, there is no
justification for claiming executive privilege.
B. THE WHITE HOUSE'S ASSERTION OF EXECUTIVE PRIVILEGE IS
UNSUBSTANTIATED
The President has not met his burden of properly claiming
executive privilege, including a particularized showing of why
he is entitled to the privilege from disclosing the information
subpoenaed by the Committee. ``As with any privilege the burden
is upon the claimant of executive privilege to demonstrate a
proper entitlement to exemption from disclosure.''\28\ The
White House's generalized assertion of blanket privilege fails
to meet the President's burden, especially where, as here, the
Committee has set forth its need for the materials and evidence
showing White House involvement.\29\
---------------------------------------------------------------------------
\28\Smith v. F.T.C., 403 F. Supp. 1000, 1016 (D. Del. 1975). See
also, Black v. Sheraton Corp., 371 F. Supp. 97 (D.D.C. 1974) (``An
improperly asserted claim of privilege is no claim of privilege'').
\29\In re: Sealed Case (Espy) at 745 (``If a court believes that an
adequate showing of need has been demonstrated, it should proceed then
to review the documents in camera to excise non-relevant material.
Further, the President should be given the opportunity to raise more
particularized claims of privilege . . .'').
---------------------------------------------------------------------------
In Center on Corporate Responsibility v. Shultz, the D.C.
District Court held that the invocation of executive privilege
by a White House counsel is ``wholly insufficient to activate a
formal claim of executive privilege,'' and that such a claim
must be made by the ``President, as head of the `agency,' the
White House.''\30\ In Senate Select Committee on Presidential
Campaign Activities v. Nixon, the claim was asserted in a
letter to the Committee from the President.\31\ More recently,
when the D.C. Circuit determined that an assertion of executive
privilege by White House Counsel Abner Mikva was an acceptable
proxy for an assertion by the President, it did so because Mr.
Mikva in a sworn affidavit asserted that the President
personally invoked the privilege.\32\ Mr. Fielding's letters do
not meet this standard.
---------------------------------------------------------------------------
\30\368 F. Supp. 863, 872-73 (D.D.C. 1973). See also U.S. v.
Reynolds, 345 U.S. 1, 7-8 (1953) (``There must be a formal claim of
privilege, lodged by the head of the department which has control over
the matter, after actual personal consideration by that officer'').
\31\Senate Select Committee on Presidential Campaign Activities v.
Nixon, 498 F.2d, 725, 726-729 (D.C. Cir. 1974).
\32\In re Sealed Case (Espy) at 744, note 16 (``We need not decide
whether the privilege must be invoked by the President personally,
since the record indicates that President Clinton has done so here; in
his affidavit former White House Counsel Abner J. Mikva stated ``the
President . . . has specifically directed me to invoke formally the
applicable privileges over those documents'').
---------------------------------------------------------------------------
In addition, Mr. Fielding's claim on the President's behalf
fails to make ``a specific designation and description of the
documents claimed to be privileged'' as required by the
courts.\33\
---------------------------------------------------------------------------
\33\Smith at 1016 (quoting Black at 101).
---------------------------------------------------------------------------
After the White House counsel made a blanket privilege
assertion on behalf of the President in response to this
Committee's subpoenas and subpoenas issued by the House
Judiciary Committee, the Committees offered the White House the
opportunity to provide the factual and legal basis for its
blanket privilege assertion. A serious assertion of privilege
would include an effort to demonstrate to the Committees which
documents, and which parts of those documents, are covered by
any privilege that is asserted and why. The White House ignored
these opportunities. The White House's refusal to provide a
listing of those documents on which it asserts privilege and a
specific factual and legal basis for the assertion of executive
privilege undermines the validity of any privilege assertion.
Executive privilege, even where properly asserted, ``is
qualified, not absolute''\34\ and ``neither the doctrine of
separation of powers, nor the need for confidentiality of high-
level communications, without more, can sustain an absolute,
unqualified Presidential privilege.''\35\ The White House has
fallen well short of providing adequate support for its claims.
In reviewing executive privilege claims, courts have required
that the President make ``particularized showings in
justification of his claims of privilege''\36\ and have found
that that a privilege log is necessary ``in order that a court
be able to make a knowledgeable decision as to whether any
document or portion thereof actually contains advisory or
deliberative materials.'' The unilateral assertion of privilege
by a President must be subject to review by the Committee and
courts. The White House's refusal to provide the factual basis
for its claims renders them unfounded.
---------------------------------------------------------------------------
\34\In re Sealed Case (Espy), 121 F.3d at 745.
\35\United States v. Nixon, 418 U.S. 683, 706 (1974).
\36\Senate Select Committee at 729.
---------------------------------------------------------------------------
The complete lack of particularity of the White House
claims, including the lack of a privilege log or any specific
factual basis for the privilege claims is especially troubling
where, as here, there appears not to be any involvement by the
President. In presenting only a claim predicated on the
generalized need for candid dialogue between the President and
his aides, the President has failed to meet the burden of
making ``a demonstration of `precise and certain reasons for
preserving' the confidentiality of the governmental
communications.''\37\ There are not even demonstrated
communications with the President. Courts have cited with
approval the general practice of providing a sworn affidavit
raising the necessary facts underlying the claim.\38\ Courts
have rejected executive privilege claims, where, as here, they
are broad and inadequately substantiated. In one case, the D.C.
District Court held that ``to recognize such a broad claim in
which the Defendant has given no precise or compelling reasons
to shield these documents from outside scrutiny, would make a
farce of the whole procedure.''\39\ In another, the Court found
``serious deficiencies'' in an agency's privilege claim even
where the agency provided detailed information about each
specific document subject to the claim because ``little or no
information is provided as to the actual content of various
documents.''\40\
---------------------------------------------------------------------------
\37\Smith at 1016 (quoting Sheraton at 101).
\38\Smith at 1016 (``a close reading of cases where claims of
executive privilege were raised indicates that the necessary facts have
generally been required to be raised by affidavit'').
\39\Black v. Sheraton Corp., 371 F.Supp. 97, 101 (D.D.C. 1974).
\40\Smith at 1017.
---------------------------------------------------------------------------
As discussed more fully in the following pages, in a civil
suit stemming from the House Judiciary Committee's parallel
investigation, the District Court for the District of Columbia
undercut the White House's blanket claims of privilege without
substantiation.\41\ In his July 31, 2008, opinion, Judge John
D. Bates wrote that ``clear precedent and persuasive policy
reasons confirm that the Executive cannot be the judge of its
own privilege''\42\ and that ``both the Court and the parties
will need some way to evaluate the privilege assertions going
forward.''\43\ Judge Bates' opinion validates the Committee's
requests for over a year for the White House to provide the
specific legal and factual basis for its claims of privilege so
that the Committee can probe the basis for those claims and
their validity rather than rely on the say-so of the
President's lawyers.
---------------------------------------------------------------------------
\41\Committee on the Judiciary, U.S. House of Representatives v.
Miers, 558 F.Supp.2d 53 (D.D.C., 2008), order stayed by Committee on
Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909
(D.C.Cir. 2008).
\42\Id. at 106.
\43\Id. at 107.
---------------------------------------------------------------------------
The White House's assertion of privilege over information
related to the dismissal and replacement of U.S. Attorneys, and
the response to congressional and media inquiries about them,
extends to documents and testimony including internal White
House communications, communications between the White House
and the Department of Justice, and even communications between
officials at the White House and third-party individuals
outside the executive branch.\44\ The White House's privilege
claim is irrespective of the purpose of the communications.
Were it successful, this effort to extend the scope of the
privilege taken in conjunction with the White House's failure
to make the particularized showing needed to support its claim
would amount to an unprecedented and unchecked extension of
executive privilege to include any information.
---------------------------------------------------------------------------
\44\Letter from Paul D. Clement, Solicitor General and Acting
Attorney General, to President Bush (June 27, 2007).
---------------------------------------------------------------------------
C. CONGRESS' NEED FOR THE INFORMATION OUTWEIGHS ANY PRIVILEGE CLAIM
Presidential communications privilege is not absolute,\45\
and determining whether it prevails depends on ``a weighing of
the public interest protected by the privilege against the
public interests that would be served by disclosure in a
particular case.''\46\ According to the Supreme Court in Nixon
v. United States, ``when the privilege depends solely on the
broad, undifferentiated claim of public interest in the
confidentiality of such conversations, a confrontation with
other values arises.''\47\ The White House's privilege
assertion ignores the legitimate constitutional
responsibilities of Congress in this matter. The constitutional
legislative, investigative and oversight functions of Congress
must be balanced against, and in this instance outweigh, the
claim of executive privilege.
---------------------------------------------------------------------------
\45\United States v. Nixon, 418 U.S. 683, 706-707 (1974) (holding
that the executive was required to produce tapes of his oval office
conversations in response to a grand jury subpoena).
\46\Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973).
\47\United States v. Nixon at 706.
---------------------------------------------------------------------------
The constitutional functions of Congress include its
legislative functions, including the review and passage of laws
regarding the appointment of U.S. Attorneys and the filling of
vacancies in those offices; its oversight functions and
examination of the truthfulness of congressional testimony; the
Senate's role in confirming presidential nominations; and the
need to investigate possible corruption. The need to
investigate possible corruption, maladministration and the
failure to execute faithfully the laws weighs heavily in this
balance. Here, the compelling needs of Congress outweigh the
White House's generalized privilege assertion.
The constitutional powers of Congress and the
responsibilities of this Committee to the Senate and the
American people overcome the White House's unsubstantiated
privilege claims. The Supreme Court has long recognized that
Congress has ``broad'' power to investigate ``the
administration of existing laws'' and to ``expose corruption,
inefficiency, [and] waste'' within the executive branch.\48\
The Committee has the responsibility to conduct investigations
and obtain executive branch information in order to consider
legislation within its jurisdiction,\49\ including legislation
related to the appointment of U.S. Attorneys, and to protect
its role in evaluating nominations pursuant to the Senate's
constitutional responsibility to provide advice and consent.
Indeed, it was in light of this jurisdiction, the confirmation
power vested in the Senate, and the jurisdiction of this
Committee over the review of U.S. Attorney nominations, that
Senator Specter, the Committee's Ranking Member, observed early
on that the Committee has ``primary'' responsibility to
investigate this matter.
---------------------------------------------------------------------------
\48\See Watkins v. United States, 354 U.S. 178, 187 (1957).
\49\See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
---------------------------------------------------------------------------
This investigation offers a clear example of the
relationship between the Committee's compelling oversight and
investigative interests and the need for the Committee to
obtain information in order to legislate. Since this
investigation began and the Committee began uncovering abuses
in the appointment of interim U.S. Attorneys, Congress has
already legislated once to rescind the Attorney General's power
to appoint interim U.S. Attorneys who could serve indefinitely
without the Congressional approval.\50\
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\50\See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109-177, Title
V, Sec. 502, 120 Stat. 546 (Mar. 9, 2006); amended by Pub. L. No. 110-
34, Sec. 2, 121 Stat. 224 (June 14, 2007).
---------------------------------------------------------------------------
The Committee has met the standard provided by the D.C.
Circuit for establishing that its need for the materials
overcomes the privilege claim. According to the Espy court,
``[a] party seeking to overcome a claim of presidential
privilege must demonstrate: first, that each discrete group of
the subpoenaed materials likely contains important evidence;
and second, that this evidence is not available with due
diligence elsewhere.''\51\
---------------------------------------------------------------------------
\51\In re: Sealed Case (Espy) at 754 (The Acting Attorney General's
letter to the President cites the standard from an older D.C. Circuit
case, Senate Select Committee on Presidential Campaign Activities v.
Nixon, that has been superseded by Espy--that a Congressional Committee
must establish that the materials it seeks are ``demonstrably critical
to the fulfillment of the Committee's functions.'' Senate Select Comm.
at 731. There is no question the Committee's need for this information
meets either standard. Here, unlike in Senate Select, the documents and
testimony sought by the Committee contain information that remains
under White House control and critical to the investigation).
---------------------------------------------------------------------------
The Committee has pursued this matter diligently. Based on
evidence, information, testimony and interviews, the Committee
believes that White House officials are involved. Still, the
White House refuses to provide a single witness or document.
The documents and testimony that have been subpoenaed will
provide critical evidence.
D. EVIDENCE OF INVOLVEMENT OF WHITE HOUSE OFFICIALS IN THE FIRINGS
DEMONSTRATES COMMITTEE'S NEED FOR THE INFORMATION
In contrast to the White House's improperly asserted and
unparticularized privilege claims, the Committee's need for
this information, including the specific information of White
House involvement and possible misconduct, has been well-
established. Evidence gathered by the investigating Committees
of the Senate and House shows that White House officials played
a significant role in originating, developing, coordinating and
implementing these unprecedented firings and the Justice
Department's response to congressional inquiries about it.
The accumulated evidence shows that the list for firings
was compiled based on input from the highest political ranks in
the White House, including Mr. Rove, Ms. Taylor, and Mr.
Jennings. The evidence shows that senior officials were
apparently focused on the political impact of Federal
prosecutions and whether Federal prosecutors were doing enough
to bring partisan voter fraud\52\ and corruption cases. It is
obvious that the reasons given for these firings were contrived
as part of a cover up and that the stonewalling by the White
House is part and parcel of that same effort. Even Attorney
General Gonzales, in his sworn testimony in July 2007,
contrasted these politically motivated firings with the
replacement of other United States Attorneys for ``legitimate
cause.''\53\
---------------------------------------------------------------------------
\52\The minority views filed by Senators Kyl, Sessions, Brownback
and Coburn repeat partisan talking points from the last election
equating voter registration fraud with in-person voter fraud. Only the
latter threatens to affect the outcome of an election. As both this
Committee and the Senate Rules Committee have demonstrated in numerous
hearings, the myth of in-person voter fraud is just that. In their
recent amicus brief to the United States Supreme Court a number of
present and former Secretaries of State from Georgia, Maryland,
Missouri, Ohio and Vermont noted that ``in Federal elections between
1996 and the present, in which more than twenty-four million votes were
cast'' not a single case of voter impersonation fraud occurred at the
polls. The Federal Judge who reviewed and dismissed a Justice
Department suit against Missouri concluded: ``It is . . . telling that
the United States has not shown that any Missouri resident was denied
his or her right to vote . . . [n]or has the United States shown that
any voter fraud has occurred.''
\53\Testimony of Alberto Gonzales, Oversight of the U.S. Department
of Justice, Senate Committee on the Judiciary, 110th Congress at 53
(July 24, 2007).
---------------------------------------------------------------------------
The evidence that U.S. Attorneys were fired for political
purposes points to Mr. Rove and his political operations in the
White House. Evidence shows that Mr. Rove and then-White House
Counsel Alberto Gonzales were involved from the beginning in
plans to remove U.S. Attorneys. According to documents obtained
from the Department and Mr. Sampson's testimony, Mr. Sampson
discussed the plan with then-White House Counsel Gonzales not
long after President Bush's re-election in 2004. A January 9,
2005, e-mail released by the Department shows that Mr. Rove
initiated inquires with respect to ``how we planned to proceed
regarding U.S. Attorneys, whether we were going to allow all to
stay, request resignations from all and accept only some of
them, or selectively replace them, etc.''\54\ In his response
to queries from David Leitch, a White House official, Mr.
Sampson expressly deferred to the political judgment of Mr.
Rove as to whether to proceed with plans for the replacement of
U.S. Attorneys, writing,``[I]f Karl thinks there would be
political will to do it, then so do I.''\55\
---------------------------------------------------------------------------
\54\OAG 180.
\55\Id.
---------------------------------------------------------------------------
Mr. Sampson, who has testified that he ``aggregated'' the
list of U.S. Attorneys to be fired, was apparently in frequent
contact with White House officials about multiple versions of
proposed lists of possible U.S. Attorneys for dismissal and
potential replacements over the course of nearly two years.\56\
---------------------------------------------------------------------------
\56\Interview with D. Kyle Sampson, Former Chief of Staff to the
Attorney General, Department of Justice at 111-119 (April 15, 2007).
---------------------------------------------------------------------------
Mr. Rove's own words suggest that placing ``loyal Bushies''
in key battleground states for the next election played a
significant role in these firings. In April 2006, Mr. Rove gave
a speech to the Republican National Lawyers' Association where
he listed 11 states he saw as pivotal battlegrounds for the
2008 election: Pennsylvania, Michigan, Ohio, Florida, Colorado,
Arkansas, Wisconsin, Minnesota, Nevada, Iowa, New Mexico.\57\
Since 2005, U.S. Attorneys in nine of these states have been
considered for removal and nine have been replaced.\58\ Four of
the U.S. Attorneys who were fired as part of the mass firing
were from these states.
---------------------------------------------------------------------------
\57\Speech by Karl Rove to Republican National Lawyers Association,
April 7, 2006; See also Greg Gordon, New U.S. Attorneys Seem to Have
Partisan Records, McClatchy Newspapers, March 23, 2007.
\58\An Evolving List, Washington Post, May 17, 2007.
---------------------------------------------------------------------------
The Committee has learned that Mr. Rove raised concerns
with Attorney General Gonzales about prosecutors not
aggressively pursuing purported voter fraud cases in several of
the districts he discussed in that speech and that prior to the
2006 mid-term election he sent the Attorney General's chief of
staff a packet of information containing a 30-page report
concerning voting in Wisconsin in 2004.\59\ Mr. Rove also
passed on to Mr. Sampson the complaints of Wisconsin Republican
officials about the U.S. Attorney for the Eastern District of
Wisconsin regarding his failure to pursue voter fraud
cases.\60\ That U.S. Attorney's name was added to the list Mr.
Sampson was developing for firing in early 2005, two weeks
after Mr. Rove reviewed activity about vote fraud in his
district.\61\ That U.S. Attorney's name did not appear on
subsequent lists and he kept his job after he brought 14 voter
fraud cases arising from the 2004 election and prosecuted
Wisconsin civil servant Georgia Thompson in a public corruption
case connected to Democratic Governor Jim Doyle.\62\ The
Justice Department won only five of these 14 cases\63\ and the
Georgia Thompson case was later thrown out on appeal by the
Seventh Circuit for evidence that was ``beyond thin''
immediately after oral argument, which is highly unusual.\64\
This evidence points to Mr. Rove's role and the role of those
in his office in removing or trying to remove prosecutors not
considered sufficiently loyal to Republican electoral
prospects. Such manipulation shows corruption of Federal law
enforcement for partisan political purposes.
---------------------------------------------------------------------------
\59\Interview with Matthew Friedrich, Chief of Staff and Principal
Deputy Assistant Attorney General, Criminal Division, Department of
Justice at 27-31 (May 4, 2007); OAG 820-852
\60\Interview with D. Kyle Sampson, Former Chief of Staff to the
Attorney General, Department of Justice at 168-175 (April 15, 2007).
\61\An Evolving List.
\62\Eric Lipton and Ian Urbina, In 5-Year Effort, Scant Evidence of
Voter Fraud, New York Times, April 12, 2007; Gina Barton, Stacy Forster
and Steven Walters, State Official Indicted in Travel Contract Case,
Milwaukee Journal-Sentinel, January 24, 2007.
\63\Lipton and Urbina, 5-Year Effort, Scant Evidence of Voter
Fraud.
\64\U.S. v. Thompson, 484 F.3d 877, 878-879 (7th. Cir. 2007);
Steven Walters and John Diedrich, Ex-State Official Freed, April 5,
2007.
---------------------------------------------------------------------------
We also know, through press accounts and testimony, that
after the 2006 midterm election, Mr. Rove discussed the
performance of New Mexico U.S. Attorney David Iglesias with
Senator Domenici, who himself had called Mr. Iglesias before
the election to ask whether he was bringing indictments against
a Democratic official in the lead up to the election.\65\ We
have learned that Mr. Jennings set up a meeting between the
Department's White House liaison, Monica Goodling, and New
Mexico Republican officials in June 2006 to talk about the U.S.
Attorney ``situation'' in New Mexico, describing it as
``sensitive.''\66\ Matthew Friedrich, counselor to the Attorney
General, also met with these officials and testified that they
were concerned about Mr. Iglesias' failure to bring a
particular vote fraud case against ACORN, a non-profit
organization that works to register voters.\67\ Mr. Friedrich
also testified that when he later met with these officials,
they told him they had communicated with Mr. Rove and Senator
Domenici about trying to have Mr. Iglesias removed.\68\
---------------------------------------------------------------------------
\65\Mike Gallagher, Domenici Sought Iglesias Ouster, Albuquerque
Journal, April 15, 2007; Preserving Prosecutorial Independence: Is the
Department of Justice Politicizing the Hiring and Firing of U.S.
Attorneys?--Part II, Senate Committee on the Judiciary, 110th Congress
at 36-37 (March 6, 2007).
\66\OAG 114, 572; Interview with Matthew Friedrich at 31-40.
\67\Id. at 34-35.
\68\Id. at 38-39.
---------------------------------------------------------------------------
Mr. Iglesias was subsequently fired a few weeks after Mr.
Rove complained to the Attorney General about the lack of
purported ``voter fraud'' enforcement cases in his
jurisdiction.\69\ His name had not been on any previous lists
of U.S. Attorneys being considered for firing that were
``aggregated'' by Mr. Sampson.\70\ According to Allen Weh,
chairman of New Mexico's Republican party, when he asked Mr.
Rove during a holiday party in 2006 ``is anything ever going to
happen to that guy?''--referring to Mr. Iglesias--Mr. Rove
responded, ``He's gone.''\71\
---------------------------------------------------------------------------
\69\Testimony of Kyle Sampson, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part III, Senate Committee on the Judiciary,
110th Congress at 130-134 (March 29, 2007).
\70\Id. at 130-131.
\71\See Margaret Talev & Marisa Taylor, Rove Was Asked to Fire U.S.
Attorney, McClatchy Newspapers, March 10, 2007.
---------------------------------------------------------------------------
Evidence suggests that other fired U.S. Attorneys had drawn
the ire of political operatives in the White House. John McKay,
former U.S. Attorney for the Western District of Washington,
testified that when he met with Ms. Miers and her deputy Mr.
Kelley to interview for a Federal judgeship, he was asked to
explain ``criticism that I mishandled the 2004 governor's
election'' after which Republicans were upset with him for not
intervening in that closely contested election.\72\
---------------------------------------------------------------------------
\72\Answers to Post-Hearing Questions from John McKay, H.R. 580,
Restoring Checks and Balances in the Confirmation Process of U.S.
Attorneys, Subcomm. on Commercial and Admin. Law, House Committee on
the Judiciary, 110th Congress at 275 (March 6, 2007).
---------------------------------------------------------------------------
There is evidence that suggests that White House officials
may have been involved in the firing of Carol Lam, former U.S.
Attorney for the Southern District of California. She
prosecuted Republican Congressman Duke Cunningham, which led to
his conviction and the convictions of CIA official Kyle
``Dusty'' Foggo and Brent Wilkes, a defense contractor with
links to Republican members of Congress. One day after she
notified Department officials in Washington, D.C., that she was
executing search warrants against Mr. Foggo and Mr. Wilkes,\73\
Kyle Sampson sent an email to Deputy White House Counsel
William Kelley saying that they should discuss, ``[t]he real
problem we have right now that leads me to conclude that we
should have someone ready to be nominated on 11/18, the day her
4-year term expires.''\74\
---------------------------------------------------------------------------
\73\Dan Eggen, Prosecutor's Firing Was Urged During Probe,
Washington Post, March 9, 2007; Testimony of Kyle Sampson, Preserving
Prosecutorial Independence: Is the Department of Justice Politicizing
the Hiring and Firing of U.S. Attorneys?--Part III at 39-40.
\74\OAG 22.
---------------------------------------------------------------------------
According to documents and testimony, Ms. Taylor and Mr.
Jennings were involved in the discussions and planning that led
to the removal of Bud Cummins and bypassing the Senate
confirmation process to install Tim Griffin, another former
aide to Mr. Rove, as U.S. Attorney in the Eastern District of
Arkansas. They were both part of a group that discussed using
the Attorney General's expanded authority under the Patriot Act
reauthorization to avoid the opposition of the Arkansas
Senators by appointing Mr. Griffin indefinitely.\75\ Mr.
Sampson testified that Ms. Taylor was upset when, a month after
telling Senator Pryor he was committed finding a U.S. Attorney
who could be confirmed by the Senate, the Attorney General
finally ``rejected'' this use of his appointment authority.\76\
---------------------------------------------------------------------------
\75\Interview with D. Kyle Sampson, Former Chief of Staff to the
Attorney General, Department of Justice at 54 (April 15, 2007).
\76\Id. at 93.
---------------------------------------------------------------------------
In addition, documents and testimony show that Ms. Taylor
was the White House official who approved the plan for firing
multiple U.S. Attorneys on December 7, 2006, on behalf of the
White House political office.\77\ Mr. Jennings also had
knowledge of this plan and both he and Ms. Taylor were involved
in subsequent discussions regarding congressional testimony of
Department officials and the administration's response to the
growing scandal surrounding the firings.\78\
---------------------------------------------------------------------------
\77\OAG 45; Testimony of Kyle Sampson, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part III at 32-33.
\78\Testimony of Kyle Sampson, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part III at 37-39.
---------------------------------------------------------------------------
Documents and testimony also show that Mr. Rove, Mr.
Jennings and Ms. Taylor had a role in shaping the
administration's response to congressional inquiries into these
dismissals, which led to inaccurate and misleading testimony to
Congress and misleading statements to the public. According to
the testimony of Department officials, Mr. Rove and other White
House officials attended a meeting at the White House on March
5, 2007--the day before Principal Associate Deputy Attorney
General William Moschella testified before the House Judiciary
Committee--to ``go over the Administration's position on all
aspects of the US atty issue.''\79\
---------------------------------------------------------------------------
\79\Interview with William Moschella, Principal Associate Deputy
Attorney General, Department of Justice at 99-102 (April 24, 2007); DAG
0840.
---------------------------------------------------------------------------
The administration's response included an attempt to cover
up the role that White House officials played in the firings.
According to documents and the testimony of Mr. Sampson,
Attorney General Gonzales was upset after the February 6, 2006,
testimony of Deputy Attorney General Paul McNulty because Mr.
McNulty's testimony put the White House involvement in the
firings in the public domain.\80\ The administration's February
23, 2007, response to a letter from Senators Reid, Schumer,
Durbin and Murray regarding the firings stated, ``The
Department is not aware of Karl Rove playing any role in the
decision to appoint Mr. Griffin.''\81\ Earlier emails indicate
that the appointment of Mr. Griffin was important to Mr.
Rove.\82\ The White House apparently signed off on this letter.
Many parts of this letter were later retracted.\83\ Reports
indicate that among the emails withheld from the investigating
Committees are emails indicating that White House officials
were consulted about that misleading letter.\84\
---------------------------------------------------------------------------
\80\Testimony of Kyle Sampson, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part III at 159-162; OAG 297.
\81\Letter from Richard A. Hertling, Acting Assistant Attorney
General, to Senator Charles Schumer (February 23, 2007).
\82\OAG 127.
\83\Letter from Richard A. Hertling, Acting Assistant Attorney
General, Department of Justice to Senator Patrick Leahy and Senator
Charles Schumer (March 28, 2007).
\84\Evan Perez, More Justice Emails Raise Stakes for Aide,
Washington Post, March 29, 2007.
---------------------------------------------------------------------------
The extensive involvement of White House officials in the
matters under investigation has been established by the
selective documents and emails released by the Justice
Department and by the testimony of Department officials. What
the White House stonewalling is preventing is conclusive
evidence of who made the decisions to fire these Federal
prosecutors. The Committee's investigation of the firings,
including critical information about the reasons and
motivations for them, and the veracity of information provided
to Congress about them, remains incomplete without the
materials subpoenaed by this Committee.
E. EXECUTIVE PRIVILEGE NOT PROPER TO COVER UP WRONGDOING
The White House's privilege claim is particularly
inappropriate in light of the evidence suggesting possible
wrongdoing by government officials. Not only has the Supreme
Court recognized that Congress' ``broad investigative power''
is necessary to determine whether there was wrongdoing and
address it,\85\ but previous administrations have recognized
that executive privilege should not be invoked to prevent
investigations into wrongdoing. During the Reagan
administration, President Reagan himself declared, ``[w]e will
never invoke executive privilege to cover up wrongdoing,''\86\
and the Justice Department's Office of Legal Counsel stated,
``the privilege should not be invoked to conceal evidence of
wrongdoing or criminality on the part of executive
officers.''\87\ The Clinton administration followed a similar
policy, stating that in relation to communications ``relating
to investigations of personal wrongdoing by government
officials, it is our practice not to assert executive
privilege, either, in judicial proceedings or in congressional
investigations and hearings.''\88\
---------------------------------------------------------------------------
\85\See Nixon v. Adm'r of Gen. Srvs., 433 U.S. 425, 453 (1977)
(court found there to be a ``substantial public interest'' in
preserving President Nixon's records so that Congress could investigate
the events that led to President Nixon's resignation ``in order to
gauge the necessity for remedial legislation'').
\86\Public Papers of the Presidents (1983) at 239, cited in L.
Fischer, The Politics of Executive Privilege at 51 (2004).
\87\Congressional Subpoenas of Department of Justice Investigative
Files, 8 U.S. Op. Off. Legal Counsel 252 at 41 (1984).
\88\Lloyd N. Cutler, Special Counsel to the President, Memorandum
for all Executive Department and Agency Counsels, Congressional
Requests for Departments and Agencies for Documents Protected by
Executive Privilege at 1, Sept. 28, 1994, available in Frederick M.
Kaiser et al., Congressional Oversight Manual, CRS Report for Congress,
RL 30240 at App. C, May 1, 2007.
---------------------------------------------------------------------------
The Committee has found evidence of possible wrongdoing.
The evidence supports a conclusion that officials from the
highest political ranks at the White House, including Mr. Rove,
manipulated the Justice Department, turning the Department into
a political arm of the White House to pursue a partisan
political agenda. The Committee has found evidence of the
involvement of White House officials in pressuring prosecutors
to bring partisan cases and seeking retribution against those
who refuse to adhere to the political will of the
administration. One example is New Mexico U.S. Attorney David
Iglesias, who was fired a few weeks after Karl Rove complained
to the Attorney General about the lack of purported ``voter
fraud'' enforcement cases in Mr. Iglesias' jurisdiction.
Department official Monica Goodling admitted while testifying
before the House Judiciary Committee under a grant of immunity
from prosecution to improperly screening career employees for
political loyalty and wielding undue political influence over
key law enforcement decisions and policies.\89\ The Committee
has found that officials at the White House and the Justice
Department were determined to use the Attorney General's new
authority enacted as part of the Patriot Act reauthorization,
since rescinded, to put in place ``interim'' U.S. Attorneys
indefinitely, doing an end-run around the Senate's
constitutional and statutory role in the confirmation of U.S.
Attorneys.\90\
---------------------------------------------------------------------------
\89\Testimony of Monica Goodling, The Continuing Investigation into
the U.S. Attorneys Controversy and Related Matters (Part I), House
Committee on the Judiciary, 110th Congress at 36 (May 23, 2007).
\90\Testimony of Kyle Sampson, Preserving Prosecutorial
Independence: Is the Department of Justice Politicizing the Hiring and
Firing of U.S. Attorneys?--Part III at 137; OAG 127.
---------------------------------------------------------------------------
Along the way, this subversion of the justice system has
included lying, misleading, stonewalling and ignoring the
Congress in our attempts to find out precisely what happened.
The reasons given for these firings were contrived as part of a
cover up and the stonewalling by the White House is part and
parcel of that same effort. During his sworn testimony,
Attorney General Gonzales, who has since resigned, contrasted
these politically motivated firings with the replacement of
other United States Attorneys for ``legitimate cause.''
As discussed more fully below, a joint investigation by the
Department's Office of Inspector General (OIG) and Office of
Professional Responsibility (OPR) concluded that the firings
were unprecedented and that partisan political considerations
played a role in the firings.\91\ The report also concluded
that the firings were not the result of ``a few bad apples''
run amok as suggested by some in the administration, but rather
that Attorney General Gonzales and Deputy Attorney General
McNulty bore primary responsibility for the deeply flawed
process that led to the firings because they ``abdicated their
responsibility to adequately oversee the process and to ensure
that the reasons for removal of each U.S. Attorney were
supportable and not improper.'' In addition, the internal
investigation found that they and other high-level Department
officials were responsible for making untruthful statements
about the removals and their role in the process. Finally, even
though it was an executive branch investigation, the OIG/OPR
investigation, like the Committee's investigation, was impeded
by the Bush administration's refusal to cooperate and provide
documents or witnesses despite evidence pointing to the
significant involvement of high-level White House officials.
---------------------------------------------------------------------------
\91\``An Investigation into the Removal of Nine U.S. Attorneys in
2006,'' the Department of Justice's Office of the Inspector General and
the Department of Justice's Office of Professional Responsibility
(September 29, 2008).
---------------------------------------------------------------------------
Since the beginning of this investigation, numerous
Department and administration officials heavily involved in
these firings have resigned, including the Attorney General and
his chief of staff, the Deputy Attorney General and his chief
of staff, the Acting Associate Attorney General, the
Department's White House liaison, the Director of the Executive
Office of U.S. Attorneys, the White House Political Director,
the White House Counsel, the Deputy White House Counsel, and
the White House Deputy Chief of Staff.
Monica Goodling, the Department's White House liaison, who
only testified before the House Judiciary Committee after
invoking her Fifth Amendment privilege against self-
incrimination and receiving immunity, admitted to ``crossing
the line'' with the illegal political vetting of possible hires
for career positions at the Justice Department.\92\ The
allegations of improper hiring for career positions throughout
the Department have been corroborated and confirmed as
widespread by two OIG/OPR reports stemming from referrals by
the Senate and House Judiciary Committees. An OIG/OPR report
issued June 24, 2008, found improper and illegal political
hiring for career positions in the Department's Honors Program
and Summer Law Intern Program and a report issued July 28,
2008, found improper and illegal use of political
considerations in hiring for career positions throughout the
Department, including hiring for career prosecutor positions in
U.S. Attorneys offices, for detailee positions in main Justice,
and for immigration judge positions.
---------------------------------------------------------------------------
\92\Testimony of Monica Goodling, The Continuing Investigation into
the U.S. Attorneys Controversy and Related Matters (Part I) at 36.
---------------------------------------------------------------------------
Bradley Schlozman, former Acting Assistant Attorney General
for the Civil Rights Division of the Department of Justice and
former Interim United States Attorney for the Western District
of Missouri, has also acknowledged raising the political
leanings of candidates who were being considered for career
positions at the Justice Department.\93\ A forthcoming report
is expected to detail the findings of the OIG/OPR investigation
into the allegations raised regarding Mr. Schlozman and the use
of political considerations for hiring and personnel decisions
in the Civil Rights Division.
---------------------------------------------------------------------------
\93\Answers to Post-Hearing Questions from Bradley Schlozman,
Preserving Prosecutorial Independence: Is the Department of Justice
Politicizing the Hiring and Firing of U.S. Attorneys?--Part V, Senate
Committee on the Judiciary, 110th Congress (June 5, 2007).
---------------------------------------------------------------------------
The President's claim of executive privilege cannot be used
to shield Congress from investigating possible wrongdoing by
officials at the Department and the White House. Such
wrongdoing was rampant.
F. THE WHITE HOUSE'S CLAIMS THAT KARL ROVE IS IMMUNE FROM TESTIMONY ARE
CONTRADICTED BY LEGAL AND HISTORICAL PRECEDENT
In an August 1, 2007, letter, White House Counsel Fred
Fielding advanced the novel argument that ``based upon the
advice of the Department of Justice, the President also has
requested that I advise and inform you that Mr. Rove, as an
immediate presidential advisor, is immune from compelled
congressional testimony about matters that arose during his
tenure and that relate to his official duties in that
capacity.'' The White House raised similar arguments in
response to a House Judiciary Committee subpoena issued to
former White House Counsel Harriet Miers.
There is no proper basis for Mr. Rove to refuse to appear
pursuant to the Committee's subpoena. Since World War II, 74
presidential advisors, in positions of proximity to the
President similar to Mr. Rove, have testified before Congress,
many of those compelled by subpoena.\94\ Since 1975, in each of
the 10 times cabinet-level or senior executive officials have
been cited by a congressional committee for contempt for
failure to produce subpoenaed documents, the officials turned
over the documents and ``there was substantial or full
compliance with the document demands.''\95\ The White House's
newly-minted claim of ``immunity'' for White House employees is
undermined by appearances by other current and former White
House advisors, Ms. Taylor and Mr. Jennings, in response to
this Committee's subpoenas related to this investigation. Even
President Nixon backed away from making the extreme legal
argument asserted by this White House. The White House Counsel,
John Dean, and other advisors appeared and testified before
Congress during its investigation of the Watergate scandal.
---------------------------------------------------------------------------
\94\Harold C. Relyea & Todd B. Tatelman, Presidential Adviser's
Testimony Before Congressional Committees: An Overview, CRS Report for
Congress, RL 31351 (April 10, 2007).
\95\Morton Rosenberg, Congressional Oversight Manual, CRS-37, note
21 and accompanying text.
---------------------------------------------------------------------------
In support of this blanket assertion of immunity, the
administration does not set forth a single court precedent.
Rather, it relies on an August 1, 2007, letter from White House
Counsel Fred Fielding and attached July 10, 2007, memorandum
from Stephen G. Bradbury, this administration's principal
Deputy Assistant Attorney General in the Office of Legal
Counsel (OLC), that amounts to a selective and incomplete
collection of untested executive branch memoranda, opinions,
presidential letters and speeches--in short, assertions of
executive power by the executive branch.\96\ Indeed, the White
House does not and cannot cite a single court case in support
of its claims.
---------------------------------------------------------------------------
\96\Steven G. Bradbury, Re: Immunity of Former Counsel to the
President from Compelled Testimony at 1, July 10, 2007 (quoting
Assertion of Executive Privilege with Respect to Clemency Decision, 23
Op. O.L.C. 1, 4 (1999) (hereinafter Bradbury)).
---------------------------------------------------------------------------
In a civil suit stemming from the House Judiciary
Committee's parallel investigation, the District Court for the
District of Columbia rejected the administration's claim of
immunity for presidential advisors.\97\ In his July 31, 2008,
opinion, Judge Bates found that the ``Executive's current claim
of absolute immunity from compelled congressional process for
senior presidential aides is without any support in the case
law.'' In addition, Judge Bates explained why the
administration's blanket immunity claims were an unjustified
encroachment on the constitutional powers of Congress. He
wrote: ``[I]f the Executive's absolute immunity argument were
to prevail, Congress could be left with no recourse to obtain
information that is plainly not subject to any colorable claim
of executive privilege.'' The result, which the court concluded
was ``unacceptable,'' would be that the ``Executive's proposed
absolute immunity would thus deprive Congress of even non-
privileged information.''\98\
---------------------------------------------------------------------------
\97\See Committee on the Judiciary v. Miers, 558 F.Supp.2d 53.
\98\Id. at 106.
---------------------------------------------------------------------------
Although the administration has appealed Judge Bates'
decision to the D.C. Circuit, the D.C. Circuit has specifically
rejected the argument that OLC opinions like those cited by the
White House in support of its novel claims have value as legal
precedent outside of the executive branch itself. In Public
Citizen v. Burke,\99\ the government sought to enforce an OLC
opinion that obliged the Archivist of the United States to
``acquiesce in any claim of executive privilege asserted by the
former president.''\100\ The opinion nominally interpreted
regulations issued under the Presidential Recordings and
Materials Act of 1974.\101\ The court rejected the
administration's argument, holding that deference to executive
branch documents occurred only where an agency was interpreting
a statute that it was bound to enforce and that, ``[t]he
federal Judiciary does not, however, owe deference to the
Executive Branch's interpretation of the Constitution.''\102\
Accordingly, the court rejected the OLC opinion because it ``is
at variance with congressional purpose.''\103\
---------------------------------------------------------------------------
\99\843 F.2d 1473, (Cir. Ct. D.C. 1988).
\100\Id. at 1474.
\101\Note following 44 U.S.C. Sec. 2111 (1982).
\102\See Burke, 843 F.2d at 1478, (``[T]he government's
administrative opinion is not, in any meaningful sense, an
interpretation of the statute. The OLC memorandum is driven entirely by
its constitutional reasoning'').
\103\843 F.2d at 1480.
---------------------------------------------------------------------------
In fact, Federal court decisions contradict the White
House's immunity assertion, and establish the scope of
executive privilege and the need for balance among the three
branches of the government. These decisions establish that no
government official, including the President, is immune from
compliance with a subpoena. Mr. Bradbury's memo states, ``This
immunity is absolute and may not be overborne by competing
congressional interests.''\104\ This broad claim was struck
down in the earliest days of the Republic. When the privilege
was first recognized during the trial of Aaron Burr in 1807,
Chief Justice Marshall specifically stated ``[t]hat the
president of the United States may be subpoenaed, and examined
as a witness, and required to produce any paper in his
possession, is not controverted.''\105\ The Supreme Court yet
again ratified this principle 190 years later when it held that
even a sitting president may be subpoenaed by a court and
required to participate in a civil lawsuit.\106\
---------------------------------------------------------------------------
\104\Bradbury at 1.
\105\United States v. Burr, 25 F.Cas. 187, 191 (1807).
\106\Clinton v. Jones, 520 U.S. 681, 703-706 (1997).
---------------------------------------------------------------------------
Moreover, Federal courts examining privilege claims have
never endorsed the type of blanket immunity claim set forth by
the White House in response to congressional or court
subpoenas. For example, in Senate Select Committee on
Presidential Campaign Activities v. Nixon, a case involving an
executive privilege claim against compulsion by a congressional
subpoena, the court set forth, as it has in every other
instance of an executive privilege claim, a balancing test of
the interests involved. The court held that applying the
privilege ``depends on a weighing of the public interest
protected by the privilege against the public interests that
would be served by disclosure in a particular case.''\107\ This
balancing test presupposes that the President, not to mention
his aides, must be able to be compelled by congressional
committees to appear.
---------------------------------------------------------------------------
\107\Senate Select Committee v. Nixon, 498 F.2d 725, 729 (D.C.
Cir., 1974).
---------------------------------------------------------------------------
The White House contends its novel claim of immunity for
presidential aides arises from separation of powers principles
that render the President immune from Congressional subpoena.
These claims ignore that the branches of government, while
separate, act as a check on each other. Courts have long
recognized that Congress has a broad, constitutionally grounded
oversight power that encompasses both investigations into the
administration of the government and the power to compel
production of information where necessary. Mr. Bradbury's memo
relies heavily on statements by President Truman in its
argument and ignores that his broad claims of presidential
authority were rebuffed by the Supreme Court in the Youngstown
Sheet & Tube Co. v. Sawyer.\108\
---------------------------------------------------------------------------
\108\343 U.S. 579 (1952).
---------------------------------------------------------------------------
Another president, Woodrow Wilson, observed:
Quite as important as legislation is vigilant
oversight of administration; and even more important
than legislation is the instruction and guidance in
political affairs which the people might receive from a
body which kept all national concerns suffused in a
broad daylight of discussion. . . . The informing
functions of Congress should be preferred even to its
legislative function.\109\
---------------------------------------------------------------------------
\109\Woodrow Wilson, Congressional Government 195, 198 (Meridian
Books 1956) (1885) (hereafter Wilson).
Unlike President Truman, President Wilson has been favorably
quoted on this point by the Supreme Court,\110\ and has had his
fundamental point--that the Congress has a constitutional
oversight power and duty--upheld by numerous courts on numerous
occasions. ``The power of the Congress to conduct
investigations is inherent in the legislative process. That
power is broad.''\111\ The Court in McGrain v. Daugherty went
further: ``We are of opinion that the power of inquiry--with
process to enforce it--is an essential and appropriate
auxiliary to the legislative function.''\112\ Not only is the
power of inquiry essential to the function of Congress, the
power of inquiry cannot exist without a means to compel
testimony and production of documents.
---------------------------------------------------------------------------
\110\See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1975)
(``Unless Congress have and use every means of acquainting itself with
the acts and the disposition of the administrative agents of the
government, the country must be helpless to learn how it is being
served'') (quoting Wilson at 303).
\111\Watkins v. United States, 354 U.S. 178, 187 (1957).
\112\McGrain v. Daugherty, 273 U.S. 135, 174 (1927); See also Id.
at 175 (``some means of compulsion are essential to obtain what is
needed'').
---------------------------------------------------------------------------
The Supreme Court ruled in Nixon v. Fitzgerald: ``It is
settled law that the separation-of-powers doctrine does not bar
every exercise of jurisdiction over the President of the United
States.''\113\ The Court has also stated that ``[e]ven when a
branch does not arrogate power to itself, moreover, the
separation-of-powers doctrine requires that a branch not impair
another in the performance of its constitutional duties.''\114\
The White House provides no answer to the Supreme Court
precedence demonstrating that Congress has the power to compel
testimony and production of documents from government officials
in the course of its investigations.
---------------------------------------------------------------------------
\113\Nixon v. Fitzgerald, 457 U.S. 731, 753-754 (1981).
\114\Loving v. United States, 517 U.S. 748, 757 (1996).
---------------------------------------------------------------------------
VIII. Continued Non-Compliance Despite the District Court's Decision in
House Judiciary Committee Lawsuit Dismissing the Administration's
Immunity and Blanket Privilege Claims
As part of its parallel investigation into the hiring and
firing of U.S. Attorneys, the House Judiciary Committee, on
behalf of the House of Representatives, has pursued a civil
suit seeking an order that former White House Counsel Harriet
Miers comply with a subpoena to appear and testify regarding
the U.S. Attorney firings and that White House Chief of Staff
Joshua Bolten produce a privilege log in response to the House
Judiciary Committee subpoena. That suit, challenging the
administration's claims of absolute immunity for presidential
advisors and blanket claims of executive privilege, involves
issues similar to those at issue in the administration's non-
compliance with this Committee's subpoenas. The sole decision
on the merits in that suit, issued by Judge Bates of the
District Court for the District of Columbia on July 31, 2008,
reached the same conclusion as Chairman Leahy's November 29,
2007 order, that the White House's executive privilege and
immunity claims were not legally valid to excuse compliance
with the Committee's subpoenas.
On July 25, 2007, after the failure of the administration
to cooperate voluntarily or under compulsion by subpoena with
the House Judiciary Committee's investigation into the U.S.
Attorney firings, the House Judiciary Committee adopted a
resolution of contempt against former White House Counsel
Harriet Miers and White House Chief of Staff Joshua Bolten.
After continued non-compliance with the subpoenas, on February
14, 2008, the House voted 223-32 to hold Ms. Miers and Mr.
Bolten in contempt, passing resolutions to pursue both criminal
contempt charges and a civil action in Federal court for
declaratory and injunctive relief to obtain compliance with the
subpoenas.
On February 28, 2008, Speaker of the House Nancy Pelosi
certified the contempt report to District of Columbia U.S.
Attorney Jeffrey A. Taylor, directing him pursuant to 2 U.S.C.
Sec. Sec. 192 and 194 to present contempt charges against Mr.
Bolten and Ms. Miers to a grand jury. On February 29, 2008,
Attorney General Mukasey informed Speaker Pelosi that the
Department refused to bring the contempt charges before a grand
jury or take any action to prosecute Mr. Bolten or Ms. Miers.
Accordingly, the House Judiciary Committee filed a civil action
in the District Court for the District of Columbia for
declaratory and injunctive relief to enforce the subpoenas.
On July 31, 2008, Judge Bates rejected the administration's
claim that senior White House officials are not required to
comply with congressional subpoenas. As in Chairman Leahy's
November 29, 2007, order finding the administration's novel
``immunity'' claims without any legal or historical precedence,
Judge Bates' decision found: ``Executive's current claim of
absolute immunity from compelled congressional process for
senior presidential aides is without any support in the case
law.'' In addition, Judge Bates explained why the
administration's blanket immunity claims were an unjustified
encroachment on the constitutional powers of Congress. He
wrote: ``[I]f the Executive's absolute immunity argument were
to prevail, Congress could be left with no recourse to obtain
information that is plainly not subject to any colorable claim
of executive privilege.'' The result, which the court concluded
was ``unacceptable,'' would be that the ``Executive's proposed
absolute immunity would thus deprive Congress of even non-
privileged information.''
Judge Bates' decision also undercut the White House's
blanket claims of privilege without substantiation. In the
court's opinion, Judge Bates wrote that ``clear precedent and
persuasive policy reasons confirm that the Executive cannot be
the judge of its own privilege'' and that ``both the Court and
the parties will need some way to evaluate the privilege
assertions going forward.'' Judge Bates' opinion validates the
Committee's requests for over a year for the White House to
provide the specific legal and factual basis for its privilege
so that the Committee can probe the basis for those claims and
their validity rather than rely on the say-so of the
President's lawyers.
Judge Bates' opinion also recounted the efforts taken by
both the House and Senate Judiciary Committees to reach an
accommodation with the administration which have been to no
avail in light of the administration's continued reliance on
its initial ``take it or leave it'' proposal for off-the-
record, backroom interviews with no transcript, no oath, and no
ability to follow up, which would deny Congress the ability to
fulfill its legislative and oversight responsibilities.
On July 31, 2008, after Judge Bates issued his opinion,
Chairman Leahy sent letters to Mr. Rove's attorney, Robert
Luskin, and White House Counsel Fred Fielding, instructing them
to advise the Committee by August 7 when Mr. Rove and Mr.
Bolten would appear to provide documents and testimony related
to the mass firing of U.S. Attorneys. Chairman Leahy also sent
a letter to Attorney General Michael Mukasey asking when the
Department would withdraw memoranda and opinions justifying the
White House's non-compliance with the subpoenas, including the
memos purporting to justify the claim of immunity from
testifying.
On August 7, 2008, Mr. Bolten and Ms. Miers requested a
stay of Judge Bates' decision pending an appeal and White House
Counsel Fred Fielding responded to Chairman Leahy that, despite
the court's order, the White House would await the outcome of
an appeal and a request to stay the decision before
``entertaining any requests for Mr. Bolten's compliance with
the Senate Judiciary Committee subpoena.''
Chairman Leahy responded to Mr. Fielding's letter on August
14, 2008, again seeking compliance with the Committee's
subpoenas, stating that the White House's ``continued reliance
on unprecedented `immunity' claims places the administration
starkly at odds with Congress, the Federal court, and the rule
of law.'' In addition, Chairman Leahy pointed out that the
administration has made no proposals since the initial
unacceptable offer in March 2007 and taken no steps toward
compliance with the Judiciary Committee's subpoenas or with the
court's order.
On October 6, 2008, the Court of Appeals for the D.C.
Circuit granted the administration's motion for a stay of Judge
Bates' decision and refused to expedite the appeal.
Accordingly, Judge Bates' July 31, 2008, decision rejecting the
administration's position remains the only one on the merits.
On October 16, 2008, Chairman Leahy received the Department's
belated response to his July 31, 2008, letter to Attorney
General Michael Mukasey asking whether he would be withdrawing
the Department's memorandum supporting the now-rejected
immunity claim. The Department responded that, in light of the
D.C. Circuit's stay of the district court decision, the Office
of Legal Counsel memorandum on immunity remains
``authoritative.''
The effects of the White House's assertions of privilege
and immunity have been unmistakable--amounting to the
withholding of critical evidence related to the congressional
investigation. All along, the administration has contended that
their blanket claim of privilege and immunity cannot be tested
but must be accepted by the Congress as the last word. The
administration maintains that position despite a resounding
rejection by Judge Bates.
IX. Department of Justice's Internal Investigation Confirmed Judiciary
Committee's Findings Though Impeded by White House Refusal to Cooperate
On September 29, 2008, the Department of Justice's Office
of the Inspector General (OIG) and the Office of Professional
Responsibility (OPR) released a 358 page report on ``An
Investigation into the Removal of Nine U.S. Attorneys in
2006.'' This report stems from a joint internal investigation
into the U.S. Attorney firings begun in March 2007. Glenn A.
Fine, the Department's Inspector General, and H. Marshall
Jarrett, counsel for OPR, informed the Judiciary Committee of
the joint investigation in a March 26, 2007, letter to Chairman
Leahy and Ranking Member Specter. They stated that they
intended to investigate issues related to the removals of the
U.S. Attorneys, including ``whether the removal of any of the
United States Attorneys was intended to interfere with or was
in retaliation for pursuing or failing to pursue prosecutions
or investigations'' and ``the accuracy of statements made by
various Department officials to Congress about the removal of
the United States Attorneys.'' The Senate and House committees
investigating the firings clarified that investigation would be
conducted in accordance with OIG practices, including
independence from the Attorney General and making public any
findings from the investigation.
Subsequent referrals to OIG/OPR of related matters of
politicization of hiring and firing at the Department stemming
from the congressional investigation became part of the joint
internal investigation. As a result, in addition to the
September 29, 2008, report summarized here regarding the
removal of nine U.S. Attorneys in 2006, OIG/OPR issued reports
on June 24, 2008, relating to political hiring for career
positions in the Department's Honors Program and Summer Law
Intern Program and on July 28, 2008, relating to the use of
political considerations in hiring for career positions
throughout the Department, including hiring for career
prosecutor positions in U.S. Attorneys offices, for detailee
positions in main Justice, and for immigration judge positions.
A separate report is expected detailing the findings of the
OIG/OPR investigation into the use of political considerations
for hiring and personnel decisions in the Civil Rights
Division.
The findings of September 29, 2008, report into the removal
of U.S. Attorneys echoed the findings of the Committee's
investigation that the firings were unprecedented and that
partisan political considerations played a role in the firings.
The report also concluded that the firings were not the result
of ``a few bad apples'' run amok as suggested by some in the
administration, but rather that Attorney General Gonzales and
Deputy Attorney General McNulty bore primary responsibility for
the deeply flawed process that led to the firings because they
``abdicated their responsibility to adequately oversee the
process and to ensure that the reasons for removal of each U.S.
Attorney were supportable and not improper.'' In addition, the
internal investigation found that they and other high-level
Department officials were responsible for making untruthful
statements about the removals and their role in the process.
Finally, even though it was an executive branch investigation,
the OIG/OPR investigation, like the Committee's investigation,
was impeded by the Bush administration's refusal to cooperate
and provide documents or witnesses despite evidence pointing to
the significant involvement of high-level White House officials
like Karl Rove and former White House Counsel Harriet Miers.
The investigation described in the September 29, 2008,
report focused on four areas. First, OIG/OPR investigated
possible reasons the U.S. Attorneys were removed including
whether for partisan political purposes, to influence an
investigation or prosecution, or for retaliation purposes.
Second, the investigation examined the process by which the
U.S. Attorneys were selected for removal and identified the
persons involved in those decisions. Third, OIG/OPR
investigated whether Attorney General Gonzales or other
Department officials made misleading statements regarding the
U.S. Attorneys' removal or attempted to influence other
witnesses' testimony. Finally, OIG/OPR investigated whether the
Department intended to bypass the Senate confirmation process
by replacing the dismissed attorneys with interim U.S.
Attorneys for an indefinite period.
The OIG/OPR report found that 28 U.S. Attorneys were
considered for removal on at least one of eight lists compiled
between March 2005, and the firings of seven U.S. Attorneys in
December 2006. Of the nine U.S. Attorneys that were the subject
of the investigation, OIG/OPR concluded that the removal of at
least seven involved impropriety as to the reasons for the
removal or inconsistencies in the reasons given for removal.
The following is a brief summary of the findings regarding
those seven:
A. TODD GRAVES
Todd Graves, former U.S. Attorney for the Western District
of Missouri, was asked to resign on January 24, 2006. He
announced his resignation on March 10, 2006 and left office
March 24, 2006. Until May 2007, Department witnesses
represented to Congress that seven U.S. Attorneys, plus Bud
Cummins, were the only U.S. Attorneys removed as part of the
process Kyle Sampson initiated in 2005 to identify and remove
``underperforming'' U.S. Attorneys. No witness mentioned Todd
Graves of the Western District of Missouri. On May 9, 2007,
Graves publically stated he was told to resign in January 2006
and his removal subsequently was included in the OIG/OPR
investigation.
The only explanation offered by Department officials for
Mr. Graves's removal, a vague recollection that an internal
Department investigation may have been the basis for his
removal, was found by OIG/OPR to have no basis. Rather, Mr.
Graves appeared to have been removed because of complaints to
the White House Counsel's Office by Senator Bond's staff
regarding his decision not to respond to a demand from Senator
Bond's staff member to get involved in a personnel decision in
Representative Sam Graves's congressional office. The
investigation into Mr. Graves's removal was hindered by the
failure of Mr. Sampson and Ms. Goodling to recall the reasons
for Mr. Graves's removal, by Ms. Goodling's refused to
cooperate with the investigations, by the refusal of former
White House Counsel Harriet Miers and other White House
officials to cooperate with the investigations, and by the
absence of any documents memorializing the justifications for
Mr. Graves's removal.
The report concludes that the Department's handling of Mr.
Graves' removal was inappropriate because: The Department
failed to fulfill its responsibility to protect its
independence and the independence of Federal prosecutors by
ensuring that otherwise effective U.S. Attorneys are not
removed for improper political reasons. Nobody in the
Department accepted responsibility for the decision to remove
Mr. Graves, and nobody consulted with the Attorney General
about the decision to tell a U.S. Attorney to resign.
B. H.E. ``BUD'' CUMMINS
H.E. ``Bud'' Cummins, the former U.S. Attorney for the
Eastern District of Arkansas, was asked to resign in June 2006.
He was replaced by Timothy Griffin in December 2006. The
replacement of Mr. Cummins by Mr. Griffin gave rise to
allegations that the firing was improper and that the
Department was attempting to bypass the Senate confirmation
process by appointing Griffin the interim U.S. Attorney for an
indefinite term.
The Department initially stated that Mr. Cummins was
included on its initial list of ``weak U.S. Attorneys'' because
he was mediocre and an underperformer. In fact, Mr. Cummins was
considered to be one of the top five U.S. Attorneys in the
country. The two Department evaluations of Mr. Cummins' office
were positive about his management of the office and his
adherence to Department priorities. The investigation found
that Mr. Cummins was not removed for performance reasons. His
performance was never evaluated and no Department leader had
suggested Mr. Cummins' performance was lacking. Rather, the
evidence showed the main reason for Mr. Cummins' removal and
timing of the removal was to provide a position for the former
White House employee, Mr. Griffin.
The investigation also found that following Mr. Cummins'
resignation and the announcement of Mr. Griffin as his
replacement, senior Department leaders made a series of
conflicting and misleading statements about Mr. Cummins'
removal. The OIG/OPR investigation into the removal of Mr.
Cummins was hindered by the refusal of former White House
employees to cooperate with the investigations even though they
had relevant information.
C. DAVID IGLESIAS
David Iglesias, former U.S. Attorney for the District of
New Mexico was asked to resign on December 7, 2006. The
Department stated Mr. Iglesias was removed because he was
underperforming, was an absentee landlord who was ``physically
away a fair amount of time,'' and the Department received a
complaint by Senator Domenici that he doesn't ``move cases.''
The OIG/OPR investigation into Mr. Iglesias's removal was
hampered and is not complete because key witnesses declined to
cooperate with their investigation. Specifically, former White
House officials Harriet Miers and Karl Rove and Senator
Domenici and his Chief of Staff refused requests for interviews
as part of the investigation. Further, the White House would
not provide the investigation with any internal documents and
emails relating to the removal of Mr. Iglesias.
The investigation found that the Department's allegation
that Mr. Iglesias was an absentee manager who had delegated too
much authority to his first assistant was an ``after-the-fact''
justification for Mr. Iglesias's termination and not a reason
he was placed on the removal list. Rather, the evidence shows
that Kyle Sampson placed Mr. Iglesias on a list for removal due
to complaints to the Department of Justice and the White House
by Republican members of the Congress and party activists from
New Mexico about Mr. Iglesias's handling of voter fraud and
public corruption cases in the state. Once Mr. Iglesias was on
the list, no senior Department leaders questioned his inclusion
or asked that he be taken off the list. Thus, Mr. Iglesias was
fired because of complaints by political officials, who had a
political interest in the outcome of the voter fraud and
corruption cases. The report found that these actions were an
abdication of senior Department leaders' responsibilities,
independence and integrity.
Based on inability of investigators to compel the
cooperation of key witnesses and obtain White House documents,
several unanswered questions regarding Mr. Iglesias's removal
remain. Accordingly, OIG/OPR recommended that the Attorney
General appoint a special counsel to investigate why Mr.
Iglesias, and the other U.S. Attorneys, were removed, whether
Mr. Sampson or other Department officials made false statements
to Congress or to Department investigators about the reasons
for the removal of Mr. Iglesias or the other U.S. Attorneys,
and whether Federal criminal statutes were violated with regard
to the removal of Iglesias. The report states that interviews
with witnesses who refused to cooperate with the investigation,
such as Mr. Rove, Ms. Goodling and Ms. Miers and a review of
White House documents would provide more evidence to whether
Mr. Sampson or others made false statements.
D. DANIEL BOGDEN
Daniel Bogden, former U.S. Attorney for Nevada, was told to
resign on December 7, 2006, announced his resignation on
January 17, 2007, and left office on February 28, 2007. The
Department stated Mr. Bogden was removed because he ``lacked
energy and leadership, and was good on guns but not good on
obscenity cases.'' The Department also proffered that he was
removed for using a provision of the Patriot Act to obtain
evidence in a criminal case.
The OIG/OPR investigation found no support for the
allegation that Mr. Bodgen was told to resign due to the
Patriot Act incident. The investigation determined that the
primary reason that Mr. Bogden was placed on the removal list
was because of complaints to the Department by Brend Ward, the
head of the Obscenity Prosecution Task Force, about Mr.
Bogden's decision not to assign a Nevada prosecutor to a Task
Force case. It appears, however, that no Department official
other than Mr. Sampson knew that justification for Mr. Bodgen's
listing and were instead led to believe that his inclusion on
the list for removal was because he was a ``mediocre'' U.S.
Attorney and the Department could ``do better.'' Attorney
General Gonzales and Deputy Attorney General McNulty were
apparently never informed of the real reason for Mr. Bodgen's
removal.
The investigation concluded that Mr. Bogden's removal was
``troubling'' because neither Sampson nor any other Department
official involved in the removal process asked for Mr. Bogden's
explanation about Mr. Ward's complaint, no Department official
ever raised concerns or objectively assessed Mr. Bodgen's
performance to determine whether he was in fact ``mediocre''
prior to his removal, Deputy Attorney General McNulty's qualms
about Mr. Bogden's removal appear to have been quashed by his
marital status or family status, and Attorney General Gonzales
and Deputy Attorney General McNulty stated they did not know
why Mr. Bogden was removed.
E. PAUL CHARLTON
Paul Charlton, the former U.S. Attorney for the District of
Arizona, was instructed to resign December 7, 2006, announced
his resignation on December 18, 2006, and left office January
30, 2007. The Department provided the following reasons for his
removal: (1) Mr. Charlton advocated for additional resources
for his office directly with Senator Kyl; (2) Mr. Charlton
instituted a policy for tape recording interrogations; (3) Mr.
Charlton did not timely file a notice that the Department would
seek the death penalty in a particular case; and (4) Mr.
Charlton refused to prosecute obscenity cases.
The OIG/OPR investigation called into question the
propriety of what it found to be the two primary reasons for
Mr. Charlton's removal. Regarding the first of these reasons,
Mr. Charlton's implementation of a pilot program for tape
recording interrogations, Deputy Attorney General McNulty
testified that while he did find Mr. Charlton's actions
insubordinate, he would not have removed Mr. Charlton based on
an attempt to implement the policy. The second reason for Mr.
Charlton's removal, the one described in the report as ``the
most significant factor'' in his removal, was Mr. Charlton's
efforts to re-evaluate the Department's decision to seek the
death penalty in a specific case. The report concluded that
these efforts were not insubordination or inappropriate, but
warranted given the magnitude of the Department's decision.
F. JOHN MCKAY
John McKay, former U.S. Attorney for the Western District
of Washington, was asked to resign on December 7, 2006,
announced his resignation on December 14, 2006, and left office
January 26, 2007. The Department proffered that Mr. McKay was
removed because he was ``enthusiastic but temperamental,'' made
promises about information sharing that the Department could
not support, was ``overly aggressive in seeking resources'' to
investigate the murder of an Assistant U.S. Attorney, his
district's sentencing statistics were out of line and was
resistant to Department leadership. According to media reports,
Mr. McKay was removed because he failed to investigate voter
fraud claims following the 2004 Washington State governor's
race.
Although the OIG/OPR report concludes that the evidence
suggests the primary reason for Mr. McKay's removal was his
conflict with Deputy Attorney General McNulty over an
information sharing program, the investigation could not make a
conclusive determination as to the reasons for Mr. McKay's
removal. Based on the evidence, OIG/OPR could not determine
whether or not complaints of Mr. McKay's handling of the voter
fraud cases caused him to be removed.
G. CAROL LAM
Carol Lam, former U.S. Attorney for the Southern District
of California was asked to resign on December 7, 2006. The
Department stated that Lam was removed because of her
district's prosecution of firearm and immigration cases. During
the OIG/OPR investigation, an additional justification emerged
that Ms. Lam was removed because of her office's investigation
of Congressman Randy ``Duke'' Cunningham and Central
Intelligence Agency (CIA) official Kyle ``Dusty'' Foggo.
The investigation concluded that the Department's actions
surrounding Ms. Lam's removal provide a ``clear example of the
disorganized removal process and lack of oversight over that
process.'' In particular, OIG/OPR found it inappropriate that
the Department never discussed with Ms. Lam her office's
statistics in gun and immigration cases prior to her removal
and did not provide her with an explanation as to why she was
removed.
Overall, the OIG/OPR report concluded that the process used
to remove the nine U.S. Attorneys in 2006 was unsystematic and
arbitrary with little oversight from the Attorney General, the
Deputy Attorney General or other senior Department officials.
The U.S. Attorneys did not have an opportunity to address the
concerns about their performance prior to their removal and
Department statements explaining why they were removed were
inconsistent, misleading and inaccurate. The report concluded
that Attorney General Gonzales and Deputy Attorney General
McNulty are primarily responsible for the Department's actions
because they failed to adequately oversee the process and
ensure the reasons for removal were proper. Other Department
officials are responsible for making untruthful statements
about the removals and their role in the process.
While the investigation was able to verify some of the
facts surrounding the removals, there are still gaps in the
investigation due to key witnesses refusing to be interviewed,
including former White House Deputy Chief of Staff Karl Rove,
former White House Counsel Harriet Miers, and former Deputy
White House Counsel William Kelley, as well as former
Department of Justice White House liaison Monica Goodling,
Senator Domenici and his Chief of Staff. The White House also
refused to allow access to internal documents related to the
removals.
Finally, the report concluded that further investigation is
needed regarding the removal of David Iglesias and the
allegations that he was removed to influence prosecutions of
voter fraud and public corruption. The report recommended that
the Attorney General appoint a special counsel to determine
whether a criminal offense was committed in connection with
Iglesias's removal or testimony related to his removal as well
as the testimony of other witnesses related to the U.S.
Attorney removals, including former Attorney General Gonzales.
Following the release of this report, Attorney General
Mukasey appointed Acting U.S. Attorney Nora Dannehy of
Connecticut as the special prosecutor in the investigation.
X. Conclusion
The Committee reports these resolutions and the facts in
support thereof finding White House Chief of Staff Joshua
Bolten and former White House Deputy Chief of Staff Karl Rove
in contempt of Congress because of their continuing non-
compliance with the Committee's subpoenas.
The Committee has conducted this investigation into the
firing of U.S. Attorneys and politicization of hiring and
firing at the Department of Justice and now refers these
contempt resolutions pursuant its constitutional legislative,
oversight and investigative powers and in order to fulfill its
responsibilities to the Senate and the American people.
The investigation was met initially by misleading and
inaccurate statements from Department officials regarding the
reasons for the firings, then by stonewalling by the White
House despite evidence of significant involvement by political
officials at the White House, and ultimately by the
resignations of numerous Department and White House officials,
including the Attorney General. The conduct of these officials
has been the subject of an internal investigation at the
Department that has now confirmed the Committee's findings of
serious wrongdoing and led to a referral of the matter to a
Special Prosecutor for further investigation to determine
whether crimes occurred.
The Department of Justice engaged in the unprecedented
firing of U.S. Attorneys for political reasons and that the
White House's partisan interests in the prosecution of voter
fraud and public corruption played a role. Attorney General
Gonzales and the other former top officials at the Department
abdicated their responsibility to ensure the independence of
law enforcement. The Committee has pursued this matter on a bi-
partisan basis because the injection of political bias into the
determination of which cases should be prosecuted is corrosive
to the very foundations of our system of justice.
In light of the evidence showing that White House officials
played a significant role in originating, developing,
coordinating and implementing these unprecedented firings and
the response to Congressional inquiries about it, the
investigation will not be complete without information
available only from the White House and from current and former
White House officials. The White House's unsubstantiated
blanket claims of privilege and novel claims of immunity do not
trump the Committee's well-established need for the information
it has sought about the firings and do not excuse current and
former White House officials from complying with the
Committee's subpoenas.
XI. MINORITY AND DISSENTING VIEWS OF SENATORS SPECTER AND GRASSLEY
The Senate Judiciary Committee's investigation into the
U.S. Attorney removals was conducted in a largely bipartisan
fashion. For months during 2007, Members from both sides of the
aisle pressed difficult questions in a series of hearings and
through letters, and staff from Democrat and Republican offices
participated in numerous transcribed interviews of officials
from the highest ranks of the Department of Justice. We have
supported Congressional oversight throughout our nearly three-
decades of shared tenure in the Senate. Accordingly, we joined
with the Majority in supporting various Committee subpoenas, as
well as the revised contempt resolutions approved by the
Committee last December.
Although we supported the Committee's efforts in the U.S.
Attorney removal investigation, including the contempt
resolutions voted upon last year, we cannot join the Majority
in this Report. We both voted in favor of the contempt
resolutions regarding Messrs. Bolten and Rove after staff and
Member consultation produced resolution text that: (1) had
bipartisan support; (2) identified every fact and element
necessary to charge contempt of Congress under 2 U.S.C.
Sec. 194; (3) was consistent with Committee precedent; (4)
contained no surplussage that could arguably jeopardize or
undermine the enforceability of the Committee's action; and (5)
was fair to the due process rights of the prospective contempt
defendants. However, so much time has passed that the matter is
now somewhere between moot and meaningless. Had there been any
intention to pursue Senate action, these procedural steps would
have been taken soon after the resolutions of contempt were
approved. The filing of this report--fourteen months after
Attorney General Gonzales resigned, eleven months after the
contempt resolutions were approved and a mere two months before
a new administration takes office--will likely prove
superfluous.
The Majority's Report also strays from the neutral language
of the contempt resolutions we supported. We believe the Report
should have stayed within the facts voted upon by the Committee
last year. Additionally, we would have preferred a more
measured approach to the Report's factual and legal conclusions
to ensure both objectivity and enforceability. As the
Majority's Report currently stands, we cannot support it.
Accordingly, we file these supplemental and dissenting views.
A. THE FACTS CONTAINED IN THE REPORT VARY FROM THOSE CONSIDERED AND
VOTED UPON BY THE COMMITTEE
We are concerned by the many factual and legal assertions
in the Report that are not reflected in the Committee's
findings in the Resolutions. This variance is not insignificant
and could cause problems for the enforceability of the
Committee's Resolutions. Both Resolutions call on ``the
President of the Senate to certify the facts of the failure''
of the witnesses to appear as required. This approach appears
to comply with 2 U.S.C. Sec. 194, which refers to a report of
``the fact of such failure or failures'' to comply with a
subpoena and to the President of the Senate's certification of
``the statement of facts.'' With different facts stated in the
Report and the Resolutions, the question arises: Which facts
are to be certified? Is the President of the Senate called upon
to certify the narrow set of facts stated in the Resolutions or
the much broader and colorfully written facts stated in the
Majority's Report? If multiple bases of fact are possible,
ambiguity could result at multiple stages downstream in the
process--for the President of the Senate when he certifies the
facts, for the U.S. Attorney when he presents the case, and for
the defendants if they are put in criminal jeopardy.
The due process concerns for the prospective defendants are
not insignificant. As the Supreme Court in Russell v. United
States, 369 U.S. 749 (1962),wrote in response to a flawed
Congressional referral of contempt: ``A cryptic form of
indictment in cases of this kind requires the defendant to go
to trial with the chief issue undefined. It enables his
conviction to rest on one point and the affirmance of the
conviction on another. It gives the prosecution free hand on
appeal to fill in the gaps of proof by surmise and
conjecture.'' Id. at 766. If such a ruling were to be repeated
in this matter, it would not just be a boon to those who failed
to honor the Committee's subpoenas. It would also be a blow to
the oversight authority of the legislative branch relative to
the executive.
B. THE MAJORITY'S REPORT INCLUDES FACTS AND FINDINGS THAT ARE
UNNECESSARY AND COUNTERPRODUCTIVE TO SUBPOENA ENFORCEMENT
We are concerned the Majority's Report contains facts and
findings that are unnecessary--and even counterproductive--to
enforcement of the Resolutions. For example, the Majority's
Report reaches evidentiary conclusions in what is essentially a
discovery exercise. The Majority's Report describes findings of
``grave threats to the independence of law enforcement,''
``lying,'' ``significant involvement of White House political
officials in improper politicization,'' ``stonewalling,'' and a
contrived ``cover up;'' yet the Report itself is an effort to
support the enforcement of Committee subpoenas via the
statutory contempt mechanism.
If a court looks to the Majority's Report and finds that
the Committee is already reaching conclusions in its
investigation, it will justifiably ask why any further
testimony or documents are needed. We are especially concerned
with the Majority's Report in this regard because one of the
touchstones of executive privilege review is the party's need
for the subpoenaed information. Indeed, it is a threshold
question for any party who seeks to overcome a claim of
executive privilege. See In re Sealed Case, 121 F.3d 729, 746
(1997) (explaining that courts ``must specifically consider the
need of the party seeking privileged evidence'' when evaluating
either a presidential communications privilege or deliberative
process privilege case).
C. THE MAJORITY'S REPORT SHOULD HAVE STRUCK A MORE MEASURED TONE ON
PRIVILEGE
Battles between the branches on executive privilege are an
all too common occurrence. As shown in the Gorsuch case,
federal courts are loathe to wade into such battles if they are
perceived as irreconcilable bickering among the political
branches. See United States v. House of Representatives, 556 F.
Sup. 150 (D.D.C. 1983) (``Compromise and cooperation, rather
than confrontation, should be the aim of the parties.''). We
are concerned the Majority's Report is too strident and one-
sided in its rejection of the Administration's executive
privilege claims.
For example, the Majority's Report describes the
Administration's assertion of privilege as ``novel'' and ``a
dramatic break from the practices of every administration since
World War II in responding to congressional oversight.''
Although the Administration's position might be viewed as
controversial and in some respects at odds with the Committee's
constitutional oversight responsibility, it is far from novel
for an Administration to claim that officials are immune from
appearing before Congress due to their senior roles and
proximity to the President. Claims of executive immunity are
not novel. Indeed, well-documented claims of this type have
been made by both Democrat and Republican administrations for
at least forty years.
During the Senate Judiciary Committee's investigation into
alleged improprieties of then-Supreme Court Justice Abe Fortas,
Johnson Administration Associate Special Counsel to the
President, W. DeVier Pierson, wrote the following to Chairman
Eastland when he declined to appear: ``It has been firmly
established, as a matter of principle and precedents, that
members of the President's immediate staff shall not appear
before a congressional committee to testify with respect to the
performance of their duties on behalf of the President. This
limitation, which has been recognized by the Congress as well
as the Executive, is fundamental to our system of government.''
Among the precedents to which Pierson may be been referring
were the two occasions when Truman adviser John Steelman
returned House subpoenas with a letter stating, ``the President
directed me, in view of my duties as his Assistant, not to
appear before your subcommittee.''
In February 1971, then Assistant Attorney General William
Rehnquist authored a memorandum detailing the history and basis
for such claims of immunity, which cited the two above
examples. Following his historic and legal analysis, Rehnquist
wrote, ``[t]he President and his immediate advisers--that is,
those who customarily meet with the President on a regular or
frequent basis--should be deemed absolutely immune from
testimonial compulsion by a congressional committee. They not
only may not be examined with respect to their official duties,
but they may not even be compelled to appear before a
congressional committee.'' Rehnquist OLC Memo Titled ``Power of
Congressional Committee to Compel Appearance or Testimony of
`White House Staff''' (Feb. 5, 1971). Like the assertion of
privilege made to the Judiciary Committee, Rehnquist made
distinctions between senior and lower level White House staff.
The distinction between immunity for senior Presidential
advisers and lower level staff was further developed in a
February 8, 1979 memorandum by Carter-Administration White
House counsel Robert Lipshutz. Although Lipshutz conceded that
advisers with statutory obligations would be required to
testify, he broadly asserted that advisers without such duties
are immune from testifying before Congress:
The role of the White House aide is that of adviser to
the President. Frank and candid discussions between the
President and his personal staff are essential to the
effective discharge of the President's Executive
responsibilities. Discussions of this type take place
only if their contents are kept confidential. . . .
While the investigative power of Congressional
committees is extremely broad, the personal staff of
the President is immune from testimonial compulsion by
Congress. This immunity is grounded in the
Constitutional doctrine of separation of powers.
Lipshutz Memo Titled ``Congressional Testimony by Members of
the White House Staff'' (Feb. 8, 1979). Notwithstanding our own
disagreement with the Administration's broad executive
privilege claims before the Committee, it is nevertheless
incorrect to label the claim of immunity ``novel'' or contrary
to all modern precedent.
In addition to our concerns about dismissing the
Administration's immunity claim as ``novel,'' we are also
concerned with some apparent omissions in the Report. For
example, the Report fails to discuss, define, or even mention
the potential application of the deliberative process
privilege. The deliberative process privilege, which is much
broader, but also weaker, than the presidential communications
privilege, requires no involvement by the President. See In re
Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (requiring only
that the material at issue be predecisional and comprising part
of a deliberative process by which government decisions and
policies are formulated). The Report's silence on this issue
creates an opportunity for unfavorable precedent.
D. WE SHOULD PRESERVE THE SENATE'S OVERSIGHT AUTHORITY, BUT BE EVER
VIGILANT AGAINST THE POTENTIAL FOR CREATING BAD PRECEDENT
We remain committed to defending the Committee's oversight
authority and responsibility. That is why we supported the
revised Resolutions considered by the Committee last December.
Nevertheless, our strong support of the Senate's institutional
role in administration oversight cautions us to be concerned
about actions that could undermine or limit the Senate's
subpoena power in the future. We are mindful that Congress's
record before the courts on contempt has been mixed. See
Watkins v. United States, 354 U.S. 178 (1957); Russell v.
United States, 369 U.S. 749 (1962); Wilson v. United States,
369 F.2d 198 (D.C. Cir. 1966). An adverse ruling by a federal
court--whether against the contempt power or in favor of
executive privilege--could weaken the Senate's oversight
authority in future matters and encourage a future
administration to fight subpoenas in a matter of greater
urgency or importance. We are concerned the variance between
the facts in the Resolutions and the Report could lead to an
adverse outcome and be a blow to the Committee's--indeed, the
Congress'--ability to conduct oversight in the future.
Arlen Specter.
Chuck Grassley.
XII. MINORITY VIEWS OF SENATORS KYL, SESSIONS, BROWNBACK AND COBURN
We generally agree with the Minority Views of Senators
Specter and Grassley. Three aspects of the Majority Report,
however, merit additional comment: the first is the Majority's
utterly unfounded accusation that the Justice Department's
public-corruption prosecution decisions were influenced by
politics. The second is the Majority's attack on the notion of
executive privilege--a position that is very much at odds with
the position that members of the Majority have adopted in the
past. And finally, we are simply dumbfounded by the Majority's
earth-is-flat insistence that no such thing as vote fraud ever
occurs in this country, and thus no investigation or
prosecution of such matters is ever appropriate--an insistence
that is completely at odds with what the American people just
witnessed during the recent elections.
FALSE ACCUSATIONS LEVELED AGAINST THE JUSTICE DEPARTMENT
The Majority's Report concludes its analysis with the
assertion that ``[t]he evidence shows that senior officials
were apparently focused on the political impact of federal
prosecutions and whether federal prosecutors were doing enough
to bring partisan voter fraud and corruption cases.''\1\
---------------------------------------------------------------------------
\1\Majority Report at 2.
---------------------------------------------------------------------------
This is a falsehood--one that the Majority does not even
attempt to buttress with any citations to the relevant record.
The Majority Report does not cite one shred of evidence to
support this conclusion because there is no such evidence.
Indeed, all of that record--the numerous interviews conducted
by the staff of this committee--supports the very opposite
conclusion: that the professional and dedicated attorneys at
the U.S. Justice Department fulfilled their duty to investigate
and prosecute public corruption, and that partisan bias played
no role in these investigative and prosecutorial decisions.
The Majority's thesis--that public-corruption prosecutions
were driven by politics--was repeatedly refuted by witness
after witness during this committee's investigations. For
example, Deputy Attorney General Paul J. McNulty, in his April
27, 2007, interview, while describing the ``nonpolitical,
career investigators, assistant United States attorneys and
U.S. attorneys'' who make the decision to bring these cases,
stated that ``if any one of these professionals thought that a
case were being undermined or harmed by the removal of a U.S.
attorney, they would scream to high heaven, as they
should.''\2\ David Margolis, the highest ranking career
official at the Department of Justice, when asked whether he
had heard from anyone in a position of power that the requests
for resignations were dispatched with an eye toward
``influence[ing] a political corruption case,'' said,
``[a]bsolutely not, and they would get my sharp stick in the
eye if they suggested that.''\3\ When asked whether he had
heard anyone complain about Carol Lam's public integrity
prosecution of Duke Cunningham and her investigation of Dusty
Foggo and Brent Wilkes, Mr. Margolis responded, ``No.
Absolutely not. We're very proud of that prosecution of
Representative Cunningham and the investigation of Foggo. We're
very proud of that.''\4\
---------------------------------------------------------------------------
\2\Former Deputy Attorney General Paul McNulty 04/27/2007 Tr. at
188-190.
\3\Associate Deputy Attorney General David Margolis 05/01/07 Tr. at
206.
\4\Id. at 211.
---------------------------------------------------------------------------
Similarly, when asked whether he was ever present when
anyone discussed seeking a U.S. Attorney's resignation because
of a political prosecution, the former Director of the
Executive Office of U.S. Attorneys, Michael Battle, testified
``No. Never aware of that.''\5\ Significantly, up until his
resignation from the Department of Justice in January of 2006,
Mr. Battle had dedicated his entire career--over twenty years--
to public service.\6\ Other witnesses were equally dismissive
of the innuendo and baseless accusations in the media on which
the Majority Report relies. Mr. McNulty's former Chief of
Staff, Michael Elston testified as follows:
---------------------------------------------------------------------------
\5\Former Director of the Executive Office of U.S. Attorneys
Michael Battle 04/10/07 Tr. at 114.
\6\Id. at 112.
The notion that the media has that the dismissal of
the United States Attorney in any way, shape or form
affects a pending investigation or case is silly. I
have been through the transition of a United States
Attorney in the district--Northern District of
Illinois. And I was an Assistant United States
Attorney, and I had pending investigations and pending
cases at the time. And it affected my cases in the
following way: I changed the name of the United States
Attorney on my letterhead and pleadings.\7\
---------------------------------------------------------------------------
\7\Former Deputy Attorney General Chief of Staff Michael Elston 03/
30/07 Tr. at 123-124.
Mr. Elston's credibility on the Cunningham and associated
prosecutions is further bolstered by the fact that he assisted
in executing subpoenas simultaneously in Virginia and
---------------------------------------------------------------------------
California when the investigation turned to Brent Wilkes:
There was a coordinated effort to search the
California and Virginia offices of that business as
well as Mr. Wilkes' home on the same day, and I was the
Assistant United States Attorney assigned to obtaining
a search warrant. And I did do that. A search warrant
is a matter of public record and sets out what an
incredible case the Cunningham case was and how very
blatant the bribery was, and it goes on and on and on
in detail.\8\
---------------------------------------------------------------------------
\8\Id.
As a former Federal prosecutor heavily invested in the
case, Mr. Elston went on to testify, ``I would have been
outraged had anyone suggested to me that there was a problem
with that case that merited anything, whether it was a request
for resignation or anything else, because I had probably among
the leadership of the Department the most intimate knowledge of
that case and how good that case was of anybody else.''\9\
---------------------------------------------------------------------------
\9\Id. at 124.
---------------------------------------------------------------------------
These are the facts of record. Yet they are markedly absent
from the Majority's Report.
Sadly, much more was at stake in this investigation than
the employment of nine U.S. Attorneys--namely, the confidence
of the American people in the most revered law enforcement
institution in the world. It is, therefore, deeply ironic that
in pressing its case that the Justice Department has been
overly politicized, the Majority chooses to politicize its very
investigation, and completely ignores the voluminous evidence
that rebuts its pre-determined conclusion.
WE'VE COME A LONG WAY
During this Congress, the Majority has been rather
promiscuous in its issuance of subpoenas to the executive
branch. It was not always thus. In the past, members of this
same Majority appeared to recognize that issuing a subpoena was
a serious matter that should be undertaken only after
substantial deliberation. Some examples of past expressions the
Majority's now-abandoned modesty in this regard are as follows:
Senator Leahy (Press Release September 23, 1999):
``I do not believe we should be issuing subpoenas to the
Justice Department unless that step is absolutely necessary.''
Executive privilege is used by the President and the
executive branch to shield presidential communications,
advice, and national security information from
disclosure in judicial proceedings, congressional
investigations and other arenas. While the proper scope
of executive privilege is the subject of much debate,
at a minimum, it covers presidential communications,
and may also protect the decision-making, or
deliberative process, of the executive branch in
general . . . Thus, this resolution, which avoids the
issuance of a subpoena should the Justice Department
continue to cooperate with the Committee in producing
non-privileged documents, is a good result.
Senator Leahy (Press Release June 8, 2000):
[At the last business meeting,] ``I held over
consideration of [a] subpoena . . . since, in my view,
it had been precipitously added to the agenda at the
last minute and needed further consideration . . .
[T]he White House has made clear that it will provide
the email communications that are relevant to the
Committee's oversight inquiries without the need for a
subpoena. . . . It is truly remarkable that the
majority of this Committee chooses first to
communicate--now routinely at each executive business
meeting--with the Executive Branch and its agencies by
way of subpoena. Issuing subpoenas may make for a good
show of partisan force by the majority but certainly
continues the erosion of civil discourse that has
marked this Congress.
The following quotes are from the floor of the Senate in
Whitewater debate. (Congressional Record: December 20, 1995):
Senator Sarbanes:
It always should be borne in mind that when the
executive and legislative branches fail to resolve a
dispute between them and instead submit their
disagreements to the courts for resolution, significant
power is then placed in the judicial branch to write
rules that will govern the relationship between the
elected branches . . . [W]e have a chance here to work
this out . . . and there is no need to go to court
running the risk, I would suggest to some Senators, of
an adverse precedent.
We need to avoid a needless constitutional
confrontation by pursuing a negotiated resolution to
this dispute. Congressional attempts to inquire into
privileged executive branch communications are rare and
with good reason. In fact, the courts on occasion have
refused to determine the dispute and have encouraged
the two branches to settle the differences without
further judicial involvement. In other words, when it
comes to the court, it says you ought to settle it
between yourselves and not involve the court in trying
to address this matter. The U.S. Court of Appeals for
the District of Columbia has long held that
Presidential communications are presumptively
privileged.
Senator Dodd:
Our role, fundamentally, is legislative. We conduct
investigations, of course, but that is primarily to
help develop legislation. And it seems to me that,
where you have a White House that is cooperating, you
ought to avoid a confrontation with the executive
branch. After all, it is not clear what the third
branch of government, the judiciary, will do. In
similar cases, the courts have thrown the matter right
back to us and have said, ``Look, you people sort this
out your own way. We are not going to make the decision
for you.'' So we may end up, after months of
squabbling, in no better position than we are in today.
Senator Boxer:
Supporting reaching a compromise with the Clinton
Administration:
We can avoid a costly subpoena battle. We can avoid,
frankly, losing in the courts, which would harm the
U.S. Senate out into the future, and we can get the
information . . . We [should] not go on political witch
hunts and deny people their rights. . . . That is bad
for this institution. It is bad for this investigation.
It is bad for the precedence of the United States.
Frankly, I think it is bad for individual Senators.
The bottom line is, do you want to get the
[information] or do you want to play politics? That is
the way I see it. I hope we decide we want to get the
[information], we want to do it in a way that keeps
this committee working in a bipartisan fashion because,
frankly, if we do not stick together on this, on the
procedures, I think the American people are going to
think this is all politics and all the hard work that
we do to put light on this subject will simply not be
respected.
Senator Bumpers:
[This] is not a constitutional crisis . . . But it
just seems to me that in the interest of comity, in the
interest of taking advantage of an offer by the
President to say here [is the information] . . . I
daresay there is not a Member of the U.S. Senate that
would have made a more generous offer under the same
conditions than the President of the United States has
made in this case.
Senator Pryor:
I think it is very, very necessary for the American
public at this time to have the knowledge that this
administration in no way is trying to keep the [sought
information from the] U.S. Senate. . . . The White
House has repeatedly said: `We want you to have [this
information]. We think you should have [this
information]. We will give you [this information].' I
do not think that should be the business of the Senate
at this particular time, to start eroding and
emasculating the particular right that we revere in the
common law and have for so many years, and that is the
right of privilege created between lawyer and client.
VOTE EARLY AND VOTE OFTEN
As Justice Thurgood Marshall noted in the U.S. Supreme
Court's decision in Anderson v. U.S., 417 U.S. 211, ``[e]very
voter in a federal primary election, whether he votes for a
candidate with little chance of winning or for one with little
chance of losing, has a right under the Constitution to have
his vote fairly counted, without its being distorted by
fraudulently cast votes.''
Perhaps the most Orwellian aspect of the Majority report is
its repeated insistence that there is no vote fraud in this
country that is ever worth investigating. At one point, the
Majority even places scare quotes around the term, lest anyone
receive the impression that the Majority believes that voter
fraud could ever be a real problem. Yet during the federal
elections just concluded, the American public saw numerous
examples of serious attempts to commit voter fraud in this
country.
Most of these incidents involved the Association of
Community Organizations for Reform Now (ACORN), a group that
actively promotes voter registration in many cities across the
nation. ACORN tends to target areas where it believes that it
can register Democratic voters, such as parks, public-
assistance agencies, and liquor stores,\10\ and generally hires
part-time workers who are paid for each registered name to
canvas these areas.
---------------------------------------------------------------------------
\10\The Emerging Democratic Majority, http://www.powerlineblog.com/
archives/2008/08/021168.php? (Aug. 5, 2008, 7:30 EST).
---------------------------------------------------------------------------
ACORN's history is littered with claims and convictions of
fraud.\11\ In this election cycle, many different groups, from
journalists to the GOP, strongly criticized the integrity of
the organization's registration methods. As early as September,
state officials reported fraudulent voter registrations
submitted by ACORN, and as of October 6th, the New York Times
reported that about 400,000 ACORN filings had been rejected by
authorities as duplicates, incomplete, or fraudulent.\12\ After
comparing their voter registration rolls, Georgia, Florida, and
Ohio found 112,000 duplicate voters registered in two states,
and authorities have rejected ACORN applications attempting to
register such ``voters'' as Mickey Mouse and the Dallas
Cowboys' offensive line.\13\
---------------------------------------------------------------------------
\11\Evan Perez, GOP Renews Complaints Over Voter Registrations,
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.; John Fund, A Smelly Acorn, Wall St. J.,
Oct. 10, 2008, available at http://online.wsj.com/article/SB1223609
17725822225.html [hereinafter Fund, A Smelly Acorn]; Editorial, Obama
and Acorn, Wall St. J., Oct. 14, 2008, available at http://
online.wsj.com/article/SB122394051071230749.html [hereinafter
Editorial, Obama and Acorn].
\12\When in Trouble, Cheat, http://www.powerlineblog.com/archives/
2008/09/021523.php? (Sept. 15, 2008 20:39 EST).
\13\Voter Fraud: It's Easy!, http://www.powerlineblog.com/archives/
2008/11/021989.php? (Nov. 4, 2008, 14:58 EST).
---------------------------------------------------------------------------
In Connecticut, a Republican registrar complained to state
officials that ACORN systematically filed ineligible
registrations, including one for a 7-year-old resident.\14\
---------------------------------------------------------------------------
\14\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
---------------------------------------------------------------------------
Indiana's election officials refused to accept 5,000 ACORN
applications after each of the first 2,100 were found to be
fraudulent.\15\ And in Michigan, clerks reported ``a sizeable
number of duplicate and fraudulent applications'' and the
Michigan Secretary of State's office said the problem appears
to be ``widespread.''\16\
---------------------------------------------------------------------------
\15\Acorn: the Fraud Continues, http://www.powerlineblog.com/
archives/2008/10/021768.php? (Oct. 13, 2008, 19:55 EST).
\16\When in Trouble, Cheat, http://www.powerlineblog.com/archives/
2008/09/021523.php? (Sept. 15, 2008 20:39 EST).
---------------------------------------------------------------------------
Kansas City election officials discovered at least 380
fraudulent registrations that ACORN submitted\17\ and 15,000
applications have been questioned.\18\ St. Louis officials
attempted to contact 5,000 voters that ACORN registered, but it
could not reach even 40 applicants.\19\
---------------------------------------------------------------------------
\17\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
\18\``Is Acorn Stealing the Election?'', http://
www.powerlineblog.com/archives/2008/10/021729.php? (Oct. 9, 2008, 14:11
EST).
\19\``Is Acorn Stealing the Election?'', http://
www.powerlineblog.com/archives/2008/10/021729.php? (Oct. 9, 2008, 14:11
EST).
---------------------------------------------------------------------------
In Las Vegas, the county registrar said that problems
cropped up almost immediately after ACORN took root there.\20\
Concerns included voter registration fraud and questionable
staff members, such as supervisors who are convicted felons and
employees convicted of identity theft.\21\ These problems led
to a raid of ACORN's Las Vegas office because of a suspected
voter fraud scheme.\22\
---------------------------------------------------------------------------
\20\Fund, A Smelly Acorn, supra note 21.
\21\Fund, A Smelly Acorn, supra note 21.
\22\Fund, A Smelly Acorn, supra note 21.
---------------------------------------------------------------------------
The FBI opened an ``investigation into 1,400 potentially
fraudulent voter registrations'' filed in Albuquerque, New
Mexico.\23\ In the state's urban areas, ACORN and others
registered almost 80,000 voters.\24\ Some of those were illegal
applications that actually resulted in illegal votes according
to New Mexico politicians.\25\ A search of public records
verified that illegal votes, made possible by fraudulent ACORN
registrations, were cast during the Democrat's primary.\26\
ACORN admits to firing 80 New Mexico employees since December
2007.\27\
---------------------------------------------------------------------------
\23\Evan Perez, GOP Renews Complaints Over Voter Registrations,
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
\24\Evan Perez, GOP Renews Complaints Over Voter Registrations,
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
\25\Joe the Plumber: Changing this Year's Race?, http://
www.powerlineblog.com/archives/2008/10/021794.php? (Oct. 16, 2008,
20:18 EST).
\26\Joe the Plumber: Changing this Year's Race?, http://
www.powerlineblog.com/archives/2008/10/021794.php? (Oct. 16, 2008,
20:18 EST).
\27\Evan Perez, GOP Renews Complaints Over Voter Registrations,
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
---------------------------------------------------------------------------
In Ohio, Republicans sought verification of thousands of
voter registrations after ACORN admitted that it could not
verify that its applications were not fraudulent.\28\ When the
Secretary of State refused to verify the registrations, the
challenge went up to the Supreme Court which denied
Republicans' claim by holding that the Federal Vote Act did not
include a private right to sue for enforcement of voter
registration verification.\29\ One man stated that he was paid
$1 or given a cigarette each time he filled out an application
to vote even though he told workers he was already
registered.\30\ At the end of 18 months, he had registered 72
times.\31\
---------------------------------------------------------------------------
\28\Amy Merric, Court Ruling Stokes Voter-Fraud Fight, Wall St. J.,
Oct. 18, 2008, available at http://online.wsj.com/
article.SB122428556700546435.html.
\29\Jess Bravin, Supreme Court is United in Siding with Ohio
Election Official, Wall St. J., Oct. 17, 2008, available at http://
online.wsj.com/article.SB122425922129244747.html.
\30\Acorn's Criminal Enterprise, Continued, http://
www.powerlineblog.com/archives/2008/10/021736.php? (Oct. 10, 2008, 9:05
EST).
\31\Acorn's Criminal Enterprise, Continued, http://
www.powerlineblog.com/archives/2008/10/021736.php? (Oct. 10, 2008, 9:05
EST).
---------------------------------------------------------------------------
Philadelphia election officials turned at least 1,500 ACORN
applications over to the U.S. Attorney and found 6,500 more
that were suspect.\32\ The Deputy Commissioner complained that
ACORN hires ``people desperate for money . . . who only get
paid if they get signatures.''\33\
---------------------------------------------------------------------------
\32\Acorn Does Philadelphia, http://www.powerlineblog.com/archives/
2008/10/021783.php? (Oct. 15, 2008, 9:56 EST).
\33\Acorn Does Philadelphia, http://www.powerlineblog.com/archives/
2008/10/021783.php? (Oct. 15, 2008, 9:56 EST).
---------------------------------------------------------------------------
In Wisconsin, a convicted felon illegally registered to
vote and illegally registered others as an employee of
ACORN.\34\ This employee was one of 49 under ``suspicion of
election fraud.''\35\ In Virginia, a voter registration group
fired three employees who falsified almost 100 forms.\36\
---------------------------------------------------------------------------
\34\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
\35\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
\36\Evan Perez, GOP Renews Complaints Over Voter Registrations,
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
---------------------------------------------------------------------------
In light of this recent history, the Majority's insistence
that no vote fraud occurs in this country that is ever worthy
of investigation is simply bizarre.
CONCLUSION
The firing of 9 U.S. attorneys earlier in this
Administration is a dead horse that has already been beaten too
many times to count. The Majority's factually inaccurate,
tendentious, and misleading report on this matter, though
unworthy of the committee, is in some ways a fitting coda to
the politicized witch hunts that have constituted the 110th
Congress's investigation of this matter.
Jon Kyl.
Jeff Sessions.
Sam Brownback.
Tom A. Coburn.