    [Public Papers of the Presidents of the United States: George W. Bush (2001, Book II)]
    [December 12, 2001]
    [Pages 1509-1510]
    [From the U.S. Government Publishing Office www.gpo.gov]

    Memorandum on the Congressional Subpoena for Executive Branch Documents
    December 12, 2001

    Memorandum for the Attorney General

    Subject: Congressional Subpoena for Executive Branch Documents

        I have been advised that the Committee on Government Reform of the
    House of Representatives has subpoenaed confidential Department of
    Justice documents. The documents consist of memoranda from the Chief of
    the Campaign Financing Task Force to former Attorney General Janet
    Reno recommending that a Special Counsel be
    appointed to investigate a matter under review by the Task Force,
    memoranda written in response to those memoranda, and deliberative
    memoranda from other investigations containing advice and
    recommendations concerning whether particular criminal prosecutions
    should be brought. I understand that, among other accommodations the
    Department has provided the Committee concerning the matters that are
    the subject of these documents, the Department has provided briefings
    with explanations of the reasons for the prosecutorial decisions, and is
    willing

    [[Page 1510]]

    to provide further briefings. I also understand that you believe it
    would be inconsistent with the constitutional doctrine of separation of
    powers and the Department's law enforcement responsibilities to release
    these documents to the Committee or to make them available for review by
    Committee representatives.
        It is my decision that you should not release these documents or
    otherwise make them available to the Committee. Disclosure to Congress
    of confidential advice to the Attorney General regarding the appointment
    of a Special Counsel and confidential recommendations to Department of
    Justice officials regarding whether to bring criminal charges would
    inhibit the candor necessary to the effectiveness of the deliberative
    processes by which the Department makes prosecutorial decisions.
    Moreover, I am concerned that congressional access to prosecutorial
    decisionmaking documents of this kind threatens to politicize the
    criminal justice process. The Founders' fundamental purpose in
    establishing the separation of powers in the Constitution was to protect
    individual liberty. Congressional pressure on executive branch
    prosecutorial decisionmaking is inconsistent with separation of powers
    and threatens individual liberty. Because I believe that congressional
    access to these documents would be contrary to the national interest, I
    have decided to assert executive privilege with respect to the documents
    and to instruct you not to release them or otherwise make them available
    to the Committee.
        I request that you advise the Committee of my decision. I also
    request that the Department remain willing to work informally with the
    Committee to provide such information as it can, consistent with these
    instructions and without violating the constitutional doctrine of
    separation of powers.

                                                              George W. Bush

    Note: This memorandum was released by the Office of the Press Secretary
    on December 13. An original was not available for verification of the
    content of this memorandum.