[Weekly Compilation of Presidential Documents Volume 37, Number 50 (Monday, December 17, 2001)]
[Page 1783]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
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 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.