[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.