Judiciary Chairmen Leahy,
Conyers Seek Basis
For President’s Executive Privilege Claim
As They Take Next Steps To Enforce Congressional Subpoenas
WASHINGTON (Friday, June 29)
-- Today, Senate and House Judiciary Chairmen Patrick Leahy (D-VT) and
John Conyers, Jr. (D-MI) sent a letter to White House Counsel Fred
Fielding, responding to the President's executive privilege assertion
over documents relating to the US Attorney investigation. Leahy and
Conyers reiterated their concern that the President's sweeping assertion
was unprecedented. They also demanded the White House "immediately
provide us with the specific bases for your claims regarding each
document withheld via a privilege log...and a copy of any explicit
determination by the President with respect to the assertion of
privilege."
The full
text of the letter is below,
and as a PDF, and is followed by background information on executive
privilege.
June 29, 2007
Fred Fielding, Esq.
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Dear Mr. Fielding:
The return date and
time for the White House Chief of Staff, Joshua Bolten, to appear before
our Committees on behalf of the White House and bring with him the
documents compelled by the subpoenas we issued on June 13 was yesterday
at 10 a.m. Mr. Bolten did not do so. Instead, you wrote us that,
despite conceding that you have responsive documents in your possession,
you refuse to produce even a single one based on a blanket executive
privilege claim. We had hoped our Committees’ subpoenas would be met
with compliance and not a Nixonian stonewalling that reveals the White
House’s disdain for our system of checks and balances.
We urge the President
to reconsider this step and withdraw his privilege claim so the American
people can learn the truth about these firings. If he is unwilling to
withdraw these claims, we call on you to provide more specific
information to facilitate ruling on those claims and our consideration
of appropriate action to enforce our subpoenas.
On June 13, we issued
subpoenas compelling the White House to produce documents related to our
Committees’ investigations into the mass firings and replacements of
U.S. Attorneys and politicization at the Department of Justice. We did
so reluctantly after seeking voluntary cooperation from the White House
for three months. Even though the evidence gathered by our Committees
shows that White House officials were heavily involved in these firings
and in the Justice Department’s response to congressional inquiries
about them, the White House has not produced a single document or
allowed even one White House official involved in these matters to be
interviewed.
Our Committees rejected your “take it or
leave it” offer of off-the-record, backroom interviews and severe limits
on the scope of our requests as unacceptable, more than three months
ago. Since that time, despite our many attempts to narrow the dispute
and begin to obtain the information we need, you have not made any
effort to work with us on a voluntary basis. Even now, in response to
subpoenas authorized by our Committees, you have again merely restated
your initial, unacceptable offer. Your proposal is not commensurate
with our exercise of the broad investigatory power of Congress.
Our power to investigate has been
described as essential to the legislative function by the Supreme Court
and “as penetrating and far-reaching as the potential power to enact and
appropriate under the Constitution.”
Eastland v. United States Serviceman’s
Fund, 421 U.S. 491, 504, n. 15 (1975). Indeed, the Court has
specifically recognized that Congress’ “broad” investigatory authority
“encompasses inquiries concerning the administration of existing laws as
well as proposed or possibly needed statutes,” and includes the power to
“inquire into and publicize corruption, maladministration, or
inefficiencies” in the Executive Branch.
Watkins v. United States,
354 U.S. 178, 182, 200 n.33 (1957). Moreover, as we have said many
times, your proposal would constrain not only our investigation, but
also the ability of the American people to learn the truth about these
firings.
In fact, the letter
you enclosed from Acting Attorney General Clement makes clear that
internal White House documents, which you have refused even to discuss
making available, contain information directly responsive to our
subpoenas. According to Mr. Clement, those documents specifically
discuss “the possible dismissal and replacement of U.S. Attorneys,” the
“wisdom of such a proposal, specific U.S. Attorneys who could be
removed, potential replacement candidates, and possible responses to
congressional and media inquiries about the dismissals.” The subject
matter of these documents heightens our concern about the involvement of
White House officials in these firings and in the inaccurate testimony
given to our Committees about them, including possible obstruction of
justice and other violations of federal law. It is precisely for these
reasons that we have sought for many months to obtain information from
the White House.
Your action today in
stonewalling the Committees’ investigations is also inconsistent with
the practices of every Administration since World War II in responding
to congressional oversight. In that time, presidential advisers have
testified before congressional committees 74 times 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. The veil of secrecy you have attempted to pull over the White
House by withholding documents and witnesses is unprecedented and
damaging to the tradition of open government by and for the people that
has been a hallmark of the Republic.
Moreover, your blanket
assertion of executive privilege belies any good faith attempt to
determine where privilege truly does and does not apply. 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 may apply.
Indeed, the subpoenas
themselves specifically stated that for each document withheld, you
should provide a description of the nature, source, subject matter, and
date of the document; the name and address of each recipient of an
original or copy of the document and the date received; the name and
address of each additional person to whom any of the contents of the
document were disclosed along with the date and manner of disclosure;
and the specific legal basis for the assertion of privilege. Such
privilege logs have been provided by the White House in previous
Administrations, and this Justice Department has provided similar logs
in this very matter, which have been used to help resolve disputes about
the production of documents. Yet, you have failed to provide any such
information.
In addition, at least
since the Reagan Administration in 1982, there has been a specific
determination and signed statement by the President when executive
privilege has been asserted. In accord with this procedure, President
Bush himself has issued such assertions during his Administration.
See, e.g., Memorandum for the Attorney General re
Congressional Subpoena for Executive Branch Documents (December 12,
2001). See also “Procedures Governing Responses to
Congressional Requests for Information,” issued on November 4, 1982, and
6 Op. OLC 31 (1982). Yet you have failed to include any such
Presidential assertion or even state whether you have now decided to
disregard this established procedure.
Please provide the
documents compelled by the subpoenas without further delay. If you
continue to decline to do so, you should immediately provide us with the
specific factual and legal bases for your claims regarding each document
withheld via a privilege log as described above and a copy of any
explicit determination by the President with respect to the assertion of
privilege. You have until July 9, 2007, at 10 a.m. to bring this and
any other information you wish to submit to our attention before we move
to proceedings to rule on your claims and consider whether the White
House is in contempt of Congress.
We were disappointed
that we had to turn to these subpoenas in order to obtain information
needed by the Committees to learn the truth about these firings and the
erosion of independence at the Justice Department. We are even more
disappointed now with yet further stonewalling.
Whether or not we have
the benefit of the information we have directed you to provide by July
9, we will take the necessary steps to rule on your privilege claims and
appropriately enforce our subpoenas backed by the full force of law.
Sincerely,
PATRICK LEAHY
JOHN CONYERS, JR.
Chairman
Chairman
Senate Judiciary Committee
House Judiciary Committee
cc: The Honorable Arlen Specter
The Honorable Lamar S. Smith
# # # # #
Background --
The White
House’s Broad Claims of Executive Privilege Are Not Supported by Law
Background:
President Bush has asserted
executive privilege in response to two document subpoenas from the
Senate and House Judiciary Committees. The subpoenas requested
categories of documents highly relevant to the unprecedented and
improper firing of nine United States Attorneys and the politicization
of the Department of Justice.
The executive
privilege is not a broad and sweeping authority the President can hide
behind because he does not want to cooperate with congressional
oversight -- it should not prevent Congress from examining White House
documents vitally important to its investigation. While
courts have recognized a privilege based in the Constitution, that
privilege is not absolute and must be balanced with other
constitutional interests, including Congress’s oversight powers.
Courts And Legal Experts Agree Executive
Privilege Is Limited:
· The
Supreme Court held that the executive privilege is not absolute
in United States v. Nixon,
418 U.S. 683, 706 (1974), writing that “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 … .” The DC Circuit elaborated that “the
privilege is qualified, not absolute, and can be overcome by an adequate
showing of need.”
In re Sealed Case, 121 F.3d
729, 745 (D.C. Cir. 1997).
·
The District of Columbia Circuit found
that even in the area of national security, there was no absolute
executive privilege against congressional demands for information:
“The executive would have it that the Constitution confers on the
executive absolute discretion in the area of national security. This
does not stand up. While the Constitution assigns to the President a
number of powers relating to national security, … it confers upon
Congress other powers equally inseparable from the national security…
.” United States v. AT&T,
567 F.2d121, 128 (D.C. Cir. 1977).
[The documents requested by the House and Senate Committees do not
implicate any national security concerns.]
· The
Congressional Research Service emphasizes the limited nature of the
executive privilege. “Executive privilege is not an
absolute. It is a qualified privilege and is balanced against the
constitutional needs and obligations of other branches.” Congressional
Research Service, October 21, 2005.
The Documents Requested By Committees Do
Not Fit Into Narrow Executive Privilege:
· The
privilege covers communications related to presidential decision-making,
which is not at issue here. The DC Circuit has found that
the presidential communications privilege applies to communications
“intimately connected to his presidential decision-making.”
In re Sealed Case, 121 F.3d
at 753. However, numerous witnesses before both House and Senate
Committees have testified that the President did not decide which U.S.
Attorneys should be fired.
· The
privilege, even if it does apply, is overcome by real public need -- as
exists here. Executive privilege is overcome where the
subpoenaed materials likely contain important evidence and where that
evidence is not available elsewhere.
In re Sealed Case, 121 F.3d
at 755. Again and again, the evidence the Committee has obtained in
this investigation shows significant involvement by Sara Taylor, Harriet
Miers, and others in the White House, but the White House has shut down
all avenues of obtaining information about that extremely important
involvement.
-
The broader deliberative process
privilege does not apply. That
privilege does not apply when there is reason to believe government
misconduct occurred, as has been clearly established in this matter,
and does not apply to full documents – only to specific and relevant
passages. Several of the high-ranking officials at the Department
of Justice have resigned since this investigation began.
In re Sealed Case,
121 F.3d at 745.
The White House’s Claims Of Privilege
Are Sweeping And Overly Broad:
· The
non-partisan Congressional Research Service has been critical of this
White House’s sweeping characterizations of executive privilege.
“The current Bush Administration … has articulated a legal view of the
breadth and reach of presidential constitutional prerogatives that, if
applied to information and documents often sought by congressional
committees, would stymie such inquiries.” CRS further notes that the
Department of Justice’s “assertions of these broad notions of
presidential prerogatives are unaccompanied by any authoritative
judicial citations.” CRS Congressional Oversight Manual, January 3,
2007, at 45.
· The
White House has not sought in good faith to determine where privilege
truly does and does not apply. The White House Counsel
asserted privilege and declared that “therefore the White House will not
be making any production in response to these subpoenas for documents.”
June 28, 2007 Letter from Fred Fielding to Chairmen Leahy and Conyers.
A serious assertion of privilege would include a serious effort to
determine which documents, and which parts of those documents, are
covered by any privilege that may apply; White House officials have
provided no such comprehensive review.
The White House Has Not Sought
Accommodation:
· Most
disputes between Congress and the Executive about access to documents
and information are resolved through compromise. CRS
Congressional Oversight Manual at 39.
· The
White House in this case has made one unacceptable “take it or leave it”
offer of extremely limited access to witnesses, off-the-record
interviews, without transcripts, and a small number of documents. The
White House has refused to negotiate further. The Senate and
House Judiciary Committees have sought the kind of compromise solutions
which generally accompany this type of investigation, but have been
consistently rebuffed by the White House. Even the Department of
Justice has made attempts to respond to congressional inquiries.
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