Leahy Takes Next Step On
White House Subpoenas,
Directing Compliance By
Current And Former White House Officials
Chairman Rules That Executive
Privilege And Immunity Claims Are Not Legally Valid
WASHINGTON (Thursday, Nov. 29) –
Taking the next step to enforce subpoenas that the White House
has refused to heed, Senate Judiciary Committee Chairman Patrick
Leahy (D-Vt.) Thursday ruled that White House claims of
executive privilege and immunity in the Senate’s investigation
of the mass firings of U.S. Attorneys are overbroad,
unsubstantiated, and not legally valid to block current and
former White House officials from fulfilling Judiciary Committee
subpoenas. Leahy directed them to comply immediately with the
subpoenas that were issued by the Committee earlier this year.
Leahy issued subpoenas for
documents and testimony to White House Chief of Staff
Joshua Bolten and former White House political director
Sara M. Taylor on June 13, 2007, and to former White House
Deputy Chief of Staff
Karl Rove and White House deputy political director
J. Scott Jennings on July 26, 2007. Bolten produced none of
the White House documents compelled by subpoena and
Rove failed to appear at all before the Committee to testify
as required by subpoena after the White House asserted a novel
claim that he was immune from testifying. While
Taylor and
Jennings appeared before the Committee for sworn testimony,
both cited the White House’s claim of executive privilege in
failing to answer many of the Committee’s questions about their
roles in the dismissals of U.S. Attorneys.
“I have given the White House’s
claims of executive privilege and immunity careful
consideration,” wrote Leahy. “I hereby rule that those claims
are not legally valid to excuse current and former White House
employees from appearing, testifying and producing documents
related to this investigation. Accordingly, I direct Mr. Bolten,
Mr. Rove, Ms. Taylor and Mr. Jennings to comply immediately with
the Committees subpoenas by producing documents and testifying
or face possible contempt citations.”
The White House failed to
substantiate its broad claims of privilege and immunity or
provide a privilege log as requested in a
letter dated June 29
from Leahy and House Judiciary Committee Chairman
John Conyers (D-Mich.) to White House Counsel Fred Fielding. In
his ruling, Leahy found that 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, makes
the scope of the claims improper” and called Fielding’s
assertion of executive privilege on behalf of the President
“surprising in light of the significant and uncontroverted
evidence that the President had no involvement” in the firings
of well-performing U.S. Attorneys.
Since March, the Senate Judiciary
Committee has held a series of hearings to investigate the
politicization of the Department of Justice, particularly in the
hiring and firing of U.S. Attorneys. Leahy moved to issue
the subpoenas after the White House rejected efforts to work out
an accommodation to provide the materials needed for the
Committee’s investigation. The House Judiciary Committee has
already approved contempt citations for Bolten and former White
House Counsel Harriet Miers in connection with the U.S.
Attorneys scandal. Revelations brought to light by the
congressional investigations led to the resignation of former
Attorney General Alberto Gonzales and the departure of virtually
the entire senior leadership of the Justice Department. Rove
and other White House political operatives related to the
scandal also have left.
Leahy’s ruling on the White
House’s claims of executive privilege is the next step in
enforcing the Committee-issued subpoenas to Bolten, Taylor, Rove
and Jennings. Failure to comply with the directive may lead the
Committee, and the full Senate, to consider holding the White
House in contempt.
# # # # #
(For a PDF of
Leahy’s ruling,
click here.)
Ruling on the White
House’s Claims of Executive Privilege and Immunity
Made in Response to Senate
Judiciary Committee Subpoenas
Chairman Patrick Leahy
Senate Judiciary Committee
Since the beginning
of this Congress, the Senate 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. In the course of this investigation, which has
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 and documents released by the Department shows that
the list for firings was compiled based on input from the
highest political ranks in the White House, including Karl
Rove. 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 and corruption cases. It is now apparent that the
reasons given for these firings 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 subpoenas, 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. Today, I am ruling on those claims.
I.
White House Invoked Blanket Privilege Claims to Avoid Complying
with Subpoenas
On June 13 and July 26, I issued
Judiciary Committee subpoenas that had been authorized months
earlier for White House documents and for documents and
testimony from current and former White House officials related
to the firings. In response, White House counsel Fred Fielding
conveyed President Bush’s blanket claim of executive privilege
over all information from the White House related to the
Committee’s investigation. Based on this claim of executive
privilege, White House Chief of Staff Joshua Bolten and other
current and former White House officials have refused to comply
with subpoenas to provide documents and information. In
addition, Mr. Fielding has written not only to current White
House employees subpoenaed by the Committee and directed them
not to testify about the firings, but has reached out to
instruct former White House political director Sara M. Taylor
not to testify to the best of her knowledge. Finally, 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 or
testifying.
That Mr. Fielding asserts
executive privilege on behalf of the President is surprising in
light of the significant and uncontroverted evidence that the
President had no involvement in these firings.
To date, the
President has not taken responsibility for the firings and his
own statements regarding the firings refer to others making the
decisions. The Attorney General’s former chief of staff, the
former political director at the White House and the Attorney
General himself have testified under oath that they did not talk
to the President about these firings. 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. The President’s lack of involvement in these
firings—by his own account and that of many others—calls into
question any claim of executive privilege.
The effects of the
White House’s assertions of privilege and immunity are
unmistakable—they are to withhold critical evidence
related to the Committee’s investigation that the Committee has
demonstrated it needs in order to perform its legislative and
oversight functions and to explore the veracity of testimony to
the Committee.
Selectively citing letters from
Mr. Fielding, former employee Ms. Taylor and her former deputy,
J. Scott Jennings, refused to answer most of the Committee’s
questions related to the firings. They produced no documents,
despite their obligations to do so pursuant to the Committee’s
subpoenas. In response to the subpoena to Mr. Rove, the
Committee received only a letter from Mr. Fielding. Mr. Rove
did not appear to testify and produce documents or even to
assert executive privilege in response to questions.
The White House’s other blanket
assertion is that there was no wrongdoing in the firings. We
have asked for the basis for this assertion. None has been
provided. In light of the evidence gathered by the Committee
showing the significant involvement of White House political
officials in improper politicization of law enforcement, the
White House is not entitled to withhold key evidence. If the
White House has information that led the President and others to
discount the evidence of wrongdoing the investigating Committees
have gathered so far, then it should be produced. Otherwise, we
must conclude that they do not have it and it does not exist.
II.
White House Rejected Voluntary Cooperation
I reluctantly moved to issue these
subpoenas only after exhausting every avenue seeking voluntary
cooperation. Before issuing the subpoenas, I sent nearly a
dozen letters seeking voluntary cooperation with the Committee’s
investigation to the White House and its current and former
employees. Despite mounting evidence of significant involvement
by White House political officials, the White House did not
produced a single document or allow even one White House
employee or former employee involved in these matters to be
interviewed voluntarily.
Indeed, the White House’s only
response to our many attempts to work out an accommodation has
been to restate an unacceptable “take it or leave it” offer of
limited document availability and off-the-record, backroom
interviews with no transcript, no oath, and no ability to follow
up. The Committee rejected that as unacceptable when it was
offered in March and, despite all of our efforts, the White
House has been unwilling to work with us on a voluntary basis.
When I wrote to the President in August following the suggestion
of Senator Specter, the Committee’s Ranking Member, to ask the
President to sit down with us and work out an accommodation, my
offer was flatly rejected. The White House also flatly rejected
an additional attempt earlier this month by the House Judiciary
Committee to reach an accommodation.
III.
White House Failed to Support Privilege Claims
After the White House counsel made
a blanket privilege assertion in response to this Committee’s
subpoenas and subpoenas issued by House Judiciary Chairman
Conyers, we gave 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 to apply and why. But the White House has ignored
these opportunities. In light of the evidence pointing to
significant involvement by White House political officials,
which had been communicated to the White House multiple times,
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 claims
renders its privilege assertions wholly unsupported and invalid.
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, makes
the scope of the claims improper. That is so especially here
where there is no indication of presidential involvement. The
White House’s privilege claim extends to all communications with
third parties and the Department of Justice from any White House
employee irrespective of the purpose of the communication and
despite Mr. Fielding having offered to provide documents showing
third party communications if the Committee would agree to
terminate its investigation. The extension of this privilege
claim to the knowledge of former employees is even more
attenuated.
Executive privilege, even when
properly asserted, “is qualified, not absolute”
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.”
The White House has fallen well
short of providing adequate support for its claims.
IV. The
Committee Has Demonstrated Compelling Congressional Need That
Outweighs the Overbroad, Unsubstantiated Executive Privilege
Claims
Claims of executive privilege “can
be overcome by an adequate showing of need.”
In contrast to the White House’s improperly asserted and
unparticularized privilege claims, invoked despite the
President’s lack of involvement in these firings, the
Committee’s need for this information has been
well-established. Evidence gathered by the investigating
Committees of the Senate and House shows that White House
political 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 evidence we have found
supports a conclusion that officials from the highest political
ranks at the White House, including Mr. Rove, manipulated the
Justice Department into its own political arm to pursue a
partisan political agenda. We have found evidence of the
involvement of White House political officials in pressuring
prosecutors to bring partisan cases and seeking retribution
against those who refuse to bend to their political will. An
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.
We have found that at least one
Department official, the White House liaison Monica Goodling,
who attended political briefings provided by White House
political officials, admitted while testifying in the House
under a grant of immunity to screening career employees for
political loyalty and to wielding undue political influence over
key law enforcement decisions and policies. We have 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 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.
Along the way, this subversion of
the justice system has included lying, misleading, stonewalling
and ignoring the Congress in our attempts to determine what
happened. 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. During his sworn
testimony, the Attorney General himself contrasted these
politically-motivated firings with the replacement of other
United States Attorneys for “legitimate cause.”
Another
demonstration of this Administration’s partisan intervention in
federal law enforcement is its threat to block the Justice
Department from pursuing congressional contempt citations. This
Administration has announced its intentions to interfere with
our system of justice by preventing a United States Attorney
from fulfilling his or her sworn, constitutional duty faithfully
to execute the laws and proceed pursuant to section 194 of title
2 of the United States Code.
The constitutional powers of
Congress and the responsibilities of this Committee to the
Senate and the American people overrule the White House’s
unsupported 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, waste” within the executive branch.
The evidence obtained raises concerns about the violation of
federal laws, including possible obstruction of justice, laws
prohibiting misleading or inaccurate testimony to Congress, and
possible violations of laws like the Hatch Act prohibiting
retaliation against federal employees for improper political
reasons. The Committee has the responsibility to conduct
investigations and obtain executive branch information in order
to consider legislation within our jurisdiction,
including legislation related to the appointment of U.S.
Attorneys, and to protect our 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 we have “primary”
responsibility to investigate this matter.
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, but previous administrations have
recognized that executive privilege should not be invoked to
prevent investigations into wrongdoing.
V. No
Support for Immunity Claim
Also without support is the White
House claim that Mr. Rove is immune from the obligation to
appear in response to a Senate subpoena. There is no proper
basis for Mr. Rove’s refusal to appear, and it flies in
the face of legal and historical precedent. 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. Even the President has not
been immune from compliance with subpoenas. In support of its
novel immunity argument, the White House relies on a July 10
memorandum from Stephen G. Bradbury, Principal Deputy Assistant
Attorney General in the Office of Legal Counsel, 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.
Indeed, the White House does not and cannot cite a single court
decision in support of its contention.
VI.
Conclusion: White House Officials Directed to Comply with
Subpoenas
I have given the White House’s
claims of executive privilege and immunity careful
consideration. I hereby rule that those claims are not legally
valid to excuse current and former White House employees from
appearing, testifying and producing documents related to this
investigation. Accordingly, I direct Mr. Bolten, Mr. Rove, Ms.
Taylor and Mr. Jennings to comply immediately with the
Committees’ subpoenas by producing documents and testifying.
Issued this 29th
day of November, 2007.
__________________
PATRICK LEAHY
Chairman
Senate Committee on the
Judiciary
