[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
ENSURING EXECUTIVE BRANCH ACCOUNTABILITY
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
MARCH 29, 2007
__________
Serial No. 110-12
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
MARTIN T. MEEHAN, Massachusetts CHRIS CANNON, Utah
WILLIAM D. DELAHUNT, Massachusetts RIC KELLER, Florida
ROBERT WEXLER, Florida DARRELL ISSA, California
LINDA T. SANCHEZ, California MIKE PENCE, Indiana
STEVE COHEN, Tennessee J. RANDY FORBES, Virginia
HANK JOHNSON, Georgia STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
ANTHONY D. WEINER, New York LOUIE GOHMERT, Texas
ADAM B. SCHIFF, California JIM JORDAN, Ohio
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
[Vacant]
Perry Apelbaum, Staff Director and Chief Counsel
Joseph Gibson, Minority Chief Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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MARCH 29, 2007
OPENING STATEMENT
Page
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Chris Cannon, a Representative in Congress from the
State of Utah, and Ranking Member, Subcommittee on Commercial
and Administrative Law......................................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, Chairman, Committee on the
Judiciary, and Member, Subcommittee on Commercial and
Administrative Law............................................. 19
WITNESSES
Mr. John D. Podesta, former White House Chief of Staff to
President Clinton, President and CEO, Center for American
Progress
Oral Testimony................................................. 26
Prepared Statement............................................. 28
Ms. Beth Nolan, former White House Counsel to President Clinton,
Partner, Crowell & Moring
Oral Testimony................................................. 31
Prepared Statement............................................. 34
Mr. Noel J. Francisco, former Associate Counsel to President
George W. Bush, Partner, Jones Day
Oral Testimony................................................. 41
Prepared Statement............................................. 42
Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center
for Justice, NYU School of Law
Oral Testimony................................................. 45
Prepared Statement............................................. 48
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Chris Cannon, a
Representative in Congress from the State of Utah, and Ranking
Member, Subcommittee on Commercial and Administrative Law...... 4
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Member,
Subcommittee on Commercial and Administrative Law, and
Chairman, Committee on the Judiciary........................... 25
APPENDIX
Material Submitted for the Hearing Record
Response to Post-Hearing Questions from John Podesta, former
White House Chief of Staff to President Clinton, President and
CEO, Center for American Progress.............................. 107
Response to Post Hearing Questions from Noel J. Francisco, former
Associate Counsel to President George W. Bush, Partner, Jones
Day............................................................ 108
Response to Post-Hearing Questions from Frederick A.O. Schwarz,
Jr., Senior Counsel, Brennan Center for Justice, NYU School of
Law............................................................ 109
Letter from Fred F. Fielding, Counsel to the President, to the
Chairman Leahy, Chairman Conyers, Ranking Member Specter,
Ranking Member Smith, and Congresswoman Sanchez................ 117
Congressional Research Service Memorandum on Oversight and
Executive Privilege Issues Pertaining to the March 29, 2007
Hearing on ``Ensuring Executive Branch Accountability''........ 120
Prepared Statement of Bruce Fein, on behalf of the American
Freedom Agenda................................................. 129
ENSURING EXECUTIVE BRANCH ACCOUNTABILITY
----------
THURSDAY, MARCH 29, 2007
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 1:30 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Linda
Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Conyers, Johnson,
Delahunt, Cannon, and Jordan.
Ms. Sanchez. The hearing of the Committee on the
Judiciary's Subcommittee on Commercial and Administrative Law
will come to order.
And I will recognize myself for a short statement.
Since President George W. Bush came into office in 2001,
the executive branch has been vocally resistant to transparency
and accountability in its own Government practices.
Under this Administration's broad view of executive power,
the executive branch has consistently rebuffed Congress's
legitimate right to the information it needs to perform its
article I legislative and oversight functions. In fact, this
Administration seems to regard any attempt at oversight as an
assault on the Constitution.
In instances such as Vice President Cheney's energy task
force, the FBI's abuse of national security letters, and the
botched Federal response to Hurricane Katrina, this
Administration has failed to share necessary information that
would ensure executive branch accountability.
The latest example of this Administration's unwillingness
to be forthright with the Congress and the American public is
the growing controversy over the firing of the U.S. attorneys.
On March 6, 2007, this Subcommittee held a hearing
entitled, ``H.R. 580, Restoring Checks and Balances in the
Confirmation Process of United States Attorneys.'' The
testimony heard at that hearing raised numerous and serious
questions concerning a potential partisan scheme to purge
Federal prosecutors.
As a result of that hearing, the Judiciary Committee is
engaged in a formal investigation of the matter.
Evidence of shifting explanations for U.S. attorneys'
dismissals, close coordination between the White House and
Justice Department on the firings, and a White House plan to
dismiss all 93 U.S. attorneys has guided our investigation to
Administration officials directly linked to the purge scheme.
Despite requests for voluntary information and testimony on
the record from these officials, the White House has offered
informal, private meetings without transcripts or oaths.
Additionally, the White House has refused to produce
information on internal White House communications involving
this matter.
To date, the White House has ignored efforts to negotiate
these conditions, and the President, using the blanket claim of
executive privilege, has publicly stated that he is willing to
go to the mat to prevent the information Congress is seeking
from becoming public.
While I recognize the need for Presidents to receive candid
and frank advice from aides, the courts have found that the
presidential communications privilege is not absolute. In the
seminal Supreme Court case of U.S. v. Nixon, the court held
that the interest in the confidentiality of presidential
communications was not sufficient to resist disclosure because
of the strong public need for the information.
Based on the possibility that a crime of obstruction of
justice or misleading Congress in the U.S. attorneys case may
have taken place, executive privilege must give way to
Congress's legitimate oversight responsibilities and the public
need for information.
In fact, news reports that Karl Rove does 95 percent of his
e-mailing from his Republican National Committee account
indicates that these e-mails are not intended in his function
as an advisor to the President and suggest that the claim of
executive privilege may not even apply to Mr. Rove's e-mails.
The restrictive conditions offered by the White House are
also based on President Bush's unfounded concerns about
precedents that might be set if he allows his aides to testify.
By contrast, there is ample precedent that presidential
advisors of both political parties have testified before
Committees and Subcommittees of Congress.
According to a report by the nonpartisan Congressional
Research Service, presidential advisors have testified before
Congress at least 74 times since 1944. Specifically,
presidential advisors, ranging from Franklin Delano Roosevelt's
assistant to several of Richard Nixon's advisors, have
testified in public hearings before congressional Committees.
Even a sitting President, President Gerald Ford, testified
before the House Judiciary Committee about his rationale for
pardoning President Richard Nixon.
More recently, White House advisors in the Clinton
administration, two of whom we are pleased to have here today,
frequently testified before Congress. And in contrast with his
current viewpoint, President George W. Bush has allowed close
advisors, such as Tom Ridge, then Assistant to the President
for Homeland Security, and Condoleezza Rice, then Assistant to
the President for National Security Affairs, to testify.
Given the substantial history of White House officials
testifying before Congress and the questionable applicability
of executive privilege in the U.S. attorney case, it is my hope
that the Committee on the Judiciary and the White House can
quickly come to an agreement and allow us to proceed with our
investigation.
To help us further explore these issues, we have a truly
notable witness panel. We are pleased to have John Podesta,
former White House chief of staff to President Bill Clinton;
Beth Nolan, former White House counsel to President Bill
Clinton; Noel Francisco, former associate White House counsel
to President George W. Bush; and Frederick A. O. Schwarz, Jr.,
senior counsel at the Brennan Center for Justice.
Accordingly, I very much look forward to hearing the
testimony from these witnesses.
And I would now like to recognize my colleague and Ranking
Member, Mr. Cannon, for his opening remarks.
Mr. Cannon. Thank you, Madam Chair.
I think I will ask unanimous consent to submit my written
statement for the record.
Ms. Sanchez. So ordered.
Mr. Cannon. Thank you.
And I would just like to say--this is nothing new here. I
look forward to information from the panel. I am actually quite
honored that the people have come here today, who I think are
sterling scholars and thoughtful people. And I expect that we
will get some insight.
This hearing, of course, is not going to be all that
significant, in the legal context. It is more, I view it, as a
matter of informing us of what the parameters are. And we have
people who were called by the majority and who served in
Democratic Administrations; they are people who command a great
respect and whose intellect I have actually experienced in the
past, and look forward to hearing their insights here.
So thank you all for coming today. We appreciate it. I am
personally honored by the fact that you would come down here to
work with us on this issue.
This is the beginning of an issue--I would take slight
exception to what the Chair has said about what is going on
currently with the Attorney General and these U.S. attorneys.
But that is actually not very important in the context of the
information that you will help us to understand as we look
forward to what we are going to do if we have a battle over
getting information.
And just let me point out that whether you worked for the
Clinton administration or the Bush administration, I am in
Congress, and we up here on the dais are in Congress, and the
staff behind us are careful of the prerogatives of Congress,
and we actually care what the parameters are. So it is not so
much a partisan issue as how we govern ourselves here in
America.
So, thank you. I appreciate the opportunity to hear from
you.
And, Madam Chair, I yield back.
[The prepared statement of Mr. Cannon follows:]
Prepared Statement of the Honorable Chris Cannon, a Representative in
Congress from the State of Utah, and Ranking Member, Subcommittee on
Commercial and Administrative Law
Ms. Sanchez. Thank you, Mr. Cannon.
I would now like to recognize Mr. Conyers, the Chairman of
the Committee on the Judiciary, for an opening statement.
Mr. Conyers. Madam Chair and distinguished witnesses, I ask
unanimous consent to put my statement into the record.
Ms. Sanchez. Without objection, so ordered.
Mr. Conyers. And all I want to remind us of is that this is
indeed a very important hearing. This is not light. These
witnesses are all experienced.
And were the Judiciary Committee to accept Mr. Fred
Fielding's offer for off-the-record interviews without
transcripts, maybe, as I have suggested, at a pub, that we
would be accepting a process doomed to failure.
The mass firing of these U.S. attorneys has been shrouded
in confusion and contradiction from the beginning. But in the
last week, we learned that the Attorney General may have misled
us about his role in the firings. A high-ranking Department of
Justice official has asserted her constitutional right to use
the fifth amendment. The Department of Justice has acknowledged
that they misled us about Karl Rove's role in the firings.
So, in this context, does anyone not think that a
transcript might be more than a little useful in helping us get
to the truth?
We want to achieve a compromise with the White House on the
U.S. attorney matter. I have written them two letters, which I
ask be put into the record----
Ms. Sanchez. Without objection, they will be.
[The letters follow:]
Mr. Conyers [continuing]. Offering to meet and discuss
their concerns. And so far, we wait patiently, and even
sometimes less patiently, for a response.
I hope that over the recess cooler heads will prevail and
we can develop a process to allow us to get to the truth.
And so, the witnesses today are important in discussing
executive branch accountability. And I congratulate the
Chairwoman of this Committee on holding this hearing.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Member, Subcommittee on
Commercial and Administrative Law, and Chairman, Committee on the
Judiciary
Today we consider whether the White House is subject to legitimate
congressional oversight, particularly where evidence of misconduct if
not worse exists.
For more than 200 years, most of us had understood that
congressional oversight was the very bed rock of our system of checks
and balances. Unfortunately, last week, this Committee received an
unprecedented ``take it or leave it'' offer from the White House,
denying us access to relevant documents as well as on the record
interviews with witnesses. The question before us today is whether such
actions are consistent with law, precedent or any reasonable notion of
checks and balances.
I can find nothing in the text or spirit of the Constitution which
would allow an across the broad assertion of executive privilege. To
the extent courts have recognized privilege, it has generally been when
advice was given directly to the President, and it has been limited to
specific communications only, not broad categories of information as
asserted by this White House. What is puzzling to me is how such a
privilege can even exist where the President himself has essentially
denied any substantive knowledge of the firings. If this is the case,
there would be very little privileged advice to the President that
warrants protection.
It also seems odd to be asserting privilege for communications that
emanated not within the White House but from the Republican National
Committee (RNC). I have a hard time believing the Constitution was
intended to protect these emails, especially when there are indications
they may have been sent from the RNC in order to circumvent the usual
procedures for saving and storing emails.
We have an entire host of precedents indicating that congressional
committees are entitled to call White House witnesses to interviews and
hearings and to receive White House documents. Several of the witnesses
testifying before us today have all been hauled before congressional
panels and have turned over thousands of pages of White House
communications. The Bush Administration allowed White House staff to
testify before the House Oversight Committee two weeks ago. And some of
us remember when President Ford himself testified before this Committee
concerning the pardoning of President Nixon.
If this Committee were to accept Mr. Fielding's offer of off the
record interviews without transcripts, we would be accepting a process
doomed to failure. The mass firing of U.S. Attorneys has been shrouded
in confusion, contradiction and outright falsehoods from the very
beginning. Within the last week alone we learned that the Attorney
General may have misled us about his role in the firings; a high
ranking Department of Justice official was forced to assert her Fifth
Amendment rights; and the Department acknowledged they misled us about
Karl Rove's role in the firings. In this context, does anyone not think
that a transcript might be a little useful in helping us get to the
truth?
As I have stated repeatedly, I hope we can achieve a reasonable
compromise with the White House on the U.S. Attorney matter. I have
written them two letters, offering to meet and discuss their concerns.
So far, both letters have been ignored. I hope that over the recess
cooler heads will prevail, and we can develop a process to allow us to
get to the truth. We hope to hear from today's witnesses about the
importance of Executive Branch accountability, including the need for
the White House to provide requested information.
Ms. Sanchez. I thank the gentleman for his statement.
And, without objection, other Members' opening statements
will be included in the record.
Without objection, the Chair will be authorized to declare
a recess of the hearing. I understand that we have votes
expected shortly.
I have wonderful, glowing introductions for each of you,
but I am going to dispense with those because we are very
interested in getting to your testimony. And I appreciate all
your willingness and your patience with the hearing today.
Without objection, your full statements will be placed into
the record, so we are going to ask that you limit your oral
statements to 5 minutes.
You will note that we have a lighting system--I am sure
most of you are familiar--that starts with a green light. At 4
minutes, it turns yellow. And then right at 5 minutes, we would
ask that when you see that red light you try to wrap up your
testimony.
After each witness has presented his or her testimony,
Subcommittee Members will be permitted to ask questions subject
to the 5-minute limit.
Mr. Podesta, we would like to jump in and have you proceed
with your testimony.
TESTIMONY OF JOHN D. PODESTA, FORMER WHITE HOUSE CHIEF OF STAFF
TO PRESIDENT CLINTON, PRESIDENT AND CEO, CENTER FOR AMERICAN
PROGRESS
Mr. Podesta. Thank you, Madam Chair and Chairman Conyers.
Thank you, both of you, for the invitation.
And, Mr. Cannon, thank you for your kind remarks.
Mr. Delahunt tried to give us a little extra time here, and
I appreciate that, but I am glad we didn't set any precedent
about not having a transcript of the hearing.
So, as I noted in my prepared comments, I have a somewhat
unusual perspective, having served as both a senior White House
official and a senior congressional aide. I spent almost 10
years, most of that time on the Senate Judiciary Committee. So
I have a healthy appreciation for the responsibility of each
branch to defend its own constitutional prerogatives.
I have to say, it is a pleasure to be here as a private
citizen. Mr. Johnson, it was always worse to be here as a
Government employee with my own private counsel and being on
the receiving end of those billable hours.
So I appreciate the opportunity to talk to you.
The text of the Constitution, of course, says nothing about
the right of Congress to demand information from the executive
branch or the right of the executive to withhold it. Yet the
Supreme Court has long recognized the power to investigate and
the attendant power to use compulsory process. And they are
inherent in the legislative function vested in Congress by
article I of the Constitution.
So our system of checks and balances requires that Congress
have the ability to obtain information it needs to make the
laws and to oversee and investigate the activities of the
executive branch. It also requires that the President have the
ability to resist demands for disclosures of information that
could threaten important national security interests,
particularly disclosures that would harm the national security
or foreign relations of the United States, but also including
those that would jeopardize ongoing criminal investigations or
interfere with the ability to obtain frank and candid advice.
President Clinton, from time to time, invoked the privilege
when he felt it was necessary to protect presidential
communications and deliberations from overly broad and
intrusive requests for information. But he also understood that
the privilege was not unqualified, that the public interests
protected by the claim of privilege must be weighed against
those that would be served by the disclosure.
I think he appreciated that even where the privilege
applies, it is not absolute. It can be overcome by a strong
showing that the information request is focused, that there are
not other practical means of obtaining the information, and
that the information is genuinely needed by the Committee and
is demonstrably critical to the responsible fulfillment of the
Committee's functions.
I think, since this President Bush and particularly since
Vice President Cheney came into office, I think one of their
exercises has been to increase the power of the executive, to
some extent, at the expense of both other branches of
Government.
And I would note that because I think it is ironic, in that
the greater the power the White House accumulates, the greater
I think is the need for congressional access to White House
documents and personnel.
Such scrutiny I think is especially needed to investigate
allegations of misconduct by the White House officials. Unlike
executive branch agencies, there is no I.G. in the White House.
The White House is not subject to the Freedom of Information
Act. Only Congress can provide appropriate oversight and
accountability.
In my prepared statement, I noted numerous examples of
presidential advisors who have testified in front of
congressional Committees. They have included White House chiefs
of staff, national security advisors, White House counsels,
amongst others. I added a few, for those keeping accurate
count, who have read the CRS report on this.
I, in my own time, testified four times under oath before
congressional Committees. I did so with the support of the
President, who authorized my testimony. I made no claim of
executive privilege. On each of those occasions, I raised my
right hand, I swore to tell the whole truth and nothing but the
truth. And I am proud that I did it, and I am proud that the
President gave me the opportunity to do so.
I detail some other experience that I had in that regard,
as well.
I would just make two points, because I know my time is
short.
One I think is that this inquiry that you are currently
involved in is, I think, particularly important. At the heart
of congressional oversight and investigations, I think in the
history of investigations, have been ones that ensured the fair
administration of justice. And I think that that is what this
inquiry is all about.
And I would just, if I could, reflect for a moment on the
question of U.S. attorneys and the importance of this hearing.
It has been said that U.S. attorneys serve at the pleasure
of the President. And, of course, that is true. But the fact
that the President has the power to remove a U.S. attorney
doesn't make it proper for him to do so. It depends, really, on
the reason.
I put forward some different reasons, from poor performance
to strong policy disputes. I think some of those are quite
legitimate.
But I think one reason that is not legitimate is if the
removal occurred to try to influence the conduct of an ongoing
case or if the White House was viewing this as the U.S.
attorney not pursuing the case with great enough vigor. I think
that is where you cross the line.
I don't know that those are the circumstances, but I think
this is a legitimate inquiry to determine whether that is, in
fact, what is at the bottom of these firings or at least some
of these firings in this matter.
Thank you.
[The prepared statement of Mr. Podesta follows:]
Prepared Statement of John D. Podesta
Thank you, Madame Chair, and members of the subcommittee. I am John
Podesta, President and Chief Executive Officer of the Center for
American Progress. I am also a Visiting Professor of Law at the
Georgetown University Law Center, where I teach a course on
Congressional Investigations.
I served as Chief of Staff to President Bill Clinton from 1998 to
2001. I previously served in other roles in the White House, including
Assistant to the President and Staff Secretary from 1993-1995, and
Deputy Chief of Staff from 1997-1998.
Having appeared before congressional committees a number of times
as a senior White House aide, let me say what a pleasure it is to be
testifying today as a private citizen--albeit one with a deep respect
for and intimate knowledge of the institution of the presidency and the
important role that institution, regardless of occupant, plays in the
leadership of our country and the world.
I also have some experience in back of the dais, Madame Chair,
having served as Counselor to former Senate Democratic Leader Tom
Daschle, Chief Counsel for the Senate Agriculture Committee, and Chief
Minority Counsel for the Senate Judiciary Subcommittees on Patents,
Copyrights, and Trademarks; Security and Terrorism; and Regulatory
Reform.
My service in both Congress and the White House gave me a healthy
appreciation for the responsibility of each branch to defend its
constitutional prerogatives.
The text of the Constitution says nothing about the right of
Congress to demand information from the executive branch--or the right
of the executive to withhold it. Yet the Supreme Court has long
recognized that the power to investigate and the attendant use of
compulsory process are inherent in the legislative function vested in
the Congress by Article I of the Constitution.\1\
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\1\ E.g. McGrain v. Daugherty 273 US 135 (1927); Sinclair v. United
States 279 U.S. 263 (1929); Watkins v. United States 354 U.S. 178
(1957)
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Our system of checks and balances requires that Congress have the
ability to obtain the information it needs to make the laws and to
oversee and investigate the activities of the executive branch. And it
also requires that the president have the ability to resist demands for
disclosures of information that could threaten important national
interests, particularly disclosures that would harm the national
security or foreign relations of the United States, and including those
that would jeopardize ongoing criminal investigations or interfere with
his ability to obtain frank and candid advice.
President Clinton from time to time invoked the privilege when he
felt it was necessary to protect presidential communications and
deliberations from overly broad and intrusive requests for information.
But he also understood that the privilege is not unqualified: that
the public interests protected by the claim of privilege must be
weighed against those that would be served by the disclosure. He
appreciated that even where the privilege applies, it is not absolute.
It can be overcome by a strong showing that the information request is
focused, that there are not other practical means of obtaining the
information, and that the information is genuinely needed by the
Committee and is ``demonstrably critical to the responsible fulfillment
of the Committee's functions.'' \2\
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\2\ See Senate Select Committee on Presidential Campaign Activities
v. Nixon, 498 F.2d 725 (D.C.Cir. 1974).
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Some in the present administration appear to believe that
presidential advisers are immune from giving testimony on the theory
that Congress does not have jurisdiction to oversee the Office of the
President.
No president in our country's history has attempted to make such an
extraordinary claim and no precedent provides a legal justification to
support that perspective. But I was not surprised by this justification
for the White House's refusal to cooperate in the Judiciary Committee's
legitimate inquiries into the recent sacking of the U.S. Attorneys. It
is part and parcel of the larger campaign that has occupied the Bush
administration from the moment the president took office: to increase
the power of the executive at the expense of the other branches of
government.
The irony is that the greater the power that the White House
accumulates, the greater is the need for congressional access to White
House documents and personnel. Such scrutiny is especially needed to
investigate allegations of misconduct by White House officials. Unlike
executive branch agencies, the White House has no inspector general to
investigate abuses and it is not subject to the Freedom of Information
Act. Only Congress can provide appropriate oversight and
accountability.
When the president unreasonably refuses to cooperate with its
inquiries, Congress can prevail only if it musters the political will
to do so.
In 1973, President Nixon attempted to block congressional testimony
by members of the White House staff. He claimed, ``Under the doctrine
of separation of powers, the manner in which the president personally
exercises his assigned powers is not subject to questioning by another
branch of government. If the president is not subject to such
questioning, it is equally appropriate that members of his staff not be
so questioned, for their roles are in effect an extension of the
presidency.'' \3\
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\3\ Richard Nixon, Remarks Announcing Procedures and Developments
in Connection with the Watergate Investigations (Apr 17, 1973), in
Public Papers of the Presidetns of the United States: Richard Nixon,
1973, at 299, quoted in Louis Fisher, Congressional Access to
Information: Using Legislative Will and Leverage, 52 Duke L.J. 323 at
394-95 (2002).
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Yet within months, Congress had summoned a parade of witnesses from
the Nixon White House to testify in connection with the Watergate
affair.
Post-Watergate presidents were more cooperative. President Ford
agreed to testify in person on the circumstances leading to his
decision to pardon President Nixon.
In 1980, President Carter instructed all members of the White House
staff to cooperate fully with the Senate Judiciary Committee in its
investigation of Billy Carter's connections with the Libyan government.
In 1987, President Ronald Reagan waived executive privilege for his
entire staff during the Iran-Contra affair.
In 1994, I was one of numerous Clinton administration officials
called to testify before congressional panels investigating the failed
Madison Guaranty Savings and Loan and the White Water Development
Corporation.
All in all, the Congressional Research Service reports that
presidential advisers have testified before congressional committees at
least 73 times since 1944--including individuals occupying the most
senior positions in the White House from Chiefs of Staff to National
Security Advisors to White House Counsels.\4\
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\4\ Harold C. Relyea and Jay R. Shampansky, Presidential Advisers'
Testimony Before Congressional Committees: An Overview, CRS Report for
Congress (April 14, 2004).
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For those interested in keeping an accurate count, I can add
several more instances not covered by the CRS review.
In 1995, I testified before the Government Reform and Oversight
Committee, during Chairman Clinger's tenure, concerning an internal
White House review I had conducted concerning the firing of employees
working in the White House travel office.
In 2001, I, together with Ms. Nolan and our colleague Bruce Lindsey
testified before the Government Reform and Oversight Committee, chaired
by Congressman Burton concerning pardons granted by President Clinton.
While I was no longer a White House employee at the time of those
two appearances, the testimony I gave solely concerned actions, duties
and advice I gave to the president while a senior White House employee
and would clearly have been subject to claims of executive privilege.
On each of these occasions, I did so with the support of the
president, who had authorized my testimony and made no claim of
executive privilege. And on each of these occasions, I came into a
public hearing room, in front of television cameras, with a full
transcript being kept; I raised my right hand, I swore to tell the
truth, the whole truth and nothing but the truth and I am proud of the
fact that I did so and proud of the president for giving me the
opportunity to do so.
Again, for the record, I also gave depositions, under oath, to
committee counsel in both the House and the Senate. And in 1993, I
appeared informally before separate partisan caucuses of this committee
and took questions for several hours with respect to the travel office
matter I previously mentioned.
Given that experience, I would like to comment on the current
investigation of the circumstances surrounding the firing of the U.S.
Attorneys.
At stake is a question of whether there was interference in the
administration of justice for political ends. The history of
Congressional oversight and investigations is replete with instances of
Congressional Committees exercising their jurisdiction to ensure the
fair administration of justice.
From Teapot Dome, to the ITT investigation, to Watergate, to Waco,
Congress has a long history of investigating allegations of
interference by the White House with the Department of Justice and
other law enforcement agencies.
Indeed, the heart of the Whitewater investigation concerned whether
the White House had improper contacts with the Treasury Department on
whether or not to refer the Madison Guaranty case to the Justice
Department for enforcement action. While one can question the excess of
spending more than $60 million in a series of investigations that two
independent counsels concluded involved no criminal activity and
outside reviews concluded involved no ethical transgressions, no one
questioned the right of the Congressional Committees to pursue their
investigations or the need for the White House to cooperate.
Simply put, issues surrounding the administration of justice are
paramount and constitute the heart of a legitimate legislative inquiry.
That is why we are here today.
This committee, and its Senate counterpart, have clear jurisdiction
over the matter under investigation and a legitimate need to hear from
key White House officials--on the record and under oath. No other means
exists to ascertain what communication occurred inside the White House
among White House aides and between White House Officials and
Department of Justice officials concerning the true motivations for the
firings.
It has been said many times in the course of this affair that U.S.
Attorneys ``serve at the pleasure of the president.'' As a matter of
law, this is a non-debatable proposition. Once confirmed, they can be
removed for any reason, or for no reason at all.
But that cannot be the end of the story. The fact that the
president has the power to remove them doesn't make it proper for him
to do so. Depending on the reason for his actions, it may be highly
improper and even illegal.
Many different reasons have been suggested for these dismissals.
Indeed, the Attorney General has offered quite a few different
explanations himself. Obviously until your inquiry has been completed
we will not know the truth of the matter. But we can try to separate
out the legitimate reasons from illegitimate ones.
The first reason is ``poor performance.'' This was the reason
originally given by the Department, and it is a perfectly appropriate
reason to fire somebody. Unfortunately, it appears that was not the
reason in any but perhaps one of these cases.
The second reason is to give the job to somebody else. It has been
established that this was the reason for at least one dismissal, and
perhaps others. For those who value loyalty and experience, this is not
an attractive reason, and it certainly is a departure from long
established practice. But it is not improper unless the replacement is
unqualified to serve.
The third reason is that the U.S. Attorney has policy differences
with Main Justice. There are indications that this may have been the
reason for one or more of the dismissals. If so, it does not seem an
improper reason to me. It is the prerogative of the president to set
policy, and it is reasonable for him to expect that his appointees will
carry it out.
The final reason is that the president and his allies in Congress
were unhappy with the particular prosecutions a U.S. Attorney was
bringing--or failing to bring. This is the crux of the matter. If the
president fires a U.S. Attorney to obstruct or interfere with a pending
prosecution or to influence the course of a prospective prosecution, he
has crossed the line. Such interference is not only improper but
depending on the circumstances may be illegal as well.
In other words, while it is true that U.S. attorneys are
``political appointees,'' they are not ordinary political appointees.
They wield extraordinary power in this country--the power to protect
our families and communities from harm, and the power to destroy
innocent lives and reputations. Attorney General Robert Jackson said in
1940, ``The prosecutor has more control over life, liberty, and
reputation than any other person in America. His discretion is
tremendous.'' \5\
---------------------------------------------------------------------------
\5\ Robert Jackson, The Federal Prosecutor, Address Delivered at
the Second Annual Conference of the United States Attorneys (April 1,
1940).
---------------------------------------------------------------------------
Once they take their oath of office, the 93 U.S. Attorneys are the
personification of the system of justice in this country. If that
system is to command popular respect, they must be beyond reproach.
That is why it is essential that they be seasoned professionals and not
just political hacks who do the bidding of the president who appointed
them in the prosecution of justice. And that is why it is essential
that the Congress get to the bottom of why these U.S. Attorneys were
fired.
Unfortunately, the inability or unwillingness of the White House to
give the Congress and the American people a straight and complete
answer on this matter means that we do not know exactly why the eight
U.S. Attorneys were fired (and I would add one more, the firing of
Frederick Black, the former interim U.S. Attorney for Guam and the
Commonwealth of the Northern Mariana Islands).
This is the concern which makes it imperative that this committee
get the facts so it can determine precisely what happened in these
cases.
Let me sum up. As a former senior White House advisor, I believe
deeply in the independence of the executive branch and the need for
presidents to receive candid, unvarnished advice from their advisors.
These are important constitutional considerations that should be
thoroughly weighed and seriously guarded. Yet they must also be
balanced against the legitimate needs of Congress to oversee and, where
necessary, investigate the actions of the White House. Congress should
be cautious in its assertions a need for the testimony of presidential
advisors, limiting such assertion to circumstances in which disclosure
would clearly serve the national interest. This seems to me to be
clearly one of those times.
This is not just a case about shifting explanations of underlying
conduct that was legitimate; it is a case where the legitimacy of the
conduct itself is seriously in doubt, and where the inconsistency of
the explanations and the invocation of the 5th Amendment privilege by a
senior Justice Department aide have deepened that doubt. Nor is this
merely a political fishing expedition. There is more than enough
evidence here to raise profound concerns--the smoke is rising and it
needs to be investigated.
The underlying issue at stake--whether the executive branch
illegitimately ordered the removal of independent U.S. attorneys to
advance outside interests or partisan political needs--is a serious
matter related to a core element of our constitutional system--the
administration of justice.
Cooperation and honesty by the White House could allay many doubts
and start to restore some credibility for the executive branch. As I
have previously noted, from Presidents Clinton, Reagan, Carter, and
Ford, going all the way back to President Washington presidents have
permitted senior aides to testify in Congressional investigations. It
is time for President Bush to show some of the same kind of healthy
flexibility.
If the White House will not adhere to these standards, then the
Congress should intervene to ensure that justice is being served by in
a fair and impartial manner. The American public must be confident that
its courts and prosecutors are independent and unbiased in the
administration of justice.
I thank you for inviting me today, and would be happy to answer any
and all questions you may have.
Ms. Sanchez. Thank you for your testimony, Mr. Podesta.
Ms. Nolan?
TESTIMONY OF BETH NOLAN, FORMER WHITE HOUSE COUNSEL TO
PRESIDENT CLINTON, PARTNER, CROWELL & MORING
Ms. Nolan. Thank you, Madam Chair and Mr. Cannon and
Members of the Subcommittee. I am Beth Nolan, a partner in the
law firm of Crowell & Moring, and I served as counsel to the
President in the Clinton administration.
Congress has heard numerous assertions that it may not
compel the testimony of White House officials. Too frequently,
these claims are made as if there are absolutes in this area.
We have little case law illuminating the contours of
executive privilege. But what we do have makes one thing
perfectly clear: The President's constitutional authority to
assert executive privilege is not absolute but is instead to be
balanced against the legitimate needs of the coordinate
branches of Government in undertaking their constitutionally
assigned responsibilities.
Under this approach, each branch has a constitutional duty
to consider, respect and accommodate the needs of the other.
As a general matter, I agree with the proposition that the
President's White House advisors should not be called to
testify before Congress or even to provide interviews without
careful congressional consideration of the needs justifying
such a request. To use one standard we have heard much-repeated
lately, Congress should not use White House officials to engage
in fishing expeditions.
But close advisors to the President have indeed been
subpoenaed by congressional Committees, testified under oath,
had their testimony transcribed and made part of the public
record, and been called back for subsequent testimony.
I, like Mr. Podesta, personally testified four times before
congressional Committees on matters directly related to my
White House duties: three times while I was serving in the
White House and once soon after President Clinton left office.
My testimony was conducted under oath, with a transcript.
At least some of those appearances were also made pursuant
to subpoena, sometimes without even the opportunity offered to
appear voluntarily. On those occasions, the President did not
assert a privilege to preclude my testimony.
On another occasion, the President, upon recommendation of
the Attorney General, asserted the privilege in response to a
subpoena from a congressional Committee seeking my testimony.
The Attorney General relied on the longstanding view of the
Justice Department that the President and his immediate
advisors should be considered immune from compelled
congressional testimony, but, appropriately, also considered
the balance of executive and legislative interests in the
particular matter to conclude that my testimony was protected
from congressional compulsion.
I subsequently testified before that same Committee with
respect to the same subject, presidential pardons, after the
President waived any privileges he might have asserted--
different presidential pardons, I should mention.
This personal history makes clear that historically there
have been no absolutes in this arena. And there should be none.
Despite Justice Department precedents that speak in terms of a
general immunity from testimony, the White House has offered a
number of advisors for testimony over the years, recognizing
that the privilege must give weight to the legitimate needs of
Congress in certain investigations or oversight.
I am still troubled by how often, when I was in the White
House, we received subpoenas as the first indication of
congressional interest and by the great numbers of White House
advisors who were called to testify--procedures that raise
questions about whether Congress always sought to accommodate
the legitimate interests of the executive.
But those troubling elements don't seem to be present here.
Instead, there has been an exchange between the White House and
Congress, leading to Mr. Fielding's offer to provide four White
House witnesses, only with significant limitations.
This offer might be sufficient in another situation,
because it is a balance. But here, legitimate and serious
questions have been raised in at least two areas: whether U.S.
attorneys were replaced to affect the prosecution or non-
prosecution of particular cases; and whether full and accurate
information has been provided to Congress with respect to this
matter.
Under those circumstances, it seems that Congress has not
just a right but, indeed, a responsibility to investigate the
allegations. Because the constitutional interests of Congress
are particularized and strong in this matter, they deserve to
be given great weight in the accommodation process.
In my view, the current offer on the table from the White
House, if indeed the President is unwilling to consider further
compromise, deprives Congress of the cooperation from the
executive branch to which it is entitled.
[The prepared statement of Ms. Nolan follows:]
Prepared Statement of Beth Nolan
Ms. Sanchez. Thank you, Ms. Nolan. And you came in just at
the 5-minute mark. I am impressed. [Laughter.]
Ms. Nolan. Thanks.
Ms. Sanchez. Great panel, so far.
Mr. Francisco, please proceed.
TESTIMONY OF NOEL J. FRANCISCO, FORMER ASSOCIATE COUNSEL TO
PRESIDENT GEORGE W. BUSH, PARTNER, JONES DAY
Mr. Francisco. Madam Chairman, Ranking Member, Members of
the Subcommittee, my name is Noel Francisco. I am a partner at
the law firm of Jones Day and formerly served as associate
counsel to President George W. Bush and Deputy Assistant
Attorney General in the Office of Legal Counsel.
Thank you for inviting me to testify today.
``If there is a principle in our Constitution more sacred
than another, it is that which separates the legislative,
executive and judicial powers.'' Those are the words of James
Madison.
Our founding fathers recognized that the division of power
among three separate branches of Government was essential to
the preservation of liberty.
As Alexander Hamilton explained, ``The separation of powers
ensures that the two greatest securities the people can have
for the faithful exercise of any delegated power are the
restraints of public opinion and the opportunity of discovering
with facility and clearness the misconduct of the people they
trust.''
By locating power in separate and distinct branches of
Government, the people know who is responsible for its exercise
and accountable for its abuse.
The present inquiry into the President's decision not to
reappoint eight United States attorneys threatens a
constitutional confrontation that would undermine our
constitutional structure and the liberties it protects. In that
system of separated powers, it is the President's exclusive
prerogative to appoint and remove United States attorneys.
That nondelegable power of the President is not shared with
the legislative branch. Nor is the confidential advice of the
President's closest advisors subject to congressional review.
The President has a constitutional privilege over those
discussions, recognized by the Supreme Court as falling within
his executive privilege.
No one would tolerate a demand by the President that a
Member of this body divulge the confidential advice he or she
receives from senior staff members in deciding whether or not
to vote against a bill. By the same token, no one should
tolerate a demand that the President divulge the confidential
advice that he receives.
The constitutional structure protects the branches from
each other, but, more importantly, the balance that it creates
protects the liberty of the people by dispersing and diluting
governmental power.
Requiring the President to divulge confidential advice
would be particularly inappropriate here, in light of the
information that the President has agreed to provide. Indeed,
it is my understanding that the only information that the
President has not agreed to provide pertains to internal White
House communication, including the public, sworn testimony of
certain senior White House advisors.
But this testimony is precisely that for which executive
privilege provides the strongest protection. Unlike members of
the Cabinet, these senior White House advisors have no
operational authority. Their sole function is to provide the
President with advice in order to assist in the execution of
his constitutional duties and responsibilities. Demanding the
sworn testimony of these senior White House advisors is
tantamount to demanding the sworn testimony of the President
himself.
This is why Presidents of both political parties have
consistently maintained that executive privilege is at its
strongest with respect to these senior advisors. As the late
Chief Justice Rehnquist once explained, ``Such individuals
should not be required to appear before Congress at all.''
Here, the question of executive privilege is a narrow one:
Does Congress's power to conduct oversight entitle it to demand
that the President divulge the advice of his closest advisors
on a quintessential and nondelegable presidential power? With
all due respect, I believe that that question answers itself.
At a minimum, however, Congress would have to examine the
extensive information that it does have, specifically identify
the need for the information that it seeks, and establish that
the incremental information is, in the words of the D.C.
Circuit, ``demonstrably critical to the fulfillment of its
function.''
At this early stage in the proceedings, however, I do not
believe that Congress could possibly overcome the privilege
that presumptively attaches to these core, internal White House
communications.
In the end, however, it is doubtful whether such a
confrontation between Congress and the President will be in
either's interest. Historically, the President has not exerted
executive privilege over the whole range of privileged
information, but instead----
Ms. Sanchez. Mr. Francisco? Your time is running short. If
you could just summarize and conclude.
Mr. Francisco. I will, Madam Chairman.
Instead, the President and the Congress generally seek to
seek an accommodation, as some of our other witnesses have
explained.
I think that the President has attempted to do that here by
putting on the table what I view to be an eminently reasonable
offer. And I think that that offer provides the proper
framework within which these negotiations can begin.
Speaking as a citizen and as someone who has devoted much
of my professional career to studying these issues, I, for one,
would hope that this is the manner in which the present
controversy, too, would be resolved.
Thank you.
[The prepared statement of Mr. Francisco follows:]
Prepared Statement of Noel J. Francisco
Madame Chairman, Ranking Member, and Members of the Subcommittee:
My name is Noel John Francisco. I am a partner at the law firm of
Jones Day. I served as Associate Counsel to President George W. Bush
from 2001 to 2003, and Deputy Assistant Attorney General in the
Department of Justice's Office of Legal Counsel from 2003 to 2005. It
is an honor to appear before you to discuss the important issue of
Executive Privilege.
``If there is a principle in our Constitution . . . more sacred
than another, it is that which separates the Legislative, Executive,
and Judicial powers.'' 1 Annals of Cong. 581 (Joseph Gales ed., 1834)
(remarks of James Madison). Our Founding Fathers recognized that the
division of power among three separate branches of government was
essential to the preservation of liberty. As Alexander Hamilton
explained, this separation of powers ensures ``the two greatest
securities [the people] can have for the faithful exercise of any
delegated power''--``the restraints of public opinion'' and ``the
opportunity of discovering with facility and clearness the misconduct
of the persons they trust.'' The Federalist No. 70. In short, by
locating power in separate and distinct branches of government, the
People know who is responsible for its exercise and accountable for its
abuse.
The present inquiry into the President's decision not to reappoint
eight United States Attorneys threatens a constitutional confrontation
that would undermine our constitutional structure and the liberties it
protects. In that system of separated powers subject to limited checks
and balances, it is the President's exclusive prerogative to appoint
and remove United States Attorneys. That non-delegable power of the
President is not shared with the Legislative Branch; nor is the
confidential advice of the President's closest advisors concerning whom
to appoint or remove from these positions subject to congressional
review. The President has a constitutional privilege over those
discussions--recognized by the Supreme Court as falling within his
Executive Privilege. See United States v. Nixon, 418 U.S. 683, 705-06
(1974). No one would tolerate a demand by the President that a Member
divulge the confidential advice he receives from senior staff members
on whether to vote for or against a bill (or in the Senate, for or
against a nominee). By the same token, no one should tolerate a demand
that the President divulge the confidential advice he receives on whom
to appoint or remove from the position of United States Attorney. The
President and Congress's role in this regard is both constitutionally
prescribed and constitutionally limited. These constitutional
strictures protect the Branches from each other; but more importantly,
the balance that they create protects the liberty of the citizenry by
spreading and diluting governmental power.
It is understandable that this body would have less sympathy for
the President's point of view. Congress is, after all, a co-equal
branch of our government, with its own vital role and constitutional
duties. Our constitutional structure, however, is not designed to
protect the President or the Congress. It is designed to protect the
People. As Justice Kennedy has elegantly stated, ``[w]hen structure
fails, liberty is always in peril.'' Public Citizen v. U.S. Dep't of
Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring in the
judgment). The Constitution thus also recognizes the danger of
Executive or Judicial encroachment on Congress's ability to carry out
its functions--a recognition embodied in, among other places, the
Speech and Debate Clause.
Requiring the President to divulge confidential advice would be
particularly inappropriate in light of the information that the
President has agreed to provide. It is my understanding that the
President has agreed to produce the following:
Department of Justice officials, who will testify to
their role in the removal of the eight United States Attorneys
and their conversations with the White House;
Department of Justice e-mails and memoranda related
to this issue, including e-mails and memoranda exchanged
between the Department of Justice and the White House;
White House e-mails and memoranda exchanged with any
outside entity, including the Department of Justice and Members
of Congress;
-Non-public interviews of specified senior White
House advisers about their communications with outside
entities, including the Department of Justice and Members of
Congress.
I understand that the only information that the President has not
agreed to provide pertains to internal White House communications,
including the public, sworn testimony of certain White House advisors.
Thus, the present dispute appears to be limited to this last category
of information.
The incremental information that the President has not agreed to
provide is precisely the information for which Executive Privilege
provides the strongest protection. Unlike members of the Cabinet or
other agency employees, the White House Staff has no operational
authority. It cannot prosecute criminals. It cannot issue binding rules
and regulations. It cannot sign an Executive Order. Instead, its sole
function is to provide the President with advice in order to assist the
President in the execution of his constitutional duties and
responsibilities. Thus, demanding the sworn testimony of these senior
White House advisors is tantamount to demanding the sworn testimony of
the President himself. It necessarily follows that the importance of
confidentiality with respect to this small group of presidential
advisers is particularly acute. This is why the historical view of the
Executive Branch is that ``the few individuals whose sole duty is to
advise the President should never be required to testify because all of
their duties are protected by executive privilege.'' CRS Report for
Congress, Presidential Advisers' Testimony Before Congressional
Committees: An Overview (April 14, 2004), at p. 27.
This is not a partisan issue. To be sure, presidential
administrations have differed somewhat as to the outer contours of
Executive Privilege. For example, according to the Congressional
Research Service, President Eisenhower, a Republican, ``took the most
expansive approach [to Executive Privilege], arguing that the privilege
applied broadly to advice on official matters among employees of the
executive branch.'' CRS Report for Congress, Presidential Claims of
Executive Privilege: History, Law, Practice and Recent Developments
(Sept. 21, 1999), at p. 11. The Congressional Research Service reports
that the Clinton administration likewise took the ``expansive position
that all communications within the White House and any federal
department and agency [were] presumptively privileged.'' Id. In
contrast, ``[t]he Reagan Justice Department appears to have taken a
slightly narrower view of the scope of the privilege.'' Id. But
regardless of the outer boundaries, presidents of both political
parties have consistently maintained that the privilege is at its
strongest with respect to the President's senior White House advisors--
``the few individuals whose sole duty is to advise the President.''
Presidential Advisers' Testimony Before Congressional Committees,
supra. As the late Chief Justice Rehnquist explained while serving in
the Department of Justice, such individuals ``should not be required to
appear [before Congress] at all.'' U.S. Congress, Senate Committee on
the Judiciary, Subcommittee on Separation of Powers, Executive
Privilege: The Withholding of Information by the Executive, hearings,
92nd Cong., 1st sess. (Washington: GPO, 1971), p. 427. ``[T]he aim,''
said the Chief Justice, ``is not for secrecy of the end product--the
ultimate Presidential decision is and ought to be a subject of the
fullest discussion and debate, for which the President must assume
undivided responsibility. But few would doubt that the Presidential
decision will be a sounder one if the President is able to call upon
his advisers for completely candid and frequently conflicting advice
with respect to a given question.'' Id. at 425.
This view has also been validated by the few court cases addressing
claims of Executive Privilege. Understandably, the federal judiciary
has been reluctant to resolve inherently ``political'' disputes between
the President and Congress--including disputes over information held by
one of the branches. See, e.g., United States v. AT&T, 551 F.2d 384,
395-96 (D.C. Cir. 1976); United States v. The House of Representatives
of the United States, 556 F.Supp. 150, 152-53 (D.D.C. 1983). But in the
only instance in which a federal court did resolve such a dispute, it
held that Congress's ``asserted power to investigate and inform'' was,
standing alone, insufficient to overcome a claim of privilege and so
refused to enforce the congressional subpoena. Senate Select Committee
on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731-32
(D.C. Cir. 1974). Other cases, which have generally arisen in the
context of criminal investigations and prosecutions, have likewise
recognized that internal White House communications are at the core of
the protections of Executive Privilege. See, e.g., In re Sealed, 121
F.3d at 752 (the privilege encompasses ``communications authored or
solicited and received by those member's of an immediate White House
adviser's staff who have broad and significant responsibility for
investigating and formulating the advice to be given the President on
the particular matter to which the communications relate''); see also
Association of American Physicians and Surgeons v. Clinton (AAPS), 997
F.2d 898, 909 (D.C. Cir. 1993) (the ``Article II right to confidential
communications attaches . . . to discussions between [the President's]
senior advisors,'' because ``Department Secretaries and White House
aides must be able to hold meetings to discuss advice they secretly
will render to the President'').
Finally, it bears re-emphasizing that the issue here--the
appointment and removal of United States Attorneys--is a
``quintessential and non-delegable Presidential power.'' In re Sealed,
121 F.3d at 753. United States Attorneys are political appointees who
may be removed by the President for any reason--good or bad--or for no
reason at all. They exercise extraordinary power. The decisions of
United States Attorneys can deprive individuals of their liberty and,
in some cases, their lives. Ultimately, it is not the unelected United
States Attorneys who are accountable for these decisions, but the
President, who alone in the Executive Branch is answerable to the
People. Indeed, the only way that United States Attorneys may be held
democratically accountable for their decisions (short of impeachment)
is through the President. This is why ``confidentiality is particularly
critical in the appointment and removal context; without it, accurate
assessments of candidates and information on official misconduct may
not be forthcoming.'' In re Sealed, 121 F.3d at 753. Indeed, Executive
Privilege is at its zenith when it applies to the President's decisions
regarding his appointment power. Cf. Public Citizen v. Department of
Justice, 491 U.S. 440, 466-67 (1988); id. at 468-69 (Kennedy, J.,
concurring in the judgment).
Here, the question of Executive Privilege is a narrow one: Does
Congress's power to conduct oversight entitle it to demand that the
President divulge the advice of his closest advisors on a
``quintessential and non-delegable Presidential power''? With all due
respect, I believe that the question answers itself. Indeed, in my
view, it is arguable that Congress can never require that the President
divulge these confidential communications, as the Executive Branch has
consistently maintained.
At a minimum, however, Congress would need to exhaust all other
avenues for obtaining this information and then demonstrate why it
needs the information withheld. Cf. Cheney v. United States District
Court, 542 U.S. 367, 388 (2004). Thus, Congress would first have to
examine the extensive information that the President has made available
to it--testimony from Department of Justice officials, communications
within the Department of Justice and between the Department of Justice
and the White House, and non-public interviews of White House
officials. It would then have to specifically identify why it needs the
information that it does not have. And finally, it would have to
establish that the incremental information it seeks--information at the
core of Executive Privilege--is ``demonstrably critical to the
responsible fulfillment of [its] functions.'' Senate Committee, 498
F.2d at 731-32. At this early stage of the proceedings, however, there
is no such record, in the absence of which Congress could not, in my
view, possibly overcome the privilege that presumptively attaches to
these core, internal White House communications.
In the end, however, it is doubtful whether such a confrontation
between Congress and the President will be in either's interest.
Historically, the President has not asserted Executive Privilege over
the full range of privileged information. Instead, as a matter of
comity between the branches, the President typically has attempted to
accommodate Congress's legitimate need for information with the
President's equally legitimate need to safeguard confidential
communications. That is what the President appears to be doing here,
where he has agreed to provide Congress with all relevant information
save a limited amount relating to his closest, most confidential
advisors. And even with respect to these individuals, the President
stands ready to provide Congress with informal, non-public interviews.
This seems to me to be an eminently reasonable offer, and one which
provides the framework in which the present controversy may be resolved
without provoking a constitutional confrontation involving all three
branches of our government. Speaking as a citizen and as someone who
has devoted much of my professional career to the respective roles of
the President, Congress, and the Judiciary, it is the way that I for
one would hope that this matter would be resolved.
This concludes my prepared statement. I would be happy to answer
any questions that you may have.
Ms. Sanchez. Thank you, Mr. Francisco.
Mr. Schwarz?
TESTIMONY OF FREDERICK SCHWARZ, JR., SENIOR COUNSEL, BRENNAN
CENTER FOR JUSTICE, NYU SCHOOL OF LAW
Mr. Schwarz. Thank you, Madam Chairman.
Thank you, everybody else.
I just want to make two points out of my written testimony,
based on my experience as chief counsel of the Church Committee
30 years ago that investigated the most sensitive national
security matters.
During our hearings, we heard and took sworn testimony from
high-ranking presidential advisors--national security
advisors--from the White House in the Truman, Eisenhower,
Kennedy, Johnson and Nixon administrations. So, again, there
are precedents for that being done.
Another point from our experience in the Church Committee
is: Watch out for labels, like the label, ``national
security,'' which we dealt with all the time, which is just so
vague. And here, you are hearing the label, ``performance.''
Well, ``performance'' just doesn't tell you anything about what
it actually means. And I would suppose that President Nixon,
when he fired Archibald Cox, would say, ``The reason I fired
him was because of his performance.''
Now, another point, historical point, is that I think you
have to look at executive privilege in terms of what actual
powers the White House officials now have.
When this Constitution started, there weren't any White
House officials. There was President Washington and then the
secretary of the state and the secretary of the treasury. Then
we started to have White House officials. Now the White House
officials, clearly, de facto have the power to tell the
departments what to do.
So, it seems to me, without knowing your record completely,
that is what is involved here--not a question of advice to the
President, but instructions from these people to the
departments. And I think that raises quite different questions
on the theory of executive privilege.
Another point I suggest in my written testimony is that it
would be a good thing for this Committee to do a more
comprehensive analysis of the Justice Department. I know you
have done that, to some extent, on the Civil Rights Department,
but another area where I think you particularly should be
paying attention is the Office of Legal Counsel.
It is the Office of Legal Counsel that has set the nation
down a course that has been extremely harmful to our national
reputation and has been extremely harmful to the efforts to
combat terrorism. Because by condoning torture and actions such
as warrantless wiretapping and writing opinions to that effect,
which include a theory which is one that both Republicans and
Democrats in the Congress and in the country should be very
concerned about, which is a theory that the President has the
right to violate congressional laws--that is a theory which has
been in the OLC opinions.
Now, most of those opinions have not yet been released;
they have been kept secret. And there is no justification for
keeping secret an opinion of the Office of Legal Counsel that
determines the law and which also decides that the President
has the power to disregard the law.
So the final point that I would make--and, Madam Chairman,
I am shooting to finish in less than 5 minutes, and I expect
appropriate kudos for that if I do---- [Laughter.]
Ms. Sanchez. You will win the prize of the panel.
Mr. Schwarz. The final point I would make is that I think
this Committee, particularly, along with the Intelligence
Committees, should take a very close look at the subject of
secrecy--excessive classification. I think any objective person
would say we have too much that is kept secret, stamped
``secret.''
When we did the Church Committee, we concluded, after our
year and a half of investigation of five Administrations,
Roosevelt through Nixon, all of which abused their national
security powers, both Republican and Democratic
Administrations, we concluded that secrecy stamps were used
very, very often to protect the Administration from
embarrassment and to protect them from the American public
knowing things they had been doing that were wrong.
Congress has given the President wide power to determine
classification. And I think you should, in a very careful way--
this is something that is very serious and merits extensive
thought--you should look at how secrecy stamps have been used
and whether there is not a need in the national interest to
reduce the amount of stuff that is kept secret and away from
the American public.
Thank you very much.
[The prepared statement of Mr. Schwarz follows:]
Prepared Statement of Frederick A. O. Schwarz, Jr.
Ms. Sanchez. Thank you for your testimony. And you did, in
fact, make it in under the 5-minute rule.
We have been called for a series of votes, unfortunately.
There is going to be a series of three 15-minute votes, which
means potentially we will be on the floor for 45 minutes, a
little bit less if we can get people back here.
I would ask--and I know it is asking a lot because you have
been extremely patient--I would ask the witnesses, if they
could stick around, that they do so, so we could do
questioning. I think this is a nice, natural break for the
Members to get to the floor to vote.
So if, because of time constraints, you cannot stay for
questioning, we certainly understand, but we will be submitting
questions to you to have you respond in writing.
So, again, we really appreciate your time and your
testimony.
And the Committee will stand in recess.
[Recess.]
Ms. Sanchez. Okay. The Committee will reconvene.
I want to thank our witnesses for sticking around. We will
be joined shortly by some of our colleagues, but I wanted to go
ahead and recognize myself for the first round of questions.
Mr. Podesta, I read your written testimony and was very
interested in getting your views on the potential reasons for
dismissal of U.S. attorneys and whether politics or performance
is involved, and how that relates to executive privilege.
Mr. Podesta. Thank you, Madam Chair.
I think that Mr. Sampson in his testimony this morning,
over on the Senate side, he said there is not a difference
between performance and political considerations. I guess I beg
to disagree.
I think that where politics becomes partisanship is when
you are trying to actually influence the outcome of the cases
for partisan gain or for personal gain. Then it seems to me
that is beyond the realm of the normal course of politics with
respect to the duties of a U.S. attorney.
I think really at the bottom line, that is really what the
case is here. If this was simply trying to dismiss people who
weren't doing a very good job in their offices, that would be
one thing, but that does not appear to be from what we know
today, what was at issue.
I think that if you go back, and Fritz is the expert on the
Nixon administration, but I think if you go back and look at
what President Nixon did in the ITT investigation, where he
ordered then-Deputy Attorney General Kleindienst to not appeal
the ITT case to the Supreme Court, that that was really what
was at the heart of the issue.
Of course, President Nixon argued it was just a policy
matter, that he was just exercising his responsibility as the
President to do it. But when he called Mr. Kleindienst and
said, ``Mr. Kleindienst, you son of a bitch, don't you
understand the English language? Don't appeal this case,'' he
was of course going way beyond the normal exercise of policy in
that matter.
We don't know what the circumstances are here. That is why
it is important that the Justice Department come forward with
its testimony and the White House give you an explanation of
what they are up to.
Ms. Sanchez. I appreciate the answer.
I just want to note that, Mr. Francisco, in your testimony
you said that the White House had provided information, and
that we needed to look at executive privilege in the context
the White House has provided, or the offers that they have made
to provide.
I just wanted to note that so far to date, we have received
nothing from the White House--no documents, no witnesses to
come and testify. We have received redacted documents from the
Department of Justice. But just so you know, so far we have
received nothing from the White House.
I wanted to ask the whole panel this question, because I
find it very interesting and relevant. Recently, the National
Journal reported that a former White House official familiar
with Karl Rove's work habits indicated that Mr. Rove does about
95 percent of his e-mailing using his RNC-based account, not
his official account.
In your experience with the contours of executive
privilege, can the White House make a valid claim of executive
privilege as to any communications originating outside of the
White House? I would be interested in getting all of the
panel's views on that, beginning with Mr. Podesta.
Mr. Podesta. I think that under the precedents certainly in
this circuit, you would be very hard-pressed to claim privilege
once you have moved out beyond the senior level people inside
the White House.
If that is true, and of course we don't know that that is
true, but if that is true, the Presidential Records Act seems
to be violated also, because again post-Watergate and post-the
claim that those were personal records of President Nixon, the
Congress passed the Presidential Records Act that dealt really
with these circumstances and dealt specifically with material
that involved political activity, but that intersected with
official governmental activity.
I can't believe that Mr. Rove is spending 95 percent of his
time only engaged in partisan political activity and only 5
percent of his time on--he is the deputy chief of staff in the
White House--on the affairs of the Government.
Ms. Nolan. I do think it is very important that this law we
have, the Presidential Records Act, is intended to preserve
communications on official White House business. They are
supposed to be made public after a certain period under the
law.
So if in fact Mr. Rove or others are trying to conduct
official White House business outside the official channels of
communication, then I think that really is very serious and
problematic, and would certainly raise questions about how you
can both treat this as something outside the White House, and
yet claim a privilege on it.
Mr. Francisco. I would like to be clear, since I don't
really know exactly what is going on with Mr. Rove's e-mails, I
can't comment on that specifically. But in terms of the general
question, the core of executive privilege is obviously intra-
White House communications that take place among the White
House staff.
But second only to that in terms of how strong the
privilege applies are communications to the White House. So in
theory, a communication that originates outside of the White
House, but goes into the White House is still protected by the
executive privilege, provided that it is something that relates
to official White House business. So in theory, the executive
privilege still would apply even if the communication did
originate outside of the White House and was made to the White
House.
Ms. Sanchez. So would it be fair to say or believe that
there is a blanket privilege for all outside communications
originating into the White House, intra-White House
communications would all be covered by the privilege, and under
no circumstances would there be exceptions?
Mr. Francisco. Well, to be clear, at least in the cases
that have been decided, none of which have involved
congressional subpoenas for information, with the exception of
one old case, in the cases that have been decided in other
areas, courts have adopted a balancing test. So to say at least
in those cases there is an absolute privilege, I probably
wouldn't agree with that.
With respect to core internal intra-White House
communications, I do believe that would be very difficult for
the Congress ever to overcome the presumption of a privilege
that applies to those core communications. Communications that
originate outside the White House probably are less protected
because they are not as much at the core of the privilege.
Mr. Schwarz. I would say first the fact that someone is
located in the White House cannot be the answer to the
question. The question is whether they are functioning as a
governmental official when they are in the White House.
For example, if I visited the White House one day and I was
there for a chat about something relating to the Government,
and while I was in the White House, I communicated to the
Attorney General and said, ``Here is what you should do,'' you
couldn't possibly say that is privileged because I was in the
White House.
Now, as I understand the facts, and here I don't understand
the facts, but what I have heard about the facts really only
this afternoon I think in your opening comments, was that Mr.
Rove when he was physically in the White House was using a
computer system that wasn't a White House computer system. If
that is true, he is not functioning as a governmental official,
and so clearly it is not privileged. It is not covered by the
executive privilege.
If you think about the attorney-client privilege, that
protects communications from an attorney to the client when the
attorney is functioning as an attorney. As we all know, there
are many lawyers who sometimes have the lawyer's degree and
call themselves a lawyer, but they are actually working as
business people. If they give business advice to their client,
the fact that they are labeled as a lawyer doesn't make it
privileged.
So if someone is physically in the White House and they are
sending e-mails that are not on a White House governmental
system, but are on some private system, there is no possibility
that that is privileged under an executive privilege, in my
judgment, hearing the facts for the first time today and
reacting to your question today.
Ms. Sanchez. Thank you, Mr. Schwarz.
I now would like to recognize our Ranking Member, Mr.
Cannon.
Mr. Cannon. Let's follow up on the same line of
questioning. Let me just ask Mr. Podesta, and then we will go
down the panel.
If someone, before we had VoIP, so you are talking about an
old telephone system, lifted up the phone and made a phone call
from the White House, the Old Executive Office Building, and
that went through a switch downtown, there would be no question
that that you would not lose executive privilege based upon
going through a switch downtown. Right?
Mr. Podesta. I don't think the technology would matter in
that context. The question is whether it falls within the
privilege itself.
Mr. Cannon. Right. But nobody is going to disagree with
that conclusion, right?
Now, I think the question that we are going to have here is
Karl Rove used something, not an old telephone system, it is a
new e-mail system, so Karl Rove uses an e-mail system to
communicate from himself to someone else in the White House.
Now, there are all kinds of reasons for doing that, but it
won't be that the system is based outside the White House that
diminishes the privilege, whatever that might be otherwise.
Mr. Podesta. Well, I think quite frankly, Mr. Cannon, I
raise the Presidential Records Act. I think the Presidential
Records Act requires--and I was involved in litigation on this
that began in the Reagan administration----
Mr. Cannon. We can come back to this. But it will not be
the fact that you got a service-provider outside the White
House that diminishes the----
Mr. Podesta. It may not be the question of whether it was
hosted outside the White House, but Mr. Rove if he was
conducting official governmental business was required to use
the assets of the Government in order to capture and retain
those governmental communications.
Look, we are speculating here completely because we don't
know in fact what he did and whether it was engaged or
involved. We know to some extent that his deputy was using
these accounts for official business, but we don't know what
Mr. Rove did. But if he was using those separate e-mail
accounts that were essentially off the books of the White
House, why was he doing that?
Mr. Cannon. There may be many reasons why, but it would
certainly not mean that those records were not part and don't
come under the purview of the Presidential Records Act. Right?
Mr. Podesta. Again, we, as a result of litigation that
began at the end of the Reagan administration as a result of
Iran-Contra, they were trying to clean the e-mail records of
the NSC and Ollie North's records. Litigation was brought. That
litigation lasted for 6 years.
We implemented a system to retain and capture official
governmental records. That system still exists, I believe,
inside the White House, to capture e-mail records of the
Administration. That was approved by the National Archives and
we ultimately settled the case as a result of implementing that
system.
If he was conducting official business on the separate
political accounts, then it seems to me that was an avoidance
of his obligation under the Presidential Records Act. So if he
felt that that was an official action, then it wouldn't be
privileged. If he thought it was, he was violating the
Presidential Records Act. But I think it is one or the other.
Mr. Cannon. Depending upon how he did it, and granted there
are many questions that are out there, you would certainly not
say that these don't become presidential records because of
some cloak of using an alternative system. Whatever the
Presidential Records Act covers, those will be included in it,
whether they were used in the inner-system or not.
Mr. Podesta. Well, I think if he was conducting official
business, he was creating presidential records and he should
have been doing that----
Mr. Cannon. If he was creating presidential records, then
he is going to have a presidential privilege regardless of what
the external system that it goes through uses.
Mr. Podesta. Well, as I said, I think that as a result of
litigation that the White House settled, the obligation of
White House employees with formal guidance was that you could
not participate in a way of conducting official business in the
manner that you are describing.
Mr. Cannon. We understand that. We are not litigating this
case right here. We are just saying it is not the fact that it
sits on or went through an external system that makes it not a
privileged communication.
Mr. Podesta. Well, it would be my view that it would
certainly diminish or eliminate the presumption that that
document was privileged.
Mr. Cannon. I am sorry. You are suggesting that if it goes
through--there are many unknowns here, and that was a pretty
blanket statement. It is not the fact that it goes through an
external system that eliminates the presumption. If he is
trying to avoid the Presidential Records Act, that might
eliminate the presumption, but it is not the system that it
goes through that represents the elimination of the
presumption.
Mr. Podesta. I am saying that the system inside the White
House was set up to capture those records as a result of the
obligations of the White House to retain records under the
Presidential Records Act.
Mr. Cannon. I see that my time has expired.
Ms. Sanchez. The time of the gentleman has expired.
We will have a second round of questioning.
Mr. Cannon. I would just make a point, hopefully it won't
do that, at least I don't want to be here for the second round.
Let me just make the point----
Ms. Sanchez. You are not required to be here for the second
round. [Laughter.]
Mr. Cannon. It is not a presumption. It is a privilege. And
the privilege is undefined to some degree.
Thank you. I appreciate that.
Ms. Sanchez. Thank you, Mr. Cannon.
Mr. Johnson?
Mr. Johnson. Thank you.
Mr. Francisco, you indicated or you stated in your opening
that if there is a principle in our Constitution more sacred
than any other, it is that which separates the legislative,
executive and judicial powers. I am sure that all of us will
agree that that setup has indeed worked well in our governance.
Do you respect the notion that these three branches are co-
equal?
Mr. Francisco. Yes, Congressman, I do.
Mr. Johnson. And you do you know of any legal precedent
that suggests that Congress does not have jurisdiction to
oversee the office of the President?
Mr. Francisco. I do know it is the longstanding position of
the executive branch, articulated both in Republican and
Democratic Administrations that White House staff-members are
subject to an executive privilege that shields them from being
called upon to testify before Congress absent the President's
agreement for them to appear to testify.
Mr. Johnson. Well, it is not an absolute privilege, though,
is it?
Mr. Francisco. I think that, in my view, with respect to
White House staff-members being required to testify under
compulsion before the Congress, I do believe that it is the
longstanding position----
Mr. Johnson. But is it absolute privilege?
Mr. Francisco. In terms of the positions that Democrat and
Republican Presidents have taken, yes.
Mr. Johnson. What about that third branch of Government,
the courts? How have they interpreted this question of
unqualified immunity, if you will?
Mr. Francisco. There is only one decision that has ever
addressed Congress's subpoena of the President, in the face of
an assertion of executive privilege. And in that one case, the
court said that Congress was not entitled to enforce the
subpoena. That was the Senate Committee case. It is a
relatively old case, but it is the only one that there is on
this issue.
Mr. Johnson. What about that case involving the firing, or
the issuance of subpoenas by Congress for the White House
tapes?
Mr. Francisco. I believe that you are referring to the
Nixon case.
Mr. Johnson. Yes, the Nixon case.
Mr. Francisco. My understanding, and I can be corrected, is
that that was the subpoena issued by a special prosecutor,
rather than the Congress.
Mr. Johnson. Well, I guess that the bottom line would be
that the executive privilege is not absolute. It is qualified
and can be subject to other concerns such as Congress's ability
to oversee the office of the President.
What factors must be assessed in balancing executive
privilege against congressional oversight functions, Ms. Nolan?
Ms. Nolan. First of all, I would like to say that no court
has ever addressed this claim that former Presidents have made,
and this President seems to be making, that White House
advisors are immune from being called to testify. There is no
judicial decision on that. The judicial decisions we do have
say that executive privilege involves balancing, and that is
the question you have: What factors would be balanced?
I think what you are looking for is what are the legitimate
and important constitutional interests and prerogatives of each
branch. We have seen that courts may look, for instance, in a
case such as this where I think there is no question that
Congress has oversight authority with respect to these matters,
then is Congress able to obtain the information in another way.
That would be one question that you might look to.
Mr. Johnson. Well, according to Mr. Francisco's view,
conversations intra-White House, intra-White House
communications, would be immune, and also communications from
outside of the White House flowing into the White House would
be immune. So that would severely limit the available material
for the Congress to be able to exercise legislative authority
or oversight authority.
Ms. Nolan. Well, I think it is correct that the
presidential communications privilege, those communications
between advisers who are advising the President directly, do
have the strongest claim to privilege.
Now, I think Mr. Schwarz made a very good point that we
don't know here that what we are talking about were advisers
advising the President. It seems like they were directing the
Justice Department instead. So we don't even know that that
would be the claim.
But even if it is a stronger claim, it doesn't mean that
Congress's interest won't overcome that claim. What is
important here is that while we have a very limited number of
judicial decisions or law on the question, we have decades and
decades of practice.
And executive privilege is really nine parts practice and
one part law. It is what the branches have agreed to and
accommodated. I would say here there is plenty of precedent for
the idea that those internal White House communications can be
provided.
Mr. Johnson. You yourself have provided testimony.
Ms. Nolan. I have, and we did it again and again.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Johnson. All right. Thank you.
Ms. Sanchez. Mr. Delahunt?
Mr. Delahunt. Somewhere in the U.S. criminal code is there
a criminal sanction imposed for testimony that is misleading to
the Congress? Anybody?
Mr. Francisco. I believe it is----
Mr. Podesta. Yes, it is 18 U.S.C. 1001.
Mr. Delahunt. Okay.
Mr. Podesta. ``Misleading,'' I think, threw us. You can't
lie to Congress.
Mr. Delahunt. That is the point.
You know, I understand the distinction we are making here,
I think, Mr. Francisco is in terms of the rationale for the
dismissal, if you will, of the U.S. attorneys. But what I would
suggest is that there is uncertainty now in terms of whether
there has been a violation of the United States criminal code.
We have heard significant and germane variations on
statements by the Attorney General of the United States. Would
you agree, Mr. Francisco, that there is a rationale and a basis
for the issuance of a subpoena, given the predicate of the
potential violation of the U.S. criminal code?
Mr. Francisco. My understanding is that the Administration
has agreed to make the Attorney General and other Department of
Justice officials available for testimony to the Congress. I
may be wrong on that, but that is at least my understanding.
Ms. Sanchez. In a limited scope.
Mr. Francisco. And if that is the case, then the people who
you believe may or may not have provided false testimony to the
Congress are accessible to the Congress.
Mr. Delahunt. I understand. Even if that is the case,
however, the conduct of a criminal investigation implicates far
more than just the testimony of an individual that may or may
not invoke the fifth amendment.
Mr. Francisco. In the context of a criminal investigation,
that is where the courts have said that where a prosecutor is
investigating a case and trying to uncover evidence of a crime,
that is where the interest is the strongest in terms of
overcoming executive privilege. But they have not said the same
thing in the context of a congressional investigation.
Mr. Delahunt. So then what the Congress ought to do if it
feels appropriate or it feels that there is a quantum of
evidence that there may have been a potential violation of the
United States criminal code, is to request the appointment of a
special prosecutor.
Mr. Francisco. I think it would be appropriate for Congress
to make that request.
Mr. Delahunt. Mr. Podesta?
Mr. Podesta. Well, my experience with the independent
counsel leads me to think that that is an extraordinary remedy.
And so I would urge you to try to work to get the----
Mr. Delahunt. I am not suggesting. We let the independent
counsel statute die.
Mr. Podesta. There are special counsel provisions that Mr.
Fitzgerald was appointed by.
But just to clarify one thing, Mr. Delahunt, I think that
it is still okay to lie to the press, which I think, if I
understood Mr. Sampson's testimony this morning when he
suggested that the Attorney General's statements weren't
accurate, that those were press statements, rather than
statements before Congress. Now, Mr. McNulty and others I think
did testify before Congress.
Mr. Delahunt. Well, then I guess I would suggest that there
is the predicate for a conspiracy. In other words, we are
focused on the dismissal at this point in time, as opposed to a
rationale which would implicate the U.S. criminal code.
I am not suggesting that the Attorney General has misled to
lied to Congress, but what I am saying is exactly because we
don't know, should mandate or should I think diminish the
rationale for the invocation of executive privilege.
We just saw a case here in Washington, the Libby case. It
had nothing to do with leaking to the press. It had to do with
testimony before the grand jury. What I am suggesting is if the
White House reflects on this particular issue and there is an
examination of testimony before Congress by individuals who may
or may not have been informed by superiors in the Department of
Justice, as well as the White House, that misled Congress,
there is, one can theorize, a case, that there has been a
violation of our criminal statutes.
That, in and of itself, should, in my judgment, be
sufficient for the White House to recognize that this is more
than just simply dismissal of eight U.S. attorneys.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Jordan?
Mr. Jordan. I thank the Chair and the panel for being here
today.
I am going to yield the balance of my time to the Ranking
Member.
Mr. Cannon. Thank you, Mr. Jordan.
What has gone on with the U.S. attorneys has gone on. It is
going to take a little bit of time to sort out. Let me just
reassert the importance of the prerogatives of Congress.
I think there is actually an interesting point that the
gentleman from Massachusetts is making, if someone gave
incorrect information knowing that it was going to come to
Congress, there is a problem there somewhere and we need to
pursue that.
Now, Ms. Nolan, in your written testimony, you stated that
some in the present Administration appear to believe that
presidential advisers are immune from giving testimony on the
theory that Congress does not have jurisdiction to oversee the
office of the President. No precedent in our country's history
has attempted to make such an extraordinary claim and no
precedent provides a legal justification to support that
perspective.
Would you be surprised to learn that Robert Lipschutz, the
former White House counsel in the Carter administration, wrote
a memo on February 8, 1979 to White House staff stating--and by
the way, Madam Chair, I would like to insert this letter from
Mr. Lipschutz to the White House staff into the record.
Ms. Sanchez. Without objection.
[The letter follows:]
Ms. Nolan. Mr. Cannon, you are saying that is from my
testimony?
Mr. Cannon. Oh, well, pardon me here. This is Mr. Podesta's
testimony.
The problem is no reasonable man would mind being at
crosswords with you, but your rapier-like mind is beyond the
competence of most of us, so let's get away from you and to
someone who---- [Laughter.]
Mr. Podesta, I think you said that.
Let me just read a little portion of the letter: ``While
the investigative power of congressional Committees is
extremely broad, the personal staff of the President is immune
from testimonial compulsion by Congress. This immunity is
grounded in the constitutional doctrine of separation of
powers.''
Mr. Podesta. Mr. Cannon, the statement I was referring to
goes to the back-end of that sentence, that Congress does not
have jurisdiction to oversee the office of the President. That
has been repeated from the White House podium on several
occasions, including last Monday by Ms. Perino. And that is
just not true.
Mr. Cannon. What did she have to say? Do you recall her
actual words?
Mr. Podesta. I probably have it here, and I will find it
for you.
But on several occasions, I think that the White House has
made the claim that the Congress has no authority over the
White House, that they have no oversight authority over the
White House, and that is just patently not true.
Mr. Cannon. Well, they are separate branches, but they
don't mean that Congress can't investigate the President. That
can't possibly be what----
Mr. Podesta. I would provide for the record the statements
that have been made by the White House over the course of the
last week. I think they would support the testimony that I gave
here.
Mr. Cannon. Well, they are a public record. If you could
find them, that would be nice. We have an obligation here to
also look for them.
Let me just say, I think that we have come to a point where
there is not a lot of disagreement here about what is
privileged and what it not privileged. This case, as I think
Mr. Schwarz pointed out earlier, raises some very interesting
particular questions that may be new. We will sort through
those.
The scope of this is, and what I think we have agreed to,
is that there is no absolute privilege. There is a right based
upon a separation of powers. That right has come down to
internal discussions versus external discussions.
I think the President's offer, by the way, has been
remarkably open in that regard. They have made everything
available that has been into the White House, even discussions
which I think Mr. Francisco would say may have been privileged,
that is, ideas that have come from outside of the White House,
inside the White House.
If what we are doing is trying here in Congress to get to
the truth, to find out how significant the problem is, then we
could do so by pursuing the offer the President has made and
seeing where that leads us. It may lead to a more significant
revelation or not.
Personally, I don't think the revelations that have come
out so far as substantial. Certainly, there has been nothing
significant of the testimony of the U.S. attorneys themselves
is definitive that there is no attempt to avoid corruption
charges or investigations, or that any investigations were not
interrupted by the firings and would not be harmed by the
firings.
So what we are dealing with here may be angels on the head
of a pin, but your contribution today has been very helpful in
clarifying that. It seems to me that we have come down to a
pretty clear sense of the scope of Congress's ability, and that
is something that we will pursue aggressively on both sides of
the aisle.
Ms. Sanchez. The time of the gentleman has expired.
I have one last question, and we will see if there are
other questions. I want to pick up on the point that Mr.
Delahunt was trying to make, and Mr. Cannon tried to flesh out
a little bit.
Regarding the potential of the invocation of presidential
communications privilege as it pertains to matters surrounding
the current case of the dismissals of the United States
attorneys, is it necessary for Congress to establish a
likelihood of criminal wrongdoing in order to overcome the
presumption of privilege? Or would an indication of
inefficiency or maladministration be sufficient?
Mr. Podesta?
Mr. Podesta. I think there is no definitive answer to that.
I think clearly the Congress has jurisdiction and the Supreme
Court has recognized that they have the authority to
investigate for purposes of uncovering maladministration or
other kinds of oversight issues. I think that there is a whole
line of Supreme Court cases that uphold that right.
The real question is, when you are faced with an executive
privilege, have you overcome that right just because you are
essentially operating in that zone? The one case that I am
familiar with again goes back to Watergate, where the select
Committee, the Watergate Committee, tried to get a set of tapes
from the Nixon White House, and the court of appeals here
concluded that they had not overcome the privilege because they
had not demonstrated the need.
The reason for that was that this Committee, the House
Judiciary Committee, which was engaged in the impeachment
process, had already received that same set of tapes, and the
Watergate Committee in the Senate no longer needed them because
the process had moved along. So I think that is a question that
would be a first impression if it actually got to a court.
Ms. Sanchez. Ms. Nolan, any thoughts?
Ms. Nolan. Yes. I agree with Mr. Podesta that we don't have
a definitive answer, but I don't understand there to be any law
that would suggest that an actual determination of criminal
wrongdoing is necessary to overcome the privilege. The cases
have largely been in the criminal area, and so that is what the
cases address. We don't have the same kind of explanation from
the courts with respect to Congress.
Ms. Sanchez. If we had to just assume a hypothetical that
there was an intention in the firing of U.S. attorneys to
disrupt certain investigations that were taking place, would
the suggestion of that be enough to overcome the assertion of
privileged communications?
Ms. Nolan. I certainly think yes. If you have something
that looks like obstruction of justice, an attempt to interfere
with individual cases for reasons that really should be outside
the authority of officials to do, then I think that is exactly
the kind of thing.
You are talking then about issues, whether they are
criminal obstruction of justice or whether it is simply
questions about the administration of justice, impartial
execution of prosecutorial discretion, questions that really go
to the heart of the rule of law and our criminal justice
system, then I would say not only does Congress have the right
to receive information relevant to that, but it has a
responsibility. That is what the American people look to
Congress to do.
So without judging particular facts, in your hypothetical,
yes.
Ms. Sanchez. That would be a situation that would warrant
it.
Ms. Nolan. Absolutely.
Ms. Sanchez. I am curious to know, must a claim of
privilege be asserted by the President personally?
Ms. Nolan. Yes. In the accommodation process, it is not
always escalated to that point. That is, Congress and the
executive reach an agreement before there is a personal
assertion, a direct assertion by the President. But if the
Administration is seeking to assert a privilege in a formal
way, the accommodation process has failed. Then it is the
President and the President only.
Ms. Sanchez. Must that be in writing, that invocation?
Ms. Nolan. I don't know the answer to that.
Ms. Sanchez. Does anybody know the answer to that on the
panel?
Mr. Francisco. I think the practice has varied from
President to President, which would suggest that it doesn't
have to be in writing. But again, I would agree that I am not
sure there is a definitive answer to that question.
Ms. Sanchez. Okay. Thank you.
Mr. Cannon, do you have any more questions, a second round
of questions? Anybody else have questions?
Mr. Johnson?
Mr. Cannon passes.
Mr. Johnson, you are recognized.
Mr. Johnson. All right. Thank you.
I will ask this of Mr. Schwarz.
I want you to assume that there is a White House political
director who decides that he wants to replace one U.S. attorney
with another U.S. attorney for the reason that he wants the new
U.S. attorney to institute a vindictive prosecution against a
candidate for President from a different party in an upcoming
election. And he wants that new U.S. attorney to institute
criminal proceedings, or at least an investigation, against
this presidential candidate, who may have some connections to
that particular venue where the U.S. attorney is being
replaced.
Would that be a legitimate area of congressional inquiry?
Mr. Schwarz. Well, sure, it is an area of congressional
inquiry. It seems to me it gets back to the dialogue that the
Chairwoman started and the Ranking Member continued about this
discussion that somebody in the White House was using a
political account to send their e-mails. It seems to me what
that shows is that persons wasn't functioning as a Government
official so the privilege wouldn't arise in the first instance.
On your hypothetical, you have described an instance where
someone was a political official and not a governmental
official, and if they are a political official, and they are
working in the White House----
Mr. Johnson. Well, I want you to assume that the political
official is actually a White House official, working in the
White House, with the title of White House political director.
Mr. Schwarz. To me, the question is whether the person is
in fact a governmental official, or is a political person.
Mr. Johnson. Let's assume that they are a governmental
official as well as a political official.
Mr. Schwarz. It is like my hypothetical of the attorney-
client privilege. If someone who is a lawyer and a businessman
communicates to a client, and what they are communicating is
business advice, not legal advice, then it is not privileged,
even though they were a lawyer in a law firm.
By the analogy, I would think if someone in the White House
was in part a governmental official and in part a political
official, to the extent they are a political official, I don't
see why the presumption in favor of there being some sort of
privilege should apply at all.
I think your question is getting at it, and frankly I have
never thought about this subject until it came up today, so
perfectly, possibly I am giving you off-the-cuff reactions
which wouldn't be supported after I had a chance to think about
it further.
But in starting to think about it, I think if there is a
person physically in the White House who is in part a
governmental official and in part a political official, when
they are being a political official they are not protected by
any privilege associated with the executive privilege, and
shouldn't be.
And that is, by the way, not a partisan issue, because it
would be something that would bite on any future or past
President and any future or past White House.
Mr. Johnson. Mr. Podesta, let me ask you this question. The
power to remove a United States attorney certainly vests in the
President, and no one is disputing that.
Do you think that the fact that the President has the
unfettered discretion to appoint and to--well, I won't say to
``appoint,'' but he certainly has unfettered discretion to
dismiss.
The fact that he has that unfettered discretion, does that
insulate the reason for the dismissal from congressional
inquiry and oversight?
Mr. Podesta. No, Mr. Johnson. I think that U.S. attorneys
serve at the pleasure of the President. So he could dismiss
them on a whim, but he can't dismiss them for improper purpose.
I think, again, if the purpose was to interfere with
specific cases--I am not alleging that in this case. We don't
know the facts. But if those were the facts, then I think that
is inappropriate and improper. You could posit circumstances
under which that would violate the criminal law.
Ms. Sanchez. The time of the gentleman has expired.
Mr. Delahunt?
Mr. Delahunt. I will try to be brief. I will go back to
what I was speaking to earlier.
The Chair set a standard of likelihood. I would suggest
that is too high. But in terms of obviating the ability for the
White House to claim privilege, the appointment of a special
prosecutor based on a quantum of evidence that would trigger
the need for a special prosecutor would accomplish that. The
question is, what is that quantum of evidence?
If, for example, there was a decision made in the White
House to stonewall, to resist explanation for the rationale for
the dismissals, and a variety of explanations were explored,
which had the consequence of misleading Congress in testimony,
then I would suggest that, again, based on an analysis, there
could be a sufficient quantum of evidence to trigger a request
by this Committee in a bipartisan way to seek a special
prosecutor.
If I am correct in my analysis of executive privilege and
the precedents, that would end the issue surrounding executive
privilege.
Comments? Mr. Francisco?
Mr. Francisco. Sure. I think I said it would be appropriate
for you to request a special prosecutor, but I tend to agree
with Mr. Podesta that I don't think it would be appropriate for
the Department of Justice to appoint one. I think the best way
for that case to be handled----
Mr. Delahunt. Why?
Mr. Francisco. Well, I think for many of the same reasons
you all decided not to reauthorize the independent counsel
statute.
Mr. Delahunt. We decided not to reauthorize the independent
counsel statute, but left available, given potential conflicts,
the ability to appoint, by the Attorney General, a special
prosecutor.
Mr. Francisco. That is absolutely true. My own personal
belief is that when you hand these issues off to the career
prosecutors in the public integrity sections in the U.S.
attorneys' offices in the Department of Justice, those
attorneys are generally better able to assess whether a case
should be pursued.
Mr. Delahunt. Well, I would be happy to have Mr.
Fitzpatrick come back and assume that responsibility.
Mr. Francisco. Sure. My concern----
Mr. Delahunt. It is not a question of ``who.'' It is a
question of if there is a trigger, whether it is a special
prosecutor or whether it is assigned to an individual who is
given independence within the Department of Justice, to
investigate. That does obviate the invocation of the privilege.
Mr. Francisco. Well, it doesn't obviate the invocation of
the privilege. What the courts have said is that in the context
of a criminal investigation, if there is a sufficient showing
of need, it can obviate the privilege. We would be into the
balancing world that Ms. Nolan was discussing and that the
Supreme Court employed in the Nixon case.
Mr. Delahunt. Thank you.
Ms. Nolan?
Mr. Podesta?
Ms. Nolan. Mr. Delahunt, I would, like both of the people
on either side of me, I am not a big fan of the special
counsel, independent counsel, special prosecutor, whatever you
want to call it. But I can't think of a situation that cries
out it more than this one. There is no possibility that the
Attorney General or the deputy Attorney General could be
expected to oversee an investigation and prosecution of this.
Mr. Delahunt. Absolutely.
Thank you. With that, I am going to yield back my time.
But before I do, I am going to request the Chair consult
with the Ranking Member and the Chair of the full Committee and
the Ranking Member of the full Committee to explore the
possibility of a request from the Judiciary Committee to the
Attorney General for the appointment of a special prosecutor.
Ms. Sanchez. The Chair will take that suggestion under
advisement.
Mr. Cannon. If the gentleman would yield, I think that is a
very appropriate thing to do. I think that what we have heard
from the panel is that we need to find something substantial
before we take that leap.
If the gentleman would continue to yield, I would just like
to submit for the record the case of Judicial Watch v. Justice
Department, wherein the Appellate Circuit for the District of
Columbia has said, ``However, the issue of whether a President
must personally invoke the privilege remains an open
question.'' So I am not sure that is definitive and will submit
that for the record.
[The information referred to follows:]
Ms. Sanchez. Okay. The time of the gentleman has expired.
I want to once again thank all of the witnesses for your
testimony today.
Without objections, Members will have 5 legislative days to
submit any additional written questions, which we will forward
to the witnesses, and ask that you answer as promptly as you
can, so that they can be made part of the record.
Without objection, the record will remain open for 5
legislative days for the submission of any additional
materials.
Again, thank you for your time and your patience. You have
been very generous.
The hearing of the Subcommittee on Commercial and
Administrative Law is adjourned.
[Whereupon, at 3:46 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Response to Post-Hearing Questions from John D. Podesta, former White
House Chief of Staff to President Clinton, President and CEO, Center
for American Progress
Question from Chairwoman Sanchez
In a letter dated April 12, 2007, Chairman Conyers and I requested
that the Republican National Committee (RNC) produce all communications
by current or former government employees stored on RNC servers related
to the Judiciary Committee's investigation concerning the recent
firings of eight United States Attorneys and related matters. In
response, the White House indicated that it will review these
communications for claims of executive privilege before they are
disclosed to the Judiciary Committee. Is an executive privilege claim
by the White House appropriate? Please explain.
Response of Mr. Podesta
It is unlikely that a claim of privilege would be sustained in this
instance even if the presidential communications in question had been
conducted through official channels. This is because the presidential
communications privilege is not unqualified, and the presumption of
privilege can be rebutted by a strong showing that the subpoenaed
evidence is critical to the responsible fulfillment of the Committee's
functions. See Senate Select Committee on Presidential Campaign
Activities v. Nixon, 498 F.2d 725 (D.C.Cir. 1974). This is a burden
which I believe the Committee would meet.
The fact that the communications in question were transmitted via
unofficial, non-White House email accounts does not necessarily
extinguish a claim of privilege, but under such circumstances, the
presumption, at a minimum, should be reversed. The emails still might
be privileged if they were ``authored or solicited and received by
those members of an immediate White House adviser's staff who have
broad and significant responsibility for investigating and formulating
the advice to be given the President on the particular matter to which
the communications relate.'' In re Sealed Case (Espy), 121 F.3d 729,
752 (D.C. Cir. 1997). But given the use of RNC email accounts, the
burden is on the White House to show that the communications should be
treated as presidential communications.
I would therefore urge the Committee to insist that the White
House: (a) turn over all records that do not meet the Espy test; and
(b) produce a privilege log with respect to any records with respect to
which it wishes to assert a claim of privilege, identifying the date,
author, and recipient of each document withheld as well as a general
statement of the nature of each document and the basis for the
privilege on which the document was withheld. See Espy at 735. Only
then will the Committee be in a position to assess the validity of any
claims of privilege with respect to these documents.
It is fair to conclude that the authors of the subpoenaed
communications transmitted them outside of official channels for one of
two reasons: either they did not believe they were presidential
communications, or they were seeking to evade the requirements of the
Presidential Records Act. In either case, their behavior was
inconsistent with a claim of privilege.
Given the use of RNC email accounts, the burden necessarily belongs
with the White House to show that the communications should be treated
as presidential communications.
Response to Post Hearing Questions from Noel J. Francisco, former
Associate Counsel to President George W. Bush, Partner, Jones Day
Question from Chairwoman Sanchez
In a letter dated April 12, 2007, Chairman Conyers and I requested
that the Republican National Committee (RNC) produce all communications
by current or former government employees stored on RNC servers related
to the Judiciary Committee's investigation concerning the recent
firings of eight United States Attorneys and related matters. In
response, the White House indicated that it will review these
communications for claims of executive privilege before they are
disclosed to the Judiciary Committee. Is an executive privilege claim
by the White House appropriate? Please explain.
Answer
The reported case law in this area is somewhat murky. In my view,
however, executive privilege is broad enough to cover communications to
White House officials, including those received by such officials on
non-White House e-mail accounts. For example, if a White House official
were working from home and received work-related messages on his or her
home e-mail account, then I believe such e-mail messages would fall
within the scope of Executive Privilege. The same principle would, in
my view, apply to messages received on other e-mail accounts.
Therefore, depending upon the nature of the communications, I believe
that the invocation of Executive Privilege by the White House would be
appropriate.
Response to Post-Hearing Questions from Frederick A.O. Schwarz, Jr.,
Senior Counsel, Brennan Center for Justice, NYU School of Law
Letter from Fred F. Fielding, Counsel to the President, to the Chairman
Leahy, Chairman Conyers, Ranking Member Specter, Ranking Member Smith,
and Congresswoman Sanchez
Congressional Research Service Memorandum on Oversight and Executive
Privilege Issues Pertaining to the March 29, 2007 Hearing on ``Ensuring
Executive Branch Accountability''
Prepared Statement of Bruce Fein, on behalf of
the American Freedom Agenda