Chairmen Leahy and Conyers Write to Fielding


Today, House and Senate Judiciary Chairmen John Conyers and Patrick Leahy sent a letter to White House Counsel Fred Fielding, responding to the President’s executive privilege assertion over documents relating to the US Attorney investigation. The two reiterated their concern that the president’s assertion was unprecedented and over-reaching. They also demanded the White House “immediately provide us with the specific bases for your claims regarding each document withheld via a privilege log…and a copy of any explicit determination by the President with respect to the assertion of privilege.”

See Chairman Conyers’ statement yesterday >>

See the initial announcement of the subpoeanas >>

The full text of the letter:

June 29, 2007

Fred Fielding, Esq.
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. Fielding:

The return date and time for the White House Chief of Staff, Joshua Bolten, to appear before our Committees on behalf of the White House and bring with him the documents compelled by the subpoenas we issued on June 13 was yesterday at 10 a.m. Mr. Bolten did not do so. Instead, you wrote us that, despite conceding that you have responsive documents in your possession, you refuse to produce even a single one based on a blanket executive privilege claim. We had hoped our Committees' subpoenas would be met with compliance and not a Nixonian stonewalling that reveals the White House's disdain for our system of checks and balances.

We urge the President to reconsider this step and withdraw his privilege claim so the American people can learn the truth about these firings. If he is unwilling to withdraw these claims, we call on you to provide more specific information to facilitate ruling on those claims and our consideration of appropriate action to enforce our subpoenas.

On June 13, we issued subpoenas compelling the White House to produce documents related to our Committees' investigations into the mass firings and replacements of U.S. Attorneys and politicization at the Department of Justice. We did so reluctantly after seeking voluntary cooperation from the White House for three months. Even though the evidence gathered by our Committees shows that White House officials were heavily involved in these firings and in the Justice Department's response to congressional inquiries about them, the White House has not produced a single document or allowed even one White House official involved in these matters to be interviewed.

Our Committees rejected your “take it or leave it” offer of off-the-record, backroom interviews and severe limits on the scope of our requests as unacceptable, more than three months ago. Since that time, despite our many attempts to narrow the dispute and begin to obtain the information we need, you have not made any effort to work with us on a voluntary basis. Even now, in response to subpoenas authorized by our Committees, you have again merely restated your initial, unacceptable offer. Your proposal is not commensurate with our exercise of the broad investigatory power of Congress.

Our power to investigate has been described as essential to the legislative function by the Supreme Court and “as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Eastland v. United States Serviceman's Fund, 421 U.S. 491, 504, n. 15 (1975). Indeed, the Court has specifically recognized that Congress' “broad” investigatory authority “encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes,” and includes the power to “inquire into and publicize corruption, maladministration, or inefficiencies” in the Executive Branch. Watkins v. United States, 354 U.S. 178, 182, 200 n.33 (1957). Moreover, as we have said many times, your proposal would constrain not only our investigation, but also the ability of the American people to learn the truth about these firings.

In fact, the letter you enclosed from Acting Attorney General Clement makes clear that internal White House documents, which you have refused even to discuss making available, contain information directly responsive to our subpoenas. According to Mr. Clement, those documents specifically discuss “the possible dismissal and replacement of U.S. Attorneys,” the “wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.” The subject matter of these documents heightens our concern about the involvement of White House officials in these firings and in the inaccurate testimony given to our Committees about them, including possible obstruction of justice and other violations of federal law. It is precisely for these reasons that we have sought for many months to obtain information from the White House.

Your action today in stonewalling the Committees' investigations is also inconsistent with the practices of every Administration since World War II in responding to congressional oversight. In that time, presidential advisers have testified before congressional committees 74 times voluntarily or compelled by subpoenas. During the Clinton Administration, White House and Administration advisors were routinely subpoenaed for documents or to appear before Congress. For example, in 1996 alone, the House Government Reform Committee issued at least 27 subpoenas to White House advisors. The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented and damaging to the tradition of open government by and for the people that has been a hallmark of the Republic.

Moreover, your blanket assertion of executive privilege belies any good faith attempt to determine where privilege truly does and does not apply. A serious assertion of privilege would include an effort to demonstrate to the Committees which documents, and which parts of those documents, are covered by any privilege that may apply.

Indeed, the subpoenas themselves specifically stated that for each document withheld, you should provide a description of the nature, source, subject matter, and date of the document; the name and address of each recipient of an original or copy of the document and the date received; the name and address of each additional person to whom any of the contents of the document were disclosed along with the date and manner of disclosure; and the specific legal basis for the assertion of privilege. Such privilege logs have been provided by the White House in previous Administrations, and this Justice Department has provided similar logs in this very matter, which have been used to help resolve disputes about the production of documents. Yet, you have failed to provide any such information.

In addition, at least since the Reagan Administration in 1982, there has been a specific determination and signed statement by the President when executive privilege has been asserted. In accord with this procedure, President Bush himself has issued such assertions during his Administration. See, e.g., Memorandum for the Attorney General re Congressional Subpoena for Executive Branch Documents (December 12, 2001). See also “Procedures Governing Responses to Congressional Requests for Information,” issued on November 4, 1982, and 6 Op. OLC 31 (1982). Yet you have failed to include any such Presidential assertion or even state whether you have now decided to disregard this established procedure.

Please provide the documents compelled by the subpoenas without further delay. If you continue to decline to do so, you should immediately provide us with the specific factual and legal bases for your claims regarding each document withheld via a privilege log as described above and a copy of any explicit determination by the President with respect to the assertion of privilege. You have until July 9, 2007, at 10 a.m. to bring this and any other information you wish to submit to our attention before we move to proceedings to rule on your claims and consider whether the White House is in contempt of Congress.

We were disappointed that we had to turn to these subpoenas in order to obtain information needed by the Committees to learn the truth about these firings and the erosion of independence at the Justice Department. We are even more disappointed now with yet further stonewalling.

Whether or not we have the benefit of the information we have directed you to provide by July 9, we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law.

Sincerely,

PATRICK LEAHY
Chairman
Senate Judiciary Committee

JOHN CONYERS, JR.
Chairman
House Judiciary Committee

cc: The Honorable Arlen Specter

The Honorable Lamar S. Smith

The Committees also released the following fact sheet on Executive Privilege:

The White House's Broad Claims of Executive Privilege Are Not Supported by Law

Background: President Bush has asserted executive privilege in response to two document subpoenas from the Senate and House Judiciary Committees. The subpoenas requested categories of documents highly relevant to the unprecedented and improper firing of nine United States Attorneys and the politicization of the Department of Justice. The executive privilege is not a broad and sweeping authority the President can hide behind because he does not want to cooperate with congressional oversight — it should not prevent Congress from examining White House documents vitally important to its investigation. While courts have recognized a privilege based in the Constitution, that privilege is not absolute and must be balanced with other constitutional interests, including Congress's oversight powers.

Courts And Legal Experts Agree Executive Privilege Is Limited:

· The Supreme Court held that the executive privilege is not absolute in United States v. Nixon, 418 U.S. 683, 706 (1974), writing that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege … .” The DC Circuit elaborated that “the privilege is qualified, not absolute, and can be overcome by an adequate showing of need.” In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

· The District of Columbia Circuit found that even in the area of national security, there was no absolute executive privilege against congressional demands for information: “The executive would have it that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security, … it confers upon Congress other powers equally inseparable from the national security… .” United States v. AT&T, 567 F.2d121, 128 (D.C. Cir. 1977). [The documents requested by the House and Senate Committees do not implicate any national security concerns.]

· The Congressional Research Service emphasizes the limited nature of the executive privilege. “Executive privilege is not an absolute. It is a qualified privilege and is balanced against the constitutional needs and obligations of other branches.” Congressional Research Service, October 21, 2005.

The Documents Requested By Committees Do Not Fit Into Narrow Executive Privilege:

· The privilege covers communications related to presidential decision-making, which is not at issue here. The DC Circuit has found that the presidential communications privilege applies to communications “intimately connected to his presidential decision-making.” In re Sealed Case, 121 F.3d at 753. However, numerous witnesses before both House and Senate Committees have testified that the President did not decide which U.S. Attorneys should be fired.

· The privilege, even if it does apply, is overcome by real public need — as exists here. Executive privilege is overcome where the subpoenaed materials likely contain important evidence and where that evidence is not available elsewhere. In re Sealed Case, 121 F.3d at 755. Again and again, the evidence the Committee has obtained in this investigation shows significant involvement by Sara Taylor, Harriet Miers, and others in the White House, but the White House has shut down all avenues of obtaining information about that extremely important involvement.

The broader deliberative process privilege does not apply. That privilege does not apply when there is reason to believe government misconduct occurred, as has been clearly established in this matter, and does not apply to full documents — only to specific and relevant passages. Several of the high-ranking officials at the Department of Justice have resigned since this investigation began. In re Sealed Case, 121 F.3d at 745.

The White House's Claims Of Privilege Are Sweeping And Overly Broad:

· The non-partisan Congressional Research Service has been critical of this White House's sweeping characterizations of executive privilege. “The current Bush Administration … has articulated a legal view of the breadth and reach of presidential constitutional prerogatives that, if applied to information and documents often sought by congressional committees, would stymie such inquiries.” CRS further notes that the Department of Justice's “assertions of these broad notions of presidential prerogatives are unaccompanied by any authoritative judicial citations.” CRS Congressional Oversight Manual, January 3, 2007, at 45.

· The White House has not sought in good faith to determine where privilege truly does and does not apply. The White House Counsel asserted privilege and declared that “therefore the White House will not be making any production in response to these subpoenas for documents.” June 28, 2007 Letter from Fred Fielding to Chairmen Leahy and Conyers. A serious assertion of privilege would include a serious effort to determine which documents, and which parts of those documents, are covered by any privilege that may apply; White House officials have provided no such comprehensive review.

The White House Has Not Sought Accommodation:

· Most disputes between Congress and the Executive about access to documents and information are resolved through compromise. CRS Congressional Oversight Manual at 39.

· The White House in this case has made one unacceptable “take it or leave it” offer of extremely limited access to witnesses, off-the-record interviews, without transcripts, and a small number of documents. The White House has refused to negotiate further. The Senate and House Judiciary Committees have sought the kind of compromise solutions which generally accompany this type of investigation, but have been consistently rebuffed by the White House. Even the Department of Justice has made attempts to respond to congressional inquiries.

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