In light of the House Judiciary Committee’s important hearing today on executive privilege and Congressional oversight, we have excerpted portions of When Congress Comes Calling, The Constitution Project at the Project On Government Oversight’s study on legislative inquiry. The author of When Congress Comes Calling, Morton Rosenberg, served for over 35 years at the Congressional Research Service.
As these sections explain, while executive privilege has an important place in the separation of powers, history and case law show that it is far from absolute, and that Congress can, and has in the past, overcome many claims of privilege.
The following excerpts outline the legal and practical balance between Congressional access and executive prerogatives, discussing the presidential communications, attorney-client, and deliberative process privileges. They also examine the merits, or lack thereof, of other executive branch objections to Congressional inquiries, particularly in the context of oversight of the Department of Justice.
The Breadth of Congress’s Authority to Access Information in Our Scheme of Separated Powers
Congress’s broad investigatory powers are constrained both by the structural limitations imposed by our constitutional system of separated and balanced powers and by the individual rights guaranteed by the Bill of Rights. Thus, the president, subordinate officials, and individuals called as witnesses can assert various privileges, which enable them to resist or limit the scope of congressional inquiries. These privileges, however, are also limited.
The Supreme Court has recognized the president’s constitutionally based privilege to protect the confidentiality of documents or other information that reflects presidential decision-making and deliberations. This presidential executive privilege, however, is qualified. Congress and other appropriate investigative entities may overcome the privilege by a sufficient showing of need and the inability to obtain the information elsewhere. Moreover, neither the Constitution nor the courts have provided a special exemption protecting the confidentiality of national security or foreign affairs
information. But self-imposed congressional constraints on information access in these sensitive areas have raised serious institutional and practical concerns as to the current effectiveness of oversight of executive actions in these areas.
With regard to individual rights, the Supreme Court has recognized that individuals subject to congressional inquiries are protected by the First, Fourth, and Fifth Amendments, though in many important respects those rights may be qualified by Congress’s constitutionally rooted investigatory authority.
Executive privilege is a doctrine that enables the president to withhold certain information from disclosure to the public or even Congress. The doctrine is based upon constitutional principles of separation of powers, and it is designed to enable the president to receive candid advice from advisers, as well as to safeguard information the disclosure of which might threaten national security.
1. The Presidential Communication Privilege: A Summary of the State of the Law
The presidential communications privilege is a subcategory of executive privilege that protects the core communications of advisers closest to the president. There is a great deal of confusion about the actual scope of the presidential communications privilege. Various opinions and pronouncements from the Justice Department’s Office of Legal Counsel
and the White House Counsel’s Office have described a very broad scope and reach of the presidential privilege. However, recent court opinions have reflected a much narrower understanding of the privilege, and no judicial ruling on the merits has upheld a claim of presidential privilege since the Supreme Court’s 1974 ruling in United States v. Nixon, which recognized the qualified privilege but denied its efficacy in that case. In practice, many claims of executive privilege have been withdrawn in the face of adamant congressional resistance.
The current state of the law of presidential privilege, described more fully below, may be briefly summarized as follows:
- The constitutionally based presidential communications privilege is presumptively valid when asserted.
- There is no requirement that the president must have seen or even been aware of the documents over which he or she claims privilege.
- The communication(s) in question must relate to a “quintessential and non-delegable presidential power” that requires direct presidential decision-making. The privilege is limited to the core constitutional powers of the president, such as the power to appoint and remove executive officials, the commander-in-chief power, the sole authority to receive ambassadors and other public ministers, and the pardon power. The privilege does not cover matters handled within the broader executive branch beyond the Executive Office of the President. Thus, it does not cover decision-making regarding the implementation of laws that delegate policymaking authority to the heads of departments and agencies, or which allow presidential delegations of authority.
- The subject communication must be authored or “solicited and received” by the president or a close White House adviser. The adviser must be in “operational proximity” to the president, which effectively limits coverage of the privilege to the administrative boundaries of the Executive Office of the President and the White House.
- The privilege remains a qualified privilege that may be overcome by a showing that the information sought “likely contains important evidence” and is unavailable elsewhere to an appropriate investigatory authority. The president may not prevent such a showing of need by granting absolute immunity to witnesses who would otherwise provide the information necessary to show that “important” evidence exists.
2. Evolution of the Law of Executive Privilege and Helpful Guidance from the Cases
Presidential claims of a right to preserve the confidentiality of information and documents in the face of legislative demands have figured prominently, though intermittently, in executive-congressional relations since at least 1792. In that year, President Washington discussed with his cabinet how to respond to a congressional inquiry into the military debacle that befell General St. Clair’s expedition.1 Few such inter-branch disputes over access to information have reached the courts. The vast majority of such disputes are usually resolved through political negotiation.2 In fact, it was not until the Watergate-related lawsuits in the 1970s seeking access to President Nixon’s tapes that the existence of a presidential confidentiality privilege was recognized by a court.3 It then became judicially established as necessary to protect the president’s status in our constitutional scheme of separated powers.
Nixon and Post-Watergate Rulings
The Nixon and post-Watergate cases4 established the broad contours of the presidential communications privilege. Under those precedents, the president can invoke the privilege, which is constitutionally rooted, when asked to produce documents or other materials or information that reflect presidential decision-making and deliberations that the president believes should remain confidential. If the president does so, the materials become presumptively protected from disclosure. The privilege, however, is qualified, not absolute, and can be overcome by an adequate showing of need. Finally, while reviewing courts have expressed reluctance to balance executive privilege claims against a congressional demand for information, they have acknowledged they will do so if the political branches have tried in good faith but failed to reach an accommodation.
Nixon and related post-Watergate rulings left important gaps in the law of presidential privilege. The significant issues left open included:
- Does the president need to have actually seen or been familiar with the disputed matter?
- Does the presidential privilege encompass documents and information developed by, or in the possession of, officers and employees in the departments and agencies of the executive branch?
- Does the privilege encompass all communications with respect to which the president may be interested, or is it confined to actual presidential decision-making? And, if the latter, is it limited to any particular type of presidential decision-making?
- Precisely what demonstration of need must be shown to justify release of materials that qualify for the privilege?
The Court of Appeals for the D.C. Circuit has addressed these issues in In re Sealed Case (Espy),5Judicial Watch v. Department of Justice,6 and Loving v. Department of Defense.7 A district court decision in House Committee on the Judiciary v. Miers8 provided further guidance on the scope of the privilege. Taken together, these decisions narrowed and clarified the limits of the privilege and drastically altered the legal playing field in resolving such disputes.
The Espy case arose out of an Office of Independent Counsel (OIC) investigation of former Agriculture Secretary Mike Espy. When allegations of improprieties by Espy surfaced in March 1994, President Clinton ordered the White House Counsel’s office to investigate. That office prepared a report for the president, which was publicly released in October 1994. The president never saw any of the documents underlying or supporting the report.
Separately, a special panel of the D.C. Circuit, at the request of the attorney general, appointed an independent counsel, and a grand jury issued a subpoena for all documents that were accumulated or used in preparation of the White House counsel’s report. In response, the president withheld 84 documents, claiming both the executive and deliberative process privileges for all documents. In ruling on the independent counsel’s motion to compel, the district court upheld the privilege claims and quashed the subpoena. In its written opinion the court did not discuss the documents in any detail and provided no analysis of the grand jury’s need for the documents. The appeals court panel unanimously reversed and ordered that the documents be produced.
The Presidential Communications Privilege Is Constitutionally Based, but Qualified, and May Be Overcome by a Substantial Showing of Need and Unavailability
At the outset, the D.C. Circuit’s opinion carefully distinguished between the “presidential communications privilege” and the “deliberative process privilege.” Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision-making. But the deliberative process privilege (discussed in detail in Chapter 6) applies to executive branch officials generally and is not constitutionally based. It, therefore, can be overcome with a lesser showing of need and “disappears altogether when there is any reason to believe government misconduct [has] occurred.”9
On the other hand, the court explained, the presidential communications privilege “is rooted in constitutional separation of powers principles and the President’s unique constitutional role” and applies only to “direct decision-making by the President.”10 The privilege may be overcome only by a substantial showing that “the subpoenaed materials likely contain important evidence” and that “the evidence is not available with due diligence elsewhere.”11 The presidential communications privilege applies to all documents in their entirety12 and covers final and post-decisional materials as well as pre-deliberative ones.13
The President Need Not Have Seen or Known of the Documents in Question, but They Must Have Been Received by a Close Adviser; Agency Head Review is Not Sufficient.
The presidential communications privilege must cover communications made or received by presidential advisers in the course of preparing advice for the president, even if those communications are not made directly to the president. The court rested its conclusion on “the President’s dependence on presidential advisers” and “the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources.”14 Thus, the privilege applies “both to communications which these advisers solicited and received from others as well as those they authored themselves.
The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser’s staff.”15
However, the privilege does not extend beyond close presidential advisers to reach communications with heads of agencies or their staffs. The court emphasized:
Not every person who plays a role in the development of presidential advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the privilege should not extend to staff outside the White House in executive branch agencies …. The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decision-making by the President.16
The Privilege Applies Only to the “Quintessential and Non-Delegable” Powers of the President
The presidential communications privilege is limited to “direct decision-making by the President” and decisions regarding “quintessential and non-delegable Presidential power.”17 The Espy case itself concerned the president’s Article II appointment and removal power, which was the question upon which he sought advice. The court’s opinion distinguishes this specific appointment and removal power from general “presidential powers and responsibilities” that “can be exercised or performed without the President’s direct involvement, pursuant to a presidential delegation of power or statutory framework.”18
Based on the presidential powers actually enumerated in Article II of the Constitution, the category of “quintessential and non-delegable” powers would also include such powers as the commander-in-chief power, the sole authority to receive ambassadors and other public ministers, the power to negotiate treaties, and the power to grant pardons and reprieves. On the other hand, the privilege would not cover decision-making based upon powers granted to the president by a statute, or decisions required by law to be made by agency heads.
Thus, communications regarding such matters as rulemaking, environmental policy, consumer protection, workplace safety, securities regulation, and labor relations would not be covered. Of course, the president’s role in supervising and coordinating decision-making in the executive branch remains unimpeded. But the president’s communications in furtherance of such activities would not be protected from disclosure by this constitutional privilege.
These limits in the scope of the presidential communications privilege were further clarified in the D.C. Circuit’s 2004 decision in Judicial Watch, Inc. v. Department of Justice.19Judicial Watch involved requests for documents concerning pardon applications and grants reviewed by the Justice Department for President Clinton.20 The president withheld approximately 4,300 documents on the grounds that they were protected by the presidential communications and deliberative process privileges. The district court held that because the materials sought had been produced for the sole purpose of advising the president on a “quintessential and non-delegable Presidential power”—namely, the exercise of the president’s constitutional pardon authority—they were protected from disclosure.21 However, the appeals court reversed on the grounds that the review did not involve the president or close White House advisers.
Agency Documents Not Solicited or Received by Close Presidential Advisers Are Not Covered by the President’s Privilege
In rejecting the claim of presidential communications privilege in Judicial Watch, the D.C. Circuit held that “internal agency documents that are not ‘solicited and received’ by the President or his Office are instead protected against disclosure, if at all, by the deliberative process privilege.”22 The court emphasized that the “solicited and received” limitation from the Espy case “is necessitated by the principles underlying the presidential communications privilege, and a recognition of the dangers of expanding it too far.”23 In rejecting the government’s argument that the privilege should be applicable to all departmental and agency communications related to the pardon recommendations for the president, the court held that:
Communications never received by the President or his Office are unlikely to ‘be revelatory of his deliberations’ … nor is there reason to fear that the Deputy Attorney General’s candor or the quality of the Deputy’s pardon recommendations would be sacrificed if the presidential communications privilege did not apply to internal agency documents.24
The Judicial Watch decision makes it clear that cabinet department heads will not be treated as part of the president’s immediate personal staff or as some unit of the Executive Office of the President.25 This requirement of proximity to the president confines the potentially broad scope of the privilege. Thus, for the privilege to apply, not only must the presidential decision at issue involve a non-delegable, core presidential function, but the operating officials must also be sufficiently close to the president and senior White House advisers.26
In Loving v. Department of Defense, the D.C. Circuit affirmed the distinction between the deliberative process privilege and the presidential communications privilege that had been carefully delineated in Espy and Judicial Watch.27 Loving had been court-martialed, convicted of murder, and sentenced to death. By law, the president must approve all such death sentences. Loving filed a FOIA request seeking disclosure of documents including a Defense Department memorandum containing recommendations to the president about his case and sentence. The Loving court held that the presidential communications privilege applies only where documents or communications “directly involve the President” or were “solicited and received” by White House advisers.28 After noting the two distinct versions of the privilege,29 the appeals court determined that the documents in question fell “squarely within the presidential communications privilege because they ‘directly involve’ the President.”30 The court also clarified that communications that “directly involve” the president need not actually be “solicited and received” by him or her. The mere fact that the documents were viewed by the president was sufficient to bring them within the ambit of the privilege.31
The 2008 district court ruling in House Committee on the Judiciary v. Miers32 sheds further light on the limits of the presidential communications privilege. The case involved subpoenas issued by the House Judiciary Committee to compel testimony by close presidential advisers in an investigation of the removal and replacement of nine U.S. attorneys. The Bush administration had invoked executive privilege and ordered the advisers not to appear, testify, or provide documents in response to the subpoenas. Although the case was settled in March 2009, after the change in administration and before the appeal was heard, the settlement provided that the district court decision rejecting the executive’s broad privilege claims would stand as precedent.
As discussed in Chapter 3,33 the district court rejected the executive’s attempts to dismiss the case, finding that the House had the right to bring the lawsuit (the committee had both “standing” and an “implied cause of action”) based upon Article I of the Constitution granting Congress the “power of inquiry.”The court found that this power carries with it the “process to enforce it,” and that “‘issuance of a subpoena pursuant to an authorized investigation is … an indispensable ingredient of lawmaking.’”34
A Presidential Claim of Privilege Cannot Provide Absolute Immunity to Congressional Subpoenas
The executive argued to the district court that present and past senior advisers to the president are absolutely immune from compelled congressional process. The district court unequivocally rejected this position:
The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context …. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides.35
The court pointed out that the effect of a claim of absolute privilege for close advisers would be to enable the president to judge the limits of his or her own qualified privilege: “Permitting the Executive to determine the limits of its own privilege would impermissibly transform the presumptive privilege into an absolute one.”36
The Essential Elements of the Presidential Communications Privilege
Based upon the court decisions outlined above, the following elements are necessary to support a claim of presidential communications privilege:
The protected communication must relate to a “quintessential and non-delegable presidential power.” Espy and Judicial Watch involved the appointment and removal and the pardon powers, respectively. Other core presidential powers include the commander-in-chief power, the sole authority to receive ambassadors and other public ministers, and the power to negotiate treaties. This category does not include decision-making where laws delegate policymaking and administrative implementation authority to the heads of agencies.
The communication must be authored or “solicited and received” by a close White House adviser or the president. An adviser must be in “operational proximity” to the president. This effectively means that the scope of the presidential communications privilege extends only to cover the Executive Office of the President and the White House.
The presidential communications privilege remains a qualified privilege that may be overcome. The privilege can be overcome by showing that the information sought “likely contains important evidence,” is sought by an appropriate investigating authority, and is unavailable elsewhere. The Espy court found an adequate showing of need by the independent counsel, and Miers held that privilege does not provide absolute immunity to enable the president to block witnesses from showing that “important” evidence exists.
Presidents are Subject to Compulsory Process: Presidential Appearances Before Judicial Tribunals and Congressional Committees
The president and his close advisers are subject to subpoenas and court enforcement of subpoenas. This was demonstrated most recently in the Miers case involving subpoenas by the House Judiciary Committee for close presidential advisers to testify. The court in Miers noted, first, that enforcement of a subpoena is “a routine and quintessential judicial task”; second, that the Supreme Court has held that the judiciary is the final arbiter of executive privilege; and third, that court enforcement of compulsory process is deeply rooted in the common law tradition going back to Chief Justice Marshall’s 1807 opinion in United States v. Burr.37 The Miers court commented that “federal precedent dating back as far as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas. The Supreme Court emphatically reaffirmed that proposition in United States v. Nixon in 1974.”38
Professors Ronald D. Rotunda and John L. Nowak have compiled a list of historical investigations in which sitting or former presidents have been subpoenaed and involuntarily appeared or produced evidence in judicial forums or before congressional committees.39 These included Presidents Thomas Jefferson (1807), James Monroe (1818), John Quincy Adams and John Tyler (1846), Richard M. Nixon (1975, 1976, 1982), Gerald R. Ford (1975), Ronald Reagan (1990), and William J. Clinton (1996, 1998). President Harry S. Truman was subpoenaed by the House Un-American Activities Committee in 1953 after he had left office. Truman refused to comply and went on national television and radio to rebut the charges made by the committee. The committee never sought to enforce the subpoena.40
Seven sitting or former presidents have made voluntary appearances in judicial forums and before congressional committees: Presidents Abraham Lincoln (1862), Ulysses S. Grant (1875), Theodore Roosevelt (1911, 1912), Richard M. Nixon (1980), Gerald R. Ford (1975, 1988), Jimmy E. Carter (1977, 1979, 1981), and William J. Clinton (1995).41 In December 2008, then President-elect Barack Obama voluntarily appeared for an interview with a U.S. attorney conducting a grand jury investigation of the Illinois governor’s alleged attempt to “sell” the appointment to fill Obama’s vacated Senate seat.42 A Congressional Research Service report indicates that between 1973 and 2007, at least 70 senior advisers to the president who were subject to subpoenas have testified before congressional committees.43
Common Law Privileges Available in Court Do Not Shield Witnesses from Complying with Committee Information Demands
From Chapter 6 of When Congress Comes Calling, pages 65-73.
In court proceedings, there are a variety of “testimonial privileges” recognized by our legal system that enable witnesses to refuse to testify on certain subjects or about conversations with particular people. The most common of these is the attorney-client privilege, which protects conversations between lawyer and client as secret, and thus allows people to seek legal advice in confidence. In congressional proceedings, a committee may determine, on a case-by-case basis, whether to accept common law testimonial privileges. It can deny a witness’s request to invoke privilege when the committee concludes it needs the information sought to accomplish its legislative functions.44 In practice, however, congressional committees have followed the courts’ guidance in assessing the validity of a common law privilege claim.
Examples of common law testimonial privileges include the attorney-client, work-product, and deliberative process privileges. The application of each of these doctrines in congressional hearings is discussed below.
The Attorney-Client Privilege and Work-Product Doctrine
Defining the Attorney-Client Privilege and the Work-Product Doctrine
As noted above, the attorney-client privilege enables people to seek confidential legal advice by protecting the secrecy of conversations between attorney and client. To prove that the attorney-client privilege should apply, the person claiming the privilege must establish: (1) a communication, (2) made in confidence, (3) to an attorney, (4) by a client, and (5) for the purpose of seeking or obtaining legal advice.45 The party asserting attorney-client privilege has the burden of conclusively proving each element,46 and courts strongly disfavor blanket assertions of the privilege47 as “unacceptable.”48 In addition, the mere fact that an individual communicates with an attorney does not make the communication privileged.49
Courts have consistently emphasized that one of the essential elements of the attorney-client privilege is that the attorney be acting as an attorney and that the communication be made to secure legal services. The privilege, therefore, does not apply to legal advice given by an attorney acting outside the scope of his or her role as attorney.50 The courts, when determining the underlying purpose of a communication, will take into account the difference between outside counsel retained with limited responsibilities to a corporate client and in-house counsel who have duties to provide both business and legal advice.51 Courts have also invited privilege logs as an acceptable means of establishing a valid claim of privilege, but such logs must be sufficiently detailed and specific in their description to prove each element of the claimed privilege.52
The work-product doctrine is a related concept that protects the confidentiality of certain documents created by an attorney as part of his or her representation of a client. The doctrine was recognized by the Supreme Court in 1947,53 and codified as Rule 26(b)(3) of the Federal Rules of Civil Procedure, and grants limited immunity to an attorney’s work product from requests for disclosure. The rule allows for qualified immunity from civil discovery when the materials are: 1) “documents or tangible things,” 2) “prepared in anticipation of litigation or trial,” and 3) “by or for another party or for that other party’s representative.” To overcome the privilege, the party seeking the materials must show a substantial need and an inability to obtain the substantial equivalent without undue hardship.
On its face, the definition would not apply to Congress, which is not a court or administrative tribunal, or to a congressional investigative hearing, which does not afford witnesses the same discovery rights afforded during litigation in court. No court has held that the work-product doctrine applies to a legislative hearing, and pertinent federal court rulings support the proposition that it does not apply.54
Legal Basis for Denying Attorney-Client and Work-Product Privilege Claims
Other than private persons, entities that often invoke claims of common law privilege include departments and agencies, the White House, and private organizations. However, their assertion of privilege does not necessarily provide a shield from congressional inquiry.
The legal basis for Congress’s right to refuse to recognize assertions of attorney-client privilege comes from its inherent constitutional authority to investigate and the constitutional authority of each chamber to determine the rules of its proceedings.55 Although the Supreme Court has not definitively ruled on the issue, a number of factors support the conclusion that committees possess the power to compel witness testimony. These indicia include: (1) the Supreme Court’s strong recognition of the constitutional underpinnings of the legislative investigatory power to support the critical need for information;56 (2) long-standing congressional (and British parliamentary) practice;57 (3) the rejection by the House and Senate of opportunities to recognize the privilege by adoption of house rules;58 and (4) applicable appellate court rulings rejecting such claims by executive branch officials subject to grand jury investigations.59
The Rationale for Congressional Discretionary Authority to Deny Attorney-Client Claims
The attorney-client privilege is not a constitutionally based privilege. Rather, it is a judge-made exception to the general evidentiary principle of full disclosure in the context of court proceedings.60 The historic congressional discretionary practice is reflective of the widely divergent nature of the judicial and legislative forums. The attorney-client privilege is the product of a judicially developed public policy designed to foster an effective and fair adversary system. Courts view the privilege as a means to foster client confidence and encourage full disclosure to an attorney. Free communication, the argument goes, facilitates justice by promoting proper case preparation.61 Full factual disclosure can also help an attorney more accurately assess the strength of a client’s case, and discourage frivolous litigation when the case is weak.62
It is critically important to remember that the attorney-client privilege is designed for, and properly confined to, the adversary process: the adjudicatory resolution of conflicting claims of individual obligations in a civil or criminal proceeding. The need to protect individual interests is less compelling in an investigatory setting where a legislative committee is not empowered to adjudicate a witness’s liberty or property. Indeed, several courts have recognized that “only infrequently have witnesses…[in congressional hearings] been afforded rights normally associated with an adjudicative proceeding.”63
The suggestion that the legislature’s investigatory authority is subject to non-constitutional, common law rules developed by the judicial branch to govern its proceedings is arguably contrary to the concept of separation of powers. It would, in effect, permit the judiciary to determine congressional procedures, which is difficult to reconcile with the constitutional authority granted to each house of Congress to determine its own rules. This was dramatically underlined in NLRB v. Noel Canning,64 where the Supreme Court rejected the president’s attempt to determine unilaterally when the Senate was in recess. The Court held that “for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.
Moreover, importing the judiciary’s privileges and procedures is likely to have a paralyzing effect on the investigatory process. Indeed, it already has; the district court’s ruling in the Fast and Furious litigation that agencies can validly invoke the common law deliberative process privilege in challenges to committee civil enforcement proceedings has significantly delayed committees access to information.65 Such judicialization is also antithetical to the consensus, interest-oriented goal of policy development in the legislative process.
Finally, concerns that denying the privilege in the congressional setting would undermine it elsewhere appear over-exaggerated. Parliament’s rule has not impaired the practice of law in England, nor has its limited use here inflicted any apparent damage on the practice of the profession. Congressional investigations in the face of claims of executive privilege or the revelation of trade secrets have not diminished the general utility of these privileges nor undermined the reasons they continue to be recognized by the courts. Moreover, the assertion implies that current law is an impregnable barrier to the disclosure of confidential communications when, in fact, the privilege is riddled with qualifications and exceptions, and has been subject as well to the significant current development of the waiver doctrine. Thus, there can be no absolute certainty that communications with an attorney will not be revealed.
There are still unyielding private sector opponents of discretionary committee exercises of refusals to accept claims of attorney-client privilege.66 But most recent critical commentary has focused on how to live with the reality of the assumed congressional authority, utilizing the understanding that committees need information sooner rather than later and that criminal and civil enforcement processes take too much time. Negotiating tactics are the theme of such articles.67 Committees still retain significant leverage. There has been no definitive court ruling on the issue because no objector as yet has been willing to be the subject of a criminal prosecution as a matter of principle.
How Congress Has Traditionally Weighed the Attorney-Client Privilege
In practice, all committees that have denied claims of privilege have considered numerous factors before doing so. In favor of disclosure, committees consider (1) legislative need, (2) public policy, and (3) the ever-present statutory duty to oversee the application, administration, and execution of all laws within Congress’ jurisdiction. They balance these considerations against any possible injury to the witness. Committees also consider whether a court would have recognized the claim in the judicial forum,68 and invite the submission of privilege logs to support the validity and weight of the claims.
In the absence of a definitive court ruling,69 the Legal Ethics Committee of the District of Columbia Bar issued an advisory opinion in February 1999.70 It directly addressed the limits of an attorney’s ethical duty of confidentiality to a client when the attorney is faced with a congressional subpoena for documents that would reveal client confidences.71 The opinion urges attorneys to press every appropriate objection to the subpoena until no further avenues of appeal are available, and even suggests that clients might be advised to retain other counsel to file a separate lawsuit to prevent compliance with the subpoena.72 But it does allow the attorney to relent and comply with the subpoena at the earliest point when he or she is in danger of being held in criminal contempt of Congress.
According to the D.C. Bar’s ethics committee, an attorney acting under the D.C. Code of Professional Conduct73 facing a congressional subpoena that would reveal client confidences or secrets must “seek to quash or limit the subpoena on all available legitimate grounds to protect confidential documents and client secrets.”
If, thereafter, the Congressional subcommittee overrules these objections, orders production of the documents and threatens to hold the lawyer in contempt absent compliance with the subpoena, then, in the absence of a judicial order forbidding the production, the lawyer is permitted, but not required, by the D.C. Rules of Professional Conduct to produce the subpoenaed documents. A directive of a Congressional subcommittee accompanied by a threat of fines and imprisonment pursuant to federal criminal law satisfies the standard of ‘required by law’ as that phrase is used in D.C. Rule of Professional Conduct 1.6(d)(2)(A).
The opinion represents the first and thus far the only bar in the nation to directly and definitively address this question. Its publication aroused a good deal of debate.74 However, there is no evidence that congressional committees have been more aggressive in attempting to overrule privilege claims since the issuance of the opinion. Rather, Congress has been sparing in its attempts to challenge claims of attorney-client privilege.75 Interestingly, none of the writings in opposition to committee exercise of the discretionary authority reference or discuss the D.C. Bar opinion.
Claims of Deliberative Process Privilege and Presidential Communications Privilege
Definition and Purpose of the Deliberative Process Privilege
The deliberative process privilege permits government agencies to withhold documents and testimony relating to policy formulation from the courts. The privilege was designed to enable executive branch officials to seek a full and frank discussion of policy options with staff without risk of being held to account for rejected proposals.
Executive branch officials often argue that congressional demands for information regarding an agency’s policy development process would unduly interfere with, and perhaps “chill,” the frank and open internal communications necessary for policymaking. In addition, they may also argue that the privilege protects against premature disclosure of proposed policies before the agency fully considers or adopts them. Agencies may further argue that the privilege prevents the public from confusing matters merely considered or discussed during the deliberative process with those that constitute the grounds for a policy decision. These arguments, however, do not necessarily pertain to Congress in its oversight and legislative roles.
Application of the Deliberative Process Privilege to Congressional Investigations
Congress’s oversight process would be severely undermined were the courts or Congress to uniformly accept every agency assertion of the deliberative process privilege to block disclosure of internal deliberations. Such a broad application of the privilege would encourage agencies to disclose only materials that support their positions and withhold those with flaws, limitations, unwanted implications, or other embarrassments. Oversight would cease to become an investigative exercise of gathering the whole evidence and would become a “show and tell” performance.
Broad application of the deliberative process privilege to congressional investigations would also induce executive branch officials, including attorneys, to claim that oversight would dissuade them from giving frank opinions, or discourage others from seeking such advice. The Supreme Court dismissed that argument in NLRB v. Sears, Roebuck & Co.76It said:
The probability that the agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports [disclosure].77
Agencies often claim the privilege to forestall inquiries while they develop substantive rules. However, an agency’s rulemaking process is the prime object of legislative scrutiny; agencies may engage in substantive rulemaking only with an express grant of legislative authority. Moreover, Congress has enacted legislation determining the procedures each agency must follow78 and retains ultimate control over each agency’s rulemaking process.79
Finally, the integrity, even the legitimacy, of an agency’s rulemaking would be damaged more by efforts to avoid oversight inquiries than it would be by the agency officials’ public embarrassment over disclosure of positions taken during the policy development process. The legitimacy and acceptability of the administrative process depends on the public’s perception that the legislature has some sort of ultimate control over the agencies.
Congress Treats Deliberative Process Privilege Claims as Discretionary
As with claims of attorney-client privilege and work-product immunity, congressional practice has been to allow committees discretion over acceptance of deliberative process claims. Moreover, a 1997 appellate court decision, discussed below, shows that the deliberative process privilege is easily overcome by an investigatory body’s showing of need for the information. Other court rulings and congressional practices have recognized the overriding necessity of an effective legislative oversight process.
The Deliberative Process Privilege is More Easily Overcome by Congress Than the Presidential Communications Privilege
As discussed in detail in Chapter 5, the presidential communications privilege is a constitutionally based doctrine that protects communications between the president and his or her immediate advisers in the Office of the President from disclosure.80 It also extends to communications made by presidential advisers in the course of preparing advice for the president.81 This doctrine does not cover the entire executive branch, but it applies more directly to relations between the president and his or her closest White House aides.
The 1997 D.C. Circuit’s unanimous ruling in In re Sealed Case (Espy)82distinguishes between the “presidential communications privilege” and the “deliberative process privilege” and describes the severe limits of the latter as a shield against congressional investigative demands. The court of appeals held in Espy that the deliberative process privilege
is a common law privilege that Congress can more easily overcome than the constitutionally rooted presidential communications privilege. Moreover, in congressional investigations, the deliberative process privilege “disappears altogether when there is any reason to believe government misconduct occurred.”83 The court’s understanding thus severely limits the extent to which agencies can rely upon the deliberative process privilege to resist congressional investigative demands. A congressional committee merely needs to show that it has jurisdiction and authority, and that the information sought is necessary to its investigation to overcome this privilege. A plausible showing of fraud, waste, abuse, or maladministration would conclusively overcome an assertion of privilege.
On the other hand, the deliberative process privilege covers a broader array of information. Whereas the presidential communications privilege covers only communications between the president and high-ranking White House advisers, the deliberative process privilege applies to executive branch officials generally. But the deliberative process privilege only protects executive branch officials’ communications that are “pre-decisional” and a “direct part of the deliberative process.”
Congress Has Greater Ability to Obtain Deliberative Information Than Citizens Have Under FOIA
Even before Espy, courts and committees consistently countered agency attempts to establish a privilege that thwarted congressional oversight efforts. Agencies often claimed that internal communications must be “frank” and “open,” and that communications are a part of a “deliberative process.” This is the standard under the Freedom of Information Act (FOIA), which allows an agency to withhold documents from a citizen requester.84 It does not apply to Congress.
Congress has vastly greater powers of investigation than those of citizen FOIA requesters. Moreover, Congress carefully provided that the FOIA exemption section “is not authority to withhold information from Congress.”85 The D.C. Circuit in Murphy v. Department of the Army86explained that FOIA exemptions were no basis for withholding from Congress because “Congress, whether as a body, through committees, or otherwise, must have the widest possible access to executive branch information if it is to perform its manifold responsibilities effectively.”87
The Anomalous Ruling in COGR v. Lynch
The disquieting ruling in the Fast and Furious litigation and its immediate and long-range disruptive consequences for effective investigate oversight demands closer, albeit somewhat repetitive, examination.
The binding law with respect to executive privilege in the D.C. Circuit was established by the court’s rulings in Espy (1997) and Judicial Watch (2004). Those decisions made an unequivocal distinction between the constitutionally-based presidential communications privilege and the common law deliberative process privilege, which the presiding judge in COGR v. Lynch ignored. While both have common general goals—to protect in some degree sensitive internal executive deliberations—and both are qualified privileges, the resemblance for purposes of legal significance and impact ends there. The Espy court’s unanimous opinion emphasized the severe limits that the deliberative process privilege, as a common law privilege, would have as a shield against congressional demands since it would be more easily overcome by a showing of need. The court twice remarked that if there is a plausible showing that government misconduct may have occurred, the privilege “disappears.” At one point it stated: “[W]hen there is reason to believe the documents sought may shed light on government misconduct, ‘the [deliberative process] privilege is routinely denied’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public interest in honest, effective government.’”88 There is no hint of any constitutional concern that would allow an agency to invoke the deliberative process privilege in such circumstances.
And yet, the Lynch court determined that there “is an important constitutional dimension to the deliberative process aspect of the executive privilege.” This finding has serious constitutional and practical consequences for effective investigative oversight.89
Historically, Congress has been recognized as the initial determiner of its own institutional rights and prerogatives, particularly for matters directly or indirectly related to oversight. Since the 1870s—with the express acquiescence of the Justice Department—all subpoena demands by the Justice Department to members or component entities must first be processed and reviewed by House and Senate leadership and counsel. In 2006, the Justice Department decided to circumvent this initial review process by means of a search warrant executed at a member’s office. FBI agents barred the House general counsel and the member’s private counsel from overseeing the search. The D.C. Circuit Court of Appeals declared the search a violation of the Constitution’s Speech or Debate Clause. The court emphasized that a critical purpose of the clause is to prevent intrusions into the legislative process. The executive’s search procedures did just that by “den[ying] the Congressman any opportunity to identify or assert the privilege with respect to legislative materials before their compelled disclosure to executive agents.”90
Previously, in the same vein, the court ruled that courts may not block a congressional subpoena, holding that the Speech or Debate Clause provides “an absolute bar to judicial interference with such compulsory process.”91 As a consequence, a government witness’ sole remedy, until recently, was to refuse to comply, risk being cited for contempt, and then raise privilege claims as a defense in a contempt prosecution.
Most recently the Supreme Court deferred to the exercise of the Senate’s internal rulemaking authority to define when it is in session for recess appointments purposes, thereby nullifying a presidential attempt to unilaterally make that determination.92 And, finally, there has been judicial approval and general recognition of each chamber’s absolute control over the initiation and conduct of investigations and hearings.93
The Lynch court’s departure from both prior law and practice recognizing the legislature’s primacy in establishing first responses to intrusions on its core institutional prerogatives threatens to undermine one of Congress’s primary functions in our scheme of separated powers. The district court’s ruling has been appealed to the D.C. Circuit Court of Appeals. Under the appeals courts’ argument schedule no resolution can be expected until well into 2017.94
Release of Attorney-Client, Work-Product, or Deliberative Process Material to Congress Does Not Waive Applicable Privileges in Other Forums
Private parties and agencies often assert that yielding to committee demands for material arguably covered by the attorney- client, work-product, or deliberative process privileges will waive those privileges in other forums. Applicable case law, however, is to the contrary. When a congressional committee compels the production of a privileged communication through a properly issued subpoena, it does not prevent the assertion of the privilege elsewhere,95 as long as it is shown that the compulsion was in fact resisted.96
Executive Branch Investigations: Lessons from Department of Justice Probes
Congress’s power of inquiry extends equally to all executive departments, agencies, and establishments. Yet Congress’s experience conducting oversight of the Department of Justice (Department or DOJ) has often been the most contentious, and has presented all of the issues that may arise in disputes between Congress and any executive agency. Therefore, Congress’s experience with the Justice Department provides many useful lessons on how to conduct oversight of agencies.
The history of congressional investigations of DOJ covers a broad scope of congressional inquiries, including committee requests for:
- particular agency witnesses;
- proprietary, trade secret, or other sensitive information;
- documentary evidence of how an agency came to a particular decision; and
- the opinion of an agency’s general counsel with respect to the legality of a course of action taken by the agency.
In response, congressional inquiries into Justice Department operations have been frequently met with claims that such inquiries:
- interfere with the presumptive sensitivity of its principal law enforcement mission;
- intrude upon matters of national security; and
- constitute improper political and constitutional interference with deliberative prosecutorial processes that are discretionary in nature.
As a result, the Justice Department has often refused to supply internal documents or testimony sought by jurisdictional committees.
Since many other agencies have followed DOJ’s examples, the resolution of such past investigative confrontations with DOJ provides useful lessons. These lessons, outlined in detail below, should guide future committees in determining whether to undertake similar probes of DOJ or other executive agencies, as well as inform them about the scope and limits of their investigative prerogatives and the practical problems of such undertakings. The outcomes of these inquiries provide formidable practice precedents which will allow committees to effectively engage uncooperative agencies.
Overview of Congressional Investigations of DOJ
The Congressional Research Service review of oversight of the Justice Department over the last 95 years is a particularly instructive tool. This compilation and review provides summaries of 22 selected congressional investigations, from the Palmer Raids and Teapot Dome scandal in the 1920s to controversies over the past 25 years, including the revelations of the Church Committee of domestic intelligence abuse by the FBI, ABSCAM, Iran-Contra, the misuse of informants in the FBI’s Boston Regional Office, the termination and replacement of U.S. attorneys, and the probe of Operation Fast and Furious.97
These various investigations demonstrate that DOJ has consistently been obligated to submit to congressional oversight in investigating allegations of improper administration, misfeasance and/or malfeasance. This requirement to cooperate in investigations has applied even when there is ongoing or expected litigation. A number of these investigations spawned seminal Supreme Court rulings that today provide the foundation for the broad congressional power of inquiry. All were contentious and involved Department claims that committee demands for agency documents and testimony were precluded either on the basis of constitutional or common law privilege or policy.
Congress’s Power to Obtain Documents and Testimony
To obtain documents and testimony, an inquiring committee need only show that the information sought is:
- within the broad subject matter of the committee’s authorized jurisdiction;
- in aid of a legitimate legislative function; and
- pertinent to the area of concern.
Despite objections by an agency, either house of Congress, or its committees or subcommittees, may obtain and publish information it considers essential for the proper performance of its constitutional functions. There is no court precedent that requires committees to demonstrate a substantial reason to believe wrongdoing occurred before seeking disclosures with respect to the conduct of specific criminal and civil cases, whether open or closed. Indeed, the case law is quite to the contrary.
During the inquiries covered by the CRS compilation, committees sought and obtained a wide variety of evidence, including:
- deliberative prosecutorial memoranda;
- FBI investigative reports and summaries of FBI interviews;
- memoranda and correspondence prepared while cases were pending;
- confidential instructions outlining the procedures or guidelines to be followed for undercover operations and the surveillance and arrest of subjects;
- documents presented to grand juries not protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure, which establishes the rules for grand jury secrecy;
- the testimony of line attorneys and other subordinate agency employees regarding the conduct of open and closed cases; and
- detailed testimony about specific instances of the Department’s failure to prosecute cases that allegedly merited prosecution.
Also, those investigations encompassed virtually every component of DOJ, including its sensitive Public Integrity Section and its Office of Professional Responsibility. They also covered all levels of officials and employees in Main Justice and field offices, from attorneys general down to subordinate line personnel. Further, they delved into virtually every area of the Department’s operations, including its conduct of domestic intelligence investigations.
There have been only four formal presidential assertions that executive privilege required withholding internal DOJ documents sought by a congressional subpoena. Two of those claims were ultimately abandoned by the president; one was not acted on further by a House committee before the end of the 110th Congress; and one is pending resolution before an appeals court.98 The most recent Supreme Court and appellate court rulings covering the presidential communications privilege and the Take Care Clause of the Constitution99 suggest that a claim of executive privilege to protect internal deliberations would be unlikely to succeed.
Weighing Pragmatic Considerations When Seeking Disclosures
The consequences of these historic inquiries at times have been profound and far-reaching. They have led directly to important legislation and the promulgation of internal administrative rules to remedy problems discovered and to the resignations (Harry M. Daugherty, J. Howard McGrath, Alberto R. Gonzales) and convictions (Richard Kleindienst, John Mitchell) of five attorneys general. Despite the broad extent of their constitutional power to access deliberative processes, committees have generally limited themselves due to prudential considerations. Congressional committees typically weigh legislative need, public policy, and the statutory duty of committees to conduct oversight, against the potential burdens imposed on an agency if deliberative process matter is publicly disclosed. In particular, Congress has considered the sensitive law enforcement concerns and duties of the Justice Department and has, therefore, declined to seek disclosure of the agency’s deliberative processes in the absence of a reasonable belief that government misconduct has occurred. Over time, Congress has been generally faithful to these prudential considerations.
The Justice Department’s Responses to Congressional Inquiries
The reasons advanced by the executive branch for declining to provide information to Congress about open and closed civil and criminal proceedings have included:
- avoiding prejudicial pre-trial publicity;
- protecting the rights of innocent third parties;
- protecting the identity of confidential informants;
- preventing disclosure of the government’s strategy in anticipated or pending judicial proceedings;
- avoiding the potentially chilling effect on the exercise of prosecutorial discretion by DOJ attorneys; and
- preventing interference with the president’s constitutional duty to faithfully execute the laws.100
Historically, DOJ has continued to assert such objections. For example, in the 2001–2002 House Oversight and Government Reform Committee investigation of the FBI’s misuse of informants, the Department resisted producing internal deliberative prosecutorial documents. In a February 1, 2002 letter to Chairman Dan Burton, the DOJ assistant attorney general for legislative affairs explained that: “the public interest in avoiding the polarization of the criminal justice process required greater protection of those documents … This is not an ‘inflexible position,’ but rather a statement of a principled interest in ensuring the integrity of prosecutorial decision-making.”101
More recently, during the George W. Bush administration, agencies asserted broader and more strenuous opposition to providing evidence and testimony to Congress through presidential signing statements,102 executive orders,103 and opinions of the Department of Justice’s Office of Legal Counsel (OLC). In OLC’s view, under the precepts of executive privilege and the unitary executive, Congress may not bypass the procedures the president establishes to authorize disclosure to Congress of classified, privileged, or even non-privileged information. Thus, the executive branch has resisted congressional efforts to seek testimony by lower-level officers or employees without presidential authorization. OLC has declared that “right of disclosure” statutes “unconstitutionally limit the ability of the President and his or her appointees to supervise and control the work of subordinate officers and employees of the Executive Branch.”104 However, the OLC assertions of these broad notions of presidential prerogatives have not been supported by any authoritative judicial citations.
Lessons from Prior Investigations of DOJ
Oversight May Proceed Despite Pre-Trial Publicity, Due Process, and Concurrent Investigations Concerns
The Supreme Court has repeatedly reaffirmed the breadth of Congress’ right to investigate the government’s conduct of criminal and civil litigation.105 Congress must be given access to agency documents, even in situations where the inquiry may result in pre-trial publicity and the exposure of criminal corruption or maladministration of agency officials. The Supreme Court has noted that a committee’s investigation “need not grind to a halt whenever responses to its inquiries might potentially be harmful to a witness in some distinct proceeding … or when crime or wrongdoing is disclosed.”106 Despite the existence of pending litigation, Congress may investigate facts that have a bearing on that litigation where the information sought is needed to determine what, if any, legislation should be enacted to prevent further ills.107
Although several lower court decisions have recognized that congressional hearings may have the result of generating prejudicial pre-trial publicity, they have not suggested that there are any constitutional or legal limitations on Congress’ right to conduct an investigation while a court case is still proceeding. Instead, the courts have granted additional time or a change of location for a trial to deal with the publicity problem.108 For example, the court in one of the leading cases, Delaney v. United States, entertained “no doubt that the committee acted lawfully, within the constitutional powers of Congress duly delegated to it,” but went on to note that the Justice Department
must accept the consequence that the judicial department, charged with the duty of assuring the defendant a fair trial before an impartial jury, may find it necessary to postpone the trial until by lapse of time the danger of the prejudice may reasonably be thought to have been substantially removed.109
Thus, the courts have recognized that the cases pose a choice for the Congress: congressionally generated publicity may result in harming the prosecutorial effort of the executive; but access to information under secure conditions can fulfill the congressional power of investigation. Courts have recognized that this remains a choice that is solely within Congress’ discretion to make irrespective of the consequences. As the Iran-Contra independent counsel observed: “The legislative branch has the power to decide whether it is more important perhaps to destroy a prosecution than to hold back testimony they need. They make that decision. It is not a judicial decision, or a legal decision, but a political decision of the highest importance.”110
Probes of Government Strategies, Methods, or Operational Weaknesses Should Not Be Limited
Attorney general and OLC opinions have raised concerns that congressional oversight that calls for information that reflects the executive branch’s strategy or its methods or weaknesses is somehow inappropriate. However, if this concern were permitted to block congressional inquiries, this would prevent Congress from performing a major portion of its constitutionally mandated oversight. Congressional inquiries into foreign affairs and military matters call for information on strategy and assessment of weaknesses in national security matters; congressional probes into waste, fraud, and inefficiency in domestic operations call for information on strategy and weaknesses. For Congress to forego such inquiries would be an abandonment of its oversight duties. The best way to correct either bad law or bad administration is to closely examine the methods and strategies that led to the mistakes. The many examples of congressional probes recounted in the CRS compilation demonstrate how important and effective proper congressional oversight can be.
The Revelations of the Cover-Up of Investigative Findings of Misconduct at Ruby Ridge
The DOJ Office of Professional Responsibility (OPR), which monitors the conduct of Department personnel, is notable for its revelations of a number of sensitive, previously undisclosed internal investigations in the face of extraordinary agency resistance. One such instance occurred during the 1995 investigation by the Senate Judiciary Committee’s Subcommittee on Terrorism, Technology, and Government Information of allegations that several branches of DOJ and the Department of the Treasury had engaged in serious criminal and professional misconduct in the investigation, apprehension, and prosecution of Randall Weaver and Kevin Harris at Ruby Ridge, Idaho. The subcommittee, chaired by Senator Arlen Specter, held 14 days of hearings in which it heard testimony from 62 witnesses, including DOJ, FBI, and Treasury officials, line attorneys and agents, obtained various internal reports from these agencies,111 and issued a final report.112
The subcommittee’s hearings revealed that the federal agencies involved conducted at least eight internal investigations into charges of misconduct, none of which had ever been publically released.113 DOJ expressed reluctance to allow the subcommittee to see any documents out of a concern they would interfere with the ongoing investigation but ultimately supplied some of them under agreed-upon conditions regarding their public release. The most important of these documents was the report of the Ruby Ridge Task Force.114
The task force submitted a 542 page report to OPR on June 10, 1994, which described numerous problems with the conduct of the FBI, the U.S. Marshals, and the U.S. Attorney’s Office in Idaho, and made recommendations for institutional changes to address the problems it found. It also concluded that portions of the rules of engagement issued by the FBI during the incident were unconstitutional under the circumstances, and that the second of two shots fired by a member of the FBI’s Hostage Rescue Team (HRT), which resulted in the death of Vicki Weaver, was not reasonable. The task force recommended that the matter be referred to a prosecutorial component of the department for a determination as to whether a criminal investigation was appropriate.
OPR reviewed the task force report and transmitted the report to the deputy attorney general with a memorandum that dissented from the recommendation that the shooting of Vicky Weaver by the HRT member be reviewed for prosecutorial merit. The dissent was based on the view that the agent’s actions were not unreasonable considering the totality of the circumstances. The deputy attorney general referred the task force recommendations for prosecutorial review to the criminal section of the civil rights division, which concluded that there was no basis for criminal prosecution.
The task force report was the critical basis for the subcommittee’s inquiries during the hearings and the discussion and for the conclusion in its final report that “With the exception of the [Ruby Ridge] Task Force report, which was partially disavowed by the Department, and the April 5, 1995 memorandum of Deputy Attorney General Jamie Gorelick, it appeared to the Subcommittee that the authors of every report we read were looking more to justify agency conduct than to follow the facts wherever they lead.”115
Prosecutorial Discretion is Not a Core Presidential Power Justifying a Claim of Executive Privilege
In the past, the executive frequently has made the broad claim that prosecution is an inherently executive function and that congressional access to information related to the exercise of that function is thereby limited. Under this view, matters of prosecutorial discretion are off-limits to congressional inquiry, and access demands are viewed as interfering with the discretion traditionally enjoyed by the prosecutor. However, court decisions have not upheld this view and have permitted congressional inquiries into prosecutorial decisions.
Morrison v. Olson: Prosecutorial Discretion is Not Central or Unique to the Executive Branch
The Supreme Court has rejected the notion that prosecutorial discretion in criminal matters is an inherent or core executive function. In Morrison v. Olson,116the court recognized that while the executive regularly exercises prosecutorial powers, the exercise of prosecutorial discretion is in no way “central” to the functioning of the executive branch.117 The court therefore rejected a challenge to a statutory provision exempting the independent counsel from at-will presidential removal. The court held that insulating the independent counsel in this way did not interfere with the president’s duty to “take care” that the laws be faithfully executed.118
The Morrison court reiterated that Congress’s oversight functions of “receiving reports or other information and to oversight of the independent counsel’s activities … [are] functions that have been recognized generally as being incidental to the legislative function of Congress.”119 Arguments that only the executive branch has the power to prosecute violations of the law also have been soundly rejected outside the realm of congressional investigations. In United States ex rel Kelly v. The Boeing Co.,120 the Ninth Circuit upheld the constitutionality of qui tam provisions of the False Claims Act allowing private parties to bring enforcement actions against federal agencies, holding that: “[W]e reject Boeing’s assertion that all prosecutorial power of any kind belongs to the Executive Branch.”121
Prosecution is not a core or exclusive function of the executive, but oversight is a constitutionally mandated function of Congress; therefore, a claim of executive privilege to protect the ability to prosecute a case would likely fail. Additionally, congressional oversight and access to documents and testimony, unlike the action of a court, cannot stop a prosecution or set limits on the management of a particular case. Access to information by itself would not seem to disturb the authority and discretion of the executive branch to decide whether to prosecute a case.
Given the legitimacy of congressional oversight of the law enforcement agencies of government, and the need for access to information pursuant to such activities,122 a claim of prosecutorial discretion by itself is unlikely to defeat a congressional need for information. The congressional action itself does not and cannot dictate prosecutorial policy or decisions in particular cases.
Recent Court Rulings Further Undermine Presidential Claims of Prosecutorial Prerogatives
Judicial rulings over the past two decades in other contexts have rejected various assertions of presidential privilege that might be raised in attempts to deny congressional access to agency information. The Supreme Court’s ruling in Morrison v. Olson casts significant doubt on whether prosecutorial discretion is a core presidential power, a doubt that has been magnified by the appellate court rulings in Espy123and Judicial Watch.124In those later decisions, assertion of the presidential communications privilege was held to be limited to “quintessential and non-delegable presidential power” and confined to communications with advisers in “operational proximity” to the resident.
Those decisions indicate that core powers include only decisions that the president alone can make under the Constitution: appointment and removal, pardoning, receiving ambassadors and other public ministers, negotiating treaties, and exercising powers as commander in chief. As discussed in Chapter 5, Espy strongly hinted, and Judicial Watch made clear, that the protection of the presidential communications privilege extends only to the boundaries of the White House and the executive office complex and not to the departments and agencies. Even if the actions at an agency related to a core power, unless the subject documents are “solicited and received” by a close White House adviser or the president, they are not covered by the privilege. Judicial Watch, which dealt with pardon documents in DOJ that had not been “solicited and received” by a close White House adviser, determined that “the need for the presidential communications privilege becomes more attenuated the further away the advisers are from the President … [which] affects the extent to which the contents of the President’s communications can be inferred from predecisional communications.”125 Of course, these rulings did not involve congressional requests, and they are rulings by the U.S. Court of Appeals for the D.C. Circuit, not decisions by the Supreme Court. However, they provide helpful guidance, especially since the D.C. Circuit is the court most likely to hear and rule on future claims of presidential privilege.126
Although Committees Enjoy Significant Investigative Powers, They Carefully Weigh Agency Interests When Seeking Information
The fact that presidential claims of privilege are often unsuccessful does not mean that DOJ policy arguments in particular situations should be immediately dismissed. A review of the historical record of congressional inquiries and experiences with committee investigations of DOJ reveals that committees normally have been restrained by prudential considerations. Members of Congress typically weigh the considerations of legislative need, public policy, and the statutory oversight duties of congressional committees against the potential burdens and harms that may be imposed on the agency if deliberative process matter is publicly disclosed. If a jurisdictional committee lacks a reasonable belief that the government has engaged in misconduct, a committee generally will give substantial weight to sensitive law enforcement concerns regarding an agency’s internal deliberations. However, the oft-repeated claim that the department never has allowed congressional access to open or closed litigation files or other “sensitive” internal deliberative process matters is simply not accurate. Under the appropriate circumstances, committees fully and properly have exercised their well-established congressional oversight authority.
Neither Agencies Nor Private Parties Can Deny Committee Access to Proprietary, Trade Secret, Privacy, and Other Sensitive Information
The Broad Right of Congressional Access and Disclosure
Generally speaking, Congress’ authority and power to obtain information, including but not limited to proprietary or confidential information, is extremely broad.127 Upon occasion, Congress has found it necessary and appropriate to limit its access to information it would normally be able to obtain by exercise of its constitutional oversight prerogatives.128 But where a statutory confidentiality or nondisclosure provision is not made explicitly applicable to the Congress, the courts have consistently held that agencies and private parties may not deny Congress access to such information on the basis of such provisions.129 Ambiguities in such statutes as the Trade Secrets Act and the Privacy Act have been resolved in a committee’s favor.130 The courts have also held that the release of information to a congressional requester is not considered to be disclosure to the general public.131 Once documents are in congressional control, the courts will presume that committees of Congress will exercise their powers responsibly and with proper regard to the rights of the parties.132 Moreover, it would appear that courts may not prevent congressional disclosure at least when such disclosure would serve a valid legislative purpose.133
Two early instances in which committees used the contempt power to successfully overcome agency claims that general confidentiality provisions in their enabling legislation prohibited disclosures to Congress are important precedents. The first involved a 1975 investigation by the Subcommittee on Oversight and Investigations of the then-House Interstate and Foreign Commerce Committee, chaired by Rep. John Moss, seeking to learn the degree to which Arab countries had asked U.S. companies to refuse to do business with Israel. It requested the Commerce Department to disclose to it all boycott requests filed by U.S. companies under the Export Administration Act of 1969. Secretary Rogers C.B. Morton refused on the ground that a broad confidentiality provision of the act, which did not expressly mention Congress, precluded such disclosure. The subcommittee subpoenaed the documents but the secretary again refused to comply and was supported by an attorney general opinion that declared that the confidentiality provision did apply to Congress. The subcommittee voted the secretary in contempt after rejecting his proffer of information reflecting the number of such reports filed and other statistical information, but without revealing the names of the companies. The subcommittee had noted that there were at least 120 confidentiality provisions in various laws and that acceptance of their applicability to Congress would substantially undermine legislative oversight. The day prior to a scheduled vote by the full committee on contempt an agreement was reached under which the chairman of the subcommittee agreed to receive the documents in executive session and not make them public.134
The second instance occurred during a 1978 investigation by the same House subcommittee which was dealing with allegations that a number of drug companies put their trade names on drugs actually manufactured by generic drug companies. The subcommittee requested pertinent company documents held by the Food and Drug Administration (FDA) that the companies were required to file. Refusals after negotiations failed resulted in a subpoena to Health, Education and Welfare Secretary Joseph A. Califano. The secretary, supported by another attorney general opinion, refused to comply, again on the ground that a general confidentiality provision in its enabling legislation precluded disclosure to Congress. The subcommittee rejected the contention and voted to cite the secretary for contempt. The matter was resolved by the release of the documents prior to full committee consideration.135
Release of Proprietary, Trade Secret, or Privacy Information to Congress Does Not Waive Available Privileges in another Forum
Agencies, and private party submitters of sensitive information to agencies, often claim that acquiescing in a committee demand will waive agency rights under exemption 5 of the Freedom of Information Act (FOIA) as well as other privileges that they might assert in any subsequent court litigation. Exemption 5 of FOIA covers all the privileges against disclosure that would be provided under court rules governing civil litigation. While agencies have a legitimate interest in preserving these privileges, there should be no fear of waiver. “Waiver is the voluntary relinquishment of a known right or privilege.”136 It is well established that acquiescence in a valid, official request from a jurisdictional committee to a subject agency does not constitute a waiver of applicable nondisclosure privileges elsewhere.137
In Rockwell International Corp. v. U.S. Department of Justice,138 the court acknowledged that the existence of statutory obligations to comply with congressional information requests is sufficient to demonstrate that compliance was not voluntary. Rockwell dealt with an assertion by the company that the Justice Department had waived the company’s claim of FOIA exemption 5 protection with respect to internal deliberative documents by giving the documents to a congressional investigating subcommittee at the subcommittee’s request. The appeals court rejected the waiver claim, remarking that since the Justice Department had given “the documents to the Subcommittee only after the Subcommittee expressly agreed not to make them public,” this indicated that “far from intending to waive the attachments’ confidentiality, the Justice Department attempted to preserve it. Under those circumstances, we find no Exemption 5 waiver.”139
It is also well established that when the production of privileged communications is compelled, either by a court or a congressional committee, compliance with the order does not waive the applicable privilege in other litigation, as long as it is demonstrated that the compulsion was resisted.140 Some courts have even refused to find waiver when the client’s production, although not compelled, is pressured by the court.141
Two court rulings involving the House Energy and Commerce Committee confirm that turning over documents to a committee does not necessarily waive claims of privilege. However, the rulings also highlight the importance of sufficiently challenging a subpoena to demonstrate that the turnover was, indeed, involuntary. Both cases involved claims in judicial forums that the Energy and Commerce Committee’s receipt and dissemination of documents from tobacco companies waived claims of privilege asserted in those courts. Both courts agreed that there would be no waiver if the document turnover had been involuntary. Both courts found, however, that the companies had failed to sufficiently challenge the chairperson’s subpoenas: “In short, a party must do more than merely object to Congress’ ruling. Instead a party must risk standing in contempt of Congress.”142
The Speech or Debate Clause Protects Committee Release of Proprietary, Trade Secret, and Other Sensitive Information
The public release of proprietary, trade secret or other sensitive information, either through inclusion in a hearing record or via the Congressional Record, is protected by the Speech or Debate Clause. Moreover, because such information does not normally include classified material, it is unlikely that release or publication would be deemed to violate the ethics rules of the House. The Speech or Debate Clause of the Constitution143 protects “purely legislative activities,” including those considered inherent in the legislative process.144 The protection afforded by the clause covers not only the words spoken during debate but also “[c]ommittee reports, resolutions, and the act of voting are equally covered, as [these] are ‘things generally done in a session of the House by one of its members in relation to the business before it.’”145 Finally, the clause has been held to encompass such activities integral to the lawmaking process as the circulation of information to other members, as well as participation in committee investigative proceedings and reports.146
The Speech or Debate Clause’s protections, however, do not extend to activities only casually or incidentally related to legislative affairs.147 For example, newsletters, press releases, or the direct distribution of reports containing information or quotes will likely not be shielded, because they are considered “primarily means of informing those outside the legislative forum.”148 On the other hand, the distribution of such documents to members of a committee and/or their staff, or the inclusion of such information or reports in the public record of hearings or the Congressional Record, are likely to be considered “integral” and, therefore, protected by the clause. The key consideration is such cases appears to be the act, not the actor.
The Privacy Act is Inapplicable to Disclosures to Congress
Agencies often contend that the Privacy Act149 prevents them from disclosing certain information to Congress in response to an official congressional inquiry. However, a review of the relevant statutory provisions, judicial interpretations, and congressional practice indicates that there is no such barrier.
The Privacy Act safeguards individuals against invasions of personal privacy by requiring government agencies to maintain accurate records and by providing individuals with more control over the gathering, dissemination, and accuracy of government information about themselves. To secure this goal, the act prohibits an agency from disclosing information in its files to any person or to another agency without the prior written consent of the individual to whom the information pertains.150 This broad prohibition is subject to 12 exceptions, one of which specifically allows disclosures to Congress and its committees. Section 552a(b)(9) permits disclosure of covered information without the consent of the individual “to either House of Congress, or to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any joint committee.” A 2000 court of appeals ruling held that this provision “unambiguously permits federal agencies to disclose personal information about an individual without the individual’s consent to a Congressional subcommittee that has jurisdiction over the matter to which the information pertains.”151
Similarly, DOJ’s Office of Legal Counsel has agreed that the section (b)(9) exception applies “where the Senate or House exercises its investigative and oversight authority directly, as is the case with a resolution of inquiry adopted by the Senate or House, each House of Congress exercises its investigative authority through delegations of authority to its committees, which act either through requests by committee chairs, speaking on behalf of the committee, or through some other action by the committee itself.”152 More recently, a Department of Justice official agreed that based upon this Privacy
Act exception, the Department was permitted to disclose to Congress details from nine U.S. attorneys’ personnel files in connection with the investigation of the removal of these U.S. attorneys. The official was testifying before the investigating congressional committee, and he explained in detail the Department’s position that the U.S. attorneys were removed for purely personnel-related reasons.153
Access to Grand Jury Materials
Rule 6(e) of the Federal Rules of Criminal Procedure provides that members of the grand jury and those who attend grand jury proceedings may not “disclose matters occurring before the grand jury, except as otherwise provided in these rules.”154 The prohibition does not ordinarily extend to witnesses.155 Violations are punishable as contempt of court.156
There is some authority for the proposition that Rule 6(e), promulgated as an exercise of congressionally delegated authority and reflecting pre-existing practices, is not intended to address disclosures to Congress.157 As a general rule, however, neither Congress nor the courts have accepted that proposition.
But not all matters presented to a grand jury are covered by the secrecy rule. Rather, according to the courts, the aim of the rule is to “prevent disclosure of the way in which information is presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury’s suspicions focuses, and specific details of what took place before the grand jury.”158 But, “when testimony or data is sought for its own sake—for its intrinsic value in the furtherance of a lawful investigation—rather than to learn what took place before the grand jury, it is not a valid defense to disclosure that the same information was revealed to a grand jury or that the same documents had been, or were presently being, examined by a grand jury.”159 Congressional committees have gained access to documents under this theory, the courts ruling that the committee’s interest was in the documents themselves and not in the events that transpired before the grand jury.160 However, Rule 6(e) bars congressional access to matters that “reflect exactly what transpired in the grand jury,” such as transcripts of witness testimony.161
The case law indicates that Rule 6(e) would not prevent disclosure to Congress of the following types of documents:
- Documents within the possession of the Department of Justice concerning a particular case or investigation, other than transcripts of grand jury proceedings and material indicating “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” Material that would not otherwise be identifiable as grand jury material does not become secret simply through Department of Justice identification.162
- Immunity letters, draft pleadings, target letters, and draft indictments.163
- Plea agreements as long as particular grand jury matters are not expressly mentioned.164
- Third party records which pre-exist the grand jury investigation even if they are in the possession of the Department of Justice as custodian for the grand jury.165
- Memoranda, notes, investigative files, and other records of FBI agents or other government investigators except to the extent those documents internally identify or clearly define activities of the grand jury.166
Committees Cannot be Denied Access to Subordinate Agency Personnel
Asserted Basis of Agency Refusals
Investigatory committees often reach a point where it becomes vital to interview or call as witnesses subordinate personnel who have unique, hands-on knowledge of events or operational details that are the subject of legislative scrutiny. Agency refusals of requests to provide particular employees typically rest on the grounds that:
- Permitting such an appearance would undermine the agency’s ability to ensure that such agents would be able to exercise the independent judgment essential to the integrity of law enforcement, prosecutorial, or regulatory functions and to public confidence in their decisions.
- It is more appropriate that committees question supervisors or political appointees, which will satisfy a committee’s oversight needs without undermining the independence of line agents and without raising the appearance of political interference in investigational, prosecutorial, or policymaking decisions.
Such claims are made even in the face of subpoenas to the requested agency witnesses, or to a head of the agency to supply the named witnesses. At that point, the identified witness is placed between a rock and a hard place: in a test of wills between the committee and the agency. Allowing the designated agency employees to appear but only if accompanied by an agency attorney is a common alternative offered by agencies.
A Committee Sets the Terms and Conditions for Agency Witnesses
If the requesting committee has jurisdiction over the agency, and has the authority to initiate and conduct investigations and issue subpoenas, the witness must be allowed to appear. An agency has no authority to determine who from the agency shall or shall not appear before a requesting committee or to set the terms and conditions of such appearances.167 Indeed, an agency official who blocks the appearance of a witness may be subject to criminal sanctions for obstruction of a congressional proceeding,168 loss of pay,169 or a citation for contempt of Congress.170
The Example of the Rocky Flats Investigation
Whether a witness access dispute ratchets up to a full-blown interbranch controversy depends on political factors. Illustrative is a 1992 inquiry of the Subcommittee on Investigations and Oversight of the House Committee on Science, Space, and Technology. The subcommittee investigated the plea bargain settlement of the prosecution of Rockwell International Corporation for environmental crimes committed in its capacity as manager and operating contractor at the Department of Energy’s (DOE)
Rocky Flats nuclear weapons facility.171 The settlement was a culmination of a five-year investigation of environmental crimes at the facility, conducted by a joint government task force involving the FBI, the Department of Justice, the Environmental Protection Agency (EPA), EPA’s National Enforcement Investigation Centers, and the DOE inspector general.
The subcommittee was concerned with several issues:
- the small size of the agreed-upon fine relative to the profits made by the contractor and the damage caused by inappropriate activities;
- the lack of personal indictments of either Rockwell or DOE personnel despite a DOJ finding that the crimes were “institutional crimes” that “were the result of a culture, substantially encouraged and nurtured by DOE, where environmental compliance was a much lower priority than the production and recovery of plutonium and the manufacture of nuclear ‘triggers;’”
- and that expense reimbursements provided by the government to Rockwell and the contractual arrangements between Rockwell and DOE may have created disincentives for environmental compliance and aggressive prosecution of the case.
The subcommittee held ten days of hearings, seven in executive session, in which it took testimony from the U.S. attorney for the District of Colorado; an assistant U.S. attorney for the District of Colorado; a DOJ line attorney from Main Justice; and an FBI field agent. It also received voluminous FBI field investigative reports and interview summaries, and documents submitted to the grand jury not subject to Rule 6(e).172
At one point in the proceedings, all the witnesses who were under subpoena, upon written instructions from the acting assistant attorney general for the Criminal Division of the Justice Department, refused to answer questions concerning internal deliberations about the investigation and prosecution of Rockwell, the DOE, and their employees. Two of the witnesses advised that they had information and, but for the DOJ directive, they would have answered the subcommittee’s inquiries. The subcommittee members unanimously authorized the chairperson to send a letter to President Bush requesting that he either personally assert executive privilege as the basis for directing the witnesses to withhold the information or direct DOJ to retract its instructions to the witnesses. The president took neither course and DOJ subsequently reiterated its position that the matter sought would chill department personnel. The subcommittee then moved to hold one of the witnesses in contempt of Congress.
A last-minute agreement forestalled the contempt citation. Under the agreement:
- DOJ issued a new instruction to all personnel under subpoena to answer all subcommittee questions, including those relating to internal deliberations about the plea bargain. Those instructions applied to all department witnesses, including FBI personnel, who might be called in the future. Those witnesses were advised to answer all questions fully and truthfully, and were specifically instructed that they were allowed to disclose internal advice, opinions, or recommendations connected to the matter.
- Transcripts were made of all interviews and provided to the witnesses. They were not to be made public except to the extent they needed to be used to refresh the recollection or impeach the testimony of other witnesses called before the subcommittee in a public hearing.
- Witnesses were required to be interviewed by staff under oath.
- The subcommittee reserved the right to hold further hearings in the future, at which time it could call other department witnesses who would be instructed by the department not to invoke the deliberative process privilege as a reason for refusing to answer subcommittee questions.173
Key to the success of the investigating committee was the support of the chairperson by the ranking minority member throughout the proceeding and the perception that there were sufficient votes on the full committee for a contempt citation. Media attention to the dispute also helped, particularly coverage of grand jury members who complained about not being allowed to hand up indictments of Energy Department and Rockwell officials.
A Committee May Reject an Agency-Designated Attorney Appearing with an Agency Witness
Often as an alternative, an agency may offer to allow a subordinate official or employee to be interviewed or to testify if the witness is accompanied by agency counsel. Under certain circumstances, however, this may raise conflict-of-interest problems, particularly where the investigatory hearing involves issues of agency corruption, maladministration, abuse, or waste. In such instances, the agency attorney or other official may have a conflict of interest in representing both the interests of the employee-witness and those of the agency. Moreover, the presence of such an agency official may inhibit the witness from testifying fully. Thus, both pragmatic and legal concerns caution strongly in favor of limiting a witness’ choice of counsel to someone who does not present the potential conflict of interest or pressure on the witness.
To be effective, a committee must be confident that the responses it obtains from officers and employees with respect to the administration of agency programs are candid, objective, and truthful. Committees have no way to ascertain whether a witness’ statement that he or she personally requested to be accompanied by agency personnel is, in fact, based solely on the employee’s personal wishes. Where a potential conflict-of-interest situation appears to arise, a committee should seek to insulate the witness from the presence of agency personnel during a staff interview, deposition, or hearing testimony.
Under House Rule XI.2(k)(4), each committee chair has the express authority to maintain order and decorum in the conduct of hearings and the inherent authority to preserve the integrity of the investigative process. Thus, a determination by a chair that agency-selected counsel for a witness raises a potential conflict of interest, or might chill the candor of the witness’ testimony, may be treated as an obstruction of the investigatory process or a breach of decorum or order of a hearing. This may be remedied by exclusion of the agency counsel or punishment by the contempt process of the House. The witness would not be excused from testifying, but the choice of the witness’ counsel could be circumscribed.
An Agency May Direct its Designated Counsel to Solely Represent the Witness
An effective compromise to such situations is for the agency to direct its attorney to represent only the employee-witness’ interests. This solution was employed by the Department of Health and Human Services (HHS) and House Energy and Commerce Committee in the 1990s. The secretary of HHS authorized a department attorney to represent an employee subpoenaed to testify before the committee, without reporting back to the department. The agreement reflected DOJ regulations authorizing personal representation by a DOJ attorney or private counsel of a government employee subpoenaed to testify about actions occurring during the course of the person’s official duties.174 The agreement solved the conflict of interest problem and removed the financial burden for subpoenaed government witnesses who no longer needed to pay substantial fees for private legal representation.175
The Investigation of the DOJ Attempt to Block Enforcement of the Contempt Citation of Anne Burford
The end of the 97th Congress saw a dramatic illustration of the techniques and authorities just described. DOJ investigations grew out of the highly charged confrontation concerning the refusal, at the direction of President Ronald Reagan, of Environmental Protection Agency (EPA) Administrator Anne Gorsuch Burford to comply with House subcommittee subpoenas requiring the production of documentation about EPA’s enforcement of the legislation requiring the cleanup of hazardous wastes (Superfund). The dispute culminated in the House of Representative’s citation of Burford for contempt of Congress, the first head of an executive branch agency ever to have been so cited. It also resulted in an unprecedented legal action by DOJ against the House to obtain a judicial declaration that Burford had acted lawfully in refusing to comply with the subpoena at the behest of the president.
Ultimately the lawsuit was dismissed, all the documents sought were provided to the subcommittees, and the contempt citation was dropped. However, a number of questions about the role of the Justice Department during the controversy remained: whether DOJ, not EPA, had made the decision to persuade the president to assert executive privilege; whether the department had directed the United States attorney for the District of Columbia not to present the contempt citation to the grand jury and made the decision to sue the House; and, generally, whether there was a conflict of interest in the department’s simultaneously advising the president, representing Burford, investigating alleged executive branch wrongdoing, and not enforcing the congressional contempt statute. These and other related questions raised by DOJ’s actions became the subject of an investigation by the House Judiciary Committee beginning in early 1983. The committee issued a final report in December 1985.176
Although the Judiciary Committee was able to gain access to virtually all the documentation and other information it sought from DOJ, in many respects the investigation proved as contentious as the earlier controversy. Among other clashes between DOJ and the Judiciary Committee, there was disagreement about the access that would be provided for DOJ staff interviews. DOJ demanded that any such interviewees be accompanied by DOJ lawyers. Ultimately DOJ agreed to permit interviews to go forward without its attorneys present, and if an employee requested representation, DOJ paid for a private attorney. In all, committee staff interviewed 26 current and former department employees, including four assistant attorneys general.
Partly as a result of these interviews, as well as from the handwritten notes initially withheld, the committee determined it needed access to Criminal Division documents respecting the origins of former EPA Assistant Administrator Rita Lavelle in order to determine whether department officials had deliberately withheld the documents in an attempt to obstruct the committee’s investigation. The department first refused to provide the documents relating to the Lavelle investigation “[c] onsistent with the longstanding practice of the Department not to provide access to active criminal files.”177 The department also refused to provide the committee with access to documents related to the department’s handling of its inquiry, objecting on the ground of the committee’s “ever-broadening scope of…inquiry.”178 After a delay of almost three months the department produced both categories of documents.179
The committee’s final report asked for the attorney general to appoint an independent counsel pursuant to the Ethics in Government Act to investigate its allegations of obstruction of congressional proceedings. That appointment of an independent counsel and her subsequent inquiry led to the Supreme Court’s landmark ruling in Morrison v. Olson which sustained the validity of the law creating the office and its function, held that prosecutorial discretion is not a core presidential power, and directly reaffirmed Congress’s broad constitutionally-based oversight and investigatory authority.180
Congress Has Enacted Witness Protection Laws
Congress has enacted legislation to protect its vital interest in receiving information about the performance of executive agencies, both through permanent statutory provisions and provisions in yearly appropriations laws. These statutes ensure that federal employees have the right to communicate with and provide information to the U.S. Congress, or to a member or committee of Congress, and that this right may not be interfered with or impeded. A current provision, originally enacted as part of the Lloyd-LaFollette Act, states as follows at 5 U.S.C. § 7211:
The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.
This so-called “anti-gag rule” statute was adopted by Congress in the face of the Taft and Theodore Roosevelt administrations’ attempts to “gag” or restrain employees from speaking or providing information to Congress without the consent of the employees’ heads of departments.181 With such “gag rules” in place requiring departmental clearance for employees to speak to Congress or respond to members, Congress was specifically concerned that it would hear only the point of view of cabinet officials and not the views of the rank-and-file experts in the departments.182 The anti-gag rule law has no enforcement mechanism.
But the provisions and the underlying policy of the “anti-gag rule” statute have been reaffirmed, strengthened, and clearly reasserted in recent appropriations laws. Repeatedly, Congress has expressly provided that no funds appropriated in any act of Congress may be spent to pay the salary of one who prohibits or prevents an employee of an executive agency from providing information to the Congress, or to any member or committee of Congress, when such information concerns relevant official matters. Similarly, current appropriations provisions also provide that no funds may be spent to enforce any agency nondisclosure policy, or any nondisclosure agreement with an officer or employee, without expressly providing an exemption for information provided to the Congress. In support, these provisions specifically cite the anti-gag rule law and other whistleblower protection provisions.183 In discussing the latter provision when it was first added to appropriations laws in 1987, the House conference report stated clearly that the effect of the law was to reduce the potential that an overbroad nondisclosure agreement or agency nondisclosure policy might produce a “chilling effect on the first amendment rights of government employees, including their ability to communicate directly with members of Congress.”184
Congress has also passed other provisions of law, such as the Whistleblower Protection Act of 1988, and in 2012 the Whistleblower Protection Enhancement Act,185 to assure the free and unfettered passage of information from executive agency employees to, among others, the Congress, to assure the fair and honest administration of the laws of the nation.186 The Senate report on the legislation noted that in large bureaucracies it is not difficult to conceal evidence of waste or mismanagement “provided that no one summons the courage to disclose the truth.”187 The Whistleblower Act expressly protects employees from reprisals for the disclosure of certain information regarding waste, fraud, or abuse in federal programs. Although the act limits the right to disclose publicly certain confidential or secret information relating to national security or defense, it expressly allows the disclosure to the Congress of any and all such information: “This subsection shall not be construed to authorize the withholding of information from the Congress or the taking of any personnel action against an employee who discloses information to the Congress.”188
While the Whistleblower Act is generally used as a defense to personnel actions taken against covered employees for making protected disclosures, it clearly demonstrates Congress’ continued policy of preserving open communications to the Congress from federal employees. Similarly, the Military Whistleblower Protection Act of 1989189 provides that “No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General” and prohibits any retaliatory personnel action against a member of the armed forces for making or preparing a communication to a member of Congress.190
Finally, the provisions of 18 U.S.C. § 1505 provide a criminal penalty for one who “corruptly,” or through the use of “any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct or impede,” the “due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress. …” This statute makes it a criminal violation for anyone to use such threatening means to obstruct or impede a committee inquiry, or other such inquiry of the House or Senate.191