TO: MEMBERS OF THE HOUSE GOVERNMENT REFORM COMMITTEE
FROM: DAN BURTON, CHAIRMAN
DATE: FEBRUARY 4, 2002
SUBJECT: FULL COMMITTEE HEARING, 10:00 A.M., FEBRUARY 6, 2002, 2154 RAYBURN HOUSE
OFFICE BUILDING: “THE HISTORY OF CONGRESSIONAL ACCESS TO DELIBERATIVE JUSTICE DEPARTMENT DOCUMENTS”
The House Government Reform Committee will hold a hearing entitled, “The History of Congressional Access to Deliberative Justice Department Documents” at 10:00 a.m., on Wednesday, February 6, 2002, in Room 2154 of the Rayburn House Office Building.
On September 6, 2001, Chairman Burton issued a subpoena to the Justice Department calling for three categories of documents: (1) prosecution and declination memoranda relating to 13 individuals involved in the Justice Department’s investigation of organized crime in New England in the 1960s and 1970s (“the Boston documents”); (2) a report by Robert Conrad recommending the appointment of a special counsel to investigate campaign fundraising matters, and related memoranda; and (3) declination memoranda relating to former White House aide Mark Middleton (the Committee had previously subpoenaed a declination memorandum relating to DEA official Ernest Howard). The Chairman’s subpoena came after a number of informal attempts to obtain access to the documents over many months. However, the Committee was informed that the Justice Department was creating a new policy which now prohibited Congress from receiving access to deliberative Justice Department memoranda.
On December 13, 2001, the Committee held a hearing to learn more about the Justice Department’s refusal to provide the subpoenaed records. On December 12, 2001, President Bush claimed executive privilege over the records called for by the Committee’s subpoena. Michael Horowitz, the Chief of Staff for the Criminal Division, testified on behalf of the Justice Department, and attempted to explain the new Justice Department policy, as well as the President’s claim of privilege.
Since that hearing, Alberto Gonzales, the Counsel to the President, has written to Chairman Burton offering a briefing to the Committee regarding the Boston documents. Chairman Burton has informed Judge Gonzales that the Committee would be pleased to receive a briefing, as long as the briefing is conducted in conjunction with a review of the documents. The White House has not responded to this offer. Chairman Burton believes that a contemporaneous review of the documents is essential to ensure that the Justice Department briefing is complete and accurate.
It is important to note that the Justice Department has not argued that the production of these documents to the Committee would jeopardize any ongoing criminal investigation. Nor has the Department argued that grand jury material, which is protected by law from disclosure, would be compromised. The Committee has routinely taken the position that any grand jury material may be redacted from the documents prior to their production.
The Effect of the Justice Department Policy
If the Justice Department is permitted to implement this new policy, it would have a dramatic, negative impact on Congressional oversight. In the future, Congress would not be able to receive any internal deliberative prosecutorial documents from the Department, even long after an investigation had been closed. This would prevent Congress from understanding significant details about how criminal cases are handled. The policy would even keep Congress from learning when cases are declined for reasons relating to corruption or incompetence. In addition, this policy would be in effect even in situations where dishonesty in the executive branch was alleged. If allowed to stand, this new DOJ policy would hamper Congressional oversight not just during the current administration, but during future administrations as well.
The Justice Department has supported its new policy by offering briefings by senior staff. While this might be acceptable in certain cases, in others it is clearly unacceptable. It also ignores the fact that in some cases - for example the Committee’s Boston investigation - Committee staff will have more information than Justice Department staff and, therefore, are better situated to understand the significance of the types of communications being withheld. Just as the Justice Department would never accept a briefing in lieu of actual documents from a target of an investigation who is suspected of wrongdoing, Congress should not accept a briefing when wrongdoing is suspected in the executive branch.
The Committee’s Need for the Documents
The Committee is conducting a major investigation of the way the Justice Department managed its investigations of organized crime in New England in the 1960s and 1970s. There is substantial evidence of government misconduct that has come to light in the course of the Committee’s investigation and court proceedings in Massachusetts:
1.Federal law enforcement officials used testimony that was obviously perjurious to send individuals to death row or life prison sentences.
2.Government informants killed dozens of individuals while under the protection of the federal government.
3.Federal law enforcement officers tipped off murderers to investigations by organizations other than the FBI.
4.An FBI agent tipped off Whitey Bulger, who is now number two on the FBI’s Most Wanted list, and allowed him to flee prior to an indictment for numerous murders.
5.A number of individuals who had committed murders were allowed to remain on the street, even though the government knew they would probably kill again.
6.Information provided to the Committee has indicated that federal prosecutors coached witnesses, and at least one high-level Justice Department official threatened a man in the witness protection program to support perjurious testimony provided in death penalty cases.
7.Now, the Justice Department apparently does not want Congress to learn whether anyone ever suggested prosecuting the murderers and corrupt law enforcement officials and, if such suggestions were made, why they were rejected.
The Committee has an obligation to ensure that laws enacted by Congress are faithfully executed and funds approved by Congress are legitimately spent. Congress’ authority to conduct oversight of the executive branch has been routinely reinforced by the courts. No better example of the need for Congressional oversight could be imagined than the Boston FBI scandal. In addition, a careful examination of this matter is likely to lead to legislative reforms to prevent recurrences of what some have described as the worst abuses in U.S. law enforcement history.
One of the concerns about the new Justice Department policy is that it appears to contradict a long history of Congressional access to deliberative Justice Department documents. There are examples of Congressional access to these types of records going back to at least the 1920s. Moreover, both Republican and Democratic administrations have provided these types of records to Congress. Therefore, it appears that the new Justice Department policy, and the President’s claim of executive privilege, are at odds with historical precedent. Despite this record, the Justice Department and White House have suggested that there is a longstanding policy against the release of these types of records, and that Congressional access to these records wold cause substantial public harm.
On September 7, 2001, Chairman Burton wrote to Attorney General Ashcroft, asking four specific questions regarding the history of Congressional access to deliberative Justice Department records. Attorney General Ashcroft has never answered those questions. At the upcoming hearing, first Senator Grassley will testify regarding past cases in which he has obtained access to deliberative Justice Department records and the importance of such access to Congressional oversight. On the second panel, Assistant Attorney General Dan Bryant will be asked to answer a number of questions regarding the history of Congressional access to these types of records. Professor Mark Rozell, Professor Charles Tiefer and Morton Rosenberg of the Congressional Research Service will also be asked to provide testimony regarding the same subject. After obtaining this information, the Committee will be in a better position to assess the claims that there is a longstanding policy against the release of this type of information, or that Congressional access to the deliberative records will cause harm to the public.
The Justice Department made a last-minute request for Michael Chertoff, Assistant Attorney General for the Criminal Division, to testify. This request was rejected in order to keep the focus of the hearing on historical precedent for Congressional access to deliberative Justice Department records. Mr. Chertoff and the Attorney General will be called to testify at future hearings regarding the Committee’s request for the Boston documents.
The Chairman has repeatedly informed the Justice Department that the Committee expects the Department to be prepared to identify prior cases of Congressional access to deliberative Justice Department documents. On January 29, 2002, Mr. Bryant was told to be prepared to provide testimony regarding:
All prior occasions when Congress has been permitted access to Justice Department deliberative documents, including situations where Congressmen or staff have been permitted to review documents without taking possession of them.
How the Justice Department prepared for its testimony, including who the Department staff spoke with in order to prepare. The Committee wishes to ensure that the Department has been diligent in attempting to learn about prior occasions in which Congress was provided access to deliberative documents.
What specific factors led to the decision to recommend that the President invoke executive privilege over the documents subpoenaed pursuant to the Committee’s investigation of Justice Department corruption in Boston. To the extent the Justice Department acknowledges that deliberative documents have been provided to Congress on a number of prior occasions, the Committee would like to know why the Justice Department believes that the Boston documents make a less compelling case for disclosure than documents that have been provided.
All prior occasions when a President has invoked executive privilege over the types of documents sought by the Committee.
Which memoranda or opinions by the Justice Department Office of Legal Counsel provide specific support for the position taken by the Department.