> [RPTS CASWELL\
> DCMN BURRELL]{.underline}\
> \
> \
> EMERGENCY MEETING ON H.Res. 836,\
> GRANTING THE AUTHORITY PROVIDED\
> UNDER CLAUSE 4(C)(3) OF RULE X OF\
> THE RULES OF THE HOUSE OF\
> REPRESENTATIVES TO THE COMMITTEE\
> ON EDUCATION AND LABOR FOR PURPOSES\
> OF ITS INVESTIGATION INTO THE DEATHS\
> OF 9 INDIVIDUALS THAT OCCURRED AT\
> THE CRANDALL CANYON MINE NEAR\
> HUNTINGTON, UTAH\
> Wednesday, December 5, 2007\
> House of Representatives,\
> Committee on Rules,\
> Washington, D.C.

The committee met, pursuant to call, at 2:00 p.m. in Room H‑313, The
Capitol, Hon. Louise M. Slaughter \[chairwoman of the committee\]
presiding.

Present: Representatives Slaughter, McGovern, Hastings of Florida,
Matsui, Cardoza, Welch, Castor, Arcuri, Sutton, Dreier, Hastings of
Washington, and Sessions.

The [Chairwoman.]{.underline} The Rules Committee will please come to
order.

We are here to consider H.Res. 836, Granting the Authority Provided
under clause 4(c)(3) of rule X of the Rules of the House of
Representatives to the Committee on Education and Labor for Purposes of
its Investigation into the Deaths of 9 Individuals that Occurred at the
Crandall Canyon Mine near Huntington, Utah.

On August 6 of this year, pillars in Utah\'s Crandall Canyon Mine
exploded and tragically killed six miners. The entire Nation watched
around the clock as rescuers made their best effort to recover these six
persons. Unfortunately, tragedy struck again just 10 days later when
three rescuers themselves died in the midst of their heroic efforts.

The rescue effort ultimately was called off, and the mine was closed.
Although any mine rescue will be treacherous, serious questions were
raised about the rescue efforts of the Labor Department\'s Mine Safety
and Health Administration and the mine owner, Murray Energy, and the
safety of the mine itself.

Since the mine accident, the Education and Labor Committee has been
engaged in exhaustive investigation into not only any safety problems in
the mine that were known to MSHA and Murray Energy prior to the
accident, but also the conduct of Murray Energy and MSHA in attempting
the rescue. The investigation has consisted of countless staff
interviews, document requests, a subpoena and a hearing.

While the committee has attempted to obtain needed information through
voluntary interviews and document requests, some individuals have
indicated that they will not cooperate voluntarily with the
investigation. Whether such recalcitrance was caused by the fear of
retaliation or by the fear of self‑incrimination, it is hindering a
legitimate congressional investigation into all of the most recent of
several mining incidents.

This resolution provides the authority that the Education Committee
needs to uncover what happened and what needs to be done to prevent
future accidents.

House Resolution 836 would extend the authority that already exist in
the House rules and will permit the committee to call witnesses for
Member and staff depositions. It is important to know that the
deposition authority in H.Res. 836 is limited to the committee\'s
investigation of the mine deaths at Crandall Canyon Mine. It does not
extend to any other investigation or even any accident in any other
mine.

In addition, the minority members of staff must be afforded equitable
treatment with respect to notice and participation in any depositions.
These are just a few of the many provisions in the authority that
protect the rights and prerogatives of the Members. Just a few hours
ago, the Education Committee adopted deposition rules in anticipation of
H.Res. 836 passing the House. The committee rules provide significant
protections to the committee members and witnesses called for
depositions.

I ask that during their testimony Chairman Miller and Ranking Member
McKeon describe for us these precautions, protections and how they will
differ from past deposition rules. I believe that the resolution and the
committee rules provide a reasonable tool for the continuation of the
Crandall Canyon Mine investigation.

It is my understanding that the Education Committee\'s ranking member
has been involved closely in the development of the resolution and the
rule and that many, if not all of his concerns have been addressed.

I hope that this committee and the House will approve the resolution so
that the investigation can continue and that the truth of Crandall
Canyon can be uncovered and that the information obtained can be used to
prevent future mine accidents.

I now recognize Mr. Dreier for an opening statement.

Mr. [Dreier.]{.underline} Thank you very much, Madam Chairman.

As I listen to your very thoughtful opening remarks, I am of course
brought, as we all are, back to those days in August. In many ways it
seems like it is a long time ago. It is hard to believe it was just 3
months ago. I can remember vividly sitting up late, as we all do, when
disasters like this hit and there are people whose lives are threatened,
who are waiting and watching these reports that were coming from the
Crandall Canyon Mine disaster.

I do think that it is essential that everything that possibly can be
done to ensure that what we faced then never happens again. This is not
a first. This has obviously happened repeatedly. I remember when our
former Rules Committee colleague, Mrs. Capito, was dealing just a few
years ago with the tragic loss of life there. I remember what a roller
coaster ride that was when they came that night, do you remember, and
said that everyone was safe, and, then, of course they got the reverse
before long.

I can\'t say how saddened I am to having thought about that situation
again. I want to express my condolences.

I will say that we are at the end of the day going to be supportive of
this effort, but I would like to raise a couple of concerns that I have
seen on this. We all know that this is an extraordinary procedure that
we are talking about here. I just wrote down what you said in your
opening remarks. You said this already exists in House Rules.

It does exist in House Rules in that on the opening day when we passed
the rules package, which, not surprisingly, Mr. McKeon and I and Mr.
Hastings opposed for numerous reasons, which we outlined at that point,
one of those included providing our California colleague, Mr. Waxman,
with basically blanket and extraordinary authority. In fact, Madam
Chairman, back in the 105th Congress you were a signatory to minority
views which described that as extraordinary.

I will say that I believe it very important that we move as carefully as
we possibly can. I think that Mr. McKeon will probably point to the fact
that while, as you said in your remarks there, that there may be some
people who, for one reason or another, feel that they do not want to
come forward, subpoena authority does exist. I do believe that we have
the ability to glean the necessary information.

I also want to say that if you look at the package here in dealing with
the Education and Labor Committee, it is far better than what you
described as already existing in the House rules, the package that was
put into place on the opening day of the 110th Congress. I wish very
much that the model that has been put forward for Chairman Miller and
Mr. McKeon would have been the model utilized for Mr. Waxman\'s
committee.

In closing, I would simply say, Madam Chairman, that this is the first
original jurisdiction hearing of the Rules Committee for the 110th
Congress. I hope very much that it won\'t be the last as we proceed with
the very important jurisdiction which falls within the Rules Committee.

Thank you very much.

The [Chairwoman.]{.underline} Thank you very much.

Let me call Mr. Miller, the Chair, and Ranking Member McKeon to the
table.

Mr. Miller, we would be happy to hear from you.

**STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA**

Mr. [Miller.]{.underline} Thank you. Thank you for this hearing and for
the resolution.

Madam Chairman, you and Mr. Dreier have pointed out the reason why we
are here, the tragedy at Crandall Canyon Mine and our obvious need to
investigate what transpired there over a considerable period of time
from the approval of plans to the accidents and the aftermath of the
accidents. As you know, not only were the miners killed, but then three
who went in to rescue them were killed in that process.

We believe that this authority is necessary to engage in these
depositions. A number of people we have talked to from various aspects
of this accident have indicated that they will not cooperate for
different reasons, and that is certainly their right currently. But we
believe that their testimony and our ability to probe them is essential
to the success of this investigation.

Mr. McKeon said this morning, and you mentioned it, that there is an
investigation going on by MSHA, but MSHA itself ‑‑ its activities and
responses are a part of that investigation, so that this can\'t be left
just to theirs. We have been respectful of their investigation. We have
pursued this investigation parallel with theirs and others that have
taken place by the State of Utah and others, and we have worked
cooperatively with them.

But at this stage we believe that this authority is necessary, and the
resolution that you have under consideration is obviously essential to
our having the authority to do it in this fashion.

It is unusual. There is no permanent rule for the committees, as you
pointed out. Authority was granted to Government Reform but not to us,
and that is obviously why we are here.

This committee has sought that authority, I think, in the past, when we
were doing the Teamsters investigation a number of years ago. That
authority was given.

Mr. Dreier has noted that this is different than that authority. In
working with the Rules Committee, with Government Reform, and with the
minority on this, we have made some changes.

We think that our rules now are reflecting the consensus and cooperation
that Members would receive 3 days notice before the chairman issues the
subpoenas, the chairman\'s rulings on objections in the depositions are
promulgated to the Members before the ruling is implemented and can be
overruled by the full committee. Members are given an opportunity to
object to the introduction of deposition testimony into evidence before
the committee at such time that evidence is offered. The Republicans are
consulted before subpoena notice goes out. Minority counsel is given a
full opportunity to question the deponents and participate in the
depositions with the majority counsel. For the deponent, they can bring
personal counsel in applicable cases, agency counsel or corporate
counsel to advise the deponent and respect the deponent\'s rights.

The deponents do not have to answer questions for which a privileged
objection is made. In the first instance, subject to overruling that
privilege, that objection by the committee, the depositions are taken by
counsel, not attorney staff, who are able to consider, respect the
deponent\'s constitutional rights and of the privileges. As you know,
you can\'t exercises privileges before a congressional committee, but
the congressional committee has the authority to override them.

But we protect those rights, we protect the rights of the majority and
the minority with respect to notice participation and rotating the
ability to ask the questions, to go back and forth in selected periods
of time in that inquiry. So we think it does meet the test of fairness
and protection of the rights of all parties to this. We recognize this
is unusual authority, but we clearly believe that it is necessary at
this stage of the investigation.

Thank you.

\[The statement of Mr. Miller follows:\]\
\
\*\*\*\*\*\*\* INSERT 1‑1 \*\*\*\*\*\*\*\*

The [Chairwoman.]{.underline} Thank you, Mr. Miller.

Mr. McKeon.

**STATEMENT OF THE HON. HOWARD McKEON, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF CALIFORNIA**

Mr. [McKeon.]{.underline} Thank you, Madam Chairman, Ranking Member
Dreier and Members of the committee. I appreciate the opportunity to
testify on the proposal to grant deposition authority to the Committee
on Education and Labor and the investigation of the Crandall Canyon
mining disaster.

I joined my colleagues in that just a short time ago to establish rules
to govern these depositions. The rule adopted by our committee to direct
this process was developed cooperatively to ensure that this authority,
regardless of whether it is merited, will be exercised fairly and with
the full consultation of the minority.

Based on his actions up to this point, I have every confidence that the
chairman will treat this respectfully in this process. While I did not
object to the parameters of the deposition authority, I expressed
caution, and just as I do now, that this authority is premature,
unnecessary and has the potential to cause great harm.

The Education and Labor Committee has a history of working carefully and
cooperatively to ensure safety in our Nation\'s mines.

Last year we oversaw the development and enactment of the Miner Act, the
most sweeping mine safety reforms in a generation. We take seriously our
commitment to mine safety, which includes appropriate oversight.

Because of that, I do not believe we should take lightly this proposal
to diverge from our accepted oversight capabilities.

At a minimum, this proposal is premature. Our committee has already made
significant progress in our investigation through existing authority to
conduct hearings, demand documents and interview witnesses and experts.
Our colleagues on the other side of the Capitol are engaged in similar
exercises.

At the same time, the U.S. Department of Labor and the State of Utah
have undertaken a series of investigations into the cause of the mine
collapse and handling of the events in its wake. There are inquiries
into the cause of the collapse, inquiries into the development and
observance of the mine safety plans and inquiries into the handling of
the rescue by both the mine operator and Federal regulators.

There is no shortage in the number and scope of these inquiries. Our
role in this of investigations is to conduct robust oversight.

To that end, the committee has requested, and the Department of Labor
has produced, hundreds of thousands of pages of documents related to
this mine and its collapse.

More documents are on the way. We also have significant tools at our
disposal, even without this new and extraordinary authority, to hold
hearings, interview witnesses and officials, insert findings into the
official record and compel the disclosure of documents. We have not come
close to exhausting the resources at our disposal to investigate the
incident.

Not only is the deposition authority premature at this juncture, it also
appears to be unnecessary. Although the majority staff have refused to
discuss who they intend to depose, we have been told that only four or
five witnesses would need to be subpoenaed. I see no reason why the
regular hearing process could not accommodate that small number of
witnesses.

Today, however, we are beginning down a path that I believe goes far
beyond our charge to conduct oversight. By granting the Education and
Labor Committee the authority to depose witnesses, we are venturing into
an arena rarely entered by Congress and then only under circumstances
such as national security, the impeachment of a President and the
alleged defrauding of a national organization by its leadership.
Deposition authority will allow dozens of interviews to be conducted
under oath and be compelled by subpoena. This could create the
possibility of a potential web of conflicts of interest, produce claims
and rulings, requests for immunity, leaks and contradictory evidence.

Previous congressional probes would serve as a cautionary tale as we
head down this path. Tactics used in the congressional oversight
investigation of the Iran Contra Affair caused key testimony against
Oliver North to be thrown out and his convictions to be overturned.

In early September, the Acting Solicitor of Labor wrote to Chairman
Miller and myself, along with the leadership of the House, expressing
concerns that the committee\'s parallel investigation may compromise the
integrity of MSHA\'s law enforcement investigation and potentially
jeopardize its ability to enforce the law and hold violators
accountable.

Madam Chairman, I would like to include that letter in the record. The
danger described in the letter is as real today as it was then.

The [Chairwoman.]{.underline} Without objection.

\[The information follows:\]\
\
\*\*\*\*\*\*\*\* INSERT 1‑2 \*\*\*\*\*\*\*\*

Mr. [McKeon.]{.underline} The majority has thus far heeded our warnings
and the Department of Labor. Interviews have proceeded cautiously to
avoid any inadvertent sabotage of our pending inquiries. Our hearing was
structured in such a way as to avoid endangering the investigations.

I am concerned that by granting unfettered deposition authority the
House is backing away from that cautious approach and rekindling the
threat that our activities could undermine the aggressive enforcement
that MSHA and that other investigators have an obligation to pursue. The
deposition authority today is crafted narrowly not only to cover the
Crandall Canyon Mine collapse. I have serious questions about the timing
and necessity of this discrete authority.

Beyond that, however, I want to make it perfectly clear that the narrow
authority being granted in this instance should in no way be viewed as a
precedent for future oversight functions of our committee.

Our committee rules allow for a range of tools and resources that can be
used to conduct rigorous oversight, tools that, I would add, are not
being fully utilized in this instance.

If there is any effort to begin granting a more wide‑ranging deposition
authority, I believe the dangers will be multiplied exponentially. As
such, my objections will be multiplied as well.

Before yielding back, I would like to commend the chairman, thank him
for the openness and really working with the minority on this. They
granted many of our requests, which the chairman outlined, and I think
have made for a better process.

I thank him for that and look forward to working with him on it as we
move forward on this and other issues.

\[The statement of Mr. McKeon follows:\]\
\
\*\*\*\*\*\*\*\* INSERT 1‑3 \*\*\*\*\*\*\*\*

The [Chairwoman.]{.underline} Thank you, Mr. McKeon. One question for
either of you that I have is, if I am correct in this, this mine has
already been mined, retreat mined and abandoned. Murray Energy was able
to buy it for a few cents on the dollar; is that correct?

Mr. [Miller.]{.underline} I don\'t know all the particulars. The mine
was a mine that I guess, you know, they say played itself out. But with
new technologies and these new technologies you can go back in.

Retreat mining is an old practice, you have pillars in the mine that are
out of coal, and you pull them out. Basically you are running a series
of controlled collapses in the mine.

The [Chairwoman.]{.underline} As you leave.

Mr. [Miller.]{.underline} It is very dangerous. Alan Mollohan, our
colleague, used to do this for a living. He can explain this to you. It
sounds like a horrendous place to work.

The [Chairwoman.]{.underline} It sounds awful, but in that case if they
are allowed to use abandoned mines that are already retreat mines ‑‑
then the legislation that you spoke of last year in mine safety, did it
deal with that in any way?

Mr. [Miller.]{.underline} I don\'t believe that it dealt with that
particular practice. This mine was already operating at that process.

The [Chairwoman.]{.underline} The laws that exist.

Mr. [Miller.]{.underline} I believe there is precedence elsewhere about
how the plans were approved and all of that. That is part of the
investigation, but I don\'t think we spoke specifically to retreat
mining in the Miner Act of last year.

The [Chairwoman.]{.underline} It is true that MSHA is basically made up
of mine owners?

Mr. [Miller.]{.underline} Well, they have people from the industry who
have been brought to the regulatory agency. That is not that unusual,
but they haven\'t been the swiftest agency in responding to these
accidents that have happened, the loss of life that has taken place over
the last several years.

Their early actions on the Crandall mine in the first few hours are
called into question, especially when you had the owner, Mr. Murray,
handing out information to the press that was of questionable value or
accuracy or truthfulness. MSHA, in this sense, is supposed to take over
the release of information.

There was a lot of questions here by a lot of different parties. That is
essentially why we need this authority. We are down to, as Mr. McKeon
pointed out, a limited number of people, but we believe they are
important. My investigators tell me they are important, and they are not
at this point willing to cooperate.

The [Chairwoman.]{.underline} Mr. McGovern.

Mr. [McGovern.]{.underline} I am losing my voice, so I want to be very
brief here.

I just want to say for the Record that I trust you both to use this very
wisely, and I think all of us are interested in the same thing; that is,
getting to the truth and getting some semblance of justice and trying to
make sure these things don\'t happen again in the future. I expect you
will work with us and you will also work with the Department of Labor.
As was mentioned, this is not unprecedented. In this particular case, it
is limited to a single investigation.

I agree with Chairman Slaughter and Ranking Member Dreier when I say I
think you have both worked together in a cooperative way to craft a
carefully worded statute that I think strikes the right balance. I just
want to say thank you for your cooperation and for a commitment that is
reasonable.

Thank you.

The [Chairwoman.]{.underline} Mr. Dreier.

Mr. [Dreier.]{.underline} Thank you very much, Madam Chairman.

Thanks, as everyone said, to both of you, for working hard on this. I
will say that, again, you can say this is not precedent setting, but it
is ‑‑ but it has been granted in the past Congresses. We did it again on
the opening day rules, the opening day rules package for the Government
Reform Committee.

I am, as Mr. McKeon pointed out in his statement, concerned about this,
I guess I would ask both of you the following question. You both
referred to the fact that the other has been cooperative in this
process.

Do you, Mr. McKeon, feel as if you were cooperative in being willing to
say, at the committee level, the notion of subpoenaing any of these five
witnesses about whom you have spoken to come before the committee and
provide answers to the very tough questions that obviously are out
there, did you in any way stand in the way of the committee\'s ability
to do just that?

I say that because it seems to me, as you said in your statement, the
tools are already there. I understand that deposing someone is different
from having testified before a hearing, I understand that. But these
questions are out there. I think most of us know what they are. Everyone
here has raised them.

I clearly have more than a few myself as we all followed that horror.
But I wonder if you do feel that you were going to do everything that
you possibly could to ensure that the committee would have had the able
to do exactly what this measure that we are dealing with here is
designed to address.

Mr. [McKeon.]{.underline} A word on the minority, we don\'t select the
witnesses. Generally, if there are more witnesses, we get one. So all we
get on a regular hearing is the opportunity to submit the name for a
witness.

Mr. [Dreier.]{.underline} Well, on this you certainly would have. I
mean, I think you both agree, you just said, George, these four or five
witnesses are the people in question here who may for some reason feel
the prospect is threatening or they fear some sort of retribution.

Mr. [McKeon.]{.underline} Not by us.

Mr. [Dreier.]{.underline} No, no, no, obviously within their community
in some way.

Mr. [Miller.]{.underline} There has been no issue here about the
hearings. We have had a hearing on this. We have been working together.
There is no issue here.

You have people who don\'t want to cooperate at this level. I could
subpoena them and bring them before the committee, but it may not be
terribly helpful in the sense that their information may be preliminary
to another part of the investigation. Some of this is technical. Some
people only want to come under a subpoena, with all due respect. They
say you want me, subpoena me. I am not coming voluntarily because I work
here, I work there, fine.

But a lot of that, if you were trying to manage it with 27 members of
the committee asking questions at the same time, it is really not very
good for the witness. And it is not very good in terms of drilling down
on the particular evidence that you are looking for to fill in the
puzzle.

That is why this is done. That is why it is done at the depositional
stage because it may not be information that you can get out if every
member has 5 minutes to ask a question on whatever comes into their
mind.

Mr. [Dreier.]{.underline} Let me just say that is clearly part of the
legislative process. There is no question, there is no committee in this
institution that for the nearly three decades I have been privileged to
serve here does as good a job at that than the Energy and Commerce
Committee.

John Dingell and that team, without this authority, regularly ‑‑ I
remember in the 1980s when he as chairman of the Investigations and
Oversight Subcommittee there went very, very diligently at more than a
few witnesses.

Mr. [Miller.]{.underline} Mr. Dreier, we can do it. It is a choice. I am
chairman of the committee. In my meetings with the investigative staff
who have long, long experience in these kinds of complex investigations,
they have made a determination. We have talked it over. I think they are
right.

I have gone through complex investigations, did the Exxon Valdez. It
took a very, very long time. In fact, there, because everything was put
out in the hearing, it did destroy the legal case.

In fact, members of the minority took information from our conversation
on the floor and put them into the Congressional Record.

I am very aware of the ability to sabotage hearings and how careful you
have to be. I think this allows us to get the information at a level out
of the public eye so people can talk to us, tell us what is on their
mind, and we can, as Mr. McKeon said, we can protect the other parallel
investigations that are taking place at the same time. That is all.

Mr. [Dreier.]{.underline} I hope you appreciate ‑‑ I am just looking at
the institution and the fact that this has never been done before in the
110th Congress.

Mr. [Miller.]{.underline} We gave authority to Mr. Hoekstra to do the
Teamsters investigation in our committee because you had the same
problem. There are people there that said I ain\'t coming forward to
talk to you guys, you know, subpoena me.

Mr. [Dreier.]{.underline} But a concern that I have is just the notion
of our continuing to do this, since it has been done, you know, first,
as I say in an opening day rules package and here.

Mr. [Miller.]{.underline} I disagree with you, I disagree. I think this
is absolutely critical. I think every committee that has this kind of
authority that you have over these programs, this is part of separation
of powers, this is a part of the authority of the Congress to be able to
do its job.

Mr. [Dreier.]{.underline} I am doing all I possibly can to ensure
oversight.

Mr. [Miller.]{.underline} That is not the discussion here tonight.

Mr. [Dreier.]{.underline} Thank you, Madam Chairman.

Mr. [Miller.]{.underline} I think to have depositional subpoena power is
critical to the stages of the investigation.

The [Chairwoman.]{.underline} I am sure that is why we are here, Mr.
Miller.

Mr. Hastings.

Mr. [Hastings of Florida.]{.underline} Thank you very much, Madam
Chairman.

The courts have repeatedly held that Congress has investigatory
prerogatives. The thing that is inherent in this particular measure, as
offered, is the transparency and the minority participation.

When Mr. McKeon decided on a very critical matter dealing with Oliver
North what he may not be privy to and there were other investigations
that were conducted, incidentally, I happened to have served when a very
similar deposition was put forward with reference to the Iran‑Bosnia
hearings which have been on the dustbin that nobody bothered to review.

So this isn\'t as precedent setting, as my friend from California
suggests, as it is Congress pursuing its prerogative.

That said, the only thing that I would ask of you particularly, Mr.
Miller, is what potential national policy outcomes, further
investigation in this specific case, do you see? Otherwise, the
conflicts, the parallels, the question that I literally subscribe to
that you addressed, I think, appropriately. As my colleague, Mr.
McGovern said, obviously we have great confidence in you and Mr. McKeon
to protect matters.

One of the things that has not been said here is there are families who
expect it of the Labor Department. I might add, they would, if I know
correctly, take a very long time to come to some conclusions. There
obviously are potential litigation circumstances, particularly civil. I
don\'t know about any criminal investigation, but Congress\' prerogative
should not be precluded.

What do you see as some kind of national policy outcome from this, Mr.
Miller, and that would be my only question? Thank you, Madam Chairman.

Mr. [Miller.]{.underline} I would say that one of the questions that is
sort of central to this is we see energy prices continuing to increase,
coal that was left in the ground at one time has now become valuable.
Where you made a decision that it was unsafe to mine this coal when oil
was \$30 a barrel, at \$100 a barrel this coal looks pretty valuable.

The national policy implications for the miners and their families and
for the owners of these mines is under what conditions and how would you
approve these mines?

I mean, people willingly walked out of these mines and they said it was
too dangerous. We are closing the mine here and went looking for another
property to mine.

Price changed all of that. It does so in the oil and gas business, too.
You reopen wells that you didn\'t think were worth much 5 years ago, and
you are pumping oil today. This has ramifications because people have to
go into these arrangements.

We have had a series of hearings where we have been looking at safety
procedures and survival procedures and all the rest of that. It is very
contentious. This is a pretty independent mining industry, and they like
doing business the way they have been doing it.

But clearly change came on with the Miner Act of last year. We have
additional legislation proposed for this year. The whole idea of retreat
mining really wasn\'t on the scale until the price of energy went up so
high.

But how that is done, and a central question has been raised on what was
the approval of these plans and who provided for that approval, was it
done in regular order, and were there a series of questions that should
have been asked and were they, in fact, asked.

I don\'t know the answer to that, but I know that it has been focused
and clearly in the public also. Those issues clearly have been raised in
our hearings.

There are serious implications for this because this is an activity, as
I said, that would have been abandoned in a different energy situation.

Mr. [Hastings of Florida.]{.underline} Thank you very much for your
answer. Thank you.

The [Chairwoman.]{.underline} Mr. Hastings.

Mr. [Hastings of Washington.]{.underline} Thank you, Madam Chairman.

As I listen to your testimony here and what you are trying to
accomplish, I certainly sense that there is bipartisan effort to try to
find out and get to the bottom of what happened there. It sounds to me,
at least on Mr. McKeon\'s testimony, that at least the rules and
regulations that you have set up, how you are going to proceed will be
fair. All of that process seems pretty good, which I congratulate you
both on.

But there is one area where it seems like there hasn\'t been
correspondence, and I would ask both of you to respond to that, and that
is how many people will be deposed. Mr. McKeon said he wasn\'t sure.
After talking to staff it was four or five.

This seems to me that this is something that has broader national or
broader interest within the bipartisan Education Committee. Why would
that part not be something that would be discussed in a bipartisan way
so that you could agree on who should be coming to testify and why
wouldn\'t the minority, prior to coming here, know who you want to ‑‑

Mr. [Miller.]{.underline} We don\'t know where this testimony is going
to take us. That is the nature of these investigations. We don\'t know.
We think we are down to a handful of people that this might apply to. I
think in fact in some cases it may be when they find out we have the
authority they may come. I don\'t know, but I am not going to limit it
to that because that is illegal.

We will notify and discuss the witnesses and set up the procedures as is
outlined in the rule change and with the approval of the resolution. But
I don\'t know.

Mr. [Hastings of Washington.]{.underline} That echoes the heart of my
question, and maybe you have answered it, and I don\'t want to put words
in your mouth, I hope I understood what you said correctly, but you have
gotten down ‑‑ I understand you don\'t know where investigations will go
until you ask a question. That may be something else prompts some other
questions.

I guess where you have some broad agreement before, why would not the
minority know at least who you are thinking about talking about? That is
my question.

Mr. [Miller.]{.underline} We are conducting ‑‑ I am responsible for this
investigation. I am conducting it in a fashion that I think is fair. As
we also know that there are parallel investigations going on, we are
talking to those investigators in those other agencies. In some cases,
they may want to take a crack at a person before we do, but we still
want them for a different reason. That is not helpful to our case to
have or to the investigation, I should say, not to the case, to the
investigation, to have that discussed.

Mr. [Hastings of Washington.]{.underline} Mr. McKeon.

Mr. [McKeon.]{.underline} Our whole purpose in this ‑‑ we did pass the
Miner Act last year, it has a 3‑year implementation, and we are only 18
months into that. Now we passed, at least in the House, this other
mining safety bill, which we see could have some potential problems, and
now we are getting more involved in this investigation.

My whole hope on this is that we can really find out what happened
there, that this isn\'t just ‑‑ and I don\'t think it is. I hope I am
not also putting words into people\'s mouths. This is not just a
political witch hunt. I haven\'t seen that, and I think the real purpose
on both sides is to find out what really happened and if somebody was at
fault to bring them to justice.

My concern is that you have been a judge. You know a lot more about
that. I am not an attorney. I just know there is a risk out there of
doing damage to a potential case. I have talked to enough people
associated with mining and with this accident that I think there was, I
think there is some problem.

Mr. [Miller.]{.underline} If I might, let me just say something. We have
had a series of accidents in this country, and for whatever reasons
those accidents weren\'t very thoroughly investigated either in this
Congress or otherwise when they took place.

I have gone to West Virginia, I have gone to Kentucky, and I have met
with the families of the miners who were killed and we have had them
here in Washington, D.C. They were not allowed to come and testify about
their loss or what they knew about the investigations in those earlier
accidents.

I just made a flat‑out commitment to those families that on my watch
that will never happen again. This investigation is part of that, and we
are going to find out what happened at Crandall Canyon, and we are going
to find out what happened at those other mines. This is a tool that I am
asking you to put in our quiver.

We will use it sparingly, properly and responsibly. But I can\'t have
the investigation that those families deserve without this.

Any of us who have been involved in litigation in any form, this is just
fundamental. This is just fundamental. I don\'t need governmental
agencies asking our questions. This committee doesn\'t need somebody
else asking our questions, and that is just that fundamental with me.

I have watched these families over the last couple of years and that
agony and when they couldn\'t get answers from the government, from the
Congress or from anybody else. It is just not going to be that way on my
watch.

Mr. [Hastings of Washington.]{.underline} Last thing, just to clarify
because you said this is Crandall Canyon and others, but this is just
narrowly drafted.

Mr. [Miller.]{.underline} This is just Crandall Canyon. The others are a
different type of investigation and much more time has passed. It is
different, but I am just saying, those aren\'t unfinished on our agenda
either.

Mr. [Hastings of Washington.]{.underline} You implied they will be
looked at.

Mr. [Miller.]{.underline} No, this applies just to this investigation.

Mr. [Hastings of Washington.]{.underline} The others will be done under
regular order then presumably?

Mr. [Miller.]{.underline} Yes.

Mr. [Hastings of Washington.]{.underline} Thank you.

The [Chairwoman.]{.underline} Ms. Matsui.

Ms. [Matsui.]{.underline} Thank you, Madam Chairman.

I just want to follow up on your comments, Mr. Miller. I noted that
there were several mining accidents this year, quite a few, in fact, I
realize this is narrowly prescribed. I believe that, and I understand
Department of Labor has its investigation, MSHA certainly has, but we
have an oversight responsibility.

We have constituents, we represent the people. I believe it is our role
to have this responsibility. Things have happened, and we know that. We
can\'t exactly pin the responsibility at this point in time.

I think this is very necessary. My understanding is that you have issued
subpoenas and information was not forthcoming, particularly with perhaps
Mr. Murray. So, therefore, I believe the deposition authority is very,
very necessary.

I also understand that we have to be careful, and it seems to me that
this particular committee, because of its history of working together,
will make sure that this is narrowly prescribed. In essence, I think you
said, Mr. McKeon, and maybe Mr. Miller also, that, in essence, you have
looked at this. You probably understand where you need to go right now
with witnesses. Perhaps you need to depose, but you are not sure yet.

I think a lot of this happens to be a tool that is necessary because
there are people who do not want to speak in public and would rather
speak in private, but they also need to be subpoenaed to do that, too. I
think this is a very necessary tool. I believe the way it has been
organized and put together here is the proper way to go.

I thank you both very much. I believe that this authority is very
necessary.

Thank you.

The [Chairwoman.]{.underline} Mr. Sessions.

Mr. [Sessions.]{.underline} Thank you, Madam Chairman.

Mr. McKeon, I am reading your testimony that you have here, and I find
it interesting that one says that there is no shortage in the number and
scope of these inquiries that is taking place already by the Federal
Government and the State of Utah, top of page 2.

What I am saying is lots of people are dealing with this.

Mr. McKeon, would you anticipate at any point your committee would gain
knowledge into or seek information which would change the behavior of
this from becoming an investigation into a criminal investigation?

Mr. [McKeon.]{.underline} I don\'t know. I think there is information
that we don\'t have. I think that is what the chairman is trying to get.

I don\'t understand if there are other investigations going on, if there
are criminal investigations.

Mr. [Miller.]{.underline} Yes. I don\'t want to comment on that, because
I don\'t know where MSHA\'s investigations are taking them, where the
State of Utah, the attorney general there is taking them. I really
don\'t know that, and I don\'t want to speculate on people who have been
called to testify.

Mr. [Sessions.]{.underline} Chairman, I would like to ask you then at
any point do you intend to delve into the difference between criminal
investigation and oversight? Do you understand the difference between
criminal investigation and oversight?

Mr. [Miller.]{.underline} Yes, I think I do.

Mr. [Sessions.]{.underline} Do you mind discussing that with us? You
said you didn\'t want too get into it.

Mr. [Miller.]{.underline} I have conducted oversight this year on the
Reading First program. We have recommended to the Justice Department
that they take action.

I think we just had another investigation on boot camps where a young
person died in a boot camp, and it was not properly investigated. The
FBI has now taken that again under a criminal investigation. There is a
point at which we say ‑‑

Mr. [Sessions.]{.underline} So it is a certain point.

Mr. [Miller.]{.underline} Well, let me finish the answer. There is a
point at which we make a decision that this now has moved beyond us. And
we send our material, our evidence, our letter of transmittal, our
reasons why to, in this case, I should say the Justice Department, for
their action.

Mr. [Sessions.]{.underline} Okay. Do you believe that in any way, and I
know we have had some conversations here about precedent‑setting
circumstances, that this is going to lead us into getting into things
that happened in colleges where there are shootings or Columbines or
things like that?

Mr. [Miller.]{.underline} I have no way of knowing that.

Mr. [Sessions.]{.underline} You have no way of knowing that.

Mr. [Miller.]{.underline} I am sorry, I don\'t know if you were here. I
happen to believe ‑‑ I don\'t want to get trapped here.

I happen to believe that this authority resides under these kinds of
conditions between the majority and minority in committees of
jurisdiction, with legislative jurisdiction over these programs. I just
think that is part of our oversight. The Congress hasn\'t done that. I
respect that, and that is why we are here.

Mr. [Sessions.]{.underline} This Member, notwithstanding what any other
Member thinks, this Member believes it is true what was said here, there
is no shortage in the number and scope of inquiries, that if the
Department of Labor, State of Utah are engaged in this issue, and that I
would really prefer to have the committee, just maybe myself, to be able
to offer some evaluation as a result of professionals who would go in
and look at and do their own investigation and then for you to grill
those people after they have completed their investigation. That would
be my own personal take on this.

I believe there is a sense that I have ‑‑ a sense that I have that there
may be some criminal element that is engaged here, not just mine safety,
rather willful misconduct or other things which could take place.

I think the committee is ill prepared, not only that it lacks the
jurisdiction, in my opinion, to even accurately see the bigger picture
in that.

So my point would be I would like to see you not do that. Let them go
and investigate it. Once it is all over go grill whoever you would like
to go grill. I think, in my opinion, we are not a professional
organization that is prepared to understand criminal law.

I yield back.

The [Chairwoman.]{.underline} Thank you.

Mr. Cardoza.

Mr. [Cardoza.]{.underline} I don\'t have any questions.

The [Chairwoman.]{.underline} Mr. Welch.

Mr. [Welch.]{.underline} I have no questions, but I certainly support
the use of the committee having the tools it needs to the oversight and
the Congress to do what the Congress has the ability to do.

The [Chairwoman.]{.underline} Ms. Castor.

Ms. [Castor.]{.underline} I want to thank you gentlemen, with all of the
items on your agenda, all of the national policies, the Education and
Labor initiatives, your landmark college aid package you passed this
year. For you to say we are not going to give up on this investigation
is an important commitment to these families and to the American people
who really want you to get to the bottom of this terrible tragedy at the
mine.

I thought the memo from Mr. Halstead was very well written. Of course
the memo recognizes, of course, as I do, the preponderance of authority
and expansion of the Congress and the oversight, and that includes the
ability of the committees to conduct depositions and, of course, issue
subpoenas.

I thought the memo was very thoughtful and did detail that since 1974
this has been done at least 10 times. So I support the rule change and
wish you luck with the investigation.

The [Chairwoman.]{.underline} Mr. Arcuri.

Mr. [Arcuri.]{.underline} Thank you.

Gentlemen, thank you very much for being here. I think that you are
actually right to be delving into this area. I mean, most prosecutors
welcome other agencies looking into issues. I mean, all they hope for is
that the other agency recognized the fact that there is the possibility
that there may be criminal investigation as well.

Certainly, I think you can\'t abdicate our responsibility as Congress of
looking into something, because, frankly no criminal agency, no criminal
office, no prosecutor\'s office, no criminal agency may look into this.
Then the people who look into this, the people who may have done
something improper will not receive the thorough review that is so
needed by this.

So I think from a prosecutorial, a prosecution perspective, your actions
are welcome.

Mr. [Miller.]{.underline} I would just say, that is an interesting point
you just raised. We did an investigation of these boot camps where kids
are taken out and sort of given some form of tough love, but it is a
real problem. A young person died, wasn\'t a resident of the State,
wasn\'t a resident of the county. The corporation was from another
State, the State had no laws.

They looked at that and they said this person died of natural causes.
When the GAO went in and looked, and the Inspector General went in and
looked at the autopsy and the amount of abuse this young person
received, they said, no, that is not what happened here.

Now that is under a full criminal investigation because nobody else
really had any stake in the game, tragically so. For a considerable
period of time, it was just a closed case, and that has changed. That
would not have happened without this investigation.

Mr. [Arcuri.]{.underline} I will take it a step further. I think by
doing what you are doing you are actually aiding potential prosecutions,
if, again, that is what is necessary ‑‑ because you will be doing fact
finding, you will be uncovering, perhaps, issues that may not otherwise
get uncovered and eventually get you a prosecutor. It will be very
beneficial. So I say that.

The second point I wanted to make that I think is important, obviously,
in terms of doing depositions, anybody can do a deposition. The problem
with doing a good deposition is that you need to have expertise into the
background of what\'s going on. Clearly, your committee has that
expertise.

You know, there is no substitute for being able to know that a person
you are asking a question of is not telling you the truth or not giving
you all the facts clearly. Your committee coming down around and being
part of the jurisdiction is clearly beneficial in terms of looking into
it. I think that you doing it in this limited area is really putting the
first team in and essentially basically helping us get to the bottom of
it.

So I commend it. I support it, and I thank you both for your
consideration.

The [Chairwoman.]{.underline} Ms. Sutton.

Ms. [Sutton.]{.underline} Thank you, Madam Chairman. I wholeheartedly
support what you are doing, briefing, regulations have been pulled back.
This Congress has a distinct, a distinct responsibility to provide
accountability and oversight so that we can prevent this from happening
ever again.

Mr. [Miller.]{.underline} Thank you.

The [Chairwoman.]{.underline} I thank you both. This is very personal to
me as well. I was born in the coal fields of Kentucky.

I think the most distressing thing I heard here was that family members
of mine victims had not been allowed to testify. I hope that wasn\'t
because benefits were not tied to that. That really is an appalling
thing which I would like to know about.

If this leads to criminal charges, so be it. People die here in a mine
where they may not have needed to be in the first place.

I thank you very much. I think after 12 years of no investigation in
this House people are afraid of it. Wherever it leads, it should be
done.

Mr. [Miller.]{.underline} I think Mr. McKeon and I are both committed to
the idea that we want to get to the end of this story. He has been very
supportive of this effort. I don\'t want my passion to suggest that
somehow people haven\'t been cooperative. This has all gone very well to
date.

The [Chairwoman.]{.underline} Yes, indeed, thank you.

Mr. [Miller.]{.underline} Thank you.

The [Chairwoman.]{.underline} You are welcome. Now I am happy to call
T.J. Halstead, Legislative Attorney of Congressional Research.

Without objection, Mr. Halstead, your full statement will appear in the
Record, and we will welcome your summary, if you will give us one.
Thanks for being here.

**STATEMENT OF T. J. HALSTEAD, LEGISLATIVE ATTORNEY, CONGRESSIONAL
RESEARCH SERVICE**

Mr. [Halstead.]{.underline} Thank you, Members of the committee. I thank
you for inviting me to testify today regarding the committee\'s
consideration of H.Res. 836, which would imbue, as you heard, the House
Committee on Education and Labor with the authority to adopt a rule
authorizing and regulating the taking of depositions by a member or
counsel of the Committee on Education and Labor relating to the
committee\'s ongoing investigation into the tragedy that occurred last
August at the Crandall Canyon Mine.

The mechanics of deposition practice are similar in the judicial,
executive, and legislative context, but I think it is essential to
analyze the vesting of staff deposition authority in relation to point
constitutional authority that Congress possesses in the oversight
context.

A long line of Supreme Court precedent establishes Congress\' power to
engage in oversight and investigation of any matter related to its
legislative function, to the extent that it is unremarkable, I think, to
state that the Supreme Court has held conclusively that congressional
and investigatory power is so essential that it is implicit in the
general vesting of legislative power in the Congress.

Viewed in light of that expansive power, I don\'t think there is any
discernible basis upon which it can be successfully argued that Congress
lacks the ability to authorize staff depositions.

I think this conclusion is supported by the fact that deposition
authority has factored prominently in an increasing number of
significant congressional investigations since the Watergate era. For
instance, in a report accompanying a 1997 resolution granting deposition
authority to the Committee on Government Reform and Oversight, this
committee observed that the House had granted deposition authority in at
least 10 major investigations since 1974.

I have laid this information out more specifically in my prepared
statement, but there are several additional stamps dating from the 1970s
to today where deposition authority has been granted pursuant to Senate
and House resolution ‑‑

Ms. [Castor.]{.underline} Would the gentleman yield for just one moment?
Did I misspeak? Was it the Government and Oversight Reform Committee?

Mr. [Halstead.]{.underline} No. For instance, in 1977 ‑‑ that I
referenced in my paper, that was pertaining to a specific investigation
regarding campaign finance, campaign finance improprieties in the report
accompanying the resolution that this committee passed granting that
authority to the House Government Oversight and Reform Committee. The
report noted at least 10 instances where authority had been given as a
general matter.

The [Chairwoman.]{.underline} It was part of the packet?

[RPTS JOHNSON\
DCMN ROSEN]{.underline}\
\[3:00 p.m.\]

Mr. [Halstead.]{.underline} And there are, again, numerous additional
examples where that authority has been granted pursuant to either a
Senate or a House Resolution. This authority has been extended in the
current Congress, for instance, to the Senate Committee on Homeland
Security and Governmental Affairs, as well as to the House Committee on
Oversight and Government Reform. And as Congressman Dreier alerted
earlier, that is a bit of a distinction there because it is a general
authority vested in the Oversight Committee that had not been done
previously. And as you well know, the resolution before the committee
today would simply extend the House Oversight Committee\'s deposition
authority to the Committee on Education and Labor with the restriction
that it be applied specifically to the Crandall Canyon investigation.

In light of those factors, I think it is evident that there is ample
support for the proposition that Congress may delegate this deposition
authority to its committees and staff. But as has been mentioned
earlier, the committee may also wish to consider practical and legal
factors that may affect the exercise of deposition authority. It has
been argued in the past that staff depositions may circumvent the
traditional committee process that consists of hearings and informal
interviews, and can impact the rights of deponents and restrict the role
of the minority in the investigative process.

Furthermore, to the extent that the current proposal contemplates
inquiries into the administration of relevant laws by government
agencies, including the Department of Labor and the Mine Safety and
Health Administration, executive agencies may raise legal,
constitutional, and policy objections to the attendance of agency
officials at those depositions. However, in many instances depositions
can serve as a desirable alternative to a hearing, since they can enable
a committee to obtain information that it needs quickly and
confidentially, and without the logistical constraints that often impede
robust oversight activity in the traditional hearing context. This
factor ameliorates the burden imposed by conducting field hearings that
require the presence of members, and may be of particular utility in the
current scenario given the logistical and investigative difficulties
imposed by conducting a traditional hearing‑based Congressional
oversight inquiry into a mine disaster in the State of Utah. Finally,
the efficacy of the staff deposition process appears to have been
enhanced by congressional action taken over the past 10 years that
emphasizes that criminal sanctions pertaining to the obstruction of a
congressional investigation into the making of false statements applied
during the taking of depositions.

Ultimately, the House\'s action on this issue will necessarily hinge
upon a determination as to whether the potential benefits of vesting
staff deposition authority in the committee outweigh the perceived risks
to traditional oversight practice.

Madam Chairman, I will conclude my statement there. The Congressional
Research Service stands ready to assist the committee in its
consideration of any of these issues, and I would be happy to answer any
questions that you or the members of the committee may have.

\[The statement of Mr. Halstead follows:\]\
\
\*\*\*\*\*\*\*\* COMMITTEE INSERT \*\*\*\*\*\*\*\*

The [Chairwoman.]{.underline} Thank you, Mr. Halstead. That was very
helpful. I appreciate it very much, and the efforts and time you put in
to come here today.

Mr. [Halstead.]{.underline} My pleasure.

The [Chairwoman.]{.underline} Mr. McGovern.

Mr. [McGovern.]{.underline} I, too, would like to say thank you for your
very comprehensive statement. If I am understanding your statement
correctly here, there is nothing that we are doing here that is
unprecedented. The courts have ruled that this authority does, in fact,
appropriately rest with Congress in certain cases, and that nothing we
are doing here is threatening or undermining the institution. And so the
case that Mr. Miller has made, and I think, you know, which I find is a
compelling case, in my opinion, justifies us supporting this resolution.
And I thank you very much.

Mr. [Halstead.]{.underline} You are welcome.

The [Chairwoman.]{.underline} Mr. Hastings?

Mr. [Hastings of Washington.]{.underline} Thank you, Madam Chair, and
thank you, Mr. Halstead, for being here. Just, first did I hear or
understand in your testimony that this authority was first vested to the
Congress and ultimately sustained by the courts in the Watergate
hearings?

Mr. [Halstead.]{.underline} Well, it is beginning in the Watergate era
that you see an increasing utilization of this mechanism. There is
actually no record when it was first employed. We have not been able to
identify that. There is a long history, particularly in internal
administrative matters of the Congress, of deposition authority being
utilized.

Mr. [Hastings of Washington.]{.underline} I just wanted to get a sense
because I don\'t think there is any argument, frankly on any side, that
this authority does not exist within the Congress. The question is as a
matter of degree and how that is used. And my friend from Massachusetts
said that there is nothing unprecedented about this. And I would just
ask the question to say is there any precedent in the past that you
could find where deposition authority was given carte blanche to a
committee in the standing rules of the House?

Mr. [Halstead.]{.underline} That has been a recent development with the
110th Congress.

Mr. [Hastings of Washington.]{.underline} So there is no precedent
before the 110th Congress?

Mr. [Halstead.]{.underline} Right. To my knowledge from my research has
not revealed a prior instance where the type of authority that the House
Committee on Oversight and Government Reform and the Senate Committee on
Homeland Security and Governmental Affairs now possess by virtue ‑‑

The [Chairwoman.]{.underline} Would the gentleman yield?

Mr. [Hastings of Washington.]{.underline} I would be happy to yield.

The [Chairwoman.]{.underline} I probably misunderstood what you said. My
understanding was you said that was not an unprecedented act, and had
been given to other committees in the rules package.

Mr. [Halstead.]{.underline} Oh, I am sorry. No, generally speaking, they
are ad hoc resolutions that are committed ‑‑

The [Chairwoman.]{.underline} As needed.

Mr. [Halstead.]{.underline} ‑‑ as needed. There are, however, examples
on the Senate side, I believe, of the Permanent Select Committee on
Intelligence and the Senate Committee on Aging that have had
long‑standing staff deposition authority. It is not specifically
referenced in the rules package itself, but it has been I believe for
the Committee on Aging it was first adopted in the 70s, late 1977, \'78.
And they do exercise that authority to this day.

The [Chairwoman.]{.underline} Thank you. I did misunderstand. Thank you
for yielding, Mr. Hastings.

Mr. [Hastings of Washington.]{.underline} You are welcome. I just wanted
to make the point nobody really argues that CRS can\'t go back and find
out specifically when it started, but if the escalation was
post‑Watergate it would only be logical, I guess, to assume that if it
were done in the standing committees before that would be easier to
find. So this ‑‑ we really are setting a precedent, have set a precedent
in this Congress by giving at least one standing committee that
authority in the House rules.

Mr. [Halstead.]{.underline} I would say with regard to the House of
Representatives that is ‑‑

Mr. [Hastings of Washington.]{.underline} That is all we are worrying
about. Sometimes we reference the other body and sometimes not in nice
ways, so I am only focusing on what I am saying here on the House of
Representatives. Okay. Well, I again, the concern that we have, part of
the concern we have is that we are glad this is focused as narrowly as
the ranking member has suggested, but we have a little bit of a caution
on how it is being used, given the precedent in this Congress of
establishing that for a standing committee. So I thank you for
clarifying that.

Mr. [Halstead.]{.underline} You are quite welcome.

The [Chairwoman.]{.underline} Ms. Matsui.

Ms. [Matsui.]{.underline} Thank you, Madam Chair. I have no questions. I
just want to thank you very much for testifying.

Mr. [Halstead.]{.underline} Thank you.

The [Chairwoman.]{.underline} Mr. Sessions?

Mr. [Sessions.]{.underline} Thank you, Madam Chairman. Mr. Halstead,
thank you so much for your comprehensive brief and you being here with
us today. Mr. Halstead, have civil lawsuits been struck in this case?

Mr. [Halstead.]{.underline} I am sorry, regarding ‑‑

Mr. [Sessions.]{.underline} Are there civil lawsuits that exist in this
case?

Mr. [Halstead.]{.underline} Pertaining to the mine investigation?

Mr. [Sessions.]{.underline} Yes.

Mr. [Halstead.]{.underline} As I say, I am not privy to the mine
investigation itself. I am focusing specifically on the institutional
issues of staff deposition authority. So I would have to plead ignorance
on that point.

Mr. [Sessions.]{.underline} Has this extensive, comprehensive brief that
you have done and this background investigation, has there ever been a
circumstance where it dealt with where Congress decided to get in what I
would say pretty up front, as opposed to behind, receiving information
from others that may do an investigation, but not out on‑site, just of
the people who ‑‑ the investigators where there was a civil lawsuit
involved?

Mr. [Halstead.]{.underline} Again, not to my knowledge. But I would be
happy to do some follow‑up research to try to identify. It wouldn\'t
surprise me if that would be the case, but I am not aware off the top of
my head of that being of any particular instance.

Mr. [Sessions.]{.underline} The documents that might be yielded as a
result of this investigation, is there any privacy related to those, or
are all of those just open to anyone who would want to see them ‑‑

Mr. [Halstead.]{.underline} Well, Congress itself can ensure a degree of
privacy should it in its negotiation in the receipt of testimony.

Mr. [Sessions.]{.underline} ‑‑ should it choose to?

Mr. [Halstead.]{.underline} Uh‑huh.

Mr. [Sessions.]{.underline} But there is no real ‑‑ is there any ‑‑

Mr. [Halstead.]{.underline} Not that I am aware of as a prophylactic
matter.

Mr. [Sessions.]{.underline} Typically speaking, where there are
interviews that would take place by let us say a congressional
investigator, are those typically available to people?

Mr. [Halstead.]{.underline} It is really something that is done on an ad
hoc basis. The House Committee on Oversight and Government Reform, for
instance, on their Web site, has made available a deposition that they
conducted, I believe, in June of 2007 with an official from, I believe
the Executive Office of the President. I am drawing a blank on the name.
It may be Julie Stone, something of that nature. So it has been done on
occasion, but there are certainly many instances where the information
would not be released.

Mr. [Sessions.]{.underline} In your comprehensive analysis, have you
discovered any sort of a code of ethics that would be required for on an
investigation by an oversight committee in this case, oversight, as it
related to discussions with other legal counsel, for instance, perhaps
someone that filed a civil lawsuit where they would or would not be
included in or receive information? Or is there a code of ethics related
to the investigators? Or can they talk to the media, can they talk to
anybody that is perhaps considering a lawsuit or ‑‑

Mr. [Halstead.]{.underline} As a fundamental matter, the authority that
has been given to the House Committee on Oversight and Government Reform
under rule 10 and that will be extended in the Committee on Education
and Labor is limited to the taking of depositions by members and staff
that are counsel. So by incorporation that would extend for committee
staff who are counsel, they would be fully covered by the bar rules of
their particular State.

Mr. [Sessions.]{.underline} In this case, would they be under a court?
Because all lawyers are, wherever they are licensed, they are part of a
court, responsible to a court. Is there any responsibility under their
legal duties, these lawyers, to be under the jurisdiction, supervision
or adherence to any court structure, in this case I assume which would
be Utah?

Mr. [Halstead.]{.underline} It would raise an interesting question,
actually, as to whether or not the State of Utah would consider the
staff depositions being conducted at that locus to qualify as the
practice of law in the State of Utah. I would think as a fundamental
matter the interpretation that would prevail would be that a state level
restriction of that nature could not serve to trump a congressional
investigation.

Mr. [Sessions.]{.underline} In this case, would you assume that a
Federal district court that might have jurisdiction would at some point
have jurisdiction, or are we under our constitutional duties of the
first branch of government immune to that?

Mr. [Halstead.]{.underline} Yeah, I would be ‑‑ I think it would be
exceptional for a court to try to involve itself in a congressional
investigation.

Mr. [Sessions.]{.underline} So in other words, a court might, if they
felt some need to become engaged, they would simply look at our rules
and make sure we followed our rules, the internal ethical standards or
procedures that had been established.

Mr. [Halstead.]{.underline} Potentially. I would be hard pressed to
conceive of a situation that would arise where something of that nature
would become justiciable.

Mr. [Sessions.]{.underline} I could think of one real quickly. And that
is that you have civil lawsuits that have been filed and civil people
went and talked to the lawyers about the investigation.

Mr. [Halstead.]{.underline} Yeah, there is certainly ‑‑

Mr. [Sessions.]{.underline} I can do that in half a second. I am
surprised that you didn\'t think of that.

Mr. [Halstead.]{.underline} No, there are numerous instances that can
arise as a practical matter regarding the impact the congressional
investigation can have, both on civil lawsuits and certainly on criminal
investigations as well. Congress, should it so desire, can essentially
destroy a criminal investigation through the granting of immunity.

Mr. [Sessions.]{.underline} Right. As has been stated. So you believe
then that inasmuch as the application of this to the committee, that we
would be giving two lawyers, which is a higher standard in my opinion,
and I think you would say that, too, because you have been versed in the
law as opposed to investigation, that you would understand a tight set
of circumstances by which you are operating to gain information to offer
immunity, to do those kinds of things as opposed to a wide open game. So
you think we would go out with those careful set of understandings about
what we were trying to do.

Mr. [Halstead.]{.underline} Yeah, I think that the committee staff are
certainly professional staff, and certainly Congress itself can monitor
to ensure that they are behaving and operating in an appropriate
fashion.

Mr. [Sessions.]{.underline} Okay. I guess the last question I have is,
is there any responsibility to ask for or share in information that
would be considered criminal that would be outside the scope of what you
think they would be granted?

Mr. [Halstead.]{.underline} Under this resolution?

Mr. [Sessions.]{.underline} Yes.

Mr. [Halstead.]{.underline} No, I don\'t see any limitation that would
prevent them from inquiring to that end.

Mr. [Sessions.]{.underline} So in other words it is not, you are saying
it is not a well‑crafted, careful, cautious, well‑understood. You are
saying they have full authority to branch out. However, they would be
lawyers and bound by whatever.

Mr. [Halstead.]{.underline} Right. And that would be similar not in the
staff deposition context, but, for instance, with regard to Chairman
Burton\'s investigation into misconduct of the Boston FBI field office.
That was another example of a congressional investigation ‑‑

Mr. [Sessions.]{.underline} Is that where the FBI had ‑‑

Mr. [Halstead.]{.underline} Yes.

Mr. [Sessions.]{.underline} ‑‑ lied to and coerced ‑‑

Mr. [Halstead.]{.underline} Right. I believe that led to the first
invocation of executive privilege by the Bush administration, that was
then ultimately withdrawn.

Mr. [Sessions.]{.underline} Yes.

Mr. [Halstead.]{.underline} But certainly there is always that
potential. And it is incumbent upon entities that are engaged in these
type of investigations to operate in a responsible fashion.

Mr. [Sessions.]{.underline} I want to thank you for being here today and
for taking your time. And I appreciate the gentlewoman\'s extended time
to me.

Mr. [Halstead.]{.underline} You are quite welcome.

The [Chairwoman.]{.underline} Mr. Welch?

Mr. [Welch.]{.underline} No questions, thank you.

Ms. [Castor.]{.underline} No questions, thank you.

The [Chairwoman.]{.underline} Mr. Arcuri?

Mr. [Arcuri.]{.underline} Just a couple questions. One is the actions
that the Congress will be taking would in no way violate any double
jeopardy problems in Utah. Is that correct?

Mr. [Halstead.]{.underline} I would be hard pressed, again, to really
conceive of that. You know, Congress\'s power again in this context is
quite expansive.

Mr. [Arcuri.]{.underline} This person would be able to be tried for any
criminal matter in the State of Utah. There would be no double jeopardy
problems as a result of the hearings that are going on. Is that correct?

Mr. [Halstead.]{.underline} I wouldn\'t think so.

Mr. [Arcuri.]{.underline} And there is no authority here to give
Congress any conferral of immunity authority or make any conferral of
immunity.

Mr. [Halstead.]{.underline} Not within this particular resolution. There
are standards in place at a general level that apply to the granting of
immunity.

Mr. [Arcuri.]{.underline} Right. It would be use immunity, though,
right? Which means the person would still be able to be prosecuted?

Mr. [Halstead.]{.underline} That would be one of the options available,
certainly.

Mr. [Arcuri.]{.underline} Thank you. Nothing further.

Ms. [Sutton.]{.underline} I have no questions, thank you.

The [Chairwoman.]{.underline} Mr. Halstead, we thank you very much for
your time and for your statement. It was very helpful to us.

Mr. [Halstead.]{.underline} Thank you. You are quite welcome.

The [Chairwoman.]{.underline} That will end the hearing portion of this
matter. We will proceed to the original jurisdictional markup of H.Res.
836, and the Chair will be in receipt of a motion.

Mr. [McGovern.]{.underline} Madam Chair, I move that the committee
favorably report House Resolution 836, granting the authority provided
under clause 4(c)(3) of rule 10 of the Rules of the House of
Representatives to the Committee on Education and Labor for purposes of
its investigation into the deaths of nine individuals that occurred at
the Crandall Canyon mine near Huntington, Utah.

The [Chairwoman.]{.underline} Thank you, Mr. McGovern. You have heard
the motion of the gentleman from Massachusetts. Are there any
amendments?

Mr. [Dreier.]{.underline} Madam Chair, I would just like to ask Mr.
McGovern to repeat the motion and read it a little more loudly.

The [Chairwoman.]{.underline} Mr. McGovern is indisposed somewhat.

Mr. [Dreier.]{.underline} That is the reason I asked.

The [Chairwoman.]{.underline} Can he pass to me?

Mr. [Dreier.]{.underline} That is good. We have no amendments, Madam
Chair.

The [Chairwoman.]{.underline} In that case we will proceed to the
question. All in favor say aye. Aye. All opposed, no. In the opinion of
the Chair the ayes have it. It will be carried for the majority by me.

Mr. [Dreier.]{.underline} And Madam Chair, I am scheduled to do this,
and I would like to state for the record we do have minority views that
we would like to have incorporated.

The [Chairwoman.]{.underline} Absolutely. Without objection. The Rules
Committee stands adjourned. Thank you all very much.

\[Whereupon, at 3:17 p.m., the committee was adjourned.\]

[CONTENTS]{.underline}\
\
[STATEMENT OF:]{.underline} [PAGE]{.underline}

HON. GEORGE MILLER, A REPRESENTATIVE IN\
CONGRESS FROM THE STATE OF CALIFORNIA

8

HON. HOWARD McKEON, A REPRESENTATIVE IN\
CONGRESS FROM THE STATE OF CALIFORNIA

12

T. J. HALSTEAD, LEGISLATIVE ATTORNEY, CONGRESSIONAL RESEARCH SERVICE

43