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OBSTRUCTION OF JUSTICE: DOES THE JUSTICE

DEPARTMENT HAVE TO RESPOND TO A LAWFULLY ISSUED AND VALID CONGRESSIONAL

SUBPOENA?

HEARING

BEFORE THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

JUNE 13, 2011

Serial No. 112–61

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.house.gov/reform

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

DARRELL E. ISSA, California, Chairman

DAN BURTON, Indiana

JOHN L. MICA, Florida

TODD RUSSELL PLATTS, Pennsylvania

MICHAEL R. TURNER, Ohio

PATRICK T. MCHENRY, North Carolina

JIM JORDAN, Ohio

JASON CHAFFETZ, Utah

CONNIE MACK, Florida

TIM WALBERG, Michigan

JAMES LANKFORD, Oklahoma

JUSTIN AMASH, Michigan

ANN MARIE BUERKLE, New York

PAUL A. GOSAR, Arizona

RAU ́ L R. LABRADOR, Idaho

PATRICK MEEHAN, Pennsylvania

SCOTT DESJARLAIS, Tennessee

JOE WALSH, Illinois

TREY GOWDY, South Carolina

DENNIS A. ROSS, Florida

FRANK C. GUINTA, New Hampshire

BLAKE FARENTHOLD, Texas

MIKE KELLY, Pennsylvania

ELIJAH E. CUMMINGS, Maryland, Ranking

Minority Member

EDOLPHUS TOWNS, New York

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, District of

Columbia

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

DANNY K. DAVIS, Illinois

BRUCE L. BRALEY, Iowa

PETER WELCH, Vermont

JOHN A. YARMUTH, Kentucky

CHRISTOPHER S. MURPHY, Connecticut

JACKIE SPEIER, California

LAWRENCE J. BRADY, Staff Director

JOHN D. CUADERES, Deputy Staff Director

ROBERT BORDEN, General Counsel

LINDA A. GOOD, Chief Clerk

DAVID RAPALLO, Minority Staff Director

(III)

C O N T E N T S

Page

Hearing held on June 13, 2011 ............................................................................... 1

Statement of:

Rosenberg, Morton, fellow, the Constitution Project; Todd B. Tatelman,

legislative attorney, American Law Division, Congressional Research

Service; Louis Fisher, scholar in residence, the Constitution Project;

and Charles Tiefer, Commissioner, Commission on Wartime Contracting .......................................................................................................... 8

Fisher, Louis .............................................................................................. 44

Rosenberg, Morton .................................................................................... 8

Tatelman, Todd B. ..................................................................................... 28

Tiefer, Charles ........................................................................................... 56

Letters, statements, etc., submitted for the record by:

Cummings, Hon. Elijah E., a Representative in Congress from the State

of Maryland, prepared statement of ............................................................ 6

Fisher, Louis, scholar in residence, the Constitution Project, prepared

statement of ................................................................................................... 46

Issa, Hon. Darrell E., a Representative in Congress from the State of

California, prepared statement of the Department of Justice .................. 91

Rosenberg, Morton, fellow, the Constitution Project, prepared statement

of ..................................................................................................................... 11

Tatelman, Todd B., legislative attorney, American Law Division, Congressional Research Service, prepared statement of ......................................... 31

Tiefer, Charles, Commissioner, Commission on Wartime Contracting, prepared statement of ........................................................................................ 58

(1)

OBSTRUCTION OF JUSTICE: DOES THE JUSTICE DEPARTMENT HAVE TO RESPOND TO

A LAWFULLY ISSUED AND VALID CONGRESSIONAL SUBPOENA?

MONDAY, JUNE 13, 2011

HOUSE OF REPRESENTATIVES,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The committee met, pursuant to notice, at 1 p.m., in room 2154,

Rayburn House Office Building, Hon. Darrell E. Issa (chairman of

the committee) presiding.

Present: Representatives Issa, Chaffetz, Lankford, Amash,

Buerkle, Cummings, and Connolly.

Staff present: Michael R. Bebeau, assistant clerk; Richard A.

Beutel, senior counsel; Robert Borden, general counsel; Molly Boyl,

parliamentarian; Lawrence J. Brady, staff director; Steve Castor,

chief counsel, investigations; John Cuaderes, deputy staff director;

Carlton Davis, Jean Humbrecht, Jessica L. Laux, and Jonathan J.

Skladany, counsels; Adam P. Fromm, director of Member services

and committee operations; Justin LoFranco, deputy director of digital strategy; Mark D. Marin, senior professional staff member;

Ashok M. Pinto, deputy chief counsel, investigations; Laura L.

Rush, deputy chief clerk; Rebecca Watkins, press secretary; Ashley

Etienne, minority director of communications; Jennifer Hoffman,

minority press secretary; Carla Hultberg, minority chief clerk; Justin Kim, Donald Sherman, and Carlos Uriarte, minority counsels;

Chris Knauer, minority senior investigator; Lucinda Lessley, minority policy director; Leah Perry, minority chief oversight counsel;

Dave Rapallo, minority staff director; and Susanne Sachsman

Grooms, minority chief counsel.

Chairman ISSA. The committee will come to order.

Today’s hearing is on, ‘‘Obstruction of Justice: Does the Justice

Department Have to Respond to a Lawfully Issued and Valid Congressional Subpoena?’’

The Oversight Committee mission statement is: We exist to secure two fundamental principles. First, Americans have a right to

know that the money Washington takes from them is well-spent.

And, second, Americans deserve an efficient, effective government

that works for them. Our duty on the Oversight and Government

Reform Committee is to protect these rights. Our solemn responsibility is to hold government accountable to taxpayers, because taxpayers have a right to know what they get from their government.

We will work tirelessly, in partnership with citizen watchdogs, to

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deliver the facts to the American people and bring genuine reform

to the bureaucracy.

Today’s hearing, in specific, is on the question of the powers and

execution between the co-equal branches of government and the

constitutional role of Congress to maintain a check on the executive

branch.

As the principal investigative committee of the U.S. House of

Representatives, this committee serves to protect the right of the

American people to know what their government is doing. The compulsory authority of this committee is an essential tool of transparency and accountability of the Federal bureaucracy. Without it,

the executive branch would be free from any oversight, shielded

from the vigilant eye of the American people and their elected representatives, and prone to more waste, more fraud, and more abuse

than the Nation has ever seen.

No administration, not the last one I served under nor this one,

likes congressional oversight. And we often are accused of doing it

for partisan reasons or because of a particular administration. For

the most part, we do it because administrations come and go but

the bureaucracy goes on and outlasts any President and any Cabinet officer.

Every administration needs oversight. This administration has

had more money and more challenges to deal with that are fiscal

in nature than most. However, the checks and balances on the Constitution are, to a great extent, what we are dealing with here

today.

The administration has not yet come to recognize the role that

this committee plays in preserving the rule of law, eliminating

waste and fraud and abuse in the Federal Government. The U.S.

Supreme Court has long held that the power of the Congress to

conduct the investigations is inherent in the legislative process.

Moreover, the Court has recognized that this power is broad.

Since first learning of the controversial program Operation Fast

and Furious, I have worked closely with Senator Chuck Grassley

to get to the bottom of the strategy by the Federal Bureau of Alcohol, Tobacco, and Firearms to allow heavy-duty arms to traffic into

the hands of Mexican drug cartels. ATF field agents opposed this

reckless program, which has been responsible for the deaths of innocent civilians in Mexico and even responsible for the death of a

40-year-old Border Patrol agent named Brian Terry.

Together with Senator Grassley, I have sent 16 letters to Department of Justice and ATF requesting information on this program.

After giving the administration enough time to respond to a formal

request, it has become clear that the compulsory process was needed. On March 31st, I authorized a subpoena for material documents needed to conduct thorough investigations into this matter.

To date, the administration has provided only a handful of documents, all of which—I repeat, all of which—were already publicly

available on the Internet, while withholding those that provide real

answers.

Our committee was asked whether we would come for an in-camera interview—or, in-camera observation of additional documents.

We went, only to find out that those documents were so redacted

as to be useless, even for in-camera review.

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Since that time, as many as 31 Democratic Members of Congress

have expressed their serious concerns about the administration’s

response to this committee’s investigation. These Members noted

that ‘‘the American people deserve prompt and complete answers to

the questions surrounding this operation.’’ Moreover, these Democratic Members do not believe that the DOJ investigation should

‘‘curtail the ability of Congress to fulfill its oversight duties.’’

Today’s hearing is not—I repeat, not—about the facts of the Fast

and Furious program. On Wednesday, the committee will have

ample opportunity to hear about the program and how it has affected the lives of people living on both sides of our shared Mexican

border. Rather, today’s hearing is about a constitutional question:

It is about whether the administration is legally bound to respond

to a lawfully issued and valid congressional subpoena.

To obstruct a congressional investigation in this way is a serious

matter. This is not the first administration to flirt with this breach

of the public trust, and it will probably not be the last. But on our

watch—and this is our watch—this Congress will not shrink from

its constitutional responsibility and this committee will leverage

every power at its disposal to enforce the rule of law.

Today’s witnesses will help the committee as we wade through

the constitutional waters, and I look forward to a vigorous debate

among our Members.

I might note that this hearing is one of the most important because it may in fact be the one that sets the course for whether

we work together on a bipartisan fashion to do our constitutional

obligations of oversight.

With that, I recognize the ranking member for his opening statement.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

And I welcome our panel of distinguished witnesses.

And we have a valuable opportunity today to examine not only

Congress’ authority to conduct investigations but also the historical

precedent of committees in exercising that authority.

Today’s hearing is being held in the broader context of investigations currently being conducted by two different branches of government. On one hand, the Department of Justice is prosecuting

dozens of individuals in Federal court, including defendants accused of murdering Border Patrol Agent Brian Terry in Arizona on

December the 14th, as well as 20 other defendants indicted for firearms trafficking and other crimes involving international drug cartels. On the other hand, in March, this committee launched an investigation into allegations that mismanagement and abuse in ATF

gun-trafficking investigations may have enabled some of the same

crimes.

The allegations made to date are very troubling, and new information we obtained raises additional concerns about the role of

various actors involved in these incidents. I believe that the executive branch and Congress can and must achieve both of these objectives. The Department’s interest in prosecuting these crimes and

the committee’s interest in investigating the management of ATF

programs are not—and I repeat, are not—mutually exclusively.

I am particularly mindful that Agent Terry’s family has lost

someone they held very dear. They deserve not only for the killers

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and gun traffickers to be brought to justice after the fact, but they

also deserve direct and straightforward answers from their government about whether more could have been done to prevent his

murder.

To answer the question posed by the title of today’s hearing,

yes—and I repeat, yes—I do believe the Department must respond

to the committee’s subpoena, even though it was issued unilaterally

without committee debate only 15 days after the chairman’s original request for documents. I believe this committee has both the

authority and the ability to play a constructive role in investigating

these matters.

But there is a second question the hearing title should have

posed: Does the committee have an obligation—and I want the witnesses to listen to me carefully—to proceed responsibly to avoid irreparable damage to ongoing prosecutions? Again, I believe the answer to that question is ‘‘yes.’’

Historically, Congress has taken great care to ensure that its investigations do not harm ongoing criminal cases. In most instances,

committees have tailored the scope of their inquiries to avoid impairing open cases. Committees have been meticulous in providing

the Department with opportunities to warn them if information

they obtain is under seal, relates to grand-jury information, identifies cooperating witnesses, may endanger someone’s safety, or

would impair ongoing criminal investigations if released publicly.

And I hope the witnesses will address that question also.

No member of this committee wants to risk compromising criminal prosecutions involving alleged murderers and gun traffickers

for international drug cartels. That is why these types of reasonable accommodations protect not only the integrity of the criminal

investigation but the integrity of the committee. Reckless disclosures could complicate a trial and cast a cloud over the committee’s

current and future investigations. I believe that both the executive

branch and Congress have an obligation to help the other achieve

their constitutional responsibilities rather than manufacturing unnecessary conflict.

For the benefit of our witnesses, let me note that the Department

has now asserted executive privilege—has not asserted executive

privilege to withhold documents to date. It has produced or made

available for review more than 1,300 pages, some public and some

not.

The Department and the committee have agreed on search terms

for electronic searches of responsive e-mails, which are now being

conducted for 19 officials approved by our committee staff. Last

week, the committee conducted a 6-hour interview of the special

agent in charge of ATF’s Phoenix office, and we have scheduled an

interview of his supervisor, the ATF deputy assistant director.

These actions demonstrate good faith.

At the same time, the Department has expressed serious and legitimate concerns about the scope of the documents encompassed

by Chairman Issa’s subpoena, including records that identify individuals who are assisting in the investigation, that identify sources

and investigative techniques, that present risks to individuals’ safety, and that prematurely inform subjects and targets about our inVerDate 17-JUN-2003 17:08 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70820.TXT KATIE PsN: KATIE
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vestigation in a matter that permits them to evade and obstruct

our prosecutorial efforts.

Finally, it is in this area that the committee stands to benefit

most from the expertise of our witnesses. I look forward to hearing

about the ways other committees have conducted their investigations to obtain the information they needed while accommodating

the Department’s legitimate interests.

And I trust that our panelists will not only address the first

question but address the second question, too, that I just posed.

Thank you.

Thank you, Mr. Chairman.

[The prepared statement of Hon. Elijah E. Cummings follows:]

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Chairman ISSA. I thank the ranking member.

All Members will have 7 days to submit opening statements and

extraneous material for the record.

We now recognize our panel of witnesses.

Mr. Morton Rosenberg is a fellow at The Constitution Project

here in Washington, DC.

Mr. Todd Tatelman is a legislative attorney in the Congressional

Research Service American Law Division. He is certainly someone

we rely on constantly.

Mr. Louis Fisher is a specialist in constitutional law at the Law

Library of the Library of Congress.

I am sorry. Mr. Fisher, did I get something wrong?

Mr. FISHER. Yeah, I retired about a year ago. I am with The Constitution Project also.

Chairman ISSA. OK, you are with The Constitution Project. But

your tenure at the Library of Congress is also appreciated, even if

slightly in the rearview mirror.

And Professor Charles Tiefer is a Commissioner serving on the

Commission on Wartime Contracting, along with our former member, Mr. Shays, I gather.

Gentlemen, you will all have 5 minutes each, plus or minus, and

then we will have a round of questioning.

Pursuant to the committee rules, all witnesses here are to be

sworn. Would you please rise to take the oath and raise your right

hands?

[Witnesses sworn.]

Mr. ISSA. Let the record reflect that all witnesses answered in

the affirmative.

Again, we don’t have an extremely busy dais here, although we

may have many more Members flying in in the next few minutes.

So try to summarize your written statements in 5 minutes. Understand that your entire written statement will be put into the

record.

We first recognize Mr. Rosenberg for 5 minutes.

STATEMENTS OF MORTON ROSENBERG, FELLOW, THE CONSTITUTION PROJECT; TODD B. TATELMAN, LEGISLATIVE ATTORNEY, AMERICAN LAW DIVISION, CONGRESSIONAL RESEARCH SERVICE; LOUIS FISHER, SCHOLAR IN RESIDENCE,

THE CONSTITUTION PROJECT; AND CHARLES TIEFER, COMMISSIONER, COMMISSION ON WARTIME CONTRACTING

STATEMENT OF MORTON ROSENBERG

Mr. ROSENBERG. Mr. Chairman, members of the committee, I

want to thank you for affording me the opportunity of appearing

here today to talk about these important and interesting issues.

A little over 9 years ago, I appeared here with my friend and fellow panelist, Charles Tiefer, when this committee was successfully

investigating the bizarre cover-up of over 20 murders by informants with the knowledge of their FBI handlers and the likely acquiescence of their FBI and Department of Justice superiors. That

case, to get into Mr. Cummings’ question, involved open investigations that were going on at that particular time.

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Charles remarked to me before today’s hearing that the committee could have saved a lot of time and effort by playing a video

of the 2002 hearing. But, as I will briefly detail, though our conclusions with respect to what we found in 2002 are the same—that

law and history require the Justice Department to comply with

your lawfully issued and valid subpoenas—there are differences

here that need to be thought about and perhaps addressed.

I have a sense that is expressed by—I am sorry—that was expressed by Conan Doyle’s Sherlock Holmes in ‘‘The Hound of the

Baskervilles’’ that there is a dog here that has not yet barked.

When I first began working in this area in the mid-1970’s, the

mere threat of a subpoena was usually sufficient to get compliance.

The only exception was when the target was a Cabinet-level official, and that tended to require a subpoena followed by a threat of

a contempt citation and, sometimes, a subcommittee vote on contempt.

When the executive pushback began in the early 1970’s, the investigative world changed. A subpoena became virtually always

necessary, and threats and actual votes of subpoenas were frequent

and were countered by direct executive claims of Presidential privilege. By 2008, there had been 12 votes of contempt against Cabinet-level officials, 3 by votes in the full House.

All ultimately resulted in substantial and complete compliance

with congressional informational demands, and all relied on the established caselaw on investigative authority, starting with

McGrain v. Daugherty, which dealt with the Justice Department,

and Sinclair v. The United States, which also dealt with the important question—and settled the important question, I think—that

an ongoing Department of Justice trial doesn’t stop Congress from

getting witnesses to talk.

But the true key to those successes was evidenced in the will of

those investigating committees—an aspect of inquiry that may be

severely tested in this and in future investigations. One of the differences that I have alluded to is that, in 2002, the President expressly asserted executive privilege. But the rationale given for invoking the privilege then was exactly the same as is now being

urged by DOJ: the longstanding policy of the Department that it

never shares information with congressional committees about

open or closed, criminal or civil litigation or investigations because

either it would undermine the independence and effectiveness of its

law enforcement mission; damage by pre-trial publicity; reveal

identities of informants; disclosing government strategies, methods,

and operational weaknesses; chilling the exercise of prosecutorial

discretion by DOJ attorneys; and, most important, interfering with

the President’s constitutional duty to faithfully execute the laws.

To me, that is the same dress with a different coat. They are setting up a possible claim that is very interesting. But I will get to

that. That is the dog.

A second difference is that the law respecting executive privilege,

and more particularly the Presidential communications privilege,

has dramatically changed over the last 15 or 20 years. As I indicated in my written testimony, the Supreme Court’s 1988 ruling in

Morrison v. Olson cast a significant doubt as to whether prosecuVerDate 17-JUN-2003 17:08 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70820.TXT KATIE PsN: KATIE
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torial discretion was a core Presidential power over which executive

privilege may be asserted.

And that doubt was magnified by two D.C. Court of Appeals

opinions dealing with Espy and Judicial Watch in 1997 and 2004.

Taken together with previous High Court decisions, it is now the

law of the circuit most likely to rule on privilege disputes that an

assertion of Presidential communications privilege will be held to

be limited to the quintessential power and nondelegation of Presidential power, and those are the core functions in the Constitution.

And one of the core functions is not prosecutorial discretion.

The third difference emanates from the important 2008 District

Court ruling in House Judiciary Committee v. Miers. That case

arose out of the removal and replacement of nine U.S. attorneys in

2006. White House Counsel Harriet Miers and Chief of Staff Josh

Bolton were subpoenaed by the committee for testimony and documents, but, at the direction of the President, they refused to comply and were ordered not to even appear on the return date, on the

ground that the claim of privilege by the President gave them absolute immunity from committee process.

Both were held in contempt of Congress, but the Attorney General ordered the U.S. attorney not to present the citation to a grand

jury, as is required by the congressional contempt statute. By resolution of this House, the committee filed a civil enforcement action.

The Department of Justice contested the validity of the authorizing

resolution and defended the notion of absolute immunity. The court

upheld the validity of the authorizing resolution, finding that the

longstanding Supreme Court recognition of implied power to investigate and to compel production of information included an implied

cause of action to redress the institutional injury caused by the

depravation of the information that was being sought. It also rejected out of hand the absolute immunity claim of the President.

The Miers case, I believe, is the dog that hasn’t barked. It is a

two-edged sword. While it recognizes the House’s right to seek judicial assistance to vindicate its constitutionally based institutional

right to secure information from the Executive and refutes the notion that the President can cloak a subordinate official with absolute immunity from the compulsory process, it leaves open the door

for Executive judicialization of the congressional subpoena enforcement power.

Current DOJ dogma is that it is unconstitutional for either house

of Congress to use the criminal contempt statute or the inherent

contempt power to punish Presidential appointees for following

Presidential orders to withhold information from Congress.

DOJ currently has the potential power to string out your investigation, to refuse to obey it, and then, when the time for contempt

comes, can say, ‘‘No, you can’t go to court for criminal contempt;

you can’t use inherent contempt power. All you can do is to bring

a civil action.’’ And a civil action will extend and delay your constitutional ability to enforce what the caselaw and what the many

examples that we have shown, you know, in our papers about your

powers.

[The prepared statement of Mr. Rosenberg follows:]

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Chairman ISSA. Thank you.

Mr. Tatelman.

STATEMENT OF TODD B. TATELMAN

Mr. TATELMAN. Thank you, Mr. Chairman and Ranking Member

Cummings. I appreciate the opportunity for CRS to be invited here

to testify. And, on behalf of that institution, we thank you for all

of the work that you do for us, and we hope that we can continue

to be of service to the committee as we move forward.

Like my colleague, or former colleague, Mort Rosenberg, I want

to focus a little bit more on sort of the traditional history and sort

of lay the groundwork for the congressional prerogative here and

the constitutional basis for the power that the committee is asserting to exercise.

It is important to note—and I think that all of our written testimonies do so note—that there is a long and consistent practice of

legislative oversight of the other branches of government, be they

either executive branches or, in some cases, judicial branch in oversight of the courts. That history goes all the way back to the British Parliament and rights of the Parliament against the Crown. It

was confirmed and further practiced by the various colonial legislatures in the pre-constitutional era. The early Congresses made absolutely no hesitation—and I will go through an example here in

a moment—about their ability to conduct extensive inquiry and

oversight into actions of the executive branch.

State courts and, ultimately, the U.S. Supreme Court have consistently and overwhelmingly affirmed Congress’ constitutional authority to conduct almost exclusive oversight of the executive

branch, broad oversight of private persons and parties, and investigations into any and all areas in which Congress feels there is a

legitimate legislative purpose.

Probably the best and most persuasive example that I can find

for you is, in fact, Congress’ own actions early on during the constitutional era. Back in 1792, the Second Congress instituted an investigation and started an inquiry to determine the cause of more

than a thousand American casualties in the Ohio Valley at the

hand of some Indian tribes, involving the actions of Major General

Arthur St. Clair and his military exploits in that era.

Initially after Congress found out about the issue, there was a

motion on the floor of the House of Representatives to pass a resolution calling for the President or the executive branch to conduct

the inquiry into St. Clair’s defeat all on its own. This was completely rejected by a floor vote on the House of 35 to 21.

A second motion was subsequently filed to create a select committee of Members of the House of Representatives and to vest that

committee with the power to call for all persons, papers, and

records as may be necessary to assist the committee in its inquiries. This resolution passed 44 to 10, with luminaries such as James

Madison both voting against the Presidential investigation and for

the formation of a congressional select committee.

What is even more interesting, however, and more of note and

relevant here is the response that they got from the executive

branch, which also included many Framers and Founders who had

been present at the Constitutional Convention, including President

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Washington and then-Secretary of the Treasury Alexander Hamilton. According to notes from Thomas Jefferson, after the committee was formed and sent its inquiry to Secretary of War Henry

Knox asking for the Presidential papers related to St. Clair’s expedition, the Cabinet met in President Washington’s study and

agreed that the House had a legitimate right and interest in both

conducting the inquiry and in requesting the papers and documents.

They also agreed that the information should be given over to the

Congress unless there would be injury to the public, and absent a

showing of that injury to the public, the documents were to be disclosed. And, in fact, several days later, Mr. Knox made the documents available to the committee.

I think what is most relevant and important about this early example is not only the participation of those who helped draft the

founding documents that attorneys and specialists in the Constitution like this panel are currently interpreting today, but also the

consistency with which all of the people, whether they be in the

Congress or in the executive branch, viewed the House’s prerogative to both create the committee of inquiry, demand the papers,

and receive them from the executive branch, who obviously had a

vested interest in performing its own investigation of the events

that had occurred.

I want to briefly jump forward about 200 years, or a little less

than 200 years, to McGrain v. Daugherty, which is, as Mort mentioned, the seminal case that sets forth the Supreme Court’s opinion of Congress’ oversight and investigatory power. Now, as most

of you probably are aware, McGrain v. Daugherty was ultimately

a spinoff of what was then the Teapot Dome investigation into the

oil leases that the executive branch was engaged in. Specifically, it

was an investigation into then-Attorney General Daugherty’s failure to prosecute and bring certain causes of action against various

people who had participated in that scandal.

There was a committee subpoena to one Mally Daugherty, who

was the Attorney General’s brother. He was located in Ohio as

president of a bank out there. He ultimately was subpoenaed both

to appear before the Senate and testify as well as to provide

records and papers. He refused and remained in Ohio. The Congress passed a resolution issuing a warrant for his arrest and that

he be brought before the bar of the Senate for an inherent contempt trial.

When he was arrested in Ohio, he immediately applied for a writ

of habeas corpus from a district court in Cincinnati. That writ was

granted and subsequently appealed by the U.S. Government to the

Supreme Court. The Supreme Court reversed unanimously and described, as Chairman Issa quoted, the power of inquiry of Congress

as, ‘‘an essential and appropriate auxiliary to the legislative function.’’

McGrain’s rationale and theory has been picked up and cited extensively by Supreme Courts since then. Courts such as the Supreme Court in Watkins v. The United States said, ‘‘The power of

Congress to conduct investigations is inherent in the legislative

process. That power is broad. It encompasses inquiries concerning

30

the administration of existing laws as well as proposed or possibly

needed statutes.’’

Moreover, in 1975, the Supreme Court in a case called Eastland

v. United States Servicemen’s Fund, again relying on the precedent

set by McGrain and ultimately Sinclair and Watkins, said, ‘‘The

scope of Congress’ power of inquiry is as penetrating, as far-reaching as the power to enact and appropriate funds under the Constitution.’’

In sum, Mr. Chairman and Mr. Ranking Member, there is very

little question that Congress’ constitutional authority vested under

Article I is sufficiently broad to encompass the inquiry that the

committee is trying to seek. That is not to say, however, that Congress’ power is unlimited or not subject to certain constraints. The

question really is whether or not any of those constraints are legally based or politically based.

Legally based constraints would include, say, for example, the

power not to conduct unlawful searches and seizures, or require

that people at the direction of this House, such as the Capitol Police or the Sergeant at Arms, engage in violations of the Fourth

Amendment. Another example would be compelling witness testimony when it might be contrary to their Fifth Amendment rights

against self-incrimination. And yet a third legal possibility would

be a legitimate and valid claim of Executive privilege, or Presidential communications privilege, which the Court in United States

v. Nixon in 1973 recognized as constitutionally based.

On the other side of that coin are the concerns Ranking Member

Cummings raised, which I term as ‘‘political,’’ which is not to say

they are illegitimate, but meaning they are not legally or constitutionally based, which gets into questions such as whether or not

this is a responsible course of action or whether or not the committee has any sort of an interest in seeing the prosecution successfully completed or not interfering with the Justice Department’s internal investigations or processes.

Those are completely legitimate questions for this committee to

consider, but they are ultimately for this committee to determine

whether or not they are proper or proper exercises of this committee’s power. The Constitution makes no such limitations or restrictions and places no such limitations or requirements that Congress

overcome those. Merely, those are left for the political branches to

negotiate and work out amongst themselves.

And, with that, I will turn it over to my panelists.

[The prepared statement of Mr. Tatelman follows:]

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Chairman ISSA. Thank you.

Mr. Fisher.

STATEMENT OF LOUIS FISHER

Mr. FISHER. Thank you very much. It is a very important hearing to explore this.

When committees ask for documents from the administration,

they are typically told initially that you can’t have them; it is part

of the ‘‘deliberative process,’’ it is part of the ‘‘active litigation file,’’

it has do with either pending or ongoing investigations. That is just

the opening statement by the administration. And, as you know, at

that time it all falls back to the committee as to how determined

you are of your understanding of your constitutional duties.

I refer in my statement to a study in 1949 by an attorney who

worked at the Justice Department who said that when Congress

and the administration collide, the administration prevails every

time. Of course, that wasn’t true in 1949 or before or after. It is

much more complicated, and you have to have each branch understand its limits and each understand its duties.

I think a much better explanation of what Congress can get

through its constitutional duties comes from another attorney who

worked at the Justice Department, and his name, Antonin Scalia.

And he testified in 1975 before a Senate committee, and at that

time he was the head of the Office of Legal Counsel. And he said—

and I think his words are quite good—that when there is an impasse between the two branches—his language—the answer is likely to lie in the hurly burly, the give and take of the political process

between the legislative and executive. Then he said, when it comes

to an impasse, the Congress has the means at its disposal to have

its will prevail.

Now, on these clashes, it may be tempting to think that there is

a winner and a loser. I think when Congress does not push its constitutional powers and gets the document it needs for a thorough

investigation that there is a loser, and the loser is the public, its

constitutional government, and the system of checks and balances.

In 1982, President Reagan, I think, set a good framework for

these document fights. He said, ‘‘Historically, good-faith negotiations between Congress and the executive branch have minimized

the need for invoking executive privilege. And this tradition of accommodation should continue as the primary means of resolving

conflicts between the branches.’’

At present time, you have a subpoena, and, as you said in your

opening statement, a subpoena is not satisfied when you have to

have committee staff travel to the Justice Department to sit in

camera and look at documents that are heavily redacted. There is

no way the committee can satisfy its constitutional duties.

In 1981, Attorney General William French Smith said that, when

Congress is going after documents, it has a better chance of getting

it when it is pursuant to legislation rather than pursuant to oversight. I don’t think there is anything to that distinction at all. You

have as much right to oversee the laws as you do to enact them.

And if there is anything to that distinction, every time you do an

oversight hearing you could just introduce legislation. So it doesn’t

make any sense to me.

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As far as getting access to documents in cases of ongoing criminal investigations, Mort talked about the FBI corruption case that

was on that. My statement goes into a good deal of detail into the

Inslaw matter—again, active criminal investigations, and Congress

got the documents it needed.

Finally, your success in getting documents I think depends a lot

on bipartisan support. A committee acting in a bipartisan manner

is much stronger. In this case, I think it is even stronger when the

two chambers of Congress are after the same documents.

If you do not get the documents you want, there is always the

next step, after subpoena is not satisfied, to go toward contempt.

And my statement gives a lot of examples where that has come

about in the past. And through the contempt procedure, Congress

can get the information it needs to satisfy its constitutional duties.

Thank you very much.

[The prepared statement of Mr. Fisher follows:]

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Chairman ISSA. Thank you.

Professor Tiefer.

STATEMENT OF CHARLES TIEFER

Mr. TIEFER. Thank you, Mr. Chairman and ranking minority

member.

For 15 years, I was counsel to Congress—4 years as assistant

Senate legal counsel and 11 years as deputy general counsel and

general counsel in the House of Representatives. During that time,

I worked on a very large number of investigations like this of the

Justice Department or of enforcement agencies, and I reviewed the

extensive history that my colleagues at the panel have talked

about. I want to briefly point out the similarities of those instances

before focusing on today.

In 2002, as Mort Rosenberg has described, I gave full-length

written and oral testimony to this committee about a similar issue

during the Bush administration involving an FBI informant program. And, as was laid out in my full-length memo at that time,

which I am including as an appendix to my testimony today, this

showed that this particular committee has the full right to obtain

the documents it needs for oversight over enforcement programs,

then FBI, today ATF.

In 1992, I worked with a House subcommittee investigating the

Rocky Flats matter. That was a grand-jury matter. And the same

extreme arguments made by the Justice Department, that Congress can’t go anywhere near grand-jury investigations, were raised

then, and the committee succeeded, nevertheless, in getting the evidence that it sought.

In 1987, I was special deputy chief counsel on the House IranContra Committee. And I want to point out some similarities of the

arguments raised today and then, points that were correctly raised

by Mr. Cummings—and I will talk about the two sides, both that

these are not arguments that disable the committee from going

ahead, merely that call for it to follow an orderly process, as it is

following today and as it should follow down the road.

Were there cooperating witnesses at that time who were called

before congressional committees after deliberation? Yes. Robert

McFarlane, former national security advisor, a co-conspirator of

Oliver North and John Poindexter, who were the key defendants,

was called and questioned, even with the risk that would create

lines of his testimony that could be used to say, ‘‘Look, he is saying

one thing in one place and a different things another place.’’

Was there a possibility that the congressional investigation could

endanger ongoing investigations or could complicate the trial? Absolutely. Oliver North was called as a witness. John Poindexter

was called as a witness. They were shown the documents that

would be used against them. They were shown the most persuasive

arguments and most persuasive questions, the most persuasive

things that could be used to show that they had engaged in illegal

conspiracy. And, in a way, they got a preliminary view of what the

trial would consist for them.

I would say that doesn’t mean one drives roughshod over the

Justice Department. One starts, as this committee is doing today

and as its predecessors have done, as I have testified—and, for that

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matter, 30 years ago when I was just starting in this business, I

came to a House subcommittee and heard people who are the age

that I am now talk about Watergate and the struggles they had

had during Watergate with getting evidence. So it is a live progression. It is not just in books up on the shelf with dust on them. It

is live committee chairmen dealing with real issues like the ones

you have today.

What is the way the Justice Department should make its points?

Well, first of all, it should provide most of the important documents. It doesn’t start by withholding; it starts by providing.

Second, for anything that it doesn’t deliver right off the bat, it

should issue an invitation for them to be viewed by Members and

staff. I heard the chairman describe that an inadequate invitation

had been made, heavily redacted documents under circumstances

that couldn’t be viewed. That is not the right way to proceed.

And, finally, if they do say, ‘‘We are going to withhold some documents because they are highly prejudicial in a concrete way to an

open case,’’ then they have to provide a privilege log so that the

committee, itself, can decide what should be withheld. I might say

that, during the recent litigation over the U.S. attorneys’ terminations in the previous administration, one of the arguments that

prevailed in court on behalf of the congressional inquiry was that

the administration had not provided that privilege log. A document-withholding claim is not valid unless a privilege log is provided.

And I thank the committee.

[The prepared statement of Mr. Tiefer follows:]

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Chairman ISSA. Thank you.

And I recognize myself for 5 minutes to get started here.

Professor Tiefer, you mentioned Ollie North and Iran-Contra. In

Iran-Contra, Ollie North was a participant in the Iran-Contra and

ultimately was charged, convicted, and then overturned, to a certain extent because of congressional activity, meaning we, the Congress, granted some partial immunity; that immunity led to a decision that the inevitable discovery wasn’t met, that discovery was

based on, if you will, his testimony.

Is that roughly your understanding?

Mr. TIEFER. That is well-stated, Mr. Chairman.

Chairman ISSA. So this would be a classic example of what we

have to avoid. We must avoid providing immunity to somebody that

we believe is guilty of a crime unless we understand right off the

bat that immunity is essential to further discovery and that this

individual is, by definition, not the perpetrator. The worst thing to

do is to get the kingpin and let them off. And I am not trying to

disparage Colonel North, but it does appear as though he was, to

a great extent, at the center, ultimately the target, and he got off.

Well, to that extent, let’s get to the current case, even though all

of you were talking in great terms of Watergate and Teapot Dome

and all of which I have reviewed in preparation for today. In this

case, if I understand correctly, Fast and Furious starts off with

charges against a murderer who shot and killed Brian Terry and

the people involved.

The weapons happened to have been weapons that were allowed

to walk under Fast and Furious, is there any conceivable way, if

we are not talking to the murder suspects or people involved, that

we are touching that investigation? Do you believe that we are, by

not looking at that at all but rather looking at the actions of highranking Federal officials, mostly here in Washington at ATF and

Justice, that we in any way are close to allowing a murderer of a

law enforcement agent to walk?

If you see—and I am not asking you to see something that isn’t

there. But do you see any way that we are—or any line that we

shouldn’t cross in relation to that, since we don’t intend to?

Mr. Fisher.

Mr. FISHER. Yeah, I think you can conduct your investigation

without going across that line.

I just wanted to add on Iran-Contra, Charles and I were on the

House Iran-Contra Committee. And the independent counsel at the

time met with us, and he certainly—going through the prosecution,

and he said that Congress, as a co-equal body, has a right to conduct an investigation even if it complicated his prosecution. So that

is the constitutional judgment by the prosecutor at that time.

Chairman ISSA. OK. Well, one thing that I can assure the Members on the dais is, I want the people involved in killing Brian

Terry to be tried and convicted. I do not want to in any way come

anywhere close to that. And that is something I will be communicating steadily to Justice.

On the other hand, what I would like the questions answered

here, it has become this committee’s view that the decision process

leading to many of the actions taken under Fast and Furious well

above the level of the Phoenix district office or the U.S. attorney

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there is, in fact, what we believe is flawed, ill-conceived, and potentially covered up. And that is what we are investigating.

That would seem to be the question for all of you, and I want

to get your answer. They have asserted that, you know, we are in

the way of some meth addicts who got $200 a gun who are being

charged and a murderer, and they are saying that our investigation

of their decision process in Fast and Furious—we are talking about

officials here in Washington involved—that the two are connected.

Do you see any connection, Mr. Rosenberg?

Mr. ROSENBERG. No. I think that what you are doing is looking

at their strategies, their methods, their operational weaknesses.

And this is well within the investigative authority of committees.

That is what they are supposed to do. You fund these programs,

empower them to do those sorts of things. And what you are looking at now is right in the wheelhouse of McGrain. Look at how

they defined, you know, what it was that was being looked at and

what was appropriate: how they were operating, what decisions

they made, were the decisions good or bad. And, at that particular

point, there is nothing that would exculpate or, you know, taint

those—what went on.

It is very much like what you looked at in 2002—Mr. Burton

looked at in 2002. We were trying to find out who knew what, how

high it went, and how we can change it.

Another, you know, investigation that I helped out on was John

Dingell’s investigation of the environmental crimes section of DOJ

between 1992 and 1994. They involved a centralization of environmental crimes prosecution decisions in main Justice when, at the

same time, they were decentralizing almost all other criminal investigations at that time. And the committee looked at that, was

strenuously opposed by not only the Justice Department but groups

outside, former attorneys general. But zeroing in on what was

going on, what was the effect of those kinds of decisions, organizational decisions, ultimately won the day. The policy was reversed.

Many of the people in the environmental crimes section had to resign or were fired, and everything was put right.

Chairman ISSA. Thank you.

Mr. Cummings.

Mr. CUMMINGS. I want to thank all of you. As a lawyer, I tell

you, this is a very interesting discussion.

And as an officer of a court, I wholeheartedly agree with the

chairman that I, too, and I think everybody on this side of the aisle

wants to make sure that anyone who is responsible for Brian

Kelly’s death to be prosecuted. I think it would be a sin and a

shame if that did not happen. And it is in that vein that I am posing these questions.

Now, Professor Tiefer, I have contended that both the executive

branch and Congress have legitimate interests. The Justice Department is trying to prosecute alleged murderers and gun traffickers.

As a matter of fact, come June 17th, someone will be on trial with

regard to the murder of Brian Kelly—Terry. I am sorry. And we

are trying to investigate allegations of abuse and mismanagement

within the same agencies.

I think we should be able to achieve both goals. And I think that

is—you talked about negotiations, and I just think we have an inVerDate 17-JUN-2003 17:08 Nov 30, 2011 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\70820.TXT KATIE PsN: KATIE
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terest in achieving both. I agree that Congress has the authority

to investigate. We can issue subpoenas, we can demand documents,

and we can conduct depositions. But we have to exercise that authority responsibly, especially when these are—and there are open

criminal cases ongoing.

I would like to ask you about some steps other committees have

taken in the past to avoid compromising ongoing prosecutions.

First, the Department has raised serious questions with some of

the documents covered by the committee’s subpoena. According to

the Department, they may include records that—and this is the

Department now—they say that may identify individuals who are

assisting in the investigation, that identify sources and investigative techniques, that present risks to individuals’ safety, and that

prematurely inform subjects and targets about their investigation

in a manner that permits them to evade and obstruct our prosecutorial efforts.

My question is not whether we have a right to these documents.

We already have some of them. My question is whether we should

entertain a request from the Department to talk to them before we

release them publicly, assuming they have not been released already publicly.

Mr. TIEFER. Thank you for your questions, Mr. Cummings.

By the way, a slight detour. I mentioned mostly chairs when I

talked about these past investigations. The House Iran-Contra

ranking minority member was Dick Cheney. I don’t know if you

quite see him as your sort of model, but I will say that——

Chairman ISSA. I do.

Mr. CUMMINGS. I will remain silent on that one.

Mr. TIEFER. Anyway.

I gave the Iran-Contra Committee as an example of a congressional committee going full speed ahead. At the other end, I cited

the Abscam Committee in my memo, and that was a committee

which said, ‘‘We need to be extremely cautious. We don’t want to

get in the way. We are going to be asking for nerve-center testimony at the heart of the’’—and so they held off. They had the discussions you are talking about, and they decided, with the Justice

Department behaving properly and respectfully toward the committee, telling it what there was, they decided that they would wait

until the trials were over.

I mention that because that was an FBI informant investigation

because of the way Abscam had been done, and just like the ATF

investigation, it was something important for Congress to do.

I have said that I think the Justice Department should be starting by providing more documents, allowing better in-camera examination and privilege logs. And I think then the discussion that you

are saying is very important before things are released would be

on a basis that the committee should pursue—should pursue.

Mr. CUMMINGS. Let me ask you this, because I only have a limited amount of time. Again, assuming that the decisions are released, these documents ultimately rest with the committee, do you

think it would be prudent to give the Department an opportunity

to warn us if a public release could put people in danger or impair

their investigation?

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Let me make it clear, and I made a mistake earlier and said

‘‘Brian Kelly’’ and I meant ‘‘Brian Terry.’’

But go ahead.

Mr. TIEFER. I will be brief, given the time limit.

Yes, it is prudent in an open criminal case situation for the committee to hear from the Justice Department before making things

public.

Mr. CUMMINGS. You know, as I listen to you, it seems like—I am

always reminded of this book, ‘‘The Speed of Trust.’’ And it talks

about how important it is—by Covey. And he talks about how important it is to establish a trusting relationship.

And I take—it is sounds like what you are saying is you almost

have to have some trust going on here to get to the point of negotiations—that is, between the committee and the Justice Department. Is that a reasonable conclusion?

Mr. TIEFER. I certainly think the Justice Department should try

harder to earn the committee’s trust. But, yes, it has to be a relationship of trust.

Mr. CUMMINGS. And just one more question, Mr. Chairman.

I just don’t see any harm in taking the step—we retain the authority to make the final decision, but our decision is better informed. In the past, have other committees consulted with the Department before releasing documents publicly?

Mr. TIEFER. Very much so.

Mr. CUMMINGS. I am sorry, I didn’t hear you.

Mr. TIEFER. Yes, before releasing documents publicly, if there is

a stated Justice Department concern, there has been this consultation about how the committee, which has the authority to decide,

should exercise that authority, yes.

Mr. CUMMINGS. I see my time has expired. Thank you.

Chairman ISSA. No problem.

The gentleman from Utah, Mr. Chaffetz, is recognized for 5 minutes.

Mr. CHAFFETZ. Thank you, Mr. Chairman.

And thank you all for being here.

If a President and/or an Attorney General states that mistakes

were potentially made, that something went awry, does that give

the committee an added need or imperative to pursue these documents? Does that add weight to the idea that they should be producing these documents?

Yes, Mr. Fisher?

Mr. FISHER. I think when you look at the departments of government—Interior, all the other—Commerce—departments can be

looked at by the Justice Department. Who looks after the Justice

Department? I think, when you have reason to believe there is mismanagement inside the Justice Department, to leave that to the

Justice Department is not acceptable to me.

So I think that has been the concern. If there is one—there is

one department where you do not want mismanagement and

abuse, it is the Justice Department. And I think your committee

has every right to find out exactly what the conditions are.

Mr. CHAFFETZ. But is that heightened from the fact that if the

Attorney General and/or the President were to state that, yes,

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something went awry there, does that give us more imperative to

pursue those documents and comply with——

Mr. FISHER. I think it does better justify your inquiry, yes.

Mr. CHAFFETZ. Yes, Mr. Tatelman?

Mr. TATELMAN. Congressman, not to completely disagree with

Mr. Fisher, but I think the concern that at least one could envision

in a situation like that—and the way I would answer your question

is, no, I don’t think it changes the calculus one iota in either direction, which is to say you do not want to find the committee’s position where they start to set a standard where you begin to suggest

that only in circumstances where there has been an admission does

Congress’ right kick in or only—and one I hear very commonly in

my work at CRS is, isn’t it true that Congress can only investigate

waste, fraud, and abuse? No, you are not limited under those circumstances in that way, at least not from a legal perspective.

I can understand the question from perhaps a political one,

which is you might have an easier time selling the committee’s actions publicly or justifying the committee’s time in a public setting

under those circumstances. But I would caution against anybody

thinking that it changes your legal rights or authorities in any direction.

Mr. CHAFFETZ. So that doesn’t diminish them at all——

Mr. TATELMAN. Absolutely not.

Mr. CHAFFETZ. OK. What is the remedy? I mean, if Department

of Justice just says, ‘‘No, we are not going to do this,’’ what is the

remedy? What is the next step?

Mr. Fisher? Go ahead, Mr. Fisher.

Mr. FISHER. That they are not going to turn over documents?

Mr. CHAFFETZ. Yeah. If they just decide, ‘‘No, we are not going

to do this,’’ they continue to refuse to comply with a subpoena,

what is the remedy?

Mr. FISHER. The next step—and it is taken many times—of

course, is the contempt citation. And it has to go to the floor of either chamber. And not to many people like to be held in contempt

of Congress. And that is—the administration should do everything

it can to avoid that step. But already, because of your experience

with your subpoena, you are thinking in that direction. But that

is the last step.

Mr. CHAFFETZ. Anybody else care to comment on that?

Mr. TATELMAN. Well, I think it is exactly that, the other remedy

is further negotiations or, you know, further——

Mr. CHAFFETZ. Well, why should a committee have to negotiate?

What is the——

Mr. TATELMAN. I think contempt is a big escalation and a big

step forward, both politically and I think definitely legally. I mean,

it involves, as Lou mentioned——

Mr. CHAFFETZ. You just argued that we didn’t have a diminished

right. So, I mean, the right in your——

Mr. TATELMAN. Agreed, Congressman; it is not a rights question.

But escalating it to the level of holding an executive branch official

in contempt, which in this case I think would be the acting director

of ATF who is officially the person under subpoena, if I understood

the chairman’s documents, that has only happened 12 times in the

history of this country, and only 3 times has it gone to the full floor

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of the House of Representatives. The other 9 have only been committee or subcommittee votes.

That is a pretty big escalation by the House against an executive

branch official. It is certainly a justifiable one, but it is a big one.

Mr. ROSENBERG. Let me give an example that may help you in

your question.

In one of the iterations of Whitewater, this committee, once

again—I think the chairman was Mr. Clinger—went after the

White House counsel, Jack Quinn, who was the holder of the—was

the custodian of the documents that the committee was going after.

And the President never claimed executive privilege but alluded to

it and kept putting it off and, at one point, made a conditional

claim of executive privilege depending on X, Y, and Z.

Well, the committee and Clinger got fed up, and what they did

was schedule a contempt vote for 2 weeks hence—no, actually, they

had already contempted Quinn, but scheduled a vote on the floor

of the House for 2 weeks hence. And within that 2-week period, the

documents were all turned over.

So that kind of an opportunity, it is what we call a staged process, which I believe that investigative oversight is. You go from one

point of persuasion to the next, to the next, to the next. And what

has happened over the last 15, 20 years is, we have skipped threats

of, you know, of a subpoena and then subpoenaing and we are up

to threats of contempt and then holding contempt over somebody’s

head. Well, Jack Quinn did not want to be held in contempt. That

is what I understand.

Mr. CHAFFETZ. And, Mr. Chairman, my time has expired, but let

me just—from my vantage point, nobody wants to have to go to

this step. But here you have, in this particular case, a President

and an Attorney General who are both claiming to be oblivious to

what was going on, which I think weighs in on the issue of executive privilege. But both have also——

Mr. ROSENBERG. That is what the recent caselaw says, that——

Mr. CHAFFETZ [continuing]. But have also——

Chairman ISSA. And the gentleman’s time has expired.

Mr. CHAFFETZ. Then I will yield back.

Chairman ISSA. I thank the gentleman.

The gentleman from Virginia, Mr. Connolly.

There will be a second round for those who can stay.

Mr. Connolly.

Mr. CONNOLLY. Thank you, Mr. Chairman. And thank you for

having this hearing. It really is actually an intellectual feast. Because this is where the tectonic plates between the two branches

come together, and we either collide or we gently subside. So it is

a fascinating topic.

Let me ask, Mr. Tatelman, is it your view that Congress has an

unfettered right to access to information it requires, or believes it

requires, irrespective of the judicial consequences? If something is

under adjudication, litigation, or a criminal trial, that is all fascinating but that has nothing to do with the exercise of Congress’

absolute right to access information it seeks. Is that your position?

Mr. TATELMAN. Absent some countervailing constitutionally

based claim, yes.

Mr. CONNOLLY. An absolute right.

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Mr. TATELMAN. Yes.

Mr. CONNOLLY. Is that your position, Professor Tiefer?

Mr. TIEFER. I find in the Supreme Court opinions that what the

persuasive opinion of Justice Brennan in Hutcheson v. United

States said was that if there was an immediate, pending trial, that

he would hope that there would be something other than an interference with that trial by the congressional committee.

So, in other words, the judicial position is that there should be

some—I am hesitant to use the word ‘‘accommodation’’ because—

but there should be other than the congressional committee proceeding full speed ahead without thinking about the consequences.

Mr. CONNOLLY. But, to his credit, Mr.—‘‘Tatelman?’’

Mr. TATELMAN. Tatelman.

Mr. CONNOLLY. Tatelman, excuse me.

Mr. Tatelman does not quibble it is an absolute right, as he

reads the Constitution. While the late Supreme Court Justice Brennan may wish for consideration on our part, the Constitution

doesn’t mandate it. As a matter of fact, Mr. Tatelman’s reading of

the Constitution is, that is all in the fine print, but we can, if we

wish, choose to ignore the consequences, even if it is pending litigation or criminal trial.

Is that your reading, as well? Or do you believe that ruling or

that opinion by Mr. Brennan puts some check and balance on the

otherwise unfettered right of Congress to seek information from the

executive branch?

Mr. TIEFER. I think what is being said is that the Court would

do what it wants within its power if the Congress ran roughshod

over the—in the case of an immediately—that is the phrase in the

case—immediately pending trial.

Mr. CONNOLLY. Well, let me—thank you.

Let me ask, let’s deal with a hypothetical here. Well, let’s actually not deal with a hypothetical; let’s deal with the example the

chairman gave you about Oliver North. Now, refresh my memory,

but if the sequence is right, Oliver North was indicted and convicted in a court of law of a crime.

Mr. TIEFER. Correct.

Mr. CONNOLLY. And that conviction he appealed, and, subsequently, the appeal was successful in part because of what was perceived to be compromised testimony here in the Congress. Is that

correct?

Mr. TIEFER. Well, I would more narrowly—and I think the statement by the chairman was correct on this point. On the issue of

immunity, the obtaining of a court immunity order, that was the

basis on which the appeal was successful.

Mr. CONNOLLY. OK. Fair enough. But here’s my hypothetical.

What if somebody in Congress, or a whole bunch of people in Congress, at that time decided willfully to taint his testimony in order

to ensure subsequently that he could not be found guilty or that

an appeal would be successful, that was a deliberate strategy here

in the Congress? If Mr. Tatelman is correct on his interpretation

of the Constitution, even though you and I might agree that would

be wrong morally, it is nonetheless the right of Congress to do that.

Is that your opinion?

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Mr. ROSENBERG. Not to do that. I don’t think—well, I won’t talk

for Mr. Tatelman.

Mr. CONNOLLY. Well, I am just following the logic here. If

Congress——

Mr. ROSENBERG. There is law out there that——

Mr. CONNOLLY. Excuse me. This is my time, sir.

If we have, as Mr. Tatelman says, an unfettered, absolute right

to information from the executive branch irrespective of the consequences, what is to stop an unbridled Congress, not like this one

but one that might be more politically motivated, to deliberately

taint the outcome of a pending criminal trial?

You look like you are ready to answer, Mr. Fisher.

Mr. FISHER. I would say, on the absolute right, I think there

are—you have to establish in a committee that you have legitimate

inquiry, and I think you do. There are some inquiries which I don’t

think would be legitimate, perhaps going into some individual’s, an

employee in the executive branch, private file and so forth. So you

have to a establish some legitimate business here.

Mr. CONNOLLY. Mr. Chairman, I know that I am going to have

another chance, and thank you.

I would simply say to you, though, the Constitution does not say

that. It doesn’t talk about ‘‘legitimate’’ and ‘‘illegitimate.’’ We will

come back to it in my next round.

Thank you.

Chairman ISSA. I look forward to it.

The gentlelady from New York.

Ms. BUERKLE. Thank you, Mr. Chairman. And thank you for calling this hearing.

Thank you this afternoon to our panelists for being here. Congress and the American people have the right to know how their

money is being spent. And one of the panelists mentioned that the

American people lose when we don’t get the information that we

are seeking, so this is a very important inquiry.

I just have one question, and then I am going to yield my time

back to the chairman for any further questions he might have. I

would like to ask each one of the panelists, if you look at the circumstances in this case, is there any reason why the Department

of Justice should not comply with our request?

I will start with Mr. Rosenberg, and we can go right down. And

I think that is just a ‘‘yes’’ or ‘‘no’’ answer.

Mr. ROSENBERG. From all that I know, what is in the papers that

I received and looking at it, there is nothing yet that would dissuade me from saying that they should comply.

Ms. BUERKLE. Thank you.

Mr. Tatelman.

Mr. TATELMAN. I would be even more cautious than that. I think

when you phrase the question as you have, Congresswoman, it is

complicated. I think there may be some—in other words, we don’t

know enough, as members of the public or based on what we have

seen thus far, I mean, I wouldn’t feel comfortable answering that

question either way. I simply don’t have enough information to

know for sure whether there is something lurking out there that

might give them a more legitimate reason.

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Based on what they have asserted thus far, it is arguable. But

there may be things out there and maybe other information that

we are just simply not aware of yet.

Ms. BUERKLE. Thank you.

Dr. Fisher.

Mr. FISHER. Yeah, you are just getting into some documents,

some access, so you don’t have a full picture, but you have enough

of a picture, I believe, that there is at least concern about mismanagement and possible abuse. And I think that the Department

of Justice would be very wise to work with your committee. Otherwise, it could be easily interpreted as some kind of an obstruction

to make sure that embarrassing information does not come to light.

Ms. BUERKLE. Thank you, Dr. Fisher.

Professor.

Mr. TIEFER. As things stand now, they owe you the documents.

It is their job to make a record that would support keeping anything back. And so far, they haven’t set out to make such a case.

Ms. BUERKLE. Thank you.

And I yield my time back to the chairman.

Chairman ISSA. Thank you.

Professor Tiefer, you sort of gave the answer I was hoping to

have my followup on. What you said earlier and I think what you

repeated here I want to you elaborate on. When we ask a question,

we can, in fact, be unreasonable in our broadness. It can happen,

because we don’t know what we don’t know. Ultimately, the negotiation that I think we were talking about earlier is about telling

us why our discovery is overly broad, making the case for what we

don’t need or we may consider narrowing, and then, as I think you

are saying, make the case for what is not being delivered for some

specific reason, either it is imprudent, which is our decision, or it

is constitutionally protected, which is their decision and their responsibility to assert.

Would that sort of summarize your position?

Mr. TIEFER. Yes, Mr. Chairman.

Chairman ISSA. Well, I want to go quickly to Mr. Connolly’s

statement, though, which I think, Mr. Tatelman, you got the bullet

on. The 27th Amendment exists because, at the founding of our

country, they were very afraid that Congress would raid the Treasury. Isn’t that true, that is why we are not allowed to raise our

own pay arbitrarily during a term?

Mr. TATELMAN. In part, yes, absolutely.

Chairman ISSA. Now, the reason it got passed 200 years later

was that the American people objected to a pay raise that Congress

gave itself enough to put it over the top, after having sort of lingered out there for all those years. Isn’t that your recollection?

Mr. TATELMAN. Yeah, I believe it was the State of Michigan that

finally came around and provided the necessary last votes, yes.

Chairman ISSA. And, by the way, I approve of that amendment,

albeit the last.

But let’s go back to Mr. Connolly’s statement. If, in fact, we were

arbitrary or capricious, let’s just say that we were trying to cover

up Joe Smith, a Congressman’s wrongdoing by interfering with the

actual prosecution, defend our Speaker, John Smith. Wouldn’t the

court reasonably take an objection from the administration, from

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the Attorney General, and consider it as its obligation to balance

us every bit as much as it would balance the executive branch

wrongful assertions? Isn’t that the role of the court?

Mr. TATELMAN. Yes, Mr. Chairman. But also, more so, it is the

role of all of your respective constituents. If they believe that the

Congress has gone far beyond what is reasonable or what is prudent, as you put it, the remedy——

Chairman ISSA. Right, but that relief would only be granted

every 2 years.

Mr. TATELMAN. Correct. But in the particular case at hand, yes,

in part it is the court’s duty and balance, but in part it is also, you

know, Congress and the executive, all three branches, in some

sense, working together.

I think the question that I was responding to was narrowly

phrased with respect to Congress’ right, which I think is——

Chairman ISSA. Right. And I agree.

Mr. Fisher, if you could respond, and then our time is up.

Mr. FISHER. Yeah, you mentioned on how a court would decide.

I think it is in the interest of your committee and Congress and

the administration not to go in that direction because no one knows

what a court will do. You don’t know who is going to be selected;

you don’t know what the result is. So I think both branches should

figure out politically what accommodation meets your mutual interest.

Chairman ISSA. I agree with you that it is better to rely on

caselaw than to try to make it.

With that, we recognize the gentleman from Oklahoma for 5 minutes.

Mr. LANKFORD. Thank you very much.

And thanks for being here to be able to have this testimony. It

is very important to us.

Operation Fast and Furious utilized a lot of components of DOJ,

including its domestic intelligence operations, Public Integrity Section, and its Office of Personnel Responsibility. Historically, congressional investigations have covered all levels of DOJ officials

and employees, from the Attorney General down to subordinate

line personnel.

What has been the scope of past congressional inquiries into the

DOJ? Can you just define out, when we have done—are we within

the scope at all to be able to ask questions of DOJ? And is there

a legitimate reason for DOJ to withhold documents and information from this information, in your own personal perspective?

And anyone can answer that. I will let you just jump in as you

choose to.

Mr. TIEFER. Well, if we could point to even one single House investigation, it was called the Superfund investigation, 1982–1983,

in which the House did overcome a claim of executive privilege for

an investigation of the Justice Department.

And there was a followup House Judiciary Committee investigation. It looked at the Criminal Division, it looked at the Civil Division, and it looked at the Lands Division. I don’t think that there

is an office—this committee held the Attorney General herself,

Janet Reno, in contempt.

Nothing is off-limits.

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Mr. LANKFORD. OK. Thank you.

Mr. FISHER. Yeah, I would agree that the Justice Department is

not immune from these investigations at all. I think all of us have

given examples, and our statements are fairly detailed on that.

Mr. LANKFORD. Thank you. On a separate issue——

Mr. ROSENBERG. Look at——

Mr. LANKFORD. Go ahead.

Mr. ROSENBERG [continuing]. Ruby Ridge, which dealt with the

killings that were investigated and the investigations of four or five

different agencies, including Justice Department, with regard to

whether there was inappropriate, you know, activity with respect

to the rules of engagement, etc. And a Senate committee got all

those documents and exposed them. And this is the most sensitive

part of the DOJ, you know, the Office of Professional——

Mr. LANKFORD. Yeah, we understand all these things are very

sensitive and, obviously, very delicate. But there is a reasonable

role for oversight in this committee, to be able to engage in the

oversight.

Let me ask in a separate way, under the Privacy Act exception

for congressional committees, do you know of any reason that DOJ

can’t voluntarily produce documents to a congressional committee

if they chose to?

So, not necessarily from a subpoena or us to push them, but just

to be able to say—can they voluntarily disclose these things and

say, you know, ‘‘There is a letter that has been given; I want to

engage in this to be able to help in every way that I can.’’ Do you

know of any reason they couldn’t just voluntarily do this?

Mr. ROSENBERG. The Privacy Act says that documents—that the

privacy-covered documents shall be available to all joint committees, committees, and subcommittees. I don’t see why giving it to

a joint committee, committee, or a subcommittee can’t be done voluntarily.

Mr. LANKFORD. Thank you.

Anyone else want to make a comment on that?

Mr. TIEFER. Yes. There are some narrowly limited grounds in

which the Justice Department can’t, on its own, provide documents:

grand-jury documents that you have to have a court order for; income tax returns, there are some very narrow specifications about

what can be provided. Outside of those narrow grounds, the answer

is, they can provide it voluntarily.

Mr. LANKFORD. OK.

All right. With that, I would yield back to the chairman.

Chairman ISSA. Thank you.

You know, earlier, there was a discussion about the U.S. attorneys case, the firing of the U.S. attorneys. I sat on Judiciary and

here, so I remember it very well. I want to get into that for just

a moment.

The administration claimed that it had an absolute right to hire

and fire U.S. attorneys. And that was, in fact, confirmed. And yet,

we went forward with the investigation because we were trying to

get to the bottom of whether or not one or more of those individuals

was fired for reasons related to the performance of their doing—

in other words, to thwart prosecutions, to protect political friends

of the administration, and so on.

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Wouldn’t that be the best example of legitimate overseeing, not

just of the U.S. attorneys and the Attorney General but even of the

administration? Because they questioned the President as to

whether or not he had the authority to fire without a review of

whether that firing was for some other reason other than his constitutional right.

Yes, Mr. Fisher?

Mr. FISHER. Yeah, I think that was a very powerful case because

I can’t imagine anything more dangerous than for the Justice Department to use U.S. attorneys in a partisan way, and that was the

issue. So that was a terrifying moment, and Congress had every

right to find out.

I don’t think Congress ever got as much information as is needed

to understand what actually went on. And there was no accountability, from the President to the AG on down. No one seemed to

know exactly who did what.

Chairman ISSA. Professor Tiefer, did you have anything else on

that?

Mr. TIEFER. That was, indeed, a very strong, strong reason to do

that oversight.

Chairman ISSA. OK.

And, with that, I think we are ready for a second round. Since

I just talked, I will hold mine for a moment and go to the ranking

member.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

I would like to ask the witnesses about the status of the committee’s investigation to see how it compares to other historical precedents.

On March 16, 2011, Chairman Issa initiated this committee’s investigation by writing to ATF to request a wide range of documents. He certainly had the right to do so. These included memoranda, reports, emails, and other communications relating to the

death of Agent Terry, Operation Fast and Furious, and other related topics.

The letter requested that all documents be produced in just 2

weeks, by March 30, 2011. When we did not receive the documents,

the chairman issued a unilateral subpoena for these documents the

next day, on March 31, 2011. There was no committee business

meeting or debate or vote on the subpoena.

Professor Tiefer, before today were you aware that Chairman

Issa’s subpoena came only 15 days after his original request for

documents? Were you aware of that?

Mr. TIEFER. The answer is, no, I hadn’t gotten details.

Mr. CUMMINGS. And the majority staff memo for this hearing

states that, after the subpoena was issued, ‘‘DOJ subsequently refused to produce documents responsive to the subpoena.’’ But the

Department, in fact, had produced to the committee or made available to the committee staff for review approximately 1,336 pages

of subpoenaed documents to date.

Professor Tiefer, were you aware of that fact?

Mr. TIEFER. My sense is that, to say they produced documents

responsive is implying to say they didn’t produce other documents

responsive, and that was my sense, yes. It was a mixture of—including the withholding of important documents.

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Mr. CUMMINGS. And so, Professor Tiefer, your testimony seems

to assume that the Department has asserted executive privilege to

withhold documents. Before today, you were aware that the Department has not asserted any kind of executive privilege to withhold any documents from the committee. Is that right?

Mr. TIEFER. That is correct, and I would expand on that. I believe in as much interplay, not just negotiating but, frankly, fighting, between the committee and the Justice Department before taking the ultimate step.

Mr. CUMMINGS. All right.

Mr. TIEFER. One of the steps is to force—and this has worked in

the past, and the people at this table have been with me in this—

force the executive branch to say, ‘‘We are going to claim executive

privilege,’’ or, ‘‘We are not going to claim executive privilege.’’ And,

at this point, they haven’t been put to that.

Mr. CUMMINGS. Now, if they are still—let’s say we have a situation where Justice is trying to gather the documents, you know,

gather responsive documents based on search protocols agreed to

by the committee, but have not completed that process, and is acting in good faith. A little earlier, you talked about a privilege log.

At what point does that log come up? I mean, if they are still trying

to get the documents, at one point does the log come up? Is that

a little premature?

Because it seems to me, you got to figure out what you have in

response to the subpoena, and then it seems to me that then you

have to make a list of documents that, you know, you don’t think

should be submitted and tell why. And that is basically what the

log is all about, right?

Mr. TIEFER. On the one hand, that has certainly been the way

the Justice Department has done it in the past, and our efforts to

wean it off of that process haven’t succeeded. I have often wished

that, instead, they would turn over the things that aren’t privileged

as they come across them and only log the things that they are

withholding.

But you are right, the usual process has been the way you are

saying. They want to have them all before they decide what they

are going to claim privilege on.

Mr. CUMMINGS. So let me make sure I understand this. Are you

saying that you think they should just turn over all the documents

and then say, ‘‘Look, don’t give us back these?’’ That is not what

you are saying, is it? The ones that we think are privileged? Is that

what you are saying?

Mr. TIEFER. Well, let me put it to you this way, because I was

at both ends of this process. I represented the House of Representatives when we had incoming subpoenas from them. And they

weren’t willing to sit there and wait while we went through all the

documents. They wanted right away the important ones that we

couldn’t claim privilege on.

But when the shoe is on their foot, then they want to count all

the documents before they decide which to claim privilege on. And

that has been the traditional way through all administrations.

Mr. CUMMINGS. So, right now, I guess you are aware the Department is now conducting these searches for 19 officials approved by

the committee staff. You were aware of that, right?

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Mr. TIEFER. I believe it. They would be—having gotten a subpoena, they would be in big trouble if they weren’t.

Mr. CUMMINGS. But you said something very interesting. You

said that you believe there has to be a fight. Is that what you said?

You don’t usually hear that word in this committee.

Mr. TIEFER. Yes. Yes. There has to be a fight. Yes. This is not

a lovemaking process.

Chairman ISSA. Well, we are doing really well there, Elijah. Finally, I found out that we are doing our job just right up here.

Mr. CUMMINGS. Thank you, Mr. Chairman.

Chairman ISSA. Thank you.

Mr. Lankford.

Mr. LANKFORD. Thank you.

I have one quick statement, and I would like to be able to yield

some time to the chairman after that.

But my statement would be, Justice Department informed our

committee on May the 2nd that they would make 400 pages of documents available. When the staff went to go view those documents,

they were heavily redacted.

Is it appropriate—and I am going to ask this of Dr. Fisher—is

it appropriate for DOJ to redact documents, sometimes heavily,

page after page after page, in response to a subpoena?

Mr. FISHER. I don’t think it is appropriate, and I think it sends

the wrong signal, that it looks like there are some things they don’t

want you to see. So if they are trying to establish their bona fides,

that is not a good way to do it.

Mr. LANKFORD. Right. Hundreds of pages of documents don’t

help to be able to count that they have turned over hundreds of

pages when they are all heavily redacted at that point.

With that, I would yield back to the chairman.

Chairman ISSA. Thank you.

I am going to followup on that good line of questioning. You

know, as all of you I think know, the only discovery that has been

literally handed over to us was all 100 percent available on the

Internet. So it was public record. And I know sometimes even public record can be sensitive, but not in this case.

However, the question, I think for everyone’s edification up here,

in-camera review is historically, in most criminal cases and civil

cases, so that people can see with no redaction. Of course, they

don’t get to take it with them.

Is that your understanding of what is normally appropriate when

you don’t deliver something and yet you bring them in for a briefing and an in-camera review so you can then decide how to,

Solomonesque, split the baby in half?

Mr. FISHER. Yeah, I think it is inconsistent. If it is in-camera,

you should be able to see the documents.

Chairman ISSA. I guess I am getting pretty much yeses from everyone.

Professor Tiefer, you talk about the long history you have of

knowing how Justice does business, both sides. I certainly remember when they raided William Jefferson’s office without notice and

took, at gunpoint, everything they wanted. That certainly was not

showing any deference or negotiation with the Speaker or with our

constitutional separation.

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Are we doing something similar here, from what you can see?

Mr. TIEFER. I think there was no deference whatsoever in that

process, that it was a serious affront to the separation of powers,

and that one can argue at the margins here about whether the

proper process could be stretched out a little more or not. But there

is no comparison; you are respecting the separation of powers much

more than they did in the Jefferson raid.

Chairman ISSA. Now, for the record, I would like to mention that

Ranking Member Grassley, Senator Grassley, had been requesting

these documents, and we had in our possession a letter saying that

they wouldn’t give it to him because he wasn’t a chairman. And he

had been requesting them since January or even before, but, certainly, formally, since January.

So I just want to be on the record that, yes, we did, Mr.

Cummings, we did only allow 2 weeks, but we allowed 2 weeks because they basically said, we have the documents, we just won’t

give them to you because you are not entitled; Chairman Leahy

would have had to request them. And so I figured, well, Chairman

Issa, Chairman Leahy, we are somewhat similar, and I had an expectation that we would get something.

Professor Tiefer, I wanted to followup on something, though. You

talked in terms of the history of AG and their operations, Justice.

Rolling discovery, isn’t that the norm in most other discovery that

this committee does, where people say it is voluminous, and they

start giving you them as they get to them, if you are working with

Department of Interior, most of the other areas, from your knowledge?

Mr. TIEFER. Yes. It does vary from office to office. I think they

have a problem here because some of the best evidence is emails,

and it is not so easy to do rolling discovery of emails. But as far

as documents and categories of documents, yes, that would be the

normal practice.

Chairman ISSA. Mr. Tatelman, the same thing, that you are used

to seeing information come out in dribs and drabs, even when we

are asking for legislative language or research, we ask you for

something, and then you get additional? And just for the record,

that is my experience with everybody else, is you get what is easy

and then you end up with what is very hard at the end.

I do want to set the record straight on one thing. I was off last

week in my district, and so I was not aware DOJ has produced 80

pages of non-public documents as of last Friday. And I look forward

to reading those.

And, with that, I recognize the gentleman from Virginia for 5

minutes.

Mr. CONNOLLY. Thank you again, Mr. Chairman.

And, Mr. Rosenberg, I want to give you—I know you were

champing at the bit, and I didn’t mean to cut you off, but I was

running out of time.

Where we left, Mr. Tatelman, was you agreed with the assertion

that Congress, as you read the Constitution, has an unfettered, absolute right to seek information, irrespective of the judicial consequences from the executive branch. Subsequently to the chairman’s question, I think you indicated that but, of course, a court

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ultimately adjudicates the dispute, should there be a dispute, between the two branches. Am I reading you correctly?

Mr. TATELMAN. Your question, Congressman, was whether or not

Congress has the right to access the information. And the answer

to that question—I will stand by my original answer—was they

have absolutely a right, subject to countervailing constitutional

privileges being asserted, but that there may be reasons, either political or otherwise, why Congress may choose not to assert that.

Mr. CONNOLLY. Yes, yes. No, I heard that. I was just trying to

establish what your view was. But you would agree that, in the

event of a dispute, the ultimate arbiter of a dispute is a court of

law?

Mr. TATELMAN. Not necessarily in a dispute between the legislative and executive branches. Chairman Issa’s hypothetical involved

a criminal trial with which there is a judicial role to play there.

But if you eliminate that part of the situation, no, not necessarily.

I think Congress and the executive branch can and often do resolve

these disputes over their rights and privileges and prerogatives

without involving courts of law quite frequently.

Mr. CONNOLLY. But what if they don’t? What if they can’t?

Mr. TATELMAN. Well, there are certainly precedents to establish

the fact that the courts are routinely cautious and very hesitant to

get involved. You have the two AT&T cases in the late 1970’s

where the court, the D.C. Circuit Court, on two occasions refused

to rule on the merits.

Mr. CONNOLLY. Well——

Mr. TATELMAN. Even the Miers situation, Congressman, the

court doesn’t rule on the merits of that dispute. It ruled Congress

had a right to bring the case, it had standing to pursue it, it had

a right to the information, but it didn’t rule on the merit.

Mr. CONNOLLY. Mr. Tatelman, I have a limited amount of time.

I get your point. Thank you.

But let me pose this question. Does the executive branch have a

legitimate right to be concerned about the protection of FBI informants?

Mr. TATELMAN. Yes.

Mr. CONNOLLY. And if Congress were seeking even in-camera

unredacted documents that would reveal the identity of those informants, might the FBI, and the executive branch by extension,

have legitimate reason nonetheless to fear, wittingly or unwittingly, the revelation of such information?

Mr. TATELMAN. They have a legitimate reason to fear that, not

a legal reason to withhold it.

Mr. CONNOLLY. No legal reason to withhold it.

Mr. TATELMAN. None that I am aware of.

Mr. CONNOLLY. All of you agree with that?

Mr. Fisher.

Mr. FISHER. I wouldn’t put it that way. I think you raise a nice

question because both sides have to make judgments about whether their course of action is not only legitimate but plays well in the

public. So any effort by Congress to say, we want the names of

some informants or we want the name of the chief of staff at some

CIA—you don’t do that. You are going to get injured. And I think

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the executive branch has to worry that it doesn’t injure itself also.

So everyone makes, on both sides, some judgments.

Mr. CONNOLLY. Would you—well, Mr. Rosenberg, I want to give

you a chance because I, sadly, had to cut you off. But you were reacting to the discussion about, well, what if we had a Congress that

deliberately, as a strategy, sought this information in fact to negatively influence the outcome of a pending trial?

Mr. ROSENBERG. I think a question would be raised at that point.

Mr. CONNOLLY. I am sorry?

Mr. ROSENBERG. Congress’ powers to upset and to, you know,

screw up a particular trial is certainly there. But there is a particular line that I think I am aware of in the caselaw, that if there

is an attempt to interfere with or to help convict someone, that

would raise serious due-process questions.

Mr. CONNOLLY. OK. So there are inherently some limits on Congress’ otherwise unfettered right to seek access to information from

the executive branch; this might be one of those cases?

Mr. ROSENBERG. Very rare.

Mr. CONNOLLY. Very rare. But is it not also relatively infrequent

that Congress seeks this kind of information when there, in fact,

is a pending investigation or a criminal trial? Is it frequent that

Congress brushes that aside and seeks to subpoena information

nonetheless?

Mr. Fisher.

Mr. FISHER. The question again, please?

Mr. CONNOLLY. Well, how frequent is it that Congress chooses,

even when there is a pending investigation, ongoing criminal open

investigation, nonetheless to subpoena documents that may be related to that investigation?

I am under the impression Congress has always shown—I am

sorry—has mostly shown, historically, some restraint under those

circumstances.

Mr. FISHER. Well, it can show restraint. But if what you are just

saying has to be done to fulfill a legislative purpose, then I think

you have to go ahead.

Mr. CONNOLLY. That is a different question. My question, Mr.

Fisher, was, how frequent is it that Congress brushes aside those

concerns and pursues the subpoena nonetheless?

Mr. FISHER. I don’t think Congress brushes aside, but it is frequent that Congress does go after the kind of information you are

asking. It is frequent.

Mr. CONNOLLY. When there is an open criminal investigation?

Mr. FISHER. Yes.

Mr. CONNOLLY. Professor Tiefer, is that your understanding?

Chairman ISSA. I would ask the gentleman have an additional 30

seconds.

Mr. CONNOLLY. Oh, I thank the chair. I am sorry. I was unmindful of time.

Chairman ISSA. No, no, you are doing fine. Another 30 seconds.

Mr. TIEFER. If we broaden it because the same argument is made

for open cases of other kinds—environmental, enforcement, and so

forth—our memos show a number of times, a number of times. And

for criminal ones, the most famous instances in history, like Teapot

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Dome but especially Watergate and Iran-Contra, are criminal

cases. Does it happen often? No. Does it happen? Yes.

Mr. ROSENBERG. But it is enough so that we can take it that it

is a prerogative of Congress to do it.

Mr. CONNOLLY. I would just remind Professor Tiefer that, in the

case of the investigations here in Congress, the Watergate hearings, they proceeded before criminal investigations were under

way. The Erwin hearings proceeded a full year before those criminal investigations.

I yield back.

Chairman ISSA. Thank you. And I guess the professor stands corrected here.

I would ask unanimous consent that the statement delivered to

us by the Department of Justice on today’s hearing be entered into

the record.

Without objection, so ordered.

[The information referred to follows:]

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Chairman ISSA. I am going to followup on that line of questioning.

Mr. Rosenberg, in the Bulger case, weren’t we dealing with informants? Wasn’t the whole case about informants who were committing crimes under the protection of Department of Justice?

Mr. ROSENBERG. Absolutely.

Chairman ISSA. And didn’t—I think this would have been

Clinger and then Burton. Didn’t they basically, you know, pursue

that in spite of initial pushback by DOJ?

Mr. ROSENBERG. There were claims that there were ongoing investigations, that there was ongoing litigation. Part of one of the

litigations was members of the families of some of the 20 or 25 victims who were bringing tort claim suits, and——

Chairman ISSA. So, just following up on that line from the gentleman from Virginia, it is for us to decide whether or not it is appropriate to hold back, that ultimately has to be something in

which we see enough to know that it may be prudent to delay or

in some other way explore; it can’t be unilateral by the executive

branch. Isn’t that what caselaw shows?

Mr. ROSENBERG. Yes.

Chairman ISSA. And do some of you remember a Congressman

who now works down the hall, Mr. Waxman? Weren’t there criminal cases and civil cases going in the Fallujah Four and in the Pat

Tillman case? Weren’t both of those, when the chairman of this

committee brought both of those before the Congress, including testimony, weren’t those—didn’t they both have other activities going

on?

Anyone remember? I mean, I do, but I want to make sure that

I am remembering correctly.

Mr. FISHER. I think for Pat Tillman, I remember that, yes.

Chairman ISSA. OK. So it seems like we do have a strong issue.

I think, Mr. Fisher, at one point, you had talked in terms of the

political—and I think Mr. Tatelman did, too—political versus legal

and political versus constitutional. Our investigation about whether

the policy, including a 20-year-old policy, or 22-year-old policy, at

ATF that has been asserted to say that it is OK for guns to walk,

it is OK for deadly weapons to get in the hands of people who then

could kill a Federal agent or some other innocent bystander, that

questioning that policy, which is at the heart of this investigation,

should we wait while that ATF rule is still in place, while there

still may, in fact, be guns or explosives or drugs walking?

That is the real question here, is, is the balance of prosecutions

versus the balance of this policy, is that a legitimate question for

this committee to explore sooner rather than later?

Mr. Rosenberg.

Mr. ROSENBERG. Absolutely, that you are right to do it. And, as

I mentioned, the Dingell investigation of the environmental crimes

unit was exactly that. A policy of centralizing the prosecutorial decisions in Washington as opposed to any other kinds of prosecutorial decisions was one that was ongoing. And the point of the

ongoingness was disturbing, in that it made for perhaps discriminatory kinds of decisions being made not on the ground, not by the

people who were investigating them, but from Washington itself.

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And it took 21⁄2 years and there was a voluntary recision of that

particular policy.

But to wait around until they, you know, talked about it and discussed it would seem to Mr. Dingell at the time to be, you know,

unquestionable, that they had to go after it.

Chairman ISSA. Well, you are in rarefied and good company if

your investigation is compared even in a small way to Chairman

Dingell’s.

Mr. Fisher.

Mr. FISHER. I would use the two words ‘‘political’’ and ‘‘legal.’’ I

think the way you described it, the two words come together, because you have a political concern about this ATF policy in place

for a long time and you have legitimate legal concerns, that this

is something that you have to investigate to make sure it doesn’t

continue.

Chairman ISSA. Well, with that, I am going to do something unusual. I am going to yield back my own time, and thank all four

of our panelists for probably the most—I hope if C–SPAN watchers

are watching this, that they appreciate that, except for possibly

with Thomas Jefferson alone in his study, we haven’t brought this

much intellectual capital to a hearing in a very, very long time.

I thank you for your testimonies.

And we stand adjourned.

[Whereupon, at 2:45 p.m., the committee was adjourned.]

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