79–010 

Calendar No. 1125 

Calendar No. 1126 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–522 

NOVEMBER 19, 2008.—Ordered to be printed 

Mr. LEAHY, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[To accompany S. Res. 707 and S. Res. 708] 

The Committee on the Judiciary, reports favorably on original 

resolutions (S. Res. 707) authorizing the President of the Senate to 

certify the facts of the failure of Joshua Bolten, as the Custodian 

of Records at the White House, to appear before the Committee on 

the Judiciary and produce documents as required by Committee 

subpoena, and (S. Res. 708) authorizing the President of the Senate 

to certify the facts of the failure of Karl Rove to appear and testify 

before the Committee on the Judiciary and to produce documents 

as required by Committee subpoena, and recommends that the resolutions do pass. 

CONTENTS 

Page 

I. Purpose and Background of Resolutions ...................................................... 2 

II. Hearings and Interviews ............................................................................... 4 

III. Committee’s Efforts To Reach Accommodation Were Futile ...................... 9 

IV. Non-compliance with Committee’s Subpoenas ............................................ 12 

V. Ruling on Executive Privilege and Immunity Claims ................................ 13 

VI. Resolutions of Contempt ............................................................................... 20 

VII. The Privilege and Immunity Claims Are Not Legally Valid to Excuse 

Compliance ................................................................................................. 24 


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1See ‘‘An Investigation into the Removal of Nine U.S. Attorneys in 2006,’’ U.S. Department 

of Justice Office of the Inspector General and U.S. Department of Justice Office of Professional 

Responsibility, September 29, 2008, chart at 18–19. 

VIII. Continued Non-Compliance Despite District Court’s Decision in House 

Judiciary Committee Lawsuit Dismissing the Administration’s Immunity and Blanket Privilege Claims ........................................................... 39 

IX. Department of Justice’s Internal Investigation Confirmed Judiciary 

Committee’s Findings Though Impeded by White House Refusal to 

Cooperate .................................................................................................... 42 

X. Conclusion ...................................................................................................... 48 

XI. Minority Views of Senators Specter and Grassley ...................................... 49 

XII. Minority Views of Senators Kyl, Sessions, Brownback and Coburn ......... 54 

I. PURPOSE AND BACKGROUND OF THE RESOLUTIONS

Since the beginning of the 110th Congress, the Judiciary Committee has conducted an investigation into the unprecedented mass 

firings of Federal prosecutors by those in the administration of the 

President who appointed them. 

The investigation began after news reports in late 2006 and early 

2007 revealed that seven U.S. Attorneys had been fired on December 7, 2006: David C. Iglesias, District of New Mexico; Carol Lam, 

Southern District of California; John McKay, Western District of 

Washington; Daniel Bogden, District of Nevada; Paul K. Charlton, 

District of Arizona; Margaret Chiara, Western District of Michigan; 

and Kevin Ryan, Northern District of California. The Committee 

subsequently learned that H.E. ‘‘Bud’’ Cummins, III, Eastern District of Arkansas, was told to resign in June 2006, and that Todd 

Graves, Western District of Missouri, was asked to resign in January 2006. According to a joint investigation by the Department’s 

Office of Inspector General (IG) and Office of Professional Responsibility (OPR), 28 U.S. Attorneys appeared on lists of those being 

considered for firing between the beginning of 2005 and the end of 

2006.1 The report verified news accounts that several dozen U.S. 

Attorneys were considered for firing. 

In the course of this investigation, which led to the resignations 

of the Attorney General, the senior leadership of the Justice Department, their staff, and several high-ranking White House political officials, the Committee has uncovered grave threats to the 

independence of law enforcement from political manipulation. The 

evidence accumulated from the testimony of nearly 20 current and 

former Justice Department officials, as well as documents released 

by the Department, shows that the list for firings was compiled 

with participation from the highest political ranks in the White 

House, including former White House Deputy Chief of Staff Karl 

Rove. The evidence shows that senior officials were focused on the 

political impact of Federal prosecutions and whether Federal prosecutors were doing enough to bring partisan voter fraud and corruption cases. It is now apparent that the reasons given for these 

firings, including those reasons provided in sworn testimony by the 

Attorney General and Deputy Attorney General, were contrived as 

part of a cover-up. 

The Committee’s attempts to obtain information from the White 

House, first requested voluntarily and later legally compelled by 

subpoena, have been met with stonewalling. In the process, the 

White House has asserted blanket claims of executive privilege, 

and novel claims of absolute immunity, to block current and former 


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2See Watkins v. United States, 354 U.S. 178, 187 (1957). 3See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927). 4Watkins v. United States, 354 U.S. 178, 187 (1957). 5See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109–177, Title V, 502, 120 Stat. 546 (Mar. 

9, 2006); amended by Pub. L. No. 110–34, 2, 121 Stat. 224 (June 14, 2007). 6 U.S. Const. Art. II, 2, cl. 2. 

officials from testifying and producing documents in compliance 

with the Committee’s subpoenas. 

The constitutional powers of Congress and the responsibilities of 

this Committee to the Senate and the American people overcome 

unsubstantiated privilege claims by the White House. The Supreme 

Court has long recognized that Congress has ‘‘broad’’ power to investigate ‘‘the administration of existing laws’’ and to ‘‘expose corruption, inefficiency, waste’’ within the executive branch.2 The evidence obtained by the Judiciary Committee’s investigation, and the 

resulting reports issued by the Department of Justice’s Inspector 

General and Office of Professional Responsibility, raises concerns 

about the violation of Federal laws, including possible obstruction 

of justice, laws that prohibit providing misleading or inaccurate 

testimony to Congress, and possible violations of laws, including 

the Hatch Act, that prohibit retaliation against Federal employees 

for improper political reasons. The Committee has a responsibility 

to conduct investigations and obtain information from the executive 

branch in order to consider legislation within its jurisdiction,3 including legislation related to the appointment of U.S. Attorneys, 

and to protect the Committee’s role in evaluating nominations pursuant to the Senate’s constitutional responsibility to provide advice 

and consent. 

The Supreme Court has long held that oversight is ‘‘inherent in 

the legislative process’’ and vital for ‘‘prob[ing] into departments of 

the Federal Government to expose corruption, inefficiency or 

waste.’’ 4 The investigation demonstrated the relationship between 

the Committee’s oversight and investigative powers, and its responsibilities to legislate and evaluate nominations. In fact, in connection to this investigation, the Judiciary Committee considered and 

reported the ‘‘Preserving United States Attorney Independence Act 

of 2007’’ (S. 214), a bill introduced by Senator Feinstein and which 

was signed into law on June 14, 2007, to close a loophole exploited 

by the Department of Justice and the White House to enable 

abuses to occur. The new law rescinded the Attorney General’s 

power to appoint interim U.S. Attorneys to serve indefinitely without congressional approval.5

Not only does the Senate have the power to confirm a President’s 

U.S. Attorney nominations, a matter under Senate rules within the 

jurisdiction of this Committee, but the appointment power is given 

to Congress by the Constitution. In Article II, the President’s appointment power is limited by the power of Congress. In addition, 

constitutional provisions calling for appointments with the advice 

and consent of the Senate and for the President’s limited power to 

make recess appointments, the Constitution provides: ‘‘But the 

Congress may by law vest the appointment of such inferior officers, 

as they think proper, in the President alone, in the courts of law, 

or in the Heads of Departments.’’ 6 In 2007, the Eastern District of 

Arkansas joined at least two other courts addressing the interim 

appointment of U.S. Attorneys—the First Circuit in United States 


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7 218 F.3d 19 (1st Cir. 2000) (upholding the constitutionality of the pre-Patriot Act reauthorization law on interim appointments, including the role of the district court about which the 

administration earlier this year raised separation of powers concerns). 8See United States v. Baker, 504 F.Supp.2d 402, 412 (2007). 

v. Hilario,7 and the Ninth Circuit in United States v. Gantt in concluding that U.S. Attorneys are ‘‘inferior officers.’’ 8 Thus, Congress—and in particular this Committee—has a vested interest in 

obtaining information relating to the appointment and removal of 

U.S. Attorneys in order to fulfill its constitutional duty to provide 

for the appointment of inferior officers. 

On November 29, 2007, Chairman Leahy ruled that the White 

House’s claims of executive privilege and immunity are not legally 

valid to excuse current and former White House employees from 

appearing, testifying and producing documents related to this investigation. Accordingly, Chairman Leahy directed Karl Rove and 

White House Chief of Staff Joshua Bolten to comply immediately 

with the Committee’s subpoenas by producing documents and testimony. They failed to do so, and on December 13, 2007, a bipartisan 

majority of the Committee voted to report favorably resolutions 

finding Mr. Rove and Mr. Bolten in contempt of Congress. 

II. HEARINGS AND INTERVIEWS

A. SENATE JUDICIARY COMMITTEE HEARINGS

January 18, 2007 

Hearing: Oversight of the U.S. Department of Justice. 

Senate Judiciary Committee. 

Witnesses: • Alberto Gonzales, Attorney General, U.S. Department of 

Justice 

February 6, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys. 

Senate Judiciary Committee. 

Witnesses: • Mark Pryor, U.S. Senator, Arkansas • Paul J. McNulty, Deputy Attorney General, U.S. Department of Justice • Mary Jo White, Partner, Debevoise & Plimpton, LLP, New 

York, NY • Laurie L. Levenson, Professor of Law, Loyola Law School, 

Los Angeles, CA • Stuart M. Gerson, Partner, Epstein Becker & Green, 

Washington, DC 

March 6, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part II. 

Senate Judiciary Committee. 

Witnesses: • H.E. ‘‘Bud’’ Cummins, III, Former U.S. Attorney for the 

Eastern District of Arkansas 


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• David C. Iglesias, Former U.S. Attorney for the District of 

New Mexico 

• Carol Lam, Former U.S. Attorney for the Southern District 

of California 

• John McKay, Former U.S. Attorney for the Western District of Washington 

March 29, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III. 

Senate Judiciary Committee. 

Witnesses: 

• D. Kyle Sampson, former Chief of Staff to the Attorney 

General, U.S. Department of Justice 

April 19, 2007 

Hearing: Department of Justice Oversight. 

Senate Judiciary Committee. 

Witnesses: 

• Alberto Gonzales, Attorney General, U.S. Department of 

Justice 

May 15, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part IV. 

Senate Judiciary Committee. 

Witnesses: 

• James B. Comey, former Deputy Attorney General, U.S. 

Department of Justice 

June 5, 2005 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part V. 

Senate Judiciary Committee. 

Witnesses: 

• Panel I 

• Bradley J. Schlozman, Associate Counsel to the Director, Executive Office for U.S. Attorneys, former Interim 

U.S. Attorney for the Western District of Missouri, former 

Principal Deputy Assistant Attorney General and Acting 

Assistant Attorney General for the Civil Rights Division, 

U.S. Department of Justice 

• Panel II 

• Todd Graves, former U.S. Attorney for the Western 

District of Missouri 

June 27, 2007 

Hearing: Oversight of the Federal Death Penalty. 

Senate Judiciary Committee, Subcommittee on the Constitution. 

Witnesses: 

• Panel I 


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• Barry Sabin, Deputy Assistant Attorney General, U.S. 

Department of Justice 

• Panel II 

• David I. Bruck, Esq., Federal Death Penalty Resource 

Counsel, Lexington, VA 

• Paul K. Charlton, former U.S. Attorney for the District 

of Arizona 

• David B. Mulhausen, Ph.D., Senior Policy Analyst, 

Center for Data Analysis, The Heritage Foundation, Washington, DC 

• William G. Otis, former Chief of the Appellate Division, U.S. Attorney’s Office, Eastern District of Virginia 

• Roberto J. Sa ́nchez Ramos, Secretary of Justice, Commonwealth of Puerto Rico 

• Hilary O. Shelton, Director, Washington Bureau, National Association for the Advancement of Colored People 

July 11, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part VI. 

Senate Judiciary Committee. 

Witnesses: 

• Sara M. Taylor, former Deputy Assistant to the President and Director of Political Affairs, The White House 

August 2, 2007 

Hearing: Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part VII. 

Senate Judiciary Committee. 

Witnesses: 

• J. Scott Jennings, former Deputy Director of Political Affairs, The White House 

B. HOUSE JUDICIARY COMMITTEE HEARINGS

March 6, 2007 

Hearing: H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys. 

House Judiciary Committee, Commercial and Administrative 

Law Subcommittee. 

Witnesses: 

• Panel I 

• William E. Moschella, Principal Associate Deputy Attorney General, U.S. Department of Justice 

• Panel II 

• Carol C. Lam, Former U.S. Attorney for the Southern 

District of California 

• David C. Iglesias, Former U.S. Attorney for the District of New Mexico 

• Daniel Bogden, Former U.S. Attorney for the District 

of Nevada 

• Paul K. Charlton, Former U.S. Attorney for the District of Arizona 


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• H. E. Cummins III, Former U.S. Attorney for the 

Eastern District of Arkansas • John McKay, Former U.S. Attorney for the Western 

District of Washington • Panel III 

• Darrell E. Issa, Member, U.S. House of Representatives • Asa Hutchinson, former Member, U.S. House of Representatives • John A. Smietanka, former U.S. Attorney for the 

Western District of Michigan • Altee W. Wampler III, President, National Association 

of Former U.S. Attorneys • George J. Terwilliger III, Partner, White and Case 

LLP • T.J. Halstead, Legislative Attorney, American Law Division, Congressional Research Service 

March 29, 2007 

Hearing: Ensuring Executive Branch Accountability. 

House Judiciary Committee, Subcommittee on Commercial and 

Administrative Law. 

Witnesses: • Noel J. Francisco, former Associate Counsel to President 

George W. Bush, Partner, Jones Day Washington, D.C. • Beth Nolan, former White House Counsel to President Bill 

Clinton, Partner, Crowell & Moring Washington, D.C. • John Podesta, former White House Chief of Staff to President Bill Clinton, President and Chief Executive Officer Center 

for American Progress, Washington, D.C. • Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan 

Center for Justice at NYU School of Law 

May 3, 2007 

Hearing: The Continuing Investigation into the U.S. Attorneys 

Controversy Witnesses. 

House Judiciary Committee, Subcommittee on Commercial and 

Administrative Law. 

Witnesses: 

• James B. Comey, former Deputy Attorney General, U.S. 

Department of Justice 

May 10, 2007 

Hearing: Oversight Hearing on the United States Department of 

Justice. 

House Judiciary Committee. 

Witnesses: 

• Alberto Gonzales, Attorney General, U.S. Department of 

Justice 

May 23, 2007 

Hearing: The Continuing Investigation into the U.S. Attorneys 

Controversy and Related Matters. 

House Judiciary Committee. 

Witnesses: 


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• Monica Goodling, former Justice Department White House 

Liaison 

June 21, 2007 

Hearing: The Continuing Investigation into the U.S. Attorneys 

Controversy and Related Matters. 

House Judiciary Committee. 

Witnesses: 

• Paul J. McNulty, Deputy Attorney General, U.S. Department of Justice 

C. INTERVIEWS (CONDUCTED BY HOUSE AND SENATE JUDICIARY

COMMITTEE STAFF UNLESS OTHERWISE NOTED)

March 30, 2007 

Interview with Michael Elston, Chief of Staff, Office of the Deputy Attorney General [House only]. 

April 11, 2007 

Interview with William Mercer, Acting Associate Attorney General, U.S. Department of Justice. 

April 12, 2007 

Interview with Michael Battle, former Executive Director, Executive Office for U.S. Attorneys. 

April 15, 2007 

Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General of the United States. 

April 18, 2007 

Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General of the United States. 

April 24, 2007 

Interview with William E. Moschella, Principal Associate Deputy 

Attorney General, U.S. Department of Justice. 

April 27, 2007 

Interview with Paul J. McNulty, Deputy Attorney General, U.S. 

Department of Justice. 

May 1, 2007 

Interview with David Margolis, Associate Deputy Attorney General. 

May 4, 2007 

Interview with Matthew Friedrich, Chief of Staff and Principal 

Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice. 

May 8, 2007 

Interview with Larry Gomez, Acting U.S. Attorney for the District of New Mexico. 


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May 21, 2007 

Interview with David Nowacki, Principal Deputy Director, Executive Office for U.S. Attorneys. 

June 15, 2007 

Interview with Mary Beth Buchanan, U.S. Attorney for the Western District of Pennsylvania, former Director of the Executive Office for U.S. Attorneys, U.S. Department of Justice. 

July 10, 2007 

Interview with D. Kyle Sampson, former Chief of Staff to the Attorney General of the United States. 

September 14, 2007 

Interview with Dana Simpson, attorney from Alabama [House 

only]. 

III. COMMITTEE’S EFFORTS TO REACH ACCOMMODATION WERE

FUTILE

Before the issuance of the Committee’s first subpoena to White 

House officials, the Committee sought, to no avail, the voluntary 

cooperation of the White House and its current and former employees. Instead, the President and the White House counsel conditioned any limited availability of information on a demand that 

whatever the White House were to provide initially would end the 

matter, and the Senate Judiciary Committee would agree to halt 

its investigation. They also demanded that any information provided be shared behind closed doors, not under oath and without 

a transcript. Despite mounting evidence of significant involvement 

by White House political officials, the White House did not produce 

a single document or allow even one White House employee or 

former employee involved in these matters to be interviewed voluntarily. 

The administration has continued to rebuke the Committee’s efforts to reach an accommodation since this initial, unacceptable 

‘‘take it or leave it’’ offer. At each step, the Committee has sought 

an accommodation, but the White House has reiterated its initial 

offer. Chairman Leahy issued Committee-authorized subpoenas 

only after extensive efforts to reach a voluntary accommodation, 

and having concluded that further efforts to reach an accommodation would be futile. 

Before issuing the subpoenas, the Committee sent nearly a dozen 

letters seeking voluntary cooperation from the White House and its 

current and former employees with the investigation: 

• On March 13, 2007, Chairman Leahy and Senator Specter, the 

Committee’s Ranking Member, sent a letter to White House Counsel Fred Fielding echoing a March 9, 2007, request from the House 

Judiciary Committee for documents and interviews with White 

House officials related to the U.S. Attorney investigation. Chairman Leahy and Senator Specter also sent letters to then White 

House Deputy Chief of Staff Karl Rove, then Deputy White House 

Counsel William Kelley, and former White House Counsel Harriet 

Miers seeking their voluntary cooperation with the Committee’s investigation. On March 15, 2007, Chairman Leahy and Senator 


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Specter sent a similar letter to Special Assistant to the President 

and Deputy Director of Political Affairs J. Scott Jennings. • On March 20, 2007, Mr. Fielding sent a letter to the Senate 

and House Judiciary Committees making a ‘‘take it or leave it’’ 

offer of off-the-record interviews with current and former White 

House employees, with no transcript, no oath, and no ability to follow up. Mr. Fielding offered to produce a small subset of the documents requested, but only as part of an agreement to the offer, 

which would prejudice any further investigative steps. • On March 22, 2007, Chairman Leahy and nine Members of the 

Senate Judiciary Committee sent a letter to Mr. Fielding explaining that this ‘‘take it or leave it’’ offer was unacceptable because 

it would constrain the Committee’s and the public’s access to key 

information, and prejudge the outcome of the investigation. Republican Members of the Committee also publicly and privately recognized that such off-the-record meetings would be inadequate, and 

inhibit the Committee’s exercise of its investigative, oversight and 

legislative functions. On the same day, the Committee authorized 

subpoenas for Mr. Rove, Ms. Miers, and Mr. Kelley. • On March 28, 2007, having received no response from the 

White House to the March 22, 2007, letter, Chairman Leahy and 

House Judiciary Committee Chairman Conyers, in an effort to further the investigation, sent Mr. Fielding a letter seeking to narrow 

the dispute and gain access to documents the White House had 

previously offered to provide as part of its ‘‘take it or leave it’’ proposal. • Still having received no response from Mr. Fielding to the previous two letters, Chairman Leahy sent Mr. Fielding another letter 

on April 5, 2007, asking for the ‘‘reviews by White House staff’’ that 

led the President to say on March 20, 2007, that there was no 

wrongdoing. • On April 11, 2007, Chairman Leahy and Senator Specter sent 

a letter to then White House Director of Political Affairs Sara M. 

Taylor seeking her voluntary cooperation with the Committee’s investigation. 

• On April 12, 2007, in light of the Committee’s request for 

White House emails related to the investigation, Chairman Leahy 

and Senator Specter sent a letter to Mr. Fielding requesting information about revelations that dozens of White House officials used 

non-governmental Republican National Committee email accounts 

for official government business. No White House emails have been 

turned over to the Committee. 

• On April 12, 2007, and April 25, 2007, the Judiciary Committee authorized subpoenas for White House Chief of Staff Joshua 

Bolten as custodian of documents for the White House and Mr. 

Jennings and Ms. Taylor, respectively. 

• Still having not received answers to the previous letters nearly 

two months after rejecting the White House’s initial offer as unacceptable, Chairman Leahy sent Mr. Fielding a letter on May 16, 

2007, recounting the previous requests for information and summarizing the evidence gathered by the investigating Committees of 

the Senate and House. This evidence showed that White House officials played a significant role in originating, developing, coordinating and implementing the plan for firing U.S. Attorneys, and 

the Justice Department’s response to congressional inquiries about 


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9See March 21, 2007, letter from Congressman Henry A. Waxman, Chairman, House Committee on Oversight and Government Reform, to Senator Patrick Leahy and Congressman John 

Conyers, Jr. 10Morton Rosenberg, Congressional Oversight Manual, CRS–39. 11 In re Sealed Case, 121 F.3d at 755. 12The minority views filed by Senators Kyl, Sessions, Brownback and Coburn quote Chairman 

Leahy and other Democratic Senators out of context to suggest that the actions taken by the 

Committee in this investigation stand in contrast to past statements recognizing that ‘‘issuing 

a subpoena was a serious matter that should be undertaken only after substantial deliberation.’’ 

Continued 

it. This evidence also included an apparent effort to minimize admissions of the involvement by White House officials. The letter repeated the request for voluntary cooperation, but notified Mr. 

Fielding that the Chairman would have no choice but to issue subpoenas if it was not forthcoming. • On June 7, 2007, Mr. Fielding sent a letter to the Senate and 

House Judiciary Committees disputing any wrongdoing and reiterating the same ‘‘take it or leave it’’ offer from March 20, 2007, 

for backroom interviews that the Committee rejected three months 

earlier. No documents accompanied the letter. • After exhausting avenues of voluntary cooperation, on June 13, 

2007, and July 26, 2007, Chairman Leahy issued subpoenas, authorized by the Committee in April 2007, for White House documents from Mr. Bolten and for documents and testimony from Mr. 

Rove. These subpoenas were met with non-compliance, eliciting 

blanket claims of executive privilege and immunity from the White 

House. • On August 14, 2007, at the urging of Senator Specter, Chairman Leahy wrote to President Bush suggesting a meeting to work 

out differences with respect to the investigation before the Committee would be forced to consider citations for contempt of Congress by current and former White House officials. Mr. Fielding responded for the President on August 17, 2007, rejecting the offer. 

This stonewalling is a dramatic break from the practices of every 

administration since World War II in responding to congressional 

oversight.9 In that time, presidential advisors have testified before 

congressional committees 74 times, either voluntarily or compelled 

by subpoenas. During the Clinton administration, White House and 

administration advisors were routinely subpoenaed for documents 

or to appear before Congress. For example, in 1996 alone, the 

House Government Reform Committee issued at least 27 subpoenas to White House advisors. According to the Congressional 

Oversight Manual produced by the non-partisan Congressional Research Service, most disputes between Congress and the executive 

branch about access to documents and information are resolved 

through compromise.10 The veil of secrecy this administration has 

insisted upon is unprecedented and damaging to the tradition of 

open government that has been a hallmark of this Republic. 

Failure to provide information through accommodation despite 

the established public need for it bolsters the need to overcome 

claims of executive privilege. Executive privilege is overcome where 

the subpoenaed materials likely contain important information and 

where that information is not available elsewhere.11 The evidence 

the Committee obtained in this investigation shows significant involvement by senior White House officials, but the White House 

has closed all avenues for obtaining materials necessary to answer 

critical questions about its involvement.12


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To the contrary, as demonstrated in exhaustive detail in this report, this Committee undertook 

extensive efforts to reach an accommodation with the administration before authorizing subpoenas, before issuing subpoenas, before issuing any rulings, and before voting on contempt resolutions. Judge Bates of the District Court for the District of Columbia recounted the extent 

of the efforts taken by both the House and Senate Judiciary Committees to reach an accommodation with the administration in rejecting the administration’s claims of absolute immunity 

and blanket unsubstantiated privilege. Judge Bates acknowledged that these efforts had been 

to no avail in light of the administration’s continued reliance on its initial ‘‘take it or leave it’’ 

proposal for off-the-record, backroom interviews with no transcript, no oath, and no ability to 

follow up, which would deny Congress the ability to fulfill its legislative and oversight responsibilities. 

The Bush Administration’s approach is a sharp break from the approach of past administrations, such as the Clinton Administration, in which 47 presidential advisors testified before Congress. Indeed, the Committee’s deliberation in continuing to seek an accommodation with the 

administration even after voting to adopt the contempt resolutions has led Senators Specter and 

Grassley to file minority views to question whether the matter is now ‘‘somewhere between moot 

and meaningless’’ because so much time has passed. Although the administration has continued 

to stonewall the investigation, three reports from the Department of Justice’s Inspector General 

and Office of Professional Responsibility have confirmed the Committee’s findings of serious 

wrongdoing, a federal court has rejected the administration’s immunity and privilege claims, 

and the Attorney General has referred the matter to a Special Prosecutor for further investigation to determine whether crimes occurred. 13Letter from Fred Fielding, White House counsel, to Chairman Leahy and Senator Specter 

(August 1, 2007). 14Mr. Fielding’s letter also responded to a subpoena issued June 13 to former White House 

employee Sara Taylor for documents and testimony. Mr. Fielding’s letter asserted that the testimony of Ms. Taylor would be subject to a claim of executive privilege. That same day, Mr. Fielding informed Ms. Taylor’s attorney, W. Neil Eggleston, that the President claimed executive 

privilege over all responsive documents. Mr. Eggleston by letter informed the Committee that 

Ms. Taylor was not producing the compelled documents, but rather turning responsive documents over to the White House. Ms. Taylor was directed by Mr. Fielding not to testify, and 

when she appeared before the Senate Judiciary Committee on July 11, 2007, she selectively invoked Mr. Fielding’s letter to answer some, but not to answer many other, questions regarding 

the firings. 

IV. FORMER AND CURRENT WHITE HOUSE OFFICIALS FAILED TO

COMPLY WITH THE SENATE JUDICIARY COMMITTEE’S SUBPOENAS, 

CITING BLANKET EXECUTIVE PRIVILEGE AND IMMUNITY CLAIMS

In response to Senate Judiciary Committee subpoenas for White 

House documents and for documents and testimony from current 

and former White House officials related to the mass firings of U.S. 

Attorneys, White House Counsel Fred Fielding has conveyed President Bush’s blanket claim of executive privilege over all information from the White House related to the Committee’s investigation. In addition to its privilege claims, the White House has asserted the novel claim that Karl Rove, subpoenaed by this Committee for testimony and documents, is immune as an ‘‘immediate 

Presidential Advisor’’ from appearing at all.13

The effects of the White House’s assertions of privilege and immunity have been to withhold critical information related to the 

Committee’s investigation. The Committee has demonstrated that 

it needs the subpoenaed materials in order to perform its constitutional legislative, investigative, and oversight functions and to explore the veracity of administration responses to requests for information from the Committee. 

On June 13, 2007, Chairman Leahy issued a subpoena authorized April 12, 2007, to Mr. Bolten, the White House custodian of 

records, for documents related to the Committee’s investigation. 

The return date for the documents from Mr. Bolten was June 28, 

2007. 

On June 28, 2007, Mr. Fielding sent a letter to the Senate and 

House Judiciary Committees making a blanket claim of executive 

privilege on behalf of President Bush, refusing to turn over any 

documents compelled by subpoenas.14


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15Mr. Fielding’s August 1, 2007, letter also informed the Committee that the President would 

invoke the blanket claim of executive privilege in response to a July 26, 2007, subpoena of Scott 

Jennings. On August 2, 2007, Mr. Fielding sent a letter to Mr. Jennings informing him that 

he was ‘‘directed’’ not to produce documents or testify before Congress regarding the U.S. Attorney firings due to the President’s blanket privilege claim. When Mr. Jennings appeared before 

the Senate Judiciary Committee on August 2, 2007, he selectively invoked Mr. Fielding’s letter 

not to answer most questions from members of the Committee. 16Letter from Fred Fielding, White House Counsel, to Chairman Leahy and Senator Specter 

(August 1, 2007). 

In response to the White House’s blanket privilege claims, on 

June 29, 2007, the Chairmen of the Senate and House Judiciary 

Committees sent Mr. Fielding a letter asking the White House to 

provide the Committees with the specific factual and legal bases for 

its privilege claims regarding each document withheld and a privilege log. They asked the White House to provide this information 

so that it could substantiate its claim. A serious assertion of privilege would include an effort to demonstrate to the Committees 

which documents, and which parts of those documents, are covered 

by any privilege that is asserted to apply and why. The White 

House declined this opportunity in a July 9, 2007, letter to the 

Committee Chairmen. No factual basis for the blanket claims and 

no specificity with respect to those claims of privilege have been 

provided. 

On July 26, 2007, Chairman Leahy issued a subpoena to Mr. 

Rove for documents and testimony related to the Committee’s investigation. This subpoena had been authorized by the Committee 

on March 22, 2007. It had a return date of August 2, 2007. Mr. 

Fielding sent a letter August 1, 2007, to Chairman Leahy and Senator Specter informing the Committee that the President would invoke the blanket claim of executive privilege to direct Mr. Rove not 

to produce responsive documents or testify before the Committee 

about the firings.15 In addition, this letter asserted that Mr. Rove 

was ‘‘immune from compelled congressional testimony’’ as an ‘‘immediate presidential advisor’’ and would not even appear in response to the Committee’s subpoena.16

Before ruling on the White House’s executive privilege and immunity claims, Chairman Leahy wrote to President Bush on August 14, 2007, at the urging of Senator Specter, suggesting a meeting to work out differences with respect to the investigation before 

the Committee. Mr. Fielding responded for the President on August 

17, 2007, and rejected the request for a meeting. 

Executive privilege is not a broad and sweeping authority the 

President can hide behind because he does not want to cooperate 

with congressional oversight because White House actions are embarrassing or worse. It should not prevent Congress from examining White House documents vitally important to a legitimate investigation. While courts have recognized a qualified executive 

privilege, that privilege, even when properly invoked, is not absolute and must be balanced against the Committee’s compelling 

need for the information in order for Congress to perform its constitutional functions. 

V. RULING ON EXECUTIVE PRIVILEGE AND IMMUNITY CLAIMS

Having been unable to reach accommodation with the White 

House, on November 29, 2007, Chairman Leahy ruled on the privilege and immunity claims. He held them not legally valid and diVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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rected Mr. Rove and Mr. Bolten to comply with the Senate subpoenas. His ruling is reprinted below: 


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VI. RESOLUTIONS FINDING JOSHUA BOLTEN AND KARL ROVE IN

CONTEMPT OF CONGRESS FOR FAILURE TO COMPLY WITH THE

SENATE SUBPOENAS

Despite Chairman Leahy’s ruling, Mr. Rove and Mr. Bolten continued in noncompliance with the subpoenas. Mr. Bolten was 

scheduled to appear and provide documents to the Committee by 

June 28, 2007, and Mr. Rove was summoned to testify before the 

Judiciary Committee on August 2, 2007. Both failed to appear. On 

December 13, 2007, the Judiciary Committee found Mr. Rove and 

Mr. Bolten to be in contempt of Congress for failing to comply with 

the subpoenas issued in connection with the Committee’s investigation into the mass firings of U.S. Attorneys. The bipartisan vote to 

report the contempt resolutions came two weeks after Chairman 

Leahy ruled that the President’s claims of executive privilege were 

overbroad and not legally valid to excuse Mr. Rove and Mr. Bolten 

from providing Congress with subpoenaed documents and testimony. 

A. FORM OF THE RESOLUTIONS

The resolutions of contempt, certifying the noncompliance of Mr. 

Rove and Mr. Bolten are reprinted below: 

RESOLUTION 

Authorizing the President of the Senate to certify the 

facts of the failure of Joshua Bolten, as the Custodian of 

Records at the White House, to appear before the Committee 

on the Judiciary and produce documents as required by 

Committee subpoena. 

WHEREAS, since the beginning of this Congress, the 

Senate Judiciary Committee has conducted an investigation into the removal of United States Attorneys; 

WHEREAS, the Committee’s requests for information related to its investigation, including documents and testimony from the White House and White House personnel, 

were denied; 

WHEREAS, the White House has not offered any accommodation or compromise to provide the information requested that is acceptable to the Committee; 

WHEREAS, on April 12, 2007, pursuant to its authority 

under Rule 26 of the Standing Rules of the Senate, the 

Senate Committee on the Judiciary authorized issuance to 

the Custodian of Records at the White House, a subpoena 

which commands the Custodian of Records to provide the 

Committee with all documents in the possession, control, 

or custody of the White House related to the Committee’s 

investigation; 

WHEREAS, on June 13, 2007, the Chairman issued a 

subpoena pursuant to the April 12, 2007, authorization to 

White House Chief of Staff Joshua Bolten as the White 

House Custodian of Records, for documents related to the 

Committee’s investigation, with a return date of June 28, 

2007; 

WHEREAS, on June 28, 2007, in response to subpoenas 

for documents issued by the Senate and House Judiciary 


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Committees, White House Counsel Fred Fielding conveyed 

the President’s claim of executive privilege over all information in the custody and control of the White House related to the Committee’s investigation; 

WHEREAS, based on this claim of executive privilege, 

Mr. Bolten refused to appear and produce documents to 

the Committee in compliance with the subpoena; 

WHEREAS, on June 29, 2007, the Chairmen of the 

House and Senate Judiciary Committees provided the 

White House with an opportunity to substantiate its privilege claims by providing the Committees with the specific 

factual and legal bases for its privilege claims regarding 

each document withheld and a privilege log to demonstrate 

to the Committees which documents, and which parts of 

those documents, are covered by any privilege that is asserted to apply and why; 

WHEREAS, the White House declined this opportunity 

in a July 9, 2007, letter to the Committee Chairmen from 

Mr. Fielding, while reiterating the privilege claim; 

WHEREAS, on August 17, 2007, Mr. Fielding rejected 

the Chairman’s request for a meeting with the President 

to work out an accommodation for the information sought 

by the Committee; 

WHEREAS, on November 29, 2007, the Chairman ruled 

that the White House’s claims of executive privilege and 

immunity are not legally valid to excuse current and 

former White House employees from appearing, testifying 

and producing documents related to this investigation and 

directed Mr. Bolten, along with other current and former 

White House employees, to comply immediately with the 

Committee’s subpoenas by producing documents and testifying; 

WHEREAS, Mr. Bolten has not complied with the Committee’s subpoenas or made any offer to cure his previous 

noncompliance; 

WHEREAS, the Committee’s investigation is pursuant 

to the constitutional legislative, oversight and investigative 

powers of Congress and the responsibilities of this Committee to the Senate and the American people; including 

the power to: (1) investigate the administration of existing 

laws, and obtain executive branch information in order to 

consider new legislation, within the Committee’s jurisdiction, including legislation related to the appointment of 

U.S. Attorneys; (2) expose any corruption, inefficiency, and 

waste within the executive branch; (3) protect the Committee’s role in evaluating nominations pursuant to the Senate’s constitutional responsibility to provide advice and 

consent; and (4) examine whether inaccurate, incomplete, 

or misleading testimony or other information was provided 

to the Committee; 

BE IT RESOLVED, that the President of the Senate certify the facts in connection with the failure of Joshua 

Bolten, as the Custodian of Records at the White House, 

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mittee, under the seal of the United States Senate, to the 

United States Attorney for the District of Columbia, to the 

end that Joshua Bolten may be proceeded against in the 

manner and form provided by law. 

RESOLUTION 

Authorizing the President of the Senate to certify the 

facts of the failure of Karl Rove to appear and testify before 

the Committee on the Judiciary and to produce documents 

as required by Committee subpoena. 

WHEREAS, since the beginning of this Congress, the 

Senate Judiciary Committee has conducted an investigation into the removal of United States Attorneys; 

WHEREAS, the Committee’s requests for information related to its investigation, including documents and testimony from the White House and White House personnel, 

were denied; 

WHEREAS, the White House has not offered any accommodation or compromise to provide the requested information that is acceptable to the Committee; 

WHEREAS, on March 22, 2007, pursuant to its authority under Rule 26 of the Standing Rules of the Senate, the 

Senate Committee on the Judiciary authorized issuance to 

Karl Rove, Deputy Chief of Staff to the President, subpoenas in connection with the Committee’s investigation; 

WHEREAS, on June 28, 2007, in response to subpoenas 

for documents issued by the Senate and House Judiciary 

Committees, White House Counsel Fred Fielding conveyed 

the President’s claim of executive privilege over all information in the custody and control of the White House related to the Committee’s investigation; 

WHEREAS, on June 29, 2007, the Chairmen of the 

House and Senate Judiciary Committees provided the 

White House with an opportunity to substantiate its privilege claims by providing the Committees with the specific 

factual and legal bases for its privilege claims regarding 

each document withheld and a privilege log to demonstrate 

to the Committees which documents, and which parts of 

those documents, are covered by any privilege that is asserted to apply and why; 

WHEREAS, the White House declined this opportunity 

in a July 9, 2007, letter to the Committee Chairmen from 

Mr. Fielding, while reiterating the blanket privilege 

claims; 

WHEREAS, on July 26, 2007, the Chairman issued a 

subpoena authorized March 22 to Mr. Rove for documents 

and testimony related to the Committee’s investigation, 

with a return date of August 2; 

WHEREAS, the Chairman noticed an August 2, 2007, 

Judiciary Committee hearing under its Rules at which Mr. 

Rove was subpoenaed to testify; 

WHEREAS, Mr. Fielding, in an August 1, 2007, letter to 

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tive privilege and a claim of immunity from congressional 

testimony for Mr. Rove, and directed Mr. Rove not to 

produce responsive documents or testify before the Committee about the firings, and that Mr. Rove would not appear in response to the Committee’s subpoena; 

WHEREAS, based on these claims of executive privilege 

and absolute immunity, Mr. Rove refused to appear or to 

produce documents or to testify at the Committee’s August 

2, 2007, hearing in compliance with the subpoena; 

WHEREAS, on August 17, 2007, Mr. Fielding rejected 

the Chairman’s request for a meeting with the President 

to work out an accommodation for the information sought 

by the Committee; 

WHEREAS, on November 29, 2007, the Chairman ruled 

that the White House’s claims of executive privilege and 

immunity are not legally valid to excuse current and 

former White House employees from appearing, testifying 

and producing documents related to this investigation and 

directed Mr. Rove, along with other current and former 

White House employees, to comply immediately with the 

Committee’s subpoenas by producing documents and testifying; 

WHEREAS, Mr. Rove has not complied with the Committee’s subpoenas or made any offer to cure his previous 

noncompliance; 

WHEREAS, the Committee’s investigation is pursuant 

to the constitutional legislative, oversight and investigative 

powers of Congress and the responsibilities of this Committee to the Senate and the American people; including 

the power to: (1) Investigate the administration of existing 

laws, and obtain executive branch information in order to 

consider new legislation, within the Committee’s jurisdiction, including legislation related to the appointment of 

U.S. Attorneys; (2) expose any corruption, inefficiency, and 

waste within the executive branch; (3) protect the Committee’s role in evaluating nominations pursuant to the Senate’s constitutional responsibility to provide advice and 

consent; and (4) examine whether inaccurate, incomplete, 

or misleading testimony or other information was provided 

to the Committee; 

BE IT RESOLVED, that the President of the Senate certify the facts in connection with the failure of Karl Rove, 

though duly summoned, to appear and testify before the 

Judiciary Committee and to produce documents lawfully 

subpoenaed to be produced before the Committee, under 

the seal of the United States Senate, to the United States 

Attorney for the District of Columbia, to the end that Karl 

Rove may be proceeded against in the manner and form 

provided by law. 

B. VOTE ON THE RESOLUTIONS

The Senate Judiciary Committee considered the resolutions on 

December 13, 2007. After debate, the Committee agreed to report 

the resolutions favorably to the Senate by the following vote: 


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17President George W. Bush, Joint Media Availability with President Calderon of Mexico, 

Merida, Mexico, March 14, 2007 (emphasis added). 18See President George W. Bush, Press Conference Addressing the Resignations of U.S. Attorneys, March 20, 2007; President George W. Bush, Remarks with President Luiz Ignacio Lula 

De Silva of Brazil, Camp David, MD, March 31, 2007. 

YEAS (12) NAYS (7) 

Biden (Del.) Brownback (Kan.) 

Cardin (Md.) Coburn (Okla.) 

Durbin (Ill.) Cornyn (Texas) 

Feingold (Wis.) Graham (S.C.) 

Feinstein (Calif.) Hatch (Utah) 

Grassley (Iowa) Kyl (Ariz.) 

Kennedy (Mass.) Sessions (Ala.) 

Kohl (Wis.) 

Leahy (Vt.) 

Schumer (N.Y.) 

Specter (Pa.) 

Whitehouse (R.I.) 

VII. THE PRIVILEGE AND IMMUNITY CLAIMS ARE NOT LEGALLY

VALID TO EXCUSE COMPLIANCE

A. THE PRESIDENT’S LACK OF INVOLVEMENT IN THE FIRINGS

UNDERMINES PRIVILEGE CLAIMS

Mr. Fielding’s executive privilege assertion on behalf of the President is surprising in light of the lack of evidence that the President 

was involved in these firings. To date, the President has not taken 

responsibility for the firings, and his own statements regarding the 

firings deflect responsibility to others for the decisions that were 

made. Attorney General Alberto Gonzales’s former chief of staff, 

the former political director at the White House and Attorney General Gonzales himself testified under oath that they did not talk to 

the President about these firings. 

On March 14, 2007, addressing the growing controversy related 

to the firings, President Bush stated that the Justice Department 

made the decisions in the firings: 

I do have confidence in Attorney General Gonzales. I 

talked to him this morning, and we talked about his need 

to go up to Capitol Hill and make it very clear to members 

in both political parties that the Justice Department made 

the decisions it made, make it clear about the facts, and 

he is right, mistakes were made.17

President Bush echoed this statement in subsequent statements 

on March 20, 2007, and March 31, 2007, continuing to point to the 

need for Attorney General Gonzales to resolve the scandal by telling the truth.18 He did not take responsibility for the firings, nor 

did he express at any point that he had been advised about them. 

Indeed, the sworn testimony of White House and Department of 

Justice officials indicate that the President was not involved. Kyle 

Sampson, former chief of staff to the Attorney General who ‘‘aggregated’’ the lists of those U.S. Attorneys to be fired, testified that 

the President was not present at a single meeting to discuss the 

decision to remove the U.S. Attorneys, and no presidential decision 


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19 Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General, Department of Justice (April 15, 2007). 20Testimony of Paul McNulty, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part II, Senate Committee on the 

Judiciary, 110th Congress at 76 (February 6, 2007). 21Testimony of Sara M. Taylor, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part VI, Senate Committee on the 

Judiciary, 110th Congress at 105–106 (July 11, 2007). 22 Attorney General Alberto Gonzales, Press Conference on the Firing of U.S. Attorneys 

(March 13, 2007). 23 In re Sealed Case, 121 F.3d at 753. 24Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (holding that tapes of Presidential conversations that had already been released to another committee were protected by 

executive privilege). 25 Nixon v. United States, 418 U.S. 683 (1974). 26 Nixon v. Administrator of General Services, 433 U.S. 425 (1977). 27 In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir. 1997) (the D.C. Circuit case which 

recently defined the scope of executive privilege involved a grand jury subpoena and expressly 

excluded congressional subpoenas from this extension of the privilege claim, recognizing the different balance that would govern: ‘‘Our determination of how far down into the executive branch 

the presidential communications privilege goes is limited to the context before us, . . . and we 

take no position on how the institutional needs of Congress and the President should be balanced.’’ Even in that case, the scope of privilege was limited to aides within ‘‘operational proximity’’ of the President who were ‘‘members of an immediate White House adviser’s staff who 

have broad and significant responsibility for investigating and formulating the advice to be 

given the President on the particular matter to which the communications relate’’ but not ‘‘staff 

outside the White House in executive branch agencies’’). 

document endorsing the replacement plan existed.19 Former Deputy Attorney General Paul McNulty, on whose recommendations 

and advice Attorney General Gonzales said he relied, testified that 

he was ‘‘not aware of the President being consulted’’ in regards to 

the U.S. Attorney firings.20 Ms. Taylor, former White House political director, testified that to her knowledge the President was not 

involved with any U.S. Attorney removal decisions.21 And in a 

statement on March 13, the Attorney General stated that he took 

responsibility for the firings,22 later testifying to the same effect 

before the Committee. 

Courts analyzing executive privilege claims have made clear that 

the purpose of the privilege is to protect the President’s ability to 

receive candid advice. According to the leading case on executive 

privilege from the D.C. Circuit, the presidential communications 

privilege applies to communications ‘‘intimately connected to his 

presidential decision-making.’’ 23 Where, as here, the President by 

all accounts, including his own, was not involved, there are serious 

questions whether information sought by the Committee could be 

withheld based on a claim of executive privilege. 

The court decisions reviewing executive privilege claims do not 

support such a broad scope for executive privilege claims beyond 

communications directly involving the President. Senate Select 

Committee on Presidential Campaign Activities v. Nixon case dealt 

solely with tapes of presidential conversations.24 Nixon v. United 

States 25 and Nixon v. Administrator of General Services,26 the 

leading Supreme Court cases on the issue of executive privilege, 

consider similarly limited assertions of privilege.27

The administration seeks to have it both ways by claiming that 

the President was not involved in the removal decisions, but simultaneously that executive privilege, premised on the need to secure 

candid advice for the President, should apply. If the White House 

wishes to assert executive privilege, it should describe the involvement the President had in the decision making process. It has not 

done so and the evidence is that the President was not involved. 


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28Smith v. F.T.C., 403 F. Supp. 1000, 1016 (D. Del. 1975). See also, Black v. Sheraton Corp., 

371 F. Supp. 97 (D.D.C. 1974) (‘‘An improperly asserted claim of privilege is no claim of privilege’’). 29 In re: Sealed Case (Espy) at 745 (‘‘If a court believes that an adequate showing of need has 

been demonstrated, it should proceed then to review the documents in camera to excise nonrelevant material. Further, the President should be given the opportunity to raise more particularized claims of privilege . . .’’). 30 368 F. Supp. 863, 872–73 (D.D.C. 1973). See also U.S. v. Reynolds, 345 U.S. 1, 7–8 (1953) 

(‘‘There must be a formal claim of privilege, lodged by the head of the department which has 

control over the matter, after actual personal consideration by that officer’’). 31Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d, 725, 726– 

729 (D.C. Cir. 1974). 32 In re Sealed Case (Espy) at 744, note 16 (‘‘We need not decide whether the privilege must 

be invoked by the President personally, since the record indicates that President Clinton has 

done so here; in his affidavit former White House Counsel Abner J. Mikva stated ‘‘the President 

. . . has specifically directed me to invoke formally the applicable privileges over those documents’’). 33Smith at 1016 (quoting Black at 101). 

Accordingly, there is no justification for claiming executive privilege. 

B. THE WHITE HOUSE’S ASSERTION OF EXECUTIVE PRIVILEGE IS

UNSUBSTANTIATED

The President has not met his burden of properly claiming executive privilege, including a particularized showing of why he is entitled to the privilege from disclosing the information subpoenaed by 

the Committee. ‘‘As with any privilege the burden is upon the 

claimant of executive privilege to demonstrate a proper entitlement 

to exemption from disclosure.’’ 28 The White House’s generalized assertion of blanket privilege fails to meet the President’s burden, especially where, as here, the Committee has set forth its need for 

the materials and evidence showing White House involvement.29

In Center on Corporate Responsibility v. Shultz, the D.C. District 

Court held that the invocation of executive privilege by a White 

House counsel is ‘‘wholly insufficient to activate a formal claim of 

executive privilege,’’ and that such a claim must be made by the 

‘‘President, as head of the ‘agency,’ the White House.’’ 30 In Senate 

Select Committee on Presidential Campaign Activities v. Nixon, the 

claim was asserted in a letter to the Committee from the President.31 More recently, when the D.C. Circuit determined that an 

assertion of executive privilege by White House Counsel Abner 

Mikva was an acceptable proxy for an assertion by the President, 

it did so because Mr. Mikva in a sworn affidavit asserted that the 

President personally invoked the privilege.32 Mr. Fielding’s letters 

do not meet this standard. 

In addition, Mr. Fielding’s claim on the President’s behalf fails 

to make ‘‘a specific designation and description of the documents 

claimed to be privileged’’ as required by the courts.33

After the White House counsel made a blanket privilege assertion on behalf of the President in response to this Committee’s subpoenas and subpoenas issued by the House Judiciary Committee, 

the Committees offered the White House the opportunity to provide 

the factual and legal basis for its blanket privilege assertion. A serious assertion of privilege would include an effort to demonstrate 

to the Committees which documents, and which parts of those documents, are covered by any privilege that is asserted and why. The 

White House ignored these opportunities. The White House’s refusal to provide a listing of those documents on which it asserts 

privilege and a specific factual and legal basis for the assertion of 


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34 In re Sealed Case (Espy), 121 F.3d at 745. 35 United States v. Nixon, 418 U.S. 683, 706 (1974). 36Senate Select Committee at 729. 37Smith at 1016 (quoting Sheraton at 101). 38Smith at 1016 (‘‘a close reading of cases where claims of executive privilege were raised indicates that the necessary facts have generally been required to be raised by affidavit’’). 39 Black v. Sheraton Corp., 371 F.Supp. 97, 101 (D.D.C. 1974). 40Smith at 1017. 41 Committee on the Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53 

(D.D.C., 2008), order stayed by Committee on Judiciary of U.S. House of Representatives v. 

Miers, 542 F.3d 909 (D.C.Cir. 2008). 42 Id. at 106. 

executive privilege undermines the validity of any privilege assertion. 

Executive privilege, even where properly asserted, ‘‘is qualified, 

not absolute’’ 34 and ‘‘neither the doctrine of separation of powers, 

nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege.’’ 35 The White House has fallen well short of providing adequate support for its claims. In reviewing executive privilege 

claims, courts have required that the President make ‘‘particularized showings in justification of his claims of privilege’’ 36 and have 

found that that a privilege log is necessary ‘‘in order that a court 

be able to make a knowledgeable decision as to whether any document or portion thereof actually contains advisory or deliberative 

materials.’’ The unilateral assertion of privilege by a President 

must be subject to review by the Committee and courts. The White 

House’s refusal to provide the factual basis for its claims renders 

them unfounded. 

The complete lack of particularity of the White House claims, including the lack of a privilege log or any specific factual basis for 

the privilege claims is especially troubling where, as here, there appears not to be any involvement by the President. In presenting 

only a claim predicated on the generalized need for candid dialogue 

between the President and his aides, the President has failed to 

meet the burden of making ‘‘a demonstration of ‘precise and certain 

reasons for preserving’ the confidentiality of the governmental communications.’’ 37 There are not even demonstrated communications 

with the President. Courts have cited with approval the general 

practice of providing a sworn affidavit raising the necessary facts 

underlying the claim.38 Courts have rejected executive privilege 

claims, where, as here, they are broad and inadequately substantiated. In one case, the D.C. District Court held that ‘‘to recognize 

such a broad claim in which the Defendant has given no precise or 

compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.’’ 39 In another, the 

Court found ‘‘serious deficiencies’’ in an agency’s privilege claim 

even where the agency provided detailed information about each 

specific document subject to the claim because ‘‘little or no information is provided as to the actual content of various documents.’’ 40

As discussed more fully in the following pages, in a civil suit 

stemming from the House Judiciary Committee’s parallel investigation, the District Court for the District of Columbia undercut the 

White House’s blanket claims of privilege without substantiation.41

In his July 31, 2008, opinion, Judge John D. Bates wrote that 

‘‘clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege’’ 42 and that ‘‘both 


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43 Id. at 107. 44Letter from Paul D. Clement, Solicitor General and Acting Attorney General, to President 

Bush (June 27, 2007). 45 United States v. Nixon, 418 U.S. 683, 706–707 (1974) (holding that the executive was required to produce tapes of his oval office conversations in response to a grand jury subpoena). 46 Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973). 47 United States v. Nixon at 706. 

the Court and the parties will need some way to evaluate the privilege assertions going forward.’’ 43 Judge Bates’ opinion validates the 

Committee’s requests for over a year for the White House to provide the specific legal and factual basis for its claims of privilege 

so that the Committee can probe the basis for those claims and 

their validity rather than rely on the say-so of the President’s lawyers. 

The White House’s assertion of privilege over information related 

to the dismissal and replacement of U.S. Attorneys, and the response to congressional and media inquiries about them, extends to 

documents and testimony including internal White House communications, communications between the White House and the Department of Justice, and even communications between officials at 

the White House and third-party individuals outside the executive 

branch.44 The White House’s privilege claim is irrespective of the 

purpose of the communications. Were it successful, this effort to extend the scope of the privilege taken in conjunction with the White 

House’s failure to make the particularized showing needed to support its claim would amount to an unprecedented and unchecked 

extension of executive privilege to include any information. 

C. CONGRESS’ NEED FOR THE INFORMATION OUTWEIGHS ANY

PRIVILEGE CLAIM

Presidential communications privilege is not absolute,45 and determining whether it prevails depends on ‘‘a weighing of the public 

interest protected by the privilege against the public interests that 

would be served by disclosure in a particular case.’’ 46 According to 

the Supreme Court in Nixon v. United States, ‘‘when the privilege 

depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation 

with other values arises.’’ 47 The White House’s privilege assertion 

ignores the legitimate constitutional responsibilities of Congress in 

this matter. The constitutional legislative, investigative and oversight functions of Congress must be balanced against, and in this 

instance outweigh, the claim of executive privilege. 

The constitutional functions of Congress include its legislative 

functions, including the review and passage of laws regarding the 

appointment of U.S. Attorneys and the filling of vacancies in those 

offices; its oversight functions and examination of the truthfulness 

of congressional testimony; the Senate’s role in confirming presidential nominations; and the need to investigate possible corruption. The need to investigate possible corruption, maladministration and the failure to execute faithfully the laws weighs heavily 

in this balance. Here, the compelling needs of Congress outweigh 

the White House’s generalized privilege assertion. 

The constitutional powers of Congress and the responsibilities of 

this Committee to the Senate and the American people overcome 

the White House’s unsubstantiated privilege claims. The Supreme 

Court has long recognized that Congress has ‘‘broad’’ power to inVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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48See Watkins v. United States, 354 U.S. 178, 187 (1957). 49See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927). 50See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109–177, Title V, § 502, 120 Stat. 546 

(Mar. 9, 2006); amended by Pub. L. No. 110–34, § 2, 121 Stat. 224 (June 14, 2007). 51 In re: Sealed Case (Espy) at 754 (The Acting Attorney General’s letter to the President cites 

the standard from an older D.C. Circuit case, Senate Select Committee on Presidential Campaign 

Activities v. Nixon, that has been superseded by Espy—that a Congressional Committee must 

establish that the materials it seeks are ‘‘demonstrably critical to the fulfillment of the Committee’s functions.’’ Senate Select Comm. at 731. There is no question the Committee’s need for this 

information meets either standard. Here, unlike in Senate Select, the documents and testimony 

sought by the Committee contain information that remains under White House control and critical to the investigation). 

vestigate ‘‘the administration of existing laws’’ and to ‘‘expose corruption, inefficiency, [and] waste’’ within the executive branch.48

The Committee has the responsibility to conduct investigations and 

obtain executive branch information in order to consider legislation 

within its jurisdiction,49 including legislation related to the appointment of U.S. Attorneys, and to protect its role in evaluating 

nominations pursuant to the Senate’s constitutional responsibility 

to provide advice and consent. Indeed, it was in light of this jurisdiction, the confirmation power vested in the Senate, and the jurisdiction of this Committee over the review of U.S. Attorney nominations, that Senator Specter, the Committee’s Ranking Member, observed early on that the Committee has ‘‘primary’’ responsibility to 

investigate this matter. 

This investigation offers a clear example of the relationship between the Committee’s compelling oversight and investigative interests and the need for the Committee to obtain information in 

order to legislate. Since this investigation began and the Committee began uncovering abuses in the appointment of interim U.S. 

Attorneys, Congress has already legislated once to rescind the Attorney General’s power to appoint interim U.S. Attorneys who 

could serve indefinitely without the Congressional approval.50

The Committee has met the standard provided by the D.C. Circuit for establishing that its need for the materials overcomes the 

privilege claim. According to the Espy court, ‘‘[a] party seeking to 

overcome a claim of presidential privilege must demonstrate: first, 

that each discrete group of the subpoenaed materials likely contains important evidence; and second, that this evidence is not 

available with due diligence elsewhere.’’ 51

The Committee has pursued this matter diligently. Based on evidence, information, testimony and interviews, the Committee believes that White House officials are involved. Still, the White 

House refuses to provide a single witness or document. The documents and testimony that have been subpoenaed will provide critical evidence. 

D. EVIDENCE OF INVOLVEMENT OF WHITE HOUSE OFFICIALS IN THE

FIRINGS DEMONSTRATES COMMITTEE’S NEED FOR THE INFORMATION

In contrast to the White House’s improperly asserted and 

unparticularized privilege claims, the Committee’s need for this information, including the specific information of White House involvement and possible misconduct, has been well-established. Evidence gathered by the investigating Committees of the Senate and 

House shows that White House officials played a significant role in 

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52The minority views filed by Senators Kyl, Sessions, Brownback and Coburn repeat partisan 

talking points from the last election equating voter registration fraud with in-person voter fraud. 

Only the latter threatens to affect the outcome of an election. As both this Committee and the 

Senate Rules Committee have demonstrated in numerous hearings, the myth of in-person voter 

fraud is just that. In their recent amicus brief to the United States Supreme Court a number 

of present and former Secretaries of State from Georgia, Maryland, Missouri, Ohio and Vermont 

noted that ‘‘in Federal elections between 1996 and the present, in which more than twenty-four 

million votes were cast’’ not a single case of voter impersonation fraud occurred at the polls. 

The Federal Judge who reviewed and dismissed a Justice Department suit against Missouri concluded: ‘‘It is . . . telling that the United States has not shown that any Missouri resident was 

denied his or her right to vote . . . [n]or has the United States shown that any voter fraud has 

occurred.’’ 53Testimony of Alberto Gonzales, Oversight of the U.S. Department of Justice, Senate Committee on the Judiciary, 110th Congress at 53 (July 24, 2007). 54OAG 180. 55 Id. 56 Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General, Department of Justice at 111–119 (April 15, 2007). 

precedented firings and the Justice Department’s response to congressional inquiries about it. 

The accumulated evidence shows that the list for firings was 

compiled based on input from the highest political ranks in the 

White House, including Mr. Rove, Ms. Taylor, and Mr. Jennings. 

The evidence shows that senior officials were apparently focused on 

the political impact of Federal prosecutions and whether Federal 

prosecutors were doing enough to bring partisan voter fraud 52 and 

corruption cases. It is obvious that the reasons given for these 

firings were contrived as part of a cover up and that the 

stonewalling by the White House is part and parcel of that same 

effort. Even Attorney General Gonzales, in his sworn testimony in 

July 2007, contrasted these politically motivated firings with the 

replacement of other United States Attorneys for ‘‘legitimate 

cause.’’ 53

The evidence that U.S. Attorneys were fired for political purposes 

points to Mr. Rove and his political operations in the White House. 

Evidence shows that Mr. Rove and then-White House Counsel 

Alberto Gonzales were involved from the beginning in plans to remove U.S. Attorneys. According to documents obtained from the 

Department and Mr. Sampson’s testimony, Mr. Sampson discussed 

the plan with then-White House Counsel Gonzales not long after 

President Bush’s re-election in 2004. A January 9, 2005, e-mail released by the Department shows that Mr. Rove initiated inquires 

with respect to ‘‘how we planned to proceed regarding U.S. Attorneys, whether we were going to allow all to stay, request resignations from all and accept only some of them, or selectively replace 

them, etc.’’ 54 In his response to queries from David Leitch, a White 

House official, Mr. Sampson expressly deferred to the political 

judgment of Mr. Rove as to whether to proceed with plans for the 

replacement of U.S. Attorneys, writing,‘‘[I]f Karl thinks there 

would be political will to do it, then so do I.’’ 55

Mr. Sampson, who has testified that he ‘‘aggregated’’ the list of 

U.S. Attorneys to be fired, was apparently in frequent contact with 

White House officials about multiple versions of proposed lists of 

possible U.S. Attorneys for dismissal and potential replacements 

over the course of nearly two years.56

Mr. Rove’s own words suggest that placing ‘‘loyal Bushies’’ in key 

battleground states for the next election played a significant role 

in these firings. In April 2006, Mr. Rove gave a speech to the Republican National Lawyers’ Association where he listed 11 states 


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57Speech by Karl Rove to Republican National Lawyers Association, April 7, 2006; See also 

Greg Gordon, New U.S. Attorneys Seem to Have Partisan Records, McClatchy Newspapers, 

March 23, 2007. 58 An Evolving List, Washington Post, May 17, 2007. 59 Interview with Matthew Friedrich, Chief of Staff and Principal Deputy Assistant Attorney 

General, Criminal Division, Department of Justice at 27–31 (May 4, 2007); OAG 820–852 60 Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General, Department of Justice at 168–175 (April 15, 2007). 61 An Evolving List. 62 Eric Lipton and Ian Urbina, In 5-Year Effort, Scant Evidence of Voter Fraud, New York 

Times, April 12, 2007; Gina Barton, Stacy Forster and Steven Walters, State Official Indicted 

in Travel Contract Case, Milwaukee Journal-Sentinel, January 24, 2007. 63Lipton and Urbina, 5-Year Effort, Scant Evidence of Voter Fraud. 64 U.S. v. Thompson, 484 F.3d 877, 878–879 (7th. Cir. 2007); Steven Walters and John 

Diedrich, Ex-State Official Freed, April 5, 2007. 65Mike Gallagher, Domenici Sought Iglesias Ouster, Albuquerque Journal, April 15, 2007; 

Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and 

Firing of U.S. Attorneys?—Part II, Senate Committee on the Judiciary, 110th Congress at 36– 

37 (March 6, 2007). 

he saw as pivotal battlegrounds for the 2008 election: Pennsylvania, Michigan, Ohio, Florida, Colorado, Arkansas, Wisconsin, 

Minnesota, Nevada, Iowa, New Mexico.57 Since 2005, U.S. Attorneys in nine of these states have been considered for removal and 

nine have been replaced.58 Four of the U.S. Attorneys who were 

fired as part of the mass firing were from these states. 

The Committee has learned that Mr. Rove raised concerns with 

Attorney General Gonzales about prosecutors not aggressively pursuing purported voter fraud cases in several of the districts he discussed in that speech and that prior to the 2006 mid-term election 

he sent the Attorney General’s chief of staff a packet of information 

containing a 30-page report concerning voting in Wisconsin in 

2004.59 Mr. Rove also passed on to Mr. Sampson the complaints of 

Wisconsin Republican officials about the U.S. Attorney for the 

Eastern District of Wisconsin regarding his failure to pursue voter 

fraud cases.60 That U.S. Attorney’s name was added to the list Mr. 

Sampson was developing for firing in early 2005, two weeks after 

Mr. Rove reviewed activity about vote fraud in his district.61 That 

U.S. Attorney’s name did not appear on subsequent lists and he 

kept his job after he brought 14 voter fraud cases arising from the 

2004 election and prosecuted Wisconsin civil servant Georgia 

Thompson in a public corruption case connected to Democratic Governor Jim Doyle.62 The Justice Department won only five of these 

14 cases 63 and the Georgia Thompson case was later thrown out 

on appeal by the Seventh Circuit for evidence that was ‘‘beyond 

thin’’ immediately after oral argument, which is highly unusual.64

This evidence points to Mr. Rove’s role and the role of those in his 

office in removing or trying to remove prosecutors not considered 

sufficiently loyal to Republican electoral prospects. Such manipulation shows corruption of Federal law enforcement for partisan political purposes. 

We also know, through press accounts and testimony, that after 

the 2006 midterm election, Mr. Rove discussed the performance of 

New Mexico U.S. Attorney David Iglesias with Senator Domenici, 

who himself had called Mr. Iglesias before the election to ask 

whether he was bringing indictments against a Democratic official 

in the lead up to the election.65 We have learned that Mr. Jennings 

set up a meeting between the Department’s White House liaison, 

Monica Goodling, and New Mexico Republican officials in June 

2006 to talk about the U.S. Attorney ‘‘situation’’ in New Mexico, deVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00031 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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66OAG 114, 572; Interview with Matthew Friedrich at 31–40. 67 Id. at 34–35. 68 Id. at 38–39. 69Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III, Senate Committee on the 

Judiciary, 110th Congress at 130–134 (March 29, 2007). 70 Id. at 130–131. 71See Margaret Talev & Marisa Taylor, Rove Was Asked to Fire U.S. Attorney, McClatchy 

Newspapers, March 10, 2007. 72 Answers to Post-Hearing Questions from John McKay, H.R. 580, Restoring Checks and Balances in the Confirmation Process of U.S. Attorneys, Subcomm. on Commercial and Admin. 

Law, House Committee on the Judiciary, 110th Congress at 275 (March 6, 2007). 73Dan Eggen, Prosecutor’s Firing Was Urged During Probe, Washington Post, March 9, 2007; 

Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III at 39–40. 74OAG 22. 

scribing it as ‘‘sensitive.’’ 66 Matthew Friedrich, counselor to the Attorney General, also met with these officials and testified that they 

were concerned about Mr. Iglesias’ failure to bring a particular vote 

fraud case against ACORN, a non-profit organization that works to 

register voters.67 Mr. Friedrich also testified that when he later 

met with these officials, they told him they had communicated with 

Mr. Rove and Senator Domenici about trying to have Mr. Iglesias 

removed.68

Mr. Iglesias was subsequently fired a few weeks after Mr. Rove 

complained to the Attorney General about the lack of purported 

‘‘voter fraud’’ enforcement cases in his jurisdiction.69 His name had 

not been on any previous lists of U.S. Attorneys being considered 

for firing that were ‘‘aggregated’’ by Mr. Sampson.70 According to 

Allen Weh, chairman of New Mexico’s Republican party, when he 

asked Mr. Rove during a holiday party in 2006 ‘‘is anything ever 

going to happen to that guy?’’—referring to Mr. Iglesias—Mr. Rove 

responded, ‘‘He’s gone.’’ 71

Evidence suggests that other fired U.S. Attorneys had drawn the 

ire of political operatives in the White House. John McKay, former 

U.S. Attorney for the Western District of Washington, testified that 

when he met with Ms. Miers and her deputy Mr. Kelley to interview for a Federal judgeship, he was asked to explain ‘‘criticism 

that I mishandled the 2004 governor’s election’’ after which Republicans were upset with him for not intervening in that closely contested election.72

There is evidence that suggests that White House officials may 

have been involved in the firing of Carol Lam, former U.S. Attorney for the Southern District of California. She prosecuted Republican Congressman Duke Cunningham, which led to his conviction 

and the convictions of CIA official Kyle ‘‘Dusty’’ Foggo and Brent 

Wilkes, a defense contractor with links to Republican members of 

Congress. One day after she notified Department officials in Washington, D.C., that she was executing search warrants against Mr. 

Foggo and Mr. Wilkes,73 Kyle Sampson sent an email to Deputy 

White House Counsel William Kelley saying that they should discuss, ‘‘[t]he real problem we have right now that leads me to conclude that we should have someone ready to be nominated on 11/ 

18, the day her 4-year term expires.’’ 74

According to documents and testimony, Ms. Taylor and Mr. Jennings were involved in the discussions and planning that led to the 

removal of Bud Cummins and bypassing the Senate confirmation 

process to install Tim Griffin, another former aide to Mr. Rove, as 

U.S. Attorney in the Eastern District of Arkansas. They were both 


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75 Interview with D. Kyle Sampson, Former Chief of Staff to the Attorney General, Department of Justice at 54 (April 15, 2007). 76 Id. at 93. 77OAG 45; Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III at 32–33. 78Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III at 37–39. 79 Interview with William Moschella, Principal Associate Deputy Attorney General, Department of Justice at 99–102 (April 24, 2007); DAG 0840. 80Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III at 159–162; OAG 297. 81Letter from Richard A. Hertling, Acting Assistant Attorney General, to Senator Charles 

Schumer (February 23, 2007). 82OAG 127. 83Letter from Richard A. Hertling, Acting Assistant Attorney General, Department of Justice 

to Senator Patrick Leahy and Senator Charles Schumer (March 28, 2007). 

part of a group that discussed using the Attorney General’s expanded authority under the Patriot Act reauthorization to avoid 

the opposition of the Arkansas Senators by appointing Mr. Griffin 

indefinitely.75 Mr. Sampson testified that Ms. Taylor was upset 

when, a month after telling Senator Pryor he was committed finding a U.S. Attorney who could be confirmed by the Senate, the Attorney General finally ‘‘rejected’’ this use of his appointment authority.76

In addition, documents and testimony show that Ms. Taylor was 

the White House official who approved the plan for firing multiple 

U.S. Attorneys on December 7, 2006, on behalf of the White House 

political office.77 Mr. Jennings also had knowledge of this plan and 

both he and Ms. Taylor were involved in subsequent discussions regarding congressional testimony of Department officials and the 

administration’s response to the growing scandal surrounding the 

firings.78

Documents and testimony also show that Mr. Rove, Mr. Jennings 

and Ms. Taylor had a role in shaping the administration’s response 

to congressional inquiries into these dismissals, which led to inaccurate and misleading testimony to Congress and misleading statements to the public. According to the testimony of Department officials, Mr. Rove and other White House officials attended a meeting 

at the White House on March 5, 2007—the day before Principal Associate Deputy Attorney General William Moschella testified before 

the House Judiciary Committee—to ‘‘go over the Administration’s 

position on all aspects of the US atty issue.’’ 79

The administration’s response included an attempt to cover up 

the role that White House officials played in the firings. According 

to documents and the testimony of Mr. Sampson, Attorney General 

Gonzales was upset after the February 6, 2006, testimony of Deputy Attorney General Paul McNulty because Mr. McNulty’s testimony put the White House involvement in the firings in the public 

domain.80 The administration’s February 23, 2007, response to a 

letter from Senators Reid, Schumer, Durbin and Murray regarding 

the firings stated, ‘‘The Department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin.’’ 81 Earlier 

emails indicate that the appointment of Mr. Griffin was important 

to Mr. Rove.82 The White House apparently signed off on this letter. Many parts of this letter were later retracted.83 Reports indicate that among the emails withheld from the investigating ComVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00033 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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84 Evan Perez, More Justice Emails Raise Stakes for Aide, Washington Post, March 29, 2007. 85See Nixon v. Adm’r of Gen. Srvs., 433 U.S. 425, 453 (1977) (court found there to be a ‘‘substantial public interest’’ in preserving President Nixon’s records so that Congress could investigate the events that led to President Nixon’s resignation ‘‘in order to gauge the necessity for 

remedial legislation’’). 86Public Papers of the Presidents (1983) at 239, cited in L. Fischer, The Politics of Executive 

Privilege at 51 (2004). 87 Congressional Subpoenas of Department of Justice Investigative Files, 8 U.S. Op. Off. Legal 

Counsel 252 at 41 (1984). 88Lloyd N. Cutler, Special Counsel to the President, Memorandum for all Executive Department and Agency Counsels, Congressional Requests for Departments and Agencies for Documents Protected by Executive Privilege at 1, Sept. 28, 1994, available in Frederick M. Kaiser 

et al., Congressional Oversight Manual, CRS Report for Congress, RL 30240 at App. C, May 

1, 2007. 

mittees are emails indicating that White House officials were consulted about that misleading letter.84

The extensive involvement of White House officials in the matters under investigation has been established by the selective documents and emails released by the Justice Department and by the 

testimony of Department officials. What the White House 

stonewalling is preventing is conclusive evidence of who made the 

decisions to fire these Federal prosecutors. The Committee’s investigation of the firings, including critical information about the reasons and motivations for them, and the veracity of information provided to Congress about them, remains incomplete without the materials subpoenaed by this Committee. 

E. EXECUTIVE PRIVILEGE NOT PROPER TO COVER UP WRONGDOING

The White House’s privilege claim is particularly inappropriate 

in light of the evidence suggesting possible wrongdoing by government officials. Not only has the Supreme Court recognized that 

Congress’ ‘‘broad investigative power’’ is necessary to determine 

whether there was wrongdoing and address it,85 but previous administrations have recognized that executive privilege should not 

be invoked to prevent investigations into wrongdoing. During the 

Reagan administration, President Reagan himself declared, ‘‘[w]e 

will never invoke executive privilege to cover up wrongdoing,’’ 86

and the Justice Department’s Office of Legal Counsel stated, ‘‘the 

privilege should not be invoked to conceal evidence of wrongdoing 

or criminality on the part of executive officers.’’ 87 The Clinton administration followed a similar policy, stating that in relation to 

communications ‘‘relating to investigations of personal wrongdoing 

by government officials, it is our practice not to assert executive 

privilege, either, in judicial proceedings or in congressional investigations and hearings.’’ 88

The Committee has found evidence of possible wrongdoing. The 

evidence supports a conclusion that officials from the highest political ranks at the White House, including Mr. Rove, manipulated 

the Justice Department, turning the Department into a political 

arm of the White House to pursue a partisan political agenda. The 

Committee has found evidence of the involvement of White House 

officials in pressuring prosecutors to bring partisan cases and seeking retribution against those who refuse to adhere to the political 

will of the administration. One example is New Mexico U.S. Attorney David Iglesias, who was fired a few weeks after Karl Rove complained to the Attorney General about the lack of purported ‘‘voter 

fraud’’ enforcement cases in Mr. Iglesias’ jurisdiction. Department 

official Monica Goodling admitted while testifying before the House 


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89Testimony of Monica Goodling, The Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part I), House Committee on the Judiciary, 110th Congress at 

36 (May 23, 2007). 90Testimony of Kyle Sampson, Preserving Prosecutorial Independence: Is the Department of 

Justice Politicizing the Hiring and Firing of U.S. Attorneys?—Part III at 137; OAG 127. 91 ‘‘An Investigation into the Removal of Nine U.S. Attorneys in 2006,’’ the Department of Justice’s Office of the Inspector General and the Department of Justice’s Office of Professional Responsibility (September 29, 2008). 

Judiciary Committee under a grant of immunity from prosecution 

to improperly screening career employees for political loyalty and 

wielding undue political influence over key law enforcement decisions and policies.89 The Committee has found that officials at the 

White House and the Justice Department were determined to use 

the Attorney General’s new authority enacted as part of the Patriot 

Act reauthorization, since rescinded, to put in place ‘‘interim’’ U.S. 

Attorneys indefinitely, doing an end-run around the Senate’s constitutional and statutory role in the confirmation of U.S. Attorneys.90

Along the way, this subversion of the justice system has included 

lying, misleading, stonewalling and ignoring the Congress in our 

attempts to find out precisely what happened. The reasons given 

for these firings were contrived as part of a cover up and the 

stonewalling by the White House is part and parcel of that same 

effort. During his sworn testimony, Attorney General Gonzales, 

who has since resigned, contrasted these politically motivated 

firings with the replacement of other United States Attorneys for 

‘‘legitimate cause.’’ 

As discussed more fully below, a joint investigation by the Department’s Office of Inspector General (OIG) and Office of Professional Responsibility (OPR) concluded that the firings were unprecedented and that partisan political considerations played a role in 

the firings.91 The report also concluded that the firings were not 

the result of ‘‘a few bad apples’’ run amok as suggested by some 

in the administration, but rather that Attorney General Gonzales 

and Deputy Attorney General McNulty bore primary responsibility 

for the deeply flawed process that led to the firings because they 

‘‘abdicated their responsibility to adequately oversee the process 

and to ensure that the reasons for removal of each U.S. Attorney 

were supportable and not improper.’’ In addition, the internal investigation found that they and other high-level Department officials were responsible for making untruthful statements about the 

removals and their role in the process. Finally, even though it was 

an executive branch investigation, the OIG/OPR investigation, like 

the Committee’s investigation, was impeded by the Bush administration’s refusal to cooperate and provide documents or witnesses 

despite evidence pointing to the significant involvement of highlevel White House officials. 

Since the beginning of this investigation, numerous Department 

and administration officials heavily involved in these firings have 

resigned, including the Attorney General and his chief of staff, the 

Deputy Attorney General and his chief of staff, the Acting Associate Attorney General, the Department’s White House liaison, the 

Director of the Executive Office of U.S. Attorneys, the White House 

Political Director, the White House Counsel, the Deputy White 

House Counsel, and the White House Deputy Chief of Staff. 


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92Testimony of Monica Goodling, The Continuing Investigation into the U.S. Attorneys Controversy and Related Matters (Part I) at 36. 93 Answers to Post-Hearing Questions from Bradley Schlozman, Preserving Prosecutorial Independence: Is the Department of Justice Politicizing the Hiring and Firing of U.S. Attorneys?— 

Part V, Senate Committee on the Judiciary, 110th Congress (June 5, 2007). 94 Harold C. Relyea & Todd B. Tatelman, Presidential Adviser’s Testimony Before Congressional Committees: An Overview, CRS Report for Congress, RL 31351 (April 10, 2007). 

Monica Goodling, the Department’s White House liaison, who 

only testified before the House Judiciary Committee after invoking 

her Fifth Amendment privilege against self-incrimination and receiving immunity, admitted to ‘‘crossing the line’’ with the illegal 

political vetting of possible hires for career positions at the Justice 

Department.92 The allegations of improper hiring for career positions throughout the Department have been corroborated and confirmed as widespread by two OIG/OPR reports stemming from referrals by the Senate and House Judiciary Committees. An OIG/ 

OPR report issued June 24, 2008, found improper and illegal political hiring for career positions in the Department’s Honors Program and Summer Law Intern Program and a report issued July 

28, 2008, found improper and illegal use of political considerations 

in hiring for career positions throughout the Department, including 

hiring for career prosecutor positions in U.S. Attorneys offices, for 

detailee positions in main Justice, and for immigration judge positions. 

Bradley Schlozman, former Acting Assistant Attorney General 

for the Civil Rights Division of the Department of Justice and 

former Interim United States Attorney for the Western District of 

Missouri, has also acknowledged raising the political leanings of 

candidates who were being considered for career positions at the 

Justice Department.93 A forthcoming report is expected to detail 

the findings of the OIG/OPR investigation into the allegations 

raised regarding Mr. Schlozman and the use of political considerations for hiring and personnel decisions in the Civil Rights Division. 

The President’s claim of executive privilege cannot be used to 

shield Congress from investigating possible wrongdoing by officials 

at the Department and the White House. Such wrongdoing was 

rampant. 

F. THE WHITE HOUSE’S CLAIMS THAT KARL ROVE IS IMMUNE FROM

TESTIMONY ARE CONTRADICTED BY LEGAL AND HISTORICAL PRECE- DENT

In an August 1, 2007, letter, White House Counsel Fred Fielding 

advanced the novel argument that ‘‘based upon the advice of the 

Department of Justice, the President also has requested that I advise and inform you that Mr. Rove, as an immediate presidential 

advisor, is immune from compelled congressional testimony about 

matters that arose during his tenure and that relate to his official 

duties in that capacity.’’ The White House raised similar arguments in response to a House Judiciary Committee subpoena 

issued to former White House Counsel Harriet Miers. 

There is no proper basis for Mr. Rove to refuse to appear pursuant to the Committee’s subpoena. Since World War II, 74 presidential advisors, in positions of proximity to the President similar 

to Mr. Rove, have testified before Congress, many of those compelled by subpoena.94 Since 1975, in each of the 10 times cabinetVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00036 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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95Morton Rosenberg, Congressional Oversight Manual, CRS–37, note 21 and accompanying 

text. 96Steven G. Bradbury, Re: Immunity of Former Counsel to the President from Compelled Testimony at 1, July 10, 2007 (quoting Assertion of Executive Privilege with Respect to Clemency 

Decision, 23 Op. O.L.C. 1, 4 (1999) (hereinafter Bradbury)). 97See Committee on the Judiciary v. Miers, 558 F.Supp.2d 53. 98 Id. at 106. 99 843 F.2d 1473, (Cir. Ct. D.C. 1988). 100 Id. at 1474. 

level or senior executive officials have been cited by a congressional 

committee for contempt for failure to produce subpoenaed documents, the officials turned over the documents and ‘‘there was substantial or full compliance with the document demands.’’ 95 The 

White House’s newly-minted claim of ‘‘immunity’’ for White House 

employees is undermined by appearances by other current and 

former White House advisors, Ms. Taylor and Mr. Jennings, in response to this Committee’s subpoenas related to this investigation. 

Even President Nixon backed away from making the extreme legal 

argument asserted by this White House. The White House Counsel, 

John Dean, and other advisors appeared and testified before Congress during its investigation of the Watergate scandal. 

In support of this blanket assertion of immunity, the administration does not set forth a single court precedent. Rather, it relies on 

an August 1, 2007, letter from White House Counsel Fred Fielding 

and attached July 10, 2007, memorandum from Stephen G. 

Bradbury, this administration’s principal Deputy Assistant Attorney General in the Office of Legal Counsel (OLC), that amounts to 

a selective and incomplete collection of untested executive branch 

memoranda, opinions, presidential letters and speeches—in short, 

assertions of executive power by the executive branch.96 Indeed, 

the White House does not and cannot cite a single court case in 

support of its claims. 

In a civil suit stemming from the House Judiciary Committee’s 

parallel investigation, the District Court for the District of Columbia rejected the administration’s claim of immunity for presidential 

advisors.97 In his July 31, 2008, opinion, Judge Bates found that 

the ‘‘Executive’s current claim of absolute immunity from compelled 

congressional process for senior presidential aides is without any 

support in the case law.’’ In addition, Judge Bates explained why 

the administration’s blanket immunity claims were an unjustified 

encroachment on the constitutional powers of Congress. He wrote: 

‘‘[I]f the Executive’s absolute immunity argument were to prevail, 

Congress could be left with no recourse to obtain information that 

is plainly not subject to any colorable claim of executive privilege.’’ 

The result, which the court concluded was ‘‘unacceptable,’’ would be 

that the ‘‘Executive’s proposed absolute immunity would thus deprive Congress of even non-privileged information.’’ 98

Although the administration has appealed Judge Bates’ decision 

to the D.C. Circuit, the D.C. Circuit has specifically rejected the argument that OLC opinions like those cited by the White House in 

support of its novel claims have value as legal precedent outside of 

the executive branch itself. In Public Citizen v. Burke,99 the government sought to enforce an OLC opinion that obliged the Archivist of the United States to ‘‘acquiesce in any claim of executive 

privilege asserted by the former president.’’ 100 The opinion nominally interpreted regulations issued under the Presidential RecordVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00037 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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101 Note following 44 U.S.C. § 2111 (1982). 102See Burke, 843 F.2d at 1478, (‘‘[T]he government’s administrative opinion is not, in any 

meaningful sense, an interpretation of the statute. The OLC memorandum is driven entirely by 

its constitutional reasoning’’). 103 843 F.2d at 1480. 104 Bradbury at 1. 105 United States v. Burr, 25 F.Cas. 187, 191 (1807). 106 Clinton v. Jones, 520 U.S. 681, 703–706 (1997). 107Senate Select Committee v. Nixon, 498 F.2d 725, 729 (D.C. Cir., 1974). 

ings and Materials Act of 1974.101 The court rejected the administration’s argument, holding that deference to executive branch documents occurred only where an agency was interpreting a statute 

that it was bound to enforce and that, ‘‘[t]he federal Judiciary does 

not, however, owe deference to the Executive Branch’s interpretation of the Constitution.’’ 102 Accordingly, the court rejected the 

OLC opinion because it ‘‘is at variance with congressional purpose.’’ 103

In fact, Federal court decisions contradict the White House’s immunity assertion, and establish the scope of executive privilege and 

the need for balance among the three branches of the government. 

These decisions establish that no government official, including the 

President, is immune from compliance with a subpoena. Mr. 

Bradbury’s memo states, ‘‘This immunity is absolute and may not 

be overborne by competing congressional interests.’’ 104 This broad 

claim was struck down in the earliest days of the Republic. When 

the privilege was first recognized during the trial of Aaron Burr in 

1807, Chief Justice Marshall specifically stated ‘‘[t]hat the president of the United States may be subpoenaed, and examined as a 

witness, and required to produce any paper in his possession, is not 

controverted.’’ 105 The Supreme Court yet again ratified this principle 190 years later when it held that even a sitting president may 

be subpoenaed by a court and required to participate in a civil lawsuit.106

Moreover, Federal courts examining privilege claims have never 

endorsed the type of blanket immunity claim set forth by the White 

House in response to congressional or court subpoenas. For example, in Senate Select Committee on Presidential Campaign Activities v. Nixon, a case involving an executive privilege claim against 

compulsion by a congressional subpoena, the court set forth, as it 

has in every other instance of an executive privilege claim, a balancing test of the interests involved. The court held that applying 

the privilege ‘‘depends on a weighing of the public interest protected by the privilege against the public interests that would be 

served by disclosure in a particular case.’’ 107 This balancing test 

presupposes that the President, not to mention his aides, must be 

able to be compelled by congressional committees to appear. 

The White House contends its novel claim of immunity for presidential aides arises from separation of powers principles that 

render the President immune from Congressional subpoena. These 

claims ignore that the branches of government, while separate, act 

as a check on each other. Courts have long recognized that Congress has a broad, constitutionally grounded oversight power that 

encompasses both investigations into the administration of the government and the power to compel production of information where 

necessary. Mr. Bradbury’s memo relies heavily on statements by 

President Truman in its argument and ignores that his broad 


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108 343 U.S. 579 (1952). 109Woodrow Wilson, Congressional Government 195, 198 (Meridian Books 1956) (1885) (hereafter Wilson). 110See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1975) (‘‘Unless Congress have and 

use every means of acquainting itself with the acts and the disposition of the administrative 

agents of the government, the country must be helpless to learn how it is being served’’) (quoting 

Wilson at 303). 111Watkins v. United States, 354 U.S. 178, 187 (1957). 112McGrain v. Daugherty, 273 U.S. 135, 174 (1927); See also Id. at 175 (‘‘some means of compulsion are essential to obtain what is needed’’). 113 Nixon v. Fitzgerald, 457 U.S. 731, 753–754 (1981). 114Loving v. United States, 517 U.S. 748, 757 (1996). 

claims of presidential authority were rebuffed by the Supreme 

Court in the Youngstown Sheet & Tube Co. v. Sawyer.108

Another president, Woodrow Wilson, observed: 

Quite as important as legislation is vigilant oversight of 

administration; and even more important than legislation 

is the instruction and guidance in political affairs which 

the people might receive from a body which kept all national concerns suffused in a broad daylight of discussion. 

. . . The informing functions of Congress should be preferred even to its legislative function.109

Unlike President Truman, President Wilson has been favorably 

quoted on this point by the Supreme Court,110 and has had his fundamental point—that the Congress has a constitutional oversight 

power and duty—upheld by numerous courts on numerous occasions. ‘‘The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad.’’ 111 The 

Court in McGrain v. Daugherty went further: ‘‘We are of opinion 

that the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.’’ 112 Not 

only is the power of inquiry essential to the function of Congress, 

the power of inquiry cannot exist without a means to compel testimony and production of documents. 

The Supreme Court ruled in Nixon v. Fitzgerald: ‘‘It is settled 

law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.’’ 113 The 

Court has also stated that ‘‘[e]ven when a branch does not arrogate 

power to itself, moreover, the separation-of-powers doctrine requires that a branch not impair another in the performance of its 

constitutional duties.’’ 114 The White House provides no answer to 

the Supreme Court precedence demonstrating that Congress has 

the power to compel testimony and production of documents from 

government officials in the course of its investigations. 

VIII. CONTINUED NON-COMPLIANCE DESPITE THE DISTRICT COURT’S

DECISION IN HOUSE JUDICIARY COMMITTEE LAWSUIT DISMISSING

THE ADMINISTRATION’S IMMUNITY AND BLANKET PRIVILEGE

CLAIMS

As part of its parallel investigation into the hiring and firing of 

U.S. Attorneys, the House Judiciary Committee, on behalf of the 

House of Representatives, has pursued a civil suit seeking an order 

that former White House Counsel Harriet Miers comply with a subpoena to appear and testify regarding the U.S. Attorney firings and 

that White House Chief of Staff Joshua Bolten produce a privilege 

log in response to the House Judiciary Committee subpoena. That 


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suit, challenging the administration’s claims of absolute immunity 

for presidential advisors and blanket claims of executive privilege, 

involves issues similar to those at issue in the administration’s 

non-compliance with this Committee’s subpoenas. The sole decision 

on the merits in that suit, issued by Judge Bates of the District 

Court for the District of Columbia on July 31, 2008, reached the 

same conclusion as Chairman Leahy’s November 29, 2007 order, 

that the White House’s executive privilege and immunity claims 

were not legally valid to excuse compliance with the Committee’s 

subpoenas. 

On July 25, 2007, after the failure of the administration to cooperate voluntarily or under compulsion by subpoena with the 

House Judiciary Committee’s investigation into the U.S. Attorney 

firings, the House Judiciary Committee adopted a resolution of contempt against former White House Counsel Harriet Miers and 

White House Chief of Staff Joshua Bolten. After continued noncompliance with the subpoenas, on February 14, 2008, the House 

voted 223–32 to hold Ms. Miers and Mr. Bolten in contempt, passing resolutions to pursue both criminal contempt charges and a 

civil action in Federal court for declaratory and injunctive relief to 

obtain compliance with the subpoenas. 

On February 28, 2008, Speaker of the House Nancy Pelosi certified the contempt report to District of Columbia U.S. Attorney 

Jeffrey A. Taylor, directing him pursuant to 2 U.S.C. §§ 192 and 

194 to present contempt charges against Mr. Bolten and Ms. Miers 

to a grand jury. On February 29, 2008, Attorney General Mukasey 

informed Speaker Pelosi that the Department refused to bring the 

contempt charges before a grand jury or take any action to prosecute Mr. Bolten or Ms. Miers. Accordingly, the House Judiciary 

Committee filed a civil action in the District Court for the District 

of Columbia for declaratory and injunctive relief to enforce the subpoenas. 

On July 31, 2008, Judge Bates rejected the administration’s 

claim that senior White House officials are not required to comply 

with congressional subpoenas. As in Chairman Leahy’s November 

29, 2007, order finding the administration’s novel ‘‘immunity’’ 

claims without any legal or historical precedence, Judge Bates’ decision found: ‘‘Executive’s current claim of absolute immunity from 

compelled congressional process for senior presidential aides is 

without any support in the case law.’’ In addition, Judge Bates explained why the administration’s blanket immunity claims were an 

unjustified encroachment on the constitutional powers of Congress. 

He wrote: ‘‘[I]f the Executive’s absolute immunity argument were 

to prevail, Congress could be left with no recourse to obtain information that is plainly not subject to any colorable claim of executive privilege.’’ The result, which the court concluded was ‘‘unacceptable,’’ would be that the ‘‘Executive’s proposed absolute immunity would thus deprive Congress of even non-privileged information.’’ 

Judge Bates’ decision also undercut the White House’s blanket 

claims of privilege without substantiation. In the court’s opinion, 

Judge Bates wrote that ‘‘clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own 

privilege’’ and that ‘‘both the Court and the parties will need some 

way to evaluate the privilege assertions going forward.’’ Judge 


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Bates’ opinion validates the Committee’s requests for over a year 

for the White House to provide the specific legal and factual basis 

for its privilege so that the Committee can probe the basis for those 

claims and their validity rather than rely on the say-so of the 

President’s lawyers. 

Judge Bates’ opinion also recounted the efforts taken by both the 

House and Senate Judiciary Committees to reach an accommodation with the administration which have been to no avail in light 

of the administration’s continued reliance on its initial ‘‘take it or 

leave it’’ proposal for off-the-record, backroom interviews with no 

transcript, no oath, and no ability to follow up, which would deny 

Congress the ability to fulfill its legislative and oversight responsibilities. 

On July 31, 2008, after Judge Bates issued his opinion, Chairman Leahy sent letters to Mr. Rove’s attorney, Robert Luskin, and 

White House Counsel Fred Fielding, instructing them to advise the 

Committee by August 7 when Mr. Rove and Mr. Bolten would appear to provide documents and testimony related to the mass firing 

of U.S. Attorneys. Chairman Leahy also sent a letter to Attorney 

General Michael Mukasey asking when the Department would 

withdraw memoranda and opinions justifying the White House’s 

non-compliance with the subpoenas, including the memos purporting to justify the claim of immunity from testifying. 

On August 7, 2008, Mr. Bolten and Ms. Miers requested a stay 

of Judge Bates’ decision pending an appeal and White House Counsel Fred Fielding responded to Chairman Leahy that, despite the 

court’s order, the White House would await the outcome of an appeal and a request to stay the decision before ‘‘entertaining any requests for Mr. Bolten’s compliance with the Senate Judiciary Committee subpoena.’’ 

Chairman Leahy responded to Mr. Fielding’s letter on August 14, 

2008, again seeking compliance with the Committee’s subpoenas, 

stating that the White House’s ‘‘continued reliance on unprecedented ‘immunity’ claims places the administration starkly at odds 

with Congress, the Federal court, and the rule of law.’’ In addition, 

Chairman Leahy pointed out that the administration has made no 

proposals since the initial unacceptable offer in March 2007 and 

taken no steps toward compliance with the Judiciary Committee’s 

subpoenas or with the court’s order. 

On October 6, 2008, the Court of Appeals for the D.C. Circuit 

granted the administration’s motion for a stay of Judge Bates’ decision and refused to expedite the appeal. Accordingly, Judge Bates’ 

July 31, 2008, decision rejecting the administration’s position remains the only one on the merits. On October 16, 2008, Chairman 

Leahy received the Department’s belated response to his July 31, 

2008, letter to Attorney General Michael Mukasey asking whether 

he would be withdrawing the Department’s memorandum supporting the now-rejected immunity claim. The Department responded that, in light of the D.C. Circuit’s stay of the district court 

decision, the Office of Legal Counsel memorandum on immunity remains ‘‘authoritative.’’ 

The effects of the White House’s assertions of privilege and immunity have been unmistakable—amounting to the withholding of 

critical evidence related to the congressional investigation. All 

along, the administration has contended that their blanket claim of 


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privilege and immunity cannot be tested but must be accepted by 

the Congress as the last word. The administration maintains that 

position despite a resounding rejection by Judge Bates. 

IX. DEPARTMENT OF JUSTICE’S INTERNAL INVESTIGATION CON- FIRMED JUDICIARY COMMITTEE’S FINDINGS THOUGH IMPEDED BY

WHITE HOUSE REFUSAL TO COOPERATE

On September 29, 2008, the Department of Justice’s Office of the 

Inspector General (OIG) and the Office of Professional Responsibility (OPR) released a 358 page report on ‘‘An Investigation into 

the Removal of Nine U.S. Attorneys in 2006.’’ This report stems 

from a joint internal investigation into the U.S. Attorney firings 

begun in March 2007. Glenn A. Fine, the Department’s Inspector 

General, and H. Marshall Jarrett, counsel for OPR, informed the 

Judiciary Committee of the joint investigation in a March 26, 2007, 

letter to Chairman Leahy and Ranking Member Specter. They stated that they intended to investigate issues related to the removals 

of the U.S. Attorneys, including ‘‘whether the removal of any of the 

United States Attorneys was intended to interfere with or was in 

retaliation for pursuing or failing to pursue prosecutions or investigations’’ and ‘‘the accuracy of statements made by various Department officials to Congress about the removal of the United States 

Attorneys.’’ The Senate and House committees investigating the 

firings clarified that investigation would be conducted in accordance with OIG practices, including independence from the Attorney 

General and making public any findings from the investigation. 

Subsequent referrals to OIG/OPR of related matters of 

politicization of hiring and firing at the Department stemming from 

the congressional investigation became part of the joint internal investigation. As a result, in addition to the September 29, 2008, report summarized here regarding the removal of nine U.S. Attorneys in 2006, OIG/OPR issued reports on June 24, 2008, relating 

to political hiring for career positions in the Department’s Honors 

Program and Summer Law Intern Program and on July 28, 2008, 

relating to the use of political considerations in hiring for career 

positions throughout the Department, including hiring for career 

prosecutor positions in U.S. Attorneys offices, for detailee positions 

in main Justice, and for immigration judge positions. A separate 

report is expected detailing the findings of the OIG/OPR investigation into the use of political considerations for hiring and personnel 

decisions in the Civil Rights Division. 

The findings of September 29, 2008, report into the removal of 

U.S. Attorneys echoed the findings of the Committee’s investigation 

that the firings were unprecedented and that partisan political considerations played a role in the firings. The report also concluded 

that the firings were not the result of ‘‘a few bad apples’’ run amok 

as suggested by some in the administration, but rather that Attorney General Gonzales and Deputy Attorney General McNulty bore 

primary responsibility for the deeply flawed process that led to the 

firings because they ‘‘abdicated their responsibility to adequately 

oversee the process and to ensure that the reasons for removal of 

each U.S. Attorney were supportable and not improper.’’ In addition, the internal investigation found that they and other high-level 

Department officials were responsible for making untruthful statements about the removals and their role in the process. Finally, 


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even though it was an executive branch investigation, the OIG/ 

OPR investigation, like the Committee’s investigation, was impeded by the Bush administration’s refusal to cooperate and provide documents or witnesses despite evidence pointing to the significant involvement of high-level White House officials like Karl 

Rove and former White House Counsel Harriet Miers. 

The investigation described in the September 29, 2008, report focused on four areas. First, OIG/OPR investigated possible reasons 

the U.S. Attorneys were removed including whether for partisan 

political purposes, to influence an investigation or prosecution, or 

for retaliation purposes. Second, the investigation examined the 

process by which the U.S. Attorneys were selected for removal and 

identified the persons involved in those decisions. Third, OIG/OPR 

investigated whether Attorney General Gonzales or other Department officials made misleading statements regarding the U.S. Attorneys’ removal or attempted to influence other witnesses’ testimony. Finally, OIG/OPR investigated whether the Department intended to bypass the Senate confirmation process by replacing the 

dismissed attorneys with interim U.S. Attorneys for an indefinite 

period. 

The OIG/OPR report found that 28 U.S. Attorneys were considered for removal on at least one of eight lists compiled between 

March 2005, and the firings of seven U.S. Attorneys in December 

2006. Of the nine U.S. Attorneys that were the subject of the investigation, OIG/OPR concluded that the removal of at least seven involved impropriety as to the reasons for the removal or inconsistencies in the reasons given for removal. The following is a brief 

summary of the findings regarding those seven: 

A. TODD GRAVES

Todd Graves, former U.S. Attorney for the Western District of 

Missouri, was asked to resign on January 24, 2006. He announced 

his resignation on March 10, 2006 and left office March 24, 2006. 

Until May 2007, Department witnesses represented to Congress 

that seven U.S. Attorneys, plus Bud Cummins, were the only U.S. 

Attorneys removed as part of the process Kyle Sampson initiated 

in 2005 to identify and remove ‘‘underperforming’’ U.S. Attorneys. 

No witness mentioned Todd Graves of the Western District of Missouri. On May 9, 2007, Graves publically stated he was told to resign in January 2006 and his removal subsequently was included 

in the OIG/OPR investigation. 

The only explanation offered by Department officials for Mr. 

Graves’s removal, a vague recollection that an internal Department 

investigation may have been the basis for his removal, was found 

by OIG/OPR to have no basis. Rather, Mr. Graves appeared to have 

been removed because of complaints to the White House Counsel’s 

Office by Senator Bond’s staff regarding his decision not to respond 

to a demand from Senator Bond’s staff member to get involved in 

a personnel decision in Representative Sam Graves’s congressional 

office. The investigation into Mr. Graves’s removal was hindered by 

the failure of Mr. Sampson and Ms. Goodling to recall the reasons 

for Mr. Graves’s removal, by Ms. Goodling’s refused to cooperate 

with the investigations, by the refusal of former White House 

Counsel Harriet Miers and other White House officials to cooperate 


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with the investigations, and by the absence of any documents memorializing the justifications for Mr. Graves’s removal. 

The report concludes that the Department’s handling of Mr. 

Graves’ removal was inappropriate because: The Department failed 

to fulfill its responsibility to protect its independence and the independence of Federal prosecutors by ensuring that otherwise effective U.S. Attorneys are not removed for improper political reasons. 

Nobody in the Department accepted responsibility for the decision 

to remove Mr. Graves, and nobody consulted with the Attorney 

General about the decision to tell a U.S. Attorney to resign. 

B. H.E. ‘‘BUD’’ CUMMINS

H.E. ‘‘Bud’’ Cummins, the former U.S. Attorney for the Eastern 

District of Arkansas, was asked to resign in June 2006. He was replaced by Timothy Griffin in December 2006. The replacement of 

Mr. Cummins by Mr. Griffin gave rise to allegations that the firing 

was improper and that the Department was attempting to bypass 

the Senate confirmation process by appointing Griffin the interim 

U.S. Attorney for an indefinite term. 

The Department initially stated that Mr. Cummins was included 

on its initial list of ‘‘weak U.S. Attorneys’’ because he was mediocre 

and an underperformer. In fact, Mr. Cummins was considered to be 

one of the top five U.S. Attorneys in the country. The two Department evaluations of Mr. Cummins’ office were positive about his 

management of the office and his adherence to Department priorities. The investigation found that Mr. Cummins was not removed 

for performance reasons. His performance was never evaluated and 

no Department leader had suggested Mr. Cummins’ performance 

was lacking. Rather, the evidence showed the main reason for Mr. 

Cummins’ removal and timing of the removal was to provide a position for the former White House employee, Mr. Griffin. 

The investigation also found that following Mr. Cummins’ resignation and the announcement of Mr. Griffin as his replacement, 

senior Department leaders made a series of conflicting and misleading statements about Mr. Cummins’ removal. The OIG/OPR investigation into the removal of Mr. Cummins was hindered by the 

refusal of former White House employees to cooperate with the investigations even though they had relevant information. 

C. DAVID IGLESIAS

David Iglesias, former U.S. Attorney for the District of New Mexico was asked to resign on December 7, 2006. The Department stated Mr. Iglesias was removed because he was underperforming, was 

an absentee landlord who was ‘‘physically away a fair amount of 

time,’’ and the Department received a complaint by Senator 

Domenici that he doesn’t ‘‘move cases.’’ 

The OIG/OPR investigation into Mr. Iglesias’s removal was hampered and is not complete because key witnesses declined to cooperate with their investigation. Specifically, former White House officials Harriet Miers and Karl Rove and Senator Domenici and his 

Chief of Staff refused requests for interviews as part of the investigation. Further, the White House would not provide the investigation with any internal documents and emails relating to the removal of Mr. Iglesias. 


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The investigation found that the Department’s allegation that 

Mr. Iglesias was an absentee manager who had delegated too much 

authority to his first assistant was an ‘‘after-the-fact’’ justification 

for Mr. Iglesias’s termination and not a reason he was placed on 

the removal list. Rather, the evidence shows that Kyle Sampson 

placed Mr. Iglesias on a list for removal due to complaints to the 

Department of Justice and the White House by Republican members of the Congress and party activists from New Mexico about 

Mr. Iglesias’s handling of voter fraud and public corruption cases 

in the state. Once Mr. Iglesias was on the list, no senior Department leaders questioned his inclusion or asked that he be taken off 

the list. Thus, Mr. Iglesias was fired because of complaints by political officials, who had a political interest in the outcome of the 

voter fraud and corruption cases. The report found that these actions were an abdication of senior Department leaders’ responsibilities, independence and integrity. 

Based on inability of investigators to compel the cooperation of 

key witnesses and obtain White House documents, several unanswered questions regarding Mr. Iglesias’s removal remain. Accordingly, OIG/OPR recommended that the Attorney General appoint a 

special counsel to investigate why Mr. Iglesias, and the other U.S. 

Attorneys, were removed, whether Mr. Sampson or other Department officials made false statements to Congress or to Department 

investigators about the reasons for the removal of Mr. Iglesias or 

the other U.S. Attorneys, and whether Federal criminal statutes 

were violated with regard to the removal of Iglesias. The report 

states that interviews with witnesses who refused to cooperate with 

the investigation, such as Mr. Rove, Ms. Goodling and Ms. Miers 

and a review of White House documents would provide more evidence to whether Mr. Sampson or others made false statements. 

D. DANIEL BOGDEN

Daniel Bogden, former U.S. Attorney for Nevada, was told to resign on December 7, 2006, announced his resignation on January 

17, 2007, and left office on February 28, 2007. The Department 

stated Mr. Bogden was removed because he ‘‘lacked energy and 

leadership, and was good on guns but not good on obscenity cases.’’ 

The Department also proffered that he was removed for using a 

provision of the Patriot Act to obtain evidence in a criminal case. 

The OIG/OPR investigation found no support for the allegation 

that Mr. Bodgen was told to resign due to the Patriot Act incident. 

The investigation determined that the primary reason that Mr. 

Bogden was placed on the removal list was because of complaints 

to the Department by Brend Ward, the head of the Obscenity Prosecution Task Force, about Mr. Bogden’s decision not to assign a Nevada prosecutor to a Task Force case. It appears, however, that no 

Department official other than Mr. Sampson knew that justification for Mr. Bodgen’s listing and were instead led to believe that 

his inclusion on the list for removal was because he was a ‘‘mediocre’’ U.S. Attorney and the Department could ‘‘do better.’’ Attorney 

General Gonzales and Deputy Attorney General McNulty were apparently never informed of the real reason for Mr. Bodgen’s removal. 

The investigation concluded that Mr. Bogden’s removal was 

‘‘troubling’’ because neither Sampson nor any other Department ofVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00045 Fmt 6659 Sfmt 6602 E:\HR\OC\SR522.XXX SR522

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ficial involved in the removal process asked for Mr. Bogden’s explanation about Mr. Ward’s complaint, no Department official ever 

raised concerns or objectively assessed Mr. Bodgen’s performance to 

determine whether he was in fact ‘‘mediocre’’ prior to his removal, 

Deputy Attorney General McNulty’s qualms about Mr. Bogden’s removal appear to have been quashed by his marital status or family 

status, and Attorney General Gonzales and Deputy Attorney General McNulty stated they did not know why Mr. Bogden was removed. 

E. PAUL CHARLTON

Paul Charlton, the former U.S. Attorney for the District of Arizona, was instructed to resign December 7, 2006, announced his 

resignation on December 18, 2006, and left office January 30, 2007. 

The Department provided the following reasons for his removal: (1) 

Mr. Charlton advocated for additional resources for his office directly with Senator Kyl; (2) Mr. Charlton instituted a policy for 

tape recording interrogations; (3) Mr. Charlton did not timely file 

a notice that the Department would seek the death penalty in a 

particular case; and (4) Mr. Charlton refused to prosecute obscenity 

cases. 

The OIG/OPR investigation called into question the propriety of 

what it found to be the two primary reasons for Mr. Charlton’s removal. Regarding the first of these reasons, Mr. Charlton’s implementation of a pilot program for tape recording interrogations, 

Deputy Attorney General McNulty testified that while he did find 

Mr. Charlton’s actions insubordinate, he would not have removed 

Mr. Charlton based on an attempt to implement the policy. The 

second reason for Mr. Charlton’s removal, the one described in the 

report as ‘‘the most significant factor’’ in his removal, was Mr. 

Charlton’s efforts to re-evaluate the Department’s decision to seek 

the death penalty in a specific case. The report concluded that 

these efforts were not insubordination or inappropriate, but warranted given the magnitude of the Department’s decision. 

F. JOHN MCKAY

John McKay, former U.S. Attorney for the Western District of 

Washington, was asked to resign on December 7, 2006, announced 

his resignation on December 14, 2006, and left office January 26, 

2007. The Department proffered that Mr. McKay was removed because he was ‘‘enthusiastic but temperamental,’’ made promises 

about information sharing that the Department could not support, 

was ‘‘overly aggressive in seeking resources’’ to investigate the 

murder of an Assistant U.S. Attorney, his district’s sentencing statistics were out of line and was resistant to Department leadership. 

According to media reports, Mr. McKay was removed because he 

failed to investigate voter fraud claims following the 2004 Washington State governor’s race. 

Although the OIG/OPR report concludes that the evidence suggests the primary reason for Mr. McKay’s removal was his conflict 

with Deputy Attorney General McNulty over an information sharing program, the investigation could not make a conclusive determination as to the reasons for Mr. McKay’s removal. Based on the 

evidence, OIG/OPR could not determine whether or not complaints 


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of Mr. McKay’s handling of the voter fraud cases caused him to be 

removed. 

G. CAROL LAM

Carol Lam, former U.S. Attorney for the Southern District of 

California was asked to resign on December 7, 2006. The Department stated that Lam was removed because of her district’s prosecution of firearm and immigration cases. During the OIG/OPR investigation, an additional justification emerged that Ms. Lam was 

removed because of her office’s investigation of Congressman 

Randy ‘‘Duke’’ Cunningham and Central Intelligence Agency (CIA) 

official Kyle ‘‘Dusty’’ Foggo. 

The investigation concluded that the Department’s actions surrounding Ms. Lam’s removal provide a ‘‘clear example of the disorganized removal process and lack of oversight over that process.’’ 

In particular, OIG/OPR found it inappropriate that the Department 

never discussed with Ms. Lam her office’s statistics in gun and immigration cases prior to her removal and did not provide her with 

an explanation as to why she was removed. 

Overall, the OIG/OPR report concluded that the process used to 

remove the nine U.S. Attorneys in 2006 was unsystematic and arbitrary with little oversight from the Attorney General, the Deputy 

Attorney General or other senior Department officials. The U.S. Attorneys did not have an opportunity to address the concerns about 

their performance prior to their removal and Department statements explaining why they were removed were inconsistent, misleading and inaccurate. The report concluded that Attorney General Gonzales and Deputy Attorney General McNulty are primarily 

responsible for the Department’s actions because they failed to adequately oversee the process and ensure the reasons for removal 

were proper. Other Department officials are responsible for making 

untruthful statements about the removals and their role in the 

process. 

While the investigation was able to verify some of the facts surrounding the removals, there are still gaps in the investigation due 

to key witnesses refusing to be interviewed, including former White 

House Deputy Chief of Staff Karl Rove, former White House Counsel Harriet Miers, and former Deputy White House Counsel William Kelley, as well as former Department of Justice White House 

liaison Monica Goodling, Senator Domenici and his Chief of Staff. 

The White House also refused to allow access to internal documents related to the removals. 

Finally, the report concluded that further investigation is needed 

regarding the removal of David Iglesias and the allegations that he 

was removed to influence prosecutions of voter fraud and public 

corruption. The report recommended that the Attorney General appoint a special counsel to determine whether a criminal offense was 

committed in connection with Iglesias’s removal or testimony related to his removal as well as the testimony of other witnesses related to the U.S. Attorney removals, including former Attorney 

General Gonzales. 

Following the release of this report, Attorney General Mukasey 

appointed Acting U.S. Attorney Nora Dannehy of Connecticut as 

the special prosecutor in the investigation. 


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X. CONCLUSION

The Committee reports these resolutions and the facts in support 

thereof finding White House Chief of Staff Joshua Bolten and 

former White House Deputy Chief of Staff Karl Rove in contempt 

of Congress because of their continuing non-compliance with the 

Committee’s subpoenas. 

The Committee has conducted this investigation into the firing of 

U.S. Attorneys and politicization of hiring and firing at the Department of Justice and now refers these contempt resolutions pursuant its constitutional legislative, oversight and investigative powers 

and in order to fulfill its responsibilities to the Senate and the 

American people. 

The investigation was met initially by misleading and inaccurate 

statements from Department officials regarding the reasons for the 

firings, then by stonewalling by the White House despite evidence 

of significant involvement by political officials at the White House, 

and ultimately by the resignations of numerous Department and 

White House officials, including the Attorney General. The conduct 

of these officials has been the subject of an internal investigation 

at the Department that has now confirmed the Committee’s findings of serious wrongdoing and led to a referral of the matter to 

a Special Prosecutor for further investigation to determine whether 

crimes occurred. 

The Department of Justice engaged in the unprecedented firing 

of U.S. Attorneys for political reasons and that the White House’s 

partisan interests in the prosecution of voter fraud and public corruption played a role. Attorney General Gonzales and the other 

former top officials at the Department abdicated their responsibility to ensure the independence of law enforcement. The Committee has pursued this matter on a bi-partisan basis because the 

injection of political bias into the determination of which cases 

should be prosecuted is corrosive to the very foundations of our system of justice. 

In light of the evidence showing that White House officials 

played a significant role in originating, developing, coordinating 

and implementing these unprecedented firings and the response to 

Congressional inquiries about it, the investigation will not be complete without information available only from the White House and 

from current and former White House officials. The White House’s 

unsubstantiated blanket claims of privilege and novel claims of immunity do not trump the Committee’s well-established need for the 

information it has sought about the firings and do not excuse current and former White House officials from complying with the 

Committee’s subpoenas. 


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XI. MINORITY AND DISSENTING VIEWS OF SENATORS 

SPECTER AND GRASSLEY 

The Senate Judiciary Committee’s investigation into the U.S. Attorney removals was conducted in a largely bipartisan fashion. For 

months during 2007, Members from both sides of the aisle pressed 

difficult questions in a series of hearings and through letters, and 

staff from Democrat and Republican offices participated in numerous transcribed interviews of officials from the highest ranks of the 

Department of Justice. We have supported Congressional oversight 

throughout our nearly three-decades of shared tenure in the Senate. Accordingly, we joined with the Majority in supporting various 

Committee subpoenas, as well as the revised contempt resolutions 

approved by the Committee last December. 

Although we supported the Committee’s efforts in the U.S. Attorney removal investigation, including the contempt resolutions voted 

upon last year, we cannot join the Majority in this Report. We both 

voted in favor of the contempt resolutions regarding Messrs. Bolten 

and Rove after staff and Member consultation produced resolution 

text that: (1) had bipartisan support; (2) identified every fact and 

element necessary to charge contempt of Congress under 2 U.S.C. 

§ 194; (3) was consistent with Committee precedent; (4) contained 

no surplussage that could arguably jeopardize or undermine the enforceability of the Committee’s action; and (5) was fair to the due 

process rights of the prospective contempt defendants. However, so 

much time has passed that the matter is now somewhere between 

moot and meaningless. Had there been any intention to pursue 

Senate action, these procedural steps would have been taken soon 

after the resolutions of contempt were approved. The filing of this 

report—fourteen months after Attorney General Gonzales resigned, 

eleven months after the contempt resolutions were approved and a 

mere two months before a new administration takes office—will 

likely prove superfluous. 

The Majority’s Report also strays from the neutral language of 

the contempt resolutions we supported. We believe the Report 

should have stayed within the facts voted upon by the Committee 

last year. Additionally, we would have preferred a more measured 

approach to the Report’s factual and legal conclusions to ensure 

both objectivity and enforceability. As the Majority’s Report currently stands, we cannot support it. Accordingly, we file these supplemental and dissenting views. 

A. THE FACTS CONTAINED IN THE REPORT VARY FROM THOSE

CONSIDERED AND VOTED UPON BY THE COMMITTEE

We are concerned by the many factual and legal assertions in the 

Report that are not reflected in the Committee’s findings in the 

Resolutions. This variance is not insignificant and could cause 

problems for the enforceability of the Committee’s Resolutions. 


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Both Resolutions call on ‘‘the President of the Senate to certify the 

facts of the failure’’ of the witnesses to appear as required. This approach appears to comply with 2 U.S.C. § 194, which refers to a report of ‘‘the fact of such failure or failures’’ to comply with a subpoena and to the President of the Senate’s certification of ‘‘the 

statement of facts.’’ With different facts stated in the Report and 

the Resolutions, the question arises: Which facts are to be certified? 

Is the President of the Senate called upon to certify the narrow set 

of facts stated in the Resolutions or the much broader and colorfully written facts stated in the Majority’s Report? If multiple bases 

of fact are possible, ambiguity could result at multiple stages downstream in the process—for the President of the Senate when he certifies the facts, for the U.S. Attorney when he presents the case, 

and for the defendants if they are put in criminal jeopardy. 

The due process concerns for the prospective defendants are not 

insignificant. As the Supreme Court in Russell v. United States, 

369 U.S. 749 (1962),wrote in response to a flawed Congressional referral of contempt: ‘‘A cryptic form of indictment in cases of this 

kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point and the affirmance of the conviction on another. It gives the prosecution free 

hand on appeal to fill in the gaps of proof by surmise and conjecture.’’ Id. at 766. If such a ruling were to be repeated in this matter, it would not just be a boon to those who failed to honor the 

Committee’s subpoenas. It would also be a blow to the oversight 

authority of the legislative branch relative to the executive. 

B. THE MAJORITY’S REPORT INCLUDES FACTS AND FINDINGS THAT ARE

UNNECESSARY AND COUNTERPRODUCTIVE TO SUBPOENA ENFORCEMENT

We are concerned the Majority’s Report contains facts and findings that are unnecessary—and even counterproductive—to enforcement of the Resolutions. For example, the Majority’s Report 

reaches evidentiary conclusions in what is essentially a discovery 

exercise. The Majority’s Report describes findings of ‘‘grave threats 

to the independence of law enforcement,’’ ‘‘lying,’’ ‘‘significant involvement of White House political officials in improper politicization,’’ ‘‘stonewalling,’’ and a contrived ‘‘cover up;’’ yet the Report 

itself is an effort to support the enforcement of Committee subpoenas via the statutory contempt mechanism. 

If a court looks to the Majority’s Report and finds that the Committee is already reaching conclusions in its investigation, it will 

justifiably ask why any further testimony or documents are needed. 

We are especially concerned with the Majority’s Report in this regard because one of the touchstones of executive privilege review 

is the party’s need for the subpoenaed information. Indeed, it is a 

threshold question for any party who seeks to overcome a claim of 

executive privilege. See In re Sealed Case, 121 F.3d 729, 746 (1997) 

(explaining that courts ‘‘must specifically consider the need of the 

party seeking privileged evidence’’ when evaluating either a presidential communications privilege or deliberative process privilege 

case). 


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C. THE MAJORITY’S REPORT SHOULD HAVE STRUCK A MORE MEASURED

TONE ON PRIVILEGE

Battles between the branches on executive privilege are an all 

too common occurrence. As shown in the Gorsuch case, federal 

courts are loathe to wade into such battles if they are perceived as 

irreconcilable bickering among the political branches. See United 

States v. House of Representatives, 556 F. Sup. 150 (D.D.C. 1983) 

(‘‘Compromise and cooperation, rather than confrontation, should 

be the aim of the parties.’’). We are concerned the Majority’s Report 

is too strident and one-sided in its rejection of the Administration’s 

executive privilege claims. 

For example, the Majority’s Report describes the Administration’s assertion of privilege as ‘‘novel’’ and ‘‘a dramatic break from 

the practices of every administration since World War II in responding to congressional oversight.’’ Although the Administration’s position might be viewed as controversial and in some respects at odds with the Committee’s constitutional oversight responsibility, it is far from novel for an Administration to claim that 

officials are immune from appearing before Congress due to their 

senior roles and proximity to the President. Claims of executive immunity are not novel. Indeed, well-documented claims of this type 

have been made by both Democrat and Republican administrations 

for at least forty years. 

During the Senate Judiciary Committee’s investigation into alleged improprieties of then-Supreme Court Justice Abe Fortas, 

Johnson Administration Associate Special Counsel to the President, 

W. DeVier Pierson, wrote the following to Chairman Eastland 

when he declined to appear: ‘‘It has been firmly established, as a 

matter of principle and precedents, that members of the President’s 

immediate staff shall not appear before a congressional committee 

to testify with respect to the performance of their duties on behalf 

of the President. This limitation, which has been recognized by the 

Congress as well as the Executive, is fundamental to our system 

of government.’’ Among the precedents to which Pierson may be 

been referring were the two occasions when Truman adviser John 

Steelman returned House subpoenas with a letter stating, ‘‘the 

President directed me, in view of my duties as his Assistant, not 

to appear before your subcommittee.’’ 

In February 1971, then Assistant Attorney General William 

Rehnquist authored a memorandum detailing the history and basis 

for such claims of immunity, which cited the two above examples. 

Following his historic and legal analysis, Rehnquist wrote, ‘‘[t]he 

President and his immediate advisers—that is, those who customarily meet with the President on a regular or frequent basis— 

should be deemed absolutely immune from testimonial compulsion 

by a congressional committee. They not only may not be examined 

with respect to their official duties, but they may not even be compelled to appear before a congressional committee.’’ Rehnquist OLC 

Memo Titled ‘‘Power of Congressional Committee to Compel Appearance or Testimony of ‘White House Staff’ ’’ (Feb. 5, 1971). Like 

the assertion of privilege made to the Judiciary Committee, 

Rehnquist made distinctions between senior and lower level White 

House staff. 


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The distinction between immunity for senior Presidential advisers and lower level staff was further developed in a February 8, 

1979 memorandum by Carter-Administration White House counsel 

Robert Lipshutz. Although Lipshutz conceded that advisers with 

statutory obligations would be required to testify, he broadly asserted that advisers without such duties are immune from testifying before Congress: 

The role of the White House aide is that of adviser to the 

President. Frank and candid discussions between the 

President and his personal staff are essential to the effective discharge of the President’s Executive responsibilities. 

Discussions of this type take place only if their contents 

are kept confidential. . . . 

While the investigative power of Congressional committees 

is extremely broad, the personal staff of the President is 

immune from testimonial compulsion by Congress. This 

immunity is grounded in the Constitutional doctrine of 

separation of powers. 

Lipshutz Memo Titled ‘‘Congressional Testimony by Members of 

the White House Staff’’ (Feb. 8, 1979). Notwithstanding our own 

disagreement with the Administration’s broad executive privilege 

claims before the Committee, it is nevertheless incorrect to label 

the claim of immunity ‘‘novel’’ or contrary to all modern precedent. 

In addition to our concerns about dismissing the Administration’s 

immunity claim as ‘‘novel,’’ we are also concerned with some apparent omissions in the Report. For example, the Report fails to discuss, define, or even mention the potential application of the deliberative process privilege. The deliberative process privilege, which 

is much broader, but also weaker, than the presidential communications privilege, requires no involvement by the President. See 

In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (requiring 

only that the material at issue be predecisional and comprising 

part of a deliberative process by which government decisions and 

policies are formulated). The Report’s silence on this issue creates 

an opportunity for unfavorable precedent. 

D. WE SHOULD PRESERVE THE SENATE’S OVERSIGHT AUTHORITY, BUT

BE EVER VIGILANT AGAINST THE POTENTIAL FOR CREATING BAD

PRECEDENT

We remain committed to defending the Committee’s oversight 

authority and responsibility. That is why we supported the revised 

Resolutions considered by the Committee last December. Nevertheless, our strong support of the Senate’s institutional role in administration oversight cautions us to be concerned about actions that 

could undermine or limit the Senate’s subpoena power in the future. We are mindful that Congress’s record before the courts on 

contempt has been mixed. See Watkins v. United States, 354 U.S. 

178 (1957); Russell v. United States, 369 U.S. 749 (1962); Wilson 

v. United States, 369 F.2d 198 (D.C. Cir. 1966). An adverse ruling 

by a federal court—whether against the contempt power or in favor 

of executive privilege—could weaken the Senate’s oversight authority in future matters and encourage a future administration to 

fight subpoenas in a matter of greater urgency or importance. We 


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are concerned the variance between the facts in the Resolutions 

and the Report could lead to an adverse outcome and be a blow to 

the Committee’s—indeed, the Congress’—ability to conduct oversight in the future. 

ARLEN SPECTER. 

CHUCK GRASSLEY. 


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1Majority Report at 2. 

2Former Deputy Attorney General Paul McNulty 04/27/2007 Tr. at 188–190. 

XII. MINORITY VIEWS OF SENATORS KYL, SESSIONS, 

BROWNBACK AND COBURN 

We generally agree with the Minority Views of Senators Specter 

and Grassley. Three aspects of the Majority Report, however, merit 

additional comment: the first is the Majority’s utterly unfounded 

accusation that the Justice Department’s public-corruption prosecution decisions were influenced by politics. The second is the Majority’s attack on the notion of executive privilege—a position that is 

very much at odds with the position that members of the Majority 

have adopted in the past. And finally, we are simply dumbfounded 

by the Majority’s earth-is-flat insistence that no such thing as vote 

fraud ever occurs in this country, and thus no investigation or prosecution of such matters is ever appropriate—an insistence that is 

completely at odds with what the American people just witnessed 

during the recent elections. 

FALSE ACCUSATIONS LEVELED AGAINST THE JUSTICE DEPARTMENT

The Majority’s Report concludes its analysis with the assertion 

that ‘‘[t]he evidence shows that senior officials were apparently focused on the political impact of federal prosecutions and whether 

federal prosecutors were doing enough to bring partisan voter fraud 

and corruption cases.’’ 1

This is a falsehood—one that the Majority does not even attempt 

to buttress with any citations to the relevant record. The Majority 

Report does not cite one shred of evidence to support this conclusion because there is no such evidence. Indeed, all of that record— 

the numerous interviews conducted by the staff of this committee— 

supports the very opposite conclusion: that the professional and 

dedicated attorneys at the U.S. Justice Department fulfilled their 

duty to investigate and prosecute public corruption, and that partisan bias played no role in these investigative and prosecutorial 

decisions. 

The Majority’s thesis—that public-corruption prosecutions were 

driven by politics—was repeatedly refuted by witness after witness 

during this committee’s investigations. For example, Deputy Attorney General Paul J. McNulty, in his April 27, 2007, interview, 

while describing the ‘‘nonpolitical, career investigators, assistant 

United States attorneys and U.S. attorneys’’ who make the decision 

to bring these cases, stated that ‘‘if any one of these professionals 

thought that a case were being undermined or harmed by the removal of a U.S. attorney, they would scream to high heaven, as 

they should.’’ 2 David Margolis, the highest ranking career official 

at the Department of Justice, when asked whether he had heard 

from anyone in a position of power that the requests for resignaVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00054 Fmt 6604 Sfmt 6604 E:\HR\OC\SR522.XXX SR522

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3 Associate Deputy Attorney General David Margolis 05/01/07 Tr. at 206. 

4 Id. at 211. 

5Former Director of the Executive Office of U.S. Attorneys Michael Battle 04/10/07 Tr. at 114. 

6 Id. at 112. 

7Former Deputy Attorney General Chief of Staff Michael Elston 03/30/07 Tr. at 123–124. 

8 Id. 

tions were dispatched with an eye toward ‘‘influence[ing] a political 

corruption case,’’ said, ‘‘[a]bsolutely not, and they would get my 

sharp stick in the eye if they suggested that.’’ 3 When asked whether he had heard anyone complain about Carol Lam’s public integrity prosecution of Duke Cunningham and her investigation of 

Dusty Foggo and Brent Wilkes, Mr. Margolis responded, ‘‘No. Absolutely not. We’re very proud of that prosecution of Representative 

Cunningham and the investigation of Foggo. We’re very proud of 

that.’’ 4

Similarly, when asked whether he was ever present when anyone 

discussed seeking a U.S. Attorney’s resignation because of a political prosecution, the former Director of the Executive Office of U.S. 

Attorneys, Michael Battle, testified ‘‘No. Never aware of that.’’ 5

Significantly, up until his resignation from the Department of Justice in January of 2006, Mr. Battle had dedicated his entire career—over twenty years—to public service.6 Other witnesses were 

equally dismissive of the innuendo and baseless accusations in the 

media on which the Majority Report relies. Mr. McNulty’s former 

Chief of Staff, Michael Elston testified as follows: 

The notion that the media has that the dismissal of the 

United States Attorney in any way, shape or form affects 

a pending investigation or case is silly. I have been 

through the transition of a United States Attorney in the 

district—Northern District of Illinois. And I was an Assistant United States Attorney, and I had pending investigations and pending cases at the time. And it affected my 

cases in the following way: I changed the name of the 

United States Attorney on my letterhead and pleadings.7

Mr. Elston’s credibility on the Cunningham and associated prosecutions is further bolstered by the fact that he assisted in executing subpoenas simultaneously in Virginia and California when 

the investigation turned to Brent Wilkes: 

There was a coordinated effort to search the California 

and Virginia offices of that business as well as Mr. Wilkes’ 

home on the same day, and I was the Assistant United 

States Attorney assigned to obtaining a search warrant. 

And I did do that. A search warrant is a matter of public 

record and sets out what an incredible case the 

Cunningham case was and how very blatant the bribery 

was, and it goes on and on and on in detail.8

As a former Federal prosecutor heavily invested in the case, Mr. 

Elston went on to testify, ‘‘I would have been outraged had anyone 

suggested to me that there was a problem with that case that merited anything, whether it was a request for resignation or anything 

else, because I had probably among the leadership of the DepartVerDate Aug 31 2005 00:07 Nov 25, 2008 Jkt 079010 PO 00000 Frm 00055 Fmt 6604 Sfmt 6604 E:\HR\OC\SR522.XXX SR522

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9 Id. at 124. 

ment the most intimate knowledge of that case and how good that 

case was of anybody else.’’ 9

These are the facts of record. Yet they are markedly absent from 

the Majority’s Report. 

Sadly, much more was at stake in this investigation than the employment of nine U.S. Attorneys—namely, the confidence of the 

American people in the most revered law enforcement institution 

in the world. It is, therefore, deeply ironic that in pressing its case 

that the Justice Department has been overly politicized, the Majority chooses to politicize its very investigation, and completely ignores the voluminous evidence that rebuts its pre-determined conclusion. 

WE’VE COME A LONG WAY

During this Congress, the Majority has been rather promiscuous 

in its issuance of subpoenas to the executive branch. It was not always thus. In the past, members of this same Majority appeared 

to recognize that issuing a subpoena was a serious matter that 

should be undertaken only after substantial deliberation. Some examples of past expressions the Majority’s now-abandoned modesty 

in this regard are as follows: 

Senator Leahy (Press Release September 23, 1999): 

‘‘I do not believe we should be issuing subpoenas to the Justice 

Department unless that step is absolutely necessary.’’ 

Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in 

judicial proceedings, congressional investigations and other 

arenas. While the proper scope of executive privilege is the 

subject of much debate, at a minimum, it covers presidential communications, and may also protect the decisionmaking, or deliberative process, of the executive branch in 

general . . . Thus, this resolution, which avoids the 

issuance of a subpoena should the Justice Department continue to cooperate with the Committee in producing nonprivileged documents, is a good result. 

Senator Leahy (Press Release June 8, 2000): 

[At the last business meeting,] ‘‘I held over consideration 

of [a] subpoena . . . since, in my view, it had been precipitously added to the agenda at the last minute and needed 

further consideration . . . [T]he White House has made 

clear that it will provide the email communications that 

are relevant to the Committee’s oversight inquiries without the need for a subpoena. . . . It is truly remarkable 

that the majority of this Committee chooses first to communicate—now routinely at each executive business meeting—with the Executive Branch and its agencies by way of 

subpoena. Issuing subpoenas may make for a good show of 

partisan force by the majority but certainly continues the 

erosion of civil discourse that has marked this Congress. 


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The following quotes are from the floor of the Senate in Whitewater debate. (Congressional Record: December 20, 1995): 

Senator Sarbanes: 

It always should be borne in mind that when the executive and legislative branches fail to resolve a dispute between them and instead submit their disagreements to the 

courts for resolution, significant power is then placed in 

the judicial branch to write rules that will govern the relationship between the elected branches . . . [W]e have a 

chance here to work this out . . . and there is no need to 

go to court running the risk, I would suggest to some Senators, of an adverse precedent. 

We need to avoid a needless constitutional confrontation 

by pursuing a negotiated resolution to this dispute. Congressional attempts to inquire into privileged executive 

branch communications are rare and with good reason. In 

fact, the courts on occasion have refused to determine the 

dispute and have encouraged the two branches to settle 

the differences without further judicial involvement. In 

other words, when it comes to the court, it says you ought 

to settle it between yourselves and not involve the court in 

trying to address this matter. The U.S. Court of Appeals 

for the District of Columbia has long held that Presidential 

communications are presumptively privileged. 

Senator Dodd: 

Our role, fundamentally, is legislative. We conduct investigations, of course, but that is primarily to help develop legislation. And it seems to me that, where you have 

a White House that is cooperating, you ought to avoid a 

confrontation with the executive branch. After all, it is not 

clear what the third branch of government, the judiciary, 

will do. In similar cases, the courts have thrown the matter right back to us and have said, ‘‘Look, you people sort 

this out your own way. We are not going to make the decision for you.’’ So we may end up, after months of squabbling, in no better position than we are in today. 

Senator Boxer: 

Supporting reaching a compromise with the Clinton Administration: 

We can avoid a costly subpoena battle. We can avoid, 

frankly, losing in the courts, which would harm the U.S. 

Senate out into the future, and we can get the information 

. . . We [should] not go on political witch hunts and deny 

people their rights. . . . That is bad for this institution. It 

is bad for this investigation. It is bad for the precedence 

of the United States. Frankly, I think it is bad for individual Senators. 

The bottom line is, do you want to get the [information] 

or do you want to play politics? That is the way I see it. 

I hope we decide we want to get the [information], we 

want to do it in a way that keeps this committee working 


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10The Emerging Democratic Majority, http://www.powerlineblog.com/archives/2008/08/ 

021168.php? (Aug. 5, 2008, 7:30 EST). 

in a bipartisan fashion because, frankly, if we do not stick 

together on this, on the procedures, I think the American 

people are going to think this is all politics and all the 

hard work that we do to put light on this subject will simply not be respected. 

Senator Bumpers: 

[This] is not a constitutional crisis . . . But it just seems 

to me that in the interest of comity, in the interest of taking advantage of an offer by the President to say here [is 

the information] . . . I daresay there is not a Member of 

the U.S. Senate that would have made a more generous 

offer under the same conditions than the President of the 

United States has made in this case. 

Senator Pryor: 

I think it is very, very necessary for the American public 

at this time to have the knowledge that this administration in no way is trying to keep the [sought information 

from the] U.S. Senate. . . . The White House has repeatedly said: ‘We want you to have [this information]. We 

think you should have [this information]. We will give you 

[this information].’ I do not think that should be the business of the Senate at this particular time, to start eroding 

and emasculating the particular right that we revere in 

the common law and have for so many years, and that is 

the right of privilege created between lawyer and client. 

VOTE EARLY AND VOTE OFTEN

As Justice Thurgood Marshall noted in the U.S. Supreme Court’s 

decision in Anderson v. U.S., 417 U.S. 211, ‘‘[e]very voter in a federal primary election, whether he votes for a candidate with little 

chance of winning or for one with little chance of losing, has a right 

under the Constitution to have his vote fairly counted, without its 

being distorted by fraudulently cast votes.’’ 

Perhaps the most Orwellian aspect of the Majority report is its 

repeated insistence that there is no vote fraud in this country that 

is ever worth investigating. At one point, the Majority even places 

scare quotes around the term, lest anyone receive the impression 

that the Majority believes that voter fraud could ever be a real 

problem. Yet during the federal elections just concluded, the American public saw numerous examples of serious attempts to commit 

voter fraud in this country. 

Most of these incidents involved the Association of Community 

Organizations for Reform Now (ACORN), a group that actively promotes voter registration in many cities across the nation. ACORN 

tends to target areas where it believes that it can register Democratic voters, such as parks, public-assistance agencies, and liquor 

stores,10 and generally hires part-time workers who are paid for 

each registered name to canvas these areas. 


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11 Evan Perez, GOP Renews Complaints Over Voter Registrations, Wall St. J., Oct. 9, 2008, 

available at http://online.wsj.com/article/SB122351568128417691.html.; John Fund, A Smelly 

Acorn, Wall St. J., Oct. 10, 2008, available at http://online.wsj.com/article/SB1223609 

17725822225.html [hereinafter Fund, A Smelly Acorn]; Editorial, Obama and Acorn, Wall St. 

J., Oct. 14, 2008, available at http://online.wsj.com/article/SB122394051071230749.html [hereinafter Editorial, Obama and Acorn]. 12When in Trouble, Cheat, http://www.powerlineblog.com/archives/2008/09/021523.php? (Sept. 

15, 2008 20:39 EST). 13 Voter Fraud: It’s Easy!, http://www.powerlineblog.com/archives/2008/11/021989.php? (Nov. 4, 

2008, 14:58 EST). 14Obama Campaign Taking No Chances, http://www.powerlineblog.com/archives/2008/10/ 

021723.php? (Oct. 8, 2008, 17:48 EST). 15 Acorn: the Fraud Continues, http://www.powerlineblog.com/archives/2008/10/021768.php? 

(Oct. 13, 2008, 19:55 EST). 16When in Trouble, Cheat, http://www.powerlineblog.com/archives/2008/09/021523.php? (Sept. 

15, 2008 20:39 EST). 17Obama Campaign Taking No Chances, http://www.powerlineblog.com/archives/2008/10/ 

021723.php? (Oct. 8, 2008, 17:48 EST). 18 ‘‘Is Acorn Stealing the Election?’’, http://www.powerlineblog.com/archives/2008/10/ 

021729.php? (Oct. 9, 2008, 14:11 EST). 19 ‘‘Is Acorn Stealing the Election?’’, http://www.powerlineblog.com/archives/2008/10/ 

021729.php? (Oct. 9, 2008, 14:11 EST). 20Fund, A Smelly Acorn, supra note 21. 21Fund, A Smelly Acorn, supra note 21. 22Fund, A Smelly Acorn, supra note 21. 23 Evan Perez, GOP Renews Complaints Over Voter Registrations, Wall St. J., Oct. 9, 2008, 

available at http://online.wsj.com/article/SB122351568128417691.html. 

ACORN’s history is littered with claims and convictions of 

fraud.11 In this election cycle, many different groups, from journalists to the GOP, strongly criticized the integrity of the organization’s registration methods. As early as September, state officials 

reported fraudulent voter registrations submitted by ACORN, and 

as of October 6th, the New York Times reported that about 400,000 

ACORN filings had been rejected by authorities as duplicates, incomplete, or fraudulent.12 After comparing their voter registration 

rolls, Georgia, Florida, and Ohio found 112,000 duplicate voters 

registered in two states, and authorities have rejected ACORN applications attempting to register such ‘‘voters’’ as Mickey Mouse 

and the Dallas Cowboys’ offensive line.13

In Connecticut, a Republican registrar complained to state officials that ACORN systematically filed ineligible registrations, including one for a 7-year-old resident.14

Indiana’s election officials refused to accept 5,000 ACORN applications after each of the first 2,100 were found to be fraudulent.15

And in Michigan, clerks reported ‘‘a sizeable number of duplicate 

and fraudulent applications’’ and the Michigan Secretary of State’s 

office said the problem appears to be ‘‘widespread.’’ 16

Kansas City election officials discovered at least 380 fraudulent 

registrations that ACORN submitted 17 and 15,000 applications 

have been questioned.18 St. Louis officials attempted to contact 

5,000 voters that ACORN registered, but it could not reach even 

40 applicants.19

In Las Vegas, the county registrar said that problems cropped up 

almost immediately after ACORN took root there.20 Concerns included voter registration fraud and questionable staff members, 

such as supervisors who are convicted felons and employees convicted of identity theft.21 These problems led to a raid of ACORN’s 

Las Vegas office because of a suspected voter fraud scheme.22

The FBI opened an ‘‘investigation into 1,400 potentially fraudulent voter registrations’’ filed in Albuquerque, New Mexico.23 In the 

state’s urban areas, ACORN and others registered almost 80,000 


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24 Evan Perez, GOP Renews Complaints Over Voter Registrations, Wall St. J., Oct. 9, 2008, 

available at http://online.wsj.com/article/SB122351568128417691.html. 25 Joe the Plumber: Changing this Year’s Race?, http://www.powerlineblog.com/archives/2008/ 

10/021794.php? (Oct. 16, 2008, 20:18 EST). 26 Joe the Plumber: Changing this Year’s Race?, http://www.powerlineblog.com/archives/2008/ 

10/021794.php? (Oct. 16, 2008, 20:18 EST). 27 Evan Perez, GOP Renews Complaints Over Voter Registrations, Wall St. J., Oct. 9, 2008, 

available at http://online.wsj.com/article/SB122351568128417691.html. 28 Amy Merric, Court Ruling Stokes Voter-Fraud Fight, Wall St. J., Oct. 18, 2008, available 

at http://online.wsj.com/article.SB122428556700546435.html. 29 Jess Bravin, Supreme Court is United in Siding with Ohio Election Official, Wall St. J., Oct. 

17, 2008, available at http://online.wsj.com/article.SB122425922129244747.html. 30 Acorn’s Criminal Enterprise, Continued, http://www.powerlineblog.com/archives/2008/10/ 

021736.php? (Oct. 10, 2008, 9:05 EST). 31 Acorn’s Criminal Enterprise, Continued, http://www.powerlineblog.com/archives/2008/10/ 

021736.php? (Oct. 10, 2008, 9:05 EST). 32 Acorn Does Philadelphia, http://www.powerlineblog.com/archives/2008/10/021783.php? (Oct. 

15, 2008, 9:56 EST). 33 Acorn Does Philadelphia, http://www.powerlineblog.com/archives/2008/10/021783.php? (Oct. 

15, 2008, 9:56 EST). 34Obama Campaign Taking No Chances, http://www.powerlineblog.com/archives/2008/10/ 

021723.php? (Oct. 8, 2008, 17:48 EST). 35Obama Campaign Taking No Chances, http://www.powerlineblog.com/archives/2008/10/ 

021723.php? (Oct. 8, 2008, 17:48 EST). 36 Evan Perez, GOP Renews Complaints Over Voter Registrations, Wall St. J., Oct. 9, 2008, 

available at http://online.wsj.com/article/SB122351568128417691.html. 

voters.24 Some of those were illegal applications that actually resulted in illegal votes according to New Mexico politicians.25 A 

search of public records verified that illegal votes, made possible by 

fraudulent ACORN registrations, were cast during the Democrat’s 

primary.26 ACORN admits to firing 80 New Mexico employees 

since December 2007.27

In Ohio, Republicans sought verification of thousands of voter 

registrations after ACORN admitted that it could not verify that its 

applications were not fraudulent.28 When the Secretary of State refused to verify the registrations, the challenge went up to the Supreme Court which denied Republicans’ claim by holding that the 

Federal Vote Act did not include a private right to sue for enforcement of voter registration verification.29 One man stated that he 

was paid $1 or given a cigarette each time he filled out an application to vote even though he told workers he was already registered.30 At the end of 18 months, he had registered 72 times.31

Philadelphia election officials turned at least 1,500 ACORN applications over to the U.S. Attorney and found 6,500 more that 

were suspect.32 The Deputy Commissioner complained that 

ACORN hires ‘‘people desperate for money . . . who only get paid 

if they get signatures.’’ 33

In Wisconsin, a convicted felon illegally registered to vote and illegally registered others as an employee of ACORN.34 This employee was one of 49 under ‘‘suspicion of election fraud.’’ 35 In Virginia, a voter registration group fired three employees who falsified 

almost 100 forms.36

In light of this recent history, the Majority’s insistence that no 

vote fraud occurs in this country that is ever worthy of investigation is simply bizarre. 

CONCLUSION

The firing of 9 U.S. attorneys earlier in this Administration is a 

dead horse that has already been beaten too many times to count. 

The Majority’s factually inaccurate, tendentious, and misleading report on this matter, though unworthy of the committee, is in some 


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61 

ways a fitting coda to the politicized witch hunts that have constituted the 110th Congress’s investigation of this matter. 

JON KYL. 

JEFF SESSIONS. 

SAM BROWNBACK. 

TOM A. COBURN. 

Æ 


jbell on PROD1PC69 with REPORTS