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ENSURING EXECUTIVE BRANCH ACCOUNTABILITY

HEARING

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MARCH 29, 2007

Serial No. 110–12

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW

LINDA T. SA ́ NCHEZ, California, Chairwoman 

JOHN CONYERS, JR., Michigan 

HANK JOHNSON, Georgia 

ZOE LOFGREN, California 

WILLIAM D. DELAHUNT, Massachusetts 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

CHRIS CANNON, Utah 

JIM JORDAN, Ohio 

RIC KELLER, Florida 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona

MICHONE JOHNSON, Chief Counsel 

DANIEL FLORES, Minority Counsel 

(III)

C O N T E N T S 

MARCH 29, 2007

OPENING STATEMENT 

Page 

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Chairwoman, Subcommittee on Commercial and 

Administrative Law ............................................................................................. 1

The Honorable Chris Cannon, a Representative in Congress from the State 

of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................................................................... 3

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on Commercial and Administrative Law .................................. 19

WITNESSES 

Mr. John D. Podesta, former White House Chief of Staff to President Clinton, 

President and CEO, Center for American Progress 

Oral Testimony ..................................................................................................... 26

Prepared Statement ............................................................................................. 28

Ms. Beth Nolan, former White House Counsel to President Clinton, Partner, 

Crowell & Moring 

Oral Testimony ..................................................................................................... 31

Prepared Statement ............................................................................................. 34

Mr. Noel J. Francisco, former Associate Counsel to President George W. 

Bush, Partner, Jones Day 

Oral Testimony ..................................................................................................... 41

Prepared Statement ............................................................................................. 42

Mr. Frederick A.O. Schwarz, Jr., Senior Counsel, Brennan Center for Justice, 

NYU School of Law 

Oral Testimony ..................................................................................................... 45

Prepared Statement ............................................................................................. 48

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Chris Cannon, a Representative in 

Congress from the State of Utah, and Ranking Member, Subcommittee 

on Commercial and Administrative Law ........................................................... 4

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Member, Subcommittee on Commercial and Administrative Law, and Chairman, Committee on the Judiciary ......................................................................................................................... 25

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from John Podesta, former White House 

Chief of Staff to President Clinton, President and CEO, Center for American Progress ........................................................................................................ 107

Response to Post Hearing Questions from Noel J. Francisco, former Associate 

Counsel to President George W. Bush, Partner, Jones Day ............................. 108

Response to Post-Hearing Questions from Frederick A.O. Schwarz, Jr., Senior 

Counsel, Brennan Center for Justice, NYU School of Law .............................. 109

Page

IV

Letter from Fred F. Fielding, Counsel to the President, to the Chairman 

Leahy, Chairman Conyers, Ranking Member Specter, Ranking Member 

Smith, and Congresswoman Sa ́nchez ................................................................. 117

Congressional Research Service Memorandum on Oversight and Executive 

Privilege Issues Pertaining to the March 29, 2007 Hearing on ‘‘Ensuring 

Executive Branch Accountability’’ ...................................................................... 120

Prepared Statement of Bruce Fein, on behalf of the American Freedom Agenda ........................................................................................................................... 129

(1)

ENSURING EXECUTIVE BRANCH 

ACCOUNTABILITY 

THURSDAY, MARCH 29, 2007

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 1:30 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

Present: Representatives Sa ́nchez, Conyers, Johnson, Delahunt, 

Cannon, and Jordan. 

Ms. SA ́ NCHEZ. The hearing of the Committee on the Judiciary’s 

Subcommittee on Commercial and Administrative Law will come to 

order. 

And I will recognize myself for a short statement. 

Since President George W. Bush came into office in 2001, the executive branch has been vocally resistant to transparency and accountability in its own Government practices. 

Under this Administration’s broad view of executive power, the 

executive branch has consistently rebuffed Congress’s legitimate 

right to the information it needs to perform its article I legislative 

and oversight functions. In fact, this Administration seems to regard any attempt at oversight as an assault on the Constitution. 

In instances such as Vice President Cheney’s energy task force, 

the FBI’s abuse of national security letters, and the botched Federal response to Hurricane Katrina, this Administration has failed 

to share necessary information that would ensure executive branch 

accountability. 

The latest example of this Administration’s unwillingness to be 

forthright with the Congress and the American public is the growing controversy over the firing of the U.S. attorneys. 

On March 6, 2007, this Subcommittee held a hearing entitled, 

‘‘H.R. 580, Restoring Checks and Balances in the Confirmation 

Process of United States Attorneys.’’ The testimony heard at that 

hearing raised numerous and serious questions concerning a potential partisan scheme to purge Federal prosecutors. 

As a result of that hearing, the Judiciary Committee is engaged 

in a formal investigation of the matter. 

Evidence of shifting explanations for U.S. attorneys’ dismissals, 

close coordination between the White House and Justice Department on the firings, and a White House plan to dismiss all 93 U.S. 

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attorneys has guided our investigation to Administration officials 

directly linked to the purge scheme. 

Despite requests for voluntary information and testimony on the 

record from these officials, the White House has offered informal, 

private meetings without transcripts or oaths. Additionally, the 

White House has refused to produce information on internal White 

House communications involving this matter. 

To date, the White House has ignored efforts to negotiate these 

conditions, and the President, using the blanket claim of executive 

privilege, has publicly stated that he is willing to go to the mat to 

prevent the information Congress is seeking from becoming public. 

While I recognize the need for Presidents to receive candid and 

frank advice from aides, the courts have found that the presidential 

communications privilege is not absolute. In the seminal Supreme 

Court case of U.S. v. Nixon, the court held that the interest in the 

confidentiality of presidential communications was not sufficient to 

resist disclosure because of the strong public need for the information. 

Based on the possibility that a crime of obstruction of justice or 

misleading Congress in the U.S. attorneys case may have taken 

place, executive privilege must give way to Congress’s legitimate 

oversight responsibilities and the public need for information. 

In fact, news reports that Karl Rove does 95 percent of his emailing from his Republican National Committee account indicates 

that these e-mails are not intended in his function as an advisor 

to the President and suggest that the claim of executive privilege 

may not even apply to Mr. Rove’s e-mails. 

The restrictive conditions offered by the White House are also 

based on President Bush’s unfounded concerns about precedents 

that might be set if he allows his aides to testify. By contrast, there 

is ample precedent that presidential advisors of both political parties have testified before Committees and Subcommittees of Congress. 

According to a report by the nonpartisan Congressional Research 

Service, presidential advisors have testified before Congress at 

least 74 times since 1944. Specifically, presidential advisors, ranging from Franklin Delano Roosevelt’s assistant to several of Richard Nixon’s advisors, have testified in public hearings before congressional Committees. Even a sitting President, President Gerald 

Ford, testified before the House Judiciary Committee about his rationale for pardoning President Richard Nixon. 

More recently, White House advisors in the Clinton administration, two of whom we are pleased to have here today, frequently 

testified before Congress. And in contrast with his current viewpoint, President George W. Bush has allowed close advisors, such 

as Tom Ridge, then Assistant to the President for Homeland Security, and Condoleezza Rice, then Assistant to the President for National Security Affairs, to testify. 

Given the substantial history of White House officials testifying 

before Congress and the questionable applicability of executive 

privilege in the U.S. attorney case, it is my hope that the Committee on the Judiciary and the White House can quickly come to 

an agreement and allow us to proceed with our investigation. 

3

To help us further explore these issues, we have a truly notable 

witness panel. We are pleased to have John Podesta, former White 

House chief of staff to President Bill Clinton; Beth Nolan, former 

White House counsel to President Bill Clinton; Noel Francisco, 

former associate White House counsel to President George W. 

Bush; and Frederick A. O. Schwarz, Jr., senior counsel at the Brennan Center for Justice. 

Accordingly, I very much look forward to hearing the testimony 

from these witnesses. 

And I would now like to recognize my colleague and Ranking 

Member, Mr. Cannon, for his opening remarks. 

Mr. CANNON. Thank you, Madam Chair. 

I think I will ask unanimous consent to submit my written statement for the record. 

Ms. SA ́ NCHEZ. So ordered. 

Mr. CANNON. Thank you. 

And I would just like to say—this is nothing new here. I look forward to information from the panel. I am actually quite honored 

that the people have come here today, who I think are sterling 

scholars and thoughtful people. And I expect that we will get some 

insight. 

This hearing, of course, is not going to be all that significant, in 

the legal context. It is more, I view it, as a matter of informing us 

of what the parameters are. And we have people who were called 

by the majority and who served in Democratic Administrations; 

they are people who command a great respect and whose intellect 

I have actually experienced in the past, and look forward to hearing their insights here. 

So thank you all for coming today. We appreciate it. I am personally honored by the fact that you would come down here to work 

with us on this issue. 

This is the beginning of an issue—I would take slight exception 

to what the Chair has said about what is going on currently with 

the Attorney General and these U.S. attorneys. But that is actually 

not very important in the context of the information that you will 

help us to understand as we look forward to what we are going to 

do if we have a battle over getting information. 

And just let me point out that whether you worked for the Clinton administration or the Bush administration, I am in Congress, 

and we up here on the dais are in Congress, and the staff behind 

us are careful of the prerogatives of Congress, and we actually care 

what the parameters are. So it is not so much a partisan issue as 

how we govern ourselves here in America. 

So, thank you. I appreciate the opportunity to hear from you. 

And, Madam Chair, I yield back. 

[The prepared statement of Mr. Cannon follows:]

4

PREPARED STATEMENT OF THE HONORABLE CHRIS CANNON, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF UTAH, AND RANKING MEMBER, SUBCOMMITTEE ON

COMMERCIAL AND ADMINISTRATIVE LAW


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Ms. SA ́ NCHEZ. Thank you, Mr. Cannon. 

I would now like to recognize Mr. Conyers, the Chairman of the 

Committee on the Judiciary, for an opening statement. 

Mr. CONYERS. Madam Chair and distinguished witnesses, I ask 

unanimous consent to put my statement into the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

Mr. CONYERS. And all I want to remind us of is that this is indeed a very important hearing. This is not light. These witnesses 

are all experienced. 

And were the Judiciary Committee to accept Mr. Fred Fielding’s 

offer for off-the-record interviews without transcripts, maybe, as I 

have suggested, at a pub, that we would be accepting a process 

doomed to failure. 

The mass firing of these U.S. attorneys has been shrouded in 

confusion and contradiction from the beginning. But in the last 

week, we learned that the Attorney General may have misled us 

about his role in the firings. A high-ranking Department of Justice 

official has asserted her constitutional right to use the fifth amendment. The Department of Justice has acknowledged that they misled us about Karl Rove’s role in the firings. 

So, in this context, does anyone not think that a transcript might 

be more than a little useful in helping us get to the truth? 

We want to achieve a compromise with the White House on the 

U.S. attorney matter. I have written them two letters, which I ask 

be put into the record——

Ms. SA ́ NCHEZ. Without objection, they will be. 

[The letters follow:]

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Mr. CONYERS [continuing]. Offering to meet and discuss their 

concerns. And so far, we wait patiently, and even sometimes less 

patiently, for a response. 

I hope that over the recess cooler heads will prevail and we can 

develop a process to allow us to get to the truth. 

And so, the witnesses today are important in discussing executive branch accountability. And I congratulate the Chairwoman of 

this Committee on holding this hearing. 

[The prepared statement of Mr. Conyers follows:]

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, MEMBER, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY

Today we consider whether the White House is subject to legitimate congressional 

oversight, particularly where evidence of misconduct if not worse exists. 

For more than 200 years, most of us had understood that congressional oversight 

was the very bed rock of our system of checks and balances. Unfortunately, last 

week, this Committee received an unprecedented ‘‘take it or leave it’’ offer from the 

White House, denying us access to relevant documents as well as on the record 

interviews with witnesses. The question before us today is whether such actions are 

consistent with law, precedent or any reasonable notion of checks and balances. 

I can find nothing in the text or spirit of the Constitution which would allow an 

across the broad assertion of executive privilege. To the extent courts have recognized privilege, it has generally been when advice was given directly to the President, and it has been limited to specific communications only, not broad categories 

of information as asserted by this White House. What is puzzling to me is how such 

a privilege can even exist where the President himself has essentially denied any 

substantive knowledge of the firings. If this is the case, there would be very little 

privileged advice to the President that warrants protection. 

It also seems odd to be asserting privilege for communications that emanated not 

within the White House but from the Republican National Committee (RNC). I have 

a hard time believing the Constitution was intended to protect these emails, especially when there are indications they may have been sent from the RNC in order 

to circumvent the usual procedures for saving and storing emails. 

We have an entire host of precedents indicating that congressional committees are 

entitled to call White House witnesses to interviews and hearings and to receive 

White House documents. Several of the witnesses testifying before us today have all 

been hauled before congressional panels and have turned over thousands of pages 

of White House communications. The Bush Administration allowed White House 

staff to testify before the House Oversight Committee two weeks ago. And some of 

us remember when President Ford himself testified before this Committee concerning the pardoning of President Nixon. 

If this Committee were to accept Mr. Fielding’s offer of off the record interviews 

without transcripts, we would be accepting a process doomed to failure. The mass 

firing of U.S. Attorneys has been shrouded in confusion, contradiction and outright 

falsehoods from the very beginning. Within the last week alone we learned that the 

Attorney General may have misled us about his role in the firings; a high ranking 

Department of Justice official was forced to assert her Fifth Amendment rights; and 

the Department acknowledged they misled us about Karl Rove’s role in the firings. 

In this context, does anyone not think that a transcript might be a little useful in 

helping us get to the truth? 

As I have stated repeatedly, I hope we can achieve a reasonable compromise with 

the White House on the U.S. Attorney matter. I have written them two letters, offering to meet and discuss their concerns. So far, both letters have been ignored. 

I hope that over the recess cooler heads will prevail, and we can develop a process 

to allow us to get to the truth. We hope to hear from today’s witnesses about the 

importance of Executive Branch accountability, including the need for the White 

House to provide requested information.

Ms. SA ́ NCHEZ. I thank the gentleman for his statement. 

And, without objection, other Members’ opening statements will 

be included in the record. 

26

Without objection, the Chair will be authorized to declare a recess of the hearing. I understand that we have votes expected 

shortly. 

I have wonderful, glowing introductions for each of you, but I am 

going to dispense with those because we are very interested in getting to your testimony. And I appreciate all your willingness and 

your patience with the hearing today. 

Without objection, your full statements will be placed into the 

record, so we are going to ask that you limit your oral statements 

to 5 minutes. 

You will note that we have a lighting system—I am sure most 

of you are familiar—that starts with a green light. At 4 minutes, 

it turns yellow. And then right at 5 minutes, we would ask that 

when you see that red light you try to wrap up your testimony. 

After each witness has presented his or her testimony, Subcommittee Members will be permitted to ask questions subject to 

the 5-minute limit. 

Mr. Podesta, we would like to jump in and have you proceed with 

your testimony. 

TESTIMONY OF JOHN D. PODESTA, FORMER WHITE HOUSE 

CHIEF OF STAFF TO PRESIDENT CLINTON, PRESIDENT AND 

CEO, CENTER FOR AMERICAN PROGRESS 

Mr. PODESTA. Thank you, Madam Chair and Chairman Conyers. 

Thank you, both of you, for the invitation. 

And, Mr. Cannon, thank you for your kind remarks. 

Mr. Delahunt tried to give us a little extra time here, and I appreciate that, but I am glad we didn’t set any precedent about not 

having a transcript of the hearing. 

So, as I noted in my prepared comments, I have a somewhat unusual perspective, having served as both a senior White House official and a senior congressional aide. I spent almost 10 years, most 

of that time on the Senate Judiciary Committee. So I have a 

healthy appreciation for the responsibility of each branch to defend 

its own constitutional prerogatives. 

I have to say, it is a pleasure to be here as a private citizen. Mr. 

Johnson, it was always worse to be here as a Government employee 

with my own private counsel and being on the receiving end of 

those billable hours. 

So I appreciate the opportunity to talk to you. 

The text of the Constitution, of course, says nothing about the 

right of Congress to demand information from the executive branch 

or the right of the executive to withhold it. Yet the Supreme Court 

has long recognized the power to investigate and the attendant 

power to use compulsory process. And they are inherent in the legislative function vested in Congress by article I of the Constitution. 

So our system of checks and balances requires that Congress 

have the ability to obtain information it needs to make the laws 

and to oversee and investigate the activities of the executive 

branch. It also requires that the President have the ability to resist 

demands for disclosures of information that could threaten important national security interests, particularly disclosures that would 

harm the national security or foreign relations of the United 

States, but also including those that would jeopardize ongoing 

27

criminal investigations or interfere with the ability to obtain frank 

and candid advice. 

President Clinton, from time to time, invoked the privilege when 

he felt it was necessary to protect presidential communications and 

deliberations from overly broad and intrusive requests for information. But he also understood that the privilege was not unqualified, 

that the public interests protected by the claim of privilege must 

be weighed against those that would be served by the disclosure. 

I think he appreciated that even where the privilege applies, it 

is not absolute. It can be overcome by a strong showing that the 

information request is focused, that there are not other practical 

means of obtaining the information, and that the information is 

genuinely needed by the Committee and is demonstrably critical to 

the responsible fulfillment of the Committee’s functions. 

I think, since this President Bush and particularly since Vice 

President Cheney came into office, I think one of their exercises 

has been to increase the power of the executive, to some extent, at 

the expense of both other branches of Government. 

And I would note that because I think it is ironic, in that the 

greater the power the White House accumulates, the greater I 

think is the need for congressional access to White House documents and personnel. 

Such scrutiny I think is especially needed to investigate allegations of misconduct by the White House officials. Unlike executive 

branch agencies, there is no I.G. in the White House. The White 

House is not subject to the Freedom of Information Act. Only Congress can provide appropriate oversight and accountability. 

In my prepared statement, I noted numerous examples of presidential advisors who have testified in front of congressional Committees. They have included White House chiefs of staff, national 

security advisors, White House counsels, amongst others. I added 

a few, for those keeping accurate count, who have read the CRS report on this. 

I, in my own time, testified four times under oath before congressional Committees. I did so with the support of the President, who 

authorized my testimony. I made no claim of executive privilege. 

On each of those occasions, I raised my right hand, I swore to tell 

the whole truth and nothing but the truth. And I am proud that 

I did it, and I am proud that the President gave me the opportunity 

to do so. 

I detail some other experience that I had in that regard, as well. 

I would just make two points, because I know my time is short. 

One I think is that this inquiry that you are currently involved 

in is, I think, particularly important. At the heart of congressional 

oversight and investigations, I think in the history of investigations, have been ones that ensured the fair administration of justice. And I think that that is what this inquiry is all about. 

And I would just, if I could, reflect for a moment on the question 

of U.S. attorneys and the importance of this hearing. 

It has been said that U.S. attorneys serve at the pleasure of the 

President. And, of course, that is true. But the fact that the President has the power to remove a U.S. attorney doesn’t make it proper for him to do so. It depends, really, on the reason. 

28

1 E.g. McGrain v. Daugherty 273 US 135 (1927); Sinclair v. United States 279 U.S. 263 (1929); 

Watkins v. United States 354 U.S. 178 (1957) 2See Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 

(D.C.Cir. 1974). 

I put forward some different reasons, from poor performance to 

strong policy disputes. I think some of those are quite legitimate. 

But I think one reason that is not legitimate is if the removal 

occurred to try to influence the conduct of an ongoing case or if the 

White House was viewing this as the U.S. attorney not pursuing 

the case with great enough vigor. I think that is where you cross 

the line. 

I don’t know that those are the circumstances, but I think this 

is a legitimate inquiry to determine whether that is, in fact, what 

is at the bottom of these firings or at least some of these firings 

in this matter. 

Thank you. 

[The prepared statement of Mr. Podesta follows:]

PREPARED STATEMENT OF JOHN D. PODESTA

Thank you, Madame Chair, and members of the subcommittee. I am John Podesta, President and Chief Executive Officer of the Center for American Progress. I 

am also a Visiting Professor of Law at the Georgetown University Law Center, 

where I teach a course on Congressional Investigations. 

I served as Chief of Staff to President Bill Clinton from 1998 to 2001. I previously 

served in other roles in the White House, including Assistant to the President and 

Staff Secretary from 1993–1995, and Deputy Chief of Staff from 1997–1998. 

Having appeared before congressional committees a number of times as a senior 

White House aide, let me say what a pleasure it is to be testifying today as a private citizen—albeit one with a deep respect for and intimate knowledge of the institution of the presidency and the important role that institution, regardless of occupant, plays in the leadership of our country and the world. 

I also have some experience in back of the dais, Madame Chair, having served 

as Counselor to former Senate Democratic Leader Tom Daschle, Chief Counsel for 

the Senate Agriculture Committee, and Chief Minority Counsel for the Senate Judiciary Subcommittees on Patents, Copyrights, and Trademarks; Security and Terrorism; and Regulatory Reform. 

My service in both Congress and the White House gave me a healthy appreciation 

for the responsibility of each branch to defend its constitutional prerogatives. 

The text of the Constitution says nothing about the right of Congress to demand 

information from the executive branch—or the right of the executive to withhold it. 

Yet the Supreme Court has long recognized that the power to investigate and the 

attendant use of compulsory process are inherent in the legislative function vested 

in the Congress by Article I of the Constitution.1

Our system of checks and balances requires that Congress have the ability to obtain the information it needs to make the laws and to oversee and investigate the 

activities of the executive branch. And it also requires that the president have the 

ability to resist demands for disclosures of information that could threaten important national interests, particularly disclosures that would harm the national security or foreign relations of the United States, and including those that would jeopardize ongoing criminal investigations or interfere with his ability to obtain frank 

and candid advice. 

President Clinton from time to time invoked the privilege when he felt it was necessary to protect presidential communications and deliberations from overly broad 

and intrusive requests for information. 

But he also understood that the privilege is not unqualified: that the public interests protected by the claim of privilege must be weighed against those that would 

be served by the disclosure. He appreciated that even where the privilege applies, 

it is not absolute. It can be overcome by a strong showing that the information request is focused, that there are not other practical means of obtaining the information, and that the information is genuinely needed by the Committee and is ‘‘demonstrably critical to the responsible fulfillment of the Committee’s functions.’’ 2

29

3 Richard Nixon, Remarks Announcing Procedures and Developments in Connection with the 

Watergate Investigations (Apr 17, 1973), in Public Papers of the Presidetns of the United States: 

Richard Nixon, 1973, at 299, quoted in Louis Fisher, Congressional Access to Information: Using 

Legislative Will and Leverage, 52 Duke L.J. 323 at 394–95 (2002). 4 Harold C. Relyea and Jay R. Shampansky, Presidential Advisers’ Testimony Before Congressional Committees: An Overview, CRS Report for Congress (April 14, 2004). 

Some in the present administration appear to believe that presidential advisers 

are immune from giving testimony on the theory that Congress does not have jurisdiction to oversee the Office of the President. 

No president in our country’s history has attempted to make such an extraordinary claim and no precedent provides a legal justification to support that perspective. But I was not surprised by this justification for the White House’s refusal to 

cooperate in the Judiciary Committee’s legitimate inquiries into the recent sacking 

of the U.S. Attorneys. It is part and parcel of the larger campaign that has occupied 

the Bush administration from the moment the president took office: to increase the 

power of the executive at the expense of the other branches of government. 

The irony is that the greater the power that the White House accumulates, the 

greater is the need for congressional access to White House documents and personnel. Such scrutiny is especially needed to investigate allegations of misconduct 

by White House officials. Unlike executive branch agencies, the White House has 

no inspector general to investigate abuses and it is not subject to the Freedom of 

Information Act. Only Congress can provide appropriate oversight and accountability. 

When the president unreasonably refuses to cooperate with its inquiries, Congress 

can prevail only if it musters the political will to do so. 

In 1973, President Nixon attempted to block congressional testimony by members 

of the White House staff. He claimed, ‘‘Under the doctrine of separation of powers, 

the manner in which the president personally exercises his assigned powers is not 

subject to questioning by another branch of government. If the president is not subject to such questioning, it is equally appropriate that members of his staff not be 

so questioned, for their roles are in effect an extension of the presidency.’’ 3

Yet within months, Congress had summoned a parade of witnesses from the 

Nixon White House to testify in connection with the Watergate affair. 

Post-Watergate presidents were more cooperative. President Ford agreed to testify 

in person on the circumstances leading to his decision to pardon President Nixon. 

In 1980, President Carter instructed all members of the White House staff to cooperate fully with the Senate Judiciary Committee in its investigation of Billy 

Carter’s connections with the Libyan government. 

In 1987, President Ronald Reagan waived executive privilege for his entire staff 

during the Iran-Contra affair. 

In 1994, I was one of numerous Clinton administration officials called to testify 

before congressional panels investigating the failed Madison Guaranty Savings and 

Loan and the White Water Development Corporation. 

All in all, the Congressional Research Service reports that presidential advisers 

have testified before congressional committees at least 73 times since 1944—including individuals occupying the most senior positions in the White House from Chiefs 

of Staff to National Security Advisors to White House Counsels.4

For those interested in keeping an accurate count, I can add several more instances not covered by the CRS review. 

In 1995, I testified before the Government Reform and Oversight Committee, during Chairman Clinger’s tenure, concerning an internal White House review I had 

conducted concerning the firing of employees working in the White House travel office. 

In 2001, I, together with Ms. Nolan and our colleague Bruce Lindsey testified before the Government Reform and Oversight Committee, chaired by Congressman 

Burton concerning pardons granted by President Clinton. 

While I was no longer a White House employee at the time of those two appearances, the testimony I gave solely concerned actions, duties and advice I gave to the 

president while a senior White House employee and would clearly have been subject 

to claims of executive privilege. 

On each of these occasions, I did so with the support of the president, who had 

authorized my testimony and made no claim of executive privilege. And on each of 

these occasions, I came into a public hearing room, in front of television cameras, 

with a full transcript being kept; I raised my right hand, I swore to tell the truth, 

the whole truth and nothing but the truth and I am proud of the fact that I did 

so and proud of the president for giving me the opportunity to do so. 

30

5 Robert Jackson, The Federal Prosecutor, Address Delivered at the Second Annual Conference 

of the United States Attorneys (April 1, 1940). 

Again, for the record, I also gave depositions, under oath, to committee counsel 

in both the House and the Senate. And in 1993, I appeared informally before separate partisan caucuses of this committee and took questions for several hours with 

respect to the travel office matter I previously mentioned. 

Given that experience, I would like to comment on the current investigation of 

the circumstances surrounding the firing of the U.S. Attorneys. 

At stake is a question of whether there was interference in the administration of 

justice for political ends. The history of Congressional oversight and investigations 

is replete with instances of Congressional Committees exercising their jurisdiction 

to ensure the fair administration of justice. 

From Teapot Dome, to the ITT investigation, to Watergate, to Waco, Congress has 

a long history of investigating allegations of interference by the White House with 

the Department of Justice and other law enforcement agencies. 

Indeed, the heart of the Whitewater investigation concerned whether the White 

House had improper contacts with the Treasury Department on whether or not to 

refer the Madison Guaranty case to the Justice Department for enforcement action. 

While one can question the excess of spending more than $60 million in a series 

of investigations that two independent counsels concluded involved no criminal activity and outside reviews concluded involved no ethical transgressions, no one questioned the right of the Congressional Committees to pursue their investigations or 

the need for the White House to cooperate. 

Simply put, issues surrounding the administration of justice are paramount and 

constitute the heart of a legitimate legislative inquiry. 

That is why we are here today. 

This committee, and its Senate counterpart, have clear jurisdiction over the matter under investigation and a legitimate need to hear from key White House officials—on the record and under oath. No other means exists to ascertain what communication occurred inside the White House among White House aides and between 

White House Officials and Department of Justice officials concerning the true motivations for the firings. 

It has been said many times in the course of this affair that U.S. Attorneys ‘‘serve 

at the pleasure of the president.’’ As a matter of law, this is a non-debatable proposition. Once confirmed, they can be removed for any reason, or for no reason at all. 

But that cannot be the end of the story. The fact that the president has the power 

to remove them doesn’t make it proper for him to do so. Depending on the reason 

for his actions, it may be highly improper and even illegal. 

Many different reasons have been suggested for these dismissals. Indeed, the Attorney General has offered quite a few different explanations himself. Obviously 

until your inquiry has been completed we will not know the truth of the matter. 

But we can try to separate out the legitimate reasons from illegitimate ones. 

The first reason is ‘‘poor performance.’’ This was the reason originally given by 

the Department, and it is a perfectly appropriate reason to fire somebody. Unfortunately, it appears that was not the reason in any but perhaps one of these cases. 

The second reason is to give the job to somebody else. It has been established that 

this was the reason for at least one dismissal, and perhaps others. For those who 

value loyalty and experience, this is not an attractive reason, and it certainly is a 

departure from long established practice. But it is not improper unless the replacement is unqualified to serve. 

The third reason is that the U.S. Attorney has policy differences with Main Justice. There are indications that this may have been the reason for one or more of 

the dismissals. If so, it does not seem an improper reason to me. It is the prerogative of the president to set policy, and it is reasonable for him to expect that his 

appointees will carry it out. 

The final reason is that the president and his allies in Congress were unhappy 

with the particular prosecutions a U.S. Attorney was bringing—or failing to bring. 

This is the crux of the matter. If the president fires a U.S. Attorney to obstruct or 

interfere with a pending prosecution or to influence the course of a prospective prosecution, he has crossed the line. Such interference is not only improper but depending on the circumstances may be illegal as well. 

In other words, while it is true that U.S. attorneys are ‘‘political appointees,’’ they 

are not ordinary political appointees. They wield extraordinary power in this country—the power to protect our families and communities from harm, and the power 

to destroy innocent lives and reputations. Attorney General Robert Jackson said in 

1940, ‘‘The prosecutor has more control over life, liberty, and reputation than any 

other person in America. His discretion is tremendous.’’ 5

31

Once they take their oath of office, the 93 U.S. Attorneys are the personification 

of the system of justice in this country. If that system is to command popular respect, they must be beyond reproach. That is why it is essential that they be seasoned professionals and not just political hacks who do the bidding of the president 

who appointed them in the prosecution of justice. And that is why it is essential 

that the Congress get to the bottom of why these U.S. Attorneys were fired. 

Unfortunately, the inability or unwillingness of the White House to give the Congress and the American people a straight and complete answer on this matter 

means that we do not know exactly why the eight U.S. Attorneys were fired (and 

I would add one more, the firing of Frederick Black, the former interim U.S. Attorney for Guam and the Commonwealth of the Northern Mariana Islands). 

This is the concern which makes it imperative that this committee get the facts 

so it can determine precisely what happened in these cases. 

Let me sum up. As a former senior White House advisor, I believe deeply in the 

independence of the executive branch and the need for presidents to receive candid, 

unvarnished advice from their advisors. These are important constitutional considerations that should be thoroughly weighed and seriously guarded. Yet they must 

also be balanced against the legitimate needs of Congress to oversee and, where necessary, investigate the actions of the White House. Congress should be cautious in 

its assertions a need for the testimony of presidential advisors, limiting such assertion to circumstances in which disclosure would clearly serve the national interest. 

This seems to me to be clearly one of those times. 

This is not just a case about shifting explanations of underlying conduct that was 

legitimate; it is a case where the legitimacy of the conduct itself is seriously in 

doubt, and where the inconsistency of the explanations and the invocation of the 5th 

Amendment privilege by a senior Justice Department aide have deepened that 

doubt. Nor is this merely a political fishing expedition. There is more than enough 

evidence here to raise profound concerns—the smoke is rising and it needs to be investigated. 

The underlying issue at stake—whether the executive branch illegitimately ordered the removal of independent U.S. attorneys to advance outside interests or partisan political needs—is a serious matter related to a core element of our constitutional system—the administration of justice. 

Cooperation and honesty by the White House could allay many doubts and start 

to restore some credibility for the executive branch. As I have previously noted, from 

Presidents Clinton, Reagan, Carter, and Ford, going all the way back to President 

Washington presidents have permitted senior aides to testify in Congressional investigations. It is time for President Bush to show some of the same kind of healthy 

flexibility. 

If the White House will not adhere to these standards, then the Congress should 

intervene to ensure that justice is being served by in a fair and impartial manner. 

The American public must be confident that its courts and prosecutors are independent and unbiased in the administration of justice. 

I thank you for inviting me today, and would be happy to answer any and all 

questions you may have.

Ms. SA ́ NCHEZ. Thank you for your testimony, Mr. Podesta. 

Ms. Nolan? 

TESTIMONY OF BETH NOLAN, FORMER WHITE HOUSE COUNSEL TO PRESIDENT CLINTON, PARTNER, CROWELL & 

MORING 

Ms. NOLAN. Thank you, Madam Chair and Mr. Cannon and 

Members of the Subcommittee. I am Beth Nolan, a partner in the 

law firm of Crowell & Moring, and I served as counsel to the President in the Clinton administration. 

Congress has heard numerous assertions that it may not compel 

the testimony of White House officials. Too frequently, these claims 

are made as if there are absolutes in this area. 

We have little case law illuminating the contours of executive 

privilege. But what we do have makes one thing perfectly clear: 

The President’s constitutional authority to assert executive privilege is not absolute but is instead to be balanced against the legitiVerDate 0ct 09 2002 12:10 Jun 28, 2007 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6601 F:\WORK\COMM\032907\34360.000 HJUD1 PsN: 34360
32

mate needs of the coordinate branches of Government in undertaking their constitutionally assigned responsibilities. 

Under this approach, each branch has a constitutional duty to 

consider, respect and accommodate the needs of the other. 

As a general matter, I agree with the proposition that the President’s White House advisors should not be called to testify before 

Congress or even to provide interviews without careful congressional consideration of the needs justifying such a request. To use 

one standard we have heard much-repeated lately, Congress should 

not use White House officials to engage in fishing expeditions. 

But close advisors to the President have indeed been subpoenaed 

by congressional Committees, testified under oath, had their testimony transcribed and made part of the public record, and been 

called back for subsequent testimony. 

I, like Mr. Podesta, personally testified four times before congressional Committees on matters directly related to my White House 

duties: three times while I was serving in the White House and 

once soon after President Clinton left office. My testimony was conducted under oath, with a transcript. 

At least some of those appearances were also made pursuant to 

subpoena, sometimes without even the opportunity offered to appear voluntarily. On those occasions, the President did not assert 

a privilege to preclude my testimony. 

On another occasion, the President, upon recommendation of the 

Attorney General, asserted the privilege in response to a subpoena 

from a congressional Committee seeking my testimony. The Attorney General relied on the longstanding view of the Justice Department that the President and his immediate advisors should be considered immune from compelled congressional testimony, but, appropriately, also considered the balance of executive and legislative 

interests in the particular matter to conclude that my testimony 

was protected from congressional compulsion. 

I subsequently testified before that same Committee with respect 

to the same subject, presidential pardons, after the President 

waived any privileges he might have asserted—different presidential pardons, I should mention. 

This personal history makes clear that historically there have 

been no absolutes in this arena. And there should be none. Despite 

Justice Department precedents that speak in terms of a general 

immunity from testimony, the White House has offered a number 

of advisors for testimony over the years, recognizing that the privilege must give weight to the legitimate needs of Congress in certain investigations or oversight. 

I am still troubled by how often, when I was in the White House, 

we received subpoenas as the first indication of congressional interest and by the great numbers of White House advisors who were 

called to testify—procedures that raise questions about whether 

Congress always sought to accommodate the legitimate interests of 

the executive. 

But those troubling elements don’t seem to be present here. Instead, there has been an exchange between the White House and 

Congress, leading to Mr. Fielding’s offer to provide four White 

House witnesses, only with significant limitations. 

33

This offer might be sufficient in another situation, because it is 

a balance. But here, legitimate and serious questions have been 

raised in at least two areas: whether U.S. attorneys were replaced 

to affect the prosecution or non-prosecution of particular cases; and 

whether full and accurate information has been provided to Congress with respect to this matter. 

Under those circumstances, it seems that Congress has not just 

a right but, indeed, a responsibility to investigate the allegations. 

Because the constitutional interests of Congress are particularized 

and strong in this matter, they deserve to be given great weight 

in the accommodation process. 

In my view, the current offer on the table from the White House, 

if indeed the President is unwilling to consider further compromise, 

deprives Congress of the cooperation from the executive branch to 

which it is entitled. 

[The prepared statement of Ms. Nolan follows:]

34

PREPARED STATEMENT OF BETH NOLAN


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Ms. SA ́ NCHEZ. Thank you, Ms. Nolan. And you came in just at 

the 5-minute mark. I am impressed. [Laughter.] 

Ms. NOLAN. Thanks. 

Ms. SA ́ NCHEZ. Great panel, so far. 

Mr. Francisco, please proceed. 

TESTIMONY OF NOEL J. FRANCISCO, FORMER ASSOCIATE 

COUNSEL TO PRESIDENT GEORGE W. BUSH, PARTNER, 

JONES DAY 

Mr. FRANCISCO. Madam Chairman, Ranking Member, Members 

of the Subcommittee, my name is Noel Francisco. I am a partner 

at the law firm of Jones Day and formerly served as associate counsel to President George W. Bush and Deputy Assistant Attorney 

General in the Office of Legal Counsel. 

Thank you for inviting me to testify today. 

‘‘If there is a principle in our Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers.’’ Those are the words of James Madison. 

Our founding fathers recognized that the division of power 

among three separate branches of Government was essential to the 

preservation of liberty. 

As Alexander Hamilton explained, ‘‘The separation of powers ensures that the two greatest securities the people can have for the 

faithful exercise of any delegated power are the restraints of public 

opinion and the opportunity of discovering with facility and clearness the misconduct of the people they trust.’’

By locating power in separate and distinct branches of Government, the people know who is responsible for its exercise and accountable for its abuse. 

The present inquiry into the President’s decision not to reappoint 

eight United States attorneys threatens a constitutional confrontation that would undermine our constitutional structure and the liberties it protects. In that system of separated powers, it is the 

President’s exclusive prerogative to appoint and remove United 

States attorneys. 

That nondelegable power of the President is not shared with the 

legislative branch. Nor is the confidential advice of the President’s 

closest advisors subject to congressional review. The President has 

a constitutional privilege over those discussions, recognized by the 

Supreme Court as falling within his executive privilege. 

No one would tolerate a demand by the President that a Member 

of this body divulge the confidential advice he or she receives from 

senior staff members in deciding whether or not to vote against a 

bill. By the same token, no one should tolerate a demand that the 

President divulge the confidential advice that he receives. 

The constitutional structure protects the branches from each 

other, but, more importantly, the balance that it creates protects 

the liberty of the people by dispersing and diluting governmental 

power. 

Requiring the President to divulge confidential advice would be 

particularly inappropriate here, in light of the information that the 

President has agreed to provide. Indeed, it is my understanding 

that the only information that the President has not agreed to proVerDate 0ct 09 2002 12:10 Jun 28, 2007 Jkt 000000 PO 00000 Frm 00045 Fmt 6633 Sfmt 6601 F:\WORK\COMM\032907\34360.000 HJUD1 PsN: 34360
42

vide pertains to internal White House communication, including 

the public, sworn testimony of certain senior White House advisors. 

But this testimony is precisely that for which executive privilege 

provides the strongest protection. Unlike members of the Cabinet, 

these senior White House advisors have no operational authority. 

Their sole function is to provide the President with advice in order 

to assist in the execution of his constitutional duties and responsibilities. Demanding the sworn testimony of these senior White 

House advisors is tantamount to demanding the sworn testimony 

of the President himself. 

This is why Presidents of both political parties have consistently 

maintained that executive privilege is at its strongest with respect 

to these senior advisors. As the late Chief Justice Rehnquist once 

explained, ‘‘Such individuals should not be required to appear before Congress at all.’’

Here, the question of executive privilege is a narrow one: Does 

Congress’s power to conduct oversight entitle it to demand that the 

President divulge the advice of his closest advisors on a quintessential and nondelegable presidential power? With all due respect, I 

believe that that question answers itself. 

At a minimum, however, Congress would have to examine the extensive information that it does have, specifically identify the need 

for the information that it seeks, and establish that the incremental information is, in the words of the D.C. Circuit, ‘‘demonstrably critical to the fulfillment of its function.’’

At this early stage in the proceedings, however, I do not believe 

that Congress could possibly overcome the privilege that presumptively attaches to these core, internal White House communications. 

In the end, however, it is doubtful whether such a confrontation 

between Congress and the President will be in either’s interest. 

Historically, the President has not exerted executive privilege over 

the whole range of privileged information, but instead——

Ms. SA ́ NCHEZ. Mr. Francisco? Your time is running short. If you 

could just summarize and conclude. 

Mr. FRANCISCO. I will, Madam Chairman. 

Instead, the President and the Congress generally seek to seek 

an accommodation, as some of our other witnesses have explained. 

I think that the President has attempted to do that here by putting on the table what I view to be an eminently reasonable offer. 

And I think that that offer provides the proper framework within 

which these negotiations can begin. 

Speaking as a citizen and as someone who has devoted much of 

my professional career to studying these issues, I, for one, would 

hope that this is the manner in which the present controversy, too, 

would be resolved. 

Thank you. 

[The prepared statement of Mr. Francisco follows:]

PREPARED STATEMENT OF NOEL J. FRANCISCO

Madame Chairman, Ranking Member, and Members of the Subcommittee: 

My name is Noel John Francisco. I am a partner at the law firm of Jones Day. 

I served as Associate Counsel to President George W. Bush from 2001 to 2003, and 

Deputy Assistant Attorney General in the Department of Justice’s Office of Legal 

43

Counsel from 2003 to 2005. It is an honor to appear before you to discuss the important issue of Executive Privilege. 

‘‘If there is a principle in our Constitution . . . more sacred than another, it is 

that which separates the Legislative, Executive, and Judicial powers.’’ 1 Annals of 

Cong. 581 (Joseph Gales ed., 1834) (remarks of James Madison). Our Founding Fathers recognized that the division of power among three separate branches of government was essential to the preservation of liberty. As Alexander Hamilton explained, this separation of powers ensures ‘‘the two greatest securities [the people] 

can have for the faithful exercise of any delegated power’’—‘‘the restraints of public 

opinion’’ and ‘‘the opportunity of discovering with facility and clearness the misconduct of the persons they trust.’’ The Federalist No. 70. In short, by locating power 

in separate and distinct branches of government, the People know who is responsible for its exercise and accountable for its abuse. 

The present inquiry into the President’s decision not to reappoint eight United 

States Attorneys threatens a constitutional confrontation that would undermine our 

constitutional structure and the liberties it protects. In that system of separated 

powers subject to limited checks and balances, it is the President’s exclusive prerogative to appoint and remove United States Attorneys. That non-delegable power of 

the President is not shared with the Legislative Branch; nor is the confidential advice of the President’s closest advisors concerning whom to appoint or remove from 

these positions subject to congressional review. The President has a constitutional 

privilege over those discussions—recognized by the Supreme Court as falling within 

his Executive Privilege. See United States v. Nixon, 418 U.S. 683, 705–06 (1974). 

No one would tolerate a demand by the President that a Member divulge the confidential advice he receives from senior staff members on whether to vote for or 

against a bill (or in the Senate, for or against a nominee). By the same token, no 

one should tolerate a demand that the President divulge the confidential advice he 

receives on whom to appoint or remove from the position of United States Attorney. 

The President and Congress’s role in this regard is both constitutionally prescribed 

and constitutionally limited. These constitutional strictures protect the Branches 

from each other; but more importantly, the balance that they create protects the liberty of the citizenry by spreading and diluting governmental power. 

It is understandable that this body would have less sympathy for the President’s 

point of view. Congress is, after all, a co-equal branch of our government, with its 

own vital role and constitutional duties. Our constitutional structure, however, is 

not designed to protect the President or the Congress. It is designed to protect the 

People. As Justice Kennedy has elegantly stated, ‘‘[w]hen structure fails, liberty is 

always in peril.’’ Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 468 (1989) 

(Kennedy, J., concurring in the judgment). The Constitution thus also recognizes the 

danger of Executive or Judicial encroachment on Congress’s ability to carry out its 

functions—a recognition embodied in, among other places, the Speech and Debate 

Clause. 

Requiring the President to divulge confidential advice would be particularly inappropriate in light of the information that the President has agreed to provide. It is 

my understanding that the President has agreed to produce the following:

• Department of Justice officials, who will testify to their role in the removal 

of the eight United States Attorneys and their conversations with the White 

House;

• Department of Justice e-mails and memoranda related to this issue, including 

e-mails and memoranda exchanged between the Department of Justice and 

the White House;

• White House e-mails and memoranda exchanged with any outside entity, including the Department of Justice and Members of Congress;

• –Non-public interviews of specified senior White House advisers about their 

communications with outside entities, including the Department of Justice 

and Members of Congress.

I understand that the only information that the President has not agreed to provide 

pertains to internal White House communications, including the public, sworn testimony of certain White House advisors. Thus, the present dispute appears to be limited to this last category of information. 

The incremental information that the President has not agreed to provide is precisely the information for which Executive Privilege provides the strongest protection. Unlike members of the Cabinet or other agency employees, the White House 

Staff has no operational authority. It cannot prosecute criminals. It cannot issue 

binding rules and regulations. It cannot sign an Executive Order. Instead, its sole 

function is to provide the President with advice in order to assist the President in 

44

the execution of his constitutional duties and responsibilities. Thus, demanding the 

sworn testimony of these senior White House advisors is tantamount to demanding 

the sworn testimony of the President himself. It necessarily follows that the importance of confidentiality with respect to this small group of presidential advisers is 

particularly acute. This is why the historical view of the Executive Branch is that 

‘‘the few individuals whose sole duty is to advise the President should never be required to testify because all of their duties are protected by executive privilege.’’ 

CRS Report for Congress, Presidential Advisers’ Testimony Before Congressional 

Committees: An Overview (April 14, 2004), at p. 27. 

This is not a partisan issue. To be sure, presidential administrations have differed 

somewhat as to the outer contours of Executive Privilege. For example, according 

to the Congressional Research Service, President Eisenhower, a Republican, ‘‘took 

the most expansive approach [to Executive Privilege], arguing that the privilege applied broadly to advice on official matters among employees of the executive 

branch.’’ CRS Report for Congress, Presidential Claims of Executive Privilege: History, Law, Practice and Recent Developments (Sept. 21, 1999), at p. 11. The Congressional Research Service reports that the Clinton administration likewise took the 

‘‘expansive position that all communications within the White House and any federal department and agency [were] presumptively privileged.’’ Id. In contrast, ‘‘[t]he 

Reagan Justice Department appears to have taken a slightly narrower view of the 

scope of the privilege.’’ Id. But regardless of the outer boundaries, presidents of both 

political parties have consistently maintained that the privilege is at its strongest 

with respect to the President’s senior White House advisors—‘‘the few individuals 

whose sole duty is to advise the President.’’ Presidential Advisers’ Testimony Before 

Congressional Committees, supra. As the late Chief Justice Rehnquist explained 

while serving in the Department of Justice, such individuals ‘‘should not be required 

to appear [before Congress] at all.’’ U.S. Congress, Senate Committee on the Judiciary, Subcommittee on Separation of Powers, Executive Privilege: The Withholding of 

Information by the Executive, hearings, 92nd Cong., 1st sess. (Washington: GPO, 

1971), p. 427. ‘‘[T]he aim,’’ said the Chief Justice, ‘‘is not for secrecy of the end product—the ultimate Presidential decision is and ought to be a subject of the fullest 

discussion and debate, for which the President must assume undivided responsibility. But few would doubt that the Presidential decision will be a sounder one if 

the President is able to call upon his advisers for completely candid and frequently 

conflicting advice with respect to a given question.’’ Id. at 425. 

This view has also been validated by the few court cases addressing claims of Executive Privilege. Understandably, the federal judiciary has been reluctant to resolve inherently ‘‘political’’ disputes between the President and Congress—including 

disputes over information held by one of the branches. See, e.g., United States v. 

AT&T, 551 F.2d 384, 395–96 (D.C. Cir. 1976); United States v. The House of Representatives of the United States, 556 F.Supp. 150, 152–53 (D.D.C. 1983). But in the 

only instance in which a federal court did resolve such a dispute, it held that 

Congress’s ‘‘asserted power to investigate and inform’’ was, standing alone, insufficient to overcome a claim of privilege and so refused to enforce the congressional 

subpoena. Senate Select Committee on Presidential Campaign Activities v. Nixon,

498 F.2d 725, 731–32 (D.C. Cir. 1974). Other cases, which have generally arisen in 

the context of criminal investigations and prosecutions, have likewise recognized 

that internal White House communications are at the core of the protections of Executive Privilege. See, e.g., In re Sealed, 121 F.3d at 752 (the privilege encompasses 

‘‘communications authored or solicited and received by those member’s 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’’); see also Association of American Physicians and Surgeons v. Clinton (AAPS), 997 F.2d 898, 909 (D.C. Cir. 1993) (the ‘‘Article II right to confidential communications attaches . . . to discussions between 

[the President’s] senior advisors,’’ because ‘‘Department Secretaries and White 

House aides must be able to hold meetings to discuss advice they secretly will 

render to the President’’). 

Finally, it bears re-emphasizing that the issue here—the appointment and removal of United States Attorneys—is a ‘‘quintessential and non-delegable Presidential power.’’ In re Sealed, 121 F.3d at 753. United States Attorneys are political 

appointees who may be removed by the President for any reason—good or bad—or 

for no reason at all. They exercise extraordinary power. The decisions of United 

States Attorneys can deprive individuals of their liberty and, in some cases, their 

lives. Ultimately, it is not the unelected United States Attorneys who are accountable for these decisions, but the President, who alone in the Executive Branch is 

answerable to the People. Indeed, the only way that United States Attorneys may 

be held democratically accountable for their decisions (short of impeachment) is 

45

through the President. This is why ‘‘confidentiality is particularly critical in the appointment and removal context; without it, accurate assessments of candidates and 

information on official misconduct may not be forthcoming.’’ In re Sealed, 121 F.3d 

at 753. Indeed, Executive Privilege is at its zenith when it applies to the President’s 

decisions regarding his appointment power. Cf. Public Citizen v. Department of Justice, 491 U.S. 440, 466–67 (1988); id. at 468–69 (Kennedy, J., concurring in the judgment). 

Here, the question of Executive Privilege is a narrow one: Does Congress’s power 

to conduct oversight entitle it to demand that the President divulge the advice of 

his closest advisors on a ‘‘quintessential and non-delegable Presidential power’’? 

With all due respect, I believe that the question answers itself. Indeed, in my view, 

it is arguable that Congress can never require that the President divulge these confidential communications, as the Executive Branch has consistently maintained. 

At a minimum, however, Congress would need to exhaust all other avenues for 

obtaining this information and then demonstrate why it needs the information withheld. Cf. Cheney v. United States District Court, 542 U.S. 367, 388 (2004). Thus, 

Congress would first have to examine the extensive information that the President 

has made available to it—testimony from Department of Justice officials, communications within the Department of Justice and between the Department of Justice 

and the White House, and non-public interviews of White House officials. It would 

then have to specifically identify why it needs the information that it does not have. 

And finally, it would have to establish that the incremental information it seeks—

information at the core of Executive Privilege—is ‘‘demonstrably critical to the responsible fulfillment of [its] functions.’’ Senate Committee, 498 F.2d at 731–32. At 

this early stage of the proceedings, however, there is no such record, in the absence 

of which Congress could not, in my view, possibly overcome the privilege that presumptively attaches to these core, internal White House communications. 

In the end, however, it is doubtful whether such a confrontation between Congress 

and the President will be in either’s interest. Historically, the President has not asserted Executive Privilege over the full range of privileged information. Instead, as 

a matter of comity between the branches, the President typically has attempted to 

accommodate Congress’s legitimate need for information with the President’s equally legitimate need to safeguard confidential communications. That is what the President appears to be doing here, where he has agreed to provide Congress with all 

relevant information save a limited amount relating to his closest, most confidential 

advisors. And even with respect to these individuals, the President stands ready to 

provide Congress with informal, non-public interviews. This seems to me to be an 

eminently reasonable offer, and one which provides the framework in which the 

present controversy may be resolved without provoking a constitutional confrontation involving all three branches of our government. Speaking as a citizen and as 

someone who has devoted much of my professional career to the respective roles of 

the President, Congress, and the Judiciary, it is the way that I for one would hope 

that this matter would be resolved. 

This concludes my prepared statement. I would be happy to answer any questions 

that you may have.

Ms. SA ́ NCHEZ. Thank you, Mr. Francisco. 

Mr. Schwarz? 

TESTIMONY OF FREDERICK SCHWARZ, JR., SENIOR COUNSEL, 

BRENNAN CENTER FOR JUSTICE, NYU SCHOOL OF LAW 

Mr. SCHWARZ. Thank you, Madam Chairman. 

Thank you, everybody else. 

I just want to make two points out of my written testimony, 

based on my experience as chief counsel of the Church Committee 

30 years ago that investigated the most sensitive national security 

matters. 

During our hearings, we heard and took sworn testimony from 

high-ranking presidential advisors—national security advisors—

from the White House in the Truman, Eisenhower, Kennedy, Johnson and Nixon administrations. So, again, there are precedents for 

that being done. 

46

Another point from our experience in the Church Committee is: 

Watch out for labels, like the label, ‘‘national security,’’ which we 

dealt with all the time, which is just so vague. And here, you are 

hearing the label, ‘‘performance.’’ Well, ‘‘performance’’ just doesn’t 

tell you anything about what it actually means. And I would suppose that President Nixon, when he fired Archibald Cox, would say, 

‘‘The reason I fired him was because of his performance.’’

Now, another point, historical point, is that I think you have to 

look at executive privilege in terms of what actual powers the 

White House officials now have. 

When this Constitution started, there weren’t any White House 

officials. There was President Washington and then the secretary 

of the state and the secretary of the treasury. Then we started to 

have White House officials. Now the White House officials, clearly, 

de facto have the power to tell the departments what to do. 

So, it seems to me, without knowing your record completely, that 

is what is involved here—not a question of advice to the President, 

but instructions from these people to the departments. And I think 

that raises quite different questions on the theory of executive 

privilege. 

Another point I suggest in my written testimony is that it would 

be a good thing for this Committee to do a more comprehensive 

analysis of the Justice Department. I know you have done that, to 

some extent, on the Civil Rights Department, but another area 

where I think you particularly should be paying attention is the Office of Legal Counsel. 

It is the Office of Legal Counsel that has set the nation down a 

course that has been extremely harmful to our national reputation 

and has been extremely harmful to the efforts to combat terrorism. 

Because by condoning torture and actions such as warrantless 

wiretapping and writing opinions to that effect, which include a 

theory which is one that both Republicans and Democrats in the 

Congress and in the country should be very concerned about, which 

is a theory that the President has the right to violate congressional 

laws—that is a theory which has been in the OLC opinions. 

Now, most of those opinions have not yet been released; they 

have been kept secret. And there is no justification for keeping secret an opinion of the Office of Legal Counsel that determines the 

law and which also decides that the President has the power to disregard the law. 

So the final point that I would make—and, Madam Chairman, I 

am shooting to finish in less than 5 minutes, and I expect appropriate kudos for that if I do—— [Laughter.] 

Ms. SA ́ NCHEZ. You will win the prize of the panel. 

Mr. SCHWARZ. The final point I would make is that I think this 

Committee, particularly, along with the Intelligence Committees, 

should take a very close look at the subject of secrecy—excessive 

classification. I think any objective person would say we have too 

much that is kept secret, stamped ‘‘secret.’’

When we did the Church Committee, we concluded, after our 

year and a half of investigation of five Administrations, Roosevelt 

through Nixon, all of which abused their national security powers, 

both Republican and Democratic Administrations, we concluded 

that secrecy stamps were used very, very often to protect the AdVerDate 0ct 09 2002 12:10 Jun 28, 2007 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6601 F:\WORK\COMM\032907\34360.000 HJUD1 PsN: 34360
47

ministration from embarrassment and to protect them from the 

American public knowing things they had been doing that were 

wrong. 

Congress has given the President wide power to determine classification. And I think you should, in a very careful way—this is 

something that is very serious and merits extensive thought—you 

should look at how secrecy stamps have been used and whether 

there is not a need in the national interest to reduce the amount 

of stuff that is kept secret and away from the American public. 

Thank you very much. 

[The prepared statement of Mr. Schwarz follows:]

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Ms. SA ́ NCHEZ. Thank you for your testimony. And you did, in 

fact, make it in under the 5-minute rule. 

We have been called for a series of votes, unfortunately. There 

is going to be a series of three 15-minute votes, which means potentially we will be on the floor for 45 minutes, a little bit less if 

we can get people back here. 

I would ask—and I know it is asking a lot because you have been 

extremely patient—I would ask the witnesses, if they could stick 

around, that they do so, so we could do questioning. I think this 

is a nice, natural break for the Members to get to the floor to vote. 

So if, because of time constraints, you cannot stay for questioning, we certainly understand, but we will be submitting questions to you to have you respond in writing. 

So, again, we really appreciate your time and your testimony. 

And the Committee will stand in recess. 

[Recess.] 

Ms. SA ́ NCHEZ. Okay. The Committee will reconvene. 

I want to thank our witnesses for sticking around. We will be 

joined shortly by some of our colleagues, but I wanted to go ahead 

and recognize myself for the first round of questions. 

Mr. Podesta, I read your written testimony and was very interested in getting your views on the potential reasons for dismissal 

of U.S. attorneys and whether politics or performance is involved, 

and how that relates to executive privilege. 

Mr. PODESTA. Thank you, Madam Chair. 

I think that Mr. Sampson in his testimony this morning, over on 

the Senate side, he said there is not a difference between performance and political considerations. I guess I beg to disagree. 

I think that where politics becomes partisanship is when you are 

trying to actually influence the outcome of the cases for partisan 

gain or for personal gain. Then it seems to me that is beyond the 

realm of the normal course of politics with respect to the duties of 

a U.S. attorney. 

I think really at the bottom line, that is really what the case is 

here. If this was simply trying to dismiss people who weren’t doing 

a very good job in their offices, that would be one thing, but that 

does not appear to be from what we know today, what was at issue. 

I think that if you go back, and Fritz is the expert on the Nixon 

administration, but I think if you go back and look at what President Nixon did in the ITT investigation, where he ordered thenDeputy Attorney General Kleindienst to not appeal the ITT case to 

the Supreme Court, that that was really what was at the heart of 

the issue. 

Of course, President Nixon argued it was just a policy matter, 

that he was just exercising his responsibility as the President to do 

it. But when he called Mr. Kleindienst and said, ‘‘Mr. Kleindienst, 

you son of a bitch, don’t you understand the English language? 

Don’t appeal this case,’’ he was of course going way beyond the normal exercise of policy in that matter. 

We don’t know what the circumstances are here. That is why it 

is important that the Justice Department come forward with its 

testimony and the White House give you an explanation of what 

they are up to. 

Ms. SA ́ NCHEZ. I appreciate the answer. 

63

I just want to note that, Mr. Francisco, in your testimony you 

said that the White House had provided information, and that we 

needed to look at executive privilege in the context the White 

House has provided, or the offers that they have made to provide. 

I just wanted to note that so far to date, we have received nothing from the White House—no documents, no witnesses to come 

and testify. We have received redacted documents from the Department of Justice. But just so you know, so far we have received 

nothing from the White House. 

I wanted to ask the whole panel this question, because I find it 

very interesting and relevant. Recently, the National Journal reported that a former White House official familiar with Karl Rove’s 

work habits indicated that Mr. Rove does about 95 percent of his 

e-mailing using his RNC-based account, not his official account. 

In your experience with the contours of executive privilege, can 

the White House make a valid claim of executive privilege as to 

any communications originating outside of the White House? I 

would be interested in getting all of the panel’s views on that, beginning with Mr. Podesta. 

Mr. PODESTA. I think that under the precedents certainly in this 

circuit, you would be very hard-pressed to claim privilege once you 

have moved out beyond the senior level people inside the White 

House. 

If that is true, and of course we don’t know that that is true, but 

if that is true, the Presidential Records Act seems to be violated 

also, because again post-Watergate and post-the claim that those 

were personal records of President Nixon, the Congress passed the 

Presidential Records Act that dealt really with these circumstances 

and dealt specifically with material that involved political activity, 

but that intersected with official governmental activity. 

I can’t believe that Mr. Rove is spending 95 percent of his time 

only engaged in partisan political activity and only 5 percent of his 

time on—he is the deputy chief of staff in the White House—on the 

affairs of the Government. 

Ms. NOLAN. I do think it is very important that this law we have, 

the Presidential Records Act, is intended to preserve communications on official White House business. They are supposed to be 

made public after a certain period under the law. 

So if in fact Mr. Rove or others are trying to conduct official 

White House business outside the official channels of communication, then I think that really is very serious and problematic, and 

would certainly raise questions about how you can both treat this 

as something outside the White House, and yet claim a privilege 

on it. 

Mr. FRANCISCO. I would like to be clear, since I don’t really know 

exactly what is going on with Mr. Rove’s e-mails, I can’t comment 

on that specifically. But in terms of the general question, the core 

of executive privilege is obviously intra-White House communications that take place among the White House staff. 

But second only to that in terms of how strong the privilege applies are communications to the White House. So in theory, a communication that originates outside of the White House, but goes 

into the White House is still protected by the executive privilege, 

provided that it is something that relates to official White House 

64

business. So in theory, the executive privilege still would apply 

even if the communication did originate outside of the White House 

and was made to the White House. 

Ms. SA ́ NCHEZ. So would it be fair to say or believe that there is 

a blanket privilege for all outside communications originating into 

the White House, intra-White House communications would all be 

covered by the privilege, and under no circumstances would there 

be exceptions? 

Mr. FRANCISCO. Well, to be clear, at least in the cases that have 

been decided, none of which have involved congressional subpoenas 

for information, with the exception of one old case, in the cases 

that have been decided in other areas, courts have adopted a balancing test. So to say at least in those cases there is an absolute 

privilege, I probably wouldn’t agree with that. 

With respect to core internal intra-White House communications, 

I do believe that would be very difficult for the Congress ever to 

overcome the presumption of a privilege that applies to those core 

communications. Communications that originate outside the White 

House probably are less protected because they are not as much at 

the core of the privilege. 

Mr. SCHWARZ. I would say first the fact that someone is located 

in the White House cannot be the answer to the question. The 

question is whether they are functioning as a governmental official 

when they are in the White House. 

For example, if I visited the White House one day and I was 

there for a chat about something relating to the Government, and 

while I was in the White House, I communicated to the Attorney 

General and said, ‘‘Here is what you should do,’’ you couldn’t possibly say that is privileged because I was in the White House. 

Now, as I understand the facts, and here I don’t understand the 

facts, but what I have heard about the facts really only this afternoon I think in your opening comments, was that Mr. Rove when 

he was physically in the White House was using a computer system that wasn’t a White House computer system. If that is true, 

he is not functioning as a governmental official, and so clearly it 

is not privileged. It is not covered by the executive privilege. 

If you think about the attorney-client privilege, that protects 

communications from an attorney to the client when the attorney 

is functioning as an attorney. As we all know, there are many lawyers who sometimes have the lawyer’s degree and call themselves 

a lawyer, but they are actually working as business people. If they 

give business advice to their client, the fact that they are labeled 

as a lawyer doesn’t make it privileged. 

So if someone is physically in the White House and they are 

sending e-mails that are not on a White House governmental system, but are on some private system, there is no possibility that 

that is privileged under an executive privilege, in my judgment, 

hearing the facts for the first time today and reacting to your question today. 

Ms. SA ́ NCHEZ. Thank you, Mr. Schwarz. 

I now would like to recognize our Ranking Member, Mr. Cannon. 

Mr. CANNON. Let’s follow up on the same line of questioning. Let 

me just ask Mr. Podesta, and then we will go down the panel. 

65

If someone, before we had VoIP, so you are talking about an old 

telephone system, lifted up the phone and made a phone call from 

the White House, the Old Executive Office Building, and that went 

through a switch downtown, there would be no question that that 

you would not lose executive privilege based upon going through a 

switch downtown. Right? 

Mr. PODESTA. I don’t think the technology would matter in that 

context. The question is whether it falls within the privilege itself. 

Mr. CANNON. Right. But nobody is going to disagree with that 

conclusion, right? 

Now, I think the question that we are going to have here is Karl 

Rove used something, not an old telephone system, it is a new email system, so Karl Rove uses an e-mail system to communicate 

from himself to someone else in the White House. Now, there are 

all kinds of reasons for doing that, but it won’t be that the system 

is based outside the White House that diminishes the privilege, 

whatever that might be otherwise. 

Mr. PODESTA. Well, I think quite frankly, Mr. Cannon, I raise the 

Presidential Records Act. I think the Presidential Records Act requires—and I was involved in litigation on this that began in the 

Reagan administration——

Mr. CANNON. We can come back to this. But it will not be the 

fact that you got a service-provider outside the White House that 

diminishes the——

Mr. PODESTA. It may not be the question of whether it was 

hosted outside the White House, but Mr. Rove if he was conducting 

official governmental business was required to use the assets of the 

Government in order to capture and retain those governmental 

communications. 

Look, we are speculating here completely because we don’t know 

in fact what he did and whether it was engaged or involved. We 

know to some extent that his deputy was using these accounts for 

official business, but we don’t know what Mr. Rove did. But if he 

was using those separate e-mail accounts that were essentially off 

the books of the White House, why was he doing that? 

Mr. CANNON. There may be many reasons why, but it would certainly not mean that those records were not part and don’t come 

under the purview of the Presidential Records Act. Right? 

Mr. PODESTA. Again, we, as a result of litigation that began at 

the end of the Reagan administration as a result of Iran-Contra, 

they were trying to clean the e-mail records of the NSC and Ollie 

North’s records. Litigation was brought. That litigation lasted for 

6 years. 

We implemented a system to retain and capture official governmental records. That system still exists, I believe, inside the White 

House, to capture e-mail records of the Administration. That was 

approved by the National Archives and we ultimately settled the 

case as a result of implementing that system. 

If he was conducting official business on the separate political accounts, then it seems to me that was an avoidance of his obligation 

under the Presidential Records Act. So if he felt that that was an 

official action, then it wouldn’t be privileged. If he thought it was, 

he was violating the Presidential Records Act. But I think it is one 

or the other. 

66

Mr. CANNON. Depending upon how he did it, and granted there 

are many questions that are out there, you would certainly not say 

that these don’t become presidential records because of some cloak 

of using an alternative system. Whatever the Presidential Records 

Act covers, those will be included in it, whether they were used in 

the inner-system or not. 

Mr. PODESTA. Well, I think if he was conducting official business, 

he was creating presidential records and he should have been doing 

that——

Mr. CANNON. If he was creating presidential records, then he is 

going to have a presidential privilege regardless of what the external system that it goes through uses. 

Mr. PODESTA. Well, as I said, I think that as a result of litigation 

that the White House settled, the obligation of White House employees with formal guidance was that you could not participate in 

a way of conducting official business in the manner that you are 

describing. 

Mr. CANNON. We understand that. We are not litigating this case 

right here. We are just saying it is not the fact that it sits on or 

went through an external system that makes it not a privileged 

communication. 

Mr. PODESTA. Well, it would be my view that it would certainly 

diminish or eliminate the presumption that that document was 

privileged. 

Mr. CANNON. I am sorry. You are suggesting that if it goes 

through—there are many unknowns here, and that was a pretty 

blanket statement. It is not the fact that it goes through an external system that eliminates the presumption. If he is trying to avoid 

the Presidential Records Act, that might eliminate the presumption, but it is not the system that it goes through that represents 

the elimination of the presumption. 

Mr. PODESTA. I am saying that the system inside the White 

House was set up to capture those records as a result of the obligations of the White House to retain records under the Presidential 

Records Act. 

Mr. CANNON. I see that my time has expired. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

We will have a second round of questioning. 

Mr. CANNON. I would just make a point, hopefully it won’t do 

that, at least I don’t want to be here for the second round. Let me 

just make the point——

Ms. SA ́ NCHEZ. You are not required to be here for the second 

round. [Laughter.] 

Mr. CANNON. It is not a presumption. It is a privilege. And the 

privilege is undefined to some degree. 

Thank you. I appreciate that. 

Ms. SA ́ NCHEZ. Thank you, Mr. Cannon. 

Mr. Johnson? 

Mr. JOHNSON. Thank you. 

Mr. Francisco, you indicated or you stated in your opening that 

if there is a principle in our Constitution more sacred than any 

other, it is that which separates the legislative, executive and judicial powers. I am sure that all of us will agree that that setup has 

indeed worked well in our governance. 

67

Do you respect the notion that these three branches are co-equal? 

Mr. FRANCISCO. Yes, Congressman, I do. 

Mr. JOHNSON. And you do you know of any legal precedent that 

suggests that Congress does not have jurisdiction to oversee the office of the President? 

Mr. FRANCISCO. I do know it is the longstanding position of the 

executive branch, articulated both in Republican and Democratic 

Administrations that White House staff-members are subject to an 

executive privilege that shields them from being called upon to testify before Congress absent the President’s agreement for them to 

appear to testify. 

Mr. JOHNSON. Well, it is not an absolute privilege, though, is it? 

Mr. FRANCISCO. I think that, in my view, with respect to White 

House staff-members being required to testify under compulsion 

before the Congress, I do believe that it is the longstanding position——

Mr. JOHNSON. But is it absolute privilege? 

Mr. FRANCISCO. In terms of the positions that Democrat and Republican Presidents have taken, yes. 

Mr. JOHNSON. What about that third branch of Government, the 

courts? How have they interpreted this question of unqualified immunity, if you will? 

Mr. FRANCISCO. There is only one decision that has ever addressed Congress’s subpoena of the President, in the face of an assertion of executive privilege. And in that one case, the court said 

that Congress was not entitled to enforce the subpoena. That was 

the Senate Committee case. It is a relatively old case, but it is the 

only one that there is on this issue. 

Mr. JOHNSON. What about that case involving the firing, or the 

issuance of subpoenas by Congress for the White House tapes? 

Mr. FRANCISCO. I believe that you are referring to the Nixon 

case. 

Mr. JOHNSON. Yes, the Nixon case. 

Mr. FRANCISCO. My understanding, and I can be corrected, is 

that that was the subpoena issued by a special prosecutor, rather 

than the Congress. 

Mr. JOHNSON. Well, I guess that the bottom line would be that 

the executive privilege is not absolute. It is qualified and can be 

subject to other concerns such as Congress’s ability to oversee the 

office of the President. 

What factors must be assessed in balancing executive privilege 

against congressional oversight functions, Ms. Nolan? 

Ms. NOLAN. First of all, I would like to say that no court has ever 

addressed this claim that former Presidents have made, and this 

President seems to be making, that White House advisors are immune from being called to testify. There is no judicial decision on 

that. The judicial decisions we do have say that executive privilege 

involves balancing, and that is the question you have: What factors 

would be balanced? 

I think what you are looking for is what are the legitimate and 

important constitutional interests and prerogatives of each branch. 

We have seen that courts may look, for instance, in a case such as 

this where I think there is no question that Congress has oversight 

authority with respect to these matters, then is Congress able to 

68

obtain the information in another way. That would be one question 

that you might look to. 

Mr. JOHNSON. Well, according to Mr. Francisco’s view, conversations intra-White House, intra-White House communications, 

would be immune, and also communications from outside of the 

White House flowing into the White House would be immune. So 

that would severely limit the available material for the Congress 

to be able to exercise legislative authority or oversight authority. 

Ms. NOLAN. Well, I think it is correct that the presidential communications privilege, those communications between advisers who 

are advising the President directly, do have the strongest claim to 

privilege. 

Now, I think Mr. Schwarz made a very good point that we don’t 

know here that what we are talking about were advisers advising 

the President. It seems like they were directing the Justice Department instead. So we don’t even know that that would be the claim. 

But even if it is a stronger claim, it doesn’t mean that Congress’s 

interest won’t overcome that claim. What is important here is that 

while we have a very limited number of judicial decisions or law 

on the question, we have decades and decades of practice. 

And executive privilege is really nine parts practice and one part 

law. It is what the branches have agreed to and accommodated. I 

would say here there is plenty of precedent for the idea that those 

internal White House communications can be provided. 

Mr. JOHNSON. You yourself have provided testimony. 

Ms. NOLAN. I have, and we did it again and again. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. JOHNSON. All right. Thank you. 

Ms. SA ́ NCHEZ. Mr. Delahunt? 

Mr. DELAHUNT. Somewhere in the U.S. criminal code is there a 

criminal sanction imposed for testimony that is misleading to the 

Congress? Anybody? 

Mr. FRANCISCO. I believe it is——

Mr. PODESTA. Yes, it is 18 U.S.C. 1001. 

Mr. DELAHUNT. Okay. 

Mr. PODESTA. ‘‘Misleading,’’ I think, threw us. You can’t lie to 

Congress. 

Mr. DELAHUNT. That is the point. 

You know, I understand the distinction we are making here, I 

think, Mr. Francisco is in terms of the rationale for the dismissal, 

if you will, of the U.S. attorneys. But what I would suggest is that 

there is uncertainty now in terms of whether there has been a violation of the United States criminal code. 

We have heard significant and germane variations on statements 

by the Attorney General of the United States. Would you agree, 

Mr. Francisco, that there is a rationale and a basis for the issuance 

of a subpoena, given the predicate of the potential violation of the 

U.S. criminal code? 

Mr. FRANCISCO. My understanding is that the Administration 

has agreed to make the Attorney General and other Department of 

Justice officials available for testimony to the Congress. I may be 

wrong on that, but that is at least my understanding. 

Ms. SA ́ NCHEZ. In a limited scope. 

69

Mr. FRANCISCO. And if that is the case, then the people who you 

believe may or may not have provided false testimony to the Congress are accessible to the Congress. 

Mr. DELAHUNT. I understand. Even if that is the case, however, 

the conduct of a criminal investigation implicates far more than 

just the testimony of an individual that may or may not invoke the 

fifth amendment. 

Mr. FRANCISCO. In the context of a criminal investigation, that 

is where the courts have said that where a prosecutor is investigating a case and trying to uncover evidence of a crime, that is 

where the interest is the strongest in terms of overcoming executive privilege. But they have not said the same thing in the context 

of a congressional investigation. 

Mr. DELAHUNT. So then what the Congress ought to do if it feels 

appropriate or it feels that there is a quantum of evidence that 

there may have been a potential violation of the United States 

criminal code, is to request the appointment of a special prosecutor. 

Mr. FRANCISCO. I think it would be appropriate for Congress to 

make that request. 

Mr. DELAHUNT. Mr. Podesta? 

Mr. PODESTA. Well, my experience with the independent counsel 

leads me to think that that is an extraordinary remedy. And so I 

would urge you to try to work to get the——

Mr. DELAHUNT. I am not suggesting. We let the independent 

counsel statute die. 

Mr. PODESTA. There are special counsel provisions that Mr. Fitzgerald was appointed by. 

But just to clarify one thing, Mr. Delahunt, I think that it is still 

okay to lie to the press, which I think, if I understood Mr. 

Sampson’s testimony this morning when he suggested that the Attorney General’s statements weren’t accurate, that those were 

press statements, rather than statements before Congress. Now, 

Mr. McNulty and others I think did testify before Congress. 

Mr. DELAHUNT. Well, then I guess I would suggest that there is 

the predicate for a conspiracy. In other words, we are focused on 

the dismissal at this point in time, as opposed to a rationale which 

would implicate the U.S. criminal code. 

I am not suggesting that the Attorney General has misled to lied 

to Congress, but what I am saying is exactly because we don’t 

know, should mandate or should I think diminish the rationale for 

the invocation of executive privilege. 

We just saw a case here in Washington, the Libby case. It had 

nothing to do with leaking to the press. It had to do with testimony 

before the grand jury. What I am suggesting is if the White House 

reflects on this particular issue and there is an examination of testimony before Congress by individuals who may or may not have 

been informed by superiors in the Department of Justice, as well 

as the White House, that misled Congress, there is, one can theorize, a case, that there has been a violation of our criminal statutes. 

That, in and of itself, should, in my judgment, be sufficient for 

the White House to recognize that this is more than just simply 

dismissal of eight U.S. attorneys. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

70

Mr. Jordan? 

Mr. JORDAN. I thank the Chair and the panel for being here 

today. 

I am going to yield the balance of my time to the Ranking Member. 

Mr. CANNON. Thank you, Mr. Jordan. 

What has gone on with the U.S. attorneys has gone on. It is 

going to take a little bit of time to sort out. Let me just reassert 

the importance of the prerogatives of Congress. 

I think there is actually an interesting point that the gentleman 

from Massachusetts is making, if someone gave incorrect information knowing that it was going to come to Congress, there is a 

problem there somewhere and we need to pursue that. 

Now, Ms. Nolan, in your written testimony, you stated that some 

in the present Administration appear to believe that presidential 

advisers are immune from giving testimony on the theory that Congress does not have jurisdiction to oversee the office of the President. No precedent in our country’s history has attempted to make 

such an extraordinary claim and no precedent provides a legal justification to support that perspective. 

Would you be surprised to learn that Robert Lipschutz, the 

former White House counsel in the Carter administration, wrote a 

memo on February 8, 1979 to White House staff stating—and by 

the way, Madam Chair, I would like to insert this letter from Mr. 

Lipschutz to the White House staff into the record. 

Ms. SA ́ NCHEZ. Without objection. 

[The letter follows:]

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Ms. NOLAN. Mr. Cannon, you are saying that is from my testimony? 

Mr. CANNON. Oh, well, pardon me here. This is Mr. Podesta’s testimony. 

The problem is no reasonable man would mind being at crosswords with you, but your rapier-like mind is beyond the competence of most of us, so let’s get away from you and to someone 

who—— [Laughter.] 

Mr. Podesta, I think you said that. 

Let me just read a little portion of the letter: ‘‘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.’’

Mr. PODESTA. Mr. Cannon, the statement I was referring to goes 

to the back-end of that sentence, that Congress does not have jurisdiction to oversee the office of the President. That has been repeated from the White House podium on several occasions, including last Monday by Ms. Perino. And that is just not true. 

Mr. CANNON. What did she have to say? Do you recall her actual 

words? 

Mr. PODESTA. I probably have it here, and I will find it for you. 

But on several occasions, I think that the White House has made 

the claim that the Congress has no authority over the White 

House, that they have no oversight authority over the White 

House, and that is just patently not true. 

Mr. CANNON. Well, they are separate branches, but they don’t 

mean that Congress can’t investigate the President. That can’t possibly be what——

Mr. PODESTA. I would provide for the record the statements that 

have been made by the White House over the course of the last 

week. I think they would support the testimony that I gave here. 

Mr. CANNON. Well, they are a public record. If you could find 

them, that would be nice. We have an obligation here to also look 

for them. 

Let me just say, I think that we have come to a point where 

there is not a lot of disagreement here about what is privileged and 

what it not privileged. This case, as I think Mr. Schwarz pointed 

out earlier, raises some very interesting particular questions that 

may be new. We will sort through those. 

The scope of this is, and what I think we have agreed to, is that 

there is no absolute privilege. There is a right based upon a separation of powers. That right has come down to internal discussions 

versus external discussions. 

I think the President’s offer, by the way, has been remarkably 

open in that regard. They have made everything available that has 

been into the White House, even discussions which I think Mr. 

Francisco would say may have been privileged, that is, ideas that 

have come from outside of the White House, inside the White 

House. 

If what we are doing is trying here in Congress to get to the 

truth, to find out how significant the problem is, then we could do 

so by pursuing the offer the President has made and seeing where 

that leads us. It may lead to a more significant revelation or not. 

73

Personally, I don’t think the revelations that have come out so 

far as substantial. Certainly, there has been nothing significant of 

the testimony of the U.S. attorneys themselves is definitive that 

there is no attempt to avoid corruption charges or investigations, 

or that any investigations were not interrupted by the firings and 

would not be harmed by the firings. 

So what we are dealing with here may be angels on the head of 

a pin, but your contribution today has been very helpful in clarifying that. It seems to me that we have come down to a pretty 

clear sense of the scope of Congress’s ability, and that is something 

that we will pursue aggressively on both sides of the aisle. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

I have one last question, and we will see if there are other questions. I want to pick up on the point that Mr. Delahunt was trying 

to make, and Mr. Cannon tried to flesh out a little bit. 

Regarding the potential of the invocation of presidential communications privilege as it pertains to matters surrounding the current case of the dismissals of the United States attorneys, is it necessary for Congress to establish a likelihood of criminal wrongdoing 

in order to overcome the presumption of privilege? Or would an indication of inefficiency or maladministration be sufficient? 

Mr. Podesta? 

Mr. PODESTA. I think there is no definitive answer to that. I 

think clearly the Congress has jurisdiction and the Supreme Court 

has recognized that they have the authority to investigate for purposes of uncovering maladministration or other kinds of oversight 

issues. I think that there is a whole line of Supreme Court cases 

that uphold that right. 

The real question is, when you are faced with an executive privilege, have you overcome that right just because you are essentially 

operating in that zone? The one case that I am familiar with again 

goes back to Watergate, where the select Committee, the Watergate 

Committee, tried to get a set of tapes from the Nixon White House, 

and the court of appeals here concluded that they had not overcome 

the privilege because they had not demonstrated the need. 

The reason for that was that this Committee, the House Judiciary Committee, which was engaged in the impeachment process, 

had already received that same set of tapes, and the Watergate 

Committee in the Senate no longer needed them because the process had moved along. So I think that is a question that would be 

a first impression if it actually got to a court. 

Ms. SA ́ NCHEZ. Ms. Nolan, any thoughts? 

Ms. NOLAN. Yes. I agree with Mr. Podesta that we don’t have a 

definitive answer, but I don’t understand there to be any law that 

would suggest that an actual determination of criminal wrongdoing 

is necessary to overcome the privilege. The cases have largely been 

in the criminal area, and so that is what the cases address. We 

don’t have the same kind of explanation from the courts with respect to Congress. 

Ms. SA ́ NCHEZ. If we had to just assume a hypothetical that there 

was an intention in the firing of U.S. attorneys to disrupt certain 

investigations that were taking place, would the suggestion of that 

be enough to overcome the assertion of privileged communications? 

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Ms. NOLAN. I certainly think yes. If you have something that 

looks like obstruction of justice, an attempt to interfere with individual cases for reasons that really should be outside the authority 

of officials to do, then I think that is exactly the kind of thing. 

You are talking then about issues, whether they are criminal obstruction of justice or whether it is simply questions about the administration of justice, impartial execution of prosecutorial discretion, questions that really go to the heart of the rule of law and 

our criminal justice system, then I would say not only does Congress have the right to receive information relevant to that, but it 

has a responsibility. That is what the American people look to Congress to do. 

So without judging particular facts, in your hypothetical, yes. 

Ms. SA ́ NCHEZ. That would be a situation that would warrant it. 

Ms. NOLAN. Absolutely. 

Ms. SA ́ NCHEZ. I am curious to know, must a claim of privilege be 

asserted by the President personally? 

Ms. NOLAN. Yes. In the accommodation process, it is not always 

escalated to that point. That is, Congress and the executive reach 

an agreement before there is a personal assertion, a direct assertion by the President. But if the Administration is seeking to assert 

a privilege in a formal way, the accommodation process has failed. 

Then it is the President and the President only. 

Ms. SA ́ NCHEZ. Must that be in writing, that invocation? 

Ms. NOLAN. I don’t know the answer to that. 

Ms. SA ́ NCHEZ. Does anybody know the answer to that on the 

panel? 

Mr. FRANCISCO. I think the practice has varied from President to 

President, which would suggest that it doesn’t have to be in writing. But again, I would agree that I am not sure there is a definitive answer to that question. 

Ms. SA ́ NCHEZ. Okay. Thank you. 

Mr. Cannon, do you have any more questions, a second round of 

questions? Anybody else have questions? 

Mr. Johnson? 

Mr. Cannon passes. 

Mr. Johnson, you are recognized. 

Mr. JOHNSON. All right. Thank you. 

I will ask this of Mr. Schwarz. 

I want you to assume that there is a White House political director who decides that he wants to replace one U.S. attorney with another U.S. attorney for the reason that he wants the new U.S. attorney to institute a vindictive prosecution against a candidate for 

President from a different party in an upcoming election. And he 

wants that new U.S. attorney to institute criminal proceedings, or 

at least an investigation, against this presidential candidate, who 

may have some connections to that particular venue where the U.S. 

attorney is being replaced. 

Would that be a legitimate area of congressional inquiry? 

Mr. SCHWARZ. Well, sure, it is an area of congressional inquiry. 

It seems to me it gets back to the dialogue that the Chairwoman 

started and the Ranking Member continued about this discussion 

that somebody in the White House was using a political account to 

send their e-mails. It seems to me what that shows is that persons 

75

wasn’t functioning as a Government official so the privilege 

wouldn’t arise in the first instance. 

On your hypothetical, you have described an instance where 

someone was a political official and not a governmental official, and 

if they are a political official, and they are working in the White 

House——

Mr. JOHNSON. Well, I want you to assume that the political official is actually a White House official, working in the White House, 

with the title of White House political director. 

Mr. SCHWARZ. To me, the question is whether the person is in 

fact a governmental official, or is a political person. 

Mr. JOHNSON. Let’s assume that they are a governmental official 

as well as a political official. 

Mr. SCHWARZ. It is like my hypothetical of the attorney-client 

privilege. If someone who is a lawyer and a businessman communicates to a client, and what they are communicating is business 

advice, not legal advice, then it is not privileged, even though they 

were a lawyer in a law firm. 

By the analogy, I would think if someone in the White House 

was in part a governmental official and in part a political official, 

to the extent they are a political official, I don’t see why the presumption in favor of there being some sort of privilege should apply 

at all. 

I think your question is getting at it, and frankly I have never 

thought about this subject until it came up today, so perfectly, possibly I am giving you off-the-cuff reactions which wouldn’t be supported after I had a chance to think about it further. 

But in starting to think about it, I think if there is a person 

physically in the White House who is in part a governmental official and in part a political official, when they are being a political 

official they are not protected by any privilege associated with the 

executive privilege, and shouldn’t be. 

And that is, by the way, not a partisan issue, because it would 

be something that would bite on any future or past President and 

any future or past White House. 

Mr. JOHNSON. Mr. Podesta, let me ask you this question. The 

power to remove a United States attorney certainly vests in the 

President, and no one is disputing that. 

Do you think that the fact that the President has the unfettered 

discretion to appoint and to—well, I won’t say to ‘‘appoint,’’ but he 

certainly has unfettered discretion to dismiss. 

The fact that he has that unfettered discretion, does that insulate the reason for the dismissal from congressional inquiry and 

oversight? 

Mr. PODESTA. No, Mr. Johnson. I think that U.S. attorneys serve 

at the pleasure of the President. So he could dismiss them on a 

whim, but he can’t dismiss them for improper purpose. 

I think, again, if the purpose was to interfere with specific 

cases—I am not alleging that in this case. We don’t know the facts. 

But if those were the facts, then I think that is inappropriate and 

improper. You could posit circumstances under which that would 

violate the criminal law. 

Ms. SA ́ NCHEZ. The time of the gentleman has expired. 

Mr. Delahunt? 

76

Mr. DELAHUNT. I will try to be brief. I will go back to what I was 

speaking to earlier. 

The Chair set a standard of likelihood. I would suggest that is 

too high. But in terms of obviating the ability for the White House 

to claim privilege, the appointment of a special prosecutor based on 

a quantum of evidence that would trigger the need for a special 

prosecutor would accomplish that. The question is, what is that 

quantum of evidence? 

If, for example, there was a decision made in the White House 

to stonewall, to resist explanation for the rationale for the dismissals, and a variety of explanations were explored, which had the 

consequence of misleading Congress in testimony, then I would 

suggest that, again, based on an analysis, there could be a sufficient quantum of evidence to trigger a request by this Committee 

in a bipartisan way to seek a special prosecutor. 

If I am correct in my analysis of executive privilege and the 

precedents, that would end the issue surrounding executive privilege. 

Comments? Mr. Francisco? 

Mr. FRANCISCO. Sure. I think I said it would be appropriate for 

you to request a special prosecutor, but I tend to agree with Mr. 

Podesta that I don’t think it would be appropriate for the Department of Justice to appoint one. I think the best way for that case 

to be handled——

Mr. DELAHUNT. Why? 

Mr. FRANCISCO. Well, I think for many of the same reasons you 

all decided not to reauthorize the independent counsel statute. 

Mr. DELAHUNT. We decided not to reauthorize the independent 

counsel statute, but left available, given potential conflicts, the 

ability to appoint, by the Attorney General, a special prosecutor. 

Mr. FRANCISCO. That is absolutely true. My own personal belief 

is that when you hand these issues off to the career prosecutors in 

the public integrity sections in the U.S. attorneys’ offices in the Department of Justice, those attorneys are generally better able to assess whether a case should be pursued. 

Mr. DELAHUNT. Well, I would be happy to have Mr. Fitzpatrick 

come back and assume that responsibility. 

Mr. FRANCISCO. Sure. My concern——

Mr. DELAHUNT. It is not a question of ‘‘who.’’ It is a question of 

if there is a trigger, whether it is a special prosecutor or whether 

it is assigned to an individual who is given independence within 

the Department of Justice, to investigate. That does obviate the invocation of the privilege. 

Mr. FRANCISCO. Well, it doesn’t obviate the invocation of the 

privilege. What the courts have said is that in the context of a 

criminal investigation, if there is a sufficient showing of need, it 

can obviate the privilege. We would be into the balancing world 

that Ms. Nolan was discussing and that the Supreme Court employed in the Nixon case. 

Mr. DELAHUNT. Thank you. 

Ms. Nolan? 

Mr. Podesta? 

Ms. NOLAN. Mr. Delahunt, I would, like both of the people on either side of me, I am not a big fan of the special counsel, indeVerDate 0ct 09 2002 12:10 Jun 28, 2007 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6601 F:\WORK\COMM\032907\34360.000 HJUD1 PsN: 34360
77

pendent counsel, special prosecutor, whatever you want to call it. 

But I can’t think of a situation that cries out it more than this one. 

There is no possibility that the Attorney General or the deputy Attorney General could be expected to oversee an investigation and 

prosecution of this. 

Mr. DELAHUNT. Absolutely. 

Thank you. With that, I am going to yield back my time. 

But before I do, I am going to request the Chair consult with the 

Ranking Member and the Chair of the full Committee and the 

Ranking Member of the full Committee to explore the possibility of 

a request from the Judiciary Committee to the Attorney General 

for the appointment of a special prosecutor. 

Ms. SA ́ NCHEZ. The Chair will take that suggestion under advisement. 

Mr. CANNON. If the gentleman would yield, I think that is a very 

appropriate thing to do. I think that what we have heard from the 

panel is that we need to find something substantial before we take 

that leap. 

If the gentleman would continue to yield, I would just like to submit for the record the case of Judicial Watch v. Justice Department,

wherein the Appellate Circuit for the District of Columbia has said, 

‘‘However, the issue of whether a President must personally invoke 

the privilege remains an open question.’’ So I am not sure that is 

definitive and will submit that for the record. 

[The information referred to follows:]

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Ms. SA ́ NCHEZ. Okay. The time of the gentleman has expired. 

I want to once again thank all of the witnesses for your testimony today. 

Without objections, Members will have 5 legislative days to submit any additional written questions, which we will forward to the 

witnesses, and ask that you answer as promptly as you can, so that 

they can be made part of the record. 

Without objection, the record will remain open for 5 legislative 

days for the submission of any additional materials. 

Again, thank you for your time and your patience. You have been 

very generous. 

The hearing of the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 3:46 p.m., the Subcommittee was adjourned.] 

(107)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

RESPONSE TO POST-HEARING QUESTIONS FROM JOHN D. PODESTA, FORMER WHITE

HOUSE CHIEF OF STAFF TO PRESIDENT CLINTON, PRESIDENT AND CEO, CENTER

FOR AMERICAN PROGRESS

Question from Chairwoman Sa ́nchez

In a letter dated April 12, 2007, Chairman Conyers and I requested that 

the Republican National Committee (RNC) produce all communications by 

current or former government employees stored on RNC servers related to 

the Judiciary Committee’s investigation concerning the recent firings of 

eight United States Attorneys and related matters. In response, the White 

House indicated that it will review these communications for claims of executive privilege before they are disclosed to the Judiciary Committee. Is 

an executive privilege claim by the White House appropriate? Please explain.

Response of Mr. Podesta

It is unlikely that a claim of privilege would be sustained in this instance even 

if the presidential communications in question had been conducted through official 

channels. This is because the presidential communications privilege is not unqualified, and the presumption of privilege can be rebutted by a strong showing that the 

subpoenaed evidence is critical to the responsible fulfillment of the Committee’s 

functions. See Senate Select Committee on Presidential Campaign Activities v. 

Nixon, 498 F.2d 725 (D.C.Cir. 1974). This is a burden which I believe the Committee 

would meet. 

The fact that the communications in question were transmitted via unofficial, 

non-White House email accounts does not necessarily extinguish a claim of privilege, but under such circumstances, the presumption, at a minimum, should be reversed. The emails still might be privileged if they were ‘‘authored or solicited and 

received by those 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.’’ In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir. 1997). But given the 

use of RNC email accounts, the burden is on the White House to show that the communications should be treated as presidential communications. 

I would therefore urge the Committee to insist that the White House: (a) turn 

over all records that do not meet the Espy test; and (b) produce a privilege log with 

respect to any records with respect to which it wishes to assert a claim of privilege, 

identifying the date, author, and recipient of each document withheld as well as a 

general statement of the nature of each document and the basis for the privilege 

on which the document was withheld. See Espy at 735. Only then will the Committee be in a position to assess the validity of any claims of privilege with respect 

to these documents. 

It is fair to conclude that the authors of the subpoenaed communications transmitted them outside of official channels for one of two reasons: either they did not 

believe they were presidential communications, or they were seeking to evade the 

requirements of the Presidential Records Act. In either case, their behavior was inconsistent with a claim of privilege. 

Given the use of RNC email accounts, the burden necessarily belongs with the 

White House to show that the communications should be treated as presidential 

communications.

108

RESPONSE TO POST HEARING QUESTIONS FROM NOEL J. FRANCISCO, FORMER

ASSOCIATE COUNSEL TO PRESIDENT GEORGE W. BUSH, PARTNER, JONES DAY

Question from Chairwoman Sa ́nchez

In a letter dated April 12, 2007, Chairman Conyers and I requested that 

the Republican National Committee (RNC) produce all communications by 

current or former government employees stored on RNC servers related to 

the Judiciary Committee’s investigation concerning the recent firings of 

eight United States Attorneys and related matters. In response, the White 

House indicated that it will review these communications for claims of executive privilege before they are disclosed to the Judiciary Committee. Is 

an executive privilege claim by the White House appropriate? Please explain.

Answer

The reported case law in this area is somewhat murky. In my view, however, executive privilege is broad enough to cover communications to White House officials, 

including those received by such officials on non-White House e-mail accounts. For 

example, if a White House official were working from home and received work-related messages on his or her home e-mail account, then I believe such e-mail messages would fall within the scope of Executive Privilege. The same principle would, 

in my view, apply to messages received on other e-mail accounts. Therefore, depending upon the nature of the communications, I believe that the invocation of Executive Privilege by the White House would be appropriate.

109

RESPONSE TO POST-HEARING QUESTIONS FROM FREDERICK A.O. SCHWARZ, JR., 

SENIOR COUNSEL, BRENNAN CENTER FOR JUSTICE, NYU SCHOOL OF LAW


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LETTER FROM FRED F. FIELDING, COUNSEL TO THE PRESIDENT, TO THE CHAIRMAN

LEAHY, CHAIRMAN CONYERS, RANKING MEMBER SPECTER, RANKING MEMBER

SMITH, AND CONGRESSWOMAN SA ́ NCHEZ


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CONGRESSIONAL RESEARCH SERVICE MEMORANDUM ON OVERSIGHT AND EXECUTIVE

PRIVILEGE ISSUES PERTAINING TO THE MARCH 29, 2007 HEARING ON ‘‘ENSURING

EXECUTIVE BRANCH ACCOUNTABILITY’’


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PREPARED STATEMENT OF BRUCE FEIN, ON BEHALF OF

THE AMERICAN FREEDOM AGENDA


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Æ


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