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IMPLEMENTATION OF THE U.S. DEPARTMENT OF 

JUSTICE’S SPECIAL COUNSEL REGULATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

COMMERCIAL AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

FEBRUARY 26, 2008 

Serial No. 110–172 

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. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

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 

SEAN MCLAUGHLIN, Minority Chief of Staff and General 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 

FEBRUARY 26, 2008 

Page 

OPENING STATEMENT 

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

State of California, and Chairwoman, Subcommittee on Commercial and 

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

WITNESSES 

Carol Elder Bruce, Esquire, Venable, LLP, Washington, DC 

Oral Testimony ..................................................................................................... 5 

Prepared Statement ............................................................................................. 8 

Neal Katyal, Esquire, Professor, Georgetown University Law Center, Washington, DC 

Oral Testimony ..................................................................................................... 59 

Prepared Statement ............................................................................................. 61 

Lee A. Casey, Esquire, Baker and Hostetler, LLP, Washington, DC 

Oral Testimony ..................................................................................................... 92 

Prepared Statement ............................................................................................. 94 

Barry Coburn, Esquire, Coburn and Coffman, PLLC, Washington, DC 

Oral Testimony ..................................................................................................... 105 

Prepared Statement ............................................................................................. 107 

The Honorable Patrick J. Fitzgerald, United States Attorney for Northern 

District of Illinois, former Special Counsel, United States Department of 

Justice, Chicago, IL 

Oral Testimony ..................................................................................................... 128 

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 ........................................................... 3 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Answers to Post-Hearing Questions from Carol Elder Bruce, Esquire, 

Venable, LLP, Washington, DC .......................................................................... 136 

Post-Hearing Questions submitted to Neal Katyal, Esquire, Professor, Georgetown University Law Center, Washington, DC ................................................. 143 

Answers to Post-Hearing Questions from Lee A. Casey, Esquire, Baker and 

Hostetler, LLP, Washington, DC ........................................................................ 145 

Answers to Post-Hearing Questions from Barry Coburn, Esquire, Coburn 

and Coffman, PLLC, Washington, DC ............................................................... 152 

Answers to Post-Hearing Questions from the Honorable Patrick J. Fitzgerald, 

United States Attorney for Northern District of Illinois, former Special 

Counsel, United States Department of Justice, Chicago, IL ............................ 154 

Supplement to Answers to Post-Hearing Questions from the Honorable Patrick J. Fitzgerald, United States Attorney for Northern District of Illinois, 

former Special Counsel, United States Department of Justice, Chicago, 

IL ........................................................................................................................... 157 

(1) 

IMPLEMENTATION OF THE U.S. DEPARTMENT 

OF JUSTICE’S SPECIAL COUNSEL REGULATION 

TUESDAY, FEBRUARY 26, 2008 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COMMERCIAL

AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 1:50 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Linda 

Sa ́nchez (Chairwoman of the Subcommittee) presiding. 

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

Cannon, and Feeney. 

Staff present: Eric Tamarkin, Majority Counsel; Daniel Flores, 

Minority Counsel; and Adam Russell, Majority Professional Staff 

Member. 

Ms. SA ́ NCHEZ. This hearing on the Committee of the Judiciary, 

Subcommittee on Commercial and Administrative Law will now 

come to order. 

I will now recognize myself for a short statement. In response to 

the Watergate scandal and President Richard Nixon’s executive 

dismissal of independent special prosecutor Archibald Cox, the 

independent counsel provisions were originally enacted as Title VI 

of the Ethics and Government Act of 1978. 

Specifically, the special prosecutor independent counsel provisions were adopted to deal with the unusual circumstance of an inherent conflict of interest that would arise when the Attorney General and the President, while supervising the Department of Justice and Federal prosecutors, would control the investigation and 

possible prosecution of allegations of their own criminal wrongdoing or other high-level officials in their administration. 

During the nearly 21-year span of the law, 20 independent counsels were appointed at a cost of approximately $230 million to the 

American people. When the independent counsel law expired, regulations were promulgated concerning the appointment of outside 

temporary counsel. 

According to the regulations, such special counsels are to be appointed by the Attorney General to conduct investigations and possible prosecutions of certain sensitive criminal matters where the 

Department may have a conflict of interest, and where the cirVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
2 

cumstances determine that such an appointment would be in the 

public interest. 

These regulations make clear that the special counsel should 

come from outside of the Government. They also provide that at 

the conclusion of his or her work, the special counsel must produce 

a confidential report explaining the prosecutions or the decision not 

to prosecute. 

Additionally, at the conclusion of the investigation, the Attorney 

General is obligated to notify the Chairman and Ranking minority 

Members of the House and Senate Judiciary Committee. This notification is essential if Congress is to fulfill its oversight duties and 

its constitutional obligation to provide a check on executive branch 

action. 

Recently, these special counsel regulations have been all but ignored. Despite several opportunities to do so, Attorneys General in 

the Bush administration have yet to utilize the special counsel regulations. In the CIA leak matter, U.S. Attorney Patrick Fitzgerald 

was given the title of special counsel, but did not come from outside 

of Government and was not required to abide by the Department’s 

special counsel regulations. 

The practical implication of this arrangement was that Mr. Fitzgerald had significantly more power and less supervision than a 

special counsel under the regulation. Similarly, with regard to the 

detainee interrogation videotapes investigation, Attorney General 

Mukasey has appointed Assistant U.S. Attorney John Durham to 

be the acting U.S. attorney for the Eastern District of Virginia. 

While Mr. Durham’s qualifications and reputation are admirable, 

as are Mr. Fitzgerald’s, I remain concerned about potential conflicts 

of interest and a lack of procedural safeguards in place for his appointment. I am also concerned about the scope of Mr. Durham’s 

investigation. The Attorney General has indicated that Mr. Durham will investigate the destruction of the tapes. However, he has 

made clear that Mr. Durham will not investigate the activities recorded on the tapes, including the use of waterboarding. 

Because of these concerns, I joined 18 of my colleagues on the Judiciary Committee in a letter to Attorney General Mukasey requesting that he appoint an outside special counsel in the videotapes case. To date, we have yet to receive a response to our request. 

I am very interested in whether the special counsel regulations 

are functioning properly, and whether the Department should revise the regulations in light of Mr. Fitzgerald’s experience. I am 

also interested in whether we should revisit the independent counsel statute, or whether we should consider a new legislative approach that strikes the proper balance of independence and accountability. 

Although the Subcommittee examined the expiring independent 

counsel statute and newly promulgated special counsel regulations 

in several hearings during the 106th Congress, this is the first 

hearing that I am aware of that the Subcommittee has conducted 

regarding oversight of the implementation of the special counsel 

regulations. 

Accordingly, I am very much looking forward to hearing from our 

witnesses on today’s panel. 

3 

At this time I would now like to recognize my colleague Mr. Cannon, the distinguished Ranking Member of the Subcommittee, for 

his opening statement. 

Mr. CANNON. Thank you, Madam Chair. This is, of course, a very 

complicated issue that has been dealt with in many different ways 

over time. I look forward to hearing our witnesses, and given the 

fact that we have votes coming up, I would ask unanimous consent 

that my opening statement be inserted into the record. 

Ms. SA ́ NCHEZ. Without objection, so ordered. 

[The prepared statement of Mr. Cannon follows:] 

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

Thank you Madame Chair and welcome to our witnesses. 

I would like offer some perspective before we start. This subcommittee spent the 

better part of a year looking into the U.S. Attorneys’ matter. The purported object 

of that investigation was to assure that the Department of Justice was ‘‘independent’’ of undue influence by Administration politics. 

I don’t think the predicates for the doubts about the Department’s independence 

were true, but the U.S. Attorneys’ investigation did bring us a new Attorney General and a new Deputy Attorney General who is waiting for Senate confirmation. 

And their independence is not subject to serious question. 

So when the news of the destruction of CIA tapes broke, I would have thought 

we might hear the majority cry ‘‘We have an independent DOJ to investigate this!’’ 

But we didn’t. 

Instead we heard we can’t trust the new Attorney General and the Department 

of Justice to investigate and we have to have a special counsel, an outsider. 

The disconnect is dizzying because layering the Department of Justice with political charges does nothing for the independence, confidence and reputation of the Department. 

I fear we may be off to the same political start to this session as we were with 

the last, but I hope I am wrong. 

In order to avoid the political temptation presented by this hearing the fair questions will be to extract information needed for oversight and will focus on the Special Counsel Regulations that replaced the old Independent Counsel Act—a piece of 

legislation that a bipartisan list of notables from Chris Dodd to Ken Starr, Cass 

Sunstein to Robert Bork, said had to be scrapped. 

I look forward to learning more about whether the experience thus far under the 

Special Counsel regulations shows if there’s anything really wrong with the regulations. 

For example, whether infrequent decisions to appoint special counsels means the 

regulations aren’t working or instead simply that hard-working career employees 

and appointed officials have routinely proved themselves capable of investigating politically charged cases, just as we expect them to be. 

And, consistent with that, whether the Department’s decision to investigate the 

CIA tapes matter itself—as it has investigated similar matters for over a century— 

was the right one. 

I look forward to the testimony and yield back the remainder of my time. 

Ms. SA ́ NCHEZ. And I appreciate your attempt to try to move this 

along. Without objection, other Members’ opening statements will 

be included in the record; and without objection, the Chair will be 

authorized to declare a recess of the hearing at any point. 

I am now pleased to introduce the first witness panel for today’s 

hearing. Our first witness is Carol Elder Bruce, a partner at 

Venable, LLP. Carol Elder Bruce is a litigator whose practice focuses on white-collar criminal defense and complex civil litigation. 

She represents individuals and corporations in criminal grand jury 

investigations and in criminal and civil trials and appeals. She also 

represents clients in hearings and proceedings before the U.S. 

House of Representatives, the United States Senate, and adminisVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
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trative proceedings within Federal agencies and in the conduct of 

internal corporate investigations. 

Ms. Bruce served as the independent counsel appointed by a special panel of the U.S. Court of Appeals for the D.C. Circuit to investigate matters concerning Interior Secretary Bruce Babbitt. She 

previously served as the deputy independent counsel in the investigation of matters concerning Attorney General Edwin Meese, and 

also was assistant United States Attorney for the District of Columbia for 10 years, where she was lead counsel in over 115 jury 

trials, and managed a grand jury presentation of more than 100 

additional case. 

Ms. Bruce is a fellow of the American College of Trial Lawyers, 

and she has completed a 2-year tenure as chair of the college’s 

International Committee. She is also a vice-chair of the white-collar 

committee of the National Association of Criminal Defense Lawyers. She serves on the honorary board of the Innocence Project of 

the national capital region and on the George Washington University Law School dean’s board of advisors. Welcome to you, Ms. 

Bruce. 

Our second witness is Neal Katyal. Did I pronounce that correctly? Professor Katyal is a professor at Georgetown University 

Law School. He is an expert in matters of constitutional law, particularly the role of the President and Congress in time of war, and 

theories of constitutional interpretation. His other primary academic interests are criminal law and education law. 

Professor Katyal previously served as National Security Advisor 

in the U.S. Justice Department. He also served as Vice President 

Al Gore’s co-counsel in the Supreme Court election dispute of 2000, 

and represented the deans of most major private law schools in the 

landmark University of Michigan affirmative action case, Grutter v. 

Bollinger. 

Professor Katyal clerked for Supreme Court Justice Stephen 

Breyer as well as Judge Guido Calabresi of the U.S. Court of Appeals. Professor Katyal was named Lawyer of the Year in 2006 by 

Lawyers USA, and has also been awarded the town of Salem, Massachusetts prize for 2007. He has appeared on several major American nightly news programs as well as other venues such as the 

Colbert Report—a very brave man indeed. 

Our third witness is Lee Casey, a partner at Baker & Hostetler, 

LLP. Mr. Casey focuses on Federal, environmental, constitutional, 

elections, and regulatory law issues, as well as international and 

humanitarian law. His practice includes Federal, district, and appellate court litigation, as well as matters before Federal agencies. 

Prior to joining Baker & Hostetler, Mr. Casey was an associate 

with Hunton & Williams, practicing in international, environmental, and constitutional law. From 1986 to 1993, Mr. Casey 

served in various capacities in the Federal Government, including 

the Office of Legal Counsel and the Office of Legal Policy at the 

U.S. Department of Justice. In addition, from 1990 to 1992, Mr. 

Casey served as Deputy Associate General Counsel at the U.S. Department of Energy. 

Before joining the Government in 1986, Mr. Casey was an associate in the Los Angeles firm of Mitchell Silberberg & Knupp, pracVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
5 

ticing in the litigation section with an emphasis on copyright, contract, and first amendment issues. 

From 1982 to 1984 he practiced at the Detroit firm of Dykema 

Gossett, focusing on corporate securities, commercial, and intellectual property litigation. 

From 1984 to 1985, Mr. Casey served as law clerk to the Honorable Alex Kozinski, then Chief Judge of the United States Claims 

Court. 

Our final witness on our first panel is Barry Coburn. Mr. Coburn 

has been litigating complex criminal and civil cases for over 25 

years. His experience encompasses several years with the United 

States Department of Justice Antitrust Division, where he served 

as the Special Assistant in the Office of Operations. Additionally, 

he served 4 years in the United States Attorney’s Office for the 

District of Columbia, and has been in private practice for 18 years. 

Mr. Coburn is a fellow of the American College of Trial Lawyers, 

and is a member of the District of Columbia Committee and Access 

to Justice Committee. He has taught continuing legal education 

courses in the areas of trial practice, the Federal sentencing guidelines, witness issues, securities fraud, and other subjects sponsored 

by the American Bar Association, the District of Columbia Bar, the 

American College of Trial Lawyers, and other entities. 

Mr. Coburn has guest-taught at Georgetown University, George 

Washington University, and the University of Virginia law schools, 

and at the Department of Justice’s National Advocacy Center, and 

authored numerous articles. I want to thank you all for your willingness to participate in today’s hearing. 

Without objection, your written statements will be placed into 

the record in their entirety, and we are going to ask that you 

please limit your oral remarks to 5 minutes. You will note that we 

have a lighting system there on the desk. When your time begins 

you will see a green light start; when you are 4 minutes into your 

time you will get the yellow warning light that you have a minute 

left; and alas, when the light turns red your time has expired. If 

you are in the middle of a sentence or a final thought we will, of 

course, allow you to complete that thought before we move on to 

our next witness. 

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

the 5-minute limit. With that made explicit, I would invite Ms. 

Bruce to please proceed with her testimony. 

TESTIMONY OF CAROL ELDER BRUCE, ESQUIRE, 

VENABLE, LLP, WASHINGTON, DC 

Ms. BRUCE. Thank you very much, Madam Chair. Good afternoon, Madam Chair, Mr. Cannon, and other Members of the Committee. 

We probably would not be having this conversation today about 

whether, when, and how a special counsel should be appointed to 

conduct an investigation of possible criminal activity by public officials, if it were not for the latest decision of our new Attorney General to assign a Federal prosecutor, and not an outside special 

counsel, to the task of investigating whether any CIA or other Government officials committed obstruction of justice by destroying 

6 

videotapes of certain interrogation sessions involving 

waterboarding of certain detainees who were suspected al-Qaeda 

operatives. 

The prosecutor selected, John Durham of Connecticut, apparently 

has an impeccable reputation as an honest, aggressive, no-nonsense 

investigator and prosecutor. He has quickly assembled a small but 

impressive team of current Federal prosecutors from Boston. He 

has been given the full authority of the U.S. attorney, for his appointment in this matter, as the acting U.S. attorney for the Eastern District of Virginia. This appointment has been applauded my 

many Members of Congress, newspaper editors, and legal commentators. 

With respect, though, the appointment is flawed because Mr. 

Durham must conduct his investigation within the usual reporting 

and approval processes of the very department that was so deeply 

involved in supporting and sanctioning the waterboarding that took 

place, and that was videotaped by Government agents—the very 

department that apparently later gave the CIA advice about 

whether they must preserve the videotapes. 

This is an extraordinarily important obstruction of justice investigation that should be handled by a special prosecutor outside of 

the usual reporting and approval channels within the Department 

of Justice. 

Three things I would ask the Committee to consider as you deliberate on the question of whether, what, and how to enact new laws 

with respect to special counsel regulations. I believe it is clear, 

from internal Government memoranda and public statements, that 

high-level Justice Department and White House officials ignored 

the law, common sense, and decency to justify torturing terror suspects in order to extract confessions and intelligence from them. 

These approving officials included, among others, according to public accounts, the Vice President, his chief lawyer, David Addington, 

counsel to the President Alberto Gonzales, Office of Legal Counsel 

Chief Jay Bybee, who is now a Ninth Circuit judge, and his Deputy, John Yoo. 

Second, it is also clear from public accounts that experienced CIA 

officials had doubts about the wisdom or effectiveness of torturing 

detainees. From a practical perspective, they questioned the value 

of the information obtained from enhanced interrogation techniques. After all, a man will say anything to stop being tortured, 

and certainly will say whatever he thinks his interrogators want 

him to say. 

And many CIA interrogators worry that if we engage in such extreme practices, how can we complain when foreign tyrants torture 

our soldiers? Related to these concerns is the moral perspective— 

a perspective expressed so eloquently by Senator McCain—that it 

is not about who they are, it is about who we are. 

But these well-founded reservations in the CIA were overridden 

by forceful White House pronouncements sanctioning controversial 

enhanced interrogation practices and by Justice Department 

memos solicited by and written to the then Counsel for the President, Alberto Gonzales. 

We just learned recently that the Office of Professional Responsibility of the Justice Department has been reviewing the ethical imVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
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plications of these Justice Department memos for a number of 

years now. 

Third, and finally, the pubic records already are full of reports 

of the countless meetings CIA officials, including the former head 

of the Clandestine Services, Jose Rodriguez, the man who apparently gave the order to destroy the tapes, had with high-ranking 

lawyers at the Justice Department, the White House, the CIA, 

among others—places to get advice and instructions about whether 

the recordings could be destroyed. These meetings all took place 

while court cases were progressing in which evidence preservation 

orders had been issued. 

The 9/11 Commission was seeking evidence about the interrogations, and Congress was reviewing detainee treatment policies. 

With this context and this background, this is a case in which the 

prosecutor investigating the matter should be independent from 

the Justice Department’s reporting and approval process. As things 

presently stand, Mr. Durham is not independent. 

I respectfully submit that the Attorney General should appoint 

a new outside special prosecutor under the same provisions of the 

United States Code that Patrick Fitzgerald was appointed by acting Attorney General Comey—I see my light is expired. I just have 

a few sentences—— 

Ms. SA ́ NCHEZ. Please go ahead and finish your thought. 

Ms. BRUCE [continuing]. In the Valerie Plame matter in 2003, 

and Robert Fiske was appointed 9 years earlier under the same 

provision by Attorney General Reno in the Whitewater investigation. I further submit that the special counsel should be a private 

lawyer, and not an employee of the Justice Department. Thank 

you. 

[The prepared statement of Ms. Bruce follows:] 

8 

PREPARED STATEMENT OF CAROL ELDER BRUCE


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Ms. SA ́ NCHEZ. Thank you so much for your testimony, Ms. Bruce. 

At this time I would invite Professor Katyal to provide us with his 

testimony. 

TESTIMONY OF NEAL KATYAL, ESQUIRE, PROFESSOR, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 

Mr. KATYAL. Thank you, Chairwoman Sa ́nchez, Representative 

Cannon, and Members of the Subcommittee, for inviting me here 

today and for this hearing, which has been a long time in coming. 

The special counsel regulations derive from two principles fundamental since our Nation’s founding: accountability, and the need to 

take care that the laws be faithfully executed. 

My job at the Justice Department, from 1998 to 1999, involved 

running a department-wide group to examine the Independent 

Counsel Act. Attorney General Reno then tasked me with drafting 

the Justice Department regulations that would replace this act. 

After a wide-ranging consultation, both within the Department and 

with this Committee and others in Congress, the special counsel 

regulations became effective in June 1999, when the Independent 

Counsel Act lapsed. 

You have asked me here today to discuss the development of 

these regulations, and I have therefore prepared an extensive 

statement that walks the Committee through each aspect of the 

regulations, as well as discussing the recent appointments of Senator Danforth and Patrick Fitzgerald. 

In the remaining minutes, I will discuss the recent investigation 

regarding the CIA’s alleged destruction of the videotapes. I believe 

that the Attorney General’s recent testimony stating that the Justice Department will not investigate the underlying conduct on the 

destroyed tapes, including confirmed instances of waterboarding, 

highlights a strong possible need for a special counsel. 

The Attorney General told this Committee that waterboarding 

‘‘cannot possibly be the subject of a criminal Justice Department investigation because that would mean the same department that authorized the program would now consider prosecuting somebody 

who followed that advice.’’ This statement reflects the complicated 

institutional dynamics of this investigation—one in which the department must investigate not just the CIA, but also itself. 

This underscores why a special counsel may be appropriate. Attorney General Mukasey took the position that he did not want to 

investigate waterboarding because the interrogators relied, in good 

faith, on legal opinions drafted by the Office of Legal Counsel in 

2002. This position may very well be justified, depending on what 

the OLC opinions say, but it is literally impossible to assess this 

claim without seeing the opinions themselves. 

I deeply believe the executive branch should have a zone of secrecy to operate, and that legal opinions that disclose the existence 

of secret war-fighting techniques should not be publicly disclosed 

except in extreme circumstances; but that claim cannot apply to 

waterboarding. After all, the OLC opinions on which the Attorney 

General claims officials relied have been withdrawn. 

The use of this technique has also been recently confirmed by our 

Nation’s top officials in recent sworn testimony. And most imporVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
60 

tantly, the Attorney General and the director of the CIA have both 

told this Committee that America is not now using waterboarding. 

Given these facts and the important legislative interest in the 

issue, the Attorney General should, at a minimum, disclose the 

waterboarding opinions to this Committee. The Administration has 

elevated these OLC legal opinions into a status akin to law, using 

them as definitive interpretations of this Congress’ work product. 

Just as our founders would not have tolerated secret laws made by 

Congress, they would not have tolerated a system of secret law 

made by the executive branch, particularly on an issue that is of 

utmost importance to our Nation’s character. 

The Attorney General’s position, evidently, is that the law made 

by his department is so secret that even this body, the Congress 

of the United States, a body that article 1 of our Constitution vests 

with responsibility for making law, cannot be told about it. If the 

Attorney General does not disclose these opinions, he will essentially be asking Congress to let him shut down a potential criminal 

investigation on the basis of a putative good faith defense based on 

secret opinions that Congress has never seen. 

If the Attorney General refuses to disclose these opinions to appropriate individuals in Congress, then Congress may very well be 

justified in questioning his conclusions about the good faith defense, and may instead insist on the appointment of a special counsel. 

Regardless of what happens with the OLC opinions, at a minimum the reporting requirements to Congress that are embodied in 

the special counsel regulations should be applied to the tapes investigation immediately, and my statement goes through the reasons why. 

In sum, given Attorney General Mukasey’s well-deserved reputation for independence and honesty, I do not believe interference is 

likely. But our Government was founded on the idea that checks 

and balances must be laced into the system to guard against mistakes by well-meaning individuals. Applying the modest reporting 

requirements in the special counsel regulations will reassure the 

public that Congress will be informed about any interference with 

such a sensitive investigation. 

As such, if Mr. Durham’s investigation finds no crime has occurred, the reporting requirement will shield the Administration 

from accusations of impropriety. And if, as I predict, no interference by the Attorney General takes place, a reporting requirement to Congress will have little effect outside of the positive 

precedent it will set for other extremely sensitive investigations 

with future Attorneys General. 

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PREPARED STATEMENT OF NEAL KATYAL


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Ms. SA ́ NCHEZ. Thank you, Professor. Your time has expired. I 

would now invite Mr. Casey to please begin his testimony. 

TESTIMONY OF LEE A. CASEY, ESQUIRE, 

BAKER AND HOSTETLER, LLP, WASHINGTON, DC 

Mr. CASEY. Thank you, Madam Chairwoman, and thank you for 

inviting me today to address the Committee on this important subject. And I would also like to note that my remarks here are delivered on my own behalf, and not on behalf of my law firm or any 

of our clients. 

In 1940, then Attorney General Robert Jackson warned that the 

greatest potential for prosecutorial abuse exists when individuals, 

rather than offenses, are targeted for investigation. If proof of this 

were needed, it was provided nearly 40 years later with the enactment of the independent counsel statute. 

An ill-judged reaction to the Watergate affair, by its very nature 

the independent counsel law required a prosecutorial focus on individuals and not on offenses. Although that law was upheld against 

constitutional attack in Morrison v. Olsen, Justice Antonin Scalia 

challenged the majority’s rule and reasoning in what must surely 

be rated one of the most prescient judicial dissents in our history. 

Noting that issues like those raised by the independent counsel 

statute frequently ‘‘will come before the Court clad, so to speak, in 

sheep’s clothing,’’ he made clear that ‘‘this wolf comes as a wolf.’’ 

As he explained later in his opinion, putting a finger precisely on 

that law’s problematic core: ‘‘Nothing is so politically effective as 

the ability to charge that one’s opponent and his associates are not 

merely wrongheaded, naive, ineffective, but in all probability, 

crooks. 

And nothing so effectively gives an appearance of validity to such 

charges as a Justice Department investigation and, even better, 

prosecution.’’ Throughout the 1980’s and 1990’s, a series of relentless independent counsel investigations overwhelmed successive 

presidential Administrations. 

The independent counsel law expired in 1999, and it was not reauthorized. If the special counsel regulations the Subcommittee is 

today considering have one great and indisputable virtue, it is that 

they are not the independent counsel statute. 

Among their clear improvements are the following: They make 

clear that appointment of a special counsel should be an extraordinary act reserved for extraordinary circumstances where the public interest demands it, not a foregone conclusion simply because a 

high level official has been accused of criminal wrongdoing. 

Appointment of a special counsel is truly within the Attorney 

General’s discretion. Although a special counsel may hire staff, the 

regulation’s clear import is that he or she should first and foremost 

depend on the Justice Department’s existing staff and resources, 

including its experienced career prosecutors. 

The special counsel’s jurisdiction is established by the Attorney 

General, and only the Attorney General can expand that jurisdiction. The special counsel’s annual budget is subject to review and 

approval by the Attorney General and, on an annual basis, the Attorney General must determine whether the investigation should 

continue. 

93 

Perhaps most significantly of all, the regulations require that the 

special counsel comply with ‘‘the rules, regulations and procedures 

and policies of the Department of Justice,’’ and permit his or her 

removal for failing to follow those policies. A special counsel appointed under these rules is far more effectively subject to the Justice Department’s overall resource constraints and perspective. It is 

that perspective, where consideration must be given to the importance of pursuing a particular investigation in the context of the 

department’s other work, that can act as a most effective check on 

the potential for prosecutorial abuse. 

With regard to the most recent calls for appointment of a special 

counsel to investigate the 2005 destruction of CIA tapes showing 

the interrogation of high-level Al Qaeda prisoners, there is no 

doubt that Attorney General Mukasey has made the right decision 

in not appointing a special counsel. 

By designating an experienced career prosecutor to act in the 

matter, he has achieved the very kind of accommodation that is 

contemplated by 28 CFR 600.2, allowing the Attorney General to 

take ‘‘appropriate steps to mitigate any conflicts of interest such as 

recusal of particular officials.’’ No individual should be above the 

law. 

Neither, however, should any individual be subject to its particular prosecutorial focus merely because he or she holds public office. Allegations of criminal wrongdoing by Federal officials must 

be investigated, but in all but the most extraordinary of circumstances they should be pursued through the normal investigative and prosecutorial processes of the United States Department 

of Justice. Thank you. 

[The prepared statement of Mr. Casey follows:] 

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PREPARED STATEMENT OF LEE A. CASEY


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Ms. SA ́ NCHEZ. Thank you, Mr. Casey. And I would invite Mr. 

Coburn to provide his testimony. 

TESTIMONY OF BARRY COBURN, ESQUIRE, 

COBURN AND COFFMAN, PLLC, WASHINGTON, DC 

Mr. COBURN. Thank you so much, Madam Chairwoman, and Mr. 

Cannon, and other Members of the Subcommittee. I am very honored to be asked to address you on this matter today. 

I submit that what the Committee, or Subcommittee, is grappling with here, essentially, is a fundamental structural constitutional issue, which is a function—an inevitable function, if you 

will—of the fact that the executive branch, under the Constitution, 

is charged with the task of prosecuting Federal criminal offenses. 

Hence, when the problem arises that potential Federal criminal 

offense may exist that has been committed, or allegedly committed, 

or possibly committed by someone within the executive branch, perhaps a key person in the executive branch, or, alternatively, the offense at issue is one in which the executive branch has a direct policy-related or personal interest, that is a problem which is not—in 

the most fundamental way, it is not addressed in the Constitution. 

And in some sense, it is not a perfectly soluble problem at all. 

And hence, my submission to the Subcommittee is that the policy 

response to this problem—and it is not an easy problem at all, it 

is highly ambiguous—but it has fluctuated like a pendulum between extremes. And the extremes that have been adopted have 

been, essentially, a function of sort of the most recent stimulus, 

which is to say, most recent problem that has been perceived as a 

result of an attempt to deal with this kind of a problem, this kind 

of a prosecutorial imperative. 

And the most recent problem, or set of problems, that have engendered, essentially, the response that we are seeing today are 

the ones that my colleague, Mr. Casey, was just alluding to. There 

is a perception that, pursuant to the Independent Counsel Act and 

the Independent Counsel Reauthorization Act of 1994, that the 

number, at least, of the particular independent counsel who fulfilled that engaged in excesses of one kind or another. 

I am not here to suggest to this Subcommittee that the answer 

to the problem that was posed by the Chairperson in her opening 

remarks is some sort of a wholesale re-adoption of the Independent 

Counsel Act. I have the distinction, if it is indeed a distinction at 

all, I believe, of having actually prosecuted in a courtroom more 

independent counsel cases than anybody else. 

And from my own experience as part of the In re Espy investigation, and also a very brief experience as an assistant, or deputy 

independent counsel, a—person in Ms. Bruce’s In re Babbitt investigation, but particularly with respect to the former investigation, 

I can tell the Subcommittee that, I mean, there were some very significant issues, some very significant problems that were posed by 

the Independent Counsel Act. 

But the answer to the problem here, I submit, is not just to look 

at that set of problems, because it is my submission to the Subcommittee that a much more serious set of problems, and a much 

more fundamental and critical set of problems, arose earlier, in 

1973—particularly October 1973, which is what engendered the 

106 

Independent Counsel Act to begin with. And that, essentially, is 

the phenomenon that the Chairwoman alluded to in her opening 

remarks of the Saturday Night Massacre. 

I think we all have a vivid recollection of the events of October 

19th and 20th, 1973, when Archibald Cox, Professor from Harvard 

Law School who was conducting the Watergate investigation at 

that time, sought the White House tapes, and the Stennis Compromise was proposed; and he quite rightly rejected that compromise, and then a demand was made that he be fired. I see that 

my time is expiring quickly. 

The problem that was engendered that is exemplified by the Saturday Night Massacre, and even before that in the early 1950’s by 

the tax scandals—the problem of potential political interference 

with an investigation of this type is of critical, just fundamental 

constitutional importance. And I submit that it receives short shrift 

when one says that the answer to this problem is simply to have 

a line person within the Department of Justice conduct a highly 

sensitive investigation like this, because there is an inherent and 

essential conflict of interest in that solution. 

That cannot be the answer. A much better answer is the appointment of a special counsel, or some other solution that the Subcommittee, or Committee, might explore that might take account of 

some of the issues that arose earlier. 

Thank you very much. I don’t know if that means my time has 

expired. [Laughter.] 

[The prepared statement of Mr. Coburn follows:] 

107 

PREPARED STATEMENT OF BARRY COBURN


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Ms. SA ́ NCHEZ. No, the red light rules here. That is really the signal that we are going to have votes across the way. In the effort 

to try to move this hearing along, I am going to go ahead and begin 

the round of questioning, and I will begin with myself and recognize myself for 5 minutes. After that, we will most likely need to 

head across the street to vote, but we will return to ask further 

questions of this panel and then we will let you go. But we will try 

to get this done as quickly as possible. 

My first question is for Ms. Bruce. In your written testimony, you 

emphasize the importance of a requirement that a special counsel 

draw up the full report for the Attorney General explaining the investigation and the decision of whether or not to prosecute. Why 

do you think that a final report is so important? 

Ms. BRUCE [continuing]. Madam Chair, so that there is a historical record. And I suggested it be directed to the Attorney General 

and to no one else because I do agree with some of what has been 

said today, that I don’t think reviving the Independent Counsel 

Statute and the regime where there was a three-judge panel who 

appointed independent counsel is a wise move. 

Instead, we should leave accountability with the Justice Department. But most prosecutors, and I was one as you indicated earlier 

for 10 years, when they decide not to prosecute a case, have to file 

a declination memo with their superiors. Usually those are one or 

two-page memos. But in a very significant public corruption, or 

public official investigation, such as the one that is being conducted 

now by Mr. Durham, there should be a full report as to what their 

findings were even if there is no prosecution. 

Ms. SA ́ NCHEZ. With respect to the issue of accountability, I mean, 

then, do you think it would not be important to also allow that report be made available to Congress? Do you think it should solely 

rest within the Department of Justice? 

Ms. BRUCE. It should be the discretion of the Attorney General. 

I say the discretion of the Attorney General because I really do believe that we should try, with any new set of regulations, to, as 

much as possible, give responsibility—principle responsibility—to 

the Justice Department, to ensure that the laws have been faithfully executed. 

I do believe that there is shared responsibility with Congress, 

and so perhaps a summary report should be submitted to Congress 

that would summarize the reasons why. But I am real mindful, 

having served as a deputy and an independent counsel of the privacy issues with respect to individuals. If I am subject to an independent counsel, special counsel investigation, I don’t want a whole 

story out there that I don’t have a forum to respond to in the public 

domain. 

Ms. SA ́ NCHEZ. I understand. Thank you. 

Professor Katyal, in testimony before this Committee, and you alluded to it in your oral remarks, Attorney General Mukasey testified that waterboarding ‘‘cannot possibly be the subject of a criminal Justice Department investigation because that would mean 

that the same Department that authorized the program would now 

consider prosecuting somebody who followed that advice.’’ Do you 

believe that Mr. Mukasey’s testimony acknowledges that the JusVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
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tice Department has a conflict of interest with respect to the CIA 

tapes investigation? 

Mr. KATYAL. I do. And I think that if he does not disclose the 

tapes, the case for a special—disclose, excuse me, the written opinions by the Office of Legal Counsel, the case for a special counsel 

will become very strong indeed. I mean, after all, these legal opinions—the Office of Legal Counsel opinions—evidently say that 

waterboarding is permissible, back in 2002; and they have been 

withdrawn. 

Now those are opinions about your law, the law that you wrote 

in Congress. They are defining the law. I didn’t write them; Ms. 

Bruce didn’t write them. You wrote them. And the Attorney General is saying you can’t even see them. And that strikes me as a 

very, very dangerous road to go down. He is asking this Committee 

to say, ‘‘Trust me, not just about the investigation, but also about 

the underlying legal opinions.’’ That, I think—— 

Ms. SA ́ NCHEZ. I would love to; I have limited amount of time and 

want to—— 

Mr. CANNON. I would certainly ask unanimous content to have 

your—— 

Ms. SA ́ NCHEZ. Okay, then I will yield to the gentleman. 

Mr. CANNON. I am trying to follow your discussion, Mr. Katyal, 

and I think the point was well-made here. But you are saying that 

we should have a special counsel to investigate the decision not to 

prosecute based upon the opinions—are you saying that some Committee in this body of Congress should review those documents? 

Mr. KATYAL. I am saying the latter, sir, that the Attorney General has said that he won’t prosecute the underlying conduct on the 

tapes—the waterboarding—because of the inherent conflict of interest, that the department is essentially investigating itself if they 

investigate waterboarding—— 

Mr. CANNON. No, no. It is not saying that they are investigating 

themselves. It is saying that they would be investigating something 

that they had decided before the waterboarding was an acceptable 

activity. 

Mr. KATYAL. Exactly. 

Mr. CANNON. So, why could that be subject to a special prosecutor, as opposed to oversight of what the content of those opinions were? 

Mr. KATYAL. I think it should be the subject of oversight. I am 

not saying that the Attorney General’s decision to use a 

waterboarding investigation is itself grounds for a special counsel. 

What I am saying is, there is a very strong case to be made that 

the conduct on the tapes may have been criminal, and the only way 

to understand whether that conduct was criminal is to see those 

underlying legal opinions. And the only way to do that, I think, is 

for you to see them. 

Mr. CANNON. Thank you. That would be not a special counsel, 

but an oversight action by this Congress—— 

Mr. CANNON [continuing]. That I support vastly. And by the way, 

Madam Chair, I yield back. But first let me ask unanimous consent 

that the Chair be granted an additional 2 minutes. 

Ms. SA ́ NCHEZ. I appreciate that. If there is no objection, I will 

continue with my round of questioning. I think, Professor Katyal, 

120 

you have touched on what, as a Member of the Judiciary Committee, we find very troubling. It is this idea of: Trust us, this is 

what these, you know, opinions said, and that it is legal. 

And therefore, because there was sort of, if you will, a detrimental reliance, people cannot be prosecuted for that. I have a 

hard time swallowing that, the, ‘‘Trust us,’’ you know, and no oversight, no ability to look into the matter further than to just accept 

it at face value. And I, as a Member of Congress, and particularly 

a Member of the Judiciary Committee, find that extremely troubling. 

Mr. Coburn, in your written testimony you indicate that there 

are consequences for failing to appoint a special counsel in the CIA 

tapes matter. And I would like for you to please describe some of 

the consequences that this Committee should be concerned with. 

Mr. COBURN. Well absolutely, Madam Chairwoman. Thank you 

so much for asking me that question. The principle consequence, I 

think, is one that if we all think back to the date that I mentioned 

in my opening remarks, October 20, 1973, I think a lot of us—all 

of us, I would submit—have probably, many of us on both sides of 

the aisle, had this just sort of awful sinking feeling at the time that 

Professor Cox demanded access to what was obviously just sort of 

the most critical evidence—audiotapes, in that case, not videotapes 

in this case—that were made in the privacy of the Oval Office. And 

he was essentially stonewalled and then fired. 

And, I mean, that really was, essentially, I think just sort of an 

unimaginable act. On which, I think, shaped a lot of people’s perceptions about Government. And I think it was, frankly, a wonderful thing for the republic, that it responded the way that it did, and 

that the tapes ultimately did come to light, and that Elliot Richardson, I think, very much to his credit, who was the Attorney General 

at the time, resigned in protest, as did his deputy. 

And eventually, of course, as we all know, the disclosure of those 

tapes led inevitably, just essentially in lockstep fashion, to President Nixon’s resignation. But here we have a situation which, I 

would submit, is very similar. 

And these situations arise periodically; and it doesn’t, frankly, 

matter whether we are talking about a Democratic administration 

or a Republican administration. This kind of situation is inevitable, 

that there is going to be alleged misconduct within the context of 

the Administration—potentially criminal misconduct which has to 

be investigated—and it is a matter of fundamental public confidence in the process. 

It is a matter of deep fundamental fairness. It is a matter of fairness to each and every individual who has ever, him or herself, 

been the subject of a criminal inquiry. It is just the most basic kind 

of right, as opposed to wrong, that an investigation like this be conducted in a full, fair, unfettered fashion, without conflict of interests. 

And the kinds of conflict of interest that exist here, with respect 

to the alleged destruction of the CIA tapes, are just obvious. They 

are as plain as—I mean, anyone can see them, and they have been 

alluded to by my co-panelists, and the Administration’s obviously 

kind of staked out as clear a position as it possibly could, with respect to this issue. 

121 

And so for the Administration, essentially, via the Department of 

Justice, and particularly given the reporting scheme that we have 

for Mr. Durham, where he has to report to the deputy Attorney 

General, he has to—I mean, if you think about the implications of 

this, you know, Mr. Durham, before he essentially does anything— 

before he issues a subpoena, before he seeks an indictment, before 

he does anything of consequence in this investigation, he must seek 

the approval of a political appointee within the Department of Justice. 

That is grossly unacceptable, and what it does, just to respond 

directly to the Chairwoman’s question, is it leads to a crisis of confidence. And it leads to a deep-seated sense of cynicism within the 

populous. And as I alluded to in my written testimony, I mean, the 

signs of this kind of cynicism—the same sort of cynicism that we 

saw during the Watergate era—are already, you know, they are 

particularly evident in the Internet. I mean, the various entities 

within the Internet: Salon and various other Web sites that I referred to, I mean, you know, the concerns—the kind of deep-seated, 

really, I would submit, not particularly partisan sort of concerns, 

but just fairness-related concerns—as to whether or not a real, unfettered, fair, unbiased investigation will be done here, as to this 

alleged criminal misconduct, is just rife. 

It is obvious. And I submit it poses a very serious problem for 

all of us. 

Ms. SA ́ NCHEZ. Thank you, Mr. Coburn. We have been summoned 

for votes, so we will stand in recess. 

[Recess.] 

Ms. SA ́ NCHEZ. I want to welcome everybody back, and again I 

want to apologize for the schedule that has kept you here well beyond, I am sure, when you imagined you would be. Since I finished 

my round of questioning, at this time I would like to recognize my 

Ranking Member for 5 minutes of questions. Mr. Cannon? 

Mr. CANNON. Thank you, Madam Chair. It is odd to break such 

an intense discussion for so long, and then come back and pick up 

where we were. I can’t remember where we were. I will have to 

rely on my notes. 

I wanted to thank both Mr. Casey and Mr. Coburn, who I 

thought—this is a complicated issue. We have done the rounds on 

this, historically, and what we want to do is come down in the right 

spot. And that may not be a perfect spot, I think, Mr. Coburn, as 

you pointed out, there probably isn’t a perfect solution to this issue, 

but it is an issue that deserves some thoughtful attention. I appreciate that. 

On the other hand, while we have very esteemed witnesses 

across the board, I couldn’t help thinking of the term Jeremiad, the 

difference being—that derives from the Old Testament prophet 

Jeremiah, whose intense expressions of concern about society were 

subsequently vindicated. 

And as I listen to the testimony, I couldn’t help but wonder what 

we are actually doing here, in this; and so I pulled out the memorandum for the hearing, which I have here someplace, yes. And 

what we are talking about is the—in light of the Bush administration’s reluctance to appoint special counsels, under the regulations 

122 

members of the CAL Subcommittee may consider whether legislation in this area is appropriate. 

And what I have heard is that the Administration’s bad. And I 

am not sure, after some questioning, and I appreciate the Chair’s 

indulgence in asking a clarifying question earlier, about what the 

bad is, I am not sure where we are is that bad. 

And what I am actually really interested in, here, is: What 

should we do with legislation to improve the regulations, or the law 

under which we are currently doing special counsels? 

And I take it, Mr. Coburn and Mr. Casey, you recognize the complexities of the system and you have not suggested—I don’t think 

you have suggested—ways to improve current law. Do either of you 

have suggestions, or do you think that where we are right—I know, 

Mr. Coburn, that you are concerned about how it is being applied, 

but is there a way to improve the law itself? 

Mr. COBURN. I think that is a very interestingly and well-posed 

question that you just stated, and it is a highly complex and ambiguous situation, as I alluded to before the break. 

I guess I cannot honestly say that I have given great deal of intensive thought to precisely what the appropriate legislative solution is to this problem. But I guess I don’t think that purely elective DOJ regulations, which can be invoked or not invoked at an 

Administration’s discretionary pleasure, is the right answer. 

Because I think the temptation in a situation like this, where 

you are dealing with a naturally highly-politically charged issue— 

one in which the Administration has staked out a position very 

forcefully in a number of different instances—the temptation, I 

think, not to want an independent, unfettered investigation into potential alleged criminal conduct is just too great. 

And so I tend to be skeptical of the notion that a kind of a purely 

internal DOJ regulatory solution is the right answer. But in saying 

that, like I indicated in my earlier remarks, I do acknowledge that 

there were problems—and I think they were very real problems— 

in the prior Independent Counsel Act, and I think those problems 

should be addressed head-on. 

Mr. CANNON. Isn’t the very complexity of it what makes it so 

much more difficult to create an environment where there is less 

discretion to prosecute these issues that might be subject to prosecution under some circumstances? But didn’t you argue—I 

thought you argued rather forcefully, or rather well—that the political environment has a tendency to take care of those excesses. 

And do we want to have a less—do we want to have less discretion and take the pressure off politics, or do we want to have politics play a greater role in how we govern ourselves? 

Mr. COBURN. Well that is, again, I think, a very interesting question. I guess the problem, from my point of view, with a purely political solution is that it is not, I guess, a purely political problem 

that we are dealing with. From my point of view, as somebody who 

practices largely in the criminal arena, allegedly criminal misconduct is something special. 

And regardless of whether the alleged—and I don’t mean to 

opine, here, on whether or not there is that kind of underlying conduct here or not. I think that would have to be the subject of, you 

know, the result of an actual investigation. 

123 

But if there is, that kind of conduct is something different from 

a purely political problem. And I guess, like I was alluding to earlier in response to the Chairwoman’s question, if that is what we 

are looking at—if there is creditable allegations of potential criminal misconduct here—I tend to think that the political system is 

not adequate to address that, because there, you are dealing with 

kind of a deep fundamental problem of fairness. 

If somebody who is politically involved, if you have a politically 

involved Administration official who is, in fact, complicit in that 

kind of conduct, they need to be investigated and prosecuted just 

as if I, or anyone on this panel, or anyone in the audience, or any 

other individual in the United States engaged in criminal misconduct. 

And I think it is sort of just critical, fundamental to the system, 

that we all feel that everyone know that no matter who it is, no 

matter how politically, you know, connected, or involved, or what 

political role a person might play, that if they step over that line, 

that they are going to be subject to the same kind of investigation 

and prosecution as anybody else. 

Mr. CANNON. If I might just add—I see my time is expired, 

Madam Chair—but let me just say I believe that the Justice Department guidelines focus on the person’s status, so a politician is 

more likely to be prosecuted, generally speaking—not the President, particularly, or the Administration, but a politician—is more 

likely to be prosecuted because he is higher profile. 

And so, in a world where we work very hard to have prosecutorial guidelines that make sense, I think part of your statement 

is answered; and I appreciate, though, the thoughtfulness of your 

responses. I yield back, Madam Chair. 

Ms. SA ́ NCHEZ. Thank you. At this time, I would like to recognize 

the Chairman of the full Committee who has joined us, Mr. Conyers, for any questions he may have. 

Mr. CONYERS. Thank you, Madam Chairwoman. And I am deeply 

regretful that I missed earlier testimony, but I consider this to be 

an important hearing called by the Chairperson of the Commercial 

and Administrative Law Subcommittee because we are examining 

a very vital area of the Department of Justice with regard to the 

utilization of special counsel regulations. 

And I think we have got a hearing here that is going to help us 

in terms of how we move forward. The refusal to use the special 

counsel regulations has highlighted a recurrent theme of this Administration: that of a unitary executive, completely devoid—well, 

I won’t say completely devoid of accountability. There are instances 

where they have had accountability. 

The other thing that is important to me is that all the times we 

could have used special counsel and didn’t—and I am going to put 

this in the record—but, one, two, three, four, five, six, seven, eight, 

nine instances that we could discuss at great, great length. 

The next point I would like to make, and I invite all of your comments or observations, is that not withstanding having appointed 

attorney Patrick Fitzgerald, who was not appointed under the regulations to perform the Scooter Libby investigation, the Administration undermined any fruitful information that could have been acquired. 

124 

And the last point is that Attorney General Mukasey should 

have utilized the special counsel regulations to appoint outside 

counsel to investigate the CIA tapes destruction and related issues. 

In that regard, and I would like to get any comments that you 

might have, there are two letters that we sent to the Attorney General, Mr. Mukasey, one dated January 15, 2008, the other dated 

January 31, 2008, that deals with this question of how this special 

counsel concept is utilized. 

Do any of you—would you like to give us a little opinion about 

the mental state of mind that I have as indicated by these comments? Professor? 

Mr. KATYAL. Sure, I will take a stab at it. I, when you sent those 

initial letters, Mr. Chair, I thought that maybe they were a little 

premature—the idea of a special counsel at that early stage in the 

investigations. I now, since the Attorney General has testified before this Committee and has said that he can’t investigate the underlying conduct, that is waterboarding, because of secret Office of 

Legal Counsel opinions that he says would provide a good faith defense for the officials who engaged in waterboarding, and so he 

says ‘‘The department can’t investigate itself.’’ 

That strikes me as a very strong point in your favor, and suggests to me maybe another letter needs to be written to say: The 

Attorney General, himself, has pointed to the conflict of interest 

with this investigation, and therefore, a special counsel is looking 

more and more like an appropriate course of action. 

That isn’t—I don’t think, the way Representative Cannon said it, 

I don’t think this means that, you know, anyone is characterizing 

the Administration as being bad, or anything like that. I, personally, have deep respect for the Attorney General and think he is 

doing a good job. But good people—— 

Mr. CONYERS. I am glad that you do. That is very reassuring to 

me. I am feeling better already that you think that. But I should 

have his confidence. He should not have lost my confidence at this 

point. 

Mr. KATYAL. Yes. Good people can make bad decisions, and this 

is one bad decision that strikes me, to say that we are not going 

to prosecute on the basis of a secret opinion that he won’t even let 

you, in this body, see. 

Mr. CASEY. If I could just say something with respect to the 

question of conflict of interest with this investigation, with the investigation of the tapes. I think we are kind of mixing and matching here. 

As I understood the Attorney General, what he was saying is, the 

Justice Department could hardly go after the CIA agents for 

waterboarding because, to the extent it was engaged in, it was 

based upon Justice Department advice. I don’t think that creates 

a conflict of interest for the department; it creates a serious due 

process problem in any prosecution to go after those individuals if 

they had relied upon department opinions. 

Mr. CONYERS. But wouldn’t that be a consideration that would 

come after you have appointed a special counsel? I mean, we are 

not asking for a judge and jury right out of the box, but to say that 

everything, in terms of special counsel, is out of the question because of—and then we get the legal response. 

125 

Don’t you think, Mr. Casey, that we could have started an inquiry? This is unitary government again: Please, investigative arm 

of the Congress, Oversight Committee, don’t bother us with this. 

There is no way we can look at it now. It is over and done with. 

It is closed. I forget all the reasons that he gave, but would you 

mind if we had a special counsel appointed? 

Suppose he would say there are some very serious problems 

here? And I would be willing to go along with that. But to say it 

is out, period, don’t even try it. Forget it. We know the law, we 

know our situation, and in our judgment, goodbye House Judiciary 

Committee, goodbye this Subcommittee on Commercial and Administrative Law 

Ms. BRUCE. If I could, there is an analogy to recusal, and I think 

the Chairman hit the nail on the head. There should not have been 

a legal decision already made about the merits or the worthiness 

of an investigation or prosecution, saying there is no need to even 

go down this course, because the person making that decision is 

somebody who should recuse himself, or should—not because Mr. 

Mukasey himself is in any way involved in this matter that is 

under investigation—but the Justice Department should step back 

and have a special counsel investigate the case. 

And just one other comment with respect to some of the earlier 

remarks: This isn’t about a bad Justice Department. I would rival 

anyone with my affection and respect for the Justice Department. 

I served there for many years. 

Mr. CONYERS. Is it about a good Justice Department? 

Ms. BRUCE. What this is about is the judgment of individuals. 

And we are just taking issue with, Mr. Katyal and I, we are taking 

issue with, in our earlier testimony that you were not able to attend, Mr. Chairman, with the judgment call of not appointing a 

special counsel in this particular case. And on that score I would 

just like to say that all indications are that Mr. Durham is an extremely competent, capable, good person. 

But this isn’t about whether someone is a good person or a bad 

person; it is about whether or not he can—or anyone can—in the 

structure that is now being utilized, have a fully independent, as 

Mr. Coburn keeps saying, unfettered investigation where he will 

make the legal decisions about sovereign immunity, qualified immunity, advice of counsel defense, all of those things that a good 

prosecutor will have to determine. 

Mr. CONYERS. You are helping me get my mental attitude corrected a bit here, because I am feeling better about our Department 

of Justice the more we talk about it. 

In the January 31st letter, which I am going to give you all a 

copy as soon as we adjourn, here were the issues that were raised 

about, just a few: Politicization of the Department of Justice. 

Wouldn’t you think that we would get a special counsel for the firing of nine U.S. attorneys? That is an in-house matter—that they 

will—Mr. Gonzales and now Mr. Mukasey will take care of themselves? I don’t think so. 

Waterboarding and torture. Assuming that this confuses—and by 

the way, my 12-year-old is not confused about waterboarding and 

whether it is legal or criminal or not—but waterboarding and torture, since the Attorney General has such a difficult time with this 

126 

subject that we have to look at it case by case, implying that there 

is some permissible waterboarding and then there is impermissible 

waterboarding. It depends on, as everything else in law, the facts. 

Okay, what about selective prosecution? I would like you to examine that, and of course the investigation into the destruction of 

the tapes. 

And then finally, voter suppression and civil rights enforcement. 

And there, Attorney Bruce, the accumulation of all these matters 

made me begin to question the Department and its leadership and 

its decisions. But you make me feel better. You say it is not about 

good or bad, Mr. Chairman, it is really about good people maybe 

making an error now and then. 

But, you know, these errors accumulate. I mean, after they start 

rising off the table, and then others are talking about the unitary 

system of Government, and the Vice President has brought in all 

these neocons to infiltrate the Government, my patience is being 

taxed. Mr. Coburn? 

Mr. COBURN. Yes, Mr. Chairman, I can easily understand that. 

And I have very similar feelings about a number of the issues that 

you just referred to, but specifically with respect to this question 

of the destruction of the CIA tapes. When you, Mr. Chairman, refer 

to this question of unitary government, or the question of the 

politicization of the Justice Department, I mean, here we have a 

situation in which, you know, you think about the notion of an entity investigating itself. 

We have a prosecutor who was appointed—and really, I would 

submit, a fundamental structural problem that the Committee is 

dealing with here—a prosecutor who was appointed who essentially 

must report with respect to every piece of significant decision-making to the deputy Attorney General. And the deputy Attorney General is a political appointee; and in fact, he is a highly-political appointee. 

And so the notion, you know, that we have here is one in which 

the Administration has staked out a position—a very clear and unambiguous position—with respect to the permissibility of the underlying conduct which is supposedly reflected in these destroyed 

videotapes. 

That Administration is personified in the deputy Attorney General to whom the criminal investigator must report, and from 

whom the criminal investigator must, apparently, receive permission for seeking a grand jury subpoena, or certainly returning an 

indictment. I mean, that is a very serious fundamental, structural 

problem—one which, I think, would lead one not to feel too good 

about the current state of the way the Justice Department is handling these issues. 

Thank you for your generosity, Chairman 

Mr. SCONYERS. But Mr. Casey, my old apprehensions are returning. Can you make me feel better as we close this Subcommittee 

hearing down? 

Mr. CASEY. Well, I will try. I think that there—if, to the extent 

there are systematic, fundamental problems, they are problems inherent in the constitutional system of separation of powers itself, 

yes. The executive branch has wide power, and it may be, on many 

127 

occasions, that both the Department of Justice and other departments take actions of which the Congress disapproves. 

I would urge the Committee, to the extent that has been the case 

with the Justice Department, to use its oversight authority and the 

many other political measures that the Constitution—or powers— 

that the Constitution has given you, to yourself look at some of 

these things. I mean, I think the Constitution intends that ultimately you are the check. I mean, I disagree with what has been 

said about the individual issues, but ultimately, you are the check. 

You have the power. 

Mr. CONYERS. Well, just remember when we talk about the 

issuing of contempt citations from the Congress that we have an 

Attorney General who announces, in advance of anything happening, that he will not honor the contempt citations. 

Now, where do I go in the Constitution or in the decisions of the 

Federal court to say, ‘‘Well, this is a tension that our founding fathers anticipated’’? 

Mr. CASEY. I think exactly that. It is inherently the providence 

of the judiciary to say what the law is. You go to court and get a 

decision that supports your position, or not. But, I mean, that is 

where you go. 

Ms. BRUCE. O you hire an independent counsel to—— [Laughter.] 

Mr. CONYERS. Thank you so much for your generosity—— 

Ms. SA ́ NCHEZ. Time has expired, and I want to thank the witnesses for their patience. We are going to dismiss the first panel, 

and we are going to call the second panel. But know, too, that we 

will be submitting, also, questions in writing, and we would ask 

that you respond to those as soon as possible so that we can make 

those a part of the record as well. But thank you, again, for your 

testimony. 

I am now pleased to introduce the witness for our second panel 

for today’s hearing, but before I do that I wanted to check—I understand that you have a flight to catch, is that correct? 

Mr. FITZGERALD. Yes, but I should be okay. 

Ms. SA ́ NCHEZ. Okay. Our witness for this panel is the Honorable 

Patrick Fitzgerald. Mr. Ftzgerald began serving as United States 

Attorney for the Northern District of Illinois on September 1, 2001. 

He served on the Attorney General’s Advisory Committee from 

2001 to 2005, and was Chair of the Subcommittee on Terrorism. 

He is also a member of the President’s Corporate Fraud 

Taskforce. As a U.S. attorney, Mr. Fitzgerald served as his district’s top Federal law enforcement official. His district, the Northern District of Illinois, covers 18 northern Illinois counties across 

the top tier of the state, with a population of approximately 9 million people. 

During the last 4 years, Mr. Fitzgerald has provided leadership 

and played a personal role in many significant investigations involving terrorism financing, public corruption, corporate fraud, and 

violent crime including narcotics and gang prosecutions. 

In December of 2003, he was named special counsel to investigate the alleged disclosure of the identity of a purported employee 

of the Central Intelligence Agency. Through this, Mr. Fitzgerald 

was delegated all the authority of the Attorney General in the matVerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00131 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924
128 

ter, and that occurred under Department of Justice Regulation 28, 

CFR Part 600. 

In February 2004, acting Attorney General Comey clarified the 

delegated authority and stated that Mr. Fitzgerald had plenary authority. 

Prior to his service in Chicago, Mr. Fitzerald served as an assistant U.S. attorney in the United States Attorney’s Office for the 

Southern District of New York for 13 years. He served as the Chief 

of the Organized Crime Terrorism Unit, in addition to holding 

other supervisory positions during his tenure in that office. 

Among Mr. Fitzgerald’s award and honors are the Attorney General’s Award for Exceptional Service in 1996, the Stimson Medal 

from the Association of the Bar of the City of New York in 1997, 

and the Attorney General’s Award for Distinguished Service in 

2002. We want to welcome you, and again, thank you for your patience. At this time we would invite you to begin your testimony. 

TESTIMONY OF THE HONORABLE PATRICK J. FITZGERALD, 

UNITED STATES ATTORNEY FOR NORTHERN DISTRICT OF 

ILLINOIS, FORMER SPECIAL COUNSEL, UNITED STATES DEPARTMENT OF JUSTICE, CHICAGO, IL 

Mr. FITZGERALD. Thank you. And I appreciate the Chairwoman 

and the Ranking Member having me, and the Chairman of the 

Committee, and I am just here to answer questions, so I will be 

happy to take them. 

Ms. SA ́ NCHEZ. Great, thank you. We appreciate your presence 

here, and we will begin our round of questioning. I will recognize 

myself for 5 minutes. Mr. Fitzgerald, do you believe that a President should consult with a special counsel when deciding whether 

to commute the sentence of an Administration official who was the 

subject of the special counsel’s prosecution? 

Mr. FITZGERALD. I wasn’t anticipating that I would be testifying 

on the commutation issue today, and all I can say is I recognize 

the President has the power to pardon or commute, and I won’t go 

beyond that. 

Ms. SA ́ NCHEZ. Did the President or anyone with the Administration actually consult with you, as they would with the department 

generally, prior to the commutation of Scooter Libby’s sentence? 

Mr. FITZGERALD. I don’t know what generally happens. I know 

that I was notified the day the decision was made before it was 

being announced—shortly before. But I was notified, not—I wasn’t 

consulted in the decision, I was notified of it. But I hadn’t anticipated testifying about that issue, so I don’t want to go beyond that. 

Ms. SA ́ NCHEZ. Okay. I appreciate that. With regard to your appointment as special counsel, you were told by Deputy Attorney 

General James Comey to follow the facts, do the right thing, and 

that you can pursue it wherever you want to pursue it. 

Do you believe that all special counsels should be given the freedom to determine the scope of their investigation? 

Mr. FITZGERALD. I think I would back up and say that I think 

the scope of my investigation, if you mean the subject matter, I was 

not given the freedom to do that. I think what Mr. Comey delegated to me was the power of the Attorney General to conduct an 

investigation into a subject matter. 

129 

I was not given the authority to expand the subject matter. I was 

not appointed as a counsel; I was effectively delegated the powers 

of the Attorney General. 

So if I was looking at some conduct and for some reason began 

to suspect anyone had engaged in tax fraud, for example, that was 

outside the scope of my mandate. I could not decide, all of a sudden, that it was important for me to investigate tax fraud. I could 

go, in that circumstance, to the Attorney General, or in that case 

the acting Attorney General, and say, ‘‘I have reason to believe 

there is tax fraud,’’ and they would decide what the scope of that 

was. 

So I think that has been often misunderstood in the sense that 

the subject matter jurisdiction was given to me; it was not up to 

me to expand it. But in terms of following the facts wherever they 

took me within the subject matter, I had that authority. So I could 

go wherever the facts took me, in terms of what I was investigating, but I couldn’t decide to expand my mandate beyond that. 

Ms. SA ́ NCHEZ. Okay. I wanted to throw out a hypothetical situation for you here. If Assistant U.S. Attorney John Durham is given 

essentially the same authority that you were given in your role, do 

you think that it would be proper or improper for him to investigate the underlying conduct of the tapes? 

Mr. FITZGERALD. I think I will conduct myself the way I did 

when I was special counsel, which is to stay within the lane of my 

authority, and I can answer what I know as special counsel, but 

I really don’t feel comfortable opining about what someone else 

should do in another case that isn’t under my authority. I really 

don’t. 

Ms. SA ́ NCHEZ. I will let you refuse to opine on that out of respect 

for the job that you do. By all accounts, you and your team that 

were investigating the CIA leak investigation expended significant 

time and energy on that case. 

Do you think that you should have been required to submit a report to the Attorney General at the conclusion of your investigation 

explaining the prosecutions or the decision not to prosecute? 

Mr. FITZGERALD. I have already answered this, so I can tell you 

I was not required to by—there was no statute in effect—and I 

think in terms of if you are asking submitting a report to the Attorney General, the Attorney General was recused and because a 

charge resulted, I think people learned a fair amount about what 

we did; they didn’t learn everything. 

But if you are talking about a public report, that was not provided for, and I actually believe and I have said it before, I think 

that is appropriate. I think that when a grand jury is used in an 

investigation, as it was in that case, we both expect everyone to 

come forward and cooperate with the grand jury, we expect them 

to be fully candid, and in fact, that is what led to a prosecution, 

when someone lied under oath to the grand jury. But we owe it 

back to people to respect the secrecy of the grand jury, and you 

can’t tell people, ‘‘Come into the grand jury, it will remain secret,’’ 

and then later, when people want you to explain what it is that you 

did, pull back the cloak of secrecy. 

I think we have to—when we go down that road, we have to follow through the rules. So we did not reveal anything that had not 

130 

otherwise been revealed. So I don’t think a public report was allowed, and I don’t think it should have been called for. 

Ms. SA ́ NCHEZ. Do you think a report to Congress is something 

that would be prudent in order to increase transparency, or do you 

think that that would be a bad idea as well? 

Mr. FITZGERALD. Well, I don’t want to speak outside my lane 

again. I fully recognize that the Congress has an appropriate role 

to play in oversight. I also recognize that the executive branch has 

to have space within which it can do business and confer amongst 

itself. And I also think there has to be an ability for prosecutors 

to make prosecutive decisions knowing that the discussion stays behind closed doors, and also knowing that the grand jury rules, 

which prohibit sharing of grand jury information that is not otherwise public, are not violated. So I see the concerns on both sides. 

I know, just from my narrow point of view, we can’t break the 

grand jury rules and do something that is not authorized. As to the 

larger tension between the executive branch’s independence and 

confidentiality and the Congress’ right to conduct oversight, I think 

I should not be the spokesperson for that. 

Ms. SA ́ NCHEZ. Okay, thank you. My time has expired. At this 

time I will recognize Mr. Cannon for 5 minutes of questions. 

Mr. CANNON. I am still puzzling over the Chair’s distinction between a public report and a report to Congress. 

Ms. SA ́ NCHEZ. Well—— 

Mr. CANNON. Just in jest. 

Ms. SA ́ NCHEZ. There is a theoretical separation, at least. 

Mr. CANNON. At least one more door that the information has to 

pass through, I suppose. I am intrigued by your testimony, Mr. 

Fitzgerald, and I appreciate your forthrightness. I wanted to have 

you talk, if you would, a little bit about the distinction, or not, between being a special prosecutor and the kind of prosecutions that 

happen every day in the Department of Justice and in the various 

U.S. Attorney’s Offices. 

And would you mind commenting—we have, in the guidance for 

U.S. attorneys, a great deal of material that is born of experience. 

Is it your sense, in the kind of stressful situation that you are in 

with Mr. Libby, that—or any other kind of situation like that—that 

we should use the same kind of guides that the Justice Department 

has in place? 

Mr. FITZGERALD. You mean the Justice Department guidelines? 

Mr. CANNON. Yes. 

Mr. FITZGERALD. They were—yes, and in fact, I think one common misunderstanding about my role and the team’s role in the investigation involving the Plame matter and the prosecution, is that 

people believe that we did not follow the Justice Department guidelines, or it has been said often enough that people start to believe 

it. That is not the case. As a Department of Justice official, I was 

bound by those guidelines. 

Now what had happened was, I was delegated the authority of 

Attorney General; so many of the procedures that had to be followed, I was the decision-maker. 

Mr. CANNON. Right. 

Mr. FITZGERALD. But the guidelines were not abrogated for us. 

And so, when you prosecute as U.S. attorneys, you follow the DOJ 

131 

guidelines. When I was given the authority, in this matter, delegated from the Attorney General, I also followed those guidelines. 

But to answer your first question, I think in an ordinary case a 

U.S. attorney has an awful lot of power. We can bring indictments, 

we can obviously issue most subpoenas without seeking approval 

from anyone, we can do lots of things, and in many cases—the volume of our cases—we can bring charges that could imprison someone for life without parole without ever going to main justice for 

approval. 

It is in certain narrow areas that are important—and that comes 

up in a smaller fraction of the cases. We cannot seek a wiretap 

without getting the approval of main justice before going to court, 

we cannot seek transactional immunity—statutory immunity—for 

witnesses telling them they have to testify but won’t be prosecuted, 

we can’t authorize a Government appeal, we cannot subpoena an 

attorney, or subpoena a member of the media. 

There are a number of things—we cannot file a racketeering 

charge. So in those cases, a U.S. attorney has to seek approval 

from the Department of Justice; often it is granted, but then sometimes there is a disagreement. But I think sometimes people can 

forget, but we try not to forget, that the power of a United States 

attorney is pretty strong, even in an ordinary case. 

Mr. CANNON. So even in an ordinary case you have a great deal 

of power, and we have guidelines that have been developed over a 

great, long period of time about how to use that power. And so, I 

think your conclusion is that if you have a special circumstance, 

where you have a special prosecutor, those guidelines are very important in the process. 

Mr. FITZGERALD. I think in the—as I understand it—the regulations part 600, which talks about special counsel outside the department of justice, requires that those special counsel have the 

powers of the United States attorney, but should confide, to the extent possible, with the Department of Justice guidelines. I was not 

appointed under that; I was inside the department, but I was 

bound by those guidelines. 

So whether you are inside or outside, those rules should apply. 

Mr. CANNON. Exactly. And we have had a number of cases where 

U.S. attorneys have pursued very high-profile political kinds of 

cases. Like in your district now, you are pursuing Mr. Tony Roscoe. 

You don’t have to comment on that, but the comment that I would 

ask you about is: Is the Justice Department, generally speaking, 

capable of these high-profile kinds of cases, or do we need to have 

a whole new unit that would have special powers? 

Mr. FITZGERALD. I would answer this way, not talking about a 

pending matter. In my tenure, my office indicted Governor Ryan— 

as United States Attorney’s Office. We indicted his campaign fund 

while he was a sitting governor. We did not need authority to do 

the investigation, but we did need authority when we sought a 

racketeering charge because that is a racketeering statute. So I 

think in an ordinary case, even a politically-charged case with a 

high-level official, we have lots of power, but sometimes those powers are circumscribed when we use certain techniques. 

Mr. CANNON. And among your guidelines, you do consider the 

public prominence of a potential person that may be charged with 

132 

a crime. And as I understand, your guidelines do include, for a political person, that that makes it more of a priority for prosecution, 

does it not? 

Mr. FITZGERALD. I don’t necessarily agree with that. What I 

would tell you is, it is the nature of the crime. Obviously, in the 

case of Governor Ryan, which is past history I can discuss, widespread corruption in the government of Illinois is something we 

ought to prosecute, not because he is a famous person, but because 

what he did corrupted Government at a high level, and it sends a 

strong deterrent message. 

But that is no different than in a drug enterprise, or a gang. We 

will go after the most harmful gangs and the ones that are most 

visible to send a deterrent message. So I think we consider someone’s position if they abused it because it makes it more of a crime, 

but not going after someone simply because they have a high profile—— 

Mr. CANNON [continuing]. Time has expired. Can I just follow up 

with one short question, which is: If you have guidelines that deal 

with—help you balance—those kind of priorities with the political—corruption, with the effective corruption, with the kind of 

gang—do you have guidelines that help you sort cases based on 

those issues? 

Mr. FITZGERALD. There are lots of guidelines that we read, but 

I tell you, the most important thing that we do is sit in our U.S. 

Attorney’s Office and take career prosecutors and vet the case: Can 

we prove it? Is it against the law? What is the harm? And we hash 

those out internally before we bring charges, looking to many of the 

considerations set forth in the guidelines. But our process really is 

to get a team of people who have experience and bat ideas around. 

Mr. CANNON. Thank you, Mr. 

Mr. FITZGERALD. Madam Chair, I yield back. 

Ms. SA ́ NCHEZ. Thank you. At this time I would like to recognize 

Mr. Conyers for 5 minutes of questions. 

Mr. CONYERS. Thank you, Madam Chair. Mr. Patrick Fitzgerald, 

we are honored that you would come before the Committee. We 

thank you for it. 

Mr. FITZGERALD. Thank you. Thanks very kind of you. 

Mr. CONYERS. Did the investigation that you pursued cost $1.5 

million, or did it cost more than that? 

Mr. FITZGERALD. That is a good question. I think the last number 

I saw, which doesn’t account for the last 6 months or so, has a 

bookkeeping cost of something in the ballpark of $2.4 million. And 

I would say a bookkeeping cost because what they did in this case 

was, the salaries of all the people who worked on the case were 

counted as expenses, but none of us were paid, with the exception 

of one person who left the Government and received a nominal 

hourly rate. 

So if I worked—if anyone on my team worked 50 hours on a special counsel matter, and 50 hours on either main justice business 

or the Chicago U.S. attorney’s business, we still received the same 

paycheck. 

But for bookkeeping purposes, they put that salary as a cost of the investigation. So if you back out, I think, the $1.5 million in 

salary, we actually—out-of-pocket, it was much less than that. I 

133 

think it was almost closer to—much closer to zero. The out-of-pocket cost of the investigation, I think, was around $550,000 by last 

count. And of that $550,000, I think $300,000 was just travel expenses, and I think another $100,000 was court reporter transcripts. We didn’t have rent, since we used our existing offices and 

DOJ. 

So one of the things that gets confusing is, for bookkeeping pur- poses it looks as if we spent $2.4 million, which I think compares 

favorably with many other investigations; but in fact, if you actually looked at what went out of pocket, it was in the ballpark of 

$550,000 as of the last accounting, which I think took us through 

the trial, but before sentencing. 

Mr. CONYERS. Thank you for your detailed response. And finally, 

did we ever find out who leaked the name of a CIA agent? 

Mr. FITZGERALD. I would say that the trial established that the 

name of Ms. Plame, without getting into the mental states, was 

discussed with reporters by three different officials, one of whom 

was charged with perjury. And that was the nature of what led the 

investigation to be appointed to a special counsel. But those names 

were publicly discussed. 

Mr. CONYERS. Thank you very much. Thank you, Madam Chair. 

Ms. SA ́ NCHEZ. Will the gentleman yield back the remainder of his 

time? 

Mr. CONYERS. How much time do I have left? No, I yield back. 

[Laughter.] 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. There was just one 

question on my list that I was interested in asking you before we 

wrap up for the day. Do you believe that conflicts of interest subvert the confidence in the Justice Department and our judicial system? 

Mr. FITZGERALD. That is a pretty broad question. All I can tell 

you is that everyone in the Department of Justice—everyone I 

work with—looks to avoid conflicts of interest; and we fill out conflict of interest forms in our cases, and if we see one we recuse ourselves—— 

Ms. SA ́ NCHEZ. And why do you do that when there are conflicts 

of interest? 

Mr. FITZGERALD. We do that because—— 

Ms. SA ́ NCHEZ. What is the purpose? 

Mr. FITZGERALD. So that you carry out justice both on a substantive level and create the appearance of propriety. And we are 

very diligent to make sure that if I am in—I don’t have stocks that 

qualify, but if I had Federal stockholdings, I would make sure I am 

not investing in a company where it could affect my wealth. I am 

blessed with not having to be that concerned. 

Ms. SA ́ NCHEZ. So there is a big concern for conflicts of interest 

because the appearance of them, for policy purposes, could undermine confidence? 

Mr. FITZGERALD. There has always been concern in the Department of Justice to make sure we avoid anything that undermines 

confidence, including conflicts of interest. 

Ms. SA ́ NCHEZ. Thank you. I appreciate your answer. I would like 

to thank you again for your witness, or for your testimony today. 

Without objection, Members will have 5 legislative days to submit 

134 

any additional written questions. And, Mr. Fitzgerald, because you 

are a Government employee, we are going to ask permission to submit written questions to you. Would that be acceptable? 

Mr. FITZGERALD. Yes. And if I can answer them I will, and if 

won’t I will politely advise you of that. 

Ms. SA ́ NCHEZ. I appreciate that. And if you do choose to answer 

those, those will be made a part of the official record. Without objection, the record will remain open for 5 legislative days for the 

submission of any additional materials. Again, I want to thank everybody for their time and patience. This hearing on the Subcommittee on Commercial and Administrative Law is adjourned. 

[Whereupon, at 4:29 p.m., the Subcommittee was adjourned.] 

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ANSWERS TO POST-HEARING QUESTIONS FROM BARRY COBURN, ESQUIRE, 

COBURN AND COFFMAN, PLLC, WASHINGTON, DC 


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ANSWERS TO POST-HEARING QUESTIONS FROM THE HONORABLE PATRICK J. FITZGERALD, UNITED STATES ATTORNEY FOR NORTHERN DISTRICT OF ILLINOIS, FORMER

SPECIAL COUNSEL, UNITED STATES DEPARTMENT OF JUSTICE, CHICAGO, IL 


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SUPPLEMENT TO ANSWERS TO POST-HEARING QUESTIONS FROM THE HONORABLE PATRICK J. FITZGERALD, UNITED STATES ATTORNEY FOR NORTHERN DISTRICT OF ILLINOIS, FORMER SPECIAL COUNSEL, UNITED STATES DEPARTMENT OF JUSTICE, CHICAGO, IL 

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