```

[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]

 
INVESTIGATION INTO ALLEGATIONS OF JUSTICE DEPARTMENT MISCONDUCT IN NEW 
                           ENGLAND--VOLUME 1
=======================================================================

                                HEARINGS

                               before the

                              COMMITTEE ON
                           GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                       FIRST AND SECOND SESSIONS

                               __________

             MAY 3; DECEMBER 13, 2001; AND FEBRUARY 6, 2002
                               __________

                           Serial No. 107-56
                               __________

       Printed for the use of the Committee on Government Reform

  Available via the World Wide Web: http://www.gpo.gov/congress/house
                      http://www.house.gov/reform

                    U.S. GOVERNMENT PRINTING OFFICE
                             WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001

                     COMMITTEE ON GOVERNMENT REFORM

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland       TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
ILEANA ROS-LEHTINEN, Florida         EDOLPHUS TOWNS, New York
JOHN M. McHUGH, New York             PAUL E. KANJORSKI, Pennsylvania
STEPHEN HORN, California             PATSY T. MINK, Hawaii
JOHN L. MICA, Florida                CAROLYN B. MALONEY, New York
THOMAS M. DAVIS, Virginia            ELEANOR HOLMES NORTON, Washington, 
MARK E. SOUDER, Indiana                  DC
JOE SCARBOROUGH, Florida             ELIJAH E. CUMMINGS, Maryland
STEVEN C. LaTOURETTE, Ohio           DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    ROD R. BLAGOJEVICH, Illinois
DAN MILLER, Florida                  DANNY K. DAVIS, Illinois
DOUG OSE, California                 JOHN F. TIERNEY, Massachusetts
RON LEWIS, Kentucky                  JIM TURNER, Texas
JO ANN DAVIS, Virginia               THOMAS H. ALLEN, Maine
TODD RUSSELL PLATTS, Pennsylvania    JANICE D. SCHAKOWSKY, Illinois
DAVE WELDON, Florida                 WM. LACY CLAY, Missouri
CHRIS CANNON, Utah                   DIANE E. WATSON, California
ADAM H. PUTNAM, Florida              STEPHEN F. LYNCH, Massachusetts
C.L. ``BUTCH'' OTTER, Idaho                      ------
EDWARD L. SCHROCK, Virginia          BERNARD SANDERS, Vermont 
JOHN J. DUNCAN, Jr., Tennessee           (Independent)
------ ------

                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                     James C. Wilson, Chief Counsel
                     Robert A. Briggs, Chief Clerk
                 Phil Schiliro, Minority Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on:
    May 3, 2001..................................................     1
    December 13, 2001............................................   329
    February 6, 2002.............................................   457
Statement of:
    Bailey, F. Lee, esquire, attorney for Joseph Barboza; and 
      Joseph Balliro, Sr., esquire, attorney for Vincent Flemmi 
      and Henry Tameleo..........................................   122
    Bryant, Daniel J., Assistant Attorney General, Office of 
      Legislative Affairs, U.S. Department of Justice............   504
    Garo, Victor J., attorney for Joseph Salvati; Joseph Salvati; 
      and Marie Salvati..........................................    29
    Grassley, Hon. Charles E., a U.S. Senator from the State of 
      Iowa.......................................................   479
    Horowitz, Michael E., Chief of Staff, Criminal Division, U.S. 
      Department of Justice, accompanied by Edward Whelan, 
      principal Deputy, Assistant Attorney General, U.S. 
      Department of Justice......................................   379
    Rico, H. Paul, retired FBI Special Agent.....................   157
    Rosenberg, Morton, specialist in American Public Law, 
      Congressional Research Service.............................   562
    Rozell, Mark J., Department of Politics, the Catholic 
      University of America......................................   513
    Tiefer, Charles, University of Baltimore Law School, former 
      Solicitor and Deputy General Counsel, U.S. House of 
      Representatives............................................   520
Letters, statements, etc., submitted for the record by:
    Barr, Hon. Bob, a Representative in Congress from the State 
      of Georgia, exhibits 15, 8 and 7..........................61, 177
    Bryant, Daniel J., Assistant Attorney General, Office of 
      Legislative Affairs, U.S. Department of Justice, prepared 
      statement of...............................................   507
    Burton, Hon. Dan, a Representative in Congress from the State 
      of Indiana:
        Exhibit 4................................................   166
        Exhibit 7................................................   160
        Exhibit 10...............................................   163
        Exhibit 24...............................................     5
        Letter dated May 3, 2001.................................    18
        Prepared statements of..............................8, 333, 464
    Clay, Hon. Wm. Lacy, a Representative in Congress from the 
      State of Missouri, prepared statements of............... 420, 501
    Cummings, Hon. Elijah E., a Representative in Congress from 
      the State of Maryland, prepared statement of...............   377
    Delahunt, Hon. William D., a Representative in Congress from 
      the State of Massachusetts:................................
        Exhibit 6................................................   171
        Letter dated February 5, 2002............................   613
        Prepared statement of....................................   369
        Various letters..........................................    73
    Frank, Hon. Barney, a Representative in Congress from the 
      State of Massachusetts, letter dated November 6, 2001......   373
    Garo, Victor J., attorney for Joseph Salvati, prepared 
      statement of...............................................    34
    Gilman, Hon. Benjamin A., a Representative in Congress from 
      the State of New York, prepared statements of........... 354, 559
    Grassley, Hon. Charles E., a U.S. Senator from the State of 
      Iowa, prepared statement of................................   483
    Horowitz, Michael E., Chief of Staff, Criminal Division, U.S. 
      Department of Justice, prepared statement of...............   383
    LaTourette, Hon. Steven C., a Representative in Congress from 
      the State of Ohio:
        Exhibit 11...............................................    54
        Exhibit 35...............................................   132
    Morella, Hon. Constance A., a Representative in Congress from 
      the State of Maryland:
        Exhibit 10...............................................   191
        Exhibit 12...............................................   209
        Prepared statements of................................ 360, 490
    Rosenberg, Morton, specialist in American Public Law, 
      Congressional Research Service, prepared statement of......   566
    Rozell, Mark J., Department of Politics, the Catholic 
      University of America, prepared statement of...............   517
    Salvati, Joseph, prepared statement of.......................    40
    Salvati, Marie, prepared statement of........................    44
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut:
        Exhibit 11.............................................. 87, 99
        Exhibit 13...............................................   103
        Exhibits 11, 12 and 13...................................   138
        Exhibit 15...............................................   147
        Exhibit 26...............................................   151
        Prepared statements of............................ 15, 363, 494
    Tiefer, Charles, University of Baltimore Law School, former 
      Solicitor and Deputy General Counsel, U.S. House of 
      Representatives, prepared statement of.....................   523
    Waxman, Hon. Henry A., a Representative in Congress from the 
      State of California:
        Article dated February 3, 2002...........................   473
        Minority staff report....................................   345
        Prepared statements of.............................24, 351, 477
    Wilson, James C., chief counsel, Committee on Government 
      Reform:
        Exhibit 7................................................   108
        Exhibit 8................................................   111
        Exhibit 15...............................................   113
        Exhibit 24............................................ 118, 218

 THE FBI'S CONTROVERSIAL HANDLING OF ORGANIZED CRIME INVESTIGATIONS IN 
                   BOSTON: THE CASE OF JOSEPH SALVATI

                              ----------                              

                         THURSDAY, MAY 3, 2001

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:25 a.m., in 
room 2154, Rayburn House Office Building, Hon. Dan Burton 
(chairman of the committee) presiding.
    Present: Representatives Burton, Gilman, Morella, Shays, 
Horn, LaTourette, Barr, Jo Ann Davis of Virginia, Putnam, 
Otter, Kanjorski, Norton, Cummings, Kucinich, and Tierney.
    Also present: Representatives Delahunt, Frank, and Meehan.
    Staff present: Kevin Binger, staff director; James C. 
Wilson, chief counsel; David A. Kass, deputy chief counsel; 
Mark Corallo, director of communications; Thomas Bowman, senior 
counsel; Pablo Carrillo, investigative counsel; James J. 
Schumann, counsel; Sarah Anderson, staff assistant; Robert A. 
Briggs, chief clerk; Robin Butler, office manager; Michael 
Canty and Toni Lightle, legislative assistant; Josie Duckett, 
deputy communications director; John Sare, deputy chief clerk; 
Danleigh Halfast, assistant to chief counsel; Corrine 
Zaccagnini, systems administrator; Phil Schiliro, minority 
staff director; David Rapallo, minority counsel; Michael 
Yeager, minority senior oversight counsel; Ellen Rayner, 
minority chief clerk; Jean Gosa, minority assistant clerk; and 
Teresa Coufal, minority staff assistant.
    Mr. Burton. Good morning. A quorum being present, the 
committee will come to order. I ask unanimous consent that all 
witnesses' and Members' statements be included in the record. 
Without objection so ordered. I ask unanimous consent that all 
articles, exhibits, and extraneous or tabular material referred 
to be included in the record. Without objection so ordered. I 
ask unanimous consent that a set of exhibits which have been 
prepared for today's hearing be inserted into the record and 
without objection, so ordered. I ask unanimous consent that 
Representatives Barney Frank, Bill Delahunt and Marty Meehan 
who are not members of the committee, be allowed to participate 
in today's hearing and without objection, so ordered.
    I ask unanimous consent that questioning in this matter 
proceed under clause 2(j)(2) of House rule 11, and committee 
rule 14 in which the chairman and ranking minority member may 
allocate time to committee counsel as they deem appropriate for 
extended questioning, not to exceed 60 minutes equally divided 
between the majority and minority and without objection, so 
ordered.
    Today's hearing is going to focus on an injustice done by 
the FBI that went on for nearly 30 years. We're going to hear 
about a terrible wrong that was done to one man and his family. 
As terrible as this story is, it's only one small part of a 
much larger picture. I have always supported law enforcement. I 
remember I used to watch ``I Led Three Lives'' on television, 
and I used to watch the FBI programs and I thought that the FBI 
Director walked on water. And my great faith in Mr. Hoover has 
been shaken by what I have learned in just the last few weeks. 
Over the years, I have worked with Director Louie Freeh on a 
number of issues, and I think Louie Freeh has done a terrific 
job, and I'm sorry to see him leave this summer.
    I think that, on the whole, the FBI has done great work 
protecting the people of this country. But we are a Nation of 
laws and not of men. In this country, no one is above the law. 
If a Federal law enforcement agency does something wrong, they 
have to be held accountable. That's why we held hearings on the 
Drug Enforcement Agency last December. I have a lot of respect 
for the men and women of the DEA. They have a tough job and 
they do it well. But there was a very important drug 
investigation going on in Houston, TX. It was shut down because 
of political pressure that was brought to bear. And then the 
head of the Houston office for the DEA came up here and mislead 
the Congress about it. That cannot be tolerated. What the FBI 
did to Boston 30 years ago cannot be tolerated.
    We will hear today from Joseph Salvati. Mr. Salvati spent 
30 years in prison for a murder he didn't commit. 30 years. 
Think about that. That is 1971. Do you remember what you were 
doing in 1971? Think about it, what it would be like if you 
were in prison for 30 years. It was a death penalty crime. He 
went to prison in 1968. He had a wife and four children. His 
oldest child at the time was 14, his youngest was 6 and he 
wasn't released from prison until 1997, 30 years later.
    The reason Joe Salvati went to prison was because an FBI 
informant lied about him which is unthinkable. But the reason 
he stayed in jail was because the FBI agents knew their 
informant lied and they covered it up, and that's much worse. 
Documents we've received show that this case was being followed 
at the highest levels of the FBI in Washington. J. Edgar Hoover 
was kept informed on a regular basis. It is hard to believe he 
didn't know about this terrible injustice. The informant who 
put Joe Salvati in prison was Joseph ``the Animal'' Barboza. He 
was a contract killer in Boston. He was also a prized FBI 
informant. He was considered so valuable that they created the 
Witness Protection Program to protect him.
    Most of the evidence now indicates that Joseph Barboza and 
his associates planned and executed the murder. Barboza pointed 
the finger at Joe Salvati because Salvati owed him $400. 
Because of $400, Joe Salvati spent 30 years in prison. Joe 
Salvati and his wife Marie are going to testify today. And I 
want to express to both of you how deeply sorry we are for 
everything that has been taken away from you and that you have 
had to go through over these past 30 years, and I want to thank 
you for being here today. And I intend to participate in making 
sure that you are compensated for--money can't pay for what you 
went through--but you should be compensated for what you went 
through and the time you spent away from your family. We will 
try to make sure that happens.
    Joseph Barboza was a criminal. You would expect him to lie, 
but the FBI is another story. They are supposed to stand for 
the truth. The FBI had a lot of evidence that Joe Salvati 
didn't commit that crime and they covered it up. Prior to the 
murder, the FBI was told by informants that Joseph Barboza and 
his friend, Vincent Flemmi, were planning to commit the murder 
of Teddy Deegan. Two days before Deegan was murdered, J. Edgar 
Hoover, the head of the FBI, got a memo about Vincent Flemmi: 
One the FBI's own informants was going to kill Deegan.
    The author was H. Paul Rico, who will testify later today. 
He was a member of the FBI at the time. After the murder, the 
FBI was told by informants that Barboza and Flemmi had 
committed the crime. J. Edgar Hoover was told that Barboza and 
Flemmi had committed the crime. FBI memos spell all of this 
out. The FBI was compelled to make these documents public just 
in the last few months. They had all this information but they 
let Joseph ``the Animal'' Barboza testify anyway and put Mr. 
Salvati away for life.
    Originally it was the death penalty. But that wasn't the 
end of it. In the 1970's, Barboza tried to recant his 
testimony. The FBI pressured him not to do it. Mr. Barboza's 
lawyer was F. Lee Bailey, and Mr. Bailey is going to testify 
about what happened later today. Mr. Bailey told the 
Massachusetts attorney general's office that his clients had 
lied and the wrong man was in prison. He was ignored. Mr. 
Bailey asked Joe Barboza to take a lie detector test to make 
sure he was telling the truth this time. Barboza was in prison 
at the time on a separate offense. When the FBI got wind of 
this, they went to the prison and told Barboza not to take the 
polygraph and to fire his lawyer, Mr. Bailey, or he'd spend the 
rest of his life in jail.
    So the FBI once again was trying to protect their tails and 
cover this thing up. I think that is just criminal. Not only 
did the FBI conceal the evidence that they had on Joe Salvati 
that Joe Salvati was innocent, they went out and actively 
suppressed other evidence. To say what they did was unseemly 
was an understatement. It was rotten to the core.
    And this is just one small part of the story. Joe ``the 
Animal'' Barboza wasn't the only mob informant the FBI official 
cultivated in Boston. There was James Whitey Bulger, who was a 
killer. There was Steve ``the Rifleman'' Flemmi, and there were 
others.
    While they worked with the FBI, they went on a crime spree 
that lasted for decades. There were dozens of murders. There 
were predatory sexual crimes. They committed all of these 
crimes with virtual impunity because they were under the 
protection of the FBI. When informants emerged that tied these 
men to crimes, they were tipped off by the FBI and the 
informants were murdered.
    So the FBI were complicitous and involved in the murders of 
some of these people that were informants. It was apparently a 
very cozy relationship. We understand there were FBI agents 
that got cash, they got money from the mobsters. Then got cases 
of wine, tickets for girlfriends and other favors, and we'll 
get to those issues in later hearings.
    Joseph Barboza committed a murder while he was in the 
Witness Protection Program. Paul Rico, who will testify today, 
actually flew out to California to help Barboza's defense, and 
so did a man who is now a Federal judge. I have issued 
subpoenas to two of the principal FBI agents who were involved 
with Joseph Barboza: Paul Rico and Dennis Condon. Mr. Condon is 
not here today. I understand he is in very poor health, but 
that does not excuse the things he is accused of doing and we 
have still have a lot of questions to ask him.
    I can assure everyone that one way or another, we will be 
interviewing Mr. Condon. Mr. Rico is here. I understand that 
there is a possibility he may take the fifth amendment because 
he's under criminal investigation. I hope that will not be the 
case. We have a lot of questions, and I think that Joe Salvati 
and the American people deserve answers. Years ago FBI agents 
would heap scorn when organized crime figures took the fifth 
amendment. I hope Mr. Rico does the right thing today and 
testifies.
    One thing that really troubles me about our third panel 
comes from the document we have just received. Paul Rico and 
Dennis Condon interviewed Joseph Barboza in 1967. That report 
is exhibit 24, which we will show later. Barboza told him he 
would never provide information that would allow James Vincent 
Flemmi to fry but that he will consider furnishing information 
on these murders. Mr. Rico and Condon had lots of evidence that 
Flemmi was in on the Deegan murder. They knew that Barboza 
would not incriminate Flemmi, yet they stood by while Barboza 
protected his partner and put Joe Salvati in a death penalty 
crime.
    [Exhibit 24 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.091
    
    [GRAPHIC] [TIFF OMITTED] T6507.092
    
    Mr. Shays. I don't know how they can sleep at night when 
they do things like that. I think this whole episode is 
disgraceful. It was one of the greatest, if not the greatest 
failure in the history of Federal law enforcement.
    If there is one institution that the American people need 
to have confidence in, it's the FBI. I think that 99 percent of 
the time the men and women of the FBI are honest and 
courageous, and I don't want to tar the entire organization 
with the misdeeds of a few. But if we're going to have 
confidence in our government, we cannot cover up corruption 
when we find it. It needs to have a full public airing, and 
that's what we're going to try to start to do today.
    I want to thank all of our witnesses for being here, and I 
will now yield to my colleagues for opening statements. Do you 
have an opening statement, Mr. Tierney?
    [The prepared statement of Hon. Dan Burton follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.001
    
    [GRAPHIC] [TIFF OMITTED] T6507.002
    
    [GRAPHIC] [TIFF OMITTED] T6507.003
    
    [GRAPHIC] [TIFF OMITTED] T6507.004
    
    Mr. Tierney. Thank you, Mr. Chairman. I have some opening 
remarks. First of all, I think what happened to Mr. and Mrs. 
Salvati is just a disgrace. I look forward to hearing your 
comments today and know that this is hopefully just the 
beginning of what we're going to do with this. I think it is 
important to get your remarks on the record and to talk about 
some of the things we will discuss today. This is not in any 
sense of the way a partisan hearing, and that is a good thing 
for this hearing, but I hope we use this as a basis to go 
forward and talk about the FBI's practice of using confidential 
informants and what that means for the future.
    I know that we've been asked for the present to not delve 
in that area too deeply because it would interfere supposedly 
with the Justice task force work that is going on. But I don't 
think we can allow that to go neglected, and I hope this sets 
just the foundation for inquiring as to what that practice is, 
what the FBI intends to do going forward, and whether or not 
they have a set of proper procedures so we do not see this case 
of disgrace happen again.
    Mr. Garo, I just want to say I think you are a credit to 
the legal profession for what you did, and I thank you for 
that. I know that there are other lawyers, some who will join 
us today and others in the profession that do that. I think you 
shine to the public on that and you let the public know there 
are good lawyers out there who do the right thing for people.
    My remarks to the Salvatis are that it is shameful what you 
went through, I think, Mrs. Salvati, particularly of your 
strength and your support, and I am glad things are working for 
a change. I don't know how it is that society will make it up 
to either of you and your family for what went on. But I 
appreciate and thank you very much for participating in today's 
hearing, and hopefully some good will come of this in terms of 
going forward. Thank you.
    Mr. Burton. Thank you, Mr. Tierney. I might point out Mr. 
Tierney made reference to it, but Mr. Garo worked pro bono for 
25, 30 years trying to get Mr. Salvati exonerated, and that is 
really something.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman. Thank you so much for 
holding these hearings. Under our Constitution, we are a Nation 
founded to secure the blessings of liberty. The power we have 
in government to take away a citizens liberty, strictly 
prescribed by the bill of rights and is vested only in those 
sworn to enforce and uphold the law. Yet before us today is Mr. 
Joseph Salvati, a citizen whose liberty was stolen from him for 
30 years by his own government.
    So profound an injustice is almost unimaginable. But it 
takes very little imagination to reconstruct the sordid saga of 
official malfeasance, obstruction, brutality and corruption 
that brings us here this morning. In this tragic tale, ends 
justified means, cascading down a legal and ethical spiral 
until both the ends and means became utterly unjust. Protecting 
criminals in the name of catching criminals, agents of the 
Federal Bureau of Investigation [FBI], became criminals, 
willing accomplices in the problem they have set out to solve, 
organized crime.
    Thomas Jefferson said, the sword of law should never fall 
but on those whose guilt is so apparent as to be pronounced by 
their friends as well as foes. Only Joe Salvati's foes 
pronounced his alleged guilt for a crime sworn law enforcement 
officers from the Director of the FBI to the local police knew 
he did not commit.
    Solely on the basis of false testimony from a known killer, 
Joseph ``the Animal'' Barboza, with conclusive exculpatory 
evidence suppressed and ignored, an innocent man faced the 
death penalty; the death penalty. Because he made the mistake 
of borrowing money from a thug, local, State and Federal law 
enforcement officers joined the thug in a criminal conspiracy 
to take Joseph Salvati's life. And they did, 30 years of it; 30 
years. A generation.
    His young wife, Marie Salvati, suddenly on her own, raised 
a family. She visited her husband every week. Their four 
children, then ages 4, 7, 9 and 11 grew up seeing their only 
father in prison. Birthdays, first communions, proms, 
graduations, weddings, the birth of grandchildren, priceless 
events in the life of a family, forever denied him because the 
FBI considered his freedom an acceptable cost of doing business 
with mobsters.
    The Reverend Martin Luther King, Jr. observed that 
injustice anywhere is a threat to justice everywhere. Joseph 
Salvati is not here today because of a local ethnic turf battle 
between Boston's Irish and Italian gangs who corrupted a few 
rogue FBI agents. Joseph Salvati is here today after spending 
30 years in prison because he is the victim of a corrupted 
State and Federal criminal justice system. The protection of 
confidential informants by law enforcement in what can amount 
to a nonjudicial street immunity and an official license to 
commit further crimes is a national practice and national 
problem.
    The Federal Witness Protection Program was created to 
shield the same man who falsely accused Joseph Salvati. The 
tentacles of Joseph ``the Animal'' Barboza, FBI's protected 
criminal, stretched well beyond Massachusetts, from Connecticut 
to California. New Federal guidelines on the use of informants 
might help prevent the abuses that put Joseph Salvati in 
prison. But they will not necessarily break the self-justifying 
protective culture of some law enforcement agency that allow 
this gross miscarriage of justice to occur and to persist for 
30 years. Only an official apology from the FBI will do that; 
only compensation from the State of Massachusetts and the 
Federal Government will do that. Only bringing those 
responsible before the bar of justice they swore to defend, but 
betrayed will do what must be done to right this wrong.
    Mr. and Mrs. Salvati, thank you for being here. As a fellow 
citizen of a land that holds liberty sacred, let me say that I 
am profoundly sorry for what has happened to you. We can never 
replace what has been taken from you, but we are grateful for 
your openness and your willingness to share what you have. Your 
story of faith, incredible faith, Marie, incredible faith, 
family, your story of faith, your story of family, your story 
of courage and perseverance is a gift to your Nation, and we 
cherish it.
    Your testimony will help ensure no one else has to endure 
the outrageous indignities and injustices you, Mr. Salvati and 
your family, Marie, and your family have suffered.
    Mr. Garo, let me say something to you. You are a hero. You 
are an absolute hero, and you share that with some in the press 
who wrote this story up for years and years and years. I have 
just wished we heard it sooner.
    [The prepared statement of Hon. Christopher Shays follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.005
    
    [GRAPHIC] [TIFF OMITTED] T6507.006
    
    Mr. Burton. Thank you, Mr. Shays. With the approval of the 
committee, I would like to read one paragraph from the 
statement of FBI Director, Louie Freeh, we just received this 
this morning. It says,

    The allegations that have been made concerning the 
circumstances of Mr. Salvati's conviction and 30-year 
incarceration speak directly to the need for integrity and 
commitment in the pursuit of justice under the rule of law. 
These allegations that the law enforcement personnel turned a 
blind, including the FBI, eye to its exculpatory information 
and allowed an innocent man serve 30 years of a life sentence 
are alarming and warrant thorough investigation.
    Under our criminal justice system, no one should be 
convicted and sentenced contrary to information known to the 
Federal Government. As with the conviction earlier this week in 
the Birmingham civil rights bombing case, we cannot allow the 
egregious actions of 30 years ago to prevent us from doing now 
what is right and what must be done to ensure justice is 
ultimately served.

    I would like to insert into the record the rest of his 
letter. With that we'll go to Mr. Kucinich and then to you, Mr. 
Delahunt.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.007
    
    [GRAPHIC] [TIFF OMITTED] T6507.008
    
    [GRAPHIC] [TIFF OMITTED] T6507.009
    
    [GRAPHIC] [TIFF OMITTED] T6507.010
    
    [GRAPHIC] [TIFF OMITTED] T6507.011
    
    Mr. Kucinich. I yield to Mr. Delahunt.
    Mr. Burton. Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman; and I applaud you 
for initiating these hearings.
    I just want to associate myself with the remarks of Mr. 
Shays. I think, Mr. Salvati and Mrs. Salvati, that his 
eloquence, his obvious emotion really reflect the sentiment of 
everyone on this panel and I am sure most Americans. I want to 
congratulate my colleague from Connecticut for seeing it as it 
is.
    I recently read a newspaper piece describing your story, 
Mrs. Salvati; and in that story you have indicated that no one 
ever had said sorry to you. You have heard that here today, and 
let me also state my profound sorrow for what you experienced.
    And, Mr. Salvati, you should know that you and your family 
and your splendid attorney are making a real contribution to 
the United States. As Mr. Shays indicated, justice is something 
very special in a democracy; and your testimony and your story 
has opened up many, many eyes. We thank you for that and also 
express profound sorrow for what you experienced.
    And, yes, Mr. Garo, you are a hero. I am proud that I am an 
attorney, that we belong to a profession that represents often, 
often those causes that are so unpopular, but that are so 
righteous. In this particular case, I am confident that if it 
had not been for the literally tens of thousands of hours that 
you have spent on this case, your persistence, your 
perseverance, that Joe and Marie Salvati would have never been 
reunited and that this injustice never would have been 
redressed. You are a hero.
    Victor, we met recently in your office. You provided the 
muffins and the coffee. You know my background, that I served 
as the district attorney in the metropolitan Boston area for 
more than 21 years.
    I would be remiss at this point in time not to note at this 
point on the second panel two of America's finest lawyers will 
also testify, Mr. Bailey, Mr. Balliro. All of you reflect such 
great credit on our profession. In an era when sometimes 
attorneys are held in low esteem, you represent the very best.
    Let me conclude, Mr. Chairman, by thanking you for allowing 
me to participate in this hearing.
    I know my two other colleagues from Massachusetts who 
served with me on the Judiciary Committee, Mr. Meehan and Mr. 
Frank, will also be here during the course of the hearing.
    Also, let me indicate that I have been informed that Mr. 
Waxman, who is the ranking Democrat on this committee, is tied 
up with a hearing in the Commerce Committee dealing with the 
issues of energy in California; and since he represents 
California he will obviously be there for a considerable 
portion of this hearing. But I do have a statement that I have 
been asked to submit into the record on behalf of Mr. Waxman.
    Mr. Burton. Without objection, so ordered.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.135
    
    [GRAPHIC] [TIFF OMITTED] T6507.136
    
    Mr. Burton. We will now go to Mr. Barr, but, before we do 
that, let me just thank Mr. Shays for being so diligent in 
bringing this to the committee's attention and making sure we 
had this hearing. If it hadn't have been for all of his hard 
work, we wouldn't be here today.
    Mr. Shays. You were not a hard sell.
    Mr. Burton. Mr. Barr.
    Mr. Barr. Thank you very much, Mr. Chairman, for not only 
convening this hearing today but also for the outstanding work 
of the staff. They have, over the past weeks, put in tremendous 
effort in both quality and quantity of effort, and I appreciate 
very much the dedication of Mr. Wilson and his fine staff in 
pursuing this evidence.
    I appreciate your reading into the record part of the 
letter from FBI Director Freeh. He makes reference in his 
letter to the case earlier this week in Birmingham involving 
the civil rights bombing where four little girls were killed 
many years ago. Just in that case, the inference of those who 
would not let injustice sleep as in this case, even though 
very, very late and after a tremendous injustice has been done, 
at least some folks have stepped forward, including yourself 
and Mr. Shays and our witnesses here today and others, to try 
and see that at least at some point, at some level justice is 
done.
    While this, the letter from the Director, is important, I 
would like to refer also to the very last sentence of Director 
Freeh's statement in which he says that he looks forward to 
working with the committee to ensure that not only the 
troubling allegations raised by Mr. Salvati's case but each of 
the allegations is investigated fully.
    We certainly look forward to working very closely with the 
FBI, even though Director Freeh is leaving; and we certainly 
wish him well. We have tremendous regard for him. We hope that 
his successor is equally committed to pursuing this case so 
that all vestiges of it are aired.
    The purpose of it, as you have indicated, Mr. Chairman, go 
far. I don't understand simply the injustices that were done to 
this family, these individuals, that alone would justify this 
action. But it's important that we also recognize that, in 
trying to correct the injustices in this case, we are taking 
some steps to ensure hopefully that similar cases will not 
arise in the future, both through the example of these hearings 
and, hopefully, further action by the Federal Government and 
the local authorities in directing these injustices but also 
perhaps through looking at legislation, perhaps looking at 
legislation too, that deals with how informants are dealt with 
by the government.
    We certainly recognize that the use of informants is an 
essential law enforcement tool, but it must be done within the 
bounds of the Constitution, the same as all the other things 
law enforcement does.
    So this hearing today is not certainly the end of either 
correcting the injustices in this case, nor is it looking at 
the ways--the very specific ways, Mr. Chairman, that we can 
help ensure that these kind of things will not happen in the 
future, if not through legislation then certainly policy 
changes at a bare minimum.
    Thank you, Mr. Chairman, for convening this hearing and for 
the work of the staff; and I want to testify, beginning here, 
thank very much the witnesses here today and for what they 
represent. Thank you.
    Mr. Burton. Thank you, Mr. Barr.
    Mr. Kanjorski--or did you want to make a comment? Mr. 
Kucinich.
    Mr. Kucinich. Thank you very much, Mr. Chairman, members of 
the committee, to the Salvati family.
    Franz Kafka once wrote a book called ``The Trial'' in which 
an individual was prosecuted, didn't even know why. I don't 
think that Franz Kafka, even with his great skills as a writer, 
could have countenanced the kind of trial and tribulations that 
Mr. Salvati and the Salvati family had to go through for 
decades.
    The scriptures say that blessed are they who suffer 
persecution for justice's sake. The persecution of Mr. Salvati 
is a cautionary tale about the American justice system, and it 
shows the importance of attorneys who are willing to support 
the cause of justice without failing, without flagging but with 
persistence, with integrity, with the willingness to take a 
stand. It shows the quality of character of a family whose name 
was smeared, who endured trials that are of biblical 
proportions and yet who today come before this committee of the 
U.S. Congress fully vindicated and standing for all of America 
to see as a family in triumph, with a wonderful name as a 
family whose name will always be remembered for its 
perseverance, for its endurance and for its love of country. 
God bless you.
    Mr. Burton. Thank you, Mr. Kucinich.
    Mr. Horn.
    Mr. Horn. Mr. Chairman, I commend you for holding this 
hearing and withhold any comment for the question and answer 
period.
    Mr. Burton. Mr. Horn, thank you.
    Mr. Kanjorski, do you have any comment?
    Mr. Kanjorski. No.
    Mr. Burton. Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Chairman. I will be, I 
think, brief.
    There is no doubt in my mind, as I look at this case and 
others, that back in the 1950's and 1960's organized crime was 
a scourge upon the landscape of America; and it isn't 
surprising to me that law enforcement used ordinary and 
extraordinary measures to bring those who would rape, murder 
and extort others to justice.
    However, as Mr. Delahunt has mentioned and others I think 
will mention, prosecuting officials, be they enforcement or 
prosecuting attorneys, have a different responsibility than the 
defense attorney or those lawyers who are hired as advocates. 
Those individuals are bound by ethical considerations and 
confidentialities. But a lot of people who get into the 
business of prosecuting and law enforcement think it's about 
winning and whether or not you can rack up a conviction. It's 
not. It's about doing justice.
    I have always believed prosecuting officials have a higher 
responsibility than others who engage in the practice of law. I 
think the saying is, the power to indict is the power to 
destroy. Simply by taking a good person to the grand jury and 
causing an indictment to be issued with faulty evidence, let 
along convicting and placing that person in prison, you can 
ruin literally a person for life.
    That is why, built into the system are a number of 
safeguards, beginning with the Brady decision in the 1960's. 
The Federal rules and I think State rules have something known 
as rule 16 that indicate that prosecuting officials have a 
responsibility and a duty to hand over exculpatory materials so 
that all facts are known when a jury or judge makes a 
consideration as to a defendant's guilt or innocence.
    If this hearing develops the facts that we believe they 
will over the next few hours, this represents a failure of the 
system. It represents a failure of the responsibility of the 
prosecuting officials involved. It represents a failure of 
ethics; and, more basically, it represents a failure of human 
decency to those who have been involved. And I am glad you are 
here, Mr. Salvati.
    Thank you.
    Mr. Burton. Thank you, Mr. LaTourette.
    Mr. Frank.
    Mr. Frank. Mr. Chairman, along with my colleague, we very 
much appreciate the initiative you have taken of having this 
hearing. I hope there will be further hearings here and in the 
Judiciary Committee because I think we have a very serious 
problem of abuse by law enforcement. Abuse that is the result 
of good motivation and a desire to do good is also abuse. It is 
clear by what has been brought out by Judge Wolf in Boston, by 
the media, that some agents in the FBI violated their oath and, 
in fact, perpetrated injustice, having started out to bring 
justice to people.
    My view is that it is unlikely that what we are now dealing 
with, either here or in the case that Judge Wolf talked about, 
are isolated instances. The nature of bureaucracy is such that 
it is not at all persuasive to me that these are the only 
instances of this. So I think we need a systematic 
investigation so that the important essential and very well-
performed work of the FBI in general is not called into 
question by a certain pattern of actions by a few people that 
causes problems. I think it is important for us to find out 
what and how high up people in the FBI knew and what they did 
about it. So I appreciate your giving us the chance to begin 
this.
    I will now apologize for the fact that the Housing 
Subcommittee, which I am the senior ranking Democrat, is 
meeting simultaneously down the hall, so I will be in and out. 
But I leave with the confidence that my colleague from 
Massachusetts, my former State legislative colleague who spent 
more than 20 years as a first-rate prosecuting attorney in 
Massachusetts and has a good deal of first-hand information 
about this, will be here. Because this is a matter about which 
I have a great deal of confidence in his judgment and his 
knowledge.
    But I do appreciate your beginning this process, and I 
think it is very important for us in the nature of the 
integrity of law enforcement to do a very thorough study to why 
this sort of event happened, again growing out of the zeal to 
do right. But just because bad things were originally motivated 
by the zeal to do right does not in any way justify them or 
mean that they should be overlooked.
    I will say that, in closing, that I have been disappointed 
over a series of events in what seems to me an unwillingness on 
the part of the FBI to be self-critical. We still have the Wen 
Ho Lee case where an FBI agent admittedly gave false testimony 
in court that was material to the outcome that led to a man's 
confinement in part. That happened well over a year ago. The 
FBI still has not dealt with that.
    So I appreciate your being willing, Mr. Chairman, to take 
this on.
    Mr. Burton. Thank you, Mr. Frank.
    Mrs. Davis. No opening statement?
    If not, I think we have covered the panel.
    Mr. and Mrs. Salvati and Mr. Garo, would you please rise to 
be sworn.
    I'm sorry. Mrs. Morella, do you have an opening statement?
    Mrs. Morella. No opening statement.
    Mr. Burton. Would you please rise?
    [Witnesses sworn.]
    Mr. Burton. I guess we will start with Mr. Garo. Would you 
like to make an opening statement? Then we'll go to Mr. Salvati 
and Mrs. Salvati.

  STATEMENTS OF VICTOR J. GARO, ATTORNEY FOR JOSEPH SALVATI; 
               JOSEPH SALVATI; AND MARIE SALVATI

    Mr. Garo. Thank you, Mr. Chairman.
    At the very outset, I would like to thank you, Mr. 
Chairman, and the members of your committee for holding this 
hearing and with the promise of other hearings, because it is a 
story that has to be told. We live in America, not Russia.
    In trying to find the opening remarks that I wanted to say, 
I thought very deeply as to how I wanted to begin; and I would 
like to begin as follows, if I may, Mr. Chairman: With liberty 
and justice for all. Those are famed words from our Pledge of 
Allegiance to our flag. Many dedicated men and women gave their 
lives for those words. Those words are the foundation of our 
country.
    However, the FBI's investigation and participation in the 
Deegan murder investigation has made a mockery of those words. 
The FBI determined that the lives of these people were 
expendable; that the life of Joe Salvati, my friend and client, 
was expendable; that the life and future of his wonderful wife 
and my friend, Marie, was expendable; and that the four young 
lives of their children, at the time ages 4, 7, 9 and 11, were 
expendable.
    From the very beginning, I said, no, they were not 
expendable. I don't believe a life is expendable.
    What has gone on here, and as you will find out from the 
evidence as presented and the herculean efforts of counsel and 
his staff of putting together these documents, that this is 
probably the most classic example of man's inhumanity to man.
    We are a system of laws. We are supposed to be a system of 
justice. Only justice failed Joseph Salvati, justice failed 
Marie Salvati, and justice failed their four young children.
    As was just indicated, the FBI has always had a gloried 
background. What happened here in the big view of what was 
going on I think is important to understand.
    The FBI determined that it was important to bring down 
organized crime in the Northeast area. At that time, the 
alleged organized crime figure in Massachusetts was Mr. 
Angiulo. The alleged organized crime boss of the New England 
crime family was allegedly Raymond Patriarca. In the Deegan 
murder investigation there was the right arms of Mr. Angiulo 
and Mr. Patriarca and other people that they wanted off the 
street. And with one witness, Joseph ``the Animal'' Barboza, 
who gave uncorroborated testimony in three cases, the 
government had what they wanted. The Federal Government had 
what they wanted. They wanted the press and the recognition 
that they were crime fighters, and based on that premise they 
issued propaganda to the press and to anyone who would listen 
to them.
    There's more than just an apology that should be made to my 
clients. There is an apology that should be made to the 
citizens of the United States and to the premises of the United 
States. Because you were all taken in by the name of the FBI. 
It was more important to the FBI that they protected their 
prized informants than it was for innocent people not to be 
framed.
    The truth be damned. It didn't matter, the truth. We want 
convictions. We don't care what happens to Joe Salvati. We 
don't care what happens to Marie Salvati. We don't care what 
happens to their four young children.
    I care. I have cared for over 26 years.
    The entire saga here can be summed up like this: The FBI 
determined who got liberty, the FBI determined who got justice, 
and justice was not for all. It was for they who determined 
that justice was for.
    What Constitution? What Bill of Rights? What human rights? 
What human decency? We're the FBI. We don't have to adhere to 
those principals so long as we have good press and so long as 
we get convictions. That will show that the ends justify the 
means.
    Many defense lawyers like myself have through the decades 
fought difficult battles because the whispering campaigns would 
begin, such as, yeah, right, Salvati is innocent? He comes from 
the north end, you know what I mean? Right.
    The mere fact that they were the FBI and those are the type 
of comments that they would make, it was all done with a 
purpose in mind so that the press that is here today would not 
get involved with the stories. They didn't want anyone 
investigating the investigators. Because they couldn't pass the 
smell test of honesty. No human rights, no human decency.
    From the evidence that you will have before you, Mr. 
Chairman, and the evidence that I have, I believe it allows me 
to say the following: It is my opinion that J. Edgar Hoover, 
former Director of the FBI, conspired with FBI agents to murder 
Joseph Salvati. The manner of means by which that murder was to 
be committed was by way of an indictment on October 25, 1967 
where the penalty was death by the electric chair.
    J. Edgar Hoover knew the evidence of his prized informants, 
and he allowed Barboza to commit perjury in that first degree 
murder case. In my opinion, the date of October 25, 1967, will 
go down in the annals of the FBI as their day of infamy. 
Because it was on that day that the Director of the FBI crossed 
over the line and became a criminal himself.
    Mr. Chairman and members of the committee, we're not here 
to paint with the same brush all of the FBI and agents of the 
FBI or law or law enforcement. Because they do a good job. 
Because we need them to protect us from those that would harm 
us.
    But they who are under sacred oath and trust of allegiance 
to our country have to be accountable for their actions. And it 
isn't just the role of a few. It was known from the agents to 
those who were in charge of the Boston office of the FBI and 
with the evidence that you have that J. Edgar Hoover himself 
knew exactly what was going on. The truth be damned. 
Convictions are what we want.
    What has been very worrying to my clients, who are my 
friends, is that there is a complete denial in the Boston 
office of the FBI that they have done anything wrong. Now the 
flip side of that argument would be, we haven't done anything 
wrong, so therefore we're going to continue and keep doing the 
same things over and over.
    That's unacceptable to us. In saying those words, they are 
trivializing my client's 30 years in prison. They are 
trivializing his wife's 30 years without a husband. They are 
trivializing the four young children growing up without the 
love and companionship of their father. And we won't allow that 
to happen.
    When did the FBI stop having a heart? When did our justice 
system stop caring for our citizens? When did they stop caring 
about a loving family being broken apart?
    On the date of January 30, 2001, Mr. Chairman, I was asked 
by many reporters, you must feel very vindicated, Mr. Garo, and 
you must feel very happy that your client has walked out a free 
man. And it was just the contrary, Mr. Chairman. It was a very 
sad day in my life.
    Because everything that I had been saying for all those 
years, 26 of them, came to be true. That means that the 
government stole my client's life for 30 years, his wife's life 
for 30 years and the children's lives for 30 years. The FBI 
acted like a god. They determined liberty and justice for all. 
Not our justice system. The FBI.
    In closing, I would like to just make some examples of the 
emotional part of this case.
    I used to have meetings, Mr. Chairman, with my client's 
children and Mrs. Salvati. I would meet with them every 3 or 4 
months to bring them some type of hope. Because H-O-P-E, those 
four letters, that's all they had. They had this fat bald guy. 
That is all they had to try to explain, we'll try a new way to 
do it. We'll find another door maybe we can open. We will find 
another way. Maybe we can do this. But we'll do it.
    I said to the son, Anthony, the youngest of the children, 
in one of our meetings, I said, Anthony, when I get your dad 
home, you're going to say I created a monster. Because he's 
going to follow you around, and he's going to want to know 
everything you have done. Anthony is a rather emotional young 
gentleman, and gentleman he is. And he came over, and he sat 
beside me on the couch, and he said, no, Victor. He says, I 
have never seen my father get up in the morning, I have never 
had breakfast with my father in the morning, I've never taken a 
walk with my father, and I have never gone to a ball game with 
my father. I sure do want to do that in the future with my dad.
    A second example is their daughter, Sharon. In returning 
from one of the visits before the trial of her father, she came 
home and asked her mother and then asked her father, daddy, 
what's the electric chair? They say you're going to get the 
electric chair. Are they giving you a present?
    Tell me how a father and tell me how a mother explains that 
to a young child around 8 or 9 years old.
    Finally, there is a story about love, commitment and 
devotion, of good people. When I used to visit Marie Salvati 
and her children at home, small one bedroom apartment, I always 
used to see a card on top of the TV stand, on top of the TV; 
and I saw it many times. I never asked a question, but I always 
noticed when I got there it was always a different card. I said 
one time, Marie, can I go over and look at that card? She said, 
yes, Victor.
    Mr. Chairman, I have to say to you that when I went there 
and I saw it, a tear came to my eye. Because she never, ever 
mentioned this to me for decades, and neither did my client. 
How Joe and Marie kept their love and life together was by 
small, little things. Every Friday Marie Salvati would receive 
from her husband beautiful love cards. And inside those cards 
was always a statement of Joe Salvati to his wife. What else 
can I say? I love you. I love you. I have everything. I miss 
you, and I love you, Joe.
    Marie Salvati has said to me, Mr. Chairman, that sometimes 
her life has been lived in a shoe box. Mr. Chairman and members 
of the committee, they have several shoe boxes of all the cards 
that she has saved over the years of his incarceration.
    I bring those out, Mr. Chairman and members of committee, 
and I know maybe I have taken a little bit more time, and I'm 
sorry. But these are stories that people don't want to have 
told. They don't want you to understand the pain and the 
suffering that this family has endured. It is inhuman.
    So I say to you, Mr. Chairman, in closing, that I think 
when you have this hearing and the other hearings that you're 
going to conduct, I have an opinion. It came true in the Joe 
Salvati case, and I have an opinion that I would like to share 
with you, Mr. Chairman and members of committee.
    It is my opinion, when you discover all of the evidence in 
this case and the hearings, that you are going to hold that 
this is a scandal that is bigger than Watergate. It is broader 
than Watergate. It deals with people's lives, whether they get 
killed or not killed. It depends on whether you go to jail or 
not to jail. They determined, as God, who lived, who died and 
who went to prison. Out of control. That's what was happening 
in four decades in Boston.
    So I say, Mr. Chairman, that I cannot thank you enough for 
allowing us to come here today to share with you our thoughts 
and evidence. God bless you.
    Mr. Burton. Thank you, Mr. Garo.
    I understand you have a chronology of events that you want 
to go into. Why don't we have Mr. Salvati and Mrs. Salvati make 
a statement, and then we'll come back to you. And if you could 
quickly go through the chronology I would appreciate it.
    [The prepared statement of Mr. Garo follows:]
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    [GRAPHIC] [TIFF OMITTED] T6507.016
    
    Mr. Burton. Mr. Salvati.
    Mr. Salvati. Thank you, Mr. Chairman.
    I want to thank this committee for holding this hearing. 
This is a story that needs to be told so the country can know 
what awesome power the government has over our lives.
    When I was arrested on October 25, 1967, for participating 
in the Edward ``Teddy'' Deegan murder, I was devastated. How do 
you prove that you're innocent? There were constant stories in 
the media that I was a very bad person and one not to be 
respected.
    The government stole more than 30 years of my life. Just 
the statement of 30 years in prison can run shivers up and down 
your spine. My life as a husband and father came to a tumbling 
halt.
    In order to clear my name, it has been a long and 
frustrating battle. Yet, through all the heartbreak and 
sometimes throughout the years, my wife and I have remained 
very much in love. Prison may have separated us physically, but 
our love has always kept us together mentally and emotionally. 
Our children have always been foremost in our minds. We tried 
our best to raise them in a loving and caring atmosphere even 
though we were separated by prison walls.
    More than once my heart was broken because I was unable to 
be with my family at very important times. However, through 
love and courage, all of us have battled back through times of 
adversity. We were strong in bad times, and we are still strong 
in good times.
    I am here to talk about our most precious possession of 
all: Freedom.
    As you know, I have served 30 hard and long years in prison 
for a crime I did not commit. However, I still consider our 
justice system to be the greatest system in the world. But 
sometimes it fails, as in my case. I became a casualty in the 
war against crime.
    The justice system has finally worked for me, although it 
has taken over 34 years. I wouldn't be here before you today if 
it weren't for an honest, dedicated assistant U.S. attorney by 
the name of John Durham. The FBI agents working for him found 
documents, and these documents were sent to my lawyer. We need 
agencies like the FBI, because there are many out in the world 
that want to hurt us; however, when the FBI or any other 
similar agencies break the law, they must be held accountable 
for their crimes.
    Finally, I'd like to say a few things about my wife. She is 
a woman with great strength and character. She has always been 
there for me in my darkest hours. She brought up our four 
children and gave them a caring and loving home. When God made 
my Marie, they threw the mold away.
    Mr. Burton. It's OK. Take your time.
    Mr. Garo. Mr. Chairman, may I please finish those last two 
sentences for Mr. Salvati?
    Mr. Burton. Sure.
    Mr. Garo. When God made my Marie, the mold was thrown away. 
I am one of the luckiest men in the world to have such a 
devoted and caring wife, my precious Marie.
    Mr. Burton. Thank you, Mr. Salvati.
    [The prepared statement of Mr. Salvati follows:]
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    [GRAPHIC] [TIFF OMITTED] T6507.019
    
    Mr. Burton. Ms. Salvati, do you have a statement?
    Mrs. Salvati. Yes, thank you.
    Mrs. Salvati. Chairperson and everybody here, it's just 
overwhelming. OK. At the very outset, I want to thank this 
committee for holding this hearing and for asking us to 
participate in order that we can tell our story.
    From October 25, 1967, the date my husband was arrested, 
until January 30, 2001, when all the charges were dropped, my 
life was extremely difficult. The government took away my 
husband and the father of our four children in 1967. My world 
was shattered. This wonderful life that we shared was gone. I 
was looked down upon by many. As we all know, children can 
sometimes be cruel. Other children in our neighborhood would 
make fun of the fact that their father had been arrested for 
murder, and they would taunt some of them and say, shoot you, 
bang-bang. Your father is going to die; you know, things that 
would really hurt the family. And my children would come home 
crying to me. And I did my best to comfort them in bad times, 
but I had no one to comfort me when my children went to bed. 
Many a night I cried by myself, and I suffered in silence.
    When my husband was arrested on October 25, 1967, I found 
out that the punishment for the crime was death in the electric 
chair. That potential sentence weighed heavily on me until he 
was sentenced on July 31, 1968, and received a life sentence 
without parole.
    The government stole 30 years of my life. I was unable to 
share with my husband the joys of being a husband and a wife. 
The government stole 30 years from my children, because they 
grew up without their father. However, the government was never 
able to break our spirit. Our love grew stronger, and I always 
knew my husband was innocent. I know the moral character my 
husband possessed. I did not accept as my destiny that my 
husband would never come home again. I always had faith and 
love.
    Our lawyer, Vic Garo, always instilled in us that the glass 
was half full and not half empty. We gathered strength from 
this fact and that he believed Joe was innocent from the very 
beginning of his representation of my husband and my family.
    While my husband was in prison, the pact between us was I 
would not inform him of the problems at home. You know, I used 
to say to my husband, you take care of yourself on the inside, 
and I'll take care of the family on the outside.
    From the very beginning of imprisonment, I knew that it 
would be important for the children to have constant contact 
with their family, with their father. And every weekend, you 
know, I'd dress up, pack a little lunch, and we'd go off to see 
him for their hugs and their kisses and whatever went on. And 
he would give them a father's guidance, even though he was not 
home with them. Sometimes it took hours to get there, and every 
time you got there, you were all nervous.
    My husband and I have endured many hardships. As we grow 
older, we still have the cherished feeling that a husband and 
wife can have. We love each other very much. God bless you all.
    [The prepared statement of Mrs. Salvati follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.020
    
    [GRAPHIC] [TIFF OMITTED] T6507.021
    
    Mr. Burton. Let me just say to both of you, Mr. and Mrs. 
Salvati, this has got to be a very difficult time to bring all 
of this out, but I'll tell you, it's important for not only the 
Congress, but the American people to see the emotion and the 
heartache that you guys had to suffer through for 30 years. And 
so I apologize for you having to make these statements, but I 
think you're doing an awful lot of good, because it's going to 
show the country that we must never allow innocent people to 
suffer like you folks have.
    Mr. Garo, you want to go through that real quickly, the 
chronology of events?
    Mr. Garo. Thank you, Mr. Chairman. As I said in the 
beginning, it is a very emotional case, and I thank you for 
allowing us to make those statements.
    My representation of Mr. Salvati began in 1976 when I was 
asked to come down to see him by a client of mine who was in 
prison. I met Mr. Salvati. It was a dark, dreary, rainy day, 
and I went down to see him, and he told me the facts upon which 
that he was convicted. From the very facts he told me, I said, 
this doesn't seem correct to me. How could you be convicted on 
those facts?
    I then did my own independent investigation, Mr. Chairman, 
and I found that what he said was so, not that I did not 
believe him. I just had to check the facts. I agreed to 
represent him and help him to gain freedom, and they gave me a 
retainer. Shortly after that, I found out that this family did 
not have a lot of money. I returned the money back to him, Mr. 
Chairman, and I said that I would stay with you. It's true, I 
never thought it would be 26 years later and over 20,000 free 
hours of my time, but I was brought up that when you make a 
commitment, you keep a commitment, and I've kept that 
commitment.
    If I may, Mr. Chairman, I'd like to go over just for a few 
minutes, if I may, about the facts that were told in court by 
Joe ``the Animal'' Barboza concerning Mr. Salvati. On or about 
January 20, 1965, Barboza testified that one Peter Limone 
offered him a contract for $7,500 to kill one Teddy Deegan. 
Barboza then said it took from January 20th until March 12, 
1965 to put together his death squad. He went around the 
country, he said, to go get participants in this murder. They 
were going to do this through a setup, Mr. Chairman, of Mr. 
Deegan being involved in a breaking and entering in the Chelsea 
alley of a finance company, and it was supposed to be set up by 
certain people. Deegan would go in the alley and would be shot 
to death.
    On March 12, 1965, the day of the killing, Barboza in the 
middle of the afternoon said, Salvati has got to be involved in 
the killing tonight. As a matter of fact, he's going to be my 
getaway car driver, and he's going to wear three disguises. 
He's going to wear a wig to make him look bald. He's going to 
wear a pair of sunglasses and a mustache. Later that night, at 
about 7:30, Barboza testified that when he went to the Ebb Tide 
Restaurant and Lounge, which was a hangout for organized crime, 
he saw Joe Salvati at the bar, and he said to Joe Salvati, go 
outside and warm up the car, Joe.
    Now, mind you, that night, they did not know if the 
breaking and entering was going to happen. The murder would 
depend on whether or not there was going to be a breaking and 
entering that night. Since they didn't know that was going to 
happen, no one knew the time that it would happen or if it 
would happen, but Joe Salvati is still warming up the car. It's 
7:30. At 9 o'clock, Barboza receives the nod from a Roy French, 
indicating that the breaking and entering was going to take 
place and that Deegan would be there. That was the signal for 
Barboza to leave and to go and kill Teddy Deegan.
    Barboza goes out to the car sometime about quarter past 9 
and gets in and drives the car, tells Salvati to get in the 
back seat. Barboza then says, we go to the area and we bend the 
license plates--in those days you had a front license plate and 
a rear license plate--and they bent it in half to hide their 
identity. As they were in the car, a person was walking toward 
them, and Barboza said, I think it's the law. And it was. It 
was a captain of the Chelsea Police Department. Barboza saw him 
and said he took off at a high rate of speed. The captain later 
said that he saw a man in the back seat with a bald head, bald 
spot, and he was able to find the first three numbers of the 
license plate, 404.
    Barboza then said he went back to the Ebb Tide. He told Joe 
Salvati, go throw away the guns, throw away the disguises, and 
meet me in the bar. He then said that he split up the money 
with Salvati the next day. All that testimony came from Joe 
``the Animal'' Barboza, uncorroborated, no other witness, just 
him.
    Three things that always bothered me, Mr. Chairman, from 
the first time I ever heard the story: Timing. Why would 
Barboza hire someone to be involved in a killing that afternoon 
when it had taken him 2 months to put together his death squad? 
It didn't make sense to me. Two, he was going to be my getaway 
car driver. Getaway car driver? Salvati and Barboza never hung 
with each other, never associated with each other, were not 
partners. Barboza was a killer. Salvati was never. Barboza was 
a hit man. Salvati was not. And they knew who Barboza's 
partners were. Salvati never hung with Barboza, never 
associated with Barboza, other than a year later when he 
borrowed $400 from one of Barboza's associates. And we said, 
wouldn't there be a dry run? Salvati came from the north end of 
Boston. This was a killing that was supposed to take place in 
Chelsea, and I said, wouldn't a getaway car driver, at that--
want to know the street that you could go up and down? That 
bothered me, Mr. Chairman.
    And the third one is that of all the killers in this case, 
Salvati had to wear three disguises, and the three disguises 
were a wig to make him look bald, a pair of sunglasses and a 
mustache. Now, from what I understand of law enforcement is 
that the reason why you wear disguises, because everybody knows 
who you are. Mr. Salvati had one criminal conviction in 1956. 
He was not known to the police, not known to the Chelsea Police 
Department, not known to the Boston Police Department as a 
driver or somebody for Barboza; didn't hang with Barboza. And I 
said, why would Barboza want somebody to wear three disguises?
    Well, now, of course, you know from the evidence that you 
have seen and that your counsel Mr. Wilson and his staff so 
ably has put together, you have come to find out that story was 
all made up and a fabrication. But one thing wasn't a 
fabrication. They did do a dry run. Can you imagine Mr. Salvati 
at 7:30 warming up the car, quarter of 8 warming up the car, 8 
o'clock warming up the car, quarter past 8 warming up the car, 
8:30 warming up the car, quarter of 9 warming up the car? They 
didn't know what time this was going to be. That was the best 
heated car in the world. This could have ran anyplace. They 
almost ran out of gas. Did that make sense to anybody? It 
didn't make sense to me.
    Now, what is it that has happened? The biggest break in 
this case happened in 1989 when we were receiving a commutation 
hearing that took place in August 1989. About 3 weeks before 
that event, I obtained a copy of a hidden Chelsea Police 
Department report. In that report it had an informant who 
mentioned who left the Ebb Tide that night, who went out to do 
the killing, and then when they came back, he said, we nailed 
him.
    Now, under the law at that time under Rowe v. United 
States, if they knew there were informants and that defense 
counsel would have known it, they could have made a motion for 
the name of the informant. But, of course, the FBI was 
protecting informants, because, lo and behold, who were their 
informants back at that time? I had always said that Barboza 
was hiding a friend or a close associate. Yeah, Vinny Flemmi 
was his partner. Vinny Flemmi was bald. Vinny Flemmi had a 
bigger criminal record than Joe Barboza. He was a killer, a 
known thug, and known as a driver for Barboza 90 to 95 percent 
of the time, because he was his chauffeur, because he trusted 
him.
    When I received that report, I then went out and did my own 
investigation, because I was not an organized criminal defense 
attorney. Most of my work was in white collar crimes. When I 
looked at it, I had my investigators go out and check out who 
these people were. Lo and behold, Mr. Chairman, we find out 
that one of the men mentioned was Vincent Flemmi. I went out 
and checked who Vincent Flemmi was. He was bald. I found out 
his record. I said my God, that's who was there that night. It 
wasn't Joe Salvati. It was Vincent Flemmi.
    When I brought that to the attention of the parole board in 
1989, we received the unanimous vote of the parole board. The 
only problem is, Mr. Chairman, from 1986 to 1989, the FBI told 
the parole board that my client was going to get indicted, so 
don't give him a commutation hearing. Four years went by, and 
they said, don't you understand it's all phony information 
you're receiving? I appeared in 1989, Mr. Chairman, before the 
parole board. Mr. Salvati, after the unanimous vote of the 
parole board, finally gets out on his commutation on March 20, 
1997.
    Make no mistake about it, the Federal Government and the 
State government never wanted Mr. Salvati ever to get out of 
prison, because dead men tell no tales, and we wouldn't be here 
today before you if they had succeeded. Three of the six, 
though, have died in prison. Mr. Salvati is here today before 
you because he survived 30 hard years in prison.
    Now, in 1993, Mr. Chairman, I obtained new evidence, and 
finally I was able to obtain coverage by the press in this case 
because of an event that occurred on the commutation, Mr. 
Chairman. On January 20, Governor William Weld at that time 
denied my client's commutation because of his long criminal 
record, one criminal conviction in 1956. I said, I need some 
help. And I did get that help from a reporter back in Boston by 
the name of Dan Rea, CBS affiliate, channel 4, WBZ, and he 
became my advocate through the press of our story. And through 
the years, he did many, many stories, and we found much, much 
evidence, as you have here documented before you. But no one 
wanted to listen to it. No one wanted to see it, because, you 
know, Salvati, yeah, he's innocent, right, yeah, right, all 
those words.
    In 1997, we obtained a commutation, and probably the most 
important day in the history of this case occurred in my 
office, Mr. Chairman, on the date of December 19, 2000. And 
that was when an assistant U.S. attorney named John Durham, who 
was in charge of the Justice Task Force in Boston that is 
investigating criminal activities of FBI agents, called me and 
said, Mr. Garo, I have some evidence for you. I'd like to come 
over to your office and see you. He delivered those documents 
that you have, Mr. Chairman, and it showed a shocking, shocking 
story that now we know the entire story that Mr. Barboza made 
up was untrue. When we saw that evidence, Mr. Chairman, it was 
shocking to me, and I just sat down looking at it.
    On January 18, 2001, Mr. Chairman, the Suffolk County 
district attorneys on its own motion made a motion to vacate 
the judgment and the sentence and requested a motion for new 
trial that was allowed. On January 30, 2001, Mr. Chairman, Mr. 
Salvati walked out of the courtroom a free man for the first 
time since October 25, 1967.
    Mr. Burton. Thank you, Mr. Garo.
    We will now go to questioning. We'll start--Mr. Shays, 
would you like to start?
    Mr. Shays. Thank you, Mr. Chairman.
    Mr. Burton. Mr. Shays. We will proceed under the 5-minute 
rule today, so every Member that wants to ask questions will be 
able to quickly.
    Mr. Shays. Mr. Salvati, I love your gentleness, and I love 
your wife.
    Mr. Salvati, has anyone in the government ever told you or 
your children that they're sorry for what happened to you?
    Mr. Salvati. No, they haven't.
    Mr. Shays. Do you think people knew all along that you were 
innocent?
    Mr. Salvati. A lot of people did, yes.
    Mr. Shays. Mr. Garo, why does this case mean so much to 
you? You told me a story about your mother. Real short, tell it 
to us.
    Mr. Garo. My mother was brought up as an orphan from age 3, 
and my father was born into abject poverty. When I passed the 
bar exam on November 9th, and when I was sworn in as an 
attorney on November 9, 1965, my mother and father took me to 
afternoon lunch that day. They were very proud, as I was, about 
the accomplishment. And my mother and father said to me that 
day, Congressman, that, look, now that you're a lawyer, you can 
go out and help people. Go help people. Don't do it for the 
money. Do it to go help them. The money will come, but don't do 
it just for the money. And I followed certain values I believe 
that my mother and father instilled in me.
    I had a one-man law office, and the only way that I would 
keep business was to have personalized service. My mother for 
years talked to Joe Salvati, and they became friends over the 
phone, and my mother knew all the evidence that we had and were 
trying to do for Joe Salvati. And my mother was very sickly 
toward the end of the 1980's, and shortly before she passed 
away, my mother said to me as follows: ``No one will represent 
Joe Salvati in this matter unless you stay with him. So I want 
you to promise me that you will stay with Joe Salvati until you 
walk him out of prison.''
    On March 20, 1997, with the wonderful help of the 
Massachusetts Department of Corrections, they allowed only two 
people to walk out of prison that day, and that was Joe Salvati 
and myself. After we left the prison and went to the parole 
officer that Joe had to go to, Joe and Marie, my father and 
myself all went to my mother's gravesite, and I placed roses on 
her grave, and I said, ``Mommy, I kept my promise.''
    Mr. Shays. Thank you for keeping your promise.
    Mrs. Salvati, I am amazed at your strength. I am amazed at 
the love you had for a man who was in prison for 30 years. I 
would love to know how you did it.
    Mrs. Salvati. You know how I did it. We were always a 
happy, loving couple, and I wouldn't have it any other way. My 
family values, my children, it was so important for me to keep 
it all together. You know, and when I went to visit him, like 
on the weekends, my children needed the hugs. They needed the 
kisses from their father. They needed all that stuff. So I 
tried to put it all together the best I could.
    I reevaluated myself, you know, and I put my goals and my 
objectives, and I feel like I've done the right thing in life. 
I've worked. I went on to be a program director of the Head 
Start Program, and, you know, you do what you have to do. And 
we always believed in his innocence, and it was just, you know, 
like I said in my opening remarks here, you know, it wasn't 
hard to do. In a way it wasn't, because we had the love of my 
husband. I had my family, and I was just a--I don't know. I was 
driven. It was something that I felt like I could never give 
up, and that's how I felt about it.
    And then, like, 10 years came, and we put in appeals, and 
then you get some--you know, get some good reports, and then 
you still have----
    Mr. Shays. You still kept hope alive?
    Mrs. Salvati. Yes, yes. Never gave up.
    Mr. Shays. I have other questions, but I won't get to them 
now.
    Mr. Salvati, I want to know about your first attorney. I 
want to know if you were under a jury trial. I want to know why 
you didn't win that case in the first time around, and I'll ask 
that later, but it's not now.
    Mr. Chairman, thank you.
    Mr. Burton. Did the gentleman yield his time or----
    Mr. Shays. I finished.
    Mr. Burton. Oh, you finished. OK.
    Mr. Kanjorski.
    Mr. Kanjorski. Thank you very much, Mr. Chairman.
    Mr. Garo, being a lawyer, you make me proud of the 
profession. That doesn't happen too often when you're sitting 
on this side of the aisle and dealing with----
    Mr. Garo. Thank you, Mr. Congressman.
    Mr. Kanjorski [continuing]. This profession in Washington.
    Let me ask you this, though. Looking at the statement of 
facts and the evidence, is this peculiar to the Boston area, or 
is it possible that this is occurring in other American cities 
and in other FBI offices across this country?
    Mr. Garo. That's a good question, Mr. Congressman, and I 
guess my best answer that I can give to that is this, that if 
you have a cookie cutter and it works one place, that it should 
be able to work a second place, a third place and the fourth 
place. I have a distinct feeling that this is not just a 
situation that happens only here in Boston. I think there are 
those and many around that would like us to believe that it was 
only happening in Boston, and when these actions and these 
events were allowed to happen by the Director of the FBI, I 
just don't believe it just happened in Boston. And I think that 
the good that can come out of this hearing and other hearings 
will be that maybe other people will come forward with similar 
situations and would have the courage to face up and say what 
they have to say.
    Mr. Kanjorski. Do we in the Congress have a process of 
oversight of the FBI and to look through these complaints that 
may have occurred across the country, or is this a unique 
situation?
    Mr. Garo. I think, Mr. Congressman, that if you people 
don't have this type of power, then who is investigating or 
watching over the investigators? Because there has to be some 
accountability, there has to be some checks and balances, and 
that's one of the reasons why we ask this honorable committee 
in all of your power and wisdom that you might be able to help 
us so that another family doesn't go through this again.
    Mr. Kanjorski. Mr. Garo, a lot of discussions are occurring 
in the country right now on the question of capital punishment. 
At this time the State of Massachusetts--or the Commonwealth of 
Massachusetts did have capital punishment----
    Mr. Garo. At that time, yes, Mr. Congressman.
    Mr. Kanjorski. If, in fact, Mr. Salvati had been sentenced 
to die in the electric chair or by lethal injection, 30 years 
he would have been executed; is that correct?
    Mr. Garo. That's correct.
    Mr. Kanjorski. So this is another very strong piece of 
evidence for us to reexamine the whole concept of capital 
punishment, particularly many cases of convictions of 
uncorroborated testimony.
    Mr. Garo. Absolutely. And you hit the nail right on the 
head, Mr. Congressman, when you're dealing with the 
uncorroborated testimony of a person who is more of a killer 
than anything else, because the FBI, Mr. Congressman, at that 
time made the determination that it was far more important for 
them to protect the integrity of the informant system than it 
was to see innocent people go to prison or to potentially die 
in the electric chair.
    Mr. Kanjorski. I'm aware of some of the investigations of 
organized crime that have occurred in the Northeast and the 
Philadelphia area, and I am aware of what I tend to believe is 
selective prosecution; that when you read the wiretap evidence 
or other material, there are a host of crimes against sometimes 
very involved and very impressive people that seem to be 
totally ignored, and the FBI and the Federal attorneys seem to 
narrow in and focus in on their hunt, if you will, or their 
bait. Do you find that in Boston to be the factor?
    Mr. Garo. I would say that whatever you can think of, 
you'll find it in Boston. If there's any type of corruption 
that hasn't come forward and it hasn't been prosecuted, when 
you still have the FBI in Boston, Mr. Congressman, still 
maintaining today that they did nothing wrong, and a superior 
court judge has already discharged the cases, and the district 
attorney's office refuses to retry them because of what they 
have done, then we're out of control.
    Mr. Kanjorski. Mr. Garo, I complimented you as a lawyer in 
the legal profession, but it's almost impossible for me to 
believe that Federal prosecutors and members of the Justice 
Department and the FBI were not aware of this miscarriage of 
justice. Has any disbarment or prosecution of any of the 
professionals involved in this case taken place?
    Mr. Garo. Mr. Congressman, I would say to you that other 
than certain investigations that are being conducted by John 
Durham, assistant U.S. attorney in Boston, especially assigned 
to the Justice Task Force, he is trying to get to the bottom of 
what FBI agents and what the statute of limitations problems 
are and the prosecution of those agents is really about.
    You will find, Mr. Congressman, if you check in the 
newspapers and in the records in Massachusetts, that we have 
been saying things about this case for decades, Mr. 
Congressman, and no one has bothered to ever investigate any 
part of this. There are State crimes, Mr. Congressman, that 
have been committed here, and there's been no grand juries held 
for accountability of what local law enforcement officials did. 
Let us hope, Mr. Congressman--and that's our hope here, Mr. 
Chairman, is that through your committee and through your 
hearings that maybe the truth will finally come out.
    And it's interesting that my pastor at my church has said 
it well: The truth will set them free, but no one wants to tell 
the truth.
    Mr. Kanjorski. Thank you, sir.
    Mr. Garo. Thank you, Mr. Congressman.
    Mr. Burton. Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Chairman and Mr. Garo.
    You described in your testimony--your written statement 
that your first big break, I think you called it, was the 
delivery to you of the Chelsea police report, and that was in 
1989 at the----
    Mr. Garo. That is correct, Mr. Congressman.
    Mr. LaTourette [continuing]. Commutation hearing. Have you 
had a chance to talk to the lawyer that represented Mr. Salvati 
at this trial?
    Mr. Garo. Let me just say about this very eminent counsel 
here, Mr. Balliro, who was a lawyer at that time and 
representing the case, that case was stacked, Mr. Congressman; 
that God could have come down and tried that case, and he would 
have never won that case. The chicanery that was involved with 
the evidence in this case, and the hiding of the evidence, and 
the wheeling and dealing behind the scenes, no one had an 
opportunity to win that case. And that's why, if I may just----
    Mr. LaTourette. Sure. Sure.
    Mr. Garo. That's why I have never and will never, ever say 
anything about legal counsel at that trial. They tried their 
damnedest, but they were up against an insurmountable wall.
    Mr. LaTourette. And by asking that question, I wasn't 
meaning to disparage the trial counsel.
    Mr. Garo. I understand.
    Mr. LaTourette. But my question was, do you feel 
comfortable and confident that this 3-page--it's exhibit 11 in 
the book in front of you, but do you feel comfortable and 
confident that no one in the defense had access to or----
    Mr. Garo. Absolutely not.
    Mr. LaTourette [continuing]. Knew of the existence of this 
report?
    [Exhibit 11 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.053
    
    [GRAPHIC] [TIFF OMITTED] T6507.054
    
    [GRAPHIC] [TIFF OMITTED] T6507.055
    
    Mr. Garo. Absolutely not. As much as the judicial opinions 
in the case have tried to place it in the hands, through 
unbelievable miscarriage of the facts in the case, no, it was 
never had.
    Mr. LaTourette. And just for the purposes of the record, 
the reason that the report, I think, written by a lieutenant in 
the Chelsea Police Department, was significant, on page 3 of 
the report, it mentioned confidential information as to who the 
murderers were eventually?
    Mr. Garo. That is correct. As a matter of fact, from the 
evidence that you have in your pamphlets, provided by chief 
legal counsel and the staff, you will see that the exact 
killers that were mentioned in the Chelsea police--hidden 
police report were the same as the killers that were mentioned 
on March 13, 1965 by Vincent Jimmy ``the Bear'' Flemmi to a 
prized informant of the FBI, who I say, Mr. Chairman, in my 
opinion, was his brother Steven Flemmi.
    Mr. LaTourette. OK. Did you have the opportunity to chat 
with the individual prosecuting authorities about this Chelsea 
Police Department report after it was discovered to you in 
1989?
    Mr. Garo. Yes, I did.
    Mr. LaTourette. And who was the prosecuting----
    Mr. Garo. The prosecutor in the case was an attorney Jack 
Zalkind.
    Mr. LaTourette. And can you relate to the committee what 
the substance of that conversation was?
    Mr. Garo. Surely. In fact, he has filed an affidavit that I 
have filed in court, and Mr. Zalkind said that he had never 
known that Chelsea police report ever existed as to whether or 
not there was an informant in there. He said if he had known 
that there was an informant there that night that did not see 
Mr. Salvati, that he would have done a more thorough 
investigation, and Mr. Salvati may never have been indicted.
    Now, what's interesting to note, Mr. Congressman, is that 
when I filed my motion for new trial in 1993, the District 
Attorney's Office of Suffolk County filed that affidavit by a 
Mr. McDonough, who was the legal assistant to Mr. Zalkind, who 
stated in his affidavit that that police report was in the 
files when he was there as a legal assistant to Mr. Zalkind. So 
what we have, Mr. Congressman, is we have prosecutors saying, I 
didn't have it, a legal assistant who said that it was there. I 
don't care who had it or what had it. If they said it was 
there, they didn't do anything with it, and you're going to 
have people die in the electric chair. My God. Don't you think 
you have a duty to go and investigate that? It's 
unconscionable, Mr. Congressman.
    Mr. LaTourette. Did you--it was written by a Lieutenant 
Thomas Evans. Did you ever have a chance to chat with him about 
when it was prepared or anything of that nature?
    Mr. Garo. No. Lieutenant Evans had passed away.
    Mr. LaTourette. Had he? OK.
    Mr. Garo. But what I did do, Mr. Congressman, and that's an 
excellent point, is that when I found out Lieutenant Evans had 
died, I then sent my investigators out to go find out if he had 
a partner. Lo and behold, I found he had a partner. I contacted 
their partner, and he said, sure, we worked on that together, 
and we filed it. As a matter of fact, we knew who the killers 
were that night. They had----
    Mr. LaTourette. Did he say who he had filed it with?
    Mr. Garo. Lieutenant Evans.
    Mr. LaTourette. OK. And the last question that I have for 
you, who is John Doyle?
    Mr. Garo. I don't think I'd have enough time probably to 
answer that question, but suffice it to say he was the liaison 
at the Suffolk County District Attorney's Office, Garrett 
Byrne, with the FBI at that time. And he was the head detective 
that would put together the cases on organized crime. That's 
who he was.
    Mr. LaTourette. OK. Thank you.
    Thank you, Mr. Chairman.
    Mr. Burton. Mr. Cummings, did you have a question?
    Mr. Cummings. Thank you very much, Mr. Chairman.
    And, Mr. Garo, from one lawyer to another, I'm very glad 
that you do what you do and that you take your job as seriously 
as you do, and I wish more people had an opportunity to hear 
the testimony. And I understand you're just doing what you 
believe what you should be doing, and this is your job.
    Mr. Garo. Thank you, Mr. Congressman.
    Mr. Cummings. You know, I really wish that more people 
would have an opportunity to hear this testimony, because so 
often I think what happens is that when someone lands in prison 
and they declare their innocence, although they have come 
through the criminal justice system, there are some who believe 
that the criminal justice system in our country does not--I 
mean, there's some that believe that it's perfect. And one 
thing is very, very clear, and that is that one of the things 
that will get us as close to perfection as we can get is that 
if the people that we trust, such as FBI agents and others and 
judges, it is important that they do their job in an honest and 
truthful manner, because I think that's what leads to the trust 
of the public.
    And that leads me to my first question. You know, in 
reading your testimony, Mr. Garo, you seem to have kind words 
about John Durham, the prosecutor heading up the Justice 
Department's Task Force.
    Mr. Garo. I do.
    Mr. Cummings. Why is that, sir?
    Mr. Garo. He is the first prosecutor, in my opinion, that I 
have met in the entire investigation of this case for over 26 
years that had as his motive in this case to let the truth come 
out, and that it would have been very easy for him, Mr. 
Congressman, to have thrown away these documents, and that the 
FBI agents that were working for him found these documents, and 
they found them because they were misfiled in other files, Mr. 
Congressman, and they were in the Boston office. All of the 
regular files had already been destroyed at that time, Mr. 
Congressman. This was all done--Mr. Congressman, if you throw 
away the evidence, it can't come back to haunt you. The only 
problem is that it had been misfiled, and they spent hours and 
days and weeks and months poring over these documents to give 
me those documents.
    And that's why we say, Mr. Congressman, that we still have 
the greatest justice system in the world. And when you have a 
person like John Durham, and you have a person like Judge Mark 
Wolf in the Federal court who took on the investigation here of 
informants back in Boston, they're heroes. They're the ones who 
have fought the system, and they have let come out the evidence 
that we have. And it makes us feel good, because we don't paint 
all the FBI with the same brush, and we say we need them, but, 
darn, when you break the sacred oath of trust--when I represent 
defendants in court and it's a public official, the first thing 
that the prosecutor says is, because he was a public official 
and he broke his sacred trust, we throw the book at him. 
Conversely in this case, no book has been thrown at any of the 
Federal officials.
    Mr. Cummings. Do you think the book should be thrown at 
them?
    Mr. Garo. Absolutely. For those that are guilty, for those 
that took part in this, because how can anybody be so inhuman? 
Because we wanted, Mr. Chairman, you to see how much this 
affected this family.
    That's what people don't want you to see, Mr. Congressman, 
and that's why this is difficult for the three of us. We're not 
here for publicity. I don't practice criminal law. I'm not 
looking to get referral cases. But we're here--when we first 
got approached by Mr. Wilson, who I have the deepest respect 
for and his staff, both on the Democratic side and the 
Republican side, and the work and the hours that they have put 
into this, we knew that sooner or later this is important to 
say, and this has never been about money, power, prestige. 
Those that know me know that I'm not like that, but if we can 
help you out, we have pledged that we will be here for you at 
any time. I said that I would give and help Mr. Wilson, Mr. 
Yeager behind the scenes on anything that your staff wants, Mr. 
Chairman, and I'll be here for you all the time.
    Mr. Cummings. Mr. Garo, your client was facing the death 
penalty. Is that what you said?
    Mr. Garo. Yes, sir. That's true.
    Mr. Cummings. And, Mrs. Salvati, how did that affect you?
    Mrs. Salvati. I became numb. I just couldn't believe it 
that our lives could be so shattered with all this here, and, 
you know, it's devastating. It's just devastating. You get 
yourself in a state when the verdict came in, and I just--you 
know, I had a horrible night that night. Especially when the 
verdict came in, my children were my first priority. I went to 
get them from school, you know, because I didn't want them to 
hear nothing in the street. So I took them home, and I told 
them what had happened to, you know, Dad. We call him Dad. And 
he said--you know, I said, you know, you're going to hear a few 
things. You're going to read things in the paper. You know, 
families talk when they go home. You know how people are. So I 
tried to comfort them and tried to, you know, not tell them 
more than what I had to because they were little, you know, 
especially the young--the 4-year-old.
    And we got through that. Then the very next day, my husband 
had the chaplain call me, and he wanted to see me right away. 
So we needed that bonding between us to go through the sorrow, 
this heartache together. All I could think of him was the night 
before being shackled in jail. I had no concept of what jail 
was about or how anything was, and, you know, we needed each 
other, too, but you have to be there for each other, and we had 
that bonding with us all the time.
    Mr. Cummings. Mr. Chairman, just one quick statement. I 
just want to express to you and your husband, you know, 
something that Mr. Garo said. We do have an outstanding system 
of justice. It does fail. We have a lot of great people in our 
justice system, but I hope and I pray that God will give you 
the strength and the courage to continue on. You both have held 
up tremendously. I mean, a lot of people would not have held up 
under these circumstances, and I thank God for you and for your 
lives, and certainly you'll be in my prayers.
    Mrs. Salvati. Thank you.
    Mr. Salvati. Thank you.
    Mr. Burton. Thank you for your comments, Mr. Congressman.
    Before I yield to Mr. Barr, one of the things that I will 
ask our legal counsel and our staff to investigate is whether 
or not there were some other injustices done as well. I 
understand that Mr. Barboza testified in some other criminal 
trials, and people were sent to jail. I don't know if anybody 
was sent to death or not, but we're going to investigate that 
as well. And so what you're telling us here today is not going 
to just reflect on the injustice done to the Salvatis, but also 
we're going to look at other things as well.
    Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    Could the staff prepare exhibits 15, 8 and 7, please, 
beginning with 15.
    Counsel, when I first started learning about this case from 
counsel and from the chairman and from Mr. Shays, probably, as 
most people, I was skeptical. You know, it reads like a novel. 
And then as you get into it, you say, yeah, well, maybe this 
sort of stuff did happen, but certainly the head of the FBI 
didn't know about it. He would have stopped it. But the fact of 
the matter is that there appears to be documentation that 
indicates very clearly that the Director of the FBI, Mr. 
Hoover, knew exactly what was going on, and that's very, very 
disturbing as a former U.S. attorney, as a citizen. You don't 
have to be a former U.S. attorney or an attorney to be 
disturbed by that. It's disturbing deeply as a citizen.
    Document exhibit No. 15 is an airtel--this is back in the 
days before all the technology. We didn't have e-mails and so 
forth--dated March 19, 1965, which was, I think, about a week 
after the Deegan murder, and that document is to Director, FBI. 
In your knowledge, which is certainly extensive, my 
understanding is that Mr. Hoover kept very close tabs on what 
happened in the FBI.
    [Exhibits 15, 8 and 7 follow:]
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    Mr. Garo. He was getting information on a weekly basis, Mr. 
Congressman, on exactly what was happening back in Boston, 
because Boston in the 1960's was going through a gang war, and 
there were approximately 50 to 60 people who got killed. And 
they weren't able to get any convictions on a lot of the 
murders, and he wanted to be on top of everything that was 
happening in the Boston area during that period of time. So he 
was being informed on a weekly basis. This is only one of the 
documents that was left as misfiled. Other documents that Mr. 
Durham believes has either been destroyed or may even be around 
in other places and have not surfaced yet.
    But there are documents, also, Mr. Congressman, that show 
that the Director knew exactly what was going on. What happened 
here, if I can, Mr. Congressman, that in March 1965--if I could 
do just a little chronology of this, in February 1965, Steven 
``the Rifleman'' Flemmi had been targeted as a top-echelon 
informant. On March 9, 1965, his brother was being targeted as 
an informant. On March 10----
    Mr. Barr. When you say targeted as an informant, you mean 
by the FBI?
    Mr. Garo. Yes. Absolutely.
    Then on March 10th, they received information that Flemmi 
and Barboza might be going to kill Teddy Deegan. On March 12th, 
Teddy Deegan was killed. On March 13th, Vincent Flemmi told the 
same informant that he and Joe Barboza killed Teddy Deegan the 
night before with three other guys, told them how it happened, 
how they were going to get in and do the B&E, how it happened, 
who was there, who did what. And they did a very sloppy job.
    On March 19th, all this information now is given to the 
Director of the FBI. Now what happens is--now you have to go 2-
1/2 years later, because in March, April or May 1967, Barboza 
becomes a witness for the Federal and State governments on 
various defendants that I've talked about previously.
    Now, when Barboza was willing to take down and give false 
and perjurious statements on first degree murder cases, and 
it's all uncorroborated testimony, now--in my opinion, what 
happens now is between March, April, May 1967 and October 25, 
1967, when the indictments came down as a result of Barboza's 
testimony on October 25th, the previous information just got in 
the way of the prosecution of these three cases. So now they 
let Barboza tell another story. No one is ever going to find 
out about these documents, because we're going to bury the 
documents and destroy them.
    Mr. Barr. In your view, are there sufficient checks and 
balances and access to information now that weren't available 
back in the 1960's----
    Mr. Garo. No.
    Mr. Barr [continuing]. So that you would have a confidence 
level that this sort of thing would not happen?
    Mr. Garo. No. I have no confidence right now that won't 
happen, because this has been happening in the 1960's, 1970's, 
1980's and the 1990's. It's occurring right up today, Mr. 
Congressman, because there's still a denial at the FBI in 
Boston that anything was wrong, they have done nothing wrong.
    Mr. Barr. But I don't mean just in this case, in other 
cases. I mean, we have additional safeguards that have been put 
in place, both statutorily as well as is in guidelines for the 
use of informants, as well as court decisions that have come 
down in the intervening decades. Do you have a confidence level 
that with all of those safeguards that we have in place now, 
that this sort of thing could not happen again?
    Mr. Garo. None whatsoever.
    Mr. Barr. Do you have some recommendations for us on 
specific steps that could be taken to help raise your comfort 
level?
    Mr. Garo. I think that should be done, Mr. Congressman, 
with the defense bar. When everybody makes guidelines 
determining what's going to happen within the FBI or the 
government, they go to government. They don't go to the 
criminal defense bar. I think that the criminal defense bar, as 
over here, are two of the finest criminal defense lawyers that 
there are in the country. I think that they ought to be sitting 
down around the country and determining what legislation is 
necessary. I don't practice criminal law anymore, Mr. 
Congressman, and--other than for the Joe Salvati case for all 
these years, so I'm not maybe the best person in the world to 
tell you how to do that, but I know that the Massachusetts 
Association of Criminal Defense Lawyers would make themselves 
very available to sit down and talk, either with you or the 
committee, to find what can be done with the legislation and 
checks and balances to make sure that something like this, Mr. 
Chairman, will never happen again.
    Mr. Barr. Thank you, sir.
    Thank you, Mr. Chairman.
    Mr. Burton. It's really troubling to think that this has 
continued to go on. As I understand it, the assistant U.S. 
attorney up there, they're working on this right now to dig out 
all the dirt that they possibly can. Is that not correct?
    Mr. Garo. That is correct.
    Mr. Burton. OK. Thank you.
    Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. It is not out of lack 
of respect that I keep leaving, and I apologize for that. Like 
Mr. Waxman, I have another Committee on Education that is 
marking up a bill.
    Mr. Garo. We understand, Mr. Congressman. Thank you.
    Mr. Tierney. I appreciate that.
    I would like to yield my time to Mr. Delahunt, who I know 
is prepared to go forward on that at this time, and so I would 
yield to Mr. Delahunt.
    Mr. Burton. Mr. Delahunt.
    Mr. Delahunt. Yes. I thank you. I thank my colleague from 
Massachusetts for yielding, and I thank the Chair again, for 
allowing us to participate.
    Mr. Garo, you stated that it is your belief that the 
informant alluded to, in the various reports that have come to 
your attention--the report by the FBI, by a Special Agent Paul 
Rico; a Chelsea Police Department report authored by a 
captain--or a Lieutenant Evans; and a Boston police report 
authored by one William Stewart; a State police report authored 
by a Lieutenant Cass--refer to the same individual when they 
reference an informant. Is that correct?
    Mr. Garo. No. No. I say that there are several different 
informants, Mr. Congressman. On the Chelsea police report, that 
is one informant. The informants on the FBI documents that were 
handed to me by Mr. Durham, that's a second informant, in my 
opinion, and in the documents that were provided on the others, 
I think that in the Detective Richard Cass's report from the 
State police, that he had further information that no one else 
had, and I say that there was another informant.
    Mr. Delahunt. OK. Let me go back then again. I know you 
mentioned the name of one Steven----
    Mr. Garo. Flemmi.
    Mr. Delahunt [continuing]. Flemmi. And it's your belief 
that he was the informant referred to in the report by Special 
Agent Paul Rico?
    Mr. Garo. That is my opinion.
    Mr. Delahunt. Are you aware of any documents or any reports 
whatsoever that exist that reveals the name of that informant?
    Mr. Garo. No, I do not. As a matter of fact, Mr. Durham in 
his investigation was unable to find that, because the 
informant documents had already been destroyed.
    Mr. Delahunt. Well, that answers my question, because I was 
going to request the Chair of this particular committee to 
inquire of the FBI to reveal the name of that particular 
informant.
    Mr. Garo. Mr. Congressman, though, I would say this to you, 
that I wish you would still make that request, because I have a 
feeling that there's still information----
    Mr. Delahunt. Well, then----
    Mr. Garo [continuing]. That's around.
    Mr. Delahunt [continuing]. I will make that request then.
    Mr. Garo. Because I think it's an excellent request.
    Mr. Delahunt. I yield to the Chair.
    Mr. Burton. If the gentleman will yield--and I thank you 
for yielding. We certainly will contact the head of the 
current--acting head of the FBI and whoever his successor is, 
and we'll ask for any documents pertaining to this 
investigation and what's going on in Boston.
    Mr. Garo. I think that's an excellent point.
    Mr. Delahunt. I just simply can't imagine any basis, in 
terms of what has gone on in Boston, pursuant to the 
proceedings presided over by Judge Wolf, why the name of that 
particular informant cannot be revealed, because it's simply my 
opinion that would remove some of the mystery surrounding the 
case against Mr. Salvati.
    We spoke, as I indicated earlier, last Saturday regarding 
the case of Mr. Salvati, and I took a particular interest in 
your explanation of the efforts that you made to seek a 
commutation on behalf of Mr. Salvati. Could you just repeat 
them once more for members of the panel? And maybe, Mr. Garo, 
you could start with explaining to members of the panel what 
the commutation process is and how one proceeds and its 
significance in the Commonwealth of Massachusetts. If you could 
start there, please.
    Mr. Garo. Certainly. Thank you, Mr. Congressman.
    In Massachusetts when you are convicted of murder in the 
first degree, you have no right to parole. The only way that 
you have the right to parole is if you receive a commutation, 
and a commutation is considered to be an extraordinary legal 
remedy. In order to get a commutation, three votes have to be 
taken, one by the parole board sitting as the advisory board of 
pardons, the second vote by the Governor of the Commonwealth of 
Massachusetts, and the third by the Governor's Council, not 
legal council, the Governor's Council, a duly elected body. The 
three of those votes have to be situated for you to get a 
commutation. It is not easy to obtain.
    So that I had filed for a commutation in 1986, but I was 
told by the then current chairman of the parole board that they 
weren't going to hold the hearing. In granting, Mr. Chairman, a 
commutation hearing in the Commonwealth of Massachusetts by a 
parole board, that means that they are very seriously 
contemplating giving you your commutation, because they don't 
do it to raise the hopes of an inmate that you're going to get 
out. They don't do that. So it's--Mr. Salvati's really to 
lose--95 percent for him to win it, 5 percent for him not to 
win it.
    The chairman of the parole board said to me in 1986 that he 
was contacted by the FBI that they were doing an investigation, 
and Salvati was part of it, and that he was going to get 
indicted.
    Mr. Delahunt. Will you just repeat that slowly? You were 
contacted by the chair--or the Massachusetts Parole Board was 
contacted by the FBI, indicating that they were conducting an 
investigation that implicated Mr. Salvati?
    Mr. Garo. That is correct, Mr. Congressman.
    Mr. Delahunt. Proceed, please. Do you know the name of the 
FBI agent?
    Mr. Garo. No, I do not. No, I do not.
    Mr. Delahunt. Could you identify the individual on the 
Massachusetts Parole Board who----
    Mr. Garo. Yes. Jim Curran, who is now currently a judge out 
in the western part of the State.
    Mr. Delahunt. And Mr. Curran was the Chair at the time?
    Mr. Garo. Yes, sir.
    Mr. Delahunt. And he indicated----
    Mr. Burton. If the gentleman will yield. We will contact 
the judge, and we will ask who the FBI agent was that informed 
him it was an ongoing investigation.
    Mr. Delahunt. I thank the Chair.
    Would you proceed, Mr. Garo?
    Mr. Garo. Thank you.
    I was very well known to the parole board, because I used 
to knock on their doors all the time for many years. As a 
matter of fact, when they heard I was in the building, they 
would say, hey, Vic, come on and have a cup of coffee with us, 
because I believe that I've always conducted myself as a 
gentleman. I believe I've always conducted my representation of 
Mr. Salvati always on another level.
    Mr. Delahunt. But what happened to that investigation, Mr. 
Garo----
    Mr. Garo. Nothing.
    Mr. Delahunt. Nothing?
    Mr. Garo. After 3 years----
    Mr. Delahunt. After 3 years nothing happened?
    Mr. Garo. That is correct.
    Mr. Delahunt. And what did you do then, Mr. Garo?
    Mr. Garo. I went to Mr. Curran and I said, they are trying 
to prevent you from ever having a hearing on Mr. Salvati.
    Mr. Delahunt. And what did Mr. Curran say to you?
    Mr. Garo. He said, you're right, we're going to hold a 
hearing.
    Mr. Delahunt. And did he hold a hearing?
    Mr. Garo. Yes, they did, sir.
    Mr. Delahunt. And what was the conclusion of that hearing?
    Mr. Garo. It was held in August 1989, and at a date that I 
still don't know, Mr. Congressman, they voted unanimously for 
the parole----
    Mr. Delahunt. Mr. Garo, how many members on the parole 
board?
    Mr. Garo. At that time I had five members that were present 
at----
    Mr. Delahunt. And each and every one of them voted in favor 
of commuting the first degree murder sentence of Mr. Salvati, 
and that was in 1989?
    Mr. Garo. I don't know the date they----
    Mr. Delahunt. You don't know----
    Mr. Garo. It's always been hidden from me because----
    Mr. Delahunt. It's been hidden from you?
    Mr. Garo. And I would explain----
    Mr. Delahunt. And I would hope that the Chair of this 
particular committee would request the documents from the 
Massachusetts Parole Board relative to when that unanimous vote 
was taken.
    Proceed, Mr. Garo.
    Mr. Garo. Thank you, Mr. Congressman. At that time when--I 
received a phone call from a member of the parole board who 
said to me, Mr. Garo, I have some good news and bad news for 
you. You have received the unanimous vote of the parole board, 
but the documents are not going to be placed on Governor 
Dukakis' desk; and I said, can you tell me why? He said, 
because of the Willy Horton scandal that had happened and other 
matters, that they really don't want to deal with your 
commutation. And that was a major blow to us, Mr. Congressman, 
because I then had to meet with my client Mr. Salvati and his 
wife and four children, because at that time----
    Mr. Delahunt. Are you aware of any communication between 
the then Governor Dukakis' office and the Chair of the parole 
board regarding concern about the Willy Horton case?
    Mr. Garo. Only what I was told by the parole board 
themselves.
    Mr. Delahunt. At some point in time, could you give the 
names of the----
    Mr. Garo. Yes. I will be glad to give that to you at the 
appropriate time, Mr. Chairman--I mean, Mr. Congressman.
    Mr. Delahunt. And what happened then, Mr. Garo? If I could 
indulge the Chair for the additional time.
    Mr. Garo. What happened then----
    Mr. Shays. I'm happy to yield the gentleman my 5 minutes.
    Mr. Burton. We'll give you time. Without objection, we'll--
--
    Mr. Delahunt. There's a particular line of questioning I 
want to pursue.
    Mr. Shays. You just stay right at it, sir.
    Mr. Delahunt. Mr. Garo, please.
    Mr. Garo. We had a very difficult decision, Mr. 
Congressman, as you well know, that if I filed a motion for new 
trial, I'd lose my unanimous vote of the parole board, and 
knowing the history here of the judicial handling of these 
cases, I told him, we're not going to overturn this case.
    Mr. Delahunt. So that's when you made the decision not to 
pursue the motion for the new trial?
    Mr. Garo. That is correct.
    Mr. Delahunt. Fine.
    Mr. Garo. We gave that up because we had a unanimous vote 
of the parole board, and we said, let's keep what we have. Why 
go into waters where we don't know what we're going to get?
    Mr. Delahunt. Right.
    Mr. Garo. 1992, then came Governor Weld. On January 20, 
1993, Mr. Salvati's commutation was turned down by Governor 
Weld.
    Mr. Delahunt. And what was the reason expressed by the then 
Governor for rejecting the unanimous recommendation of the 
parole board?
    Mr. Garo. My client's long and involved criminal record.
    Mr. Delahunt. Can you relate to us how long and involved 
Mr. Salvati's criminal record was?
    Mr. Garo. A conviction in 1956 for breaking and entering 
and possession of a precarious implement and a couple of 
traffic tickets.
    Mr. Delahunt. You referenced earlier that one Jack Zalkind 
was the prosecutor in the case against Mr. Salvati?
    Mr. Garo. That is correct.
    Mr. Delahunt. And during our conversation last Saturday, I 
requested any documents that you might have relative to this 
commutation process?
    Mr. Garo. That you did, sir.
    Mr. Delahunt. And I have a bunch of them here, and I will 
ask the Chair to submit them.
    And if I----
    Mr. Burton. Without objection.
    [The information referred to follows:]
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    Mr. Delahunt. Back on March 12, 1979, Mr. Garo, did you 
receive a letter from Jack Zalkind?
    Mr. Garo. Yes, I did.
    Mr. Delahunt. And if you could read--if you have it before 
you, if you could read the second paragraph for the benefit of 
the committee, please.
    Mr. Garo. Surely. And this is a letter dated March 12, 
1979.
    To whom it may concern, Re Joseph Salvati.
    Second paragraph: During the investigation of this case, 
prior similar activities by Mr. Salvati never came to my 
attention, and it was my belief at that time that it was Mr. 
Salvati's first serious criminal involvement.
    Mr. Delahunt. Can you repeat that again for the benefit of 
the panel?
    Mr. Garo. It was my belief at that time that it was Mr. 
Salvati's first serious criminal involvement.
    Mr. Delahunt. And that was a letter dated to you on March 
12, 1979?
    Mr. Garo. That is correct, Mr. Congressman.
    Mr. Delahunt. And back in 1979, did you also receive the 
communication from a Frank Walsh?
    Mr. Garo. Yes, I did.
    Mr. Delahunt. Could you inform the panel who Mr. Walsh is?
    Mr. Garo. Mr. Walsh was a detective in the Boston Police 
Department assigned to organized crime activities and 
homicides, and he was involved in the investigation and arrest 
of Joseph Salvati.
    Mr. Delahunt. OK. Referring--if you have before you a 
letter from Mr. Walsh, dated March 15, 1979, and if you would 
refer to the third paragraph. Could you read it to the 
committee?
    Mr. Garo. Certainly, Mr. Congressman.
    During my investigations prior to his indictment, 
subsequent sentencing, unto this date I have never become aware 
that Mr. Salvati has been even remotely connected with firearms 
or physical violence.
    Mr. Delahunt. Thank you. And both of these letters--and 
they were subsequent letters similar in nature. Is that a fair 
statement----
    Mr. Garo. That's a very fair statement.
    Mr. Delahunt [continuing]. Recommended--from the prosecutor 
and the investigator, recommended a commutation for Mr. 
Salvati; is that accurate?
    Mr. Garo. That is very accurate.
    Mr. Delahunt. And yet we have the then Governor of 
Massachusetts in 1992 making a statement that it was because of 
his long criminal history. And I also remember reading 
something about his association with organized crime. Is that--
--
    Mr. Garo. That was part of it also, yes, Mr. Congressman. 
That was in 1993, January 20, 1993.
    That was January 20, 1993.
    Mr. Delahunt. Did you ever have any communication with 
anyone from Governor Weld's office?
    Mr. Garo. No, I was like persona non grata. No one would 
talk to me.
    Mr. Delahunt. Do you have any reason to believe that anyone 
from the Federal Bureau of Investigation would have 
communicated with the Governor's Office relative to the 
commutation of Mr. Salvati?
    Mr. Garo. May I, Mr. Congressman, do that with an old 
evidence trick that we were once taught in law school, that 
when it snows during the night and you wake up the next morning 
and you see footprints around the building--I can't tell you 
who the footprints belonged to, but I can tell you that the 
footprints are there. The footprints are all there that no 
doubt Governor Weld was talked to.
    Mr. Burton. Would the gentleman yield?
    Mr. Delahunt. Yes.
    Mr. Burton. I think this is important. I know Governor 
Weld. I think he relied on some staff people for this.
    Do you know who at the Governor's Office would have been 
contacted about this?
    Mr. Garo. I have no idea.
    Mr. Burton. You have no idea. We will contact former 
Governor Weld and ask him who gave him that information.
    Mr. Delahunt. I think that is very important. Because I 
presume, given what I have read in newspaper reports, that the 
FBI--and even today in--the Special Agent in Charge of the FBI 
office, one Charles Prouty, has indicated that, while they had 
this information, they did transmit it to local authorities. It 
would seem that, at least in terms of Mr. Prouty's statements, 
that it's his opinion that terminated any obligation that the 
FBI had relative to providing this exculpatory information 
about Mr. Salvati.
    But it's clearly different if the FBI took an active role 
and involvement in impeding the process of the commutation of 
Mr. Salvati, extending those years for maybe 10 or 15 years, 
that is clearly a significant injustice, to some 30 years. It's 
disgraceful, and I hope the Chair proceeds to examine that 
matter very closely.
    Mr. Garo. Mr. Chairman, may I make one comment? Maybe you 
are now beginning to get the flavor of what I was going through 
all of these years. Because no one was listening.
    Mr. Burton. Well, we're listening; and we will contact 
Governor Weld to find out what transpired.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman.
    Mr. Chairman, I hope Mr. Delahunt continues to participate 
in these hearings that we will be having.
    I have a close friend named Austin McGuigan, who is the 
Chief State's Attorney in Connecticut; and 20 years ago he 
predicted to me that some day there would be a story about the 
corruption that existed in the FBI operation in New England. 
Part of what motivated him to say that is that he was 
questioning witnesses that were being--in dealing with the 
World Jai Alai, and they were being murdered. And he was 
puzzled by the fact that so many retired FBI agents were 
working for organized crime in Connecticut.
    I have such a difficult time understanding the early stages 
of this. Mr. Salvati, I need to ask you a question, too, and 
I'm sure I will understand it after you tell me, but, first, 
was this trial a jury trial or was it a trial by a judge?
    Mr. Salvati. Jury trial.
    Mr. Shays. Jury trial.
    Mr. Salvati. Yes.
    Mr. Shays. Was it pointed out that the witness had an 
incredible, despicable record? Was it made clear to the jury?
    Mr. Salvati. Yes, and they used that to say that you need 
the bad guy to catch the bad guy.
    Mr. Shays. OK. Didn't you have an alibi?
    Mr. Salvati. No, I did not.
    Mr. Shays. Explain that to me. You were somewhere.
    Mr. Salvati. I don't know where I was that night.
    Mr. Shays. That is because----
    Mr. Salvati. Because I wasn't there. Why do I need an 
alibi?
    Mr. Shays. What you don't have is what I have. I have a 
Franklin planner, and I can tell you where I was. Obviously, we 
didn't have Franklin planners then, and you didn't have one. 
But I'm smiling because I am so incredulous. Because there was 
such a timeframe between--it would be like asking me what I 
did----
    Mr. Garo. 2\1/2\ years earlier.
    Mr. Shays [continuing]. So I would have had to have 
identify now what I did 2\1/2\ years earlier on a particular 
day.
    Mr. Salvati. Right.
    Mr. Garo. And, Mr. Congressman, that's what is so 
unbelievable, is that Joe Salvati did not invent an alibi and 
did not create an alibi. He just said, look, I wasn't there. I 
don't know where I was, but I certainly wasn't there, because I 
had nothing to do with that situation.
    Mr. Shays. The problem for me is someone who--this is 
causing me----
    Mr. Burton. Would the gentleman yield?
    Mr. Shays. It makes me wonder about so many things I have 
read and heard.
    Mr. Burton. Let me ask you about one question that needs to 
be asked, but I hope it's not too uncomfortable for you. But in 
your first trial there were a number of defendants along with 
you, and others who were innocent of this crime as well as you, 
and we have been told that that the head of the Mafia up there 
paid the legal expenses for everybody that was involved in that 
case. Is that correct?
    Mr. Salvati. No, it's not.
    Mr. Burton. Who paid for your legal expenses?
    Mr. Salvati. I paid whatever I had saved, and they ran a 
benefit for me, and that was it.
    Mr. Burton. So you paid for your own legal expenses.
    Mr. Salvati. Yes.
    Mr. Burton. So the information I have was erroneous then.
    Mr. Shays.
    Mrs. Salvati. Excuse me. I can attest to that. Because we 
had a fundraising in the community, and the little money we had 
we put toward legal counsel for him, and he didn't have the 
best.
    Mr. Burton. OK, thank you very much.
    Mr. Shays.
    Mr. Shays. I would like to make mention to exhibit 11 which 
Mr. LaTourette had showed earlier. I'd love to have you turn to 
the third--and it's the third to the last paragraph.
    Just explain to me, first, Mr. Garo, what this exhibit is. 
It is my understanding this is the Police Department of 
Chelsea's statement by the officer, Lieutenant Thomas Evans, of 
what he saw when he investigated this crime.
    [Exhibit 11 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.053
    
    [GRAPHIC] [TIFF OMITTED] T6507.054
    
    [GRAPHIC] [TIFF OMITTED] T6507.055
    
    Mr. Garo. What this document represents, Mr. Congressman, 
is the investigation done by Lieutenant Evans and his partner 
Bill Moore on the night of the murder and the next day of the 
murder and what they observed and what they have found out from 
all different sources.
    Mr. Shays. And the Chelsea Police Department is a small 
police department.
    Mr. Garo. Not that small. A good size.
    Mr. Shays. How big is the town, the community of Chelsea?
    Mr. Garo. I can't tell you.
    Mr. Shays. Is it part of Boston?
    Mr. Garo. Yes, it is a suburb of Boston.
    Mr. Shays. But it is its own entity, its own community.
    Mr. Garo. Yes, it is.
    Mr. Shays. But this was the report of the officer who was 
investigating.
    Do I have your permission to proceed, Mr. Chairman.
    Mr. Burton. Yes.
    Mr. Shays. And this is a document that was not made 
available to the prosecutor or the defendant.
    Mr. Garo. That is correct.
    Mr. Shays. And this is a document that at one time people 
denied even existed?
    Mr. Garo. That is correct.
    Mr. Shays. What I don't understand, though, is Lieutenant 
Evans knew it existed because he wrote it.
    Mr. Garo. That is correct.
    Mr. Shays. So when Mr. Evans says in this paragraph--excuse 
me, it's not Mr. Evans, he's Lieutenant Evans--I received 
information from Captain Renfrew--did he work in the 
department?
    Mr. Garo. Yes, he did.
    Mr. Shays [continuing]. That an informant of his had 
contacted him and told him that French had received a telephone 
call at the Ebb Tide at 9 p.m. on March 12, 1965; and after a 
short conversation he left the cafe with the following men. And 
then it lists six people: Joseph Barboza, Ronald Cassesso, 
Vincent Flemmi, Francis Imbuglia, Romeo Martin and Nicky Femia, 
and a man by the name of Freddie, who is about 40 years old and 
said to be a ``strong man.'' They are said to have returned at 
11 p.m., and Martin was alleged to have said to French, we 
nailed him.
    Now this was actually in a police document.
    Mr. Garo. That is correct.
    Mr. Shays. What I don't understand is there is more than 
one person who is aware of this document.
    Mr. Garo. Correct.
    Mr. Shays. Who did you ask this document for and who denied 
it existed?
    Mr. Garo. Well, first of all, I obtained a copy of this 
document, Mr. Congressman, about 3 weeks before the beginning 
of the commutation hearing in August 1989.
    Mr. Shays. August 1989.
    Mr. Garo. I received it about 3 weeks before.
    Mr. Shays. Where did you receive it from?
    Mr. Garo. I would rather not disclose that, Congressman.
    Mr. Shays. Was it in the possession of the Chelsea Police 
Department.
    Mr. Garo. That's an interesting story, and if I could 
answer that, Mr. Congressman. When I had obtained a copy of 
this document, I used it on the commutation hearing of Mr. 
Salvati. And when Governor Weld denied the commutation back on 
January 20, 1993 because of his long criminal record, etc., I 
said I needed someone in the press to start helping me. And I 
found a wonderful ally who has done a wonderful job, Dan Rea, 
who is here today in chambers, and Dan has done wonderful 
investigative reporting in the case, also.
    When I showed him the report in March 1993, he then went 
out and did his own investigation also. He went to the Chelsea 
Police Department, and he said, do you have an old file on the 
Deegan murder case? And they said, I'll go look for one. Lo and 
behold, they came back with a folder. The first document he 
opens up is the original of this document. So that the original 
of this document was in a small file folder on the Deegan 
murder case.
    Mr. Shays. I thought you said they didn't have the 
document.
    Mr. Garo. That's what they said.
    Mr. Shays. They is what----
    Mr. Garo. If what you're being confused about--and I know 
you're not confused--is this: Are you saying the Chelsea Police 
Department conspired with the FBI in this case, the answer is 
yes. Do I think that the Boston Police Department conspired 
with the FBI office in this case? Yes, I do. Do I believe that 
certain police officers associated and did things with the FBI 
concerning this case? The answer is yes. Because for this 
document to come out, Congressman, then they would be coming 
out with information about informants.
    Mr. Shays. Why weren't you able to get the document when 
someone from the police was able to get the document? Explain 
that to me.
    Mr. Garo. No one ever looked at that time.
    You have to understand, Congressman, no one wanted to talk 
about this case.
    Mr. Shays. In other words, when you asked, they didn't even 
bother to look.
    Mr. Garo. When was that? I was not the trial counsel.
    Mr. Shays. Didn't you ask for this document earlier?
    Mr. Garo. No, no. I obtained a copy of it 3 weeks before my 
commutation hearing.
    Mr. Shays. I'm sorry. If I can just make sure. I am 
confused.
    Mr. Garo. I'm sorry. I'm confusing you.
    Mr. Shays. It's not your fault.
    I want to know this. You would have clearly gone to the 
Chelsea Police Department to ask for any record they had. You 
did that before, correct?
    Mr. Garo. There were no documents that were ever turned 
over to me from the Chelsea Police Department having anything 
to do with Salvati's case.
    Mr. Shays. And you did ask for it.
    Mr. Garo. The lawyers had asked for it. There were motions 
filed, and the request made. It would almost seem, Mr. 
Congressman, didn't it, that maybe somebody had been keeping 
that document hidden for a lot of years.
    Mr. Shays. I'm saying you didn't specifically ask for it. 
It didn't come into your possession, and you didn't feel you 
had to ask for it. You would have thought it had to have been 
given to you. And it just so happens that someone asked for 
this document, and they were handed it.
    Mr. Garo. What happened, Mr. Congressman, in reading the 
8,000 pages of transcript, you would come to find out that all 
the reports they had were in evidence. This was an additional 
document.
    Mr. Shays. I hear you. I hear you. This is something 
totally----
    Mr. Garo. That is correct--out of the blue. That is why I 
said, Mr. Congressman, the most important document that I ever 
received in the case, because this hidden Chelsea Police 
Department shows who the real killers were.
    Mr. Shays. What strikes me is that Lieutenant Evans didn't 
somehow feel compelled to come forward. But also Captain 
Renfrew, did you ever speak to him?
    Mr. Garo. Captain Renfrew would not speak to me.
    Mr. Shays. And he's living today.
    Mr. Garo. He died.
    Mr. Shays. And evidently Lieutenant Evans----
    Mr. Garo. He passed away.
    Mr. Shays. Well, I will say to all three of you that I 
rejoice in the fact that, Mr. Salvati, that you're out and, 
Mrs. Salvati, that you get to hug your husband without anyone 
watching. But I wonder now who else is like you, Mr. Salvati, 
who is still there, and maybe he doesn't have a lawyer like Mr. 
Garo, and I wonder how many people died in prison who were in 
your circumstance and were not able to celebrate their being 
out.
    Mr. Garo. More than a few, Congressman, more than a few.
    Mr. Shays. Thank you.
    Mr. Burton. Let me just say to my colleague we will, as far 
as we can--we can't cover every case that took place up in the 
Boston area, but any case involving Barboza and others we will 
try to get information, and if we find that there are similar 
circumstances we will look into them.
    Mr. Meehan.
    Mr. Meehan. Thank you, Mr. Chairman; and, Mr. Chairman, I 
want to thank you for holding this hearing. This is a 
critically important case. The revelations about the 
relationship between the Boston FBI agents and Boston area 
underworld figures are obviously are a matter of concern to us 
in Massachusetts but really to the entire country.
    To get back to what Congressman Shays has just indicated, 
this isn't just a question of what happened in this case or 
what happened in a series of cases but a culture in the FBI 
that may be taking place or have taken place not only in Boston 
but throughout the country.
    I want to go quickly to this 1993 report. You had indicated 
that WBZ's Dan Rea had a police report that was found in a file 
in 1993.
    Mr. Garo. Yes, Mr. Congressman.
    Mr. Meehan. Where had it been all these years?
    Mr. Garo. I don't know.
    Mr. Meehan. Does anybody know?
    Mr. Garo. You will probably have to ask somebody on the 
Chelsea Police Department, Mr. Congressman.
    Mr. Meehan. Well, Mr. Chairman, I want to thank you, 
Congressmen Frank and Delahunt, and I appreciate the fact that 
we can participate here.
    We had called for congressional hearings not because we 
wanted to cripple the FBI. We respect what the FBI does on a 
daily basis to protect people from violence and terrorism and 
fraud. But I think, at a minimum, we want to find out the 
truth. Because sunlight and accountability ultimately prevent a 
repeat of the mistakes that have severely tarnished the FBI 
here.
    We also want the truth to come out so that Mr. Salvati and 
others whose lives have been shattered at least can be heard. 
They deserve so much more than that, but, at a minimum, they 
deserve to be heard.
    Actually, I called for hearings as far back as the summer 
of 1998 when the relationship between the FBI agents and two 
particular Boston area gangsters was revealed. In general, this 
isn't a new story for us from Boston, but the revelations that 
have been leaking out over the 4 or 5 years with Judge Wolf's 
260-page opinion being, from my perspective, a watershed event 
in pulling back the curtains of decades of the incestuous 
relationship between the agents and the informants and the 
destructive consequences. I didn't know much or focus back in 
the summer of 1998.
    The most tragic part of this story, the most tragic thing 
of all is one that we hear today. It's hard to believe that 
this could happen in America. It is hard to believe that FBI 
agents could know of a murder in the making and not stop it 
from happening. It's hard to believe that FBI agents could know 
a man was innocent of a crime yet allow him to be jailed for 
what was to be life.
    We've heard about the process with the Governor--first, 
Governor Dukakis and then Governor Weld, and to allow him to be 
stripped from his family, his life, his liberty--and the FBI 
says they were forthcoming. They say they didn't conceal 
information indicating Mr. Salvati's innocence, and they didn't 
attempt to frame anybody. Well, there is plenty of dispute here 
over how the FBI handled the information it received in this 
case, the information exonerating Mr. Salvati.
    But one way or the other, I think that we deserve better 
than ``we didn't attempt to frame anyone.'' It is the FBI's job 
to protect us. Obviously, it failed miserably here.
    Ultimately, we can never undo the pain and suffering 
inflicted in this case. At least we can offer apologies. We can 
ensure that this doesn't happen again.
    One of the issues is the so-called guidelines that the 
Justice Department has reported. But I can't help but look back 
to early in the Ford administration, I think it was Attorney 
General Levi went through a process of guidelines at that time, 
but they didn't seem to have much in effect here. The 
guidelines didn't affect the culture of the FBI.
    I would add, Mr. Chairman, that at the time, the early 
1970's, it was a congressional hearing shedding light on that 
process of guidelines that resulted in getting the new 
guidelines and resulted in putting some guidelines that at 
least took into account--so that's why these hearings are so 
critical, Mr. Chairman.
    But I wonder if you have a perspective, Mr. Garo, as to how 
you change this culture. It is one thing to make guidelines and 
to have hearings and continue--I am happy to hear the chairman 
is going to continue this process, get information and get to 
the bottom of it. How do you change the culture, 
notwithstanding the attempt to have guidelines?
    Mr. Garo. I don't think you can just do it, build 
guidelines. I think there has to be some checks and balances 
that are in there.
    What I'd offered earlier, Mr. Congressman, is this, is that 
whenever guidelines or anything comes down of the government 
doing its own checks and balances, that never works. What 
happens is we have in Massachusettes a wonderful organization 
called the Massachusettes Association of Criminal Defense 
Lawyers; and it would seem to me, Mr. Congressman, that when 
and if this committee or if your committee in the future 
investigates further, that some of the more practicing 
attorneys--because I don't practice criminal law anymore, Mr. 
Congressman----
    Mr. Meehan. The case burned you out, huh?
    Mr. Garo [continuing]. And I'm not looking for more 
business like this.
    But Mr. Balliro is here. Mr. Bailey is here. They are 
wonderful criminal defense lawyers. Actually, they're the ones 
that should be part of any process in the future because that 
is where the tire meets the road. They're out there every day 
fighting the system. And we were told in law school that the 
system has to work for the very worst of us to work for the 
very best of us.
    Mr. Meehan. I was detained earlier. You think this case has 
been frustrating. I was in a meeting. We are trying to get 
campaign finance reform passed, and I am reminded of the 
frustrations trying to do that with a lot of the frustrations 
you have had.
    But I wanted to ask you, the Supreme Court in Brady v. 
Maryland, Rivero v. the United States, held the government had 
certain obligations to give exculpatory information to 
defendants in criminal cases; isn't that right?
    Mr. Garo. Absolutely.
    Mr. Meehan. Could you explain in general terms what that 
means?
    Mr. Garo. What it means in the general sense is the 
government is a human being. It doesn't just look to convict. 
It looks for justice.
    What they're looking for there shouldn't even have to be a 
rule of law like Brady. If there's a situation and you have 
evidence of a person as being innocent and you're going to put 
him to death in the electric chair, you would think that human 
rights and human decency--forgetting the law--would make the 
government want to comply with that. But, as we know, they 
didn't obey the law, they didn't obey their conscience. It is, 
the truth be damned, full blown speed ahead for convictions 
only.
    Mr. Meehan. In the Rivero case, the court stated 
specifically where the disclosure of an informer's identity or 
the content of his communication is relevant and helpful to the 
defense of an accused or is essential for a fair determination 
of a case, the information must be disclosed or the case must 
be dismissed. Now is that your understanding what the law was 
at the time of Mr. Salvati's trial?
    Mr. Garo. That was a 1959 Supreme Court of the United 
States' decision. I had used it successfully many times in the 
past. I don't have to tell Mr. Balliro or any of the good 
criminal defense lawyers that were involved in the Deegan 
murder case at the time. They knew all about those laws. That's 
the reason why, Mr. Congressman, it was withheld from them that 
there was informants.
    Because, under Rivero, the law is, if you make a demand 
from an informant during trial and you can show it will be 
relevant and helpful, you will get the name of the informant 95 
to 99 percent of the time. And if the government doesn't give 
it to you, the charges are dismissed.
    Can you imagine how the chicanery was going on in the 
Boston office of the FBI, the Suffolk County District 
Attorney's Office, the Boston Police Department, the Chelsea 
Police Department, the U.S. attorney's office? If anybody finds 
out that we have informants and we don't give the name of the 
informants, we're going to blow the cases. I think that's a 
pretty big incentive not to come forward with the fact that 
there were informants in this case.
    Mr. Meehan. So in this case the government failed to 
disclose this information to the defense because----
    Mr. Garo. It could have--since they would have never given 
away the names of informants, they would have had to dismiss 
the cases. I had done that myself about a year earlier in 1966. 
I understood the Rivero case very, very well because I used it 
many sucessful times.
    Mr. Meehan. So if the system had worked correctly in this 
case how should the government have handled the information 
received from the confidential informants?
    Mr. Garo. If they're looking for the truth and you don't 
want to put someone in prison or to die in the electric chair, 
you would think that the common decency is that--let me give 
them this evidence. But if I am bent only on convictions and I 
have an agenda that I don't want to share with anybody else, I 
am looking to hide all the good evidence, conjure and perjure 
and make up the bad evidence and let's go with the 
convictions--because, as has been stated, the criminal--the 
Witness Protection Program began with Joseph Barboza. I say it 
was a misnomer. I say it was the criminal protection program, 
and it wasn't the Witness Protection Program. When Joe Barboza 
went out to California under the Witness Protection Program, he 
killed three to five more people. He's in the Federal Witness 
Protection Program, and he is killing people in California.
    As a matter of fact, he goes to trial on a first degree 
murder case in 1971 and is still in the Witness Protection 
Program. And the head of the organized strike force and two FBI 
agents go out to California and help the defense of Barboza in 
his 44-day trial of a first degree murder case by saying he was 
a good guy and he helped us with crime back here.
    Mr. Bailey will be able to tell you more about that because 
he was going to be a witness out there, and that's what 
caused--it was said--Barboza to finally plead to second degree 
murder while in the Federal Witness Protection Program and get 
a sentence, I believe, that is 5 to life. And he has killed 
others, and no one wanted to investigate it. No one wanted to 
talk about it.
    Mr. Delahunt. Would the gentleman yield for a moment?
    Mr. Meehan. Sure.
    Mr. Delahunt. Mr. Garo, I'm aware of the fact that two FBI 
agents testified on behalf of Mr. Barboza in that capital case. 
Could you identify them for the record?
    Mr. Garo. H. Paul Rico and Dennis Condon.
    Mr. Delahunt. Thank you.
    Mr. Meehan. What's really repulsive about the behavior in 
this case is, before I got elected to Congress, I was a first 
assistant district attorney in Middlesex County up in 
Massachusetts. We take young lawyers and we take them into the 
office and train them, basically a training ground; and we 
teach the ethics of making sure that they balance the enormous 
power that the prosecutor has with making sure that the police 
are getting it right, making sure that they always maintain 
their responsibility, their integrity to disclose exculpatory 
information and to get it right. I know that's the way Mr. 
Delahunt's office operates, and to see that it can get this bad 
is just very very concerning.
    Again, Mr. Chairman, I look forward to participating with 
you further.
    Mr. Burton. I hope you gentleman will be able to be with us 
for the next panel. We have some interesting testimony coming 
there as well. Thank you.
    Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Chairman.
    Mr. Garo, I want to go back to exhibit 11 just to clean up 
some stuff, if I can. Those of us that have been involved in 
prosecutions and law enforcement know that there are informants 
and there are informants. I think you were talking to Mr. 
Delahunt earlier about that fact, and I think you indicated 
that in the various reports you think there may have been up to 
three different informants supplying law enforcement with 
information concerning this homicide.
    Exhibit 11 to the layman is startling because it indicates 
very early on, even though it's not dated, very early on 
Lieutenant Evans had information from an informant as to who 
the murderers of Mr. Deegan were. My question is, given the 
fact that there are informants that are good informants and 
there are bad informants, did you ever discover who the 
informant was that supplied this information to the Chelsea 
Police Department back in 1965?
    Mr. Garo. No, the identity of that informant has not been 
made known yet.
    Mr. LaTourette. When I had the chance to talk to you before 
in my 5 minutes, I asked you who John Doyle was. It sort of 
brought a smile to your face, and you sort of indicated it was 
a long story, and you identified what his position was. But I 
want to spend the rest of my time, if I could, talking to you 
about what it is he did or didn't do in this case; and, 
specifically, the staff of this committee has indicated to me 
that after this document came to light that it may have been 
offered or brought to his attention. Is there such a story you 
can relate to us?
    Mr. Garo. Yes, there is; and I'll gladly share it with you. 
Dan Rea, who was the only voice that I had for this case from 
1993, had been talking to--we call him Commander Doyle, and he 
wanted to know from Doyle--he had a relationship with Mr. Doyle 
for many years, and Dan told him that he was getting involved 
in the case with me. And he says, why do you want to do that? 
That's a dead end case. Why don't you just forget about it and 
go on home? And Dan said, no, I think it's a story that I'm 
going to follow. He says, I think you're barking up the wrong 
tree. Dan at that time had then found the original of the 
police report in the Chelsea Police Department.
    Mr. LaTourette. Was there a public record law that was 
passed in Massachusetts when all of this took place?
    Mr. Garo. Yes. And at that time when Dan found it and he 
told me all about it and he was very surprised and I was 
shocked, and with that document what he did was he called up 
Commander Doyle. And he said to Commander Doyle--this is what 
has been relayed to me, now.
    Mr. LaTourette. Sure.
    Mr. Garo [continuing]. And the Commander said to him, what 
is it that you're bothering me about now? And he said, well, he 
said, that Chelsea police report. Yeah, there was no Chelsea 
police report. He said, yes, there is. As a matter of fact, I 
found the original Chelsea police report, and I have a copy of 
it. I would like to come over and show it to you and discuss it 
with you. I don't want to see you. Don't call me anymore. And 
that was the end of conversation.
    Mr. LaTourette. Was that in 1989?
    Mr. Garo. No, that happened in 1993.
    Mr. LaTourette. 1993. OK. But at that time you had a copy 
of it.
    Mr. Garo. I had a copy of it for 4 years.
    Mr. LaTourette. And your client had been in prison for over 
20 years.
    Mr. Garo. That is correct.
    Mr. LaTourette. And still an additional 4 years went by 
before he was released from prison.
    Mr. Garo. That is correct.
    Mr. LaTourette. Thank you very much. I don't have any other 
questions.
    Mr. Barr [presiding]. Ms. Holmes Norton, did you have some 
questions for the panel?
    Ms. Holmes Norton. No.
    Mr. Barr. Mr. Shays, do you have some additional questions?
    Mr. Shays. I do.
    Mr. Barr. The gentleman from Connecticut is recognized for 
5 minutes.
    Mr. Shays. Thank you. I have a few, yes, sir.
    I would like to go through this fairly quickly. I would 
like exhibit 11 to be put up. Exhibit 11 is the report of the 
Chelsea Police Department, Lieutenant Evans. There is a report 
of the city of Boston. And what's very interesting about it is 
this is a report of the murder of Teddy Deegan in Chelsea on 
March 12.
    It's dated March 14, and it says, ``From a reliable 
informant the following facts were obtained to the murder: 
Informant states that the following men''--and it goes through 
the list of men, and here it identifies Freddie as being 
Freddie Chiampi, and it goes on and on and on. But basically it 
confirms what was pretty much in the memo, the report from 
Thomas Evans. So they had an informant. The city of Boston had 
their informant.
    Now is this a document that you were provided years ago.
    [Exhibit 11 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.053
    
    [GRAPHIC] [TIFF OMITTED] T6507.054
    
    [GRAPHIC] [TIFF OMITTED] T6507.055
    
    Mr. Garo. I have never seen that document I think until Mr. 
Wilson showed it to me.
    Mr. Shays. So even as we proceed in this case this is a 
document, and--is there a name identified, Mr. Wilson, with 
this document? Other than the city of Boston, we don't know who 
it is. This is December 12.
    Mr. Wilson. If I could, this was a document that was 
provided to us by the FBI on Friday night of last week.
    Mr. Shays. So the FBI had this document, and we have been 
provided it, and you have got it.
    Then if you could look at exhibit 13. So we have the 
Chelsea Police Department and the Boston Police Department; 
and, Mr. Salvati, your name doesn't show up in this--in either 
one. And before--they knew it a few days before your trial, 
they knew it a few days after the murder that they had these 
informants.
    Now this one is from the Department of Public Safety. Is 
that the State police?
    [Exhibit 13 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.058
    
    [GRAPHIC] [TIFF OMITTED] T6507.059
    
    [GRAPHIC] [TIFF OMITTED] T6507.060
    
    Mr. Garo. State police.
    Mr. Shays. And this is dated March 15. The murder 
occurred----
    Mr. Garo. March 12.
    Mr. Shays. So this is a pretty fresh document. It is not 
something they discovered a few years later.
    I am looking at No. 9; and it says, on the second page, 
``During the evening of Friday, March 12, French was at the Ebb 
Tide''--and it goes on, and it basically mentions the same 
name, and really what--in this case, they seem to have gotten 
the report from the Chelsea Police Department. But the point is 
there is someone in the State police department that also was 
aware of the Chelsea report, because they mirror it almost 
perfectly.
    Mr. Garo. Absolutely.
    Mr. Shays. This is a document you got when?
    Mr. Garo. This is a document that I received when the 
Suffolk County District Attorney's Office in October 1993 filed 
a brief in opposition to my motion for a new trial.
    Mr. Shays. So just to reiterate, that was in 1993?
    Mr. Garo. 1993.
    Mr. Shays. But the report by Lieutenant Thomas Evans, 
Chelsea Police Department, wasn't dated, but it appears to be 
fairly current but--so we have the Chelsea Police Department, 
we can make an assumption it was done shortly after, if not 
right after----
    Mr. Garo. The partner said that, Bill Moore said that.
    Mr. Shays. And then we have the Boston Police Department 
talking about what informants it had, and then we have the 
Massachusettes Police Department--excuse me, State police on 
our document 13. And there it was dated March 15.
    So, just a few days afterwards, this was made available to 
not just one person or two people, not just one department, but 
you had three different departments, two communities, plus the 
State police.
    Mr. Garo. What you are having here, Congressman, that we 
never knew is that there were parallel investigations going on 
in the Deegan murder case shortly after it happened within 
March 12th to 15th, and none of us knew about this Cass report 
of the State police because in it they talk about a different 
motive.
    If you were to look on page 3 of the Cass report, it says, 
on No. 11 at the top of the page, ``Further information was 
received that about 3 weeks prior Deegan had pulled a gun on 
Barboza, aka Baron, at the Ebb Tide and forced him to back down 
and that this was the cause of Deegan's death.''
    Now Barboza had said that the motive for this was to get 
$7,500 from Peter Limone to kill Deegan. The State police at 
that time had another informant that was giving them 
information as to the real motive that Deegan was killed, and 
they sat on it.
    Mr. Shays. But I would like to think that there is a fail-
safe system that we have in, that somebody is going to step 
forward. It would seem to me that someone would want to think 
that someone else might show up and reveal what happened and 
then be made to look bad. So your concept of the conspiracy 
becomes almost inevitable. It seems like you have no other way 
to come to any conclusion.
    Mr. Garo. That is correct, Congressman; and let me say 
this. You know, this is not easy for me to come here before 
Congress and to belittle the enforcement of the laws in the 
Commonwealth of Massachusettes. But if things are going to 
change you have to first find out what the evidence really was 
and to say how do we prevent this from ever happening.
    Because it looks like, Congressman, you have hit the nail 
right on the head. Because what you're saying, there is a 
Chelsea police report, there is a State police report, there is 
a Boston Police Department report and god knows how many other 
reports that have been hidden or destroyed over the years that 
all say the same thing. Joe Salvati was innocent. He was never 
mentioned. You people knew who it was, and you all sat back and 
were happy enough that Joe Salvati could die in the electric 
chair. My God, what are we coming to?
    Mr. Shays. Thank you.
    Mr. Barr. All Members having concluded their questioning, 
the Chair now recognizes the counsel for 30 minutes.
    Mr. Wilson. I won't take the full 30 minutes.
    First of all, Mr. and Mrs. Salvati, thank you for being 
here and thank you for extending courtesies to myself and my 
colleagues when we have talked to you. It has meant a lot to us 
that you have spoken with us and spoken with us freely. You 
have made our jobs a lot easier by being willing to cooperate 
with us, and we appreciate that. It's something that we don't 
always get in this line of work, and we really do appreciate 
what you have done for us.
    I will just take a few minutes right now, because there are 
some documents we should work through fairly quickly. Because 
we have submitted documents for the record and because there is 
a transcript of this, I want to get a few things down so we all 
understand what was going on right at the time of the murder, 
and I want to explain some of the initial documents that we 
have put in the record.
    If you could please put up exhibit No. 7 on the screen. 
Exhibit No. 7 is described as an Airtel to the Director of the 
FBI. It's dated March 10, 1965. That would be 2 days before 
Teddy Deegan was murdered.
    On the second page of the exhibit which you have in your 
book, in the first full paragraph, it says, ``According to 
Patriarca, another reason that Flemmi came to Providence to 
contact him was to get the OK to kill Teddy Deegan of Boston 
who was with''--and there is a redacted name, and then it goes 
on. It says, ``It was not clear to the informant whether he 
received permission to kill Deegan.''
    Now this is 2 days before Deegan was killed, and the 
document we have indicates that the FBI was in possession of 
information that Deegan was to be killed. Mr. Garo, is it fair 
to say you did not know about this document until December 
2000?
    [Exhibit 7 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.045
    
    [GRAPHIC] [TIFF OMITTED] T6507.046
    
    Mr. Garo. December 19, the year 2000. That is correct, Mr. 
Wilson.
    Mr. Wilson. Now, the next document--if we could go to 
exhibit 8, please. Exhibit 8 is also titled Boston's Airtel to 
Director and SACS--that's special agent in charge of the 
offices in Albany, Buffalo and Miami. So this is a document 
that was disseminated not only to the Director of the FBI but 
to the head of offices to Albany, Buffalo and Miami. The date 
is March 12, 1965. That's the date Teddy Deegan was murdered.
    We don't know when this was tranmitted, but presumably, 
because Mr. Deegan was murdered late at night, this was the 
document that was transmitted before the Deegan murder on the 
same day of the murder. It says in the third paragraph, Flemmi 
stated that Deegan is an arrogant nasty sneak and should be 
killed.
    So this is the second important document on the day of the 
murder in the FBI's possession.
    Now, again, Mr. Garo, again you did not know about this 
information until----
    [Exhibit 8 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.047
    
    Mr. Garo. December 19 the year 2000.
    Mr. Wilson. If we could move to exhibit 15, please.
    Exhibit 15 is a memorandum to the Director of the FBI from 
the man in charge of the Boston FBI office. It's dated March 
19, 1965, and this is the document that Congressman Barr was 
referring to earlier.
    It states,

    The following are the developments during the current week:
    On 3/12/65, EDWARD ``TEDDY'' DEEGAN was found killed in an 
alleyway in Chelsea, Mass. in gangland fashion.
    Informants report that RONALD CASESSA, ROMEO MARTIN, 
VINCENT JAMES FLEMMI, and JOSEPH BARBOZA, prominent local 
hoodlums, were responsible for the killing.''

    Now this is another one of the documents that was released 
in December 2000, is that correct?
    [Exhibit 15 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.062
    
    [GRAPHIC] [TIFF OMITTED] T6507.063
    
    [GRAPHIC] [TIFF OMITTED] T6507.064
    
    Mr. Garo. That is correct, Mr. Wilson.
    Mr. Barr. Excuse me, if I could--this document says, the 
following are the developments during the current week. Were 
there weekly updates that were being furnished?
    Mr. Wilson. It's our understanding from the documents that 
there were weekly updates that were going to the Director of 
the FBI. They were not voluminous. They were the highlights of 
what was happening, and we have other documents of this sort.
    Mr. Barr. Thank you.
    The gentleman from Connecticut.
    Mr. Shays. So we have Chelsea, and we have the Boston 
Police Department, and we have the State police. This is from 
the FBI, basically saying the same thing that were in the other 
three documents.
    Mr. Wilson. Yes. Although these are different in that these 
documents actually talk about the Deegan murder before it 
occurred. They actually had information that the Deegan murder 
was to occur.
    The one thing I can say, having reviewed all the documents 
produced to us and we received, we made a document request for 
all documents related to the murders of Teddy Deegan and 
anything related to Teddy Deegan, and we got about a linear 
foot of documents from the FBI last Friday night. That would 
probably be 1,000 pages of documents. And in those 1,000 pages 
of documents there was nothing contemporaneous that mentioned 
Mr. Salvati's name, nothing. The other people were described in 
the different reports and seem to be accurately described.
    Mr. Shays. Just one last question. When I see this blacked-
out area, what is that? What did they black out?
    Mr. Wilson. There are a number of conventions that the FBI 
used when they redacted documents. The most consistent 
redactions go to the names of the informants. The FBI never 
shared the names of informants or information about informants 
with anyone, including the Attorney General.
    Mr. Shays. Is it possible they blocked out a signature of 
someone who made notes that they read it or anything like that?
    Mr. Wilson. This we just don't know.
    Mr. Shays. I would like to know if we have the ability to 
have counsel go to the FBI and see what was redacted. It would 
be amazing. We can only speculate. Sometimes when people read 
documents they check them off and put their initials next to 
them and so on.
    Mr. Wilson. We have gone through three documents, one 
before the Deegan murder, one the day of the Deegan murder, one 
7 days after the Deegan murder.
    Now I would like to turn, if we could, to exhibit No. 24.
    Now bear in mind that all the documents we've seen identify 
Vincent Flemmi as a participant in the Deegan murder, and these 
are the documents that we've just put up, the one before the 
murder where Vincent Flemmi went and asked permission to kill 
Deegan and afterwords where he was identified as in fact a 
person who participated in the Deegan murder.
    Exhibit 24 is a write-up of an interview of Joseph Barboza. 
The interview took place on March 8, 1967. It was conducted by 
Dennis M. Condon and H. Paul Rico.
    The important point that I think we need for the record 
here, that on the second page of this exhibit there is a 
section that was redacted so we don't know what it says, but 
then the one bit that's left in says, Baron--Baron is another 
name for Joseph Barboza--Baron knows what has happened in 
practically every murder that has been committed in this area. 
He said he would never provide information that would allow 
James Vincent Flemmi to fry but that he will consider 
furnishing information on these murders.
    Now, the easy question we're asking, Mr. Garo, is, did you 
know anything about this statement ever until----
    [Exhibit 24 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.091
    
    [GRAPHIC] [TIFF OMITTED] T6507.092
    
    Mr. Garo. Never.
    Mr. Wilson. When did you first see this statement?
    Mr. Garo. I don't recall.
    Mr. Wilson. Now, one thing we know from reviewing the 
document was that in 1965 when Mr. Deegan was murdered Vincent 
Flemmi was an FBI informant.
    Mr. Garo. That's correct.
    Mr. Wilson. His brother Steven was also an FBI informant.
    Mr. Garo. That is correct.
    Mr. Wilson. If you could provide an explanation to us in 
the context of all the things we have heard today, what this 
means, and specifically Mr. Barboza has told two FBI agents in 
1967--that's before the Deegan trial, correct, the Deegan 
murder prosecution? Barboza has told two FBI agents that he 
will never provide information that would allow Vincent Flemmi 
to fry. Is it fair to say that all of the evidence that was in 
the possession of prosecutions at the time or investigators at 
the time indicated that Vincent Flemmi was at the crime scene?
    Mr. Garo. From the very beginning when the Chelsea Police 
Department, Mr. Wilson, investigated the case that night with 
the information--if you remember me telling you that there was 
a number 404 on a license plate that had been turned over. And 
from the statements by Captain Kozlowski that he had come upon 
the scene and that he had seen the red car and that it had been 
a registration plate 404, and from the informants' statement 
that they had left the Ebb Tide that night and mentioned the 
people, the Chelsea Police Department from that very night knew 
who the killers were. They had a good notion as to who the 
killers were.
    Mr. Wilson. And there was eyewitness identification--or at 
least eyewitness identification of a bald man.
    Mr. Garo. Absolutely. That is why the ridiculous story 
about Joe Salvati--about him having to wear a wig to make him 
look bald is because Vincent Flemmi was bald. Isn't it 
interesting that Barboza would give the story to have Joe 
Salvati look like his partner? Doesn't that make a lot of 
sense?
    Mr. Wilson. I will finish here, and I will ask for your 
opinion on this.
    Mr. Garo. Surely.
    Mr. Wilson. What I would like to know is that, in your 
opinion, do you think it was fair or appropriate for the FBI to 
put a witness on the stand in a murder trial to testify when he 
had told them in confidence that he would never provide 
information about somebody who they had information had been at 
the crime and had committed the crime?
    Mr. Garo. In my opening statement you heard what I said, 
the truth be damned. This was never a search for the truth, Mr. 
Wilson. It has always been a search only for convictions and to 
help the propaganda of the FBI during that period of time to 
show that it was the ultimate crime-fighting force in the 
United States and in the world. And in order to keep that up 
they have concocted and perjured testimony to show that, what 
they were, that they were the FBI.
    Mr. Wilson. Thank you very much, Mr. Garo. And again, Mr. 
and Mrs. Salvati, for all the courtesies you have extended to 
us, thank you very much.
    Mr. Garo. Mr. Acting Chairman, may I make a statement at 
this time?
    Mr. Barr. Yes, sir, Mr. Garo.
    Mr. Garo. Thank you. What I'd like to say is this, that I 
wanted to thank everybody that's here. I'd like to thank the 
chairman, Mr. Burton. I'd like to thank the Congressmen who 
have gone out of their way to do an awful lot of work in this 
case.
    Some time ago, I met Mr. James Wilson. He calls me up on 
the phone and said, Victor, I would like to talk to you. And I 
said sure. When he told me about the Deegan murder case, I 
said, I have been known to talk for a few minutes about that 
case; and I met his staff, Mr. Bowman and Mr. Schumann.
    Then Mike Yeager from the Democratic side called me up, Mr. 
Rapallo, and I have never seen a group of people work so hard 
and so diligently for any type of organization in my life time. 
The dedication that they have shown here in putting together a 
very, very difficult story--folks, it is a very difficult 
story. I guess maybe I am said to be the master of the facts 
because I've been around it so long. But just to have people on 
your staff knowing that when they do their research they have 
done a damn good job, I am proud to be associated and to know 
them. And I say this in front of this committee and, Mr. 
Wilson, especially to you, thank you so much. We're here for 
you whenever you need us. We thank you for giving the attention 
to this case that it really needs.
    Congressman Delahunt, thank you so much for the kind 
statements. Thank you for coming to my office for the muffins 
we enjoyed for over 5 hours.
    And the final statement that I would like to make is this, 
there is a country for the people. It is a country where we 
have as our most prized possession freedom. It is an awesome 
responsibility to make sure that freedom stays where it 
belongs, with those that were innocent. The job that you are 
doing is God's work.
    Because here you have seen in actuality pain, emotion and 
feelings. When you were reading the documents, they were only 
pages. I have lived with these people 26 years. And I say to 
you that a gentleman and a lady and four good young kids, I 
knew them then. It isn't right that their lives were taken away 
from them and stolen from them. So we thank you for giving us 
the opportunity here today to speak to our case. We thank you 
so much, and God bless all of you.
    Mr. Barr. Thank you, Mr. Garo, Mr. Salvati, Mrs. Salvati. 
Thank you very much for being here today. We know it has been 
very difficult, and we look forward to being in further contact 
with you. I know I speak for the entire committee, those that 
are here and those that could not be with us, in wishing you 
godspeed.
    Mr. Shays. I wonder if either one of them wanted to make a 
closing comment. This may be the last time you are before this 
committee.
    Mr. Garo. Say that once more.
    Mr. Shays. If either one wants to make a closing statement.
    Mr. Garo. You mean Mr. or Mrs. Salvati.
    Mr. Salvati. My family and I would like to thank you for 
giving the opportunity to tell our story. I get very emotional 
when I speak about my family, but that's the way I am. Again, 
thank you very much.
    Mr. Shays. Thank you.
    Mrs. Salvati. To add to that, my husband speaks from his 
heart. That's the kind of people we are. Thank you for the 
opportunity at least to hear the story, and I know all good 
would come out of this here. OK. Thank you.
    Mr. Barr. Your faith is inspiring. Mr. Garo, we can't thank 
you all enough for what you have done. Thank you very much.
    Mr. Burton [presiding]. I don't know if anybody needs about 
a 5-minute break. We're ready for your next panel. Mr. Bailey, 
are you ready to go or do you need to take a break?
    Mr. Bailey. I am ready.
    Mr. Burton. We'll bring the next panel up. It's F. Lee 
Bailey and Joe Balliro.
    Would you both please stand.
    [Witnesses sworn.]
    Mr. Burton. I think we'll start with you, Mr. Bailey; and 
if you have an opening statement we will be glad to hear you 
say it.

   STATEMENTS OF F. LEE BAILEY, ESQUIRE, ATTORNEY FOR JOSEPH 
BARBOZA; AND JOSEPH BALLIRO, SR., ESQUIRE, ATTORNEY FOR VINCENT 
                    FLEMMI AND HENRY TAMELEO

    Mr. Bailey. I do not have a prepared opening statement. Mr. 
Wilson suggested that a quick recap might help the committee.
    I was admitted to practice in Massachusetts in 1960, have 
been trying cases in the military from 1954 and defended Joe 
Barboza on an unrelated crime in 1965, the year of the Deegan 
murder.
    Later, I was contacted by a contractor named Frank Davis 
that said Barboza wanted to recant his testimony both in the 
Federal case against Cassesso, Imbuglia and Raymond Patriarca 
and in the Deegan murder case. He was afraid that he would go 
away for life for perjury in a capital case because that is the 
punishment in Massachusetts. But he had, surprisingly, been 
acquitted--surprising to him at least--in 1965 and thought that 
I might have some magic scheme that would enable him to 
vindicate the victims of his perjury and at the same time leave 
him with a whole skin.
    I flew down to New Bedford by arrangement and was picked up 
by someone and went to a two-story wood frame home where I was 
confronted with more machine guns than I ever saw in military 
service. I spoke with Mr. Barboza and essentially learned that 
he now wanted to say what we in Boston had always known. That 
although Cassesso and French were in fact involved in the 
Deegan murder with him and Vincent Flemmi, that Tameleo and Mr. 
Salvati and Peter Limone and Louie Greco had nothing to do with 
it whatsoever; and Greco, in fact, was in Florida when the 
murder occurred.
    And he wanted to say that his story about Patriarca, 
Tameleo and Cassesso was at least, in large measure, 
fabricated, and I asked him if he had any help in putting these 
false stories together, and he told me that he had quite a bit 
of help that came from two agents in the FBI. I did not name 
them in my affidavit, but the agents he named to me were Paul 
Rico, then known as ``the Spaniard'' in Boston, and Dennis 
Condon who has been the subject with Mr. Rico of some fairly 
fiery testimony in the proceedings before Judge Wolf, where 
Stevie Flemmi, the brother of Vincent Flemmi, is defended by my 
colleague, Ken Fishman on a court appointment.
    This, I believe, has been the genesis of smoking out most 
of this dirt from the FBI files, because some of them have 
testified extensively, and I think some of the questions you 
have may be answered in that record; for instance, who was the 
informant. You were asking a while ago--there are papers here 
that show and that it has been independently shown that it was 
Stevie Flemmi who told the FBI.
    One of the things that puzzled me was how Barboza's 
testimony was able to switch. Flemmi, who had been seen in the 
back seat by a Chelsea police officer who couldn't identify him 
but knew he had a bald spot, ``the Bear,'' Jimmy Flemmi, was a 
person about 5 foot 8\1/2\ inches tall, very burly and strong. 
He had a bald spot in his crown, which was prominent and 
everybody knew about it. And he said that in order to fit to 
those facts, because no one knew when that police report was 
going to come up, that he had to put someone else there since 
Flemmi was his partner and he wasn't going to rat him out, as 
he put it, and that he didn't like Salvati anyway, because 
Salvati had been rude to one of his shylock collectors and 
Salvati was about the right size. So he made up a story, with 
encouragement, that a wig had been obtained that simulated a 
bald spot, because Joe Salvati had and he knew he still has a 
full head of hair. That struck me as highly corroborative of 
what Barboza was saying.
    However, I have long been an advocate of protecting one's 
self against chronic liars. He certainly was one, had been one 
all his life, and the condition I had made to the man paying 
the fee, Frank Davis of HiLo Construction, was that I wasn't 
going to go forward with the case unless Barboza would agree to 
take a polygraph, because recanting witnesses are never looked 
on with favor, but buttressing his testimony would at least 
make me more comfortable before starting to name names.
    While that program was in progress, Barboza managed to get 
himself caught with a weapon in his car. He was clamped in 
jail, violated on probation, but did not give up his effort. I 
arranged for Charles H. Zimmerman, then the probable dean of 
all polygraph examiners in the United States, certainly in 
Massachusetts, much revered by the courts in years when we used 
polygraph, to test Barboza on the truthfulness of his statement 
and whether he was being paid any money under the table by 
anyone connected with the case, innocent or guilty. That test 
was scheduled for, I believe, July 30, 1970. I saw Barboza in 
the prison, and although I cautioned him, he would recklessly 
describe his crimes, and he had no hesitation at all about 
describing the most cold-blooded, ruthless killings--he claimed 
more than 20, largely in the McLain-McLaughlin gang wars of the 
fifties--as if he were eating a piece of apple pie. And cell 
mates were within earshot.
    Mr. Harrington--who I hasten to interject is one of the 
best Federal judges on the bench, he was then a strike force 
lawyer--and an assistant named Barns went to Walpole, and 
somehow the polygraph test went away. We later learned, of 
course, that the FBI said, fire Bailey and don't take the 
polygraph test or you're here forever. And I'm quite satisfied 
that happened, since I was terminated.
    Unfortunately for Mr. Barboza, one of the killings that he 
boasted about in Santa Rosa, CA was within earshot of another 
inmate, who then went to the authorities, caused Barboza to be 
indicted in Santa Rosa, and I was summoned as a witness. And I 
said, I have, I'm afraid, attorney-client privilege. The judge 
out there ruled no; Barboza knew there were people not within 
the umbrella of the attorney-client privilege present when he 
talked about this, and you can be called and will be called as 
a witness. And I said, all right, but I want you to order me to 
answer any questions that relate to conversations, whether 
anyone was there or not.
    It was agreed by the prosecutors that would happen.
    When it was known that I was going to appear as a witness 
in the case and that he would face more than a cell mate on the 
prosecution side, Mr. Barboza began to negotiate, with 
considerable help from the Federal Government, and walked away 
with second degree murder, 5 to life, and was hustled off to 
Montana to some country club to serve his time.
    In 1976, in January, Barboza was out, once again with 
Federal help, roaming the streets of San Francisco as I was 
engaged in defending Patty Hearst, and I believe in February of 
that year, was gunned down by someone with a machine gun. The 
curious twist to Mr. Barboza is that he was, at the end of it 
all, not a tough guy. When he first came to me to get me to 
defend him in the unrelated charges in 1965, which were 
felonies and of which he was acquitted by a jury, I took an 
immediate dislike to him. I was to defend him as a favor to a 
man named Howie Winters, who's still alive and was a gang 
member at the time, and Wimpy Bennett, who was simply murdered 
later on. And I told Barboza to take his hat off, and he 
exploded, because I didn't make Bennett take his hat off. And I 
frankly put my hand in my drawer, where I had a 38, because 
this man's reputation was fearsome. And I said, Wimpy Bennett 
is bald, he can keep his hat on; take yours off or get out. And 
he left the room and broke down in tears and came back in 
crying, saying if you don't defend me, I'll go to jail. That 
was the beginning of a relationship which later evolved into 
the meetings of 1970, and that is most of my knowledge from 
Barboza that I can disclose.
    Mr. Burton. I have a question, but we'll defer that till we 
hear from Mr. Balliro. Mr. Balliro.
    Mr. Balliro. Mr. Chairman, I first of all want to thank you 
and members of the committee for the privilege of appearing 
here today. I suppose, almost as much as the Salvati family, I 
am just thrilled to see what this committee is attempting to 
do, because for some 30-odd years of the 50 years that I have 
been practicing law and defending people accused of crime, I've 
had to carry with me the knowledge that Joe Salvati, Henry 
Tameleo, who was my direct client, Louis Greco and Peter 
Limone, who also had a very young family at the time, were in 
jail, had suffered the almost expectation of being executed for 
crimes that I was satisfied from the get-go that they did not 
commit.
    Now, during the course of the 50 years that I have been 
practicing law, many people have asked me how can you do that 
day after day, because all of my practice is on the criminal 
side of the court. And I've always told them that which I 
believe as much as I believe in anything in this world, that 
everybody is entitled to a defense, no matter how bad anybody 
else might think they be. And as a matter of fact, I feel so 
strongly about it, that I feel that our very form of 
government, our system of government depends upon due process 
and the right of everybody who's accused by the government of 
having committed a crime to get a fair trial.
    During the course of my career, I've represented clergymen, 
politicians, lawyers, judges, the old, young, male, female, 
people of all kinds of lifestyles. And in all of those cases, 
except one kind of case, the government always has the burden 
of proof, and they've got to prove their case beyond a 
reasonable doubt, except when it comes to an organized crime 
figure. I've lectured at seminars throughout this country, and 
I've always told lawyers, especially young lawyers, don't ever 
walk into a courtroom defending someone who's been labeled as a 
part of organized crime and ever expect that those things that 
you learned in law school are going to hold true.
    Now, I'm not at all defensive about the fact that I was the 
lead counsel in the Deegan murder case. And a young colleague 
in my office, Chester Paris, who was an excellent lawyer, I 
designated to represent Joe Salvati. And, by the way, Mr. 
Chairman, and members of the committee, all of the defendants 
paid for their own fees in that case. And much to the contrary 
of what the public may have an expectation or deception of 
believing, the fees were not very large. As a matter of fact, I 
have a daughter and a son in practice, and they accuse me, even 
today, of charging less money to represent people than they 
charge to represent people.
    But the Congressman from Connecticut, Mr. Shays, asked 
earlier on today, how could you lose that case? Well, we lost 
it for a number of reasons, but I think the principal reason 
was expressed somewhat in the chairman's earlier remarks this 
morning--his opening remarks this morning, when he talked about 
what his feelings were toward the FBI back in those years of 
the 1950's and the 1960's and the 1970's, the tremendous amount 
of respect he had, and understandably so, because I myself had, 
other than for the fact that I knew things that perhaps others 
didn't about some of the agents of the FBI.
    But, you know, the star witness in this case really wasn't 
Joseph Barboza. The star witness in this case was the FBI. And 
I don't mean that just figuratively. I mean it literally, 
because what the government did in that case, in addition to 
putting Joe Barboza on the stand, totally, completely 
uncorroborated, as far as his testimony was concerned--there 
was no other corroboration in the case--except the fact that 
they put on the stand Dennis Condon. There was no legitimate 
reason for putting Dennis Condon on the witness stand. The only 
reason he was put on the stand was to project up there on the 
board, so to speak, the image that everybody respected of the 
FBI at that time.
    And I was reminded earlier today of some of my cross-
examination, obviously, not very successful, but I think very 
significant, as far as the work that this committee is starting 
to do. I was trying to undermine through my cross-examination 
of Dennis Condon the credibility of that which Joseph Barboza 
had testified to. And I sought to do that by pointing out that 
over the period of time that Barboza was in the custody of the 
government, preparing for trial, a whole raft of different law 
enforcement people had access to him. And in doing that, I was 
trying to convey to the jury the fact that his testimony had 
been shaped and molded. And the only thing that I could get 
Dennis Condon to agree to was how essential it was to have the 
purity of a witness' testimony.
    He agreed with me in this case, knowing about all of these 
intels and all of these memorandums that we have no clue about, 
of course, at all, he agreed with me how essential it was to 
the administration of justice, the due process, that a person's 
witness' testimony be pure. And he did that as his testimony 
was being monitored by a whole sheave of law enforcement 
officers that had participated in the preparation and the 
prosecution of that case.
    So, Congressman Shays, I'm not defensive, as counsel in 
that case. We never had a chance from the get-go, but that's 
what we were up against. That's what these defendants, these 
innocent defendants, were up against during the course of that 
trial. I'll be happy to answer any questions that the committee 
might have.
    Mr. Burton. I only have one question at the outset, and 
then I'll yield to Mr. Barr, and then we'll come back to Mr. 
Delahunt. And that is, when you met with Mr. Barboza when he 
was incarcerated----
    Mr. Balliro. Mr. Flemmi.
    Mr. Burton. Beg your pardon?
    Mr. Bailey. Barboza.
    Mr. Balliro. Oh, I'm sorry. Yes.
    Mr. Burton. When you, Mr. Bailey, met with Mr. Barboza when 
he was in prison--I think it was in prison--you said that 
within earshot, there were other inmates who overheard the 
conversation. Did he say anything about the Deegan murder to 
you? Did he say that he was involved in it or that--who the 
other members were that were involved in that murder?
    Mr. Bailey. Oh, yes. He was involved--Vincent Flemmi was 
involved. Nicky Femia, who was a Barboza sidekick, was 
involved. Chico Amico, his other sidekick, I do not believe was 
involved. Roy French was the trigger man, and Cassesso was 
involved. When it came to adding names, he dealt with the FBI 
this way: You let me put in a couple, and I'll put in a couple 
that you want.
    Mr. Burton. But when you talked to him, did he mention 
Salvati at all? Did he say, you know----
    Mr. Bailey. Yes.
    Mr. Burton. What did he say?
    Mr. Bailey. He said Salvati was innocent, had nothing to do 
with the case.
    Mr. Burton. So he flatly told you Salvati was innocent in 
that meeting, and you wanted him to take a polygraph about that 
issue as well as the others that you talked about?
    Mr. Bailey. He signed an affidavit, which although not this 
specific, was the first step. And I wrote a letter to Attorney 
General Quinn telling him what was up.
    Mr. Burton. Did you send the affidavit with the letter?
    Mr. Bailey. Oh, sure. Yes.
    Mr. Burton. So he got the letter from you saying that 
Salvati was innocent, plus the affidavit, and nothing was done?
    Mr. Bailey. Nothing was done. All of this was mentioned in 
my memorandum to Mr. Balliro in 1970 after I was fired.
    Mr. Burton. Thank you very much. Mr. Barr. You want me to 
go to Mr. Shays first? Mr. Shays.
    Mr. Shays. I would like Mr. Delahunt to go, and then I'll--
--
    Mr. Burton. Mr. Delahunt, are you prepared? Mr. Delahunt.
    Mr. Delahunt. First of all, let me welcome two gentlemen 
for whom I have great respect, that I consider friends, people 
whom I had dealings with, Mr. Chairman, during the course of my 
20 years as an elected prosecutor in Massachusetts. These are 
people of great talent, great skill, and in my dealings with 
them, I can tell you now that their integrity was 
unimpeachable. It's good to see you both here, Lee and Joe. I 
can tell you this, too. They're very formidable adversaries, 
but I think that they both know that in their dealings with my 
office----
    Mr. Shays. 'Fess up. They whipped your butt every time.
    Mr. Delahunt. No. We had some wins. We had--in fact, the 
first case that was ever televised in Massachusetts, the case 
of the Commonwealth v. Prendergast, Mr. Balliro was the counsel 
for the defendant in that case. So we've made some history 
together, and, again, this is not just hyperbole or saying good 
things about good people. It's the truth, and their remarks 
today I think are very important, because, again, my experience 
has been as a prosecutor. But I always remember, and I think 
they both would verify that I had a group of prosecutors that 
were exceptionally talented. In some cases, their abilities far 
exceeded mine in a courtroom. But my only admonition was to 
remember that they had delegated to them the most single 
awesome power in a democracy, which was to deprive people of 
their liberty and that one thing I would never tolerate would 
be the abuse of that power. And I hope that's my legacy of 21 
years.
    I would pose it to either of you, it's interesting that 
with all the attention given to Mr. Barboza, in the end what 
did he really produce for the U.S. Government, if you know? I 
think Mr. Garo indicated earlier that he testified in three 
cases. Well, in one of them, it's now overwhelmingly clear that 
he put four innocent people in jail. If either one of you know, 
what did he contribute to public safety in Massachusetts and in 
New England by virtue of his involvement in the other two 
cases?
    Mr. Balliro. Well, it's my view that not only did he not 
contribute anything toward public safety, but the use of his 
testimony, like the use of many other jailhouse informants or 
cooperating witnesses who are testifying solely for reward, 
does much to damage terribly the administration of criminal 
justice in this country.
    Mr. Delahunt. What you're saying, then, is that in the end, 
when we find people who are innocent in jail because of a 
result of this kind of testimony, that in the end it really 
erodes the confidence of the American people and the integrity 
of the system? Isn't that really what we're talking about here?
    Mr. Balliro. And in a very expensive way.
    Mr. Delahunt. And in a very expensive way. It's my 
understanding in my conversation with Mr. Garo that on the 
other cases that he testified that resulted in convictions, 
what we're talking about were sentences of some 5 years, and 
who knows what the veracity, the credibility, of his testimony 
was in that case. But after all this, all this money, all this 
effort, Joe Barboza did absolutely nothing in terms of justice 
and in terms of protecting the people. It was an egregious 
mistake to recruit him as an informant to begin with.
    Mr. Bailey, you said something that was very disturbing to 
me. It's clear to me that the position of the Federal Bureau of 
Investigation, reading from just newspaper reports, is that 
when they receive this information--and if you had an 
opportunity to review the exhibits, you see the correspondence 
back and forth from the special agent in charge in Boston and 
the Director of the FBI, who at that time was J. Edgar Hoover, 
as well as reports filed by Special Agent Rico and in some 
cases by Special Agent Condon, that they concluded that by 
simply disseminating the information, that was the end of their 
legal obligation.
    Now, I don't know whether failing to produce that 
information or insist upon it being brought to the appropriate 
court of jurisdiction would violate any criminal statute. I 
find it offensive on a moral and ethical basis. But what you 
said earlier about Mr. Barboza's testimony being helped, were 
you suggesting that his testimony was manipulated, was agreed 
to, was suggested by Federal agents?
    Mr. Bailey. I'm quite certain of that. And before more FBI 
bashing, let me say I am a big fan of the FBI. Judge Webster 
and Judge Sessions are friends. But the FBI is like the little 
girl with the curl; when they're bad, they are horrid. In this 
case I believe that the testimony was furnished. When the FBI 
decided who they wanted to target, it just happened to be the 
right-hand man of Raymond Patriarca, the reputed right-hand man 
of Jerry Angiulo. They suggested those names. Barboza threw in 
Greco, because Greco beat him up once, and he threw in Salvati, 
because he had to replace Flemmi. They knew all about that. And 
one particular agent not only did it in this case but did it 
again with another----
    Mr. Delahunt. You know, that's a very serious statement.
    Mr. Bailey. It is.
    Mr. Burton. Could the gentleman yield real quickly? You 
said they did it in another case?
    Mr. Bailey. Yes.
    Mr. Burton. Would you care to be a little bit more 
specific? I'll grant the gentleman the time.
    Mr. Bailey. Certainly. As these people were indicted, Mr. 
Balliro and I were engaged in defending what Congressman 
Delahunt will remember as the Great Plymouth Mail Robbery, then 
the largest in the history of the country. All these men were 
acquitted. The purported leader, John J. Kelley, whom I 
defended, was caught a year later, in a Brinks truck robbery, 
nailed cold. And he was told--and I talked with Mr. Kelley 
about this extensively. He was told, you are such a big fish, 
that to get a deal you're going to have to give us somebody 
bigger. And there are only two people we can think of, F. Lee 
Bailey and Raymond Patriarca. He chose Mr. Patriarca, was 
helped to make up a story about Mr. Patriarca orchestrating a 
homicide, testified falsely in Federal court and obtained a 
conviction. The manager of that witness as well was Paul Rico, 
who came to my office attempting to intimidate me after Kelley 
turned, and I threw him out.
    Mr. Burton. Any information you have about that case we'd 
like to have. Anything----
    Mr. Bailey. I can only tell you, because----
    Mr. Burton. We'll check with the FBI to get documentation 
on that as well.
    Mr. Bailey. You should. Yes.
    Mr. Burton. I'm sorry, Mr. Delahunt.
    Mr. Delahunt. I thank the Chair. I just would note that 
this goes far beyond simply the withholding of exculpatory 
evidence, which is--what you're suggesting here is that in a 
capital case----
    Mr. Bailey. Well, I said, ``now, Joe, could you have done 
it by yourself?'' And he said no, he wouldn't have known how to 
arrange his facts so that he could testify falsely to them.
    Mr. Delahunt. Well, again, in the Deegan case, this is 
suggestive of subornation of perjury, Mr. Bailey.
    Mr. Bailey. It is, the penalty of which is life.
    Mr. Delahunt. And that particular statute does not have any 
statute of limitations, does it, Mr. Bailey?
    Mr. Bailey. It does not. And it suggested strongly to me of 
a conspiracy to cause murder to happen. If these men had not 
been saved, not by the judicial process in the United States, 
which endorsed the death sentences, not of Salvati and French 
but of the other four, had they not been saved by the U.S. 
Supreme Court's widespread--effective the Furman v. Georgia 
decision of striking down capital punishment, they would have 
been executed, and nobody would have come forward on----
    Mr. Delahunt. Mr. Bailey, you seem to be convinced that one 
Stevie Flemmi was the informant in the reports of the FBI.
    Mr. Bailey. He is mentioned not by name but because we know 
that he was the owner of a certain property, and that's how 
he's described in the memo which I saw a little while ago. But 
please understand, the FBI had, we now know, a nest of 
ruthless, cold-blooded psychopathic killers, two Flemmis, 
Barboza and Whitey Bulger. They left them on the streets, they 
protected them at all times. They were killing people left and 
right and committing all kinds of other crimes. And who gave 
them information in a given case is hard to say, but Vincent 
Flemmi has admitted that he was that person in the back seat 
with the bald spot.
    Mr. Delahunt. Mr. Balliro, could I ask you just in terms of 
how do we remedy this situation? Let me just give you my own 
theory.
    Mr. Burton. Can I clarify?
    Mr. Delahunt. Certainly.
    Mr. Burton. Mr. Balliro, I want to make sure we don't miss 
that point. You're saying your client was Mr. Flemmi. Did Mr. 
Flemmi admit to you that he was the fellow with the bald spot 
in the back seat?
    Mr. Balliro. Oh, yes.
    Mr. Burton. OK. Well, I think that's very important that we 
make sure that's clear to everybody. I thank the gentleman.
    Mr. Balliro. Not only did he admit to me that he was the 
fellow sitting in the back seat, but he also told me that 
Barboza had sent him a message explaining that he had 
substituted Salvati for him, and that Limone, Tameleo and Greco 
had nothing to do with it; but since they didn't give him, 
Barboza, the proper, what he called respect, he was very 
concerned about being respected by the people in the north end 
of Boston, all of whom were of Italian heritage, and he wasn't 
getting that respect, so he was going to get even.
    Mr. Delahunt. I posed a question earlier, but I'd like to 
ask another question of Mr. Bailey. Can you identify the law 
enforcement agents that told Barboza, according to Barboza's 
conversation with you, that you're here forever if you continue 
to insist upon recanting your testimony?
    Mr. Bailey. No, because he didn't tell me that. It has 
since come out, and I don't have personal knowledge of that, 
but I do know this: Whenever Barboza was on the move doing 
anything, Rico and Condon would pop up as they did in Santa 
Rosa.
    Mr. Delahunt. Mr. Balliro, in the State, some offices, 
including mine when I was the district attorney, adopted a 
policy of full discovery, an open file policy. Can you describe 
for members of the committee the discovery procedures in the 
Federal system and whether, in your opinion, there is 
difficulty securing exculpatory evidence?
    Mr. Balliro. It's like pulling teeth. That's what it's 
comparable to. You know, they boast--most U.S. attorney's 
offices--about how much discovery they give to defense counsel 
in criminal cases, and they're prone to sending you banker 
boxes full of discovery, really without identifying what in all 
those thousands upon thousands of pages really is important, 
what's significant and what isn't significant. But when it 
comes down to the real nitty-gritty of what you need to 
effectively represent your client and to do a competent cross-
examination, it's like pulling teeth. They fight it all the 
way.
    Mr. Delahunt. Thank you. Just indulge me, Mr. Chairman, for 
one more question. You referenced earlier Stevie Flemmi and 
Whitey Bulger, and I know you were present earlier when I 
inquired of Mr. Garo about his problems with the commutation, 
securing the commutation, despite having in his possession 
documents that were clearly exculpatory. Now as I sit here and 
I reflect, if Stevie Flemmi, one could theorize, was the 
informant in this case, given his role and position in the 
criminal element in Massachusetts, it certainly wouldn't be to 
his advantage to have Limone and Greco and Tameleo out on the 
street, would it, Mr. Bailey?
    Mr. Bailey. I don't think Stevie was ever accepted as a 
member of the so-called Angiulo group. The two Flemmis----
    Mr. Delahunt. Well, in fact, it was his testimony that did 
lead in the late 1980's, early 1990's, to the conviction of 
Gennaro Angiulo and others. Am I correct in stating that? He 
played a role in it. Not only did he play a role----
    Mr. Bailey. The Federal prosecution of Gennaro and Angiulo, 
yes.
    Mr. Delahunt. Yes. But I guess my point is, if you will 
listen to me for one moment----
    Mr. Bailey. Yes.
    Mr. Delahunt [continuing]. And just reflect on this 
premise, it was as if Stevie Flemmi and his associate, Mr. 
Bulger, were acquiring a monopoly in terms of organized crime 
in the greater Boston area. There was no competition.
    Mr. Bailey. Well, they had their own organization, but they 
had a very powerful partner, called the FBI.
    Mr. Delahunt. I yield. Thank you, Mr. Chairman.
    Mr. Burton. Thank you. We'll come back, if you have more 
questions. Mr. LaTourette. Then we'll go to Mr. Shays. And Mr. 
Horn, you have questions, too? We'll get to all of you in just 
a minute. Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Chairman. Mr. Bailey, I come 
from Cleveland, OH, and my mom put together a scrapbook and 
this doesn't have anything to do with it, but I was born in the 
month of July 1954, the month Marilyn Sheppard was murdered, 
and your name is certainly emblazoned in a lot we've done, and 
there are some parallels. As a matter of fact, I just heard Sam 
Ray Sheppard on the radio the week before I came back and his 
continuing travails to clear his father, but it's a pleasure to 
be in your company.
    Mr. Balliro, it's a pleasure to be in your company too. I 
don't want to exclude you, but you didn't have anything to do 
with Marilyn Sheppard.
    I am concerned, Mr. Balliro, about an exhibit that's in our 
book, exhibit No. 35, which is an affidavit that I think you 
executed earlier this year in connection with the release of--
dealing with representation you had. You're conversant with 
that affidavit and----
    Mr. Balliro. Yes.
    Mr. LaTourette. OK. And I think that the chairman was 
talking to you before about the fact that--whether or not you 
had a conversation with Vincent Flemmi about the murder of 
Teddy Deegan, and you did in fact have such a conversation. And 
in that conversation, as I understood not only your previous 
observations but the affidavit as well, he basically told you 
what had happened to Teddy Deegan.
    [Exhibit 35 follows:]
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    [GRAPHIC] [TIFF OMITTED] T6507.125
    
    Mr. Balliro. He told me it in the context of the attorney-
client relationship. As a matter of fact, he started off by 
saying--I had gone up to see what information I could get from 
him that might undermine the credibility of Barboza----
    Mr. LaTourette. Right.
    Mr. Balliro [continuing]. In the upcoming trial. And he 
started off by saying that he was very concerned about giving 
me any information, which kind of stunned me, because I knew 
what his relationship was to other people in that whole group, 
and the expectation was that he would be very happy to be of 
help, if he could be of help. But he said he couldn't and that 
he was concerned about Barboza, because as close as he was to 
Barboza, he didn't trust Barboza for one moment. He felt that 
he might turn on him and might implicate him in the Deegan 
killing. And if so, he wanted me to represent him. I 
represented Jimmy on previous cases. As a matter of fact, I 
represented him on a case that he was in jail for at that time.
    Mr. LaTourette. Right. But this conversation which I think 
I want to get to, this conversation took place, according to 
the affidavit, at least, in the summer of 1967?
    Mr. Balliro. Correct.
    Mr. LaTourette. The trial for the Deegan murder took place 
in 1968?
    Mr. Balliro. Correct.
    Mr. LaTourette. OK. So at the time that you were 
representing one of the codefendants, I guess, in the Deegan 
murder, you had information from another client that the client 
you were representing had nothing to do with the Deegan murder, 
and in fact, it was Vinny Flemmi and ``the Animal'' that had 
actually been the bad people. Is that right?
    Mr. Balliro. Correct. It was a lot more complicated than 
that, because one of the co-counsels who represented Joe 
Salvati was a fellow who I had put into the case. He was in my 
office at the time.
    Mr. LaTourette. Well, that was the next thing that I was 
going to ask you. Mr. Salvati's lawyer came from your firm as 
well?
    Mr. Balliro. Correct.
    Mr. LaTourette. And it's been--I haven't practiced law, 
obviously, since I've been here, but it seems to me that there 
was some rule that what was knowledge of----
    Mr. Balliro. Conflicts.
    Mr. LaTourette. Well, we'll get to conflict in a minute 
maybe, but what was the knowledge of one person within the firm 
was imputed to be the knowledge of the law firm, I guess. Is 
that----
    Mr. Balliro. I think that's a fair statement, yeah.
    Mr. LaTourette. OK. So at the time your associate was 
representing Mr. Salvati, your firm had institutional 
knowledge, at least, that Vincent Flemmi and Mr. Barboza were 
the murderers?
    Mr. Balliro. We didn't set up Chinese walls in those days.
    Mr. LaTourette. I'm not trying to cast stones here. I'm 
trying to just indicate that this is a pretty intense web that 
was weaved back in 1968, and I think that it's intense, because 
when your client was found guilty on July 31, 1968, you knew it 
was wrong. Right?
    Mr. Balliro. Oh, absolutely.
    Mr. LaTourette. And you didn't know it was wrong because 
they had just done a nice job of the prosecution. You knew it 
was wrong because you had another client who was the murderer?
    Mr. Balliro. Sure.
    Mr. LaTourette. And that applied to Mr. Salvati as well?
    Mr. Balliro. Absolutely.
    Mr. LaTourette. You know, we're going to deal with how the 
government handles informants and things of that nature, but--
and I also understand that the fact that the attorney-client 
privilege is inviolate. But I guess I would solicit an opinion 
from you as to that's a pretty big pickle you've found yourself 
in.
    Mr. Balliro. Sure.
    Mr. LaTourette. And do you think that there is no ethical 
way out of--not just you, but----
    Mr. Balliro. Well, there is now, and there is in 
Massachusetts anyway, because the Supreme judicial court in 
Massachusetts, effective January 1, 1998, opened the door for 
counsel to invade the attorney-client privilege if, among other 
things, it would result in preventing an unlawful 
incarceration. That's one of the phrases that's in the rule 
now. So you can do that today, and that's----
    Mr. LaTourette. But that change only took place----
    Mr. Balliro. Which led to my finally divulging the name of 
Flemmi. It says ``may.'' It doesn't say ``has to,'' and in an 
exercise of caution, I asked for a court order, and I did get 
that.
    Mr. LaTourette. And as we look at changing that, what do 
you think about making it mandatory, the ``shall''? If you have 
information as a lawyer, or I had information or Mr. Delahunt 
or Mr. Bailey, that a fellow is going to go to jail, face the 
death penalty--and thankfully the jury showed mercy and he only 
got--only, I say, life in prison, but he spent 33 years--do you 
think making it mandatory would have----
    Mr. Balliro. Well, I think that--I'm a little hesitant 
about making it mandatory, because there are too many shades 
sometimes, you know, having to do with those kinds of 
revelations. But I do think that an acceptable alternative 
would be to have the attorney at least make an in camera 
presentation to a judicial officer and then let the judicial 
officer in the exercise of his discretion determine whether or 
not he should----
    Mr. Delahunt. Would the gentleman yield?
    Mr. LaTourette. The red light is on. If you want me to 
yield, Mr. Chairman, I'll yield.
    Mr. Burton. Well, we're being very lenient, because we 
don't want to break up the train of thought of those who are 
doing the questioning, but I'd just like to say, we don't have 
a Federal statute that deals with that. Do you think it would 
be advisable to have a Federal statute that's similar to the 
statute in Massachusetts that would allow a defense attorney to 
divulge that kind of information if there was somebody 
wrongfully convicted?
    Mr. Balliro. I think it's extremely important, Mr. Chairman 
and, you know, this isn't the first time that I've had a client 
tell me about someone else's innocence in a case that I was 
representing, you know, somebody on, and it's not the first 
time that the person that's told me was the person who actually 
committed the offense that I was defending somebody else on.
    Mr. Burton. I think Mr. Delahunt and others on the 
Judiciary Committee, I'll be happy to cosponsor a bill like 
that. Would the----
    Mr. Delahunt. Yeah. The question that other--again, the 
observation by Chairman Burton and your informing the committee 
about the change in Massachusetts rules, I think it's something 
that this committee, in conjunction with the Judiciary 
Committee and the full Congress, ought to give serious 
consideration, and any ideas that either one of you or any 
members of the bar, whether it be prosecutors or defense 
counsel. I think this particular case highlights the need to 
have some discretion. I concur, Joe, with you. I think making 
mandatory might cause some real problems, given the various 
degrees, if you will, of culpability and involvement, but I 
think it's an excellent suggestion, and I'd welcome working 
with the Chair and Mr. LaTourette on that.
    Mr. Balliro. Whatever my committee in Massachusetts can do 
to be of help. I want you to know, Congressman, that we'd be 
very happy to set up a liaison relationship in that regard.
    Mr. Delahunt. Thank you, Joe.
    Mr. LaTourette. I thank you. I thank the Chairman.
    Mr. Burton. Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman. Gentlemen, it's very 
nice to have you both before this committee. You've sat very 
patiently listening to the first panel, and so we don't need to 
bring forward those exhibits. But just to quickly go over them 
again quickly without bringing them up, exhibit 11 was from 
Lieutenant Thomas F. Evans, Chelsea Police Department, in which 
it was fairly clear they had identified the perpetrators of the 
murder.
    Exhibit 12 was the city of Boston Police Department of 
March 14, 1965, in which they basically had similar 
information. Then you had the Department of Public Safety, 
March 15th, Massachusetts State Police, exhibit 13, that 
confirmed what the first--what the Chelsea police had been told 
and what the police department in Boston had been told. None of 
this information, Mr. Balliro, was made available to you. 
Correct?
    [Exhibits 11, 12 and 13 follow:]
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    Mr. Balliro. You know, one needs only to look at the 
transcript of the record of the trial in this case. If 
anything, a glimpse of all of that information had been 
furnished to defense counsel, it would have resulted in a 
flurry of discovery motions and days of cross-examination of 
Mr. Barboza and other witnesses that we would then put on the 
witness stand.
    Mr. Shays. You would have had an absolute field day. 
Exhibit 15 was the Airtel to Director of the FBI from the 
special agent in charge, dated March 19th, which was actually 
dated after the murder, but described what they had been told 
would be the murder--what was going to take place, and in fact 
the murder did take place. And, again, your witness was not 
mentioned in any of these as well.
    [Exhibit 15 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.062
    
    [GRAPHIC] [TIFF OMITTED] T6507.063
    
    [GRAPHIC] [TIFF OMITTED] T6507.064
    
    Mr. Balliro. Absolutely not.
    Mr. Shays. Mr. Bailey, you had--I now would like to turn to 
exhibit 26. This is an affidavit that Joseph Barboza signed in 
front of a notary, and this was at your request. Is that true?
    [Exhibit 26 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.102
    
    Mr. Bailey. Yes. And the notary was my law partner.
    Mr. Shays. Thank you. Would you read No. 1 and No. 2, 
``that I am the same''?
    Mr. Bailey. You mean Paragraphs 1 and 2?
    Mr. Shays. Yes. Thank you.
    Mr. Bailey. OK. ``That I am the same Joseph `Baron' Barboza 
who testified in the trial of the Commonwealth v. French,'' 
with numbers.
    No. 2, ``That I wish to recant certain portions of my 
testimony during the course of the above-said trial insofar as 
my testimony concerned the involvement of Henry Tameleo, Peter 
J. Limone, Joseph L. Salvati and Lewis Grieco in the killing of 
Teddy Deegan.''
    Mr. Shays. So basically, he is acknowledging--and he was in 
fact the only witness in their--he was the witness against 
these individuals. Is that correct?
    Mr. Bailey. The men were sentenced to death on the sole 
basis of Barboza's testimony.
    Mr. Shays. And he is saying that he did not testify 
accurately. Is that not true?
    Mr. Bailey. Yes, he certainly is.
    Mr. Shays. OK. So you have this document, and walk me 
through again what you did with this document.
    Mr. Bailey. I believe I sent it to the attorney general.
    Mr. Shays. OK. And the attorney general at the time was?
    Mr. Bailey. Robert Quinn.
    Mr. Shays. Now, in the State of Massachusetts, the attorney 
general does criminal as well as civil? In the State of 
Connecticut it's only civil but----
    Mr. Bailey. He has a supervisory role and can take over 
most any case, as Senator Brooke did the strangling cases that 
were being handled by several jurisdictions.
    Mr. Shays. And it's not like frankly you're a lightweight 
attorney. It's not like you aren't well known. It's not like 
this would have just passed through his desk and somehow 
slipped through. I mean, this came with your signature, and 
this was the affidavit. And in your letter, did you outline 
what was said in the affidavit? Do you remember?
    Mr. Bailey. I believe I said generally that Mr. Barboza was 
looking for a vehicle to make the truth known without being 
penalized too heavily.
    Mr. Shays. OK. So the bottom line to it is, though, you got 
what kind of a response?
    Mr. Bailey. None.
    Mr. Shays. By none, you got no thank you, or you didn't get 
a no thank you?
    Mr. Bailey. No. I got no response.
    Mr. Shays. OK. I just need to know what you would do after 
that. If you got no response, is it kind of case closed or----
    Mr. Bailey. Well, bear in mind on the day this affidavit 
was signed, I believe according to other documents you have, 
Barboza was visited by the Federal prosecutors, and that ended 
my relationship with him.
    Mr. Shays. OK.
    Mr. Bailey. And the lie detector test was canceled.
    Mr. Shays. OK. So this relates to the lie detector----
    Mr. Bailey. Yes.
    Mr. Shays. In other words, all of this is related to the 
same----
    Mr. Bailey. He was to take the test to verify the fact that 
he was now truthfully saying these four men had nothing to do 
with it and that he lied in the Federal case against Raymond 
Patriarca and others.
    Mr. Shays. So you seem to not just imply, but you're saying 
quite strongly that the FBI, aware of this affidavit, was 
basically saying you shouldn't have any more relationship with 
Mr. Bailey?
    Mr. Bailey. Well, after their visit, I never did.
    Mr. Shays. OK. What is the penalty in Massachusetts--I 
don't know if either of you qualify--for giving false testimony 
in a trial?
    Mr. Bailey. Well, there's a penalty for perjury, which I 
believe carries 5 years or more, but there's a special statute 
for perjury in a capital case, and life is the punishment, and 
was then.
    Mr. Shays. So for me, the nonattorney, if Mr. Salvati was 
going to be sentenced potentially to capital punishment--and 
receive the death penalty, then if someone else gave false 
evidence, they could be subject to the same penalty?
    Mr. Bailey. Not the death penalty, but life.
    Mr. Shays. Life. OK. What is the penalty for helping a 
witness give false testimony?
    Mr. Bailey. Well, perjury and suborning perjury are usually 
treated equally in the eyes of the law, and I would say that if 
I were the prosecutor, a good case could be made for the 
architects of perjured testimony to suffer the same penalty as 
the perjuring witness.
    Mr. Shays. And what is the penalty for a law enforcement 
officer withholding evidence important to a case?
    Mr. Bailey. Unfortunately, to my knowledge, it is no 
greater than the average felon marching down the street. I 
believe there should be much stiffer penalties for those 
entrusted with great power and respect who choose to abuse that 
power, as was done here.
    Mr. Shays. In the third panel, we have Mr. Paul Rico, 
retired FBI special agent. We also requested that Dennis 
Condon, retired FBI special agent, testify. Mr. Condon, I 
believe, will not be able to show up, and I believe----
    Mr. Burton. We will question him. He, on the advice of his 
physician because of health reasons, couldn't be here.
    Mr. Shays. So we will be having Mr. Paul Rico after you 
testify. Would you describe to me--both of you gentlemen, would 
you describe to me what you think their involvement was in this 
case?
    Mr. Bailey. My only personal contact with Paul Rico was 
when he came to my office shortly after John Kelley had become 
a government witness and been incarcerated in the Barnstable 
County Jail. Prior to testifying in the Federal case, which he 
appeared as a witness who had organized an escape route for a 
murder requested by or ordered by Raymond Patriarca, and he 
later told me that story was one that he was told he would have 
to tell. Since he was unwilling to implicate me in my felonies, 
Patriarca was the only acceptable trade for his freedom, which 
he got. But I saw him many times after the trial was over.
    The only other knowledge I have of Mr. Rico's activity was 
one of which I am highly suspicious, and that was in the 
attempt to convict your colleague, Alcee Hastings. He was up to 
his ears in that.
    Mr. Balliro. May I say this, Congressman?
    Mr. Shays. Yes.
    Mr. Balliro. It's, to me, unconscionable, given what we 
know now, seeing these internal documents that were going up 
the line to the Justice Department to just before, during, and 
after the Deegan killing, many of them authored by Special 
Agent Rico. I mentioned the testimony of Agent Dennis Condon 
during the course of the Deegan trial. And to sit by and just 
let that happen, I don't know that there's any penalty for 
that, but I can't imagine anything worse for a law enforcement 
officer to do. Talk about obstructing justice, much less a 
perjury. This is fashioning the obstruction of justice with a 
determined purpose to frame people, and that's happened. They 
were framed.
    Mr. Shays. Well, we won't have Mr. Condon here today to ask 
questions, but I do look forward to asking Mr. Rico a number of 
questions that are the result of our two panels. I thank you 
both for being here. At this time I have no more questions.
    Mr. Burton. Thank you, Mr. Shays. Do you have questions, 
Mr. Barr? We'll come to you in just a minute.
    Mr. Barr. I think both of you gentlemen are aware of the 
Justice Task Force on this and related matters that was formed 
in January 1999. Are you all familiar with that?
    Mr. Balliro. I have a peripheral awareness of it, 
Congressman, but----
    Mr. Bailey. I am aware of Mr. Fishman, who is partly 
responsible for smoking out this mess.
    Mr. Barr. Mr. Bailey, has the task force contacted you and 
communicated with you to gather information?
    Mr. Bailey. They have not.
    Mr. Barr. And they have not contacted you, Mr. Balliro?
    Mr. Balliro. They have not.
    Mr. Barr. Well, the Justice Task Force was formed in 
January 1999--2 years ago. And the investigation, its history 
and a brief synopsis of its work, is contained as an attachment 
to the Director Freeh statement that he furnished to us. Was 
that included, Mr. Chairman, in the earlier----
    Mr. Burton. In the record?
    Mr. Barr [continuing]. Record?
    Mr. Burton. Yes. We included not only Director Freeh's 
letter but the contents of the attachment.
    Mr. Barr. OK. There is a case that has risen out of the 
Justice Department's task force in this case involving John 
Connolly, Bulger, Whitey Bulger and Flemmi. Are either of you 
aware of the status of--I know there has not yet been a trial, 
but are you aware of the status of that case?
    Mr. Balliro. It's in its very early stages, I would suggest 
to you. I know the counsel for John Connolly, Tracy Minor from 
Mince, Lever, and they've just begun to scratch the surface, 
both defense-wise and prosecution-wise. So it's going to be a 
long time before that case goes to trial.
    Mr. Barr. Now, Mr. Bailey--I'm not sure which one of you is 
better qualified to do this, but could you just briefly 
describe--this fellow Bulger's name keeps surfacing in all of 
this. What role does he play in these goings-on? I know he's 
part of this case, in which an indictment and then a 
superseding indictment was brought by the Justice task force, 
but how does he fit into all this, if at all?
    Mr. Balliro. Well, he was the handler, of course, for both 
Bulger and for Steve Flemmi, the handler in this----
    Mr. Barr. Connolly?
    Mr. Balliro. Connolly was--John Connolly was. My 
understanding from his remarks to the media at or about the 
time that he was indicted was that he didn't know what bad 
people they were, and as far as he knew, Steve Flemmi was 
just--well, maybe a bookmaker and perhaps a loan shark. So they 
were willing to give him a pass on those kinds of activities.
    But I can tell you this, Mr. Congressman. I've lived in 
that area my entire life and got a pretty good street sense of 
everything that is going on. And I can tell you that every kid 
in south Boston, which was their area, understood very, very 
clearly what violent people both Flemmi and Bulger were. They 
terrorized that area. When they walked into a place of 
business, people actually quaked. John Connolly comes from that 
area. It's just unconceivable to me that he didn't know what 
every kid on the street in south Boston knew, much less all the 
rest of law enforcement, both State and local, in Massachusetts 
knew.
    And, by the way, I've had many, many cases involving 
shylocking, and time and time again at sentencing I've heard 
prosecutors stand up and tell judges what a terrible, violent 
crime shylocking was. So for John Connolly, an FBI agent, to 
demean it and deprecate its importance or its lack of violence 
is just unconceivable to me.
    Mr. Barr. And Bulger was an FBI informant for a fairly long 
period of time, too, wasn't he?
    Mr. Bailey. Until he became a fugitive, yes.
    Mr. Barr. For over 20 years he was an informant?
    Mr. Bailey. So far as we can sort out, because Flemmi knows 
all about it, and Flemmi has made that known to the court as 
his defense in a racketeering case. In other words, he says I 
was set in motion by the government. You can't now turn on me; 
I have, in effect, immunity. And that is the defense he has 
raised. He has since been indicted for murders all over the 
country, and they're still digging up bodies as of this time to 
indict Flemmi.
    Mr. Balliro. And, Mr. Congressman, may I just say this in 
addition, because I think this may be important to counsel as a 
source of information. Back in the early 1980's, between 1980 
and 1985 when the Anguilos were prosecuted, there were--I don't 
want to exaggerate it--but carefully, I say, many, many, many 
hundreds of hours of wiretapping in two different locations in 
the north end of Boston conducted by agents of the Federal 
Bureau of Investigation, and you don't have to get into too 
many pages to start hearing Bulger's name and Flemmi's name 
being mentioned in connection with the most violent of 
offenses.
    Now, apparently Agent Connolly, Agent Rico, agent whoever, 
didn't know what those wiretaps contained. Everybody in the 
world knew it in 1985 when they were finally released. They had 
all been put by Judge Nelson, who handled that case, in my 
custody until the court proceeding, the actual trial took 
place. So we knew about it in between 1983, 1984 and 1985 when 
the trials began, but then the public knew, and those were open 
for anybody's examination.
    Mr. Barr. I'm not personally yet familiar with this case 
that the Justice task force has brought, but according to the 
material furnished by Director Freeh yesterday, this brief 
synopsis indicates that the December 1999 indictment was 
returned against retired FBI Senior Special Agent John 
Connolly, Bulger and Flemmi. Do you all know what the nature of 
the charges against Connolly were or are?
    Mr. Balliro. Included in them, I believe, are accessory to 
murder charges.
    Mr. Bailey. I think that was a----
    Mr. Barr. So arising out of the dealings with these 
gentlemen as--or these men as informants?
    Mr. Balliro. Well, they claim--Connolly claims, of course, 
that he didn't know anything about murders. I mean----
    Mr. Bailey. I believe, Congressman, that the first 
indictment affecting John Connolly was for obstruction and 
related offenses and that a new indictment was brought, 
dragging him in as being responsible in part for murder.
    Mr. Balliro. What happens is the government keeps flipping 
people, and between the first indictment and the second 
indictment, they flipped a confidante of Bulger and Flemmi, a 
man by the name of Kevin Weeks, who now is a cooperating 
witness with the government. He was able to tell them about 
many of these murders, because he participated in things like 
hiding the bodies and burying the bodies and digging them up 
and reburying them. You know, like some movies that we've seen 
recently, this all happened, and they found those bodies. And 
the government has gone in, they're digging up places, and 
these bodies keep coming up now, all of which Kevin Weeks tells 
them exactly where they are, and that's why you're getting 
these--and I'm not sure the indictments are all finished 
either. I believe there may be superseding indictments in those 
cases.
    Mr. Barr. Thank you very much. I appreciate both of you 
gentlemen sharing both your history in these cases, as well as 
your vast expertise on these type legal matters with us and 
look forward to continue to work with you as we try and fashion 
some additional safeguards to avoid these things happening in 
the future. Thank you.
    Mr. Burton. Thank you, Mr. Barr.
    Mr. Delahunt, did you have one more question?
    Mr. Delahunt. Yes, I do. I just wanted to make a note, too, 
that--I don't know whether it was Mr. Bailey or Mr. Balliro 
that indicated that Mr. Connolly was the so-called handler for 
both Bulger and--Flemmi.
    Mr. Balliro. Steve Flemmi.
    Mr. Delahunt. Steve Flemmi. Are you aware--obviously both 
had been informants prior to Mr. Connolly's coming to the 
Boston office of the FBI? Are you aware of--whom the FBI 
handler was for Mr. Bulger or Mr. Flemmi, Mr. Steven Flemmi? 
Maybe you----
    Mr. Balliro. Well, whether he can be named as a handler or 
not, I don't know, but from the materials that I'm now reading 
just recently in late December that have been revealed, it 
appears that Special Agent Rico very well could be categorized 
as a handler, at least of Steven Flemmi.
    Mr. Delahunt. So it's a----
    Mr. Balliro. I don't know if there's anything about----
    Mr. Delahunt. Right. I reviewed those too, and I reached 
the same conclusion. But I guess it's a fair statement to say 
that Steve Flemmi went from the supervision of Mr. Rico to the 
supervision of Mr. Connolly?
    Mr. Balliro. It appears to be that way.
    Mr. Delahunt. He was passed in that direction. Joe, if I 
can just ask this question, because I think when I listen to 
the questions of my colleagues here, particularly Mr. Shays, I 
think it's important to try to clarify how a homicide 
investigation, which is a State prosecution, is conducted in 
Massachusetts, specifically in the case of Deegan. Am I correct 
when I say usually it is the local police department, and 
sometimes there is assistance from the State police; and 
rarely, but sometimes, it does occur there is assistance from 
the FBI?
    Mr. Balliro. This was highly unusual. It's a very rare case 
that the FBI, in my experience, has been participating so 
intimately in the preparation, investigation and prosecution of 
a criminal--of a State case of homicide. But they were all over 
this one.
    Mr. Delahunt. So they were intimately involved in the trial 
preparation. They were witnesses. They were present when this 
case was being prosecuted?
    Mr. Balliro. That's correct.
    Mr. Delahunt. Thank you.
    Mr. Burton. Well, let me just thank both of you very much. 
You've been very, very helpful. We realize that you're very 
prominent attorneys. And Mr. Wilson, with whom you've worked, 
and I and the rest of the panel wants to thank you very much 
for being here, because I know that it took time out of your 
busy schedules, which in your income brackets is pretty 
expensive.
    So we really appreciate you very much being here and giving 
us information. We would like for you if we have additional 
questions to respond to them in writing if you wouldn't mind.
    Mr. Bailey. Thank you very much.
    Mr. Burton. Thank you very much. We will now go to our 
third panel, which is Mr. Rico. Would you come forward, please?
    [Witness sworn.]
    Mr. Burton. Do you have an opening statement, Mr. Rico?

      STATEMENT OF H. PAUL RICO, RETIRED FBI SPECIAL AGENT

    Mr. Rico. I have no opening statement.
    Mr. Burton. We will go directly to questions then.
    You have heard the statement about the murder which took 
place which involved the conviction of Mr. Salvati. Were you 
aware that he was innocent?
    Mr. Rico. I was aware that he was on trial and he was found 
guilty. That's all I know. I have heard what has transpired and 
I believe that it's probably, justice has finally been done. I 
think he was not guilty.
    Mr. Burton. Were you aware----
    Mr. Rico. I am saying that until I heard the facts, which 
is the first time I have heard the facts is today, that I was 
not convinced that he was innocent until today. I'm convinced 
he was innocent.
    Mr. Burton. Well, you were one of the FBI agents in the 
Boston office at the time. Were you not aware of any of the 
statements or documents that we have been able to uncover 
during our investigation?
    Mr. Rico. I think I caused some of those documents to be 
written. I think I wrote some of those documents, and when I 
identified who I knew from an informant who committed this 
homicide, but as someone has said before, the information is a 
lot different than testimony.
    Mr. Burton. You knew--according to the record, you sent a 
memo to FBI Director Hoover, as I understand it, saying that 
you had been informed that Mr. Deegan was going to be hit or 
murdered?
    Mr. Rico. That's probably true, yes.
    Mr. Burton. And you knew before the fact that was going to 
occur?
    Mr. Rico. We have had several of those things happen in the 
past. I have been involved in warning some of the people that 
have been targeted in the past.
    Mr. Burton. Did you or anybody in the FBI let Mr. Deegan 
know that he was going to be hit?
    Mr. Rico. It's possible because----
    Mr. Burton. Wait a minute.
    Mr. Rico. I want to say to you that normally when we hear 
something like that we try to figure out how we can do 
something to be able to be of assistance, like make an 
anonymous phone call or call the local police department or 
something along that line. I don't know what happened in that 
case. Whether or not someone did notify him or not, I don't 
know.
    Mr. Burton. Did you know Mr. Barboza?
    Mr. Rico. I came to know Mr. Barboza.
    Mr. Burton. Did you know him prior to the Deegan murder?
    Mr. Rico. No.
    Mr. Burton. Did Mr. Condon know him prior to the Deegan 
murder?
    Mr. Rico. No, I don't think he did.
    Mr. Burton. So he was not working with you and he was not 
an informant or anything?
    Mr. Rico. That's right.
    Mr. Burton. How about Mr. Flemmi?
    Mr. Rico. At one time I had Steven Flemmi as an informant. 
He has admitted that before Judge Wolf and all of the contacts 
were exposed between my contacts with him and those contacts 
that were written--were introduced before Judge Wolf.
    Mr. Burton. Did you know he was a killer?
    Mr. Rico. No.
    Mr. Burton. Did you not know he was a killer?
    Mr. Rico. I knew that he was involved in probably loan 
sharking and other activities but, no.
    Mr. Burton. Well, it's testified here by several witnesses, 
including the last two, that it was fairly well known on the 
north side of Boston that he was to be feared and that he was 
killing people, but you in the FBI didn't know about that?
    Mr. Rico. Are we talking about Steven Flemmi or Vincent 
Flemmi.
    Mr. Burton. Vincent Flemmi, Jimmy Flemmi.
    Mr. Rico. Oh, Vincent Flemmi. I think when I was in Boston 
I would have known that Vincent Flemmi had committed homicide.
    Mr. Burton. Did you have any dealings with him?
    Mr. Rico. Not really, no.
    Mr. Burton. Did Mr. Condon have any dealings with him?
    Mr. Rico. I think at one time he might have opened him up 
as an informant, I don't know. I don't personally know.
    Mr. Burton. But neither you nor Mr. Condon knew anything 
about his involvement in the Deegan murder prior to the murder?
    Mr. Rico. I can only speak for myself, and it's possible 
that I had information that he might have been involved or 
going to be involved.
    Mr. Burton. Well, there was a memo from you to FBI Director 
Hoover that was 2 or 3 days prior to the killing that said that 
you had information that Mr. Deegan was going to be hit or 
killed?
    Mr. Rico. Yeah.
    Mr. Burton. Did you not know who was going to be involved 
in that? You did not know Mr. Barboza or Mr. Flemmi was going 
to be involved?
    Mr. Rico. Is that document before me?
    Mr. Burton. Where is that document, Counsel? He would like 
to look at that real quickly, the document that went to FBI 
Director Hoover informing him that there was--it's exhibit No. 
7, in front there.
    [Exhibit 7 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.045
    
    [GRAPHIC] [TIFF OMITTED] T6507.046
    
    Mr. Rico. Seven.
    Mr. Burton. Yes, sir. It's on the second page, the relevant 
part. I think it's right at the top, isn't it? ``according''--
--
    Mr. Rico. ``according to''--this reads like it's a 
microphone, not an informant report.
    Mr. Burton. But it was sent by you to the FBI Director. And 
I guess while----
    Mr. Rico. I don't see where, I don't see where I sent this. 
I can see what it says, but I don't see where I sent it.
    Mr. Burton. It's exhibit No. 7. It was from the head of the 
FBI office there in Boston.
    Mr. Rico. Yeah, right.
    Mr. Burton. So that would not have been you at that time?
    Mr. Rico. No, I have never been the head of the FBI office.
    Mr. Burton. Did you know that Mr. Deegan, was it not 
discussed in the FBI office that Mr. Deegan was going to be 
killed?
    Mr. Rico. I believe it was discussed in a small group, 
probably the supervisor.
    Mr. Burton. So it was discussed?
    Mr. Rico. Yes.
    Mr. Burton. I can't understand if it was discussed----
    Mr. Rico. It probably was discussed as to who should notify 
the police or who should try to contact him.
    Mr. Burton. If you knew that there was going to be this hit 
on Mr. Deegan, would you not have discussed who the proposed 
assassins were going to be? You knew of Barboza and you knew of 
the others, Mr.----
    Mr. Rico. Vincent Flemmi.
    Mr. Burton. Vincent Flemmi. You knew of them. Did you not 
know they were out planning the killing? If you knew and the 
FBI office up there knew enough to send this memo to the FBI 
Director, would you not have known who was going to be involved 
in this?
    Mr. Rico. I'm not sure.
    Mr. Burton. Let me go to exhibit No. 10 real quickly and 
I'll yield to my colleagues. OK. Exhibit No. 10. It says,

    Informant advised that Jimmy Flemmi contacted him and told 
him that the previous evening Deegan was lured to a finance 
company in Chelsea and that the door of the finance company had 
been left open by an employee of the company and that when they 
got to the door Roy French, who was setting Deegan up, shot 
Deegan, and Joseph Romeo Martin and Ronnie Casessa came out of 
the door and one of them fired into Deegan's body. While Deegan 
was approaching the doorway, Flemmi and Joe Barboza walked over 
to a car driven by Tony Stats and they were going to kill Stats 
but Stats saw them coming and drove off before any shots were 
fired.
    Flemmi told informant that Ronnie Casessa and Romeo Martin 
wanted to prove to Raymond Patriarca that they were capable 
individuals and that is why they wanted to hit Deegan. Flemmi 
indicated that what they did was an awful sloppy job.

    [Exhibit 10 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.051
    
    [GRAPHIC] [TIFF OMITTED] T6507.052
    
    Mr. Rico. All right.
    Mr. Burton. That was written by you?
    Mr. Rico. Right, right.
    Mr. Burton. So you had firsthand knowledge about all of 
these individuals?
    Mr. Rico. I did at that time, right. But I didn't know 
Barboza at that time. I'm talking about from the standpoint 
of----
    Mr. Burton. Did you have dealings with him after that?
    Mr. Rico. Yes. Oh, yes.
    Mr. Burton. And you knew that he was involved in this 
murder?
    Mr. Rico. Yes.
    Mr. Burton. And you used him as an informant?
    Mr. Rico. No, I never had him as an informant.
    Mr. Burton. Who did?
    Mr. Rico. I don't think anyone had him as an informant. We 
had him as a witness.
    Would you like me to tell you how he became----
    Mr. Burton. Yes, while we're looking for exhibit No. 4, and 
then I'll yield to my colleagues. But go ahead.
    [Exhibit 4 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.040
    
    [GRAPHIC] [TIFF OMITTED] T6507.041
    
    [GRAPHIC] [TIFF OMITTED] T6507.042
    
    Mr. Rico. He was arrested and was held on $100,000 bail. 
And the organized crime people in New England told the bondsmen 
not to give him the bail money. So they told two of his 
associates if they can collect the money if they need a little 
money to finish it off, to come to a nightclub and they would 
make up the difference so that he could get bailed. When they 
showed up at the nightclub they waited until closing time, they 
counted out the money, it was $85,000 of money, money that they 
had collected. This is allegedly. And they killed Barboza's 
people that were collecting the money. The bodies were found 
over in south Boston and eventually--the Boston police went to 
the nightclub and found a mirror being repaired and they went 
behind the mirror and found where a shot had gone into the 
wall. They matched the bullet that had gone through the glass 
and into the wall and fallen down with the bullet in one of 
Barboza's associates. So that's why when we went to Barboza he 
was interested in trying to find a way to help us and probably 
hurt organized crime. That was his reason for becoming a 
witness.
    Mr. Burton. Because he wanted to hurt organized crime.
    Mr. Rico. Well, he felt that that was his money, the 
$85,000 was his money. I thought he would be more concerned 
about the two people that were killed. But he was more 
concerned about the $85,000.
    Mr. Burton. It seems incredulous that anybody would think 
this guy was concerned about getting rid of organized crime 
when he was a major----
    Mr. Rico. No, what he was concerned about----
    Mr. Burton. Was his money.
    Mr. Rico. Is that he had been told that they were going to 
make up the difference, the bail money, that he was going to 
get bailed out.
    Mr. Burton. Let me make one more statement. Then I will 
yield to my colleague. The Justice Task Force search determined 
that around the time Deegan was murdered Vincent James Flemmi 
was an FBI informant. According to the file maintained in the 
FBI, efforts to develop Flemmi as an informant focus on 
Flemmi's potential as a source began about March 9, 1965. So 
you folks were working with him well before the murders?
    Mr. Rico. I don't recall working with Vincent Flemmi at 
that time.
    Mr. Burton. Do you remember anybody talking about that, 
working with him before the murder? I mean how did they find 
out there was going to be a hit on Deegan and Flemmi did it and 
you guys had him as an informant if somebody in the FBI didn't 
know about it?
    Mr. Rico. There's two brothers, Steven Flemmi and Vincent 
Flemmi.
    Mr. Burton. Yes, but Jimmy Flemmi was an informant before 
this?
    Mr. Rico. Well, he wasn't my informant. He wasn't my 
informant. He might have been Dennis Condon's informant.
    Mr. Burton. But the point is you guys did talk; it wasn't 
that big of an operation that you didn't confide in each other?
    Mr. Rico. No, that is true.
    Mr. Burton. But you didn't know Jimmy Flemmi was an 
informant?
    Mr. Rico. Because that is a clerical matter whether a guy, 
you write him down as an informant or you don't write him down 
as an informant.
    Mr. Burton. Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. Mr. Rico, I am going 
to direct you to exhibit 6. It's entitled U.S. Government 
Memorandum and it's to SAC, and then there's a redaction and 
it's from Special Agent H. Paul Rico. The date is March 15, 
1965.
    [Exhibit 6 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.044
    
    Mr. Rico. Yeah, all right.
    Mr. Delahunt. Do you see that, Mr. Rico?
    Mr. Rico. Yes. And may I inquire a moment maybe of counsel 
and the Chair, but I can't understand why all of the material 
from the FBI has substantial redactions. I would again 
respectfully request the Chair and counsel to inquire of the 
FBI to determine whether this committee should receive, in my 
opinion, but could receive the original materials without 
redactions. It seems earlier in a question posed by Chairman 
Burton that there was some confusion on the part of Mr. Rico as 
to whether he was the author of an error, and this is very 
important obviously.
    Mr. Rico. Right.
    Mr. Delahunt. But I am just going to ask you just one 
question. I want you to read thoroughly the body of the report.
    Mr. Burton. Which exhibit?
    Mr. Delahunt. This is for my colleagues exhibit 6. It is a 
so-called 209, and it is authored by the witness before us and 
it is to the Special Agent in Charge in Boston whose name was 
somehow redacted. For what reason I fail to comprehend. The 
date of the report is March 15, 1965. The date of the contact 
presumably with the informant is March 10, 1965, 2 days prior 
to the murder of Mr. Deegan. And I would ask Mr. Rico to read 
that, take a moment, reflect, because I'm just going to ask him 
several questions.
    Mr. Rico. All right.
    Mr. Delahunt. You have read it and you have had an 
opportunity to digest?
    Mr. Rico. Yes.
    Mr. Delahunt. The question I have for you is, and let me 
read the first sentence. ``Informant advised that he had just 
heard from Jimmy Flemmi, that Flemmi told the informant that 
Raymond Patriarca had put the word out that Edward ``Teddy'' 
Deegan is going to be hit and that a dry run has already been 
made and that a close associate of Deegan's has agreed to set 
him up.''
    My question is who is that informant, Mr. Rico?
    Mr. Rico. I can't tell.
    Mr. Delahunt. You can't tell?
    Mr. Rico. I mean, I don't know.
    Mr. Delahunt. Well, you authored this report, is that 
correct?
    Mr. Rico. Right, I did.
    Mr. Delahunt. I would suggest that this is information that 
is significant. Would you agree with that?
    Mr. Rico. Yes.
    Mr. Delahunt. Is it reasonable to conclude that if you 
received this information, even albeit back in 1965, that this 
is something that would stick with you?
    Mr. Rico. I would have known who it was in 1965, I'm sure, 
but I don't know who that is right now.
    Mr. Delahunt. If I suggested Stevie Flemmi.
    Mr. Rico. I don't think Stevie Flemmi would give me his 
brother as being----
    Mr. Delahunt. You're sure of that, you're under----
    Mr. Rico. I'm under oath and I am pretty confident that 
Steve would not give me his brother.
    Mr. Delahunt. Mr. Chairman, could I request a recess of 
some 4 or 5 minutes.
    Mr. Burton. Yes, I think that all of the members of the 
committee and the guests here can discuss this real quickly. 
Can you come up here to the front? We will stand in recess for 
about 5 minutes.
    [Recess.]
    Mr. Burton. Mr. Rico, we're now back in session and we want 
to make absolutely sure that you understand everything 
thoroughly. Do you understand that if you knowingly provide 
this committee with false testimony you may be violating 
Federal law, including 18 U.S.C. 1001, and do you also 
understand that you have a right to have a lawyer present here 
with you today?
    Mr. Rico. Yes.
    Mr. Burton. You understand all that?
    Mr. Rico. Yes, yes.
    Mr. Burton. And you prefer to go on answering questions 
with your testimony? You're subpoenaed here?
    Mr. Rico. I have had advice of counsel and I'm not taking 
my counsel's advice. I am going to explain to you whatever you 
want to know.
    Mr. Burton. Let me make sure I understand. Your counsel has 
advised you what?
    Mr. Rico. My counsel advised me to take the fifth amendment 
until you people agree to give me immunity. I have decided that 
I have been in law enforcement for all those years and I'm 
interested in answering any and all questions.
    Mr. Burton. Very well.
    Mr. Meehan. Mr. Rico, have you consulted with your lawyer 
in terms of changing your mind and testifying? Have you 
consulted with your lawyer?
    Mr. Rico. Since this hearing has begun?
    Mr. Meehan. Since you decided to testify.
    Mr. Rico. I am not going to get my lawyer to change his 
mind. His opinion was that I should not testify.
    Mr. Burton. And take the fifth?
    Mr. Rico. And that I should take the fifth.
    Mr. Meehan. But have you consulted with him?
    Mr. Rico. No.
    Mr. Burton. But you consulted with him prior to that?
    Mr. Rico. I used to have Jack Irwin.
    Mr. Burton. But you consulted him and he advised you to do 
that prior to you coming here today?
    Mr. Rico. He advised me to take the fifth.
    Mr. Burton. And you have decided to testify?
    Mr. Rico. Right.
    Mr. Burton. Very well.
    Mr. Rico. And also I would like to say that in relation to 
the question that Mr. Delahunt had asked about whether Flemmi 
had provided information on that case, if Steven Flemmi had 
provided the information, I think that before Judge Wolf in 
Federal Court, Steven Flemmi had admitted that he was an 
informant, I took the stand and admitted he was an informant 
and we produced every FD 209 that I had during the period of 
time I was in contact with Steven Flemmi and I don't think this 
was in there. So that's one of the bases for my answering you 
that I don't think Steven Flemmi would provide the information 
about Jimmy Flemmi.
    Mr. Delahunt. But let me just revisit that.
    Mr. Rico. All right.
    Mr. Burton. Go ahead.
    Mr. Delahunt. Thank you, Mr. Chairman. You don't think but 
you're not certain?
    Mr. Rico. Well, I don't have formal certitude, but I am 
pretty sure that this is not Steven Flemmi.
    Mr. Delahunt. OK. If you look back on your career, I'm sure 
you developed a number of informants----
    Mr. Rico. That's right.
    Mr. Delahunt [continuing]. That would have information 
regarding activities of Mr. Deegan and others?
    Mr. Rico. Right.
    Mr. Delahunt. You have had some time, maybe 20 minutes, 
have you given any more thought to----
    Mr. Rico. I don't know who that is. I really can't tell you 
right now. I don't know. I really don't know.
    Mr. Delahunt. You really can't tell us?
    Mr. Rico. No, I don't know.
    Mr. Delahunt. Well, when you got the information, which 
would have been 2 days before the murder, and again I'm 
referring to that one page, Mr. Rico.
    Mr. Burton. This is exhibit No. 6.
    Mr. Delahunt. This is exhibit No. 6.
    Mr. Burton. Excuse me, let me interrupt here, Mr. Delahunt. 
Exhibit No. 6, the date on the top is March 16 and the date of 
contact is March 10. It's down at the bottom. It says exhibit 
6.
    Mr. Rico. Right.
    Mr. Burton. Go ahead.
    Mr. Delahunt. Obviously at that point in time you had 
information through this informant whose name you can't 
remember?
    Mr. Rico. Right.
    Mr. Delahunt. That Edward Deegan was going to be hit?
    Mr. Rico. Right.
    Mr. Delahunt. What did you do with that information at any 
time on the 10th.
    Mr. Rico. I believe that the supervisor would have had the 
person handling Chelsea Police Department disseminate the 
information.
    Mr. Delahunt. What did you do, Mr. Rico?
    Mr. Rico. I would bring it to the attention of my 
supervisor and we would discuss how we could handle this 
without identifying the informant and provide the----
    Mr. Delahunt. Let me go back a bit. You would discuss it. 
Did you discuss it with your supervisor?
    Mr. Rico. I would think I did, yes.
    Mr. Delahunt. Who was the supervisor?
    Mr. Rico. I think it was Jack Kehoe.
    Mr. Delahunt. Jack Kehoe. Is it the same Mr. Kehoe that 
after he left the FBI became the Commissioner of the 
Massachusetts State Police.
    Mr. Rico. Yes, yes.
    Mr. Delahunt. And what was his capacity in the FBI at that 
time as your supervisor?
    Mr. Rico. That was his capacity. He was my supervisor.
    Mr. Delahunt. Was he in charge of the Organized Crime Unit?
    Mr. Rico. Yes.
    Mr. Delahunt. What was the conversation you had with 
Supervisor Kehoe relative to this information?
    Mr. Rico. It's a long time ago and I don't remember. I 
don't remember the conversation in any detail. I just know that 
this is the type of information that----
    Mr. Delahunt. It was good information, wasn't it, Mr. Rico?
    Mr. Rico. I think it was.
    Mr. Delahunt. I think it was proven 2 days later that it 
was very good information?
    Mr. Rico. Yeah, yeah. Unfortunately, right.
    Mr. Burton. Excuse me. If I could interrupt. The date of 
this memorandum is March 15, after Deegan was killed. But the 
date of the contact was March 10. So when you sent this 
memorandum it was after the fact, after Mr. Deegan had been 
killed. It seems to me that it would really ring a bell if you 
had the contact with your informant who in this memo was Jimmy 
Flemmi and then 2 days later he is killed and the memo is then 
sent on the 15th to your supervisor. It seems like that would 
all resonate, one, because you had an informant tell you 
someone is going to be killed. They're killed 2 days later and 
you're sending the memo 3 days after that and you can't 
remember?
    Mr. Rico. Well, I don't know whether these dates are 
accurate or not. I don't know right now whether or not this is 
an actual correct reflection of what happened or not.
    Mr. Delahunt. Mr. Rico, did you type up this memorandum?
    Mr. Rico. No.
    Mr. Delahunt. Did you dictate it?
    Mr. Rico. I think I did.
    Mr. Delahunt. Would that account for the date of March 15 
that you dictated it or was that the day that whomever typed it 
would have memorialized it as we now see this copy?
    Mr. Rico. I can't truthfully answer that. I have no way of 
knowing that.
    Mr. Delahunt. You don't know?
    Mr. Rico. No.
    Mr. Burton. Can we come back to you, Mr. Delahunt, and 
we'll go to Mr. Barr and come back to you in just a minute?
    Mr. Barr.
    Mr. Barr. Mr. Rico, the Department of Justice in January 
1999 created a joint task force, a Justice Task Force. Are you 
aware of that?
    Mr. Rico. Yes.
    Mr. Barr. Have you spoken with them?
    Mr. Rico. No.
    Mr. Barr. Have they attempted to speak with you?
    Mr. Rico. I'm not sure whether they have or not. I mean 
they may have contacted my attorney. I don't know.
    Mr. Barr. Would he be obligated to tell you that?
    Mr. Rico. My attorney? I would think so.
    Mr. Barr. Has he?
    Mr. Rico. I don't recall. I don't recall him specifically 
telling me that.
    Mr. Barr. Have they sent any letters?
    Mr. Rico. No, not that I'm aware of.
    Mr. Barr. This fellow Barboza, did you ever meet him?
    Mr. Rico. Yes, I did.
    Mr. Barr. Did either you or Mr. Condon receive awards or 
letters of commendation for your work with him?
    Mr. Rico. I don't know, I don't know.
    Mr. Barr. You don't know?
    Mr. Rico. No. It's possible, it's possible. I don't know.
    Mr. Burton. Would the gentleman yield real quickly? Did you 
ever receive any gifts or money or anything from Mr. Barboza, 
Mr. Flemmi or any of those people?
    Mr. Rico. No, no.
    Mr. Burton. I thank the gentleman.
    Mr. Barr. Did Mr. Condon receive an award or any 
commendation or his work on the Deegan case?
    Mr. Rico. I don't know.
    Mr. Barr. The communications that we have seen here for; 
example, exhibit 15, I think 7 and 8, but these are what are 
called Airtels between the FBI field offices and headquarters 
here in Washington, DC, and some of these, such as 15, indicate 
that Mr. Hoover himself was aware of this murder before it 
happened and who the suspects and likely perpetrators were 
after the fact. Were you also aware of this murder before it 
happened and who the apparent perpetrators were almost 
immediately following the murder?
    [Exhibits 15, 7 and 8 follow:]
    [GRAPHIC] [TIFF OMITTED] T6507.062
    
    [GRAPHIC] [TIFF OMITTED] T6507.063
    
    [GRAPHIC] [TIFF OMITTED] T6507.064
    
    [GRAPHIC] [TIFF OMITTED] T6507.045
    
    [GRAPHIC] [TIFF OMITTED] T6507.046
    
    [GRAPHIC] [TIFF OMITTED] T6507.047
    
    Mr. Rico. You say it's exhibit 15?
    Mr. Barr. That's one of them.
    Mr. Rico. Yeah.
    Mr. Barr. No. 7 and No. 8 also.
    Mr. Barr. They're the same ones we have looked at earlier 
today. Let me just ask you the question.
    Mr. Rico. All right.
    Mr. Barr. You were aware of the fact that Mr. Deegan was 
going to be murdered, correct?
    Mr. Rico. Yes.
    Mr. Barr. Did you take any steps to prevent that murder 
from occurring?
    Mr. Rico. I believe the office did something to try to do 
something, whether they had called the local police or whether 
they tried to make an anonymous phone call to him, I don't 
know.
    Mr. Barr. Is there any record of that?
    Mr. Rico. I don't know, I don't know. But that's normal 
procedure, although we've had procedures where we've gone out 
and actually told people that they're going to get hit. I have 
done that.
    Mr. Barr. But that didn't happen in this case?
    Mr. Rico. Not in this case, no.
    Mr. Barr. Some of these documents also indicate very 
clearly that FBI headquarters was aware of who the perpetrators 
of the murders were. Were you aware of that?
    Mr. Rico. Aware that headquarters was aware or was I aware 
who the perpetrators were?
    Mr. Barr. That headquarters was aware of that.
    Mr. Rico. If I sent them the information, I suppose they 
would be aware of that, yes.
    Mr. Burton. Could I followup on that, please? Were you 
aware who the murderers were; who were the people who 
participated in the hit?
    Mr. Rico. After it happened?
    Mr. Burton. Yes.
    Mr. Rico. Well, I know that we had versions from informants 
and then we had the Joe Barboza version.
    Mr. Burton. Well, here before us on this March 19, exhibit 
15 that we're talking about--can you help him find exhibit 15, 
please--it states very clearly to FBI Director Hoover, it 
states very clearly that the people who were involved in the 
killing are named. And what I can't understand is if this was 
known by the FBI office, you and the other people there, then 
why was Mr. Salvati tried and convicted and went to jail for 30 
years and was convicted and supposed to be electrocuted? Why 
didn't somebody at the FBI say in every report that we had 
there was evidence that Mr. Salvati had nothing to do with 
this? I mean you had all these FBI agents, obviously they knew 
all this information. They went to J. Edgar Hoover at the 
Bureau's head office and yet this innocent man and some other 
people innocent of this crime went to jail for life and some of 
them died in prison.
    Mr. Rico. Well, informant information is difficult to 
handle and it depends on a lot of different circumstances as to 
how to handle it. It's very easy if you just take whatever 
comes in and you immediately disseminate it.
    Mr. Burton. Let me just interrupt to say that Mr. Barboza 
was a known killer.
    Mr. Rico. Oh, yes, right, he was.
    Mr. Burton. He was the only person who testified at the 
trial that put these people in jail for life and they were 
going to get the death penalty. The FBI had information, you 
had information that other people were involved in the killing 
and yet that never came out in the trial.
    Mr. Rico. That was disseminated to the Chelsea Police 
Department.
    Mr. Burton. Wasn't there an FBI agent that testified there? 
Mr. Condon.
    Mr. Rico. I didn't testify in the case and witnesses were 
sequestered. I never saw Mr. Salvati before today.
    Mr. Burton. You didn't know Mr. Salvati was innocent of 
that crime because of the information that you had in your 
office?
    Mr. Rico. We come up with a witness that's going to provide 
information to local law enforcement. We turn the witness over 
to local law enforcement and let them handle the case. We don't 
have any jurisdiction.
    Mr. Burton. Was this memo turned over to the local police 
along with the informant, Mr. Barboza?
    Mr. Rico. I can't tell you that the information was 
furnished to----
    Mr. Burton. This is exculpatory information. This could 
have kept Mr. Salvati out of jail. I think this alone would 
have created doubt in the mind of the jury that he would have 
gone to jail for 30 years.
    Mr. Rico. Do you think we can send people away on informant 
information alone?
    Mr. Burton. You certainly sent him away on Barboza and he 
was a hitman?
    Mr. Rico. That's not an informant. That's a witness.
    Mr. Burton. He's also a killer who didn't have much 
credibility.
    Mr. Rico. I'm not one of his biggest boosters.
    Mr. Burton. I'm sorry. I took your time. Did you have more 
questions, Mr. Barr?
    Mr. Barr. No.
    Mr. Burton. Let me go to Mr. Shays. Do you have questions? 
I was talking about the gentlelady.
    Mrs. Morella. I do, but I will defer to Mr. Shays.
    Mr. Shays. This is just the first round. And Mr. Rico, I 
have been watching you for the whole day. I have known about 
you for 20 years. You are a person who basically worked for the 
FBI and then worked, in my judgment, for organized crime when 
you worked for World Jai Alai. That is my view of you. My view 
of you is that you sent an innocent man to jail.
    Mr. Rico. Your what?
    Mr. Shays. My view is that you sent an innocent man to jail 
and you knew it. I'm just telling you what I believe. You can 
tell me anything you believe that you want to. I'll tell you 
what I believe. You have been a person on my radar screen for 
years. I never thought you would come before this committee. 
Now you have been here all day long. You have heard what the 
Chelsea police knew. You heard what the Boston police knew, you 
heard what the State police knew. You heard what the FBI, and 
I'm assuming it was you, but frankly I don't even care, told 
Hoover, and I want to know how you think you fit into all of 
that.
    Mr. Rico. I think we supplied the information that we had 
available to the local police department and I think that 
should be our way of disseminating the information.
    Mr. Shays. Let me ask you this. What does it feel like to 
be 76 years old, to have served in the FBI and know that you 
were instrumental in sending an innocent man to jail and you 
knew it. What is it like? What do you feel? Tell me how do you 
feel. I asked what it was like for Mr. Salvati to be in jail. I 
asked what it was like for his wife to know her husband was in 
jail. I want to know what it's like for you.
    Mr. Rico. I have faith in the jury system and I feel that 
the jury should be able to decide the innocence.
    Mr. Shays. This is what's fascinating.
    Mr. Rico. Why? You think you can make a decision as to 
who's innocent?
    Mr. Shays. What's fascinating to me is that if I were you I 
would get down on bended knee in front of this family and ask 
for eternal pardon because even if you somehow didn't know 
about the report of the local police, of the Boston police, of 
the State police, of some documents in the FBI that are 
extraordinary since they come from your office, even if you 
didn't know that then, you know it now, and you don't seem to 
give a shit. Excuse me. You don't seem to care.
    Mr. Rico. Is that on the record?
    Mr. Shays. You know what? I'm happy to have what I said on 
the record. I just hope everything you say is on the record.
    Mr. Rico. Sure, sure.
    Mr. Shays. Because the one thing is you don't seem to care. 
I have been looking at you. You have no remorse about your 
involvement even if you think you weren't guilty. Where is your 
remorse?
    Mr. Rico. I have been in position where I have taken people 
out of jail and to me----
    Mr. Shays. You don't care. Tell me how you feel about Mr. 
Salvati and his wife. I would like to know.
    Mr. Rico. How do I feel about what?
    Mr. Shays. You hold on a second. Let me explain why I'm 
asking. You can shake your head. You can just wait. I wanted to 
know how a retired FBI agent feels about the facts that you 
learned today. Let's assume you didn't know anything about it.
    Mr. Rico. I didn't.
    Mr. Shays. OK.
    Mr. Rico. I never----
    Mr. Shays. I'll make that assumption for this moment in my 
question. I learned about it in the past few weeks. I know what 
it does to me. Why doesn't it affect you the same way? Why 
wouldn't you feel incredible remorse that you had a role to 
play, and you're saying it's ignorance but you had a role to 
play in the fact that an innocent man spent 30 years of his 
life in jail. Why no remorse?
    Mr. Rico. I feel that we have a justice system and however 
it plays out it plays out. I don't think we convict everybody 
that is guilty and I don't think we let everyone go that is 
innocent.
    Mr. Shays. You don't care. Does it bother you that this man 
was in jail for 30 years?
    Mr. Rico. It would probably be a nice movie or something.
    Mr. Shays. So you don't really care about this guy. I'm 
getting to learn a lot about you right now. You don't really 
care that he was in jail for 30 years. Do you care about his 
wife, that she visited him for 30 years?
    Mr. Rico. I do not know everything that Joseph Salvati has 
done in his lifetime. I do not know that he is completely 
innocent of everything. I don't know.
    Mr. Shays. What I didn't understand was that I thought that 
if you were a law enforcement officer and you had that training 
and you carried the badge of an FBI agent, I thought that you 
would care about the fact that you could be guilty of something 
he feels but if you weren't guilty of that crime then you're 
not guilty of that crime. And you're seeming to imply that 
somehow maybe there's something else in his past which is 
typical of what we heard about this case.
    But I'm going to get right back. I'm not going to give up 
quite yet. I just still want to understand. Do you have any 
remorse that Mr. Salvati spent 30 years of his life in jail?
    I can't hear your answer.
    Mr. Rico. There isn't an answer.
    Mr. Shays. You have no remorse. Do you have any remorse 
that his wife spent 30 years visiting him in prison even though 
he was innocent of the crime? I want a word. I want something 
we can put down on the transcript. I don't want ``nods'' or 
something. I want a word from you. Do you have any remorse that 
his wife had to visit him for 30 years in jail even though he 
was an innocent man and even though he was framed by someone 
who testified who was trained by the FBI, was the FBI's 
witness?
    Mr. Rico. Joe Barboza was not trained by the FBI.
    Mr. Shays. I'll retract that. I'll get to that in a second. 
Do you have any remorse about Marie?
    Mr. Rico. Well, I feel sorry that anything like that ever 
happened to anybody.
    Mr. Shays. So you don't feel sorry for the husband?
    Mr. Rico. I feel sorry for anybody that went away----
    Mr. Shays. Do you have any remorse?
    Mr. Rico. Remorse for what?
    Mr. Shays. For the fact that you played a role in this.
    Mr. Rico. I believe the role I played was the role I should 
have played. I believe that we supplied a witness and we gave 
them to the local police and they're supposed to be able to 
handle the case from there on. That's it. I cannot----
    Mr. Shays. So you don't really care much and you don't 
really have any remorse. Is that true?
    Mr. Rico. Would you like tears or something?
    Mr. Shays. Pardon me?
    Mr. Rico. What do you want, tears?
    Mr. Shays. No, I want to understand a little more about an 
FBI agent who served his country. I just want to know how you 
feel. It will teach me something about the FBI. You're going to 
be a representative of the FBI. And so there's really no 
remorse and no tears; is that correct?
    Mr. Rico. I believe the FBI handled it properly.
    Mr. Shays. Why don't you tell me why you think they handled 
it properly?
    Mr. Rico. Because they take whatever information they have 
that is pertinent and they furnish it to the local law 
enforcement agency that has the jurisdiction and let them 
handle it.
    Mr. Shays. You just made a claim that I just don't believe 
is true. How did you disclose this to all the public--how do we 
know and tell me how you disclosed this to the courts and the 
public officials?
    Mr. Rico. Not me, not me personally.
    Mr. Shays. Let me ask you this. The witness on behalf of 
the FBI against this individual, you and your partner Mr. 
Condon, you were both partly responsible for having this 
witness, isn't that true?
    Mr. Rico. For what?
    Mr. Shays. Pardon me?
    Mr. Rico. I'm responsible for what?
    Mr. Shays. Aren't you responsible for the witness that 
testified against Mr.----
    Mr. Rico. We supplied a witness, right.
    Mr. Shays. You supplied a witness.
    Mr. Rico. We supplied a witness.
    Mr. Shays. And that witness didn't tell the truth, did he?
    Mr. Rico. Well, it's easy to say now but it wasn't that 
easy then.
    Mr. Shays. But the witness didn't say the truth, right, the 
witness you supplied did not tell the truth; isn't that 
correct? That's not a hard question to answer.
    Mr. Rico. No, but it's easy to say that now. It's not that 
easy to say that when it was happening.
    Mr. Shays. But you haven't answered the question. Answer 
the question first.
    Mr. Rico. What question?
    Mr. Shays. The question was simply that you have supplied a 
witness who did not tell the truth? Isn't that true.
    Mr. Rico. We supplied the witness. And now that everything 
is said and done it appears that he didn't tell the whole 
truth.
    Mr. Burton. Mr. Shays, can we come back to you?
    Mr. Shays. You sure can. I'm waiting.
    Mr. Burton. Mr. Clay, before I yield to you could I ask a 
question or two?
    Mr. Clay. Yes.
    Mr. Burton. The two attorneys we had up here, Mr. Bailey 
and Mr. Balliro, they testified that the FBI had taped a great 
many phone conversations by reputed members of organized crime 
in the Boston and north Boston area. Is that true?
    Mr. Rico. I would imagine it would be true. If anyone knows 
about organized crime, it would be Joe Balliro.
    Mr. Burton. I am asking you, did the FBI tape any phone 
calls of organized crime figures up in the northern Boston 
area?
    Mr. Rico. I was not in the Boston area at that time.
    Mr. Burton. You were not?
    Mr. Rico. No. I was in Boston in 1970. I left in 1975.
    Mr. Burton. Well, I'm talking about back when----
    Mr. Rico. You're talking about 1980, when they were 
involved in----
    Mr. Burton. I'm talking about back during the time that 
these crimes took place, when Mr. Deegan was killed, when Mr. 
Barboza was killing these people, when Mr. Flemmi was killing 
people. Were there any wiretaps that the FBI was conducting? Do 
you know of any wiretaps that were conducted?
    Mr. Rico. You're talking about legal wiretaps?
    Mr. Burton. Legal wiretaps. You don't know?
    Mr. Rico. You're asking the wrong agent.
    Mr. Burton. Do you know if there were any wiretaps by the 
agency out of that office? Do you know of any wiretaps out of 
that office by the FBI.
    Mr. Rico. During which period of time? When I was there?
    Mr. Burton. No, during the time when Flemmi and Barboza 
were there and Deegan was killed, do you ever remember any 
wiretaps?
    Mr. Rico. I don't know whether we had a wiretap at that 
time. I don't know. I have no idea. I wasn't involved in the 
wiretapping.
    Mr. Burton. You don't know if there were any wiretaps out 
of that office for organized crime up in that area? J. Edgar 
Hoover, nobody ever authorized wiretaps in that area? We'll 
find out if anybody authorized wiretaps.
    Mr. Rico. I'm not trying to tell you if there wasn't any. I 
just don't know myself personally the timing of wiretaps.
    Mr. Burton. But you don't know if there were any wiretaps 
out of that office? Do you know if there were any? You don't 
have to be involved. Do you know if there were any?
    Mr. Rico. I can't remember the timing. This is 35 years 
ago. I can't remember whether they had the wiretaps in 1963 or 
1964 or when.
    Mr. Burton. This isn't the Stone Age we're talking about. 
They did have wiretaps back then.
    And you don't recall the FBI ever using a wiretap to try to 
nab organize crime figures?
    Mr. Rico. The FBI used some wiretaps for intelligence 
information during the period of time that I was in the Boston 
office.
    Mr. Burton. OK. Was it being done on any individuals out of 
the Boston office?
    Mr. Rico. I would think that it's the timing. I cannot 
understand the timing. I cannot comprehend----
    Mr. Burton. Well----
    Mr. Rico [continuing]. The timing of why it----
    Mr. Burton. Well, I think you do comprehend.
    Mr. Rico. Well.
    Mr. Burton. And it was pretty well known, according to 
legal counsel we had and others, that wiretaps were taking 
place, because they were trying to nab organized crime figures, 
and Barboza and Flemmi were two of the biggest contract killers 
in that place, and yet you guys had him as a witness to put 
innocent people in jail, and you're saying you didn't know 
anything about it. You thought that Barboza was a legitimate 
witness at that time.
    Mr. Rico. I'm not a big supporter of Joe Barboza, and I've 
never been a big supporter of Joe Barboza, but he was the 
instrument that we had. He was a stone killer, and he was put 
in a position where he decided he wanted to testify. So we let 
him testify.
    Mr. Burton. Mr. Clay.
    Mr. Clay. Thank you, Mr. Chairman. Mr. Rico, what an 
incredulous story. This is truly amazing just sitting here 
listening to some of the details and facts. Just to followup on 
Mr. Shays' questioning, first, did you know beforehand that 
Teddy Deegan had been targeted to be killed?
    Mr. Rico. Evidently, I did.
    Mr. Clay. Evidently?
    Mr. Rico. From the informant.
    Mr. Clay. You did know. And did you know also that Mr. 
Salvati was not involved in the murder itself?
    Mr. Rico. I had never heard of Salvati being involved in 
this case, and so----
    Mr. Clay. That he----
    Mr. Rico. Until he was indicted, right. I never heard of 
him.
    Mr. Clay. You had never heard of him?
    Mr. Rico. I had never----
    Mr. Clay. But you also knew that he did not play a role in 
the murder; correct?
    Mr. Rico. I can't say that.
    Mr. Clay. You cannot say that. Is this standard operating 
procedure for the FBI to withhold evidence from a court of law, 
to know that someone is going to trial and is going to face 
criminal incarceration and to withhold that evidence? Is that 
standard operating procedure?
    Mr. Rico. Standard operating procedure is to take whatever 
information you have and supply it to the local police that 
have the authority in whatever manner is coming up.
    Mr. Clay. But think about the circumstances of Mr. Salvati 
going to trial, facing, I assume, murder charges and being 
convicted, and all the while, the local FBI office, you in 
particular, knowing that this man did not commit that crime. I 
mean, did that ever cross your mind that maybe we should 
intercede to ensure that justice prevails?
    Mr. Rico. There is a time when you're involved in a case 
and you know what's happening, but there are many cases, many 
things happening, and I would say that thinking of Salvati on a 
day-to-day basis probably did not happen.
    Mr. Clay. Well, I'm going to stop there, Mr. Chairman, and 
if I can, can I yield the remainder of my time to Mr. Delahunt? 
Is that permissible?
    Mr. Barr [presiding]. The gentleman from Massachusetts.
    Mr. Delahunt. We thank you, Mr. Chairman. Let's talk about 
bugs for a minute, Mr. Rico.
    Mr. Rico. Sure.
    Mr. Delahunt. And let's use a timeframe of 1960 to 1970.
    Mr. Rico. OK. That's when I was there.
    Mr. Delahunt. Right. Are you familiar with a bug that was 
placed in the office of Raymond Patriarca, Jr.?
    Mr. Rico. Absolutely not. I was familiar with a bug placed 
in Raymond Ellis Patriarca, Sr.
    Mr. Delahunt. Senior. I thank you for correcting me.
    Mr. Rico. Right.
    Mr. Delahunt. Did you have anything to do with placing that 
bug there?
    Mr. Rico. No.
    Mr. Delahunt. No. Do you know who did?
    Mr. Rico. No.
    Mr. Delahunt. You don't know. But you knew that there was a 
bug?
    Mr. Rico. Oh, yes. Oh, yes. I knew that.
    Mr. Delahunt. Was that particular bug authorized by a court 
order?
    Mr. Rico. I can't tell you that. I don't know. I don't know 
whether it was a court order or not. I can tell you when it was 
removed.
    Mr. Delahunt. When was it removed?
    Mr. Rico. Oh, God. A new attorney general came in, and they 
removed them all across the country. I don't remember who it 
was right now.
    Mr. Delahunt. So a new attorney general could very well 
have made the decision that it was a black-bag job, it was an 
illegal wiretap?
    Mr. Rico. I think that the new attorney general wanted 
nothing to do with these bugs.
    Mr. Delahunt. These bugs. I'd request counsel to--if he 
could, to supply us with what available documents the FBI has 
regarding the Raymond Patriarca, Sr. bug and who was 
responsible for planting this bug within that office.
    You know, in terms of the--you're right, and I think 
there's some misunderstanding relative to terms that we're 
using here today. Barboza was not an informant----
    Mr. Rico. No.
    Mr. Delahunt [continuing]. For you?
    Mr. Rico. No.
    Mr. Delahunt. But Barboza was--I think your words were, you 
supplied the witness, and the witness was Joseph Barboza.
    Mr. Rico. Right.
    Mr. Delahunt. Now----
    Mr. Barr. Excuse me. The time of the gentleman from 
Massachusetts has expired. We'll come back to Mr. Delahunt in 
just a few minutes. The chair recognizes the gentlelady from 
Maryland for 5 minutes.
    Mrs. Morella. Thank you, Mr. Chairman.
    Mr. Rico, I've been looking at some of the evidence that 
has been put together in some of the booklets that we have, and 
I was noting that on exhibit 10, there is a memorandum from 
you, which describes the Deegan murder and identifies the 
killers. Were you satisfied that the informant provided 
accurate information to you? I'll give you a chance to look at 
that, sir. 65.
    Mr. Chairman, don't count that on my time.
    [Exhibit 10 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.051
    
    [GRAPHIC] [TIFF OMITTED] T6507.052
    
    Mr. Rico. Yes. Yes. I consider that accurate.
    Mrs. Morella. You do.
    Mr. Rico. Right.
    Mrs. Morella. You do not? You do consider that accurate?
    Mr. Rico. I consider--it seems to be accurate information. 
Right.
    Mrs. Morella. Do you believe that the informant correctly 
identified Deegan's killers?
    Mr. Rico. The problem with being absolutely certain on the 
informant information is that the informant may be telling you 
exactly what he learned. You see, the informant advised that 
Jimmy Flemmi contacted him and told him, when you get into 
Jimmy Flemmi telling something to an informant, you're now a 
step away from having the certitude that you would have if the 
informant learned this from somebody else. Jimmy Flemmi, I 
would say, would not be that reliable an individual and has a 
propensity to put himself involved in crimes.
    Mrs. Morella. But because of the information that you had 
received since October 1964 regarding Vincent Flemmi wanting to 
kill Deegan, was there any doubt in your mind that Flemmi was 
involved in Deegan's death?
    Mr. Rico. I'm sorry. I don't understand.
    Mrs. Morella. I just wondered was there any doubt in your 
mind that Flemmi was involved in Deegan's death because of the 
information you received after October 1964? I mean, did you 
have any doubt----
    Mr. Rico. It seemed logical to be involved, yeah.
    Mrs. Morella. OK. Right. So you really didn't have any 
doubts that Flemmi was involved.
    Mr. Rico. Well, I always had some doubts when Flemmi was 
involved in anything.
    Mrs. Morella. Remote. Few doubts. Did you have information 
at this time that Joe Salvati was involved in Deegan's murder?
    Mr. Rico. I never received any information that Salvati was 
involved in the Deegan murder.
    Mrs. Morella. Did you or anyone else in the FBI office 
question any of the individuals that were identified as 
participants in Deegan's murder?
    Mr. Rico. I'm sorry. I'm not getting it.
    Mrs. Morella. Now, did you or anyone else in the FBI office 
question any of the individuals that were identified as 
participants in Deegan's murder?
    Mr. Rico. Let me see.
    Mrs. Morella. Did you question any of the individuals that 
were identified as participants?
    Mr. Rico. Only Joe Barboza.
    Mrs. Morella. Page 2 of the memorandum you wrote, you wrote 
that this information was passed to Captain Robert Renfrew of 
the Chelsea Police Department.
    Mr. Rico. Right.
    Mrs. Morella. Did you did pass this information to Captain 
Renfrew?
    Mr. Rico. No, Don Shannon did that.
    Mrs. Morella. So he did that. Was Captain Renfrew given any 
additional information that was not included in this exhibit 
10?
    Mr. Rico. Was he given any additional information?
    Mrs. Morella. Right, additional information that was not 
included.
    Mr. Rico. I don't know. I don't know whether he was or not, 
because if Shannon gave it to him, he might have given him 
other information----
    Mrs. Morella. The FBI office in Boston has recently claimed 
that your statement proves that the FBI shared this information 
with local law enforcement. Do you agree with this statement?
    Mr. Rico. Yes. I think that pretty well covers it.
    Mrs. Morella. Exhibit 11 is a Chelsea police report about 
the Deegan murder. On Page 3, the report identifies seven men 
who left the Ebb Tide Restaurant around 9 p.m. on the night of 
the murder and returned around 11 p.m. One of those identified, 
Romeo Martin, allegedly said to Roy French, ``we nailed him.'' 
The report said, this information came from Captain Renfrew, 
who was also supposed to have received the information from the 
FBI. Have you seen that report before?
    Mr. Rico. I haven't seen the report before, and I wouldn't 
know if he is still in the Chelsea Police Department or not.
    Mrs. Morella. So did you mention anything about the Ebb 
Tide to Captain Renfrew?
    Mr. Rico. I'm aware of the Ebb Tide. We used to--it was 
there when I was around, but I don't--can't tell you about 
Renfrew and the Ebb Tide.
    Mrs. Morella. Did you talk to Captain Renfrew that Francis 
Imbuglia, Nicky Femia or Freddy were with the others the night 
of the murder?
    Mr. Rico. I have seen Captain Renfrew on a number of 
occasions, but I don't recall having any discussion about this 
case with him.
    Mrs. Morella. I wanted to kind of set up that list of 
questions, and I'll get back to you, Mr. Rico, but I do want to 
say from having been here at the beginning, that I wish we 
could give back 30 years of life to a happily married couple, 
and my heart goes out to them----
    Mr. Rico. Sure.
    Mrs. Morella [continuing]. For--they represent the old 
school virtues that I think I grew up with, too: that you make 
the best with what you've got and always remember family. Thank 
you. I yield back.
    Mr. Barr. The gentleman from Massachusetts is recognized 
for 5 minutes.
    Mr. Delahunt. Thank you, Mr. Chairman. I asked you earlier 
about the fact that you stated that Barboza was not your 
informant?
    Mr. Rico. Right.
    Mr. Delahunt. But that you did cultivate him as a witness?
    Mr. Rico. Actually, that's true. We----
    Mr. Delahunt. That's fine----
    Mr. Rico. Comes from a period of time where he wants to be 
an informant. We don't want him as an informant. We want him as 
a witness.
    Mr. Delahunt. Right. I understand that, and you were 
successful in convincing him to be a witness?
    Mr. Rico. Right.
    Mr. Delahunt. What induced him to become a witness?
    Mr. Rico. The fact that they banged out two of his partners 
and stole $85,000. They had collected for his bail. He stopped 
by the Night Light for them to make up the difference, and they 
counted it out and killed them.
    Mr. Delahunt. And that was the exclusive motive for his 
cooperation with law enforcement?
    Mr. Rico. Well, I thought he was going to be angry because 
they killed his two friends, but----
    Mr. Delahunt. But it was the money?
    Mr. Rico. But he was angry, because it was his money----
    Mr. Delahunt. It had nothing to do with the fact that he 
seemed to escape prosecution for a variety of crimes?
    Mr. Rico. Well, he wasn't really being held on a very 
serious crime, because it was--the bail was $100,000, but I 
don't think----
    Mr. Delahunt. Did he do----
    Mr. Rico. I don't remember what the crime was.
    Mr. Delahunt. But given his record, in fact, he--let me 
suggest this.
    Mr. Rico. Yeah.
    Mr. Delahunt. That at one point in time, the Suffolk County 
district attorney's office brought--before filed a charge, 
charging him with being a habitual offender.
    Mr. Rico. Could have been, yeah.
    Mr. Delahunt. Now, you know and I know, Mr. Rico, that that 
carries with it a substantial penalty.
    Mr. Rico. Sure.
    Mr. Delahunt. Did you ever have any conversations with Joe 
Barboza, relative to recommending that he not be prosecuted, or 
at least he serve no time for crimes that he had been charged 
with?
    Mr. Rico. On that matter, Gary Byrne, as you know, is the 
district attorney of Suffolk County at that time.
    Mr. Delahunt. Uh-huh.
    Mr. Rico. Told me that I could tell him that whatever 
cooperation he gives will be brought to the attention of the 
proper authorities.
    Mr. Delahunt. Right.
    Mr. Rico. He says you can't tell him anything more or 
anything less. That's exactly what you can tell him, and that's 
what I told him.
    Mr. Delahunt. And that's what you told him?
    Mr. Rico. Yes.
    Mr. Delahunt. Was Dennis Condon with you?
    Mr. Rico. I am sure he was.
    Mr. Delahunt. Because the practices of the FBI is such that 
there are always two agents working together.
    Mr. Rico. Hopefully right.
    Mr. Delahunt. In terms of interviewing witnesses.
    Mr. Rico. Right.
    Mr. Delahunt. Well, you did supply the witness to the 
appropriate authorities?
    Mr. Rico. I didn't----
    Mr. Delahunt. The Commonwealth of Massachusetts, Suffolk 
County district attorney's office?
    Mr. Rico. Right. Right.
    Mr. Delahunt. Did you supply the report that you and I 
discussed earlier that you filed as a result of a contact on 
March 10th? Did you provide that report to the appropriate 
authorities?
    Mr. Rico. I think we did. I think we notified Chelsea. I 
think that was the appropriate authority at that time.
    Mr. Delahunt. Well, let me go back to a question that I 
posed to Mr. Balliro earlier. While the Suffolk County district 
attorney's office was prosecuting the case, given the very high 
profile of that case, it was a headliner back in the mid 
1960's, because it obviously had charged a number of 
individuals alleged to be major organized crime figures. You 
played, and Dennis Condon played, and State police played, and 
Chelsea Police played, and Boston Police played an active role 
in the investigation at preparation for trial?
    Mr. Rico. No.
    Mr. Delahunt. No?
    Mr. Rico. We were not involved in the--to my knowledge, in 
the preparation of the trial or in the investigation. I had 
never been to the scene of the homicide. I had never----
    Mr. Delahunt. When you say we, do you mean yourself and 
Dennis--Mr. Condon?
    Mr. Rico. Right.
    Mr. Delahunt. Are you aware that Mr. Condon testified at 
the trial?
    Mr. Rico. Oh, yes. Yes.
    Mr. Delahunt. And you're telling me and members of this 
committee that he wasn't involved in the preparation and the 
trial of the case? Why don't you take a moment and refresh your 
memory.
    Mr. Rico. Well, it depends on what you're talking about 
preparation. I think that we made Barboza available at a time 
when they came to interview him, we would be there, but it 
wasn't as if we're directing the investigation----
    Mr. Delahunt. But you heard----
    Mr. Rico. It's a----
    Mr. Delahunt. I----
    Mr. Rico. And we're trying to be cooperative with him.
    Mr. Delahunt. I understand it's their investigation, but 
let's be very candid. The FBI and the director of the FBI, Mr. 
Hoover, had a major interest in organized crime in New England?
    Mr. Rico. Eventually, he did. Right.
    Mr. Delahunt. And the people that were indicted, with the 
exception of Mr. Salvati, were alleged to be major organized 
crime figures. Is that a fair statement?
    Mr. Rico. They were organized crime figures.
    Mr. Delahunt. They were organized crime?
    Mr. Rico. Right.
    Mr. Delahunt. And you mean to tell myself and members of 
this committee that you followed this case from a distance, and 
you really weren't intimately involved in one of the cases that 
the Director of the FBI had prioritized?
    Mr. Delahunt. And, Mr. Rico, you were a well-known agent. 
You were decorated. You spent your career with organized crime 
figures, developing information.
    Mr. Rico. In a different way than Bear did, right.
    Mr. Delahunt. Well, I'm going to ask that that statement be 
struck from the record and expunged, because the Bear isn't 
here.
    Mr. Rico. Right.
    Mr. Delahunt. I'm asking you the questions----
    Mr. Rico. Right. OK.
    Mr. Delahunt [continuing]. Mr. Rico, OK?
    Mr. Rico. I am not----
    Mr. Barr. Excuse me, Mr. Rico. Statements can't just be 
struck.
    Mr. Rico. What's that?
    Mr. Barr. I'm saying that statements just can't be struck 
from the record. Just because somebody isn't here who's name is 
mentioned. Your time is expired, and we'll now turn to the 
gentleman from Ohio. Mr. LaTourette is recognized for 5 
minutes.
    Mr. LaTourette. Thank you, Mr. Chairman. Mr. Rico, I want 
to pick up where my friend from Massachusetts left off, and 
that is, not only did--and Mr. Condon--Special Agent Condon 
testify, but also Special Agent Bolin testified at the trial of 
these defendants. Are you aware of that?
    Mr. Rico. What trial?
    Mr. LaTourette. The trial that brings us all together here, 
the Salvati trial, the trial involving the murder of Deegan. 
Did you know a Special Agent Bolin?
    Mr. Rico. No.
    Mr. LaTourette. Apparently----
    Mr. Rico. I think I do.
    Mr. LaTourette. Apparently he's credited with discrediting 
the alibi of one of the co-defendants in the case, and that 
letter, I think, after everyone is convicted on July 31st, a 
report goes up to headquarters, recommending commendations for 
you, Special Agent Condon, and Special Agent Bolin. Does any of 
that ring a bell to you?
    Mr. Rico. Well, I can remember Special Agent Bolin now, but 
I didn't know what degree he was involved in the case.
    Mr. LaTourette. OK. There came a time when you and Special 
Agent Condon went up to--is it Walpole prison?
    Mr. Rico. Yes.
    Mr. LaTourette. To interview Mr. Barboza?
    Mr. Rico. Yes.
    Mr. LaTourette. And that was before the trial of Mr. 
Salvati and the defendants in the Teddy Deegan murder, was it 
not?
    Mr. Rico. Yes.
    Mr. LaTourette. And during the course of that interview, 
you wrote a report back to your superiors, and in that report, 
you indicated that Mr. Barboza, as kind of a valuable witness, 
or could be, because he knows anything on any murder that's 
occurred in the minority east but he makes clear to you and 
your partner during the course of that interview that he's not 
going to give up Jimmy Vincent Flemmi. Do you remember that?
    Mr. Rico. Yes.
    Mr. LaTourette. OK. And the question I have to you is, 
then, that at the time that Mr. Salvati and his co-defendants 
go to trial, you have, as a result of your investigation, the 
information that you have received--and if not you personally, 
I assume that you just didn't gather information as a special 
agent and keep it to yourself. There would be dialog in Boston 
office, wouldn't there? You and Mr. Condon certainly talked, 
did you not, Special Agent Condon?
    Mr. Rico. Yes.
    Mr. LaTourette. OK. At the time these fellows went to 
trial, you had received confidential information from an 
informant that James Vincent Flemmi wanted to kill Deegan. 
Isn't that correct? Or said that he wanted to kill him. Right?
    Mr. Rico. Yes. Yes.
    Mr. LaTourette. OK. You also had information that Vincent 
Flemmi--or the claim was that Vincent Flemmi did, in fact, 
participate in the killing of Teddy Deegan.
    Mr. Rico. Yes.
    Mr. LaTourette. You also had information in your position 
or the office did that Joe Barboza participated in the homicide 
of Teddy Deegan?
    Mr. Rico. Yes.
    Mr. LaTourette. Prior to the trial. And then you also had 
information from this interview at Walpole Prison that Barboza 
would never give up Jimmy Flemmi.
    Mr. Rico. Right.
    Mr. LaTourette. OK. Given all that information--and I 
understand what you said that you handed it over to the local 
police and the prosecuting agencies and so on and so forth, but 
going back to Mr. Delahunt's question, or maybe it was Mr. 
Barr, certainly the FBI office in Boston is not just a casual 
observer of this--you know, it's not--while it's interesting 
that there's a trial going on and we'll get back to you, it was 
so interesting that the minute it's over on July 31st, a report 
goes to headquarters saying that all are convicted.
    Given all of those things that were within your knowledge, 
I mean, did you have any qualms back in 1968 about putting Joe 
Barboza or knowing that Joe Barboza was going to be the sole 
and only testimony against Joe Salvati, and potentially put him 
on death row? Did that cause you any--I'm not talking today. 
I'm talking back in 1968.
    Mr. Rico. I was not aware of all of the ramifications of 
the case itself.
    Mr. LaTourette. Maybe not, but you were aware of all of the 
things I went through--the five or six things I just went 
through with you.
    Mr. Rico. Right. Right.
    Mr. LaTourette. And none of that caused you any concern or 
qualm about the witness that you supplied--not you personally, 
but your office, and you were the handler, that this was the 
only testimony against not only the other court defendants but 
Mr. Salvati, who we now know had nothing to do with it?
    Mr. Rico. Uh-huh.
    Mr. LaTourette. That he could go on death row on the basis 
of this testimony? As an experienced law enforcement officer, 
isn't that shaky, even by confidential informant standards?
    Mr. Rico. Well, there isn't any good answer to that.
    Mr. LaTourette. I don't think there is a good answer to 
that, because I think that the answer is that it was real 
shaky. The last thing I want to ask you is that I think I saw 
you sitting here during the course of the hearing today, and 
you're pretty much aware of the theory of this hearing, if you 
will, or the observations that people are making, and that is 
that the FBI office in Boston, MA was willing to sacrifice 33 
years of a man's life, separate him for 33 years from his wife 
and his children, to protect a guy nicknamed ``the Animal,'' a 
cold-blooded killer, so that the mob could be penetrated and 
brought down. And I just would like to have your observation as 
to the accuracy of that theory.
    Mr. Rico. I don't think that the FBI was interested in 
saving Joe Barboza from anything. Joe Barboza was an instrument 
that you could use. If he was involved in a crime and it was 
something that could be prosecuted, that was fine, but there 
was no--we didn't think he was a knight in shining armor.
    Mr. LaTourette. I know you don't but----
    Mr. Rico. We did not think he should have been in the 
foreign service or anything. We just tried to use him----
    Mr. LaTourette. Right.
    Mr. Rico [continuing]. For obtaining information and 
evidence of crimes.
    Mr. LaTourette. If Mr. Barr would just let me complete this 
thought. But when you say ``weren't interested in protecting 
him from anything,'' the testimony before the panel is that the 
Witness Protection Program in the U.S. Government was 
established and begun for Mr. Barboza.
    Mr. Rico. Well, the--also I'd like to clear up that Santa 
Rosa situation. We did go out there and testify that he had 
been a witness. That's all we testified to.
    Mr. LaTourette. Thank you. Thank you, Mr. Barr.
    Mr. Barr. The gentleman from Connecticut, Mr. Shays, is 
recognized for 5 minutes.
    Mr. Shays. I don't understand a lot of things, Mr. Rico. I 
don't understand your lack of remorse. It just seems cold. It's 
kind of what I think in other people, not an FBI agent. But 
with Mr. Salvati, because of your star witness, your prized 
witness, he was found guilty of a crime he didn't commit, and 
you ended up deciding to go to California, you and Mr. Rico and 
Mr. Harrington and Mr. Condon. Why did all three of you go to 
California?
    Mr. Rico. We were subpoenaed.
    Mr. Shays. You all three were?
    Mr. Rico. We were subpoenaed and the Attorney General of 
the United States authorized us to testify.
    Mr. Shays. OK.
    Mr. Rico. And that's what----
    Mr. Shays. What was your testimony? Are you under oath 
telling us that you just went to say he was a witness, or were 
you here to say he was a good witness? Did you characterize him 
in any way at that hearing?
    Mr. Rico. I think we indicated that he had been a witness 
in three separate trials back in Massachusetts, one of which 
everyone was found not guilty.
    Mr. Shays. Right. And isn't it true that besides saying 
that he was a witness, you were also saying that he was a 
reliable witness?
    Mr. Rico. No. No, no.
    Mr. Shays. So you didn't, in any way in California, 
characterize the quality of his testimony?
    Mr. Rico. My memory is that we just testified that he was a 
witness on three different cases back in Massachusetts.
    Mr. Shays. Tell me what you thought of him as a witness.
    Mr. Rico. As a witness?
    Mr. Shays. Yeah.
    Mr. Rico. Well, the case that we're interested in here, I 
was not----
    Mr. Shays. Just in general. Just in general, tell me what 
you thought of Mr. Barboza as a witness.
    Mr. Rico. I thought that he was convincing, that he was 
there at the scene of a crime. If he was a participant in the 
crime.
    Mr. Shays. What would have convinced you that he would have 
told the truth? I mean, he was a notorious contract killer. 
That you knew. Correct? You knew he was a contract killer?
    Mr. Rico. He testified to that.
    Mr. Shays. And you knew that he was a--see, the thing is 
even though he--if he testifies to that, I don't know if you're 
willing to acknowledge he knew it. You knew he was a contract 
killer?
    Mr. Rico. I don't know if I knew he was a contract killer 
before he testified. I knew he was a killer, but I knew he was 
a contract killer till after he testified.
    Mr. Shays. Did you have any doubts that he was a contract 
killer?
    Mr. Rico. Not after he testified, no. Convincing----
    Mr. Shays. And what you're saying to us is that when you 
all--didn't you have conversations with Mr. Barboza before he 
testified?
    Mr. Rico. Sure. Yes.
    Mr. Shays. Of course. Of course you did.
    Mr. Rico. Yes.
    Mr. Shays. And you're not a naive FBI agent. That's the one 
thing I'll give you credit for.
    Mr. Rico. I'm not a what?
    Mr. Shays. You're not a naive FBI agent. You're a pretty 
wily guy and you knew a lot of stuff, so I'll give you credit 
for that and so did Mr. Condon. So in the course of your 
conversation, you were testifying to us that in all your 
conversations with Mr. Barboza, you did not know that he was a 
contract killer until he testified under oath?
    Mr. Rico. Well, no. When he told us the contract that he 
was asked to execute for Raymond Patriarca, that's when I 
became aware.
    Mr. Shays. So you knew before he testified that he was a 
contract killer?
    Mr. Rico. Yes. Right.
    Mr. Shays. But before you said you didn't know until he 
testified. And so I just want to see which story----
    Mr. Rico. It was until----
    Mr. Shays. No. Which story----
    Mr. Rico. Came up.
    Mr. Shays. I didn't say when the subject came up. I didn't 
do that. You're starting to say things that I didn't say. I 
asked you a question.
    Mr. Rico. Right.
    Mr. Shays. Of whether you knew he was a contract killer, 
and under oath. You said you didn't know until he testified. 
And now you're saying something different. Now you're saying 
you knew before, and the reason you're saying you knew 
something before is because I happened to ask you the question, 
and it conflicts with what you said earlier. The fact is, you 
had many conversations with this gentleman; correct?
    Mr. Rico. I had some conversation with him. Yeah. Right.
    Mr. Shays. More than two or three?
    Mr. Rico. Right.
    Mr. Shays. He was a witness that you turned against 
organized crime and be supportive of going after organized 
crime. He was one of the witnesses you turned. He was a crook, 
and now he was going after crooks. Isn't that true?
    Mr. Rico. Yes.
    Mr. Shays. OK. And the FBI took some pride in the fact that 
they had this witness who was now--we had successfully turned 
to go after organized crime, and the fact is, Mr. Rico, you 
knew he was a contract killer before he testified. Isn't that 
true?
    Mr. Rico. From interviewing him, I knew, yes.
    Mr. Shays. Yes. OK. Well, it's just good to have you say 
that. So I should believe that testimony, not the part when you 
answered the question and said you didn't know until after he 
testified. So OK.
    Mr. Rico. After he agreed to testify?
    Mr. Shays. Pardon me?
    Mr. Rico. After he agreed to testify. After he agreed 
that--to testify, then----
    Mr. Shays. So now you're----
    Mr. Rico. The debriefing him comes out----
    Mr. Shays. So you knew he was a contract killer, and you 
knew this contract killer was--had testified against Mr. 
Salvati; correct? You knew he testified and five other 
individuals. Isn't that correct?
    Mr. Rico. Right.
    Mr. Shays. OK. So you knew he had testified--you knew this 
contract killer was testifying against these six witnesses. 
What made you think he was telling the truth?
    Mr. Rico. Because I think the--I thought that the fear of 
perjury----
    Mr. Shays. Excuse me. You need to get close to the mic.
    Mr. Rico. I would think that the fear of perjury would 
prevent him from lying.
    Mr. Shays. Why would you think the fear of perjury would 
prevent him from lying?
    Mr. Rico. I don't know. I had to think something. So that's 
what I thought.
    Mr. Shays. No. I think that's an honest answer. I think 
your character is coming through. You think you had to say 
something. So in fact you really couldn't be certain he was 
telling the truth?
    Mr. Rico. No. I don't think I could be certain that he's 
ever telling the truth.
    Mr. Shays. Right. OK. But he was a witness, and you and Mr. 
Condon were involved in turning this witness around; correct? 
Turning him against the mob, whereas before he worked for the 
mob?
    Mr. Rico. I don't think it was us as--that turned him. I 
think the fact that they killed his associates and took his 
money.
    Mr. Shays. Right, but you----
    Mr. Rico. Turned. But I happened to be there when----
    Mr. Shays. Were you the FBI agents that basically were 
responsible for convincing Mr. Barboza that he would be better 
off testifying against organized crime?
    Mr. Rico. All we're trying to convince a lot of people 
that, yes, and he was one of them.
    Mr. Shays. I know that and he was one of them and you 
succeeded with him and failed with others. Isn't that true?
    Mr. Rico. Well, we succeeded with some others too.
    Mr. Shays. OK you succeeded with some others too. In the 
end, the answer to the question--the answer to the question is, 
yes, you succeeded----
    Mr. Rico. Yes.
    Mr. Shays [continuing]. In turning him around? OK. What 
made you feel comfortable that the testimony that he gave 
against these six individuals was accurate, given the fact that 
you had information that it was people other than these six? Or 
at least four of them weren't guilty. Given the fact you knew 
of information that never brought Mr. Salvati into this case 
and three others, what made you think that he was telling the 
truth?
    Mr. Rico. I had no way of knowing he wasn't telling the 
truth, except informant information.
    Mr. Shays. No. No, but----
    Mr. Rico. And informant information, I don't know whether 
that's true.
    Mr. Shays. So--but you acknowledge that you had informant 
information, not Mr. Barboza, but informant information that 
conflicted with what Mr. Barboza said on the trial----
    Mr. Rico. I can tell you--I'm under oath and can tell you 
that I have known some informants that have supplied 
information that hasn't been true.
    Mr. Shays. I understand that. I understand, but that's not 
what I asked. So you answered something you wanted to answer, 
but you didn't answer the question.
    Mr. Rico. What's the question?
    Mr. Shays. The question was that you had information from 
informants that conflicted with the testimony of Mr. Barboza?
    Mr. Rico. Right. Right.
    Mr. Shays. Why did you decide to go along with Mr. Barboza 
and not with the testimony from--excuse me, the information you 
had from your informants?
    Mr. Rico. I was not handling the case. This was a local 
case that was being handled by the local authorities.
    Mr. Shays. You're not testifying under oath, are you, Mr. 
Rico, that you had no conversations with Mr. Barboza about this 
case? So your testimony, you had no discussion with Mr. Barboza 
about this case?
    Mr. Rico. About this case?
    Mr. Shays. Yes.
    Mr. Rico. I had conversations in the past about this case.
    Mr. Shays. October. You had many conversations.
    Mr. Rico. Right?
    Mr. Shays. Isn't that true? So when you say you weren't 
involved in this case, you had conversations with Mr. Barboza 
about the case informing Mr. Salvati and five other witnesses. 
You had conversations. So you can't say you weren't involved in 
the case. How can you say that? This is your witness. So tell 
me how you can make that claim?
    Mr. Rico. Because we indicate to the Boston Police 
Department that we have this witness, and they come and 
interview him.
    Mr. Shays. No. But you also told me something more. You 
told me something more. You told me that you had a witness that 
had spoken to you about this case. Correct?
    Mr. Rico. I have a witness that spoke----
    Mr. Shays. Mr. Barboza talked to you about this case?
    Mr. Rico. Yes.
    Mr. Shays. Yes? Correct? And then you supplied this witness 
to the local authorities and the State authorities. Isn't that 
true?
    Mr. Rico. We----
    Mr. Shays. I want an answer to my question.
    Mr. Rico. I didn't hear the whole question.
    Mr. Shays. Well, I'll say it again.
    Mr. Rico. All right. Say it again.
    Mr. Shays. You spoke with Mr. Barboza about this case 
involving Mr. Salvati and five other witnesses. You had a 
number of conversations with Mr. Barboza about this case. 
You've already said that's correct. And I am asking you the 
question now, isn't it true that you then contacted local 
authorities and State authorities and said you had a witness 
who had information about this case?
    Mr. Rico. Yes.
    Mr. Shays. OK. What I want to know is why were you willing 
to supply only that part of the information and not the part to 
the State and local authorities about the informants you had?
    Mr. Rico. I'm not sure we didn't say something about that 
also. We might have said something about that.
    Mr. Shays. You might have said it. Is that your testimony 
that you did?
    Mr. Rico. What?
    Mr. Shays. Is your testimony that you did notify them about 
the informants who had a different story than the witness? 
You've got an informant and you've got a witness. What----
    Mr. Rico. I have no--I actually have no clear recollection 
of telling the local authorities of that informant 
information----
    Mr. Shays. Why not? Why didn't you tell them about what the 
informant said that conflicted with what your witness said?
    Mr. Burton [presiding]. Would the gentleman yield? Well, 
the thing is, he has, as you know, selective memory loss.
    Mr. Shays. But----
    Mr. Burton. But he's continuing to say that, you know, he 
doesn't remember, that he can't remember----
    Mr. Shays. No. But what he did say under oath is very 
clear. He said that he had information about what the informant 
said and he had information about what the witness said. He had 
both two different stories, and I want to know why you decided 
to give the local police, the State police information that 
your witness had and not provide information about what the 
informant had that you knew of. It conflicted----
    Mr. Rico. Because the informant told me that 2 years--2-1/2 
years before, this witness arrives on the scene.
    Mr. Shays. So what?
    Mr. Rico. So----
    Mr. Shays. So I would believe their story more. You've 
already told me that your witness is a notorious criminal. You 
acknowledge the fact that he killed people. You acknowledged 
the fact that he was a hit person. He, in fact, even told you 
that. You told me that you couldn't be sure he--no. Hold on. 
You already told me you couldn't be sure he would tell the 
truth, and yet you decided to only supply some information to 
the authorities that were going to prosecute. And then you give 
this incredible lame comment that the informants told you 2 
years earlier. To me, that's even more important. They told you 
2 years earlier. Why didn't you give them that information 2 
years earlier?
    Mr. Rico. 2 years earlier we supplied that information to 
the Chelsea Police Department. They had jurisdiction over this 
case.
    Mr. Shays. Well, the bottom line is, you have no remorse. 
You didn't provide information you should have. I think you 
should be prosecuted. I think you should be sent to jail. 
That's what I think. I'd like to ask a few more questions, if I 
might. I'll be happy to take my time.
    Mr. Burton. OK. You said a minute ago that you did supply 
this information to the Chelsea Police Department----
    Mr. Rico. Right.
    Mr. Burton [continuing]. About the informant as well as the 
witness. Right?
    Mr. Rico. Yes. It was supplied by Don Shannon to Robert 
Renfrew.
    Mr. Burton. So you're saying that the Chelsea Police had 
information that would have created doubt in a jury's mind 
about whether or not Mr. Salvati was guilty? I mean, if they 
had that information from the informant as well as the witness, 
obviously there would have been some conflicts there, and it 
would have created doubt. Why is it--can you explain to me and 
to the committee why is it that the Chelsea Police didn't use 
that in the trial? Why it wasn't brought up in the trial?
    Mr. Rico. I don't know.
    Mr. Burton. Well, your partner, who was your partner, he 
was your partner. As I understand it, you two worked very 
closely together. Your partner testified as to the veracity of 
what Mr.--of what Barboza said at the trial. He testified that 
he thought he was a credible witness. Now, you were his 
partner. You had to know that the informant said something else 
and Mr. Condon had to know that as well. So why in the world 
didn't they say that at the trial? Why didn't Mr. Condon, as an 
FBI agent--he's your partner. Come on. Don't tell me you didn't 
know--you didn't talk about this stuff. You had dinner together 
and everything else. Why didn't he just say, look, here's what 
Mr. Barboza is saying, but we have information contrary to that 
from an informant? This exculpatory evidence, why in the heck 
wasn't that brought up? Why did Mr. Condon not say that at the 
trial?
    Mr. Rico. I don't know. I don't know if Mr. Condon said 
that at the trial or not. I don't know. I wasn't there at the 
trial.
    Mr. Burton. And you guys never talked about that? You 
weren't partners? I mean, you weren't together a lot?
    Mr. Rico. I don't know what he said at the trial, but I 
have a transcript here, if I can find it. Do you think he 
testified----
    Mr. Burton. He did testify.
    Mr. Rico [continuing]. That this is a credible witness?
    Mr. Burton. He testified at the trial and----
    Mr. Rico. He testified he was a credible witness? What page 
is that on?
    Mr. Burton. Well, we'll get the exact language for you, 
Mr.----
    Mr. Rico. Yeah. If you would. Sure. I appreciate that.
    Mr. Burton. We'll get that for you. We'll come back to 
that.
    Mr. Rico. I know you wouldn't want to mislead me.
    Mr. Burton. No. I wouldn't mislead you. We'll come back to 
that. Who's next? Mr. Delahunt, do you have any questions?
    Mr. Delahunt. Thank you, Mr. Chairman. Going back to the 
conversation you had with Jack Kehoe, is Jack Kehoe still 
alive?
    Mr. Rico. The last I knew, he was. That's fairly recently.
    Mr. Delahunt. OK. I would suggest that the committee, Mr. 
Chairman, should interview Mr. Kehoe, relative to the 
conversation he had with Mr. Rico.
    Would it be fair to say that you would have disclosed the 
name of that informant to Mr. Kehoe?
    Mr. Rico. It would be fair to say that Jack Kehoe would 
know the identity of the informant.
    Mr. Delahunt. Thank you.
    Mr. Rico. Without my disclosing it to him, because of this 
stuff that's blocked out here. He would recognize who it was.
    Mr. Delahunt. So Jack Kehoe would. Would it be fair to 
infer, given the fact that you and Mr. Condon were partners--
and, by the way, how long did you and Mr. Condon work together 
as partners?
    Mr. Rico. Oh, probably 8 years to 10 years.
    Mr. Delahunt. And you were close?
    Mr. Rico. Yes.
    Mr. Delahunt. And you still are?
    Mr. Rico. Yes.
    Mr. Delahunt. You're close personal friends?
    Mr. Rico. Yes.
    Mr. Delahunt. Is it a fair inference that Mr. Condon, if he 
read the report that was authored by you, would know the name 
of that informant?
    Mr. Rico. I don't think so. I mean, I don't know the name. 
I can't tell you who it is. I don't know who it is. Right now I 
can't remember who that would be. I have----
    Mr. Delahunt. As we were discussing earlier in terms of 
your role in cultivating in Barboza as a witness and discussing 
the Deegan murder, did you supply any information from any 
source about the murder?
    Mr. Rico. Absolutely not.
    Mr. Delahunt. Not at all? Before he was to testify, did 
either you or Mr. Condon, working with the assistant district 
attorney in charge of the case or with local law enforcement, 
review his testimony?
    Mr. Rico. I don't recall doing that, and I don't know 
whether Dennis did. I don't think so.
    Mr. Delahunt. So your memory is that you never 
participated----
    Mr. Rico. I can't recall--I can't recall that.
    Mr. Delahunt. Now, one of the problems that I have, Mr. 
Rico, is that when you develop a witness and as you said, you 
supply a witness, particularly a high profile thug like Joe 
Barboza, the key to having him as an effective witness is to 
establish his credibility. Is that a fair statement?
    Mr. Rico. It sounds good.
    Mr. Delahunt. I mean, use an agent, myself as a former 
prosecutor, particularly when you're dealing with somebody like 
a Barboza----
    Mr. Rico. Right.
    Mr. Delahunt [continuing]. Your biggest concern is, he's 
going to be impeached. They're going to get him on the stand 
and they're going to supply documents as to his convictions, 
review bad acts. You know the drill and I know the drill.
    Mr. Rico. Right.
    Mr. Delahunt. See, what I find difficult is to vet his 
credibility, is to establish his credibility, when you're the 
author, you, Paul Rico, are the author of a report that 
implicates neither Salvati nor Greco nor Limone nor Tameleo, 
why wouldn't you, because he's your witness, you cultivated 
him, you flipped him, why wouldn't you and Dennis, working with 
Jack Kehoe, because he was considered an FBI witness, and he 
ended up being responsible for the genesis of the Federal 
Witness Protection Program, why wouldn't you conduct an 
exhaustive and an intensive investigation to evaluate and 
assess his credibility?
    Why wouldn't you go and have interviewed all of the players 
that were around in that point in time, determine whether 
Barboza was lying or telling the truth?
    Mr. Rico. It's because in our interviews with him, we were 
discussing who might have done different crimes, mostly he had 
swayed a lot of hits in the Boston area, as you remember. And 
he was on the money on--from the standpoint of--from----
    Mr. Delahunt. Let me----
    Mr. Rico. What we knew and what he knew.
    Mr. Delahunt. He was responsible or the prime witness who 
testified in three different cases?
    Mr. Rico. Right.
    Mr. Delahunt. Earlier you indicated on one case that 
everyone was found not guilty.
    Mr. Rico. His----
    Mr. Delahunt. Correct?
    Mr. Rico. His first case.
    Mr. Delahunt. Everyone found not guilty?
    Mr. Rico. Right.
    Mr. Delahunt. And on this case, he managed to put four 
innocent people in jail. How did he do on the third case, Mr. 
Rico?
    Mr. Rico. Well, the first case was handled----
    Mr. Delahunt. I'm asking about the third case.
    Mr. Rico. Well, I just----
    Mr. Delahunt. Did he ever----
    Mr. Rico. This is the third case. This is the third case.
    Mr. Delahunt. Well, I'm not asking you to go 
chronologically. The second--please, because----
    Mr. Rico. He went State, Federal and State.
    Mr. Delahunt. Right.
    Mr. Rico. He got a not guilty on everything in State court.
    Mr. Delahunt. OK.
    Mr. Rico. Guilty in Federal court, and then this was the 
third case.
    Mr. Delahunt. OK. He got a guilty--and the third case, of 
course, is--what we know now is a horrible injustice?
    Mr. Rico. Right. Right.
    Mr. Delahunt. And on the Federal case, what happened then?
    Mr. Rico. Guilty.
    Mr. Delahunt. Guilty. And what were the sentences that were 
meted out?
    Mr. Rico. Small.
    Mr. Delahunt. So in all this----
    Mr. Rico. What?
    Mr. Delahunt. With all the effort, the resources----
    Mr. Rico. Yeah.
    Mr. Delahunt [continuing]. And the time devoted to 
cultivating this witness.
    Mr. Rico. Uh-huh.
    Mr. Delahunt [continuing]. We get a couple of soft 
sentences in the Federal court. That's it. But you still 
haven't answered the question that I posed to you earlier. You 
had to know that guys like Bear and others that were there were 
going to attack his credibility, and if you supplied the 
witness----
    Mr. Rico. Right.
    Mr. Delahunt [continuing]. But you didn't supply the report 
that would have devastated his credibility, that's the problem.
    Mr. Rico. Yeah.
    Mr. Delahunt [continuing]. Isn't it, Mr. Rico?
    Mr. Rico. That's probably true.
    Mr. Delahunt. It's probably true.
    Mr. Rico. Right.
    Mr. Burton. Then why didn't you supply it?
    Mr. Rico. What?
    Mr. Burton. Why didn't you supply the report?
    Mr. Rico. Why didn't I supply it?
    Mr. Burton. Yeah. Why wasn't the report supplied? I mean, 
you just admitted to Mr. Delahunt that if it had been supplied, 
it would have changed the whole outcome. Why wasn't it 
supplied? You guys had it. Why did you choose to keep that?
    Mr. Rico. I assume that they must have had it. They must 
have had it. We had given it to Chelsea. Chelsea is the 
original crime scene----
    Mr. Burton. But you guys were involved in the case when you 
gave the information to the Chelsea Police. You knew what was 
going on. It was in the newspapers. You had to know. Why would 
you not make sure that kind of evidence was given to them? And 
your partner testified at the trial. We're getting that 
evidence right now--that information right now. But he 
testified you guys knew all this stuff and you didn't give it 
to him.
    Mr. Rico. Has he given me the--what do you say that he 
indicated?
    Mr. Burton. We'll get that.
    Mr. Rico. OK.
    Mr. Burton. We'll have that. Mrs. Morella.
    Mrs. Morella. Thank you, Mr. Chairman. Back to that police 
report that was discussed. There's a report that we have, from 
the Boston Police Department on the Deegan murder. Did the FBI 
share any information on the Deegan murder with the Boston 
Police Department? I guess I could also expand that, too, and 
add, did you see any of the police reports from either the 
Boston Police Department or the Chelsea Police Department 
during the time of the Deegan murder?
    Mr. Rico. I cannot tell you right now.
    Mrs. Morella. Uh-huh.
    Mr. Rico. Up.
    Mrs. Morella. There's a report--city of Boston report on 
exhibit 12.
    [Exhibit 12 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.056
    
    [GRAPHIC] [TIFF OMITTED] T6507.057
    
    Mr. Rico. Exhibit 12.
    Mrs. Morella. Roy French was questioned by the Chelsea 
Police the day after the murder. Besides French, do you know if 
any of the other individuals identified, either in your report 
or the Chelsea report, who were questioned about the Deegan 
murder? For instance, was Vincent Flemmi questioned?
    Mr. Rico. I don't know. I have no knowledge of that.
    Mrs. Morella. You don't remember, or you just don't know 
whether any of them were questioned?
    Mr. Rico. I don't know whether--other people were 
questioned at that time.
    Mrs. Morella. Was Vincent Flemmi ever questioned by anybody 
about the Deegan murder?
    Mr. Rico. I don't know. I didn't question him.
    Mrs. Morella. You don't know. Around the time of the Deegan 
murder, what evidence had you developed, either on your own or 
from other law enforcement agencies, regarding Joe Salvati's 
role in the Deegan----
    Mr. Rico. I never received any mention that was derogatory 
on Joe Salvati ever.
    Mrs. Morella. You never have?
    Mr. Rico. I have no information on Joe Salvati. I don't 
think I ever heard the name before.
    Mrs. Morella. You know, I understand that FBI Director 
Louis Freeh has issued a statement saying that there is a task 
force that is ongoing that is looking at this issue. It's 
called a Justice Task Force. It's now been in operation since, 
I think, early 1999.
    Mr. Rico. Uh-huh.
    Mrs. Morella. Mr. Rico, have they ever questioned you?
    Mr. Rico. No.
    Mrs. Morella. They have not questioned you at all about 
this?
    Mr. Rico. No.
    Mrs. Morella. Have you received any communication from them 
about it?
    Mr. Rico. What?
    Mrs. Morella. Have you gotten any communication?
    Mr. Rico. No.
    Mrs. Morella. From the FBI that they're interested at all? 
Don't you think----
    Mr. Rico. I appeared before Judge Wolf in Federal court 
about a year and a half ago, and I think that's part of the 
whole system.
    Mrs. Morella. Were you asked about the Deegan----
    Mr. Rico. No. At that time I was asked about Flemmi, Steve 
Flemmi, not----
    Mrs. Morella. Not Vince?
    Mr. Rico. Not Vincent.
    Mrs. Morella. Very interesting. I would guess you would 
expect that we'd be asking you some questions.
    Mr. Rico. Fine.
    Mrs. Morella. Maybe as a result of this hearing.
    Mr. Rico. Sure.
    Mrs. Morella. I think we certainly think they should. Well, 
Mr. Chairman, I'm going to yield back to you the remainder of 
my time.
    Mr. Barr [presiding]. I thank the gentlelady. Mr. Shays, 
we'll conclude with 5 minutes from you.
    Mr. Shays. I may just go slightly over, but I'll try to be 
as punctual as possible. Mr. Rico, when did you join the FBI?
    Mr. Rico. What?
    Mr. Shays. When did you join the FBI?
    Mr. Rico. I think it was 1951, beginning of 1951.
    Mr. Shays. And when did you retire?
    Mr. Rico. 1975.
    Mr. Shays. And when you--during that time that you were in 
the FBI, how long were you in the New England area?
    Mr. Rico. I was there from the early 1950's to 1970.
    Mr. Shays. Is that unusual for someone to be in one place 
basically for most of their time?
    Mr. Rico. Not really, no. Well, it could be.
    Mr. Shays. So the bottom line is you spent a good--maybe 
almost 20 years of your experience in the New England area?
    Mr. Rico. That's right. That's right.
    Mr. Shays. What did you do after you retired?
    Mr. Rico. I went to work for World Jai Alai.
    Mr. Shays. Did you know at the time that there were 
concerns that World Jai Alai was--well, let me ask you this. 
Who hired you?
    Mr. Rico. I was hired by a head hunting group. Well, I was 
interviewed by a head hunting group, and eventually was hired 
by John Callahan.
    Mr. Shays. Right. Now, did you have any information that 
John Callahan was involved in organized crime?
    Mr. Rico. Not till late in--not till later.
    Mr. Shays. Later. Explain later.
    Mr. Rico. Later was later, several years later.
    Mr. Shays. 2 years later, 1 year later.
    Mr. Rico. It was shortly before he left the company.
    Mr. Shays. And so how long was that after he had hired you?
    Mr. Rico. After he hired me?
    Mr. Shays. Yeah.
    Mr. Rico. 3 or 4 years probably.
    Mr. Shays. Why wouldn't you have known that he was involved 
in organized crime?
    Mr. Rico. Why wouldn't I know?
    Mr. Shays. Yeah, you work for FBI.
    Mr. Rico. Because there was nothing in the files of the FBI 
indicating that John Callahan was in any way connected with 
organized crime.
    Mr. Shays. So we have a retired FBI agent who is hired to 
work at World Jai Alai and hired by an organized crime figure. 
Did any of your colleagues question the advisability of you 
working for an organized crime figure?
    Mr. Rico. I don't think anyone knew he was an organized 
crime figure until later.
    Mr. Shays. The State officials knew.
    Mr. Rico. What?
    Mr. Shays. The State officials knew in Connecticut. They 
were rather surprised that you would choose to work for someone 
involved in organized crime.
    Mr. Rico. The reason he left was because he was seen with 
organized crime people. And I reported it to the board of 
directors, and he was asked to resign.
    Mr. Shays. You weren't the one who reported it.
    Mr. Rico. I wasn't?
    Mr. Shays. You were the one who discovered he was involved 
with organized crime? Your testimony before this committee is 
that no one knew in the organization that he was involved in 
organized crime until you told them?
    Mr. Rico. No one in my company knew that until I told them.
    Mr. Shays. That is your testimony under oath?
    Mr. Rico. No one in my company knew.
    Mr. Shays. What is the company----
    Mr. Rico. Huh?
    Mr. Shays. Tell me the company.
    Mr. Rico. World Jai Alai.
    Mr. Shays. Your testimony under oath is that nobody in 
World Jai Alai knew that he was involved in organized crime?
    Mr. Rico. That I knew of, yeah.
    Mr. Shays. Who is Roger Wheeler?
    Mr. Rico. He is the person who eventually bought World Jai 
Alai.
    Mr. Shays. And you worked for Roger Wheeler?
    Mr. Rico. Yes.
    Mr. Shays. What happened to Roger Wheeler?
    Mr. Rico. Roger Wheeler was a homicide victim.
    Mr. Shays. Who committed that crime? Who killed him?
    Mr. Rico. I believe they have a witness that said he did 
it. I think his name is James Martorano.
    Mr. Shays. John Vincent Martorano?
    Mr. Rico. Martorano.
    Mr. Shays. Have you ever heard of the individual?
    Mr. Rico. Yes. He was with Callahan. It was like a St. 
Patrick's Day night. He was at the Playboy with John Callahan 
and two other people, Martorano was.
    Mr. Shays. He was killed in a club, wasn't he, in Tulsa?
    Mr. Rico. What?
    Mr. Shays. He was killed in Arizona?
    Mr. Rico. Oklahoma.
    Mr. Shays. Oklahoma.
    Let me just ask you another line of questions. In 1988 the 
Supreme Court of Rhode Island found that FBI Special Agent H. 
Paul Rico, you, suborned the perjury of John Kelley, the 
State's principal witness in the 1970 murder trial of Maurice 
Lerner. Apparently at your instigation, Mr. Rico, Kelley 
altered two facts directly dealing with the murder and the 
extent of the promises that you made in exchange for Kelley's 
testimony. When asked why he perjured himself, Kelley said my 
life was in the FBI's hands, and this is in brackets, Special 
Agent Rico, end of brackets, said I had no alternative.
    Mr. Rico, why did you suborn the perjury of the State's 
main witness John Kelley in the gangland killing of Anthony 
Melei?
    Mr. Rico. Anthony who?
    Mr. Shays. Anthony Melei.
    Mr. Rico. I don't know who that is.
    Mr. Shays. Isn't it true that you were found, the Supreme 
Court of Rhode Island found you to have perjured--suborned the 
perjury of John Kelley? Weren't you cited in 1988?
    Mr. Rico. I'm unaware of that.
    Mr. Shays. You're unaware of any perjury, any order, any 
decision--I want you to be real careful about this because you 
did have a conversation with one of our staff. So I want you to 
think this through for a second. I just read you something that 
was pretty clear. I want you to tell me what your answer is to 
that.
    Do you know who Maurice Lerner is?
    Mr. Rico. Yes, oh yeah, Maurice Lerner.
    Mr. Shays. Do you know who John Kelley is?
    Mr. Rico. Yes.
    Mr. Shays. You know who those two people are?
    Mr. Rico. Yes.
    Mr. Shays. Who are they?
    Mr. Rico. John J. Kelley is an individual that's been 
involved in different forms of crime over a long period of 
time, including numerous bank robberies and armored car 
robberies on a national basis.
    Mr. Shays. Right. And you have had contact with them, 
haven't you?
    Mr. Rico. Yes.
    Mr. Shays. And you had a circumstance where you spoke to 
him about the testimony he gave before the Supreme Court in 
Rhode Island--I mean, excuse me, before the court in Rhode 
Island, not the Supreme Court.
    Mr. Rico. I had a conversation with John over that?
    Mr. Shays. John Kelley.
    Mr. Rico. I'm not trying to be evasive. I think that John 
J. Kelley----
    Mr. Shays. John. If it's John J. Kelley, I know it's John 
Kelley.
    Mr. Rico. It's the person that was tried in the Plymouth 
mail robbery. He became a government witness.
    Mr. Shays. Could you put the mic a little closer to you, 
please?
    Mr. Rico. He was a principal in the Plymouth mail robbery, 
was tried and F. Lee Bailey represented him and he was found 
not guilty. He later became involved in another robbery of a 
Brinks truck and he was awaiting trial on that matter when he 
decided that he would become a government witness. And he 
became a government witness. And once his testimony was over 
and his sentencing was over he decided to change his testimony.
    Mr. Shays. He perjured himself, and he claims that you were 
the reason he perjured.
    Mr. Rico. That's right. That's what he claimed. That's 
true.
    Mr. Shays. You just seem----
    Mr. Rico. Because I thought you were saying that I had been 
found guilty of perjury. I wasn't involved in being convicted. 
He alleged it, that I did this?
    Mr. Shays. Right. And weren't you cited by the Supreme 
Court?
    Mr. Rico. I don't know if I was. I don't think so.
    Mr. Shays. What was the claim that he made? How had he 
perjured himself?
    Mr. Rico. You ask him, Maurice Lerner. Maurice Lerner had a 
shooting gallery in his basement and he was, according to Jack 
Kelley, this guy was a very competent killer and Jack was very 
afraid of him and I think that after Jack Kelley got his legal 
problems squared away that he decided he would help Lerner and 
he changed his testimony and said that he had only testified 
the other way because I had insisted on it.
    Mr. Shays. I am going to ask you two questions. Mr. Rico, 
why did you suborn the perjury of the State's main witness John 
Kelley in the gangland killing of Anthony Melei.
    Mr. Rico. Why did I do that?
    Mr. Shays. Yes.
    Mr. Rico. I did not suborn perjury.
    Mr. Shays. Did you also perjure yourself in that case by 
corroborating Kelley's false statements concerning promises you 
made to Kelley in exchange for his testimony?
    Mr. Rico. I have always been able to say to everybody that 
was a witness or a potential witness the same thing, that we 
will bring whatever cooperation you bring to the attention of 
the proper authorities. There's nothing else that I have ever 
said concerning eliciting testimony.
    Mr. Shays. Two points. Isn't it true that Mr. Kelley 
perjured himself?
    Mr. Rico. I don't know that.
    Mr. Shays. You don't know if Mr. Kelley perjured?
    Mr. Rico. If he changed his testimony from the first time 
and changed it to something else the second time, he obviously 
was wrong in one of those instances.
    Mr. Shays. Isn't it true that he claims you were the reason 
that he had given false testimony the first time?
    Mr. Rico. That's probably true. That's probably what he 
said.
    Mr. Shays. No, not probably. Isn't it true?
    Mr. Rico. It's probably true.
    Mr. Shays. Don't use the word ``probably.'' Isn't it true 
that he said that you encouraged him to perjure himself and 
give false testimony?
    Mr. Rico. Yes.
    Mr. Shays. Well, you know I realize that he may be an 
unsavory character but why shouldn't I believe him more than 
you were willing to believe your star witness Joseph Barboza 
and send someone to jail for 30 years? Why should you be 
incredulous about my question?
    Mr. Rico. No, no, no. He would be very interesting if you 
would talk to him.
    Mr. Shays. This has been a fascinating day for me, Mr. 
Rico. I think the thing I'm most surprised about is that it's 
clear to me that the FBI became as corrupt as the people they 
went after and it's clear to me that you have the same 
insensitivity that I would imagine in someone who is a hard and 
fast criminal. No remorse whatsoever. Cold as can be. The fact 
that a man spent 30 years in jail, no big deal. No tears. No 
regret, and yet you were responsible for that man being in jail 
for 30 years. You have gotten just like the people you went 
after. What a legacy.
    Mr. Barr. The Chair recognizes the counsel, Mr. Wilson.
    Mr. Wilson. Mr. Rico, there are a number of questions that 
need to be answered but there's one that sticks out in my mind 
right now and it's this. We've learned that on many occasions 
you talked to Joe Barboza. He was a witness that you were 
handling, went into the Witness Protection Program. You worked 
with him after he was in the Witness Protection Program. When 
you asked him the question where was Vincent Flemmi on March 
12, 1965, what did he tell you?
    Mr. Rico. I don't think we ever asked him that question. We 
never asked him that question.
    Mr. Wilson. The only reason I ask that is because it's the 
only question that you could not have failed to ask. It's 
inconceivable that you wouldn't ask that question. I'll tell 
you why it's inconceivable to me. In 1964 you learned that 
Vincent Flemmi wanted to kill Teddy Deegan. That was on October 
19, 1964, you knew that Vincent Flemmi wanted to kill Teddy 
Deegan. On March 10 you learned from the informant that Deegan 
was going to be murdered. On March 13, 1965 you learned from an 
informant that Vincent Flemmi told people that the Deegan 
murder was committed by Joseph Barboza and himself. So in 1964 
you knew Teddy Deegan was going to be killed and Vincent Flemmi 
wanted to kill him or at least you learned that Vincent Flemmi 
wanted to kill him. The following year you learned that Flemmi 
had said that he had killed him. A little bit later in April, 
April 5, 1965, you had your first reported contact with Vincent 
Flemmi trying to get information from him. We're told by the 
task force head that on April 15 you opened an informant file 
on Vincent Flemmi. You started working with Vincent Flemmi's 
brother in 1965 to obtain informant information. And then you 
finally start working with Barboza, with all this knowledge in 
the background of what Vincent Flemmi wanted to do with Teddy 
Deegan, and you had the perfect opportunity to ask Barboza 
where was Vincent Flemmi. I mean that's the only question that 
you would think you would want answered. You knew you testified 
that Vincent Flemmi was a killer, right?
    Mr. Rico. Right.
    Mr. Wilson. And here's the possibility that there's a 
murder to be solved and you have got information that Vincent 
Flemmi might be involved in the murder. Did you purposefully 
want to leave him on the streets?
    Mr. Rico. No, no, no. I arrested Vincent Flemmi.
    Mr. Wilson. Well, you had an opportunity to followup and at 
least ask the question of your principal witness about Vincent 
Flemmi. Where was Vincent Flemmi on the day that Teddy Deegan 
was killed? That's to me the one question that you would have 
had to ask him.
    Mr. Rico. Yeah.
    Mr. Wilson. And you didn't ask him that?
    Mr. Rico. I don't remember asking him that, no.
    Mr. Wilson. Now the most important document I think in this 
whole series of documents we have is exhibit No. 24 in our book 
and if you would turn to that, take a moment to look at it, 
please. It's a two-page document. We talked about it in a 
previous panel. It was prepared by yourself and your partner, 
Dennis Condon. It's dated March 8, 1967. Apparently it's 
information that was obtained at Walpole, which is a prison in 
Massachusetts. And on the second page----
    [Exhibit 24 follows:]
    [GRAPHIC] [TIFF OMITTED] T6507.091
    
    [GRAPHIC] [TIFF OMITTED] T6507.092
    
    Mr. Rico. I don't find it.
    Mr. Wilson. Do you have exhibit 24?
    Mr. Rico. I have 25, OK. Coming up. 24. OK. This has to be 
24.
    Mr. Wilson. It's a two-page document. It's a write-up of 
your interview and Mr. Condon's interview with Joe Barboza, and 
on the second page the FBI has redacted most of the information 
on the second page so we don't know what's there, but it does 
say, the one bit of text that's left on the page, Baron, now 
Baron was Barboza's other name, ``Baron knows what has happened 
in practically every murder that has been committed in this 
area. He said that he would never provide information that 
would allow James Vincent Flemmi to fry but that he will 
consider furnishing information on these murders.''
    Now, given the fact that you had all the information about 
Vincent Flemmi wanting to kill Teddy Deegan and then after the 
fact having killed Teddy Deegan, given the fact that you had 
that information and given that Joe Barboza told you that he 
wasn't going to give you any information about Vincent Flemmi, 
did you have any concern that Barboza was going to protect 
Vincent Flemmi in the trial for the Deegan murder?
    Mr. Rico. I probably had concern over it at that time.
    Mr. Wilson. What did you do, what concrete steps did you do 
to express your concern.
    Mr. Rico. Well, I think I indicated to John Doyle the 
possibility that this guy would not provide information on 
Jimmy Flemmi because he's his friend and I think that should be 
borne in mind when you interview this guy.
    Mr. Wilson. But now he's your witness. You're the one 
taking the interviews here. Why didn't you ask him the question 
for your own peace of mind? This was a death penalty case. You 
apparently were his handler.
    Mr. Rico. Well, he'd already said that he will not tell us, 
right?
    Mr. Wilson. Pardon.
    Mr. Rico. He already said that he would not give us 
anything that would be harmful to Jimmy Flemmi.
    Mr. Wilson. So that was it; you wouldn't even followup and 
say I need to know, I need to know to move forward? Tell me 
what happened. Well, let me just ask you a couple of other 
related questions because a trial took place, and in hindsight, 
obviously hindsight is helpful but there was this extraordinary 
testimony about a guy wearing a wig to make him look bald. Did 
you know that Vincent Flemmi was bald?
    Mr. Rico. Yes, yes.
    Mr. Wilson. OK. What did you think about the testimony at 
trial?
    Mr. Rico. I didn't hear that testimony until today. That's 
the only time I ever heard that testimony was today.
    Mr. Wilson. It seems to us that it had to have been as far-
fetched in 1967 and 1968.
    Mr. Rico. I don't remember it happening at that time, you 
know.
    Mr. Wilson. Your partner testified at the trial, Barboza 
was your witness. Weren't you following what he was saying. 
That would have ramifications for Federal trials. You were 
going to put the guy on the stand in other trials. Didn't you 
need to know what he was saying in that trial?
    Mr. Rico. No, that was the last trial.
    Mr. Wilson. But he's still in the Witness Protection 
Program. Is that it? There was no possibility that he would 
ever be able to give up information again?
    Mr. Rico. I think that was it. I didn't think he was going 
to give us information that we could use on anything else. He 
was cut loose.
    Mr. Wilson. Did you ever debrief Barboza again? Did you 
ever talk to him about any other matter after?
    Mr. Rico. Yeah, I did. I talked to him in Santa Rosa and he 
told me that somebody from Massachusetts had visited him, and I 
told him that person was really not a friend of his and he 
should be careful. And when he got out of jail he visited that 
person and when he walked out the front door he got hit with a 
shotgun. That was the end of Barboza.
    Mr. Wilson. And that was in 1976, correct?
    Mr. Rico. I don't remember the year. I just know that's 
what happened.
    Mr. Wilson. Right. Now, one of the other things that's of 
some concern to us, and we'll just try to make sure we 
understand this fully, Vincent Flemmi was being used as an 
informant in 1965, correct?
    Mr. Rico. I don't think I used him at all.
    Mr. Wilson. I remember you said that before in answer to 
one of the Congressman's question. I think you said that you 
didn't know that Vincent Flemmi was an informant at all.
    Mr. Rico. I don't think I had him as an informant. I had--
--
    Mr. Wilson. The question is did you know he was an 
informant for the FBI?
    Mr. Rico. Well, somebody could have opened him as an 
informant.
    Mr. Wilson. But the question is did you know he was an 
informant for the FBI ever prior to today?
    Mr. Rico. We're talking about somebody that most of the 
informants you have to certify their emotional stability and it 
would be difficult to certify James's emotional stability. So I 
don't know whether or not someone decided to open him. I don't 
think I did.
    Mr. Shays. Could the gentleman yield for a second? I don't 
understand. You have to certify?
    Mr. Rico. You want to make sure that whoever you have is 
emotionally stable. Not a nut.
    Mr. Shays. You also want to make sure they tell the truth, 
too, right?
    Mr. Rico. You want to make sure whether you can determine 
that they tell the truth.
    Mr. Shays. I want to make sure I understand this. You care 
about a witness to make sure he's emotionally credible but you 
don't care about the other things that a witness might say?
    Mr. Rico. Yes, of course you do.
    Mr. Shays. Well, you didn't seem to--well, thank you.
    Mr. Wilson. Well, I'm just a little concerned that we 
didn't get a clear answer to the question.
    Mr. Rico. Well, do you have Vincent Flemmi as my informant?
    Mr. Wilson. I don't, but that's not my question. My 
question is did you know that Vincent Flemmi was being used as 
an informant by anybody in the FBI?
    Mr. Rico. At the present time I don't know whether he was 
being used as an informant. I doubt that he was being used as 
an informant.
    Mr. Wilson. Did you know that anybody was considering using 
him as an informant?
    Mr. Rico. If you work in organized crime the Bureau expects 
you to come up with sources and informants, so it's very 
possible that somebody could consider him. I don't know that.
    Mr. Wilson. Well, that is the answer. You're saying you did 
not know that?
    Mr. Rico. I can't recall that. OK.
    Mr. Wilson. You did know, I believe you testified that 
Steven Flemmi was being considered as an informant.
    Mr. Rico. I had him.
    Mr. Wilson. Now one of the problems that we face here is 
when you interviewed Barboza and he said he wasn't going to 
give you any information that would--and I'm paraphrasing--but 
would lead his brother, would lead Vincent Flemmi to fry, at 
that time you have got knowledge that you've been using Steven 
Flemmi as an informant. It seems to me there is a terrible 
conflict there. If you had asked Barboza probing questions 
about Vincent Flemmi, which seems to me a fairly logical thing 
to have done, you would have put yourself into trouble with 
your informant Steve Flemmi. Did that ever occur to you?
    Mr. Rico. That is a possibility.
    Mr. Wilson. Well----
    Mr. Rico. It wouldn't have prevented us from asking. We try 
not to be married to informants.
    Mr. Wilson. But to try to put it as simply as possible, one 
of our concerns is that in order to keep your relationship with 
Steven Flemmi you're turning a blind eye to what Vincent Flemmi 
is doing.
    Mr. Rico. No, no. I mentioned before I ended up arresting 
him, including with my partner Dennis.
    Mr. Wilson. But not for the Deegan murder?
    Mr. Rico. No.
    Mr. Wilson. And you didn't ask any questions about Vincent 
Flemmi's possible participation in the Deegan murder, none at 
all?
    Mr. Rico. Well, I think John, I think John Doyle was pretty 
much aware that Vincent Flemmi and Joseph Barboza were very 
close. And I think that was brought out in conversations 
between us, John Doyle, myself, Dennis, yeah.
    Mr. Wilson. I guess this is a very important question that 
we've not asked yet. But in 1965, given that you knew there was 
a bald guy allegedly in the Deegan murder and that Barboza did 
commit the murder, did you suspect that that person was Vincent 
Flemmi? I'm asking whether you suspected that.
    Mr. Rico. I can't answer that now. I can't answer that at 
the present time. I can't think of what I thought back then.
    Mr. Wilson. Did----
    Mr. Rico. Vincent was capable of doing anything though.
    Mr. Wilson. Given what we now know, it's obvious to us but 
it would have been obvious to you in 1965 and 1966 and 1967. 
You told us you ultimately arrested Vincent Flemmi. But what 
you had in 1964 is information that Vincent Flemmi was going to 
kill Teddy Deegan and then you had informant information in 
fact that Vincent Flemmi was going to kill Teddy Deegan. In 
fact, you sent memos to the Director of the Federal Bureau of 
Investigation, your ultimate boss, that Vincent Flemmi is going 
to kill Teddy Deegan and then there is a bald guy that ends up 
helping to kill Teddy Deegan and you told us you don't know 
about the testimony but you just don't remember. That's your 
testimony, that you just don't remember?
    Mr. Rico. That's right, I don't remember.
    Mr. Wilson. What your suspicion was?
    Mr. Rico. And I don't think I sent a communication. Oh, 
yes, I did. OK.
    Mr. Wilson. There are a number of memoranda----
    Mr. Rico. I see it.
    Mr. Wilson [continuing]. That you authored here. Some went 
to the Director.
    Mr. Rico. Right.
    Mr. Wilson. Did you have any verbal conversations, any 
conversations with the Director of the FBI about the Deegan 
case?
    Mr. Rico. No.
    Mr. Wilson. Did you know the Director of the FBI?
    Mr. Rico. I only knew who he was. I didn't know him.
    Mr. Wilson. If you could give us a little sense of 
memoranda that were being prepared. Did you prepare more than 
one memorandum a week for the Director of the FBI?
    Mr. Rico. I don't think so. I don't think so. I don't even 
think it was, I don't recall it being my responsibility.
    Mr. Wilson. From our perspective, looking at the documents 
we've been provided, it doesn't appear to be something that you 
did frequently. Is that fair to say?
    Mr. Rico. Right, I would think it would be fair to say.
    Mr. Wilson. I think you have had a chance to look a little 
bit through the binder here. Do you know of any other memoranda 
that you prepared that discussed Vincent Flemmi, and let me put 
that in context, Vincent Flemmi in the Deegan case?
    Mr. Rico. I would like to take a break.
    Mr. Wilson. OK.
    Mr. Rico. Which way is the nearest men's room?
    Mr. Barr. We'll stand in recess for 5 minutes.
    [Recess.]
    Mr. Barr. I think Mr. Wilson has finished his questions. 
Mr. Delahunt, you had one other area of inquiry that you wanted 
to go into before we conclude?
    Mr. Delahunt. Yes.
    Mr. Barr. The gentleman from Massachusetts is recognized 
for 5 minutes.
    Mr. Delahunt. Mr. Rico, you never inquired of or ever made 
any recommendation to the Massachusetts Parole Board on any 
matter relating to a commutation for either Mr. Salvati or 
anyone else who was convicted as a result in the Deegan murder 
case; is that correct?
    Mr. Rico. That is correct.
    Mr. Delahunt. You indicated that Steve Flemmi was your 
informant and you ran him as an informant until you left the 
Bureau?
    Mr. Rico. I don't know the date. No, I think--no, I think 
that I ran him until he was indicted on--I think he was 
indicted on the bombing of John Fitzgerald's car, and I closed 
him then.
    Mr. Delahunt. Let me ask you this. You closed him then but 
you introduced him to John Connolly, is that correct?
    Mr. Rico. That is not correct.
    Mr. Delahunt. That is not correct?
    Mr. Rico. Right.
    Mr. Delahunt. Did you participate in any way in 
encouraging, either directly or indirectly through Dennis 
Condon, Steven Flemmi to cooperate again with the FBI?
    Mr. Rico. I think Dennis was the ultimate agent on with 
Stevie Flemmi. And I think when Stevie Flemmi was no longer 
under indictment I think Dennis may have handled him for a 
period of time.
    Mr. Delahunt. OK. You're familiar that Frank Salemme--
you're familiar with Frank Salemme?
    Mr. Rico. Yes.
    Mr. Delahunt. You know Frank Salemme was arrested in New 
York City?
    Mr. Rico. Yes.
    Mr. Delahunt. By John Connolly.
    Mr. Rico. Yes.
    Mr. Delahunt. Are you aware of the details of how Mr. 
Connolly developed that information?
    Mr. Rico. I believe that Dennis Condon sent a photograph of 
Frankie Salemme to New York City through John Connolly because 
he thought he was there and that the New York agents weren't 
paying much attention to it.
    Mr. Delahunt. But Steve Flemmi never provided any 
information relative to the whereabouts of Frank Salemme in New 
York City.
    Mr. Rico. I think Frank--excuse me, I think Steve Flemmi 
was a fugitive at the same time so that he wasn't available to 
provide anyone with information.
    Mr. Delahunt. So it was simply a coincidence?
    Mr. Rico. Lucky is what I think.
    Mr. Delahunt. You know, just for a minute touching on the 
Wheeler case, and we all have coincidences in our lives, but 
the witness you referred to, John Martorano, who has admitted 
killing Wheeler----
    Mr. Rico. Right.
    Mr. Delahunt [continuing]. Has testified under oath that he 
was instructed or contracted for the hit by Steve Flemmi and 
Whitey Bulger.
    Mr. Rico. I understand that.
    Mr. Delahunt. It's a coincidence that you were the handler 
for Steve Flemmi and that Steve Flemmi ordered the hit on Mr. 
Wheeler, who was the CEO of a company that you were employed 
by.
    Mr. Rico. Right.
    Mr. Delahunt. That's just a coincidence.
    Mr. Rico. You want to tie me into Bulger. I can tie myself 
into Bulger for you.
    Mr. Delahunt. Go ahead.
    Mr. Rico. Bulger.
    Mr. Delahunt. Mr. Rico, I think I need full disclosure here 
because somebody will, I'm sure, discover that years and years 
ago I went to Saint Agatha's Parochial School with John 
Martorano.
    Mr. Rico. I knew that.
    Mr. Delahunt. I figured you did know that. So I really 
wanted to be forthcoming. And you should also know that John 
Martorano and I served mass together for Cardinal Cushing back 
in the eighth grade. So there are coincidences in life.
    Mr. Rico. OK.
    Mr. Delahunt. If you want to proceed, Mr. Rico.
    Mr. Rico. The last time that Jimmy Bulger was arrested I 
arrested him. I arrested him for two bank robberies and he pled 
guilty to three bank robberies. And that's my Bulger 
experience.
    Mr. Delahunt. Well, thank you for that information. We'll 
just conclude with a--to elicit a response from you to a 
statement that was made by your counsel that appeared in the 
Boston Herald dated January 10 of this year. ``Rico cannot be 
blamed for men--referring to the innocent individuals that were 
convicted in the Deegan case.'' Those are my parentheses. 
That's not part of the quotation. It goes on. The former 
agent's attorney said yesterday orders laid down by then FBI 
Director J. Edgar Hoover kept information in the murder of 
Edward Deegan locked away in FBI files all these years, Cagney 
said. He was bound by the hierarchy, Cagney said. All that went 
to Rico supervisor--all that, rather, went to Rico supervisors 
and he can't release that without permission of his 
supervisors.
    Is that your position as well?
    Mr. Rico. I don't know where that came from. I hear what 
you're saying but it doesn't sound--I'm sorry, I have got a 
cold. But it doesn't sound like Cagney and it doesn't sound 
plausible to me.
    Mr. Delahunt. Thank you.
    Mr. Delahunt. I yield back.
    Mr. Barr. I thank the gentleman. That concludes this 
hearing. Thank you, Mr. Rico.
    Mr. Rico. Thank you. Am I dismissed?
    Mr. Barr. Yes, sir.
    Mr. Rico. Thank you.
    [Whereupon, at 5:34 p.m., the committee was adjourned.]
    [Exhibits used for the hearing record follow:]
    [GRAPHIC] [TIFF OMITTED] T6507.032
    
    [GRAPHIC] [TIFF OMITTED] T6507.033
    
    [GRAPHIC] [TIFF OMITTED] T6507.034
    
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    [GRAPHIC] [TIFF OMITTED] T6507.045
    
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   THE FBI'S HANDLING OF CONFIDENTIAL INFORMANTS IN BOSTON: WILL THE 
        JUSTICE DEPARTMENT COMPLY WITH CONGRESSIONAL SUBPOENAS?

                              ----------                              

                      THURSDAY, DECEMBER 13, 2001

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:26 a.m., in 
room 2157, Rayburn House Office Building, Hon. Dan Burton 
(chairman of the committee) presiding.
    Present: Representatives Burton, Delahunt, Waxman, Tierney, 
Frank, Kucinich, Cummings, Clay, Norton, Duncan, Shays, 
LaTourette, Morella, Horn, and Gilman.
    Staff present: Kevin Binger, staff director; Daniel R. 
Moll, deputy staff director; James C. Wilson, chief counsel; 
David A. Kass, deputy chief counsel; Mark Corallo, director of 
communications; Thomas Bowman, senior counsel; Chad Bungard, 
Pablo Carrillo, Matt Rupp, and James J. Schumann, counsels; S. 
Elizabeth Clay and Gil Macklin, professional staff members; 
Michael Ayers and Susie Schulte, staff assistants; Robert A. 
Briggs, chief clerk; Robin Butler, office manager; Elizabeth 
Crane and Michael Layman, legislative assistants; Elizabeth 
Frigola, deputy communications director; Joshua E. Gillespie, 
deputy chief clerk; Nicholas Mutton, assistant to chief 
counsel; Leneal Scott, computer systems manager; Corinne 
Zaccagnini, systems administrator; Michael Yeager, minority 
deputy chief counsel; Ellen Rayner, minority chief clerk; and 
Jean Gosa and Earley Green, minority assistant clerks.
    Mr. Burton. OK, I think we'll get started here in just 
about 2 or 3 minutes. We understand there are some other people 
that want to be here, and we'll wait for them.
    OK, I think we'll go ahead and start. I have a prepared 
statement here, but I'm not going to read it today. I'll put it 
in the record, because I want to speak extemporaneously about 
this issue, because I feel very strongly about it. A lot of the 
media is not here, but I'm sure they will hear about this very 
quickly.
    The Congress has the right of oversight over the executive 
branch of the United States of America. This committee has 
oversight responsibility over the entire Government of the 
United States. Every single branch of the executive branch in 
one way or another comes under the purview of this committee as 
far as oversight is concerned.
    Now, for the past 4\1/2\ years or 5 years, we have 
investigated the Clinton administration. And my colleagues on 
my right here have been concerned because I was so partisan. 
Well, today I think they're going to find that it was because I 
really believed what we were trying to get to the bottom of.
    President Bush, I think, is doing an outstanding job in the 
war effort. And I think the American people share that view. I 
think about 85 percent approve of his handling of the war. And 
I think everybody's giving him a lot of latitude on the 
economy, because he's trying his best, and I believe 
rightfully, to get the economy moving with an economic stimulus 
package.
    But where I disagree with the President, and I believe most 
of my colleagues on both sides of the aisle would disagree with 
the President, is his use of executive privilege that we just 
received notification of today. Now, I've met with the White 
House chief counsel, Mr. Gonzales, I talked to him this 
morning. And I've met with the Attorney General.
    And the Congress of the United States has the right and the 
obligation to oversee the executive branch, the White House and 
the Justice Department. The President has the right in certain 
cases to claim executive privilege. But it's a real stretch for 
him to claim executive privilege on the issues that are before 
us today. I think it's wrong and I believe the Congress will 
think it's wrong.
    Now, the reason we asked for information from the Justice 
Department in the past was because we were concerned about 
campaign finance scandals, and we were concerned about 
espionage, we were concerned about all kinds of things. We were 
ultimately able to get most of those things from the Reno 
Justice Department and from the White House.
    This White House has issued an Executive order that pretty 
much blocks us from getting any information on previous 
executive branch personnel, including the President of the 
United States. We are chagrined by that, because in the past, 
we've been able to get those documents so we could fulfill our 
oversight responsibilities.
    As far as the Justice Department is concerned, we have in 
the past had difficulties getting things like the La Bella and 
Freeh memo from the Reno Justice Department, but ultimately we 
did get those. Today we are here to talk to the Justice 
Department about Joseph Salvati. Joseph Salvati was put in 
prison when J. Edgar Hoover was the FBI Director. And we have 
reason to believe, very strong evidence, that leads us to 
believe that even J. Edgar Hoover knew that Mr. Salvati was 
innocent of the charges brought against him.
    But he was put in jail and they were going to give him the 
death sentence, the death penalty, but they didn't. They gave 
him life in prison. He spent 30 years in prison. Time after 
time, the FBI tried to keep him from getting out of prison. 
Finally, he was released on parole, and then documents were 
revealed which showed he was innocent. He was innocent. A man 
spent his whole life, his children grew up, and his wife grew 
older, and she had to learn a new trade, she didn't even drive 
a car, she had to go out to the prison with friends. And it was 
just a tragic thing. And she waited on him for 30 years.
    And so we wanted to get documents from the Justice 
Department to show what happened. We have some documents, which 
pretty conclusively show that the FBI was involved in this 
cover-up, that they were working with the underworld figures 
who were informants, to pacify them and to help them so that 
they could get other Mafia individuals. So they threw Salvati 
and some others to the wolves. But Salvati in particular was a 
case that was very, very wrong.
    So we've asked the Justice Department for documents for Mr. 
Salvati. And today, they're hiding behind campaign finance 
scandals and things that happened in the previous 
administration, or administrations. They're not going to give 
us the documents on Mr. Salvati which might help us get 
compensation for him for the 30 some years he spent in prison 
for something he didn't do. And the White House has issued this 
Executive order and they're blocking us.
    Now, I don't intend, as the chairman of this committee, to 
let this stand. I talked to the President's counsel this 
morning about this, and I am prepared to hold a whole series of 
hearings based upon the use of executive privilege in the past 
and whether or not the President is rightfully using executive 
privilege now. I don't believe he is, and I don't believe 
anybody who's followed these cases believes he's right, either.
    Now, bear in mind that I think he's doing an outstanding 
job as President of the United States. But this is not a 
monarchy. This is an equal branch Government. We have the 
judicial, the executive and the legislative. And the 
legislative branch has oversight responsibilities to make sure 
there's no corruption in the executive branch. There's been 
many corruption scandals in the past. There's been Teapot Dome, 
there's been Watergate, there's been a whole host of scandals 
in the past. We even had scandals that we looked at in the last 
administration.
    But at least we could look at those. And the doors are 
being closed to the Congress of the United States by the 
executive branch as far as the White House is concerned, and 
now they're closing that door as far as the Justice Department 
is concerned. And it's wrong. It's wrong.
    You're hearing this from a Republican Congressman who 
supported President Bush and still who supports him in his 
efforts in the economy, as far as the economy and the war is 
concerned. I supported Reagan, I supported Bush and George W. 
Bush. And I don't know if George W. Bush knows the gravity of 
this or not. He's probably taking the advice of his legal 
counsel and the Attorney General and the people over at the 
Justice Department, some of whom we have here today.
    But this is wrong. And I want all of those involved to know 
that we may not be able to get standing in court, because we 
probably have to go to the leadership to get the whole House 
involved in a suit to get this edict by the President reversed. 
We might not even get it done then. But what I can do is, I can 
hold hearing after hearing after hearing. And these television 
cameras, you see one here today, there's going to be a whole 
raft of them in here before it's over with.
    Because the American people need to know that while we 
appreciate what the President of the United States is doing in 
the war and as far as the economy is concerned, we believe that 
the Congress of the United States has a justifiable position 
and right to oversee the executive branch of this Government. 
And if this President and if his legal staff continues to try 
to block us from getting access to records at the White House 
or at the Justice Department to which we are entitled, then 
they're going to have to deal with this committee day in and 
day out for the next year as long as I'm chairman.
    And I realize the political realities of my position. I'm 
sure that a lot of my colleagues on the Republican side are 
going to say, ``hey, why are you doing this?'' I'm doing this 
not because I'm a Republican or because I might have been a 
Democrat. I'm doing it because it's right. The Congress of the 
United States has the right of oversight over the executive 
branch. And when any President, Democrat or Republican, tries 
to block that right, then we have the obligation to take them 
to task.
    With that, I yield to Mr. Waxman.
    [The prepared statement of Hon. Dan Burton follows:]
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    Mr. Waxman. Thank you very much, Mr. Chairman, for yielding 
to me. I want to commend you on holding this hearing, and I 
want to tell you that your determination is one that's shared 
by others on this committee as well. Because what you're 
fighting for is a matter of principle.
    This hearing addresses a fundamental issue in our 
democracy, the accountability of the executive branch to 
Congress, and to the American people. I agree with Chairman 
Burton, the Justice Department's new policy not to turn over 
any deliberative documents to Congress that relate in any way 
to criminal cases, even closed criminal cases, goes too far.
    Over the past 5 years, Chairman Burton often complained of 
stonewalling by the Clinton administration. I have to say that 
compared to this administration, the Clinton administration was 
an open book. The sheer volume of information provided to this 
committee, over 1.2 million pages, dwarfs what the Bush 
administration has supplied.
    Moreover, we received details of discussions between 
President Clinton and his closest advisors, internal e-mails 
from the Office of the Vice President, documents describing 
contacts between the administration and campaign contributors 
and confidential communications from the White House counsel's 
office.
    In the pardon controversy, after he left office, President 
Clinton allowed his lawyers and most senior advisors to testify 
before our committee, and he allowed the committee staff to 
review raw notes of his conversations with a foreign head of 
state. My staff has prepared a report detailing the extent of 
the information produced by the Clinton administration, and I 
ask unanimous consent that it be introduced into the record.
    Mr. Shays [assuming Chair]. Without objection, so ordered.
    [The information referred to follows:]
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    Mr. Waxman. The Bush administration is taking a completely 
different approach. The Bush administration appears to believe 
it is entitled to operate outside the public eye and outside 
the view of elected representatives in Congress. They 
enthusiastically embrace secrecy, and they've operated as if 
they had no reason to be accountable to the public or to the 
Congress.
    The fact of the matter is, and the chairman so eloquently 
expressed this, that our system is one of checks and balances. 
The Congress, through its oversight responsibility, provides an 
important check to abuse of power. That is why the Constitution 
gave us this specific obligation to look at the actions of the 
executive branch.
    President Bush unilaterally issued an Executive order that 
changed the disclosure requirements in the Presidential Records 
Act of 1987. His order drastically restricted public access to 
important Presidential records. Congressman Dingell and I, 
along with the General Accounting Office, have been trying 
since April to find out how Vice President Cheney's Energy Task 
Force operated.
    There have been news reports that the Task Force met 
privately with major campaign contributors to discuss energy 
policy, while environmental and consumer organizations were 
denied similar access. One of those contributors, of course, is 
Kenneth Lay, the CEO of Enron. But the White House has refused 
to turn over the relevant information to us or the General 
Accounting Office. Compare that with the Clinton administration 
making available to the General Accounting Office all the 
information about the Clinton Health Care Task Force, chaired 
by Mrs. Clinton.
    The Bush administration has adopted positions in 
international negotiations over the framework convention on 
tobacco control that would weaken the treaty and benefit the 
tobacco companies that have been major contributors to the Bush 
campaign. In fact, I obtained information that indicates U.S. 
negotiators supported 10 of the 11 weakening changes sought by 
Philip Morris. I have written to the President and other 
executive branch agencies to learn the basis for these 
positions, but the administration has refused to provide most 
of the relevant information.
    This hearing today focuses on another troubling example of 
an administration loath to face scrutiny. There have been well 
publicized allegations that FBI agents in the Boston office of 
the FBI willfully ignored crimes committed by confidential 
informants and cooperating witnesses who gave them information 
on organized crime in New England. These allegations have been 
substantiated. Judge Mark Wolf, a U.S. District Judge in 
Boston, conducted extensive evidentiary hearings in 1998. He 
found instances of extensive misconduct and criminal conduct in 
that office. A former special agent, John Connelly, is now 
under indictment.
    Yet despite this record, the Attorney General is refusing 
to turn over key materials relating to these allegations. These 
materials include documents that relate to closed cases that 
this committee is clearly entitled to receive.
    I believe the administration needs to be more forthcoming 
with this committee and the Congress. An imperial Presidency or 
an imperial Justice Department conflicts with the fundamental 
democratic principles of our Nation.
    I thank the chairman again for this hearing and yield back 
the balance of my time.
    [The prepared statement of Hon. Henry A. Waxman follows:]
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    Mr. Burton [resuming Chair]. Thank you, Mr. Waxman.
    We will go to Mr. Gilman in just a second. I want to get a 
couple of formal things done.
    I ask unanimous consent that all Members' and witnesses' 
written and opening statements be included in the record. 
Without objection, so ordered.
    I ask unanimous consent that all articles, exhibits and 
extraneous or tabular material referred to be included in the 
record. Without objection, so ordered.
    I also ask unanimous consent that questioning in the matter 
under consideration proceed under clause 2(j)(2) of House rule 
11, and committee rule 14, in which the chairman and ranking 
minority member allocate time to committee counsel as they deem 
appropriate for extended questioning, not to exceed 60 minutes, 
divided equally between the majority and the minority. And 
without objection, so ordered.
    I also ask unanimous consent that our good friends, 
Representatives Frank, Delahunt and Meehan, who are not members 
of the committee, be permitted to participate in today's 
hearing. Without objection, so ordered.
    I will now yield to Mr. Gilman.
    Mr. Gilman. Thank you, Mr. Chairman.
    I want to thank you for conducting this hearing on a matter 
of importance not only for this committee but for the future of 
congressional relations with the Justice Department. We want to 
make sure those relations are going to be in good stead.
    The Justice Department has recently indicated that it will 
no longer comply with congressional requests for deliberative 
documents pertaining to criminal investigations, whether open 
or closed. Such a move signals a troubling and arguably 
unconstitutional shift in policy between the executive and 
legislative branches of our Government.
    Although it's possible to understand that matters of 
national security may be grounds for limiting congressional 
access to Federal criminal investigation documents, I cannot 
understand Justice blocking congressional oversight entirely. 
It's particularly troubling that the Justice Department is 
restricting this committee's access to documents that would be 
germane to the case of the FBI's handling of confidential 
informants in the Boston organized crime investigation.
    At the initial hearing on this issue on May 3rd, we heard 
some very strong testimony of Mr. Joseph Salvati, who had been 
wrongly accused and imprisoned for murder for nearly three 
decades. At that hearing, questions were raised about the FBI's 
knowledge of Mr. Salvati's innocence. Therefore, it would seem 
particularly irresponsible for Justice to deny this committee 
access to relevant documents in that matter.
    Accordingly, we will welcome the comments of the 
representatives of Justice who are before the committee today, 
and we look forward to their clarification of this new policy.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Benjamin A. Gilman 
follows:]
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[GRAPHIC] [TIFF OMITTED] T8051.020

    Mr. Burton. Thank you, Mr. Gilman.
    Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman. I want to thank you, 
Mr. Chairman, for holding this hearing today. I think we were 
all moved and deeply troubled by the testimony that we heard 
during our May hearing concerning the FBI's controversial 
handling of the organized crime investigations in Boston, and 
the case of, in particular, Joseph Salvati. I appreciate the 
opportunity to hear today from the Department of Justice about 
why it continues to obstruct efforts to bring about more 
information on this situation.
    As others have mentioned here, the genius of our political 
system lies in its checks and balances. As members of this 
committee, we have a responsibility to perform an oversight 
role of other branches of Government. As a Member of Congress 
from the Commonwealth of Massachusetts, I feel particularly 
responsible to see that the FBI cooperates with efforts to 
ensure that the victims of potentially grossly improper 
relationships between FBI agents and members of Boston's 
organized crime see justice done.
    For this reason, I'm concerned about the Justice 
Department's decision not to turn over any internal 
deliberative documents pertaining to criminal investigation, 
even if such documents are responsive to committee subpoenas. 
This has a direct impact on information subpoenaed by the 
committee, related to the FBI's use of informants in New 
England's organized crime investigations.
    The FBI has claimed that the committee's ability to 
subpoena documents may lead to a chilling effect where agents 
are unable to act freely for fear of their decisionmaking 
documents being subpoenaed. I'm more concerned about the effect 
of unchecked secrecy on the FBI's behavior. For almost 40 
years, FBI agents in Boston are said to have recruited members 
of organized crime to act as Bureau informants. At the same 
time, it can be argued that these agents may well have been 
recruited themselves by organized crime.
    Instead of upholding the law or protecting the innocent, 
these agents are alleged to have protected their informants. 
The most disturbing aspect of these cases, of course, is that 
the FBI and other branches of law enforcement knew that some of 
the men they helped send to prison were innocent of crimes for 
which they were found guilty. Evidence also indicates that FBI 
Director J. Edgar Hoover may well have known himself that 
innocent men were being convicted on the basis of perjured 
testimony.
    As a result of these actions, the FBI's credibility has 
been seriously damaged and more importantly, the lives of 
countless individuals were ruined. Men innocent of the crimes 
for which they were convicted were sent to jail for decades. 
Joseph Salvati, from whom we heard in May, was sentenced to the 
electric chair. Thankfully, he has survived, but others were 
not as fortunate. Two of them died in prison.
    If we're going to get to the bottom of these cases and 
prevent other similar situations from occurring in the future, 
we must ensure that the committee has access to the documents 
it needs. I hope we can get some of these satisfactory answers 
from the Justice Department witnesses today.
    I look forward to Mr. Horowitz' testimony and I hope 
particularly that he'll elaborate on some of the points where 
the Justice Department argues that this committee's legitimate 
oversight role doesn't extend to the Justice Department's 
exercise of prosecutorial discretion in individual cases. I 
want to know how is that so, when in fact it appears that it 
may well be a policy, not just a decision on an individual 
case, but a policy by the Department to engage in this kind of 
behavior.
    I think that's something this committee should obviously 
look into. It's not just in New England and Boston, we have 
cases that we're hearing about now across the country, where 
there's been evidence that has been testified to improperly, 
the DNA evidence situations from many people incarcerated over 
a long period of time.
    I think we ought to take this investigation with the 
chairman to the whole range of issues of people that have been 
unjustly imprisoned for what appears to be very wrongful 
conduct on the part of law enforcement agencies under the 
Federal purview. Those people are every bit as deserving as the 
people we focus on today for some attention.
    If these are deliberative documents, Mr. Horowitz, I'd like 
you to define for us what you think your definition of 
deliberative documents are and why they fit the nature of 
privileged in the deliberative process here. I think that we 
are supposed to, according to the case law, as most of us read 
it, analyze this as a case by case basis, because it's a 
qualified privilege, not an absolute privilege.
    When we balance, the fact is that the relevance and 
availability of the evidence, the role of the executive branch 
and the possibility of future timidity by Government employees 
against what has happened here, I think that it clearly comes 
down to that this evidence, this information ought to be 
reported to this committee and given to them so that we can 
make some policy decisions going forward about this range of 
cases and what has happened.
    Last, you've contended that the release of the Boston FBI 
documents would undermine an active criminal investigation. 
Presumably, the investigations that are going on are closed in 
a lot of these instances right now. There's no argument, I 
think, that can be made as to why documents shouldn't be 
released with respect to closed criminal cases.
    So if you would address those matters for this committee, I 
think we could get on with our work on dealing with the 
particulars of the cases mentioned here today, and that range 
of cases across the country where the behavior of the FBI in 
dealing with informants, on tainted evidence, on testimony in 
court about DNA evidence that resulted in people being 
incarcerated improperly is something we can continue to do and 
maybe make some policy decisions and legislative changes here, 
so that American citizens are less likely to find that to be a 
subject of those procedures as we go forward.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Burton. Thank you, Mr. Tierney.
    Mrs. Morella.
    Mrs. Morella. Thank you, Mr. Chairman. I want to thank you, 
Chairman Burton, and Ranking Member Waxman, for holding this 
hearing today.
    Today's hearing on whether Congress can ever review 
deliberative documents prepared during an investigation by the 
executive branch I think is of utmost importance. The Justice 
Department's proposed new policy that Congress would never be 
able to review deliberative documents is a radical change in 
policy. Up to this point, Congress has always been permitted 
access to deliberative documents and 3 years ago, then-Senator 
Ashcroft admonished Attorney General Reno for refusing to turn 
over deliberative documents in regard to a certain 
investigation and accused her of stonewalling.
    Now it seems that Attorney General Ashcroft and the 
administration feel that allowing Congress to review 
deliberative documents is bad policy. I look forward to the 
testimony today from the Justice Department so that they can 
explain why the previous policy is now such a threat. Why does 
the Department feel that Congress should have basically no 
oversight in situations involving an act of corruption by a 
high Justice Department official or a high White House 
official?
    This new policy also seems puzzling given Attorney General 
Ashcroft's remarks upon confirmation last winter when he said, 
``I will confront injustice by leading a professional Justice 
Department that is free from politics, that is uncompromisingly 
fair, a Department defined by integrity and dedicated to 
upholding the rule of law. The Justice Department will 
vigorously enforce the law guaranteeing rights for the 
advancement of all Americans.''
    I wonder if Mr. Salvati or his family feel that this new 
policy is ``uncompromisingly fair,'' or would advance the 
rights of all Americans. I look forward to the testimony and I 
yield back the balance of my time, Mr. Chairman.
    [The prepared statement of Hon. Constance A. Morella 
follows:]
[GRAPHIC] [TIFF OMITTED] T8051.021

[GRAPHIC] [TIFF OMITTED] T8051.022

    Mr. Burton. Thank you, Mrs. Morella.
    Mr. Shays.
    Mr. Shays. Thank you, Mr. Chairman, for holding this very 
important hearing. The grossest imaginable miscarriage of 
justice consigned Joseph Salvati to a prison cell for 30 years 
for a crime he did not commit. Law enforcement officials from 
the Federal Bureau of Investigation, FBI headquarters to local 
police department, knew he was innocent. The man was innocent.
    But these governments hid exculpatory evidence to protect 
informants in so-called bigger cases. Today we are still trying 
to uncover some of that hidden evidence concealed for so long 
by a prosecutory system now claiming the need for almost total 
immunity from public scrutiny. If any case rebutted that claim, 
it is Mr. Salvati's, an innocent man sent to prison for 30 
years by his own Government for a crime they knew he never 
committed.
    We want, and more importantly, need to know how that could 
happen in the United States of America. But unfortunately, the 
Government that facilitated this injustice fights to cover it 
up. The protection of confidential informants by law 
enforcement in what can amount to a non-judicial street 
immunity and an official license to commit further crimes is a 
national practice and a national outrage. Only thorough and 
timely oversight can address that corruption that plagues the 
use of informants. To do that oversight we need access to the 
documents supporting prosecutory decisions.
    No entire class or category of document can be arbitrarily 
declared beyond congressional reach. Conceding total exclusion 
of so-called pre-decisional material produced by the Department 
of Justice, the Department of Defense or any agency, fatally 
undermines congressional oversight authority and cannot be 
allowed to stand, no matter which political party constitutes 
the majority of Congress and no matter which political party is 
in charge of the White House.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Christopher Shays follows:]
    [GRAPHIC] [TIFF OMITTED] T8051.023
    
    Mr. Burton. Thank you, Mr. Shays.
    Mr. Horn.
    Mr. Horn. Thank you, Mr. Chairman.
    This has to be one of the major hearings we have. And I 
want to put on the record that there's a new Attorney General, 
there's a new Director of the FBI, and it needs to clean house 
in the Boston area of FBI agents that did not be a person that 
would be of honor. We need to clean that house.
    It's like the little boy outside the stadium, hey, say you 
didn't do it, Joe. Well, if Joe did it, let's clean house. All 
of us that grew up in the 1930's, 1940's, 1950's, we looked to 
the FBI as a great service. When Mr. Hoover was brought over by 
Attorney General Stone to clean house after the first World 
War, he cleaned house. On the other hand, Mr. Hoover didn't 
tangle with the Mafia. He tangled with cars, bank robberies, 
all the rest.
    And now we need to make sure that people that are in jail 
should not be in jail or prison, and that they must be let out 
and there ought to be compensation for them if they've got 10, 
20, 30, and we saw the person for 30 years. It's wrong and a 
country that prepares itself and thinks that we are good laws, 
good regulations and we expect that of the Department of 
Justice, the Federal Bureau of Investigation, and I would hope 
people come forth within the FBI to make sure we don't have to 
go through this again.
    Mr. Burton. Thank you, Mr. Horn.
    Mr. LaTourette.
    Mr. LaTourette. Thank you, Mr. Chairman.
    Mr. Chairman, I have to admit to being behind the curve. I 
came down this morning thinking we were going to receive 
information and evidence from the Department of Justice 
relative to the prosecution of Joseph Salvati. I was looking 
forward very much to that hearing, because of the fact that the 
previous hearing that this committee had held horrified me that 
our Government could participate in the type of activity that 
led to his incarceration and some of the other activities.
    After that hearing, my friend and colleague Mr. Delahunt 
was kind enough to give me a book called Black Sabbath that I 
read from cover to cover. I was further horrified, and that 
made me all the more anxious to receive the information we were 
expected to receive today. When I say I'm behind the curve, 
it's because ever since the terrorist attacks of September 
11th, we all are equipped with these Blackberries. It was on my 
Blackberry as I walked from my office that I read the wire 
story that indicated that the President had issued this 
Executive order.
    I've had the pleasure of serving on this committee for 7 
years. I was here when Chairman Clinger was here, and I've 
served every year that you've been the chairman, Chairman 
Burton. And I can remember vividly the frustration that many of 
us on this side of the aisle felt when we would make document 
requests, when we would ask for stuff from the previous 
administration, when we were met with silence.
    I know that one of our colleagues who isn't here, Mr. 
Souder, his favorite opening statement was to put up a chart 
about all the people that had fled the country and escaped the 
committee's jurisdiction. It seems to me that the new 
administration has avoided that problem of people leaving the 
jurisdiction or not answering things because they're now 
covered by a blanket of claim of executive privilege.
    It really is beyond me how this is a legitimate exercise of 
executive privilege. It is beyond me that the Justice 
Department and the administration would not want those who 
participated in what is nothing less than a conspiracy to 
deprive a man of his freedom for 30 years, wouldn't want that 
to be known by a co-equal branch of the Government and then by 
the American public, so that this thing could be sorted out.
    It causes me a great deal of difficulty as a Republican, 
because we're being asked by the same administration and 
Justice Department to look at, in light of what's happened in 
this country as a result of terrorist activities, of 
restricting perhaps some individual liberties and enhancing 
police powers. That combination of enhanced police powers then 
saying, well, we're going to enhance police powers but we're 
not going to tell you anything about it after we've done it I 
think is the most obnoxious form of doing business that I can 
think of.
    I really hope, as a supporter of the President, that the 
President revisits this and the Attorney General revisits this. 
And that you guys give to the U.S. Congress the documents that 
I think we're entitled to, so we can do our job just like 
you're expected to do yours. Thank you.
    Mr. Burton. Thank you, Mr. LaTourette.
    Judge Duncan.
    Mr. Duncan. Thank you, Mr. Chairman.
    First, I want to commend you for calling this hearing and 
say that I agree with everything you said in your opening 
statement. I hope that you do continue to call hearings on 
this. I intend to speak about this in special orders from the 
floor of the House over C-SPAN and hope that will call even 
more attention to it. Because I think this is one of the 
greatest miscarriages of justice that has ever occurred in this 
Nation, to keep a man in prison for more than 30 years when the 
FBI knew all along that he was innocent of the charges.
    Just last week in the Washington Post, Joseph Califano, who 
was former top assistant to President Johnson and a former 
Secretary of Health and Human Services under President Carter, 
wrote that in all of our concerns about terrorism, he said we 
are ``missing an even more troubling danger, the extraordinary 
increase in Federal police personnel and power.'' That brought 
to my mind a cover story that was written in 1993 in Forbes 
Magazine about the Justice Department. And Forbes Magazine, as 
all of us know, is a very conservative, pro-business magazine. 
But it's certainly not any radical, left-wing magazine.
    But they reported that the Justice Department had more than 
quadrupled in size and budget since 1980. And they said that 
they had U.S. attorneys falling all over themselves trying to 
come up with cases to prosecute. The article said too often in 
Federal law enforcement, the name of the game is publicity, not 
reduction in the amount of crime. It was a stinging indictment 
of the Justice Department.
    But the arrogance of the Federal bureaucracy seems to grow 
with each passing year, so that now we've ended up with a 
government of, by and for the bureaucrats, instead of one 
that's of, by and for the people. This is another example of 
that increasing arrogance and abuse of power, I think, that we 
are seeing far too often within the Federal Government.
    I remember, I don't usually see the publications of the 
ACLU, but in 1996, I received a notice that I had received a 
zero rating from the ACLU. I spent 7\1/2\ years as a criminal 
court judge in Tennessee trying felony criminal cases, the 
murders, rapes, armed robberies, more serious criminal cases. I 
am certainly no great civil libertarian and I've always been 
considered very pro-law enforcement.
    But I agree with Secretary Califano, and I am becoming very 
concerned about the arrogance that we're seeing within the FBI 
and within the Justice Department. I hope, Mr. Chairman, that 
you and this committee stay on top of this. Because if it gets 
any more out of control, we're going to be in serious trouble 
in this Nation.
    I yield back the balance of my time.
    Mr. Burton. Thank you, Mr. Duncan. You may rest assured 
that there will be numerous hearings on this. I'm sure the 
gentleman before us today will get to know us quite well.
    Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman, for the invitation 
extended to participate in these hearings. Let me preface my 
remarks by saying, if you and the committee make a decision to 
go to the floor of the House in terms of enforcing the subpoena 
that you will have my support, and I'm sure that Mr. Frank 
would be so inclined, also. I would encourage our leadership to 
support any move along those lines.
    Let me thank you, by the way, for your perseverance, your 
persistence and even your courage. These days, when a Member of 
Congress speaks out on something unpopular, he takes or she 
takes the risk of being called some rather ugly names, really 
for questioning the exercise of the department's authority. I 
want to commend you, Mr. Chairman, for not being intimidated.
    The use of executive privilege to shield officials from 
embarrassing revelations is nothing new. Every administration 
has done it. You pointed out instances where the Clinton 
administration was guilty of it. Doesn't make any difference 
whether it's Republican or Democratic.
    But I'm unaware of any previous claim of privilege that is 
as sweeping as this particular claim. That is that the Justice 
Department would curtail even in closed cases, cases that have 
been in the archives for some time, access to all deliberative 
documents pertaining to criminal investigations. To me it's 
just unimaginable that the Department should take that 
position.
    Others have used the term arrogant. In my opinion, that is 
mild at best in its description. There's no doubt that the 
courts in a long line of decisions have recognized the so-
called deliberative process privilege of which at least until 
this point in time, the Department seems to have relied. But 
the privilege has never been absolute, never been absolute. It 
can be overcome, according to those decisions, when the 
public's need for information outweighs the Government's need 
to withhold it.
    I want to read this, this is from a 1997 case. ``I would 
suggest it's a leading case on the subject. When there is 
reason to believe the documents sought may shed light on 
Government misconduct, the privilege is routinely denied on the 
grounds that shielding internal Government deliberations in 
this context does not serve the public's interest in honest, 
effective government.''
    Now, the Department seeks to free itself from the burden of 
making its case by asserting this blanket privilege. I would 
infer that on the one hand, there's a lack of confidence in its 
ability to withstand scrutiny. And by the way, it wasn't this 
Department of Justice where these instances occurred. But even 
that, on the other hand, it's the arrogant assumption that in 
light of recent events, Congress will not have the nerve to 
hold them to account.
    Well, I think they ran into the wrong chairman and the 
wrong committee and hopefully the wrong Congress. Because 
everybody supports, obviously, the administration's efforts to 
address what happened in the aftermath of September 11th. But 
we can't prevail in our fight against terrorism and tyranny by 
scrapping the checks and balances that preserve us from tyranny 
here at home. We should never give carte blanche to executive 
agencies to make their own rules without congressional 
oversight, particularly when these agencies have a well 
documented history of abusing the formidable powers entrusted 
to them. Particularly when we just conferred upon them within 
the last 3 months additional broad powers.
    Now, it's been said many times over, and it will be I'm 
sure a mantra that will be repeated again and again, that the 
FBI's mishandling of confidential informants in Boston is among 
the most infamous and cynical episodes in the modern history of 
law enforcement in this country. But what we see now are 
repeated attempts which really exacerbate that reality to cover 
up its wrongdoing by withholding documents and information 
subpoenaed by Congress. It should be noted that the court, 
Judge Wolf, had the same exact problem in those criminal 
proceedings that are currently being prosecuted in the Federal 
District Court of Boston.
    I know you're frustrated, Mr. Chairman, but just imagine 
Judge Wolf, what his frustration was. Again and again and 
again, he expresses his frustration with the Department of 
Justice. And again I have a quote I want to issue from his 
decision. This is Judge Wolf, ``I issued general orders that 
had the effect of requiring the production of FBI documents 
memorializing Brian Halloran's claim that Bulger and Flemmi''--
those were the FBI's prize informants--``were responsible for 
the murder of Roger Wheeler.''
    ``When found by special agent Stanley Moody, the documents 
were given to Barry Mawn, the special agent in charge of the 
FBI in Boston to review, because Moody said in an affidavit 
that contained information that was obviously highly singular 
and sensitive. They were not, however, produced in discovery in 
this case in time for the key witnesses, those were the FBI 
officials, Rico and Morris, to be questioned about them. They 
were not produced in time for the court and the lawyers 
involved in that particular case to have them available to 
them. Rather, they were belatedly disclosed after repeated 
inquiries by the court.''
    ``Similarly important FBI documents concerning a murder 
victim, John McIntyre, were also improperly withheld by agents 
of the Boston FBI until it was too late to question relevant 
witnesses concerning them.'' That's the end of the applicable 
extract from Judge Wolf's decision.
    And Mr. Chairman, you ought to be aware that myself and my 
colleagues that serve on the Judiciary Committee, Mr. Frank and 
Mr. Meehan, sent a letter to the Attorney General expressing, 
just expressing shock and outrage, that in the case of John 
McIntyre, the position of the Department of Justice was, in a 
suit brought by the family, that they didn't bring it in a 
timely fashion, because they should have known, they should 
have known that their son was murdered pursuant to information 
provided by FBI agents to Flemmi and Bulger.
    Now, Judge Wolf goes on to note, by the way, in that same 
decision, ``despite my published judicial findings of 
misconduct, Mawn has been promoted to Assistant Director of the 
FBI.'' The judge concluded that these experiences were not 
isolated occurrences, ``of a long pattern of the FBI ignoring 
the Government's constitutional and statutory duties to be 
candid with the courts.''
    He quoted with approval the comments of two Senate 
Republicans that the confirmation hearings of Bob Mueller 
regarding, ``a culture of concealment at the FBI,'' and ``a 
management culture so arrogant that ignoring the rules and 
covering up is the order of the day.'' These are quotes by 
those two referenced members of the Senate Judiciary Committee.
    One can just imagine where we would be today without Judge 
Wolf. We wouldn't be here. And nobody would know that Joe 
Salvati spent 30 plus years of his life in jail for a crime 
that he didn't commit. Nor would we be aware of the absolutely 
egregious misconduct of FBI agents in the Boston office. You 
know, I guess I shouldn't be surprised that the Department of 
Justice wants to set its own rules. Recently, there was, 
several years ago, legislation passed called the McDade Act. 
They're up here lobbying all the time trying to erode it, so 
they can write their own rules.
    Well, you know, thank you, Mr. Chairman, for this hearing 
and thank you for your refusal to accede to intimidation. I 
yield back.
    [The prepared statement of Hon. William D. Delahunt 
follows:]
[GRAPHIC] [TIFF OMITTED] T8051.024

[GRAPHIC] [TIFF OMITTED] T8051.025

[GRAPHIC] [TIFF OMITTED] T8051.026

    Mr. Burton. Thank you very much.
    Mr. Frank.
    Mr. Frank. Mr. Chairman, I want to begin by apologizing to 
you. Very seriously, like many others, you and I differ on some 
things. I did think that, in the past, I had a question about 
whether there was too much partisanship in some of your 
approaches. And by the intellectual integrity you are 
displaying today, I think you've made it clear that was not a 
basis for what you were doing. And I admire enormously your 
commitment to honesty and to the separation of powers properly 
understood.
    I from time to time during the previous administration 
differed with the administration. And I understand that there 
are people in any administration who regard it as absolutely 
impermissible that Members of Congress of their own party are 
to disagree with them. The general view of most people in the 
administration, when it comes to the House of Representatives, 
is that the only place there should be checks and balances is 
in the Members' bank accounts. And any expression of 
independence by the Members is taken as somehow disloyalty.
    And you are showing today a commitment to fundamental 
principle that is rare in this city, and I want to acknowledge 
it. I want to also stress the importance for what we are 
talking about. We rely on the FBI. We gave the FBI 
significantly increased law enforcement powers and self 
defense. The problem is that there are fears that those powers 
will not be wielded with the sensitivity, the individual 
rights, that is necessary.
    I was struck, in the President's Executive order, by this 
phrase: The Founders' fundamental purposes in establishing the 
separation of powers in the Constitution was to protect 
individual liberty. I would note, by the way, that in that 
regard, the most important separation of powers is the one 
between the judicial and executive branches. I hope that the 
people who wrote this Executive order will remember that when 
we talk about who tried whom, that the relevance of the 
separation of powers to protecting individual liberty means 
that you separate the executive and judicial branches in 
individual adjudications. You don't just use the separation of 
powers to keep Congress from being annoying.
    My colleague from Massachusetts made reference to this 
McIntyre case, and I would ask, Mr. Chairman, if you would put 
this letter that Mr. Meehan, Mr. Delahunt and I sent into the 
record.
    Mr. Burton. Without objection.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T8051.027
    
    [GRAPHIC] [TIFF OMITTED] T8051.028
    
    Mr. Frank. And I should note how much I appreciate the fact 
that you have found a place for refugees from a somewhat 
somnolent Judiciary Committee in this regard by exercising your 
legitimate jurisdiction in this important case, and 
accommodating those of us in the Judiciary Committee who were 
homeless on this particular issue.
    But what happened, as Mr. Delahunt said, is very clear. 
First, the FBI withholds documents that would give evidence 
about a murder that was committed by informants working for the 
FBI. Then when the information is finally forced out by a 
courageous judge, Mark Wolf, a Republican appointee, both as a 
member of the Justice Department and as a judge, when he 
courageously forces this into the public eye, and the family of 
the murdered man says, wait a minute, the FBI, the Federal 
Government, may have been complicit in the murder of our 
relative, we're going to sue them, the FBI, having withheld the 
information, now says, oh, we're sorry, it's too late for you 
to sue, because you should have sued earlier, during the period 
when the FBI was withholding the information which would have 
been the basis for the lawsuit.
    It is just appalling that they would do this. And it's 
equally appalling that the current administration would somehow 
feel the need to cover up the mistakes of previous 
administrations. I don't know what bureaucratic reflex drives 
people to do this. I've seen it, I saw the Clinton 
administration defending the errors of the Bush and Reagan 
administration. Now we see the Bush administration defending 
the errors of the Clinton administration. There's no legitimate 
purpose here.
    And I would just finally close with this. I invite the 
Justice Department, the FBI and others, I read the Executive 
order which the FBI prepared so the President can send them the 
instruction that they wanted him to give them, and I do believe 
the President's kind of busy right now, and I would hope that 
if we were in a situation in which more attention could have 
been given, I would have hoped that something this sweeping 
would not have been issued. The FBI successfully lobbied to get 
this kind of blanket exemption for itself.
    But I would invite you, give us the evidence that previous 
efforts by the Congress to do oversight somehow interfered with 
your function. Give us the evidence that crimes went 
unprosecuted and evil went unchecked because the Members of 
Congress thought in a responsible way to exercise oversight. I 
can't think of any. And I must tell you, Mr. Chairman, that I 
believe if there were such cases, we'd be confronting them now.
    So it's precisely because this is a time when enhanced law 
enforcement is so important that responsible law enforcement is 
equally important. Just one other point, and I appreciate your 
indulgence.
    One of the problems civil libertarians have is, and I would 
just say to my colleague from Tennessee, I'll be glad to make 
sure he gets more ACLU publications, if he's having trouble 
reaching them, we'll get him on the mailing list. They'll have 
to be e-mailed, of course, since they can't be mailed.
    But one of the problems civil libertarians have is, they 
have a counter-intuitive point to make. When people decline to 
testify using their self-incrimination privilege, legally you 
are to draw no inference from that. But practically, anybody 
with a brain does draw inferences from it. It is overwhelming 
human instinct to say, hey, if she had something to say in 
order to defend, she probably would have said it. It is very 
rare that you look at the privilege of self-incrimination being 
invoked and don't assume that people have got something to 
hide.
    Now, legally, we have to abide by the privilege of self-
incrimination in any kind of a prosecution. But as a practical 
matter, no, very few of us accept the notion that people refuse 
to testify just because they are defending some abstract 
principle in every case. So the blanket refusal to share these 
documents, the absolute insistence on not sharing this 
information in my mind creates a very strong presumption that 
the FBI and the Justice Department know that these mistakes 
were made by their predecessors.
    And the refusal to let us work together so that we can 
prevent these kinds of mistakes being made in the future is 
very troubling.
    Mr. Chairman, I again want to express my appreciation and 
my admiration for the role you're playing in this regard.
    Mr. Burton. Thank you, Mr. Frank.
    Mr. Cummings, did you have a comment?
    Mr. Cummings. I don't have anything, Mr. Chairman. I have a 
statement that I'll submit for the record.
    Mr. Burton. OK, we'll accept that for the record, without 
objection.
    [The prepared statement of Hon. Elijah E. Cummings 
follows:]
[GRAPHIC] [TIFF OMITTED] T8051.029

[GRAPHIC] [TIFF OMITTED] T8051.030

    Mr. Burton. Let me just say, in opening, before we go to 
you, Mr. Horowitz, because I know you probably have an opening 
statement, and I hope all of your compatriots here from the 
Justice Department and the White House have paid particular 
attention. We have liberals, moderates and conservatives on 
both sides of the aisle here, and everyone is in agreement. You 
guys are making a big mistake, because we might even be able to 
go to the floor and take this thing to court. I just don't 
understand it.
    And with that, Mr. Horowitz, do you have an opening 
statement? Oh, excuse me, we'd like for you to be sworn in 
first. Will you please stand?
    [Witnesses sworn.]
    Mr. Burton. Are you going to have anybody else testifying 
with you from the Justice Department?
    Mr. Horowitz. Mr. Whelan is here from our Office of Legal 
Counsel, in case there are particular questions.
    Mr. Burton. Yes, and anyone else who may be participating 
in the testimony, would you please stand and be sworn?
    [Witnesses sworn.]
    Mr. Burton. OK, you may start, Mr. Horowitz.

  STATEMENT OF MICHAEL E. HOROWITZ, CHIEF OF STAFF, CRIMINAL 
  DIVISION, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY EDWARD 
  WHELAN, PRINCIPAL DEPUTY, ASSISTANT ATTORNEY GENERAL, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Horowitz. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here before the committee to present the 
Department's views concerning the President's invocation of 
executive privilege.
    Let me stress at the outset that the Department fully 
understands that the committee's in these documents is based 
upon its concern about the integrity of the Department's 
actions in prosecuting or declining to prosecute particular 
individuals. We all want to be sure that such decisions are 
based upon the evidence and the law, free from political and 
other improper influences. Indeed, it is for that very reason, 
to protect the integrity of Federal prosecutive decisions, that 
the Attorney General, supported by the President, has declined 
to produce the internal deliberative memoranda you seek.
    The Department has long recognized the interests of the 
Congress in gathering information about how statutes are 
applied and how funds are spent, and Congress has articulated 
an interest in obtaining information about specific cases in 
order to make informed decisions about legislative and policy 
issues. That is why the Department has promptly responded on 
numerous occasions to this committee's requests for briefings 
about prosecutive decisions by the Department, including 
several of the matters referenced in the committee's subpoenas.
    During those briefings, senior Department officials have 
advised the committee of the reasons why a particular 
determination was made by the ultimate decisionmaker at the 
Department, whether that decisionmaker was the Attorney 
General, an Assistant Attorney General or some other 
supervisory official. Since January 22, 2001, the Department 
has literally conducted dozens of briefings for this committee 
about a variety of topics and has produced thousands of pages 
of documents specifically concerning the FBI matter and the 
handling of confidential informants in Boston.
    The Department appreciates the acknowledgement in the 
chairman's September 6, 2001 letter to the Attorney General 
which said, ``For the most part, the Justice Department has 
been very cooperative and responsive to the committee's 
requests for information.''
    What the Department has not provided to the committee is a 
small group of documents, namely, internal deliberative 
memoranda, which outline the specific advice to the 
decisionmakers by the line attorneys who handle the cases. We 
have also declined to provide memoranda that reveal 
confidential advice to the Attorney General or other high 
ranking Department officials on particular criminal matters.
    Consistent with longstanding Department policy, we have 
declined these committee requests because the disclosure of 
those deliberations would undermine the integrity of the core 
executive branch decisionmaking function at issue. That is why 
the President has determined that an invocation of executive 
privilege is necessary and proper.
    It is important to emphasize what is at stake. The power to 
investigate and prosecute for violation of Federal criminal law 
is a uniquely executive branch power. We recognize the 
importance of public confidence in those decisions. The 
fairness of our system depends in large part on ensuring that 
these important decisions are made solely on the basis of 
merits of the case as outlined in the Department's Principles 
of Federal Prosecution. Certainly, we agree with you that 
political considerations must have no place in that process.
    Congressional inquiries can help those of us in the 
executive branch do our jobs better. But oversight of internal, 
pre-decisional deliberations, in particular, criminal cases, 
does not lead to better prosecutorial decisionmaking. 
Respectfully, we submit that having thousands of Federal 
prosecutors throughout the country writing prosecution and 
declination memoranda, knowing that Congress may some day 
dissect and second guess their assessments of witness 
credibility and their exercise of prosecutorial discretion will 
not promote justice. Nor will it lead to fairer decisions in 
sensitive matters, if we deprive the Attorney General of the 
benefit of frank and unvarnished recommendations from his 
closest advisors.
    As the Supreme Court has noted, ``[h]uman experience 
teaches that those who expect public dissemination of their 
remarks may well temper candor with a concern for appearances 
and for their own interests to the detriment of the 
decisionmaking process.'' The Court further observed that ``the 
importance of this confidentiality is too plain to require 
further discussion.''
    This ``chilling effect'' concern applies with particular 
force to communications at the Attorney General level. 
Certainly the ability of the executive branch to fulfill its 
constitutional duty to see that the laws are faithfully 
executed would be substantially undermined if the Attorney 
General were unable to receive frank and confidential advice.
    It is also clear that the integrity of Federal law 
enforcement and the rights of persons who may be subject to 
Federal investigation can be seriously implicated if the 
executive fails to insulate career line prosecutors and their 
internal deliberations from political pressure. The Founders' 
fundamental purpose in establishing the separation of powers in 
the Constitution was to protect individual liberty. legislative 
branch political pressure on executive branch prosecutorial 
decisionmaking is inconsistent with the separation of powers 
and threatens individual liberty.
    These concerns, however, do not prevent us from cooperating 
with Congress or otherwise impeding a legitimate congressional 
oversight. The Department has certainly been willing to 
disclose to the Congress and to this committee the reasons for 
our final prosecutive decisions. Equipped with this 
information, Congress has been able to carry out its 
constitutional responsibilities.
    This is not a new issue between our branches of Government. 
As President Washington said over 200 years ago, ``The 
Executive ought to communicate such papers as the public good 
would permit, and ought to refuse those, the disclosure of 
which would injure the public.'' And on that basis, President 
Washington subsequently refused a congressional request for 
confidential executive branch documents.
    Moreover, concern about the specific dangers of exposing 
prosecutorial deliberations to undue congressional pressure has 
been expressed by both Democratic and Republican 
administrations, and by Members of congressional oversight 
committees. For example, in a 1993 letter to the vice chairman 
of the House Energy and Commerce Committee, then-Judiciary 
Chairman Hyde called on his colleagues to stop intrusive 
oversight of the Department's environmental crimes section, 
warning that, ``We should not open the door to congressional 
micromanagement of prosecutions. That would threaten the 
integrity of the Justice Department and undermine public 
respect for our entire judicial system.''
    Just last year, Senator Patrick Leahy, in objecting to 
congressional questioning of line attorneys, emphasized that 
``It is critical to our system of justice that prosecutors have 
the ability to freely and candidly exchange opinions and ideas 
without the threat of political criticism or pressure.'' 
Current and former attorney Justice Department officials have 
also spoken out on this issue. In an October 1, 1992 letter, 
Assistant Attorney General Rawls objected forcefully to an 
oversight investigation of the Rocky Flats criminal case, 
noting that ``[s]crutiny of [FBI street agents and career 
prosecutors] and their activities in a political arena is 
inconsistent with the apolitical character of law enforcement. 
We are gravely concerned that this process will chill the 
aggressive investigative and prosecutive efforts of agents and 
prosecutors, who will be obliged to consider the congressional 
response to their actions in a particular case, all to the 
certain detriment of the public interest.''
    In a 1994 article published by the Washington Legal 
Foundation, Stuart Gerson, who served as an Assistant Attorney 
General in the first Bush administration, and as acting 
Attorney General at the beginning of the Clinton 
administration, similarly warned that, ``[i]f career 
prosecutors are subject to pressures and threats of punishment 
because of the decisions they make, they will be less inclined 
to make such decisions in the future. If congressional 
committees are able to reverse decisions and prosecutive 
policies, the legislature will be performing an executive 
function. The net loss is less one of Branch prerogatives than 
it is of civil liberties and individual rights.''
    And finally, in remarks to the Heritage Foundation, former 
Attorney General Civiletti presented the point in a way that 
captures quite vividly the Department's longstanding concern 
about the potential threat. General Civiletti asked the 
audience to imagine a hypothetical circumstance where an 
individual under investigation who is trying to persuade a 
prosecutor not to indict him, ``to be heard by the prosecutor, 
has to shout over the loud protestations of Members of Congress 
urging indictment of this very individual; or that Members of 
Congress are standing ready to chastise the prosecutor if no 
indictment is brought. To imagine such a scenario,'' former 
Attorney General Civiletti observed, ``is to understand why 
congressional involvement in prosecutorial decisions can be 
perilous to civil liberty.''
    Based on the foregoing reasons, Mr. Chairman, the President 
has concluded that congressional access to the subpoenaed 
documents would be contrary to the national interest, and he 
has therefore asserted executive privilege with respect to the 
documents, and instructed the Department not to release them or 
otherwise make them available to the committee. However, let me 
stress that we remain willing to work informally with the 
committee to provide the information to the committee about the 
decisions related to these subpoenaed documents that you had 
not previously requested, consistent with the President's 
assertion of privilege and our law enforcement 
responsibilities.
    Mr. Chairman, thank you for giving me this time to explain 
our position on prosecutorial decisionmaking documents.
    [The prepared statement of Mr. Horowitz follows:]
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    Mr. Burton. We have a vote on the floor. I'd like for those 
who are interested in this to come back as quickly as possible 
so we can get to the question portion of the hearing.
    So we will stand in recess until we get back from the vote.
    [Recess.]
    Mr. Burton. We will reconvene, knowing that other Members 
in all probability will be back shortly.
    Let me start off the questioning period by saying that I 
listened very carefully to everything you said, Mr. Horowitz. 
But if we follow the logic of this Executive order and of the 
decision that was made to not allow anyone to have access to 
previous Presidents' papers without their consent, which was 
issued by the President, then in effect what has happened is, 
Congress will not have any oversight ability unless the 
President says OK. That is the problem.
    And as I said in my opening remarks, this is not a 
monarchy. This is not a single branch of Government that runs 
the government. There are co-equal branches. If the Congress 
does not have the ability to oversee the executive branch and 
the Chief Executive, then he in effect can do anything he wants 
without having to worry about it, and people in this 
administration can do anything they want without having to 
worry about it.
    And that is a recipe for all kinds of mischief. So I 
certainly don't agree with the premise that this administration 
has come up with, and that is that Congress has no 
responsibility other than to legislate, and we have no 
authority to oversee the executive branch. Because that is in 
essence what your opening statement--I know all the things you 
referred to and all the people you quoted, you made a few 
misstatements. Mr. Hyde was not the chairman in 1993. We 
unfortunately didn't have control of the House at that time.
    But in any event, the whole argument's going to boil down 
to, and the whole fight is going to boil down to whether or not 
the Congress has the authority and the ability to oversee the 
executive branch of Government or whether we don't. That's what 
it amounts to. If the Chief Executive of this country has the 
ability to say, yes, Congress, you can look at this, and no, 
Congress, you can't look at that, then we have in effect a 
Government run only by the executive branch, and all the rest 
of us are superfluous except for legislation.
    And that isn't right. It's just not right.
    And now let me get to the Salvati case. The Salvati case 
was 30 some years ago. The case has been closed forever. And it 
wasn't until recently that we found out that Mr. Salvati was 
innocent. And it wasn't until recently that we found out 
through documents that we were able to obtain before these 
decisions were made that the FBI was involved in a cover-up 
about Mr. Salvati's innocence in order to placate and protect 
members of the underworld who were informants.
    Now, how does one clean up a mess like that? How does the 
Congress help clean up a mess like that if we have no authority 
to look at documents that will help give us a real picture of 
what happened? And what's happening here is, you're throwing a 
veil of secrecy down over this whole issue, and other issues 
too, I might add, so that Congress cannot review those. If 
we're to clean up the mess, if we need to take legislative 
action, we need to know what the heck went wrong, and why it 
was allowed to happen. Then of course if we find that people 
did things that were wrong, it will be up to the Justice 
Department to prosecute those individuals.
    But at this point, we need information. And you're not 
going to give it to us, and that's not right. And that's why 
we're going to be at loggerheads probably for the next several 
months. And this is going to be a very highly publicized issue.
    Now, we subpoenaed documents related to our Boston 
investigation 3 months ago, Mr. Horowitz. Has the Justice 
Department asked us a single question about why we want these 
documents? Did you ask us anything about why we wanted these 
documents?
    Mr. Horowitz. I personally did not.
    Mr. Burton. Well, do you know of anybody at the Justice 
Department that asked us why we wanted these documents?
    Mr. Horowitz. I know there were discussions back and forth 
between the committee and the Department. I can't say----
    Mr. Burton. Well, I was a participant in those discussions 
that included even the Attorney General. And they did not 
discuss why we wanted those documents or what we wanted to find 
out in those documents. They just were flat out saying, you 
can't have them. There was no discussion about the reasons or 
the contents.
    Before the President asserts executive privilege, don't you 
think it's appropriate that the executive branch makes a good 
faith effort to understand Congress' need for the documents? 
Before he says, no, you can't have them, don't you think there 
ought to be some discussion and have us explain why we want the 
documents?
    Mr. Horowitz. Mr. Chairman, I obviously do believe there 
should be discussion with the committee and with the Department 
over what the need is for the documents and why the documents 
are requested.
    Mr. Burton. There was none. There was none. I met with the 
Attorney General. I was there. And the only thing they said 
was, we said we want the documents, and they said you couldn't 
have them, you can't have them. So they wouldn't even ask us 
why we wanted them.
    Doesn't it show a lack of good faith that you don't even 
care why we want these documents?
    Mr. Horowitz. Mr. Chairman, as we have done in the campaign 
finance related investigations when the committee asked for 
declination in those, we provided extensive briefings, we are 
certainly prepared and are willing to provide briefings. We've 
produced documents, indeed, to this committee concerning the 
investigation.
    What we are talking about here are a very small number of 
declination memos written by lower level line attorneys in many 
cases, concerning those matters. And we're prepared to brief on 
those decisions and discuss with the committee what happened in 
those cases. Indeed, Salvati was a State prosecution, as you 
know. So we actually would not have----
    Mr. Burton. But it involved FBI officers.
    Mr. Horowitz. Right, I recognize that.
    Mr. Burton. Let me just say this, that I talked not only to 
the Attorney General about this, I talked to the President's 
chief counsel, Mr. Gonzalez. And we talked to them about giving 
us these documents to look at, and to discuss in private, if 
they were so sensitive that the public shouldn't know about 
them, if there was a question of classified information or 
things that would hurt the United States of America.
    And there was a carte blanche statement, you can't have 
them. You can't look at them for any reason. Even though we 
were willing to do that in closed session. So we've been 
stonewalled by this administration regarding these documents 
and other documents. And we had another investigation that was 
going on that was not concluded from the previous 
administration. And because of the Executive order that was 
issued by the President of the United States, a veil of secrecy 
has been brought down on that as well. Because now we can't get 
any information unless the previous President or any other 
President in history doesn't allow us to get those.
    Not only is that a problem for us, it's a problem for 
history. Because the archives will not be allowed to be open to 
people who want to write historical documents or historical 
references to what happened, history books, if you will, on 
presidencies, like Teapot Dome or Watergate or anything else, 
unless those Presidents give their specific approval. That's 
not right.
    I see my time has expired. Let me go to Mr. Tierney, then 
we'll go to Mr. Shays.
    Mr. Tierney. Thank you, Mr. Chairman.
    Mr. Horowitz, was it your advice to the President or to the 
Attorney General to claim privilege in this instance?
    Mr. Horowitz. It was not my personal advice.
    Mr. Tierney. So you're just left here holding the bag?
    Mr. Horowitz. Well----
    Mr. Tierney. Can you tell us then, with respect to these 
declination memos that were made by lower level or line 
attorneys, what was the principle that the declination or 
privilege was intended to protect?
    Mr. Horowitz. Well, the concern that the Department has is 
that in preparing these memos, what the line attorneys are 
doing is writing to their supervisors up the chain their 
thoughts on a case, their views on a case. The ultimate 
decision is not made by the line attorney or the writer of the 
memo, it's ultimately made by the recipient of the memo or 
someone further up the chain of command within the Department 
of Justice.
    The concern is that as they write these memos, line 
attorneys are encouraged to give full, frank advice to discuss 
their assessment of witness credibility, their assessment of 
the strengths of the case, and to give that advice to the 
supervisor. But ultimately, it's not their decision as to 
whether the case is prosecuted or not.
    Mr. Tierney. So take for instance in the Salvati case, if 
some line attorney was writing it up saying, I don't think we 
can prosecute on this, because the FBI's been lying through 
their teeth, and they're up to their knees in involvement with 
the informants, and this is never going to withstand trial, you 
don't think that the public policy of knowing that kind of an 
assessment, having that kind of information, would far outweigh 
the claim of privilege?
    Mr. Horowitz. No, Congressman, I actually do think our 
obligation at that point is to brief the committee on the 
decision that was made and why the decision was made----
    Mr. Tierney. Briefing is one thing. Why don't you just turn 
over the document? Never mind briefing the committee. That's an 
instance where you strike the balance, it would seem to be a 
clear call. That's the potential of what could be in there, 
you're 30 years later, you certainly can't be worried about the 
timidity of those line officers, and you can't expect that 
anybody else is going to be timid later on, because it would be 
their obligation to put that kind of information in a briefing.
    What's the reason? Why not just turn over the document?
    Mr. Horowitz. Because, Congressman, we're not talking about 
preventing the Congress from getting the information. We're 
talking about providing the information to Congress, it's the 
means by which----
    Mr. Tierney. Then we're stuck with your interpretation of 
somebody else's interpretation of what the document says, as 
opposed to having the authentic, original document.
    Mr. Horowitz. No, actually, what happens here, having been 
a line prosecutor and a supervisor in the U.S. attorneys 
office, I've seen it from both sides. When a supervisor, and 
I've dealt with U.S. attorneys and others who ultimately have 
to make the decision, when the line attorney writes up the memo 
or prepares the analysis, that is sometimes the ultimate 
outcome and the decision that is reached and accepted.
    Sometimes it's not. Sometimes there are more factors, more 
information that goes into the decision. And in many instances, 
certainly in those instances, a briefing can provide the 
committee with a full picture of what happened and why it 
happened.
    We are not talking about not providing the information. 
We're talking about providing the information. The discussion 
here is over what form the information is going to go, whether 
it's going to be in the form of pre-decisional, deliberative 
documents written by line attorneys in the connection with the 
Boston----
    Mr. Tierney. Or you explaining to us verbally what it says. 
Are we drawing a fine line here, a distinction that isn't worth 
your fight here? So you're going to read to us the document as 
opposed to showing us the document? Is that the idea?
    Mr. Horowitz. The idea is to brief the committee on all of 
the various reasons for what the decision is, whether they were 
in the memo or not in the memo, and we've done that, and I've 
had the opportunity to do that for this committee, and the 
staff has been extremely courteous and professional as we've 
done these. I think they've been useful.
    Mr. Tierney. You're familiar with the In Re Sealed case, 
the 1997 case that Congressman Delahunt was referring to, where 
the court indicated and quoted, shielding internal Government 
deliberations in this context does not serve the public's 
interest in honest, effective Government?
    Mr. Horowitz. I'm not. I'd have to take a look at that.
    Mr. Tierney. All right, well, I think you should, because I 
think that's the case that this thing turns on. The fact of the 
matter is, you're claiming deliberative process privilege, am I 
right?
    Mr. Horowitz. That's correct.
    Mr. Tierney. As a principle, would you agree with me that 
shielding internal Government deliberations in this context 
does not serve the public's interest in honest, effective 
Government?
    Mr. Horowitz. No, actually I think what the President is 
saying is that when the memo----
    Mr. Tierney. No, I'm asking you, do you agree with that 
statement? Do you have a problem with that, or do you agree 
with it?
    Mr. Horowitz. I think it depends very much on the facts and 
the circumstances of the particular case. I think preventing 
the information from coming to the Congress would certainly be 
problematic. But we're talking about providing the information.
    Mr. Tierney. The court in fact said that it was a qualified 
privilege, and it depends on a case by case basis. So I think 
you're right on the money there. So now we have to agree on 
whether there's a reason to think that these documents somehow 
in the balance should not be disclosed as opposed to should be 
disclosed. And I think that the court has been clear on that. 
When the balance strikes to the public, and its interest in 
having honest, effective Government, then it ought to be turned 
over.
    Here we're talking about trying to determine what went on 
in a situation where the FBI clearly is in a tough situation 
here, where Judge Wolf and others have said they're in it up to 
their eyebrows. I think it's in the public interest for us to 
have all the documentation on that and that if the balance 
clearly comes down on disclosure, and not some claim of 
privilege where it seems to me it's putting form over 
substance.
    Mr. Horowitz. Well, I do think, Congressman, that what we 
are prepared to do and what we are going to do from this point 
forward, as we did on the campaign task force matters that were 
under subpoena as well, is come up, brief the committee, 
provide the committee with the information that the committee 
is seeking concerning those matters.
    And let me just add that we recognize the problems that 
happened in Boston with the FBI. We created a task force of 
prosecutors to look into that. We've indicted an FBI agent who 
is actually scheduled, as I'm sure you know, for trial next 
month in Boston on this very matter. So----
    Mr. Tierney. If I'm not mistaken, some of those documents 
haven't been turned over, either. We asked for some of the 
documents, in fact, it was the Connecticut U.S. attorney, I 
think, that was the head of that investigation. And he's 
keeping some documents out on this.
    I hear what you're saying, and I just have to say clearly 
that I hope this committee prevails in changing your mind, if 
not changing your mind, in overruling that ruling, whether it 
means we have to go to the floor and vote or otherwise. Because 
I think you're strictly putting form over substance and 
disregarding what In Re Sealed case clearly sets out, I think, 
as the controlling language here, that when we strike a 
balance, the balance comes down on disclosing that.
    Just out of curiosity, are all these gentlemen behind you 
working for the Department?
    Mr. Horowitz. Yes, all the ones in the row directly behind 
me. I don't know the individuals behind them.
    Mr. Tierney. One, two, three, four, five, six, seven, and 
you. Thank you.
    Mr. Burton. Let me, before I go to Mr. Shays, make one 
comment. I was sitting in this chair for the last 5 years. I 
remember when we were trying to get documents from the previous 
Justice Department, and they would say, we'll come up and tell 
you what's in them but we won't let you see them.
    Well, ultimately, the Freeh and La Bella memos we did see. 
We were able to force that issue. It took a long, long time, 
but we were able to force it. What we were being told was an 
incomplete story. It did not cover everything that was in those 
documents.
    So what you are saying, in essence, is, look, we'll sit 
down and talk to you and we'll tell you what's in them. But 
it's your interpretation. And when we're talking about 
something as important as the Salvati case, we don't want your 
opinion. We want to see what's in those documents to find out 
whether or not justice was done.
    We know justice was not done. And the only way we can 
correct those things legislatively or deal with the problem is 
for us to know what's in those documents. Not your opinion, not 
the opinion of seven or eight attorneys from the Justice 
Department. The Congress of the United States, in our oversight 
responsibilities, needs to take a hard look at those things.
    Mr. Shays.
    Mr. Shays. Mr. Horowitz, I moved to a city called 
Bridgeport. It has a mayor of one party and a council of the 
same party with no minority members whatsoever. Very honest, 
good man, I thought. And over time, he just accumulated so much 
power, and there really was no oversight by the council because 
it was of one party and they didn't want to ever find 
themselves embarrassing him.
    Well, in the process of that, he now has 24 indictment 
counts against him. And he's probably going to spend some time 
in jail. It to me was one of the best examples of how power 
ultimately corrupts absolutely.
    The order that the President signed is almost intimidating 
to me, because I think, you know, he's my President and 
general, my President just like Mr. Clinton was my President. I 
view him to be extraordinarily honest and competent, and I view 
him as well to be needing our support in every way we can give 
it to him. That's why I voted and support the tribunals, the 
wire tap law, the arrests that I think help break up cells.
    And now I'm learning I'm going to have very little 
oversight of that. I promised people who didn't want me to vote 
for that law that we would watch the Justice Department, and 
when we had to, we would subpoena information and we would get 
information. I think the best thing I can do for this President 
and this administration is to make sure that this order doesn't 
stand.
    I found your testimony insulting. I'm not saying you're 
insulting, but the testimony was. You made an extreme argument 
that because a congressional inquiry might impede candor under 
some circumstances, congressional oversight must be always 
resisted under all circumstances. You assume congressional 
inquiries infect the decisionmaking with untoward political 
considerations when we're trying to purge the process from 
corruption within internal politics. You posit examples of the 
damage to current investigations if prosecutors knew Congress 
would dissect and second guess their decisions. In fact, we're 
talking about decisions that were made many years ago.
    I also think in effect that the Department is saying, we're 
fine, nothing can go wrong here, trust us, we've got important 
work to do and you don't, so leave us alone. That's why I think 
what you have said is extraordinarily insulting. At the risk of 
offending people I love in the administration, I have more than 
5 minutes of questions, so I'll look forward to having my time 
come back.
    I'm going to go over this statement with you, I'm going to 
have you explain it to me. Then I'm going to have you tell me 
about the Salvati case. And I want you to remember the person 
who was sitting like the second chair over having been the FBI 
guy who got him sent there, and he didn't give a damn about it. 
And for you to suggest somehow this is local, when it was the 
FBI, corrupt FBI.
    Would you look on statement page 2, I want you to read me 
that whole paragraph on page 2, where it says, it is important 
to emphasize what is at stake. Page 2 of your statement.
    Mr. Horowitz. I have to get it out, Congressman.
    OK.
    Mr. Tierney. Would you read it out loud, the whole 
paragraph?
    Mr. Horowitz. It is important to emphasize what is at 
stake. The power to investigate and prosecute for violation of 
Federal criminal law is a uniquely executive branch power and 
we recognize the importance of public confidence in those 
decisions. The fairness of our system depends in large part on 
ensuring that these important decisions are made solely on the 
basis of the merits of the case, as outlined in the 
Department's Principles of Federal Prosecution. Certainly we 
agree with you that political considerations have no place in 
that process.
    Mr. Shays. OK. What happens if the process is corrupt? How 
can I have confidence in a corrupt process? That's what we're 
trying to get at. We're trying to understand why, and who is 
responsible for the corruption. And you are part, in my 
judgment, of being involved in a cover-up. You don't want us to 
know that.
    How can I have confidence in a system that we can't check 
out?
    Mr. Horowitz. I certainly did not have the intention of 
leaving you with that impression, Congressman. We are prepared 
to explain fully the facts, what happened, provide the 
committee documents----
    Mr. Shays. I want to see the documents.
    Mr. Horowitz [continuing]. And we will continue to provide 
the committee documents.
    Mr. Shays. I don't have any confidence in you or someone 
else giving me a translation of what we need to see. How can we 
have faith in that? That's your interpretation of what 
happened. I was elected to interpret, you weren't elected to 
interpret for me.
    Mr. Horowitz. No, I understand, Congressman. What we're 
talking about here in connection with the Boston matter are the 
pre-decisional memos of the line attorneys. We're not trying to 
prevent the committee in any way----
    Mr. Shays. What happens if the pre-decisional are corrupt 
statements of the facts? What happens if those people who made 
those memorandums are in fact lying to the Director? What 
happens if they in fact disclose that the Director knew facts 
that proved the innocence of this man? What happens in that 
case?
    What we're trying to determine in one part is, Mr. Hoover, 
was he corrupt? Did he in fact know that this man was innocent? 
And did he cover it up? And we would like to know what those 
documents tell us.
    Mr. Horowitz. And my understanding is, we've provided to 
date, thousands of pages of documents from the FBI concerning 
this matter, which describe some of the facts, some of the 
background about the circumstances there. We've also indicted 
an FBI agent----
    Mr. Shays. I want to see the documents that are given to 
people that then make decisions. And because I believe with 
real certainty that we'll learn from those documents that when 
people who made those decisions said they weren't told will 
know they were told. Then we'll know they lied. And then we 
will make determinations based on that.
    But you don't want us to have that information.
    Mr. Horowitz. I think the concern as laid out in the 
President's order was that----
    Mr. Shays. No, the order was blanket. And I'm talking 
specifics. You gave me the absurd examples of extreme cases, 
and I'm giving you a real case right now. And it makes me 
wonder if you know the case. I know the President doesn't. I 
know he doesn't. But we know, and I'll go to the next 
paragraph.
    Mr. Burton. Let me just say for the record, because I want 
to make sure everything's correct, we did receive documents 
that were heavily redacted, with a lot of things crossed out 
that were relevant to what we wanted to know. That's part of 
it.
    The second part is, you could give us 10,000 documents and 
only keep 3. But those three could be very, very important in 
the conclusions that are drawn about the corruption of the FBI 
in the Salvati case. So it's not the number of documents you 
give us, it's the relevance to our investigation.
    You know, it could be one document you don't give us, but 
that could be the key. And we have found in previous 
investigations, we look at tons and tons, boxes of documents 
and then we find one that tells us the story. And your 
interpretation isn't what we want.
    The gentleman from Massachusetts.
    Mr. Delahunt. I thank the Chair. I was just going to make 
the point, in fact, I had just written redaction. Have you had 
an opportunity, Mr. Horowitz, to examine the documents that 
were provided to the committee yourself?
    Mr. Horowitz. I have not myself reviewed those documents.
    Mr. Delahunt. I have to tell you, I sat in, at the 
invitation of the Chair, in a hearing here last May. And 
because I have some experience in law enforcement in the State 
of Massachusetts, I could pose questions that, how shall I say, 
revealed some names that were redacted.
    I'd like to know who made the decision in terms of the 
redactions.
    Mr. Horowitz. I will have to go back and followup on that, 
Congressman.
    Mr. Delahunt. Because I have to tell you, from a review of 
the redactions, there was absolutely nothing, in my opinion, in 
the redactions, that warranted those names to be redacted. 
There was no disclosure of confidential informants, ones that 
haven't been made public. There were names of FBI personnel, 
both at the supervisory level and at the field level, whose 
names were redacted. The Chair might very well want to hear 
first-hand oral testimony from those individuals, yet the names 
were redacted.
    Mr. Horowitz. I would have to go back, as I said, Mr. 
Congressman, and review----
    Mr. Delahunt. I understand, but what you're asking, and 
maybe I'm misinterpreting this, is, trust us. Trust the 
Department of Justice. We'll give you and we'll translate and 
we'll provide a lens for you. And yet when you pose a question 
about the redactions, nobody has the answer.
    Let me ask you something else. When the decision was 
reached to not disclose this, the information requested via the 
subpoena, who participated in that decision?
    Mr. Horowitz. I would have to consult with others, 
Congressman, to determine who exactly participated in the 
decisions. We'd have to consider that.
    Mr. Delahunt. Then it's a safe----
    Mr. Burton. Would the gentleman yield?
    Mr. Delahunt. I yield.
    Mr. Burton. Was it anybody behind you?
    Mr. Horowitz. I do not----
    Mr. Burton. Well, let's turn it around. Were any of you 
gentlemen involved in the redacting of those names? Any of you?
    Any of you? Raise your hand if you were. I don't think they 
want to talk. Were any of you involved?
    Nobody--none of those were involved? May I have a yes or no 
from you, please? None of you were involved?
    Go ahead, I'm sorry. I thank the gentleman for yielding.
    Mr. Delahunt. Mr. Horowitz, did you help prepare the 
statement that you delivered?
    Mr. Horowitz. I helped participate in the preparation of 
the statement.
    Mr. Delahunt. Who else?
    Mr. Horowitz. There were a number of officials.
    Mr. Delahunt. How many?
    Mr. Horowitz. I don't know the exact number of people who 
participated in the drafting. There were a lot of people who 
reviewed it and commented upon it. Some who did not comment 
upon it and saw it anyway.
    Mr. Delahunt. You did the edits, I presume?
    Mr. Horowitz. I certainly participated in the editing.
    Mr. Delahunt. But you don't know who told you that the 
decision had been made not to comply with the subpoena issued 
by the Chair and the committee? I'm not asking you to disclose 
any information, I want to know who participated. Who gave you 
the instructions to appear here today?
    Mr. Horowitz. There were a number of discussions about who 
would attend today's hearing. I believe it was the Assistant 
Attorney General for the Office of Legislative Affairs, I 
believe, who ultimately told me to appear.
    Mr. Delahunt. And who is, can you name that individual?
    Mr. Horowitz. Dan Bryant.
    Mr. Delahunt. So you drew the short straw?
    Mr. Horowitz. My understanding was that there had been some 
discussions to schedule the hearings, so that my boss, my 
immediate boss, Mr. Cherdoff, the head of the criminal 
division, could appear to testify. But he is not available 
today.
    Mr. Delahunt. In your experience, how long have you been 
with the Department?
    Mr. Horowitz. Since 1991.
    Mr. Delahunt. Since 1991. Can you, let me rephrase it. 
Isn't it unusual to seek the involvement of the White House in 
decisions pertaining to matters like this, based upon your 
experience? You're a career prosecutor, apolitical.
    Mr. Horowitz. Since most of my experience, 8 of the 10-
years, was as a prosecutor in New York, most of my cases did 
not involve requests of information from congressional 
committees. So I have had little experience in requests for 
this type of information.
    Mr. Delahunt. I found interesting that, I said in my 
opening statement that this deliberative process privilege is 
really subject to a case by case determination, that balances 
the public's right to know and the necessity for the Government 
to withhold information. I think you'd agree with me, the 
public's right to know is important.
    Mr. Horowitz. I would agree with you.
    Mr. Delahunt. Let me suggest this to you. You said we, 
meaning presumably the Department of Justice indicted an FBI 
agent and that the case is going to be tried next month, did I 
hear you say that?
    Mr. Horowitz. My understanding is it's scheduled for trial 
next month. Whether it actually goes to trial or not, as you 
know, depends----
    Mr. Delahunt. Right. From what I read in the Boston 
newspapers, that's not the case. Are you aware that prior to 
Judge Wolf's involvement in this case, that there was an 
internal investigation by the FBI, by the Department of 
Justice?
    Mr. Horowitz. I'm familiar that we created a task force to 
look into this matter.
    Mr. Delahunt. That wasn't my question, Mr. Horowitz. Are 
you familiar with an internal investigation conducted by FBI 
agents to determine whether there was any criminal culpability 
on the part of Department of Justice personnel? And within 
that, I mean the FBI.
    Mr. Horowitz. Are you referring to a specific internal 
investigation? Because the task force's responsibility in part 
was to review the activities of, the internal----
    Mr. Delahunt. What I'm suggesting to you, and maybe I can 
clarify it by saying, it's my understanding that there was an 
internal investigation by the FBI that uncovered no malfeasance 
whatsoever. But because of Judge Wolf's insistence and the fact 
that the cases against Bulger and Flemmi were before him, and 
as his orders elicited new information, that, that is when the 
task force was created, Mr. Horowitz. It was not sua sponte, it 
did not happen automatically. It did not come out of anything 
but public pressure.
    And if you have any information to the contrary, would you 
let us know? You could let us know now.
    Mr. Horowitz. I would have to go back and through----
    Mr. Delahunt. You'd have to go back again.
    Mr. Horowitz [continuing]. Chronology and put together for 
my own personal information how that developed.
    Mr. Burton. We're going to come around for a second--yes, 
we'll do 10 minute segments after this round. That will give 
you more time to followup.
    Let me just say that, before I go to Mr. Cummings, in 
Teapot Dome, in Watergate, in the investigations we're involved 
in with the Clinton administration or now, if the President can 
simply use his Presidential prerogative to block the Justice 
Department from giving the Congress any information, then 
you'll never get to the bottom of any corruption in Government. 
You'll never get any place. Because we'll be able to be blocked 
by a Justice Department that is controlled by the White House.
    If the Attorney General of the United States is a close 
friend of a President who is involved in corrupt activities, 
and the President issues this kind of an Executive order or 
executive privilege document, how is the Congress ever going to 
be able to investigate it? We'll be blocked. And that's the 
problem, one of the main problems we're facing today.
    Mr. Cummings.
    Mr. Cummings. Thank you very much, Mr. Chairman, and I want 
to thank you, Mr. Horowitz, for being with us this morning.
    I just want to, as I was sitting here, I could not help but 
think about the many, many defendants that I represented when I 
practiced law that would walk into the Federal court and would 
literally seem to have chills walking in there, knowing that 
their lives could possibly be interrupted in some major way.
    Then I thought about the Patriots bill that I voted 
against. The reason why I voted against it was because I have 
seen the misuse of power. And I've seen it up front, and I've 
seen it with many clients, I've seen prosecutors who have been 
literally ripped apart by judges because they failed to 
disclose evidence and various types of misconduct that took 
place.
    And as I listen to all of this, it just amazes me that we, 
you know, the Government says trust us. I've got to tell you 
that if I were looking at this on Fox or C-SPAN or whatever, 
and I heard this and it was somebody in my district who, you 
know,the people that I represent, they would say, why should I 
trust the Government?
    First of all, they don't trust the Government anyway, 
because they have seen too much abuse by the Government. Then 
when they hear this, and they hear the chairman, who is an 
honorable man, who has simply requested certain information so 
that we can do our job, and then they look at us as their 
representatives, and I do agree with President Bush, the war is 
about trying to make sure that we maintain the type of 
government that we have, a representative government, and here 
we are, supposed to have all this power up here, and supposed 
to be representing 600,000 people each. And when we ask for 
documents, we're told, trust us.
    I don't think that sends a very comforting message to my 
constituents. I'm just wondering, you heard the concerns of the 
Members of Congress who have addressed you this morning. And 
you have heard our frustration. It is abundantly clear that 
there's information we want, and you have proposed a method of 
getting some of the information through the documents with, as 
Congressman Delahunt has already talked about, how all kinds of 
things are crossed out. And you talked about the conferences, I 
read your statement. And that doesn't meet our satisfaction.
    So I'm trying to figure out, help us help ourselves and 
help the people that we represent, and tell us, how would you 
proceed with this, having heard that we're not satisfied with 
what's going on?
    Mr. Horowitz. Thank you, Congressman.
    I believe that the process we have an obligation to 
undertake with the committee is, as we've done in other 
matters, an accommodation process, to provide the committee 
with the information it is seeking in a manner that doesn't 
cause us to have to produce materials, documents, that's, as I 
said earlier, a narrow set of documents, but the concern in the 
Boston case, the pre-decisional memos of line attorneys and in 
the campaign finance task force case, memoranda to the Attorney 
General and other high ranking officials.
    We have an obligation to come to the committee and to 
provide the committee with information that it is seeking. We 
have a responsibility to engage in that dialog, which we've 
done in the past, and to have a give and take with the 
committee and work with you to see how we address your 
concerns.
    Mr. Cummings. Let me say this before you go on. When I read 
your statement, I don't think that most cases rise to the level 
of this kind of interest. You talked in your statement about my 
good friend Ben Civiletti from Maryland, and his statement 
about the statement you made in the record. I don't think they 
rise to that level.
    But it goes back to the question of corruption, and how do 
we get to corruption, how do we get to problems within say, the 
prosecutor's office? How do we get to that, or the FBI? Because 
if you feel like there's constant roadblocks to that, again, 
every case doesn't rise to this level where Members of Congress 
merely want to see what's going on. It's not like we're asking 
for 99 percent of the cases. This is just a few, probably a few 
cases.
    And I'm just wondering if what you are telling us is just a 
bit overkill, and all we're trying to do is get to a few basic 
facts. Do you follow me?
    Mr. Horowitz. I do, Congressman. And I guess what I'm 
trying to do in responding is trying to indicate that I'm not 
trying to put forward a message, like you said, of overkill. 
What I'm trying to do, and with limited success, I recognize, 
is to present to the committee a recognition of our 
responsibility to provide the information to the committee, but 
to try and do so in a way that doesn't impinge upon what we 
believe is a valid and fair right to try and protect internal 
deliberative documents. I agree with you, there are certainly 
circumstances, we've mentioned Teapot Dome and Watergate, 
where, as we do a case by case analysis, as Congressman 
Delahunt mentioned, that disclosure is appropriate and 
necessary.
    What I would hope we would do, going from today's hearing, 
is to try and work on that accommodation, to try and work with 
the committee in providing that information to you. Because 
what happened in Boston was an awful misuse of Government 
power. We have undertaken an effort to try and do that, the 
prosecutors, by creating a task force, by trying to thoroughly 
investigate this matter, and to proceed with criminal 
indictments of wrongdoers.
    And so we certainly agree with you that there is a need for 
an accounting of this matter.
    Mr. Cummings. Thank you very much, Mr. Chairman.
    Mr. Burton. We'll go to 10 minute rounds right after Mr. 
Gilman. Let me just say once again that what you're talking 
about is filtering the information through your opinions, 
instead of letting Congress decide for itself whether or not 
there may be corruption in the Justice Department or the FBI or 
the executive branch. We'll get the filtered opinion of people 
from the Justice Department instead of us seeing the documents 
themselves. That just isn't going to wash.
    Mr. Gilman.
    Mr. Gilman. Thank you, Mr. Chairman.
    You know, the President, Mr. Horowitz, has said that he's 
concerned about congressional pressure on the executive branch 
prosecutorial decisions. Tell me, this is a Government Reform 
Committee that has primarily a responsibility on oversight. How 
would we best proceed to perform, to fulfill our responsibility 
on oversight if we can't look into the decisionmaking process 
on why some of these events were not properly pursued? What is 
your suggestion? How can we fulfill the responsibility of this 
committee if we don't have that opportunity to undertake our 
oversight?
    Mr. Horowitz. Well, I think one of the, certainly the most 
important thing we can do for the committee is first of all, 
provide documents that we do not believe are privileged. And we 
have produced, as I said, many documents in connection with 
this investigation. To the extent we have documents that we do 
not believe have an executive privilege, we should be producing 
those to the committee.
    With regard to the documents that we have concerns about, 
these pre-decisional memoranda by line attorneys, what we have 
an obligation to do is come before you, come before this 
committee, and fully outline for you what the ultimate 
decisionmaker decided. Because the point I tried to make here 
is that the writer of the memos, the line attorney, is writing 
his or her summary of the facts, his or her analysis of 
witnesses, of legal positions. Oftentimes those memoranda are, 
sometimes they're adopted, but many times they're not adopted 
as the totality of the reasons for the decision.
    And so in some of those circumstances, having the briefing 
and laying out for the committee the full rationale for the 
decision, with the full statement of reasons, can be in fact a 
fuller explanation for the committee. And we have an 
explanation to do that and recognize the committee's need for 
the information.
    Mr. Gilman. Well, of course, it's not the intent of this 
committee to apply any pressure on this kind of prosecutorial 
decisionmaking. What we're looking for is, where the decisions 
that were made here, was there any breach of responsibility by 
the Justice Department?
    Mr. Horowitz. And let me----
    Mr. Gilman. We're looking to see whether there's any 
wrongdoing. And I think you said you thought the Justice 
Department is looking at this, or should have looked at this 
wrongdoing to correct it. That's our responsibility as well, to 
make certain that is being fulfilled.
    Mr. Horowitz. And I certainly agree with that, Congressman.
    Mr. Gilman. How do we do that without the proper appears 
before us?
    Mr. Horowitz. Well, what we're discussing today, and I'm 
trying to talk about today in terms of these particular 
documents that we're talking about, we're not talking about 
preventing the committee from getting to the facts, or in any 
way trying to filter the facts from the committee. What we are 
trying to do is prevent the legal analysis, the deliberations 
prepared by, the deliberative memos prepared by the line 
attorneys, and the lower level decisionmakers, the people who 
did not ultimately make the decision, protect their ability to 
give the candid advice to the people up the chain of command 
who actually have to make the decisions.
    So we're not seeking to prevent the committee from getting 
the facts. We're certainly as I said earlier, prepared to work 
with the committee and try to accommodate its needs for that 
information and do it in a way that hopefully we can protect 
the ability of line attorneys to write those deliberative 
materials.
    Mr. Gilman. I'd be pleased to yield.
    Mr. Shays. Aren't you doing more than just advice? Isn't 
there sometimes these memos have no advice, they just have 
statement of fact? And they present information with no advice 
whatsoever? And you're preventing us from getting even memos 
that have no advice in them?
    Mr. Horowitz. I'm not saying that if a memo has no 
deliberative advice in them that's what we're talking about. My 
understanding of the memos that are at issue here are memos 
that do in fact do more than what you're asking about, 
Congressman, that do in fact go into an analysis.
    Mr. Shays. The President's Executive order, though, doesn't 
it also include information without advice?
    Mr. Horowitz. My understanding of the order and what's at 
issue here is that we have an obligation, pursuant to the 
President's decision, to go through on a case by case basis of 
individual documents, and not produce those materials that 
contain the type of deliberative material I'm discussing, but 
consider whether we can produce other documents that don't do 
that.
    Mr. Gilman. Thank you, Mr. Shays. Just one more question.
    Mr. Horowitz, I hope that the Justice Department will take 
another look at all of this. If we're going to perform and 
fulfill our responsibility of oversight, we need to have some 
of the basic decisions that were made with regard to this kind 
of a situation that occurred in Boston. By preventing us from 
having that kind of material, it hampers our oversight 
responsibility. And that's what we're concerned about. So I 
hope that you would take this back to the Attorney General and 
ask him to try to work out a better arrangement than we're 
confronted with in this Executive order that was, I assume, 
recommended by the Justice Department to the President, or it 
wouldn't have occurred.
    Thank you very much.
    Mr. Burton. Thank you, Mr. Gilman. We'll now go to 10 
minute rounds.
    Do you remember President Nixon and Watergate?
    Mr. Horowitz. I do. I was young, but I remember.
    Mr. Burton. You've probably read your history.
    Mr. Horowitz. Yes.
    Mr. Burton. Do you remember John Mitchell?
    Mr. Horowitz. Yes.
    Mr. Burton. Do you know who John Mitchell was?
    Mr. Horowitz. Former Attorney General of the United States.
    Mr. Burton. Do you know what happened to John Mitchell?
    Mr. Horowitz. I do.
    Mr. Burton. What happened to him?
    Mr. Horowitz. He was prosecuted for violations in 
connection with his responsibilities in office.
    Mr. Burton. And he went to prison. Now, let me ask you 
this. What if President Nixon and John Mitchell did what we're 
seeing today, and they said, there'll be no deliberative 
documents, no information whatsoever, given to the legislative 
branch? What would happen?
    Mr. Horowitz. My understanding is that what we're dealing 
with here is a case by case analysis.
    Mr. Burton. The point I'm trying to make, and I think 
you're missing my point. The point is, that if you have 
corruption in the Justice Department, or in a branch of the 
executive branch, and you allow this kind of executive decision 
to stand, and it becomes a precedent, we won't be able to root 
out corruption, because we won't be able to fulfill our 
oversight responsibilities.
    You said you're going to give us the facts. How do we get 
the facts if the Attorney General and the President of the 
United States say, you can't have them? How do we get them?
    Mr. Horowitz. I don't think that's what we're saying, with 
all due respect.
    Mr. Burton. No, no, no. The Executive order says we can't 
have them.
    Mr. Horowitz. I think what the Executive order covers are 
just the pre-decisional deliberative memoranda that I've 
mentioned earlier.
    Mr. Burton. But that may be very relevant, that may be very 
relevant to correcting a situation. And unless the Congress has 
the ability to fulfill its oversight responsibilities, we can't 
do that.
    Now, let me ask you a few questions. The Attorney General 
and the White House counsel personally told me in my office 
that Congress will not be allowed to review deliberative 
documents from closed criminal investigations. For the record, 
is that the position of the Attorney General?
    They told me that we will not be allowed to review 
deliberative documents from closed criminal investigations. Is 
that the position of the Attorney General?
    Mr. Horowitz. My understanding of our position is that we 
need to review these materials on a case by case analysis, the 
documents on a document by document analysis, and make those 
decisions in that way, consistent with the President's 
directive.
    Mr. Burton. So what you're saying is, if the Attorney 
General decides that we're not entitled to see criminal 
deliberative documents, we can't see them?
    Mr. Horowitz. No. I think what I'm saying is, what we are 
obligated to do is to review those documents. If they contain 
the type of information that's at issue here, we believe----
    Mr. Burton. I understand what you're saying. So if the 
Attorney General says, these documents should not be given to 
the Congress, and they are deliberative documents in a criminal 
investigation, we can't see them.
    Mr. Horowitz. But what we should be doing at that point is 
coming to the Congress and this committee and trying to work 
out an accommodation on how to get the information to the 
committee----
    Mr. Burton. Without us seeing them.
    Mr. Horowitz [continuing]. Concerns about the privileged 
materials. We are not trying to prevent the facts and having 
all of the facts concerning this matter in Boston before this 
committee.
    Mr. Burton. Who determines what the facts are? You? The 
Justice Department? Who determines what the facts are?
    Mr. Horowitz. If a document contains legal analysis, these 
memos go through and say the facts, legal analysis, and if the 
documents contain legal analysis----
    Mr. Burton. OK, who makes that determination?
    Mr. Horowitz. Well, just as in every case where we have to 
review the materials, we have to make a determination, for 
example, of grand jury matter, privilege----
    Mr. Burton. But who makes the determination?
    Mr. Horowitz. The Department does.
    Mr. Burton. The Department of Justice.
    Mr. Horowitz. Correct.
    Mr. Burton. OK, so when you come before us and you say, 
we've decided that you shouldn't see these documents, then it's 
your determination. You've made that decision. So Congress has 
no right, if you make the decision, or the Chief Executive or 
the Attorney General says that we've made a decision that they 
shouldn't see them, then we're not going to see them, is that 
right?
    Mr. Horowitz. Just as we do on the grand jury matters, for 
example, we have to make a decision on that. We have to do it 
in a fair and faithful way to our obligations as lawyers and 
prosecutors reviewing these matters. Yes, we do.
    Mr. Burton. Congress has the responsibility to oversee the 
executive branch and we can't do it. Is that the President's 
position as well, the same position as the Attorney General on 
this?
    Mr. Horowitz. The only position I know of the President is 
what I read from the Executive order.
    Mr. Burton. The Attorney General and the White House 
counsel did not indicate that there would be any exceptions to 
this policy. They indicated there would be no exceptions to 
this policy. Is that what you've been told?
    Mr. Horowitz. What I've been told is that, based on the 
order that I have here, that the particular memos at issue in 
this case and this request are not going to be----
    Mr. Burton. Well, what I was told by the Attorney General 
and the White House counsel was that it was not just the 
Salvati case. It was just, this was going to be the policy and 
there would be no exceptions to the policy. That's what they 
told me. So there's no exceptions to the policy. This is just 
one manifestation of what they're going to be telling the 
Congress. And that is, nose out, butt out, you guys, because if 
we say you shouldn't see those documents, you're not going to 
see them. That means that the Congress of the United States, if 
we don't fight this, is going to be impotent, if we try to 
correct a situation in the executive branch where there may be 
corruption. And there's been corruption in the whole series of 
administrations.
    Now, has the Justice Department, prior to 2001, ever 
provided Congress with deliberative documents from a criminal 
investigation? Do you know if they've ever done that?
    Mr. Horowitz. I believe they have.
    Mr. Burton. Yes, they have. What specific issue or incident 
prompted this change in policy? What prompted this change from 
what's been the policy in the past?
    Mr. Horowitz. We don't believe we've changed the policy. 
What we believe has occurred over our Nation's history with 
regard to executive privilege matters is on a case by case 
analysis, administration by administration, we've reviewed the 
requests from the committee or from the Congress and have 
determined in certain matters to produce the deliberative 
materials to Congress and in other matters, administrations 
have invoked executive privilege to protect the deliberative 
material.
    Mr. Burton. So you would analyze these things and then make 
a determination?
    Mr. Horowitz. We would, we certainly have an obligation to 
analyze documents, Mr. Chairman.
    Mr. Burton. But I mean, you would look at the documents and 
then make a determination as to whether we should get them?
    Mr. Horowitz. We would need to do that.
    Mr. Burton. Do you know in the Salvati case, you've never 
done that? Did you know that? You never even asked us what 
documents we want or why we want them. You've never asked any 
of that. So you haven't, you're saying you're not going to give 
us these documents, but you haven't analyzed them. Because 
we've never even discussed that. They just said flat out, we're 
not going to give you any.
    Mr. Horowitz. Well, as I said, I have not been involved.
    Mr. Burton. I know, and I'm disappointed in the Attorney 
General for not sending you better prepared up here, because 
many of us have asked questions and you just don't know the 
answers. People behind you, I would have thought, would be 
relevant to your testimony today, but nobody's said anything 
and we've asked a number of questions that you couldn't answer.
    We issued a subpoena to the Department of Justice over 3 
months ago. It appears you have documents that are responsive 
to the subpoena. How many documents have you found? How many 
documents have you found that were responsive to our subpoena?
    Mr. Horowitz. As I sit here, I don't know the number off 
the top of my head.
    Mr. Burton. Turn around and ask those guys behind you how 
many documents have been relevant. You brought a million 
dollars worth of legal talent up here and nobody knows 
anything.
    Yes, we probably will ask the Attorney General to come 
eventually.
    Mr. Horowitz. Mr. Chairman, my understanding is that to 
date, in looking through the number of files that would be 
responsive, we've located 20 documents to date that would be 
responsive to the subpoena, although we're continuing to try 
and gather, as you've indicated, 30 year old files in some 
regards here to----
    Mr. Burton. So you've found about 20 documents thus far 
that you would rather we wouldn't see?
    Mr. Horowitz. That's correct.
    Mr. Burton. Do you have them with you today?
    Mr. Horowitz. I certainly don't.
    Mr. Burton. Nobody has them with you back there?
    Mr. Horowitz. I don't know that we've----
    Mr. Burton. Are you going to give them to us?
    Mr. Horowitz. Well, I think in light of the President's 
order, we do not plan on doing that.
    Mr. Burton. Under what authority are you avoiding 
compliance with a valid congressional subpoena that compels you 
to produce these documents?
    Mr. Horowitz. As the President indicated, Mr. Chairman, the 
executive privilege of the executive branch has been invoked by 
the President.
    Mr. Burton. When did he claim executive privilege?
    Mr. Horowitz. The date of the memorandum is December 12, 
2001.
    Mr. Burton. December 12. Did the President claim executive 
privilege over these types of documents?
    Mr. Horowitz. That is our understanding.
    Mr. Burton. Excuse me. Did President Clinton claim 
executive privilege over these types of documents? And we 
really had a thorough investigation of him.
    Mr. Horowitz. Well, my understanding----
    Mr. Burton. No, just answer the question. Did President 
Clinton claim executive privilege over these types of 
documents?
    Mr. Horowitz. I believe there was an invocation of 
executive privilege with regard to some matter by President 
Clinton before this committee. But I know there was----
    Mr. Burton. Over these types of documents?
    Mr. Horowitz. I don't know the answer.
    Mr. Burton. Well, the answer is no. We got numerous 
declination memoranda, but we got the documents eventually. The 
La Bella and Freeh memos are two examples. And they didn't 
claim executive privilege.
    How about President George Herbert Walker Bush?
    Mr. Horowitz. I would have to go back----
    Mr. Burton. Well, the answer is no. How about President 
Reagan?
    Mr. Horowitz. My understanding is that there were 
invocations of executive privilege with regard to deliberative 
memoranda by prior administrations, including President Bush's 
administration. They are----
    Mr. Burton. According to my legal counsel, and they've been 
doing research on this, according to them, President George 
Herbert Walker Bush, President Reagan, President Carter, 
President Ford, President Nixon, President Johnson, Kennedy, 
Eisenhower, Truman, Roosevelt, Hoover Coolidge and President 
Harding, none of them used executive privilege over these types 
of documents. This is the first time we know of.
    Mr. Horowitz. Let me just say that there are two----
    Mr. Burton. Over these types of documents.
    Mr. Horowitz. Well, when you say these types of documents, 
my understanding is that deliberative materials, which is what 
we're concerned about here, that there have been such 
invocations. There's a 1982 and 1983 OLC opinion that outlines 
the invocations over the centuries by the Presidents of 
executive privilege in circumstances involving deliberative 
documents.
    Mr. Burton. Let me just go ahead and allow Mr. Tierney to 
take his questions and then I'll make a statement.
    Mr. Tierney. Thank you.
    I want to again go back to the case I talked about earlier, 
which is In Re Sealed case. It clearly says, where there's 
reason to believe that documents sought may shed light on 
Government misconduct, then this type of privilege is routinely 
denied. I think you must get by now that's what we're saying. 
This is a case where we think these documents shed some light 
on Government misconduct. It's not enough to ask you to give us 
an idea of what was in there or give us your interpretation of 
what was in there.
    The facts that are listed in that memorandum, the advice 
that may be given may at least give us the information of an 
individual who came to a conclusion that we may assume depended 
on some knowledge of Government misconduct, and we may want to 
bring that person in and question them. Or the facts alone may 
show that, or just the advice given may lead us to that 
conclusion that advice would never be given unless this person 
knew something else that we did it, and that's why we need it.
    Now, I'm troubled by the fact that the committee sent the 
Attorney General an invitation here and there was talk about 
this hearing, it's entitled The FBI's Handling of Confidential 
Informants in Boston: Will the Justice Department Comply with 
Congressional Subpoenas. The chairman invited a representative 
of the Department to testify and said that person will be asked 
to explain the new policy, which unfortunately, you haven't 
really been able to do fully, you haven't been able to 
differentiate the change in policy that you present here today 
or the President now imposes, compared with past policies. And 
asked that you be able to provide the committee with 
information regarding justification for the refusal.
    Now, we've had questions to you asking about your 
involvement or knowledge of the FBI's handling of confidential 
informants in Boston, and I don't think you have specific 
knowledge of that, am I right?
    Mr. Horowitz. I have general knowledge of the matter.
    Mr. Tierney. You do not have knowledge of who gave the 
orders to redact certain parts of the information that was 
given to the committee. That was beyond your knowledge.
    Mr. Horowitz. My understanding was that the producers of 
the documents at the FBI and the Department who were preparing 
them were the people who had to review them for 6(e) and other 
material. I don't know the exact names of who----
    Mr. Tierney. But you don't know names, exact names of who--
--
    Mr. Horowitz [continuing]. When it was done, how it was 
done, physically did the redacting.
    Mr. Tierney. And I would guess that you don't have any 
specifics on the internal FBI investigation, you weren't able 
to converse with Mr. Delahunt about the fact that there was an 
internal FBI investigation that in fact turned out to be a 
whitewash, because when Judge Wolf got the matter, he had 
pretty much discredited that report that ended up in a 
subsequent investigation. And you didn't really have 
information about the initial FBI investigation, right?
    Mr. Horowitz. As I sit here, I don't have information on 
that initial FBI investigation that Congressman Delahunt 
mentioned.
    Mr. Tierney. So the Attorney General had notice of the 
hearing----
    Mr. Delahunt. Would the gentleman yield for a moment?
    Mr. Tierney. Sure.
    Mr. Delahunt. I just want to clarify. That was an OPR, 
Office of Professional Responsibility investigation. So it was 
done in conjunction with FBI agents. I think it's important to 
put that on the record, John, and to clarify, so that Mr. 
Horowitz is not under any misunderstanding.
    Mr. Tierney. Thank you.
    Now, the Attorney General had notice of the hearing, notice 
of the hearing subject, was specifically asked to send somebody 
that was knowledgeable about these materials, about the 
specific case in Boston, about the policy, about the changes in 
policy. And I would be curious to know why someone with more 
specific information was not sent. It seems he's done you a 
disservice and the committee a disservice by not sending up a 
person or some persons with substantially more information on 
that. There had to be a number of people involved in those 
decisionmaking processes, or whether or not things would be 
disclosed or redacted or whether privilege would be claimed. 
And then he sent you with at least seven others, eight others, 
I see now, up here.
    So what I would like you to do for us is, would you 
introduce to us by name, by title and by responsibility vis-a-
vis this material, each of the individuals that you brought 
with you?
    Mr. Horowitz. Eric Sanstedt, who is Deputy Chief of Staff 
in the Criminal Division.
    Mr. Tierney. What is his responsibility with regard to the 
matters that were in the invitation?
    Mr. Horowitz. He's on the aides to Mr. Cherdoff, who has 
been involved in some of these matters, as the chairman knows.
    Mr. Tierney. So would he know who redacted all the 
information?
    Mr. Horowitz. I don't believe so.
    Matt Martens, who is also in the front Office of the 
Criminal Division. Steve Bunnell, who is in the front Office of 
the Criminal Division. Carl Thorsen, who is in the Office of 
Legislative Affairs. Ed Whelan, who is in the Office of Legal 
Counsel. Paul Colborn, who is in the Office of Legal Counsel.
    Mr. Tierney. Anybody else?
    Mr. Horowitz. And Jim Rybecki, who is a paralegal, 
Legislative Affairs.
    Mr. Tierney. And the gentlewoman behind you?
    Mr. Horowitz. I'm sorry. Faith Burton, who is also in the 
Office of Legislative Affairs.
    Mr. Tierney. What contribution have any of them made to 
this morning's presentation?
    Mr. Horowitz. They were involved in, at least many of them 
were involved in discussions and preparing for the hearing. 
And----
    Mr. Tierney. I'm just flapping--I mean, none of them know 
anything, but they were helping you prepare for the hearing, 
which you weren't able to testify about most things?
    Mr. Horowitz. They do know about, as I obviously haven't 
conveyed to the committee, my knowledge about the decision to 
invoke executive privilege and what that involves in this 
particular matter.
    Mr. Tierney. Who made the decision to invoke executive 
privilege? Who specifically was the one who bit the bullet and 
said, all right, this is where we're going?
    Mr. Horowitz. The President of the United States signed----
    Mr. Tierney. Ultimately, someone drafted that for him to 
sign.
    Mr. Horowitz. I don't know, and I don't believe it's 
appropriate----
    Mr. Tierney. Do any of these people here know?
    Mr. Horowitz. I don't believe that we're in a position to 
discuss internal deliberations----
    Mr. Tierney. Well, you are, and I'm asking you, do you know 
who made that decision, and if you don't know, do any of these 
people here know?
    Mr. Horowitz. The Attorney General made the recommendation 
to the President and the President agreed with the 
recommendation the Attorney General made.
    Mr. Tierney. So we're comfortable here as a committee here, 
we've all decided that the Attorney General is the one that 
actually made the recommendation?
    Mr. Horowitz. To the President, that's correct.
    Mr. Tierney. Who made the recommendation to the Attorney 
General?
    Mr. Horowitz. I don't believe we're prepared to go into 
discussions about who had what discussion with the Attorney 
General. Again, it's a problem----
    Mr. Tierney. Again, trust me. You can tell me who gave the 
opinion to the Attorney General that this should be invoked.
    Mr. Horowitz. I personally do not know whether there was 
one or many individuals that the Attorney General consulted 
to----
    Mr. Tierney. Well, why don't we have the committee convene 
again and see if we can determine from them----
    Mr. Horowitz. This is a matter that we believe is, our 
advice to the Attorney General is precisely the issue that's 
laid out by the President in the order he issued, which is the 
need to protect deliberations within the Department and to 
provide to the Attorney General----
    Mr. Tierney. All we're asking for is the name of the 
individual that gave the opinion. We're not asking the basis of 
the opinion, what the context of the opinion was, we want to 
know who had to make the decision. I mean, there's eight people 
here being paid on the taxpayer's dime and they didn't make the 
decision. They haven't done much here this morning except 
watch. Now I just want to know collectively if everybody can 
determine who made the decision, who made the recommendation to 
the Attorney General?
    Mr. Horowitz. Congressman, I will need to go back and 
consult with the leadership, including the leadership of the 
Department, to discuss who made what decisions, who was present 
when decisions and what we can disclose with regard to that.
    Mr. Tierney. Now, is that because none of you know, or 
because you'll all go back and discuss the issue of whether or 
not you can disclose it?
    Mr. Horowitz. I think it's in part a decision about what 
can and should be disclosed about who the Attorney General 
consulted with.
    Mr. Tierney. So amongst all of you, do you know who made 
the decision and you just refuse to tell us, or do you not know 
and have to go back and find out?
    Mr. Horowitz. Well, Congressman, I am not in a position to 
answer those questions. The leadership of the Department is 
going to have to decide to what degree the Attorney General 
wants to provide to the committee the individuals who were 
involved in the process.
    Mr. Tierney. Well, now, let me get real simple. You can't 
tell me, from this committee of many here, whether or not 
anybody in this group knows who made the advice to the Attorney 
General? That's the simple question at this point. Do any of 
you know who it is? You don't have to tell me who at the 
moment, but do you know who made that recommendation to the 
Attorney General?
    Mr. Horowitz. Congressman, we don't believe it's 
appropriate at this point for me or any of the people sitting 
behind me to make the decision for the Department to provide to 
the committee who the Attorney General consulted with and 
discussed this matter.
    Mr. Tierney. Now I'm not asking you who, I'm asking you if 
you know who. That's yes or no, not a name. Do any of you know 
who made that recommendation to the Attorney General, or is 
that something that nobody in this room knows?
    Mr. Burton. Would the gentleman yield to me?
    Mr. Tierney. Sure.
    Mr. Burton. Does the gentleman that I had sworn, at the 
beginning, do you know? You're under oath. Do you know who made 
the decision. You don't have to tell us who it was. Do you know 
who made the decision?
    Mr. Whelan. Sir, I believe that's a privileged matter that 
I'm not entitled to address.
    Mr. Burton. Do you know who made the decision? I'm not 
asking who it was. Do you know?
    Mr. Whelan. Sir, as the questions from Congressman Tierney 
have established, you go a little bit down this road, a little 
bit down this road, it's not a road that I can go down 
answering any questions on.
    Mr. Tierney. Are you a lawyer?
    Mr. Burton. Wait a minute. You were sworn. Would you come 
to the desk and take the microphone? This is pretty important. 
You're saying, Mr. Whelan--thank you for yielding--that you 
can't even answer if you know who made the decision to ask the 
President to issue an Executive order? You can't even say that 
you know that? We're not asking you who it was, but you can't 
even say that you know?
    Mr. Whelan. Congressman Burton, the next question down the 
line is obviously not, this is not a matter on which I am 
authorized to speak.
    Mr. Tierney. And I'm going to reclaim my time, too. Sir, 
are you a lawyer?
    Mr. Whelan. I am a lawyer.
    Mr. Tierney. Then you full well know we're not dealing with 
the next question down the line. We're dealing with the 
immediate question in front of you and Mr. Horowitz now. And 
that is, after consulting with all the people that you brought 
to this room, the simple question is, do you or do you not know 
who that individual is? We'll worry about the next question 
down the line when and if we ever get there.
    Mr. Whelan. The answer to your question is plainly covered 
by the deliberative process privilege. And I am not entitled to 
answer it.
    Mr. Tierney. I can't hear him, Mr. Chairman. He's got to 
speak up.
    Mr. Burton. Pull the microphone closer, please.
    Mr. Whelan. I apologize. With all respect, the answer to 
your question is covered by the deliberative process privilege. 
And I am not authorized to answer it.
    Mr. Tierney. You think the deliberative process privilege 
extends to testifying as to whether or not you know who an 
individual was that might have given advice?
    Mr. Whelan. Absolutely.
    Mr. Burton. We will pursue this further.
    I want to tell you, if the American people are watching 
this, I think they're going to be very chagrined that you can't 
even tell us if you know or don't know something. That is 
amazing. It's just amazing. If the Executive order, or the 
issue of executive privilege extends to you sitting before this 
committee and saying, I can't even tell you if I know or don't 
know something, then we've really gone off the deep end.
    Mr. Shays. Mr. Horowitz, I understand you're here because 
Mr. Chertoff couldn't be here.
    Mr. Horowitz. That's correct.
    Mr. Shays. And I guess I should be grateful for that. But 
would you tell me what your position is?
    Mr. Horowitz. I'm Chief of Staff to Mr. Chertoff.
    Mr. Shays. So you are basically an administrator for the 
Assistant Secretary for----
    Mr. Horowitz. Hopefully I do a little bit more than the 
administering. I actually am involved in substantive issues as 
well, Congressman.
    Mr. Shays. Right. But you are his chief of staff, right?
    Mr. Horowitz. Yes, and provide him counsel on a variety of 
issues.
    Mr. Shays. See, our committee is having a chief of staff, 
and when Mr. Lieberman has this same issue, he's going to have 
the Attorney General, that's going to be the difference. And 
he's the one basically who has signed off on this, and he is 
the person who has come to me and others to ask for immense 
powers.
    And I hold, I know you're here to present the position of 
the Department. I have a very difficult time, in part because I 
know about the case. Do you know about the case?
    Mr. Horowitz. I know the general details of the case. I 
don't know----
    Mr. Shays. Was Mr. Salvati innocent?
    Mr. Horowitz. I think there's a serious issue about whether 
he was indeed innocent. I do know that there were failures, 
inappropriate failures, to produce relevant information.
    Mr. Shays. OK, so right now, you and I have a disagreement, 
because he was innocent. And he was let out of jail because he 
was innocent. So right now, we have a problem. Because if you 
have that view, the papers you're going to let us see are based 
on a distortion, in my judgment, of the case.
    Tell me about his wife. What do you know about his wife?
    Mr. Horowitz. I don't know much about his wife, any details 
about his wife.
    Mr. Shays. Do you know how often she visited him?
    Mr. Horowitz. I do not.
    Mr. Shays. You don't know that she visited him every week 
for 30 years? Did you know that?
    Mr. Horowitz. I did not know that until you mentioned that, 
Congressman.
    Mr. Shays. Do you know how many children he has?
    Mr. Horowitz. I do not.
    Mr. Shays. Do you know that all of his children, that they 
were very, very young, and for the next 30 years, they 
basically came to visit him at least twice a month for 30 
years?
    Mr. Horowitz. I do not know that.
    Mr. Shays. Do you know that the FBI agent who sent him to 
jail knew he was innocent?
    Mr. Horowitz. I understand that there was information that 
the FBI had that indicated he may well have been innocent.
    Mr. Shays. Do you know that there was information that the 
Chelsea police had that would have proved that he was innocent?
    Mr. Horowitz. I don't know as I sit here what the Chelsea 
police have.
    Mr. Shays. Did you know that the Boston police had 
information that would prove he was innocent?
    Mr. Horowitz. I believe I had heard that.
    Mr. Shays. Do you know that the State Police had 
information that would prove he was innocent?
    Mr. Horowitz. I believe I had heard that there was relevant 
information in the State Police.
    Mr. Shays. Are you aware that all four, the FBI, the 
Chelsea police, the Boston police and State Police, even though 
they knew he was innocent, still let him stand on trial, and 
that he was originally going to be sent to death, had a death 
sentence?
    Mr. Horowitz. I'm aware of that, and I indicated earlier, 
Congressman, I think what happened there was terrible. I'm not 
disputing that in the least.
    Mr. Shays. No, but you're not sure he's innocent. That's 
part of the problem.
    Mr. Horowitz. The reason I'm saying that is, I have not sat 
and read every fact and every circumstance and I----
    Mr. Shays. But we have. We have. We have information that 
you don't have, and now we're trying to understand how the 
Chelsea police, the Boston police, the State Police and our own 
FBI could allow an innocent man to spend 30 years in jail. 
That's why I am angry. That's why I'm angry.
    And so that's what I have to wrestle with right now, is 
thinking that you all are preventing us from getting the facts 
and understanding why this has happened.
    Mr. Horowitz. And----
    Mr. Shays. That's what you're doing.
    Mr. Horowitz. Well----
    Mr. Shays. You're doing it because you think you're right. 
You have stated in a statement to us that this is not a new 
policy. But that's frankly untrue.
    Mr. Horowitz. My understanding is it is not a new policy 
for the Department of Justice and the executive branch as a 
whole to protect deliberative memoranda.
    Mr. Shays. So you're saying that Congress for years and 
years and years hasn't been getting these memos?
    Mr. Horowitz. What I'm saying is, there are examples where 
the Department and where the President has decided to produce 
information. There are also examples, as outlined in these two 
OLC opinions from 1982 and 1983 that demonstrate almost 200 
years of history where Presidents have invoked executive 
privilege to protect deliberative materials.
    Mr. Shays. No, wait a minute. We've had executive 
privilege, I mean, that's disingenuous. I know that. But on 
these documents that this is not a new policy?
    Mr. Horowitz. These documents are a subset of documents 
that involve internal deliberative memoranda.
    Mr. Shays. On a closed case 30 years old.
    Mr. Horowitz. That's correct. But they are a subset of 
deliberative materials. The issue here is deliberative 
materials. And that's what, as outlined in these summary 
decisions----
    Mr. Shays. Do you know why we want this information?
    Mr. Horowitz. I understand the committee's interest in 
trying to get----
    Mr. Shays. No, tell me why. Why do we want this 
information?
    Mr. Horowitz. The committee is, among other things, 
reviewing the handling of informants by the FBI by these other 
entities and other----
    Mr. Shays. Why do we want to do that?
    Mr. Horowitz. There could be a number of reasons. I 
certainly don't presume to say what the number of reasons, but 
there could be a number of reasons.
    Mr. Shays. No, no, I want you to explain to me, why would 
we even want to look at the informants?
    Mr. Horowitz. I could envision a desire to write new 
legislation, I could recognize a desire----
    Mr. Shays. Tell me the abuses that took place. Tell me the 
abuses. Why would we be so outraged at this case, and why would 
we want to understand why the people who were supposed to 
enforce the law were breaking the law? Tell me why we would 
want to know about informants.
    Mr. Horowitz. Congressman, I understand completely why 
anyone who looked at this, including this committee, would be 
outraged by what they saw. I had a----
    Mr. Shays. You don't know the case, though. You don't know 
the case.
    Mr. Horowitz. I have, as a prosecutor, I prosecuted a 
number of law enforcement officials for corruption.
    Mr. Shays. No, but you don't know this case.
    Mr. Horowitz. I understand how terrible it is.
    Mr. Shays. Mr. Horowitz, do you know this case?
    Mr. Horowitz. I explained to you my general understanding 
of what happened here.
    Mr. Shays. And your general understanding was, you didn't 
know how many kids he had, you didn't know that his wife went 
to visit him, you didn't know. Tell me about the two 
informants.
    Mr. Horowitz. I----
    Mr. Shays. No, stop. Stop. Tell me about the two 
informants. Tell me about those informants. You know about the 
case. Tell me about it.
    Mr. Horowitz. My understanding is that----
    Mr. Shays. Tell me their names.
    Mr. Horowitz [continuing]. Mr. Bulger and Mr. Flemmi were 
FBI informants----
    Mr. Shays. Right.
    Mr. Horowitz [continuing]. And providing information at the 
same time. There are allegations, and I have to be careful what 
I say, because there is an indicted case right now in Boston, 
involving the FBI's handling of those informants and whether 
there was corrupt activity involving the handling of those 
informants.
    Mr. Gilman. Would the gentleman yield?
    Mr. Shays. Why is Mr. Bulger involved in the Salvati case? 
Tell me why you're saying he's involved.
    Mr. Horowitz. When you mentioned the two informants, those 
are the two informants under indictment right now in 
connection----
    Mr. Shays. OK, and how is he involved in the Salvati case?
    Mr. Horowitz. I can't as I sit here today describe for you 
what each person did in that case.
    Mr. Shays. Because you don't know. The reason is you don't 
know. He's not involved in the Salvati case.
    Mr. Horowitz. What I'm trying to----
    Mr. Shays. You heard his name mentioned over there, so you 
made an assumption----
    Mr. Horowitz. No, believe me, Congressman, having spent 
time in Boston, I understand completely the significance of Mr. 
Bulger, Mr. Flemmi and while I may not know the specific facts 
about how many children and all that they had----
    Mr. Shays. I'm going to yield to my colleague.
    Mr. Horowitz [continuing]. I frankly don't think it 
matters. It's obviously even----
    Mr. Shays. It matters to me.
    Mr. Horowitz. Let me finish, please. To me, whether he had 
3 kids or 10 children, what would have happened, to send an 
innocent person to jail, would be wrong. And that's what I 
know. And that's----
    Mr. Shays. You know why it matters? Because the FBI tried 
to keep him in jail. They didn't just send him to jail, the 
tried to keep him in jail.
    Is the FBI under the Justice Department?
    Mr. Horowitz. It is.
    Mr. Shays. It's a dumb question, right, and you can smile.
    Mr. Horowitz. No, I'm not, it's just----
    Mr. Shays. The reason I'm asking is, the Justice Department 
oversees the FBI. And we're trying to get information that the 
Justice Department has, but they don't want us to get it. 
Shouldn't I be a little uncomfortable with that?
    Mr. Horowitz. What I would hope is that as we go forward in 
trying to provide the committee with documents and materials 
and information, that the committee would see that we are 
willing to provide the information that allows the committee to 
take a full review of this matter. That is certainly what I 
understand we will go forward.
    Mr. Shays. I yield to Mr. Gilman.
    Mr. Gilman. I thank the gentleman for yielding. I'm being 
called to another meeting and that's why I thank the gentleman 
for yielding.
    Mr. Horowitz, you said that it was the Department, the 
attorneys that recommended to the Attorney General that there 
be a change of policy, is that correct?
    Mr. Horowitz. No. What I tried to get across was that it is 
my understanding that the position of the Department, the 
position of the executive branch has been that deliberative 
memoranda, in this case deliberative memoranda written by line 
attorneys, has long been viewed to be covered by executive 
privilege.
    Mr. Gilman. But what I'm asking you is, did anyone in your 
Department make a recommendation to the Attorney General that 
there be a change of policy?
    Mr. Horowitz. I appreciate the question. I am told that 
discussions about who recommended what to whom is something we 
need to consult with----
    Mr. Gilman. Well, the Attorney General didn't do this on 
his own, did he? I'm sure he took advice from his counsel. Is 
that correct?
    Mr. Horowitz. I assume so, yes.
    Mr. Gilman. All right, then, the Attorney General, after 
getting advice on the change of policy then made a 
recommendation to the President, is that correct?
    Mr. Horowitz. My understanding is that the Attorney General 
did make a recommendation to the President.
    Mr. Gilman. Do you know when that occurred?
    Mr. Horowitz. I do not know.
    Mr. Gilman. And then the President, just in the last few 
days, made this change of policy, is that correct?
    Mr. Horowitz. The order is dated yesterday, December 12th.
    Mr. Gilman. And was that based upon this case, this change 
of policy?
    Mr. Horowitz. If I could have a moment.
    Mr. Gilman. Please.
    Mr. Horowitz. Congressman, it was occasioned by this 
subpoena, so it involved this specific matter.
    Mr. Gilman. It was occasioned by this case?
    Mr. Horowitz. That's correct.
    Mr. Gilman. Thank you very much. Thank you for yielding.
    Mr. Burton. The gentleman's time has expired.
    Mr. Clay.
    Mr. Clay. Thank you.
    Let me first say that, you know, the FBI is an organization 
that has a history of successes combating criminal activity and 
threats. And I applaud the Bureau for those successes.
    The Bureau has also a history of failures and subsequent 
cover-ups as well. And we do not have to name all of these, as 
most are well documented. The Salvati case is an example that 
illustrates the need for oversight, as is the performance of 
the FBI in so-called undercover work with the Ku Klux Klan 
during the era of civil rights unrest in the 1960's and 1970's. 
There are other incidents of note.
    Whitey Bulger is on your most wanted list, correct?
    Mr. Horowitz. That's correct, he's on the top 10 list.
    Mr. Clay. And is that where you make the assertion that, 
are you asserting privilege because he is part of the ongoing 
criminal, active criminal investigation?
    Mr. Horowitz. There is the concern about the open case 
that's about to go to trial in Boston. But the documents at 
issue here are, the concern and the reason for the invocation 
involves the deliberative nature of the documents, not 
necessarily the open case issue.
    Mr. Clay. OK, now, you know, it's customary for a party 
asserting privilege to submit a privilege log identifying each 
document subject to a claim of privilege and providing a 
general description of the document. And the purpose of this is 
to help us determine if the claim of privilege is valid or just 
an effort to conceal information. Mr. Horowitz, will the 
Justice Department provide a privilege log to the committee 
describing all documents that you believe are subject to 
executive privilege or any other privilege?
    Mr. Horowitz. If I could, I would certainly go back to the 
Department and raise that issue and consult and get an answer 
to the committee promptly on that question.
    Mr. Clay. Well, you know, for you to assert privilege, you 
know, a recent ruling says that when there is a reason to 
believe the documents sought may shed light on Government 
misconduct, the privilege is routinely denied on the grounds 
that shielding internal Government deliberations in this 
context does not serve the public's interest in honest and 
effective Government.
    I mean, you know, what are we shielding here? We know 
Bulger is on the 10 most wanted list for the FBI. Yes, he's 
been indicted. What are we trying to protect?
    Mr. Horowitz. Let me just correct, he has been indicted in 
the Boston matter.
    Mr. Clay. I said he's been indicted, yes.
    Mr. Horowitz. Oh, I'm sorry. What we're discussing here is 
the protection of the deliberative materials that invocations 
that have occurred, as I said in my opening statement, back to 
George Washington through administrations of the present on 
deliberative documents, as a general matter, that's what's at 
issue here with regard to the Boston case. It's not, we don't 
believe, a new policy.
    What we are prepared to do is work with the committee to 
get the committee the information so that the committee can 
look at this matter, look and see what happened in Boston.
    Mr. Clay. Well, would any release of this information 
undermine an active criminal investigation?
    Mr. Horowitz. That's a separate matter, and it might well. 
I would need to go back and do an analysis on open case. 
Because there is, as I said, a pending indictment, and there 
will be a trial. It's currently scheduled, I'm told by the 
prosecutors who handle it, next January, in a month. And I 
would certainly, in order to answer that question, we would 
need to go through it and determine which of the documents 
might relate to an open case.
    Mr. Clay. OK, thank you.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]
    [GRAPHIC] [TIFF OMITTED] T8051.039
    
    [GRAPHIC] [TIFF OMITTED] T8051.040
    
    Mr. Burton. Thank you, Mr. Clay.
    Mr. Cummings.
    Mr. Cummings. I was just sitting here thinking--thank you, 
Mr. Chairman. I want to thank you, Mr. Chairman, for calling 
this hearing. I've got to tell you that this is totally 
frustrating. And it, you know, they're taught in law school 
about things being shocking to the conscience. The lack of 
information that we're getting here today is frightening.
    And as I sit here, I was just wondering, who do you all go 
back to after this is over and who congratulates you for what 
you've been able to achieve here today? I mean, when you go 
back to the office, somebody's going to say, guys, you did a 
great job of stonewalling, and I sure would like to know who 
that is. This is so frustrating.
    I mean, I'm sitting here, and I'll be frank with you, I've 
been in many, many situations, but this is one of the most 
frustrating situations I have ever been in in my 6 years in 
Congress. Because I feel like, you know, I remember during the 
Watergate hearings, somebody said, I'm not a potted plant, one 
of the lawyers. And that's how I feel, I feel like a potted 
plant today.
    It's not, and I guess I feel it more not so just because of 
me, but because of the people that I represent. They still 
believe in a democracy. You know, they want to believe in a 
democracy. They want to believe that Government is open and 
that Government is fair. They want to believe that. They want 
to believe that prosecutors do the right thing, they want to 
believe that when somebody is convicted wrongfully, a 
prosecutor wants to vomit, because they knew that person was 
wrongfully convicted. They want to believe that.
    They want to believe that someone would, in a prosecutor's 
office, would cry murder if somebody spent 30 years, 30 
Christmases, 30 Easters, 30 years, of their life. We have one 
life to live, this is no dress rehearsal, and this is the life. 
Just the idea of it. And I don't get that, I don't feel it. I 
don't feel it.
    And then we ask questions, and we can't get simple answers. 
You know, at some point, we've got to ask ourselves, where are 
we headed in this society. We criticize other governments for 
the way they do business and the way they conduct trials and 
the way they send people to prison. And then we sit here as a 
Congress and we can't get simple answers.
    I guess I'm curious as to how was the team, the team of 
people that are here, I mean, I'm just trying to figure out why 
we're even here if we can't get answers. We're paying folks to 
do a job, we're paying dollars, taxpayers dollars, and we're 
wasting our time. And it's very, very frustrating. And I'm not 
saying this because--I'm just sitting here saying, why am I 
sitting here.
    So tell me, since we don't seem to be able to get answers 
to the questions that have been asked, how was this team 
assembled that are here? Who are they and why were they picked, 
and the gentleman that's sitting next to you? I'm just curious. 
Why do we have this team here today? Who are they? What are 
their roles?
    Mr. Horowitz. Well, Congressman, first let me apologize if 
I haven't been able to impart information----
    Mr. Cummings. Well, let's go back to the first part. Who's 
going to say congratulations for stonewalling?
    Mr. Horowitz. I'm not expecting anybody to say 
congratulations, and I'm not here to do any stonewalling. I'm 
here to try and explain----
    Mr. Cummings. But that's how it feels, and it's 
frustrating.
    Mr. Horowitz. I certainly understand that, and I understand 
certainly the Members' concern about what happened in Boston. 
As I mentioned before, I've been in circumstances where I've 
prosecuted police officers and Federal law enforcement officers 
and people have gotten out of jail because of it who should not 
have been in jail. Fortunately, for my circumstance, no one had 
been in for 30 years, but they'd been in for many months and in 
some cases years.
    So I agree with you completely that this is not any matter 
to sit back and congratulate anyone about. We are trying to 
provide the information that we can, consistent with our 
constitutional responsibilities, and to do it in a way that 
gets the committee as much as information as we are able to do 
about all of the facts, all of the circumstances that happened 
here. And like I said, I'm not looking to go back for anyone to 
congratulate me. Hopefully I came here and offered some 
assistance in explaining what our views were. Obviously, if I 
didn't do that, I certainly apologize to you and the other 
members of the committee. But that's what I'm trying to do.
    Mr. Cummings. OK, do you understand our frustration? 
Somebody said a little bit earlier, you know, you've got 
Democrats and Republicans frustrated over this. This is major 
stuff.
    Mr. Horowitz. No, I----
    Mr. Cummings. I mean, because we don't agree on a whole lot 
of things.
    Mr. Horowitz. Believe me, I understand that, Congressman.
    Mr. Cummings. Any time you get me agreeing with the 
chairman, I mean, they tell me I'm far left, and they tell me 
he's just to the right of center. And we agree on this. I mean, 
it's just--I guess like I said, I think about my constituents 
and I think about all the people who have gone through so many 
situations and then it just seems that Government takes the 
position that we are right. Well, Government isn't always 
right. And in order for us to get to where our Government is 
wrong, we have to have information.
    And so I yield back, Mr. Chairman.
    Mr. Burton. The gentleman yields his time.
    Mr. Delahunt. Incidentally, Mr. Delahunt, you were 
prosecuting attorney at the time that the Salvati case took 
place, were you not?
    Mr. Delahunt. Mr. Salvati was prosecuted, Mr. Chairman, 
before I became district attorney.
    Mr. Burton. But you were district attorney up there, and 
you're conversant with a lot of these things?
    Mr. Delahunt. I am. I'm conversant with it, unfortunately 
I'm conversant with it.
    You know, we've focused today on Mr. Salvati, and that's 
appropriate. I respect the passion I just heard from my friend 
to my right. But let's be clear. The Salvati case is not 
unique. Would you agree with that, Mr. Horowitz?
    Mr. Horowitz. I certainly think there are more issues 
beyond the Salvati case with regard to the handling of 
informants----
    Mr. Delahunt. Not just in Boston.
    Mr. Horowitz. Right.
    Mr. Delahunt. There have been allegations about other 
offices, not just in Boston, but in New York. I don't want to 
enumerate them, I don't think that's necessary. But what we're 
talking about is, as Senator Specter and Senator Grassley said 
during the course of the confirmation hearings of the Attorney 
General, was that it's a culture.
    And it isn't just about depriving people of their liberty. 
It's about murders. Stop and think, Mr. Cummings, for a moment, 
about those who because of misconduct by personnel within the 
Department of Justice, and I'm correct in stating that the FBI 
is within the Department of Justice, correct, Mr. Horowitz?
    Mr. Horowitz. That's correct.
    Mr. Delahunt. That because of conduct, that people were 
given information that led to the murders of people. Is that a 
fair statement?
    Mr. Horowitz. If you're raising allegations I need to be 
careful----
    Mr. Delahunt. Well, is there some evidence that would 
indicate that?
    Mr. Horowitz. There are certainly allegations, if I could 
phrase it that way, Congressman.
    Mr. Delahunt. Right. Now, I mentioned, and I think it's 
really important, too, because when we continue to hear, well, 
the Department of Justice has taken steps, we created a task 
force, we did A, B, and C, I think it's important to really 
understand that they did it reluctantly. This simply didn't 
happen. It's my understanding that Judge Wolf, but let me pose 
it in the form of a question.
    Is it your understanding that Judge Wolf had to threaten 
the deputy attorney general in a previous administration with 
contempt of court before the names of Mr. Bulger and Mr. Flemmi 
were revealed as informants?
    Mr. Horowitz. I do not know if Judge Wolf specifically 
ordered or threatened the deputy attorney general with 
contempt. I do know----
    Mr. Delahunt. Let me rephrase. I understand it's the 
assistant attorney general. Let me rephrase it so I can make 
sure I'm not misstating it, a senior official in the Department 
of Justice.
    Mr. Horowitz. And as I said, my answer would stay the same 
as to whether he indeed issued a contempt order. I do know that 
Judge Wolf spent, as you indicated, a fair amount of time 
digging and reviewing into this matter.
    Mr. Delahunt. Right. But it was the Department of Justice 
that refused to disclose the names of Mr. Bulger and Mr. Flemmi 
as informants until the threat of a contempt citation was put 
forth by Judge Wolf. I guess what I'm suggesting to you is that 
the record of the Department of Justice in this entire matter 
is abysmal. It truly is abysmal for all fair-minded people. I'm 
not suggesting anyone here that works for the Department of 
Justice intended bad things to happen. But with all due respect 
to Mr. Whelan, not to respond to the Chair's question and not 
to respond to Mr. Tierney's question about, do you know if, 
without getting on to the second question, that does not carry 
confidence in the Department of Justice.
    I would suggest that you go back and think of what you're 
doing. Because I've got to tell you what you're doing. You're 
undermining the confidence of the American people in the 
Department of Justice by this presentation here this morning. 
And I'm not singling out any individual. But you've got to go 
back and say, we didn't hear anyone on this panel from left to 
right, from Democrat to Republican, appreciate or respect the 
testimony that we proffered this morning.
    And I don't know if it's already been inquired of, but in 
your statement, on page 4, there's a declarative sentence that 
says legislative branch political pressure on executive branch 
prosecutorial decisionmaking is inconsistent with the 
separation of powers and threatens individual liberty. Are you 
suggesting that this committee is exercising its authority in 
creating political pressure on the Department?
    Mr. Horowitz. No, Congressman. What the concern is is that 
making documents, deliberative documents of line attorneys 
available for public dissemination----
    Mr. Delahunt. Well, why did you make that statement, Mr. 
Horowitz?
    Mr. Horowitz. The concern is that could be a result of 
making available line attorney pre-decisional memoranda to 
their supervisor and chill their ability or their willingness 
to carefully and fully analyze the case and decide whether to 
prosecute or perhaps not to prosecute.
    Mr. Delahunt. Well, let me followup. In your testimony, or 
in your discussions, and again, I don't know if you agree with 
my interpretation of the Supreme Court decisions, a case by 
case basis, but you fail to even assert that the Department has 
a particularized interest in withholding the information that 
was requested. Is that a fair statement?
    Mr. Horowitz. I think what we've tried to address and lay 
out for the committee, and the committee has the President's 
order, is the concern about chilling the deliberative process.
    Mr. Delahunt. Chilling. But you did not, have you provided 
a log of statements, any of the documents that have been 
requested, given us an, identifying those documents which are 
subject to a claim of privilege?
    Mr. Horowitz. Congressman Clay actually asked us to prepare 
and produce for the committee a privilege log. And as I 
mentioned to him, I will certainly go back and discuss that and 
respond.
    Mr. Delahunt. I understand. You're going to be so busy when 
you go back, Mr. Horowitz, with all due respect. I understand 
negotiations between counsel for the committee and the 
Department have been going on for some time. For you to come 
forward today without having an answer to that particular 
question, I'm just--I'm disappointed. I'm truly disappointed.
    You can provide us with a statement quoting a variety of 
statements. We can all indulge in platitudes and string them on 
and on. But you're an attorney. You've tried a number of cases, 
I presume.
    Mr. Horowitz. That's correct.
    Mr. Delahunt. Then why didn't you assert a particularized 
need to withhold information given the documents that were 
requested by the Chair and by counsel?
    Mr. Horowitz. My understanding is that the request first 
came in connection with the subpoena issued back in September, 
that--I'm also told that in light of what happened on September 
11th, that the decision was made to delay the request for the 
documents until a later date, and that this hearing was then 
set fairly recently.
    Mr. Delahunt. You know, honestly, that's just an 
unsatisfactory response. I mean, you're here with a number of 
professionals from the Department. To think that you would come 
before this committee without having a log prepared, without 
having a description of a particularized need to withhold that 
information, I mean, there is no one on this--go ahead, you can 
interrupt.
    Mr. Horowitz. I was going to say, I think as far as I'm 
aware, there is only one court decision that specifically 
addresses an assertion of executive privilege in connection 
with a subpoena request from a congressional committee, and 
that was the Senate Select case decided by the D.C. circuit. 
And what the D.C. circuit laid out was that the Department, 
upon an assertion of the Department that certain documents fell 
within the scope of its executive branch privilege, that the 
Congress was then obligated to present the particularized 
reason and the critical need for the documents, and that, to my 
understanding, is the only court decision out there that 
specifically addresses a congressional request for information.
    Mr. Delahunt. It's my understanding that there are numerous 
cases. I think I would yield any time he might want to the 
majority counsel.
    But again, let me go back to what I was saying earlier.
    Mr. Burton. If Mr. Delahunt would just yield, I have to go 
to another meeting. I'd like to take my time and then Mr. Shays 
is going to take the Chair. You gentlemen, we'll allow you as 
much time for questioning as you want. And I hope you will take 
advantage of that.
    Let me just cite for the record that the Attorney General 
of the United States, Mr. Ashcroft, was on CNN's Late Edition 
with Wolf Blitzer, and I'm sure you're aware of this. And he 
was asked, when we were trying to get documents from Janet Reno 
regarding some cases regarding the previous President, 
President Clinton, and Mr. Ashcroft said, and I'm paraphrasing 
him, because I don't have the exact quote, that Janet Reno 
ought to comply and ought to give us those documents, that the 
Congress had a right to them.
    Now he's the Attorney General and he's taking an entirely 
different position. And that is very disconcerting to me.
    Mr. Horowitz. Can I respond to that, Mr. Chairman?
    Mr. Burton. Sure.
    Mr. Horowitz. I actually have, you cited that in your 
letter, which I have with me. If I could just address that.
    What then-Senator Ashcroft said was, ``There are only two 
reasons why a person can fail to respond to a subpoena from the 
House. One is that there is no jurisdiction of a committee.'' 
This committee clearly has jurisdiction here. ``Secondly, 
executive privilege would be asserted.'' And he goes on, two 
sentences later, saying, ``I think the House simply has to say, 
either our subpoenas are respected or they are challenged on 
appropriate grounds. And if they are not, stonewalling won't do 
it.'' And he goes on.
    So I do think the distinction here is, and what then-
Senator Ashcroft was saying was, there are two options, 
executive privilege or you produce. Stonewalling is not a third 
option.
    Mr. Burton. I see. So you don't call this stonewalling?
    Mr. Horowitz. No. The President has asserted executive 
privilege.
    Mr. Burton. If there was a court order for a deliberative 
document prepared during a criminal investigation, would you 
comply? If it was a court order?
    Mr. Horowitz. I think at that point the case law says, and 
there is Supreme Court case law on that issue, that the court 
has to do a balancing of the asserted privilege basis by the 
Government, by the executive branch, against the need of the 
judicial branch for the information, the same type of balancing 
that would go on----
    Mr. Burton. So you're saying it would have to go to another 
court to make the determination that the Court that ordered 
that would be allowed to have it, right?
    Mr. Horowitz. If we are talking in terms of court order, I 
am thinking court subpoena----
    Mr. Burton. No. If there was a court order for a 
deliberative document prepared during a criminal investigation, 
would you comply?
    Mr. Horowitz. If there is a court order, I think we would 
probably comply. I think people would have to look at the 
document to determine whether there were any privileges that 
could or should be raised, that we are obligated to----
    Mr. Burton. So why would you comply with a request from the 
judicial branch and not from our branch?
    Mr. Horowitz. I think, Mr. Chairman, it really depends on a 
fact-by-fact analysis, as we have discussed before. It really 
depends on what the document is at issue.
    Mr. Burton. I am sure we are not going to change your mind, 
and I am not going to take a lot more time on this. But it 
looks to the Congress, you have seen across the spectrum, from 
right to left, from Democrat to Republicans, we all disagree 
with you. We all think this is stonewalling. And I think the 
American people are going to draw the same conclusion when they 
hear this. It is just a terrible, terrible precedent to set, 
and it is a precedent. I just think this is absolutely wrong. 
And at the end of the day, it looks like the Justice Department 
is hiding something. And I would like to recapitulate what is 
at stake for just a couple of minutes.
    This committee is conducting a thorough investigation of 
the FBI's use of a confidential informant, or informants, in 
Boston. The picture could hardly be worse. Earlier this year we 
had a hearing and we heard from Joe Salvati and his wife Marie. 
He spent 30 years in prison for a crime he did not commit. And 
worse, the Government knew about it. They knew he was innocent 
and they left him in prison. And he would have gotten the death 
penalty if they had their way. And who was Salvati doing time 
for? The real guilty party was a government informant that the 
FBI was working with named Jimmy Flemmi. Jimmy Flemmi. He was 
known to the Director of the FBI J. Edgar Hoover as a man who 
had killed numerous people, but he was being protected because 
he was an informant. The Government also wanted his brother to 
be an informant, and they succeeded. Stevie Flemmi ended up 
serving as a government informant for decades. During the time 
he was a government informant he was protected by the FBI and 
he killed dozens of people--and they knew it. He is currently 
under indictment for many of these murders.
    There are many reasons that we are conducting this 
investigation. First, we need to know whether we should change 
the laws. And you are blocking us in that area. We will have 
hearings about this subject next year, and we are going to have 
a lot of them. It is also important to reach a complete 
understanding of what happened. Inscribed on the United States 
Archives are the words, ``What is past is prologue.'' How can 
we avoid the terrible mistakes made in Boston if we sweep the 
conduct under the rug? And we do not know how to get to all 
these things if you keep us from getting documents. And 
finally, the people who suffered, Joe Salvati, who spent 30 
years in prison for a crime he did not do, the mothers and 
fathers of many people killed by Stevie Flemmi and Whitey 
Bulger, the sons and daughters of those who died, they all 
deserve to have someone take a long, hard look at what 
happened.
    It should be made public, all of it; something the Justice 
Department could not do, even if it wanted to. And now the 
Justice Department will not let us conduct a thorough 
investigation. They are blocking the Congress who has 
legitimate oversight responsibilities. If we knew that the 
Justice Department was policing themselves, it might not matter 
that much. But they are not policing themselves. The first 
question we ask witnesses when we talk to them is: Has the 
Justice Department talked to you? A lot of these people we 
asked if the Justice Department has talked to you, the answer 
over and over was no. After we had Paul Rico in here, the FBI 
agent, at our May hearing, we found that no one had even 
bothered to talk to him and he was complicitous in putting Joe 
Salvati in jail for 30 years knowing he was innocent. And you 
guys at Justice never even talked to him. And you will not let 
us have documents so we can do our job.
    Time and again, we have found that the Justice Department 
just has not done its homework. And today is another 
manifestation of that. Why not? What are you protecting, and 
why? And if you are not going to do the work, why don't you let 
us do the work? As I said, you have got $1 million worth of 
talent out there and nobody wants to answer anything or knows 
anything.
    I asked the Justice Department a few months ago to provide 
me with a list of all the situations in the past where 
deliberative documents have been provided to Congress. The 
Justice Department has not provided that list. Tell me about 
what you have done to prepare a list like that. Can you tell me 
that?
    Mr. Horowitz. Well----
    Mr. Burton. You are looking around. You do not know.
    Mr. Horowitz. I do not know what has been done to prepare 
the list.
    Mr. Burton. You do not know. Do the guys behind you know 
anything about that?
    Mr. Horowitz. We will check into that and get back to the 
committee with a list of what we have got and provide the 
committee with those materials.
    Mr. Burton. OK. Who, in the case of Salvati, has been 
interviewed by the Justice Department so we can end up with a 
complete list? Who has been interviewed? Can you give us any 
names that you have interviewed regarding this guy being in 
jail for 30 years for something he did not do?
    Mr. Horowitz. I am not familiar with who specifically was 
interviewed in connection with the investigation.
    Mr. Burton. And will you commit to providing the committee 
with a complete list?
    Mr. Horowitz. I will certainly go back and discuss that. 
But not knowing who was discussed, and given the status of the 
indicted case that is going to trial, or at least is scheduled 
for trial next month, it is a matter I would need to discuss 
with the prosecutors who are handling the matter.
    Mr. Burton. We are asking about other cases, not this case, 
other cases where you have provided deliberative documents. 
That is the list we want to have.
    Mr. Horowitz. We will go back document by document review 
it and provide the committee with materials that do not involve 
these type of deliberative documents.
    Mr. Burton. Can you envision any circumstance where 
Congress would need deliberative information from a criminal 
investigation and that you would comply? Can you think of any 
case where you would give us that information? The deliberative 
information.
    Mr. Horowitz. Certainly in situations as the chairman has 
mentioned, the Teapot Dome scandal and the Watergate scandal, 
there are situations that materials have been provided to 
committees.
    Mr. Burton. No. I am talking about in the future. Can you 
envision any circumstance where Congress would need 
deliberative information from a criminal investigation that you 
would give us?
    Mr. Horowitz. If there were situations analogous certainly 
to those matters, yes. But it is hard for me to sit here and 
hypothesize about particular cases that have not happened or 
how will they come up.
    Mr. Burton. Well, OK. But if you would give them to us 
under those circumstances, why would you not give us 
deliberative documents in the Salvati case?
    Mr. Horowitz. Because as--and I know I am covering old 
ground--as laid out in the President's order, and then, as I 
said in my opening statement, we are prepared to go and try and 
work on accommodations with the committee in providing the 
information short of these handful of documents we are talking 
about.
    Mr. Burton. So you are saying, because of the President's 
claim of executive privilege in this particular instance, you 
would not or could not do anything. So are we going to have to 
have the President claim executive privilege in the future on 
other areas where we want deliberative documents?
    Mr. Horowitz. No. I think what is likely to go----
    Mr. Burton. This one covers it? Will this one cover any 
deliberative documents in the future that we might want?
    Mr. Horowitz. I think with regard to every request and 
every subpoena, there would need to be an accommodation. And 
hopefully, that would resolve the dispute and there would be no 
need for consideration of requests.
    Mr. Burton. No. I am saying does this Executive order from 
the President, the claim of executive privilege, does that 
cover any deliberative documents in the future that we might 
want? Have you read that thing? Do you understand it?
    Mr. Horowitz. With respect to any case?
    Mr. Burton. Yes, any case coming up that you want to claim 
executive privilege, would this cover that?
    Mr. Horowitz. I think that this order would involve the 
subpoena at issue, or the subpoenas involved, which in this 
case were the Gore memoranda, the Middleton memoranda, and the 
Boston matter. I think for other future matters, we would need 
to reconsider and determine from there whether they were 
covered by privilege.
    Mr. Burton. That really does not make sense, because we 
have read that claim of executive privilege and it appears to 
me to be far-reaching. And if you guys have read that thing, it 
appears to me that it is going to cover deliberative documents 
anytime the Attorney General does not want to give them to us. 
But you are saying that is not the case.
    Mr. Horowitz. I do not believe that is the case, Mr. 
Chairman.
    Mr. Burton. So you believe that the President would have to 
claim executive privilege again if we asked for other 
deliberative documents in the future?
    Mr. Horowitz. In other circumstances, in other cases, in 
other requests, I think we would have an obligation to review 
it. That is my understanding.
    Mr. Delahunt. Mr. Chairman, if I may just for a minute.
    Mr. Burton. Yes?
    Mr. Delahunt. I would just point to you, and maybe this is 
what you are referring to, the language in this Executive order 
that states: ``memorandum written in response to those 
memoranda and deliberative memoranda from other investigations 
containing advice and recommendations concerning whether 
particular criminal prosecutions should be brought.'' This is 
far-reaching.
    Mr. Burton. It is a blanket.
    Mr. Shays. Would the gentleman yield?
    Mr. Burton. Yes, I will yield.
    Mr. Shays. The reason why I again find this puzzling and 
almost disingenuous is that this is the worst case you could 
choose to withhold information. It is 30 years old. It involves 
such an outrageous example of government abuse. And that if you 
would do it on this case, you would clearly do it on others. 
Why in this case would you want to withhold those documents?
    Mr. Horowitz. Well, it goes beyond this case.
    Mr. Shays. Exactly.
    Mr. Horowitz. When you say ``this case,'' there were a 
series of cases referenced in the subpoena, including some of 
the campaign finance matters.
    Mr. Burton. If I might reclaim my time. Let me just say, 
because I am going to turn the Chair over to you, this is a 
far-reaching document and I do not believe it limits it to the 
cases in question. I think it is going to set a precedent 
unless we challenge it, and we will be challenging it. It 
smacks of a totalitarian approach to administering law. It 
really does. Because if we do not have the right in the 
Congress, when we know there is corruption in a branch of the 
executive branch like the FBI or the Justice Department, if we 
cannot get access to documents, we will never be able to 
protect the American people from the abuse of power. We just 
will not.
    We are elected by the people of this country to make sure 
there are not abuses of power in the executive branch. But if 
you have a President and an Attorney General who are 
complicitous with one another in keeping documents from the 
Congress where there is a criminal case involved, and they 
might even be involved themselves, then how are we ever going 
to stop abuse? How are we ever going to stop corruption in 
Government?
    If I were going to be elected President of the United 
States under the circumstances that we see today, I would first 
appoint an Attorney General who would march in lock step with 
me, and I would make sure that nothing that we did that was 
illegal or questionable would ever be questioned by the 
Congress of the United States. And in my opinion, you are 
providing that by this Executive order and this decision of the 
President. I think it is just wrong and I think it is very 
dangerous.
    This President I think is doing a good job. I voted for 
this President. I support him on almost everything. He is my 
President. He is a Republican. But the point is he is setting a 
precedent and the Justice Department is setting a precedent 
that, in my opinion, is going to go down the road and we may 
have another corrupt President in the future. The only 
protection against the abuse of power is for the Congress to be 
able to conduct oversight. And you are blocking us with what 
you are doing today.
    And with that, I will turn the Chair over to Mr. Shays from 
way up north.
    Mr. Shays [assuming Chair]. Mr. Horowitz, what our 
intention is, Mr. Delahunt has some questions, I have a few, 
then we are going to go to the committee. Do you need a break?
    Mr. Horowitz. No. I can proceed. I am fine for now.
    Mr. Shays. Would you like a 5-minute break?
    Mr. Horowitz. That is fine. I am just going to go have some 
water, if you do not mind.
    Mr. Shays. Yes. Sure.
    [Recess.]
    Mr. Shays. At this time, we now recognize Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Shays. They made me sit up 
here. I am trying to understand what the premise is of the 
refusal. All I hear is a general harm, a chilling effect in 
terms of line USAs or line FBI agents. Is that the extent of 
the rationale?
    Mr. Horowitz. You are talking about that in part, but also 
the ability of supervisors who make the decisions to get the 
full advice of their subordinates, to be able to have internal 
deliberations, whether it is the line attorneys or the 
supervisors who are recommending to the ultimate decisionmaker, 
can have the ability to have that discussion.
    Mr. Delahunt. OK. So it is the communication between the 
supervisor and the line personnel?
    Mr. Horowitz. As well as the ability of senior officials of 
the Department to be able to gather advice and to make the 
ultimate decisions that need to be made. There are two parts to 
this.
    Mr. Delahunt. OK. But again, let me go back, what is the 
harm to the disclosure of the information requested in the 
subpoena in this case?
    Mr. Horowitz. The harm is that as prosecutors write these 
types of memos and decide these----
    Mr. Delahunt. No. Mr. Horowitz, you are not listening to 
the question. What is the harm in this case to providing the 
information to comply with the subpoena? This is a specific 
subpoena that has been issued to the Department of Justice.
    Mr. Horowitz. And what I am trying to say is that the harm 
is similar to the harm that comes from producing to the 
Congress internal deliberative memoranda similar in many 
cases----
    Mr. Delahunt. OK. Then let me just stop you there because I 
think you answered the question. If that is the premise, then 
that same concern would apply in every case involving 
deliberative memoranda.
    Mr. Horowitz. And this is where the case is made clear.
    Mr. Delahunt. Am I correct?
    Mr. Horowitz. The case is made clear. As I think you 
mentioned earlier, that the case-by-case analysis is undertaken 
to determine whether there is an ability to, first of all, 
accommodate the interest and provide the information, and that 
is what we have an obligation to undertake with the committee, 
and then to make the determination at that point whether or not 
to assert the executive privilege.
    Mr. Shays. Would the gentleman yield for just a second?
    Mr. Delahunt. Sure.
    Mr. Shays. You will have as much time as you need. What Mr. 
Delahunt wants to know, what I want to know, and what the 
committee wants to know is, you cannot make an argument on 
withholding this information as it relates to this particular 
case. This case is an old case. You cannot make that argument. 
So you really are making the argument solely to state a 
principle that you wish to use in the future. Because there is 
no harm in this case.
    Mr. Horowitz. Well, in this case, first of all, not all the 
memos, as you indicated, are 30 years old. As you know, there 
have been developments in the whole timeframe that could be 
responsive and I think there are more recent memos than 30 
years ago. There is also, as I indicated before, the pending 
criminal investigation and criminal indictment. And so there is 
the possibility and the potential that some of these documents 
may in fact----
    Mr. Shays. So, based on that, why not just release some of 
the older documents?
    Mr. Horowitz. Because I think the decisions that have 
analyzed this matter, the Supreme Court case, have indicated 
that, first of all, the fact that we are a year, or 5 years, or 
10 years from when the memo was written does not diminish the 
chilling impact that prosecutors today writing memos----
    Mr. Shays. So you are getting back to the chilling effect 
which is something that is a future concern, not a past 
concern.
    Mr. Horowitz. Well, it is a present and future concern, 
because we have people writing memos everyday.
    Mr. Delahunt. It is like utilizing the term ``national 
security'' and just saying it. It is meaningless. And you have 
not provided a factual analysis for the refusal to fully 
comply. You have not shown any particularized harm for the 
issuance of certain documents. Mr. Horowitz, you come here 
without a log of identifying the documents that you refuse to 
produce to the committee. I would like to know was there an 
analysis of each document, and what is the rationale, other 
than this chilling effect, that would provide on a case-by-case 
basis a rationale and a justification for not releasing the 
document that was requested?
    Mr. Horowitz. Congressman, I know on this matter we may 
disagree on what the case law there says. But the Senate Select 
Committee case, the only case that we are familiar with that 
exists out there that involved a congressional request for 
documents, talked about, as I said earlier, the executive 
branch analyzing the documents and determining whether they are 
covered by privilege, and then what was outlined in the 
decision was the Congress demonstrating in that case, what the 
court required, was the Congress demonstrating a critical need 
for the documents.
    The documents at issue here, the subpoena specifically 
called for the deliberative documents that are at issue here. 
The subpoena request that is at issue here in the Boston 
matter, as well as in the campaign finance matter, involved a 
very specific set of documents. I guess 20 so far have been 
located as the search is ongoing.
    Mr. Delahunt. Again, all I can say is--we are going around 
the mulberry bush here--you are creating I think a precedent 
that you should go back and reflect on. I cannot image that 
Congress as an institution, as an independent branch of 
Government would accept this new concept of privilege which 
deals more with vague, general suggestions about a chilling 
effect. I mean, you are undermining the confidence not just of 
this institution, but, as the chairman conducts additional 
hearings, the confidence of the American people in what the 
Department is doing. I would be embarrassed to have to respond 
to the kind of questions that I think are being made in good 
faith by members of the committee by providing the answers that 
you are giving here today.
    The most awesome power in a democracy is vested in the 
prosecutor, in the prosecutorial arm of the Government. You 
have the ability to deprive people of their liberty, to injure 
their reputations. And to put that at risk I think is a very 
dangerous course to follow. I really do. I will be honest with 
you, I am really surprised by your testimony today. I know that 
you are the messenger and Mr. Whelan is the messenger and 
everybody has to comply with whatever the line may be. But this 
is a total misreading of the law and what good, sound public 
policy is regarding dealing with a congressional committee. It 
truly is. General harm, coming here without a log, without 
being specific. I do not see how you get away with it. I do not 
see how the Department of Justice gets away with it. I really 
do not.
    You heard members in their observations and you could tell 
I am sure they are very genuine. This is not about political 
rhetoric and blame. I just think that people that serve on this 
committee are stunned. This is dangerous. This is really 
dangerous. I yield back.
    Mr. Shays. I thank the gentleman.
    Mr. Horowitz, I want to be clear. When you use deliberative 
documents and pre-decisional memos, how would you describe the 
difference? Are you using them interchangeably or do they have 
fine terms of legal art that I need to be aware of?
    Mr. Horowitz. I think when I am saying pre-decisional 
memoranda that we are talking about are, in fact, deliberative. 
So that would be a subset of deliberative materials.
    Mr. Shays. OK. When this hearing started my biggest issue 
concern is about the Salvati case. The bottom line is the 
Department is preventing us from doing our job of resolving 
this case. Basically, whatever the motivation is, you are 
impeding our investigation of the Salvati case.
    After hearing it, I thought there would be such an outrage, 
because when I asked you about his wife and so on, his wife 
visited him for 30 years, remained faithful to him, supported 
her family, brought her kids, I thought there would be such an 
outrage that anyone with any ability to help would kind of like 
extend themselves. So I thought when my party took over, my 
Republican party, when they gained control of the Attorney 
General's Office, they would recommend to us that we compensate 
him, that they would kind of lead the charge. So my outrage 
really stems from the fact that I find the exact opposite has 
happened. I did not think my own party would do it. I did not 
think Mr. Ashcroft would do it. I really did not. I thought 
this man who is so focused on honor and religion and God would 
extend himself. So then I tried to think that maybe they do not 
know about the case and maybe if they knew about it. So that is 
partly why I was asking you some of those questions about the 
case.
    I have religion, as Mr. Ashcroft has religion. I have 
religion on the Salvati case. I have religion on it. I will do 
anything and everything I can to understand this case, to make 
sure it does not happen again, though I know it happens, and to 
do what I can to see that he receives compensation and his kids 
do.
    So on one local level I am concerned. Then I thought, well, 
my Gosh, if they are willing to do this on the Salvati case, 
then there must be something so overriding they do not want 
Lieberman to get information or they do not want someone else 
to get information on some other case, so they are setting a 
precedent. They do not want the Senate, which will be a little 
more aggressive, clearly, than the House will be, they do not 
want them to get something in the future. And I am trying to 
think what are those things. So, I do not have those answers. 
But then what I hear you saying is you kind of seem like you 
are backtracking. You set a principle that basically if it is a 
deliberative document or pre-decisional matter, you are not 
going to get the information. But then you are saying that, 
well, we will take it on a case-by-case, which strikes me as 
bizarre. Why fight it on this case when you really should be 
bending the other way unless you want to set the precedent. So 
I am puzzled by this kind of what I think is waffling on the 
decision.
    You told me, if I heard you correctly, that if this were 
just an issue of facts there would not be a question. Is that 
accurate?
    Mr. Horowitz. That is my understanding.
    Mr. Shays. OK. But if it is an issue of where it is a pre-
decisional memo where the recommendations of the author are 
there, then we want to hold them confident. Is that accurate?
    Mr. Horowitz. That is correct. Where there is analysis and 
consideration of the facts.
    Mr. Shays. So in a document that is prepared, an analysis 
is after they look at the facts, right? I mean, they state the 
facts and in the recommendation memo or a pre-decisional memo 
there would be a statement of what the facts are, there would 
be an analysis of the facts based on the law, and then a 
recommendation. Is that accurate?
    Mr. Horowitz. Generally, that is how they are done.
    Mr. Shays. Now what happens if we believe--now you have to 
trust us like you were asking us to trust you--what happens if 
we believe that the facts were distorted and that the FBI did 
not give proper facts to people who would prepare a memo for 
recommendation for the prosecutor? What would you say to 
something about that?
    Mr. Horowitz. Well, we would be providing the Congress with 
an outline of the facts as they were understood by the 
decisionmakers. And so the Congress would be aware of----
    Mr. Shays. Why not just redact the information? Why not 
give us the documents and redact the recommendation?
    Mr. Horowitz. My understanding is that in terms of the 
documents that we are producing that are nondeliberative and 
nondeclination material that factual information is there. But 
we are also prepared to sit down and to the extent the 
committee needs clarification or an understanding----
    Mr. Shays. I am not interested in what you are prepared to 
do in the future right now. I am just trying to understand why 
the Department would be so stupid as to get us into this 
position. That is what I am trying to understand because I 
think it is really stupid. I want to understand why you would 
not have said we cannot give you this but we will give you the 
listing of the facts and here they are. Did you make that 
offer?
    Mr. Horowitz. I think we are prepared to do----
    Mr. Shays. I do not want to know what you are prepared to 
do. I want to know if you did it.
    Mr. Horowitz. I do not know if a specific discussion was 
had as the chairman has just outlined. Although, let me add, on 
the subpoenas regarding the Middleton matter and the Howard 
matter, we did provide such a briefing.
    Mr. Shays. What does that mean?
    Mr. Horowitz. A briefing as you suggested to provide the 
committee with an overview of the facts and circumstances.
    Mr. Shays. Did you give us documents?
    Mr. Horowitz. We produced some documents and we provided a 
briefing with regard to the declination memos.
    Mr. Shays. I guess what I am trying to understand is a 
document that does analysis has to have facts preceding it.
    Mr. Horowitz. That is correct.
    Mr. Shays. And did you provide us those documents redacted?
    Mr. Horowitz. We did not provide those documents. We 
briefed the committee on those specific documents and provided 
the factual documents to the committee.
    Mr. Shays. Do you think the Senate is going to accept this 
kind of change in policy? And that is what it is, a change in 
policy, because we got pre-decisional memos from the previous 
administration. Not all, but we got them. What do you think the 
Senate's reaction is going to be?
    Mr. Horowitz. Well, I understand that you received pre-
decisional memoranda from the prior administration but, as you 
indicated, there were other circumstances where you did not.
    Mr. Shays. And now we will not receive any. That is the 
change in policy.
    Mr. Horowitz. There have been invocations of executive 
privilege on deliberative materials from many administrations. 
I do not presuppose to guess as to what the Senate's view would 
be.
    Mr. Shays. Were you just not being alert, or did you accept 
the question Mr. Gilman asked you maybe 10 times about a change 
in policy. He asked when, and you tried to find the date. Were 
you just not paying attention to his making reference----
    Mr. Horowitz. I have tried, as people have asked questions, 
to correct what I disagreed with in the question when they did 
not ultimately ask the question.
    Mr. Shays. Well, the bottom line is it is a change in 
policy, whether you want to agree to it, because the policy now 
is it will apply in all instances, not in some.
    Mr. Horowitz. I do not believe that is the case.
    Mr. Shays. Is it your testimony under oath that the 
administration will provide pre-decisional documents to this 
committee and to the Senate?
    Mr. Horowitz. I do not know as I sit here what those 
requests will be and what those will involve. And as I said on 
the----
    Mr. Shays. I want to ask you this under oath. Were there 
discussions that said it is going to be the policy of the 
Department not to submit pre-decisional documents?
    Mr. Horowitz. I do not recall myself being part of such 
discussions. Were there other people involved in such 
discussions, I do not know as I sit here today.
    Mr. Shays. Let's just not even suggest that you were part 
of the discussions. Are you aware of any Department policy to 
establish that we are going to send a message to Congress that 
we will not provide pre-decisional documents?
    Mr. Horowitz. My understanding about conversations that, 
for example, the chairman referenced earlier----
    Mr. Shays. No. I am not going to talk about any 
conversations. Just the policy.
    Mr. Horowitz. As I sit here today, I do not understand the 
policy to be that from here on out we will not look at 
documents individually, that we will simply take a blanket view 
on every potential document that could conceivably have a 
deliberative nature to it.
    Mr. Shays. So it will not be the policy of the Department 
to exclude some pre-decisional documents or prevent us from 
getting those documents?
    Mr. Horowitz. As I understand it, what we will do in future 
cases is analyze the request and analyze the documents. I 
cannot sit here and tell you, Mr. Chairman, that----
    Mr. Shays. But when I listened to your statement I guess I 
just was not paying attention. I thought you were basically 
saying the policy is not to give pre-decisional documents 
because it has a chilling effect. But maybe I did not hear your 
statement right. So your statement is that it is going to be 
case by case and it is not the policy of the administration to 
exclude pre-decisional documents. Is that correct? And do you 
want to check with anyone before you answer?
    Mr. Horowitz. My understanding, Congressman, and my 
statement regarded the specific subpoena at issue here and the 
specific invocation by the President on those documents.
    Mr. Shays. So it only applies to this case?
    Mr. Horowitz. As I sit here today, and as you question me 
about this matter, my understanding is that the President's 
invocation concerns this--these. I have got to be careful, 
there are multiple subpoenas outstanding, these subpoenas.
    Mr. Shays. I understand what his document did. I want to 
know the policy of the Department. Is it the policy of the 
Department to not provide pre-decisional documents to Congress?
    Mr. Horowitz. My understanding of the policy is to consider 
it on a case by case basis from here on out.
    Mr. Shays. Mr. Whelan, I want to ask you the same question.
    Mr. Whelan. I am only aware of the Department's response to 
these subpoenas at issue. Obviously, the response by the 
Department and by the President reflects a certain policy that 
if adhered to the future may have certain consequences.
    Mr. Shays. So you are not aware of any effort on the part 
of the Department to refuse in the future to give Congress pre-
decisional documents? It is going to be case by case? Under 
oath, that is your testimony. No discussion whatsoever that we 
should not provide pre-decisional documents in general to 
Congress?
    Mr. Whelan. My apologies, it is difficult hearing you over 
the bells.
    Mr. Shays. I am going to ask the question again. And we are 
going to have to recess, unfortunately. My question to you is, 
are you aware of any effort on the part of the Department to 
have a widespread claim of not providing documents that are 
pre-decisional to Congress?
    Mr. Whelan. And my answer is what I just said. That as I am 
aware of the response to the pending subpoenas, the response 
reflects a certain policy which if adhered to in the future 
would have certain consequences.
    Mr. Shays. So now I am back to square one. It just really 
relates to this case, right? It relates to this case, correct?
    Mr. Horowitz. You are questioning me under oath, 
Congressman, and I understand this issue and I want you to 
understand it. I do not want you to walk away thinking I have 
been evasive in any way, because I have tried to be fully 
candid with this committee. But as I sit here today, that is my 
understanding, that it applies to this fact pattern and these 
documents. My understanding is that if there are future 
subpoenas and future document requests, we need to look at 
those individually and make that determination. Obviously, the 
President's decision is out there from this matter, as are 
prior decisions by prior Presidents.
    Mr. Shays. But we are agreeing to something. I was getting 
confused and now I am getting less confused. I am puzzled about 
why it would be this case. But I am accepting your point that 
you are going to take it on a case by case, that the argument 
of chilling effect relates to each case as it comes up, that it 
does not relate in general to pre-decisional memos because it 
is going to be on a case by case basis. We are there. We agree.
    Mr. Horowitz. Let me be clear. Obviously, as Mr. Whelan 
suggests, to the extent the same principle is at play, a 
similar analysis would need to be done. But I agree with you 
that you need to look at each document to determine how 
deliberative it is because, as you yourself recognize, some 
documents may well have very little deliberation in it.
    Mr. Shays. We were here, and then we were over here, and I 
thought we were back to here. Now we have opened the door 
because we are saying the same principle applies. So, in this 
document you presented, your testimony, tell me how you relate 
pre-decisional memos to the Salvati case and what we requested. 
Show me in your document where it is. Where do I find it? Now 
it is just based on Salvati. So I want to see where in the 
Salvati case in what we have asked about is there a chilling 
effect? Is there anything on page 1? I want to go page by page. 
Is there anything on page 1 that relates directly to the 
Salvati case?
    Mr. Horowitz. I must say, Congressman, I think the entire 
document relates to the entire request. As I sit here today, 
I----
    Mr. Shays. No, no. You are not going to get away with that.
    Mr. Horowitz. No. But let me explain, please. I am 
reviewing this and my testimony concerns the entirety of the 
subpoenas at issue here. It does not concern one particular 
case, it concerns all of the documents at issue; there are 
multiple documents here. And I have to add that, as far as I 
understand, no declination memo in Salvati is at issue here 
because that was a State case and whatever prosecutorial pre-
decisional documents were written would not have been Federal 
documents. That is why I am concerned when you mention, sir, 
the Salvati case.
    Mr. Shays. Let me ask you, is there anything on page 1 that 
would tell me why we should not get it as it relates to the 
documents we have requested?
    Mr. Horowitz. I am sorry, I cannot hear you.
    Mr. Shays. Anything we have requested, in your statement on 
page 1, is there anything that specifically relates to the 
documents that we asked for in specific terms telling us why 
you cannot do it? I want to understand why this case would be 
different than any other case of pre-decisional.
    Mr. Horowitz. I think it would depend, as you mentioned----
    Mr. Shays. Tell me, on page 1, is there any information on 
page 1 that would help me understand that? Tell me and show me 
the line?
    Mr. Horowitz. As I mentioned, Congressman, I do not know 
that I could go through here and pick every sentence, sentence 
by sentence.
    Mr. Shays. So nothing on page 1. Is there anything on page 
2?
    Mr. Horowitz. I disagree with you. I think the whole 
statement does that.
    Mr. Shays. Is there anything on page 2?
    Mr. Horowitz. Yes. I think the entirety of the statement 
does.
    Mr. Shays. Tell me on page 2 where it would refer 
specifically to the documents we want and is not a general 
argument about pre-decisions. Tell me something specific that 
relates to this case on page 2.
    Mr. Horowitz. I think the document and the statement and 
the President's order deals with all of the documents as a 
whole and they all fall in the same categories.
    Mr. Shays. Is there anything on page 3?
    Mr. Horowitz. Again, I stand by the answer I just gave. I 
think every page has something.
    Mr. Shays. Is there anything on page 4?
    Mr. Horowitz. Yes. I think every page does.
    Mr. Shays. Show me on page 4.
    Mr. Horowitz. I think on every page----
    Mr. Shays. Show me specifically as it relates to the 
documents that we have requested.
    Mr. Horowitz. In this statement, if you are asking is there 
a specific reference to a specific document, there is not a 
specific reference to a specific document. But that is 
because----
    Mr. Shays. But could you not use this statement and deliver 
it any time you did not want a pre-decisional? Isn't the answer 
yes to that?
    Mr. Horowitz. This was formulated in----
    Mr. Shays. Mr. Horowitz, listen to the question.
    Mr. Horowitz. It is not something I can give a yes or a no 
answer. I need to explain----
    Mr. Shays. Mr. Horowitz, isn't this a boilerplate response 
to why you cannot give pre-decisional documents to the 
committee?
    Mr. Horowitz. I think it touches upon the general concern 
about pre-decisional documents, and beyond that, it touches 
upon the need for the Attorney General and other high ranking 
officials to get advice from their inferior officials.
    Mr. Shays. Right. So it is a boilerplate. This is an 
argument--no, truly, Mr. Horowitz, you are a bright man, and I 
may not be as bright as you but I am not dumb--this is a 
boilerplate argument on why you do not want to give us a pre-
decisional document. And that is why I believed when I listened 
to your document that it would not be on a case by case. You 
are the one who said it will be case by case. So now I am 
trying to understand why in this case involving someone who was 
in jail for 30 years you cannot give us the documents. That is 
what I am trying to understand. I am trying to understand this 
boilerplate document as it relates to a specific case--the 
documents we want.
    So tell me what I need to know about the documents we are 
asking for that would have a chilling effect.
    Mr. Horowitz. As I said earlier, Mr. Chairman, producing 
documents that contain internal deliberative pre-decisional 
analysis has the potential to chill prosecutors today, 
tomorrow, and as we go forward.
    Mr. Shays. And that would apply in any case. That argument 
would apply in any case.
    Mr. Horowitz. That could well apply in other cases. I am 
not denying that these concerns could apply in future cases, 
Mr. Chairman. I am not trying to impart that sense to you. What 
I am trying to focus on here is as an attorney in the 
Department, as you know, as we do as attorneys, you look at the 
specific case, the specific request, and the specific 
documents. And I am hesitant to sit here and tell you what the 
position will be in future cases with future documents with 
future facts. In addition to that, it is not going to be my 
decision as to whether or not in those circumstances to invoke 
executive privilege.
    Mr. Shays. Unfortunately, you are going to get the break 
that you did not ask for. We are going to have a vote. It is 
two votes. And counsel is going to have questions, I may 
interrupt them once or twice, and then you will be able to get 
on your way.
    Mr. Horowitz, I know you to be a very competent person. I 
have been told that. I believe that chiefs of staff have to 
know a heck of a lot about so many things. I just think it is 
unfortunate you are the one put in this position because this 
is a real policy issue that transcends you as a chief of staff. 
And I regret the dialog we are having, but I am really 
mystified and I think you are probably mystified too.
    We are going to recess. We will be back shortly.
    [Recess.]
    Mr. Shays. I call this hearing to order.
    I recognize counsel. I do not think you will use the full 
allotted time, but we will let you get on your way.
    Mr. Wilson. Mr. Horowitz, I wanted to followup on one thing 
that Representative Shays was just talking to you about. You 
indicated that the Department of Justice will analyze on a case 
by case basis congressional requests. Correct?
    Mr. Horowitz. My understanding is that we are obligated as 
we get a subpoena and we gather documents in response to that 
subpoena to look at the specific documents, how deliberative 
are they, analyze that, analyze what the request and 
investigation concerns, and do that analysis obviously in light 
of principles that have been laid out. But we need to do that 
analysis on a case by case matter.
    Mr. Wilson. And is it fair to assume that because you are 
here you have already done that with the current subpoena that 
this committee has issued?
    Mr. Horowitz. My understanding is that with regard to the 
documents at issue here in this specific subpoena that has been 
done by officials in the Department.
    Mr. Wilson. So to characterize this fairly simplistically, 
there is a chasm and on one side of the chasm are cases that 
are unworthy of your providing documents to Congress, and on 
the other side of the chasm there are cases where it would be 
appropriate to provide documents to Congress. Is that correct?
    Mr. Horowitz. I think that overstates what we are saying. 
We are not saying that no documents should be provided. In 
fact, as you are aware, we have provided several thousand pages 
of documents with regard to this particular matter and we are 
certainly prepared to provide additional documents as we come 
to find those documents and find them responsive to the 
request.
    Mr. Wilson. Let's not go down that rabbit hole because we 
subpoenaed specific documents, did we not, deliberative 
documents; correct?
    Mr. Horowitz. That is correct. The subpoenas we are talking 
about today have specific requests.
    Mr. Wilson. OK. So the other documents are a red herring 
for this discussion. Correct?
    Mr. Horowitz. Well the other documents concern this Boston 
investigation that were responsive to earlier requests for 
materials.
    Mr. Wilson. But they do not concern this subpoena. Is that 
correct?
    Mr. Horowitz. They did not concern this specific subpoena, 
as I understand it.
    Mr. Wilson. So, I do not want to belabor this point, but it 
does seem that there is a chasm that is set up. On one side of 
the divide are the cases where, after the Department of Justice 
analyzes all the relevant concerns, subpoenaed information is 
withheld from Congress. And then there is another type of case 
where after the analysis is conducted information might be 
provided to Congress. That is what is meant by a case by case 
analysis, correct?
    Mr. Horowitz. Again, what we are trying to do is provide 
the committee with all the information we can.
    Mr. Wilson. But this is a little unfair, because a subpoena 
does not call for information, it calls for documents, correct? 
We cannot subpoena information that is not embodied in a 
document.
    Mr. Horowitz. That is correct. That is why it is obligated 
upon us to consult with the committee and discuss how we can 
best accommodate the committee's needs and what type of 
information you are desiring to get, what your investigation 
concerns, and how we can provide you that.
    Mr. Wilson. So let's take information off of the table and 
focus specifically on subpoenaed documents. The committee has 
subpoenaed documents. And it is our understanding after today 
that you have identified certain documents that are responsive 
to that subpoena. Correct?
    Mr. Horowitz. That is correct.
    Mr. Wilson. OK. We are here today because the Members of 
Congress would like to review specific documents, not other 
information but specific documents. Will you work with me on 
that one?
    Mr. Horowitz. That is my understanding.
    Mr. Wilson. OK. So if it is true what you say, that there 
is a case by case analysis, it naturally follows that there is 
a case by case analysis you are prepared to concede, and indeed 
you said this earlier when you mentioned sort of off-handedly 
Watergate type situations, you are prepared to concede that 
certain cases that are behind the specific document subpoenas 
might lead the Justice Department to provide to Congress the 
subpoenaed documents. Is that fair?
    Mr. Horowitz. That is a fair statement. That we have an 
obligation, just as the committee does in deciding what to 
subpoena, to analyze the request and make a determination about 
whether to invoke the privilege that we believe exists to 
protect deliberative documents and in certain circumstances to 
not protect those documents.
    Mr. Wilson. OK. So in this case, the committee has 
subpoenaed specific documents, the Justice Department has 
located specific documents that are germane to that subpoena--
--
    Mr. Horowitz. And I believe it is ongoing review.
    Mr. Wilson. Perhaps more. Perhaps more. And you have made a 
determination that in this case, not in a hypothetical case, in 
this particular case, this subpoena, the September 6 subpoena, 
in fact the President has made this decision, that he will not 
permit the Justice Department to provide to Congress the 
documents that pertain to our Boston investigation. Is that 
correct?
    Mr. Horowitz. That is correct. The President has made that 
determination, although he has not prohibited us from 
discussing with the committee and providing information.
    Mr. Wilson. Right. But we are not talking about 
discussions, we are talking about the documents. Because I am 
going to ask you some questions about that in a minute. But the 
President has decided that the Members of Congress will not be 
permitted to see specific documents.
    What is it in our Boston investigation that puts this 
particular investigation and these specific documents on the 
side of the divide that would have the President order you not 
to provide them to Congress?
    Mr. Horowitz. My understanding is that the concern that the 
President expressed in his order was, as mentioned before, 
really two concerns, one, to protect internal deliberations, 
and second, to protect the free flow of information from line 
attorneys in preparing pre-decisional memoranda. What we then 
have a responsibility to do, as the President has outlined in 
his order, is to work with the committee to try and provide the 
committee with information and do so in a way that is 
consistent with the outlines of the order of the President.
    Mr. Wilson. I did not want to bring this up, but let me 
just bring up something that was mentioned at a meeting that 
you were not privy to, and the only value-added I can provide 
is that I go to all these meetings so I have some corporate 
memory. We went to one meeting at the White House and one of 
your colleagues told us that, yes, there will be an analysis of 
situations on a case by case basis, but the analysis will be 
conducted by the Department of Justice and the White House and 
they will always win. That is what we were told. It was a 
somewhat jocular aside but it actually describes precisely what 
has happened here because there has not been 1 minute of 
discussion with the committee about the committee's need for 
these particular documents. So that is a factual statement.
    But going back to the policy you just articulated as to why 
we cannot get documents that are germane to the Boston 
investigation, this is precisely what Congressman Shays said, 
they apply to all situations. The most egregious situation you 
could imagine--and let's just take a real case, the case of 
Attorney General Dougherty, who first resided in Washington as 
Attorney General and then resided in prison as a felon. In that 
situation, should Congress, and let's start as a hypothetical, 
should Congress have asked for those documents, the rationale 
that you just provided to the committee apply equally as to any 
other situation.
    Mr. Horowitz. I think the general principles would apply, 
as you said, in most, if not all, circumstances. But that does 
not mean that there is some, at least to my understanding, some 
wooden application of the principles. That is why there is a 
need to look at the particular documents and the particular 
circumstances at issue to determine whether or not to make the 
production.
    Mr. Wilson. Are you able to tell us why when the Attorney 
General articulated his approach to the chairman and the 
counsel to the President articulated his approach to the 
chairman they said something different than what you are saying 
today? They did not aver to any case by case analysis. They 
spoke of a strict policy.
    Mr. Horowitz. I was not present, as you know.
    Mr. Wilson. I understand.
    Mr. Horowitz. But I can tell you that I am speaking to you 
from my experience in dealing with privilege issues, whether it 
is attorney-client privilege, 6E law enforcement privileges, 
privileges you have to deal with occasionally as a line 
prosecutor or in private practice. And in those circumstances, 
my experiences in every one of them is you need to review the 
materials and review the documents and make the individual 
determination that I am discussing here. And that is why 
talking about this is from my understanding. That is how I 
would be looking to pursue this if and when a subpoena comes 
that I might have a responsibility to be involved with.
    Mr. Wilson. OK. So just going back to the specific question 
about the subpoena for Boston documents. Is there anything that 
is specific to the Boston cases that would lead the President 
to direct Congress not to receive this information?
    Mr. Horowitz. I think that perhaps what would be beneficial 
going forward from today's hearing is to meet with the 
committee and the staff and discuss particularized needs and 
whether there is some way to reach an accommodation that would 
address the needs that you have in part articulated today and 
perhaps want to have a further dialog and discuss. But as I sit 
here today, I cannot tell you that in reaching the decision 
that there was a specific fact about these specific documents 
that resulted in the decision to invoke the privilege, other 
than the sense that these were deliberative materials and it 
was important for the executive branch to allow the 
deliberations to go forward in an unfettered way.
    Mr. Wilson. Would you be able to confer with your 
colleagues and see if there is in their minds a specific 
rationale beyond the general matters you have just described 
that would have the President prevent Congress from receiving 
these documents.
    Mr. Horowitz. Give me one moment. With regard to your 
specific question, what I would propose is that we be allowed 
to go back, consider the request and get back to you in writing 
with an answer to the question of whether there were 
individuals or there are people who believe there are 
particular issues with regard to these documents.
    Mr. Wilson. Certainly. That would be very much appreciated.
    Let me just switch to another conceptual type of matter. 
Are you willing to admit that it is possible for Justice 
Department personnel to make mistakes?
    Mr. Horowitz. Absolutely I am.
    Mr. Wilson. What you are offering to us, and we have 
certainly taken you up on it, but what you are offering to us 
is a briefing about specific material that we have subpoenaed. 
How do you get around the problem that you might make mistakes 
when you provide the briefing, you might not understand the 
significance of information?
    Mr. Horowitz. My concern with that is that if that were the 
principle, that there would be a concern about briefing, then 
in every case there would be a decision to turn over the 
documents no matter what the case involved, how big or how 
small. In some cases I think we would all agree a briefing 
should be sufficient. And at a certain level, just as we have 
to place our good faith in your exercise of your constitutional 
powers, that at a certain and at least in certain circumstances 
you have to do the same with us and presume that the President, 
through his Justice Department, are acting in good faith with 
the committee.
    Mr. Wilson. But this is an important point because assuming 
good faith, and we start with the presumption of good faith, 
but assuming good faith, would it not be possible that 
information would not be provided in a briefing that would be 
germane to our investigation? Just is that possible?
    Mr. Horowitz. There are obviously possibilities in many 
circumstances. That is why I mentioned that. But to suggest 
that the mere possibility that someone would make an error in a 
briefing means that in every case the Department would be 
obligated to produce deliberative material regardless of how 
important the case was, Watergate, Teapot Dome, or how small, a 
buy bust on a street corner, I think that is the danger of 
taking that principle too far.
    Mr. Wilson. But this is to suggest that no matter what the 
type of investigation you will have full command of all facts 
to the extent that you can provide the information that is 
relevant to an investigation. And in this case it is 
particularly difficult for us because nobody has ever asked the 
committee any questions about what they are doing. So it makes 
it difficult. If I were to say to you now we would like a 
briefing, short of reading us the precise document and seeing 
the juxtaposition of the words and how they are placed on the 
page, and whether there is marginalia, and all of the things 
that make any document or review worthwhile, that you would, 
and this is assuming good faith, that you would get it right 
and provide us all the information that would allow us to 
understand the circumstantial aspects of particular cases.
    Mr. Horowitz. And that is true. But let me shift to an 
example that----
    Mr. Wilson. But it is either true or it is not true.
    Mr. Horowitz. No. But let me just explain an example of a 
similar scenario, where, for example, as you know as a line 
prosecutor, there is a Brady obligation that we have to produce 
and a rule 16 obligation on the Federal Criminal Rules. And 
that obligation the courts impose on us to cull our documents 
and to determine what is material not only to our prosecution 
but material to the defense. And we have in certain 
circumstances obligations to go through and fairly make those 
decisions and not draw the lines too close and to present that 
information. I understand your concern that you might be 
analyzing or thinking about information or a matter in a way 
that we might not. But I think----
    Mr. Wilson. You understand that concern. Is it a valid 
concern or an invalid concern?
    Mr. Horowitz. I am sorry, is what a valid concern?
    Mr. Wilson. We appreciate you understand our concern. But 
is it a valid concern?
    Mr. Horowitz. I think it is a valid concern, and that is 
what requires us to have discussions with the committee to make 
sure we are fully aware of what the various reasons might be 
for the committee's interest in particular documents or 
particular information. And that can vary from case to case.
    Mr. Wilson. But that is to assume that we would conduct--
for example, in this case we have conducted an investigation 
that has proceeded for nearly 9 months. That is 9 months of 
accumulation of documents and we have a bag of 60 pounds of 
letters here from the central witness in the Deegan murder 
prosecution that we found that provide all these candid 
assessments of what was happening in some of these cases. I 
could dump them in front of you. And the point I would make is 
nobody from the Justice Department has even bothered to ask for 
those documents. So a negotiation or a discussion would be to 
assume that you would be able to understand in certain cases 
what might have taken us 9 months to understand, or that maybe 
a tangential matter for you might end up being a significant 
matter for us. This happens very rarely, that is why this is a 
significant----
    Mr. Horowitz. I understand. And that is why I think the 
dialog is important. There have been situations where we have 
engaged in dialog that I think has been helpful to illuminate 
what is at issue and what the committee's concerns are. And you 
have also, as I said earlier, been responsive when we have 
raised concerns about particular issues and you have recognized 
those. And the only reason they have happened is because there 
was a dialog.
    Mr. Wilson. This discussion assumes good faith.
    Mr. Horowitz. Right.
    Mr. Wilson. And we do assume that. But there are times in 
the administration of justice where an assumption of good faith 
would be misplaced, Attorney General Dougherty perhaps, 
Attorney General Mitchell perhaps. You are saying something to 
us today that we presume you would like to be in place after 
you are not sitting at the table that applies to the Department 
of Justice. How can the committee get around the situation 
where there is an assumption of bad faith? Let's just take as a 
specific example the Teapot Dome situation where Congress was 
able to obtain documents that indicated there was misconduct. 
Everything that you have said to us today indicates that what 
would happen in the future is that there would be an analysis 
by a number of people and those people would decide what 
Congress received. Correct?
    Mr. Horowitz. Well, I think that what would happen is----
    Mr. Wilson. Well, I mean is that right or wrong?
    Mr. Horowitz. Well people will analyze, obviously.
    Mr. Wilson. So people at the Justice Department and perhaps 
the White House.
    Mr. Horowitz. Correct. But it is certainly important for us 
to have an understanding if the committee has reason to think 
we are not acting in our presumptive good faith, that, as you 
have indicated, there is some bad faith somewhere in the 
executive branch, that we understand that and that should in 
analyzing the materials inform our decision and weigh in the 
balance.
    Mr. Wilson. But if that were true, sometime in the last 6 
months somebody would have come to us and asked us for a 
rationale to back up what ultimately resulted in the subpoena. 
But 6 months, it is 9 months actually, now have gone by. Not 
all of that applied to the Boston documents. But no one did 
that. So perhaps you are saying that this henceforth will be 
the policy. But that was not the policy for all of these 
months.
    Mr. Horowitz. Well, like I said, I was not in the 
discussions that you have outlined and you obviously have to 
some extent more information as to what the back and forth was 
between the committee and the Department and the executive 
branch. But that is my understanding, which is that if there 
were information about bad faith activity by the executive 
branch that would certainly be a factor for us to weigh in 
deciding whether or not to produce the materials.
    Mr. Wilson. Fair enough. Let's go back the Attorney General 
Dougherty. Let's take you out of the seat and let's put him 
there. He is sitting there articulating the policy that you are 
articulating, and he has read the same statement that you have 
read, and he said I will come up personally and I will give you 
a briefing. We would say, well, that is not acceptable to 
Congress because we have a concern that there are issues that 
we need to analyze. And he would say but I will give you a 
briefing, and he would talk about a chilling effect and all the 
other things. As you sit here today, that is all we get. There 
is no recourse beyond that. Because if we do not see the 
underlying material, it ends there. It ends with the assertion 
that we will operate in good faith.
    Mr. Horowitz. I think in both the Teapot Dome situation or 
the Watergate situation that we have been talking about, 
certainly you would have a reason to provide, to lay out that 
demonstrated, or that there was certainly at least allegations 
if not actual facts, that demonstrated bad faith and corrupt 
activity by the President.
    Mr. Wilson. Which is our point, because those allegations 
were made after Congress, perhaps before, but certainly they 
were perfected when the American people saw the documents and 
Congress saw the documents. It is kind of a circular argument 
here because those are situations where Congress did get the 
documents. Now you are saying henceforth, if General Dougherty 
were sitting there, he would say, no, you cannot have these 
because there is a chilling effect, no you cannot have these 
for various other principle reasons. We would not get them and 
we would not have known about what happened.
    Mr. Horowitz. My understanding from looking at the LLC 
opinion that summarizes some of the information here as well as 
some of the earlier cases, the McGreen case and others, is that 
there were allegations out there prior to the litigation that 
resulted in those cases.
    Mr. Wilson. But if you set the standard on allegations, you 
are in big trouble because there are a lot of allegations that 
get made. And if you want to offer to us that if we make 
allegations then you will give us documents, then that is not a 
good one.
    Mr. Horowitz. There has clearly got to be a discussion 
about the significance of the information and how serious is 
it, but----
    Mr. Wilson. OK. So let's go back to the specifics of this 
situation. Here we have perhaps between 20 and 60 murders. 
Let's start with that. Forget about a scandal involving money 
somewhere. Here we have got murders. Here we have got FBI 
agent's subornation of perjury. All these things that Director 
Freeh has averred to the possible accuracy of these 
allegations, you yourself have averred to the possible accuracy 
of these allegations. Just sitting aside they are allegations, 
forget the evidence.
    Mr. Horowitz. And I was not challenging the allegation. I 
was just trying to keep the language in terms of allegations 
because of the pending cases.
    Mr. Wilson. I understand. I understand. But that takes us 
back to this divide. And for some reason the President of the 
United States has been briefed and he has been convinced that 
the Boston investigation conducted by this committee is on the 
wrong side of the divide and we do not get the documents that 
we have subpoenaed.
    Mr. Horowitz. My understanding is there has been no 
allegation that this Attorney General or the new FBI Director, 
Director Mueller, have in any way engaged in bad faith or 
failed in any way to present to the committee the documents 
that lay out the facts of what happened or have in any way 
demonstrated an unwillingness to provide the committee with the 
information. So I think it is in that regard different from, 
say, the Teapot Dome case scandal that you have mentioned.
    Mr. Shays. Can I just ask you this question. When you say 
the facts of what happened, there are other facts as well. 
There may be facts that are presented that are inaccurate. So I 
am a little uneasy when you say the facts of what happened.
    Mr. Horowitz. What I meant to say is that with regard to 
the comparison, say, to the Teapot Dome or Watergate, in those 
cases the allegations, at least as I read them, involved 
corruption by the then Attorney General and the then Department 
officials who were deciding these issues. All I mean to say is 
that the allegations at issue here, while certainly involve 
corruption, do not involve this Attorney General or this FBI 
Director. That is all I was trying to say.
    Mr. Wilson. But at the end of the day, all you are saying 
is that this case just is not that important. That is all you 
are saying.
    Mr. Horowitz. I do not think that is the message at all 
from this administration. I am certainly not sitting here 
saying that. This is a very important matter that we in the 
criminal division, by putting this task force together, care 
deeply about. I do not for a minute think that this is an 
unimportant matter.
    Mr. Wilson. Maybe I should not have said unimportant. But I 
thought I said less important. If I did say unimportant, that 
was a bad choice of words. But what we are saying is you are 
prioritizing. You are saying, OK, in the Dougherty situation, 
fair enough, may be. In the Watergate situation, fair enough, 
may be. In the case of dozens of murders and a guy falsely 
imprisoned for 30 years, that just does not rise to the level 
that gets us real excited.
    Mr. Horowitz. I am not saying that at all, and I hope that 
is not my message in this discussion. What I am saying is that 
what we need to look at in terms of these cases as they develop 
is Teapot Dome, in Watergate, the allegation involved 
corruption by the individuals, as you indicated, who were going 
to be culling the documents and making decisions. That is the 
factor I am talking about. I am not sitting here by any means 
trying to tell you how important this case is compared to other 
cases. This is an important case. As I said, the criminal 
division has certainly invested substantial resources in 
pursuing this investigation.
    Mr. Wilson. But there is a slight factual problem there, 
because in Teapot Dome the Attorney General that gave up the 
documents was not the Attorney General that went to prison. It 
is analogous precisely in that, although there may be more 
years between the underlying conduct and the provision of 
documents to Congress, Attorney General Harlan Fisk Stone gave 
documents to Congress. And in this situation, Teapot Dome, you 
had a new Attorney General giving documents about conduct in a 
previous administration. And that is all we are asking for. We 
are asking for this Attorney General to give documents to 
Congress about conduct that happened under the watch of a 
different Attorney General. So, it did not work real well.
    Mr. Horowitz. I think the difference is, the distinction is 
when the corruption had involved in Teapot Dome the Attorney 
General who had been involved in discussions with the 
committee. I think there is a legitimate assumption----
    Mr. Wilson. So again, there are distinctions. But this is 
corruption that goes potentially to the Director of the FBI. So 
you are saying only if the conduct goes to the Attorney General 
might we do this, but if it is merely the Director of the FBI, 
that does not rise to the level of providing documents.
    Mr. Horowitz. I guess what I am saying is it depends on 
each case. And I would, and I think the Department, would be 
more than happy to have from the committee a discussion and 
dialog on the particularized need in this case.
    Mr. Wilson. That is fine and we will obviously take you up 
on that. But you have already done it. I saw this morning an 
order to the Attorney General signed by the President of the 
United States about this particular issue. So you have already 
done it. We can have meetings in the future but everything you 
have said today indicates that people have considered this 
issue, they have thought about it, and they went to the 
President of the United States and a decision was made. So I am 
a little surprised that you are saying, and I do not mean to 
mischaracterize it, but maybe we did not do our homework, we 
will go back, we will meet with you again, we will try and 
figure out what you really wanted, and maybe in the future we 
will give you the documents. But today the President of the 
United States, for the first time in the new administration, 
invoked executive privilege. You go back and you look at----
    Mr. Shays. And I want to say invoked executive privilege on 
what I call the Salvati case. This outrageous case. This is 
where you set your marker. It is bizarre.
    Mr. Wilson. There have been Presidents of the United States 
that have not invoked executive privilege in 4 years. Many of 
them maybe once, maybe twice. So it is nice that we can have a 
meeting in the future, but the decision has been made.
    Mr. Horowitz. Although my understanding was that there had 
been several months of back and forth discussion leading up to 
it. As I said, I certainly was not in every meeting and I am 
not even sure how many I was actually in on this discussion 
back and forth with the committee. And if that was not a 
discussion or was not probed and discussed back and forth, then 
we should----
    Mr. Wilson. But there was no need to probe it because there 
was a declarative statement of policy, no, never will you get 
these types of documents. For example, we sent a letter last 
week, we sent a letter this week asking for a witness. The 
letter articulates clearly what we understood the Attorney 
General and White House's position on this matter was. You did 
not come in in your statement and say we got a letter with a 
factual inaccuracy in it, which would have been the first thing 
that a careful lawyer would have done one thinks.
    Mr. Horowitz. Well I think that what we have tried to do in 
laying out in the memo--I do not believe in my statement, and I 
do not believe the President in his order suggests that this is 
a policy that will not require particularized review of 
specific cases. I understand what you are suggesting, but I do 
not think that by invoking in this case that the President has 
said that there will be no need for future dialog with the 
committee about these matters or about other matters that may 
come up, that you do not need to discuss it. In fact, the 
President explicitly instructs the Attorney General to work 
informally with the committee to provide such information as it 
can consistent with----
    Mr. Wilson. Do you think you need more than, I did not 
count, but there were 13 Members of Congress today articulated 
their concerns about why they think it is important for the 
executive branch to provide to Congress documents about this 
investigation of the FBI's handling of confidential informants 
in Boston? Is that enough? Do we need to do anything else 
beyond what you heard today?
    Mr. Horowitz. I think one of the things that we need to do 
is provide you and the committee with information and briefings 
about information that might be in those memos that you might 
be seeking. I do think there needs to be a dialog to go down 
that road.
    Mr. Wilson. I do not make these decisions, obviously. But 
you admitted that our concern was valid that the Department of 
Justice may not fully understand the significance of certain 
types of information. So if that is a valid concern, then a 
briefing is not in this particular case appropriate.
    Mr. Horowitz. But I do think that what the case law says 
also is, in the Senate Select case, the D.C. Circuit, the 
Supreme Court decisions that deal with this issue, it says that 
there needs to be a dialog between both branches to try and 
accommodate the need. And that may be----
    Mr. Wilson. We agree. And I apologize for cutting you off, 
but if I do then we will all finish quicker. We have said that 
for 9 months, there should be a dialog. And all we got was a 
clear articulation of policy, with the one exception of one 
individual who said, yes, we will do an internal analysis but 
we will always win. But when the Attorney General, the Deputy 
Attorney General, the head of the criminal division, the White 
House counsel, the deputy White House counsel, and a number of 
other employees spoke to either the chairman or committee staff 
there was no dialog about a congressional meeting. It was a 
policy.
    Mr. Shays. Let me just say what is unsettling. And you may 
some day be Attorney General or President of the United States, 
but in your present capacity, the people who have relayed this 
information, frankly, out rank you. And so it is a little 
unsettling that we have spent all day having this testimony. 
You are their messenger but you are not able to override 
conversations that they have said, admittedly not in public.
    Mr. Horowitz. And let me just say for the record, my 
understanding was the Attorney General asked for the hearing to 
be delayed because he and Mr. Chirtoff are traveling in 
connection with the September 11th investigation, and that 
request was denied. That is why I am here.
    Mr. Shays. That is a very important point.
    Mr. Horowitz. They certainly did not want to----
    Mr. Shays. No, no. And so you are accommodating us. And I 
understand that we accepted your accommodation. It is a good 
lesson for this committee. The challenge is that may not have 
been the wise thing to do.
    Mr. Wilson. Let me just finish with one thing.
    Mr. Shays. Are you about finished?
    Mr. Wilson. Yes.
    Mr. Shays. And then I am going to recognize Mr. Horn.
    Mr. Wilson. That is a good segue to my final thought, 
questions. In your statement, Mr. Horowitz, you have said that 
``consistent with long-standing Department policy, we have 
declined these committee requests.'' And I know the reasons you 
have advanced. But is it not fair to say that the long-standing 
Department of Justice policy is to provide deliberative 
documents to Congress in certain circumstances?
    Mr. Horowitz. Well that is a key qualifier to put on ``in 
certain circumstances.'' There are, as I learned in reviewing 
the material here and looking at some of the LLC opinions that 
gather the information from 200 years of invocations of 
executive privilege, there are examples from almost every 
administration where there was an invocation of executive 
privilege, or at least a significant number of past 
administrations, where there was an invocation of executive 
privilege to protect deliberative documents generally, not 
specifically with regard to criminal matters, but generally 
deliberative documents. And there are examples which I know you 
have cited or the committee has cited where decisions were made 
to produce deliberative documents given the specific case.
    Mr. Wilson. So isn't that the policy, that there is a long-
standing policy of producing to Congress these very types of 
documents that we seek right now?
    Mr. Horowitz. From my reading of history and reviewing 
these, the policy is that these documents, the presumption is 
that they are presumptively privileged and that an exception 
need be made in the particular case to decide to not protect 
deliberative documents.
    Mr. Wilson. That we understand. But is it not just true, is 
it not just simply a statement of fact that every 
administration since Harding administration, that we have been 
able to figure these things out on, has had a policy of 
accommodation, and in that policy of accommodation they have 
accommodated Congress. And I will not say in every 
administration, but we are aware of many cases, as are you, 
where in many administrations Congress has received 
deliberative documents of the very sort that you are now 
protecting. So should you not at least aver to that as being 
long-standing policy?
    Mr. Horowitz. I certainly agree with you that the 
obligation is accommodation and that we need to have that 
mindset in looking at these. But accommodation does not 
necessarily mean simply producing the documents.
    Mr. Wilson. But is has meant that, correct? Is it not 
correct to say that it has meant that?
    Mr. Horowitz. I do not necessarily agree with that 
characterization of it. As I looked at this 1982 LLC opinion 
which summarized invocation after invocation of executive 
privilege, you have got President Washington, you have got 
Jefferson, you have got Monroe, it moves through many 
administrations.
    Mr. Wilson. But that is irrelevant. There are times when 
there is a privilege invoked and we might agree. We might back 
down. But by and large, over 70 years the Justice Department 
has provided to Congress the very types of deliberative 
documents, and, indeed, in the Clinton administration, for 8 
years they provided many declination memos, precisely the types 
of documents we are seeking. That is the policy.
    Mr. Horowitz. Can I just cite the example of President 
Eisenhower in the Army-McCarthy hearings where he advised his 
subordinates to protect deliberative material from the 
committee. President Kennedy did the same thing in a hearing 
during his administration. I do think it is fair to say that, 
generally speaking, the executive branch has looked at these 
deliberative materials as materials that are privileged because 
of the deliberative nature of them. Obviously, you need to look 
at how deliberative they are, and the chairman has made that 
point and it is certainly a fair point, but we then need to 
look at the circumstances under which that request is made.
    Mr. Shays. Mr. Horowitz, Mr. Horn has got a question or 
two. I am just going to have some closing comments and I will 
let you make a closing comment.
    Mr. Horn. Thank you, Mr. Chairman. The facts are that 
President Washington gave all of the papers with regard to the 
Army of the Saint Claire expedition. He gave it all to 
Congress. You can just read the annals of Congress and there it 
is. He felt it should be done by Congress because that is their 
role in supporting the Army and all the rest. So this is not 
new and it did not start with Harding.
    I am curious, how many Special Agents have been interviewed 
to see if others have put innocent citizens in for 30 years, 25 
years, 15 years. Has that investigation occurred?
    Mr. Horowitz. My understanding is that the investigation is 
ongoing, has pursued questions regarding the handling of 
informants, and whether individuals were improperly pursued, 
and that there is an indictment pending. I must say that, in 
order to get back, I would need to proffer the figure and 
determine how those questions specifically went and who was 
specifically questioned. But my understanding is that the task 
force is designed to uncover the corruption that occurred in 
the allegations and pursue them. So I certainly would do that.
    And on the President Washington example, if I could go 
back. Certainly, as you stated on the Saint Claire matter and 
the request, certainly President Washington determined not to 
invoke. But with regard to the Congress' request for materials 
on the Jay Treaty and the negotiations, he did ultimately 
decide to not produce the materials after reviewing the matter. 
And I think other administrations subsequent to President 
Washington have done similar balancings as they have looked at 
this issue. So I think there are a number of examples on either 
side.
    Mr. Horn. With Washington, he was pretty important on that 
and he knew what he was doing. And so did Eisenhower. He put 
those papers under Assistant Secretary of Defense Seton so they 
would not be all over the Pentagon, and if it was needed it 
would be given to the Congress.
    I am curious, if I were President of the United States and 
I had this problem and the Attorney General came up to me and 
gave me the Executive order that is before us this morning, I 
would say ``Mr. Attorney General, I am going to be looking for 
another Attorney General because I do not want my 
administration to look like it is covering up corruption in the 
bureaucracy. That is just wrong. The American people do not 
just sit there. They want clean government. So do I. I want the 
President of the United States not to get in on this type of 
what I would call corruption. So I would hope that the 
President would drop that Executive order. It just gets 
Congress mad, it is going to get the press mad, it is going to 
get the average citizen mad, and I do not want that kind of a 
situation.
    Mr. Horowitz. And I certainly understand that, Congressman. 
I hope today I have outlined the Department's view that we are 
not looking to prevent the committee from getting the 
information that you are talking about in terms of factual 
information. I think we have a disagreement, obviously, over a 
narrow set of documents. But certainly no one in the 
administration is looking to try and be seen as covering up any 
corrupt activity in Boston. Indeed, hopefully by bringing 
indictments up there as we have done, and having our task force 
dig on this, the public will be satisfied that we have done our 
job that they rightfully expect us to do, and I could not agree 
with you more on that.
    Mr. Horn. Thank you.
    Mr. Shays. Thank you, Mr. Horn.
    Mr. Whelan and Mr. Horowitz, is there any question that you 
wish we had asked that you want to answer?
    Mr. Horowitz. I guess given the statement or the question 
about why I did not initially correct the characterization of 
the hearing in the invitation letter about the scope of the 
policy, at least my understanding of the scope of the policy, I 
guess I certainly regret not having the opportunity at the 
outset to have explained what my understanding was of this 
policy.
    Mr. Shays. Let me say to you I feel that the Department's 
refusal to cooperate with this committee has a chilling effect 
that sends shivers down my back. I am one of the biggest fans 
of your boss. As a moderate Republican, I defend him in the 
Northeast, I go on TV and defend him, I say he needs these 
additional powers. But in the back of my mind the safeguard is 
that we have oversight. And I feel that he is sending out a 
real dangerous message and I feel that the message he is 
sending out is give me more powers and we are going to change 
the policy to be even less cooperative than previous 
administrations when you need information.
    I also want to say to you that I do not think I was unfair 
in asking you to go page by page, Mr. Horowitz, through your 
document. I reread it when I went over to vote and came back 
here. You could take out two sentences and use this at any 
hearing where you were going to refuse to provide prosecutorial 
decisionmaking documents. In fact, your opening sentence is 
``Mr. Chairman and Members of the Committee, I appreciate the 
opportunity to appear before you today to discuss the 
Department's position with respect to the Committee's subpoenas 
for prosecutorial decisionmaking documents.'' You did not say 
as it relates to what. You stopped. That was the sentence. The 
only two sentences I could take out are, ``Since January 
22nd,'' on the first page to the top of the second page. 
Everything else is boilerplate. It could be read anywhere. No 
reference to the committee.
    I have not learned anything today that tells me why this 
case would have a chilling effect. I have not learned anything. 
So I am going to hope that the committee and the Department 
will sit down, that somehow we will find a way to get the 
information that we have a legitimate right to have in my 
judgment, which is the documents that we have requested, maybe 
some variation, maybe some redacting of something. But this is 
the wrong case to build your argument about not providing 
decisionmaking documents. We know that almost every President 
has in some cases said yes, in some case said no, but never had 
a blanket for all. You are saying there is no blanket for all. 
But in the case that you have decided to set your marker, you 
have done it in the Salvati case. Big, big mistake. Big 
mistake.
    I am going to personally request a meeting with the 
Attorney General to discuss all the other things that I and 
others have supported him on and ask him what he thinks the 
impact has on whether we have done the right thing, because I 
just have a big warning sign out there. I consider you a man of 
good will. I consider the people who work for the Attorney 
General to be people of good will. I hope this is just a bad 
dream for all of us.
    With that, I will adjourn the committee.
    [Whereupon, at 3:42 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]
    [Additional information submitted for the hearing record 
follows:]
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THE HISTORY OF CONGRESSIONAL ACCESS TO DELIBERATIVE JUSTICE DEPARTMENT 
                               DOCUMENTS

                              ----------                              

                      WEDNESDAY, FEBRUARY 6, 2002

                          House of Representatives,
                            Committee on Government Reform,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m., in 
room 2154, Rayburn House Office Building, Hon. Dan Burton 
(chairman of the committee) presiding.
    Present: Representatives Burton, Barr, Gilman, Morella, 
Shays, Horn, Miller, Ose, Duncan, Waxman, Kanjorski, Maloney, 
Norton, Kucinich, Tierney, Clay, Lynch and Delahunt.
    Staff present: Kevin Binger, staff director; James C. 
Wilson, chief counsel; David A. Kass, deputy chief counsel; 
Mark Corallo, director of communications; Chad Bungard and 
Pablo Carrillo, counsels; Robert A. Briggs, chief clerk; Robin 
Butler, office manager; Elizabeth Frigola, deputy 
communications director; Joshua E. Gillespie, deputy chief 
clerk; Michael Layman, legislative assistant; Nicholas Mutton, 
assistant to chief counsel; Susie Schulte, staff assistant; 
Corinne Zaccagnini, systems administrator; Phil Schiliro, 
minority staff director; Phil Barnett, minority chief counsel; 
Michael Yeager, minority deputy chief counsel; Ellen Rayner, 
minority chief clerk; and Jean Gosa and Earley Green, minority 
assistant clerks.
    Mr. Burton. I call the hearing to order.
    A quorum being present, the Committee on Government Reform 
will come to order. I ask unanimous consent that all Members' 
and witnesses' opening statements be included in the record and 
without objection, so ordered.
    I ask unanimous consent that all articles, exhibits, 
extraneous or tabular material referred to be included in the 
record and without objection, so ordered.
    I also ask unanimous consent that questioning in the matter 
under consideration proceed under clause 2(j)(2) of House rule 
11 and committee rule 14 in which the chairman and ranking 
member allocate time to committee counsel as they deem 
appropriate for extended questioning not to exceed 60 minutes 
divided equally between the majority and minority and without 
objection, so ordered.
    I also ask unanimous consent that Representatives Frank, 
Delahunt and Meehan who are not members of the committee, be 
permitted to participate in today's hearing and without 
objection, so ordered.
    I ask unanimous consent that we rename the Subcommittee on 
Civil Service and Agency Organization to the Subcommittee on 
Civil Service, Census and Agency Organization and without 
objection, so ordered.
    Finally, I ask unanimous consent that Congressman Dan 
Miller be appointed to the Civil Service Subcommittee as vice 
chairman and without objection, so ordered.
    Let me preface my opening statement by saying that members 
of the Justice Department and the White House have been calling 
majority members urging that we not conduct these series of 
hearings and I don't know if the minority has likewise been 
contacted. One of the things that has been said by the White 
House and by the Justice Department is they feel we should have 
discussions about this issue on whether or not the documents we 
have asked for and subpoenaed be given to us. For the majority 
members who are here and those who will be coming, and I hope 
my colleagues will convey this to them, we have had at least 
three meetings with the counsel to the President, Mr. Gonzales, 
one meeting with him, and at least two meetings with the 
Attorney General and his chief criminal counsel. So we have 
already done that. The problem we have is that the Justice 
Department and the White House continue to be recalcitrant in 
that they don't want us to see documents that go back 30 years 
on the Salvati issue and that is where the crux of this matter 
lies. It is not that we are not trying to work with them; it is 
just they are very, very hard-nosed about it and for that 
reason we have to proceed.
    The U.S. Department of Justice allowed lying witnesses to 
send men to death row. They allowed lying witnesses to send men 
to death row. It stood by idly while innocent men spent tens of 
years, decades behind bars. It permitted informants to commit 
murder. Everybody in America ought to know this. It allowed 
informants to commit murder. It tipped off killers so they 
could flee before they were caught. It interfered with local 
investigations of drug dealing and arms smuggling, and when 
people went to the Justice Department with evidence of murders, 
some of them ended up dead because some FBI agents tipped off 
the underworld figures about it and they ended up dead.
    If there was ever a time that the Justice Department should 
welcome a congressional investigation, this is it. If there was 
ever a situation that called out for the facts to come out, 
this is it. The Justice Department and the White House should 
bend over backward to help us with this investigation but they 
are not doing that. The administration does not appear to want 
a full public accounting of what happened. The thing that 
troubles me is there may still be people in jail today who were 
innocent and are innocent and there may have been people 
executed for crimes they didn't commit and that needs a full 
airing. I am not just talking about the Salvati case.
    I admire people who act on principle. The White House and 
the Justice Department say they are acting on principle and I 
would like to believe that but today, we start to grapple with 
an important question, what is the greatest good? I believe and 
I think everyone on this committee believes that the greatest 
good is for the Congress to be able to conduct thorough 
oversight of the executive branch, especially when it appears 
that people in the executive branch have done something wrong. 
Coverups never benefit a democracy.
    With what happened in Boston, I cannot believe that anyone 
from the President on down would want to keep all the facts 
from coming out but that is what is happening. All we are 
trying to do is get the facts, put them before the American 
people and make sure the laws are properly written and the 
peoples' money is well spent.
    The Justice Department has a different function. It 
prosecutes people. It doesn't search for and release documents 
to the public. It doesn't write reports. In fact, it is 
required by grand jury rules to keep some information secret. 
So the people cannot always look to the Justice Department for 
facts or explanations. If Congress is prevented from doing a 
thorough job, people will always wonder what really happened 
and that would be a tragedy. Lincoln said, let the people know 
the facts and the country will be saved. That is just as true 
today as it was when he said it.
    Why is the Boston investigation so important? I believe 
that the strength of our democracy is based on our ability to 
look at our mistakes and allow the people to have a voice in 
correcting those mistakes. The only way we can do that is to 
search for the truth but if the Justice Department has its way, 
we won't be able to get the truth. We may get some of the truth 
but some of the truth is not enough and still worse, the people 
will know that we didn't get the truth.
    I worry that there may be other cases, as I said, like Joe 
Salvati's. There may be other innocent men sitting in prison 
somewhere that we don't even know about and there may have been 
some that were executed that were innocent. There could be 
other Flemmis or Whitey Bulgers out there who is on the 10 most 
wanted list. There could be other Joe ``the Animal'' Barbozas, 
who was the first person in the witness protection program who 
killed at least 19 people and 1 that we know of while he was in 
the witness protection program and was protected by the FBI. 
While he was in the witness protection program, he killed 
people and he was protected by the FBI. Why is it that Justice 
doesn't want all this to come out?
    Here we are today spending time over a fight that no one on 
this committee wants to be a part of but the stakes are high. 
If the Justice Department keeps deliberative information from 
Congress, it is going to set a terrible precedent. Our ability 
here in Congress to search for the truth will be gutted. 
Already this committee is being tied up in knots in its quest 
for information. The Justice Department has started to fight to 
maintain secrecy in more than $1 billion of civil lawsuits in 
Boston and now the President has claimed executive privilege, 
saying it is in the national interest for us not to pursue 
this.
    I think the President is doing a great job as far as the 
war is concerned. I think he is doing a great job in trying to 
get this economy on the right track, but this goes beyond that. 
This is a tragedy and would be morally wrong if we did not 
challenge it. I am the last person in the world who wants to 
spend time arguing over documents but in the end, we are here 
because the Justice Department and the White House want us to 
be here. They want to establish a precedent. The question is, 
should we let them establish the precedent? I will hold many 
more hearings on this to explore this question and I look 
forward to hearing the views of the Criminal Division of the 
Justice Department and the Attorney General on this subject. I 
would also like to have Judge Gonzalez, the White House 
counsel, come up here and share his views.
    So we are going to have you, who I wanted to testify today, 
and the Attorney General testify and we are going to have the 
White House counsel testify. We are going to give you a chance 
to air your views and be questioned by the committee.
    What is at stake? We have to see documents that relate to 
our Boston investigation. The Justice Department said no and 
the President has said even reviewing these documents, even 
looking at them would be contrary to the national interest. Joe 
Salvati and others spent their lives in prison for crimes they 
did not commit. Joe ``the Animal'' Barboza, who was described 
by the FBI Director, J. Edgar Hoover, as ``a professional 
assassin responsible for numerous murders and acknowledged by 
all professional law enforcement representatives in New England 
to be the most dangerous individual known,'' lied under oath 
and put people on death row and the Government protected him 
and even went to bat for him when he committed a murder while 
he was in the witness protection program. Stevie ``the 
Rifleman'' Flemmi and Whitey Bulger were protected by the 
Government for decades while they killed people with impunity. 
Some of them killed their girlfriends when they got tired of 
them and they were not pursued for that, even though it was 
known they were doing it. If they got tired of some girl, they 
would kill her and get another. Can you believe that?
    Witnesses who came to the Justice Department with 
information about Flemmi and Bulger were killed after Flemmi 
and Bulger were tipped off by the FBI. In my mind, it would be 
contrary to the national interest if we sat back and did 
nothing. One thing is certain, covering up the facts doesn't do 
any good. I personally believe there are other people in jail 
today who are innocent because of this kind of activity and I 
want to find out if there are innocent people in jail and if 
so, I want to find out who put them there that was in our 
Justice Department and the FBI because those people should be 
held accountable and brought to justice because they are 
criminals for putting innocent people in jail.
    I don't think there is anyone here to who doesn't 
understand that if the executive branch gets its way, Congress 
will forever be diminished, both the House and the Senate. The 
funny thing is that any of this can be called funny. When I was 
trying to get the same types of documents when there was a 
Democrat in the White House, I don't remember a single time 
when a Republican called me up and said I was doing something 
that would hurt the Justice Department or the executive branch. 
When it was Reno over there, none of my Republican colleagues 
were complaining. In fact, for a time, we had a working group 
on this committee that would vote on subpoenas. The other two 
Republicans that voted on subpoenas at that time were Speaker 
Dennis Hastert and Chris Cox, both of whom are in leadership. 
When they voted to subpoena deliberative documents, even more 
sensitive ones than those we have asked for, I don't remember 
anyone telling them they were doing anything wrong, and they 
weren't doing anything wrong.
    When Henry Hyde, Orrin Hatch and Trent Lott fought Janet 
Reno for deliberative documents more sensitive than the ones we 
want to see, I do not remember any Republican telling them they 
were doing the wrong thing. That is because they were right and 
today's Justice Department witness, Mr. Bryant, used to work on 
the House Judiciary Committee for Henry Hyde when he was the 
chairman. He had a front row seat when that committee was 
asking the Justice Department for deliberative documents. I 
doubt that he saw anything wrong with his boss doing so either.
    So what is the background to today's hearing? Almost a year 
ago, I asked the Justice Department for documents and the 
Attorney General, who didn't seem to have a problem with 
Congress getting deliberative documents when he was in the 
Senate, told me that I wouldn't get the documents I asked for. 
Judge Gonzalez, the White House counsel, said the same thing. 
There was no ambiguity whatsoever. Congress simply would not 
get deliberative documents ever again. In fact, no one even 
wanted to know why Congress wanted the documents we asked for. 
All they said was a flat no.
    This inflexibility and inflexible policy hit me and the 
committee pretty hard. It meant that Congress, Republicans or 
Democrats, would be hamstrung when they conducted oversight of 
allegations of corruption in the executive branch. It meant 
that when we were trying to find out if taxpayer money was 
being used improperly or if the law should be changed, we would 
have one hand tied behind our backs. It meant that the Teapot 
Dome, that scandal, or parts of the Watergate scandal would 
have remained a mystery. That is why I issued the subpoena last 
year. After the Justice Department got the subpoena, here is 
what a senior administration official told the Washington Post: 
``We are prepared to invoke the privilege to create the clear 
policy that prosecutor discussions should be off limits.'' 
Assistant Attorney General Bryant, who is here today to 
testify, said on the same day, ``Whatever the historical record 
is, it won't change the Department's current position.''
    The committee responded verbally and in writing that this 
inflexible position was unacceptable. On December 13, 2001, the 
Chief of Staff in the Criminal Division, who is here with us 
today, modified the previous position. I don't know what 
happened but perhaps he realized that an admission of 
inflexibility would be a real problem if this dispute ever went 
to court. He said the Justice Department would respond to 
congressional document requests on a case by case basis but 
when he was asked about the Boston case and how it led to the 
claim of executive privilege, he could not answer.
    Here we are today, nearly 2 months later, asking the same 
question. If there is no inflexible policy, then why can't the 
committee review the Boston documents? Perhaps more important, 
if we can't see the Boston documents, then isn't it fair for us 
to conclude that the case by case analysis is simply a 
different way of telling Congress that it will never get a 
deliberative document from the Justice Department? 
Unfortunately, I am beginning to come to that conclusion. It is 
a bit like Alice in Wonderland, sentence first, verdict 
afterwards. Here, however, it is a matter of saying you can 
bring the case to us but it won't really matter because we have 
already decided that you are going to lose. In fact, that is 
precisely what one Justice Department official told 
congressional staff at a White House meeting last year. He said 
that the Justice Department would review each case on the 
merits, but that Congress would always lose. This seemed like a 
joke at the time, but now it appears the words were carefully 
chosen and the communication was precise.
    Today, we have a simple goal. In a number of cases the 
White House and the Justice Department have said they are 
merely attempting to resolve a balance that was lost during the 
Clinton years. They said deliberative documents were not 
provided to Congress prior to the Clinton administration. 
Assistant Attorney General Chertoff told me in a meeting that 
before 1993, the Justice Department did not provide 
deliberative documents to Congress. Maybe no one ever thought I 
would say these words, but I think that does a disservice to 
former President Clinton. Those kinds of documents were 
provided to Congress by Presidents Bush, Reagan and Carter. 
Even Calvin Coolidge, when President, gave Congress these types 
of documents.
    We have gone back, and I will give you a list of what we 
found, but we want to know what you have found as well. That is 
why 5 months ago I asked Mr. Bryant to do some research and 
tell the committee how many times the Justice Department has 
given Congress access to deliberative documents. I made this 
request because I thought the debate we are now having required 
facts and the facts would be helpful to both sides. It took 5 
months to get an answer and the information we received last 
Friday after 5 months of stonewalling by you guys, to be kind, 
was extremely incomplete. Today, I hope the Justice Department 
has done its homework. Congress and the executive branch will 
be better equipped to assess this committee's request and 
possible Senate request if we know what happened in the past.
    At the end of the day, it may be that Mr. Bryant's words 
from last year are the final words from the administration when 
he said, ``Whatever the historical record is, it won't change 
the Department's current position.'' Maybe that is precisely 
what the administration meant. If that is true, I don't expect 
to hear anymore claims that the Justice Department is merely 
trying to go back to an earlier time when the executive branch 
never gave this type of information to Congress.
    If we do find that Congress got so many deliberative 
documents in the past and Mr. Bryant has been unable to count 
them, then we will at least know for a fact that when the 
President claimed executive privilege over the Boston 
documents, it was because he wanted to do something that no 
President has ever done before and we will be able to get past 
the spin and get on with the debate.
    I look forward to the statements of my colleagues today and 
to the testimony of our distinguished witnesses. I really 
appreciate Senator Grassley being here with us today. You did 
this of your own volition and called us. I wish more Senators 
were as willing to jump into the frying pan with us as you. You 
are a good man.
    Let me end by saying one more thing and then I will yield 
to Mr. Waxman. I went to a movie this week. I went to see the 
Count of Monte Cristo. Have any of you ever read the book or 
seen the Count of Monte Cristo? It is a story about a man that 
spent 16 years in prison for something he didn't do. It told 
about the travails that he went through during that 16 year 
period. It is a horrible story.
    Granted the conditions in the prisons at that time were 
probably much more difficult than they are today but Mr. 
Salvati spent twice as much time as the Count of Monte Cristo 
did in that story in prison. His kids grew up without him, his 
wife had to learn a trade, she wasn't prepared to deal with, 
she had to have somebody drive her to the prison every week for 
30 years and their life was ruined. Somebody has to account for 
that. The FBI all the way up to J. Edgar Hoover knew he was 
innocent. We have documents to that effect and you, in Justice, 
don't want us to find out why. You don't want us to see that. 
That is a travesty and it is one that will not stand. I want 
you to know that this is going to go on all year long and I 
don't want to hurt this President, I don't want to hurt my 
party politically but this is something that is more important 
than politics because if this sets a precedent, then we're 
going to have future Presidents doing the same thing.
    I don't believe there is corruption with George W. Bush, I 
think he is a good man, but I think there may be corruption in 
the future like Teapot Dome or Watergate or something else, and 
I don't know whether it will be a Democrat or Republic but if 
this stands, then they are going to use this same executive 
privilege to block Congress from investigating and that is 
something we cannot let happen.
    [The prepared statement of Hon. Dan Burton follows:]
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    Mr. Burton. Mr. Waxman.
    Mr. Waxman. Thank you very much, Mr. Chairman.
    I want to congratulate and commend you for your courage and 
your dogged determination to protect the rights of the Members 
of Congress and the American people and your zeal to make sure 
that justice has been done.
    I welcome this hearing today which emphasizes the 
importance of openness and transparency in our system of 
government. Hopefully those of us who serve in government, both 
in Congress and the executive branch, understand that we serve 
by the consent of the people. We are accountable to the people. 
But there can be no accountability when the government chooses 
to operate in secrecy, outside the view of the public and its 
elected representatives in Congress.
    We are here today because the Bush administration continues 
with almost every passing day to value the interests of secrecy 
over transparency. Some of this is due to the events of 
September 11. The Justice Department, for example, has refused 
to release the names of immigrants who have been detained 
because they might have information relevant to the war on 
terrorism. This administration's effort to operate in secret 
goes far beyond national security or any other important 
national interest. There are many examples, but I will take a 
brief moment to lay out three.
    Ten months ago, Congressman John Dingell and I tried to 
obtain the most basic information about the energy task force 
chaired by Vice President Cheney. We also asked the General 
Accounting Office to conduct an independent, nonpartisan review 
of the task force's operation and funding. Our initial interest 
in the workings of the task force began with news reports that 
the task force had met privately with major campaign 
contributors such as Kenneth Lay, the former CEO of Enron, but 
had denied similar access to environmental and consumer groups.
    My staff later examined the plan that emerged from this 
process and found at least 17 policies that were advocated by 
Enron or that benefited Enron. I have taken great pains not to 
accuse anyone in the administration of misconduct but these 
facts raise questions that deserve straight answers. The Bush 
administration has unfortunately responded with secrecy. Left 
with no alternative, the Comptroller General has been forced to 
take legal action to compel the disclosure of information that 
should be in the public light.
    Nine months ago, I and other members of this committee 
requested adjusted census data collected as part of the 2000 
census. This was not top secret information. It was information 
that the Census Bureau had already collected which included 
corrections for errors using modern statistical techniques. We 
did this because the raw data released by the Commerce 
Department missed over 6 million Americans and could affect, 
among other things, the allocation of more than $185 billion in 
Federal grants. The Bush administration again responded with 
secrecy and refused to release the adjusted data. The 
administration took this position even though Federal courts 
had ordered similar data released after the last census. Left 
with no other alternative, I and 15 other Members filed a 
lawsuit to force disclosure of this important information. Last 
month, a Federal district court judge ordered the Commerce 
Secretary to turn over this information which should have been 
released from the very outset.
    In November of last year, President Bush issued an 
Executive order which significantly curtails public access to 
Presidential records under the Presidential Records Act. Using 
his authority under this order, President Bush is blocking 
access to 60,000 pages of records from the Reagan 
administration. On December 19, Chairman Burton and I, along 
with 34 other members of this committee and the Judiciary 
Committee, wrote to President Bush asking that he reconsider 
this latest limitation on the public's right to know as well as 
his decision limiting this committee's access to documents 
important to its investigation of the Boston office of the FBI.
    I have with me an article written by David Rosenbaum which 
appeared this past Sunday in the New York Times and I ask 
unanimous consent that it be included in the record.
    Mr. Burton. Without objection.
    [The information referred to follows:]
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    Mr. Waxman. Mr. Rosenbaum writes that ``More than any of 
its recent predecessors, this administration has a penchant for 
secrecy.'' In the same article, Thomas Blanton, the Director of 
the National Security Archive at George Washington University, 
says ``This administration has a knee jerk response, reflexive 
secrecy.''
    Today's hearing focuses on President Bush's assertion of 
executive privilege over Justice Department records that relate 
to the infamous 1968 Salvati case. This is, unfortunately, 
another example of reflexive secrecy. This committee has issued 
a subpoena for information bearing on allegations of the most 
serious misconduct in the Boston office of the FBI. These are 
not speculative allegations. A grand jury has returned an 
indictment for a former FBI agent who worked out of that office 
and the Justice Department has a special task force conducting 
an extensive criminal investigation. In a letter last month to 
Chairman Burton, the counsel to the President acknowledges that 
this is a case where the executive branch has filed criminal 
charges alleging corruption in the FBI investigative process.
    There are no compelling reasons for keeping these documents 
from the committee. This does not appear to be a case where 
disclosure of the relevant documents will undermine an open 
criminal investigation. That would be an important 
consideration that I and I am sure other Members would take 
into account in pressing a demand for these prosecution memos. 
To date, however, the Justice Department has given absolutely 
no indication that these documents requested by the committee 
relate to open cases.
    Americans want an open government, not an imperial 
presidency. Openness has its costs. In some cases such as the 
records of the energy task force, disclosure may be 
embarrassing. But ultimately trust in government depends on 
openness and accountability.
    I look forward to the hearing today, learning the testimony 
of our witnesses, and having all of the members of the 
committee deal with this very important issue that transcends 
partisanship. It goes to the very fundamental function of 
Members of Congress, the balances and checks provided in our 
Constitution between the legislative and executive branches. If 
we cannot exercise our oversight responsibilities, then more 
power is vested in the executive branch and, Mr. Chairman, 
power corrupts. Let us do this administration a favor. Let us 
not let them get so much power that they push the envelope even 
further, thinking the power they have will allow them to do 
more and more in secret and not be open to the Congress and to 
the American people.
    I yield back the balance of my time.
    [The prepared statement of Hon. Henry A. Waxman follows:]
    [GRAPHIC] [TIFF OMITTED] T8051.052
    
    [GRAPHIC] [TIFF OMITTED] T8051.053
    
    Mr. Burton. Thank you, Mr. Waxman.
    My other colleagues who have opening statements who just 
arrived, we agreed that Mr. Waxman and I would make opening 
statements, then yield to Senator Grassley and then we will 
come back to the Members who have statements they would like to 
make. We are doing that in deference to Senator Grassley 
because he has other commitments.
    Senator Grassley, I want to thank you once again for being 
here. We appreciate your being here and sharing with us.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. Thank you, Mr. Chairman, for being a 
champion of oversight and with Congress writing legislation in 
such a broad manner, delegating so much to the executive branch 
of Government, our oversight functions in Congress have become 
more important than our legislative functions. So we have all 
got to get geared up to doing more of what you are doing.
    I would think the mere fact that the distinguished chairman 
and the distinguished ranking member singing off the same song 
sheet on this issue ought to get somebody's attention in this 
town. I also have had an opportunity to work with Mr. Waxman on 
nursing home oversight, so I share with members of this 
committee a lot of things in common that I won't go into.
    Listening to your comments reminds me that so often common 
sense ought to prevail and I think in these instances you are 
talking about, what this town ought to turn to is just a little 
dose of common sense because I think if people stand back and 
look at it, people in the front of this argument, these issues 
particularly on a 30-year old case, ought to be worked out.
    It seems to me if the President of the United States would 
look into this a little bit, maybe he has, I don't want to say 
he hasn't, but if he hasn't, if he would, rather than listening 
to advisors on this issue, it would be resolved because the 
President Bush I got acquainted with in the cold winter of 
January traveling the State of Iowa going to our caucuses or 
getting ready for the caucuses is the sort of person that will 
cut right through this, I believe.
    With those opening, off the cuff comments, let me say in a 
more formal way, thank you for the opportunity to testify on an 
issue that I feel is the core, the vitality of our democracy. 
That issue is more sunshine in government. I firmly believe 
that openness of government has kept our country as strong as 
it is today. If we can see clearly what our public servants do, 
we in Congress can correct deficiencies and make government 
more effective and more accountable. That is the essence of 
congressional oversight.
    It has been my principle over the 20-plus years of 
oversight and investigation to treat administrations the same 
regardless of whether a Republican or Democrat is in the White 
House. You have given your own experience on that as background 
in your opening statement, and that ought to give you 
credibility on this issue more so than people would think.
    Oversight is and should be nonpartisan, and I believe what 
we have heard this morning indicates that it is in this 
committee. I think it is wise for all who do oversight to abide 
by the principle of impartiality. As I said, my intimate 
involvement began only a year after I was elected to the U.S. 
Senate. Since that time, I have been involved in crusades to 
reform the Defense Department, management practices to force 
the Justice Department to aggressively prosecute fraud against 
taxpayers, to force the Congressional Budget Office to produce 
more honest and realistic budget numbers, to reform the FBI's 
culture of arrogance, and its practice of putting image over 
product, and to transform the IRS from a cabal of bureaucratic 
barons to hopefully a more customer oriented and friendly 
service.
    Each of these endeavors required inside information. Each 
agency used fast energies to stonewall and at no time were they 
ultimately successful because each time, as you are doing 
today, I made the case for access to the public and to my 
colleagues and each time the public and Congress backed me. 
Eventually, the information was provided. The result has been a 
litany of successful reforms throughout government and without 
inside information, Mr. Chairman, and that is what you seek, 
what shouldn't be inside information but presumably is thought 
to be by some. Without that none of these corrections would 
have been possible in my case.
    Let me make clear that this stonewalling by the executive 
branch has happened under both Democratic and Republican 
administrations, so just as I have tried to treat each 
administration the same, unfortunately, each administration has 
treated my oversight investigations the same as well. It seems 
like deny, delay and stonewall.
    That brings us to the issue before this committee about 
Joseph Salvati. Certain key documents are being withheld from 
the committee under executive privilege. The withholding of 
these documents is interfering with your ability to conduct 
oversight over a case over 30 years old, which involves an 
undeniably egregious miscarriage of justice as you have 
described, perpetuated by an agency, the FBI, that is 
undergoing major reforms designed to address the same cultural 
problems that led to the Salvati case. It may be a 30 year old 
case, but obviously, as you have said, it has present day 
implications.
    Nonetheless, the Justice Department says its need to 
preserve the deliberative process supersedes the public's right 
to know why the FBI let four men be sentenced to death and 
later life imprisonment for a murder the FBI knew they did not 
commit. The Justice Department has said it will deal with the 
request for deliberative process documents on a case by case 
basis. If that is so, there is not a more compelling case than 
this one. In my view, Mr. Chairman, the deliberative process 
argument is just one arrow in the Justice Department and other 
agencies' quiver of excuses for blocking legitimate 
congressional oversight.
    Over the past year, I have attempted to conduct numerous 
oversight investigations as a member of the Finance Committee 
and Judiciary Committee. I have been blocked at this point, not 
by executive privilege but by Privacy Act restrictions, rule 
6(e) and the old ongoing investigation excuse that is so often 
used. Let me make clear that on some occasions these 
restrictions on congressional access to information may be 
legitimate. I am not here arguing that the executive branch has 
no rights to prevent the release of certain information. All 
too often we see agencies abusing the legitimate limitations on 
information to cover up bureaucratic snafus, foul ups, mistakes 
and in the case of Mr. Salvati, gross misconduct.
    Let me highlight two cases from investigations I am 
currently conducting. First, the John Solomon case. He is an AP 
reporter who had his home phone records subpoenaed and searched 
without his knowledge. The Justice Department is required to 
follow certain procedures before issuing a subpoena for phone 
records without the reporter's knowledge. I have been trying 
for months to determine if these DOJ procedures were followed, 
just to see if they followed their own procedures.
    The Department has responded with a shell game for why they 
will not answer. At first, it was because the case was ongoing. 
Then when the case was closed, they invoked grand jury secrecy 
and then the Privacy Act. It is inconceivable to me that the 
law is such that Congress cannot look at the records to 
determine whether the Justice Department did or did not follow 
its own rules, its own guidelines regarding the subpoena of a 
reporter's phone records. While the Justice Department works 
with me on this matter, and they are at least giving the 
impression they are working along, it has taken months to get 
even the most basic information.
    One other example and then I will stop. I discovered that 
the IRS had placed on paid administrative leave at a salary of 
$80,000 an employee who was indicted, who was convicted and who 
was sentenced to home detention for a felony, and at the same 
time being paid $80,000 doing no work for the IRS. The IRS 
claims because of the Privacy Act, they cannot tell me, the 
ranking member of the Finance Committee, whether this IRS 
employee, Mr. Kenneth Dossey, has been fired. In addition, 
Treasury claims under the Privacy Act that they cannot identify 
the IRS managers who decided to continue paying Mr. Dossey 
$80,000 a year while he was on home detention and not working. 
Again, the Treasury Department is working with me, so they want 
me to believe, but it has taken months for them to provide even 
the most simple answers.
    So, Mr. Chairman, I fear that there is a widespread, 
deliberate policy by agencies to deny or delay giving 
information to Congress. I think this is a very dangerous 
policy for two reasons. First, it interferes with our 
Constitutional duty to oversee the executive branch and assure 
the public that its servants here in Washington are acting 
properly and ethically. Second, an agency that stonewalls such 
requests inevitably risks a credibility gap with the public. 
Also, I find it often means the agency has something to hide.
    Basically, the reason political leaders in all branches of 
government are in trouble with our constituents is people are 
cynical about people in government, that leads to cynicism 
about our institutions of government. You have to remember, as 
good a Constitution as we have, maybe the most perfect 
political document in the world for self government, it still 
is based upon peoples' confidence in it. We have this going 
back and forth and as you indicated, you shouldn't be here 
doing this. You ought to spend your time on more important 
things. You getting these documents, you ought to be doing your 
work but people on C-Span hear this and it just adds to their 
cynicism.
    I know that our President wants to reduce that cynicism. 
This is one way he can help in a common sense way to reduce it. 
A prime example is the Salvati case which involves FBI 
corruption at the highest levels. The FBI stood by silently, 
knowing the poor men took the rap for the murder they didn't 
commit. Two of these men died while in prison, the others have 
been let out only recently after 30-plus years. The same FBI 
cultural arrogance that allowed this miscarriage of justice to 
occur may very well be prevalent in today's FBI, although I 
think we have a new Director committed to overturning this. It 
takes a while to find out. He has been tied down with the war 
on terrorism, so he didn't get off to a very good start, but I 
think he is trying. That is not giving him a good bill of 
health from Chuck Grassley, but at least it has given him 
wiggle room and opportunity before we judge. That culture is 
the target of five ongoing investigations by the Government, 
including a management reorganization by the FBI, plus soon to 
be introduced FBI reform legislation. We are trying to deal 
with those things and improve the situation. To prevent 
Congress from learning the lessons of the Salvati case and 
applying that to our ongoing FBI oversight work would be a 
gross injustice to the public.
    There is no question, Mr. Chairman, that the details of the 
Salvati case are critical to fulfilling the responsibilities of 
committees of Congress. How the Justice Department cannot 
approve the release of these documents on a case by case basis 
as it says it wants to is beyond explanation. Getting to the 
bottom of the Salvati scandal and fixing the cause of this 
injustice far outweighs any need to preserve the deliberative 
process.
    I conclude by urging you and members of your committee to 
be firm, to be resolute on this issue. I don't need to urge 
you, I heard your opening statement. You are, and thank you for 
being that, not just from me but that ought to be a thank you 
from 534 other Members of Congress. You must continue to make 
your case to the public. It is sad that you do and in time I 
think you will be successful in the court of public opinion, 
which is the key to successful resolution of this impasse. If 
they have to go on television and argue this point, they are 
going to lose. This is one of those instances if you cannot 
tell your side of the story in the 30 second commercial, you 
are wrong.
    I commend your fine oversight work on FBI corruption in the 
Boston field office and once again, thank you for the chance to 
share my views with the committee.
    Thank you.
    [The prepared statement of Senator Grassley follows:]
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    [GRAPHIC] [TIFF OMITTED] T8051.055
    
    [GRAPHIC] [TIFF OMITTED] T8051.056
    
    Mr. Burton. Thank you, Senator Grassley. We really 
appreciate your coming over. We know how busy you are in the 
Senate.
    We in the House from time to time say things about the 
Senate that are not all that favorable, and I know the same 
thing is true in the Senate about the House. Let me just say 
that you have impressed us today and improved the view we have 
of the Senate. Thank you, very, very much, Senator.
    Senator Grassley. Thank you.
    Mr. Burton. Do other Members have comments they would like 
to make? Mr. Horn.
    Mr. Horn. Mr. Chairman, you will have a statue around here 
for what you are doing to clean house.
    Mr. Burton. Excuse me 1 second.
    Senator Grassley, I think because of your schedule, we will 
let you go and we will talk with you later.
    Mr. Horn.
    Mr. Horn. Thank you for putting this hearing together. You 
will get a statue for having a clean house. Nothing is more 
important in government than having a Justice Department that 
has a conscience, that does the right thing. Going back to King 
Andrew Jackson, he sort of thought Congress was a little, tiny, 
weeny operation and he could do what he wanted. This is an 
outrage. The Bush administration has been doing well in foreign 
policy and domestic policy. This will bring down the 
administration if they let this keep going and don't clean 
house. If the Attorney General won't do anything, that is going 
to hurt the President. That should not happen. The AG needs to 
let his conscience think about this and stop the political 
appointees and the civil service appointees that have done this 
under the Clinton administration and under some others.
    I was one of the founders of the National Institute of 
Corrections and served under 11 attorneys general. Just ask 
yourself, what would Elliott Richardson do? They wouldn't know 
what hit them if he was there. He was a man of conscience and 
he goes down in history for that. The cancer is there and we 
must cut it out.
    J. Edgar Hoover in the 1920's, when Attorney General Stone, 
later quite a Justice, was brought in to clean house because 
the FBI or then Bureau of Investigations were doing awful 
things in the Mitchell Palmer bit and all that.
    I think we have a very good Director for the FBI and this 
will become his legacy if he doesn't start doing it. You only 
have a few months at the most to do it and get rid of the 
people there that give this kind of nonsense that we can't give 
anything to Congress. Start reading Article I. I don't know 
what law school some of these students went to. From George 
Washington debacle, he gave the papers to the Congress and 
that's been the precedent that good Presidents do. We hope this 
President, I am confident, needs to get the documents and make 
sure that it goes to the Congress.
    Mr. Burton. Thank you, Mr. Horn.
    Mr. Tierney.
    Mr. Tierney. Thank you, Mr. Chairman.
    I also want to join the others in thanking you for having 
this series of hearings.
    Before I make my remarks, I would turn to the oversight 
issue alluded to in Congressman Waxman's opening statement. We 
all know that the General Accounting Office has been attempting 
to get basic information from the White House on the operations 
of the energy task force. The GAO doesn't want internal memos 
between the White House staff and the Vice President, doesn't 
want internal memos circulated just among the Task Force. What 
the GAO really wants is just information about the Task Force 
contacts with outsiders, budgetary information and other 
routine information.
    Senator Grassley, who was kind enough to testify here 
today, has been reported as saying he thinks the White House 
should release that information. I congratulate him on being 
consistent on his remarks and his belief of how important it is 
for openness in government and for this administration to stop 
stonewalling on a number of related issues.
    I have been angered that we have learned in previous 
hearings about some of the FBI's actions in Boston during the 
last 35 years. The testimony we heard last year from Joseph 
Salvati of the 30 years he spent in prison as an innocent man 
was something I don't think anyone in this room will ever 
forget.
    The Department of Justice unwillingness to share with this 
committee the documents that they have pertaining to the case 
is only compounding the crime and sending Mr. Salvati to prison 
and keeping him there. For that reason, I am pleased we are 
having this hearing today.
    In December, representatives of the Justice Department came 
before this committee and told us they would not comply with 
our request for documents that would likely help explain three 
important elements of this case: one, how Mr. Salvati and 
others were convicted of crimes they did not commit; two, how 
FBI agents tasked with upholding the law and combating 
organized crime, aided and abetted such crimes; and three, how 
the FBI continued to protect violent criminals and keep them 
out of jail while covering up illegal acts within the Bureau.
    The Justice Department argues that releasing the documents 
we requested would make agents less likely to give candid 
assessments and advice to their superiors in the future, yet 
this same type of secrecy allowed corrupt FBI agents to spend 
decades protecting some of Boston's most prominent organized 
crime figures. I am concerned that by bowing to the 
Department's wishes, we are telling the FBI they can protect 
their own without accountability. This does not serve the 
interest of justice.
    The Justice Department has offered to share with the 
committee a summary of the documents that we have requested. 
That response is inadequate. The FBI and the Department of 
Justice have spent 30 years obstructing justice in the Salvati 
case and other related cases. Why should the committee, or the 
individuals wrongly imprisoned and their families, now trust 
the Department to fully and fairly summarize what is in the 
requested documents? The Department of Justice clearly has been 
unable to act as its own policeman in this case. It is largely 
because of the work of the committee that this issue is not 
being swept under the table altogether.
    I might say also largely because of the good work of 
attorneys who dedicated their time to the Salvati family and 
others and good reporting by certain reporters in the Boston 
area, particularly Mr. Rea amongst them.
    I am equally worried that the precedent that would be set 
by allowing the Department to refuse to share with Congress the 
documents we have requested. If we concede on this issue, we 
can be assured in the future the Justice Department will refuse 
similar information requests. Congress and this committee will 
be unable to fulfill their Constitutionally endowed oversight 
responsibilities.
    Most troubling is that the President has chosen to exert 
executive privilege over these documents. The President argues 
he is trying to prevent political calculations from influencing 
prosecutorial decisions. I appreciate the need for good agents 
to be able to do their jobs without political interference but 
in this case, throughout 30 years, multiple FBI Directors and 
Attorneys General, the Justice Department has tried to sweep 
the actions of several bad agents under the rug.
    I dare say when Senator Grassley was discussing the 
cynicism of the public, I think they continue to be cynical 
about this as long as Mr. Hoover's name remains on that 
building. Some day as this case unravels, we may well want to 
take a look at why that is the case.
    All of this should give us pause to be concerned whether 
political calculations have already influenced decisionmaking 
within the Department. There is a long history of congressional 
access to deliberative Justice Department documents under both 
Democratic and Republican administrations. In the 1970's, two 
House subcommittees investigated crime in the oil industry and 
received needed testimony from the Justice Department. More 
recently in 1992, a House subcommittee investigated a plea 
bargain settlement between the Department and a company accused 
of environmental crimes. During that investigation, the 
Department allowed personnel under subpoena to answer the 
committee's questions about the plea bargain. There are other 
similar cases in which House committees and the Department have 
worked together in the interest of justice. I hope the 
Department will not reverse that precedent and compound the 
crime that has brought us here today.
    Senator Grassley indicated he thought if President Bush 
took a look at this, he would cut through all this. It is 
clearly stated for us in the law, In re Sealed Case, where the 
appellate court set out a clarification for us very clearly. To 
make a valid claim of deliberative process privilege, the 
material need only be predecisional and deliberative. The 
deliberative process privilege is a qualified privilege, 
however, and can be overcome by a sufficient showing of need. 
This determination was made on a case by case basis, balancing 
such factors as the relevance and availability of the evidence, 
the role of the executive branch and the possibility of future 
timidity by government employees. Where there is reason to 
believe that the documents sought may shed light on government 
misconduct, the privilege is routinely denied on the grounds 
that shielding internal government deliberations in this 
context does not serve the public's interest in honest, 
effective government. If there ever was a case where the 
wording of that particular appellate court decision applies, it 
is in the Salvati case. This is a case where the privilege 
should be routinely denied. It does not protect the public's 
interest in honest, effective government.
    Mr. Chairman, I thank you for pointing that out today, for 
having these hearings and I look forward to our witnesses.
    Mr. Burton. Thank you, Mr. Tierney.
    Mr. Barr passes at the moment. Mrs. Morella.
    Mrs. Morella. Just a brief comment.
    Mr. Chairman, again, I thank you for having this hearing. 
During our last hearing in December on this topic, I stated my 
surprise and dismay over the Justice Department's decision to 
withhold the deliberative documents in question. In the 
interest of time, I will not repeat those sentiments. I would 
only say that I hope the Justice Department can elucidate its 
rationale for not releasing the information.
    I am still at a loss as to why the Department feels it is 
not in the national interest as President Bush stated in his 
executive privilege memo on December 12, for these documents to 
be released. Why shouldn't the public in this specific case 
know about the horrific abuses of power by the FBI? How does 
keeping this information cloaked in secrecy benefit the public? 
The chilling effect that the release of this information may 
have is, in my mind, superseded by this committee, this 
Congress and this country's right to know about corruption at 
the highest levels of our government. I have yet to hear 
anything from the Justice Department explaining how the 
public's right to know or Congress's does not apply in this 
case. I look forward to hearing that. The Supreme Court has 
stated that ``Congress's power of inquiry is broad and is 
justified when probing into departments of the Federal 
Government to expose corruption, inefficiency or waste.''
    We have a panel of experts here today to discuss the long 
history of congressional access to deliberative Justice 
Department documents and having heard Senator Grassley 
discussing previous cases where he has obtained deliberative 
Justice Department records, and why the information is so 
important for congressional oversight, hopefully the Justice 
Department can enlighten us to their viewpoint.
    I yield back the balance of my time.
    [The prepared statement of Hon. Constance A. Morella 
follows:]
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[GRAPHIC] [TIFF OMITTED] T8051.058

    Mr. Burton. Thank you, Representative Morella.
    Representative Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman, for the invitation 
extended to myself and my two other colleagues who sit on the 
Judiciary Committee. Again, let me reiterate my gratitude and 
their gratitude for your work. As others have stated earlier, 
it is making a difference.
    I am not going to be critical of the President, I am not 
going to be critical of the Attorney General. I think they are 
both getting terrible advice. When Mr. Horowitz testified on 
the previous occasion, I posed to him the question of how the 
decision in terms of this particular case was achieved. I still 
really don't understand his answer. It would appear it was done 
by committee, if you remember his response, but it clearly is 
not in the national interest.
    Congressman Tierney discussed the fact that it is a 
qualified privilege, that it requires balancing, if you will, 
in terms of considerations. I think the overriding concern we 
as Members of Congress should have is that the confidence of 
the American people in the integrity of the justice system is 
at stake.
    We heard Senator Grassley talk about the culture of 
arrogance in a way that it is almost accepted now by Members of 
Congress. I would like to read into the record some quotes that 
I excerpted from various media reports. Senator Leahy, ``The 
image of the FBI in the minds of many Americans is that this 
agency has become unmanageable, unaccountable and unreliable. 
It's much vaunted independence has transformed some into an 
image of insular arrogance.'' Senator Danforth, who was 
commissioned to investigate the role of the FBI in the Waco, TX 
incident, ``The FBI was uncooperative in his review of Waco. He 
had to get a search warrant before the FBI would turn over 
certain documents. A longstanding value of the FBI is not to 
embarrass the FBI. If something is embarrassing rather than 
admit it, cover it up.'' One of the directors of the GAO back 
in June 2001, a month before September 11, Norman Rabkin, 
``This office did a review of the Federal Government response 
to terrorist incidents''--note that it is before September 11. 
``The GAO ran into so many roadblocks from the FBI that it 
decided to drop the agency from its review. Of all the Federal 
agencies that the GAO monitors, the FBI is by far the most 
contentious.''
    By the Department's action and its advice to the President 
in this particular case, let me suggest there is a growing 
perception that the Department of Justice defers to the FBI in 
such a way that it creates the conditions for that culture of 
arrogance that Senator Grassley articulated in his testimony. 
Let me suggest this. The FBI as an agency is at its low point 
in terms of public perception. It is your responsibility to 
save the FBI from itself, along with the new Director, Mr. 
Mueller.
    I yield back.
    Mr. Burton. Thank you, sir. We appreciate your being here 
with us today and your participation.
    Mr. Shays.
    Mr. Shays. Thank you for having this hearing.
    I just want to say from the outset that had I been in the 
Senate, I not only would have voted for the Attorney General, I 
would have spoken in favor of his nomination. The feelings I 
have are put in that context.
    While we are engaged in a very real war against terrorism, 
the administration has chosen to invoke the Constitution in 
defense of an abstraction, candor and secret executive 
decisionmaking. Candidly, I believe invoking executive 
privilege to protect 30 year old memos relevant to our 
investigation of Justice Department corruption was premature, 
heavy-handed and borders on arrogance.
    When the President and Attorney General have asked for and 
received extraordinary powers in the fight against terrorism, 
powers that we all acknowledge risk infringement of our 
Constitutional liberties, the executive branch should expect, 
if not demand themselves, increased congressional scrutiny of 
their use of those powers, even if that oversight risks 
infringement of their Constitutional prerogatives. It is fair 
and necessary under these extraordinary circumstances. This is 
no time for some legalistic jihad to regain the halcyon largely 
mythical days of unfettered executive powers. There can be no 
question there is an administrationwide effort to push back 
against what is seen as an erosion of executive prerogatives to 
conduct public business in secret.
    We are confronted with an inflexible policy barring 
congressional access to very broad but still only vaguely 
defined classes of executive branch documents, often if not 
routinely, made available by previous administrations. The 
White House concedes that ``Unusual circumstances like those 
present here where the executive branch has filed criminal 
charges alleges corruption in the FBI investigative process, 
even the core principle of confidentiality applicable to 
prosecution and declination memorandum may appropriately give 
way to the extent permitted by law if Congress demonstrates a 
compelling, specific need for the memoranda. What could be more 
compelling than the need to right the wrong done to Joseph 
Salvati, an innocent man imprisoned for 30 years based on the 
machinations of corrupt State and Federal prosecutorial 
processes.
    With regard to the documents the committee has subpoenaed, 
the Department of Justice should conclude our review of 30-year 
old deliberative documents under these extraordinary 
circumstances threatens no one's candor and that our reading of 
long-closed case files in this instance will bring needed light 
to a very dark chapter in our legal history.
    Thank you, Mr. Chairman.
    [The prepared statement of Hon. Christopher Shays follows:]
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    [GRAPHIC] [TIFF OMITTED] T8051.060
    
    Mr. Burton. Thank you, Mr. Shays.
    Mr. Lynch, I don't think I have had the pleasure of 
welcoming you to the committee.
    Mr. Lynch. No, sir, not in full committee, anyway.
    Mr. Burton. Your predecessor, Mr. Moakley, was a very 
highly regarded member and you have big shoes to fill. I am 
sure you will fill them but we all miss Mr. Moakley.
    Mr. Lynch. Thank you, sir, as do I. Thank you for your 
courtesy and your kindness.
    I want to begin by saying that I think you are doing a 
courageous job and a noble one. I appreciate the way you are 
approaching this issue in searching for the truth. I think that 
is the highest ideal for government, certainly it was a high 
ideal held by Congressman Moakley and one I am proud to be a 
small part of.
    I just want to say as my first venture into this that I am 
somewhat disappointed this morning by the Department of Justice 
response. I won't get into it in my opening statement but 
perhaps later on in the hearing. I have to remark that it seems 
quite thin I think to have the Department of Justice rely upon, 
as they do in this initial brief, that the President may 
withhold these documents as part of his obligation under 
Article II, Section 3 of the U.S. Constitution to ``take care 
that the laws be faithfully executed.'' That is the phrasing 
they are relying upon. They provide some secondary and tertiary 
arguments that the history of the interbranch accommodations 
and the tradition of government working with each other provide 
the other two legs of the stool.
    I just want to remind the judiciary if I may in a courteous 
way that the President has taken an oath not just to enforce 
and to faithfully execute certain parts of the Constitution and 
there are some notable parts of the Constitution that I think 
there are at issue in these hearings.
    One, the President has taken an oath to the best of his 
ability to preserve, protect and defend the Constitution of the 
United States and all of its amendments thereto, not just his 
favorite parts of the Constitution. I might just mention a few: 
the fourth amendment, the right of the people to be secure in 
their persons, houses and papers and effects against 
unreasonable search and seizure; that no warrants shall issue 
but upon probable cause, the President also has an obligation 
to make sure that section is enforced; the fifth amendment 
against the deprivation for liberty, which is at issue here; 
and the sixth amendment, protection in the face of criminal 
proceedings and the protections provided to the individual in 
those cases.
    Mr. Chairman, you are doing a wonderful job in upholding 
the very highest standard of requiring that the Constitution be 
adhered to, that we do our jobs as Members of Congress to make 
sure that in this case we get to the truth, to the truth. That 
is what we are after here. This is not politics of personal 
destruction; this is merely a search for the truth.
    I yield the balance of my time.
    Mr. Burton. Thank you, Mr. Lynch.
    Judge Duncan, who served on the bench and who is now a 
Member of Congress, who has dealt with many of these issues, we 
appreciate your being here today. You are recognized.
    Mr. Duncan. Thank you very much, Mr. Chairman.
    First, I would like to join my colleagues in expressing my 
great admiration and respect for your courage and determination 
in conducting these hearings. This is my 14th year in the 
Congress and as Chairman Burton noted, I spent 7\1/2\ years as 
a criminal court judge, a circuit court judge in Tennessee 
trying felony criminal cases. I have been shocked by the 
Salvati case and all that I have heard in the hearings I have 
participated in so far.
    I think the first paragraph of Chairman Burton's opening 
statement is probably the most shocking statement I have ever 
heard in a congressional hearing, and I have sat through 
hundreds. His opening statement, for those who were not here, 
said, ``The United States Department of Justice allowed lying 
witnesses to send men to death row. It stood by idly while 
innocent men spent decades behind bars; it permitted informants 
to commit murder; it tipped off killers so that they could flee 
before they were caught; it interfered with local 
investigations of drug dealing and arms smuggling; and then 
when people went to the Justice Department with evidence about 
murders, some of them ended up dead.''
    I don't know what all is behind that statement but I will 
say this. Anyone who is not totally, completely shocked by what 
the chairman said here this morning and by the Salvati case 
should reexamine his commitment to true justice and to our 
legal system. The primary purpose of the law in our legal 
system should be to protect the freedom and liberty of innocent 
citizens. That should be the primary purpose and goal of our 
legal system. Our term ``justice'' could be defined in many 
ways but in the end, it should and does mean fairness, simple 
fairness from one human being to another. Justice should mean 
fairness to all. Apparently, you had and still have Justice 
Department and FBI bureaucrats who are so blinded by arrogance 
and power that they can no longer see what true justice means. 
To me it is shocking.
    Joseph Califano, who was a member of the Cabinet and a top 
advisor to President Clinton and President Carter, wrote in a 
column a few weeks ago in the Washington Post and said, ``In 
the war against terrorism, which all of us support, we are 
missing a very alarming problem that is growing by leaps and 
bounds'' and that is what he described as the ``shocking, 
alarming rise in Federal police power.''
    If we are going to have true justice in this country, we 
can't end up with a Federal police state that allows the FBI 
and the Justice Department to do anything they want, no matter 
if it means that an innocent man ends up behind bars for 30 
years when they know he is innocent, they cover it up and then 
attempt to continue to cover it up after the world knows all 
about it.
    So Chairman Burton, I hope you will continue these 
hearings. I am sure that hope will not be realized but I hope 
that the Justice Department will take another hard look at 
their position in this case and realize how shocking it is to 
people who are outside of the Justice Department but who 
believe in true justice and the legal system of this country as 
strongly as perhaps maybe they used to before they got blinded 
by the power they now exercise.
    Thank you very much.
    Mr. Burton. Thank you, Judge Duncan.
    Ms. Holmes-Norton.
    Ms. Norton. Thank you, Mr. Chairman.
    I think you deserve not only the commendations you have 
received but the thanks of all of us and of the American public 
for pressing this matter forward and not yielding with the 
change of administration. What is at stake here is a question 
of executive power versus congressional oversight.
    I do not believe this committee should yield in its 
oversight when the kind of wrongdoing that has been discovered 
already is before us. Nor do I believe we can yield.
    Those of us who heard the Salvati family, in particular, 
testify, and now the entire country has heard from this family 
because the case is so atrocious that it has caught the 
attention of the media, could not have been more shocked, more 
astonished that this could happen in our country. It just 
doesn't happen here. Very few cases of this kind have ever been 
uncovered in our country.
    The American public who now knows about that case in 
particular, not to mention what may be a pattern here, 
obviously wants to know what in particular went wrong. We know 
there was wrongdoing, there is no question about that. This 
oversight is not about that kind of adversarial proceeding. As 
members of this committee, we now have an obligation, 
particularly with wrongdoing on the record, to ask and to find 
out what the cause of the wrongdoing was, whether there were 
bad actors, whether there is a flaw in the system, so that we 
can discover whether there is something the legislative branch 
should do. We can't just sit here and say, we have seen evil, 
now we hope it doesn't happen again. Maybe there isn't anything 
we should be doing, maybe there were a bunch of bad actors and 
if you clean out the place, there is enough law and 
regulations, enough ethical guidelines in place but we don't 
know that until we see the documents that the chairman has 
relentlessly tried to uncover.
    The committee is making another important point. There is 
no agency of the Federal Government which is beyond the 
oversight of the Congress of the United States, not the Justice 
Department, not the FBI, not the Defense Department. There is 
no agency beyond our purview; this is still a republic; this is 
still a democracy. We must not have our right to know and then 
to act on what we know taken from us because we are denied the 
relevant information.
    Mr. Chairman, we are not voyeurs here. You are not simply 
seeking some documents because you would like to see what they 
would do and you would like the committee just to riffle 
through their papers. There is a very important legislative 
purpose here. You must do as you are doing, Mr. Chairman. You 
must pursue that purpose and you have bipartisan support on 
this committee to do just that.
    Thank you very much.
    Mr. Burton. Thank you, Ms. Holmes-Norton.
    The next questioner was a former member of the Justice 
Department himself and a Federal prosecutor, U.S. Attorney, Mr. 
Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    I think this is an extremely important hearing today. It 
does raise issues of fundamental Constitutional importance. It 
will hopefully lay the groundwork for some very important 
decisions. I don't know whether they will ultimately be decided 
here in the Congress or in the courts but I do hope they are 
ultimately decided because they go to the heart of some of the 
arguments at the core of the founding of our Nation, including 
certainly separation of powers.
    I hope that all of us will resist the urge to make this a 
political type issue or make a current events hearing or issue. 
It has nothing to do with current events; it has everything to 
do with whether or not there shall be any checks whatsoever on 
the ability of the executive branch to retain information unto 
itself. That is a fundamental question. All of us certainly 
understand that each of the two branches of government we are 
looking at here--the executive and the legislative--have very 
clear and very broad Constitutional authority to perform the 
functions of government laid out in our Constitution, discussed 
in length in the Federalist Papers and certainly fine-tuned 
over the succeeding decades by court decisions and by 
subsequent statutory enactments.
    I think all of us, as Constitutional scholars, whether 
lawyers or not, also appreciate that those powers are not 
absolute. As one can readily see by looking at both the 
Federalist Papers as well as the history of relationships 
between the different branches of government, the admonition of 
our founding fathers that first and foremost among the power 
centers, as it were, is the people and among the branches of 
government, the mechanism of government constituted by the 
Constitution, the Congress. If, in fact, it is the position of 
any administration that it has absolute authority to keep 
information from that legislative branch and if that is the 
principle, indeed, ultimately upheld, then the form of 
government that will ensue based on that will be far different 
than that envisioned by our founding fathers.
    I think it is unfortunate that this matter has come to a 
head but I commend you, Mr. Chairman, for not backing down 
simply because it has come to a head. One would have hoped that 
there had been some room for compromise. Maybe there still is 
and I know you, as a man always seeking to work something out 
without losing sight of the ultimate goal and the principles, 
will pursue that, but this is an important hearing, one of 
probably several we will have to have and this issue will 
certainly be argued in other forums as well.
    I do commend you, Mr. Chairman, for raising this issue 
today and hopefully all of us on both sides, here and at the 
witness tables, will be able to keep our attention very, very 
keenly focused on the specific issue at stake here. That is the 
assertion that the Congress cannot--I don't know whether this 
is the Department of Justice view and I will look forward to 
hearing from them whether this committee or any committee of 
Congress duly constituted shall ever be able to trump the 
assertion that documents within the executive branch in a 
criminal proceeding shall never be surrendered. I think that is 
a very dangerous proposition. I hope that is not what the 
administration is contending here but certainly it raises some 
very fundamental issues.
    I think this is not only a very interesting proceeding, Mr. 
Chairman, but also one of true Constitutional note. I again 
commend you and members of the committee for proceeding and 
commend the witnesses for being here today to engage in what I 
think is a very, very important Constitutional debate.
    Thank you.
    Mr. Burton. Thank you, Mr. Barr.
    Mr. Clay.
    Mr. Clay. Thank you, Mr. Chairman.
    Let me also thank you for conducting these hearings. Thank 
you for allowing my voice to be heard about this very important 
subject, congressional access to deliberative Justice 
Department documents.
    As a member of this committee Constitutionally charged with 
providing congressional oversight, I am truly confounded by the 
refusal of the executive branch and the Justice Department to 
withhold numerous requested and important information regarding 
corruption in the Boston office of the FBI and other documents 
relating to criminal investigations which this committee has 
requested.
    Congressional oversight and jurisdiction must not be 
regarded as a passing thought but rather as a vital check and 
balance component to our democratic system of government. For 
that reason, I support the requested release of the following 
information: the memorandum relating to the 13 individuals 
involved in the Justice Department investigation of organized 
crime in New England and Robert Conrad's report recommending 
the appointment of a special counsel to investigate campaign 
fundraising matters and related memoranda.
    Finally, I stand firm with this committee in its formal 
request of accountability from the Justice Department.
    Mr. Chairman, I ask unanimous consent to place my statement 
into the record.
    Mr. Barr [presiding]. Without objection, so ordered.
    [The prepared statement of Hon. Wm. Lacy Clay follows:]
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    Mr. Barr. The Chair recognizes Mr. Kanjorski for any 
opening statement he might care to make.
    Mr. Kanjorski. I came to the hearing today to show my 
support for Chairman Burton's efforts here to assert the 
prerogatives of the Congress to examine these deliberative 
records. It seems to me that this is a very delicate and 
Constitutional question but if the House of Representatives and 
this committee is to fulfill its function as the ultimate 
overseer for the people, it is essential that in many of these 
cases, particularly the Boston case, we have an opportunity to 
receive and view the documents in question.
    I want to commend the chairman and this committee and to 
indicate to the public that it is my sense that this is almost 
unanimous, if not unanimous, on a bipartisan basis that this 
prerogative of the House of Representatives and this standing 
committee is vitally important if truth is to come out in 
certain circumstances involving this case.
    I yield back the balance of my time.
    Mr. Barr. We will now hear testimony from our second panel, 
if the witnesses as they are introduced would please take 
chairs at the witness table. We are very happy to welcome today 
an extremely distinguished panel of witnesses who truly do have 
a deep appreciation and respect for the Constitution including 
the Constitutional principles which will form the basis for 
today's hearing.
    First, we would like to introduce Assistant Attorney 
General Dan Bryant. He serves in the administration as the 
Assistant Attorney General, Office of Legislative Affairs. Mr. 
Bryant, welcome.
    I would like to welcome Professor Mark Rozell from the 
Department of Politics at the Catholic University of America. 
Professor Rozell, thank you for being with us today.
    I would like to welcome Professor Charles Tiefer, 
University of Baltimore Law School, a former Solicitor and 
Deputy General Counsel, U.S. House of Representatives. 
Professor, glad to have you here today.
    Finally, we would like to introduce Mr. Morton Rosenberg, a 
specialist in American Public Law with the Congressional 
Research Service. Mr. Rosenberg, thank you for being with us 
today.
    If each of the witnesses would stand to be sworn. Raise 
your right hands.
    [Witnesses sworn.]
    Mr. Barr. Let the record reflect that each of the witnesses 
responded in the affirmative in response to the question about 
their sworn testimony. Please be seated.
    On behalf of the committee, all of us welcome you here 
today. I think all of you are familiar and I know Mr. Bryant is 
very familiar with the procedures for hearings before 
congressional committees. We do have a time clock simply to 
keep things moving along at a reasonable pace. We would ask 
each of you to try your best to limit your opening comments to 
5 minutes. Certainly any additional material, either today or 
subsequently that you wish to be inserted in the record will be 
so inserted, including the entire text of your opening 
statements if you choose not to read them in their entirety or 
you don't have time to do so.
    We will start with Mr. Bryant. Mr. Bryant, welcome, and you 
are recognized for an opening statement, sir.

  STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL, 
   OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF JUSTICE

    Mr. Bryant. Thank you, Mr. Chairman.
    Members of the committee, good morning. I welcome this 
opportunity to present testimony on behalf of the Department of 
Justice at this hearing regarding the history of congressional 
access to deliberative Department of Justice documents.
    At the outset, let me make two comments, if I could. First, 
congressional oversight of the Justice Department is a good 
thing for the Justice Department. Second, the Salvati situation 
involved a terrible miscarriage of justice. It is not 
overstating it to call it a tragedy.
    At the outset, I wish to remind the committee of the 
Department's standing request to meet with the committee about 
the particular Boston documents that are in dispute. It was and 
remains our hope that in such a meeting, knowledgeable 
officials could confer with you about the nature of each 
particular document. Such a meeting offers the potential for 
the committee's oversight inquiry to move forward 
expeditiously.
    In preparation for this hearing, I have made an effort to 
familiarize myself with the history of congressional access to 
deliberative Justice Department documents and deliberative 
prosecutorial advice documents in general. I wish to clarify 
that the current dispute between this committee and the 
Department of Justice pertains only to the narrow and 
especially sensitive subcategory of deliberative documents 
constituting advice memoranda regarding whether or not to bring 
criminal charges against certain individuals and advice 
memoranda to the Attorney General in connection with appointing 
a special prosecutor. This category of documents which the 
committee has subpoenaed is a very small subset of all 
deliberative Department memoranda and an even smaller subset of 
the total universe of information which is routinely requested 
by and provided to Congress.
    There is a diagram over here in chart form. I won't take 
the time just now since I have been admonished to try to move 
along in my opening statement, but I hope over the course of 
the testimony perhaps to explain the diagram and hope it will 
help clarify this question of different types of documents.
    There are a number of relevant propositions that emerge 
from a review of the history of congressional access to 
deliberative Justice Department documents. First, it is 
apparent that the Framers of the Constitution envisioned 
tensions arising between the branches in the course of their 
discharging their Constitutionally assigned responsibilities. 
In fact, such tensions reflect one of the fundamental checks 
and balances at the heart of our system of government based on 
separation of powers.
    One such intentional check is immediately apparent. 
Congress has authority to obtain information from the Executive 
so as to enable it to carry out its legislative 
responsibilities. At the same time, the Constitution requires 
the Executive in the words of Article II, Section 3 to ``take 
care that the laws be faithfully executed'' and in doing so, 
clearly contemplate the need to withhold certain information in 
order to faithfully fulfill this core executive function.
    Second, our tradition of government clearly envisions that 
the branches will work to resolve any inter-branch disputes 
that arise. The longstanding policy of the executive branch is 
to comply with congressional requests for information to the 
fullest extent that is consistent with its Constitutional and 
statutory obligations. The policy is reflected in the executive 
branch's commitment to the accommodation process. That historic 
policy remains the policy of the executive branch today.
    Third, the history of specific inter-branch accommodations 
can serve as a useful guide for present and future disputes but 
past inter-branch accommodations are not themselves binding 
precedent. Each specific inter-branch accommodation is highly 
case specific and is therefore of questionable value. Disputes 
between Congress and the Executive have, in the general course 
of things, been left to the parties themselves to settle. 
Consequently, the executive branch's concern to safeguard 
certain documents from improper disclosure has manifested 
itself over the decades in a wide variety of ways, depending on 
the particular circumstances and exigencies present at the time 
of the dispute.
    Fourth, throughout the history of inter-branch disputes 
regarding deliberative Justice Department documents, the 
executive branch has consistently maintained that the sub-
category of prosecutorial documents at issue in our current 
dispute is presumptively privileged and should be protected.
    This position has been repeatedly articulated by the 
executive branch for decades and is supported by historical 
practice, scholarly commentary and case law.
    The reasons for this position are clear. The authority to 
prosecute criminal suspects is one of the core executive powers 
vested in the President by the Executive power and the take 
care clauses of Article 2 of the Constitution.
    In order to assist the President in fulfilling his 
Constitutional duty, the Attorney General and other department 
decisionmakers must have the benefit of candid and confidential 
advice and recommendations in making these extraordinarily 
important prosecutorial decisions impacting the liberty 
interests of citizens.
    The need for confidentiality is particular compelling in 
regard to the highly sensitive prosecutorial decision of 
whether to bring charges. If prosecution and declination 
memoranda are subject to congressional scrutiny, we will face 
the grave danger that prosecutors will be chilled from 
providing the candid and independent analysis essential to the 
sound exercise of prosecutorial discretion and to the fairness 
and integrity of Federal law enforcement.
    Human experience teaches that those who expect public 
dissemination of their remarks may well temper candor with a 
concern for appearances and for their own interest to the 
detriment of the decisionmaking process, so spoke the Supreme 
Court in a seminal case. The court observed that ``The 
importance of this confidentiality is too plain to require 
further discussion.''
    Just as troubling the prospect of congressional review 
might force prosecutors to err on the side of investigation or 
prosecution simply to avoid public second-guessing. This has 
undermined public and judicial confidence in our law 
enforcement processes.
    Disclosure of declination memoranda would also implicate 
significant individual privacy interests. Such documents 
discuss the possibility of bringing charges against individuals 
who are investigated but not prosecuted and often contain 
unflattering personal information as well as assessments of 
witness credibility and legal positions.
    The disclosure of the contents of these documents could be 
devastating to the individuals they discuss.
    In sum, government functions as the Constitution intended 
and the public interest is well served by safeguarding from 
disclosure those documents that advise whether or not to 
prosecute.
    Mr. Chairman, as stated by Judge Gonzales, counsel to the 
President, the Department is prepared to accommodate the 
committee's interest in a manner that should both satisfy the 
committee's legitimate need and that protects the principles of 
prosecutorial candor and confidentiality. That's why the 
department officials have offered to meet with you about the 
committee's interest in the Boston documents. I reiterate that 
offer today.
    Thank you.
    [The prepared statement of Mr. Bryant follows:]
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    Mr. Barr. Thank you very much, Mr. Bryant. The eloquence of 
your statement and the research that went into it is indicative 
of your very long and distinguished service on the Judiciary 
Committee. We thank you for being with us today and sharing 
your thoughts.
    We do have two votes scheduled, but I think professor 
Rozell, in an effort to move forward as quickly as we can, we 
will be glad to accommodate your opening statement at this 
point. If we have to break before you conclude, it's nothing 
personal. We will just have to allow members sufficient time to 
go vote.
    If you would at this time, I would like to recognize 
Professor Rozell for his opening statement.

   STATEMENT OF MARK J. ROZELL, DEPARTMENT OF POLITICS, THE 
                 CATHOLIC UNIVERSITY OF AMERICA

    Mr. Rozell. Thank you very much. I appreciate the 
opportunity to address the committee. I am the author of a book 
on executive privilege, one that I am presently updating and 
therefore have a very strong interest in following cases of 
legislative-executive disputes over access to executive branch 
information.
    The current case has received enormous attention for many 
good reasons, but I would like to focus my comments on the 
question of Congress's right to access deliberative documents 
within the Department of Justice.
    The administration's claim to secrecy in the current case 
does not meet the traditional standards for a valid claim of 
executive privilege. The history of the use of executive 
privilege clearly demonstrates that this is a legitimate 
Presidential power, but one that operates within the limits of 
a system of separated powers.
    Presidents and their staffs often have legitimate needs of 
confidentiality and Members of Congress have needs of access to 
information to conduct investigations. When these needs 
collide, a balancing test is in order. Just as the 
congressional power of inquiry is not absolute, neither is the 
Presidential power of executive privilege.
    Merely uttering the words ``national security'' or 
``prosecutorial'' does not automatically settle an inter-branch 
dispute in the administration's favor. Executive privilege 
should never be used as an opening or an early bid in a dispute 
with a congressional committee, only to be negotiated away as 
Congress asserts its prerogatives. It is a power that should be 
used rarely and only in the most compelling circumstances.
    Traditionally, claims of executive privilege have been 
valid in cases protecting, first, certain national security 
needs; and second, confidential deliberations where it can 
clearly be demonstrated that disclosure would harm the national 
interest. Related to the second, executive privilege may be 
appropriate to protect the integrity of ongoing investigations 
when disclosure would clearly undermine the pursuit of justice.
    There is no compelling national interest being protected by 
withholding information regarding closed investigations. In 
circumstances involving allegations of governmental corruption, 
Congress' power of investigation is especially weighty when 
balanced against an administration's claim of secrecy.
    There is substantial precedent for Congress to receive 
access to deliberative documents from the Department of Justice 
and I will briefly outline a few such past cases.
    First, during the Rehnquist confirmation hearings in 1986, 
Members of the Senate Judiciary Committee requested access to 
Department of Justice memoranda that Rehnquist had earlier 
written while he was head of the Nixon administration Office of 
Legal Counsel.
    Rehnquist had no objection to his earlier memoranda being 
made available to the committee. Nonetheless, the Reagan 
administration Justice Department initially refused to turn 
over the memoranda and the President invoked executive 
privilege. The administration's position was that Congress 
should not have access to documents that contain confidential 
legal advice.
    Republicans controlled the committee and these Senators 
both supported their President and the Rehnquist selection to 
be Chief Justice. Yet, there was bipartisan agreement that a 
congressional prerogative was at stake and that to allow the 
Justice Department to automatically withhold deliberative 
documents from a past administration would establish a terrible 
precedent.
    The committee had the votes necessary to subpoena the 
documents and to delay the confirmation proceedings. The 
President withdrew his claim of executive privilege. The 
Justice Department and the Judiciary Committee then reached an 
accommodation in which Senators and certain staff would receive 
access to many of the disputed documents.
    The mistake that the administration made in this case was 
to use executive privilege as an opening bid in a dispute with 
Congress over access to information rather than first try to 
work with Congress on some accommodation that would satisfy the 
needs of both branches.
    The administration further erred when it claimed that as a 
matter of principle, Congress should not have access to 
Department of Justice deliberative documents, even in the case 
of documents from an earlier administration.
    That the Reagan administration allowed access to some but 
not all of the requested documents makes it clear that the 
principle of denying Congress access to such materials is far 
from absolute.
    A second example was a controversy during the George H.W. 
Bush administration over an Office of Legal Counsel opinion 
memorandum that said that the FBI may legally apprehend 
fugitives abroad without the approval or permission of the host 
country.
    Members of Congress raised critical questions whether this 
new policy, which overturned an earlier OLC memorandum 
forbidding such a practice, lacked statutory authority and 
conflicted with international law.
    The House Judiciary Committee requested access to the 
memorandum and the Department of Justice refused on the 
principle that to do so would violate its secret opinions 
policy. Now, no one had ever heard of a secret opinions policy 
before, but the department apparently had adopted one to deny 
Congress access to all OLC decision memoranda.
    The Department also claimed that releasing the memorandum 
would violate the attorney-client privilege because to do so 
would make Federal agencies in the future reluctant to rely on 
Justice for confidential legal advice.
    The Judiciary Committee voted to subpoena the memorandum. 
Once again, Congress and the administration reached an 
accommodation.
    Mr. Barr. Excuse me, Professor, if I could. I apologize for 
cutting you off but it is only temporary. We will take a recess 
here so the members can go vote. We have about four and a half 
minutes left on this vote and then we have one other vote after 
that. So, we are probably looking at about 15 minutes. So, if 
you all want to take a break for a few minutes, we will be in 
recess until Members have voted.
    Mr. Burton. Let us get the panelists back before the 
committee. We will have other Members coming back. We had two 
votes on the floor and as a result people grab a sandwich and 
start drifting back in. So, we apologize that all of us aren't 
here at the moment.
    We are glad to have you with us. Professor Rozell, I guess 
you were in the middle of your statement. We apologize for the 
break, but we can't control those votes.
    Mr. Rozell. That is fine. I understand how it works.
    Mr. Burton. You are recognized.
    Mr. Rozell. I will pick up where I left off, I assume. I 
was discussing a second example, and that was a controversy 
during the former Bush administration over an Office of Legal 
Counsel Opinion Memorandum that said that the FBI may legally 
apprehend fugitives abroad without the permission of the host 
country.
    Members of Congress raised critical questions whether this 
new policy, which overturned an earlier OLC memorandum 
forbidding such a practice, lacked statutory authority and 
conflicted with international law. The House Judiciary 
Committee requested access to the memorandum and the Department 
of Justice refused on the principle that to do so would violate 
its secret opinions policy.
    No one had ever heard of a secret opinions policy before 
but the department apparently had adopted one to deny Congress 
access to all OLC decision memorandum. The department also 
claimed that releasing the memorandum would violate the 
attorney-client privilege because to do so would make Federal 
agencies in the future reluctant to rely on Justice for 
confidential legal advice.
    The Judiciary Committee voted to subpoena the memorandum. 
Once again, Congress and the administration reached an 
accommodation. The Department of Justice and the committee 
agreed to an arrangement whereby committee members could 
review, but not copy, department documents pertaining to the 
memorandum as well as the memorandum itself.
    Someone in the Bush administration then leaked the full 
memorandum to the Washington Post. The Supreme Court ultimately 
upheld the practice of apprehending fugitives abroad, but this 
decision had no bearing on the issue of the committee's right 
to receive access to OLC decision memoranda.
    A third example was a congressional investigation into 
allegations that Reagan administration Department of Justice 
officials had conspired to force the Inslaw Computer Co. into 
bankruptcy and to then have Inslaw's leading software product 
bought by another company.
    In 1991, when a subcommittee of the House Committee on the 
Judiciary sought access to the Department of Justice documents 
regarding Inslaw, the Bush administration refused and claimed 
attorney-client privilege. In this case the administration 
claimed that the need for secrecy was especially compelling 
because the requested documents concerned an on-going 
investigation by the Department of Justice.
    The subcommittee voted to subpoena the documents and the 
full committee followed and did the same. Again, the two sides 
reached an accommodation, although it was not entirely 
satisfactory to the Congress. The Department of Justice agreed 
to turn over to the committee the vast majority of the 
requested materials, yet it refused to make a complete showing 
of all disputed documents.
    What is significant about this case is that Congress 
received access to Department of Justice documents regarding an 
on-going investigation. All of the current cases under 
investigation by the committee are closed and therefore 
constitute an even stronger claim for disclosure than the 
Inslaw investigation.
    The above cases make it clear that there is ample precedent 
for Congress to receive access to Department of Justice 
deliberative documents. There are many other cases of Congress 
receiving such materials in one way or another. The history of 
information disputes between the branches is mostly one of both 
sides working out reasonable accommodations.
    In so doing, the branches respect one another's legitimate 
needs and Constitutional powers. In our system of separated 
powers it is not credible to argue that in cases of information 
disputes one branch has absolute power. There are limits to the 
exercise of executive privilege and to the congressional power 
of inquiry.
    Nonetheless, the legislative power of inquiry is very broad 
and in a democratic system the presumption must be in favor of 
openness. The burden is on an administration to prove that it 
has the right to secrecy and not on Congress to prove that it 
has the right to investigate.
    In the case of a long-closed investigation and allegations 
of serious wrongdoing, the argument for congressional access to 
documents is especially strong. To allow the current claim of 
executive privilege to stand would enable the administration in 
the future to withhold from Congress any information that it 
wants, as long as someone says the words, ``prosecutorial 
materials.'' That would be a terrible precedent to establish.
    Now, I have elaborated a fairly brief statement here. I 
would be delighted to add to that in more detail if the 
committee wishes.
    Thank you.
    [The prepared statement of Mr. Rozell follows:]
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    Mr. Burton. We will have questions for you, Professor.
    Professor Tiefer.

   STATEMENT OF CHARLES TIEFER, UNIVERSITY OF BALTIMORE LAW 
SCHOOL, FORMER SOLICITOR AND DEPUTY GENERAL COUNSEL, U.S. HOUSE 
                       OF REPRESENTATIVES

    Mr. Tiefer. Thank you, Mr. Chairman and members of the 
committee. I appreciate the opportunity to testify on the 
important subject of today's hearing.
    I had 15 years of experience, from 1979 to 1984 as 
assistant Senate legal Counsel and from 1984 to 1995 as 
solicitor and deputy general counsel of the House, experience 
with advising and participating in congressional oversight 
investigations and in litigating in court the issues that arose 
in connection with them.
    I am also the author of a book based on that oversight, The 
Semi-Sovereign President and numerous Law Review articles.
    My overall point for today is quite simple. My 
understanding of the Department of Justice position is that 
although they are aware that during the previous administration 
this committee had access to the type of material being sought 
now, that they believe that this was an aberration or they 
maintain that it did not occur, congressional access of this 
kind did not occur before 1993.
    They also, as today's testimony by the Assistant Attorney 
General focuses on, believe that there's something particularly 
narrow and special about prosecutorial memoranda, that's 
memoranda of advice about whether to bring criminal charges.
    Well, my testimony, which is based on my own personal 
experience from 1979 on with congressional investigations, is 
that they are misinformed. Before 1993, congressional 
committees did have access to precisely this kind of material.
    I have done in my statement a chronology of the years from 
Watergate on. It's on the screen now, although it is in small 
print. I will not take the time to go through the entire 
chronology. I will skip Watergate. I will skip the Church 
Committee, which fully investigated FBI abuses.
    I will start with my own experience with the Senate Billy 
Carter committee which was looking at the decision of the 
criminal division not to charge the President's brother, Billy 
Carter, with criminal charges, but only to make a civil 
settlement with them.
    This was when he had received $220,000 from Libya. I 
personally was the head of the Senate committee's task force on 
the Justice Department in the Billy Carter matter. I personally 
read the prosecutorial memoranda and, more important, 
personally questioned the witnesses in the Justice Department, 
from the line attorney, Joel Lisger, up to the Attorney 
General, about how the deliberations had occurred, how the 
decisions had been made. That was the Carter administration.
    In the Reagan administration, first term, we had Senator 
Grassley who did one important investigation. Mr. Rosenberg 
will talk about the major matter which involved a formal 
Presidential claim of executive privilege.
    I just want to mention another of them that neither of them 
will talk about which was the Senate Abscam Committee which was 
about undercover activity, that's, after the Abscam matter in 
which bribes were offered by a sting operation to Members of 
Congress, the Senate did an investigation of the undercover 
activity.
    Although the terms of access were very elaborate and 
limited and controlled, that committee received the full 
details, the verbatim words of the prosecutorial memoranda in 
the Abscam cases.
    We turn to the second Reagan term. I won't talk about the 
Iran Contra matter where I served as Special Deputy Chief 
Counsel, because I understand that the Justice Department has 
sort of a general exception, which says that if it's a very 
famous matter like Teapot Dome or Watergate or Iran Contra it 
doesn't count as a precedent. If you remember it, it doesn't 
count as a precedent.
    They have a more full legal statement of what it is, but 
that's basically what it is.
    I want to mention though the E.F. Hutton investigation, 
which was the House Subcommittee on Crime, looking at the fact 
that charges were made in a situation where E.F. Hutton had 
committed 2,000 counts of check kiting fraud. It was sort of 
the Enron of its time.
    The company was charged, but officials weren't charged. The 
House subcommittee wanted to look at how that decision was 
made. The Justice Department went to court to resist. I 
litigated in opposition. They lost. We won. We got the files on 
the matter. We got the key memoranda on the matter and the 
House Subcommittee on Crime held hearings in which the line 
attorney was the witness, was questioned and was questioned on 
the basis of the prosecutorial memoranda. There was no other 
way to get at how the decision had been made.
    I am going to move ahead in time. That covers up until the 
second Reagan term. I am going to move to the term of President 
Bush. Mr. Rozell has talked about two of the matters that are 
on my chronology, the 1990 Inslaw matter and the 1991 extra 
territorial kidnapping secret opinion.
    I want to talk instead about a matter in 1992, the Rocky 
Flats investigation. Now, this was 1992. This was the last year 
before the Clinton administration, but as I understand the 
Justice Department, it's still the period of time in which 
supposedly congressional committees didn't get access to these 
kinds of materials.
    The issue there, Rockwell Corp. has been operating a 
nuclear waste facility in Colorado. There had been a heavy 
release of toxic materials. They were allowed to essentially 
plead and pay a fine and the House Committee on Science, the 
Oversight Subcommittee of the House Committee on Science, 
wanted to look at whether this was a proper charging or there 
should have been more serious charging.
    Well, there was a great struggle about whether the 
committee would get access. The Department of Justice came to 
the point of asking, they said all along that they might well 
claim executive privilege. They came to the point of checking 
with the White House and the answer came back, ``We don't want 
to claim executive privilege in this matter.'' So, at that 
point the arrangement was made with the House committee that it 
got, its staff got to read and to take notes on and to make use 
of in a carefully limited way the prosecutorial memoranda 
concerning the Rocky Flats matter.
    Now, after this, starting in 1992 and continuing until 1994 
came the investigation by the House Commerce Committee of the 
Environmental Crimes Section. There also an arrangement was and 
ultimately, after a great deal of resistance the prosecutorial 
memoranda were reviewed. But that is during the Clinton 
administration. So, my understanding is that is discounted by 
the current administration as not counting because it's after 
1993.
    Nevertheless, I have not gone through the many, many issues 
of executive privilege because I believe that if the department 
ever comes down seriously to saying, well, we are arguing on a 
case-by-case basis; it's not an absolute. It is a case-by-case 
basis.
    They are confronted with the fact that this is a rather 
poor instance to a case by case privilege because the committee 
is looking at the memoranda that are in closed cases and they 
are not merely closed cases, the memoranda that are being 
looked at, that are being sought, are an average of 22 years 
old. They don't get more closed than that. We looked at closed 
matters, but they weren't 22 years old. They had been closed. 
They weren't buried.
    Anyway, I think that what the department will say is, 
``Well, but there is something very special about prosecutorial 
memoranda. They are different from other deliberative 
materials. If I may, having listened to the testimony of the 
Assistant Attorney General, if you draw a ven diagram, they are 
in the internal subset. They are in the very central subset on 
the ven diagram.
    Well, that is what my statement is about. What did we see 
during the years before the Clinton administration? In the 
example of Billy Carter, we saw the prosecutorial memoranda. In 
Abscam we received the full details, the verbatim words of the 
prosecutorial memoranda.
    Rocky Flats, we saw the prosecutorial memoranda.
    Mr. Chairman, the precedents are on your side.
    Mr. Burton. Thank you, Professor.
    [The prepared statement of Mr. Tiefer follows:]
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    Mr. Burton. Chairman Gilman has to leave, so if you 
wouldn't mind, I would like to have the chairman ask a couple 
of questions and then we will get back to your statement.
    Mr. Gilman. Thank you, Mr. Chairman. I want to thank you 
again for conducting this very important hearing to clarify the 
congressional authority to look at the deliberative documents 
involved in any particular case.
    Mr. Bryant has stated that the department is willing to sit 
down with the committee to discuss our access to the advice 
memorandum. Mr. Bryant, how far along were you willing to do 
that and starting with the premise that this committee has 
Constitutionally mandated oversight authority, why would it not 
be incumbent upon Congress, why is it incumbent upon Congress 
to justify our request for access to the documents that we are 
looking for. I would welcome your comments.
    Mr. Bryant. Yes, sir. My understanding, sir, is that 
pursuant to the one case that is directly on point to the 
instant situation, that case being the Senate Select Committee 
case of 1974, and I say it's the one case on point because it 
pertains to a congressional subpoena of the executive branch 
requesting information and documents.
    Mr. Gilman. What was that issue in that case? What was the 
issue?
    Mr. Bryant. The issue was Congress seeking information of 
the executive involving executive deliberations.
    Mr. Gilman. With regard to what issue?
    Mr. Bryant. I believe it was in the context of the 
Watergate matter. The court held there, and this is the D.C. 
Circuit Court of Appeals, the court held that there had to be a 
showing by the requesting committee that the documents 
requested were demonstrably critical to the interests of the 
committee, that the burden in effect was on the requesting 
party, the committee, to make such a showing with respect to 
the specific documents subpoenaed.
    So, our view is that the subpoena in the instant case that 
brings us here today preceded any such showing with respect to 
the 10 Boston documents. So, we remain prepared to sit down 
with the committee to consider the request to each document 
involved to have a discussion about each document that has been 
subpoenaed, to evaluate the interest of the committee in each 
document and then to engage in an accommodation process which 
will hopefully meet the interests of the committee.
    Mr. Gilman. Well then, following that kind of a conference 
and review of the documents, would you then be prepared to 
accept the committee's request for turning over those 
documents?
    Mr. Bryant. Congressman, it would be premature for me today 
to suggest one way or the other. What I can say is that we 
would take the opportunity for such a meeting very seriously 
and would hear out the committee from beginning to end with 
respect to each document.
    We feel ourselves to have an obligation to seek out a 
mutually acceptable accommodation with respect to those 
documents.
    Mr. Gilman. In that kind of procedure, would you then make 
that document available for review by committee staff or by one 
of the members?
    Mr. Bryant. Again, sitting here today on this side of any 
such meeting, not having the benefit of the actual discussion 
of such a meeting, it would be premature for me to suggest any 
specific accommodation.
    Mr. Gilman. How would the committee know of the importance 
of the particular document if you are going into a conference 
of that nature?
    Mr. Bryant. Well, that would be the purpose of such a 
conference between the department and the committee, to have a 
very extensive discussion where we describe the contents of 
each document, where we discuss what is in them, we discuss the 
committee's particular interest in each document and evaluate 
what the most appropriate accommodation would be, in light of 
the obligation that we, the executive, feel to ensure that high 
level, very sensitive prosecutorial advice memoranda not be 
disclosed improperly.
    Mr. Gilman. Well, Mr. Bryant, after you sit down with the 
committee, as you sit down with the committee and discuss the 
important of each document, if the committee feels that 
document is still important, would you be prepared then to turn 
it over to the committee?
    Mr. Bryant. That would be the question that at that time 
would have to be answered. Again, it would be premature.
    Mr. Gilman. Who would make that decision, Mr. Bryant?
    Mr. Bryant. There would have to be a meeting of the minds 
between the two parties involved in that accommodation process.
    Mr. Gilman. Just one other question. I see my time is up. 
Mr. Bryant, you indicated that unflattering character 
references in the department's advice memorandum, a memorandum 
over 20 years ago, should be protected by executive privilege.
    Does that not infer that some unprofessional behavior and 
possible undermining of the principle of innocent until proven 
guilty may be found in those documents?
    Mr. Bryant. It does not necessarily imply that at all, 
Congressman. What it does imply is a degree of candor contained 
in those documents that's essential for a sound decision to be 
made about somebody as important as whether or not to bring a 
Federal prosecution against an individual.
    So, it would include, for example, a testimony of various 
witnesses, various informants. They would be speaking candidly 
about things they had heard and seen that might not always put 
a person in a favorable light.
    It is not to say there has been any pre-judgment in the 
memo itself.
    Mr. Gilman. Thank you, Mr. Bryant and thank you, Mr. 
Chairman, for allowing me to go ahead.
    [The prepared statement of Hon. Benjamin A. Gilman 
follows:]
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    Mr. Burton. Before we go to Mr. Rosenberg, let me just say 
in response to what we just heard from you, Mr. Bryant, the 
interpretation of documents by the Justice Department, which is 
the whole issue we are talking about, is something we don't 
want to rely on.
    We want to see the documents. A man and others were put in 
jail for 30 years for a crime they didn't commit. We don't want 
to take your word or the word of somebody at the Justice 
Department who may be wanting to keep under wraps what took 
place during that time period or even today by rogue members of 
the Justice Department or the FBI.
    We want to clean up the mess and make sure it doesn't still 
exist. To take your word or the word of the Justice Department 
when we know that Mr. Salvati spent 30 years in jail for a 
crime he didn't commit and Justice knew about it and so did the 
FBI is something that we cannot rely on. We can't rely on your 
judgment. We have to see the documents.
    I will tell you, as more Members of Congress find out about 
this issue, and they are finding out, Senator Grassley found 
out about this on his own, when I get a majority in the House I 
am going to take you guys to court and we are going to win. You 
are going to give me those documents because the American 
people want to rely on the justice system and the only way they 
can rely on the justice system is to know that atrocities like 
what took place with Mr. Salvati will never happen again.
    Mr. Rosenberg.

 STATEMENT OF MORTON ROSENBERG, SPECIALIST IN AMERICAN PUBLIC 
              LAW, CONGRESSIONAL RESEARCH SERVICE

    Mr. Rosenberg. Mr. Chairman and members of the committee, I 
fully appreciate your allowing me to be here today on this 
extraordinarily important issue.
    My plan was to discuss in detail two case studies, the 
Teapot Dome and the Burford Affair and their consequences. My 
fellow panelists, however, have detailed what we can find from 
the history of these individual cases. I am in agreement with 
them and my statement has an appendix which describes 18 cases 
from as early as 1920, the Palmer raids, through the Campaign 
Finance investigations that your committee took a great part 
in.
    I have decided to depart from my opening statement because 
Assistant Attorney General Bryant raised an issue, which I have 
covered in my prepared testimony, in which he states that the 
prevailing case law holds that prosecutorial discretion, 
prosecutorial matters, are core Constitutional and executive 
powers that are implicitly that is, you know, a subject that 
will be covered by the President's claim of executive 
privilege.
    I believe that is not a totally incontestable statement. I 
would like to talk about that in the context of those two cases 
and also with regard to the case that Mr. Tierney alluded to, 
the Espy case, which taken together give a different view of 
what the law is and what your authority is in this area.
    During the investigation of Teapot Dome, the committee 
subpoenaed the brother of the Attorney General and he refused 
to appear and was arrested by the Sergeant-at-Arms of the 
House. The contest of the arrest went to the Supreme Court.
    The Supreme Court upheld the Senate's authority to 
investigate Teapot Dome matter and the charges of 
maladministration, malfeasance and non-feasance in the 
Department of Justice. The court, in a critical part of its 
opinion, after recognizing the inherent power of congressional 
committees to investigate, described just what it was that the 
Senate committee could look at.
    ``The subject to be investigated was the administration of 
the Department of Justice--whether its functions were being 
properly discharged or being neglected and misdirected and 
particularly whether the Attorney General and his assistants 
were performing or neglecting their duties in respect to the 
institution and prosecution of proceedings to punish crimes and 
enforce appropriate remedies against wrongdoers--specific 
instances of alleged neglect being recited. Plainly the subject 
was one upon which legislation could be had and would be 
materially aided by the information which the investigation was 
calculated to elicit. This becomes manifest when it is 
reflected that the functions of the Department of Justice, the 
powers and duties of the Attorney General and the duties of his 
assistants are all subject to congressional legislation and 
that the department is maintained and its activities are 
carried on under such appropriations as in the judgment of 
Congress are needed from year to year.''
    The court therefore was underlining the fact that the 
Justice Department, like all other executive agencies, is a 
creature of the Congress and subject to its plenary legislative 
and oversight authority.
    There's no indication whatsoever that its prosecutorial 
functions, which was the subject of the investigation and that 
was understood and then blessed by the Supreme Court in 1926 
that prosecutorial functions are in any way immune from 
legislative inquiry.
    The Burford Affair was a long one. It started with the 
President ordering the administrator of EPA to refuse to turn 
over sensitive litigation documents to several House 
committees. The administrator was held in contempt of Congress 
and before that contempt could go over to the U.S. Attorney for 
prosecution, the Justice Department filed a lawsuit attempting 
to stop the Congress from enforcing its contempt powers.
    Ultimately, that was resolved. The court threw out the 
Justice Department's case and the document dispute was 
resolved. All documents were turned over in their entirety to 
House committees.
    But that wasn't the end of the affair. The Judiciary 
Committee of the House then began a probe into exactly what 
occurred during that period when they were helping to contest 
the claim of executive privilege.
    This probe by the Judiciary Committee lasted 2 full years 
in which ultimately intimate deliberative documents were all 
turned over to the investigating committee. The final report of 
that committee recommended of asked the Attorney General to 
have a Special Prosecutor appointed. A Special Prosecutor was 
appointed. The independent counsel subpoenaed a Justice 
Department official, the Assistant Attorney General for the 
Office of Legal Counsel. That official refused to obey the 
subpoena and ultimately that case went to the Supreme Court of 
the United States.
    When the case reached the Supreme Court, it rejected 
specifically the notion that prosecutorial discretion in 
criminal matters is an inherent or core executive function. The 
court, in that case, Morrison v. Olson, sustained the validity 
of the appointment and removal conditions for independent 
counsels under the Ethics in Government Act, stating that the 
independent counsel's prosecutorial powers are executive in 
that they have been ``typically'' performed by executive branch 
officials.
    But it held that the exercise of prosecutorial discretion 
is no way central to the functioning of the executive branch. 
The court therefore rejected a claim that insulating the 
independent counsel from at-will Presidential removal 
interfered with the President's duty to take care that the laws 
be faithfully executed.
    Interestingly, the Morrison court took the occasion to 
reiterate the fundamental nature of Congress's oversight 
function by citing McGrain v. Daugherty.
    Right after that case was decided, more litigation occurred 
in the Federal courts dealing with the False Claims Act and the 
delegation of prosecutorial authority to private parties to 
litigate on behalf of the government.
    A ninth circuit case upheld the Constitutionality of the 
False Claims Act, citing Morrison to the effect that by using 
the quoted language, it was holding that there was no 
Constitutional assignment of exclusive prosecutorial authority 
in the President of the United States.
    Finally, in the case that was mentioned by Mr. Tierney, 
which is very important, and this is the In re Sealed case 
dealt with an independent counsel investigation of Secretary of 
Agriculture Mike Espy. When allegations of improprieties of 
Espy surfaced, President Clinton ordered the White House 
counsel's office to investigate and report to him so they could 
determine what action, if any, he should undertake and they 
claimed executive privilege. The President withheld 84 
documents claiming both executive privilege and deliberative 
process privilege for all these documents.
    The motion to dismiss by the District Court was upheld, but 
it went to the Court of Appeals of the District of Columbia and 
that court reversed. At the outset of its opinion, the court 
carefully distinguished between the Presidential communications 
privilege and the deliberative process privilege.
    Both, the court observed, are executive privileges designed 
to protect the confidentiality of executive branch 
decisionmaking. But the deliberative process privilege applies 
to executive branch officials generally. It's a common law 
privilege which requires a much lower threshold of need to be 
overcome and, the court said, disappears altogether, when 
there's any reason to believe misconduct has occurred.
    On the other hand, the court explained, the Presidential 
communications privilege is rooted in Constitutional separation 
of powers principles and the President's unique Constitutional 
role, but applies only to direct decisionmaking by the 
President with respect to core Presidential powers.
    That privilege may be overcome only by a substantial 
showing the that subpoenaed documents are likely to contain 
important evidence and that the evidence is not available 
elsewhere. The court turned itself to the chain of command 
issue, which elaborates why I'm doing this.
    The court held that Presidential privilege must cover 
communications made or received by Presidential advisors in the 
course of preparing advice for the President, even if those 
communications are not made directly to the President. The 
court rested its view on the Chief Executives dependence upon 
Presidential advisors and the inability of the deliberative 
process privilege to provide those advisors with adequate 
freedom from public spotlight and to provide sufficient 
elbowroom for advisors to obtain information from all 
knowledgeable sources.
    Thus the privilege will apply both to communications which 
those advisors solicited and received from others as well as to 
those that they offered themselves. The privilege must also 
extend, the court held, to communications authored or received 
in response to a solicitation by members of a President's 
advisor's staff.
    The court, however, was acutely aware of the dangers to 
open government that a limitless extension of the privilege 
risks and carefully cabined the reach of that privilege by 
explicitly confining it to the White House and not staff in 
agencies, and then only to White House staff that has 
operational proximity to Presidential decisionmaking.
    Mr. Burton. Mr. Rosenberg, if we could, we would like to 
get to the questions and answers, so if you have a final 
comment or two you would like to make.
    Mr. Rosenberg. One final comment is that what the Morrison, 
Daugherty and Espy cases demonstrate is that the commitment of 
prosecutorial discretion is to the Attorney General. It's not 
to the President of the United States and that your committee's 
authority to investigate, as was made very clear in the 
Daugherty case, and in the Teapot Dome case, is plenary and 
full and that there's no Constitutional authority that I'm 
aware of that can deter you.
    [The prepared statement of Mr. Rosenberg follows:]
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    Mr. Burton. Thank you very much. I appreciate all of your 
testimony. We will now get to questions. I will start off by 
saying to Mr. Bryant that I am disappointed in your statement. 
I am sure you probably were aware of that. I asked you to 
answer a few basic questions regarding the history of 
congressional access to deliberative Justice Department 
records.
    That was the purpose of your testimony. You have not really 
gotten into that at all. What I wanted you to do today was to 
come up and give me a list of cases and history regarding 
deliberative documents, and we would like you to do that. Now, 
we asked you these questions, I think, about 5 months ago. In 
your letter of February 1st, just recently, you cited a total 
of three cases and you did not address this subject at all in 
your opening statement.
    So, I hope you found more than three examples. If you need 
us to refresh your memory, we can go through a whole litany of 
these.
    Now, do you have a list of cases where deliberative 
documents have been given to the Congress when subpoenaed?
    Mr. Bryant. Yes, Mr. Chairman. I don't pretend that it's an 
exhaustive list.
    Mr. Burton. How many do you have on that list?
    Mr. Bryant. So as to not waste the committee's time, it is 
probably a handful or two, sir.
    Mr. Burton. Just a handful or two? How many is that?
    Mr. Bryant. I think I have close to a dozen instances, 
perhaps, here sir, that I would be happy to discuss with the 
committee.
    Mr. Burton. Can you go through those for us?
    Mr. Bryant. Sure. I have made an effort, Mr. Chairman, not 
pretending to scholarly expertise in this area, but I have made 
an effort to acquaint myself with instances of past 
accommodation.
    Mr. Burton. Excuse me, Mr. Bryant. I appreciate that 
comment you just made, but you have had 5 months. We are in the 
computer age and in the computer age I'm confident that the 
Library of Congress probably has a whole litany of these 
things.
    For you to sit there and tell us that you really haven't 
had time to acquaint yourself with them or haven't done that 
kind of bothers me a little bit because it has been 5 months.
    Mr. Bryant. I have tried to acquaint myself.
    Mr. Burton. OK. Let's go through the 12 you have.
    Mr. Bryant. The instances involving past disclosure of 
deliberative prosecutorial documents would include the Palmer 
raids back in 1920 and 1921 where Congress investigated these 
raids directed by then Attorney General Palmer which involved 
arresting and deporting thousands of suspected Communists. As I 
understand it, deliberative memos were disclosed in that 
context.
    Teapot Dome in 1927 where Congress investigated corruption 
in connection with Department of Interior oil reserve leases 
and the Justice Department's failure to prosecute various 
involved government officials. As this committee well knows, 
Attorney General Daugherty, in connection with that episode, 
went to prison.
    As I understand it, open case information and prosecutorial 
deliberative memos were disclosed by the subsequent Attorney 
General, Harlan Stone. There are a couple of important cases 
that I know the committee is aware of, Supreme Court cases that 
came out of the Teapot Dome, a situation which I would be happy 
to address if of use to the committee.
    The third instance involving disclosure of deliberative 
prosecutorial documents that I have made an effort to acquaint 
myself with is the McGrath matter from 1952. That involved 
Congress investigating corruption in the Tax Division of the 
Justice Department. The Attorney General at the time, McGrath, 
resigned in connection with that. As I understand it, extensive 
Grand Jury materials and deliberative documents were disclosed.
    Jumping forward a few decades, the Bill Carter matter that 
has been addressed here by persons on this panel with me, in 
1980 that involved a congressional investigation regarding the 
Justice Department's handling of allegations about the 
President's brother's failure to register pursuant to the 
Foreign Agent's Registration Act.
    As I understand it, deliberative prosecutorial memos were 
disclosed in that circumstance. The Abscam matter in 1982. 
There was a select committee that was established in connection 
with the congressional followup to the Abscam matter. It was 
established because of congressional concern with the Abscam 
undercover investigations of Members of Congress, that Members 
of Congress had been targeted.
    In that context with that Select Committee having been 
established with that specific concern in mind, I understand 
that the department deliberative prosecutorial memos were 
disclosed.
    Another case subsequent to that, the General Dynamics case 
in 1987, I've made an effort here in response to the chairman's 
letters, to try to acquaint myself with this matter. I 
understand the underlying matter occurred in 1984. What we have 
in our records or were able to uncover through our research is 
a 1987 notebook, as I understand it, that indicates that some 
deliberative prosecutorial memos were provided to Congress.
    I am not entirely clear what they were based on the dearth 
of information in what we were able to uncover. I believe, 
however, that the context for the General Dynamics case in 1987 
involved the Justice Department explaining wrongdoing at the 
Department of Defense in connection with various instances of 
procurement fraud.
    In that context, the department did provide prosecutorial 
memos.
    The next instance that I am aware of is the Rocky Flats 
immunity deal. This occurred or was looked into over the period 
of time from 1989 to 1990. A House Government Operations 
Subcommittee investigated the Rockwell Corp.'s request for 
immunity, which the Justice Department had declined.
    Initially, it is my understanding that only factual records 
were provided pursuant to the congressional requests after 
extensive negotiations between the department and the 
committee. All but four deliberative prosecutorial memos were 
provided to the committee.
    The dispute continued regarding those four documents and 
the department considered, as I understand it, seeking 
executive privilege in the matter, but ultimately did not and 
those documents were disclosed.
    The next situation, another Rocky Flats concern, this one 
involving the plea agreement. A House committee investigated 
Rockwell's plea agreement in connection with violations of 
various environmental laws. The committee asked to interview 
line prosecutors. In this circumstance the Justice Department, 
as I understand it, made an exception, largely relying on the 
fact that the two prosecutors had responded to media inquiries 
and had made themselves publicly available to the media.
    In that context, the department agreed to make the line 
prosecutors available to Congress, but they did so with the 
stipulation that they were not to disclose internal 
deliberations leading up to the declination decision and that 
agreement was so, even after the line prosecutors had been 
subpoenaed.
    As I understand it, after heated discussions and 
negotiations an agreement was reached 1 month before the 
Presidential election which involved making deliberative 
prosecutorial documents available and the line attorneys 
available to explain those documents themselves.
    I have a few more, Mr. Chairman. I don't want to misuse 
your time.
    Mr. Burton. I don't want to belabor this. Why don't you 
just read the others real quickly so we have a record of them?
    Mr. Bryant. Surely. The other matters that I have developed 
some degree of familiarity with include the B&L matter from 
1992, the Environmental Crimes Reviews that occurred over the 
period of 1992 to 1993, the White House Travel Office matter 
dating 1995 to 1996. Then, the LaBella inquiry memoranda matter 
dating over the time period of 1997 to 2000.
    Mr. Burton. Well, I am very familiar with the LaBella and 
Freeh memos and it took us a long time to get them. It may take 
us a long time to get these but we are going to get them. We 
are going to get these guys.
    I don't know why you want to go through all this. If we 
have to go to court, we are going to get these documents. Now, 
you didn't mention Watergate, the Church Committee, the Senate 
Judiciary contract cases. You didn't mention the House 
Judiciary on E.F. Hutton. You didn't mention Iran-Contra. You 
didn't mention the House Intelligence and Judiciary GAO as to 
the FBI abuses, the Senate Judiciary as to the Whixley 
independent counsel declination, the House Judiciary on the 
Inslaw case which was alluded to earlier. You didn't mention 
the House Judiciary on the OLC secret extra territorial 
kidnapping opinion or the House Commerce Environmental Crime 
section, and we have a whole host of others. He did mention 
that one? I stand corrected.
    Then we have a whole host of cases that go all the way back 
to Coolidge and even beyond. So, there's precedent for us 
getting these documents. We are going to continue to press 
this.
    With that, Mr. Barr, I think you are next on questioning.
    Mr. Barr. I thank you, Mr. Chairman. Mr. Bryant, define for 
me the term ``faithfully executed,'' please.
    Mr. Bryant. Congressman, I'm not a scholar on that 
provision.
    Mr. Barr. From this standpoint, you cite sort of the 
underpinning or the foundation on which the administration's 
position rests. Article 2, Section 3, ``To take care that the 
laws be faithfully executed.'' That's correct, right?
    Mr. Bryant. Yes, sir.
    Mr. Barr. What does it mean to ``faithfully execute?'' 
Basically, I think what your position is that you define what 
``faithfully executed,'' is and as I read the administration's 
position, it continues in perpetuity. Nothing can ever be 
faithfully executed sufficient to disclose information about 
what it was that has in fact been faithfully executed. It's 
sort of a catch-22.
    From a prosecutorial standpoint, I think that's a very weak 
argument by virtually any index, any definition of executing a 
law, let's take the criminal law, it concludes when the case is 
concluded. Either a decision is made not to prosecute or a 
decision is made to prosecute. The case is prosecuted and it's 
appealed and so forth. At some point, I think all of us would 
agree there is finality to it. I mean when the appeals are 
exhausted, for example, doesn't that conclude the execution of 
a case?
    Mr. Bryant. I think applying the term ``faithfully 
executed'' to the situation at hand, the requirement of that 
clause in the Constitution would be to preserve the integrity 
of the criminal justice process. So, the President has an 
affirmative obligation under Article 2, Section 3 to ensure 
that action is taken.
    Mr. Barr. But isn't that what the chairman is trying to do, 
to ensure the integrity of the criminal justice process?
    Mr. Bryant. Certainly rooting out corruption is one way of 
doing that in the department.
    Mr. Barr. How can we do that if you all put up a brick wall 
and say even though a case has been concluded years and years 
before this, even though there's no damage to Grand Jury 
secrecy, even though there are no further deliberative 
decisions that have to be made, we are still going to deny you 
that because we interpret the phrase to take care that the laws 
be faithfully executed gives us an absolute in perpetuity, 
power, to withhold information about a case to the Congress.
    Mr. Bryant. It is not my understanding that our 
interpretation of the department's interpretation of that 
clause requires such an absolute and in perpetuity character. I 
think the concern in the instant case is to guard against 
pressure by another branch on the decision of whether or not to 
prosecute and that such pressure is inconsistent with ensuring 
the integrity of the criminal justice process.
    So, it's incumbent on us in the current situation with 
respect to Boston----
    Mr. Barr. This is all after the fact. This is not about a 
current case. What pressure can there be that would harm the 
Department of Justice regarding a case that was concluded long 
ago and as to which, unlike a case where there's no question at 
all about it and somebody might be just curious, as to which 
there is very significant evidence that there's a public policy 
matter involved here that whatever decisions any Department of 
Justice rendered be based on Justice and on the evidence and 
are not themselves violative of the law. Doesn't that public 
policy count for something?
    Mr. Bryant. To be sure. The harm in the instant case would 
not apply to the past case. Indeed the department has an 
obligation to provide information appropriately to this 
committee with respect to that past case. The harm would be 
present and prospectively oriented. That is, the practice of 
disclosing such sensitive prosecutorial advice memos would have 
impact for present deliberation.
    Mr. Barr. Then I think the department is reading this 
clause in the Constitution to take care that the laws be 
faithfully executed even more broadly than I thought it was. 
Not only are you saying that there's no time limit or finality 
to a decision about executing the laws faithfully that would 
allow Congress to look at what the department has done, but you 
are saying even if there were it would apply to every case in 
the future that we don't even know about.
    So, what I think you are saying, Mr. Bryant, is that 
Congress can never get certain types of information and that 
type of information is left entirely up to the discretion of 
one branch of government which essentially nullifies oversight.
    Mr. Bryant. That is not what I intended to say, 
Congressman, so if I am leaving that impression I am 
misspeaking. In the current situation where the executive has 
clearly agreed and made a determination that there has been 
corruption of the investigative process, we have an unusual 
circumstance that invites the committee and the department to 
sit down and to carefully evaluate the committee's request for 
those documents. We are prepared to do that.
    We view ourselves as having an affirmative obligation to 
address the current circumstances through the accommodation 
process. We do not mean to say that the committee will never be 
receiving certain materials.
    Mr. Barr. Mr. Chairman, I have some other questions. I 
don't know whether you want me to proceed or whether you want 
to have a second round.
    Mr. Burton. We will have a second round. You know, there's 
an old saying, ``the fox guarding the chicken house'' and the 
corruption took place in the Justice Department, the FBI, and 
as a result the decision on what documents Congress sees to try 
to clean up the mess, to make sure it never happens again, 
should not be interpreted by the department that had the 
problem in the first place. That's what congressional oversight 
is all about. I think that is what we are all trying to get to.
    Mr. Barr, do you have another question or two?
    Mr. Barr. Yes, thank you. Going back to the underpinning of 
the administration's argument, Article 2, Section 3, to take 
care that the law has been faithfully executed, what did you do 
if you have a law that needs to be faithfully executed that 
relates to a congressional power?
    Who makes the determination then whether or not it has been 
faithfully executed and what do you do then when you have that 
pressure point between the executive branch power and a 
responsibility to faithfully execute the laws and the 
congressional power to enact those laws and see that those laws 
are enacted and interpreted properly. For example, Title 2, 
Section 191, refusal of witness to testify about his papers. 
Wouldn't Congress have a right to that information?
    Mr. Bryant. We would not dispute the right of Congress to 
information----
    Mr. Barr. So you are not disputing the right of Congress to 
get the information in this case?
    Mr. Bryant. Well, the distinction would be between 
information and particular documents. We have an affirmative 
obligation to work with the committee to get it information 
pursuant to its legitimate oversight activity, no question.
    Mr. Barr. Would you then sit down with the chairman and 
members of this committee and go over the documents to then 
determine what properly can be released, but to allow the 
committee access to see the documents as part of the effort to 
determine what can properly be released and if there are any 
specific points of disagreement. I mean we can't determine 
whether there are specific points of disagreement if you keep 
all the cards.
    Mr. Bryant. Sitting here today, what I can assure the 
committee is that we are prepared to meet at a time convenient 
to the committee to comprehensively review the documents where 
an oral presentation about each and every document would be 
made by the person and persons with expert knowledge about the 
contents of those documents.
    We would be able to hear from the committee its particular 
interest with respect to each document.
    Mr. Barr. I am sure that I speak for you in saying that I 
certainly trust Chairman Burton. I speak for you and you agree 
with that. Would you not agree then that the only way that the 
chairman who speaks for the committee would be able to properly 
evaluate in a sense your arguments would be if he has access to 
those documents that you are discussing?
    I think it's very unfair to put the chairman or any 
committee member, but especially the chairman, at the 
disadvantage of relying entirely on your oral disclosure, the 
department's oral disclosure and discussion of these documents. 
He never has an ability to see the documents for himself. It's 
not that he doesn't trust you. But there are interpretations of 
documents. You are relying on interpretations of documents and 
second-hand information.
    It seems to me the only way we can reach an accommodation 
to avoid this going to court, and I agree with the chairman, I 
really don't think this is your strongest case to go to court 
on, to sit down and simply go over the documents so the 
chairman can look at them and then if there are specific areas 
of disagreement, put those aside and then let's argue about 
them and see if we can reach an accommodation. If we can, at 
least we have narrowed the differences.
    Mr. Bryant. Well, we are prepared to sit down immediately 
to discuss each and every document and to provide the facts 
that are contained in the documents, facts that don't require 
interpretation, but they just have to be stated. We would 
plainly state the facts from the documents so that we and the 
committee could take the next step.
    Mr. Barr. You know as well as I do, Mr. Bryant, that on 
many of these documents there are nuances, there are notations, 
there are some under linings, I mean similar to a conversation, 
in order to really understand the import of a conversation you 
need to hear it. You need to see the person. We went over this 
in the impeachment at some length.
    It's the same with documents. I have seen documents that if 
you just relate to somebody the facts in those documents it 
doesn't really convey to that person the nuances and some of 
the import of that document because of the way it's written, 
notations, under linings and I don't know, I presume that there 
are notations and under linings and so forth on some of these 
documents.
    How realistic is it to presume that all of that could be 
conveyed to somebody by simply giving them an oral summary of 
the document or an oral recitation of the facts themselves?
    Mr. Bryant. I am not disputing that in certain 
circumstances the committee would find it preferable to see the 
documents. Obviously, we don't dispute that. The concern again 
is that the executive does have an obligation rooted in our 
judgment in the Constitution and in the tradition of executive 
functioning where we have to guard against in any way 
undermining the prosecutorial decisionmaking process.
    That is where the concern arises then with respect to 
particular documents being turned over.
    Mr. Barr. Who is it that would be undermined? Is it some 
future prosecutor that would be undermined by understanding 
that there was bad decisions made in the past? How would that 
undermine a prosecutor? How would that undermine a witness? 
What I think would undermine the future effective 
administration of justice is keeping all of this stuff secret 
because then you are left with this thing hanging out there 
that sounds terrible and may very well be.
    But my experience as a prosecutor has always been that the 
most effective way to achieve prosecutorial successes is to 
have the public understand what the government is doing to be 
as much as possible a part of that, to know that the government 
will disclose information even if it gives itself a black eye 
because that builds credibility and confidence in the system.
    How would that be built? I think it would be undermined by 
refusing to disclose information that clearly indicates that 
bad decisions were made.
    Mr. Bryant. There's much, if not most, if not all of what 
you just said with which I agree. We need to disclose 
information. We need to disclose facts. We are committed to 
that. The concern, again, is with respect to the four corners 
of the document itself. In answering your question, ``How would 
disclosing the document undermine?'' It's our view and it has 
ample support that the public interest would be undermined by a 
prosecutorial process that does not involve candid advice, 
especially on that key work product, the advice memo being 
given to the decisionmaker on whether or not to bring----
    Mr. Barr. But we are talking about candid advice here, as 
the chairman indicated, it wasn't just candid, I mean it was 
very likely criminal. Now, how is the goal of the department to 
see that justice is done buttressed by keeping that information 
secret?
    Mr. Bryant. Again----
    Mr. Barr. Certainly you are not going to rely on that in 
future prosecutions, that type of information.
    Mr. Bryant. We need to get the facts to the committee, no 
question.
    Mr. Burton. Mr. Delahunt just has a couple of minutes of 
questions. Mr. Delahunt, let me yield to you for a couple of 
questions or a couple of minutes or whatever you need. We have 
exactly 8 minutes and 54 seconds on the clock.
    Mr. Delahunt. I know there are other members of the panel 
that might--I saw Mr. Ose and Mr. Shays leave. I don't know if 
they are--are they coming back?
    Mr. Barr covered much of the area that I had intended to 
cover. Let me just be clear in my own mind and I'll direct 
several questions to Mr. Bryant. The department acknowledges, 
presumably, that the claim, the deliberative process privilege, 
is a qualified privilege. Am I correct?
    Mr. Bryant. That is my understanding, yes, sir.
    Mr. Delahunt. Well, am I correct when I say that's the 
department's position, that what we are talking about today is 
a qualified privilege. If you have any questions, I'm sure that 
the chair would indulge me and you could confer with Mr. 
Chertoff.
    Mr. Bryant. I am informed that your statement is correct, 
Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Bryant. I think you just 
picked the worse case imaginable to test this particular 
provision. I should let you know, Mr. Chairman, you have the 
votes if you should go to the floor. I have spoken to a number 
of my colleagues on the Judiciary Committee, Members of the 
leadership on our side of the aisle.
    Be assured, you have the votes. I think you should hear 
those remarks I just made and take them into account in 
whatever decision you should reach in terms of your discussions 
with the chair of this committee.
    Also, Mr. Chairman, I would like to introduce a letter. I 
am just going to read the final paragraph. It's directed to the 
President, President George Bush.
    ``Mr. President, we support the House Committee on 
Government Reform's investigation of the FBI's misconduct. The 
integrity of the criminal justice system and the Federal 
Government has been compromised.
    ``We as public servants owe it to the American people to 
right any wrongs that were committed and must begin rebuilding 
a trust that has been lost as a result of this episode. We 
respectfully request that you reconsider your December 12, 2001 
decision to exercise the executive privilege in this case.''
    It's signed by myself, Representatives Frank and Meehan 
who, as I indicated earlier, serve with me on the Judiciary 
Committee and the Chair has been kind enough to extend an 
invitation to us to sit in these hearings. Obviously, we are 
from Massachusetts and we have a profound interest in what is 
happening.
    It's also signed by Representative Lynch who does serve on 
this committee and in addition, since Senator Grassley was here 
earlier this morning, we had requested and the two Senators 
from Massachusetts, Senator Kennedy and Senator Kerry have both 
signed this letter.
    So, I would ask that this letter be submitted into the 
committee records.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] T8051.148
    
    [GRAPHIC] [TIFF OMITTED] T8051.149
    
    Mr. Burton. Without objection.
    We have a little over 3 minutes to vote, so I think you and 
I are going to have to sprint over there to vote.
    Mr. Delahunt. Well, if I may come back, Mr. Chairman?
    Mr. Burton. Sure, you are welcome to come back. I will not 
be in the chair when we return, but Mr. Barr will and I will 
ask him to recognize you for further questions.
    Mr. Delahunt. I thank you, Mr. Chairman.
    Mr. Burton. I would just like to say before I run off, to 
Mr. Chertoff who I appreciate being here today. He is such a 
nice guy. I wished I looked that good in a beard and moustache, 
I would have one. We really want to work things out but we must 
see those documents.
    We don't want to press this issue and go to court, 
especially against a President that I admire a great deal. I 
don't want to do that. So, I hope that if we can sit down and 
look at the documents, go through the documents and read them 
together, then we can make some decisions on whether or not we 
ought to have physical control over the documents.
    But we must see the documents. That is the only way we are 
going to have confidence that there isn't other cases of this 
type that may have been covered up. The thing that keeps me 
awake nights is there may be some other man or woman or people 
in jail today that were put there by rogue FBI agents in the 
past 30 years that shouldn't be there.
    The thought of Mr. Salvati is bad enough, but what if 
there's other people out there? What if someone was put to 
death? He got the death penalty. It was commuted. I mean this 
is something that we have to clear up and we have to see the 
documents to be able to have confidence that the thing is 
cleaned up.
    So, we do want to work with you. We don't want to be 
recalcitrant. We like you. But we have got to see the 
documents.
    With that, we stand in recess. We will be back in about 10 
minutes.
    [Recess.]
    Mr. Shays. I would like to call this hearing to order 
again. I would like to recognize the most distinguished 
gentleman from California, Mr. Ose.
    Mr. Ose. Thank you, Mr. Chairman. That is a heavy burden.
    I have a question, Mr. Bryant, and I am trying to 
understand this. What does case law say about prosecutorial 
discretion with respect to sharing the deliberations that they 
might undertake?
    Mr. Bryant. I think there are a couple of considerations, 
Mr. Congressman. It's my understanding that the case, United 
States v. Nixon which stands for a number of propositions held 
unanimously, that it's self-evident that there's a need for 
candor in executive deliberations.
    So, it points to the confidentiality interests of such 
deliberations. The same case also spoke about the executive 
branch's authority and discretion to decide whether to 
prosecute cases.
    The last point, of course, would be that under the Federal 
rules of criminal procedure, Rule 6(e), with respect to grand 
jury deliberations which are themselves then utilized in the 
course of the investigation, that those contents of grand jury 
discussions and deliberations are themselves not properly to be 
disclosed.
    Mr. Ose. Mr. Rosenberg, do you agree with that?
    Mr. Rosenberg. I think that trying to blanket a claim of 
withholding of documents based on candor, in the case law and 
practicality requires that there be a concrete showing of a 
possibility or the fact that there would be a chilling of an 
officer or employees ability to be candid.
    The Supreme Court addressed this issue in one case, NLRB v. 
Sears Roebuck. It addressed why Federal officials, including 
those Federal officials giving legal opinions don't have to 
hide behind such fears. It said, ``The probability that an 
agency employee will be inhibited by freely advising a 
decisionmaker for fear that his advice, if adopted, will become 
public is slight.
    ``The first when adopted, the reasoning becomes that of the 
agency and becomes its responsibility to defend. Second, agency 
employees will generally be encouraged rather than discouraged 
by public knowledge that their policy suggestions have been 
adopted by the agency. Moreover, the public interest in knowing 
the reasons for a policy actually adopted by an agency supports 
disclosure.''
    Mr. Ose. That's a Supreme Court citation?
    Mr. Rosenberg. Yes. I would also say that in the 
investigations that have occurred, those leading up to the 
request for the Conrad memo. It didn't appear that revelation 
of what was in the Freeh memo inhibited Mr. LaBella or that the 
revelation and disclosure of Mr. LaBella's memo chilled Mr. 
Conrad to make his recommendations.
    There has to be some sort of concrete demonstration that 
the particular subject matter is damning in some way, but if 
it's damning, perhaps that is why we want to see it.
    Mr. Ose. Professor Rozell, do you have any input on this?
    Mr. Rozell. Well, I think it's clear that the 
administration is making a poor claim of executive privilege in 
this case. The background that I have studied on executive 
privilege makes it quite clear that this is a Constitutional 
principle that exists for the purpose of protecting the public 
interest in some very substantive way. The administration has 
an obligation, when it wants to withhold information, to make a 
clear demonstration that in some way revealing information will 
cause grave damage to the national interest.
    Now, the case law and the historic precedents, I think, 
make quite clear that in the case of a closed investigation, in 
this case one that's about 30 years old, the interest in 
secrecy withers. When there's a balancing test between an 
administration's claim to the right of secrecy and Congress's 
claim to need information, and particularly in a case where 
there are allegations of wrong-doing, then the claim for 
secrecy simply cannot stand under such a circumstance.
    A closed investigation, allegations of wrongdoing--it is 
absolutely clear from the historic precedents that this is not 
the kind of case where a claim of executive privilege would 
stand.
    Now, I wrote a book some years ago on the principle of 
executive privilege and I very much defended the 
Constitutionality of this principle, but of course, it is a 
Constitutional power that exists with limits and often times 
has to yield to other considerations in our system of separated 
powers.
    I made the argument in defense of the principle of 
executive privilege and it bothers me to see the use of this 
principle in a case where it's so weak and it is so obviously 
going to be shot down if it goes to the courts. Ultimately this 
kind of use of this Constitutional principle will weaken the 
principle in the long run and further give a bad name to the 
concept of executive privilege, rather than reestablish the 
viability of this Constitutional power.
    I understand the administration has made the argument now--
as I have been following the various statements--that they want 
to reestablish the viability of certain executive branch 
prerogatives that they believe have eroded over the course of 
the past 30 years, as I believe the Vice President said.
    If they want to reestablish the viability of the principle 
of executive privilege, they should pick a really, really 
strong case where there's a clear demonstrable need for secrecy 
where it would be clearly in the national interest to protect 
certain kinds of information. But trying to withhold 
information by simply saying ``If it involves prosecutorial 
matters, you cannot have access,'' or trying to withhold 
information in a closed investigation, or trying to withhold 
information in a case where there are allegations of real wrong 
doing in the upper reaches of the executive branch, I think 
just ultimately weakens executive privilege.
    Mr. Ose. Thank you, Mr. Chairman.
    Mr. Shays. Thank you.
    At this time I would recognize Mr. LaTourette. The 
gentleman from Ohio has the floor.
    Mr. LaTourette. Thank you very much, Mr. Chairman. Mr. 
Chairman, I apologize for not being here during the early 
stages of this hearing. Sadly, when I woke up this morning, I 
have something called a Maryland bridge that went flying out of 
my mouth. The good dentist at the Navy Yard put it back in my 
mouth so I could appear in public and not look like a hockey 
player from Boston, Mr. Delahunt.
    I want to make some points. Maybe I will get to a question 
in my 5 minutes and if I don't in this first 5 minutes, I will 
come back as the chairman permits. But one, Mr. Bryant, I want 
to thank you and your colleague for coming and visiting me 
yesterday and attempting to explain the administration's 
position. I thought that was a good faith effort on the part of 
the administration to come and at least attempt to explain what 
it's you all had in mind.
    Two, I would say to you that I feel bad for you today 
because I think you are taking a spear for a decision that has 
not been of your making.
    Having said that, extended my thanks and recognizing that 
you are the messenger and perhaps should not be slain, I have 
to tell you, my observation since the last time we convened and 
members of the Justice Department declined the opportunity to 
hand over the documents that we are looking at and today's 
hearing and where we are joined by luminaries of Constitutional 
law and the history of executive privilege, that the conclusion 
reached by the Justice Department is crap.
    I wish I could make it a more artful word, but that's my 
opinion. I had the pleasure of being a prosecutor as did Mr. 
Delahunt and Mr. Barr. I have seen rubber bands that have not 
been twisted so much as the conclusion that you all have 
reached in this particular instance.
    Just something that's personal and has nothing to do with 
why we are here today, but I am amazed because the same Justice 
Department is prosecuting a colleague of mine in Cleveland, OH, 
Jim Traficant, and they are using things that I think are 
covered by the Speech and Debate Clause of the Constitution.
    Now, that's for the Judicial Branch to figure out whether 
it is admitted into evidence, but the Justice Department had no 
difficulty obtaining documents from a co-equal branch of 
government and now they are attempting to use them in court. I 
think for you all to make these arguments, you are walking on 
both sides of the street and it's sad.
    I did listen to Mr. Barr talk to you a little bit about 
what faithful execution of the national laws means. I don't 
consider this to be part and parcel of that. When I was a 
prosecutor, if one of my assistants wrote a memo to me 
indicating we should either proceed or decline prosecution and 
it contained something that I would be embarrassed if it went 
out in the public, that assistant would have been fired.
    In this case, I have to tell you because we are dealing 
with the Salvati case, you are setting up a situation where you 
all determine what we get to see. The reason that is so 
abhorrent to me is, I am not saying that the current Attorney 
General or anybody that works there is a crook, but if you are 
all crooks and you had control of the gate and you could just 
throw up executive privilege and say that you are not entitled 
to see what it is that J. Edgar Hoover did 30 years ago or 
these slime balls in the FBI office did 30 years ago. That's a 
nonsensical argument and I can't imagine any interpretation of 
the U.S. Constitution that would cause that conclusion.
    I wish I could be more artful, but I am pissed off by the 
posture that you put this committee in.
    Then I would want to make a partisan observation and I 
mentioned it to you in my office. The administration is making 
the Republicans in the U.S. Congress and in the White House 
look bad by this decision.
    I would hope that you take whatever opportunity is extended 
to you to come forward and meet with the committee and work 
this thing out. This thing should be resolved. This thing 
should be resolved in a way that we don't have to have the 
chairman get his blood pressure up and threaten to go to the 
floor and threaten to go to court and everything else.
    I don't go all the way back to Teapot Dome and the Palmer 
Raids, but I was here during the Travelgate scandal. I was here 
during some of the other things in the later citations. I 
remember the difficulty we had with the previous administration 
and the previous Justice Department in achieving documents. I 
never thought I would see the day that I would sit as a member 
of this committee and have that kind of difficulty and this 
kind of legal mumbo-jumbo from an administration of my own 
party. It is an embarrassment to me as a Republican.
    I hope if you take nothing else, and I don't blame you, as 
I said at the very outset of my observations, but I hope if you 
take nothing else from this hearing back to your superiors in 
the Justice Department that whoever wrote this advice, and I 
think it's a fellow that used to clerk at the Supreme Court, if 
I have things correctly. They are just wrong.
    If you don't believe the scholars sitting next to you, I 
hope that you listen to other people because every one of these 
citations, the Congress got the stuff, as I understand it. The 
Congress got the stuff because we are entitled to the stuff. We 
are entitled to the stuff because we are a co-equal branch of 
government and if you are doing something wrong, just like if 
we are doing something wrong, the other branches of government 
are supposed to keep an eye on us.
    If we can't keep an eye on you, and it's not even you, that 
is the thing that kills me. I mean J. Edgar Hoover is dead, for 
crying out loud. The fact of the matter is that Joe Salvati 
spent years and years in prison. I have no doubt that the guys 
that did it are wrong. They should be in prison if they are 
still alive.
    And why you are not giving us this stuff--and here is the 
cynical argument I came up with last night before my tooth fell 
out: That's what occurs to me is that--and the reason that we 
look bad as Republicans, it is almost like you are hedging a 
bet. And that's, you are not so sure about the mid-term 
elections and you think our friends on the democratic side of 
the aisle might be in the majority in the second half of 
President Bush's first term and you are afraid that they are 
going to want all this stuff.
    So, you say to us in the most blatant cases today, you 
can't have it so you can be consistent when the Democrats take 
over. Well, two things: One, the Democrats are not going to 
take over and two, you better give us the stuff.
    I yield back my time.
    Mr. Shays. I would just make the observation that the 
gentleman from Ohio said things that I am not sure I would have 
even dared to say, which really says something. But he is on 
target in everything he has said.
    I will recognize Mr. Lynch and if not, then we can go to 
you, Mr. Delahunt. Mr. Delahunt, you have the floor for 5 
minutes.
    Mr. Delahunt. I concur with everything that the gentleman 
said except.
    Mr. Shays. OK. I have the gavel and you are a guest of this 
committee.
    Mr. Delahunt. I am, so I will be appropriate. No, I think 
Representative LaTourette said it. I think you have heard 
from--this is unanimous. This was a poor selection. I have 
wondered myself why this particular case. I am not interested 
in pursuing anything else other than the misconduct or the 
alleged misconduct of the FBI in Boston.
    The ranking member made referenced to Enron. Myself and no 
other Member on this side of the aisle, I think, even alluded 
to that. But I would agree with the assessment by 
Representative LaTourette. I mean it just doesn't make sense. 
This is silly. This is absurd.
    There's no disagreement. There are no political 
implications here. I would like to know, and I think it was Mr. 
Barr, or maybe it was Mr. LaTourette, I think it was Mr. 
LaTourette, that as the supervising attorney, the District 
Attorney in his jurisdiction in Ohio, I mean, chilling effect, 
I know there's language to that effect in the decision. But is 
there any evidence that it would be chilling?
    I mean how many documents are we talking about, Mr. Bryant.
    Mr. Bryant. The number of Boston documents currently in 
dispute is 10.
    Mr. Delahunt. Ten documents. What is in the nature of those 
documents that somehow would chill prosecutors currently 
serving in the Department of Justice?
    Mr. Bryant. It is the view of the department that 
disclosure of documents of that character as a routine matter 
or as a starting point----
    Mr. Delahunt. As a routine matter?
    Mr. Bryant. In other words, the analysis is not limited 
just to the specific effect of a specific document. It is an 
analysis that relies on the rationale of various court cases 
including the Nixon case where the court said, ``The importance 
of this confidentiality is too plain to require further 
discussion.''
    The point they are getting at is the importance of candor 
with respect to certain kinds of deliberation.
    Mr. Delahunt. That's memorialized in writing, obviously.
    Mr. Bryant. Right. And so the concern is to ensure that 
considerations that go into whether or not to prosecute are 
completely as they should be, that they are not biased by any 
other consideration other than the law, the facts of the case 
and that advice is completely candid.
    Mr. Delahunt. I just simply can't imagine any scenario 
where a prosecutor currently serving in the Department of 
Justice would in any way be impacted by the release of these 
documents to this committee. I just can't imagine. Of course, I 
don't know. Again, you do set up this, well, this committee has 
to show you why it needs the documents when they don't know 
what in the documents. I mean that's absurd. It is illogical.
    But it's clear that there was, according to, well, Judge 
Wolfe, a patent, again this is right out of a decision. He is 
referring to reports that were the subject of hearings before 
Judge Wolfe in another set of cases with some of the 
individuals being referenced, the informants being referenced, 
the informants being referenced in the case involving Salvati 
et al.
    He goes on and states, ``The reports were improperly 
withheld by agents of the Boston FBI until it was too late to 
question relevant witnesses concerning them.'' Then he goes on 
and says, ``These experiences were not isolated occurrences but 
part of a long pattern of the FBI ignoring the government's 
Constitutional and statutory duties to be candid with the 
courts.''
    I mean you are at counter, you are at loggerheads with both 
branches. Now the legislative branch as well as historically, 
at least in this matter, the judicial branch, and receiving, 
you know, criticism of a magnitude that I have never heard 
directed against any particular department or agency within a 
department since I have served in this Congress. Because it 
just doesn't make sense. I makes no sense.
    Mr. Shays. At this time I recognize the gentleman from 
California, Mr. Waxman, who hasn't yet had a round.
    Mr. Waxman. Thank you very much, Mr. Chairman. In testimony 
and other written work, some of you have talked about the 
limits of executive privilege. I would like to take a moment 
and talk about the GAO's request for information on outside 
contacts with the energy task force.
    The Vice President and his lawyers could have stopped GAO's 
request in its tracks by invoking the statutory limitation on 
GAO's investigative power. The Vice President could have 
certified that the GAO's request substantially impaired 
government operations.
    But the Vice President didn't do that. He has couched his 
resistance to GAO's investigations in Constitutional terms 
alluding to separation of power considerations.
    Now, Professor Rozell, are you familiar with the GAO's 
dispute with the Vice President over energy task force records?
    Mr. Rozell. Yes, I am.
    Mr. Waxman. Under the law, do you think the Vice President 
is correct in withholding information from the General 
Accounting Office?
    Mr. Rozell. I do not. I think this is, once again, another 
poor use of, in this case I would say ``executive privilege'' 
even though the administration has not uttered the magic words 
``executive privilege.'' They have articulated all of the 
arguments that are traditionally associated with a claim of 
executive privilege. They are withholding, as I understand it, 
information regarding the names of individuals who participated 
on these various advisory boards rather than information that 
deals with exactly the kinds of advice that these individuals 
may have given in meetings or details of conversations and so 
forth.
    It seems to me that is really benign information for 
Congress or in this case the GAO to be asking for from the 
administration.
    Mr. Waxman. Let me ask Mr. Tiefer and Mr. Rosenberg if they 
could tell us whether they think under the law the Vice 
President is correct in withholding this information from GAO?
    Mr. Tiefer. I think he is not correct. I do want to preface 
this for a moment by saying that it's perfectly possible for 
Members to draw a distinction between the two matters. Mr. 
Bryant admitted for the department in the Boston FBI matter 
that there has been corruption of the investigative process. 
It's a term of art. There's no such thing going on in the other 
GAO matter and Members are entitled to view the matters 
differently if they wish to, with perfect integrity.
    Having said that, my own legal position is that the claim 
is weak in the GAO matter because you can't make a deliberative 
process claim that is strong when the process isn't between 
officials but is with officials and outsiders who themselves 
represent special interests and where what is being asked is 
what the context of the outsiders of the outsiders who 
represent special interests were. That's not part of the 
deliberative process.
    Mr. Waxman. Let me ask Mr. Rosenberg. Maybe what is 
happening here is that the Vice President is using executive 
privilege without calling it executive privilege. Suppose the 
Vice President would come right out and say, ``This energy task 
force is dealing with outside lobbyists. We are subject to 
executive privilege.'' Do you think that would be a valid 
assertion of executive privilege?
    Mr. Rosenberg. I believe that would be stretching it if he 
brought that in. Let me just correct you, I am sorry, on one 
thing. It's the President, under the GAO statute, who could 
have made that determination and stopped the lawsuit. The Vice 
President, through his attorneys has been mouthing things that 
sound like executive privilege. I think if an executive 
privilege claim was made here that it would be very difficult 
to sustain because of what Professor Rozell and Professor 
Tiefer have pointed out.
    What we are dealing with, and as I understand the current 
law on the reach of executive privilege, what it covers is 
advisors to the President who are in close proximity to the 
President.
    Mr. Waxman. But not outside parties?
    Mr. Rosenberg. I don't see it covering outside parties, 
particularly in the situation here where all that is being 
asked for is who was there, when were they there and what was 
the subject matter.
    Mr. Waxman. Let me ask this of Professor Rozell: I have 
said today that the Bush administration has shown a tendency 
for reflexive secrecy. I believe that's reflected in President 
Bush's use of executive privilege with respect to this 
committee's subpoena, in his order giving former Presidents 
greater ability to assert executive privilege after they have 
left office, and in the Vice President's approach to the GAO's 
request for energy task force records.
    First of all, do you agree with what I just said?
    Mr. Rozell. Yes, I do. I think they are over-using 
executive privilege in a number of cases. I would add to what 
you talked about in your opening statement, I believe, the 
Presidential Records Act. The Executive order is another such 
case.
    Mr. Waxman. Do you think that they are deliberately trying 
to expand the scope of executive privilege?
    Mr. Rozell. I believe that they are. If they can include 
executive privilege in a case such as a closed investigation, 
the one before the committee right now, and if they can use 
executive privilege to withhold names of individuals who 
advised these panels, then I think executive privilege can be 
used for a very broad reach of different kinds of information 
that Congress may want from the executive.
    But that would cause a dangerous breakdown if that were 
allowed to stand in the traditional separation of powers 
system. So, I think the committee has every right to be 
challenging these particular claims of executive privilege. I 
wonder, too, if the committee should directly challenge the 
current circumstances with regard to the GAO and the Vice 
President.
    Mr. Waxman. Thank you very much. Thank you, Mr. Chairman.
    Mr. Shays. Mr. Bryant, I am not going to have questions to 
ask you at this point, but I would like you to feel free, when 
I ask the three other witnesses, to jump in if you would like 
to jump in.
    I would like our three other witnesses to tell me if you 
were the Justice Department the best argument you would make 
for withholding the Salvati documents. And then I want you to 
tell me why you think even your best arguments don't hold up. 
What is the best argument you can make?
    Mr. Rozell. They put me on the hot seat first. It is hard 
for me to make an argument because I fundamentally disagree 
with the use of executive privilege in this case. But I have in 
the past argued that there are areas where executive privilege 
is perfectly appropriate if an administration can prove that 
releasing certain kinds of information in some way will cause 
an undue harm to the public interest.
    If releasing certain types of documents would cause real 
irreparable harm, then there would be a legitimate case to be 
made. I think what needs to be done in this particular case and 
in others is for an administration to make a really strong case 
that there would be irreparable harm, rather than to just 
assert as a general principle prosecutorial matters are just 
off limits.
    Mr. Shays. And then what breaks it down is you don't think 
they can make irreparable harm?
    Mr. Rozell. I don't think that they can make that case.
    Mr. Shays. Mr. Tiefer.
    Mr. Tiefer. Well----
    Mr. Barr. Mr. Chairman, I have to leave soon, but could I 
ask one quick followup question?
    Mr. Shays. Let me say this: You can jump in any time, or I 
can give you the floor because I can be here. I am just going 
to give you time. I won't yield. You have the floor.
    Mr. Barr. Can you articulate, Mr. Bryant, some sort of 
irreparable harm other than the sort of vague generalities, and 
I don't mean that disparaging, but you are talking about things 
that might happen in the future and there might be a chilling. 
What is the irreparable harm with regard to these documentation 
on activities of the Department of Justice in its pursuit of 
justice?
    Mr. Bryant. By ``these documents'' you mean the Boston 
documents, the ones that are in dispute between----
    Mr. Barr. I have another question because I had written 
down a quote. You mentioned earlier ``documents of that 
character.'' What do you mean ``documents of that character?''
    Mr. Bryant. There I am just trying to identify in general 
terms the nature of the 10 Boston documents that has been 
subjected to the claim of privilege.
    Mr. Barr. What are they?
    Mr. Bryant. They are advice memos for prosecuting or 
declining prosecution of individuals.
    Mr. Barr. OK.
    Mr. Bryant. As I understand it, and I am not in a position 
to comment on those documents because I lack personal knowledge 
and also we would want to have the conversation with the 
committee, none of the documents involved are specific to 
Salvati himself. None of those 10 documents are.
    In terms of your first question, Congressman, regarding the 
showing of harm, we would go back to harm to a principle that 
itself is very important.
    Mr. Barr. What principle is more important than the pursuit 
of justice that would be irreparably harmed?
    Mr. Bryant. I wouldn't be prepared to cite one, in fact it 
would be the pursuit of justice in part or one approach to 
ensuring that the pursuit of justice in part is done properly 
that compels the concern that the executive branch brings to 
these documents.
    Mr. Barr. You are talking at best, arguendo, so pursuit of 
justice at some point in the future with some case that we 
don't even know about at this point. We are talking about a 
very tangible case where we know there has been injustice done 
and we are pursuing some effort insofar as we are able within 
our jurisdiction to see that justice is done if at all 
possible.
    How would that be irreparably harmed by disclosure of these 
documents to the Congress?
    Mr. Bryant. I am not suggesting that the committee's 
pursuit of investigating this matter would be harmed.
    Mr. Barr. But if our goal is the same, how would the 
Department of Justice be irreparably harmed?
    Mr. Bryant. Because the view is that the process itself by 
which the executive comes to make a determination of whether or 
not to prosecute or to decline prosecution would itself be 
weakened, would be inhibited, would be undermined because of 
the chilling effect on the candor of the advice and 
considerations that are contained in such memos.
    We support the committee's investigation, Congressman. I 
don't mean to be perceived to be sitting here suggesting that 
we are concerned that the committee is investigating it. The 
committee should be investigating. It's appropriate that the 
committee be investigating it.
    Mr. Barr. How can the committee do that if your best offer 
is to simply come in and tell us verbally somebody's 
impression, your impression, or somebody's impression or 
somebody's impression as related to you or to Mike or whoever 
what their impression is of these documents.
    Where is the irreparable harm by sitting down and going 
over the documents themselves and explaining to the chairman 
and other members of the committee what the problem is with 
releasing these?
    Mr. Bryant. Again, Congressman, we are prepared to sit 
down----
    Mr. Barr. But not with the documents on the table?
    Mr. Bryant. They might be able to be on the table but it 
would be the position that it would be premature to make a 
showing until we had a chance to hear from the committee its 
particularized need, again an obligation that's imposed on the 
committee by the D.C. Circuit Court of Appeals.
    Mr. Barr. The department does not believe that the evidence 
that has already been uncovered is not particular enough?
    Mr. Bryant. It is our view that the Boston case, where 
corruption has been established, even by the executive, is 
clearly a case that invites every best effort at accommodation, 
which would compel the executive to seriously hear out the 
committee's interest in those documents and then to pursue an 
accommodation that meets the interests.
    Mr. Barr. The department already knows that the committee 
is seriously interested in those documents.
    Mr. Bryant. But there has been no discussion, Congressman, 
between the committee and the department about each particular 
document and the committee's interest in each particular 
document.
    Mr. Barr. You see, then we are in that catch-22.
    Mr. Bryant. We are prepared, though, to describe the 
document. We are prepared to present facts contained in the 
documents. We are prepared to do a very fulsome explanation of 
each document so that the discussion can then ensue, where we 
would hear back from the committee its particular needs.
    Mr. Barr. You still maintain that there's something 
sacrosanct, that there would be irreparable harm to the 
government if those documents were physically shown to this 
committee.
    Mr. Bryant. I don't mean to suggest that there would be 
irreparable harm immediately associated with the disclosure of 
those documents. Ours is a position based on the principle of 
the effect of a practice of disclosure of such documents.
    Mr. Barr. Is there some sort of vague potential irreparable 
harm? That is not irreparable harm in any legal sense. That's 
why I think you would lose any argument in court. A court is 
not going to be swayed, I don't think.
    I haven't seen any cases that would lead me to believe that 
a court would be swayed by defining irreparable harm in terms 
of some vague future potential possible harm. I mean I have 
never seen a court that looks at irreparable harm in a legal 
context that way.
    Mr. Bryant. I think the courts have been prepared to 
suggest that the harm is more immediate and more palpable than 
the kind of vague, distant prospect of harm, that such harm is 
present with respect to a practice of disclosing these kinds of 
deliberative work product with respect to a practice of 
disclosing or harm, that such harm is present with respect to a 
practice of disclosing these kinds of deliberative work product 
regarding whether or not to prosecute individuals.
    Mr. Barr. In the distant past?
    Mr. Bryant. Again, the analysis would go to the character 
of the document even if that document were----
    Mr. Barr. Is the department prepared to go to court on 
this? Does the department believe that its position is that 
strong that it's prepared to go to court?
    Mr. Bryant. Congressman, I am not prepared, sitting here 
today, to characterize how the department might conduct itself 
in the future. I don't know the answer to that question.
    Mr. Barr. But at this point the department still is not 
willing to disclose the documents and engage in a good faith 
discussion with the documents on the table?
    Mr. Bryant. It is not that we are necessarily unwilling 
ever to do that. We are simply requesting a meeting where we 
can have this discussion, where we can then evaluate options 
for accommodation. I don't want to rule out any specific 
options that might be part of such an accommodation.
    Mr. Barr. You are still insisting on having your cake and 
eating it, too?
    Mr. Bryant. Just want to meet to talk about the documents.
    Mr. Barr. That, I think, is inconsistent with the line of 
cases that we have looked at and the underpinnings of the 
Constitutional principles here. I don't think that our Framers 
intended for the executive branch to have that much control 
over the entire process.
    Mr. Bryant. Respectfully, Congressman, I have a different 
view based on the cases that I have looked at, including the 
Senate Select Committee case, the D.C. Circuit case, on point, 
putting the obligation on the requesting committee to explain 
its demonstrable, critical need for the requested documents.
    The department then is in a position to respond to that 
statement of need and the accommodation process ensues from 
there.
    Mr. Barr. I would simply urge you, as other Members have, 
to reconsider and sit down with the committee, with the 
documents and articulate from your standpoint what harm there 
would be with these particular documents and let the committee 
look at the documents in a meeting. It wouldn't have to be an 
open meeting initially.
    I would strongly urge you to do that. I really don't think 
that is a strong case for you all.
    Mr. Bryant. Thank you.
    Mr. Shays. I am going to first just ask if any of the three 
other witnesses just want to comment on any of the line of 
questioning that was just asked. Do any of you want to jump in 
on anything? I can go to my questions, but I just want to give 
you the opportunity.
    Mr. Rozell. I have a quick comment that once again, I hate 
to beat this Espy case to death, but the Espy case is the 
latest statement on executive privilege and how it might be 
overcome. The standard for overcoming it is a substantial 
showing must be made that, ``the subpoenaed materials likely 
contain important evidence and that the evidence is not 
available with due diligence elsewhere.''
    The particularized needs is as you have been saying, is a 
catch-22.
    Mr. Shays. So the bottom line is the standard is pretty 
low. In other words, we don't have much of a hurdle to get that 
information under that----
    Mr. Rozell. Well, assuming it's just a deliberative process 
claim, a likelihood of corruption takes away the common law 
privilege of deliberative process, which, I think, is the only 
privilege that applies here.
    If it's the Constitutional Presidential communications 
privilege, then the threshold is higher. But still, the way it 
can be overcome and the way it was overcome in the Espy case 
where 84 documents were held by the White House, was that they 
likely contained important evidence.
    Mr. Shays. Did the gentleman have any followup? Professor 
Rozell had answered the question I asked. In other words, give 
me your best argument for how the administration could proceed 
if they did want to withhold documents and then where the 
weakness would be even in your best argument.
    Mr. Tiefer. Thank you. I hope I don't do too good a job. I 
think their best argument is a two-part argument. In the 
President's claim on December 12th----
    Mr. Shays. Mr. Bryant, you are not allowed to take notes on 
this, you are not allowed to take notes on his best argument. 
That is a joke.
    Mr. Tiefer. Thank you, Mr. Chairman. Is the particular 
statement ``I'm concerned that congressional access to 
prosecutorial decisionmaking documents of this kind threatens 
to politicize the criminal justice process.''
    I combine that with the statement that Mr. Bryant made that 
what they are afraid of is a practice of Congress looking at 
such documents and they are concerned that there would be a 
politicization of the prosecution decisionmaking process if 
there's a practice of showing such documents to Congress.
    Mr. Shays. What is the argument against it?
    Mr. Tiefer. No, I am going to add to that.
    Mr. Shays. OK.
    Mr. Tiefer. Furthermore, Mr. Bryant concedes that there is 
in this instance a corruption of the investigative process in 
Boston. I don't know how carefully that term has been chosen. 
But there's a distinction in this matter between the 
investigative side, that is the FBI side, and the side 
represented by, I am going to call it the criminal division, 
although it's the U.S. Attorney's Office, the attorney side in 
the Department of Justice.
    The argument could be that if the abuses here are primarily 
FBI abuses in connection with the informants, then there's no 
need to turn over copies or to show copies of documents on the 
attorney's side, the prosecutorial side.
    So, you have the risk of politicization and unnecessary 
risk of politicization. I believe that's the best argument I 
would make for their side.
    Mr. Shays. And so what is the weakness with it?
    Mr. Tiefer. Well, first of all the risk of politicization 
is radically undermined in a situation where one is dealing 
with old prosecutorial decisions, 22 years on average, in which 
there isn't a political side at all. There are issues in 
prosecution that are politically sensitive, like in Billy 
Carter, whether to make a deal with the President's brother or 
in white collar crime whether to charge a corporation or the 
officials.
    I don't believe there's a possibility of making a case-by-
case point that there was a partisan issue about what to do 
about organized crime 22 years ago. That's the weakest possible 
case for a threat of politicization.
    Furthermore, I think when you get to this, when the 
department makes the case that whatever the abuses were on the 
FBI side and that the attorney side was in ignorance of what 
was going on, if you have not seen the documents, you just will 
not know, no matter how they are orally characterized.
    If you have not seen the documents you will not know what 
to make when they tell you they are looking at them, they are 
characterizing to you and they don't show one shred of 
awareness or involvement in the worst abuses on the attorney 
side. You won't know, no matter how it's characterized. Until 
you see the documents an assertion of innocence cannot be 
credited.
    Mr. Shays. Let me just pursue this one point because it 
relates to another question I was going to specifically ask you 
and then I am going to come to you, Mr. Rosenberg.
    I want to know basically, you have been involved in 
congressional investigations, correct?
    Mr. Tiefer. For 15 years.
    Mr. Shays. As a general rule, are there downsides to 
accepting a briefing instead of reviewing documents?
    Mr. Tiefer. There are grave downsides. I almost broke in 
before to say that I applaud the line that I hear the chairman 
and Mr. Barr draw about the dangers of accepting, of not seeing 
the documents. All the years that Members would come back and I 
would give, for example, both of the executive privilege claims 
at the beginning of the Reagan administration were resolved by 
the Members seeing the documents on which the deliberative 
process had been claimed.
    The 1981 mineral leasing claim, the 1982 Superfund claim, 
the Members got to see the documents. If Members come back and 
say, ``We have seen the documents, now we can credit or not. We 
have seen the documents. We can credit the assertions of 
innocence about the content of the documents that has been 
made.''
    Then the Members can say that with a clear conscience. If 
they have not seen the documents, they can't do that.
    Mr. Shays. Potentially, they could be told things that were 
not true in a briefing. Your briefer could leave out key 
details; correct? Your briefer might not fully understand the 
subject matter. I mean those would be some of the problems.
    Mr. Tiefer. Especially the latter two. I don't impugn the 
truthfulness of briefings by the department. I do say that the 
issue of omissions is one and that the issue of understanding 
the context is another. The second and third points you made 
are crucial.
    Mr. Shays. OK. So, if you were counsel to this committee, 
you would not settle for a briefing.
    Mr. Tiefer. I would draw the exact line I heard the 
chairman and Mr. Barr draw.
    Mr. Shays. Now, back to you, Mr. Rosenberg. I'm going to 
get your attention here. I want to know--I don't want a long 
answer, so I am going to make it a little more difficult, your 
best argument for the administration's side and if you think 
your best argument has an argument against it.
    Mr. Rosenberg. Being third after two strong arguments----
    Mr. Shays. If you agree with the arguments, you can----
    Mr. Rosenberg. Well, I imagine an argument could be made 
that----
    Mr. Shays. Were the best ones already made?
    Mr. Rosenberg. Yes.
    Mr. Shays. OK, so we don't need to go there.
    Mr. Rosenberg. Well, you could make an argument that why 
does this committee need the documents? You know because of the 
court case that something went terribly wrong.
    Mr. Shays. Let me just say something, I am not interested 
in your third best argument. I am not trying to think of all 
the ways. I am just trying to think of all the ways. I am just 
trying to think of what your best argument would be and you 
have already heard it.
    Mr. Rosenberg. Yes.
    Mr. Shays. OK. Let me then turn to Mr. Delahunt. Mr. 
Delahunt, it is very nice that you have been so patient because 
you do know so much about this case. I am going to give you as 
much time basically as you need.
    Mr. Delahunt. I will take very little. I think everything 
that's germane has been said. Mr. Chairman and through you to 
Mr. Wilson, this might present an opportunity for this 
institution, for the U.S. Congress, to proceed, to go to court, 
to litigate this issue and to get a clarification once and for 
all in terms of this particular issue.
    Probably, from what I am listening to, maybe it needs those 
bright lines, at least that I see, need to be reinforced. I 
think it was Mr. Rosenberg who said, and correctly so, that to 
ask the committee to demonstrate a particularized need is 
illogical. I think the committee through its hearings and 
through the testimony that we received has established that 
there is clearly a likelihood of important evidence.
    I think it's really that simple and to base the argument on 
some abstract sense of chilling impact, I think Steve 
LaTourette got it when he said, ``Come on, we really shouldn't 
be here today.'' We shouldn't be here today, but I think maybe 
from an institutional perspective it's an opportunity for 
Congress once and for all to clearly define the use of 
executive privilege as it relates to a deliberative process.
    Professor Rozell, do you have a comment?
    Mr. Rozell. Well, just briefly. I think Mr. Barr alluded to 
this before. It shows a profound disrespect for Congress and 
for its Members to make the argument that they simply can't be 
trusted to see these documents.
    Unless they can make the case that Burton is an 
untrustworthy guy or the Members of this committee are 
untrustworthy, I just don't think they have a good argument for 
denying access to the particular documents themselves. I think 
that anybody in this body would operate in good will and good 
faith and looking at the materials and if they determine that, 
yes, there's a legitimate argument here for withholding 
information, they wouldn't do something nefarious like release 
it publicly.
    So it just strikes me that there's no argument there, that 
the material should be released to the committee and the 
individuals on this committee should be trusted to look at it 
and to behave responsibly.
    Mr. Delahunt. Yes, I would hope again to the chairman to 
Mr. Wilson that the minority would be part of those discussions 
and those negotiations. I think what we are seeing here is a 
rather unique bipartisan approach to this. I think it's 
important that the chair consider sitting down at the table 
with the documents on the table and having these discussions. 
Because it's the institution of Congress that I would suggest 
is being disrespected here.
    Mr. Shays. I thank my colleague. The counsel isn't eager to 
ask some questions. He wants me to ask them. Given my 
prerogative, I am going to have him ask them. He is going to 
ask just a few. I would like to ask each of you, if we gave you 
some written questions, would you all be willing to respond to 
some written questions.
    For the record, nodding of heads from everyone. That would 
be helpful. We don't have a lot longer to go. I am going to 
say, Mr. Bryant, I think everyone on this committee understands 
that you are doing your job for the administration. You have 
been asked, almost, frankly, in a bit of an unusual 
circumstances, for liaison to make these arguments. I think 
it's a slow ratcheting up of the cause on this side of the 
table here. So, however, painful it may have been for you, you 
did your very best job. I think you had, frankly, a tough 
argument to make, certainly with Members of Congress. So, I 
appreciate your good nature and your professionalism and your 
dedication to this administration.
    I hope that when you get back to the office you are able to 
say to them, ``You guys owe me big.''
    Mr. Wilson, you have the floor.
    Mr. Wilson. It's very true, I would like someone else to 
ask questions, but very quickly, Mr. Bryant, when President 
Reagan permitted deliberative documents to be provided to 
Congress in the General Dynamics case, what was the specific 
harm that resulted from that decision?
    Mr. Bryant. What is the question, what was the specific 
harm?
    Mr. Wilson. Yes, what happened? What was bad about that? 
Why did President Reagan make a mistake?
    Mr. Bryant. I don't know that I'm in a position, counsel, 
to delineate the specific harm that flowed from that. I would 
return to the point, and I won't belabor it because we have 
already discussed it, but I would return to the point about the 
principle, that's the backstop for an evaluation of each 
instance. The principle is worth being strengthened, not 
weakened. The principle being the imperative of candor with 
respect to advice memos.
    Mr. Wilson. And we are very sympathetic to that principle, 
but history does teach lessons. If you have canvassed the 
relevant precedent and you are not able to point to specific 
harms, then should that not communicate something to you?
    So, I will ask the other witnesses the same question. 
Professor Rozell, are you aware of any specific harm that 
resulted from President Reagan's allowing deliberative 
documents to be provided to Congress?
    Mr. Rozell. I am not aware of any specific harm that came 
as a result of that. In fact, I cannot name a single case where 
an administration has turned over to Congress information and 
thereby caused some irreparable harm to the national interest 
in cases such as this.
    Mr. Wilson. You have taken away my next question. Can you 
point to any good that resulted from providing documents to 
Congress in the General Dynamic case?
    Mr. Rozell. Sure, if there was an opportunity to reveal 
that there was real wrongdoing that took place in the highest 
reaches of government and to disclose that and to enhance the 
system of accountability that occurs in our democracy, they 
talk about the potential for some kind of irreparable harm 
being created by not being able to withhold information any 
time that they want to when it involves prosecutorial 
materials.
    I think that there's an irreparable harm created by 
establishing a principle that individuals in the highest 
reaches of government don't have to be held accountable for 
their behavior or they know that they might not be able to be 
held accountable for the behavior, because there's this blanket 
right to complete and absolute secrecy where no one can reach 
in and find out what has taken place, even in cases where there 
are real allegations and real serious evidence of actual 
wrongdoing.
    Mr. Wilson. Professor Tiefer, I will ask you the same 
question. Are you aware of a specific harm that resulted from 
President Reagan's decision to provide Congress with General 
Dynamics documents?
    Mr. Tiefer. I am not. But I do want to mention the comment 
on the General Dynamics case in particular that the Justice 
Department made in its February 1, 2002 letter to the 
committee, which said about that matter, ``I do not know 
whether the department,'' meaning the 1984 Justice Department, 
``I do not know whether the department considered its 
implications as we have in the instant matter.''
    Now, I will betray how long I have been around. I know what 
the department's views were and what its processes were in 1984 
because I was dealing with them. At that time the Assistant 
Attorney General for the Office of Legal Counsel was Ted Olsen, 
a very strong believer in executive privilege, the author of 
the most thorough opinions on the subject in the history of the 
department.
    It's impossible to imagine that the department failed to 
consider the implications in 1984, at least as thoroughly as 
the department is now, period.
    Mr. Wilson. Mr. Rosenberg, are you aware of any harm that 
resulted from the General Dynamics documents being provided to 
Congress?
    Mr. Rosenberg. None.
    Mr. Wilson. Now, let me just jump in and ask the question 
that Mr. Rozell answered. With all of the examples that are on 
the table before the committee now, when you consider all of 
them, are you aware of harm that resulted to the country from 
Congress receiving information?
    Professor Tiefer.
    Mr. Tiefer. No.
    Mr. Wilson. Mr. Rosenberg.
    Mr. Rosenberg. None. I only see positive things from both 
sides, from the Congress' point of view and from the 
Executive's. From Congress' point of view it's a vindication of 
its role to disclose, and to protect individual liberties as in 
some of the cases that Professor Tiefer has been talking about.
    There were two Attorneys General who had to resign and two 
Attorneys General who were convicted and went to jail. In 
retrospect, sorry for them, but the ability----
    Mr. Wilson. That raises an interesting possibility. Would 
the result of what we know as the Teapot Dome scandal have been 
different if the current policy that it appears the 
administration is trying to implement, been in place at that 
time?
    Mr. Bryant.
    Mr. Bryant. I don't know the answer to the hypothetical. It 
is an interesting question. I don't know that the answer can be 
dispositively stated.
    Mr. Wilson. Professor Rozell.
    Mr. Rozell. I think clearly there would have been a 
different outcome because of the lack of ability to fully 
explore that matter. That's right.
    Mr. Wilson. Professor Tiefer.
    Mr. Tiefer. Well, I am going to answer your question to 
point out something that directly pertains to the Boston-FBI 
matter. One of the examples I mentioned of successful oversight 
by the Congress was mentioned in my written testimony, was the 
Church Committee, 1975 to 1976, which made a full investigation 
of the FBI domestic intelligence abuses.
    Out of that work came what are known as the Levy 
guidelines, undercover activity guidelines of the Department of 
Justice which were subsequently revised twice, which governed 
the FBI undercover activity. There would be no benchmark in 
which to hold the FBI in Boston or the FBI elsewhere to account 
if there had not been a congressional investigation and the 
ensuring pressure to have limits.
    So, I can think of no harm that resulted from that, but a 
great deal of good. I can only hope that this committee's 
investigation of the Boston FBI would have a similar salutary 
effect.
    Mr. Wilson. I think we have less than a minute, so Mr. 
Rosenberg, if you could be brief.
    Mr. Rosenberg. I think the result would have been 
different. I think that the ability of Congress in some 
instances is the only authority able to get documents from the 
Justice Department.
    Mr. Wilson. If I could request a yes or no answer to the 
last question, might the result of Watergate have been 
different if this precedent that we now see being placed before 
us was in place then? Yes or no?
    Mr. Rosenberg. Absolutely, yes.
    Mr. Wilson. Professor Tiefer.
    Mr. Tiefer. I can't conceive of what would have happened. 
It would have been so bad if the Justice Department had been 
allowed to keep the lid on.
    Mr. Wilson. Professor Rozell.
    Mr. Rozell. I agree with my colleagues.
    Mr. Shays. Let me do this, is there any question that we 
should have asked you that you wanted to answer in 15 seconds?
    Mr. Bryant, do you want to have the last word here?
    Mr. Bryant. Just that the only question I would have hoped 
to have heard is: Would we be willing to come up this evening 
and meet to discuss each particular document. And we are 
prepared to do that.
    Mr. Shays. Let me leave that on the record and let me just 
say that I have heard the word ``chilling effect.'' I don't 
know if it's applicable, but I want to make this point: I tell 
my staff that everything they say to me may become public, that 
everything we write may become public and that therefore I want 
them to make that assumption.
    I don't think that has a chilling effect. I think what it 
does is it makes sure that we are not losing our foundation. I 
think the knowledge that something is public basically makes 
sure that I am getting honest answers to honest questions and 
that I am asking honest questions and that we are not playing 
games and so on and so on.
    I just tell you that when I hear the words ``chilling 
effect'' I am concerned that the withholding of documents has a 
chilling effect. I am concerned with the statement that somehow 
the public or someone else sees these documents, that somehow 
what was said would be different. I guess I could carry that 
analogy too far, but that is kind of how I come down on it.
    I thank you all very much. I think all of you were very 
gracious, very patient with the committee, willing to spend so 
much time. I thank all of you. You were very helpful to the 
work of the committee. I thank each and every one of you.
    This hearing is closed.
    [Whereupon, at 2:30 p.m., the committee was adjourned, to 
reconvene at the call of the Chair.]

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