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Assertion of Executive Privilege with Respect to

Prosecutorial Documents

Executive privilege may properly be asserted in response to a congressional subpoena seeking 

prosecutorial decisionmaking documents of the Department of Justice.

December 10, 2001

THE PRESIDENT

THE WHITE HOUSE

My Dear Mr. President: I am writing to request that you assert executive privilege with respect to memoranda from the Chief of the Campaign Financing Task 

Force to former Attorney General Janet Reno recommending that a Special 

Counsel be appointed to investigate a matter under review by the Task Force, 

memoranda written in response to those memoranda, and deliberative memoranda 

from other investigations containing advice and recommendations concerning 

whether or not particular criminal prosecutions should be brought. The Committee 

on Government Reform of the House of Representatives has issued subpoenas to 

me demanding these documents.

The Department has gone to great lengths, consistent with the constitutional 

and statutory obligations of the Executive Branch, to accommodate the Committee’s needs concerning the prosecutorial decisions that are the subject of these 

documents. The Department has provided briefings that included explanations of 

the reasons for the decisions, and we are willing to provide further briefings. The 

Committee has been unsatisfied with these accommodations, however, and has 

pressed for access to the documents themselves.

I strongly believe that releasing or otherwise making these extremely sensitive 

prosecutorial decisionmaking documents available to Congress would compromise 

the ability of the Department of Justice to assist you in discharging your constitutional law enforcement responsibilities. The authority to investigate and prosecute 

criminal suspects is one of the core executive powers vested in the President by 

the Executive Power and Take Care Clauses of Article II 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 investigative and prosecutorial decisions.

The need for confidentiality is particularly compelling in regard to the highly 

sensitive prosecutorial decision of whether to bring criminal charges. The 

Department’s attorneys are asked to render unbiased, professional advice about the 

merits of potential criminal cases. The formal mechanism by which this process 

occurs is the preparation of prosecution and declination memoranda. In short, 

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these documents review the strength of the evidence, substantive legal issues, 

policy considerations, and overall likelihood of success if the case were to 

proceed.

If these deliberative documents 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. As the Supreme Court 

described its concern about a chilling effect: “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 interests to the detriment of the 

decisionmaking process.” United States v. Nixon, 418 U.S. 683, 705 (1974). The 

Court observed that “the importance of this confidentiality is too plain to require 

further discussion.” Id.

Just as troubling, the prospect of congressional review might force prosecutors 

to err on the side of investigation or prosecution simply to avoid public secondguessing. This would undermine public and judicial confidence in our law 

enforcement processes. It is for all of these reasons that the Supreme Court has 

unanimously recognized the “valid need for protection of communications 

between high Government officials and those who advise and assist them in 

the performance of their manifold duties.” Id.

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.

The Department respects and cooperates with the legitimate exercise of Congress’s oversight authority. Congressional committees need to gather information 

about how statutes are applied and funds are spent so that they can assess whether 

additional legislation is necessary. We have significant concerns, however, about 

oversight requests for prosecution and declination memoranda. The nexus between 

such inquiries and the purpose of oversight is questionable, and this kind of 

demand threatens to politicize the criminal justice process. Legislative Branch 

pressure on prosecutorial decisionmaking is inconsistent with the separation of 

powers and thereby threatens individual liberty.

The memoranda to former Attorney General Reno and the prosecutorial 

decisionmaking documents addressed to other Department officials clearly fall 

within the scope of executive privilege. The Constitution clearly gives the 

President the power to protect the confidentiality of Executive Branch deliberations. Under controlling case law, a congressional committee is required to 

demonstrate that the information sought is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee on 

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Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en 

banc). And those functions must be in furtherance of legitimate legislative 

responsibilities of Congress. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927) 

(Congress has oversight authority “to enable it efficiently to exercise a legislative 

function belonging to it under the Constitution”).

We believe that the Committee has failed to provide a sufficient reason to 

disclose these sensitive prosecutorial documents. Congress cannot justify a 

demand for a decisionmaking document based on its disagreement with a prosecutorial decision. See Response to Congressional Requests for Information Regarding Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68 (1986).

In any event, even if the Committee has a legitimate oversight interest in these 

documents, its oversight needs cannot outweigh the Executive Branch’s interest in 

the confidentiality of prosecutorial decisionmaking and our concerns about 

congressional influence on such decisionmaking in individual cases. I do not 

believe that access to these prosecutorial decisionmaking documents is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate 

Select Committee, 498 F.2d at 731.

It is my legal judgment that executive privilege may properly be asserted in 

these circumstances. I request and advise that you do so.

JOHN D. ASHCROFT

Attorney General

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