II

105TH CONGRESS

2D SESSION S. 2076

To provide reporting requirements for the assertion of executive privilege,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 13, 1998

Mr. ASHCROFT (for himself and Mr. MCCONNELL) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To provide reporting requirements for the assertion of

executive privilege, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Executive Accountabil5 ity Act of 1998’’.

6 SEC. 2. FINDINGS.

7 Congress finds the following:

8 (1) Grand jury investigations into Presidential

9 communications have been, to date, extraordinary

10 and rare occurrences, and hopefully, will remain that
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1 way. Congressional oversight hearings, by contrast,

2 are commonplace.

3 (2) If judicial decisions permit presidential

4 aides to withhold crucial information from a grand

5 jury investigating criminal misconduct, congressional

6 inquiries will be stymied by similar claims of execu7 tive privilege.

8 (3) For these reasons, the proper scope of exec9 utive privilege is of concern to every Member of Con10 gress, and every Member of Congress has an interest

11 in being notified of assertions of executive privilege

12 by the President and in having the opportunity to

13 file amicus briefs in appropriate cases.

14 (4) In the context of the current litigation be15 fore Judge Norma Holloway Johnson, the President

16 failed to acknowledge publicly that he asserted exec17 utive privilege to shield information from the grand

18 jury.

19 (5) Indeed, lawyers for the President have pro20 tested that the outcome of Judge Johnson’s order

21 rejecting the President’s claim of executive privilege

22 became public.

23 (6) As a consequence, Members of Congress

24 have not had a proper basis to decide whether to file

25 amicus briefs apprising the court of the unique in-
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1 terests and views of Congress with respect to execu2 tive privilege.

3 SEC. 3. REPORTING REQUIREMENTS.

4 (a) INITIAL REPORT.—Whenever the President as5 serts executive privilege in a judicial action or proceeding,

6 the President shall promptly report to Congress and pro7 vide an explanation of the reasons for such assertion in

8 such detail as is consistent with national security.

9 (b) REPORT BY PRESIDING JUDGE OF ASSERTION.—

10 Whenever, in a judicial action or proceeding, the President

11 asserts executive privilege, it shall be the duty of the pre12 siding judicial officer in that action or proceeding prompt13 ly to report the assertion to Congress.

14 (c) REPORT BY PRESIDING JUDGE OF DISPOSI15 TION.—Whenever in a judicial action or proceeding, the

16 President asserts executive privilege, it shall be the duty

17 of the presiding judicial officer in that action or proceed18 ing promptly to report to Congress any order or ruling

19 disposing of that claim and provide an explanation of the

20 reasons for such disposition in such detail as is consistent

21 with national security.

22 (d) AMICUS BRIEFS.—Any Member of either House

23 of Congress shall have the right to file an amicus brief,

24 regarding an assertion of executive privilege by the Presi-
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1 dent, in any judicial action or proceeding in which that

2 assertion is made.

3 (e) REPORT CONCERNING DECISION TO APPEAL.—

4 Whenever the President decides to appeal an adverse dis5 position of a claim of executive privilege or to file a peti6 tion for certiorari in response to such adverse disposition,

7 the President shall promptly report the decision to Con8 gress.

9 (f) ADDITIONAL REQUIREMENT.—Whenever the

10 President asserts executive privilege in any forum, the

11 President shall forward to Congress any written legal

12 opinion regarding the lawfulness of the assertion redacted

13 as is consistent with national security.

14 (g) REPORT TO CONGRESS.—For purposes of this

15 Act, providing notice or a report to the Senate Majority

16 and Minority Leaders and the Speaker of the House and

17 House Minority Leader shall constitute notice to Con18 gress.

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