IV

105TH CONGRESS

2D SESSION H. RES. 432

Expressing the sense of the House of Representatives concerning the

President’s assertions of executive privilege.

IN THE HOUSE OF REPRESENTATIVES

MAY 14, 1998

Mr. DELAY submitted the following resolution; which was referred to the

Committee on the Judiciary

RESOLUTION

Expressing the sense of the House of Representatives

concerning the President’s assertions of executive privilege.

Whereas a unanimous Supreme Court held in United States

v. Nixon that ‘‘[a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets, we

find it difficult to accept the argument that even the very

important interest in confidentiality of Presidential communications is significantly diminished by production of

such material’’ that is essential to the enforcement of

criminal statutes (418 U.S. 683, 706 (1974));

Whereas during the Watergate investigation, the Supreme

Court unanimously held in United States v. Nixon that

the judicial need for the tapes of President Nixon ‘‘shown

by a demonstrated, specific need for evidence in a pending criminal trial’’ outweighed the President’s ‘‘general-
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ized interest in confidentiality . . .’’ (418 U.S. 683, 713

(1974));

Whereas the Supreme Court further held in United States v.

Nixon that ‘‘neither the doctrine of separation of powers,

nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified

Presidential privilege of immunity from judicial process

under all circumstances’’ (418 U.S. 683, 706 (1974));

Whereas executive privilege is qualified, not absolute, and

should ‘‘never serve as a means of shielding information

regarding governmental operations that do not call ultimately for direct decisionmaking by the President’’ (In re

Sealed Case, 116 F.3d 550 (D.C. Cir. 1997), reissued in

unredacted form, 121 F.3d 729, 752 (D.C. Cir. 1997));

Whereas on September 28, 1994, Special Counsel to the

President Lloyd N. Cutler, in a memorandum to the general counsels of all executive departments and agencies,

wrote, ‘‘[i]n circumstances involving communications relating to investigations of personal wrongdoing by Government officials, it is our practice not to assert executive

privilege, either in judicial proceedings or in congressional investigations and hearings’’;

Whereas President Clinton is the first President since President Nixon (and the second in the history of the United

States) to withhold information, under claims of executive

privilege, from a grand jury investigating allegations of

personal wrongdoing and possible crimes in the White

House;

Whereas the President’s assertions of executive privilege have

recently been denied by a United States district court;
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Whereas in January 1998, President Clinton said that the

‘‘American people have a right to get answers’’ regarding

certain matters being investigated by the Office of the

Independent Counsel;

Whereas President Clinton has promised to give ‘‘as many

answers as we can, as soon as we can, at the appropriate

time, consistent with our obligation to also cooperate with

the investigations’’; and

Whereas the people of the United States and their duly elected representatives have a right to judge for themselves

the merits or demerits of the President’s claim of executive privilege: Now, therefore, be it

1 Resolved, That it is the sense of the House of Rep2 resentatives that, in the interests of full disclosure consist3 ent with principles of openness in governmental oper4 ations, all records or documents (including legal memo5 randa, briefs, and motions) relating to any claims of exec6 utive privilege asserted by the President should be imme7 diately made publicly available.

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