The Law: President Bush's First Executive Privilege Claim: The FBI/Boston Investigation

Executive-legislative controversies, and particularly the record of parallel prior oversight situations, warrant examination, for they illuminate how Congress and the president resolve one of the recurring central questions in the interaction of democratic governance and the rule of law. Can the system of checks and balances scrutinize one of the ultimate centers of a particular kind of absolute power--the Justice Department--without congressional oversight in this context politicizing the administration of justice? In the classic short form of this dilemma, Who guards the guardians? This article starts with the background about how the controversy over the Boston FBI came to a head with President Bush's formal executive privilege invocation. It then traces the path of previous parallel situations of congressional oversight through the mixture of famous and obscure confrontations. President Bush Invokes Executive Privilege The House Committee on Government Reform conducts oversight investigations on the whole range of federal departments, including the Justice Department. Under its chairman since 1997, Representative Dan Burton, it had a number of confrontations with Attorney General Janet Reno. In 2001, the committee took an interest in a well-documented scandal regarding the Boston FBI's protecting major criminals, starting in the late 1960s and continuing for decades, who served as its informants in its organized crime investigations. Senior FBI agents extended protection to two particularly notorious mobsters (among others), Joseph "The Animal" Barboza and Vincent Flemmi. On one hand, Barboza, Flemmi, and the Boston FBI's other informants helped the FBI destroy the Patriarca and Angiulo families, who controlled organized crime in New England. On the other hand, the FBI had known that these mobsters engaged in numerous murders before they became informants and anticipated they would continue to commit murder. In the central incident, they apparently committed a 1965 murder for which they helped convict four men who had nothing to do with it. One of those, Joseph Salvati, spent thirty years in prison before the scandal broke and his sentence was commuted in 1997. Belatedly, the Justice Department conducted its own internal investigation (Butterfield 2002; Lewis 2001). To conduct oversight, the Government Reform Committee demanded extensive documents from the Justice Department. The department provided some but held back in particular on its own prosecutorial memoranda during those past decades. Those memoranda, averaging twenty-two years in age, would show the extent to which the prosecuting attorneys in the Justice Department knew of the FBI's relationship with the informants. After the department indicated that receipt of a congressional subpoena might help in resolving the document standoff, on September 6 the House committee issued one. Attorney General John Ashcroft was scheduled to appear at a hearing on September 13 (Nakashima and Eggen 2001; Eggen and Allen 2001). The matter got postponed during the period of Congress and the White House shelving divisive issues after the September 11 terrorist attacks. Then, on December 12, President Bush issued a formal invocation of executive privilege (Nakashima 2001). The president explained, Disclosure to Congress of ... confidential recommendations to Department of Justice officials regarding whether to bring criminal charges would inhibit the candor necessary to the effectiveness of the deliberative processes by which the Department makes prosecutorial decisions. Moreover, I am concerned that congressional access to prosecutorial decision making documents of this kind threatens to politicize the criminal justice process. (Bush 2001, 1783) Stormy exchanges with the committee followed. President Bush's executive privilege invocation had somewhat muddled the matter initially by including an unrelated inquiry, which the committee did not press, regarding the 1996 campaign financing matter. …