b'Response to Congressional Requests for Information\nRegarding Decisions made Under\nthe Independent Counsel Act\nW ith one narrow exception, the Attorney General may not disclose to Congress the contents of\nany application or report filed with the court pursuant to the Independent Counsel Act unless\nthe court agrees.\nAll congressional requests for information about a decision regarding the appointment o f an\nindependent counsel m ust be supported by a legitim ate legislative purpose. In addition, before\nsuch disclosures are m ade other considerations, such as whether or not to assert executive\nprivilege, w hether the information is covered by the attom ey-client privilege, and whether the\ninform ation m ust be kept confidential to preserve the integrity o f the prosecutorial function,\nmust be reviewed.\nC ongress may not, as a m atter of statutory or constitutional law, invoke the criminal contempt of\nCongress procedure against the head of an Executive agency acting on the President\xe2\x80\x99s\ninstructions to assert executive privilege in response to a congressional subpoena.\nAn assertion o f executive privilege m ust be based upon an evaluation of the Executive B ranch\xe2\x80\x99s\ninterest in keeping the requested inform ation confidential, the strength of Congress\xe2\x80\x99 need for\nthe inform ation, and whether those needs can be accom m odated in some other way.\n\nApril 28, 1986\nM\n\nem o ran d um\n\nO p in io n\n\nfor t h e\n\nAttorney General\n\nI. Introduction and Summary\nYou have asked this Office to review the legal principles that should inform\nthe Department\xe2\x80\x99s response to congressional inquiries about any decision re\xc2\xad\ngarding appointment of an independent counsel under the Independent Counsel\nAct, 28 U.S.C. \xc2\xa7\xc2\xa7 591 et seq. (Act). The scope and nature of any such response\nwould, of course, depend on the facts of the particular situation, including the\nscope and nature of the request, the congressional interests at stake, the status\nof the investigation and/or decision-making process within the Department,\nand your judgment as to the particular harm that would result from release of\nthe requested information. To some extent the decision whether or how to\nrespond to such congressional requests must weigh factors, such as political\nconstraints that affect the Department\xe2\x80\x99s position vis-a-vis Congress, which are\nbeyond our expertise. Our discussion here is therefore necessarily quite general\nand is limited to those constitutional and legal considerations that should be\n68\n\n\x0creflected in the Department\xe2\x80\x99s response to possible congressional inquiries into\ndecisions made under the Act. As we discuss below, we believe that the\nDepartment\xe2\x80\x99s response to any such inquiry must take account of: (1) the\nprovisions of the Independent Counsel Act requiring that memoranda, reports,\nand other documents filed with the special division of the court remain confi\xc2\xad\ndential unless otherwise authorized by the court; (2) the scope of Congress\xe2\x80\x99\nlegitimate interest in obtaining the information; and (3) the Justice Department\xe2\x80\x99s\nresponsibility to protect the integrity of ongoing criminal investigations and of\nprosecutorial decision-making. These considerations, which flow largely from\nthe constitutionally mandated principle of separation of powers, would also\nshape any formal Presidential claim of executive privilege, in the unlikely\nevent such a claim proves necessary to resist a congressional subpoena.\nIn addition to our discussion of the substantive legal principles, we outline\nbelow the procedural steps that would be involved if Congress pursued its\nrequests through a subpoena, and possible defenses that could be raised to any\nsuch subpoena.\nII. Confidentiality Requirements of the Independent Counsel Act\nThe Independent Counsel Act itself contains strict confidentiality require\xc2\xad\nments. Section 592(d)(2) broadly provides:\nNo application or any other documents, materials, or memoran\xc2\xad\ndums supplied to the division of the court . . . shall be revealed\nto any individual outside the division of the court or the Depart\xc2\xad\nment of Justice without leave of the division of the court.\n28 U.S.C. \xc2\xa7 592(d)(2).\nOther, narrower provisions limit the disclosure of any report finding no\ngrounds for appointment of an independent counsel,1 as well as the report\nrequired to be filed by the independent counsel at the completion of his\ninvestigation.2 Even the name and prosecutorial jurisdiction of any indepen\xc2\xad\ndent counsel appointed by the court remain confidential until an indictment is\nreturned or a criminal information is filed, unless the Attorney General re\xc2\xad\nquests public disclosure prior to that time or the court determines \xe2\x80\x9cthat disclo\xc2\xad\nsure of the identity and prosecutorial jurisdiction of such independent counsel\nwould be in the best interests of justice.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 593(b).\n1 If the Attorney General notifies the court under \xc2\xa7 592(b)(1) that \xe2\x80\x9cthere are no reasonable grounds to\nbelieve that further investigation o r prosecution is w arranted," the mem orandum filed w ith the court sum m a\xc2\xad\nrizing the D epartm ent\'s investigation \xe2\x80\x9cshall not be revealed to any individual outside the division o f the court\nor the D epartm ent o f Justice w ithout leave o f the division o f the court.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 592(b)(3).\n2The independent counsel m ust file a report with the court describing \xe2\x80\x9cfully and com pletely . . . the w ork o f\nthe independent counsel, including the disposition o f all cases brought, and the reasons for not prosecuting\nany m atter w ithin the prosecutorial jurisdiction o f such independent counsel which was not prosecuted." The\ncourt may release this report \xe2\x80\x9cto the Congress, the public, or to any appropriate person,\xe2\x80\x9d subject to \xe2\x80\x9c such\norders as are appropriate to protect the rights o f any individual named in such report and to prevent undue\ninterference w ith any pending prosecution.\xe2\x80\x9d 28 U.S.C \xc2\xa7 595(b)(2), (3).\n\n69\n\n\x0cThe confidentiality provisions were regarded as \xe2\x80\x9ccrucial to the general\nscheme\xe2\x80\x9d of the Act. S. Rep. No. 170,95th Cong., 2d Sess. 58 (1978). Congress\nrecognized that \xe2\x80\x9c(j]ust because a person holds a high level position does not\njustify making unsubstantiated allegations of criminal conduct public, no[r]\ndoes it justify publicly announcing the initiation of a criminal investigation at a\nvery early stage of the investigation.\xe2\x80\x9d Id. In fact. Congress contemplated that\nthere would be situations in which an independent counsel would be appointed\n\xe2\x80\x9cwhen the public is not at all aware that a criminal investigation is underway.\xe2\x80\x9d\nAssuming that the independent counsel\xe2\x80\x99s investigation does not result in pros\xc2\xad\necution, \xe2\x80\x9c[i]t is conceivable that this whole process could take place without\nthe public even knowing that there were serious allegations against such a high\nlevel official.\xe2\x80\x9d Id.\nIn cases in which there has already been considerable publicity about the\nallegations and the requirements of the Independent Counsel Act, Congress\nrecognized that \xe2\x80\x9cthere does not appear to be any purpose to keeping the fact\nthat application for a special prosecutor has been made confidential.\xe2\x80\x9d S. Rep.\nNo. 170, supra, at 58. However, even if the court agrees to disclose that an\napplication has been made or to announce the identity and jurisdiction of an\nindependent counsel, \xe2\x80\x9cthere may still be justification for keeping the contents\nof an application for a special prosecutor. .. confidential because of unsub\xc2\xad\nstantiated allegations and other information which may be contained in the\napplication for appointment.\xe2\x80\x9d Id.\nThe language of the Act\xe2\x80\x99s confidentiality provisions that the documents\n\xe2\x80\x9cshall not be revealed to any individual outside the division of the court or the\nDepartment of Justice\xe2\x80\x9d is carefully drafted, and on its face prohibits disclosures\nto Congress no less than disclosures to the public. The legislative history of the\nAct supports this interpretation of the statute\xe2\x80\x99s unambiguous language. \xe2\x80\x98The\ncontents of the report by the Attorney General after a preliminary finding of\nsome impropriety is to remain secret, available only to the court and I presume,\nto the special prosecutor, but may not be released to the public or to Congress\nwithout of special leave of this new court.\xe2\x80\x9d 124 Cong. Rec. 3462 (1978)\n(remarks of Rep. Wiggins) (emphasis added).3\nIn general, then, the Act restricts the Attorney General\xe2\x80\x99s ability to of disclose\nto Congress the contents of any application or report filed with of the court,\nunless and until the court agrees. This blanket confidentiality requirement,\nhowever, is subject to a narrow exception triggered when Congress requests\nunder \xc2\xa7 595(e)4 that the Attorney General apply for an independent counsel. If\nthe Attorney General receives such a request, he is required to \xe2\x80\x9cprovide written\nnotification of any action. . . taken in response to such request and, if no\n3 A lth o u g h the language o f the confidentiality provisions refers only to docum ents actually filed with the\nco u rt, the provisions obviously cannot law fully be circum vented by disclosing the contents o f the documents.\nSee 124 C ong. R ec. at 3462 (\xe2\x80\x98T h e contents o f the re p o r t. . . [are] to remain s e c re t. . . .\xe2\x80\x9d ); S. Rep. No. 170,\nsupra, at 58.\n4 Sectio n 595(e) o f the A ct authorizes \xe2\x80\x9c [a] m ajority o f m ajority party m embers or a m ajority o f all\nnonm ajo rity party m em bers o f the Committee on the Judiciary o f either H ouse o f the C ongress\xe2\x80\x9d to request the\nA ttorney G eneral to apply for the appointment o f an independent counsel. 28 U.S.C. \xc2\xa7 595(e).\n\n70\n\n\x0capplication has been made to the division of the court, why such application\nwas not made.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 595(e). Because such a notification must necessar\xc2\xad\nily disclose at least some information that is included in the confidential report\nfiled with the court, \xc2\xa7 595(e) appears to create a narrow exception to the\ngeneral rule of confidentiality.5\nThe legislative history of this provision suggests, however, that the scope of\nthe required notification is very limited; disclosure of particular details of the\ninvestigatory findings and the prosecutorial decision is not contemplated:\n[T]he Attorney General might respond that he had already ap\xc2\xad\nplied for the appointment of a special prosecutor or he might\nrespond that upon the conclusion of a preliminary investigation,\nhe made a finding and filed the requisite memorandum indicat\xc2\xad\ning that the matter was so unsubstantiated as to not warrant\nfurther investigation or prosecution. If no application for the\nappointment of a special prosecutor has been made to the divi\xc2\xad\nsion of the court, the Attorney General is required to explain the\nspecific reasons why a special prosecutor is not required under\nthe standard set forth in \xc2\xa7 592(e). I f the reason fo r not appoint\xc2\xad\ning a special prosecutor is the fa ct that the matter is so unsub\xc2\xad\nstantiated as to not warrant further investigation or prosecu\xc2\xad\ntion, the Attorney General\xe2\x80\x99s explanation under this subsection\nneed only state that fact. The Committee does not intend that the\nAttorney General go into any detail with regard to the basis fo r\nthe decision made in the exercise o f his prosecutorial discretion\nthat a matter simply did not warrant any further investigation or\nprosecution after the conclusion o f a preliminary investigation.\n\nS. Rep. No. 170, supra, at 72 (emphasis added). That history also makes clear\nthat Congress contemplated that the names of implicated individuals would be\nincluded in the required notification.6\nBased on this legislative history and the overriding concern reflected in the\nAct with preserving confidentiality, we believe that, unless the court has\napproved disclosure, the notification required by \xc2\xa7 595(e) need (and may)\nencompass only a statement that an application for an independent counsel has\nbeen filed as to a particular individual or individuals, or that after investigation\nthe Attorney General determined that the allegations against particular indi\xc2\xad\nviduals did not warrant further investigation. Obviously, if the Attorney Gen\xc2\xad\neral determined, on some ground other than the sufficiency and credibility of\nthe evidence, that he need not apply for an independent counsel \xe2\x80\x94 for example,\n5 Disclosure is not authorized to the public, although the com m ittee may, either \xe2\x80\x9con its ow n initiative or\nupon the request o f the Attorney G eneral, m ake public such portion or portions o f such notification as w ill not\nin the com m ittee\xe2\x80\x99s judgm ent prejudice the rights o f any individual." 28 U.S.C. \xc2\xa7 595(e).\n6 In discussing cases in which the inform ation contained in the notification should be kept confidential by\nCongress, the Senate Report specifically notes that \xe2\x80\x9cthe C o m m itte e . . . m ay decide to delete the nam es o f\nindividuals m entioned in the notification especially if those individuals are not the subject of the alleged\ncrim inal activity.\xe2\x80\x9d S. Rep. No. 170, supra , at 73.\n\n71\n\n\x0cif he determined that the facts, if true, would nonetheless not constitute a nonpetty criminal offense or that the individual is not covered by the Act \xe2\x80\x94 the\nnotification to Congress would set forth that rationale.7\nThe Act also contemplates that the independent counsel will provide \xe2\x80\x9cfrom\ntime to time\xe2\x80\x9d reports to Congress and to the public containing \xe2\x80\x9csuch informa\xc2\xad\ntion as [the] independent counsel deems appropriate,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 595(a), and\nthat the independent counsel \xe2\x80\x9cshall advise the House of Representatives of any\nsubstantial and credible information which such independent counsel receives\nthat may constitute grounds for an impeachment.\xe2\x80\x9d Id. \xc2\xa7 595(c). Oversight\njurisdiction \xe2\x80\x9cwith respect to the official conduct of any independent counsel\xe2\x80\x9d is\ngiven to the \xe2\x80\x9cappropriate committees of Congress\xe2\x80\x9d and the independent coun\xc2\xad\nsel \xe2\x80\x9cshall have the duty to cooperate with the exercise of such oversight\njurisdiction.\xe2\x80\x9d Id. \xc2\xa7 595(d). The legislative history of these provisions govern\xc2\xad\ning disclosures by the independent counsel is sparse and provides little guid\xc2\xad\nance as to what extent the independent counsel would be bound by the Act\xe2\x80\x99s\nconfidentiality restrictions when making such disclosures.\nIII. Protecting tHrne Integrity of CraiiniaE Imvestigaitioes\nA separate consideration is how disclosure of information about any inde\xc2\xad\npendent counsel decision would affect the Attorney General\xe2\x80\x99s responsibilities\nas the Nation\xe2\x80\x99s chief law enforcement officer and the ability of the Department\nto investigate and prosecute criminal offenses.8 There are a number of factors,\narising out of the separation of powers between the executive and legislative\nbranches, that should be weighed in making that determination.\nA. Constitutional Division o f Responsibilities\n\nArticle II of the Constitution places the power to enforce the laws solely in\nthe Executive Branch of government. The executive therefore has the exclusive\nauthority to enforce the laws adopted by Congress, and neither the judicial nor\nlegislative branches may directly interfere with the prosecutorial discretion of\nthe Executive Branch by directing the executive to prosecute particular indi\xc2\xad\nviduals.9 United States v. Nixon, 418 U.S. 683, 693 (1974); Confiscation\n7 Sim ilarly, if the A ttorney General ap p lies for an independent counsel for an individual not nam ed in\n\xc2\xa7 591 (b), because investigation by the D epartm ent \xe2\x80\x9cmay result in a personal, financial, o r political conflict o f\ninterest,\xe2\x80\x9d 28 U .S.C. \xc2\xa7 591(c), he would h av e to provide some specific description o f the facts giving rise to\nthe conflict.\n8 O bviously, to the extent the confidentiality provisions o f the Independent Counsel Act bar disclosure, the\nm ore generalized considerations we outline here need not be considered. However, there may be some\ninform ation such as details o f the deliberative process that are not encom passed by the confidentiality\nrestrictio n s o f the A ct, o r are not reflected in the report filed w ith the court. M oreover, at som e point the court\nm ight authorize disclosure o f some or all inform ation contained in the report, which would remove any\nstatutory bar to fu rth er disclosures.\n9 For th is reason the executive branch has expressed constitutional qualm s about the Act itself, which\nallow s an individual not appointed by the P resident or an o fficer o f the executive branch nonetheless to carry\nout prosecutorial functions. Despite these doubts, the D epartm ent o f Justice has thus far taken the position\nContinued\n\n72\n\n\x0cCases, 74 U.S. (7 Wall.) 454,457 (1869); Smith v. United States, 375 F.2d 243,\n247 (5th Cir.), cert, denied, 389 U.S. 841 (1967); United States v. Samango ,\n607 F.2d 877, 881 (9th Cir. 1979); accord Newman v. United States, 382 F.2d\n\n479,480 (D.C. Cir. 1967). The Framers intended that Congress not be involved\nin such prosecutorial decisions or in questions regarding the criminal liability\nof specific individuals. See United States v. Lovett, 328 U.S. 303, 317 (1946);\nINS v. Chadha, 462 U.S. 919,961-62 (1983) (Powell, J., concurring).10\xe2\x80\x98\xe2\x80\x9c When\nthe legislative and executive powers are united in the same person or body,\xe2\x80\x99\nsays [Montesquieu] \xe2\x80\x98there can be no liberty, because apprehensions may arise\nlest the same monarch or senate should enact tyrannical laws to execute them in\na tyrannical manner.\xe2\x80\x99\xe2\x80\x9d The Federalist No. 47, at 303 (J. Madison) (C. Rossiter\ned. 1961) (emphasis in original).\nThe constitutional role of Congress is to adopt general legislation that will be\nimplemented \xe2\x80\x94 \xe2\x80\x9cexecuted\xe2\x80\x9d \xe2\x80\x94 by the Executive Branch. \xe2\x80\x9cIt is the peculiar\nprovince of the legislature to prescribe general rules for the government of\nsociety; the application of those rules to individuals in society would seem to\nbe the duty of other departments.\xe2\x80\x9d Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 136\n(1810). The courts have recognized that this general legislative interest gives\nCongress broad rein to investigate. Both Houses of Congress have broad\npower, \xe2\x80\x9cthrough their own process, to compel a private individual to appear\nbefore it or one of its committees and give testimony needed to enable it\nefficiently to exercise a legislative function belonging to it under the Constitu\xc2\xad\ntion.\xe2\x80\x9d McGrain v. Daugherty, 273 U.S. 135, 160 (1927). The issuance of\nsubpoenas in aid of this function \xe2\x80\x9chas long been held to be a legitimate use by\nCongress of its power to investigate,\xe2\x80\x9d Eastland v. United States Servicemen\xe2\x80\x99s\nFund, 421 U.S. 491, 504 (1975), provided that the investigation is \xe2\x80\x9crelated to,\nand in furtherance of, a legitimate task of the Congress.\xe2\x80\x9d Watkins v. United\nStates, 354 U.S. 178, 187 (1957). See also McGrain v. Daugherty, 273 U.S. at\n177 (inquiry must pertain to a subject \xe2\x80\x9con which legislation could be had\xe2\x80\x9d).\nThis sphere of legitimate legislative activity \xe2\x80\x9cis as penetrating and far reaching\nas the potential power to enact and appropriate under the Constitution.\xe2\x80\x9d\nBarenblatt v. United States, 360 U.S. 109, 111 (1959). See also Watkins v.\nUnited States, 354 U.S. at 187. The power of investigation can be delegated by\neither House of Congress to committees, subcommittees, or even individual\nlegislators, see Eastland v. United States Servicemen\xe2\x80\x99s Fund, 421 U.S. at 505;\nWatkins v. United States, 354 U.S. at 200-01, as long as \xe2\x80\x9cthe instructions to an\n9 (. . . continued)\nthat it will abide by the provisions o f the Independent Counsel Act. See Letter to M ichael Davidson, Senate\nLegal Counsel from W illiam French Smith, Attorney G eneral (Apr. 17, 1981), reprinted in Hearings on the\n\nEthics in Government Act Amendments o f 1982 before the Subcomm. on Oversight o f Government Manage\xc2\xad\nment o f the Senate Comm, on Governmental Affairs, 97th Cong., 2d Sess. 115 (1982).\n10 In fact, the C onstitution specifically excludes C ongress from the decision whether to prosecute particular\ncases. A legislative effort to require prosecution o f a specific individual has many of the attributes o f a bill of\nattainder and w ould seem to be inconsistent with many o f the policies upon which the C onstitution\xe2\x80\x99s\nprohibition against bills o f attainder was based. See Selective Service System v. Minnesota Public interest\nResearch Group, 468 U.S. 841, 853-54 (1984); United States v. Brown, 381 U.S. 437, 447 (1965); United\nStates v. Lovett, 328 U.S. at 315.\n\n73\n\n\x0cinvestigating committee spell out that group\xe2\x80\x99s jurisdiction and purpose with\nsufficient particularity.\xe2\x80\x9d Id. at 201. The scope of judicial inquiry on these\nmatters is narrow, and \xe2\x80\x98\xe2\x80\x9cshould not go beyond the narrow confines of deter\xc2\xad\nmining that a committee\xe2\x80\x99s inquiry may fairly be deemed within its province.\xe2\x80\x99\xe2\x80\x9d\nEastland v. United States Servicemen\xe2\x80\x99s Fund, 421 U.S. at 506 (quoting Tenny\nv. Brandhove, 341 U.S. 367, 378 (1951)).\nNonetheless, the investigative power of Congress is not unlimited. Congress\ncannot, for example, inquire into matters \xe2\x80\x9cwhich are within the exclusive\nprovince of one of the other branches of Government. . . . Neither can it\nsupplant the Executive in what exclusively belongs to the Executive.\xe2\x80\x9d Barenblatt\nv. United States, 360 U.S. at 111; see also Kilboum v. Thompson, 103 U.S.\n168, 192 (1881) (Congress cannot exercise judicial authority). Congress must\nbe able to articulate a legitimate legislative purpose for its inquiry; if Congress\nlacks constitutional authority to legislate on the subject (or to authorize and appro\xc2\xad\npriate funds), arguably Congress has no jurisdiction to inquire into the matter.11\nAccordingly, a threshold inquiry that should be made upon receipt of any\ncongressional request for information is whether the request is supported by\nany legitimate legislative purpose.12 The clearest application of this constraint\non congressional requests for information is with respect to matters that are\nvested exclusively in the President (such as the removal of executive offic\xc2\xad\ners).13 Given the breadth of Congress\xe2\x80\x99 legislative jurisdiction, particularly its\nauthority regarding the appropriation of funds, it may be difficult to articulate\nmore precise limits. With respect to decisions made by the Attorney General\nunder the Independent Counsel Act, we believe that Congress could not justify\nan investigation based on its disagreement with the prosecutorial decision\nregarding appointment of an independent counsel for a particular individual.\nCongress simply cannot constitutionally second-guess that decision. Congress\ndoes, however, have a legitimate legislative interest in overseeing the\nDepartment\xe2\x80\x99s enforcement of the Independent Counsel Act and relevant crimi\xc2\xad\nnal statutes and in determining whether legislative revisions to the Act should\nbe made. Given the general judicial reluctance to look behind congressional\nassertions of legislative purpose, such an assertion would likely be deemed\nsufficient to meet the threshold requirement for congressional inquiry.\n11 M oreover, there m ust be a subject m atter for the inquiry, the investigation m ust be authorized by\nC ongress, there m ust be a valid legislative purpose, the w itness must be accorded certain constitutional\nprotections, and the inform ation demanded m ust be pertinent to the inquiry. See Gojack v. United States , 384\nU .S. 702, 7 0 4 -0 5 , 714 (1966); Wilkinson v. United States, 365 U .S. 3 9 9 ,4 0 8 -0 9 (1961); Barenblatts. United\nStates , 360 U .S. at 111; Watkins v. United States, 354 U.S. at 187; United States v. Rumely, 345 U.S. 41, 4 4 46 (1953); McGrain v. Daugherty , 273 U .S . at 173, 176; Kilboum v. Thompson , 103 U.S. at 190.\n12 The relevance o f this inquiry is not lim ited to the question whether the Department should respond, but\naffects also how it should respond. If C o n g ress\' legitim ate legislative interest is relatively narrow, the\nD epartm ent m ay be able to satisfy the in q u iry w ithout disclosing confidential information.\n13 For exam ple, the D irector o f the O ffice o f Personnel M anagem ent recently refused to answ er questions\nasked by a congressional subcommittee concerning the rem oval of the D eputy D irector o f OPM, on the\nground that the rem oval w as a judgm ent that rested exclusively with the President. The appointment o f\no fficers presents a som ew hat more difficult problem , at least fo r those officers who m ust be appointed with\nthe advice and consent o f the Senate In such cases, the S enate can claim a legitim ate interest in obtaining\ninform ation about the nom inee.\n\n74\n\n\x0cB. Executive Privilege\n\nAssuming that Congress has a legitimate legislative purpose for its inquiry,\nthe Executive Branch\xe2\x80\x99s interest in keeping the information confidential must be\nassessed. That interest is usually discussed in terms of \xe2\x80\x9cexecutive privilege,\xe2\x80\x9d\nand we will use that convention here. The question, however, is not strictly\nspeaking just one of executive privilege. Although the considerations that\nsupport the concept and assertion of executive privilege apply to any congres\xc2\xad\nsional request for information, the privilege itself need not be claimed formally\nvis-a-vis Congress except in response to a lawful subpoena; in responding to an\ninformal congressional request for information, the Executive Branch is not\nnecessarily bound by the limits of executive privilege.\n1. Constitutional Basis of Executive Privilege\nThe Constitution nowhere states that the President, or the Executive Branch\ngenerally, enjoys a privilege against disclosing information requested by the\ncourts, the public, or the legislative branch. The existence of such a privilege,\nhowever, is a necessary corollary of the executive function vested in the\nPresident by Article II of the Constitution, has been asserted by numerous\nPresidents from the earliest days of our Nation, and has been explicitly recog\xc2\xad\nnized by the Supreme Court. United States v. Nixon, 418 U.S. at 705-06.\n2. Protection of Law Enforcement Files\nAlthough the principle of executive privilege is well established, there are\nfew clear guidelines regarding its practical application. The privilege has most\nfrequently been asserted in the areas of foreign affairs and military and domes\xc2\xad\ntic secrets, but it has also been invoked in a variety of other contexts. In 1954,\nPresident Eisenhower asserted that the privilege extends to deliberative com\xc2\xad\nmunications within the Executive Branch. In a letter to the Secretary of De\xc2\xad\nfense, he stated:\nBecause it is essential to effective administration that employ\xc2\xad\nees of the Executive Branch be in a position to be completely\ncandid in advising with each other on official matters, and\nbecause it is not in the public interest that any of their conversa\xc2\xad\ntions or communications or any documents or reproductions\nconcerning such advice be disclosed, you will instruct employ\xc2\xad\nees of your Department that in all of their appearances before\nthe Subcommittee of the Senate Committee on Government\nOperations regarding the inquiry now before it they are not to\ntestify to any such conversations or communications or to pro\xc2\xad\nduce any such documents or reproductions . . . .\n1954 Pub. Papers 483-84 (May 17, 1954).\n75\n\n\x0cMoreover, the policy of the Executive Branch throughout our Nation\xe2\x80\x99s\nhistory has generally been to decline to provide committees of Congress with\naccess to, or copies of, open law enforcement Files except in extraordinary\ncircumstances. This policy with respect to Executive Branch investigations\nwas first expressed by President Washington and has been reaffirmed by or on\nbehalf of most of our Presidents, including Presidents Jefferson, Jackson,\nLincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower. No Presi\xc2\xad\ndent, to our knowledge, has departed from this position affirming the confiden\xc2\xad\ntiality and privileged nature of open law enforcement files. See \xe2\x80\x9cHistory of\nRefusals by Executive Branch Officials to Provide Information Demanded by\nCongress\xe2\x80\x9d (Part I), 6 Op. O.L.C. 751 (1982).\nThis policy is grounded primarily on the need to protect the government\xe2\x80\x99s\nability to prosecute fully and fairly. Attorney General Robert H. Jackson\narticulated the basic position over forty years ago:\nIt is the position of this Department, restated now with the\napproval of and at the direction of the President, that *11 investi\xc2\xad\ngative reports are confidential documents of the executive de\xc2\xad\npartment of the Government, to aid in the duty laid upon the\nPresident by the Constitution to \xe2\x80\x9ctake care that the Laws be\nfaithfully executed,\xe2\x80\x9d and that congressional or public access to\nthem would not be in the public interest.\nDisclosure of the reports could not do otherwise than seri\xc2\xad\nously prejudice law enforcement. Counsel for a defendant or\nprospective defendant, could have no greater help than to know\nhow much or how little information the Government has, and\nwhat witnesses or sources of information it can rely upon. This\nis exactly what these reports are intended to contain.\n40 Op. Att\xe2\x80\x99y Gen. 45, 46 (1941). Similarly, this Office has explained that \xe2\x80\x9cthe\nExecutive cannot effectively investigate if Congress is, in a sense, a partner in\nthe investigation. If a congressional committee is fully apprised of all details of\nan investigation as the investigation proceeds, there is a substantial danger that\ncongressional pressures will influence the course of the investigation.\xe2\x80\x9d Memo\xc2\xad\nrandum for Edward L. Morgan, Deputy Counsel to the President from Thomas\nE. Kauper, Deputy Assistant Attorney General, Office of Legal Counsel (Dec.\n19, 1969). Other grounds for objecting to the disclosure of law enforcement\nfiles include the potential damage to proper law enforcement that would be\ncaused by the revelation of sensitive techniques, methods, or strategy; concern\nover the safety of confidential informants and the chilling effect on other\nsources of information; sensitivity to the rights of innocent individuals who\nmay be identified in law enforcement files but who may not be guilty of any\nviolation of law; and well-founded fears that the perception of the integrity,\nimpartiality, and fairness of the law enforcement process as a whole will be\ndamaged if sensitive material is distributed beyond those persons necessarily\ninvolved in the investigation and prosecution process.\n76\n\n\x0cQuite apart from the concern that disclosure would prejudice the particular\nprosecution prompting congressional inquiry is the purely internal concern that\ndisclosure might hamper prosecutorial decision-making in future cases. Cf.\nUnited States v. Nixon, 418 U.S. at 708. Employees of the Department would\nlikely be reluctant to express candidly their views and recommendations on\ncontroversial and sensitive matters if those views could be exposed to public\nscrutiny by Congress upon request.\nIn addition, potential targets of enforcement actions are entitled to protection\nfrom premature disclosure of investigative information. It has been held that\nthere is \xe2\x80\x9cno difference between prejudicial publicity instigated by the United\nStates through its executive arm and prejudicial publicity instigated by the\nUnited States through its legislative arm.\xe2\x80\x9d Delaney v. United States, 199 F.2d\n107, 114 (1st Cir. 1952). Pretrial publicity originating in Congress, therefore,\ncan be attributed to the government as a whole and can require postponement or\nother modification of the prosecution on due process grounds. Id. Moreover, a\nperson who is ultimately not prosecuted may be subjected to unfair and prejudi\xc2\xad\ncial publicity \xe2\x80\x94 and thus suffer substantial and lasting damage to his profes\xc2\xad\nsional and community standing \xe2\x80\x94 based on unfounded allegations.14\nThere are, of course, circumstances in which the Attorney General may\ndecide to disclose to Congress information about his prosecutorial decisions.\nOnce an investigation has been closed without further prosecution, many of the\nconsiderations previously discussed lose some of their force. Access by Con\xc2\xad\ngress to details of closed investigations does not pose as substantial a risk that\nCongress will be a partner in the investigation and prosecution or will other\xc2\xad\nwise seek to influence the outcome of the prosecution; likewise, if no prosecu\xc2\xad\ntion will result, concerns about the effects of undue pretrial publicity on a jury\nwould disappear. Still, such records should not automatically be disclosed to\nCongress. Obviously, much of the information in a closed criminal enforce\xc2\xad\nment file, such as unpublished details of allegations against particular individu\xc2\xad\nals and details that would reveal confidential sources, and investigative tech\xc2\xad\nniques and methods, would continue to need protection (which may or may not\nbe adequately afforded by a confidentiality agreement with Congress). In\naddition, the Department and the Executive Branch have a long-term institu\xc2\xad\ntional interest in maintaining the integrity of the prosecutorial decision-making\nprocess. The Supreme Court has recognized that \xe2\x80\x9c[h]uman experience teaches\nthat those who expect public dissemination of their remarks may well temper\ncandor with a concern for appearances and for their own interests to the\ndetriment of the decisionmaking process.\xe2\x80\x9d United States v. Nixon, 418 U.S. at\n705. It therefore is important to weigh the potential \xe2\x80\x9cchilling effect\xe2\x80\x9d of a\ndisclosure of details of the deliberative process against the immediate needs of\n14 D epartm ent o f Justice officials, as attorneys, are directed to observe the C ode o f Professional R esponsi\xc2\xad\nbility to the extent it does not prevent their loyal service to the U nited States. See 28 C.F.R. \xc2\xa7 45 7 3 5 -1 . The\nCode prohibits a lawyer w ho is associated with an investigation from making or participating in m aking "an\nextrajudicial statem ent that a reasonable person would expect to be dissem inated by m eans o f public\ncom m unication and that does more than state without elaboration" already public or highly generalized\ninform ation about the m atter. Model C ode o f Professional R esponsibility, DR 7-107(A ) (1979).\n\n77\n\n\x0cCongress and of the Department. After assessing all of these factors, on\noccasion the Department has briefed Congress on prosecutorial decisions and\nhas disclosed some details of the underlying investigation, once the investiga\xc2\xad\ntion has been closed.\n3. Attomey-Client Communications\nSome of the communications relevant to an Independent Counsel Act deci\xc2\xad\nsion could conceivably fall within the scope of the common law evidentiary\nprivilege for attomey-client communications.15 Although the attomey-client\nprivilege may be invoked by the government in litigation and under the Free\xc2\xad\ndom of Information Act separately from any \xe2\x80\x9cdeliberative process\xe2\x80\x9d privilege,16\nit is not generally considered to be distinct from the executive privilege in any\ndispute between the executive and legislative branches. The interests impli\xc2\xad\ncated under common law by the attomey-client privilege generally are sub\xc2\xad\nsumed by the constitutional considerations that shape executive privilege, and\ntherefore it is not usually considered to constitute a separate basis for resisting\ncongressional demands for information. As this Office has previously noted,\nfor the purpose of responding to congressional requests, communications be\xc2\xad\ntween the Attorney General, his staff, and other Executive Branch \xe2\x80\x9cclients\xe2\x80\x9d\nthat might otherwise fall within the common law attomey-client privilege\nshould be analyzed in the same fashion as any other intra-Executive Branch\ncommunications. See \xe2\x80\x9cConfidentiality of the Attorney General\xe2\x80\x99s Communica\xc2\xad\ntions in Counseling the President,\xe2\x80\x9d 6 Op. O.L.C. 481, 490 & n.17, 494 & n.24\n(1982).17\nNonetheless, when the Attorney General is acting in his role as the President\xe2\x80\x99s\nchief legal adviser, his communications to the President may warrant greater\nconfidentiality than those of some other Cabinet advisers because of the nature\nof the Attorney General\xe2\x80\x99s responsibilities to the executive and his special areas\nof expertise, e.g., legal advice and law enforcement. This Office has previously\nemphasized the particular importance of protecting the President\xe2\x80\x99s ability to\nreceive candid legal in advice:\n15 The a tto m ey -clien t privilege generally em braces confidential disclosures o f a client to his attorney, made\nin ord er to obtain legal assistance and not fo r the purpose o f com m itting a crim e o r tort. 8 W igm ore, Evidence\n\xc2\xa7 2290 (M cN aughton rev. 1961). In order to prevent inadvertent disclosures, either directly o r by implication,\no f inform ation w hich th e clien t had previously confided to the attorney, as well as to foster the attorney\xe2\x80\x99s\nability to give sound and inform ed professional advice, the privilege has generally been extended to include\nan a tto rn e y \'s com m unications to his client. Mead Data Central v. Department o f the A ir Force, 566 F.2d 242,\n25 2 -5 5 (D .C . C ir. 1977).\n16 See, e.g., Brinton v. Department of State, 6 3 6 F .2 d 600, 605 (D.C. C ir. 1980), cert, denied , 452 U.S. 905\n(1981); M ead Data Central, Inc. v. Department o f the A ir Force , 566 F.2d at 252; Coastal States Gas Corp.\nv. DOE , 617 F.2d 854, 865 (D.C. Cir. 1980); 5 U.S.C. \xc2\xa7 552(b)(5) (docum ents exem pted from mandatory\ndisclo su re un d er the Freedom o f Inform ation Act include those \xe2\x80\x9cw hich would not be available by law to a\nparty . . . in litigation w ith the agency\xe2\x80\x9d).\n17 L ikew ise, com m unications that would b e protected in litigation or under the Freedom o f Inform ation Act\nby the w ork product privilege would g en erally be considered part o f the governm ent\'s deliberative process,\nand therefore subsum ed under executive privilege, fo r the purpose o f responding to congressional requests\nfor inform ation. See generally 6 Op. O .L.C . at 4 9 7 -9 8 n.32.\n\n78\n\n\x0c[T]he reasons for the constitutional privilege against the com\xc2\xad\npelled disclosure of executive branch deliberations have special\nforce when legal advice is involved. None of the President\xe2\x80\x99s\nobligations is more solemn than his duty to obey the law. The\nConstitution itself places this responsibility on him, in his oath\nof office and in the requirement of article II, section 3 that \xe2\x80\x9che\nshall take Care that the Laws be faithfully executed.\xe2\x80\x9d Because\nthis obligation is imposed by the Constitution itself, Congress\ncannot lawfully undermine the President\xe2\x80\x99s ability to carry it out.\nMoreover, legal matters are likely to be among those on which\nhigh government officials most need, and should be encouraged\nto seek, objective, expert advice. As crucial as frank debate on\npolicy matters is, it is even more important that legal advice be\n\xe2\x80\x9ccandid, objective, and even blunt or harsh,\xe2\x80\x9d see United States\nv. Nixon, 418 U.S. 683,708 (1974), where necessary. Any other\napproach would jeopardize not just particular policies and pro\xc2\xad\ngrams but the principle that the government must obey the law.\nFor these reasons, it is critical that the President and his advisers\nbe able to seek, and give, candid legal advice and opinions free\nof the fear of compelled disclosure.\nMemorandum for the Attorney General from John M. Harmon, Assistant\nAttorney General, Office of Legal Counsel 26 (Jan. 13, 1981).\n4. Independent Counsel Act Decisions\nWe believe that these considerations we have outlined apply to decisions\nwhether to recommend appointment of an independent counsel no less than\nthey apply to any other prosecutorial decision made by this Department.\nAlthough the ultimate decision whether to prosecute a particular individual\nrests with the independent counsel, the threshold decisions whether to investi\xc2\xad\ngate and whether to recommend appointment of an independent counsel are\ncritical steps in that ultimate prosecutorial judgment. The decision whether*\n\xe2\x80\x9cthere are reasonable grounds to believe that further investigation or prosecu\xc2\xad\ntion is warranted\xe2\x80\x9d is quintessential^ a prosecutorial decision, akin to those\nmade every day in the course of the Department\xe2\x80\x99s enforcement of the criminal\nlaws. In fact, the Act specifically recognizes that the Attorney General\xe2\x80\x99s\ndecision whether to seek appointment of an independent counsel is unreviewable\nby the courts, like any other exercise of prosecutorial discretion.18\n18 The Act provides that the A ttorney G eneral\xe2\x80\x99s decision to apply for appointm ent o f an independent\ncounsel \xe2\x80\x9c shall not be review able in any court.\xe2\x80\x9d 28 U .S.C. \xc2\xa7 592(0- The nonreview ability provision applicable\nto the A ttorney G eneral\xe2\x80\x99s decision not to seek appointm ent is phrased in som ew hat different terms U nder\n\xc2\xa7 592(b)(1), if the A ttorney G eneral reports to the court that \xe2\x80\x9cthere are no reasonable grounds to believe that\nfurther investigation o r prosecution is w arranted,\xe2\x80\x9d the court \xe2\x80\x9cshall have no pow er to appoint an independent\nC ontinued\n\n79\n\n\x0cA decision not to apply for an independent counsel could be treated as a\nclosed investigation, in accordance with the Department\xe2\x80\x99s practice. If the\nAttorney General seeks appointment of an independent counsel, however, the\ninvestigation would be very much alive, as the independent counsel would step\ninto the Department\xe2\x80\x99s shoes and continue the investigation into the allegations\nof wrongdoing.19 In fact, the Department could still be quite involved in\nassisting the independent counsel, including providing information, personnel,\nand other resources. See 28 U.S.C. \xc2\xa7 594(d). It seems clear, therefore, that all\nthe considerations that counsel against disclosure of information relevant to\nopen investigations being conducted by the Department itself apply equally\nwhen the investigation is being conducted by the independent counsel.\nThe more difficult question is whether any distinction between \xe2\x80\x9cclosed\xe2\x80\x9d and\n\xe2\x80\x9copen\xe2\x80\x9d investigations could or should be drawn in a case in which the Attorney\nGeneral determines that the evidence warrants further investigation of some,\nbut not all, of those individuals against whom allegations have been directed.\nThat determination would rest in large part on the facts and documents at issue\nand would in most cases probably require a particularized judgment as to\nwhether some information relating to \xe2\x80\x9cclosed\xe2\x80\x9d cases could be reasonably\nsegregated and disclosed to Congress without undue risk of prejudicing the\nindependent counsel\xe2\x80\x99s \xe2\x80\x9copen\xe2\x80\x9d investigation. We are obviously not in a position\nto make that judgment, and would defer to the Criminal Division. It seems to\nus, however, that in many, perhaps most, cases the evidence may be so\nintertwined that no separation is possible. In other cases, especially those of a\nsimple nature in which the allegations against particular individuals are only\nmarginally related, separation may be feasible.\nIn addition, because the Attorney General\xe2\x80\x99s decision not to seek an indepen\xc2\xad\ndent counsel for particular individuals must be based on his determination that\n\xe2\x80\x9cthere are no reasonable grounds to believe that further investigation or pros\xc2\xad\necution is warranted, \xe2\x80\x9cthe interests of those individuals in continued confiden\xc2\xad\ntiality would seem particularly strong. Moreover, even though the decision by\nthe Attorney General not to seek appointment of an independent counsel is\nnonreviewable, in an interrelated investigation the possibility always exists\nthat the independent counsel\xe2\x80\x99s investigation may uncover new information that\nwill result in further investigation.20\n18 (. . . continued)\ncounsel.\xe2\x80\x9d Id. \xc2\xa7 592(b)(1). In Banzhaf v Smith, 737 F.2d 1167, 1169 (D .C . Cir. 1984), the Court o f Appeals\nheld that this provision w as intended by C ongress to b ar any \xe2\x80\x9cjudicial review , at the behest o f m embers of the\npublic, o f the A ttorney G e n eral\'s decisions not to investigate particular allegations and not to seek appoint\xc2\xad\nm ent o f independent c o u n sel.\xe2\x80\x9d\n19 It could be argued that even if the A ttorney G eneral applies to the court for appointm ent o f an\nindependent counsel, the D epartm ent\'s investigations may technically be considered \xe2\x80\x9cclosed,\xe2\x80\x9d because\n\xc2\xa7 597(a) requires the D epartm ent to \xe2\x80\x9csuspend all investigations and proceedings regarding [a] m atter [within\nthe prosecutorial discretion o f an independent counsel]\xe2\x80\x9d unless the independent counsel \xe2\x80\x9cagrees in writing\nthat such investigation o r proceedings m ay be continued by the D epartm ent of Justice.\xe2\x80\x9d For (he leasons set\nforth above, w e believe this argument is w ith o u t merit.\n20The independent c o u n se l\'s jurisdiction is, o f course, lim ited to that specified by the court, based on the\napplication filed by the A ttorney General. See 28 U.S.C. \xc2\xa7\xc2\xa7 592(d)(1), 593(b), 594(a). Although the language\nC ontinued\n\n80\n\n\x0cThus, we believe there are strong constitutional and policy considerations,\nflowing from the doctrine of separation of powers, the obligation to preserve\nthe integrity of the prosecutorial function, and the need to protect the rights of\nthose who are the target of criminal investigations, that should inform and\nguide the Department\xe2\x80\x99s response to a congressional request for information\nabout independent counsel decisions. It may be that any such request could be\naccommodated through a process of negotiation with Congress. Only rarely do\ncongressional requests for information result in a subpoena of an Executive\nBranch official or in any congressional action. In most cases the informal\nprocess of negotiation and accommodation mandated by President Reagan in\nhis November 4, 1982, Memorandum for the Heads of Executive Departments\nand Agencies on \xe2\x80\x9cProcedures Governing Responses to Congressional Requests\nfor Information\xe2\x80\x9d is sufficient to resolve any dispute.21 On occasion, however,\nthe process breaks down, and a subpoena is issued by a congressional commit\xc2\xad\ntee or subcommittee. At that point, it would be necessary to consider what\nprocedures and defenses are available to the Executive Branch.\nWe outline below some of the issues that would be raised if Congress\nsubpoenaed the Attorney General in connection with a congressional request\nfor information about an independent counsel decision. Our particular focus\nhere is on the House of Representatives, because it is far more likely that such\naction would be taken by the House than by the Senate.\nIV. Subpoena Authority of the House of Representatives\nA. Basis o f Subpoena Authority\n\nAs previously noted, Congress has a broad, but not unlimited, investigative\nauthority. See McGrain v. Daugherty, 273 U.S. at 174. This investigative\n20 ( . . . continued)\no f the Act, see 28 U.S.C. \xc2\xa7\xc2\xa7 592(d)(1), 593(b), and its legislative history, see S Rep. No. 170, supra , at 64,\nsuggest that the court may have some flexibility in defining the independent counsel\'s jurisdiction, we do not\nbelieve that the court can grant the independent counsel \xe2\x80\x94 o r that the independent counsel can assum e \xe2\x80\x94 any\njurisdiction in excess o f that recom m ended by the Attorney G eneral. Any other interpretation w ould com \xc2\xad\npletely circum vent the clear congressional judgm ent that the A ttorney G eneral\xe2\x80\x99s decision w hether to seek an\nindependent counsel be unreview able. In addition, the Act itself provides several avenues by which the\njurisdiction o f the independent counsel could be expanded, all o f which require the participation o f the\nA ttorney G eneral For exam ple, if the Attorney General receives additional inform ation \xe2\x80\x9csufficient to\nconstitute grounds to investigate about the m atter to which such m emorandum related,\xe2\x80\x9d his obligation to\ninvestigate and report is renew ed, see 28 U.S.C. \xc2\xa7 592(c)(2); the A ttorney General may ask the independent\ncounsel \xe2\x80\x9cto accept referral o f a m atter that relates to a m atter within that independent counsel\xe2\x80\x99s prosecutorial\njurisdiction," id. \xc2\xa7 592(e); and the independent counsel him self may ask the Attorney G eneral or the court to\n\xe2\x80\x9crefer m atters related to [his] prosecutorial jurisdiction\xe2\x80\x9d or \xe2\x80\x9cmay accept referral of a m atter by the A ttorney\nG eneral,\xe2\x80\x9d see id. \xc2\xa7 594(e). Finally, our constitutional qualm s about the role of the independent counsel would\nbe considerably exacerbated if the critical decision as to w hat individuals and offenses may be prosecuted\nwere taken com pletely out o f the hands o f the A ttorney General\n21 That mem orandum states that \xe2\x80\x9c[t]he policy o f this A dm inistration is to com ply w ith C ongressional\nrequests for inform ation to the fullest extent consistent with the constitutional and statutory obligations o f the\nExecutive Branch . . . . [EJxecutive privilege will be asserted only in the most com pelling circum stances, and\nonly after careful review dem onstrates that assertion o f the privilege is necessary. H istorically, good faith\nnegotiations betw een C ongress and the Executive Branch have m inim ized the need for invoking executive\nprivilege, and this tradition o f accom m odation should continue as the prim ary m eans o f resolving conflicts\nbetw een the Branches.\xe2\x80\x9d\n\n81\n\n\x0cauthority necessarily presupposes some means of compelling the cooperation\nof contumacious witnesses:\nA legislative body cannot legislate wisely or effectively in the\nabsence of information respecting the conditions which the leg\xc2\xad\nislation is intended to affect or change; and where the legislative\nbody does not itself possess the requisite information. . . re\xc2\xad\ncourse must be had to others who do possess it. Experience has\ntaught that mere requests for such information are unavailing,\nand also that information which is volunteered is not always\naccurate or complete; so some means of compulsion are essen\xc2\xad\ntial to obtain what is needed.\nId. at 175. Because the subpoena power is regarded as inherent in Congress\xe2\x80\x99\n\nArticle I power, it does not require enactment of a statute. Nonetheless, the\nexercise of subpoena power must be authorized by the relevant House. See,\ne.g., Reed v. County Commissioners, 277 U.S. 376, 389 (1928); McGrain v.\nDaugherty, 273 U.S. at 158.\nSince 1974, the House Rules have given standing committees and subcom\xc2\xad\nmittees the authority to authorize and issue subpoenas.22 House Rule X3(m)(l)(B)\nauthorizes any committee or subcommittee \xe2\x80\x9cto require, by subpoena or other\xc2\xad\nwise, the attendance and testimony of such witnesses and the production of\nsuch books, records, correspondence, memorandums, papers, and documents\nas it deems necessary.\xe2\x80\x9d Subpoenas may be issued by a committee or subcom\xc2\xad\nmittee \xe2\x80\x9conly when authorized by a majority of the members voting, a majority\nbeing present,\xe2\x80\x9d except that \xe2\x80\x9c the power to authorize and issue subpoenas . . .\nmay be delegated to the chairman of the committee pursuant to such rules and\nunder such limitations as the committee may prescribe.\xe2\x80\x9d House Rule\nXI(m)(2)(A). Any authorized subpoena must be signed by the chairman of the\ncommittee or by a member designated by the chairman. Id. The rules of each\nstanding committee flesh out somewhat the requirements for issuance of a\nsubpoena, specifying in particular if, or under what circumstances, the\nchairman of the full committee may issue a subpoena without a vote of the\ncommittee.\nB. Enforcement o f Subpoenas\n\nIf a subpoenaed witness refuses to respond fully to a subpoena, the subcom\xc2\xad\nmittee or committee, as the case may be, can vote to hold the witness in\ncontempt of Congress. As a matter of consistent historical practice, a contempt\nof Congress vote by a subcommittee is referred to the full committee, although\nthere appears to be no technical requirement to interpose committee approval\n22 P rio r to adoption o f the Hansen proposals in 1974, subpoena authority w as granted only on a case-by-case\nbasis. See C ongressional Q uarterly, Guide to the Congress 164 (1982).\n\n82\n\n\x0cbetween a subcommittee contempt resolution and referral to the full\nHouse.23\nBy operation of House Rule XI(m)(2)(B), any action to enforce compliance\nwith a committee or subcommittee subpoena must be approved by and the\nHouse. See In re B eef Industry Antitrust Litigation, 589 F.2d 786,790 (5th Cir.\n1979) (House approval required for intervention in private antitrust suit to gain\naccess to documents subpoenaed by subcommittee from a party to the litiga\xc2\xad\ntion); see generally Wilson v. United States, 369 F.2d 198, 201 (D.C. Cir. 1966)\n(suggesting that referrals under 2 U.S.C. \xc2\xa7\xc2\xa7 192-194 require a vote of the full\nHouse or Senate, except during adjournments).\nThe House would have three alternatives available to enforce the subpoena:\n(1) referral to the United States Attorney for prosecution under 2 U.S.C.\n\xc2\xa7\xc2\xa7 192-194; (2) arrest by the Sergeant-at-Arms; or (3) a civil suit seeking\ndeclaratory enforcement of the subpoena. The first two of these alternatives\nmay well be foreclosed by advice previously rendered by this Office.\n1. Referral Under 2 U.S.C. \xc2\xa7\xc2\xa7 192-194\nThe criminal contempt of Congress statute contains two principal sections, 2\nU.S.C. \xc2\xa7\xc2\xa7 192 and 194.24 Section 192, which sets forth the criminal offense of\ncontempt of Congress, provides in pertinent part:\nEvery person who having been summoned as a witness by the\nauthority of either House of Congress to give testimony or to\nproduce papers upon any matter under inquiry before either\nH ouse,. . . or any committee of either House of Congress, will\xc2\xad\nfully makes default, or who, having appeared, refuses to answer\nany question pertinent to the question under inquiry, shall be\ndeemed guilty of a misdemeanor, punishable by a fine of not\nmore than $1,000 nor less than $100 and imprisonment in a\ncommon jail for not less than 1 month nor more than 12 months, p 5]\n23 The courts have underscored the im portance o f the procedural safeguards built into the contem pt of\nCongress process and, in particular, the m ultiple steps o f review that must take place before a contem pt of\nCongress prosecution is brought. See Wilson v. United States, 369 F.2d 198, 203 (D.C. Cir. 1966); see also\nUnited States Fund v. Eastland , 488 F.2d 1252, 1260 (D.C. Cir. 1973), rev\xe2\x80\x99d on other grounds, 421 U.S. 491\n(1975); Sanders v. McClellan, 463 F.2d 894 (D.C. Cir. 1972); Ansara v. Eastland , 442 F.2d 751, 754 (D.C.\nCir. 1971). It could therefore be argued that com m ittee consideration o f a subcom m ittee contem pt resolution\nwould be necessary in order to provide an additional check upon the contem pt o f C ongress process. No court,\nhowever, has so held, and w e have not found any requirem ent in the H ouse o r any com m ittee rules for referral\nto the full com m ittee. N either have w e found any instance in w hich a subcomm ittee referred a contem pt\nresolution directly to the House, w ithout seeking approval from the full com m ittee. For exam ple, the\ncontem pt resolution voted by the Subcom m ittee on O versight and Investigations o f the H ouse C om m ittee on\nPublic W orks and Transportation against EPA A dm inistrator Burford was referred to the full Com m ittee, and\nreported by that C om m ittee to the House.\n24 A third provision, 2 U.S.C. \xc2\xa7 193, denies the existence o f any testim onial privilege for a w itness to refuse\nto testify on the ground that his testim ony would disgrace him.\n25 This statute has been found constitutionally valid as a punitive supplem ent to C ongress\xe2\x80\x99 inherent\ncoercive pow er to im prison for contem pt. See, e.g.. United States v. Fort, 443 U.S. 670,677 (D .C. Cir. 1970),\ncert. denied , 403 U.S. 942 (1971).\n\n83\n\n\x0cSection 194 imposes certain responsibilities on the Speaker of the House or the\nPresident of the Senate, as the case may be, and on the United States Attorney\nto take actions leading to the prosecution of persons certified by a House of\nCongress to have failed to produce information in response to a subpoena. It\nprovides:\nWhenever a witness summoned as mentioned in section 192 of\nthis title fails to appear to testify or fails to produce any books,\npapers, records, or documents, as required, or whenever any\nwitness so summoned refuses to answer any question pertinent\nto the subject under inquiry before either House. . . or any\ncommittee or subcommittee of either House of Congress, and\nthe fact of such failure or failures is reported to either House\nwhile Congress is in session or when Congress is not in session,\na statement of fact constituting such failure is reported and filed\nwith the President of the Senate or the Speaker of the House, it\nshall be the duty of the President of the Senate or Speaker of the\nHouse, as the case may be, to certify, and he shall so certify, the\nstatement of facts aforesaid under the seal of the Senate or\nHouse, as the case may be, to the appropriate United States\nAttorney, whose duty it shall be to bring the matter before the\nGrand Jury for its action.\nUnder this provision, the committee would refer a resolution of contempt to the\nHouse, which would then have to approve the resolution and instruct the\nSpeaker to certify the contempt to the United States Attorney for presentation\nto the grand jury.26\nThe contempt of Congress procedure has been used only once against an\nExecutive Branch official who refused to comply with a subpoena on executive\nprivilege grounds. In 1982, EPA Administrator Burford, acting at the President\xe2\x80\x99s\ndirection, refused to release certain enforcement sensitive documents in re\xc2\xad\nsponse to a subpoena from the Subcommittee on Oversight and Investigations\nof the House Committee on Public Works and Transportation. The Subcommit\xc2\xad\ntee and subsequently the full Committee approved a contempt of Congress\nresolution, and on December 16, 1982, the full House adopted the resolution.\nOn December 17, Speaker O\xe2\x80\x99Neill certified the contempt to the United States\nAttorney for the District of Columbia for prosecution under \xc2\xa7 192. The United\nStates Attorney declined to refer the contempt citation to the grand jury,\npending resolution of a lawsuit filed by the Executive Branch to block enforce\xc2\xad\nment of the subpoena27 and completion of negotiations between the executive\nand legislative branches to reach a compromise settlement.28\n26 By its term s, \xc2\xa7 194 w ould permit the S p eak er (or P resident pro tempore) to certify a contem pt w ithout the\napproval o f the H ouse, if the House were n o t in session. This option, how ever, w ould appear to be foreclosed\nby the H ouse rules, w hich clearly require fu ll House approval for any enforcem ent action\n27 United States v. House o f Representatives, 556 F. Supp. 150 (D .D .C. 1983).\n28 T hose negotiations eventually resulted in an agreem ent and w ithdraw al o f the contem pt citation.\n\n84\n\n\x0cDuring the EPA matter, this Office rendered advice to the Attorney General,\nsince memorialized in a memorandum, on the applicability of \xc2\xa7\xc2\xa7 192 and 194\nto Executive Branch officials who assert claims of executive privilege on\nbehalf of the President.29 In brief, we concluded that a United States Attorney\nis not required to refer a contempt citation to a grand jury or otherwise to\nprosecute an Executive Branch official who is carrying out the President\xe2\x80\x99s\ninstruction to assert executive privilege. Our conclusion rested partly on the\nneed to preserve traditional prosecutorial discretion, i.e., that Congress may not\ndirect the executive to prosecute a particular individual without leaving any\ndiscretion in the executive to determine whether a violation of the law has\noccurred. We also concluded more broadly, however, that the contempt of\nCongress statute simply was not intended to apply and could not constitution\xc2\xad\nally be applied to an Executive Branch official who asserts the President\xe2\x80\x99s\nclaim of executive privilege. We noted that neither the legislative history nor\nthe subsequent implementation of \xc2\xa7\xc2\xa7 192 and 194 suggest that Congress in\xc2\xad\ntended the statute to apply to executive officials who carry out a Presidential\nassertion of executive privilege. Moreover, as a matter of constitutional law,\nwe concluded that the threat of criminal prosecution would unduly chill\nthe President\xe2\x80\x99s ability to protect presumptively privileged Executive Branch\ndeliberations:\nThe President\xe2\x80\x99s exercise of this privilege, particularly when\nbased upon the written legal advice of the Attorney General, is\npresumptively valid. Because many of the documents over\nwhich the President may wish to assert a privilege are in the\ncustody of a department head, a claim of privilege over those\ndocuments can be perfected only with the assistance of that\nofficial. If one House of Congress could make it a crime simply\nto assert the President\xe2\x80\x99s presumptively valid claim, even if a\ncourt subsequently were to agree that the privilege claim were\nvalid, the exercise of the privilege would be so burdened as to be\nnullified. Because Congress has other methods available to test\nthe validity of a privilege claim and to obtain the documents that\nit seeks, even the threat of a criminal prosecution for asserting\nthe claim is an unreasonable, unwarranted, and therefore intoler\xc2\xad\nable burden on the exercise by the President of his functions\nunder the Constitution.\n8 Op. O.L.C. at 102. Therefore, Congress could not, as a matter of statutory or\nconstitutional law, invoke the criminal contempt of Congress procedure set out\nin 2 U.S.C. \xc2\xa7\xc2\xa7 192 and 194 against the head of an Executive Branch agency, if\nhe acted on the instructions of the President to assert executive privilege in\nresponse to a congressional subpoena.\n29 See \xe2\x80\x9c Prosecution for C ontem pt o f C ongress o f an Executive Branch O fficial Who Has A sserted a C laim\no f Executive Privilege," 8 Op. O .L.C. 101 (1984).\n\n85\n\n\x0c2. Inherent Contempt Power of Congress\nThe second alternative is for the House to instruct the Sergeant-at-Arms to\narrest the Executive Branch official and detain him in the Capitol guardroom.\nThe arrest could then be challenged by application for a writ of habeas corpus.\n28 U.S.C. \xc2\xa7\xc2\xa7 2241 et seq.\nThe Supreme Court has ruled in the past that Congress has the inherent\nconstitutional authority to imprison individuals for contempt. See Jum ey v.\nM acCracken, 294 U.S. 125 (1935); Anderson v. D unn, 19 U.S. (6 Wheat.) 204\n(1821). The authority is one of self preservation and is accordingly limited to\n\xe2\x80\x9cthe least possible power adequate to the end proposed.\xe2\x80\x9d Id. at 231.\nAlthough the authority has been cited by a court as recently as 1970, see\nUnited States v. Fort, 443 F.2d at 676, Congress has not attempted to use it for\napproximately 50 years30 and it seems most unlikely that Congress would\ndispatch the Sergeant-at-Arms to arrest and imprison an Executive Branch\nofficial who claimed executive privilege. Moreover, while Supreme Court\nprecedents support the right o f Congress to imprison individuals for contempt,\nthere is some question whether such authority would continue to be upheld. In\nrecent years the Supreme Court has been more wary of Congress\xe2\x80\x99 exercising\njudicial authority:\nThose who wrote our Constitution well knew the danger inher\xc2\xad\nent in special legislative acts which take away the life, liberty, or\nproperty of particular named persons, because the legislature\nthinks them guilty of conduct which deserves punishment.\nUnited States v. Lovett, 328 U.S. at 317; see also United States v. Brown, 381\nU.S. 437 (1965); IN S v. Chadha, 462 U.S. at 962,966 (Powell, J., concurring).\nThe Court has also been careful in recent cases to restrict Congress to its\nlegislative functions and not to permit it to exercise authority belonging to another\nbranch. See INS v. Chadha, supra ; Buckley v. Valeo, 424 U.S. 1 (1976). The current\nCourt therefore may not afford Congress the same latitude with respect to its\ninherent contempt power that was provided during the 19th and early 20th centuries.\nSee Memorandum for the Deputy Attorney General from Robert B. Shanks, Deputy\nAssistant Attorney General, Office of Legal Counsel (Oct. 18, 1984).\nIn any event, the same considerations that inform the analysis of the applica\xc2\xad\nbility of \xc2\xa7\xc2\xa7 192 and 194 to Executive Branch officials are relevant to an\nexercise of Congress\xe2\x80\x99 inherent contempt power. In our 1984 memorandum to\nthe Attorney General discussing \xc2\xa7\xc2\xa7 192 and 194, we noted that the reach of the\ncriminal contempt statute was intended to be coextensive with Congress\xe2\x80\x99\ninherent civil contempt powers (except with respect the penalties imposed),\nand concluded that \xe2\x80\x9cthe same reasoning that suggests that the statute could not\nconstitutionally be applied against a Presidential assertion of privilege applies\nto Congress\xe2\x80\x99 inherent contempt powers as well.\xe2\x80\x9d 8 Op. O.L.C. at 140 n.42.\n30 See M arshall v. Gordon, 243 U.S. 521 (1917); C ongressional Q uarterly, Guide to the Congress 162\n(1982).\n\n86\n\n\x0c3. Civil Suit for Enforcement of a Subpoena\nThe most likely route for Congress to take would be to file a civil action\nseeking enforcement of the subpoena. There is no statute that expressly grants\nthe federal courts jurisdiction over such suits.31 There are, however, at least\ntwo precedents for bringing such civil suits under the grant of federal question\njurisdiction in 28 U.S.C. \xc2\xa7 1331. In 1973, the Senate Select Committee on\nPresidential Campaign Finances sought civil enforcement of its subpoena for\ntapes and documents; the Committee urged, inter alia, that \xc2\xa7 1331 provided\nsubject matter jurisdiction. The district court found that the $10,000 jurisdic\xc2\xad\ntional amount in controversy requirement was not met and held that jurisdic\xc2\xad\ntion was therefore lacking under section 1331. The court did not be suggest that\nthere was any other basis for denying federal question jurisdiction. Senate\nSelect Committee on Presidential Campaign Activities v. Nixon, 366 F. Supp.\n51, 59-61 (D.D.C. 1973). Legislation was subsequently enacted to authorize\njurisdiction over that particular suit. See Senate Select Committee on Presiden\xc2\xad\ntial Campaign Activities v. Nixon, 498 F.2d 725,727 (D.C. Cir. 1974). Section\n1331 has since been amended to be eliminate the $10,000 amount in contro\xc2\xad\nversy limitation in actions brought against the United States. Pub. L. No. 96486, \xc2\xa7 2(a), 94 Stat. 2369 (1980).\nGeneral federal question jurisdiction was also used as a basis for the be civil\nsuit filed by the Department of Justice against the House in the EPA matter. See\nUnited States v. House o f Representatives, C.A. No. 82-3583 (D.D.C. 1983).\nThe Department took the position in that case that the controversy arose under\nthe Constitution and laws of the United States, because resolution \xe2\x80\x9cdepend[ed]\ndirectly on construction of the Constitution [and the] Court has consistently\nheld such suits are authorized by [section 1331].\xe2\x80\x9d Powell v. McCormack, 395\nU.S. 486,516 (1969). Relying upon the decision in United States v. AT&T Co.,\n551 F.2d 384 (D.C. Cir. 1976), which held that an action brought by the United\nStates to block a response by a third party to a congressional subpoena met the\nthreshold jurisdictional requirements of section 1331, the Department argued\n31 U nder 2 U.S.C. \xc2\xa7 288d, the Senate Legal Counsel \xe2\x80\x9c(w]hen directed to do so [by the Senate] . . . shall\nbring a civil action . . . to enforce, to secure a declaratory judgm ent concerning the validity of, or to prevent\na threatened failure or refusal to com ply with, any subpoena or order issued by the Senate or a com m ittee or\na subcom m ittee o f the Senate authorized to issue a subpoena o r o rd e r/\xe2\x80\x99 The U nited States District C ourt for\nthe D istrict o f C olum bia has jurisdiction over such actions, but its jurisdiction does not extend to any actions\nbrought \xe2\x80\x9cto enforce, to secure a declaratory judgm ent concerning the validity of, or to prevent a threatened\nrefusal to comply with, any subpoena or o rder issued to an officer or em ployee o f the Federal G overnm ent\nacting within his official capacity.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1364(a).\nThe argum ent could be made that this authority provides the exclusive route for either H ouse to bring a civil\naction to enforce its subpoenas, and thus, that no route exists for civil enforcem ent against an executive\nbranch officer. The legislative history o f these statutes, how ever, counsels against th at conclusion. The\nlegislative history specifically notes that the jurisdictional exception for executive branch subpoenas \xe2\x80\x9c is not\nintended to be a Congressional finding that the Federal courts do not now have the authority to hear a civil\naction to enforce a subpoena against an officer or em ployee o f the Federal G overnm ent," but rather was\nintended specifically to provide th e Senate with a less drastic rem edy than crim inal contem pt for refusals by\nprivate citizens to comply w ith subpoenas, and to avoid reliance on the D epartm ent o f Justice to enforce such\nsubpoenas. See S. Rep. No. 170, 95th Cong., 2d Sess. 8 8 -8 9 (1978).\n\n87\n\n\x0cthat subject matter jurisdiction similarly exists in a suit to halt enforcement of a\nsubpoena addressed directly to the Executive Branch.32 The rationale used by\nthe Department in that suit would appear to apply equally to suits filed by a\nHouse of Congress seeking enforcement of its subpoena against executive\nprivilege claims.\nIn addition, the courts may be willing to entertain a civil suit brought by the\nHouse in order to avoid any question about the possible applicability of the\ncriminal contempt provisions of \xc2\xa7\xc2\xa7 192 and 194. When a possible impairment\nof the President\xe2\x80\x99s constitutional prerogatives is involved, the courts are par\xc2\xad\nticularly careful to construe statutes to avoid a constitutional confrontation. In\nUnited States v. Nixon, for example, the Court construed the limitation in 28\nU.S.C. \xc2\xa7 1291 (that appeals be taken only from \xe2\x80\x9cfinal\xe2\x80\x9d decisions of a district\ncourt) to permit the President to appeal an adverse ruling on his claim of\nexecutive privilege without having to place himself in contempt of court:\n[T]he traditional contempt avenue to immediate appeal is pecu\xc2\xad\nliarly inappropriate due to the unique setting in which the ques\xc2\xad\ntion arises. To require a President of the United States to place\nhimself in the posture o f disobeying an order of a court merely\nto trigger the procedural mechanism for review of the ruling would\nbe unseemly, and would present an unnecessary occasion for consti\xc2\xad\ntutional confrontation between two branches of the Government.\n418 U.S. at 691-92. The U.S. Court of Appeals for the District of Columbia has\nstated on several occasions that criminal contempt proceedings are an inappro\xc2\xad\npriate means for resolving document disputes, especially when they involve\nanother governmental entity. See Tobin v. United States, 306 F.2d 270 (D.C.\nCir.), cert, denied, 371 U.S. 902 (1962); see also United States v. Fort, 443\nF.2d at 677-78. The Fifth Circuit appears to have held that no government\nofficial need subject himself to contempt in order to obtain review of his claim\nthat the government is privileged to refuse to comply with a court\xe2\x80\x99s demand for\ndocuments. See Cates v. LTV Aerospace Corp., 480 F.2d 620, 622 (5th Cir.\n1973); C arr v. Monroe Manufacturing Co., 431 F.2d 384, 387 (5th Cir. 1970),\ncert, denied, 400 U.S. 1000 (1971); but see In re the Attorney General, 596\nF.2d 58, 62 (2d Cir.), cert, denied, 444 U.S. 903 (1979). Thus, although the\ncivil enforcement route has not been tried by the House, it would appear to be a\nviable option.33\n32 The d ecisio n o f the district court in United States v House o f Representatives does not directly address\nthe ju risd ictio n al question, although it casts considerable doubt on w hether the Executive Branch can seek\nreview in a civil action, w hen the legislative branch has chosen to use the crim inal contem pt provisions. 556\nF. Supp. at 153. N onetheless, the court did not foreclose any civil actions by the House:\nJudicial resolution o f this constitutional claim , how ever, will never become necessary unless\nA dm inistrator G orsuch becomes a defen d an t in either a criminal contem pt proceeding or other\n\nlegal action taken by Congress\nId. (em phasis added).\n33 Any notion that the courts may not o r should not review such disputes is dispelled by United States v.\nNixon , 418 U.S. at 7 0 3 -0 5 , in which the C ourt clearly asserted its role as ultimate arbiter of executive\nC ontinued\n\n88\n\n\x0cIt is also possible that Congress might attempt to invoke the provisions of the\nIndependent Counsel Act, which require the Attorney General to conduct an\ninvestigation \xe2\x80\x9cwhenever he receives information sufficient to constitute grounds\nto investigate\xe2\x80\x9d that any of the enumerated Executive Branch officials \xe2\x80\x9chas\ncommitted a violation of any Federal criminal law other than a violation\nconstituting a petty offense.\xe2\x80\x9d 28 U.S.C. \xc2\xa7591. The crime of contempt of\nCongress is a non-petty criminal offense. See 2 U.S.C. \xc2\xa7 192; 18 U.S.C. \xc2\xa7 1.\nThus a contempt citation against a covered official would arguably trigger the\nAttorney General\xe2\x80\x99s obligation under the Act. Invocation of the Act would not,\nhowever, necessarily require the Attorney General to apply for the appointment\nof an independent counsel. As this Office has advised on prior occasions, the\nAttorney General retains a certain measure of discretion with respect to whether\nto apply for an independent counsel.\nB. Defenses to Congressional Subpoenas\n1. Lack of Jurisdiction\nAs we discussed above, Congress\xe2\x80\x99 investigative power, while broad, is not\nunlimited. Thus, short of asserting executive privilege, there may be other lines\nof defense against a subpoena. The most promising line is that the subcommit\xc2\xad\ntee has no jurisdiction to request the information, either because Congress as a\nwhole has no authority to inquire into the matter, or because Congress has not\ngiven the committee the requisite authority.\na. Scope of Congress\xe2\x80\x99 Jurisdiction\nThe Supreme Court has not articulated with precision whether there are\nparticular limits to the jurisdiction of Congress to request information from the\nExecutive Branch. Nonetheless, as we have previously set forth, Congress\nmust at a minimum be able to articulate a legitimate legislative purpose for its\ninquiry. We will not repeat that discussion here, except to say that if the matter\neither falls exclusively within the province of another branch, see Kilboum v.\nThompson, 103 U.S. at 192, or Congress cannot point to some rational nexus\nbetween the inquiry and its legislative power, see Barenblatt v. United States,\n360 U.S. at 111, we believe the subpoena would be held invalid for lack of\nauthority, and could be challenged on that basis.\nb. Scope of Committee\xe2\x80\x99s Jurisdiction\nNot only must the investigation fall within Congress\xe2\x80\x99 jurisdiction, but the\ncommittee or subcommittee must also have been specifically authorized by the\n33 ( . . . continued)\nprivilege questions. The need for ju dicial review in fact was em phasized by this D epartm ent in the United\nStates v. House o f Representatives litigation as a basis for the court to entertain the suit. The D epartm ent\nargued that, in som e circum stances, only judicial intervention can prevent a stalem ate between the other tw o\nbranches that could result in a partial paralysis o f governm ent operations.\n\n89\n\n\x0crelevant House to conduct the investigation. Since defiance of a subpoena\nraises the possibility of criminal prosecution, \xe2\x80\x9ca clear chain of authority from\nthe House to the questioning body is an essential element of the offense.\xe2\x80\x9d\nGojack v. United States, 384 U.S. at 716. It \xe2\x80\x9cmust appear that Congress\nempowered the Committee to act, and further that at the time the witness\nallegedly defied its authority the Committee was acting within the power\ngranted to it.\xe2\x80\x9d34 Id. (quoting United States v. Lamont, 18 F.R.D. 27 (S.D.N.Y.\n1955), a ffd , 236 F.2d 312 (2d Cir. 1956)). See also Watkins v. United States,\n354 U.S. at 204\xe2\x80\x9405,214-15; Eastland v. United States Servicemen\xe2\x80\x99s Fund, 421\nU.S. at 505-06. Thus, a witness cannot be compelled to answer questions that\nfall outside of the investigative jurisdiction of a committee or subcommittee.\nSee United States v. Rumely, 345 U.S. at 44\xe2\x80\x9445; Bergman v. Senate Select\nCommittee on Aging, 389 F. Supp. 1127, 1130 (S.D.N.Y. 1975); United States\nv. Cuestra, 208 F. Supp. 401, 406 (D.P.R. 1962).\nAlthough this general principle is well recognized by the courts, in practice\nthey have given considerable deference to a committee\xe2\x80\x99s definition of its\njurisdiction. In cases in which the courts have refused to enforce a subpoena\nbecause the inquiry fell outside of the committee\xe2\x80\x99s jurisdiction, the primary\ndefect was that the investigative authority given to the committee was simply\nso broad and ill-defined that it gave the witness no fair notice of the scope of the\ninquiry. See, e.g., Watkins v. United States, 354 U.S. at 204; United States v.\nRumely, 345 U.S. at 43. In many cases, the courts have considered the \xe2\x80\x9clegisla\xc2\xad\ntive history\xe2\x80\x9d of the committee\xe2\x80\x99s investigation (e.g., the language and back\xc2\xad\nground of the authorizing resolution, remarks made by the chairman or mem\xc2\xad\nbers of the committee to outline the scope of the investigation, the existence\nand scope of similar investigations) to determine whether a particular matter\nfalls within a committee\xe2\x80\x99s jurisdiction. \xe2\x80\x9cJust as legislation is often given\nmeaning by the gloss of legislative reports, administrative interpretation and\nlong usage, so the proper meaning of an authorization to a congressional\ncommittee is not to be derived alone from its abstract terms unrelated to the\ndefinite context furnished them by the course of congressional actions.\xe2\x80\x9d\nBarenblatt v. United States, 360 U.S. at 117. See also Wilkinson v. United\nStates, 365 U.S. at 408; Tobin v. United States, 306 F.2d at 275-76; United\nStates v. Fort, 443 F.2d at 682. This analysis, of course, cuts both ways. If a\ncommittee has historically exercised investigative jurisdiction over a particular\nsubject, and makes the nexus between its investigative jurisdiction and the\nparticular subject matter clear, the courts may hesitate to second guess to that\njudgment. See, e.g., Barenblatt v. United States, 360 U.S. at 119-20. On the\nother hand, if the committee has not previously asserted investigative jurisdic\xc2\xad\ntion over the subject matter, and the subject matter to is not clearly linked to the\ncommittee\xe2\x80\x99s jurisdiction, the courts may lean to in favor of protecting the\n34 B ecause th e legality o f the com m ittee\xe2\x80\x99s action is ju d g e d as o f the tim e the w itness defies the subpoena, a\nsubsequent vote by the full House to e n fo rc e the subpoena (through contem pt or otherw ise) will not cure any\njurisd ictio n al defect. Gojack , 384 U.S. a t 175 n.12.\n\n90\n\n\x0cwitness\xe2\x80\x99 prerogative to refuse to testify, particularly if constitutional interests\nare implicated.35 See Tobin v. United States, 306 F.2d at 275-76.\nThe courts have also suggested that the power of either the witness or the\ncourt to define for itself the scope of a committee\xe2\x80\x99s jurisdiction is limited. In\nBarenblatt, 360 U.S. at 124, the Court noted that it \xe2\x80\x9cgoes without saying that\nthe scope of the Committee\xe2\x80\x99s authority was for the House, not a witness, to\ndetermine, subject to the ultimate reviewing responsibility of this Court.\xe2\x80\x9d\nSimilarly, \xe2\x80\x9cit is appropriate to observe that just as the Constitution forbids the\nCongress to enter fields reserved to the Executive and Judiciary, it imposes on\nthe Judiciary the reciprocal duty of not lightly interfering with Congress\xe2\x80\x99\nexercise of its legitimate powers.\xe2\x80\x9d Hutcheson v. United States, 369 U.S. 599,\n622 (1962). See also McSurely v. McClellan, 521 F.2d 1024, 1038 (D.C. Cir.\n1975) (prerogative of the judiciary to determine whether the investigation is\nwithin the jurisdiction of a particular committee is \xe2\x80\x9cextremely limited\xe2\x80\x9d).\nNevertheless, it is clear that a witness may refuse to answer on the ground\nthat the inquiry has not been authorized by the relevant House. Particularly\nwhere constitutional concerns are raised by compelled testimony, courts may\nbe reluctant to countenance a far-ranging inquiry by a particular committee or\nsubcommittee that does not appear to fall within the jurisdiction granted by\nCongress.\n2. Executive Privilege\nFinally, the subpoena could be resisted on the ground that the information\nrequested is protected by the executive privilege. It is important to remember,\nhowever, that assertion of the privilege does not just involve an evaluation of\nthe Executive Branch\xe2\x80\x99s interest in keeping the information confidential; it also\ninvolves an evaluation of the strength of Congress\xe2\x80\x99 need for that information,\nand whether those needs can be accommodated in some other way.\nThus, Congress must be able to articulate its need for the particular materials\n\xe2\x80\x94 to \xe2\x80\x9cpoint[ ] to . . . specific legislative decisions that cannot responsibly be\nmade without access to materials uniquely contained\xe2\x80\x9d in the presumptively\nprivileged documents (or testimony) it has requested, and to show that the\nmaterial \xe2\x80\x9cis demonstrably critical to the responsible fulfillment of the\nCommittee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Committee on Presidential Campaign\nActivities v. Nixon, 498 F.2d at 731, 733. In Senate Select Committee, for\nexample, the court held that the committee had not made a sufficient showing\nof need for copies of the Presidential tape recordings, given that the President\nhad already released transcripts of the recordings. The committee argued that it\n33 The judicial decisions dealing w ith C ongress\xe2\x80\x99 subpoena authority have for the most part involved refusals\nby private individuals to testify. In those cases the courts have been sensitive to First, Fourth, and Fifth\nA m endm ent concerns raised by the defendants, and have weighed those interests in the balance in determ in\xc2\xad\ning how specific Congress must be in authorizing a com m ittee\xe2\x80\x99s investigation. See, e.g.. United States v.\nRumely, 345 U.S. at 45; Watkins v. United States , 354 U.S. at 204-05. Although the constitutional interests\nim plicated by a subpoena o f an executive branch official arise from A rticles 1 and II, rather than the Bill o f\nRights, a court should be equally sensitive to those constitutional concerns.\n\n91\n\n\x0cneeded the tape recordings \xe2\x80\x9cin order to verify the accuracy o f \xe2\x80\x99 the transcripts,\nto supply the deleted portions, and to gain an understanding that could be\nacquired only by hearing the inflection and tone of voice of the speakers. But\nthe court answered that in order to legislate a committee of Congress seldom\nneeds a \xe2\x80\x9cprecise reconstruction of past events.\xe2\x80\x9d Id. at 732. \xe2\x80\x9cThe Committee\nhas .. . shown no more than that the materials deleted from the transcripts may\npossibly have some arguable relevance to the subjects it has investigated and to\nthe areas in which it may propose legislation. It points to no specific legislative\ndecisions that cannot responsibly be made without access to materials uniquely\ncontained in the tapes or without resolution of the ambiguities that the tran\xc2\xad\nscripts may contain.\xe2\x80\x9d Id. at 733. For this reason, the court stated, \xe2\x80\x9cthe need\ndemonstrated by the Select Committee . . . is too attenuated and too tangential\nto its functions\xe2\x80\x9d to override the President\xe2\x80\x99s constitutional privilege. Id.\nMoreover, in cases in which Congress has a legitimate need for information\nthat will help it legislate and the Executive Branch has a legitimate, constitu\xc2\xad\ntionally recognized need to keep information confidential, the courts have\nreferred to the obligation of each branch to accommodate the legitimate needs\nof the other. See United States v. AT&T Co., 567 F.2d 121, 130 (D.C. Cir.\n1977).\nHere, the considerations outlined above \xe2\x80\x94 particularly the need to preserve\nthe position of the Executive Branch as the sole entity that enforces the\ncriminal laws \xe2\x80\x94 would weigh strongly in favor of nondisclosure by the\nExecutive Branch. Ultimately it would be those interests in maintaining confi\xc2\xad\ndentiality that must be balanced against Congress\xe2\x80\x99 interest in gaining access to\nparticular information for legitimate legislative purposes. As noted above, it is\ndifficult for us to speculate as to what legitimate interests Congress would have\nin gaining access to the details o f a prosecutorial decision made by the Attorney\nGeneral \xe2\x80\x94 a decision that Congress constitutionally could not alter or interfere\nwith. The decision to assert executive privilege in response to a congressional\nsubpoena, however, is the President\xe2\x80\x99s to make. Under the terms of the Reagan\nMemorandum, executive privilege cannot be asserted vis-a-vis Congress with\xc2\xad\nout specific authorization by the President, based on recommendations made to\nhim by the concerned department head, the Attorney General, and the Counsel\nto the President. That decision must be based on the specific facts of the\nsituation, and therefore it is impossible to predict in advance whether executive\nprivilege could or should be claimed as to any particular types of documents or\ninformation.\nC h a r l e s J. C o o p e r\nAssistant Attorney General\nOffice o f Legal Counsel\n\n92\n\n\x0c'