Department of Justice Seal


FEBRURAY 6, 2002

Chairman Burton, Congressman Waxman, Members of the Committee: Good Morning. I welcome this opportunity to present testimony on behalf of the Department of Justice at this hearing regarding the history of congressional access to deliberative Department of Justice documents.

At the outset, I wish to remind the Committee of the Department's request to meet with the Committee about the Boston documents. It was and remains our hope that, in such a meeting, knowledgeable officials could confer with you about the nature of the documents. Such a meeting offers the potential for the Committee's oversight inquiry to move forward expeditiously.

Mr. Chairman, in preparation for this hearing I have made an effort to familiarize myself with the history of congressional access to deliberative Justice Department documents, and deliberative prosecutorial advice documents in general. I wish to clarify that the current dispute between this Committee and the Department of Justice pertains only to the narrow and especially sensitive sub-category of deliberative documents constituting advice memoranda regarding whether or not to bring criminal charges against certain individuals and advice memoranda to the Attorney General in connection with appointing a special prosecutor. This category of documents which the Committee has subpoenaed is a very small subset of all deliberative Department memoranda, and an even smaller subset of the total universe of information which is routinely requested by and provided to Congress.

There are a number of relevant propositions that emerge from a review of the history of congressional access to deliberative Justice Department documents.

First, it is apparent that the framers of the Constitution envisioned tensions arising between the branches in the course of their discharging their constitutionally-assigned responsibilities. In fact, such tensions reflect one of the fundamental checks and balances at the heart of our system of government based on the separation of powers. One such intentional check is immediately apparent: Congress has authority to obtain information from the Executive so as to enable it to carry out its legislative responsibilities. At the same time, the Constitution requires the Executive, in the words of Article II, Section 3, "to take care that the laws be faithfully executed," and in doing so, clearly contemplates the need to withhold certain information in order faithfully to fulfill this core Executive function.

Second, our tradition of government clearly envisions that the branches will work to resolve any inter-branch disputes that arise. The long-standing policy of the Executive Branch is to comply with congressional requests for information to the fullest extent that is consistent with its constitutional and statutory obligations. The policy is reflected in the Executive Branch's commitment to the accommodation process. That historic policy remains the policy of the Executive Branch today.

Third, the history of specific inter-branch accommodations can serve as a useful guide for present and future disputes; but past inter-branch accommodations are not themselves binding precedent. Each specific inter-branch accommodation is highly case-specific, and is, therefore, of questionable application to subsequent inter-branch disputes. Moreover, unlike case law, which involves a court arbitrating the resolution of the matter and handing down a ruling with clear precedential significance, disputes between Congress and the Executive have been left to the parties themselves to settle. Consequently, the Executive Branch's concern to safeguard certain documents from improper disclosure has manifested itself over the decades in a wide variety of ways, depending on the particular circumstances and exigencies present at the time of the dispute.

Fourth, throughout the history of inter-branch disputes regarding deliberative Justice Department documents, the Executive Branch has consistently maintained that the sub-category of prosecutorial documents at issue in our current dispute is presumptively privileged and should be protected. This position has been repeatedly articulated by the Executive Branch for decades and is supported by historical practice, scholarly commentary and case law. The reasons for this position are clear: The authority to prosecute criminal suspects is one of the core executive powers vested in the President by the Executive Power and Take Care Clauses of Article II of the Constitution. In order to assist the President in fulfilling his constitutional duty, the Attorney General and other Department decision-makers must have the benefit of candid and confidential advice and recommendations in making prosecutorial decisions.

The need for confidentiality is particularly compelling in regard to the highly sensitive prosecutorial decision of whether to bring criminal charges. If prosecution and declination memoranda are subject to congressional scrutiny, we will face the grave danger that prosecutors will be chilled from providing the candid and independent analysis essential to the sound exercise of prosecutorial discretion and to the fairness and integrity of federal law enforcement. As the Supreme Court described its concern about a chilling effect: "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." United States v. Nixon, 418 U.S. 683, 705 (1974). The Court observed that "the importance of this confidentiality is too plain to require further discussion." Id. Just as troubling, the prospect of congressional review might force prosecutors to err on the side of investigation or prosecution simply to avoid public second-guessing. This would undermine public and judicial confidence in our law enforcement processes.

Disclosure of declination memoranda would also implicate significant individual privacy interests. Such documents discuss the possibility of bringing charges against individuals who are investigated but not prosecuted, and often contain unflattering personal information as well as assessments of witness credibility and legal positions. The disclosure of the contents of these documents could be devastating to the individuals they discuss.

In sum, government functions as the Constitution intended and the public interest is well served by safeguarding from disclosure those documents that advise whether or not to prosecute.

Mr. Chairman, as stated by Judge Gonzales, Counsel to the President, the Department of Justice is "prepared to accommodate the Committee's interest in a manner that should both satisfy the Committee's legitimate needs and [that] protect[s] the principles of prosecutorial candor and confidentiality." That is why Department officials have offered to meet with you about the Committee's interest in the Boston documents, and I reiterate that offer today.

Thank you.