Department of Justice Seal


MAY 3, 2000

Mr. Chairman and Members of the Committee, I am here today in response to your request by letter of April 26, 2000. As the Committee understands, many of the questions posed in the Chairman's letter of April 26th relate to matters and activities in which I have had no personal involvement. But I have prepared as best I can, in the few days since the Chairman's letter, to answer the Committee's questions, consistent with the Department's and the public's fundamental interest in effective law enforcement.

The White House E-Mail Investigation

More than a month ago, the Department's Criminal Division, acting through the Campaign Finance Task Force, began an investigation into whether the Executive Office of the President complied with subpoenas issued by the Task Force and this Committee. In conjunction with that inquiry, Criminal Division attorneys conferred with representatives from the Office of Independent Counsel because the Office of Independent Counsel had commenced its own investigation into nearly identical allegations surrounding the White House email retrieval issues. Thereafter, on March 22, 2000, the Office of Independent Counsel explicitly authorized the Department of Justice to continue its investigation pursuant to the Ethics in Government Act, which provides in pertinent part that whenever a "matter is in the prosecutorial jurisdiction of an independent counsel," the Department of Justice shall "suspend" its investigation regarding "such matter" unless the independent counsel "agrees in writing" that such an investigation "may be continued" by the Department. 28 U.S.C. s 597(a).

Since last month, when the Independent Counsel authorized the Department to continue its investigation of the email retrieval issues, the Independent Counsel and the Campaign Finance Task Force have been working in coordination, conducting many joint interviews and reviewing numerous documents and other evidence. This criminal investigation is active and ongoing.

Several of the questions in the Chairman's letter of April 26, 2000, relate explicitly to matters currently under review in this criminal investigation. As I have explained in my letters on this and other Committee requests, disclosure of matters involving an open investigation can compromise the efforts of prosecutors and FBI agents to enforce federal law. Experienced prosecutors tell me that it would undermine law enforcement if defendants or prospective defendants learned the government's factual or legal theories or what information the government had gathered and from what sources. Even neutral witnesses can have their recollections influenced or confused by public disclosures of statements or speculation from other witnesses. The disclosure of raw or preliminary investigative information that has yet to be fully investigated or substantiated can also damage unfairly the reputations of innocent individuals and mislead the public about the underlying facts. Finally, Congressional inquiries into ongoing investigations create the added danger of undermining the credibility of law enforcement by injecting, or appearing to inject, political considerations into the criminal justice process.

Therefore, at this time, the Department cannot comment about any particular actions that have been undertaken or may be undertaken during the course of the ongoing investigation into the email retrieval issues. Nor can I comment on who at the White House or Justice Department may have known what and when about the email retrieval issues, as that is part of the ongoing criminal investigation. All I can do is convey the assurance of the Campaign Finance Task Force that the prosecutors, working in coordination with the Office of Independent Counsel, will follow the facts and the law wherever they may lead.

You have also asked why the Department has not agreed to make the Civil Division attorneys working on the Alexander case available to the Committee for interviews. My letter of April 12, 2000, identified several reasons why the Department declined the Committee's request. As I stated in that letter, the Committee's proposed inquiry relates directly to the ongoing criminal investigation now underway by the Campaign Finance Task Force and the Office of Independent Counsel. In the Alexander case, the Department asked Judge Lamberth to defer consideration of the email retrieval issues precisely because multiple investigations of the same conduct, and multiple interviews of the same witnesses, would interfere with and undermine the ongoing criminal investigation. Just last week, Judge Lamberth agreed to continue deferring consideration of the email retrieval issue. The Court's judgment that this investigation should proceed before a public airing of these allegations also is applicable in our view to the Committee's request to interview the Civil Division attorneys assigned to the Alexander case. In the Department's view, Committee interviews of these attorneys would interfere with and may undermine the ongoing criminal investigation.

In addition, the Committee's proposed inquiry of the lawyers in the Civil Division runs counter to the Department's view that line attorneys and agents should not be required to answer questions from Congress about the conduct of litigation or a pending criminal investigation. We try our hardest to ensure that the Department's line attorneys and agents can exercise the independent judgment essential to effective law enforcement and litigation. That independent judgment is seriously threatened when Congress seeks to question Department attorneys or agents about the actions they took and the litigation decisions they made in an ongoing case.

There have been bipartisan objections to Congressional inquiries of Department line attorneys, even when those attorneys have been sought to explain matters that have concluded. Former Attorneys General Barr and Civiletti have argued against subpoenas to line Assistant United States Attorneys, as has former Acting Attorney General Stuart Gerson. The American Bar Association has also argued against it. The bipartisan National Association of Former United States Attorneys sent a letter to Assistant Attorney General Robinson last month making the point that the effect on morale and the prosecutorial process would be "devastating" if career prosecutors were called before Congress to explain and defend their decisions.

Interviews of the President and the Vice President

Similarly, Mr. Chairman, we are not in a position at this time to answer your questions or provide documents about the recent interviews of the President or Vice President, conducted in furtherance of the ongoing campaign finance investigations. As I mentioned in my letter of December 30, 1999, the prosecutors and agents assigned to the Campaign Finance Task Force continue to pursue actively any and all criminal violations of the campaign finance laws. The questions asked of the President and Vice President, like those addressed to other recent witnesses, pertain to ongoing campaign finance criminal investigations. To date, these investigations, in which the President and Vice President have been interviewed a total of seven (7) times, have produced twenty-two (22) prosecutions, with sixteen (16) convictions and six (6) cases awaiting trial. Producing witness summaries and documents about recent interviews would risk compromising the ongoing investigations and undermine the confidentiality that is essential to effective law enforcement.

Mr. Chairman, I appreciate the Committee's oversight interest in this matter, and I understand the Committee's frustration with the Department's pending matter policy. But I also know that the Committee respects deeply the responsibilities of the Attorney General to enforce the law, and I know the Committee has tried to avoid any action that would jeopardize the effectiveness of this, or any other, criminal investigation. I hope we can work together to accommodate the Committee's legitimate oversight needs while protecting the integrity of our law enforcement efforts. I will do everything that I can to make that possible.