As has become the habit in this Committee, we received notice at 6:00 last night that the majority intended to vote on a subpoena for documents relating to the Elian Gonzalez matter. In its continuing effort to find illegality in a well-executed law enforcement operation that has the overwhelming support of the American people, the majority now moves to subpoena documents reflecting the advice that the Attorney General’s staff – including line attorneys – gave to her. Although such a move gives this investigation the feel of a wild goose chase, it no longer really surprises. Indeed, the extent to which investigation has overtaken legislation as a priority for this Committee would be laughable if it did not have such serious consequences for the American people.

In evaluating this request for a subpoena, it is necessary to review some of the history of this Committee’s attempt to investigate the Justice Department’s actions to reunite Elian Gonzalez and his father, Juan Miguel Gonzalez. On April 24, the first weekday after the April 22 law enforcement operation, the Justice Department – at the majority’s request – gave the majority more than 30 pages of documentation supporting its request for a warrant.

On April 25, the Tuesday after the operation, the Attorney General, the Deputy Attorney General, and the Commissioner of the Immigration and Naturalization Service came to the Senate to meet with more than dozen Senators and answer all of their questions. The meeting lasted approximately 90 minutes before the Majority Leader chose to end it and attend another event. Participating in the question and answer session were several members of this Committee, including the Chairman, the Chairman of the Immigration Subcommittee, and Senator Specter. After that meeting the Majority Leader announced there would be hearings. The next day this Committee noticed a hearing without any insistence of further document production.

On the following afternoon, Thursday, April 27, the Chairman sent out an additional document request to the Attorney General, asking that all documents relating to the operation be turned over to him by the next day at 5:00. Despite the unfairness of this timetable, the Justice Department made substantial compliance by the next day, and worked over the weekend to produce as many responsive documents as it could by Saturday, April 29. When the Justice Department was physically incapable of meeting the Chairman’s timetable, however, the Chairman used this inability to comply with an artificially short deadline as the reason to cancel the hearing.

On April 28, the Justice Department informed the Chairman that there were some materials in which the Department had “substantial confidentiality interests,” and it requested the opportunity to confer with Committee staff about how the Department could “accommodate []our information needs consistent with [Justice’s] interests in those materials.” On May 2, the Chairman wrote again to the Attorney General, requesting a list of the documents that the Department was “withholding” by May 4. The Department provided a list on the date requested.

On May 9, the Justice Department produced another set of documents related to the operation, reflecting the Department’s continuing effort to comply with the majority’s requests. The Department also produced documents related to the Attorney General’s negotiations with Aaron Podhurst on the night preceding the operation, which had been requested by the Chairman on May 3.

On Tuesday of this week, the Justice Department gave the majority access to further documents related to the operation. These were documents that the Justice Department had temporarily withheld so that it could determine whether any privilege applied to them. Although Justice believed that the documents did reflect the deliberative process, it decided that on balance it was preferable to provide the Committee with access to them. In a fair compromise, Justice allowed staff to view these documents but not take possession of them, in order to help ensure that nothing in the confidential documents was disseminated to the general public. (I should note that the majority did not inform the minority of the opportunity to view these documents. Apparently this investigation will not carry even a hint of bipartisanship.)

There were a small number of additional documents that the Justice Department felt that it could not share with the Committee because it felt they were privileged under the deliberative process privilege. Justice represented that these documents were handwritten notes concerning meetings between the Attorney General and a mix of other officials, including both high-ranking officials such as the Commissioner of the INS and line attorneys from the INS and the Justice Department. Justice felt – understandably in my view – that producing these documents would make it more difficult in the future for government officials to speak freely in deliberative meetings if they knew that the view they advocated would become public knowledge. This, after all, is the very basis of the deliberative process privilege.

Yesterday, in lieu of producing these documents, the Justice Department sent highly knowledgeable people, including the general counsel of the INS and the Associate Deputy Attorney General, to brief staff on the matters that were contained in the privileged documents. These officials spent an hour and a half briefing the Chairman’s staff on the relevant issues. When asked to defend the assertion of a privilege, the Justice Department officials promised to get back to Senator Hatch’s staff with a fuller explanation.

But the majority was unwilling to wait even 24 hours for the Justice Department’s response, instead rushing to subpoena the documents. It should be said, however, that the majority did not rush so quickly as to provide adequate notice of this subpoena request to the members of this Committee. One wonders what is so magical about the hour of 6:00-7:00 on Wednesday – last evening alone, three subpoenas were noticed during that hour for debate this morning. It seems to me that such tactics bely the Senate’s reputation as a deliberative body, and distressingly so.

Immediately following the reunion of Elian and his father, Republican leaders called the law enforcement officers who took part in the operation “jack-booted thugs” and referred to them as “stormtroopers.” And it was shortly thereafter that the Majority Leader promised there would be hearings. There is little or no public support for hearings, and there is no evidence that the Justice Department committed any wrongdoing whatsoever in its conduct of this operation.

The majority has chosen to engage in a drumbeat of accusations against the Justice Department, and that carries a price. When members of this Committee accuse the Justice Department of hiding documents, they diminish the reputation of an institution that should stand as the embodiment of our justice system. Where there is evidence to bear out the accusations, this diminishment is a price we must pay in service of the interests of truth and our oversight responsibilities, which we should take very seriously. But where the accusations are leveled prematurely and without evidence, which is what I believe has been happening in this investigation, they needlessly and destructively harm the American people’s view of important public institutions. This consequence is demonstrated by the statement that Senator Grassley has made today concerning his constituent who was disgusted that the Justice Department had not turned over the warrant authorizing the enforcement action. Now the fact is that the Justice Department provided this Committee the warrant and its supporting documentation on the first business day after the enforcement action occurred. But Senator Grassley’s constituent’s confusion should come as no surprise – the unduly heated charges that Members of this Committee now level routinely at the Justice Department would lead the average citizen to suspect that the Department is entirely lawless. But the actual conduct of the Justice Department, as I have explained it today, shows that the opposite is true.

Unfortunately, the Chairman also seems confused about the documents that the Justice Department has already produced. He has said today that the Justice Department did not produce evidence showing that the law enforcement officers who conducted the operation had reason to fear gun violence in the Gonzalez home in Little Havana. But Justice produced precisely such evidence weeks ago, in the documents it gave this Committee on April 29. Those documents included an internal draft “Intelligence Architecture” describing the intelligence to which the planners of the operation had access. Among other things, the draft said: “[w]eapons were found on two individuals in the crowds in the weeks leading up to the law enforcement action. Known criminal felons, some of whom had been arrested and/or convicted on weapons charges, were involved in security operations either directly in the house or in the two residences located in close proximity of the house. Additionally, four bodyguards identified by name were confirmed through law enforcement database checks to have current concealed weapons permits. They were routinely seen in the house.” (DOJ-EG-0065) (Emphasis added). Lest anyone think that this draft was an attempt to justify law enforcement’s conduct after the fact, the Justice Department also provided page after page of intelligence reports that were filed in the days leading up to the operation, including the April 17 description of reports that a bodyguard who was spending time in the house carried a weapon in an ankle holster (DOJ-EG-0073); an April 19 report that four individuals with lengthy arrest records – including arrests for gun crimes and other crimes of violence – were camped out in the back yard of the home behind the Gonzalez home (DOJ-EG-0080-81); and an undated report of a threat from a nearby house where “there may be shotguns” and where “armed men whose mission is to try to prevent removal of Elian from the house by US authorities” were living. (DOJ-EG-00106). As a former law enforcement official, this seems to me to be more than ample justification to believe that there might be guns in and around the Gonzalez home, and to take every appropriate step to protect the duty officers whose job it was to execute the operation.

The majority, on the other hand, appears to be unsatisfied with the explanation it has received so far, and instead presses this subpoena. Regardless of why the majority seeks the subpoena, however, the fact remains that this subpoena is overbroad and premature. It is overbroad because, among other reasons, the majority once again seeks to compel information from line attorneys. I have pointed out many times how the Chairman has previously put himself on record as opposing such subpoenas. But the subpoena that he proposes today calls for any and all documents reflecting the views of any and all U.S. Attorneys involved in the operation, and also appears to compel production of documents reflecting the views of line attorneys within the Justice Department and the INS.

It is premature because it short-circuits the normal process by which Congressional committees work with the Administration to obtain documents they feel they need to see. The normal process when the Administration asserts a privilege – and in my view the appropriate one – is for Congress to negotiate with the Administration and attempt to reach a mutually agreeable compromise. The Administration has important interests to protect, such as its ability to gain a wide range of input from as many sources as possible, or its interest in protecting line attorneys from undue political pressure. Congress also has an important interest to protect -- its oversight responsibility. Quite often, we reach compromises; indeed, in my experience, the Justice Department has been willing to accommodate the needs of this Committee in investigation after investigation. If no compromise can be reached, and the circumstances otherwise warrant, then it is appropriate for us to subpoena documents or testimony that is necessary for us to do our job. But it is simply inappropriate – and transparently partisan – to subpoena documents that are the subject of ongoing and good-faith negotiations that are still in their early stage. Moreover, it is my understanding that the Justice Department last night offered the Chairman a compromise that would ensure Committee Members and staff the right to see the documents at issue. This offer makes the justification for a subpoena even flimsier.