We first learned that the Committee would be asked to approve yet another subpoena to the Department of Justice last night at 6:00 p.m. This time the Committee is being asked to authorize a subpoena for documents relating the internal debate within the Department on whether to seek appointment of an independent counsel for campaign finance. I would like to note, however, that the Department has already produced voluminous documents responsive to this request so the necessity for this subpoena for purposes other than grand-standing remain a mystery to me. For this reason, I oppose this subpoena.

Attorney General Contempt Citation. Before discussing this subpoena resolution in more detail, I want to take a moment to comment on statements made on the floor of the Senate yesterday warning that the Attorney General may be held in contempt for shortcomings in her production of documents in response to this Committee’s requests. When this Committee first started down the road of issuing subpoena after subpoena, I warned of the dangers. Now, we are dealing with threats of bringing contempt citations against the Attorney General.

There is no justification for such an action. Moreover, as a procedural matter holding the Attorney General in contempt of Congress will require a trial on the Senate floor. This is a spectacle that would consume a good part of the time that could otherwise be used on legislative matters. Obviously, the Majority can set its own priorities in this election year – to legislate or hold yet another Senate trial to end the 106th Congress as it began. In my view, such a spectacle would be an embarrassment to this institution.

Let me point out the obvious problem first. Senator Specter suggested yesterday that the Attorney General should be held in contempt based on the Justice Department’s purported failure to comply with subpoenas issued on party line votes at our April 13th executive business meeting. (May 17, 2000 RECORD, S4033). These subpoenas were not issued to the Department of Justice; they were issued to Charles La Bella and to FBI Director Freeh, personally. If there has been any failure to comply – which I have seen no evidence of – the only people that could be held in contempt are Mr. La Bella and Director Freeh.

Let me point out the second obvious problem. The only way to enforce a contempt citation is by a trial on the Senate floor. I have tried to explain this before to my colleagues on this Committee and I will say it again. The civil contempt mechanism normally available to Congress under 28 U.S.C. § 1365 specifically exempts subpoenas to the executive branch. Obviously, there is also a criminal contempt citation, found at 2 U.S.C. § 192, which offers a misdemeanor punishment for failing to produce documents to Congress, but this procedure requires a referral to the Justice Department. Is the Senator from Pennsylvania suggesting that we make a criminal referral of contempt about the Justice Department to the Justice Department? I assume not.

The only recourse available to us, were we to proceed down this foolish road, is to hold a trial on the Senate floor under our “inherent contempt authority.” I hope that reasonable minds prevail and that we do not see again such an embarrassing spectacle.

The last time the Senate held a contempt trial was 66 years in 1934. At that time, the Senate established a special committee to investigate the awarding of air and ocean mail contracts made by the Postmaster General William MacCracken. The Chairman of the special Committee, Hugo Black, a Member of the Judiciary Committee at the time, submitted a resolution to the Senate after it was approved by the special committee. The Senate approved the resolution, which outlined how the Senate was going to proceed in connection with the citations for contempt.

Let me describe how that contempt trial proceeded, just in case the Committee truly wishes to continue down the course urged by Senator Specter. Some of these procedural steps are all too familiar to us from our recent impeachment trial. Unlike the impeachment trial, which was presided over by the Chief Justice, the Senate’s last contempt trial was presided over by Vice President John Nance Garner. The Vice President also swore in all witnesses, who appeared in before the Senate and testified in the well of the Senate. Members of the special committee and the respondents and their counsels were given desks and seats in the well of the Senate. Senators with questions, who were not members of the special committee, had to submit their questions in writing to the Vice President, who had the clerk read the questions to each witness. The Vice President ruled on any objection to a question if raised. Counsels for the respondents and the Senators from the special committee could examine, cross-examine and re-examine witnesses.

The contempt trial took about one week, and then the Senate met in closed session to deliberate on the matter. At the end of the trial, the Senate voted on resolutions to hold Postmaster General MacCracken in contempt of the Senate and for the Senate Sergeant at Arms to take him into custody to be held in a D.C. jail for 10 days. This resolution was considered by roll call vote and a majority was required for adoption.

The Supreme Court subsequently ruled that the Congress acted within its inherent contempt power and reversed the appellate court’s grant of a habeas corpus petition and discharge of the respondent from custody. Jurney v. MacCracken, 294 U.S. 125 (1945).

This investigation Congress has already been indelibly marked by holding the first Senate impeachment trial in over 130 years. As the Committee presses forward with subpoena after subpoena – and now with serious discussion on the Senate floor about seeking to hold the Attorney General in contempt – we should consider whether we want this Congress to go down in history as the one which held two trials on the Senate floor.

In any event, there is no basis to find anyone in contempt. Even if a contempt citation were issued to the correct person and even if there were a plausible way to enforce a contempt citation, we have not been given any legitimate reason to initiate a procedure to hold the Attorney General in contempt. Yesterday, Senator Specter alleged that the Justice Department has failed to provide documents relating to Mr. La Bella’s recommendation for an independent counsel. That is simply not true. The Justice Department produced on April 20th the following documents relating to the internal debate within the Justice Department on whether the Attorney General should appoint an independent counsel to take over the campaign finance investigations:

- A November, 1997 memorandum from FBI Director Louis Freeh recommending that an independent counsel be appointed;

- A July 16, 1998 memorandum from Charles LaBella, former chief of the Campaign Finance Task Force recommending that an independent counsel be appointed;

- An August 6, 1998 memorandum from James Robinson, Assistant Attorney General for the Criminal Division, attaching a memorandum from Lee Radek, Chief of the Public Integrity Section, and a memorandum from Patty Stemler, Chief of the Appellate Section; and

- An August 25, 1998 memorandum from James Robinson.

The Justice Department has continued to produce hundreds of pages of additional documents both yesterday and today that are sitting in Senate security for any interested member to review.

Moreover, on April 27, 2000, majority and minority staff met with DOJ representatives to work out a list of priorities, recognizing that document productions are more efficiently done on a rolling basis – to make sure that the Subcommittee staff received the high priority documents first. Given this collaborative and cooperative effort, there is no need to cite anyone for contempt.

There is no need for this subpoena. Given the document production by the Department to date and the Department’s continuing cooperation, there is simply no need for a subpoena to the Justice Department for more internal documents and e-mails to rehash the Attorney General’s decision not to seek appointment of an independent counsel under a lapsed statute to take over the Department’s ongoing campaign finance investigation. The proponents of this subpoena have simply not provided an answer to the simple question of why this subpoena is necessary.