I am glad that the Chairman and I were able to reach a sensible solution on the resolution that would avoid immediate issuance of subpoenas for testimony and documents from the Department of Justice on the FALN clemency matter. As I said last week, I did not agree with the President’s decision to grant clemency to the FALN prisoners. Furthermore, I have heard nothing to make me change my view that his decision was wrong from the hearings held in this Committee or in the Foreign Relations Committee or in press reports.

On the other hand, I do not believe we should be issuing subpoenas to the Justice Department unless that step is absolutely necessary. I appreciate the Chairman’s commitment to fulfilling this Committee’s oversight responsibilities, and I take those responsibilities very seriously myself. Sometimes the only way to stop the federal bureaucracy from taking a silly or dangerous action is to shine the spotlight of congressional oversight hearings on the matter.

Yet, on this clemency matter, the Department has voluntarily sent the Committee several boxes of documents, totaling over 3000 pages, on the clemency matter. The Department has also already made the Pardon Attorney available to provide an informal briefing to the Committee on clemency procedures.

Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. Not many of us relished our role as jurors during the impeachment trial and are not anxious to reprise that role.

This resolution makes clear that a subpoena will only be issued after consultation with the Ranking Member, if the Justice Department refuses or fails to satisfy three conditions:

-First, the Department must give us a log of privileged documents by September 30th;

-Second, the Department must produce non-privileged documents by September 30th; and

-Finally, the Deputy Attorney General and the Pardon Attorney will make themselves available to testify no later than October 8th on procedures for reviewing clemency petitions; efforts to produce the privilege log and on documents produced to the Committee, to the extent that such efforts or documents are not privileged.

If the Committee had issued these subpoenas as the majority planned at last week’s exec, it was likely that the President would have asserted executive privilege, as he already has on September 16, 1999, in response to a subpoena seeking FALN-clemency documents issued by House Government Reform and Oversight Committee Chairman Dan Burton. Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.

Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.

According to a recent D.C. Circuit case, “[t]he President can invoke the privilege when asked to produce documents or other materials that reflect Presidential decision making and deliberations and that the President believes should remain confidential.” Id., 121 F.3d at 744. As to the scope of this privilege, the court found, in the context of the criminal proceeding, it to cover “communications made by presidential advisers in the course of preparing advice for the President, . . . even when these communications are not made directly to the President.” Id. at 751-52.

I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.”Senate Select Committee v. Nixon , 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process.

The executive privilege may also be construed broadly to permit the government to protect documents that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” 121 F.3d at 737 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)(internal quotation omitted)). This privilege, litigated more often in the FOIA context, is rooted in common law and protects information that is both predecisional and deliberative. It does not protect documents that simply state or explain a governmental decision, or protect material that is purely factual. Id., 121 F.3d at 737. The deliberative process privilege is a qualified one and can be overcome “by a sufficient showing of need.” Id. When this privilege is asserted in the context of a court proceeding, a court will balance factors like relevance, the availability of other evidence, the nature and seriousness of the litigation and the possible future effect on government employees. Again, in my view, this may be a difficult task in this matter given the peculiarly executive nature of the clemency process.

Thus, this resolution, which avoids the issuance of a subpoena should the Justice Department continue to cooperate with the Committee in producing non-privileged documents, is a good result. I expect that no subpoena will need to be issued and that the Justice Department will continue to cooperate in furnishing us with the documents we request, so long as those documents are not privileged and do not relate to any ongoing criminal investigation.

The resolution reflects a constructive plan for proceeding with this Committee’s oversight responsibilities and I commend the Chairman for reaching this consensus resolution.