H948 CONGRESSIONAL RECORD — HOUSE February 14, 2008 Moran (VA) Ryan (OH) Towns GENERAL LEAVE rather than weaken, the House’s pre- Pence Sestak Watson Ms. SLAUGHTER. I ask unanimous rogatives by demonstrating that we are Peterson (PA) Shays Wilson (NM) Rangel Shimkus Wittman (VA) consent that all Members have 5 legis- serious about citizens resisting the Renzi Simpson Wynn lative days within which to revise and issuance of validly authorized congres- Rohrabacher Solis extend their remarks and insert extra- sional subpoenas. If we countenance a Ruppersberger Tierney neous material into the RECORD. process where subpoenas can be readily b 1157 The SPEAKER pro tempore. Is there ignored, where a witness, under a duly Messrs. RAHALL, MILLER of Flor- objection to the request of the gentle- authorized subpoena, doesn’t even ida, OBERSTAR, and FRANK of Massa- woman from New York? bother to appear, where privilege can chusetts changed their vote from There was no objection. be asserted on the thinnest of reeds and ‘‘yea’’ to ‘‘nay.’’ Ms. SLAUGHTER. Madam Speaker, I the broadest possible manner, then we So the motion to adjourn was re- yield myself such time as I may con- have already lost, and we may be in jected. sume. much more danger than even we be- The result of the vote was announced Madam Speaker, H. Res. 982 provides lieve. as above recorded. that upon its adoption, House Resolu- There’s ample precedent supporting Stated against: tion 979 and House Resolution 980 are the House’s prerogative to initiate a Mr. SESTAK. Madam Speaker, on rollcall hereby adopted. civil action. If we pursue this course of No. 58, I was with my six-year-old daughter, House Resolution 979 recommends action and it proves to be legally incor- Alex, at the hospital. Had I been present, I that the House of Representatives find rect, then we here in Congress, where would have voted ‘‘nay.’’ Harriet Miers and Joshua Bolten, the the laws are passed, can take necessary Ms. SOLIS. Madam Speaker, during rollcall White House Chief of Staff, in con- steps to correct that procedure. If we vote No. 58 on the motion to adjourn, I was tempt of Congress for refusal to comply do not pursue this course of action at unavoidably detained. Had I been present, I with subpoenas duly issued by the Ju- all, we, again, have already lost. would have voted ‘‘nay.’’ diciary Committee. There are some who believe that the f b 1200 court will say that indeed we have no rights here. If that is the case, if that MESSAGE FROM THE SENATE House Resolution 980 authorizes the even should be a possibility, then I A message from the Senate by Ms. Judiciary Committee to initiate or to think we have to say that if the Jus- Curtis, one of its clerks, announced intervene in any judicial proceedings tice Department has become that po- that the Senate had passed without to enforce certain subpoenas. liticized and that weak, then we are in amendment a bill of the House of the Madam Speaker, I’ve had so many re- worse shape in this democracy than we following title: quests for time that I will cut my own know. H.R. 5270. An act to amend the Internal time short. I simply want to give some Madam Speaker, I reserve the bal- Revenue Code of 1986 to extend the funding reasons why it’s important that we’re ance of my time. and expenditure authority of the Airport and here today. Mr. LINCOLN DIAZ-BALART of Airway Trust Fund, and for other purposes. In my 21 years in the House, I have Florida. Madam Speaker, I would like The message also announced that known that there were Members who to thank the gentlelady from New pursuant to section 5 of title I of divi- came to Congress simply hoping that York (Ms. SLAUGHTER) for the time, sion H of Public Law 110–161, the Chair, throughout their career they will al- and I yield myself such time as I may on behalf of the Vice President, ap- ways land on the safe square; not want- consume. points the following Senator as Chair- ing to take a vote that might challenge Madam Speaker, I was in the funeral man of the U.S.-Japan Interparliamen- them in any way, not wanting to take of our distinguished friend and col- tary Group conference for the One Hun- a vote that might require explanation. league, Congressman Lantos, someone dred Tenth Congress: Fortunately, this is the safe square whom I admired very, very much and The Senator from Alaska (Mr. STE- today. who was a personal friend. I was stand- VENS). What we are doing here today is pro- ing by the ranking member of the f tecting the Constitution of the United Rules Committee. States of America, which all of us are At the time during the funeral, the PROVIDING FOR ADOPTION OF H. pleased, when we come here, to raise House was in recess subject to the call RES. 979, RECOMMENDING THAT our hand and swear so to do. It is criti- of the Chair under the understanding HARRIET MIERS AND JOSHUA cally important that we protect the that we would not come back into ses- BOLTEN BE FOUND IN CON- powers of the Congress of the United sion until after the funeral. And I was TEMPT OF CONGRESS, AND States for future generations. It would most disturbed and hurt and pained ADOPTION OF H. RES. 980, AU- be dreadful if a future President, hav- when, even though the funeral was still THORIZING COMMITTEE ON THE ing looked back over the recent events, proceeding and distinguished guests JUDICIARY TO INITIATE OR IN- used it as a precedent. were speaking, the bells rang that the TERVENE IN JUDICIAL PRO- We have a strong case on the merits, House was going back into session and CEEDINGS TO ENFORCE CERTAIN is the first point I want to make. The I had to leave. SUBPOENAS administration’s assertions of execu- Because of my obligation today, I Ms. SLAUGHTER. Madam Speaker, tive privilege are weak, excessively have the assignment, as a member of by direction of the Committee on broad, and unprecedented. We win the the Rules Committee, to be here during Rules, I call up House Resolution 982 executive privilege argument both on this rule. I had to leave the funeral to and ask for its immediate consider- legal grounds and our compelling need be here today. It’s most unfortunate, ation. for requested information. and I’m very, very sorry that the day The Clerk read the resolution, as fol- Aside from prevailing on the merits has begun in that ultimately unfortu- lows: of the executive privilege dispute, en- nate fashion. Resolved, That House Resolution 979 and forcing our subpoenas is part and par- Madam Speaker, today the majority House Resolution 980 are hereby adopted. cel of our current ability to perform ef- proposes that the House consider a rule The SPEAKER pro tempore. The gen- fective oversight. If we accept the that, according to the Parliamen- tlewoman from New York is recognized White House stonewalling in this in- tarian, is unprecedented in the history for 1 hour. stance, the House, in the future, will of this institution. It will prevent any Ms. SLAUGHTER. Madam Speaker, not be able to conduct its oversight. and all debate on two contempt mo- for the purpose of debate only, I yield And every future President can view tions against former White House the customary 30 minutes to the gen- Congress, not as a coequal branch of Counsel Harriet Miers and White House tleman from Florida (Mr. LINCOLN this government, but as subordinate to Chief of Staff Josh Bolten. DIAZ-BALART). All time yielded during the executive. A contempt resolution is a privileged consideration of the rule is for debate The enforcement of the subpoenas in matter because it directly concerns the only. this investigation seeks to strengthen, constitutional rights and privileges of

VerDate Aug 31 2005 03:13 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00004 Fmt 4634 Sfmt 0634 E:\CR\FM\A14FE7.002 H14FEPT1 wwoods2 on PRODPC68 with HOUSE February 14, 2008 CONGRESSIONAL RECORD — HOUSE H949 the House. Chapter 17, section 2 of could gravely undermine Congress’s Act (FISA) is currently being considered by House Practice states, ‘‘Such a resolu- oversight authority, the very authority the Senate. Following the Senate’s passage tion may be offered from the floor as the majority is allegedly seeking to of a FISA bill, it will be necessary for the privileged, because the privileges of the House to quickly consider FISA legislation protect. If Congress loses in the courts, to get a bill to the President before the Pro- House are involved.’’ we could forever disable one of our tect America Act expires in February. The action of the majority today is most important powers, the power of It is our belief that such legislation should most unfortunate. Never before in the oversight. And for what in return, include the following provisions: Require in- history of this House has a contempt Madam Speaker? Harriet Miers is no dividualized warrants for surveillance of U.S. resolution, one of the highest questions longer with the administration; citizens living or traveling abroad; Clarify regarding the rights and privileges of Alberto Gonzales is no longer Attorney that no court order is required to conduct surveillance of foreign-to-foreign commu- this institution, been treated in such General. But the majority, with its ac- an underhanded manner. If this rule is nications that are routed through the United tion today, risks quite a bit. States; Provide enhanced oversight by Con- adopted, there will be no debate, no Let’s remember, Members will not gress of surveillance laws and procedures; vote, and the contempt resolutions will even get the opportunity to vote on Compel compliance by private sector part- magically and automatically be hereby these resolutions today. And that’s not ners; Review by FISA Court of minimization adopted when this rule is adopted. only uncalled for, but absolutely un- procedures; Targeted immunity for carriers Now, if the majority believes the con- precedented. Members will only be able that participated in anti-terrorism surveil- tempt resolution to be correct, the just lance programs. to vote on this rule. Once the rule The Rockefeller-Bond FISA legislation and proper course of action to assert passes, so do the two resolutions and so the rights of this institution would be contains satisfactory language addressing all does the majority’s gamble. these issues and we would fully support that to debate and vote on the resolution. So, back in July, the Judiciary Com- measure should it reach the House floor The majority leadership is subverting mittee cited both Mr. Bolten and Ms. without substantial change. We believe these the rights of every Member of this Miers for contempt of Congress. Now, components will ensure a strong national se- House, allegedly in order to assert the here we are, 8 months later, consid- curity apparatus that can thwart terrorism rights of this House. The irony can es- ering these two contempt resolutions, across the globe and save American lives cape no one. These are the constitu- here in our country. but not really, just the rule. By passing It is also critical that we update the FISA tional rights of this institution that the rule, automatically those contempt are in question, and not one Member of laws in a timely manner. To pass a long- resolution will be passed, after an this institution is going to be allowed term extension of the Protect America Act, emergency Rules Committee meeting as some may suggest, would leave in place a to discuss it or vote, to have a vote on last night. limited, stopgap measure that does not fully these resolutions. So the question is, why the rush? For address critical surveillance issues. We have The majority’s attempt to rush this some reason the majority feels that it within our ability to replace the expiring contempt resolution through the House after 8 months, now this is a pressing Protect America Act by passing strong, bi- will have repercussions that many partisan FISA modernization legislation issue. But I can think of a large list of Members may not be aware of. And so that can be signed into law and we should do I urge my colleagues to pay close at- other issues that I feel that Americans so—the consequences of not passing such a tention because, by this action, the would rather we address; none more measure could place our national security at House majority risks causing great than considering the FISA bill that the undue risk. harm. It risks causing grave harm and Senate approved this week to give the Sincerely, Leonard L. Boswell, ———, Mike Ross, undermining Congress’s oversight au- administration the ability to protect the United States from terrorist at- Bud Cramer, Heath Shuler, Allen Boyd, thority for generations to come, and Dan Boren, Jim Matheson, Lincoln here is why. tacks. The tragic events of September 11, Davis, Tim Holden, Dennis Moore, Earl The administration is claiming exec- Pomeroy, Melissa L. Bean, John Bar- utive privilege, and any attempt to 2001, taught us many lessons, and one row, Joe Baca, John Tanner, Jim Coo- force testimony from the President’s of the lessons we learned that day was per, Zachary T. Space, Brad Ellsworth, former counsel and his Chief of Staff that our Nation must remain aggres- Charlie Melancon, Christopher P. Car- will be fought by the administration sive in our fight against international ney. within the courts. This could very pos- terrorism. We must always stay one The extension of this important pro- sibly lead to the courts ruling that step ahead of those who wish to harm gram is set to expire at 11:59 p.m. to- Congress does not have civil contempt America, and now is not the time to tie morrow night. After that, our ability authority, for example; that the U.S. the hands of our intelligence commu- to conduct surveillance on foreign ter- Attorney, for example, does not have nity. And the majority seeks to leave rorists will be severely hampered. It’s to prosecute criminal citations against today and go home without addressing time to make our country safer, and executive officials or that the Presi- this issue. Congress needs to act today. The House dent’s senior advisors are absolutely The modernization of the foreign in- should vote on the Senate measure, immune from compelled testimony be- telligence surveillance into the 21st and we should do it now, instead of de- fore Congress. Any of those rulings century is a critically important na- bating these contempt motions in an would weaken Congress’s ability to tional priority, and I’m pleased that unprecedented and uncalled-for fash- conduct oversight in the future, and a several of my colleagues on the other ion. weakened Congress means a strength- side of the aisle agree as well. Today I will give all Members of the ened executive. On January 28, 21 members of the House an opportunity to vote on a bi- This is not an extreme or farfetched Blue Dog Coalition sent a letter to the partisan, long-term modernization of theory, Madam Speaker. Administra- Speaker in support of the Senate FISA FISA. I call on my colleagues to join tions from both parties have claimed legislation. The letter states, and I with me in defeating the previous ques- executive privilege for many decades. quote, ‘‘The Senate FISA Rockefeller- tion so that we can immediately move The former Attorney General, for ex- Bond legislation contains satisfactory to concur in the Senate amendment ample, Janet Reno, stated, and I quote, language addressing all these issues, and send the bill to the President to be ‘‘the President and his immediate advi- and we would fully support the meas- signed into law before the current law sors are absolutely immune from testi- ure should it reach the House floor expires and our Nation is at greater monial compulsion by a congressional without substantial change. We believe risk. committee, because subjecting a senior these components will ensure a strong Madam Speaker, I ask unanimous Presidential advisor to the congres- national security apparatus that can consent to have the text of the amend- sional subpoena power would be akin to thwart terrorism across the globe and ment and extraneous material inserted requiring the President himself to ap- save American lives here at home.’’ into the RECORD prior to the vote on pear before Congress on matters relat- Madam Speaker, I will insert the let- the previous question. ing to his constitutionally assigned ter sent by the Blue Dogs to the Speak- The SPEAKER pro tempore. Is there functions.’’ er into the RECORD. objection to the request of the gen- What the majority is doing today is DEAR MADAM SPEAKER: Legislation reform- tleman from Florida? needlessly tempting a court loss that ing the Foreign Intelligence Surveillance There was no objection.

VerDate Aug 31 2005 03:13 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00005 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.014 H14FEPT1 wwoods2 on PRODPC68 with HOUSE H950 CONGRESSIONAL RECORD — HOUSE February 14, 2008 Mr. LINCOLN DIAZ-BALART of the law and beyond the reach of checks and rights, which I think all of us are, you Florida. Madam Speaker, I reserve the balances. would contact the White House coun- balance of my time. The founders did not want that when they sel’s office. Ms. SLAUGHTER. Madam Speaker, I wrote the Constitution, and the voters who elected this Congress do not want it today. Mr. LINCOLN DIAZ-BALART of am pleased to yield 4 minutes to the Florida. Madam Speaker, I yield 4 min- gentleman from Michigan, the distin- Ladies and gentlemen of the House, utes to the distinguished ranking mem- guished chairman of the Judiciary the resolution we are considering today ber of the Judiciary Committee, Mr. is not steps that I take as chairman Committee, Mr. CONYERS. SMITH of Texas. easily or lightly. It’s been 8 months Mr. CONYERS. Madam Speaker, I Mr. SMITH of Texas. Madam Speak- that we’ve tried to negotiate, nine let- will insert into the RECORD from to- er, I rise in strong opposition to the ters, but this is what is necessary to day’s New York Times, ‘‘Time to Vote rule. protect the constitutional prerogatives Contempt.’’ Yesterday, House Democrats said as a coequal branch of government in [From the New York Times, Feb. 14, 2008] that Congress does not have enough this democracy of ours. IME O OTE ONTEMPT time to pass critical FISA moderniza- T T V C I believe the investigation we have tion legislation to keep America safe Alberto Gonzales may be out, but the been engaged in is an important one. from foreign terrorists. Today, we are country is still waiting for a full accounting And it’s not about whether the U.S. At- of how he and his White House patrons cyni- wasting Congress’ time on an issue torneys can serve at the pleasure of the cally politicized the Justice Department. that does nothing to make our Nation President. They clearly can and do. Congress is rightly asking questions about safer. Clearly, the Democratic major- But it concerns whether the American the actions of yet another United States at- ity is out of touch with the needs of torney: New Jersey’s Christopher J. Christie. people can be assured that their laws our intelligence community and is The House also needs to stop procrastinating are being fairly and impartially en- placing Americans’ lives at risk. and vote to hold witnesses in contempt for forced by the United States Depart- refusing to testify in the wider scandal. ment of Justice. That’s why we’re here. On the eve of the expiration of crit- Federal prosecutors must be scrupulously In order to pursue this investigation, ical intelligence legislation, the House nonpartisan. Mr. Christie, a Republican ac- Democratic majority has chosen to put tivist who got his job despite a lack of trial we’ve done what committees in the Congress have traditionally done: extreme partisanship ahead of our and criminal-law experience, has gone up to country’s safety. Apparently, the the line of acceptable behavior—and possibly We’ve sought our documents and testi- Democratic majority cares more about crossed it. mony initially on a voluntary basis He began an investigation of Senator Rob- and through compulsory process only the alleged steroid use of a few baseball ert Menendez, a New Jersey Democrat, late as a last resort. The investigation did players and the personnel decisions of in a hard-fought election campaign. The not begin with the White House but has the White House than they do about charges now appear baseless, but at the time ended up there only after the review of promoting national security. the news provided a big boost to Mr. Last year, Admiral McConnell, the Menendez’s Republican opponent. Mr. thousands of pages of documents and obtaining the testimony and interviews Director of National Intelligence, Christie went against a long Justice Depart- warned Congress that the intelligence ment presumption against opening inves- of nearly 20 current and former Depart- tigations or bringing indictments right be- ment of Justice employees. community was missing two-thirds of fore an election, to avoid affecting the out- all overseas terrorist communications, come. b 1215 endangering Americans’ lives. Congress There are also questions about Mr. We have been open at all times to enacted the Protect America Act to Christie’s decision to award, without com- any reasonable compromise and have close this terrorist loophole. petitive bidding, a lucrative contract to been fully respectful and cognizant of Now House Democrats are going to monitor a company accused of consumer let the Protect America Act expire. If fraud. The winner? Former Attorney General the prerogatives of the executive John Ashcroft, an influential Republican branch. As a matter of fact, I have the act expires, we will return to the who was once Mr. Christie’s boss. Senate and written the White House counsel on no status quo, unable to begin any new House leaders have asked the Government less than nine separate occasions, and foreign intelligence surveillance with- Accountability Office to investigate. talked with him seeking a compromise out a court order and risk losing two- Some of the people who likely know the on this matter. thirds of all foreign intelligence. most about the role politics has played in What I am not open to, as the chair- Today we find ourselves at two very the Bush Justice Department have defied man of Judiciary, is accepting a take- dangerous thresholds: first, expiration Congressional subpoenas to testify. Joshua of legislation vital to this Nation’s na- Bolten, the White House chief of staff, and it-or-leave-it offer which would not Harriet Miers, the former White House coun- allow us access to information that we tional security, the Foreign Intel- sel, contend that they are protected from need, would not even provide for a ligence Surveillance Act. The House testifying by executive privilege. That is not transcript, and would prevent us from Democratic majority has let this legis- enough. They have a legal obligation to ap- seeking any additional information in lation lapse without even allowing a pear before Congress and plead that privilege the future. That is the only proposal straight up-or-down vote on the bipar- to specific questions. we’ve ever received from White House tisan Senate bill approved earlier this The House Judiciary Committee voted in counsel, and so I would hope that all of week by a vote of 68–29. Instead of re- July to hold Mr. Bolten and Ms. Miers in authorizing FISA, the Democratic ma- contempt. The House’s Democratic leader- the Members in this body, as an insti- ship has been trying to figure out the pros tutional matter, recognize the prob- jority chooses to take us to another and cons ever since. The public needs to hear lems inherent in such an approach. threshold, that of a needless constitu- the testimony of these officials (along with Now, some may argue that the stakes tional confrontation in the courts over Karl Rove, who is also refusing to appear), in this confrontation, and I think the dismissal of a handful of United and the full House should vote as quickly as that’s what’s been suggested already, States Attorneys. possible to hold them in contempt. are so high that we cannot afford to We know that the President has the The House should also approve a resolution risk that we might lose. Well, I’d say authority to dismiss U.S. Attorneys. authorizing the Judiciary Committee to go to court to enforce the contempt citations if to them that if we countenance a proc- We know that his executive privilege the current attorney general, Michael ess where our subpoenas can be readily claims are consistent with those made Mukasey, as expected, refuses to do so. ignored, where a witness under a duly by previous Presidents for decades. We The stakes are high. There are people in authorized subpoena doesn’t even have know that by tilting at the executive jail today, including a former governor of to bother to show up or tell us that privilege windmill we risk severely un- Alabama, who have raised credible charges they’re not coming, where privilege dermining the very oversight authority that they were put there for political rea- can be asserted on the thinnest of bases we would want to protect. But most of sons. Congress’s constitutionally guaranteed and in the broadest possible manner, all, we know that reauthorization of powers are also at risk. If Congress fails to enforce its own subpoenas, it would effec- then we’ve already lost. FISA is infinitely more important than tively be ceding its subpoena power. It would This is not a matter of vindicating this spat over executive privilege. also be giving its tacit consent to the dan- the Judiciary Committee; and if you’re Once again, we see why Congress’ ap- gerous idea of an imperial president—above really concerned about Congress’ proval rating is at an historic low. It’s

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00006 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.015 H14FEPT1 wwoods2 on PRODPC68 with HOUSE February 14, 2008 CONGRESSIONAL RECORD — HOUSE H951 because the Democratic majority en- here to say that I am fully supportive utive branch. I know that Members on gages in extreme partisanship and ig- of the prerogatives of the Congress. I both sides of the aisle take that re- nores the people’s business. think the Congress has a right to ask sponsibility very seriously. Oversight I urge my colleagues to oppose this for, receive, demand information from is an institutional obligation to ensure resolution. the administration; but I don’t think against abuse of power, in this case the Ms. SLAUGHTER. Madam Speaker, I that right extends to this case. politicizing of the Department of Jus- yield 3 minutes to the gentleman from I think the idea that we would expect tice. Subpoena authority is a vital tool North Carolina (Mr. MILLER). to get information that is dealing with for that oversight. Mr. MILLER of North Carolina. advice to the President on the status of Today, we seek to require the De- Madam Speaker, I am not overly con- at-will employees is a loser for us on partment of Justice to bring contempt cerned by what the courts ultimately the House floor. It’s a loser for us in motions against Harriet Miers and decide executive privilege covers. The court. It will set back the prerogatives Josh Bolten. When our resolution Bush administration’s claim of execu- of the Congress; and beyond that, I passes, we hope the administration will tive privilege here goes well beyond think the idea that we’re here today, realize that this House of Representa- any privilege ever recognized by any as we see the Foreign Intelligence Sur- tives, this Congress, is serious about court decision, but the Republic can veillance Act get less value to us every our constitutional role of oversight and obviously survive a court decision on day because we’re unwilling to deal will reach a settlement with us over the narrow question of the exact extent with a permanent solution, this is the the documents and testimony at issue. of executive privilege. wrong debate to have at any time. It’s I still hold out the hope that they will But, Madam Speaker, the courts certainly the wrong debate to have at cooperate. must decide. The President cannot de- this time. But if the administration fails to do cide by decree. The President cannot And the idea that somehow if we ex- so, and if it orders the Department of announce with absolute, unreviewable tend that act, if we’ve done all we Justice not to file contempt pro- authority what information the admin- could do by trying to extend an act, a ceedings, we will then, through this istration will provide or withhold. bipartisan group of Members of this The Framers of our Constitution had resolution, have the power ourselves to Congress for various reasons said we go to Federal court and seek civil en- just fought a war against an autocratic don’t want to extend and then we come King. It is inconceivable that they in- forcement of our subpoenas. back today and we take our time focus- The resolution before us today should tended to create an executive with the ing on a contempt charge on two dedi- powers that the Bush administration not be a partisan issue. It should not cated civil servants is the wrong thing be. This isn’t about Democrats or Re- now claims and that the minority now to do at any time, and it’s particularly supports. publicans. Former Congressman Mick- the wrong thing to do at this time. ey Edwards, who once served in the Re- For the entire history of our Repub- Ms. SLAUGHTER. Madam Speaker, I publican leadership, has said that the lic, our courts have recognized that am pleased to yield 1 minute to the dis- enforcement of the subpoenas in the Congress needs information to carry tinguished Speaker of the House, the U.S. Attorney matter is about defend- out our constitutional duties, to decide Honorable NANCY PELOSI of California. what the laws should be, to decide Ms. PELOSI. Madam Speaker, I ing Congress, not a Democratic or a what to appropriate Federal funds for, thank the gentlelady, the Chair of the Republican Congress, but the people’s and that we cannot rely on information Rules Committee, for yielding. Congress, as a separate, independent, that is voluntarily, cheerfully pro- Today is a very sad day for us for and completely equal branch of govern- vided. Congress must have the power to more than one reason. One reason is, ment. require information, including infor- though, the matter that is before us. I The subject of the Judiciary Commit- mation that the President does not had hoped, frankly, that this day would tee’s investigation involves serious and want to provide, that the President never have come, that the respectful credible allegations that Federal law sees as inconvenient or embarrassing. negotiations that should take place be- enforcement was politicized. Political We must inquire into the need for tween article I, the legislative branch, manipulation of law enforcement un- new laws. We must inquire into how ex- and article II, the executive branch, dermines public confidence in our isting laws are being administered. And would have yielded the information criminal justice system. Congress must the Supreme Court said half a century that is necessary for Congress to make find out what happened not just in ago that Congress’ investigative pow- its decisions. terms of those who were fired but also ers are never greater than when inquir- I thank Chairman CONYERS for his whether improper criteria were used to ing into abuse of authority or corrup- distinguished lifetime leadership of retain the remaining U.S. Attorneys. tion by Federal Government agencies. protecting the Constitution of the b 1230 Madam Speaker, the allegations here United States. We all take that oath of are very serious. Does the minority office, every single one of us who We must have the information in think that these are trivial allega- serves. Indeed, every person who serves order to protect against political ma- tions? Prosecutorial decisions cannot in any civic capacity in our country nipulation of law enforcement, and it be used to reward political friends or does so. Today, we are honoring our must be provided in terms consistent punish enemies. Elections have con- oath of office with this resolution that with our constitutional obligations. sequences, Madam Speaker; but they is before us. The so-called White House offer re- should never have these consequences, Again, I rise in sadness, not in con- fused to permit even a transcript of not in America. Criminal prosecutions frontation. This is not a conflict that any interviews and to permit questions guided by political concerns are fun- the Congress has sought. In fact, as the on discussions and required the com- damentally incompatible with democ- distinguished chairman of the Judici- mittee to promise in advance not to racy and the rule of law. ary Committee has indicated, the com- seek further information. This is be- The two resolutions that we are con- mittee has repeatedly sought to avoid yond arrogance; this is hubris taken to sidering will allow the courts to decide confrontation, repeatedly making re- the ultimate degree. these questions of what information quests that have been ignored or re- As former Congressman Edwards, Congress can require in the discharge jected by the White House on com- again I remind, a former member of the of our constitutional duties. It will pletely unacceptable terms. Republican leadership in the House, allow important constitutional ques- The Judiciary Committee, indeed the said, ‘‘No Congress, indeed, no lawyer, tions to be decided, as they should be Congress, is clearly entitled to this in- would ever agree to such an outrageous decided in a democracy, by the courts. formation. It involves neither national demand.’’ Mr. LINCOLN DIAZ-BALART of security information nor communica- Madam Speaker, we must continue in Florida. Madam Speaker, I yield 2 min- tions with the President. The President our efforts to restore our Nation’s fun- utes to the distinguished minority has no grounds to assert executive damental system of checks and bal- whip, Mr. BLUNT of Missouri. privilege. ances. This Congress and future Con- Mr. BLUNT. Madam Speaker, I thank On the other hand, Congress has the gresses must have the ability to con- the gentleman for yielding, and I’m responsibility of oversight of the exec- duct meaningful oversight. It is the

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00007 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.017 H14FEPT1 wwoods2 on PRODPC68 with HOUSE H952 CONGRESSIONAL RECORD — HOUSE February 14, 2008 hallmark of our constitutional democ- new era of openness, an opportunity for the law when it dismissed seven U.S. racy that has served us well for more free-flowing debate, we will, with pas- attorneys in 2006, that may be the issue than two centuries. sage of this resolution, be on the brink at some point in time, but unless we Thank you, again, Chairman CON- of seeing the 110th Congress, and I will have the information to get to that YERS, for your leadership, Congress- say to the distinguished chair of the point, such a question will be moot. woman LINDA SA´ NCHEZ, chairwoman of Committee on Rules, since she is pre- Nor is this a partisan clash between a the subcommittee that dealt with this siding over this, Madam Speaker, we Democratic House and a Republican issue, Chairwoman LOUISE SLAUGHTER, will have, this Congress, adopted more President. Rather, the basic issue be- for the important work of the Rules closed rules than any Congress in the fore this House is this: whether this Committee on all of this. To the new history of the Republic. body and the committee system, which Members of Congress, on this issue of I urge a ‘‘no’’ vote on this rule. And is central to our duties to perform article I led by JOHN YARMUTH, article I urge strong support for the resolution meaningful and vigorous oversight, can I, protecting the prerogatives of the which will allow us to finally bring simply be ignored by the executive Congress of the United States, we about modernization of the Foreign In- branch when this body seeks testimony thank our new Members for their lead- telligence Surveillance Act. and documents relevant to an impor- ership honoring their oath of office. Ms. SLAUGHTER. Madam Speaker, I tant public policy controversy. And BRAD MILLER, an expert on the yield 1 minute to the distinguished ma- As the New York Times noted this subject in the Congress, has been a tre- jority leader of the House, Mr. HOYER morning, ‘‘If Congress fails to enforce mendous resource to us as well. of Maryland. its own subpoenas, it would effectively Let us uphold our oath of office by Mr. HOYER. I thank the gentlelady be ceding subpoena power. It would voting for this resolution, my col- for yielding. also be giving its tacit consent to the leagues. Let us restore the rule of law. We are dealing, in these days, with dangerous idea of an imperial Presi- Let us act to protect and defend our serious issues. And serious people have dent, above the law, and beyond the constitution by ensuring appropriate been considering these issues in com- reach of checks and balances.’’ congressional oversight in all areas es- mittee, and we will now consider them What profit it a Nation if we include sential to the well-being of the Amer- on the floor. This matter has been checks and balances within our con- ican people. pending now for over half a year. stitutional framework to protect our I urge my colleagues to support this Madam Speaker, in 1885, a young country’s freedom, and more impor- resolution. scholar wrote an influential book tantly, our people’s freedom, if, in fact, Mr. LINCOLN DIAZ-BALART of about the United States Congress enti- we honor it only in the breach? And as Florida. Madam Speaker, I yield 2 min- tled ‘‘Congressional Government.’’ And Bruce Fein, the constitutional scholar utes to the distinguished ranking mem- in that book he offered the following and former Department of Justice offi- ber of the Rules Committee, Mr. observations about legislative branch cial during the Reagan administration, DREIER of California. oversight, and he said this, ‘‘Quite as has stated, ‘‘If Congress shies from vot- (Mr. DREIER asked and was given important as legislation is vigilant ing for contempt in this case, secret permission to revise and extend his re- oversight of the administration. Not government will become the rule.’’ marks.) any particular administration, but of This is perhaps the most secretive ad- Mr. DREIER. Madam Speaker, the other coequal branch of govern- ministration in our history. This is a Speaker PELOSI is absolutely right, ment.’’ danger to our democracy. this is a very, very sad day for all of us. He continued, ‘‘It is the proper duty He went on to say ‘‘that Congress We just memorialized our colleague, of a representative body to look dili- would be reduced to an ink blot on the Tom Lantos, and we have come back gently into every affair of government constitutional map.’’ That is why today to deal with an issue which I be- and to talk much about what it sees. every one of us, every one of the 435 of lieve is one that creates the potential The informing function of Congress, us who have sworn an oath to defend to undermine the power of the first not just informing ourselves, but in- the Constitution of the United States branch of government. forming the American public as well, and uphold its laws, ought to vote for Now, as has been said, if we looked at the informing function of Congress this resolution, because it does not the potential court challenge that we should be preferred even to its legisla- matter whether there is a Republican can see, this notion that has been put tive function.’’ An interesting observa- President or a Democratic President, forward by our former colleague, Mr. tion. Many years later, in 1913, that for them to refuse to respond to a sub- Edwards, that we are, in fact, a sepa- young scholar, Woodrow Wilson, be- poena of the Congress of the United rate, independent, and equal branch of came President of the United States. States, and to even come here and government could be thrown out the Congressional oversight of any ad- claim a privilege, which they have not, window. ministration is absolutely imperative our democracy will be lessened. The other thing that’s very sad about to the proper functioning of our gov- I urge my colleagues to carry out the today, Madam Speaker, is the fact that ernment, to our system of checks and intent and the vision of the Founders we are here with an absolutely unprec- balances, and to the fulfillment of our and the writers of our Constitution. edented rule. Never before in the his- constitutional duty. A President who is Support this resolution. tory of the Republic has there been forced to answer for his administra- Mr. LINCOLN DIAZ-BALART of such a rule. This rule actually under- tion’s actions, decisions, and conduct is Florida. Madam Speaker, I would re- mines the deliberative nature of the a President who is less likely to amass mind our colleagues that one of the people’s House. What we’re doing is we power beyond that which the Constitu- reasons why the minority is outraged are saying that there will be no debate tion proscribes for his office or to im- with the conduct of the majority today whatsoever, no debate whatsoever on peril the welfare of our republic form is that we are not even allowed to de- these very important two contempt of government. And that is the con- bate nor vote on the contempt resolu- resolutions, no debate whatsoever. stitutional interest that today’s reso- tions, but rather on a rule that will When this rule is adopted, we will see lution addresses. self-adopt, automatically adopt even those two measures hereby adopted, I support the rule before us because I resolutions of this magnitude of impor- meaning that there will be no chance believe in a system of checks and bal- tance; totally unprecedented and for us to, as a House, have the kind of ances in which no branch holds itself uncalled for. debate that we did for an hour upstairs above the constitutional objectives of Madam Speaker, at this time, I yield in the Rules Committee. And so, we’re the sharing of authority, which the 2 minutes to the distinguished gen- throwing out the window the notion of Founders wisely believed was essential tleman from Wisconsin (Mr. SENSEN- participation in a free and open debate. to protect against the abuse of that au- BRENNER). And Madam Speaker, the other thing thority by any one of those branches. Mr. SENSENBRENNER. I thank the that is very sad about today is that, The issue before this body is not fun- gentleman for yielding. while we were promised 1 year ago last damentally whether the current ad- Madam Speaker, I rise in opposition month a new direction for America, a ministration acted properly and within to this resolution.

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00008 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.020 H14FEPT1 wwoods2 on PRODPC68 with HOUSE February 14, 2008 CONGRESSIONAL RECORD — HOUSE H953 Yesterday, the Democratic leadership to be in court and they have to assert tantly reached today’s vote to hold tried to sweep a bipartisan FISA bill their fifth amendment right after they former White House Counsel Harriet under the rug, and today they’re trying are asked a question. The same thing Miers and White House Chief of Staff to throw the President’s Chief of Staff applies here. They have to appear be- Joshua Bolten in contempt of Con- in jail. I am curious to know what hap- fore Congress and at least assert that gress. pened to the pledge of partnership with right before they can claim some kind Since March 9 of 2007, Chairman CON- Republicans in Congress, and with the of privilege; otherwise, the entire sys- YERS and I have patiently negotiated in President, and not partisanship. tem falls apart. good faith to reach an accommodation The vote we are going to take this Oh, today is a very important day for with the White House for documents afternoon has been festering since Congress. We are taking up a very, and testimony relevant to the U.S. At- July, when the House Judiciary Com- very important measure, and that is is torney investigation. mittee decided to vote on holding the Constitution going to be followed Mr. CANNON. Madam Speaker, will and are we going to do our constitu- the gentlewoman yield? White House officials in contempt. ´ This pandering to the left reflected a tional job. Ms. LINDA T. SANCHEZ of Cali- political and unnecessary escalation on Mr. LINCOLN DIAZ-BALART of fornia. Under normal instances, I the part of the Democratic majority. Florida. Madam Speaker, I yield 2 min- would, but I don’t have the time. I The contempt resolution was ap- utes to the distinguished Member from apologize. proved on a straight party line vote in California (Mr. DANIEL E. LUNGREN). Mr. CANNON. I hope the gentle- woman will remain on the floor so that the committee, and today’s vote will be 1245 b on my time I will be able to yield for a the same. The threat of losing in court Mr. DANIEL E. LUNGREN of Cali- should be enough for this institution to colloquy. fornia. I thank the gentleman for yield- Ms. LINDA T. SA´ NCHEZ of Cali- back down from this escalation. ing. fornia. I apologize to the gentleman, My concern with the Democratic Madam Speaker, I have prepared a but this is my time. leadership’s course of action is that it whole series of remarks to respond to The SPEAKER pro tempore. The gen- will likely weaken Congress’ position the comments made on the floor as to tlewoman will proceed. in situations where we disagree with the substance of the concept citation. Ms. LINDA T. SA´ NCHEZ of Cali- the President on matters of executive Unfortunately, because we’re only able fornia. Madam Speaker, we have pa- privilege. If the Speaker and the House to debate the rule, we don’t have time tiently negotiated in good faith to Judiciary Committee chairman really to do that. Let me just try to make a reach an accommodation with the cared about getting to the bottom of couple of points here very quickly. White House for documents and testi- this matter, they could have taken the First of all, the question is, is this mony relevant to the U.S. Attorney in- nonpolitical route, such as directing the most important thing we should be vestigation. Unfortunately, the White the House Office of General Counsel to doing today? Is there a time limit on House has stubbornly refused to move file a civil lawsuit with the U.S. Dis- the action of the House of Representa- off its opening position, an unreason- trict Court for the District of Colum- tives that requires us to act on this able offer that testimony be given bia. This proposal, which I suggested today? And the answer is no. This without an oath or a transcript and last summer, would be a legitimate ef- doesn’t expire today. It doesn’t expire that any testimony and documents fort to resolve our issues with the tomorrow. It doesn’t expire the next provided exclude internal White House President in an arena where the Con- day. We are able to do this anytime communications. To have negotiations, gress would have equal footing. until the end of this Congress. concessions by both sides are nec- So, what’s next? How will we reha- But what does expire? The Protect essary. Otherwise, it’s just capitula- bilitate our image to give the public America Act. It expires at midnight to- tion. confidence in the Congress? I don’t morrow. We should be doing the Na- I was extremely disappointed that think throwing the President’s Chief of tion’s business with respect to that, Ms. Miers, Mr. Bolten, and the White Staff in jail will do the trick. rather than this. If, in fact, we are seri- House based their refusal to comply It amazes me that the Democratic ous about the war on terror; if, in fact, with our subpoenas on sweeping claims leadership would bring such a divisive we are serious about gathering that in- of executive privilege and immunity matter to the floor so soon after re- formation which is necessary to pro- that some experts have called ceiving accolades for working so well tect us against those who would harm ‘‘Nixonian in breadth.’’ The sub- with the minority to pass an economic us and those we represent, we would be committee carefully considered these stimulus package. acting on the FISA Act reconstitution claims in two separate meetings last I encourage my colleagues to vote here today. We’d be acting on the Sen- year. In detailed rulings, I found that ‘‘no’’ on this resolution. ate bill. That’s the time limit. these claims were not properly asserted Ms. SLAUGHTER. Madam Speaker, I There is no reason for scheduling this and were not legally valid. Even if the am pleased to yield 2 minutes to the today. We have had 8 months to sched- claims were properly asserted and le- gentleman from New York, a member ule this. But yet we find that this is gally valid, the strong public need for of the Rules Committee, Mr. ARCURI. what we’re going to be dealing with be- information about the U.S. Attorney Mr. ARCURI. Madam Chairman, fore we go home. And we’re going to firings substantially outweighs the as- today is not about a FISA debate. Ac- say it is unimportant as to whether or sertion of executive privilege here. tually, it’s not even about whether or not we would continue with the Pro- I was also very disappointed to hear not Ms. Miers and Mr. Bolten have a tect America Act. Unimportant except from Attorney General Mukasey in tes- right to claim an executive privilege. in the opinion of the number one intel- timony before the Judiciary Com- What it is about is does a person in this ligence officer in the United States, mittee last week that he will direct the country have to follow the laws of the Admiral McConnell, who served under D.C. U.S. Attorney not to comply with United States, follow the rule of law, Democrat and Republican administra- the contempt statute, which provides follow the Constitution and abide by a tions, who told us if we allow this to go that the U.S. Attorney ‘‘shall’’ refer legally administered subpoena. down, that is, the Protect America the contempt citation to a grand jury And I guess the best way to talk Act, we will close our eyes for 60 per- for action after receiving it from the about that is to draw a comparison. cent of the legitimate terrorist targets Speaker. Under the Constitution, a person has around the world prospectively. Members on both sides of the aisle an absolute right to claim their fifth What are we doing here? should recognize the gravity of this amendment right against self-incrimi- Mr. ARCURI. Madam Speaker, I yield vote. If the executive branch is allowed nation. So, if a person is subpoenaed to 21⁄2 minutes to the gentlewoman from to simply ignore congressional sub- testify in a criminal matter, they can’t California, the Chair of the Commer- poenas while Congress stands idly by, call the judge up and say, ‘‘Judge, I cial and Administrative Law Sub- we will have abdicated our role of over- think I might have a fifth amendment committee (Ms. LINDA T. SA´ NCHEZ). sight of the executive branch and un- problem here. I’m not going to show Ms. LINDA T. SA´ NCHEZ of Cali- dermined our system of checks and bal- up.’’ The judge will tell them they have fornia. Madam Speaker, we have reluc- ances. Further, our lack of action will

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00009 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.022 H14FEPT1 wwoods2 on PRODPC68 with HOUSE H954 CONGRESSIONAL RECORD — HOUSE February 14, 2008 be cited by future Presidents as jus- ing that indicates that anybody has tee’s resolution recommending that the tification for questionable claims of ex- lied or that there is a reason that the House of Representatives find Harriet Miers ecutive privilege. White House has been involved. And, and Joshua Bolten in contempt of Congress. I hope that my colleagues on the Each of us has had substantial experience in therefore, there is no reason that I can the Executive Branch, including in the Office other side will stand together in sup- understand, and I have asked many of Legal Counsel. Charles J. Cooper served as port of this body’s institutional prerog- times on the record in committee hear- Assistant Attorney General for the Office of atives. Time is long overdue for Con- ings what those reasons are, what it is, legal Counsel from November 1985 through gress to reassert itself as a co-equal what the discrepancies, what the prob- July 1988. Howard C. Nielson, Jr. served as branch of government. lems are for which we need to subpoena Deputy Assistant Attorney General for the I urge support of the rule and House people in the White House and create a Office of Legal Counsel from June 2003 through August 2005. In addition, our law resolutions 979 and 980. showdown, a showdown between our in- firm has successfully litigated a number of Mr. LINCOLN DIAZ-BALART of stitution and the White House. And I significant separation of powers cases. Florida. Madam Speaker, I yield 41⁄2 ask the gentleman, as the chairman of We have reviewed the opinions of the Jus- minutes to the gentleman from Utah the committee has just risen to his tice Department regarding the assertion of (Mr. CANNON). feet, and I would love to yield to him if executive privilege and testimonial immu- Mr. CANNON. Madam Speaker, I he is willing to answer that question: nity in response to the Miers and Bolten sub- would ask the chairman of the Sub- poenas. We have also reviewed the com- What are the discrepancies? mittee report relating to this matter, the ad- committee on Commercial and Admin- Mr. CONYERS. We don’t know be- ditional views of the Chairman and Sub- istrative Law, who has oversight of cause we can’t get one sheet of paper committee Chair, and the minority views. this matter and which committee I from Mr. Bolten and nobody else will The positions asserted by the Administra- rank on, to remain on the floor so we talk to us. That’s precisely why we tion reflect the longstanding and considered could have a colloquy on this issue. were forced to this position, sir. views of the Executive Branch, views repeat- It appears that she has left the floor. Mr. CANNON. Reclaiming my time, edly affirmed by Administrations of both That’s unfortunate. Her response to my Madam Speaker, I appreciate the gen- parties. These views were held during our inquiry about yielding was that she tleman’s position. The gentleman has tenures in the Office of Legal Counsel, and we continue to believe that they are sound. didn’t have enough time, and we are said that eloquently in the past on Moreover, we believe that a decision by the standing here today with very little many occasions. But we are now talk- House to hold Ms. Miers and Mr. Bolten in time to debate an issue that is dra- ing about getting a subpoena, enforcing contempt would likely be a legally futile matically important. It’s important for a subpoena in a criminal process gesture that could ultimately undermine this institution, and, by the way, peo- against people for whom we have no Congress’s ability to obtain information ple on both sides of the aisle have said evidence, as far as I can tell, and I will from the Executive Branch. and the Speaker and majority leader As an initial matter, even if the House be happy to yield to the gentleman if votes to hold Ms. Miers and Mr. Bolten in have both made a point of how impor- he has evidence, no evidence that they contempt, and even if a contempt citation is tant this issue is to this body. It is vi- have been involved. referred to the appropriate United States At- tally important to me that we retain There are no discrepancies in the tes- torney, the United States Attorney will have the rights of this body as it relates to timony that we have had before us, is no choice but to decline to take action on administration, whether that’s a Re- there? the matter. It has long been the position of publican administration or Democratic Mr. CONYERS. If the gentleman is so the Executive Branch that ‘‘the criminal administration. kind to yield again, we don’t have any contempt of Congress statute does not apply evidence. We aren’t accusing them of to the President or presidential subordinates In his opening statements, Mr. DIAZ- who assert executive privilege.’’ Application BALART gave a quote from former At- anything, sir. We’re merely seeking the of 28 U.S.C. 458 to Presidential Appointments torney General Janet Reno in which documents that could be relevant to of Federal Judges, 19 Op. O.L.C. 350, 356 (1995) she said there was no right to do what the determination of whether the De- (opinion of Assistant Attorney General Wal- we’re trying to do today. I would have partment of Justice has been politi- ter Dellinger). As then-Assistant Attorney loved to have asked the chairman on cized. General Theodore B. Olson explained the po- the Subcommittee on Commercial and Mr. CANNON. Reclaiming my time, sition of the Executive Branch in 1984: Madam Speaker, I appreciate the gen- ‘‘First, as a matter of statutory interpreta- Administrative Law if she thought tion reinforced by compelling separation of that was the case or if she disagreed tleman’s candor, and I appreciate the powers considerations, we believe that Con- with what the scope of the right of the very gracious way the gentleman has gress may not direct the Executive to pros- administration is to not appear. handled this whole investigation. But ecute a particular individual without leaving Obviously, there is a sense in this it comes back down to this: we have no any discretion to the Executive to determine case that we ought to get something evidence. whether a violation of the law has occurred. done; and, in fact, we have done a great Let me just finish by saying that Second, as a matter of statutory interpreta- deal. We have had hundreds of hours of having seen this, if there was a con- tion and the constitutional separation of spiracy, and I know that the majority powers, we believe that the contempt of Con- depositions, literally tens of thousands gress statute was not intended to apply and of pages, tens of thousands of e-mails. believes there is something evil that is could not constitutionally be applied to an We have asked questions of everyone happening out there, then we ought to Executive Branch official who asserts the involved in the matter in the case. And have given enough time and enough President’s claim of executive privilege in what have we come up with? I wanted context to be able to track that down this context.’’ to ask the chairman what the evidence and prove that this administration has Prosecution for Contempt of Congress of an Executive Branch Official Who Has As- we are going to present to the U.S. At- done something wrong. As opposed to what the gentleman serted a Claim of Executive Privilege, 8 Op. torney is that he can take and say, I O.L.C. 101, 102 (1984); see also id. at 119, 129 have a need to get this information has just said, we have had a number of (documenting similar positions taken by the from these people in the administra- statements by the chairman of this Eisenhower and Ford Administrations). tion who won’t show up to the House. I committee saying that there is evi- While the Chairman and Subcommittee have a need to understand these facts dence of corruption. But we have had Chair note that Justice Department opinions which seem to be in confusion. I have a no evidence of corruption, none at all such as the Dellinger and Olson memoranda are not binding on Congress or the Judiciary, need to decide what between these two adduced anywhere from all the inves- tigations we have done, and there is no such opinions are binding on members of the different stories is the truth. Executive Branch—including the United But we haven’t said that to him. We basis for these contempt citations. I States Attorney to whom a contempt cita- don’t have evidence that we can give ask that we vote against them. tion would be referred. Furthermore, because the U.S. Attorney. What we are giving COOPER & KIRK, a prosecutor’s ‘‘decision whether or not to to him is a desire to continue a witch Washington, DC, December 4, 2007. prosecute . . . generally rests entirely in his hunt which has produced up to today Hon. LAMAR S. SMITH, discretion,’’ Wayte v. United States, 470 U.S. 598, 607 (1985), it is highly unlikely that Con- zero, nothing, as far as I can tell; and Ranking Member, Committee on the Judiciary, House of Representatives, Washington, DC. gress could obtain any sort of judicial review I’ve been in every meeting, every hear- DEAR MR. SMITH: We write in response to of the United States Attorney’s refusal to ing, and followed on every single depo- your request for our views regarding the submit the contempt citation to a grand sition that we have had. There is noth- legal issues raised by the Judiciary Commit- jury.

VerDate Aug 31 2005 03:13 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00010 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.024 H14FEPT1 wwoods2 on PRODPC68 with HOUSE February 14, 2008 CONGRESSIONAL RECORD — HOUSE H955 Assuming Congress could somehow obtain gress and the Executive, it has required Con- This view also reflects the position of the judicial review of the claim of executive gress to establish that the information it Johnson and Truman Administrations. See privilege, we believe that it could not over- seeks ‘‘is demonstrably critical to the re- History of Refusals, 6 Op. O.L.C. at 771–72, come that claim on the facts presented here. sponsible fulfillment of [Congress’s] func- 777–78. And as documented by the Justice De- To be sure, there is a paucity of judicial au- tions’’ to overcome even a generalized claim partment in its opinion regarding Ms. Miers, thority resolving executive privilege dis- of executive privilege. Senate Select Com- the Executive Branch—including, again, Ad- putes between Congress and the Executive; mittee on Presidential Campaign Activities v. ministrations of both parties—have long still, the following factors should persuade a Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en taken the position that the same immunity court to uphold the claim of executive privi- banc). To satisfy this burden, it is not extends to former Presidents and their Advi- lege here. enough for Congress to show that the infor- sors. See Memorandum from Stephen G. First, the threshold arguments that execu- mation it desires ‘‘may possibly have some Bradbury, Principal Assistant Attorney Gen- tive privilege has not been, or cannot be, arguable relevance to the subjects it has in- eral Office of Legal Counsel, Re: Immunity properly invoked to protect the communica- vestigated and to the areas in which it may of Former Counsel to the President from tions at issue here appear insubstantial. The propose legislation.’’ Id. at 733. Rather, it Compelled Testimony at 2–3 (July 10, 2007) Chairman and Subcommittee Chair have must identify ‘‘specific legislative decisions (documenting positions taken by the Tru- identified no authority—and we are aware of that cannot responsibly be made without ac- man and Nixon Administrations). none—requiring the Executive Branch to cess to materials uniquely contained in’’ the In short, we believe the President’s asser- submit a privilege log to sustain a claim of documents or testimony it seeks. Id. Fur- tions of executive privilege and testimonial executive privilege in a legislative pro- thermore, decisions such as United States v. immunity in this instance are entirely con- ceeding. The letter sent to Chairman Con- Nixon, 418 U.S. 683 (1974), and In re Sealed stitutionally sound. We also believe that a yers by Counsel to the President Fielding, Case that limit executive privilege to accom- determination by the House to hold Mr. written ‘‘at the direction of the President’’ modate the special needs of the criminal jus- Bolten and Ms. Miers in contempt of Con- to ‘‘advise and inform [Congress] that the tice system offer little support for Congress gress would be futile as a legal matter and President has decided to assert Executive here. As the D.C. Circuit has explained: might ultimately prejudice Congress’s abil- Privilege,’’ Letter of Fred F. Fielding to ‘‘There is a clear difference between ity to obtain information from the Executive Chairmen Leahy and Conyers at 1 (June 28, Congress’s legislative tasks and the responsi- Branch. 2007), plainly suffices to invoke executive bility of a grand jury, or any institution en- Sincerely, privilege under controlling precedent. See In gaged in like functions. While fact-finding by CHARLES J. COOPER. re Sealed Case, 121 F.3d 729, 744, n.16 (D.C. a legislative committee is undeniably a part HOWARD C. NIELSON, Jr. Cir. 1997). And In re Sealed Case clearly es- of its task, legislative judgments normally Ms. SLAUGHTER. Madam Speaker, I tablishes that executive privilege extends to depend more on the predicted consequences yield 3 minutes to the gentleman from ‘‘communications of presidential advisors of proposed legislative actions and their po- Kentucky (Mr. YARMUTH). which do not directly involve the President,’’ litical acceptability, than on precise recon- Mr. YARMUTH. I thank the distin- id. at 751, and protects ‘‘communications struction of past events; Congress frequently that these advisors and their staff author or legislates on the basis of conflicting infor- guished chairwoman from the Rules solicit and receive in the course of per- mation provided in its hearings. In contrast, Committee, a native Kentuckyan and forming their function of advising the Presi- the responsibility of the grand jury turns en- someone who has always stood for the dent on official government matters’’— tirely on its ability to determine whether finest traditions of this body. whether or not the President is aware of there is probable cause to believe that cer- In November of 2006, the American those communications. Id. at 752. Given the tain named individuals did or did not com- people decided to give the Democrats essential role of the President in appointing mit specific crimes.’’ the control of the House of Representa- and removing United States Attorneys, com- Senate Select Committee, 498 F.2d at 732. tives and the Congress. I was fortunate Cf. Nixon, 418 U.S. at 713 (‘‘Without access to munications to or from senior presidential enough to be elected as one of the 43 advisors regarding the replacement of United specific facts a criminal prosecution may be States Attorneys plainly fall within the totally frustrated.’’). new Democrats in that class. scope of the privilege recognized by In re Given the voluminous documentary evi- And many people have said, in exam- Sealed Case. As the D.C. Circuit explained, dence and testimony already provided by the ining that election, oh, we were elected where ‘‘the President himself must directly Executive Branch—not to mention the addi- because of the war in Iraq. But that’s exercise the presidential power of appoint- tional documents and testimony that the not what I heard. What I heard when I ment and removal . . . there is assurance White House has offered to make available in was campaigning in 2006, and I think that even if the President were not a party attempt to resolve this controversy, see e.g., most of my colleagues in this class to the communications over which the gov- Letter of Fred F. Fielding to Chairmen would say the same thing, is we want ernment is asserting presidential privilege, Leahy and Conyers at 1–2 (June 28, 2007)—it seems clear the lingering factual ambiguities to return the Government to the tenets these communications nonetheless are inti- of the Constitution. We want to restore mately connected to his presidential deci- identified by the Committee Chairman and sionmaking.’’ Id. at 753. the Subcommittee Chair are inadequate to the checks and balances that the Second, there is nothing novel or unprece- overcome even a generalized claim of execu- Founding Fathers prescribed. We want dented in the claim of privilege here. On the tive privilege under controlling precedent. to make sure that this President and contrary, many historical precedents sup- And a judicial determination to that effect every President is held accountable, is port the Administration’s refusal to disclose would plainly prejudice Congress’s ability to not above the law. confidential communications and delibera- obtain sensitive information from the Execu- So when we came here, one of the tions relating to the appointment or dis- tive Branch not only in this investigation things we did was to start talking missal of executive officers. For example, as but in future investigations as well. about article I, which established that early as 1886, the Cleveland Administration The Justice Department’s determination rejected Congress’s attempt to obtain com- that Ms. Miers is immune from compulsion all legislative powers herein granted munications relating to the dismissal of a to testify before Congress likewise reflects shall be vested in a Congress of the district attorney (the historical predecessor the longstanding and consistent position of United States. We started wearing of today’s U.S. Attorneys). As President the Executive Branch. As Attorney General these buttons, article I buttons, and we Cleveland explained, ‘‘the documents related Reno explained in a formal opinion to the offered them to Members of both par- to an act (the suspension and removal of an President, ‘‘It is the longstanding position of ties, hoping that this would not be a Executive Branch official) which was exclu- the executive branch that ‘the President and partisan issue and not be an expression sively a discretionary executive function.’’ his immediate advisors are absolutely im- of partisanship but, instead, a respect mune from testimonial compulsion by a Con- History of Refusals by Executive Branch Of- for the integrity of this institution. ficials to Provide Information Demanded by gressional committee.’’’ Assertion of Execu- Congress, 6 Op. O.L.C. 751, 767 (1982) (opinion tive Privilege with Respect to Clemency De- Unfortunately, most of my col- of Assistant Attorney General Theodore B. cision, 23 Op. O.L.C. 1, 4 (1999) (quoting leagues on the other side chose not to Olson); see also id. at 758–759 (discussing Memorandum from John M. Harmon, Assist- wear these buttons. They have chosen similar refusals to provide information re- ant Attorney General, Office of Legal Coun- to make this a partisan issue in spite garding the appointment or removal of exec- sel, Re: Executive Privilege at 5 (May 23, of the fact that during the last 6 years utive officers by the Jackson and Tyler Ad- 1977). This view is not only that of the cur- before we took control of the Congress, ministrations). Furthermore, D.C. Circuit rent Administration and the Clinton Admin- no subpoenas were issued against this precedent addressing executive privilege ex- istration. As documented in Attorney Gen- President. No efforts to hold him ac- eral Reno’s opinion, this view also reflects pressly recognizes that ‘‘confidentiality is countable were made, in spite of the particularly critical in the appointment and the position of the Reagan, Carter, and removal context.’’ In re Sealed Case, 121 F.3d Nixon Administrations. See id. (collecting fact that in the prior administration a 729, 753 (D.C. Cir. 1997). opinions from Assistant Attorneys General thousand subpoenas were offered by the Third, when the judiciary has adjudicated Theodore B. Olson, John M. Harmon, Roger Republican Congress to the Democratic executive privilege disputes between Con- C. Crampton, and William H. Rehnquist). President.

VerDate Aug 31 2005 03:13 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00011 Fmt 4634 Sfmt 0634 E:\CR\FM\A14FE7.008 H14FEPT1 wwoods2 on PRODPC68 with HOUSE H956 CONGRESSIONAL RECORD — HOUSE February 14, 2008 So, unfortunately, this has become a to support the United States, not the tion to the many infirmities and deficiencies partisan issue when it shouldn’t be. To terrorists, by passing the Senate in the manner in which the White House me this is all about institutional integ- amendments to H.R. 3773. Counsel has sought to assert executive privi- lege, in the present circumstance such privi- rity, about restoring the checks and And I thank the gentleman from lege claims would be strongly outweighed by balances. Florida for yielding. the committee’s need to obtain such infor- Fundamental to our power, legisla- b 1300 mation. tive power, is our ability to gather in- Mr. LINCOLN DIAZ-BALART of formation. If we do not stand up for our Ms. SLAUGHTER. Madam Speaker, I yield 1 minute to the gentleman from Florida. Madam Speaker, I would ask right to gather information, then in the distinguished chairwoman how Michigan (Mr. CONYERS), Chair of the spite of the fact that my colleagues on many speakers she has remaining. the other side have said we may lose Judiciary Committee. Ms. SLAUGHTER. Possibly five, our prerogatives if we go to court, if we Mr. CONYERS. I wanted to respond, Madam Speaker. don’t challenge the President on this or continue our discussion that was The SPEAKER pro tempore. The gen- issue, we will have surrendered our pre- raised by the gentleman from Utah. As tleman from Florida has 4 minutes re- rogatives; and that is the worst fate a matter of fact, in our resolution rec- maining. The gentlewoman from New that we could commit this body to. ommending that contempt of Congress York has 10 minutes remaining. So I would say, in closing, that many be issued, we found plenty of evidence Mr. LINCOLN DIAZ-BALART of people look at polls today and say the of wrongdoing at the Department of Florida. I reserve at this time. standing of the Congress is at its low- Justice, nearly 100 pages of it. This was Ms. SLAUGHTER. I am pleased to est ebb ever, and they say maybe that’s voted out of the committee. For exam- yield 2 minutes to the gentlewoman because we are not doing anything. I ple: from Ohio (Ms. SUTTON) who serves on think it’s because the American people The decision to fire or retain some both the Committee on Rules and Judi- recognize that we have been negligent U.S. attorneys may have been based in ciary. in not upholding our responsibilities part on whether or not their offices Ms. SUTTON. Madam Speaker, let us under the Constitution. were pursuing or not pursuing public recall what this is all about. We are This is an important step in restor- corruption or vote fraud cases based on here today because the now-resigned ing the integrity of this institution and partisan political factors; Chief of Staff to former attorney, restoring the confidence of the Amer- Department officials appear to have Alberto Gonzalez, ran a plan over a pe- ican people in this body in its willing- made false or misleading statements to riod of just under 2 years during which ness to respond to the dictates of the Congress, many of which sought to he maintained a revised list of U.S. at- Constitution. minimize the role of White House per- torneys to be fired or retained. If pros- Mr. LINCOLN DIAZ-BALART of sonnel in the U.S. Attorney firings; ecutors were placed on this list for po- Florida. Madam Speaker, I yield 2 min- Actions by some department per- litical reasons, or alternatively kept utes to the distinguished gentleman sonnel may have violated civil service off because of a willingness to engage in political prosecutions, these actions from Ohio (Mr. CHABOT). laws. Mr. CHABOT. Madam Speaker, rath- EXECUTIVE SUMMARY are not only improper and illegal, but er than spinning our wheels on this To date, the committee’s investigation— they constitute criminal abuse. These issue, there is a much more important which has reviewed materials provided by are serious allegations, and we have a issue that we should be dealing with the Department of Justice in depth and ob- constitutional duty to pursue this pro- today, and the very safety of our Na- tained testimony from 20 current and former ceeding today. Department of Justice employees—has un- Congress is not only entitled to look tion is at issue. I’m disappointed that covered serious evidence of wrongdoing by into this matter, we must conduct a we have reached the point in this the Department and White House staff with thorough oversight of the executive House that reasonable minds could not respect to the forced resignations of U.S. At- branch. Now, some of my colleagues prevail on an issue that involves the torneys during 2006 and related matters. This argue that the United States attorneys very safety of the American people. includes evidence that: (a) the decision to serve at the pleasure of the President. Last August Congress passed, and the fire or retain some U.S. Attorneys may have However, it is very critical to note that President signed into law, the Protect been based in part on whether or not their offices were pursuing or not pursuing public throwing out this term, ‘‘at the pleas- America Act. This critical legislation ure of the President,’’ may be accurate closed the gaps which had previously corruption or vote fraud cases based on par- tisan political factors, or otherwise bringing in the sense that the President may caused the intelligence community to cases which could have an impact on pending fire somebody for no reason, Alberto miss more than two-thirds of all over- elections; (b) Department officials appear to Gonzalez can fire somebody for no rea- seas terrorist communications, finally have made false or misleading statements to son, but they can’t fire him for an ille- allowing the United States to stay one Congress, many of which sought to minimize gal reason. step ahead of the terrorists. the role of White House personnel in the U.S. And that is what we are looking at The Senate amendments to H.R. 3773 Attorney firings, or otherwise obstruct the Committee’s investigation, and with some here. The Committee on the Judiciary would enable law enforcement and the Chairman CONYERS testified yesterday intelligence community to continue participation by White House personnel; and ( c) actions by some Department personnel that he pursued documents from the their counterterrorism efforts, includ- may have violated civil service laws and White House and the testimony of Ms. ing working with telecommunications some White House employees may have vio- Miers and from Mr. Bolten for 8 long companies and allowing officials to lated the Presidential Records Act. months, and in return the White House gather intelligence from potential for- Based on this evidence, and because of the did not provide a single document and eign terrorists outside the United apparent involvement of White House per- specifically directed Ms. Miers and Mr. States. sonnel in the U.S. Attorney firings and their Bolten to ignore the Judiciary Com- aftermath, the committee has sought to ob- At the same time, this bill is mindful mittee’s subpoenas citing executive of our Constitution and the protections tain relevant documents from the White House and documents and testimony from privilege. it affords to U.S. citizens, whether they former White House Counsel Harriet Miers— This is not a situation of exerting ex- are inside or outside the United States. who appears to have been significantly in- ecutive privilege, because Ms. Miers Furthermore, the authority provided volved in the matter—on a voluntary basis did not even show up for the hearings by the bill would sunset in 6 years, al- and, only after taking all reasonable efforts that they were called to testify before lowing Congress to revisit any issues to obtain a compromise, on a compulsory to assert that claim. Furthermore, that might arise. basis. The committee’s subpoenas have been Madam Speaker, it is one thing for We cannot afford to let the terror- met with consistent resistance, including them to decline to answer certain ques- ists, particularly those who are con- wide-ranging assertions of executive privi- tions based on a claim of executive spiring abroad, to have the upper hand. lege and immunity from testimony. This has gone so far that the administration indicated privilege; it is an entirely different Our law enforcement and intelligence in July that it would refuse to allow the Dis- matter to defy even orders to appear. communities must have every resource trict of Columbia U.S. Attorney’s office to Mr. LINCOLN DIAZ-BALART of available to do their jobs in keeping pursue any congressional contempt citation Florida. I continue to reserve, Madam this Nation safe. I urge my colleagues against the White House’s wishes. In addi- Speaker.

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00012 Fmt 4634 Sfmt 0634 E:\CR\FM\K14FE7.026 H14FEPT1 wwoods2 on PRODPC68 with HOUSE February 14, 2008 CONGRESSIONAL RECORD — HOUSE H957 Ms. SLAUGHTER. Madam Speaker, I clearly feel that they are above the tion deeply embedded in our heart, rec- yield 2 minutes to the gentleman from law. ognizing that there is nothing to pro- Tennessee (Mr. COHEN), a member of Last year, when the Judiciary Com- tect if the President says that he is not the Judiciary Committee. mittee was legitimately investigating involved. Mr. COHEN. I appreciate the time. I the political purge of U.S. attorneys Let the Constitution stand. Let us do do serve on Judiciary Committee, and I and conducting oversight into the what we are supposed to do. My looked at that empty chair that Ms. politicization of the Justice Depart- friends, vote for this in a bipartisan Miers was supposed to be sitting in ment, administration officials not only way so that the Constitution remains when she was asked to testify before failed to turn over key documents after sacred in our hearts and in this coun- our committee. receiving subpoenas, they didn’t even try. Nothing is more contemptuous of an bother to show up to testify. Madam Speaker, I am deeply frus- Madam Speaker, I rise today in strong sup- official than not to simply appear. To port of H. Res. 982, which provides that upon appear by counsel, to appear in person, trated by this administration’s contin- ued stonewalling and, frankly, the con- adoption of the rule, both H. Res. 979 recom- to allege a privilege is one thing. Not mending that the House of Representatives to show up is the uttermost peak of tempt that it has shown for Congress. As our former Republican colleague find former White House Counsel Harriet contempt that a person could have for Miers and White House Chief of Staff Joshua the Congress and for the legislative Congressman Mickey Edwards told our committee, the administration’s ac- Bolten in contempt of Congress for their re- body. She didn’t even send a little fusal to comply with subpoenas issued by the note, Ms. Miers regretfully cannot at- tions have been outrageous and it con- tinues to erode the separation of pow- Committee on the Judiciary and H. Res. 980— tend your hearing. Authorizing the Committee on the Judiciary to This is the highest contempt. We are ers. initiate or intervene in judicial proceedings to representatives of the people, and we I applaud Chairman CONYERS’ pa- enforce certain subpoenas are adopted. Both are upholding the Constitution and our tience and his many attempts to re- of the resolutions were introduced by my dis- jobs as being an equal branch of gov- solve this situation short of the man- tinguished colleague from Michigan, the Hon- ernment, which this legislative body is, ner in which we will today, but I know orable JOHN CONYERS, Jr. and there is no such thing as an impe- I speak for many of my colleagues rial Presidency, and no one is above when I say enough is enough. H. RES. 979 Mr. LINCOLN DIAZ-BALART of the law. This resolution highlights the accountability Mr. LINCOLN DIAZ-BALART of Florida. Madam Speaker, I would ask issues that this body has continued to have Florida. I continue to reserve. the distinguished chairwoman how with the Bush administration. This committee Ms. SLAUGHTER. Madam Speaker, I many speakers she has remaining. made attempt after attempt to secure critical Ms. SLAUGHTER. I believe I have am pleased to yield 11⁄2 minutes to the information voluntarily from both former White just one. And so I will yield 11⁄2 minutes gentleman from Florida (Mr. WEXLER) House Counsel Harriet Miers and White to the gentlewoman from Texas (Ms. from the Judiciary Committee. House Chief of Staff Joshua Bolten. At no JACKSON-LEE), a member of the Judici- Mr. WEXLER. Madam Speaker, no point did they cooperate and comply with our ary Committee. one is immune from accountability and (Ms. JACKSON-LEE of Texas asked requests. Even as this committee directed the rule of law, not Harriet Miers or and was given permission to revise and their appearance by subpoena, the White Josh Bolten, and especially not Presi- extend her remarks.) House sought to avert our inquiries by citing dent Bush or Vice President CHENEY. Ms. JACKSON-LEE of Texas. Madam executive privilege. It is high time to defend the Con- Speaker, I thank my colleagues of the Instead, the White House offered this com- stitution and Congress as a coequal Judiciary Committee, and I thank my mittee a very limited inquiry, completely con- branch of government. Our liberty and colleagues of the Rules Committee. trolled by providing: (1) virtually no access to freedoms as Americans are dependent Madam Speaker, I stand on this floor internal White House documents, (2) no ques- upon the checks and balances that pro- with a very heavy heart. It is a heavy tioning regarding internal White House discus- tect our Nation. Not since Watergate, heart compounded by the fact that sions, and (3) no interview transcripts. The not since Watergate has a President so Harriet Miers is my friend. We prac- White House is not bluffing with this act of de- openly disregarded the will of Con- ticed law together in the State of fiance. Rather, it seems the Bush administra- gress. Josh Bolten and Harriet Miers Texas. We worked together. And so it tion wants to test, and attempt to expand, the have blatantly ignored congressional is very difficult to stand here today limits of presidential power. subpoenas, thumbing their nose at Con- and to acknowledge what is an enor- Madam Speaker, it was on July 12, 2007 gress and our obligation of legitimate mous crisis in our Government, and that Ms. Harriet Miers was asked to testify be- oversight. that is the lack of recognition of the fore the Subcommittee on Commercial and The power of the congressional sub- constitutional premise of the three Administrative Law investigating the removal poena safeguards our liberty. It pro- equal branches of Government. I came of U.S. attorneys by the Bush administration, tects against an all-powerful President. yesterday to talk of the embeddedness and did not attend. That same day, the sub- The Constitution demands that we hold of the Constitution not only in many committee’s Chair, the Honorable LINDA these renegade officials in contempt of books but also in the hearts of Ameri- SA´NCHEZ, undertook the preliminary steps nec- Congress. cans. When I go home to Texas, people essary to declare Miers in contempt. The sub- Thank you, Madam Chairman. still ask the question: What are you committee voted 7–5 that there was no legal ANNOUNCEMENT BY THE SPEAKER PRO TEMPORE doing about the U.S. attorney situa- justification for Ms. Miers’s failing to appear The SPEAKER pro tempore. The tion? What happened to the fairness pursuant to the subpoena. Chair would remind Members that the and integrity of the appointment proc- Notwithstanding this blatant affront to the wearing of communicative badges is ess? The American people want to House Judiciary Committee, Republican Mem- not in order while under recognition. know. We are now doing their bidding. bers allowed party affiliation to trump institu- Mr. LINCOLN DIAZ-BALART of They want us to be able to clear the tional responsibility, just as they had when Florida. Madam Speaker, I continue to air. they controlled Congress. The Minority con- reserve. As a member of the Judiciary Com- tinues to make excuses for the Bush adminis- Ms. SLAUGHTER. Madam Speaker, I mittee, let me tell you, JOHN CONYERS tration’s defiance, and appears content to let yield 2 minutes to the gentlewoman has the patience of Job. Over and over the President slight the subcommittee by in- from Florida (Ms. WASSERMAN again, and Chairwoman SANCHEZ, over structing both Ms. Miers and Mr. Bolten to not SCHULTZ) of the Judiciary Committee. and over again, working with Ranking testify. Ms. WASSERMAN SCHULTZ. Member CANNON, said that we wanted Madam Speaker, I rise today in support to do this in a way that you could H. RES. 980 AND CONGRESSIONAL OVERSIGHT of this resolution. I urge my colleagues come and give information, that infor- Congresssional oversight is an implied rath- on both sides of the aisle as Members of mation could be transcripted. We will er than an enumerated power. My colleagues a coequal branch of government to then try to find out the truth. across the aisle may make the argument that issue these contempt citations to mem- We come here with a broken heart, a nothing explicitly grants this body the authority bers of the Bush administration who humble spirit, but with the Constitu- to conduct inquiries or investigations of the

VerDate Aug 31 2005 01:10 Feb 15, 2008 Jkt 069060 PO 00000 Frm 00013 Fmt 4634 Sfmt 9920 E:\CR\FM\K14FE7.028 H14FEPT1 wwoods2 on PRODPC68 with HOUSE H958 CONGRESSIONAL RECORD — HOUSE February 14, 2008 Executive, to have access to records or mate- the House Parliamentarian, and they Boyd (FL) Gohmert McHenry Boyda (KS) Gonzalez McHugh rials held by the Executive, or to issue sub- are absolutely and totally unprece- Brady (PA) Goode McIntyre poenas for documents or testimony from the dented, that privileged resolutions Brady (TX) Goodlatte McKeon Executive. would be taken to the floor in this Braley (IA) Gordon McMorris However, congressional investigations sus- fashion, in effect, avoiding even the Broun (GA) Granger Rodgers Brown (SC) Graves McNerney tain and vindicate our role in our constitutional floor by virtue of the fact that when Brown-Waite, Green, Al McNulty scheme of separated powers. The rich history the rule is passed, the rule that we are Ginny Grijalva Meek (FL) of congressional investigations from the failed debating, automatically the two privi- Buchanan Gutierrez Meeks (NY) Burgess Hall (NY) Melancon St. Clair expedition in 1792 through Teapot leged resolutions of contempt will be Burton (IN) Hall (TX) Mica Dome, Watergate, and Iran-Contra, has estab- considered adopted. That is absolutely Butterfield Hare Michaud lished, in law and practice, the nature and unprecedented as well as uncalled for. Buyer Harman Miller (FL) contours of congressional prerogatives nec- And the nature of the actions of the Calvert Hastings (FL) Miller (MI) Camp (MI) Hastings (WA) Miller (NC) essary to maintain the integrity of the legisla- majority today are most, most unfor- Campbell (CA) Hayes Miller, Gary tive role. Numerous Supreme Court prece- tunate. I had the recent opportunity to Cannon Heller Miller, George dents recognize a broad and encompassing speak at Florida International Univer- Cantor Hensarling Mitchell Capito Herger Mollohan power in this body to engage in oversight and sity’s law school. Professor Levitt Capps Herseth Sandlin Moore (KS) investigation that would reach all sources of asked me to speak there about the rule Capuano Higgins Moore (WI) information necessary for carrying out its legis- of law. In studying, restudying the Cardoza Hinojosa Moran (KS) lative function. Without a countervailing con- issue, the rule of law, I stressed how Carnahan Hirono Moran (VA) Carney Hobson Murphy (CT) stitutional privilege or this body self-imposing a the independence of the judiciary is Carter Hodes Murphy, Patrick statutory restriction on our authority, this perhaps the key, or certainly one of the Castle Hoekstra Murphy, Tim chamber, along with our colleagues in the fundamental keys, to the rule of law. Castor Holden Murtha Chabot Holt Musgrave Senate, have plenary power to compel infor- And judicial restraint has permitted Chandler Hooley Myrick mation needed to discharge our legislative the judiciary to remain independent Clarke Hoyer Nadler functions from the Executive, private individ- throughout these two-plus centuries. Clay Hulshof Napolitano uals, and companies. All of the branches, Madam Speaker, Cleaver Inglis (SC) Neal (MA) Clyburn Inslee Neugebauer In McGrain v. Daugherty, 1927, the U.S. Su- must exercise restraint. Coble Israel Nunes preme Court deemed the power of inquiry, And the actions of the majority Cohen Issa Oberstar with the accompanying process to enforce it, today manifest the opposite, not only Cole (OK) Jackson (IL) Obey ‘‘an essential and appropriate auxiliary to the Conaway Jackson-Lee Olver restraint, but I would say unprece- Conyers (TX) Ortiz legislative function.’’ Senate Rule XXVI, 26, dented, uncalled for, an unprecedented Cooper Jefferson Pallone and House Rule XI, 11, presently empower all and uncalled for manner of dealing Costello Johnson (GA) Pascrell standing committees and subcommittees to re- with even an issue of this importance. Courtney Johnson, E. B. Pastor Cramer Johnson, Sam Paul quire the attendance and testimony of wit- As I stated, the majority is not even Crenshaw Jones (NC) Payne nesses and the production of documents. This allowing debate on the resolutions of Crowley Jordan Pearce chamber was given an implied power of over- contempt, not even permitting votes Cubin Kagen Pence sight by the U.S. Constitution; that power has Cuellar Kanjorski Perlmutter on the resolutions of contempt. Culberson Kaptur Peterson (MN) supported by our 3rd branch of government, The SPEAKER pro tempore. The Cummings Keller Petri the Supreme Court; we ourselves have ex- time of the gentleman has expired. Davis (AL) Kennedy Pickering pressed this authority in our Senate and Davis (CA) Kildee Pitts f Davis (IL) Kind Platts House Rules, and yet two attorneys under the Davis (KY) King (IA) Poe direction of the White House continue to tell MOTION TO ADJOURN Davis, David King (NY) Pomeroy us we do not have the proper authority. Davis, Lincoln Kingston Porter Mr. LINCOLN DIAZ-BALART of Davis, Tom Kirk Price (GA) H.R. 5230, CONTEMPT OF THE HOUSE OF REPRESENTA- Florida. Madam Speaker, I move that Deal (GA) Klein (FL) Price (NC) TIVES SUBPOENA AUTHORITY ACT OF 2008 [110TH] the House do now adjourn. DeFazio Kline (MN) Pryce (OH) On February 6, I introduced legislation that Delahunt Knollenberg Putnam The SPEAKER pro tempore. The would amend Title 28, of the United States DeLauro Kucinich Radanovich question is on the motion to adjourn. Dent Kuhl (NY) Rahall Code and grant this chamber the statutory au- The question was taken; and the Diaz-Balart, L. LaHood Ramstad thority to bring a civil action to enforce and se- Speaker pro tempore announced that Diaz-Balart, M. Lamborn Rangel cure a declaratory judgment to prevent a Dingell Lampson Regula the noes appeared to have it. threatened refusal or failure to comply with Doggett Langevin Rehberg Mr. LINCOLN DIAZ-BALART of Donnelly Larsen (WA) Reichert any subpoena or order for the production of Florida. Madam Speaker, I object to Doolittle Larson (CT) Reyes documents, the answering of any deposition or Doyle Latham Reynolds the vote on the ground that a quorum interrogatory, or the securing of testimony Drake LaTourette Richardson is not present and make the point of Dreier Latta Rodriguez issued by the House or any of its committees order that a quorum is not present. Duncan Lee Rogers (AL) or subcommittees. The SPEAKER pro tempore. Evi- Ehlers Levin Rogers (KY) Once we pass H.R. 5230, we should have Ellison Lewis (CA) Rogers (MI) no further need to adopt resolutions for au- dently a quorum is not present. Ellsworth Lewis (GA) Rohrabacher thorization to enforce certain subpoenas; we The Sergeant at Arms will notify ab- Emanuel Lewis (KY) Ros-Lehtinen sent Members. Emerson Linder Roskam would already hold that statutory authority. As Eshoo Lipinski Ross it stands now, we must collectively support The vote was taken by electronic de- Etheridge LoBiondo Rothman both H. Res. 979 and H. Res. 980 under H. vice, and there were—yeas 2, nays 400, Everett Loebsack Roybal-Allard not voting 26, as follows: Fallin Lofgren, Zoe Royce Res. 982, the adopted rule. Therefore, I urge Farr Lucas Rush my colleagues to join me in supporting H. [Roll No. 59] Fattah Lungren, Daniel Ryan (OH) Res. 982 an important piece of legislation that YEAS—2 Feeney E. Ryan (WI) Ferguson Lynch Salazar Johnson (IL) Young (AK) allows for not only accountability but enforce- Filner Mack Sali ment. NAYS—400 Flake Maloney (NY) Sa´ nchez, Linda Mr. LINCOLN DIAZ-BALART of Forbes Manzullo T. Florida. I would ask the distinguished Abercrombie Barrett (SC) Bishop (NY) Fortenberry Marchant Sanchez, Loretta Aderholt Barrow Bishop (UT) Fossella Marshall Sarbanes chairwoman if she has no other speak- Akin Bartlett (MD) Blackburn Foxx Matheson Saxton ers, obviously besides herself. Alexander Barton (TX) Blumenauer Frank (MA) Matsui Schakowsky Ms. SLAUGHTER. That’s correct, if Allen Bean Blunt Franks (AZ) McCarthy (CA) Schiff Altmire Becerra Boehner the gentleman is prepared to close. Gallegly McCarthy (NY) Schmidt Andrews Berkley Bonner Garrett (NJ) McCaul (TX) Schwartz Mr. LINCOLN DIAZ-BALART of Arcuri Berman Bono Mack Gerlach McCollum (MN) Scott (GA) Florida. Actually I will yield myself 2 Baca Berry Boozman Giffords McCotter Scott (VA) minutes at this time. Bachmann Biggert Boren Gilchrest McCrery Sensenbrenner Bachus Bilbray Boswell The actions of the majority today are Gillibrand McDermott Serrano Baird Bilirakis Boucher Gingrey McGovern Sessions unprecedented. We have checked with Baldwin Bishop (GA) Boustany

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