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Implementation of the U.S. Department of Justice's IMPLEMENTATION OF THE U.S. DEPARTMENT OF JUSTICE’S SPECIAL COUNSEL REGULATION HEARING BEFORE THE SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED TENTH CONGRESS SECOND SESSION FEBRUARY 26, 2008 Serial No. 110–172 Printed for the use of the Committee on the Judiciary ( Available via the World Wide Web: http://judiciary.house.gov U.S. GOVERNMENT PRINTING OFFICE 40–924 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924 COMMITTEE ON THE JUDICIARY JOHN CONYERS, JR., Michigan, Chairman HOWARD L. BERMAN, California LAMAR SMITH, Texas RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, JR., JERROLD NADLER, New York Wisconsin ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia HOWARD COBLE, North Carolina MELVIN L. WATT, North Carolina ELTON GALLEGLY, California ZOE LOFGREN, California BOB GOODLATTE, Virginia SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio MAXINE WATERS, California DANIEL E. LUNGREN, California WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah ROBERT WEXLER, Florida RIC KELLER, Florida LINDA T. SA´ NCHEZ, California DARRELL ISSA, California STEVE COHEN, Tennessee MIKE PENCE, Indiana HANK JOHNSON, Georgia J. RANDY FORBES, Virginia BETTY SUTTON, Ohio STEVE KING, Iowa LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida BRAD SHERMAN, California TRENT FRANKS, Arizona TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas ANTHONY D. WEINER, New York JIM JORDAN, Ohio ADAM B. SCHIFF, California ARTUR DAVIS, Alabama DEBBIE WASSERMAN SCHULTZ, Florida KEITH ELLISON, Minnesota PERRY APELBAUM, Staff Director and Chief Counsel SEAN MCLAUGHLIN, Minority Chief of Staff and General Counsel SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW LINDA T. SA´ NCHEZ, California, Chairwoman JOHN CONYERS, JR., Michigan CHRIS CANNON, Utah HANK JOHNSON, Georgia JIM JORDAN, Ohio ZOE LOFGREN, California RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona STEVE COHEN, Tennessee MICHONE JOHNSON, Chief Counsel DANIEL FLORES, Minority Counsel (II) VerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00002 Fmt 5904 Sfmt 0486 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924 C O N T E N T S FEBRUARY 26, 2008 Page OPENING STATEMENT The Honorable Linda T. Sa´nchez, a Representative in Congress from the State of California, and Chairwoman, Subcommittee on Commercial and Administrative Law ............................................................................................. 1 WITNESSES Carol Elder Bruce, Esquire, Venable, LLP, Washington, DC Oral Testimony ..................................................................................................... 5 Prepared Statement ............................................................................................. 8 Neal Katyal, Esquire, Professor, Georgetown University Law Center, Wash- ington, DC Oral Testimony ..................................................................................................... 59 Prepared Statement ............................................................................................. 61 Lee A. Casey, Esquire, Baker and Hostetler, LLP, Washington, DC Oral Testimony ..................................................................................................... 92 Prepared Statement ............................................................................................. 94 Barry Coburn, Esquire, Coburn and Coffman, PLLC, Washington, DC Oral Testimony ..................................................................................................... 105 Prepared Statement ............................................................................................. 107 The Honorable Patrick J. Fitzgerald, United States Attorney for Northern District of Illinois, former Special Counsel, United States Department of Justice, Chicago, IL Oral Testimony ..................................................................................................... 128 LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Prepared Statement of the Honorable Chris Cannon, a Representative in Congress from the State of Utah, and Ranking Member, Subcommittee on Commercial and Administrative Law ........................................................... 3 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD Answers to Post-Hearing Questions from Carol Elder Bruce, Esquire, Venable, LLP, Washington, DC .......................................................................... 136 Post-Hearing Questions submitted to Neal Katyal, Esquire, Professor, George- town University Law Center, Washington, DC ................................................. 143 Answers to Post-Hearing Questions from Lee A. Casey, Esquire, Baker and Hostetler, LLP, Washington, DC ........................................................................ 145 Answers to Post-Hearing Questions from Barry Coburn, Esquire, Coburn and Coffman, PLLC, Washington, DC ............................................................... 152 Answers to Post-Hearing Questions from the Honorable Patrick J. Fitzgerald, United States Attorney for Northern District of Illinois, former Special Counsel, United States Department of Justice, Chicago, IL ............................ 154 Supplement to Answers to Post-Hearing Questions from the Honorable Pat- rick J. Fitzgerald, United States Attorney for Northern District of Illinois, former Special Counsel, United States Department of Justice, Chicago, IL ........................................................................................................................... 157 (III) VerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924 VerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924 IMPLEMENTATION OF THE U.S. DEPARTMENT OF JUSTICE’S SPECIAL COUNSEL REGULA- TION TUESDAY, FEBRUARY 26, 2008 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. The Subcommittee met, pursuant to notice, at 1:50 p.m., in Room 2141, Rayburn House Office Building, the Honorable Linda Sa´nchez (Chairwoman of the Subcommittee) presiding. Present: Representatives Conyers, Sa´nchez, Johnson, Lofgren, Cannon, and Feeney. Staff present: Eric Tamarkin, Majority Counsel; Daniel Flores, Minority Counsel; and Adam Russell, Majority Professional Staff Member. Ms. SA´ NCHEZ. This hearing on the Committee of the Judiciary, Subcommittee on Commercial and Administrative Law will now come to order. I will now recognize myself for a short statement. In response to the Watergate scandal and President Richard Nixon’s executive dismissal of independent special prosecutor Archibald Cox, the independent counsel provisions were originally enacted as Title VI of the Ethics and Government Act of 1978. Specifically, the special prosecutor independent counsel provi- sions were adopted to deal with the unusual circumstance of an in- herent conflict of interest that would arise when the Attorney Gen- eral and the President, while supervising the Department of Jus- tice and Federal prosecutors, would control the investigation and possible prosecution of allegations of their own criminal wrong- doing or other high-level officials in their administration. During the nearly 21-year span of the law, 20 independent coun- sels were appointed at a cost of approximately $230 million to the American people. When the independent counsel law expired, regu- lations were promulgated concerning the appointment of outside temporary counsel. According to the regulations, such special counsels are to be ap- pointed by the Attorney General to conduct investigations and pos- sible prosecutions of certain sensitive criminal matters where the Department may have a conflict of interest, and where the cir- (1) VerDate Aug 31 2005 11:47 Mar 20, 2009 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\COMM\022608\40924.000 HJUD1 PsN: 40924 2 cumstances determine that such an appointment would be in the public interest. These regulations make clear that the special counsel should come from outside of the Government. They also provide that at the conclusion of his or her work, the special counsel must produce a confidential report explaining the prosecutions or the decision not to prosecute. Additionally, at the conclusion of the investigation, the Attorney General is obligated to notify the Chairman and Ranking minority Members of the House and Senate Judiciary Committee. This noti- fication is essential if Congress is to fulfill its oversight duties and its constitutional obligation to provide a check on executive branch action. Recently, these special counsel regulations have been all but ig- nored. Despite several opportunities to do so, Attorneys General in the Bush administration have yet to utilize the special counsel reg- ulations. In the CIA leak matter, U.S. Attorney Patrick Fitzgerald was given the title of special counsel, but did not come from outside of Government and was not required to abide by the Department’s special counsel regulations. The practical
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