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Implementation of the U.S. Department of Justice's Special Counsel Regulations

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Implementation of the U.S. Department of Justice's Special Counsel Regulations Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2008 Implementation of the U.S. Department of Justice’s Special Counsel Regulations: Hearing Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 110th Cong., Feb. 26, 2008 (Statement of Professor Neal Kumar Katyal, Geo. U. L. Center) Neal K. Katyal Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/cong/101 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/cong Part of the Constitutional Law Commons, and the Criminal Law Commons 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 59 Ms. SA´ NCHEZ. Thank you so much for your testimony, Ms. Bruce. At this time I would invite Professor Katyal to provide us with his testimony. TESTIMONY OF NEAL KATYAL, ESQUIRE, PROFESSOR, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC Mr. KATYAL. Thank you, Chairwoman Sa´nchez, Representative Cannon, and Members of the Subcommittee, for inviting me here today and for this hearing, which has been a long time in coming. The special counsel regulations derive from two principles funda- mental since our Nation’s founding: accountability, and the need to take care that the laws be faithfully executed. My job at the Justice Department, from 1998 to 1999, involved running a department-wide group to examine the Independent Counsel Act. Attorney General Reno then tasked me with drafting the Justice Department regulations that would replace this act. After a wide-ranging consultation, both within the Department and with this Committee and others in Congress, the special counsel regulations became effective in June 1999, when the Independent Counsel Act lapsed. You have asked me here today to discuss the development of these regulations, and I have therefore prepared an extensive statement that walks the Committee through each aspect of the regulations, as well as discussing the recent appointments of Sen- ator Danforth and Patrick Fitzgerald. In the remaining minutes, I will discuss the recent investigation regarding the CIA’s alleged destruction of the videotapes. I believe that the Attorney General’s recent testimony stating that the Jus- tice Department will not investigate the underlying conduct on the destroyed tapes, including confirmed instances of waterboarding, highlights a strong possible need for a special counsel. The Attorney General told this Committee that waterboarding ‘‘cannot possibly be the subject of a criminal Justice Department in- vestigation because that would mean the same department that au- thorized the program would now consider prosecuting somebody who followed that advice.’’ This statement reflects the complicated institutional dynamics of this investigation—one in which the de- partment must investigate not just the CIA, but also itself. This underscores why a special counsel may be appropriate. At- torney General Mukasey took the position that he did not want to investigate waterboarding because the interrogators relied, in good faith, on legal opinions drafted by the Office of Legal Counsel in 2002. This position may very well be justified, depending on what the OLC opinions say, but it is literally impossible to assess this claim without seeing the opinions themselves. I deeply believe the executive branch should have a zone
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