[Senate Report 110-203]
[From the U.S. Government Publishing Office]
Calendar No. 438
110th Congress Report
SENATE
1st Session 110-203
======================================================================
THE SECURITY FROM POLITICAL INTERFERENCE IN JUSTICE ACT OF 2007
_______
October 23, 2007.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 1845]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 1845) to provide for limitations in certain
communications between the Department of Justice and the White
House Office relating to civil and criminal investigations, and
for other purposes, having considered the same, reports
favorably thereon with amendment and recommends that the bill,
as amended, do pass.
CONTENTS
Page
I. Background and Purpose of the Security From Political Interference
in Justice Act of 2007...........................................2
II. History of the Bill and Committee Consideration..................7
III. Section-by-Section Summary of the Bill...........................8
IV. Congressional Budget Office Cost Estimate........................9
V. Regulatory Impact Evaluation.....................................9
VI. Conclusion.......................................................9
VII. Minority Views of Senator Kyl...................................11
VIII.Appendix A--September 29, 1994 Letter From Attorney General Janet
Reno to White House Counsel Lloyd Cutler........................13
IX. Appendix B--April 15, 2002 Memorandum From Attorney General John
Ashcroft........................................................14
X. Appendix C--May 4, 2006 Memorandum From Attorney General Alberto
Gonzales........................................................17
XI. Changes to Existing Law Made by the Bill, as Reported...........20
I. Background and Purpose of the Security From Political Interference
in Justice Act of 2007
A. RULES GOVERNING CONTACT BETWEEN DEPARTMENT OF JUSTICE AND WHITE
HOUSE OFFICIALS
The effectiveness and integrity of the administration of
justice depends upon the Department of Justice (the Department)
operating free of political interference. The most dangerous
potential source of such interference is the White House.
In order to minimize the likelihood of improper White House
interference in the Department's affairs, the executive branch
has, since at least 1993, regulated contact between Department
and White House officials related to pending investigations and
cases. Between May, 1993 and April, 2002, seven people at the
Department and the White House were permitted to have initial
communications regarding pending investigations and cases: the
President, Vice President, White House Counsel, Deputy White
House Counsel, Attorney General, Deputy Attorney General, and
Associate Attorney General. If continuing contact was required
on a particular matter, the White House Counsel's Office and
the senior Department official involved in the matter were
required to design a process for (and monitor) that continuing
contact. This policy did not apply to communications regarding
matters of policy, appointments, legislation, budgets, public
relations and ``other similar matters.'' It also envisioned
periodic communications between the White House Counsel's
Office and the Office of Legal Counsel on matters in which the
White House sought a legal opinion as well as White House
contact with the Solicitor General's Office regarding appellate
litigation. This policy was memorialized in a September 29,
1994 letter from Attorney General Janet Reno to White House
Counsel Lloyd Cutler. (Appendix A).
On April 15, 2002, Attorney General John Ashcroft issued a
memorandum while Alberto Gonzales was White House Counsel
(published in the Department's Organization and Functions
Manual as Rule 32) altering the above-referenced policy.
(Appendix B). The new policy stated:
Except with respect to national security matters, all
initial communications that concern or may concern a pending
criminal investigation or a criminal case pending at the trial
level should take place only between the Office of the Deputy
Attorney General and the Office of the Counsel to the
President. . . . Staff members of the Office of the Attorney
General, if so designated by the Attorney General, may
communicate directly with officials and staff of the Office of
the President, Office of the Vice President, Office of the
Counsel to the President, the National Security Council, and
the Office of Homeland Security.
By adding the Offices of the Attorney General, Deputy
Attorney General, President, Vice President, White House
Counsel, National Security Council, and Homeland Security, in
their entireties, this new policy permitted at least 417 people
in the White House to communicate with at least 42 people at
the Department on non-national security related matters.
On May 4, 2006, Attorney General Alberto Gonzales issued a
memorandum altering the policy again. (Appendix C). The new
policy added, inter alia, the Chief of Staff and Counsel to the
Vice President and staff of the Office of Management and Budget
to the list of those permitted to communicate with staff in the
Office of the Attorney General regarding pending investigations
and cases. The new, and still current, policy permits at least
895 people in the executive branch to communicate with at least
42 people at the Department on non-national security related
matters. The Organization and Functions Manual was never
updated to reflect this new policy.
B. CONGRESSIONAL OVERSIGHT
On April 19, 2007, the Senate Judiciary Committee held a
hearing titled ``Department of Justice Oversight,'' with
Attorney General Alberto Gonzales appearing as the sole
witness.
Senator Sheldon Whitehouse asked Mr. Gonzales about the
changed policy regarding contact between the Department and the
White House (Senator Whitehouse referred to the memorandum
issued on April 15, 2002 because the most recent, and extant,
memorandum was not publicly available):
Senator Whitehouse. What possible interest in the
administration of justice is there to kick the portal so wide
open that this many people now can engage directly about
criminal cases and matters, compared to before?
Mr. Gonzales. Senator, I think you've raised a good point
here, one that I was concerned about at the [White House]
counsel's office and I remain concerned as Attorney General, in
terms of making sure that communications from the White House
and the Department of Justice remain in the appropriate
channels.
I do recall being concerned about that as White House
counsel.
Senator Whitehouse. Quite a pronounced change, isn't it? .
. .
Mr. Gonzales. Senator, let me say this. I am not aware that
there are initial contacts between the White House and the
Department of Justice as an initial matter with respect to
specific criminal cases.
Or if there are--let me put it this way: I don't think
there should be. I think it's very, very important--I agree
with you. It is important to try to limit the communications
about specific criminal cases between the counsel's office and
the Department of Justice.
Senator Whitehouse. But when I see the rules opened this
much, it makes me wonder to what extent this safeguard is
considered significant in this administration.
Attorney General Gonzales did not inform Senator Whitehouse
at this oversight hearing that the April 15, 2002 policy was no
longer in effect and had, in fact, been expanded.
On June 29, 2007, the Senate Judiciary Committee held a
hearing titled ``Oversight of the U.S. Department of Justice,''
with Attorney General Gonzales again appearing as the sole
witness. During the period of time between this hearing and the
above-referenced April 19 hearing, Senator Whitehouse became
aware of the policy issued by Attorney General Gonzales on May
4, 2006. Senator Whitehouse asked Attorney General Gonzales
about the most recent policy change:
Senator Whitehouse. Isn't the White House the number one
locus of general concern that's persisted through many
administrations as to where political influence coming into the
Department of Justice improperly is going to come from?
Mr. Gonzales. Obviously, that would be certainly a key
source of concern.
Senator Whitehouse. The key--the key, right?
Mr. Gonzales. Probably the key source of concern.
Senator Whitehouse. OK. And in response to that, as we
discussed in the last hearing--I'd like to remind you there was
the 1994 letter from Janet Reno to Lloyd Cutler.
And in response to that concern, which we agree is a very
real one, the letter announced--and I believe that the letter--
I wasn't here at the time, but I believe the letter was
actually reduced to writing at the direction and instigation of
then-Judiciary Chairman Orrin Hatch, who saw this as a
significant concern.
And the letter said this: ``Initial communications between
the White House and the Justice Department regarding any
pending department investigation or criminal or civil case
should involve only the White House counsel or deputy counsel
(or the president or vice president) and the attorney general
or deputy or associate attorney general''--seven people.
As you'll recall, I showed you a graph of what had been
done since.
And in response to that, you seemed to agree that I had a
somewhat legitimate concern that I was pursuing. You said--and
this is from your transcript--``I remain concerned as attorney
general in terms of making sure that communications from the
White House and the Department of Justice remain in the
appropriate channels.''
You further said, ``I agree with you, it is important to
you to try to limit the communications about specific criminal
cases between the counsel's office and the Department of
Justice.''
You specifically said, ``I think the safeguards that you're
referring to I think are very, very important.''
And then you said, ``I, like you, am concerned about the
level of contacts in ensuring that the communications from the
White House and the Department of Justice occur at the
appropriate--within the appropriate channels.''
Mr. Gonzales. Channels.
Senator Whitehouse. Now, I then showed you the letter that
Attorney General--the memorandum that Attorney General Ashcroft
prepared. And that's the document that, sort of, kicked open
the door from seven to hundreds of people to be involved and
have discussions about ongoing criminal/civil investigative
matters. And that's what led to our discussion about all of
this.
Now, you've had some time to think about this. You've
indicated desire to clean up the mess at the department. I
would like to bring to your attention a May 4th, 2006,
memorandum that is a subsequent document to the Ashcroft
memorandum. This one is signed by you.
Here's what concerns me. In the Ashcroft memorandum, which
was a subject of concern before, at the very, very end of the
Ashcroft memorandum, as you'll remember, there was that
paragraph under asterisks that changes the whole memorandum in
front of it.
It says, ``Notwithstanding any procedures, limitations set
forth above, the attorney general may communicate directly with
the president, vice president, counsel to the president,
assistant to the president for national security affairs, and
various others.'' And then it provides who the staff members
can consult with: ``directly with officials and staff of the
Office of President, Office of the Vice President, Office of
the Counsel to the president, National Security Council'' and
so forth.
Now, I took the position that that was pretty much kicking
down a very important door that had protected the department
from political influence, but I see in your May 4th, 2006,
memorandum a number of things that concern me even more.
The first is at the bottom of the first page where there is
an asterisked footnote, which says at the bottom, ``For
convenience, the executive functions of the vice presidency are
referred to in this document as the Office of the Vice
President or OVP, and the provisions of this memorandum that
apply with respect to communications with the EOP''--Executive
Office of the President, I assume that is--``will apply in
parallel fashion to communications with the Office of the Vice
President.''
Let me ask you first, what on Earth business does the
Office of the Vice President have in the internal workings of
the Department of Justice with respect to criminal
investigations, civil investigations, ongoing matters?
Mr. Gonzales. As a general matter, I would say that that's
a good question.
Senator Whitehouse. Why is it here then?
Mr. Gonzales. I'd have to go back and look at this.
Senator Whitehouse. I'd like to know where this came from
and how that addition was made.
Then, if you look at the very back, the very last
paragraph, once again there's a final paragraph set off by
asterisks that pretty much undercuts everything that was said
in the previous enumerated paragraphs.
And here, you can see the difference. It's almost identical
with the previous memorandum, only it adds some things:
``Notwithstanding any procedure or limitations set forth above,
the attorney general may communicate directly with the
president, vice president''--so far, same as the Ashcroft
memorandum. Then you add, ``their chiefs of staff, counsel to
the president,'' then you add ``or vice president.''
Somebody took the trouble to write in ``counsel to the vice
president'' and provide that individual access to ongoing
criminal investigations, ongoing civil investigations and
ongoing other investigative matters.
Mr. Gonzales. Which--I don't know whether or not that, in
fact, has happened, so I want to--I want to (inaudible) . . .
Senator Whitehouse. Part of what we do around here is to
prevent things from happening.
Mr. Gonzales. Exactly, exactly.
Senator Whitehouse. And when you kick down doors, you
invite people to do it whether or not it's been done.
Mr. Gonzales. And I agree.
Senator Whitehouse. OK.
Mr. Gonzales. And on its face, I must say, sitting here,
I'm troubled by this.
Senator Whitehouse. Yes.
Mr. Gonzales. I will say . . .
Senator Whitehouse. And if you can continue--just let me
finish, because we're not done with the paragraph.
Mr. Gonzales. All right.
Senator Whitehouse. If you go further on down, what was the
staff of the Office of the President has become the staff of
the White House Office and the entire Office of Management and
Budget has been thrown in.
So you come here today with, I think, to put it mildly,
highly diminished credibility, asserting to us that you want to
bring--to restore the Department of Justice.
And yet here, where there is something that you could do
about it, since our past discussion, nothing has been done, the
memo that has your signature makes it worse, and we've agreed
that this connection between the White House and the Department
of Justice is the most dangerous one from a point of view of
the potential for the infiltration of political influence into
the department.
How, in the light of all those facts, can I give you any
credibility for being serious about the promises you've made
that you intend to clean up the mess you've made?
Mr. Gonzales. Well, because we have taken--I've taken
several steps to clean up, to address some of the mistakes that
have been made, Senator.
I can say that I have directed my staff to try to
understand what happened with respect to the Ashcroft memo,
what was the genesis of it. And in fact, we went back and
talked to a former member of the Ashcroft leadership team to
understand what was the basis of the change. What caused this
to happen? And so we have been looking at this issue because I
am concerned about it.
And with respect to this memo, quite frankly, I'd have to
look at it. And I would be concerned about inappropriate access
to ongoing investigations. And it's something that--if that's
encouraged by this kind of memorandum, I think it's something
that we ought to rethink.
C. REPORTING REQUIREMENTS AS AN ESSENTIAL TOOL OF CONGRESSIONAL
OVERSIGHT
Congress has a compelling interest in protecting the
Department of Justice from undue political interference and in
conducting vigorous oversight of the executive branch. One of
the most common, and effective, tools of Congressional
oversight is to require the executive branch to produce reports
to Congress. Indeed, the Department is currently responsible
for more than 100 statutorily mandated reports to Congress on
issues as varied as the administration of the Dispute
Resolution Act (Pub. L. 96-160) and the joint United States-
Canada Alternative Inspections Project (Pub. L. 107-173). The
White House is responsible for more than 600 statutorily
mandated reports to Congress. See ``Reports To Be Made To
Congress, Communication from the Clerk of the U.S. House of
Representatives,'' House Document 108-188.
The Security from Political Interference in Justice Act of
2007 would create a simple reporting requirement: the
Department and the White House would be required to make
separate, semi-annual reports to the House and Senate Judiciary
Committees detailing which Department and which White House
personnel had communications regarding ongoing Department
investigations or cases. The reporting requirement would not
apply to the President, Vice President, White House Counsel,
Deputy White House Counsel, Attorney General, Deputy Attorney
General, or Associate Attorney General. Furthermore, it would
not apply to communications relating to policy, appointments,
legislation, rulemaking, budgets, public relations,
programmatic matters, intergovernmental relations,
administrative or personnel matters, appellate litigation, or
requests for legal advice. The bill would place no restriction
on which personnel in either the White House or the Department
may have such communications.
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
Senator Whitehouse introduced S. 1845 on July 23, 2007,
joined by Chairman Leahy. The bill was referred to the
Committee on the Judiciary.
B. COMMITTEE CONSIDERATION
The bill was considered by the Committee on the Judiciary
on September 20, 2007. During committee consideration, Senator
Cornyn requested to be added as a cosponsor of the measure.
After discussions with the offices of Senators Leahy,
Hatch, and Cornyn, Senator Whitehouse introduced an amendment
in the nature of a substitute. In addition to a minor change
meant to clarify that the bill does not apply to contacts
regarding appellate litigation, the substitute amendment
deleted language prohibiting non-covered officers from engaging
in ``covered communication.''
Instead, as discussed above, the substitute amendment
requires the Department and the White House to produce
separate, semi-annual reports to the House and Senate Judiciary
Committees detailing which Department and White House personnel
had communications regarding ongoing Department investigations
or cases. The reporting requirement would not apply to the
President, Vice President, White House Counsel, Deputy White
House Counsel, Attorney General, Deputy Attorney General, or
Associate Attorney General. Furthermore, it would not apply to
communications relating to policy, appointments, legislation,
rulemaking, budgets, public relations, programmatic matters,
intergovernmental relations, administrative or personnel
matters, appellate litigation, or requests for legal advice.
The bill would place no restriction on which personnel in
either the White House or the Department may have such
contacts.
The substitute amendment was accepted by a voice vote.
The Judiciary Committee then reported the Security from
Political Interference in Justice Act of 2007, with an
amendment in the nature of a substitute, to be reported
favorably to the full Senate, with a recommendation that the
bill do pass. The committee proceeded by roll call vote.
The vote record is as follows:
Tally: 14 Yeas, 2 Nays
Yeas (14): Leahy (D-VT), Specter (R-PA), Kennedy (D-MA),
Hatch (R-UT), Biden (D-DE), Grassley (R-IA), Kohl (D-WI),
Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), Durbin (D-
NY), Cornyn (R-TX), Cardin (D-MD), Whitehouse (D-RI)
Nays (2): Kyl (R-AZ), Coburn (R-OK)
III. Section-by-Section Summary of the Bill, as Reported
Section 1. Short title
Title: ``The Security from Political Interference in
Justice Act of 2007''
Sec. 2. Definitions
This section defines a ``covered communication'' as any
communication relating to an ongoing investigation conducted by
the Department of Justice in any civil or criminal matter
(regardless of whether a civil action or criminal indictment or
information has been filed). The definition of a ``covered
communication'' specifically excludes communications relating
to policy, appointments, legislation, rulemaking, budgets,
public relations, programmatic matters, intergovernmental
relations, administrative or personnel matters, appellate
litigation, or requests for legal advice.
This section also defines a ``covered Department of Justice
officer'' as the Attorney General, Deputy Attorney General, and
Associate Attorney General. It defines a ``covered White House
officer'' as the President, Vice President, Counsel to the
President, and Counselor to the President. The definitions of
covered officers mirror the officials named in the above-
referenced September 1994 letter from Attorney General Reno to
White House Counsel Cutler.
Sec. 3. Reports to Congress
This section would require the Department and the White
House to make separate, semi-annual reports to the House and
Senate Judiciary Committees detailing which Department and
which White House personnel had communications regarding
ongoing Department investigations or cases. Covered Department
and White House officers, as defined in Section 2, need not be
included in the reports.
IV. Congressional Budget Office Cost Estimate
The Committee on the Judiciary sets forth, with respect to
the bill, S. 1845, the following estimate prepared by the
Director of the Congressional Budget Office under section 402
of the Congressional Budget Act of 1974:
September 27, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1845, the Security
from Political Interference in Justice Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leigh Angres.
Sincerely,
Peter R. Orszag,
Director.
Enclosure.
S. 1845--Security From Political Interference in Justice Act of 2007
S. 1845 would require biannual reports on communications
between White House and Department of Justice (DOJ) employees
regarding ongoing civil or criminal matters. Under the bill,
the White House and DOJ would report to the Congress the names
of its employees who engaged in those communications. The bill
would provide a reporting exemption for communications between
officials specified in the bill. Those officials would include
the attorney general, deputy attorney general, and the
associate attorney general within DOJ, and the President, Vice
President, White House counsel, and counselor to the President.
CBO estimates that the cost of implementing S. 1845 would
be insignificant. Any such spending would be subject to the
availability of appropriated funds. Enacting the legislation
would not affect direct spending or revenues.
S. 1845 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Leigh Angres.
This estimate was approved by Peter H. Fontaine, Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee on the Judiciary finds that no
significant regulatory impact will result from the enactment of
S. 1845.
VI. Conclusion
The Security from Political Interference in Justice Act of
2007, S. 1845, applies a fundamental tool of Congressional
oversight--the reporting requirement--to the issue of
communications between the Department and the White House
regarding pending investigations and cases. The legislation
would not regulate in any way who may have such communications.
However, through its reporting mechanism, it would provide the
Congress, and the public, with a clear sense of the degree to
which the White House is involved in the administration of
justice.
VII. Minority Views of Senator Kyl
This bill is very likely unnecessary. Members of this
committee have been reliably informed that the Justice
Department's policies regulating intra-executive communications
about criminal investigations are currently under review.
Moreover, the Senate is about to confirm a new U.S. Attorney
General. Some might think it wise that, before imposing another
burdensome and potentially problematic reporting requirement on
the Justice Department, this committee allow the new Attorney
General an opportunity to complete the current policy review
and to implement new policies.
Recognizing, however, that the absence of a need for
legislation is rarely regarded as grounds for delaying its
progress, I will emphasize one change that must be made to this
bill before it is allowed to proceed to the floor. The bill
requires reporting on some potentially very sensitive
communications--communications whose public disclosure could
compromise very important national-security and criminal
investigations. For example, if a United States Attorney in a
rural district is investigating a potential crime of terrorism
and communicates with the NSA, public disclosure of the fact of
that communication may very well alert those who are the
subject of the investigation that they are under surveillance.
Similarly, public disclosure of the existence of communications
between the Justice Department's public-integrity section and
the staff of one of the smaller components of the Executive
Office of the President also poses a serious risk of
compromising an ongoing investigation.
This bill at the very least needs to be amended to mandate
that the reports that it requires to be submitted to Congress
be made confidential. It is not enough that the relevant
committees can choose not to disclose the contents of the
reports. Whether to reveal the facts of these communications
and to potentially compromise ongoing investigations should not
be a matter of legislative discretion. If Congress is to
receive reports about these communications, it must not make
the contents of those reports public.
I would reiterate, however, that this bill is very unlikely
unnecessary. This committee has in recent years required a
large number of new reports to be prepared by the Justice
Department. The recent reauthorization of the USA Patriot Act,
Public Law 109-177, for example, has probably set the record
for the greatest number of new reports required in a single
bill. It is no secret that a large number of these reports are
never read by the committees who mandate their production. And
it should be obvious that the more resources that the Justice
Department is forced to devote to these reports, the fewer that
it may allocate to its core mission of investigating acts of
terrorism and prosecuting federal offenses. I would propose
that before we unnecessarily add to this reporting burden
through this bill, we at least allow the new Attorney General
an opportunity to review and revise the current policies.
Jon Kyl.
VIII. Appendix A
September 29, 1994.
Lloyd N. Cutler, Esq.
Special Counsel to the President, The White House,
Washington, DC.
Dear Mr. Cutler: You have asked for my views on the subject
of communications between the Department of Justice and the
White House concerning matters pending in the Department. These
are the principles and procedures I think we should follow.
In order to ensure the President's ability to perform his
Constitutional obligation to ``take care that the laws be
faithfully executed,'' the Justice Department will advise the
White House concerning pending civil or criminal law
enforcement matters, where important for the performance of the
President's duties and where appropriate from a law enforcement
perspective. Consistent with this principle, since May 1993 the
Department has followed procedural rules governing
communications with the White House concerning pending
Department investigations or criminal or civil cases. Initial
communications between the White House and the Justice
Department regarding any pending Department investigation or
criminal or civil case should involve only the White House
Counselor, Deputy Counsel (or the President or Vice President),
and the Attorney General or Deputy or Associate Attorney
General. If continuing contact is required on a particular
matter, the White House Counsel's Office and the senior
Department official with whom it is dealing design and monitor
that continuing contact.
This process does not apply to communications regarding
matters of policy, appointments, legislation, budgets, public
relations and other similar matters, as to which the White
House staff should deal with whomever is appropriate in the
Department. In addition, from time to time the Department
establishes specific procedures for communications between
particular entities. For example, the White House Counsel's
Office deals directly with the Office of Legal Counsel on
matters in which it is seeking the opinion of the Department,
and directly with the Office of the Solicitor General regarding
the status of supreme court cases. Particularized procedures
have also been applied to communications with the Pardon
Attorney and the National Security Council.
Sincerely,
Janet Reno.
IX. Appendix B
April 15, 2002.
MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS AND UNITED STATES
ATTORNEYS
From: The Attorney General
Subject: Department of Justice Communications with the White House
It is imperative that there be public confidence that the
laws of the United States are administered and enforced in an
impartial manner. To that end, all components of the Department
of Justice, including United States Attorneys' Offices, shall
abide by the following procedures governing communication
between the Department of Justice and the White House.
1. PENDING CRIMINAL INVESTIGATIONS AND CASES
The Department shall provide the White House with
information about pending criminal investigations or cases only
when doing so is important for the performance of the
President's duties and appropriate from a law enforcement
perspective. Except with respect to national security matters,
all initial communications that concern or may concern a
pending criminal investigation or a criminal case pending at
the trial level should take place only between the Office of
the Deputy Attorney General and the Office of the Counsel to
the President, and all initial communications that concern or
may concern a criminal case pending at the appellate level
should take place only between the Office of the Counsel to the
President and either the Office of the Deputy Attorney General
or the Office of the Solicitor General. If appropriate with
regard to a particular case or investigation, the Office of the
Counsel to the President and the senior Justice Department
official with whom the White House is dealing will design and
monitor a process for ongoing contact between the White House
and Justice Department concerning that particular matter.
2. PENDING CIVIL INVESTIGATIONS AND CASES
The Department shall provide the White House with
information about pending civil investigations or cases only
when doing so is important for the performance of the
President's duties and appropriate from a law enforcement or
litigation perspective. Except with respect to national
security matters, all initial communications that concern or
may concern a pending civil investigation or a case pending at
the trial level should take place only between the Office of
the Counsel to the President and either the Office of the
Deputy Attorney General or the Office of the Associate Attorney
General. All initial communications that concern or may concern
a civil case pending at the appellate level should take place
only between the Office of the Counsel to the President and the
Office of the Deputy Attorney General, the Office of the
Associate Attorney General, or the Office of the Solicitor
General. If appropriate with regard to a particular case or
investigation, the Office of the Counsel to the President and
the senior Justice Department official with whom the White
House is dealing will design and monitor a process for ongoing
contact between the White House and the Justice Department
concerning that particular matter.
3. NATIONAL SECURITY MATTERS
The Office of the Deputy Attorney General may communicate
directly with the National Security Council and the Office of
Homeland Security concerning investigations and cases involving
national security issues. Pursuant to Department of Justice
policies and procedures, the Criminal Division and the FBI also
may communicate directly with the National Security Council and
the Office of Homeland Security concerning investigations and
cases involving national security issues. Such communications
should be limited to those aspects of the matter that implicate
national security or homeland security.
4. WHITE HOUSE REQUESTS FOR LEGAL ADVICE
The Office of Legal Counsel and the Office of the Counsel
to the President may communicate directly concerning requests
from the White House for legal advice. All requests for formal
legal opinions from the Department of Justice shall be directed
to the Assistant Attorney General for the Office of Legal
Counsel or the Attorney General.
5. PRESIDENTIAL CLEMENCY MATTERS
The Office of the Pardon Attorney and the Office of the
Counsel to the President may communicate directly concerning
Presidential clemency matters.
6. OTHER COMMUNICATIONS NOT RELATING TO PENDING INVESTIGATIONS OR
CRIMINAL OR CIVIL CASES
All communications between the Department of Justice and
the White House that are limited to policy, legislation,
budgeting, appointments, public affairs, intergovernmental
relations, administrative or personnel matters or similar
matters that do not relate to a pending investigation or a
criminal or civil case, may be handled directly by the parties
concerned. As a general matter, such communications should take
place with the knowledge of the Department's lead contact
regarding the subject under discussion.
* * * * * * *
Notwithstanding any procedures or limitations set forth
above, the Attorney General may communicate directly with the
President, Vice President, Counsel to the President, Assistant
to the President for National Security Affairs, or Assistant to
the President for Homeland Security regarding any matters
within the jurisdiction of the Department of Justice. Staff
members of the Office of the Attorney General, if so designated
by the Attorney General, may communicate directly with
officials and staff of the Office of the President, Office of
the Vice President, Office of the Counsel to the President, the
National Security Council, and the Office of Homeland Security.
X. Appendix C
May 4, 2006.
MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS AND UNITED STATES
ATTORNEYS
From: The Attorney General
Subject: Communications with the Executive Office of the President
Four years ago, Attorney General Ashcroft issued a
memorandum outlining the procedures that govern communications
between the Department of Justice and the White House. I write
today to reiterate those procedures (with some minor revisions
and clarifications) in order to ensure that new personnel are
aware of these rules and to remind everyone of their
importance. It is imperative that there be public confidence
that the laws of the United States are administered and
enforced in an impartial manner. I ask that all components of
the Department of Justice, including Federal Law enforcement
agencies and the United States Attorneys' Offices, abide by the
following procedures on communications between the Department
and the Executive Office of the President (EOP).\*\
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\ *\As used in this memorandum, the term ``EOP'' means the White
House Office, the Office of Policy Development, the Executive
Residence, the Office of Administration, the National Security Council
staff: the Homeland Security Council Staff, the Council of Economic
Advisers, the Office of Management and Budget, the Office of National
Drug Control Policy, the Office of Science and Technology Policy, the
Office of the U.S. Trade Representative, the Council on Environmental
Quality, the President's Foreign Intelligence Advisory Board, and the
Privacy and Civil Liberties Oversight Board. For convenience, the
executive functions of the Vice Presidency are referred to in this
document as the ``Office of the Vice President'' or ``OVP,'' and the
provisions of this memorandum that apply with respect to communications
with the EOP will apply in parallel fashion to communications with the
OVP.
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1. CRIMINAL INVESTIGATIONS AND CASES
The Department shall provide EOP officials and staff with
information about a criminal investigation or case only when
doing so is important for the performance of the President's
duties and appropriate from a law enforcement perspective.
Except with respect to national security matters, all initial
communications that concern or may concern such an
investigation or case pending at the trial level should take
place only between the Office of the Counsel to the President
and the Office of the Deputy Attorney General (ODAG), and all
initial communications that concern or may concern a criminal
case pending at the appellate level should take place only
between the Office of the Counsel to the President and either
ODAG or the Office of the Solicitor General (OSG). If
appropriate with regard to a particular case or investigation,
the Office of the Counsel to the President and the senior
Justice Department official with whom the EOP is dealing will
design and monitor a process for ongoing contact between staff
at the EOP and the Justice Department concerning that
particular matter.
2. CIVIL INVESTIGATIONS AND CASES
The Department shall provide EOP officials and staff with
information about a civil investigation or case only when doing
so is important for the performance of the President's duties
and appropriate from a law enforcement and litigation
perspective. Except with respect to national security matters,
all initial communications that concern or may concern such an
investigation or case pending at the trial level should take
place only between the Office of the Counsel to the President
and either ODAG or the Office of the Associate Attorney General
(OASG). All initial communications that concern or may concern
a civil case pending at the appellate level should take place
only between the Office of the Counsel to the President and
ODAG, OASG, or OSG. If appropriate with regard to a particular
case or investigation, the Office of the Counsel to the
President and the senior Justice Department official with whom
the EOP is dealing will design and monitor a process for
ongoing contact between staff at the EOP and the Justice
Department concerning that particular matter.
3. NATIONAL SECURITY AND HOMELAND SECURITY MATTERS
ODAG may communicate directly with the National Security
Council (NSC) and the Homeland Security Council (HSC)
concerning investigations and cases involving national security
or homeland security, and OASG may do so with respect to any
such investigation or case that has become the subject of civil
litigation. If appropriate with regard to a particular case or
investigation, ODAG will design and monitor a process for
ongoing contact between staff at the NSC or HSC and the Justice
Department concerning that particular matter.
4. REQUESTS FOR LEGAL ADVICE
The Office of Legal Counsel (OLC) may communicate directly
with counsel for each component within the EOP (including, for
example, the: Office of the Counsel to the President or the
General Counsel of the Office of Management and Budget)
concerning requests for legal advice. It may be advisable to
copy an appropriate attorney from the Office of the Counsel to
the President on communications with other EOP components. All
requests for formal legal opinions from the Department of
Justice shall be directed to the Attorney General or the
Assistant Attorney General for OLC.
5. PRESIDENTIAL CLEMENCY MATTERS
The Office of the Pardon Attorney may communicate directly
with the Counsel to the President and the Deputy Counsel to the
President (and their designee) concerning Presidential clemency
matters.
6. OTHER COMMUNICATIONS NOT RELATING TO INVESTIGATIONS OR CRIMINAL OR
CIVIL CASES
All communications between the Department of Justice and
the EOP that are limited to policy, legislation, budgeting,
appointments, public affairs, intergovernmental relations,
administrative or personnel matters, or similar matters that do
not relate to an investigation or a criminal or civil case may
be handled directly by the parties concerned. Such
communications should take place with the knowledge of the
Department's lead contact regarding the subject under
discussion.
* * * * * * *
Notwithstanding any procedures or limitations set forth
above, the Attorney General may communicate directly with the
President, Vice President, their Chiefs of Staff, Counsel to
the President or Vice President, Assistant to the President for
National Security Affairs, Assistant to the President and
Homeland Security Advisor, or the head of any office within the
EOP regarding any matter within the jurisdiction of the
Department of Justice. Staff members of the Office of the
Attorney General, if so designated by the Attorney General, may
communicate directly with officials and staff of the White
House Office, the Office of the Vice President, the National
Security Council, the Homeland Security Council, and the Office
of Management and Budget.
XI. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 1845, as reported, are shown as follows (new matter is
printed in italic):
In the appropriate place, insert:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Security from Political
Interference in Justice Act of 2007.''
SEC. 2. DEFINITIONS.
In this Act--
(1) the term ``covered communication''--
(A) means any communication relating to an
ongoing investigation conducted by the
Department of Justice in any civil or criminal
matter (regardless of whether a civil action or
criminal indictment or information has been
filed); and
(B) does not include any communication
relating to policy, appointments, legislation,
rulemaking, budgets, public relations,
programmatic matters, intergovernmental
relations, administrative or personnel matters,
appellate litigation, or requests for legal
advice;
(2) the term ``covered Department of Justice
officer'' means--
(A) the Attorney General;
(B) the Deputy Attorney General; and
(C) the Associate Attorney General; and
(3) the term ``covered White House officer'' means--
(A) the President;
(B) the Vice President;
(C) the Counsel to the President; and
(D) the Counselor to the President.
SEC. 3. REPORTS TO CONGRESS.
(a) Department of Justice Report.--Not later than 30 days
after each January 1 and July 1 of each calendar year, the
Attorney General shall submit to the Committee on the Judiciary
of the Senate and the Committee on the Judiciary of the House
of Representatives a report with the name and title of each
officer or employee of the Department of Justice who made a
covered communication during the 6-month period preceding that
January 1 or July 1 with any officer or employee of the
Executive Office of the President. The report need not include
any covered Department of Justice officer.
(b) White House Report.--Not later than 30 days after each
January 1 and July 1 of each calendar year, the Counsel to the
President shall submit to the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives a report with the name and title of each
officer or employee of the Executive Office of the President
who made a covered communication during the 6-month period
preceding that January 1 or July 1 with any officer or employee
of the Department of Justice. The report need not include any
covered White House Officer.