S. Rept. 110-522 - 110th Congress (2007-2008)
November 19, 2008, As Reported by the Judiciary Committee

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Senate Report 110-522 - SRPT110-522




[Senate Report 110-522]
[From the U.S. Government Printing Office]



                                                      Calendar No. 1125
                                                      Calendar No. 1126
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-522

======================================================================






                                _______
                                

               November 19, 2008.--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. Res. 707 and S. Res. 708]

    The Committee on the Judiciary, reports favorably on 
original resolutions (S. Res. 707) authorizing the President of 
the Senate to certify the facts of the failure of Joshua 
Bolten, as the Custodian of Records at the White House, to 
appear before the Committee on the Judiciary and produce 
documents as required by Committee subpoena, and (S. Res. 708) 
authorizing the President of the Senate to certify the facts of 
the failure of Karl Rove to appear and testify before the 
Committee on the Judiciary and to produce documents as required 
by Committee subpoena, and recommends that the resolutions do 
pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Background of Resolutions............................2
 II. Hearings and Interviews..........................................4
III. Committee's Efforts To Reach Accommodation Were Futile...........9
 IV. Non-compliance with Committee's Subpoenas.......................12
  V. Ruling on Executive Privilege and Immunity Claims...............13
 VI. Resolutions of Contempt.........................................20
VII. The Privilege and Immunity Claims Are Not Legally Valid to Excuse 
     Compliance......................................................24
VIII.Continued Non-Compliance Despite District Court's Decision in 
     House Judiciary Committee Lawsuit Dismissing the Administration's 
     Immunity and Blanket Privilege Claims...........................39
 IX. Department of Justice's Internal Investigation Confirmed Judiciary 
     Committee's Findings Though Impeded by White House Refusal to 
     Cooperate.......................................................42
  X. Conclusion......................................................48
 XI. Minority Views of Senators Specter and Grassley.................49
XII. Minority Views of Senators Kyl, Sessions, Brownback and Coburn..54

              I. Purpose and Background of the Resolutions

    Since the beginning of the 110th Congress, the Judiciary 
Committee has conducted an investigation into the unprecedented 
mass firings of Federal prosecutors by those in the 
administration of the President who appointed them.
    The investigation began after news reports in late 2006 and 
early 2007 revealed that seven U.S. Attorneys had been fired on 
December 7, 2006: David C. Iglesias, District of New Mexico; 
Carol Lam, Southern District of California; John McKay, Western 
District of Washington; Daniel Bogden, District of Nevada; Paul 
K. Charlton, District of Arizona; Margaret Chiara, Western 
District of Michigan; and Kevin Ryan, Northern District of 
California. The Committee subsequently learned that H.E. 
``Bud'' Cummins, III, Eastern District of Arkansas, was told to 
resign in June 2006, and that Todd Graves, Western District of 
Missouri, was asked to resign in January 2006. According to a 
joint investigation by the Department's Office of Inspector 
General (IG) and Office of Professional Responsibility (OPR), 
28 U.S. Attorneys appeared on lists of those being considered 
for firing between the beginning of 2005 and the end of 
2006.\1\ The report verified news accounts that several dozen 
U.S. Attorneys were considered for firing.
---------------------------------------------------------------------------
    \1\See ``An Investigation into the Removal of Nine U.S. Attorneys 
in 2006,'' U.S. Department of Justice Office of the Inspector General 
and U.S. Department of Justice Office of Professional Responsibility, 
September 29, 2008, chart at 18-19.
---------------------------------------------------------------------------
    In the course of this investigation, which led to the 
resignations of the Attorney General, the senior leadership of 
the Justice Department, their staff, and several high-ranking 
White House political officials, the Committee has uncovered 
grave threats to the independence of law enforcement from 
political manipulation. The evidence accumulated from the 
testimony of nearly 20 current and former Justice Department 
officials, as well as documents released by the Department, 
shows that the list for firings was compiled with participation 
from the highest political ranks in the White House, including 
former White House Deputy Chief of Staff Karl Rove. The 
evidence shows that senior officials were focused on the 
political impact of Federal prosecutions and whether Federal 
prosecutors were doing enough to bring partisan voter fraud and 
corruption cases. It is now apparent that the reasons given for 
these firings, including those reasons provided in sworn 
testimony by the Attorney General and Deputy Attorney General, 
were contrived as part of a cover-up.
    The Committee's attempts to obtain information from the 
White House, first requested voluntarily and later legally 
compelled by subpoena, have been met with stonewalling. In the 
process, the White House has asserted blanket claims of 
executive privilege, and novel claims of absolute immunity, to 
block current and former officials from testifying and 
producing documents in compliance with the Committee's 
subpoenas.
    The constitutional powers of Congress and the 
responsibilities of this Committee to the Senate and the 
American people overcome unsubstantiated privilege claims by 
the White House. The Supreme Court has long recognized that 
Congress has ``broad'' power to investigate ``the 
administration of existing laws'' and to ``expose corruption, 
inefficiency, waste'' within the executive branch.\2\ The 
evidence obtained by the Judiciary Committee's investigation, 
and the resulting reports issued by the Department of Justice's 
Inspector General and Office of Professional Responsibility, 
raises concerns about the violation of Federal laws, including 
possible obstruction of justice, laws that prohibit providing 
misleading or inaccurate testimony to Congress, and possible 
violations of laws, including the Hatch Act, that prohibit 
retaliation against Federal employees for improper political 
reasons. The Committee has a responsibility to conduct 
investigations and obtain information from the executive branch 
in order to consider legislation within its jurisdiction,\3\ 
including legislation related to the appointment of U.S. 
Attorneys, and to protect the Committee's role in evaluating 
nominations pursuant to the Senate's constitutional 
responsibility to provide advice and consent.
---------------------------------------------------------------------------
    \2\See Watkins v. United States, 354 U.S. 178, 187 (1957).
    \3\See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
---------------------------------------------------------------------------
    The Supreme Court has long held that oversight is 
``inherent in the legislative process'' and vital for 
``prob[ing] into departments of the Federal Government to 
expose corruption, inefficiency or waste.''\4\ The 
investigation demonstrated the relationship between the 
Committee's oversight and investigative powers, and its 
responsibilities to legislate and evaluate nominations. In 
fact, in connection to this investigation, the Judiciary 
Committee considered and reported the ``Preserving United 
States Attorney Independence Act of 2007'' (S. 214), a bill 
introduced by Senator Feinstein and which was signed into law 
on June 14, 2007, to close a loophole exploited by the 
Department of Justice and the White House to enable abuses to 
occur. The new law rescinded the Attorney General's power to 
appoint interim U.S. Attorneys to serve indefinitely without 
congressional approval.\5\
---------------------------------------------------------------------------
    \4\Watkins v. United States, 354 U.S. 178, 187 (1957).
    \5\See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109-177, Title 
V, 502, 120 Stat. 546 (Mar. 9, 2006); amended by Pub. L. No. 110-34, 2, 
121 Stat. 224 (June 14, 2007).
---------------------------------------------------------------------------
    Not only does the Senate have the power to confirm a 
President's U.S. Attorney nominations, a matter under Senate 
rules within the jurisdiction of this Committee, but the 
appointment power is given to Congress by the Constitution. In 
Article II, the President's appointment power is limited by the 
power of Congress. In addition, constitutional provisions 
calling for appointments with the advice and consent of the 
Senate and for the President's limited power to make recess 
appointments, the Constitution provides: ``But the Congress may 
by law vest the appointment of such inferior officers, as they 
think proper, in the President alone, in the courts of law, or 
in the Heads of Departments.''\6\ In 2007, the Eastern District 
of Arkansas joined at least two other courts addressing the 
interim appointment of U.S. Attorneys--the First Circuit in 
United States v. Hilario,\7\ and the Ninth Circuit in United 
States v. Gantt in concluding that U.S. Attorneys are 
``inferior officers.''\8\ Thus, Congress--and in particular 
this Committee--has a vested interest in obtaining information 
relating to the appointment and removal of U.S. Attorneys in 
order to fulfill its constitutional duty to provide for the 
appointment of inferior officers.
---------------------------------------------------------------------------
    \6\U.S. Const. Art. II, 2, cl. 2.
    \7\218 F.3d 19 (1st Cir. 2000) (upholding the constitutionality of 
the pre-Patriot Act reauthorization law on interim appointments, 
including the role of the district court about which the administration 
earlier this year raised separation of powers concerns).
    \8\See United States v. Baker, 504 F.Supp.2d 402, 412 (2007).
---------------------------------------------------------------------------
    On November 29, 2007, Chairman Leahy ruled that the White 
House's claims of executive privilege and immunity are not 
legally valid to excuse current and former White House 
employees from appearing, testifying and producing documents 
related to this investigation. Accordingly, Chairman Leahy 
directed Karl Rove and White House Chief of Staff Joshua Bolten 
to comply immediately with the Committee's subpoenas by 
producing documents and testimony. They failed to do so, and on 
December 13, 2007, a bipartisan majority of the Committee voted 
to report favorably resolutions finding Mr. Rove and Mr. Bolten 
in contempt of Congress.

                      II. Hearings and Interviews


                 A. SENATE JUDICIARY COMMITTEE HEARINGS

January 18, 2007

    Hearing: Oversight of the U.S. Department of Justice.
    Senate Judiciary Committee.
    Witnesses:
          
 Alberto Gonzales, Attorney General, U.S. 
        Department of Justice

February 6, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys.
    Senate Judiciary Committee.
    Witnesses:
          
 Mark Pryor, U.S. Senator, Arkansas
          
 Paul J. McNulty, Deputy Attorney General, 
        U.S. Department of Justice
          
 Mary Jo White, Partner, Debevoise & 
        Plimpton, LLP, New York, NY
          
 Laurie L. Levenson, Professor of Law, Loyola 
        Law School, Los Angeles, CA
          
 Stuart M. Gerson, Partner, Epstein Becker & 
        Green, Washington, DC

March 6, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part II.
    Senate Judiciary Committee.
    Witnesses:
          
 H.E. ``Bud'' Cummins, III, Former U.S. 
        Attorney for the Eastern District of Arkansas
          
 David C. Iglesias, Former U.S. Attorney for 
        the District of New Mexico
          
 Carol Lam, Former U.S. Attorney for the 
        Southern District of California
          
 John McKay, Former U.S. Attorney for the 
        Western District of Washington

March 29, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part III.
    Senate Judiciary Committee.
    Witnesses:
          
 D. Kyle Sampson, former Chief of Staff to 
        the Attorney General, U.S. Department of Justice

April 19, 2007

    Hearing: Department of Justice Oversight.
    Senate Judiciary Committee.
    Witnesses:
          
 Alberto Gonzales, Attorney General, U.S. 
        Department of Justice

May 15, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part IV.
    Senate Judiciary Committee.
    Witnesses:
          
 James B. Comey, former Deputy Attorney 
        General, U.S. Department of Justice

June 5, 2005

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part V.
    Senate Judiciary Committee.
    Witnesses:
          
 Panel I
                  
 Bradley J. Schlozman, Associate 
                Counsel to the Director, Executive Office for 
                U.S. Attorneys, former Interim U.S. Attorney 
                for the Western District of Missouri, former 
                Principal Deputy Assistant Attorney General and 
                Acting Assistant Attorney General for the Civil 
                Rights Division, U.S. Department of Justice
          
 Panel II
                  
 Todd Graves, former U.S. Attorney 
                for the Western District of Missouri

June 27, 2007

    Hearing: Oversight of the Federal Death Penalty.
    Senate Judiciary Committee, Subcommittee on the 
Constitution.
    Witnesses:
          
 Panel I
                  
 Barry Sabin, Deputy Assistant 
                Attorney General, U.S. Department of Justice
          
 Panel II
                  
 David I. Bruck, Esq., Federal Death 
                Penalty Resource Counsel, Lexington, VA
                  
 Paul K. Charlton, former U.S. 
                Attorney for the District of Arizona
                  
 David B. Mulhausen, Ph.D., Senior 
                Policy Analyst, Center for Data Analysis, The 
                Heritage Foundation, Washington, DC
                  
 William G. Otis, former Chief of the 
                Appellate Division, U.S. Attorney's Office, 
                Eastern District of Virginia
                  
 Roberto J. Sanchez Ramos, Secretary 
                of Justice, Commonwealth of Puerto Rico
                  
 Hilary O. Shelton, Director, 
                Washington Bureau, National Association for the 
                Advancement of Colored People

July 11, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part VI.
    Senate Judiciary Committee.
    Witnesses:
                  
 Sara M. Taylor, former Deputy 
                Assistant to the President and Director of 
                Political Affairs, The White House

August 2, 2007

    Hearing: Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of 
U.S. Attorneys?--Part VII.
    Senate Judiciary Committee.
    Witnesses:
          
 J. Scott Jennings, former Deputy Director of 
        Political Affairs, The White House

                 B. HOUSE JUDICIARY COMMITTEE HEARINGS

March 6, 2007

    Hearing: H.R. 580, Restoring Checks and Balances in the 
Confirmation Process of U.S. Attorneys.
    House Judiciary Committee, Commercial and Administrative 
Law Subcommittee.
    Witnesses:
          
 Panel I
                  
 William E. Moschella, Principal 
                Associate Deputy Attorney General, U.S. 
                Department of Justice
          
 Panel II
                  
 Carol C. Lam, Former U.S. Attorney 
                for the Southern District of California
                  
 David C. Iglesias, Former U.S. 
                Attorney for the District of New Mexico
                  
 Daniel Bogden, Former U.S. Attorney 
                for the District of Nevada
                  
 Paul K. Charlton, Former U.S. 
                Attorney for the District of Arizona
                  
 H. E. Cummins III, Former U.S. 
                Attorney for the Eastern District of Arkansas
                  
 John McKay, Former U.S. Attorney for 
                the Western District of Washington
          
 Panel III
                  
 Darrell E. Issa, Member, U.S. House 
                of Representatives
                  
 Asa Hutchinson, former Member, U.S. 
                House of Representatives
                  
 John A. Smietanka, former U.S. 
                Attorney for the Western District of Michigan
                  
 Altee W. Wampler III, President, 
                National Association of Former U.S. Attorneys
                  
 George J. Terwilliger III, Partner, 
                White and Case LLP
                  
 T.J. Halstead, Legislative Attorney, 
                American Law Division, Congressional Research 
                Service

March 29, 2007

    Hearing: Ensuring Executive Branch Accountability.
    House Judiciary Committee, Subcommittee on Commercial and 
Administrative Law.
    Witnesses:
          
 Noel J. Francisco, former Associate Counsel 
        to President George W. Bush, Partner, Jones Day 
        Washington, D.C.
          
 Beth Nolan, former White House Counsel to 
        President Bill Clinton, Partner, Crowell & Moring 
        Washington, D.C.
          
 John Podesta, former White House Chief of 
        Staff to President Bill Clinton, President and Chief 
        Executive Officer Center for American Progress, 
        Washington, D.C.
          
 Frederick A.O. Schwarz, Jr., Senior Counsel, 
        Brennan Center for Justice at NYU School of Law

May 3, 2007

    Hearing: The Continuing Investigation into the U.S. 
Attorneys Controversy Witnesses.
    House Judiciary Committee, Subcommittee on Commercial and 
Administrative Law.
    Witnesses:
          
 James B. Comey, former Deputy Attorney 
        General, U.S. Department of Justice

May 10, 2007

    Hearing: Oversight Hearing on the United States Department 
of Justice.
    House Judiciary Committee.
    Witnesses:
          
 Alberto Gonzales, Attorney General, U.S. 
        Department of Justice

May 23, 2007

    Hearing: The Continuing Investigation into the U.S. 
Attorneys Controversy and Related Matters.
    House Judiciary Committee.
    Witnesses:
          
 Monica Goodling, former Justice Department 
        White House Liaison

June 21, 2007

    Hearing: The Continuing Investigation into the U.S. 
Attorneys Controversy and Related Matters.
    House Judiciary Committee.
    Witnesses:
          
 Paul J. McNulty, Deputy Attorney General, 
        U.S. Department of Justice

C. INTERVIEWS (CONDUCTED BY HOUSE AND SENATE JUDICIARY COMMITTEE STAFF 
                        UNLESS OTHERWISE NOTED)

March 30, 2007

    Interview with Michael Elston, Chief of Staff, Office of 
the Deputy Attorney General [House only].

April 11, 2007

    Interview with William Mercer, Acting Associate Attorney 
General, U.S. Department of Justice.

April 12, 2007

    Interview with Michael Battle, former Executive Director, 
Executive Office for U.S. Attorneys.

April 15, 2007

    Interview with D. Kyle Sampson, Former Chief of Staff to 
the Attorney General of the United States.

April 18, 2007

    Interview with D. Kyle Sampson, Former Chief of Staff to 
the Attorney General of the United States.

April 24, 2007

    Interview with William E. Moschella, Principal Associate 
Deputy Attorney General, U.S. Department of Justice.

April 27, 2007

    Interview with Paul J. McNulty, Deputy Attorney General, 
U.S. Department of Justice.

May 1, 2007

    Interview with David Margolis, Associate Deputy Attorney 
General.

May 4, 2007

    Interview with Matthew Friedrich, Chief of Staff and 
Principal Deputy Assistant Attorney General, Criminal Division, 
U.S. Department of Justice.

May 8, 2007

    Interview with Larry Gomez, Acting U.S. Attorney for the 
District of New Mexico.

May 21, 2007

    Interview with David Nowacki, Principal Deputy Director, 
Executive Office for U.S. Attorneys.

June 15, 2007

    Interview with Mary Beth Buchanan, U.S. Attorney for the 
Western District of Pennsylvania, former Director of the 
Executive Office for U.S. Attorneys, U.S. Department of 
Justice.

July 10, 2007

    Interview with D. Kyle Sampson, former Chief of Staff to 
the Attorney General of the United States.

September 14, 2007

    Interview with Dana Simpson, attorney from Alabama [House 
only].

      III. Committee's Efforts To Reach Accommodation Were Futile

    Before the issuance of the Committee's first subpoena to 
White House officials, the Committee sought, to no avail, the 
voluntary cooperation of the White House and its current and 
former employees. Instead, the President and the White House 
counsel conditioned any limited availability of information on 
a demand that whatever the White House were to provide 
initially would end the matter, and the Senate Judiciary 
Committee would agree to halt its investigation. They also 
demanded that any information provided be shared behind closed 
doors, not under oath and without a transcript. Despite 
mounting evidence of significant involvement by White House 
political officials, the White House did not produce a single 
document or allow even one White House employee or former 
employee involved in these matters to be interviewed 
voluntarily.
    The administration has continued to rebuke the Committee's 
efforts to reach an accommodation since this initial, 
unacceptable ``take it or leave it'' offer. At each step, the 
Committee has sought an accommodation, but the White House has 
reiterated its initial offer. Chairman Leahy issued Committee-
authorized subpoenas only after extensive efforts to reach a 
voluntary accommodation, and having concluded that further 
efforts to reach an accommodation would be futile.
    Before issuing the subpoenas, the Committee sent nearly a 
dozen letters seeking voluntary cooperation from the White 
House and its current and former employees with the 
investigation:
    
 On March 13, 2007, Chairman Leahy and Senator 
Specter, the Committee's Ranking Member, sent a letter to White 
House Counsel Fred Fielding echoing a March 9, 2007, request 
from the House Judiciary Committee for documents and interviews 
with White House officials related to the U.S. Attorney 
investigation. Chairman Leahy and Senator Specter also sent 
letters to then White House Deputy Chief of Staff Karl Rove, 
then Deputy White House Counsel William Kelley, and former 
White House Counsel Harriet Miers seeking their voluntary 
cooperation with the Committee's investigation. On March 15, 
2007, Chairman Leahy and Senator Specter sent a similar letter 
to Special Assistant to the President and Deputy Director of 
Political Affairs J. Scott Jennings.
    
 On March 20, 2007, Mr. Fielding sent a letter to 
the Senate and House Judiciary Committees making a ``take it or 
leave it'' offer of off-the-record interviews with current and 
former White House employees, with no transcript, no oath, and 
no ability to follow up. Mr. Fielding offered to produce a 
small subset of the documents requested, but only as part of an 
agreement to the offer, which would prejudice any further 
investigative steps.
    
 On March 22, 2007, Chairman Leahy and nine Members 
of the Senate Judiciary Committee sent a letter to Mr. Fielding 
explaining that this ``take it or leave it'' offer was 
unacceptable because it would constrain the Committee's and the 
public's access to key information, and prejudge the outcome of 
the investigation. Republican Members of the Committee also 
publicly and privately recognized that such off-the-record 
meetings would be inadequate, and inhibit the Committee's 
exercise of its investigative, oversight and legislative 
functions. On the same day, the Committee authorized subpoenas 
for Mr. Rove, Ms. Miers, and Mr. Kelley.
    
 On March 28, 2007, having received no response 
from the White House to the March 22, 2007, letter, Chairman 
Leahy and House Judiciary Committee Chairman Conyers, in an 
effort to further the investigation, sent Mr. Fielding a letter 
seeking to narrow the dispute and gain access to documents the 
White House had previously offered to provide as part of its 
``take it or leave it'' proposal.
    
 Still having received no response from Mr. 
Fielding to the previous two letters, Chairman Leahy sent Mr. 
Fielding another letter on April 5, 2007, asking for the 
``reviews by White House staff'' that led the President to say 
on March 20, 2007, that there was no wrongdoing.
    
 On April 11, 2007, Chairman Leahy and Senator 
Specter sent a letter to then White House Director of Political 
Affairs Sara M. Taylor seeking her voluntary cooperation with 
the Committee's investigation.
    
 On April 12, 2007, in light of the Committee's 
request for White House emails related to the investigation, 
Chairman Leahy and Senator Specter sent a letter to Mr. 
Fielding requesting information about revelations that dozens 
of White House officials used non-governmental Republican 
National Committee email accounts for official government 
business. No White House emails have been turned over to the 
Committee.
    
 On April 12, 2007, and April 25, 2007, the 
Judiciary Committee authorized subpoenas for White House Chief 
of Staff Joshua Bolten as custodian of documents for the White 
House and Mr. Jennings and Ms. Taylor, respectively.
    
 Still having not received answers to the previous 
letters nearly two months after rejecting the White House's 
initial offer as unacceptable, Chairman Leahy sent Mr. Fielding 
a letter on May 16, 2007, recounting the previous requests for 
information and summarizing the evidence gathered by the 
investigating Committees of the Senate and House. This evidence 
showed that White House officials played a significant role in 
originating, developing, coordinating and implementing the plan 
for firing U.S. Attorneys, and the Justice Department's 
response to congressional inquiries about it. This evidence 
also included an apparent effort to minimize admissions of the 
involvement by White House officials. The letter repeated the 
request for voluntary cooperation, but notified Mr. Fielding 
that the Chairman would have no choice but to issue subpoenas 
if it was not forthcoming.
    
 On June 7, 2007, Mr. Fielding sent a letter to the 
Senate and House Judiciary Committees disputing any wrongdoing 
and reiterating the same ``take it or leave it'' offer from 
March 20, 2007, for backroom interviews that the Committee 
rejected three months earlier. No documents accompanied the 
letter.
    
 After exhausting avenues of voluntary cooperation, 
on June 13, 2007, and July 26, 2007, Chairman Leahy issued 
subpoenas, authorized by the Committee in April 2007, for White 
House documents from Mr. Bolten and for documents and testimony 
from Mr. Rove. These subpoenas were met with non-compliance, 
eliciting blanket claims of executive privilege and immunity 
from the White House.
    
 On August 14, 2007, at the urging of Senator 
Specter, Chairman Leahy wrote to President Bush suggesting a 
meeting to work out differences with respect to the 
investigation before the Committee would be forced to consider 
citations for contempt of Congress by current and former White 
House officials. Mr. Fielding responded for the President on 
August 17, 2007, rejecting the offer.
    This stonewalling is a dramatic break from the practices of 
every administration since World War II in responding to 
congressional oversight.\9\ In that time, presidential advisors 
have testified before congressional committees 74 times, either 
voluntarily or compelled by subpoenas. During the Clinton 
administration, White House and administration advisors were 
routinely subpoenaed for documents or to appear before 
Congress. For example, in 1996 alone, the House Government 
Reform Committee issued at least 27 subpoenas to White House 
advisors. According to the Congressional Oversight Manual 
produced by the non-partisan Congressional Research Service, 
most disputes between Congress and the executive branch about 
access to documents and information are resolved through 
compromise.\10\ The veil of secrecy this administration has 
insisted upon is unprecedented and damaging to the tradition of 
open government that has been a hallmark of this Republic.
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    \9\See March 21, 2007, letter from Congressman Henry A. Waxman, 
Chairman, House Committee on Oversight and Government Reform, to 
Senator Patrick Leahy and Congressman John Conyers, Jr.
    \10\Morton Rosenberg, Congressional Oversight Manual, CRS-39.
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    Failure to provide information through accommodation 
despite the established public need for it bolsters the need to 
overcome claims of executive privilege. Executive privilege is 
overcome where the subpoenaed materials likely contain 
important information and where that information is not 
available elsewhere.\11\ The evidence the Committee obtained in 
this investigation shows significant involvement by senior 
White House officials, but the White House has closed all 
avenues for obtaining materials necessary to answer critical 
questions about its involvement.\12\
---------------------------------------------------------------------------
    \11\In re Sealed Case, 121 F.3d at 755.
    \12\The minority views filed by Senators Kyl, Sessions, Brownback 
and Coburn quote Chairman Leahy and other Democratic Senators out of 
context to suggest that the actions taken by the Committee in this 
investigation stand in contrast to past statements recognizing that 
``issuing a subpoena was a serious matter that should be undertaken 
only after substantial deliberation.'' To the contrary, as demonstrated 
in exhaustive detail in this report, this Committee undertook extensive 
efforts to reach an accommodation with the administration before 
authorizing subpoenas, before issuing subpoenas, before issuing any 
rulings, and before voting on contempt resolutions. Judge Bates of the 
District Court for the District of Columbia recounted the extent of the 
efforts taken by both the House and Senate Judiciary Committees to 
reach an accommodation with the administration in rejecting the 
administration's claims of absolute immunity and blanket 
unsubstantiated privilege. Judge Bates acknowledged that these efforts 
had been to no avail in light of the administration's continued 
reliance on its initial ``take it or leave it'' proposal for off-the-
record, backroom interviews with no transcript, no oath, and no ability 
to follow up, which would deny Congress the ability to fulfill its 
legislative and oversight responsibilities.
    The Bush Administration's approach is a sharp break from the 
approach of past administrations, such as the Clinton Administration, 
in which 47 presidential advisors testified before Congress. Indeed, 
the Committee's deliberation in continuing to seek an accommodation 
with the administration even after voting to adopt the contempt 
resolutions has led Senators Specter and Grassley to file minority 
views to question whether the matter is now ``somewhere between moot 
and meaningless'' because so much time has passed. Although the 
administration has continued to stonewall the investigation, three 
reports from the Department of Justice's Inspector General and Office 
of Professional Responsibility have confirmed the Committee's findings 
of serious wrongdoing, a federal court has rejected the 
administration's immunity and privilege claims, and the Attorney 
General has referred the matter to a Special Prosecutor for further 
investigation to determine whether crimes occurred.
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IV. Former and Current White House Officials Failed To Comply With the 
   Senate Judiciary Committee's Subpoenas, Citing Blanket Executive 
                     Privilege and Immunity Claims

    In response to Senate Judiciary Committee subpoenas for 
White House documents and for documents and testimony from 
current and former White House officials related to the mass 
firings of U.S. Attorneys, White House Counsel Fred Fielding 
has conveyed President Bush's blanket claim of executive 
privilege over all information from the White House related to 
the Committee's investigation. In addition to its privilege 
claims, the White House has asserted the novel claim that Karl 
Rove, subpoenaed by this Committee for testimony and documents, 
is immune as an ``immediate Presidential Advisor'' from 
appearing at all.\13\
---------------------------------------------------------------------------
    \13\Letter from Fred Fielding, White House counsel, to Chairman 
Leahy and Senator Specter (August 1, 2007).
---------------------------------------------------------------------------
    The effects of the White House's assertions of privilege 
and immunity have been to withhold critical information related 
to the Committee's investigation. The Committee has 
demonstrated that it needs the subpoenaed materials in order to 
perform its constitutional legislative, investigative, and 
oversight functions and to explore the veracity of 
administration responses to requests for information from the 
Committee.
    On June 13, 2007, Chairman Leahy issued a subpoena 
authorized April 12, 2007, to Mr. Bolten, the White House 
custodian of records, for documents related to the Committee's 
investigation. The return date for the documents from Mr. 
Bolten was June 28, 2007.
    On June 28, 2007, Mr. Fielding sent a letter to the Senate 
and House Judiciary Committees making a blanket claim of 
executive privilege on behalf of President Bush, refusing to 
turn over any documents compelled by subpoenas.\14\
---------------------------------------------------------------------------
    \14\Mr. Fielding's letter also responded to a subpoena issued June 
13 to former White House employee Sara Taylor for documents and 
testimony. Mr. Fielding's letter asserted that the testimony of Ms. 
Taylor would be subject to a claim of executive privilege. That same 
day, Mr. Fielding informed Ms. Taylor's attorney, W. Neil Eggleston, 
that the President claimed executive privilege over all responsive 
documents. Mr. Eggleston by letter informed the Committee that Ms. 
Taylor was not producing the compelled documents, but rather turning 
responsive documents over to the White House. Ms. Taylor was directed 
by Mr. Fielding not to testify, and when she appeared before the Senate 
Judiciary Committee on July 11, 2007, she selectively invoked Mr. 
Fielding's letter to answer some, but not to answer many other, 
questions regarding the firings.
---------------------------------------------------------------------------
    In response to the White House's blanket privilege claims, 
on June 29, 2007, the Chairmen of the Senate and House 
Judiciary Committees sent Mr. Fielding a letter asking the 
White House to provide the Committees with the specific factual 
and legal bases for its privilege claims regarding each 
document withheld and a privilege log. They asked the White 
House to provide this information so that it could substantiate 
its claim. A serious assertion of privilege would include an 
effort to demonstrate to the Committees which documents, and 
which parts of those documents, are covered by any privilege 
that is asserted to apply and why. The White House declined 
this opportunity in a July 9, 2007, letter to the Committee 
Chairmen. No factual basis for the blanket claims and no 
specificity with respect to those claims of privilege have been 
provided.
    On July 26, 2007, Chairman Leahy issued a subpoena to Mr. 
Rove for documents and testimony related to the Committee's 
investigation. This subpoena had been authorized by the 
Committee on March 22, 2007. It had a return date of August 2, 
2007. Mr. Fielding sent a letter August 1, 2007, to Chairman 
Leahy and Senator Specter informing the Committee that the 
President would invoke the blanket claim of executive privilege 
to direct Mr. Rove not to produce responsive documents or 
testify before the Committee about the firings.\15\ In 
addition, this letter asserted that Mr. Rove was ``immune from 
compelled congressional testimony'' as an ``immediate 
presidential advisor'' and would not even appear in response to 
the Committee's subpoena.\16\
---------------------------------------------------------------------------
    \15\Mr. Fielding's August 1, 2007, letter also informed the 
Committee that the President would invoke the blanket claim of 
executive privilege in response to a July 26, 2007, subpoena of Scott 
Jennings. On August 2, 2007, Mr. Fielding sent a letter to Mr. Jennings 
informing him that he was ``directed'' not to produce documents or 
testify before Congress regarding the U.S. Attorney firings due to the 
President's blanket privilege claim. When Mr. Jennings appeared before 
the Senate Judiciary Committee on August 2, 2007, he selectively 
invoked Mr. Fielding's letter not to answer most questions from members 
of the Committee.
    \16\Letter from Fred Fielding, White House Counsel, to Chairman 
Leahy and Senator Specter (August 1, 2007).
---------------------------------------------------------------------------
    Before ruling on the White House's executive privilege and 
immunity claims, Chairman Leahy wrote to President Bush on 
August 14, 2007, at the urging of Senator Specter, suggesting a 
meeting to work out differences with respect to the 
investigation before the Committee. Mr. Fielding responded for 
the President on August 17, 2007, and rejected the request for 
a meeting.
    Executive privilege is not a broad and sweeping authority 
the President can hide behind because he does not want to 
cooperate with congressional oversight because White House 
actions are embarrassing or worse. It should not prevent 
Congress from examining White House documents vitally important 
to a legitimate investigation. While courts have recognized a 
qualified executive privilege, that privilege, even when 
properly invoked, is not absolute and must be balanced against 
the Committee's compelling need for the information in order 
for Congress to perform its constitutional functions.

          V. Ruling on Executive Privilege and Immunity Claims

    Having been unable to reach accommodation with the White 
House, on November 29, 2007, Chairman Leahy ruled on the 
privilege and immunity claims. He held them not legally valid 
and directed Mr. Rove and Mr. Bolten to comply with the Senate 
subpoenas. His ruling is reprinted below:
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

  VI. Resolutions Finding Joshua Bolten and Karl Rove in Contempt of 
        Congress for Failure To Comply With the Senate Subpoenas

    Despite Chairman Leahy's ruling, Mr. Rove and Mr. Bolten 
continued in noncompliance with the subpoenas. Mr. Bolten was 
scheduled to appear and provide documents to the Committee by 
June 28, 2007, and Mr. Rove was summoned to testify before the 
Judiciary Committee on August 2, 2007. Both failed to appear. 
On December 13, 2007, the Judiciary Committee found Mr. Rove 
and Mr. Bolten to be in contempt of Congress for failing to 
comply with the subpoenas issued in connection with the 
Committee's investigation into the mass firings of U.S. 
Attorneys. The bipartisan vote to report the contempt 
resolutions came two weeks after Chairman Leahy ruled that the 
President's claims of executive privilege were overbroad and 
not legally valid to excuse Mr. Rove and Mr. Bolten from 
providing Congress with subpoenaed documents and testimony.

                       A. FORM OF THE RESOLUTIONS

    The resolutions of contempt, certifying the noncompliance 
of Mr. Rove and Mr. Bolten are reprinted below:

                               RESOLUTION

    Authorizing the President of the Senate to certify the 
facts of the failure of Joshua Bolten, as the Custodian of 
Records at the White House, to appear before the Committee on 
the Judiciary and produce documents as required by Committee 
subpoena.
    WHEREAS, since the beginning of this Congress, the Senate 
Judiciary Committee has conducted an investigation into the 
removal of United States Attorneys;
    WHEREAS, the Committee's requests for information related 
to its investigation, including documents and testimony from 
the White House and White House personnel, were denied;
    WHEREAS, the White House has not offered any accommodation 
or compromise to provide the information requested that is 
acceptable to the Committee;
    WHEREAS, on April 12, 2007, pursuant to its authority under 
Rule 26 of the Standing Rules of the Senate, the Senate 
Committee on the Judiciary authorized issuance to the Custodian 
of Records at the White House, a subpoena which commands the 
Custodian of Records to provide the Committee with all 
documents in the possession, control, or custody of the White 
House related to the Committee's investigation;
    WHEREAS, on June 13, 2007, the Chairman issued a subpoena 
pursuant to the April 12, 2007, authorization to White House 
Chief of Staff Joshua Bolten as the White House Custodian of 
Records, for documents related to the Committee's 
investigation, with a return date of June 28, 2007;
    WHEREAS, on June 28, 2007, in response to subpoenas for 
documents issued by the Senate and House Judiciary Committees, 
White House Counsel Fred Fielding conveyed the President's 
claim of executive privilege over all information in the 
custody and control of the White House related to the 
Committee's investigation;
    WHEREAS, based on this claim of executive privilege, Mr. 
Bolten refused to appear and produce documents to the Committee 
in compliance with the subpoena;
    WHEREAS, on June 29, 2007, the Chairmen of the House and 
Senate Judiciary Committees provided the White House with an 
opportunity to substantiate its privilege claims by providing 
the Committees with the specific factual and legal bases for 
its privilege claims regarding each document withheld and a 
privilege log to demonstrate to the Committees which documents, 
and which parts of those documents, are covered by any 
privilege that is asserted to apply and why;
    WHEREAS, the White House declined this opportunity in a 
July 9, 2007, letter to the Committee Chairmen from Mr. 
Fielding, while reiterating the privilege claim;
    WHEREAS, on August 17, 2007, Mr. Fielding rejected the 
Chairman's request for a meeting with the President to work out 
an accommodation for the information sought by the Committee;
    WHEREAS, on November 29, 2007, the Chairman ruled that the 
White House's claims of executive privilege and immunity are 
not legally valid to excuse current and former White House 
employees from appearing, testifying and producing documents 
related to this investigation and directed Mr. Bolten, along 
with other current and former White House employees, to comply 
immediately with the Committee's subpoenas by producing 
documents and testifying;
    WHEREAS, Mr. Bolten has not complied with the Committee's 
subpoenas or made any offer to cure his previous noncompliance;
    WHEREAS, the Committee's investigation is pursuant to the 
constitutional legislative, oversight and investigative powers 
of Congress and the responsibilities of this Committee to the 
Senate and the American people; including the power to: (1) 
investigate the administration of existing laws, and obtain 
executive branch information in order to consider new 
legislation, within the Committee's jurisdiction, including 
legislation related to the appointment of U.S. Attorneys; (2) 
expose any corruption, inefficiency, and waste within the 
executive branch; (3) protect the Committee's role in 
evaluating nominations pursuant to the Senate's constitutional 
responsibility to provide advice and consent; and (4) examine 
whether inaccurate, incomplete, or misleading testimony or 
other information was provided to the Committee;
    BE IT RESOLVED, that the President of the Senate certify 
the facts in connection with the failure of Joshua Bolten, as 
the Custodian of Records at the White House, though duly 
summoned, to appear and to produce documents lawfully 
subpoenaed to be produced before the Committee, under the seal 
of the United States Senate, to the United States Attorney for 
the District of Columbia, to the end that Joshua Bolten may be 
proceeded against in the manner and form provided by law.
                              ----------                              


                               RESOLUTION

    Authorizing the President of the Senate to certify the 
facts of the failure of Karl Rove to appear and testify before 
the Committee on the Judiciary and to produce documents as 
required by Committee subpoena.
    WHEREAS, since the beginning of this Congress, the Senate 
Judiciary Committee has conducted an investigation into the 
removal of United States Attorneys;
    WHEREAS, the Committee's requests for information related 
to its investigation, including documents and testimony from 
the White House and White House personnel, were denied;
    WHEREAS, the White House has not offered any accommodation 
or compromise to provide the requested information that is 
acceptable to the Committee;
    WHEREAS, on March 22, 2007, pursuant to its authority under 
Rule 26 of the Standing Rules of the Senate, the Senate 
Committee on the Judiciary authorized issuance to Karl Rove, 
Deputy Chief of Staff to the President, subpoenas in connection 
with the Committee's investigation;
    WHEREAS, on June 28, 2007, in response to subpoenas for 
documents issued by the Senate and House Judiciary Committees, 
White House Counsel Fred Fielding conveyed the President's 
claim of executive privilege over all information in the 
custody and control of the White House related to the 
Committee's investigation;
    WHEREAS, on June 29, 2007, the Chairmen of the House and 
Senate Judiciary Committees provided the White House with an 
opportunity to substantiate its privilege claims by providing 
the Committees with the specific factual and legal bases for 
its privilege claims regarding each document withheld and a 
privilege log to demonstrate to the Committees which documents, 
and which parts of those documents, are covered by any 
privilege that is asserted to apply and why;
    WHEREAS, the White House declined this opportunity in a 
July 9, 2007, letter to the Committee Chairmen from Mr. 
Fielding, while reiterating the blanket privilege claims;
    WHEREAS, on July 26, 2007, the Chairman issued a subpoena 
authorized March 22 to Mr. Rove for documents and testimony 
related to the Committee's investigation, with a return date of 
August 2;
    WHEREAS, the Chairman noticed an August 2, 2007, Judiciary 
Committee hearing under its Rules at which Mr. Rove was 
subpoenaed to testify;
    WHEREAS, Mr. Fielding, in an August 1, 2007, letter to the 
Chairman and Ranking Member, informed the Committee that the 
President would invoke a claim of executive privilege and a 
claim of immunity from congressional testimony for Mr. Rove, 
and directed Mr. Rove not to produce responsive documents or 
testify before the Committee about the firings, and that Mr. 
Rove would not appear in response to the Committee's subpoena;
    WHEREAS, based on these claims of executive privilege and 
absolute immunity, Mr. Rove refused to appear or to produce 
documents or to testify at the Committee's August 2, 2007, 
hearing in compliance with the subpoena;
    WHEREAS, on August 17, 2007, Mr. Fielding rejected the 
Chairman's request for a meeting with the President to work out 
an accommodation for the information sought by the Committee;
    WHEREAS, on November 29, 2007, the Chairman ruled that the 
White House's claims of executive privilege and immunity are 
not legally valid to excuse current and former White House 
employees from appearing, testifying and producing documents 
related to this investigation and directed Mr. Rove, along with 
other current and former White House employees, to comply 
immediately with the Committee's subpoenas by producing 
documents and testifying;
    WHEREAS, Mr. Rove has not complied with the Committee's 
subpoenas or made any offer to cure his previous noncompliance;
    WHEREAS, the Committee's investigation is pursuant to the 
constitutional legislative, oversight and investigative powers 
of Congress and the responsibilities of this Committee to the 
Senate and the American people; including the power to: (1) 
Investigate the administration of existing laws, and obtain 
executive branch information in order to consider new 
legislation, within the Committee's jurisdiction, including 
legislation related to the appointment of U.S. Attorneys; (2) 
expose any corruption, inefficiency, and waste within the 
executive branch; (3) protect the Committee's role in 
evaluating nominations pursuant to the Senate's constitutional 
responsibility to provide advice and consent; and (4) examine 
whether inaccurate, incomplete, or misleading testimony or 
other information was provided to the Committee;
    BE IT RESOLVED, that the President of the Senate certify 
the facts in connection with the failure of Karl Rove, though 
duly summoned, to appear and testify before the Judiciary 
Committee and to produce documents lawfully subpoenaed to be 
produced before the Committee, under the seal of the United 
States Senate, to the United States Attorney for the District 
of Columbia, to the end that Karl Rove may be proceeded against 
in the manner and form provided by law.

                       B. VOTE ON THE RESOLUTIONS

    The Senate Judiciary Committee considered the resolutions 
on December 13, 2007. After debate, the Committee agreed to 
report the resolutions favorably to the Senate by the following 
vote:
        YEAS (12)                     NAYS (7)
Biden (Del.)                        Brownback (Kan.)
Cardin (Md.)                        Coburn (Okla.)
Durbin (Ill.)                       Cornyn (Texas)
Feingold (Wis.)                     Graham (S.C.)
Feinstein (Calif.)                  Hatch (Utah)
Grassley (Iowa)                     Kyl (Ariz.)
Kennedy (Mass.)                     Sessions (Ala.)
Kohl (Wis.)
Leahy (Vt.)
Schumer (N.Y.)
Specter (Pa.)
Whitehouse (R.I.)

VII. The Privilege and Immunity Claims Are Not Legally Valid To Excuse 
                               Compliance


   A. THE PRESIDENT'S LACK OF INVOLVEMENT IN THE FIRINGS UNDERMINES 
                            PRIVILEGE CLAIMS

    Mr. Fielding's executive privilege assertion on behalf of 
the President is surprising in light of the lack of evidence 
that the President was involved in these firings. To date, the 
President has not taken responsibility for the firings, and his 
own statements regarding the firings deflect responsibility to 
others for the decisions that were made. Attorney General 
Alberto Gonzales's former chief of staff, the former political 
director at the White House and Attorney General Gonzales 
himself testified under oath that they did not talk to the 
President about these firings.
    On March 14, 2007, addressing the growing controversy 
related to the firings, President Bush stated that the Justice 
Department made the decisions in the firings:

          I do have confidence in Attorney General Gonzales. I 
        talked to him this morning, and we talked about his 
        need to go up to Capitol Hill and make it very clear to 
        members in both political parties that the Justice 
        Department made the decisions it made, make it clear 
        about the facts, and he is right, mistakes were 
        made.\17\
---------------------------------------------------------------------------
    \17\President George W. Bush, Joint Media Availability with 
President Calderon of Mexico, Merida, Mexico, March 14, 2007 (emphasis 
added).

    President Bush echoed this statement in subsequent 
statements on March 20, 2007, and March 31, 2007, continuing to 
point to the need for Attorney General Gonzales to resolve the 
scandal by telling the truth.\18\ He did not take 
responsibility for the firings, nor did he express at any point 
that he had been advised about them.
---------------------------------------------------------------------------
    \18\See President George W. Bush, Press Conference Addressing the 
Resignations of U.S. Attorneys, March 20, 2007; President George W. 
Bush, Remarks with President Luiz Ignacio Lula De Silva of Brazil, Camp 
David, MD, March 31, 2007.
---------------------------------------------------------------------------
    Indeed, the sworn testimony of White House and Department 
of Justice officials indicate that the President was not 
involved. Kyle Sampson, former chief of staff to the Attorney 
General who ``aggregated'' the lists of those U.S. Attorneys to 
be fired, testified that the President was not present at a 
single meeting to discuss the decision to remove the U.S. 
Attorneys, and no presidential decision document endorsing the 
replacement plan existed.\19\ Former Deputy Attorney General 
Paul McNulty, on whose recommendations and advice Attorney 
General Gonzales said he relied, testified that he was ``not 
aware of the President being consulted'' in regards to the U.S. 
Attorney firings.\20\ Ms. Taylor, former White House political 
director, testified that to her knowledge the President was not 
involved with any U.S. Attorney removal decisions.\21\ And in a 
statement on March 13, the Attorney General stated that he took 
responsibility for the firings,\22\ later testifying to the 
same effect before the Committee.
---------------------------------------------------------------------------
    \19\Interview with D. Kyle Sampson, Former Chief of Staff to the 
Attorney General, Department of Justice (April 15, 2007).
    \20\Testimony of Paul McNulty, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part II, Senate Committee on the Judiciary, 
110th Congress at 76 (February 6, 2007).
    \21\Testimony of Sara M. Taylor, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part VI, Senate Committee on the Judiciary, 
110th Congress at 105-106 (July 11, 2007).
    \22\Attorney General Alberto Gonzales, Press Conference on the 
Firing of U.S. Attorneys (March 13, 2007).
---------------------------------------------------------------------------
    Courts analyzing executive privilege claims have made clear 
that the purpose of the privilege is to protect the President's 
ability to receive candid advice. According to the leading case 
on executive privilege from the D.C. Circuit, the presidential 
communications privilege applies to communications ``intimately 
connected to his presidential decision-making.''\23\ Where, as 
here, the President by all accounts, including his own, was not 
involved, there are serious questions whether information 
sought by the Committee could be withheld based on a claim of 
executive privilege.
---------------------------------------------------------------------------
    \23\In re Sealed Case, 121 F.3d at 753.
---------------------------------------------------------------------------
    The court decisions reviewing executive privilege claims do 
not support such a broad scope for executive privilege claims 
beyond communications directly involving the President. Senate 
Select Committee on Presidential Campaign Activities v. Nixon 
case dealt solely with tapes of presidential conversations.\24\ 
Nixon v. United States\25\ and Nixon v. Administrator of 
General Services,\26\ the leading Supreme Court cases on the 
issue of executive privilege, consider similarly limited 
assertions of privilege.\27\
---------------------------------------------------------------------------
    \24\Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) 
(holding that tapes of Presidential conversations that had already been 
released to another committee were protected by executive privilege).
    \25\Nixon v. United States, 418 U.S. 683 (1974).
    \26\Nixon v. Administrator of General Services, 433 U.S. 425 
(1977).
    \27\In re Sealed Case (Espy), 121 F.3d 729, 752 (D.C. Cir. 1997) 
(the D.C. Circuit case which recently defined the scope of executive 
privilege involved a grand jury subpoena and expressly excluded 
congressional subpoenas from this extension of the privilege claim, 
recognizing the different balance that would govern: ``Our 
determination of how far down into the executive branch the 
presidential communications privilege goes is limited to the context 
before us, . . . and we take no position on how the institutional needs 
of Congress and the President should be balanced.'' Even in that case, 
the scope of privilege was limited to aides within ``operational 
proximity'' of the President who were ``members of an immediate White 
House adviser's staff who have broad and significant responsibility for 
investigating and formulating the advice to be given the President on 
the particular matter to which the communications relate'' but not 
``staff outside the White House in executive branch agencies'').
---------------------------------------------------------------------------
    The administration seeks to have it both ways by claiming 
that the President was not involved in the removal decisions, 
but simultaneously that executive privilege, premised on the 
need to secure candid advice for the President, should apply. 
If the White House wishes to assert executive privilege, it 
should describe the involvement the President had in the 
decision making process. It has not done so and the evidence is 
that the President was not involved. Accordingly, there is no 
justification for claiming executive privilege.

       B. THE WHITE HOUSE'S ASSERTION OF EXECUTIVE PRIVILEGE IS 
                            UNSUBSTANTIATED

    The President has not met his burden of properly claiming 
executive privilege, including a particularized showing of why 
he is entitled to the privilege from disclosing the information 
subpoenaed by the Committee. ``As with any privilege the burden 
is upon the claimant of executive privilege to demonstrate a 
proper entitlement to exemption from disclosure.''\28\ The 
White House's generalized assertion of blanket privilege fails 
to meet the President's burden, especially where, as here, the 
Committee has set forth its need for the materials and evidence 
showing White House involvement.\29\
---------------------------------------------------------------------------
    \28\Smith v. F.T.C., 403 F. Supp. 1000, 1016 (D. Del. 1975). See 
also, Black v. Sheraton Corp., 371 F. Supp. 97 (D.D.C. 1974) (``An 
improperly asserted claim of privilege is no claim of privilege'').
    \29\In re: Sealed Case (Espy) at 745 (``If a court believes that an 
adequate showing of need has been demonstrated, it should proceed then 
to review the documents in camera to excise non-relevant material. 
Further, the President should be given the opportunity to raise more 
particularized claims of privilege . . .'').
---------------------------------------------------------------------------
    In Center on Corporate Responsibility v. Shultz, the D.C. 
District Court held that the invocation of executive privilege 
by a White House counsel is ``wholly insufficient to activate a 
formal claim of executive privilege,'' and that such a claim 
must be made by the ``President, as head of the `agency,' the 
White House.''\30\ In Senate Select Committee on Presidential 
Campaign Activities v. Nixon, the claim was asserted in a 
letter to the Committee from the President.\31\ More recently, 
when the D.C. Circuit determined that an assertion of executive 
privilege by White House Counsel Abner Mikva was an acceptable 
proxy for an assertion by the President, it did so because Mr. 
Mikva in a sworn affidavit asserted that the President 
personally invoked the privilege.\32\ Mr. Fielding's letters do 
not meet this standard.
---------------------------------------------------------------------------
    \30\368 F. Supp. 863, 872-73 (D.D.C. 1973). See also U.S. v. 
Reynolds, 345 U.S. 1, 7-8 (1953) (``There must be a formal claim of 
privilege, lodged by the head of the department which has control over 
the matter, after actual personal consideration by that officer'').
    \31\Senate Select Committee on Presidential Campaign Activities v. 
Nixon, 498 F.2d, 725, 726-729 (D.C. Cir. 1974).
    \32\In re Sealed Case (Espy) at 744, note 16 (``We need not decide 
whether the privilege must be invoked by the President personally, 
since the record indicates that President Clinton has done so here; in 
his affidavit former White House Counsel Abner J. Mikva stated ``the 
President . . . has specifically directed me to invoke formally the 
applicable privileges over those documents'').
---------------------------------------------------------------------------
    In addition, Mr. Fielding's claim on the President's behalf 
fails to make ``a specific designation and description of the 
documents claimed to be privileged'' as required by the 
courts.\33\
---------------------------------------------------------------------------
    \33\Smith at 1016 (quoting Black at 101).
---------------------------------------------------------------------------
    After the White House counsel made a blanket privilege 
assertion on behalf of the President in response to this 
Committee's subpoenas and subpoenas issued by the House 
Judiciary Committee, the Committees offered the White House the 
opportunity to provide the factual and legal basis for its 
blanket privilege assertion. A serious assertion of privilege 
would include an effort to demonstrate to the Committees which 
documents, and which parts of those documents, are covered by 
any privilege that is asserted and why. The White House ignored 
these opportunities. The White House's refusal to provide a 
listing of those documents on which it asserts privilege and a 
specific factual and legal basis for the assertion of executive 
privilege undermines the validity of any privilege assertion.
    Executive privilege, even where properly asserted, ``is 
qualified, not absolute''\34\ and ``neither the doctrine of 
separation of powers, nor the need for confidentiality of high-
level communications, without more, can sustain an absolute, 
unqualified Presidential privilege.''\35\ The White House has 
fallen well short of providing adequate support for its claims. 
In reviewing executive privilege claims, courts have required 
that the President make ``particularized showings in 
justification of his claims of privilege''\36\ and have found 
that that a privilege log is necessary ``in order that a court 
be able to make a knowledgeable decision as to whether any 
document or portion thereof actually contains advisory or 
deliberative materials.'' The unilateral assertion of privilege 
by a President must be subject to review by the Committee and 
courts. The White House's refusal to provide the factual basis 
for its claims renders them unfounded.
---------------------------------------------------------------------------
    \34\In re Sealed Case (Espy), 121 F.3d at 745.
    \35\United States v. Nixon, 418 U.S. 683, 706 (1974).
    \36\Senate Select Committee at 729.
---------------------------------------------------------------------------
    The complete lack of particularity of the White House 
claims, including the lack of a privilege log or any specific 
factual basis for the privilege claims is especially troubling 
where, as here, there appears not to be any involvement by the 
President. In presenting only a claim predicated on the 
generalized need for candid dialogue between the President and 
his aides, the President has failed to meet the burden of 
making ``a demonstration of `precise and certain reasons for 
preserving' the confidentiality of the governmental 
communications.''\37\ There are not even demonstrated 
communications with the President. Courts have cited with 
approval the general practice of providing a sworn affidavit 
raising the necessary facts underlying the claim.\38\ Courts 
have rejected executive privilege claims, where, as here, they 
are broad and inadequately substantiated. In one case, the D.C. 
District Court held that ``to recognize such a broad claim in 
which the Defendant has given no precise or compelling reasons 
to shield these documents from outside scrutiny, would make a 
farce of the whole procedure.''\39\ In another, the Court found 
``serious deficiencies'' in an agency's privilege claim even 
where the agency provided detailed information about each 
specific document subject to the claim because ``little or no 
information is provided as to the actual content of various 
documents.''\40\
---------------------------------------------------------------------------
    \37\Smith at 1016 (quoting Sheraton at 101).
    \38\Smith at 1016 (``a close reading of cases where claims of 
executive privilege were raised indicates that the necessary facts have 
generally been required to be raised by affidavit'').
    \39\Black v. Sheraton Corp., 371 F.Supp. 97, 101 (D.D.C. 1974).
    \40\Smith at 1017.
---------------------------------------------------------------------------
    As discussed more fully in the following pages, in a civil 
suit stemming from the House Judiciary Committee's parallel 
investigation, the District Court for the District of Columbia 
undercut the White House's blanket claims of privilege without 
substantiation.\41\ In his July 31, 2008, opinion, Judge John 
D. Bates wrote that ``clear precedent and persuasive policy 
reasons confirm that the Executive cannot be the judge of its 
own privilege''\42\ and that ``both the Court and the parties 
will need some way to evaluate the privilege assertions going 
forward.''\43\ Judge Bates' opinion validates the Committee's 
requests for over a year for the White House to provide the 
specific legal and factual basis for its claims of privilege so 
that the Committee can probe the basis for those claims and 
their validity rather than rely on the say-so of the 
President's lawyers.
---------------------------------------------------------------------------
    \41\Committee on the Judiciary, U.S. House of Representatives v. 
Miers, 558 F.Supp.2d 53 (D.D.C., 2008), order stayed by Committee on 
Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909 
(D.C.Cir. 2008).
    \42\Id. at 106.
    \43\Id. at 107.
---------------------------------------------------------------------------
    The White House's assertion of privilege over information 
related to the dismissal and replacement of U.S. Attorneys, and 
the response to congressional and media inquiries about them, 
extends to documents and testimony including internal White 
House communications, communications between the White House 
and the Department of Justice, and even communications between 
officials at the White House and third-party individuals 
outside the executive branch.\44\ The White House's privilege 
claim is irrespective of the purpose of the communications. 
Were it successful, this effort to extend the scope of the 
privilege taken in conjunction with the White House's failure 
to make the particularized showing needed to support its claim 
would amount to an unprecedented and unchecked extension of 
executive privilege to include any information.
---------------------------------------------------------------------------
    \44\Letter from Paul D. Clement, Solicitor General and Acting 
Attorney General, to President Bush (June 27, 2007).
---------------------------------------------------------------------------

  C. CONGRESS' NEED FOR THE INFORMATION OUTWEIGHS ANY PRIVILEGE CLAIM

    Presidential communications privilege is not absolute,\45\ 
and determining whether it prevails depends on ``a weighing of 
the public interest protected by the privilege against the 
public interests that would be served by disclosure in a 
particular case.''\46\ According to the Supreme Court in Nixon 
v. United States, ``when the privilege depends solely on the 
broad, undifferentiated claim of public interest in the 
confidentiality of such conversations, a confrontation with 
other values arises.''\47\ The White House's privilege 
assertion ignores the legitimate constitutional 
responsibilities of Congress in this matter. The constitutional 
legislative, investigative and oversight functions of Congress 
must be balanced against, and in this instance outweigh, the 
claim of executive privilege.
---------------------------------------------------------------------------
    \45\United States v. Nixon, 418 U.S. 683, 706-707 (1974) (holding 
that the executive was required to produce tapes of his oval office 
conversations in response to a grand jury subpoena).
    \46\Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973).
    \47\United States v. Nixon at 706.
---------------------------------------------------------------------------
    The constitutional functions of Congress include its 
legislative functions, including the review and passage of laws 
regarding the appointment of U.S. Attorneys and the filling of 
vacancies in those offices; its oversight functions and 
examination of the truthfulness of congressional testimony; the 
Senate's role in confirming presidential nominations; and the 
need to investigate possible corruption. The need to 
investigate possible corruption, maladministration and the 
failure to execute faithfully the laws weighs heavily in this 
balance. Here, the compelling needs of Congress outweigh the 
White House's generalized privilege assertion.
    The constitutional powers of Congress and the 
responsibilities of this Committee to the Senate and the 
American people overcome the White House's unsubstantiated 
privilege claims. The Supreme Court has long recognized that 
Congress has ``broad'' power to investigate ``the 
administration of existing laws'' and to ``expose corruption, 
inefficiency, [and] waste'' within the executive branch.\48\ 
The Committee has the responsibility to conduct investigations 
and obtain executive branch information in order to consider 
legislation within its jurisdiction,\49\ including legislation 
related to the appointment of U.S. Attorneys, and to protect 
its role in evaluating nominations pursuant to the Senate's 
constitutional responsibility to provide advice and consent. 
Indeed, it was in light of this jurisdiction, the confirmation 
power vested in the Senate, and the jurisdiction of this 
Committee over the review of U.S. Attorney nominations, that 
Senator Specter, the Committee's Ranking Member, observed early 
on that the Committee has ``primary'' responsibility to 
investigate this matter.
---------------------------------------------------------------------------
    \48\See Watkins v. United States, 354 U.S. 178, 187 (1957).
    \49\See, e.g., McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
---------------------------------------------------------------------------
    This investigation offers a clear example of the 
relationship between the Committee's compelling oversight and 
investigative interests and the need for the Committee to 
obtain information in order to legislate. Since this 
investigation began and the Committee began uncovering abuses 
in the appointment of interim U.S. Attorneys, Congress has 
already legislated once to rescind the Attorney General's power 
to appoint interim U.S. Attorneys who could serve indefinitely 
without the Congressional approval.\50\
---------------------------------------------------------------------------
    \50\See 28 U.S.C. 546 (1966), amended by Pub. L. No. 109-177, Title 
V, Sec. 502, 120 Stat. 546 (Mar. 9, 2006); amended by Pub. L. No. 110-
34, Sec. 2, 121 Stat. 224 (June 14, 2007).
---------------------------------------------------------------------------
    The Committee has met the standard provided by the D.C. 
Circuit for establishing that its need for the materials 
overcomes the privilege claim. According to the Espy court, 
``[a] party seeking to overcome a claim of presidential 
privilege must demonstrate: first, that each discrete group of 
the subpoenaed materials likely contains important evidence; 
and second, that this evidence is not available with due 
diligence elsewhere.''\51\
---------------------------------------------------------------------------
    \51\In re: Sealed Case (Espy) at 754 (The Acting Attorney General's 
letter to the President cites the standard from an older D.C. Circuit 
case, Senate Select Committee on Presidential Campaign Activities v. 
Nixon, that has been superseded by Espy--that a Congressional Committee 
must establish that the materials it seeks are ``demonstrably critical 
to the fulfillment of the Committee's functions.'' Senate Select Comm. 
at 731. There is no question the Committee's need for this information 
meets either standard. Here, unlike in Senate Select, the documents and 
testimony sought by the Committee contain information that remains 
under White House control and critical to the investigation).
---------------------------------------------------------------------------
    The Committee has pursued this matter diligently. Based on 
evidence, information, testimony and interviews, the Committee 
believes that White House officials are involved. Still, the 
White House refuses to provide a single witness or document. 
The documents and testimony that have been subpoenaed will 
provide critical evidence.

  D. EVIDENCE OF INVOLVEMENT OF WHITE HOUSE OFFICIALS IN THE FIRINGS 
           DEMONSTRATES COMMITTEE'S NEED FOR THE INFORMATION

    In contrast to the White House's improperly asserted and 
unparticularized privilege claims, the Committee's need for 
this information, including the specific information of White 
House involvement and possible misconduct, has been well-
established. Evidence gathered by the investigating Committees 
of the Senate and House shows that White House officials played 
a significant role in originating, developing, coordinating and 
implementing these unprecedented firings and the Justice 
Department's response to congressional inquiries about it.
    The accumulated evidence shows that the list for firings 
was compiled based on input from the highest political ranks in 
the White House, including Mr. Rove, Ms. Taylor, and Mr. 
Jennings. The evidence shows that senior officials were 
apparently focused on the political impact of Federal 
prosecutions and whether Federal prosecutors were doing enough 
to bring partisan voter fraud\52\ and corruption cases. It is 
obvious that the reasons given for these firings were contrived 
as part of a cover up and that the stonewalling by the White 
House is part and parcel of that same effort. Even Attorney 
General Gonzales, in his sworn testimony in July 2007, 
contrasted these politically motivated firings with the 
replacement of other United States Attorneys for ``legitimate 
cause.''\53\
---------------------------------------------------------------------------
    \52\The minority views filed by Senators Kyl, Sessions, Brownback 
and Coburn repeat partisan talking points from the last election 
equating voter registration fraud with in-person voter fraud. Only the 
latter threatens to affect the outcome of an election. As both this 
Committee and the Senate Rules Committee have demonstrated in numerous 
hearings, the myth of in-person voter fraud is just that. In their 
recent amicus brief to the United States Supreme Court a number of 
present and former Secretaries of State from Georgia, Maryland, 
Missouri, Ohio and Vermont noted that ``in Federal elections between 
1996 and the present, in which more than twenty-four million votes were 
cast'' not a single case of voter impersonation fraud occurred at the 
polls. The Federal Judge who reviewed and dismissed a Justice 
Department suit against Missouri concluded: ``It is . . . telling that 
the United States has not shown that any Missouri resident was denied 
his or her right to vote . . . [n]or has the United States shown that 
any voter fraud has occurred.''
    \53\Testimony of Alberto Gonzales, Oversight of the U.S. Department 
of Justice, Senate Committee on the Judiciary, 110th Congress at 53 
(July 24, 2007).
---------------------------------------------------------------------------
    The evidence that U.S. Attorneys were fired for political 
purposes points to Mr. Rove and his political operations in the 
White House. Evidence shows that Mr. Rove and then-White House 
Counsel Alberto Gonzales were involved from the beginning in 
plans to remove U.S. Attorneys. According to documents obtained 
from the Department and Mr. Sampson's testimony, Mr. Sampson 
discussed the plan with then-White House Counsel Gonzales not 
long after President Bush's re-election in 2004. A January 9, 
2005, e-mail released by the Department shows that Mr. Rove 
initiated inquires with respect to ``how we planned to proceed 
regarding U.S. Attorneys, whether we were going to allow all to 
stay, request resignations from all and accept only some of 
them, or selectively replace them, etc.''\54\ In his response 
to queries from David Leitch, a White House official, Mr. 
Sampson expressly deferred to the political judgment of Mr. 
Rove as to whether to proceed with plans for the replacement of 
U.S. Attorneys, writing,``[I]f Karl thinks there would be 
political will to do it, then so do I.''\55\
---------------------------------------------------------------------------
    \54\OAG 180.
    \55\Id.
---------------------------------------------------------------------------
    Mr. Sampson, who has testified that he ``aggregated'' the 
list of U.S. Attorneys to be fired, was apparently in frequent 
contact with White House officials about multiple versions of 
proposed lists of possible U.S. Attorneys for dismissal and 
potential replacements over the course of nearly two years.\56\
---------------------------------------------------------------------------
    \56\Interview with D. Kyle Sampson, Former Chief of Staff to the 
Attorney General, Department of Justice at 111-119 (April 15, 2007).
---------------------------------------------------------------------------
    Mr. Rove's own words suggest that placing ``loyal Bushies'' 
in key battleground states for the next election played a 
significant role in these firings. In April 2006, Mr. Rove gave 
a speech to the Republican National Lawyers' Association where 
he listed 11 states he saw as pivotal battlegrounds for the 
2008 election: Pennsylvania, Michigan, Ohio, Florida, Colorado, 
Arkansas, Wisconsin, Minnesota, Nevada, Iowa, New Mexico.\57\ 
Since 2005, U.S. Attorneys in nine of these states have been 
considered for removal and nine have been replaced.\58\ Four of 
the U.S. Attorneys who were fired as part of the mass firing 
were from these states.
---------------------------------------------------------------------------
    \57\Speech by Karl Rove to Republican National Lawyers Association, 
April 7, 2006; See also Greg Gordon, New U.S. Attorneys Seem to Have 
Partisan Records, McClatchy Newspapers, March 23, 2007.
    \58\An Evolving List, Washington Post, May 17, 2007.
---------------------------------------------------------------------------
    The Committee has learned that Mr. Rove raised concerns 
with Attorney General Gonzales about prosecutors not 
aggressively pursuing purported voter fraud cases in several of 
the districts he discussed in that speech and that prior to the 
2006 mid-term election he sent the Attorney General's chief of 
staff a packet of information containing a 30-page report 
concerning voting in Wisconsin in 2004.\59\ Mr. Rove also 
passed on to Mr. Sampson the complaints of Wisconsin Republican 
officials about the U.S. Attorney for the Eastern District of 
Wisconsin regarding his failure to pursue voter fraud 
cases.\60\ That U.S. Attorney's name was added to the list Mr. 
Sampson was developing for firing in early 2005, two weeks 
after Mr. Rove reviewed activity about vote fraud in his 
district.\61\ That U.S. Attorney's name did not appear on 
subsequent lists and he kept his job after he brought 14 voter 
fraud cases arising from the 2004 election and prosecuted 
Wisconsin civil servant Georgia Thompson in a public corruption 
case connected to Democratic Governor Jim Doyle.\62\ The 
Justice Department won only five of these 14 cases\63\ and the 
Georgia Thompson case was later thrown out on appeal by the 
Seventh Circuit for evidence that was ``beyond thin'' 
immediately after oral argument, which is highly unusual.\64\ 
This evidence points to Mr. Rove's role and the role of those 
in his office in removing or trying to remove prosecutors not 
considered sufficiently loyal to Republican electoral 
prospects. Such manipulation shows corruption of Federal law 
enforcement for partisan political purposes.
---------------------------------------------------------------------------
    \59\Interview with Matthew Friedrich, Chief of Staff and Principal 
Deputy Assistant Attorney General, Criminal Division, Department of 
Justice at 27-31 (May 4, 2007); OAG 820-852
    \60\Interview with D. Kyle Sampson, Former Chief of Staff to the 
Attorney General, Department of Justice at 168-175 (April 15, 2007).
    \61\An Evolving List.
    \62\Eric Lipton and Ian Urbina, In 5-Year Effort, Scant Evidence of 
Voter Fraud, New York Times, April 12, 2007; Gina Barton, Stacy Forster 
and Steven Walters, State Official Indicted in Travel Contract Case, 
Milwaukee Journal-Sentinel, January 24, 2007.
    \63\Lipton and Urbina, 5-Year Effort, Scant Evidence of Voter 
Fraud.
    \64\U.S. v. Thompson, 484 F.3d 877, 878-879 (7th. Cir. 2007); 
Steven Walters and John Diedrich, Ex-State Official Freed, April 5, 
2007.
---------------------------------------------------------------------------
    We also know, through press accounts and testimony, that 
after the 2006 midterm election, Mr. Rove discussed the 
performance of New Mexico U.S. Attorney David Iglesias with 
Senator Domenici, who himself had called Mr. Iglesias before 
the election to ask whether he was bringing indictments against 
a Democratic official in the lead up to the election.\65\ We 
have learned that Mr. Jennings set up a meeting between the 
Department's White House liaison, Monica Goodling, and New 
Mexico Republican officials in June 2006 to talk about the U.S. 
Attorney ``situation'' in New Mexico, describing it as 
``sensitive.''\66\ Matthew Friedrich, counselor to the Attorney 
General, also met with these officials and testified that they 
were concerned about Mr. Iglesias' failure to bring a 
particular vote fraud case against ACORN, a non-profit 
organization that works to register voters.\67\ Mr. Friedrich 
also testified that when he later met with these officials, 
they told him they had communicated with Mr. Rove and Senator 
Domenici about trying to have Mr. Iglesias removed.\68\
---------------------------------------------------------------------------
    \65\Mike Gallagher, Domenici Sought Iglesias Ouster, Albuquerque 
Journal, April 15, 2007; Preserving Prosecutorial Independence: Is the 
Department of Justice Politicizing the Hiring and Firing of U.S. 
Attorneys?--Part II, Senate Committee on the Judiciary, 110th Congress 
at 36-37 (March 6, 2007).
    \66\OAG 114, 572; Interview with Matthew Friedrich at 31-40.
    \67\Id. at 34-35.
    \68\Id. at 38-39.
---------------------------------------------------------------------------
    Mr. Iglesias was subsequently fired a few weeks after Mr. 
Rove complained to the Attorney General about the lack of 
purported ``voter fraud'' enforcement cases in his 
jurisdiction.\69\ His name had not been on any previous lists 
of U.S. Attorneys being considered for firing that were 
``aggregated'' by Mr. Sampson.\70\ According to Allen Weh, 
chairman of New Mexico's Republican party, when he asked Mr. 
Rove during a holiday party in 2006 ``is anything ever going to 
happen to that guy?''--referring to Mr. Iglesias--Mr. Rove 
responded, ``He's gone.''\71\
---------------------------------------------------------------------------
    \69\Testimony of Kyle Sampson, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part III, Senate Committee on the Judiciary, 
110th Congress at 130-134 (March 29, 2007).
    \70\Id. at 130-131.
    \71\See Margaret Talev & Marisa Taylor, Rove Was Asked to Fire U.S. 
Attorney, McClatchy Newspapers, March 10, 2007.
---------------------------------------------------------------------------
    Evidence suggests that other fired U.S. Attorneys had drawn 
the ire of political operatives in the White House. John McKay, 
former U.S. Attorney for the Western District of Washington, 
testified that when he met with Ms. Miers and her deputy Mr. 
Kelley to interview for a Federal judgeship, he was asked to 
explain ``criticism that I mishandled the 2004 governor's 
election'' after which Republicans were upset with him for not 
intervening in that closely contested election.\72\
---------------------------------------------------------------------------
    \72\Answers to Post-Hearing Questions from John McKay, H.R. 580, 
Restoring Checks and Balances in the Confirmation Process of U.S. 
Attorneys, Subcomm. on Commercial and Admin. Law, House Committee on 
the Judiciary, 110th Congress at 275 (March 6, 2007).
---------------------------------------------------------------------------
    There is evidence that suggests that White House officials 
may have been involved in the firing of Carol Lam, former U.S. 
Attorney for the Southern District of California. She 
prosecuted Republican Congressman Duke Cunningham, which led to 
his conviction and the convictions of CIA official Kyle 
``Dusty'' Foggo and Brent Wilkes, a defense contractor with 
links to Republican members of Congress. One day after she 
notified Department officials in Washington, D.C., that she was 
executing search warrants against Mr. Foggo and Mr. Wilkes,\73\ 
Kyle Sampson sent an email to Deputy White House Counsel 
William Kelley saying that they should discuss, ``[t]he real 
problem we have right now that leads me to conclude that we 
should have someone ready to be nominated on 11/18, the day her 
4-year term expires.''\74\
---------------------------------------------------------------------------
    \73\Dan Eggen, Prosecutor's Firing Was Urged During Probe, 
Washington Post, March 9, 2007; Testimony of Kyle Sampson, Preserving 
Prosecutorial Independence: Is the Department of Justice Politicizing 
the Hiring and Firing of U.S. Attorneys?--Part III at 39-40.
    \74\OAG 22.
---------------------------------------------------------------------------
    According to documents and testimony, Ms. Taylor and Mr. 
Jennings were involved in the discussions and planning that led 
to the removal of Bud Cummins and bypassing the Senate 
confirmation process to install Tim Griffin, another former 
aide to Mr. Rove, as U.S. Attorney in the Eastern District of 
Arkansas. They were both part of a group that discussed using 
the Attorney General's expanded authority under the Patriot Act 
reauthorization to avoid the opposition of the Arkansas 
Senators by appointing Mr. Griffin indefinitely.\75\ Mr. 
Sampson testified that Ms. Taylor was upset when, a month after 
telling Senator Pryor he was committed finding a U.S. Attorney 
who could be confirmed by the Senate, the Attorney General 
finally ``rejected'' this use of his appointment authority.\76\
---------------------------------------------------------------------------
    \75\Interview with D. Kyle Sampson, Former Chief of Staff to the 
Attorney General, Department of Justice at 54 (April 15, 2007).
    \76\Id. at 93.
---------------------------------------------------------------------------
    In addition, documents and testimony show that Ms. Taylor 
was the White House official who approved the plan for firing 
multiple U.S. Attorneys on December 7, 2006, on behalf of the 
White House political office.\77\ Mr. Jennings also had 
knowledge of this plan and both he and Ms. Taylor were involved 
in subsequent discussions regarding congressional testimony of 
Department officials and the administration's response to the 
growing scandal surrounding the firings.\78\
---------------------------------------------------------------------------
    \77\OAG 45; Testimony of Kyle Sampson, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part III at 32-33.
    \78\Testimony of Kyle Sampson, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part III at 37-39.
---------------------------------------------------------------------------
    Documents and testimony also show that Mr. Rove, Mr. 
Jennings and Ms. Taylor had a role in shaping the 
administration's response to congressional inquiries into these 
dismissals, which led to inaccurate and misleading testimony to 
Congress and misleading statements to the public. According to 
the testimony of Department officials, Mr. Rove and other White 
House officials attended a meeting at the White House on March 
5, 2007--the day before Principal Associate Deputy Attorney 
General William Moschella testified before the House Judiciary 
Committee--to ``go over the Administration's position on all 
aspects of the US atty issue.''\79\
---------------------------------------------------------------------------
    \79\Interview with William Moschella, Principal Associate Deputy 
Attorney General, Department of Justice at 99-102 (April 24, 2007); DAG 
0840.
---------------------------------------------------------------------------
    The administration's response included an attempt to cover 
up the role that White House officials played in the firings. 
According to documents and the testimony of Mr. Sampson, 
Attorney General Gonzales was upset after the February 6, 2006, 
testimony of Deputy Attorney General Paul McNulty because Mr. 
McNulty's testimony put the White House involvement in the 
firings in the public domain.\80\ The administration's February 
23, 2007, response to a letter from Senators Reid, Schumer, 
Durbin and Murray regarding the firings stated, ``The 
Department is not aware of Karl Rove playing any role in the 
decision to appoint Mr. Griffin.''\81\ Earlier emails indicate 
that the appointment of Mr. Griffin was important to Mr. 
Rove.\82\ The White House apparently signed off on this letter. 
Many parts of this letter were later retracted.\83\ Reports 
indicate that among the emails withheld from the investigating 
Committees are emails indicating that White House officials 
were consulted about that misleading letter.\84\
---------------------------------------------------------------------------
    \80\Testimony of Kyle Sampson, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part III at 159-162; OAG 297.
    \81\Letter from Richard A. Hertling, Acting Assistant Attorney 
General, to Senator Charles Schumer (February 23, 2007).
    \82\OAG 127.
    \83\Letter from Richard A. Hertling, Acting Assistant Attorney 
General, Department of Justice to Senator Patrick Leahy and Senator 
Charles Schumer (March 28, 2007).
    \84\Evan Perez, More Justice Emails Raise Stakes for Aide, 
Washington Post, March 29, 2007.
---------------------------------------------------------------------------
    The extensive involvement of White House officials in the 
matters under investigation has been established by the 
selective documents and emails released by the Justice 
Department and by the testimony of Department officials. What 
the White House stonewalling is preventing is conclusive 
evidence of who made the decisions to fire these Federal 
prosecutors. The Committee's investigation of the firings, 
including critical information about the reasons and 
motivations for them, and the veracity of information provided 
to Congress about them, remains incomplete without the 
materials subpoenaed by this Committee.

        E. EXECUTIVE PRIVILEGE NOT PROPER TO COVER UP WRONGDOING

    The White House's privilege claim is particularly 
inappropriate in light of the evidence suggesting possible 
wrongdoing by government officials. Not only has the Supreme 
Court recognized that Congress' ``broad investigative power'' 
is necessary to determine whether there was wrongdoing and 
address it,\85\ but previous administrations have recognized 
that executive privilege should not be invoked to prevent 
investigations into wrongdoing. During the Reagan 
administration, President Reagan himself declared, ``[w]e will 
never invoke executive privilege to cover up wrongdoing,''\86\ 
and the Justice Department's Office of Legal Counsel stated, 
``the privilege should not be invoked to conceal evidence of 
wrongdoing or criminality on the part of executive 
officers.''\87\ The Clinton administration followed a similar 
policy, stating that in relation to communications ``relating 
to investigations of personal wrongdoing by government 
officials, it is our practice not to assert executive 
privilege, either, in judicial proceedings or in congressional 
investigations and hearings.''\88\
---------------------------------------------------------------------------
    \85\See Nixon v. Adm'r of Gen. Srvs., 433 U.S. 425, 453 (1977) 
(court found there to be a ``substantial public interest'' in 
preserving President Nixon's records so that Congress could investigate 
the events that led to President Nixon's resignation ``in order to 
gauge the necessity for remedial legislation'').
    \86\Public Papers of the Presidents (1983) at 239, cited in L. 
Fischer, The Politics of Executive Privilege at 51 (2004).
    \87\Congressional Subpoenas of Department of Justice Investigative 
Files, 8 U.S. Op. Off. Legal Counsel 252 at 41 (1984).
    \88\Lloyd N. Cutler, Special Counsel to the President, Memorandum 
for all Executive Department and Agency Counsels, Congressional 
Requests for Departments and Agencies for Documents Protected by 
Executive Privilege at 1, Sept. 28, 1994, available in Frederick M. 
Kaiser et al., Congressional Oversight Manual, CRS Report for Congress, 
RL 30240 at App. C, May 1, 2007.
---------------------------------------------------------------------------
    The Committee has found evidence of possible wrongdoing. 
The evidence supports a conclusion that officials from the 
highest political ranks at the White House, including Mr. Rove, 
manipulated the Justice Department, turning the Department into 
a political arm of the White House to pursue a partisan 
political agenda. The Committee has found evidence of the 
involvement of White House officials in pressuring prosecutors 
to bring partisan cases and seeking retribution against those 
who refuse to adhere to the political will of the 
administration. One example is New Mexico U.S. Attorney David 
Iglesias, who was fired a few weeks after Karl Rove complained 
to the Attorney General about the lack of purported ``voter 
fraud'' enforcement cases in Mr. Iglesias' jurisdiction. 
Department official Monica Goodling admitted while testifying 
before the House Judiciary Committee under a grant of immunity 
from prosecution to improperly screening career employees for 
political loyalty and wielding undue political influence over 
key law enforcement decisions and policies.\89\ The Committee 
has found that officials at the White House and the Justice 
Department were determined to use the Attorney General's new 
authority enacted as part of the Patriot Act reauthorization, 
since rescinded, to put in place ``interim'' U.S. Attorneys 
indefinitely, doing an end-run around the Senate's 
constitutional and statutory role in the confirmation of U.S. 
Attorneys.\90\
---------------------------------------------------------------------------
    \89\Testimony of Monica Goodling, The Continuing Investigation into 
the U.S. Attorneys Controversy and Related Matters (Part I), House 
Committee on the Judiciary, 110th Congress at 36 (May 23, 2007).
    \90\Testimony of Kyle Sampson, Preserving Prosecutorial 
Independence: Is the Department of Justice Politicizing the Hiring and 
Firing of U.S. Attorneys?--Part III at 137; OAG 127.
---------------------------------------------------------------------------
    Along the way, this subversion of the justice system has 
included lying, misleading, stonewalling and ignoring the 
Congress in our attempts to find out precisely what happened. 
The reasons given for these firings were contrived as part of a 
cover up and the stonewalling by the White House is part and 
parcel of that same effort. During his sworn testimony, 
Attorney General Gonzales, who has since resigned, contrasted 
these politically motivated firings with the replacement of 
other United States Attorneys for ``legitimate cause.''
    As discussed more fully below, a joint investigation by the 
Department's Office of Inspector General (OIG) and Office of 
Professional Responsibility (OPR) concluded that the firings 
were unprecedented and that partisan political considerations 
played a role in the firings.\91\ The report also concluded 
that the firings were not the result of ``a few bad apples'' 
run amok as suggested by some in the administration, but rather 
that Attorney General Gonzales and Deputy Attorney General 
McNulty bore primary responsibility for the deeply flawed 
process that led to the firings because they ``abdicated their 
responsibility to adequately oversee the process and to ensure 
that the reasons for removal of each U.S. Attorney were 
supportable and not improper.'' In addition, the internal 
investigation found that they and other high-level Department 
officials were responsible for making untruthful statements 
about the removals and their role in the process. Finally, even 
though it was an executive branch investigation, the OIG/OPR 
investigation, like the Committee's investigation, was impeded 
by the Bush administration's refusal to cooperate and provide 
documents or witnesses despite evidence pointing to the 
significant involvement of high-level White House officials.
---------------------------------------------------------------------------
    \91\``An Investigation into the Removal of Nine U.S. Attorneys in 
2006,'' the Department of Justice's Office of the Inspector General and 
the Department of Justice's Office of Professional Responsibility 
(September 29, 2008).
---------------------------------------------------------------------------
    Since the beginning of this investigation, numerous 
Department and administration officials heavily involved in 
these firings have resigned, including the Attorney General and 
his chief of staff, the Deputy Attorney General and his chief 
of staff, the Acting Associate Attorney General, the 
Department's White House liaison, the Director of the Executive 
Office of U.S. Attorneys, the White House Political Director, 
the White House Counsel, the Deputy White House Counsel, and 
the White House Deputy Chief of Staff.
    Monica Goodling, the Department's White House liaison, who 
only testified before the House Judiciary Committee after 
invoking her Fifth Amendment privilege against self-
incrimination and receiving immunity, admitted to ``crossing 
the line'' with the illegal political vetting of possible hires 
for career positions at the Justice Department.\92\ The 
allegations of improper hiring for career positions throughout 
the Department have been corroborated and confirmed as 
widespread by two OIG/OPR reports stemming from referrals by 
the Senate and House Judiciary Committees. An OIG/OPR report 
issued June 24, 2008, found improper and illegal political 
hiring for career positions in the Department's Honors Program 
and Summer Law Intern Program and a report issued July 28, 
2008, found improper and illegal use of political 
considerations in hiring for career positions throughout the 
Department, including hiring for career prosecutor positions in 
U.S. Attorneys offices, for detailee positions in main Justice, 
and for immigration judge positions.
---------------------------------------------------------------------------
    \92\Testimony of Monica Goodling, The Continuing Investigation into 
the U.S. Attorneys Controversy and Related Matters (Part I) at 36.
---------------------------------------------------------------------------
    Bradley Schlozman, former Acting Assistant Attorney General 
for the Civil Rights Division of the Department of Justice and 
former Interim United States Attorney for the Western District 
of Missouri, has also acknowledged raising the political 
leanings of candidates who were being considered for career 
positions at the Justice Department.\93\ A forthcoming report 
is expected to detail the findings of the OIG/OPR investigation 
into the allegations raised regarding Mr. Schlozman and the use 
of political considerations for hiring and personnel decisions 
in the Civil Rights Division.
---------------------------------------------------------------------------
    \93\Answers to Post-Hearing Questions from Bradley Schlozman, 
Preserving Prosecutorial Independence: Is the Department of Justice 
Politicizing the Hiring and Firing of U.S. Attorneys?--Part V, Senate 
Committee on the Judiciary, 110th Congress (June 5, 2007).
---------------------------------------------------------------------------
    The President's claim of executive privilege cannot be used 
to shield Congress from investigating possible wrongdoing by 
officials at the Department and the White House. Such 
wrongdoing was rampant.

F. THE WHITE HOUSE'S CLAIMS THAT KARL ROVE IS IMMUNE FROM TESTIMONY ARE 
             CONTRADICTED BY LEGAL AND HISTORICAL PRECEDENT

    In an August 1, 2007, letter, White House Counsel Fred 
Fielding advanced the novel argument that ``based upon the 
advice of the Department of Justice, the President also has 
requested that I advise and inform you that Mr. Rove, as an 
immediate presidential advisor, is immune from compelled 
congressional testimony about matters that arose during his 
tenure and that relate to his official duties in that 
capacity.'' The White House raised similar arguments in 
response to a House Judiciary Committee subpoena issued to 
former White House Counsel Harriet Miers.
    There is no proper basis for Mr. Rove to refuse to appear 
pursuant to the Committee's subpoena. Since World War II, 74 
presidential advisors, in positions of proximity to the 
President similar to Mr. Rove, have testified before Congress, 
many of those compelled by subpoena.\94\ Since 1975, in each of 
the 10 times cabinet-level or senior executive officials have 
been cited by a congressional committee for contempt for 
failure to produce subpoenaed documents, the officials turned 
over the documents and ``there was substantial or full 
compliance with the document demands.''\95\ The White House's 
newly-minted claim of ``immunity'' for White House employees is 
undermined by appearances by other current and former White 
House advisors, Ms. Taylor and Mr. Jennings, in response to 
this Committee's subpoenas related to this investigation. Even 
President Nixon backed away from making the extreme legal 
argument asserted by this White House. The White House Counsel, 
John Dean, and other advisors appeared and testified before 
Congress during its investigation of the Watergate scandal.
---------------------------------------------------------------------------
    \94\Harold C. Relyea & Todd B. Tatelman, Presidential Adviser's 
Testimony Before Congressional Committees: An Overview, CRS Report for 
Congress, RL 31351 (April 10, 2007).
    \95\Morton Rosenberg, Congressional Oversight Manual, CRS-37, note 
21 and accompanying text.
---------------------------------------------------------------------------
    In support of this blanket assertion of immunity, the 
administration does not set forth a single court precedent. 
Rather, it relies on an August 1, 2007, letter from White House 
Counsel Fred Fielding and attached July 10, 2007, memorandum 
from Stephen G. Bradbury, this administration's principal 
Deputy Assistant Attorney General in the Office of Legal 
Counsel (OLC), that amounts to a selective and incomplete 
collection of untested executive branch memoranda, opinions, 
presidential letters and speeches--in short, assertions of 
executive power by the executive branch.\96\ Indeed, the White 
House does not and cannot cite a single court case in support 
of its claims.
---------------------------------------------------------------------------
    \96\Steven G. Bradbury, Re: Immunity of Former Counsel to the 
President from Compelled Testimony at 1, July 10, 2007 (quoting 
Assertion of Executive Privilege with Respect to Clemency Decision, 23 
Op. O.L.C. 1, 4 (1999) (hereinafter Bradbury)).
---------------------------------------------------------------------------
    In a civil suit stemming from the House Judiciary 
Committee's parallel investigation, the District Court for the 
District of Columbia rejected the administration's claim of 
immunity for presidential advisors.\97\ In his July 31, 2008, 
opinion, Judge Bates found that the ``Executive's current claim 
of absolute immunity from compelled congressional process for 
senior presidential aides is without any support in the case 
law.'' In addition, Judge Bates explained why the 
administration's blanket immunity claims were an unjustified 
encroachment on the constitutional powers of Congress. He 
wrote: ``[I]f the Executive's absolute immunity argument were 
to prevail, Congress could be left with no recourse to obtain 
information that is plainly not subject to any colorable claim 
of executive privilege.'' The result, which the court concluded 
was ``unacceptable,'' would be that the ``Executive's proposed 
absolute immunity would thus deprive Congress of even non-
privileged information.''\98\
---------------------------------------------------------------------------
    \97\See Committee on the Judiciary v. Miers, 558 F.Supp.2d 53.
    \98\Id. at 106.
---------------------------------------------------------------------------
    Although the administration has appealed Judge Bates' 
decision to the D.C. Circuit, the D.C. Circuit has specifically 
rejected the argument that OLC opinions like those cited by the 
White House in support of its novel claims have value as legal 
precedent outside of the executive branch itself. In Public 
Citizen v. Burke,\99\ the government sought to enforce an OLC 
opinion that obliged the Archivist of the United States to 
``acquiesce in any claim of executive privilege asserted by the 
former president.''\100\ The opinion nominally interpreted 
regulations issued under the Presidential Recordings and 
Materials Act of 1974.\101\ The court rejected the 
administration's argument, holding that deference to executive 
branch documents occurred only where an agency was interpreting 
a statute that it was bound to enforce and that, ``[t]he 
federal Judiciary does not, however, owe deference to the 
Executive Branch's interpretation of the Constitution.''\102\ 
Accordingly, the court rejected the OLC opinion because it ``is 
at variance with congressional purpose.''\103\
---------------------------------------------------------------------------
    \99\843 F.2d 1473, (Cir. Ct. D.C. 1988).
    \100\Id. at 1474.
    \101\Note following 44 U.S.C. Sec. 2111 (1982).
    \102\See Burke, 843 F.2d at 1478, (``[T]he government's 
administrative opinion is not, in any meaningful sense, an 
interpretation of the statute. The OLC memorandum is driven entirely by 
its constitutional reasoning'').
    \103\843 F.2d at 1480.
---------------------------------------------------------------------------
    In fact, Federal court decisions contradict the White 
House's immunity assertion, and establish the scope of 
executive privilege and the need for balance among the three 
branches of the government. These decisions establish that no 
government official, including the President, is immune from 
compliance with a subpoena. Mr. Bradbury's memo states, ``This 
immunity is absolute and may not be overborne by competing 
congressional interests.''\104\ This broad claim was struck 
down in the earliest days of the Republic. When the privilege 
was first recognized during the trial of Aaron Burr in 1807, 
Chief Justice Marshall specifically stated ``[t]hat the 
president of the United States may be subpoenaed, and examined 
as a witness, and required to produce any paper in his 
possession, is not controverted.''\105\ The Supreme Court yet 
again ratified this principle 190 years later when it held that 
even a sitting president may be subpoenaed by a court and 
required to participate in a civil lawsuit.\106\
---------------------------------------------------------------------------
    \104\Bradbury at 1.
    \105\United States v. Burr, 25 F.Cas. 187, 191 (1807).
    \106\Clinton v. Jones, 520 U.S. 681, 703-706 (1997).
---------------------------------------------------------------------------
    Moreover, Federal courts examining privilege claims have 
never endorsed the type of blanket immunity claim set forth by 
the White House in response to congressional or court 
subpoenas. For example, in Senate Select Committee on 
Presidential Campaign Activities v. Nixon, a case involving an 
executive privilege claim against compulsion by a congressional 
subpoena, the court set forth, as it has in every other 
instance of an executive privilege claim, a balancing test of 
the interests involved. The court held that applying the 
privilege ``depends on a weighing of the public interest 
protected by the privilege against the public interests that 
would be served by disclosure in a particular case.''\107\ This 
balancing test presupposes that the President, not to mention 
his aides, must be able to be compelled by congressional 
committees to appear.
---------------------------------------------------------------------------
    \107\Senate Select Committee v. Nixon, 498 F.2d 725, 729 (D.C. 
Cir., 1974).
---------------------------------------------------------------------------
    The White House contends its novel claim of immunity for 
presidential aides arises from separation of powers principles 
that render the President immune from Congressional subpoena. 
These claims ignore that the branches of government, while 
separate, act as a check on each other. Courts have long 
recognized that Congress has a broad, constitutionally grounded 
oversight power that encompasses both investigations into the 
administration of the government and the power to compel 
production of information where necessary. Mr. Bradbury's memo 
relies heavily on statements by President Truman in its 
argument and ignores that his broad claims of presidential 
authority were rebuffed by the Supreme Court in the Youngstown 
Sheet & Tube Co. v. Sawyer.\108\
---------------------------------------------------------------------------
    \108\343 U.S. 579 (1952).
---------------------------------------------------------------------------
    Another president, Woodrow Wilson, observed:

          Quite as important as legislation is vigilant 
        oversight of administration; and even more important 
        than legislation is the instruction and guidance in 
        political affairs which the people might receive from a 
        body which kept all national concerns suffused in a 
        broad daylight of discussion. . . . The informing 
        functions of Congress should be preferred even to its 
        legislative function.\109\
---------------------------------------------------------------------------
    \109\Woodrow Wilson, Congressional Government 195, 198 (Meridian 
Books 1956) (1885) (hereafter Wilson).

Unlike President Truman, President Wilson has been favorably 
quoted on this point by the Supreme Court,\110\ and has had his 
fundamental point--that the Congress has a constitutional 
oversight power and duty--upheld by numerous courts on numerous 
occasions. ``The power of the Congress to conduct 
investigations is inherent in the legislative process. That 
power is broad.''\111\ The Court in McGrain v. Daugherty went 
further: ``We are of opinion that the power of inquiry--with 
process to enforce it--is an essential and appropriate 
auxiliary to the legislative function.''\112\ Not only is the 
power of inquiry essential to the function of Congress, the 
power of inquiry cannot exist without a means to compel 
testimony and production of documents.
---------------------------------------------------------------------------
    \110\See, e.g., Hutchinson v. Proxmire, 443 U.S. 111, 132 (1975) 
(``Unless Congress have and use every means of acquainting itself with 
the acts and the disposition of the administrative agents of the 
government, the country must be helpless to learn how it is being 
served'') (quoting Wilson at 303).
    \111\Watkins v. United States, 354 U.S. 178, 187 (1957).
    \112\McGrain v. Daugherty, 273 U.S. 135, 174 (1927); See also Id. 
at 175 (``some means of compulsion are essential to obtain what is 
needed'').
---------------------------------------------------------------------------
    The Supreme Court ruled in Nixon v. Fitzgerald: ``It is 
settled law that the separation-of-powers doctrine does not bar 
every exercise of jurisdiction over the President of the United 
States.''\113\ The Court has also stated that ``[e]ven when a 
branch does not arrogate power to itself, moreover, the 
separation-of-powers doctrine requires that a branch not impair 
another in the performance of its constitutional duties.''\114\ 
The White House provides no answer to the Supreme Court 
precedence demonstrating that Congress has the power to compel 
testimony and production of documents from government officials 
in the course of its investigations.
---------------------------------------------------------------------------
    \113\Nixon v. Fitzgerald, 457 U.S. 731, 753-754 (1981).
    \114\Loving v. United States, 517 U.S. 748, 757 (1996).
---------------------------------------------------------------------------

VIII. Continued Non-Compliance Despite the District Court's Decision in 
   House Judiciary Committee Lawsuit Dismissing the Administration's 
                 Immunity and Blanket Privilege Claims

    As part of its parallel investigation into the hiring and 
firing of U.S. Attorneys, the House Judiciary Committee, on 
behalf of the House of Representatives, has pursued a civil 
suit seeking an order that former White House Counsel Harriet 
Miers comply with a subpoena to appear and testify regarding 
the U.S. Attorney firings and that White House Chief of Staff 
Joshua Bolten produce a privilege log in response to the House 
Judiciary Committee subpoena. That suit, challenging the 
administration's claims of absolute immunity for presidential 
advisors and blanket claims of executive privilege, involves 
issues similar to those at issue in the administration's non-
compliance with this Committee's subpoenas. The sole decision 
on the merits in that suit, issued by Judge Bates of the 
District Court for the District of Columbia on July 31, 2008, 
reached the same conclusion as Chairman Leahy's November 29, 
2007 order, that the White House's executive privilege and 
immunity claims were not legally valid to excuse compliance 
with the Committee's subpoenas.
    On July 25, 2007, after the failure of the administration 
to cooperate voluntarily or under compulsion by subpoena with 
the House Judiciary Committee's investigation into the U.S. 
Attorney firings, the House Judiciary Committee adopted a 
resolution of contempt against former White House Counsel 
Harriet Miers and White House Chief of Staff Joshua Bolten. 
After continued non-compliance with the subpoenas, on February 
14, 2008, the House voted 223-32 to hold Ms. Miers and Mr. 
Bolten in contempt, passing resolutions to pursue both criminal 
contempt charges and a civil action in Federal court for 
declaratory and injunctive relief to obtain compliance with the 
subpoenas.
    On February 28, 2008, Speaker of the House Nancy Pelosi 
certified the contempt report to District of Columbia U.S. 
Attorney Jeffrey A. Taylor, directing him pursuant to 2 U.S.C. 
Sec. Sec. 192 and 194 to present contempt charges against Mr. 
Bolten and Ms. Miers to a grand jury. On February 29, 2008, 
Attorney General Mukasey informed Speaker Pelosi that the 
Department refused to bring the contempt charges before a grand 
jury or take any action to prosecute Mr. Bolten or Ms. Miers. 
Accordingly, the House Judiciary Committee filed a civil action 
in the District Court for the District of Columbia for 
declaratory and injunctive relief to enforce the subpoenas.
    On July 31, 2008, Judge Bates rejected the administration's 
claim that senior White House officials are not required to 
comply with congressional subpoenas. As in Chairman Leahy's 
November 29, 2007, order finding the administration's novel 
``immunity'' claims without any legal or historical precedence, 
Judge Bates' decision found: ``Executive's current claim of 
absolute immunity from compelled congressional process for 
senior presidential aides is without any support in the case 
law.'' In addition, Judge Bates explained why the 
administration's blanket immunity claims were an unjustified 
encroachment on the constitutional powers of Congress. He 
wrote: ``[I]f the Executive's absolute immunity argument were 
to prevail, Congress could be left with no recourse to obtain 
information that is plainly not subject to any colorable claim 
of executive privilege.'' The result, which the court concluded 
was ``unacceptable,'' would be that the ``Executive's proposed 
absolute immunity would thus deprive Congress of even non-
privileged information.''
    Judge Bates' decision also undercut the White House's 
blanket claims of privilege without substantiation. In the 
court's opinion, Judge Bates wrote that ``clear precedent and 
persuasive policy reasons confirm that the Executive cannot be 
the judge of its own privilege'' and that ``both the Court and 
the parties will need some way to evaluate the privilege 
assertions going forward.'' Judge Bates' opinion validates the 
Committee's requests for over a year for the White House to 
provide the specific legal and factual basis for its privilege 
so that the Committee can probe the basis for those claims and 
their validity rather than rely on the say-so of the 
President's lawyers.
    Judge Bates' opinion also recounted the efforts taken by 
both the House and Senate Judiciary Committees to reach an 
accommodation with the administration which have been to no 
avail in light of the administration's continued reliance on 
its initial ``take it or leave it'' proposal for off-the-
record, backroom interviews with no transcript, no oath, and no 
ability to follow up, which would deny Congress the ability to 
fulfill its legislative and oversight responsibilities.
    On July 31, 2008, after Judge Bates issued his opinion, 
Chairman Leahy sent letters to Mr. Rove's attorney, Robert 
Luskin, and White House Counsel Fred Fielding, instructing them 
to advise the Committee by August 7 when Mr. Rove and Mr. 
Bolten would appear to provide documents and testimony related 
to the mass firing of U.S. Attorneys. Chairman Leahy also sent 
a letter to Attorney General Michael Mukasey asking when the 
Department would withdraw memoranda and opinions justifying the 
White House's non-compliance with the subpoenas, including the 
memos purporting to justify the claim of immunity from 
testifying.
    On August 7, 2008, Mr. Bolten and Ms. Miers requested a 
stay of Judge Bates' decision pending an appeal and White House 
Counsel Fred Fielding responded to Chairman Leahy that, despite 
the court's order, the White House would await the outcome of 
an appeal and a request to stay the decision before 
``entertaining any requests for Mr. Bolten's compliance with 
the Senate Judiciary Committee subpoena.''
    Chairman Leahy responded to Mr. Fielding's letter on August 
14, 2008, again seeking compliance with the Committee's 
subpoenas, stating that the White House's ``continued reliance 
on unprecedented `immunity' claims places the administration 
starkly at odds with Congress, the Federal court, and the rule 
of law.'' In addition, Chairman Leahy pointed out that the 
administration has made no proposals since the initial 
unacceptable offer in March 2007 and taken no steps toward 
compliance with the Judiciary Committee's subpoenas or with the 
court's order.
    On October 6, 2008, the Court of Appeals for the D.C. 
Circuit granted the administration's motion for a stay of Judge 
Bates' decision and refused to expedite the appeal. 
Accordingly, Judge Bates' July 31, 2008, decision rejecting the 
administration's position remains the only one on the merits. 
On October 16, 2008, Chairman Leahy received the Department's 
belated response to his July 31, 2008, letter to Attorney 
General Michael Mukasey asking whether he would be withdrawing 
the Department's memorandum supporting the now-rejected 
immunity claim. The Department responded that, in light of the 
D.C. Circuit's stay of the district court decision, the Office 
of Legal Counsel memorandum on immunity remains 
``authoritative.''
    The effects of the White House's assertions of privilege 
and immunity have been unmistakable--amounting to the 
withholding of critical evidence related to the congressional 
investigation. All along, the administration has contended that 
their blanket claim of privilege and immunity cannot be tested 
but must be accepted by the Congress as the last word. The 
administration maintains that position despite a resounding 
rejection by Judge Bates.

IX. Department of Justice's Internal Investigation Confirmed Judiciary 
Committee's Findings Though Impeded by White House Refusal to Cooperate

    On September 29, 2008, the Department of Justice's Office 
of the Inspector General (OIG) and the Office of Professional 
Responsibility (OPR) released a 358 page report on ``An 
Investigation into the Removal of Nine U.S. Attorneys in 
2006.'' This report stems from a joint internal investigation 
into the U.S. Attorney firings begun in March 2007. Glenn A. 
Fine, the Department's Inspector General, and H. Marshall 
Jarrett, counsel for OPR, informed the Judiciary Committee of 
the joint investigation in a March 26, 2007, letter to Chairman 
Leahy and Ranking Member Specter. They stated that they 
intended to investigate issues related to the removals of the 
U.S. Attorneys, including ``whether the removal of any of the 
United States Attorneys was intended to interfere with or was 
in retaliation for pursuing or failing to pursue prosecutions 
or investigations'' and ``the accuracy of statements made by 
various Department officials to Congress about the removal of 
the United States Attorneys.'' The Senate and House committees 
investigating the firings clarified that investigation would be 
conducted in accordance with OIG practices, including 
independence from the Attorney General and making public any 
findings from the investigation.
    Subsequent referrals to OIG/OPR of related matters of 
politicization of hiring and firing at the Department stemming 
from the congressional investigation became part of the joint 
internal investigation. As a result, in addition to the 
September 29, 2008, report summarized here regarding the 
removal of nine U.S. Attorneys in 2006, OIG/OPR issued reports 
on June 24, 2008, relating to political hiring for career 
positions in the Department's Honors Program and Summer Law 
Intern Program and on July 28, 2008, relating to the use of 
political considerations in hiring for career positions 
throughout the Department, including hiring for career 
prosecutor positions in U.S. Attorneys offices, for detailee 
positions in main Justice, and for immigration judge positions. 
A separate report is expected detailing the findings of the 
OIG/OPR investigation into the use of political considerations 
for hiring and personnel decisions in the Civil Rights 
Division.
    The findings of September 29, 2008, report into the removal 
of U.S. Attorneys echoed the findings of the Committee's 
investigation that the firings were unprecedented and that 
partisan political considerations played a role in the firings. 
The report also concluded that the firings were not the result 
of ``a few bad apples'' run amok as suggested by some in the 
administration, but rather that Attorney General Gonzales and 
Deputy Attorney General McNulty bore primary responsibility for 
the deeply flawed process that led to the firings because they 
``abdicated their responsibility to adequately oversee the 
process and to ensure that the reasons for removal of each U.S. 
Attorney were supportable and not improper.'' In addition, the 
internal investigation found that they and other high-level 
Department officials were responsible for making untruthful 
statements about the removals and their role in the process. 
Finally, even though it was an executive branch investigation, 
the OIG/OPR investigation, like the Committee's investigation, 
was impeded by the Bush administration's refusal to cooperate 
and provide documents or witnesses despite evidence pointing to 
the significant involvement of high-level White House officials 
like Karl Rove and former White House Counsel Harriet Miers.
    The investigation described in the September 29, 2008, 
report focused on four areas. First, OIG/OPR investigated 
possible reasons the U.S. Attorneys were removed including 
whether for partisan political purposes, to influence an 
investigation or prosecution, or for retaliation purposes. 
Second, the investigation examined the process by which the 
U.S. Attorneys were selected for removal and identified the 
persons involved in those decisions. Third, OIG/OPR 
investigated whether Attorney General Gonzales or other 
Department officials made misleading statements regarding the 
U.S. Attorneys' removal or attempted to influence other 
witnesses' testimony. Finally, OIG/OPR investigated whether the 
Department intended to bypass the Senate confirmation process 
by replacing the dismissed attorneys with interim U.S. 
Attorneys for an indefinite period.
    The OIG/OPR report found that 28 U.S. Attorneys were 
considered for removal on at least one of eight lists compiled 
between March 2005, and the firings of seven U.S. Attorneys in 
December 2006. Of the nine U.S. Attorneys that were the subject 
of the investigation, OIG/OPR concluded that the removal of at 
least seven involved impropriety as to the reasons for the 
removal or inconsistencies in the reasons given for removal. 
The following is a brief summary of the findings regarding 
those seven:

                             A. TODD GRAVES

    Todd Graves, former U.S. Attorney for the Western District 
of Missouri, was asked to resign on January 24, 2006. He 
announced his resignation on March 10, 2006 and left office 
March 24, 2006. Until May 2007, Department witnesses 
represented to Congress that seven U.S. Attorneys, plus Bud 
Cummins, were the only U.S. Attorneys removed as part of the 
process Kyle Sampson initiated in 2005 to identify and remove 
``underperforming'' U.S. Attorneys. No witness mentioned Todd 
Graves of the Western District of Missouri. On May 9, 2007, 
Graves publically stated he was told to resign in January 2006 
and his removal subsequently was included in the OIG/OPR 
investigation.
    The only explanation offered by Department officials for 
Mr. Graves's removal, a vague recollection that an internal 
Department investigation may have been the basis for his 
removal, was found by OIG/OPR to have no basis. Rather, Mr. 
Graves appeared to have been removed because of complaints to 
the White House Counsel's Office by Senator Bond's staff 
regarding his decision not to respond to a demand from Senator 
Bond's staff member to get involved in a personnel decision in 
Representative Sam Graves's congressional office. The 
investigation into Mr. Graves's removal was hindered by the 
failure of Mr. Sampson and Ms. Goodling to recall the reasons 
for Mr. Graves's removal, by Ms. Goodling's refused to 
cooperate with the investigations, by the refusal of former 
White House Counsel Harriet Miers and other White House 
officials to cooperate with the investigations, and by the 
absence of any documents memorializing the justifications for 
Mr. Graves's removal.
    The report concludes that the Department's handling of Mr. 
Graves' removal was inappropriate because: The Department 
failed to fulfill its responsibility to protect its 
independence and the independence of Federal prosecutors by 
ensuring that otherwise effective U.S. Attorneys are not 
removed for improper political reasons. Nobody in the 
Department accepted responsibility for the decision to remove 
Mr. Graves, and nobody consulted with the Attorney General 
about the decision to tell a U.S. Attorney to resign.

                        B. H.E. ``BUD'' CUMMINS

    H.E. ``Bud'' Cummins, the former U.S. Attorney for the 
Eastern District of Arkansas, was asked to resign in June 2006. 
He was replaced by Timothy Griffin in December 2006. The 
replacement of Mr. Cummins by Mr. Griffin gave rise to 
allegations that the firing was improper and that the 
Department was attempting to bypass the Senate confirmation 
process by appointing Griffin the interim U.S. Attorney for an 
indefinite term.
    The Department initially stated that Mr. Cummins was 
included on its initial list of ``weak U.S. Attorneys'' because 
he was mediocre and an underperformer. In fact, Mr. Cummins was 
considered to be one of the top five U.S. Attorneys in the 
country. The two Department evaluations of Mr. Cummins' office 
were positive about his management of the office and his 
adherence to Department priorities. The investigation found 
that Mr. Cummins was not removed for performance reasons. His 
performance was never evaluated and no Department leader had 
suggested Mr. Cummins' performance was lacking. Rather, the 
evidence showed the main reason for Mr. Cummins' removal and 
timing of the removal was to provide a position for the former 
White House employee, Mr. Griffin.
    The investigation also found that following Mr. Cummins' 
resignation and the announcement of Mr. Griffin as his 
replacement, senior Department leaders made a series of 
conflicting and misleading statements about Mr. Cummins' 
removal. The OIG/OPR investigation into the removal of Mr. 
Cummins was hindered by the refusal of former White House 
employees to cooperate with the investigations even though they 
had relevant information.

                           C. DAVID IGLESIAS

    David Iglesias, former U.S. Attorney for the District of 
New Mexico was asked to resign on December 7, 2006. The 
Department stated Mr. Iglesias was removed because he was 
underperforming, was an absentee landlord who was ``physically 
away a fair amount of time,'' and the Department received a 
complaint by Senator Domenici that he doesn't ``move cases.''
    The OIG/OPR investigation into Mr. Iglesias's removal was 
hampered and is not complete because key witnesses declined to 
cooperate with their investigation. Specifically, former White 
House officials Harriet Miers and Karl Rove and Senator 
Domenici and his Chief of Staff refused requests for interviews 
as part of the investigation. Further, the White House would 
not provide the investigation with any internal documents and 
emails relating to the removal of Mr. Iglesias.
    The investigation found that the Department's allegation 
that Mr. Iglesias was an absentee manager who had delegated too 
much authority to his first assistant was an ``after-the-fact'' 
justification for Mr. Iglesias's termination and not a reason 
he was placed on the removal list. Rather, the evidence shows 
that Kyle Sampson placed Mr. Iglesias on a list for removal due 
to complaints to the Department of Justice and the White House 
by Republican members of the Congress and party activists from 
New Mexico about Mr. Iglesias's handling of voter fraud and 
public corruption cases in the state. Once Mr. Iglesias was on 
the list, no senior Department leaders questioned his inclusion 
or asked that he be taken off the list. Thus, Mr. Iglesias was 
fired because of complaints by political officials, who had a 
political interest in the outcome of the voter fraud and 
corruption cases. The report found that these actions were an 
abdication of senior Department leaders' responsibilities, 
independence and integrity.
    Based on inability of investigators to compel the 
cooperation of key witnesses and obtain White House documents, 
several unanswered questions regarding Mr. Iglesias's removal 
remain. Accordingly, OIG/OPR recommended that the Attorney 
General appoint a special counsel to investigate why Mr. 
Iglesias, and the other U.S. Attorneys, were removed, whether 
Mr. Sampson or other Department officials made false statements 
to Congress or to Department investigators about the reasons 
for the removal of Mr. Iglesias or the other U.S. Attorneys, 
and whether Federal criminal statutes were violated with regard 
to the removal of Iglesias. The report states that interviews 
with witnesses who refused to cooperate with the investigation, 
such as Mr. Rove, Ms. Goodling and Ms. Miers and a review of 
White House documents would provide more evidence to whether 
Mr. Sampson or others made false statements.

                            D. DANIEL BOGDEN

    Daniel Bogden, former U.S. Attorney for Nevada, was told to 
resign on December 7, 2006, announced his resignation on 
January 17, 2007, and left office on February 28, 2007. The 
Department stated Mr. Bogden was removed because he ``lacked 
energy and leadership, and was good on guns but not good on 
obscenity cases.'' The Department also proffered that he was 
removed for using a provision of the Patriot Act to obtain 
evidence in a criminal case.
    The OIG/OPR investigation found no support for the 
allegation that Mr. Bodgen was told to resign due to the 
Patriot Act incident. The investigation determined that the 
primary reason that Mr. Bogden was placed on the removal list 
was because of complaints to the Department by Brend Ward, the 
head of the Obscenity Prosecution Task Force, about Mr. 
Bogden's decision not to assign a Nevada prosecutor to a Task 
Force case. It appears, however, that no Department official 
other than Mr. Sampson knew that justification for Mr. Bodgen's 
listing and were instead led to believe that his inclusion on 
the list for removal was because he was a ``mediocre'' U.S. 
Attorney and the Department could ``do better.'' Attorney 
General Gonzales and Deputy Attorney General McNulty were 
apparently never informed of the real reason for Mr. Bodgen's 
removal.
    The investigation concluded that Mr. Bogden's removal was 
``troubling'' because neither Sampson nor any other Department 
official involved in the removal process asked for Mr. Bogden's 
explanation about Mr. Ward's complaint, no Department official 
ever raised concerns or objectively assessed Mr. Bodgen's 
performance to determine whether he was in fact ``mediocre'' 
prior to his removal, Deputy Attorney General McNulty's qualms 
about Mr. Bogden's removal appear to have been quashed by his 
marital status or family status, and Attorney General Gonzales 
and Deputy Attorney General McNulty stated they did not know 
why Mr. Bogden was removed.

                            E. PAUL CHARLTON

    Paul Charlton, the former U.S. Attorney for the District of 
Arizona, was instructed to resign December 7, 2006, announced 
his resignation on December 18, 2006, and left office January 
30, 2007. The Department provided the following reasons for his 
removal: (1) Mr. Charlton advocated for additional resources 
for his office directly with Senator Kyl; (2) Mr. Charlton 
instituted a policy for tape recording interrogations; (3) Mr. 
Charlton did not timely file a notice that the Department would 
seek the death penalty in a particular case; and (4) Mr. 
Charlton refused to prosecute obscenity cases.
    The OIG/OPR investigation called into question the 
propriety of what it found to be the two primary reasons for 
Mr. Charlton's removal. Regarding the first of these reasons, 
Mr. Charlton's implementation of a pilot program for tape 
recording interrogations, Deputy Attorney General McNulty 
testified that while he did find Mr. Charlton's actions 
insubordinate, he would not have removed Mr. Charlton based on 
an attempt to implement the policy. The second reason for Mr. 
Charlton's removal, the one described in the report as ``the 
most significant factor'' in his removal, was Mr. Charlton's 
efforts to re-evaluate the Department's decision to seek the 
death penalty in a specific case. The report concluded that 
these efforts were not insubordination or inappropriate, but 
warranted given the magnitude of the Department's decision.

                             F. JOHN MCKAY

    John McKay, former U.S. Attorney for the Western District 
of Washington, was asked to resign on December 7, 2006, 
announced his resignation on December 14, 2006, and left office 
January 26, 2007. The Department proffered that Mr. McKay was 
removed because he was ``enthusiastic but temperamental,'' made 
promises about information sharing that the Department could 
not support, was ``overly aggressive in seeking resources'' to 
investigate the murder of an Assistant U.S. Attorney, his 
district's sentencing statistics were out of line and was 
resistant to Department leadership. According to media reports, 
Mr. McKay was removed because he failed to investigate voter 
fraud claims following the 2004 Washington State governor's 
race.
    Although the OIG/OPR report concludes that the evidence 
suggests the primary reason for Mr. McKay's removal was his 
conflict with Deputy Attorney General McNulty over an 
information sharing program, the investigation could not make a 
conclusive determination as to the reasons for Mr. McKay's 
removal. Based on the evidence, OIG/OPR could not determine 
whether or not complaints of Mr. McKay's handling of the voter 
fraud cases caused him to be removed.

                              G. CAROL LAM

    Carol Lam, former U.S. Attorney for the Southern District 
of California was asked to resign on December 7, 2006. The 
Department stated that Lam was removed because of her 
district's prosecution of firearm and immigration cases. During 
the OIG/OPR investigation, an additional justification emerged 
that Ms. Lam was removed because of her office's investigation 
of Congressman Randy ``Duke'' Cunningham and Central 
Intelligence Agency (CIA) official Kyle ``Dusty'' Foggo.
    The investigation concluded that the Department's actions 
surrounding Ms. Lam's removal provide a ``clear example of the 
disorganized removal process and lack of oversight over that 
process.'' In particular, OIG/OPR found it inappropriate that 
the Department never discussed with Ms. Lam her office's 
statistics in gun and immigration cases prior to her removal 
and did not provide her with an explanation as to why she was 
removed.
    Overall, the OIG/OPR report concluded that the process used 
to remove the nine U.S. Attorneys in 2006 was unsystematic and 
arbitrary with little oversight from the Attorney General, the 
Deputy Attorney General or other senior Department officials. 
The U.S. Attorneys did not have an opportunity to address the 
concerns about their performance prior to their removal and 
Department statements explaining why they were removed were 
inconsistent, misleading and inaccurate. The report concluded 
that Attorney General Gonzales and Deputy Attorney General 
McNulty are primarily responsible for the Department's actions 
because they failed to adequately oversee the process and 
ensure the reasons for removal were proper. Other Department 
officials are responsible for making untruthful statements 
about the removals and their role in the process.
    While the investigation was able to verify some of the 
facts surrounding the removals, there are still gaps in the 
investigation due to key witnesses refusing to be interviewed, 
including former White House Deputy Chief of Staff Karl Rove, 
former White House Counsel Harriet Miers, and former Deputy 
White House Counsel William Kelley, as well as former 
Department of Justice White House liaison Monica Goodling, 
Senator Domenici and his Chief of Staff. The White House also 
refused to allow access to internal documents related to the 
removals.
    Finally, the report concluded that further investigation is 
needed regarding the removal of David Iglesias and the 
allegations that he was removed to influence prosecutions of 
voter fraud and public corruption. The report recommended that 
the Attorney General appoint a special counsel to determine 
whether a criminal offense was committed in connection with 
Iglesias's removal or testimony related to his removal as well 
as the testimony of other witnesses related to the U.S. 
Attorney removals, including former Attorney General Gonzales.
    Following the release of this report, Attorney General 
Mukasey appointed Acting U.S. Attorney Nora Dannehy of 
Connecticut as the special prosecutor in the investigation.

                             X. Conclusion

    The Committee reports these resolutions and the facts in 
support thereof finding White House Chief of Staff Joshua 
Bolten and former White House Deputy Chief of Staff Karl Rove 
in contempt of Congress because of their continuing non-
compliance with the Committee's subpoenas.
    The Committee has conducted this investigation into the 
firing of U.S. Attorneys and politicization of hiring and 
firing at the Department of Justice and now refers these 
contempt resolutions pursuant its constitutional legislative, 
oversight and investigative powers and in order to fulfill its 
responsibilities to the Senate and the American people.
    The investigation was met initially by misleading and 
inaccurate statements from Department officials regarding the 
reasons for the firings, then by stonewalling by the White 
House despite evidence of significant involvement by political 
officials at the White House, and ultimately by the 
resignations of numerous Department and White House officials, 
including the Attorney General. The conduct of these officials 
has been the subject of an internal investigation at the 
Department that has now confirmed the Committee's findings of 
serious wrongdoing and led to a referral of the matter to a 
Special Prosecutor for further investigation to determine 
whether crimes occurred.
    The Department of Justice engaged in the unprecedented 
firing of U.S. Attorneys for political reasons and that the 
White House's partisan interests in the prosecution of voter 
fraud and public corruption played a role. Attorney General 
Gonzales and the other former top officials at the Department 
abdicated their responsibility to ensure the independence of 
law enforcement. The Committee has pursued this matter on a bi-
partisan basis because the injection of political bias into the 
determination of which cases should be prosecuted is corrosive 
to the very foundations of our system of justice.
    In light of the evidence showing that White House officials 
played a significant role in originating, developing, 
coordinating and implementing these unprecedented firings and 
the response to Congressional inquiries about it, the 
investigation will not be complete without information 
available only from the White House and from current and former 
White House officials. The White House's unsubstantiated 
blanket claims of privilege and novel claims of immunity do not 
trump the Committee's well-established need for the information 
it has sought about the firings and do not excuse current and 
former White House officials from complying with the 
Committee's subpoenas.

   XI. MINORITY AND DISSENTING VIEWS OF SENATORS SPECTER AND GRASSLEY

    The Senate Judiciary Committee's investigation into the 
U.S. Attorney removals was conducted in a largely bipartisan 
fashion. For months during 2007, Members from both sides of the 
aisle pressed difficult questions in a series of hearings and 
through letters, and staff from Democrat and Republican offices 
participated in numerous transcribed interviews of officials 
from the highest ranks of the Department of Justice. We have 
supported Congressional oversight throughout our nearly three-
decades of shared tenure in the Senate. Accordingly, we joined 
with the Majority in supporting various Committee subpoenas, as 
well as the revised contempt resolutions approved by the 
Committee last December.
    Although we supported the Committee's efforts in the U.S. 
Attorney removal investigation, including the contempt 
resolutions voted upon last year, we cannot join the Majority 
in this Report. We both voted in favor of the contempt 
resolutions regarding Messrs. Bolten and Rove after staff and 
Member consultation produced resolution text that: (1) had 
bipartisan support; (2) identified every fact and element 
necessary to charge contempt of Congress under 2 U.S.C. 
Sec. 194; (3) was consistent with Committee precedent; (4) 
contained no surplussage that could arguably jeopardize or 
undermine the enforceability of the Committee's action; and (5) 
was fair to the due process rights of the prospective contempt 
defendants. However, so much time has passed that the matter is 
now somewhere between moot and meaningless. Had there been any 
intention to pursue Senate action, these procedural steps would 
have been taken soon after the resolutions of contempt were 
approved. The filing of this report--fourteen months after 
Attorney General Gonzales resigned, eleven months after the 
contempt resolutions were approved and a mere two months before 
a new administration takes office--will likely prove 
superfluous.
    The Majority's Report also strays from the neutral language 
of the contempt resolutions we supported. We believe the Report 
should have stayed within the facts voted upon by the Committee 
last year. Additionally, we would have preferred a more 
measured approach to the Report's factual and legal conclusions 
to ensure both objectivity and enforceability. As the 
Majority's Report currently stands, we cannot support it. 
Accordingly, we file these supplemental and dissenting views.

  A. THE FACTS CONTAINED IN THE REPORT VARY FROM THOSE CONSIDERED AND 
                      VOTED UPON BY THE COMMITTEE

    We are concerned by the many factual and legal assertions 
in the Report that are not reflected in the Committee's 
findings in the Resolutions. This variance is not insignificant 
and could cause problems for the enforceability of the 
Committee's Resolutions. Both Resolutions call on ``the 
President of the Senate to certify the facts of the failure'' 
of the witnesses to appear as required. This approach appears 
to comply with 2 U.S.C. Sec. 194, which refers to a report of 
``the fact of such failure or failures'' to comply with a 
subpoena and to the President of the Senate's certification of 
``the statement of facts.'' With different facts stated in the 
Report and the Resolutions, the question arises: Which facts 
are to be certified? Is the President of the Senate called upon 
to certify the narrow set of facts stated in the Resolutions or 
the much broader and colorfully written facts stated in the 
Majority's Report? If multiple bases of fact are possible, 
ambiguity could result at multiple stages downstream in the 
process--for the President of the Senate when he certifies the 
facts, for the U.S. Attorney when he presents the case, and for 
the defendants if they are put in criminal jeopardy.
    The due process concerns for the prospective defendants are 
not insignificant. As the Supreme Court in Russell v. United 
States, 369 U.S. 749 (1962),wrote in response to a flawed 
Congressional referral of contempt: ``A cryptic form of 
indictment in cases of this kind requires the defendant to go 
to trial with the chief issue undefined. It enables his 
conviction to rest on one point and the affirmance of the 
conviction on another. It gives the prosecution free hand on 
appeal to fill in the gaps of proof by surmise and 
conjecture.'' Id. at 766. If such a ruling were to be repeated 
in this matter, it would not just be a boon to those who failed 
to honor the Committee's subpoenas. It would also be a blow to 
the oversight authority of the legislative branch relative to 
the executive.

     B. THE MAJORITY'S REPORT INCLUDES FACTS AND FINDINGS THAT ARE 
       UNNECESSARY AND COUNTERPRODUCTIVE TO SUBPOENA ENFORCEMENT

    We are concerned the Majority's Report contains facts and 
findings that are unnecessary--and even counterproductive--to 
enforcement of the Resolutions. For example, the Majority's 
Report reaches evidentiary conclusions in what is essentially a 
discovery exercise. The Majority's Report describes findings of 
``grave threats to the independence of law enforcement,'' 
``lying,'' ``significant involvement of White House political 
officials in improper politicization,'' ``stonewalling,'' and a 
contrived ``cover up;'' yet the Report itself is an effort to 
support the enforcement of Committee subpoenas via the 
statutory contempt mechanism.
    If a court looks to the Majority's Report and finds that 
the Committee is already reaching conclusions in its 
investigation, it will justifiably ask why any further 
testimony or documents are needed. We are especially concerned 
with the Majority's Report in this regard because one of the 
touchstones of executive privilege review is the party's need 
for the subpoenaed information. Indeed, it is a threshold 
question for any party who seeks to overcome a claim of 
executive privilege. See In re Sealed Case, 121 F.3d 729, 746 
(1997) (explaining that courts ``must specifically consider the 
need of the party seeking privileged evidence'' when evaluating 
either a presidential communications privilege or deliberative 
process privilege case).

  C. THE MAJORITY'S REPORT SHOULD HAVE STRUCK A MORE MEASURED TONE ON 
                               PRIVILEGE

    Battles between the branches on executive privilege are an 
all too common occurrence. As shown in the Gorsuch case, 
federal courts are loathe to wade into such battles if they are 
perceived as irreconcilable bickering among the political 
branches. See United States v. House of Representatives, 556 F. 
Sup. 150 (D.D.C. 1983) (``Compromise and cooperation, rather 
than confrontation, should be the aim of the parties.''). We 
are concerned the Majority's Report is too strident and one-
sided in its rejection of the Administration's executive 
privilege claims.
    For example, the Majority's Report describes the 
Administration's assertion of privilege as ``novel'' and ``a 
dramatic break from the practices of every administration since 
World War II in responding to congressional oversight.'' 
Although the Administration's position might be viewed as 
controversial and in some respects at odds with the Committee's 
constitutional oversight responsibility, it is far from novel 
for an Administration to claim that officials are immune from 
appearing before Congress due to their senior roles and 
proximity to the President. Claims of executive immunity are 
not novel. Indeed, well-documented claims of this type have 
been made by both Democrat and Republican administrations for 
at least forty years.
    During the Senate Judiciary Committee's investigation into 
alleged improprieties of then-Supreme Court Justice Abe Fortas, 
Johnson Administration Associate Special Counsel to the 
President, W. DeVier Pierson, wrote the following to Chairman 
Eastland when he declined to appear: ``It has been firmly 
established, as a matter of principle and precedents, that 
members of the President's immediate staff shall not appear 
before a congressional committee to testify with respect to the 
performance of their duties on behalf of the President. This 
limitation, which has been recognized by the Congress as well 
as the Executive, is fundamental to our system of government.'' 
Among the precedents to which Pierson may be been referring 
were the two occasions when Truman adviser John Steelman 
returned House subpoenas with a letter stating, ``the President 
directed me, in view of my duties as his Assistant, not to 
appear before your subcommittee.''
    In February 1971, then Assistant Attorney General William 
Rehnquist authored a memorandum detailing the history and basis 
for such claims of immunity, which cited the two above 
examples. Following his historic and legal analysis, Rehnquist 
wrote, ``[t]he President and his immediate advisers--that is, 
those who customarily meet with the President on a regular or 
frequent basis--should be deemed absolutely immune from 
testimonial compulsion by a congressional committee. They not 
only may not be examined with respect to their official duties, 
but they may not even be compelled to appear before a 
congressional committee.'' Rehnquist OLC Memo Titled ``Power of 
Congressional Committee to Compel Appearance or Testimony of 
`White House Staff''' (Feb. 5, 1971). Like the assertion of 
privilege made to the Judiciary Committee, Rehnquist made 
distinctions between senior and lower level White House staff.
    The distinction between immunity for senior Presidential 
advisers and lower level staff was further developed in a 
February 8, 1979 memorandum by Carter-Administration White 
House counsel Robert Lipshutz. Although Lipshutz conceded that 
advisers with statutory obligations would be required to 
testify, he broadly asserted that advisers without such duties 
are immune from testifying before Congress:

        The role of the White House aide is that of adviser to 
        the President. Frank and candid discussions between the 
        President and his personal staff are essential to the 
        effective discharge of the President's Executive 
        responsibilities. Discussions of this type take place 
        only if their contents are kept confidential. . . .

        While the investigative power of Congressional 
        committees is extremely broad, the personal staff of 
        the President is immune from testimonial compulsion by 
        Congress. This immunity is grounded in the 
        Constitutional doctrine of separation of powers.

Lipshutz Memo Titled ``Congressional Testimony by Members of 
the White House Staff'' (Feb. 8, 1979). Notwithstanding our own 
disagreement with the Administration's broad executive 
privilege claims before the Committee, it is nevertheless 
incorrect to label the claim of immunity ``novel'' or contrary 
to all modern precedent.
    In addition to our concerns about dismissing the 
Administration's immunity claim as ``novel,'' we are also 
concerned with some apparent omissions in the Report. For 
example, the Report fails to discuss, define, or even mention 
the potential application of the deliberative process 
privilege. The deliberative process privilege, which is much 
broader, but also weaker, than the presidential communications 
privilege, requires no involvement by the President. See In re 
Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (requiring only 
that the material at issue be predecisional and comprising part 
of a deliberative process by which government decisions and 
policies are formulated). The Report's silence on this issue 
creates an opportunity for unfavorable precedent.

  D. WE SHOULD PRESERVE THE SENATE'S OVERSIGHT AUTHORITY, BUT BE EVER 
       VIGILANT AGAINST THE POTENTIAL FOR CREATING BAD PRECEDENT

    We remain committed to defending the Committee's oversight 
authority and responsibility. That is why we supported the 
revised Resolutions considered by the Committee last December. 
Nevertheless, our strong support of the Senate's institutional 
role in administration oversight cautions us to be concerned 
about actions that could undermine or limit the Senate's 
subpoena power in the future. We are mindful that Congress's 
record before the courts on contempt has been mixed. See 
Watkins v. United States, 354 U.S. 178 (1957); Russell v. 
United States, 369 U.S. 749 (1962); Wilson v. United States, 
369 F.2d 198 (D.C. Cir. 1966). An adverse ruling by a federal 
court--whether against the contempt power or in favor of 
executive privilege--could weaken the Senate's oversight 
authority in future matters and encourage a future 
administration to fight subpoenas in a matter of greater 
urgency or importance. We are concerned the variance between 
the facts in the Resolutions and the Report could lead to an 
adverse outcome and be a blow to the Committee's--indeed, the 
Congress'--ability to conduct oversight in the future.

                                   Arlen Specter.
                                   Chuck Grassley.

  XII. MINORITY VIEWS OF SENATORS KYL, SESSIONS, BROWNBACK AND COBURN

    We generally agree with the Minority Views of Senators 
Specter and Grassley. Three aspects of the Majority Report, 
however, merit additional comment: the first is the Majority's 
utterly unfounded accusation that the Justice Department's 
public-corruption prosecution decisions were influenced by 
politics. The second is the Majority's attack on the notion of 
executive privilege--a position that is very much at odds with 
the position that members of the Majority have adopted in the 
past. And finally, we are simply dumbfounded by the Majority's 
earth-is-flat insistence that no such thing as vote fraud ever 
occurs in this country, and thus no investigation or 
prosecution of such matters is ever appropriate--an insistence 
that is completely at odds with what the American people just 
witnessed during the recent elections.

        FALSE ACCUSATIONS LEVELED AGAINST THE JUSTICE DEPARTMENT

    The Majority's Report concludes its analysis with the 
assertion that ``[t]he evidence shows that senior officials 
were apparently focused on the political impact of federal 
prosecutions and whether federal prosecutors were doing enough 
to bring partisan voter fraud and corruption cases.''\1\
---------------------------------------------------------------------------
    \1\Majority Report at 2.
---------------------------------------------------------------------------
    This is a falsehood--one that the Majority does not even 
attempt to buttress with any citations to the relevant record. 
The Majority Report does not cite one shred of evidence to 
support this conclusion because there is no such evidence. 
Indeed, all of that record--the numerous interviews conducted 
by the staff of this committee--supports the very opposite 
conclusion: that the professional and dedicated attorneys at 
the U.S. Justice Department fulfilled their duty to investigate 
and prosecute public corruption, and that partisan bias played 
no role in these investigative and prosecutorial decisions.
    The Majority's thesis--that public-corruption prosecutions 
were driven by politics--was repeatedly refuted by witness 
after witness during this committee's investigations. For 
example, Deputy Attorney General Paul J. McNulty, in his April 
27, 2007, interview, while describing the ``nonpolitical, 
career investigators, assistant United States attorneys and 
U.S. attorneys'' who make the decision to bring these cases, 
stated that ``if any one of these professionals thought that a 
case were being undermined or harmed by the removal of a U.S. 
attorney, they would scream to high heaven, as they 
should.''\2\ David Margolis, the highest ranking career 
official at the Department of Justice, when asked whether he 
had heard from anyone in a position of power that the requests 
for resignations were dispatched with an eye toward 
``influence[ing] a political corruption case,'' said, 
``[a]bsolutely not, and they would get my sharp stick in the 
eye if they suggested that.''\3\ When asked whether he had 
heard anyone complain about Carol Lam's public integrity 
prosecution of Duke Cunningham and her investigation of Dusty 
Foggo and Brent Wilkes, Mr. Margolis responded, ``No. 
Absolutely not. We're very proud of that prosecution of 
Representative Cunningham and the investigation of Foggo. We're 
very proud of that.''\4\
---------------------------------------------------------------------------
    \2\Former Deputy Attorney General Paul McNulty 04/27/2007 Tr. at 
188-190.
    \3\Associate Deputy Attorney General David Margolis 05/01/07 Tr. at 
206.
    \4\Id. at 211.
---------------------------------------------------------------------------
    Similarly, when asked whether he was ever present when 
anyone discussed seeking a U.S. Attorney's resignation because 
of a political prosecution, the former Director of the 
Executive Office of U.S. Attorneys, Michael Battle, testified 
``No. Never aware of that.''\5\ Significantly, up until his 
resignation from the Department of Justice in January of 2006, 
Mr. Battle had dedicated his entire career--over twenty years--
to public service.\6\ Other witnesses were equally dismissive 
of the innuendo and baseless accusations in the media on which 
the Majority Report relies. Mr. McNulty's former Chief of 
Staff, Michael Elston testified as follows:
---------------------------------------------------------------------------
    \5\Former Director of the Executive Office of U.S. Attorneys 
Michael Battle 04/10/07 Tr. at 114.
    \6\Id. at 112.

          The notion that the media has that the dismissal of 
        the United States Attorney in any way, shape or form 
        affects a pending investigation or case is silly. I 
        have been through the transition of a United States 
        Attorney in the district--Northern District of 
        Illinois. And I was an Assistant United States 
        Attorney, and I had pending investigations and pending 
        cases at the time. And it affected my cases in the 
        following way: I changed the name of the United States 
        Attorney on my letterhead and pleadings.\7\
---------------------------------------------------------------------------
    \7\Former Deputy Attorney General Chief of Staff Michael Elston 03/
30/07 Tr. at 123-124.

    Mr. Elston's credibility on the Cunningham and associated 
prosecutions is further bolstered by the fact that he assisted 
in executing subpoenas simultaneously in Virginia and 
---------------------------------------------------------------------------
California when the investigation turned to Brent Wilkes:

          There was a coordinated effort to search the 
        California and Virginia offices of that business as 
        well as Mr. Wilkes' home on the same day, and I was the 
        Assistant United States Attorney assigned to obtaining 
        a search warrant. And I did do that. A search warrant 
        is a matter of public record and sets out what an 
        incredible case the Cunningham case was and how very 
        blatant the bribery was, and it goes on and on and on 
        in detail.\8\
---------------------------------------------------------------------------
    \8\Id.

    As a former Federal prosecutor heavily invested in the 
case, Mr. Elston went on to testify, ``I would have been 
outraged had anyone suggested to me that there was a problem 
with that case that merited anything, whether it was a request 
for resignation or anything else, because I had probably among 
the leadership of the Department the most intimate knowledge of 
that case and how good that case was of anybody else.''\9\
---------------------------------------------------------------------------
    \9\Id. at 124.
---------------------------------------------------------------------------
    These are the facts of record. Yet they are markedly absent 
from the Majority's Report.
    Sadly, much more was at stake in this investigation than 
the employment of nine U.S. Attorneys--namely, the confidence 
of the American people in the most revered law enforcement 
institution in the world. It is, therefore, deeply ironic that 
in pressing its case that the Justice Department has been 
overly politicized, the Majority chooses to politicize its very 
investigation, and completely ignores the voluminous evidence 
that rebuts its pre-determined conclusion.

                         WE'VE COME A LONG WAY

    During this Congress, the Majority has been rather 
promiscuous in its issuance of subpoenas to the executive 
branch. It was not always thus. In the past, members of this 
same Majority appeared to recognize that issuing a subpoena was 
a serious matter that should be undertaken only after 
substantial deliberation. Some examples of past expressions the 
Majority's now-abandoned modesty in this regard are as follows:
    Senator Leahy (Press Release September 23, 1999):
    ``I do not believe we should be issuing subpoenas to the 
Justice Department unless that step is absolutely necessary.''

          Executive privilege is used by the President and the 
        executive branch to shield presidential communications, 
        advice, and national security information from 
        disclosure in judicial proceedings, congressional 
        investigations and other arenas. While the proper scope 
        of executive privilege is the subject of much debate, 
        at a minimum, it covers presidential communications, 
        and may also protect the decision-making, or 
        deliberative process, of the executive branch in 
        general . . . Thus, this resolution, which avoids the 
        issuance of a subpoena should the Justice Department 
        continue to cooperate with the Committee in producing 
        non-privileged documents, is a good result.

    Senator Leahy (Press Release June 8, 2000):

          [At the last business meeting,] ``I held over 
        consideration of [a] subpoena . . . since, in my view, 
        it had been precipitously added to the agenda at the 
        last minute and needed further consideration . . . 
        [T]he White House has made clear that it will provide 
        the email communications that are relevant to the 
        Committee's oversight inquiries without the need for a 
        subpoena. . . . It is truly remarkable that the 
        majority of this Committee chooses first to 
        communicate--now routinely at each executive business 
        meeting--with the Executive Branch and its agencies by 
        way of subpoena. Issuing subpoenas may make for a good 
        show of partisan force by the majority but certainly 
        continues the erosion of civil discourse that has 
        marked this Congress.

    The following quotes are from the floor of the Senate in 
Whitewater debate. (Congressional Record: December 20, 1995):
    Senator Sarbanes:

          It always should be borne in mind that when the 
        executive and legislative branches fail to resolve a 
        dispute between them and instead submit their 
        disagreements to the courts for resolution, significant 
        power is then placed in the judicial branch to write 
        rules that will govern the relationship between the 
        elected branches . . . [W]e have a chance here to work 
        this out . . . and there is no need to go to court 
        running the risk, I would suggest to some Senators, of 
        an adverse precedent.

          We need to avoid a needless constitutional 
        confrontation by pursuing a negotiated resolution to 
        this dispute. Congressional attempts to inquire into 
        privileged executive branch communications are rare and 
        with good reason. In fact, the courts on occasion have 
        refused to determine the dispute and have encouraged 
        the two branches to settle the differences without 
        further judicial involvement. In other words, when it 
        comes to the court, it says you ought to settle it 
        between yourselves and not involve the court in trying 
        to address this matter. The U.S. Court of Appeals for 
        the District of Columbia has long held that 
        Presidential communications are presumptively 
        privileged.

    Senator Dodd:

          Our role, fundamentally, is legislative. We conduct 
        investigations, of course, but that is primarily to 
        help develop legislation. And it seems to me that, 
        where you have a White House that is cooperating, you 
        ought to avoid a confrontation with the executive 
        branch. After all, it is not clear what the third 
        branch of government, the judiciary, will do. In 
        similar cases, the courts have thrown the matter right 
        back to us and have said, ``Look, you people sort this 
        out your own way. We are not going to make the decision 
        for you.'' So we may end up, after months of 
        squabbling, in no better position than we are in today.

    Senator Boxer:
    Supporting reaching a compromise with the Clinton 
Administration:

          We can avoid a costly subpoena battle. We can avoid, 
        frankly, losing in the courts, which would harm the 
        U.S. Senate out into the future, and we can get the 
        information . . . We [should] not go on political witch 
        hunts and deny people their rights. . . . That is bad 
        for this institution. It is bad for this investigation. 
        It is bad for the precedence of the United States. 
        Frankly, I think it is bad for individual Senators.

          The bottom line is, do you want to get the 
        [information] or do you want to play politics? That is 
        the way I see it. I hope we decide we want to get the 
        [information], we want to do it in a way that keeps 
        this committee working in a bipartisan fashion because, 
        frankly, if we do not stick together on this, on the 
        procedures, I think the American people are going to 
        think this is all politics and all the hard work that 
        we do to put light on this subject will simply not be 
        respected.

    Senator Bumpers:

          [This] is not a constitutional crisis . . . But it 
        just seems to me that in the interest of comity, in the 
        interest of taking advantage of an offer by the 
        President to say here [is the information] . . . I 
        daresay there is not a Member of the U.S. Senate that 
        would have made a more generous offer under the same 
        conditions than the President of the United States has 
        made in this case.

    Senator Pryor:

          I think it is very, very necessary for the American 
        public at this time to have the knowledge that this 
        administration in no way is trying to keep the [sought 
        information from the] U.S. Senate. . . . The White 
        House has repeatedly said: `We want you to have [this 
        information]. We think you should have [this 
        information]. We will give you [this information].' I 
        do not think that should be the business of the Senate 
        at this particular time, to start eroding and 
        emasculating the particular right that we revere in the 
        common law and have for so many years, and that is the 
        right of privilege created between lawyer and client.

                       VOTE EARLY AND VOTE OFTEN

    As Justice Thurgood Marshall noted in the U.S. Supreme 
Court's decision in Anderson v. U.S., 417 U.S. 211, ``[e]very 
voter in a federal primary election, whether he votes for a 
candidate with little chance of winning or for one with little 
chance of losing, has a right under the Constitution to have 
his vote fairly counted, without its being distorted by 
fraudulently cast votes.''
    Perhaps the most Orwellian aspect of the Majority report is 
its repeated insistence that there is no vote fraud in this 
country that is ever worth investigating. At one point, the 
Majority even places scare quotes around the term, lest anyone 
receive the impression that the Majority believes that voter 
fraud could ever be a real problem. Yet during the federal 
elections just concluded, the American public saw numerous 
examples of serious attempts to commit voter fraud in this 
country.
    Most of these incidents involved the Association of 
Community Organizations for Reform Now (ACORN), a group that 
actively promotes voter registration in many cities across the 
nation. ACORN tends to target areas where it believes that it 
can register Democratic voters, such as parks, public-
assistance agencies, and liquor stores,\10\ and generally hires 
part-time workers who are paid for each registered name to 
canvas these areas.
---------------------------------------------------------------------------
    \10\The Emerging Democratic Majority, http://www.powerlineblog.com/
archives/2008/08/021168.php? (Aug. 5, 2008, 7:30 EST).
---------------------------------------------------------------------------
    ACORN's history is littered with claims and convictions of 
fraud.\11\ In this election cycle, many different groups, from 
journalists to the GOP, strongly criticized the integrity of 
the organization's registration methods. As early as September, 
state officials reported fraudulent voter registrations 
submitted by ACORN, and as of October 6th, the New York Times 
reported that about 400,000 ACORN filings had been rejected by 
authorities as duplicates, incomplete, or fraudulent.\12\ After 
comparing their voter registration rolls, Georgia, Florida, and 
Ohio found 112,000 duplicate voters registered in two states, 
and authorities have rejected ACORN applications attempting to 
register such ``voters'' as Mickey Mouse and the Dallas 
Cowboys' offensive line.\13\
---------------------------------------------------------------------------
    \11\Evan Perez, GOP Renews Complaints Over Voter Registrations, 
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.; John Fund, A Smelly Acorn, Wall St. J., 
Oct. 10, 2008, available at http://online.wsj.com/article/SB1223609 
17725822225.html [hereinafter Fund, A Smelly Acorn]; Editorial, Obama 
and Acorn, Wall St. J., Oct. 14, 2008, available at http://
online.wsj.com/article/SB122394051071230749.html [hereinafter 
Editorial, Obama and Acorn].
    \12\When in Trouble, Cheat, http://www.powerlineblog.com/archives/
2008/09/021523.php? (Sept. 15, 2008 20:39 EST).
    \13\Voter Fraud: It's Easy!, http://www.powerlineblog.com/archives/
2008/11/021989.php? (Nov. 4, 2008, 14:58 EST).
---------------------------------------------------------------------------
    In Connecticut, a Republican registrar complained to state 
officials that ACORN systematically filed ineligible 
registrations, including one for a 7-year-old resident.\14\
---------------------------------------------------------------------------
    \14\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
---------------------------------------------------------------------------
    Indiana's election officials refused to accept 5,000 ACORN 
applications after each of the first 2,100 were found to be 
fraudulent.\15\ And in Michigan, clerks reported ``a sizeable 
number of duplicate and fraudulent applications'' and the 
Michigan Secretary of State's office said the problem appears 
to be ``widespread.''\16\
---------------------------------------------------------------------------
    \15\Acorn: the Fraud Continues, http://www.powerlineblog.com/
archives/2008/10/021768.php? (Oct. 13, 2008, 19:55 EST).
    \16\When in Trouble, Cheat, http://www.powerlineblog.com/archives/
2008/09/021523.php? (Sept. 15, 2008 20:39 EST).
---------------------------------------------------------------------------
    Kansas City election officials discovered at least 380 
fraudulent registrations that ACORN submitted\17\ and 15,000 
applications have been questioned.\18\ St. Louis officials 
attempted to contact 5,000 voters that ACORN registered, but it 
could not reach even 40 applicants.\19\
---------------------------------------------------------------------------
    \17\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
    \18\``Is Acorn Stealing the Election?'', http://
www.powerlineblog.com/archives/2008/10/021729.php? (Oct. 9, 2008, 14:11 
EST).
    \19\``Is Acorn Stealing the Election?'', http://
www.powerlineblog.com/archives/2008/10/021729.php? (Oct. 9, 2008, 14:11 
EST).
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    In Las Vegas, the county registrar said that problems 
cropped up almost immediately after ACORN took root there.\20\ 
Concerns included voter registration fraud and questionable 
staff members, such as supervisors who are convicted felons and 
employees convicted of identity theft.\21\ These problems led 
to a raid of ACORN's Las Vegas office because of a suspected 
voter fraud scheme.\22\
---------------------------------------------------------------------------
    \20\Fund, A Smelly Acorn, supra note 21.
    \21\Fund, A Smelly Acorn, supra note 21.
    \22\Fund, A Smelly Acorn, supra note 21.
---------------------------------------------------------------------------
    The FBI opened an ``investigation into 1,400 potentially 
fraudulent voter registrations'' filed in Albuquerque, New 
Mexico.\23\ In the state's urban areas, ACORN and others 
registered almost 80,000 voters.\24\ Some of those were illegal 
applications that actually resulted in illegal votes according 
to New Mexico politicians.\25\ A search of public records 
verified that illegal votes, made possible by fraudulent ACORN 
registrations, were cast during the Democrat's primary.\26\ 
ACORN admits to firing 80 New Mexico employees since December 
2007.\27\
---------------------------------------------------------------------------
    \23\Evan Perez, GOP Renews Complaints Over Voter Registrations, 
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
    \24\Evan Perez, GOP Renews Complaints Over Voter Registrations, 
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
    \25\Joe the Plumber: Changing this Year's Race?, http://
www.powerlineblog.com/archives/2008/10/021794.php? (Oct. 16, 2008, 
20:18 EST).
    \26\Joe the Plumber: Changing this Year's Race?, http://
www.powerlineblog.com/archives/2008/10/021794.php? (Oct. 16, 2008, 
20:18 EST).
    \27\Evan Perez, GOP Renews Complaints Over Voter Registrations, 
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
---------------------------------------------------------------------------
    In Ohio, Republicans sought verification of thousands of 
voter registrations after ACORN admitted that it could not 
verify that its applications were not fraudulent.\28\ When the 
Secretary of State refused to verify the registrations, the 
challenge went up to the Supreme Court which denied 
Republicans' claim by holding that the Federal Vote Act did not 
include a private right to sue for enforcement of voter 
registration verification.\29\ One man stated that he was paid 
$1 or given a cigarette each time he filled out an application 
to vote even though he told workers he was already 
registered.\30\ At the end of 18 months, he had registered 72 
times.\31\
---------------------------------------------------------------------------
    \28\Amy Merric, Court Ruling Stokes Voter-Fraud Fight, Wall St. J., 
Oct. 18, 2008, available at http://online.wsj.com/
article.SB122428556700546435.html.
    \29\Jess Bravin, Supreme Court is United in Siding with Ohio 
Election Official, Wall St. J., Oct. 17, 2008, available at http://
online.wsj.com/article.SB122425922129244747.html.
    \30\Acorn's Criminal Enterprise, Continued, http://
www.powerlineblog.com/archives/2008/10/021736.php? (Oct. 10, 2008, 9:05 
EST).
    \31\Acorn's Criminal Enterprise, Continued, http://
www.powerlineblog.com/archives/2008/10/021736.php? (Oct. 10, 2008, 9:05 
EST).
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    Philadelphia election officials turned at least 1,500 ACORN 
applications over to the U.S. Attorney and found 6,500 more 
that were suspect.\32\ The Deputy Commissioner complained that 
ACORN hires ``people desperate for money . . . who only get 
paid if they get signatures.''\33\
---------------------------------------------------------------------------
    \32\Acorn Does Philadelphia, http://www.powerlineblog.com/archives/
2008/10/021783.php? (Oct. 15, 2008, 9:56 EST).
    \33\Acorn Does Philadelphia, http://www.powerlineblog.com/archives/
2008/10/021783.php? (Oct. 15, 2008, 9:56 EST).
---------------------------------------------------------------------------
    In Wisconsin, a convicted felon illegally registered to 
vote and illegally registered others as an employee of 
ACORN.\34\ This employee was one of 49 under ``suspicion of 
election fraud.''\35\ In Virginia, a voter registration group 
fired three employees who falsified almost 100 forms.\36\
---------------------------------------------------------------------------
    \34\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
    \35\Obama Campaign Taking No Chances, http://www.powerlineblog.com/
archives/2008/10/021723.php? (Oct. 8, 2008, 17:48 EST).
    \36\Evan Perez, GOP Renews Complaints Over Voter Registrations, 
Wall St. J., Oct. 9, 2008, available at http://online.wsj.com/article/
SB122351568128417691.html.
---------------------------------------------------------------------------
    In light of this recent history, the Majority's insistence 
that no vote fraud occurs in this country that is ever worthy 
of investigation is simply bizarre.

                               CONCLUSION

    The firing of 9 U.S. attorneys earlier in this 
Administration is a dead horse that has already been beaten too 
many times to count. The Majority's factually inaccurate, 
tendentious, and misleading report on this matter, though 
unworthy of the committee, is in some ways a fitting coda to 
the politicized witch hunts that have constituted the 110th 
Congress's investigation of this matter.

                                   Jon Kyl.
                                   Jeff Sessions.
                                   Sam Brownback.
                                   Tom A. Coburn.