US Department of Justice

Of?ce of Legislative Affairs

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 2053 0

February 7, 2019

The Honorable Jerrold Nadler
Chairman
Committee on the Judiciary

US. House of Representatives
Washington, DC 20515

Dear Chairman Nadler:

We write in response to the approval by the House Committee on the Judiciary (the
Committee) of a subpoena concerning the testimony of Acting Attorney General Matthew
Whitaker. We also respond to your January 22, 2019 letter. As you know, we had previously
agreed that the Acting Attorney General would appear voluntarily before the committee tomorrow,
February 8, 2019. The Acting Attorney General appreciated your invitation, and he has been
diligently preparing for the opportunity to discuss the important work of the 115,000 men and
women at the Department of Justice (Department).

Despite the Acting Attorney General?s agreement, the Committee now has taken the
premature step of seeking to subpoena the head of an executive department, and one who was
perfectly willing to appear and testify on the agreed-upon date. In so doing, the Committee seeks
to refocus this oversight hearing away from the Department and its programs and towards the
President?s confidential communications with the Acting Attorney General, a category of
communications that Administrations of both parties have viewed as raising con?dentiality
interests that are vital to a President?s ability to discharge the responsibilities of his office.

Several weeks ago, on January 9, 2019, you wrote to the Department to request that the
Acting Attorney General testify before the Committee on a number of subjects concerning the
Department?s programs and operations. Those topics included potential legislation, the
Department?s litigating position in the Affordable Care Act case, the work of the Civil Rights
Division, national security threats on the southern border, the President?s public statements
concerning the Special Counsel?s investigation, and the Acting Attorney General?s decision not to
recuse from supervising the Special Counsel investigation. In response, the Acting Attorney
General voluntarily agreed to appear, and he remains prepared to address the Committee?s

The Honorable Jerrold Nadler
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questions on those and other subjects, consistent with the established practices of the Department,
including the con?dentiality obligations of the Executive Branch.

After the Acting Attorney General agreed to appear, you sent a second letter, on January
22, in which you advised that the Committee intended to ask him about his con?dential
communications, if any, with the President on seven different subjects. Most of those topics were
distinct from the subjects identi?ed in your January 9 letter, and to the extent there is overlap, your
earlier letter did not suggest that the Committee was focused upon the Acting Attorney General?s
confidential communications with the President.

Even though the Acting Attorney General had agreed to testify, and even though the
Committee had not yet asked him a single question, the Committee today authorized a subpoena
to compel his testimony. We cannot understand this measure other than as an attempt to
circumvent the constitutionally required accommodation process and thereby to transform the
hearing into a public spectacle. Rather than conducting appropriate oversight into the
Department?s programs and activities, the Committee evidently seeks to ask questions about
con?dential presidential communications that no Attorney General could ever be expected to
disclose under the circumstances.

The President has a constitutionally grounded interest in being able to engage in
con?dential communications with his senior advisers. As the Supreme Court has explained, the
presidential communications component of executive privilege ?is fundamental to the operation
of Government and inextricably rooted in the separation of powers under the Constitution.? United
States v. Nixon, 418 US. 683, 708 (1974). The US Court of Appeals for the District of Columbia
Circuit has held that the privilege applies to congressional demands for presidential
communications. See, e. g, Senate Select Comm. on Presidentiai Campaign Activities 12. Nixon,
498 F.2d 725, 732 (DC. Cir. 1974) (en bane). It is clear that your proposed questions seek the
kind of information that the Executive Branch has, during Administrations of both parties,
historically declined to provide to the Congress.

It has been the long?standing policy and practice of the Executive Branch that of?cials
testifying at congressional hearings decline to disclose the content of their con?dential
communications with the President. As the New York Times recognized after Attorney General
Sessions declined to discuss his conversations with the President in testimony in June 2017,
?[p]revious executive branch of?cials of both parties have withheld information requested by
Congress in the same manner.? Charlie Savage, ?On Executive Privilege and Sessions? Refusal
to Answer Questions,? NY. Times, June 16, 2017, at A18 (available online at


 

Your January 22 letter asked the Department to notify the Committee in advance of the
hearing the President plans to invoke executive privilege to prevent [the Acting Attorney
General] from answering any of the[] questions? identi?ed in your letter. You further suggested
that the Committee ?will not accept your declining to answer any question on the theory that the

The Honorable Jerrold Nadler
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President may want to invoke his privilege in the future,? but rather that the President should
?consider any matter involving assertion of privilege prior to your testimony.?

ReSpectfully, this proposed approach re?ects a' striking departure from the constitutionally
based understanding between our co-equal branches of government. That understanding is
supported by decades of judicial and historical precedents, which recognize that disagreements
between the branches over access to privileged information should generally be resolved through
good-faith negotiations. The invocation of executive privilege comes at the end, rather than the
beginning, of such negotiations, and we are not aware of any precedent in which the President
has invoked executive privilege even before the Committee has asked questions on the subject at
a properly noticed hearing.

As President Reagan explained in his 1982 directive about ?Procedures Governing
Responses to Congressional Requests for Information,? ?[h]istorically, good faith negotiations
between Congress and the Executive Branch have minimized the need for invoking executive
privilege? and ?this tradition of accommodation? should be ?the primary means of resolving
con?icts between the Branches.? The DC. Circuit reached the same conclusion in United States
v. AT 567 F.2d 121 (DC. Cir. 1977), where it emphasized that the Founders ?expect[ed] that
where con?icts in scope of authority arose between the coordinate branches, a spirit of dynamic
compromise would promote resolution of the dispute in the manner most likely to result in ef?cient
and effective functioning of our governmental system,? id. at 127, and that each branch has ?an
implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of
the needs of the con?icting branches in the particular fact situation.? Id. at 130.

More recently, the Supreme Court reiterated that executive privilege is to be invoked only
as a last resort. As the Court recognized, ?[e]xecutive privilege is an extraordinary assertion of
power not to be invoked. Once executive privilege is asserted, coequal branches of the
Government are set on a collision course. . . . These occasions for constitutional confrontation
between the two branches should be avoided whenever possible.? Cheney v. US. District Court
for the District of Columbia, 542 U.S. 367, 389 (2004) (citations, internal quotation marks, and
brackets omitted).

Former Attorney General William Barr expressed the same view in a 1989 opinion that he
wrote during his tenure as Assistant Attorney General for the Of?ce of Legal Counsel:

In practice, disputes with Congress in this area typically commence with an
informal oral or written request from a congressional committee or subcommittee
for information in the possession of the executive branch. Most such requests are
honored in some cases, however, the executive branch official may resist
supplying some or all of the requested information either because of the burden of
compliance or because the information is of a sensitive nature. The executive
branch agency and the committee staff will typically negotiate during this period to
see if the dispute can be settled in a manner acceptable to both sides. In most cases

The Honorable Jerrold Nadler
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this accommodation process is suf?cient to resolve any dispute. On occasion,
however, the process breaks down, and a subpoena is issued. At that point, if
further negotiation is unavailing, it is necessary to consider asking the President to
assert executive privilege.

Congressional Requesisfor Con?dential Executive Branch Information, 13 Op. O.L.C. 153, 161?
62 (1989). As that summary makes clear, requests to the President about whether to assert
executive privilege have traditionally come only afier the issuance of subpoena, which itself has
come only after a period of negotiation. Following that traditional process ensures that the
President has information that is necessary for any decision about whether to invoke privilege,
including whether the Committee has established that the information it requests is ?demonstrably
critical to the responsible ful?llment of the Committee?s functions? and whether the Committee?s
stated legislative interest has been, or could be, accommodated with information from non?
privileged sources. Senate Select Comm, 498 F.2d at 731, 732?33.

In light of the foregoing, the Department strongly objects to the suggestion in your January
22 letter that the Acting Attorney General should request, in advance of his testimony, that the
President assert executive privilege over communications involving the subject areas you have
identi?ed. Consistent with long?established practice, we would expect the Committee to pose the
questions that it believes appropriate in connection with its oversight responsibilities, and the
Acting Attorney General would do his best to answer those questions, consistent with the need to
protect communications that are potentially subject to executive privilege. Such a hearing would
be consistent with long-standing practice, and it would provide our respective branches of
government with the best opportunity to explain any differences that arise and to seek to work
them out in good?faith negotiations.

Should you go forward with the hearing on this basis, the Acting Attorney General remains
prepared to explain how the Department has discharged its responsibilities during his time as the
head of the Department. The Acting Attorney General will testify that at no time did the White
House ask for, or did the Acting Attorney General provide, any promises or commitments
concerning the Special Counsel?s investigation. He will explain that, since he became Acting
Attorney General, the Department has continued to make its law enforcement decisions based upon
the facts and law of each individual case, in accordance with established Department practices,
and independent of any outside interference. With respect to the Special Counsel investigation,
the Department has complied with the Special Counsel regulations, and the Acting Attorney
General will make clear that there has been no change in how the Department has worked with the
Special Counsel?s of?ce. The Acting Attorney General is also prepared to discuss the process and
the conclusions of the ethics review by which he concluded that there was no need for him to
recuse himself from supervising the Special Counsel investigation.

We do not believe, however, that the Committee may legitimately expect the Acting
Attorney General to discuss his communications with the President. If there are questions at the
hearing that the Acting Attorney General does not answer to the satisfaction of the Committee,

The Honorable Jerrold Nadler
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then the appropriate next step would be for the Committee to contact this of?ce to initiate a joint
effort by the Committee and the Department to negotiate a mutually acceptable accommodation
under which the Department can satisfy the Committee?s legitimate oversight needs to the fullest
extent, consistent with the Executive Branch?s con?dentiality and other institutional interests.
Should the branches be unable to reach an acceptable agreement, only then would it be time for
the Committee to issue a subpoena and, if necessary and appropriate, for the President to determine
whether to invoke executive privilege.

The Acting Attorney General looks forward to testifyng about the programs, policies, and
activities of the Department. However, given the concerns expressed above, we seek a written
assurance from your office that the Committee will not issue a subpoena to the Acting Attorney
General on or before February 8, and that the Committee will engage in good faith negotiations
with the Department before issuing such a subpoena. We would regard the service of a subpoena
today or tomorrow to be a breach of our prior agreement that the Acting Attorney General would
testify voluntarily on February 8, consistent with the established practices by which executive
of?cials traditionally appear before the Committee. Absent such an assurance, the Acting Attorney
General will be forced to decline to participate in the hearing.

Thank you for your time and consideration of this matter. We request the benefit of your
reply by 6 pm. today.

     

a en E. Boyd
sistant Attorney General

cc: The Honorable Doug Collins
Ranking Member, House Committee on the Judiciary