US. Department of Justice
Of?ce of Legislative Affairs

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530
May 7, 2019

The Honorable Jerrold Nadler
Chairman

Committee on the Judiciary

United States House of Representatives
Washington, DC. 20515

Dear Chairman Nadler:

As you know, the Attorney General has repeatedly sought to accommodate the interests
of the House Committee on the Judiciary in the investigation conducted by Special Counsel
Robert S. Mueller, On April 18, 2019, the Attorney General voluntarily disclosed to
Congress the Special Counsel?s report, which was intended to be ?con?dential? under the
applicable regulations, with as few redactions as possible, consistent with the law and long-
established con?dentiality interests of the Executive Branch. He also made available to you and
other congressional leaders a minimally redacted version of the report that excluded only grand-
jury information, which could not lawfully be shared with Congress. In response, you refused
even to review the minimally redacted report, and you immediately served a subpoena, dated
April 18, 2019, demanding production of the fully unredacted report and the Special Counsel?s
entire investigative ?les, which consist of millions of pages of classi?ed and unclassi?ed
documents, bearing upon more than two dozen criminal cases and investigations, many of which
are ongoing.

Since then, the Department of Justice has offered further accommodations to the
Committee. In particular, the Department offered to expand the number of staff members who
may review the minimally redacted report; to allow Members of Congress who have reviewed
the minimally redacted report to discuss the material freely among themselves; and to allow
Members to take and retain their notes following their review. We expressed our hope that these
further accommodations would prompt you and your colleagues actually to review the minimally
redacted report, which would allow the parties to engage in meaningful discussions regarding
possible further accommodations of the Committee?s additional expansive requests. We further
proposed a framework for those discussions, and made clear that we were open to conducting
them on an expedited basis.

Unfortunately, the Committee has responded to our accommodation efforts by escalating
its unreasonable demands and scheduling a committee vote to recommend that the Attorney
General be held in contempt of Congress. In particular, the Committee has demanded that the
Department authorize review of the minimally redacted report by all 41 members of the
Committee, as well as all members of the House Permanent Select Committee on Intelligence,

and additional staff members. As We have explained, however, doing so would force the
Department to risk violating court orders and rules in multiple ongoing prosecutions, as well as
risk the disclosure of information that could compromise ongoing investigations. In addition,
you have demanded that the Department join in a request that a court grant the Committee access
to grand?jury material protected by Federal Rule of Criminal Procedure even though we
have explained that such a request would force the Department to ignore existing law. Such
unreasonable demands, together with the Committee?s precipitous threat to hold the Attorney
General in contempt, are a transparent attempt to short-circuit the constitutionally mandated
accommodation process and provoke an unnecessary con?ict between our respective branches of
government. They are also counterproductive. They will not further the Committee?s interests
in obtaining the requested information. 

In the face of the Committee?s threatened contempt vote, the Attorney General Will be
compelled to request that the President invoke executive privilege with respect to the materials
subject to the subpoena. I hereby request that the Committee hold the subpoena in abeyance and
delay any vete on whether to recominend a citation of contempt for noncompliance with the
subpoena, pending the President 3 determination of this question

This request is consistent With long-standing poliCy of the Executive BranCh about
congressional requests for information implicating executive privilege. See President Ronald
Reagan, Memorandum for the Heads of ExeCutive Departments and Agencies, Procedures
Governing Responsesto Congressional Requests for Information 2 (Nov. 4, 1982) (directing
executive agencies to ?request the Congressional body to hold its request for the information in 
abeyance?.? in order to ?protect the privilege pending a'Presidential decision?). Regrettably, the
Committee has made this request necessary by threatening to pretennit the constitutionally
mandated accorrnnodation process betWeen the branches and to hold a vote on contempt
tomorrow morning. -

This request is not itself an assertion of executive privilege. If the Committee decides to
proceed in spite Of this request, however, the Attorney General will advise the President to make
a protective'assertion of executive privilege over the subpoenaed material, which undoubtedly
includes material covered by eXecutiVe privilege. President Clinton, acting on the advice of
Attorney General Janet Reno, made such a protective assertion of privilege in similar
circumstances. See Protect'iVe-Asserriou ofExecuz?ive Privilege Regarding White House
Counsel O?ice Documents, 20 Op. 0. C. 1 (1996). We. remain open to further discussions
with the Committee, and we hope that the Committee does not make it necessary for the
President to take that step tomorrow. - -

   

Ste en E. Boyd
- - ssistant Attorney General
cc:_ The Honorable Doug Collins 
Ranking Member -