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Hearings of the
Subcommittee on Rules & Organization of the House

Cooperation, Comity, and Confrontation: Congressional Oversight of the Executive Branch

Statement of Hon. Henry Hyde (R-IL)
Chairman -- Committee on the Judiciary

Thank you Chairman Linder and Members of the Subcommittee for inviting me here today to talk about a very important subject. I am very concerned about the testimony we have heard today, and I regret to report that we have experienced similar problems in the Judiciary Committee for some time. I commend you for calling this hearing because it should serve to illustrate that this is a broad, institutional problem.

Congressional oversight is one of the important aspects of American government. As every high school civics student can relate, Congress makes the laws, and the executive branch, especially the Department of Justice, enforces the laws. We in Congress have a constitutional obligation to ensure that the laws are enforced in the manner Congress intended, and the Department of Justice has a constitutional duty to cooperate with Congressional oversight.

Unfortunately, that is not how the Department of Justice has viewed congressional oversight. On the contrary, the Department has made a regular practice of delaying, ignoring or rejecting legitimate congressional requests for information. I experience this most dramatically last Congress when the Committee held oversight hearings to examine the Department of Justice's handling of the campaign finance investigation. Members of the Committee were quite simply denied answers to nearly every question that was asked. Within a few days, some of the information we sought was made available to the press and became common knowledge, but it was never officially available for the Committee and the Congress. Several Members of the Committee were promised prompt and complete answers in writing to several other questions that the Attorney General could not answer. Despite repeated requests, follow-up and demands for the information, the Department took more than five months to even respond to some of our questions. Most of those responses were inadequate and failed to answer the questions posed.

The Department has been increasingly aggressive in lobbying against legislation that it opposes. I believe that the Department has often crossed the fine line between offering its advice and consultation on legislation when requested and actively lobbying against the legislation.

In the summer of 1997, I proposed to amend the Commerce, Justice, State Appropriations bill with a provision that would allow any citizen who was criminally prosecuted but found innocent to recover attorneys fees where the judge determined that the government acted "frivolously, vexatiously or in bad faith." It was a simple proposal. If you are prosecuted in bad faith, you should at least have the opportunity to recover your financial costs.

The Department of Justice fought strenuously against my proposal and vowed to convince the President to veto the funding bill if my provision were a part of it. That struck me as odd. I could certainly understand why a federal prosecutor who may have acted unscrupulously would oppose the provision. But, how could the Department of Justice - an institution of government - oppose a provision aimed at preventing the government from acting frivolously, vexatiously or in bad faith in a prosecution that could wrongfully deprive a citizen of his liberty or even his life?

They did not just oppose it; they pulled out all of the stops. Deputy Attorney General Eric Holder, called the provision "drastic legislation." He claimed that "people like John Gotti...John Hinckley and John DeLorean... could wind up with big taxpayer checks." He went on to say that "it will handcuff prosecutors, and it could cost the taxpayers a fortune in high-stakes payoffs to America's Most Wanted." From the sound of Mr. Holder's rhetoric, this provision meant the end of the criminal justice system. Nonetheless, in November of 1997, the House of Representatives passed the provision by a bipartisan vote of 340-84, and the President signed the bill.

Soon after the bill went into effect, the Acting Assistant Attorney General for the Criminal Division and the Deputy Attorney General sent a memorandum to all the U. S. attorneys explaining the new provision and essentially explaining how to undermine this new law. We have had similar experiences with legislation requiring federal prosecutors to comply with state and federal court ethics rules and reforming our civil asset forfeiture laws. This last provision recently passed in the House by a vote of 375 to 45, but the House faces an uphill battle in the Senate where the Department has focused its lobbying efforts. I think we all feel that the Department of Justice should spend more time responding to our requests and less time opposing our legislation.

This Department of Justice has talked a great deal about how important Congressional oversight is, but as you have heard today, they have not followed through. Even more disturbing, the Department of Justice seems to have become a model of noncompliance with congressional oversight. As some of the early testimony today indicated, in some cases the Department of Justice has stepped into disputes and recommended against compliance with congressional requests to other Departments or agencies in the executive branch. Such aggressiveness and non-cooperation could be interpreted as political or partisan. However, I believe the problem is one of attitude and goes much deeper. The Department often acts as though it is above the law, especially when it comes to congressional oversight. On many occasions, the Department has quoted its internal policies and practices as reasons for not complying with legitimate oversight requests. They have also defended their recalcitrance with tortured interpretations of Rule 6(e) or even novel claims of government privileges.

Each of the Chairman here today is familiar with the Department's oft state claim that compliance with oversight requests would interfere with an ongoing criminal investigation. In many cases, there is no amount of accommodation the Committee can propose to overcome the objection.

As you decide whether the Department has considered itself above congressional oversight, you need not take my word for it. Listen to what the Department itself has said. Michael Shaheen, who headed the Department's Office of Professional Responsibility from its inception in 1973 to 1997, said:

"There is no other department that is viewed with comparable terror of fear, because there is no other department that by itself can put you in jail or take you life, liberty or property from you. The Department has the FBI and other agencies. It has become a Leviathan in the minds of a lot of people because it is so big and imponderable. I think it is correct to say that no outsider is capable of oversight."

That is a pretty incredible statement. The man who was responsible for ensuring that Department of Justice lawyers act ethically and responsibly concluded that the Department is simply too powerful to be accountable to outsiders; that is, Congress and the courts. This statement was not a boast. It was probably made in good faith and with good intentions, but that only makes it more incredible. The cold hard truth is that this seems to have become a way of thinking in the Department of Justice. In short, congressional requests for information are too often dismissed or ignored.

We in the House of Representatives are held accountable to the public every two years. That is one of the primary reasons that we must take seriously our responsibility to oversee those who believe they are not accountable.

One of the reasons I ran for Congress, one of the reasons I studies and practices law, was to tr and remedy injustice wherever I could. Justice is everyone's due. Justice means not being cheated, not being defrauded, and it certainly means not being pushed around.

I have come to learn that some people do get pushed around – even by the government. I was very late coming to that realization, but I learned that people in government exercising enormous power are human beings, and like everybody else, are capable of error and arrogance. They are capable of hubris, they are capable of overreaching, and yes, on very infrequent occasions they are capable of pushing people around. And so when such injustice happens, it is doubly frustrating because our citizens have no place to turn. If the government, your last resort, is your oppressor, you really have no remedy.

This is especially true of the Department of Justice which can take your life, liberty or property. The Department of Justice employees more than 120,000 people and has an annual budget in excess of 18 billion dollars. That is about five times the budget for the entire federal judiciary ($3.7 million) and more than seven times the amount appropriated for the Congress – both the House and the Senate ($2.6 billion). We must remember that we appropriated that money. We have empowered the Department of Justice, and it is our responsibility to ensure that the Department is accountable to the public it serves. That accountability must come through our oversight.

In closing, I would like to note that I strongly support the Department of Justice and its mission. I deeply respect the work done by the vast majority of its employees. That is why I feel so strongly about the Department complying with legitimate Congressional requests. I am afraid that the Department is losing credibility with the Congress and the American people. We cannot be indifferent to this, and we must not let it continue.

Thank you.

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