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Hearings of the
Subcommittee on Rules & Organization of the House
Committee on Rules

Thursday, July 15, 1999

The subcommittee met, pursuant to call, at 10:00 a.m. in Room H-313, The Capitol, Hon. John Linder [chairman of the subcommittee] presiding.

Present: Representatives Linder, Sessions, Reynolds, Dreier, and Hall.

Also present: Representatives Goss, Hastings, and Myrick.

Mr. Linder. The meeting of the subcommittee will come to order.

Today this subcommittee will examine institutional issues relating to congressional oversight and a number of roadblocks encountered in the process. Congress must be able to carry out effective oversight to deter waste and abuse and ensure that executive policies reflect the public interest. Unfortunately, when Congress directs its oversight at the executive branch, agencies frequently assert questionable rights to shield information Congress deems essential to carry out its oversight function.

This subcommittee, which has jurisdiction over institutional issues such as implementation of rules and prerogatives of the House, will hear from five distinguished chairmen who will offer their insights into the oversight process. They will explain some of the problems that their committees have encountered from the executive branch and we will begin a dialogue about how to more effectively conduct oversight and protect institutional privileges and prerogatives. This is the first of several hearings we will hold reviewing congressional oversight.

I expect that we will hear testimony about the Department of Justice, not because of any particular animosity toward the Department, but because oversight of the Department poses some of the most interesting and problematic aspects of oversight. The Department also often dictates the extent to which other departments and agencies comply with requests.

Let me say at the outset that I appreciate the difficult oversight work that these chairmen do. Program oversight and investigations are time consuming and often without immediate political or policy reward. Every chairman before us today has faced intense media scrutiny while conducting their important oversight work, and I commend them all.

Every Member of Congress should be interested in ensuring efficient and effective governmental operations. It is the responsibility of Congress to improve the efficiency of government operations, protect and prevent waste and abuse, and ensure that executive policies reflect the public interest, and prevent executive encroachment on legislative authority and prerogatives. These bipartisan goals may be accomplished through congressional oversight.

In an effort to accomplish these goals, Speaker Hastert and Chairman Dreier have asked that the Congressional Research Service conduct a series of bipartisan oversight workshops for Members and staff in order to improve Congress' ability to conduct oversight. Two of these sessions have already been held, and the third will be held on Monday, July 26. This hearing will build on those bipartisan sessions by exploring current issues facing committees and will allow us to focus on ways to improve oversight.

Oversight is one of the most important constitutional functions of Congress. The history of congressional oversight includes the failed St. Clair expedition in 1792 through Teapot Dome, Watergate, Iran-Contra and Whitewater. In affirming the Congress' oversight powers, the Supreme Court in McGrain v. Daugherty stated that "the power of inquiry, with process to enforce it, is an essential and appropriate auxiliary to the legislative function." The court also observed that "A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change."

Congressional oversight is integral to the checks and balances inherent in our system of government in which one branch serves as a counterbalance to the excesses of the other. The duty of the legislature, John Stuart Mill wrote in Consideration of Representative Government, is "to watch and control the government; to throw the light of publicity on its acts; to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable." Woodrow Wilson stated, "Quite as important as legislation is vigilant oversight of administration." Because Wilson believed "that the only really self-governing people is that people which discusses and interrogates its administration," he concluded that "the informing function should be preferred to its legislative function."

It is for these reasons that oversight, particularly oversight of the Department of Justice, is critical. We are not the first to inquire into the deeds or misdeeds of the

Department. One need not go far back in history to recall then-Chairman Dingell's investigation into the Department's environmental crimes program. It is worth noting that the Attorney General and the Associate Attorney General Webster Hubbell permitted the staff of the Commerce Committee to interrogate line prosecutors for that Dingell investigation. The Science Committee's Rocky Flats investigation and Iran-Contra both brought the Department of Justice under the congressional microscope. Then-Chairman Brooks, in the early 1990s, battled the Department over his INSLAW investigation.

Opposition to congressional oversight is not a new phenomenon either. However, the Justice Department in recent years has been particularly uncooperative with congressional and other investigators. The Department has a long-standing policy in sharing information with congressional committees which, in their view, may adversely impact ongoing investigations. As a strong supporter of law enforcement, I am sympathetic to this view. However, when the Department's policy is so strained that it invents unfounded legal arguments such as the protective function privilege, the Department loses credibility with the Congress and the American people.

In the McGrain case, the Supreme Court focused specifically on Congress's authority to study "charges of malfeasance and nonfeasance in the Department of Justice." The court noted with approval that "the subject to be investigated" by the congressional committee "was the administration of the Department of Justice, whether its function were being properly discharged or were being neglected or misdirected, and particularly whether the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and prosecution or proceedings to punish crimes." It is clear, then, that the Congress has the legal authority to demand the production of information necessary for Congress to properly discharge its oversight responsibility and that the Justice Department is subject to such oversight.

Congress must remain vigilant in its oversight of all executive branch agencies. Former Chairmen Dingell and Brooks and former House General Counsels Ross and Brandt firmly advocated and implemented Congress' oversight responsibility. The American people should be concerned about prosecutorial misconduct and should be confident that the Congress will review such cases to ensure that it does not happen repeatedly. If Congress wants explanations or answers about such conduct, it should not be met with platitudes about policy, prosecutorial discretion, or privileges. Congress and the American people deserve answers to such important questions. The potential for abuse in the administration of justice is great, and Congress must remain vigilant with its oversight.

Finally, I want to comment on the new post-independent counsel era we now are entering. Recently, a number of Republican and Democrat commentators criticized Congress for delegating its oversight responsibility to independent counsels. Now, with the expiration of the independent counsel statute, the Attorney General has promulgated regulations governing the appointment, conduct and removal of special counsels. The regulations place special counsels clearly under the control of an Attorney General. How can Congress be assured that special counsels are independent? How can the American people be assured that undue political influence is not being brought to bear against special counsels? If the Attorney General refused to answer questions about the appointment of special counsels, the same way that she refused to answer questions about independent counsels, how can Congress be assured that impartial justice will be done?

In addition, one Member of Congress recently criticized Congress for its oversight relating to the Department of Energy's nuclear labs. Congress must remain vigilant, because it will be blamed when things go wrong.

Congress must continue to exert watchfulness over programs and agencies within their jurisdiction. Because Congress' constitutional oversight function is implicit in our tripartite system of government, Congress must, more than ever, properly meet its lawmaking and informing responsibility. The subcommittee hearing offers an opportunity to review not only the congressional oversight function that serves as a vital tool for keeping the Nation free, but also the inherent dangers of permitting agencies to impede the work of Congress.

[The statement of Mr. Linder follows:]

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Mr. Linder. I am happy now to begin to hear from our Chairs and their experiences with Congressional oversight.

I am sorry, the Chair recognizes Mr.  Hall.

Mr. Hall. Thank you, Mr. Chairman. I do have a statement. I would like to submit it as part of the record. I am not going to read the whole statement. There are two or three paragraphs I would like to read.

I will just start off by saying that the success of congressional oversight should be determined by how well we evaluate the laws that we pass and whether that oversight results in new legislation, including changes in existing law. In addition, we need to be concerned about basic process. Is our oversight cost-effective, and can we expect the results of a particular investigation to justify the money spent? Are the rights of the witnesses protected?

The authority to investigate is an awesome power and subject to abuse. We must not forget that some of the darkest moments in Congress were the result of overzealous execution of the oversight responsibility.

Is oversight conducted on a bipartisan basis? This is especially important when investigations take on an adversarial tone, as they must from time to time; but without bipartisan support, oversight takes on, unfortunately, political tones that discredit the oversight process in the House.

That is all I am going to read, Mr. Chairman. I am glad that you are having this hearing. I am concerned that what Congress needs to do and do it well is oversight, but what I see so much is investigations; and I see investigations so partisan. When I go back home, people always say to me, Why can't you guys get together? Why can't the Members of Congress on both sides get together and work together? Over the past few years, it just looks so investigatory, which relates to what this this committee hearing is all about today. Oversight is one of the things that we can do best - to evaluate our laws, evaluate our agencies. How are they doing? I know that is part of oversight.

I just hope that through this hearing we can get to the point where we can be a lot more bipartisan in the way that we investigate, the way we look at agencies, the way we look at our government. It doesn't seem to be that way. So I am very thankful for the chance to be here.

As you know, this is a busy day. I am carrying several bills for the Rules Committee on the floor, so from time to time I will be coming in and out of the committee.

Thank you, Mr. Chairman.

Mr. Linder. Thank you very much.

[The statement of Mr. Hall follows:]


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Mr. Linder. Chairman Dreier.

Mr. Dreier. Well, thank you very much, Mr. Chairman. I want to congratulate you and Mr. Hall for holding what I think is clearly one of the most important hearings that we will deal with in this Congress.

I think that Mr. Hall is in large part correct, that a lot of time has been expended in the past on political oversight. But at the beginning of the 106th Congress, Speaker Hastert and I sat down and talked about the great importance of policy and programmatic oversight and the fact that our constitutional responsibility really does move us, should move us in that direction. That is why, again, this hearing is so important.

By examining some of the toughest examples of oversight, we are able to learn about and improve the oversight system that is something we all hope very much to accomplish today. As I said, the Speaker and I have spent a great deal of time on this. We are committed to improving and emphasizing this issue of, as you say, Tony, programmatic oversight. That is why we jointly asked the Congressional Research Service to conduct bipartisan, oversight training for congressional staff. Two of our sessions have already been held on that, and the third will be held on the 26th of July, and so far, the reports that we have gotten have indicated a great deal of success. In fact, I would like to ask unanimous consent at this point, Mr. Chairman, to include the letters that we had with the Congressional Research Service included in the record

Mr. Linder. Without objection.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Dreier. As our first workshop pointed out, we had our former colleague, Lee Hamilton, who is obviously a very, very respected former Member, he was Chairman of what used to be called the Foreign Affairs Committee, now proudly called the International Relations Committee, and he also chaired the Iran-Contra Committee. Frankly, he was involved in some of those other investigations, Tony, that may have been a little politically motivated in the past. At that meeting he addressed the attendees, and I would ask unanimous consent to include Chairman Hamilton's statement in the record at this point

Mr. Linder. Without objection follows:]

******** COMMITTEE INSERT ********

Mr. Dreier. Then I would like to highlight a couple of the items that he raised. He said, "Oversight is designed to throw light on the activities of government. It can protect the country from the imperial presidency and from bureaucratic arrogance. It can expose and prevent misconduct and maintain a degree of constituency influence in an administration. The responsibility of oversight is to look into every nook and cranny of governmental affairs. Oversight is designed to look at everything the government does, expose it, and put the light of publicity to it. It reviews, monitors and supervises the execution and implementation of public policy to assure that the laws are faithfully executed."

Now, let me say that bipartisanship is something that we have been seeking, and we all know that Lee Hamilton is a Democrat, and I will say that he is one who believes very strongly in this. And in the memo that we had in preparing us for this hearing today, I think there were a number of very important quotes, not only pointing to the Supreme Court, but  -- and you have covered a couple of them, Mr. Chairman, but I want to say that I think that Woodrow Wilson said it very well when he said, "Quite as important as legislation is vigilant oversight of administration." Because Wilson believed, and I quote, "the only really self-governing people is that people which discusses and interrogates its administration." And he concluded that "the informing function of Congress should be preferred to its legislative function."

So I think that so often we believe that we are simply lawmakers here, but we have a very, very important responsibility that we cannot ignore. We have very distinguished, we have a couple of very powerful committee chairmen sitting before us and a couple of equally powerful subcommittee chairmen who are going to talk about this issue. We have information that has come to the forefront just today in the Washington Post in an article that we have seen about problems that exist at the Justice Department. So I am happy that we in the 106th Congress are trying to pursue in a bipartisan way this issue of policy and programmatic oversight, and I look forward to the testimony of our very distinguished colleagues.

Mr. Linder. Thank you, Mr. Chairman.

[The statement of Mr. Dreier follows:]

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Mr. Linder. Mr. Hastings.

Mr. Hastings. Thank you, Mr. Chairman. I too look forward to the testimony of our witnesses that we have here today.

If there is one thing that I have heard in my short time in Congress over and over from my constituents, it kind of follows the vein of, What about this action that happened? Why did that happen and what are you doing about it? And what about this action? And so forth. Of course, I explain to them that our responsibility is to make the law and the executive branch's responsibility is obviously to carry out that law. But at some time, there has to be some accountability as to if they are following it as it is  -- as we pass them, as we thought the intent was.

So I look forward to hearing the testimony, particularly one of the subcommittee chairmen that I have worked with of oversight of some Federal activities in my area, Mr.  Barton. So I look forward to this testimony.

I might make one other observation, and this is I think maybe an appropriate time to say this, because we  -- this committee does have some responsibility on the budget process. I have long been an advocate of biennial budgets because that would give us an opportunity in the second half of a congressional session to have more oversight without having the pressures of the budget in order to get that done.

So with that, Mr. Chairman, I thank you for the time and I yield back, and I look forward to the testimony.

Mr. Linder. Thank you.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Linder. Mrs. Myrick.

Mrs. Myrick. Thank you. I want to thank all of you who have agreed to come and testify this morning. I think it is extremely crucial that we hear what you have to say, because you have been experiencing it. I also get a lot of questions at home on why doesn't Congress do this? Why doesn't Congress do that? This is happening, you haven't looked at this, you haven't looked at that. I think people really do realize the importance of oversight, even though they really don't know what it is.

I would just say that I am looking forward to your testimony and we hope some good things come out of this.

Mr. Linder. Mr. Sessions.

Mr. Sessions. Thank you, Mr. Chairman. I am pleased to join my fellow members of the Rules Committee today in welcoming the five distinguished committee chairmen impaneled before us, and I look forward to their testimony.

The issue at hand, congressional oversight of the executive branch, often solicits strong feelings from Members of Congress. Many Members have experienced frustration in getting accurate information and data in a timely manner from administration agencies. Some believe the administration delays responding to requests from certain Members of Congress for political reasons. I perhaps am one of those.

I experienced myself problems in dealing with the FBI and the Bureau of Alcohol, Tobacco, and Firearms. Both agencies have not responded to letters which I have sent and resent and resent and made repeated calls.

In December of last year, I wrote a letter to Mr. John Magaw, Director of the BATF, requesting a copy of their Operation Snapshot. BATF asserted that this study showed that pawn store customers were far more likely to be prohibited from possessing guns than customers of other Federal firearm licensees. I received no response to my December request for a copy of the study. I wrote again in February. Again, no response. Not even a letter acknowledging my request. Not at all.

You may recall last month I offered a reasonable amendment to the juvenile justice bill that required pawn stores to do a background check before returning a gun to its owner. This reasonable amendment required a background check to be done only when the gun was held for a year or longer. The amendment passed with bipartisan support.

When my amendment came to the floor for debate, I was confronted by opponents to the measure who were quoting statistics from BATF, statistics from the very study which I requested, statistics from the study which BATF would not provide to me.

One opponent to my amendment said authoritatively that this BATF study showed that 5.4  percent of pawn store customers were prohibited from possessing guns.

In the meantime, I was left to wonder how on earth I could refute these statistics. How could I challenge the methodology of the study? My opponents were all quoting this study, and I could not even get a copy. In my opinion, a copy of the information that was used that my opponents were privy to, I was denied. I believe that it was done for political purposes, and further, I believe that it would be a serious breach or violation of the ethics of the Treasury Department. I intend to further pursue the matter but would be interested in hearing about how you think this should be approached.

This week, after the juvenile justice bill and my amendment were considered on the floor, yet curiously just before this hearing on oversight of executive branch agencies such as BATF, I finally received a reply from Director Magaw. He writes, "The Operation Snapshot study is in the process of being finalized and will be made available to all interested parties once it is completed. We will send you a copy at that time."

My first reaction was to question why would it take 7 months to reply to me that the study is not complete. Then I thought back to the battle on the House floor over my amendment. How could opponents of my amendment be quoted from a study that was not yet complete? How could the administration support increasing regulations based upon numbers and statistics that are incomplete?

The bottom line is that I believe that there are inconsistencies that we find from this administration, not only from the Department of Justice, but other agencies where, based upon political reasons, we are being denied, as Members of Congress who are considering realistic and very important issues of this country, we are being denied the opportunity not only to discuss these issues, but being treated fairly.

I hope that part of what this oversight hearing is about today is to reinforce that there are Members of Congress, like myself, that have sincere problems that we wish to deal with, and I believe that the light of day will prove to be a good disinfectant for this problem.

Thank you, Mr. Chairman.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Linder. Mr. Reynolds.

Mr. Reynolds. Thank you, Mr. Chairman. I would like to thank the panel for participating this morning in this very important hearing.

As a freshman, I have had limited exposure to congressional oversight of Federal agencies, but I can tell you I have already been here long enough to come across difficulties with Federal departments in the past 7 months.

One of the most startling issues in my district involves both the Interior and the Justice Departments. These departments, particularly Justice, got involved in a dispute that goes back some 200 years between the Cayuga Indian Nation and New  York State. The dispute is over 64,000 acres of land. The original suit was filed by the Cayuga Indians in 1980, and 11,000 residents have spent the last 19 years terrified that they may lose their very homes from this 200-year-old dispute.

The Justice Department's involvement is not only inappropriate, but it has been significantly slowing down the entire proceedings and has had a negative impact on innocent landowners. In my experience, the agencies have overstepped their bounds and they have been unavailable, unresponsive, and unapologetic to the Congress and to the public. That has to change in order for our government to function efficiently or, in some cases, to function at all.

Again, I would like to thank the chairmen here, and I look forward to their testimony, and I know that they will have expert presentations on this subject.

Mr. Linder. Thank you very much.

Mr. Sessions.

Mr. Sessions. Mr. Chairman, I would like to ask unanimous consent that some information that I had concerning letters and other information that I discussed be submitted for the record.

Mr. Linder. Without objection.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Sessions. Thank you.

Mr. Linder. Now I would like to ask the four Chairs, Mr.  Barton, Mr.  Hoekstra, Mr. Hyde and Mr.  Burton, to take seats at the witness table, please.

Because of scheduling urgencies, I am going to ask the gentleman from Texas, who has another committee meeting roughly at the same time, to begin; and we will ask each of you to make your statements and then we will ask questions. And I understand, Mr.  Barton, you may have to leave. The gentleman may proceed.


Mr. Barton. Thank you, Mr. Chairman. I thank the other members of the rules subcommittee for holding this hearing on this issue.

Let me put this in context. In 1995 the Republicans became the Majority for the first time in 40 years; I became the oversight subcommittee Chairman of the Energy and Commerce Committee, the position that Congressman Dingell of Michigan held. He had been double-hatted. He was Chairman of the full committee and also subcommittee Chairman. The records were somewhat hard to determine, but we were able to ascertain that Chairman Dingell on his oversight subcommittee staff had over 40 direct employees, and approximately 100, perhaps more, detailees. To put that in context, at the zenith of my chairmanship, we had approximately 12 direct employees and 2 detailees to do oversight over approximately 40  percent of the Federal Government. I don't believe that anybody would say that Congressman Dingell was lax in his oversight responsibilities. So Chairman Bliley of the full committee and myself, as Chairman of the subcommittee, had big shoes to fill and we tried to do it in an effective way.

I am going to talk about three specific cases we did at the staff level. We probably did several hundred investigations in the 4 years I was Chairman. We had approximately 100 hearings. We had hundreds of witnesses appear, and in only one or two cases did we resort to subpoena power to get the documents that we needed. With one exception, I think all of our investigations would be construed to be bipartisan, and also to be fact-based with either no political overtones, or minimal political overtones.

The first case I am going to specifically refer to deals with the Environmental Protection Agency and it deals with a program within that agency -- the diesel engine certification program. That is hardly a political investigation. We began our review in late 1997 out of a concern that there may have been attempts by the manufacturer to circumvent Federal emission standards, and that the EPA may have been asleep at the wheel. For a year, we put off certain aspects of our investigation at the request of the Environmental Protection Agency and the Justice Department based on their representation that our inquiries might negatively impact pending enforcement actions.

However, after the EPA, Justice, and the manufacturers entered into a settlement agreement in October of 1998, Justice continued to block our attempts to interview the EPA personnel. In one moment of unusual candor, EPA acknowledged to the staff of my subcommittee that the administration's concern was that our investigation might uncover information embarrassing to its settlement position.

Eventually, the EPA did permit us to interview the program personnel, despite a memorandum from the Justice Department advising the EPA against it. To this day, I question the judgment of the Justice Department in continuing to advocate an obstructionist and extreme position. If the Justice Department had had its way, our investigation would have been delayed indefinitely. And, if that same Justice Department theory were to be applied across the board, virtually every congressional oversight activity could be negatively affected, since there are very few executive branch actions that are insulated from the potential of future litigation.

So that is case number one, dealing with the EPA.

The second case is a request that I made to the Justice Department in March of 1996 to investigate a matter that I had reason to believe, and still to this day continue to believe, constituted perjury before my subcommittee. And in support of that request, I enclosed a committee staff report detailing the evidence that led us to believe that a senior Food and Drug Administration, or FDA official, a gentleman by the name of Mitch Zeller, committed perjury at hearings before the subcommittee on November the 15th and December the 5th, 1995.

Let me say, Mr. Chairman, that all testimony on the oversight subcommittee of the Energy and Commerce Committee is taken under oath, that we require them to hold up their hands and swear an oath that they are telling the truth, the entire truth and nothing but the truth so help them God. So help them God. So we don't have any of this, where you can claim that you are not sworn to tell the truth or be under oath before the oversight subcommittee.

The facts of the case are laid out in my prepared remarks, but let me briefly state them, if I can. Mr. Zeller came before the committee and testified about certain documents that he had been given by an outside counsel who was involved in litigation with the FDA on a device called a pedicle screw, and this -- these documents were under a court order to be sealed as confidential. One of the documents, which I never saw, was a book, apparently 3 inches thick, that stated on the front in big letters, "Confidential Court Order," you know, subject to all kind of things. It was obviously well-marked.

We requested these documents. The FDA refused to give us the documents on the grounds that they were subject to a protective order, okay. We then held two hearings during which Mr. Zeller testified about these documents. Months later, when the subcommittee received the documents that initially had been withheld by the FDA, there were notable conflicts between the documents and the testimony that Mr. Zeller gave at our hearing under oath. In particular, the documents contradicted Mr. Zeller's testimony that he did not know at the time that the documents he received in June of 1995 were covered by a protective order.

Now, I want to emphasize, under oath, when requested by myself, Mr.  Cox of California, and several other members of the subcommittee, Mr. Zeller admitted that he had the documents; he admitted that he read the documents. There was even a personal note from the person who sent him the documents in which he was saluted on a first name basis. But he continued to state that he did not know they were subject to a protective order.

Now, if we had these documents before us today, every member of this subcommittee of the Rules Committee could clearly tell that these documents were subject to a protective order of the court.

Mr. Zeller testified that the documents he received were stamped "confidential," he testified that he used the documents. So when he said that he didn't know that they were under seal or he didn't know that they were protected by the court order, I don't believe that Mr. Zeller's testimony was credible. Mr. Zeller also testified that he did not have any previous dealings with the person who sent him the documents, a gentleman by the name of Coale, C-O-A-L-E, or know that he would be receiving the documents in advance, statements that also appear to be false. The cover letter to Mr. Zeller enclosing the documents contain a salutation that read, "Dear Mitch." It stated, and I quote, "The enclosed is the material that we spoke of."

The personal salutation implies to me a preexisting relationship. And the statement "we spoke of earlier" suggests to me that Mr. Zeller knew that he would be receiving the documents and the subject matter of those documents, and that he did have a previous relationship in dealing with Mr. Coale.

My request to the Attorney General to investigate this alleged perjury was referred to the public integrity section.

On May 8, 1996, we brought additional information about another related, what we claim to be a false statement, to the attention to the Department of Justice; this time, a clearly false statement in a judicial brief filed by the Department on behalf of the FDA to the effect that the FDA's Office of General Counsel had been given access to these protective order documents. In other words, it appeared that, at the same time the Justice Department, on behalf of the FDA, was asking written permission from the court to receive and use documents subject to a protective order, FDA was trying to cover up the fact that it had already received and used some of these very same documents subject to that very same protective order.

In August of 1996, the Department of Justice summarily decided not to proceed further with my formal request for an investigation of that matter. The Department's declination letter did not even address the question raised by my May 8 letter request to investigate a possible false statement to the Department.

The Department gave the committee only minimal information about the Department of Justice's efforts. We were told that perjury -- and the committee will like this answer -- we were told that perjury is an extremely difficult crime to prosecute, and that there was insufficient evidence to prosecute.

As far as I can tell, all the Justice Department did for over 4 months was review my referral and request materials from the FDA. Neither I nor the committee staff was provided specific information about whether the Justice Department attempted to interview Mr. Coale or FDA officials connected with this matter. We were given no written report or any indication that the referral was investigated with any degree of energy or thoroughness.

By contrast, in 1990, the U.S. Attorney prosecuted and convicted an FDA official for lying about whether he had had lunch with industry representatives. A few years later, a senior FDA official testifies before my subcommittee that he received and used documents that were clearly marked confidential, subject to protective order, and he knew that they were confidential, but denied that he knew the documents were subject to a protective order, and the same Justice Department does nada, nothing, zip.

That testimony is similar to someone who receives a box stamped "Dangerous: Radioactive Material" and testifies that he knew the box was dangerous, but not radioactive. The testimony was inherently preposterous and justified a further vigorous investigation by the Department of Justice about perjury before Congress. Justice's inaction and its refusal to provide any detailed explanation to my subcommittee was, I believe, and is, I believe, simply inexcusable.

So that deals with the FDA. The first case was the EPA, the second case is the FDA.

Now, let's try one more case. I want to say right on the top, this case does have political overtones. I don't believe the other did two did, but this one does. The third case involves a criminal referral to the Justice Department by myself, a subcommittee Chair, and full committee Chairman Tom Bliley on a matter that is known in the public today as the Portals, after the name of a private building that the Federal Communications Commission recently moved into after years of refusing to do so.

My subcommittee investigation uncovered a complex web of influence peddling and questionable, to put it mildly, million dollar payments, of secret meetings and curious government actions all relating to this project. At the end of the investigation, we determined that the evidence was sufficient to refer the matter to the Justice Department for criminal investigation of several prominent individuals, including James Sasser, who was currently Ambassador to China for the United States of America and a former Senator from Tennessee; Mr. Peter Knight, who is a top fund-raiser for Vice President Gore and President Clinton; and Mr. Franklin Haney, who is a private developer in Tennessee who is a close friend of the Vice President's and a top contributor also to Democratic causes and, if the Justice Department itself is to be believed, a very questionable Clinton-Gore fund-raiser. The Justice Department does have an investigation of Mr. Haney in which he is currently under indictment, I believe, for over 30 counts of campaign finance law violations.

The subcommittee staff prepared a lengthy, detailed, and fact-based report based on testimony and interviews with dozens of individuals and review of thousands of documents. That report was sent to Attorney General Reno for her review on December 15, 1998.

As that report exhaustively set forth, we found that Mr.  Haney paid Mr. Knight and Mr. Sasser $1 million each upon the successful closing of the Portals transaction in which the Federal Government agreed to specific lease changes sought by Mr. Haney as a condition for his financing of the Portals building. We believed then, as I continue to believe now, that the report set forth specific and credible evidence warranting further investigation as to whether Mr. Haney and his representatives may have violated Federal laws in connection with these fee arrangements; in particular, a Federal law against contingency fees on Federal contracts.

The report also contained evidence suggesting that the same individuals may have made false statements under oath before the subcommittee concerning these arrangements and their efforts to influence Federal officials.

In the specific case of Peter Knight, who was a covered official under the Independent Counsel Act, we indicated our belief to the Attorney General of the United States of America that there was, and I quote, "specific and credible information warranting a preliminary investigation into whether an independent counsel should be appointed to review this matter." Under that act, the burden of the Attorney General is clear. If the Attorney General cannot say with certitude, and within 30 days, that the information provided is not specific or from a credible source, the Attorney General must proceed with a preliminary investigation under the act.

However, on the 30th day, the committee received a cursory response from the Justice Department stating that the Department's own investigation had previously determined, apparently prior to even receiving or reviewing our referral, that Mr. Knight's $1 million payment was not an illegal contingency fee, and therefore it would not begin a preliminary inquiry under the Independent Counsel Act.

The Department's response raises many procedural and substantive red flags. First, the response -- which notably never said whether the specific pieces of evidence contained in the referral met the minimal triggering threshold under the Act -- appears to indicate that such an analysis were not even performed by the Department. Instead, it appears that the Department simply relied upon a prior investigation internally and its own judgment that the $1 million payment was not a contingency fee, and interpreted our evidence to conform with its initial determination.

Second, the response indicates that the Department reached a conclusion on the facts that the payment was not a contingency fee as opposed to making a statutorily required finding whether the referral contained specific and credible evidence warranting a further investigation.

Third, the Department appears to resolve disputed credibility issues in Mr. Knight's favor, based on unidentified, and I quote, "other evidence" gathered by the Department's task force -- a weighing of evidence that I believe the act requires to be left to an independent counsel.

Finally, the Department's apparent conclusion that the $1 million payment was not an unlawful contingency fee did not resolve all of the perjury referrals on Mr. Knight, an obvious error that indicates the lack of serious attention to our referral.

On the substance of the Attorney General's decision, let me briefly state that I, along with others knowledgeable about the referral and the workings of the Act, find it virtually impossible to believe that the referral failed to meet  -- failed to set forth specific and credible information against Mr.  Knight, warranting further review under the Independent Counsel Act. The referral contained testimony of individuals with personal knowledge of the matter, backed by corroborative documentation that generally went unchallenged by Mr. Knight and Mr. Haney. Although Mr. Knight claimed that his $1  million payment was a flat fee for years of work on dozens of projects for Mr. Haney from 1995 through 1998, the committee heard testimony and received documentary evidence, all of which was provided to the Department, clearly indicating the opposite. In order to give the subcommittee a sense of how incredible the Attorney General's response to our referral truly was, I have recounted in my formal, lengthy statement, some of the key evidence contained in our referral and I would be glad to answer questions about that.

So let me simply say in closing, we understand there is going to be a natural tension between the executive branch and the legislative branch. That is institutional, and that is normal. I would say in the case of the Clinton administration, there is an endemic attitude that there should be no cooperation with the Congress, and in the case specifically of the Justice Department, I think they have gone above and beyond the call of duty in trying to stonewall at least the Subcommittee -- that I was the Chairman of -- on Oversight and Investigations of the Commerce Committee.

I have lots of more documentation and I will put that in the record, Mr. Chairman. But I appreciate the opportunity to testify on these specific cases.

Mr. Linder. We thank you very much. We may be sending some questions to you because we understand you can't return.

[The statement of Mr. Barton follows:]

******** INSERT 1-4 ********

Mr. Linder. I think we have time for one more before we vote which will be at 5 minutes on the hour.

Mr. Hoekstra.


Mr. Hoekstra. I thank the Chairman and the committee for having this hearing today.

I just want to begin with, to set the record straight, I think our subcommittee and a number of other subcommittees have done a lot of work, which is more than what would be called political investigation.

Early in 1997, we embarked on a process on our subcommittee to take a look at all of the education programs. We found over 700 education programs administering over 39 different agencies and issued a report called "Education at a Crossroads." That report is now the framework for an education agenda working its way through the House of Representatives.

Within the next 3 weeks, we will issue a report called "The American Worker Project," which is the first comprehensive look at American labor law, and we believe that this will then set the framework for a legislative agenda on how to reform American labor law and get it ready for the next millennium so that our workers will be competitive on a global basis.

But the investigation that I want to focus on this morning is the work that we did on the Teamsters during the last Congress. How does Congress get involved with the International Brotherhood of Teamsters? We became involved with the Teamsters because in 1996, there was an election. The International Brotherhood of Teamsters had a national election for President. The interesting thing about this election was that it was funded by the American taxpayer. It was funded to the tune of $20 million that the American taxpayer footed for a failed election, and we were asked at that point in time to do an investigation as to what happened in that election and why, when we spent that kind of money, we couldn't run a fair election.

It goes back to the report issued by the court-appointed election officer in August 1997. She overturned the election because she found that the campaign of the incumbent President, Ron Carey engaged in a quote ‘complex network of schemes,’ end of quote, to launder Union treasury funds and other prohibited contributions through various organizations back into the Carey campaign.

The interesting thing is to take a look at who participated in this: Citizen Action, the National Council of Senior Citizens, Project Vote, the AFL-CIO, the DNC, and the Clinton-Gore 1996 campaign. These were agencies and organizations that had a direct political agenda, and a number of these received funds from Congress.

From the outset, we ran into a number of things that were problematic, the first of which was that we did not have Minority support. The Minority focused on procedural issues and personal attacks in an effort to change the subject. The bottom line is what I think the Chairman started with. For an investigation to be truly effective and credible, there must be cooperation on both sides of the aisle. If there is not, the Minority or one of the parties involved can do a lot to slow down an investigation, which is what happened in our case.

Our investigation was also limited because several important witnesses asserted their Fifth Amendment privileges against self-incrimination and refused to testify.

In addition, the Teamsters, and when I am talking about the Teamsters, I want to reinforce that I am talking about the administration of Ron Carey and not the administration that is currently in place that was elected in a genuine election, in a fair election. But the previous administration took a confrontational position and was generally uncooperative. Their lawyers asserted numerous privileges and withheld many documents; that is, until they were threatened with contempt. They produced other documents that were redacted of any but the most meaningless information.

The Teamsters also refused to allow interviews of their employees and agents. Ultimately, our investigation was granted deposition authority and we were able to speak with uncooperative witnesses. However, it was a long and complicated process and, as the Chairman notes, it culminated with a vote on the floor of the House to get this power.

As soon as we were provided with the necessary tools, the Teamsters were suddenly much more cooperative and insisted that their appearances be voluntary and without subpoena. I really think that the Rules Committee ought to consider providing deposition authority to all oversight subcommittees as part of the standing Rules of the House of Representatives.

The subcommittee's efforts to investigate the Teamsters election misconduct was also limited in deference to requests made by the United States Attorney for the Southern District of New  York. On numerous occasions, the subcommittee refrained from questioning witnesses and pursuing certain areas of inquiry at the request of the Southern District. The Southern District did not want their criminal investigations to be tainted, and the subcommittee respected their wishes. In practical terms, the Department of Justice objected to the subcommittee pursuing any investigation of the alleged contribution swap schemes.

My experience in working with the Department of Justice is that it is a one-way street when it comes to interacting with congressional investigations. We share information with them; they shroud everything in a veil of secrecy. Either their information involves restricted grand jury material or it involves an open criminal matter. DOJ seems to overplay what information involves an open case and apparently will not provide Congress with any information on any issue that they might investigate somewhere down the line.

I think that, in summary, my interaction with the Department of Justice was probably the most frustrating. When I take a look at the evidence that was laid out and the guilty pleas early on in the investigation, the organizations that were involved and our action over the year, the year-and-a-half that we investigated this, and how we cooperated with the Justice Department, and then to see what has happened in that year-and-a-half and in the year since that, there has been no activity out of the Justice Department which would have justified the restraints and the straitjacket that they put on our subcommittee.

They wouldn't share information with us, even within the last few months. They wouldn't come and testify in front of our subcommittee about what went wrong in the first election, what went right in the second election; and how government supervision of labor unions operating under consent decrees works in general.

You know, I think that the Rules Committee and Congress needs to reach a better understanding and accommodation with an uncooperative Justice Department about what is the rightful information that Congress should have access to, because in a case like this, the Justice Department can and did stop, I think, a number of legitimate avenues of investigation which should have been pursued and which now, a year later, I believe and suspect that they never fully followed.

I am hopeful that this committee and that this exercise can lead to a better understanding of Congress and the Justice Department about what information is rightfully ours.

There is a long list of people and organizations that were implicated that have not been dealt with -- the Democratic National Committee, various unions, Citizen Action, Project Vote, the National Council of Senior Citizens -- these are all legitimate areas of investigation for Congress, and I do not believe they have been fully examined by the Justice Department.

That is my testimony. I will go vote and come back and answer any questions that you have at that time.

Mr. Linder. Please do. You have a couple of minutes. We will be in recess for just a few minutes until the next Chairman gets here.

[The statement of Mr. Hoekstra follows:]

******** INSERT 1-5 ********


Mr. Linder. The committee will reconvene.

I am now pleased to hear from the gentleman from Alaska, the Chairman of the Resources Committee.


Mr. Young. Thank you, sir.

Mr. Chairman, members of the subcommittee, this hearing is an excellent idea. I want to compliment you. I will offer a few observations based on my committee's experience with the Department of Justice lawyers as we aggressively conduct our oversight. Mr. Chairman, it is my feeling that the Justice Department is out of control.

At first blush, you may not think that the Committee on Resources would have too much interaction with Justice. The Department of the Interior is the primary agency we oversee.

But on about fifty percent of our full committee oversight, we end up devoting substantial time and energy arguing with what must be every lawyer in the Department of Justice about getting information we need for our oversight projects. We win the arguments 99  percent of the time. But then we face the same Justice lawyers who raise the same issues that they delayed us with on the prior oversight request.

I have resorted to issuing numerous subpoenas to top Justice officials, Janet Reno, Eric Holder and others, so we can get documents and records that show waste, fraud, and abuse by the Clinton administration officials. In the vast majority of cases, documents that are withheld show poor judgment or embarrass this administration. Very few valid rationales exist for withholding the information that we request, but they do so over and over and over again.

The generic excuse we hear all the time is that the Department has a "longstanding policy that prohibits them from turning over information to the committee because it is or could be the subject of litigation against the United States." I just don't buy that broad excuse.

Because nearly every bad government decision could result in a lawsuit, we could only investigate good decisions, and good decisions are in short supply recently.

Here are a few examples of what I am telling the subcommittee:

Investigation of a $1.6 billion timber contract cancellation. Here we are conducting oversight on whether the Clinton-Gore administration breached a timber contract in Alaska. That decision threw 1,500 people in my State out of their family wages. It exposed American taxpayers to damages of $1.6  billion. It is a typical Clinton political decision that costs jobs, costs taxpayers and hurts the public forests.

We launched an oversight review on the matter by requesting that the Secretary of Agriculture provide us with certain records from the Forest Service and from his predecessor's office. We are trying to determine the legitimacy of the basis for the cancellation and why this administration so callously exposed taxpayers to a contract breach claim totaling about half of the agency's annual budget.

The company that held contract had sued the government for breach of contract, so the matter was in litigation. That was Justice's excuse to engage and delay our document request for 3 months. They pulled their whole team of lawyers off the case just to fight us on turning over anything to us. They claimed privileges that do not apply to Congress. They failed to promptly respond to requests for information and records. I finally issued a subpoena to the Attorney General and then she came to visit me in my office.

We had a nice talk and she basically agreed to turn over everything we wanted, and I gave her assurances that we would not release certain material for a period of time. But within 24 hours, her staff reneged on giving us much of the material. The Attorney General is in partial default of the subpoena. My staff is reviewing what Justice did give us. I plan to bring this matter before the committee again to deal with the default. As it stands now, however, the chief law enforcement officer of the land is not complying with the law.

There are a whole host of other issues where the Department of Justice stands between the committee's search for truth and our oversight obligations under the House rules. As you know, we have an obligation under rule 10(2)(b) to "review and study on a continuing basis" all laws within our jurisdiction, the organization and operation of agencies within our jurisdiction, and circumstances showing that new laws are needed. The Committee on Resources has very aggressively undertaken that responsibility which may be why we have so frequently clashed with the Department of Justice.

We have the case of the Tucson Rod and Gun Club. Justice cancels meetings between the committee investigators and the Forest Service. They directed the Service not to participate in a meeting that the committee's chief investigator had arranged and flown across the country to attend. Justice gave no consultation, no warning, no indication that they would meddle in our investigation of why a public land gun range had been wrongly closed -- until we received a copy of their letter to the Forest Service canceling our meeting.

This is not just arrogance, it is brazen arrogance grounded on longstanding policy not to allow the meeting because it involved ongoing litigation. We had have the Warner Creek environmental protest.

We have another investigation into the events that allowed environmentalist protesters -- they are very close to this Administration -- to illegally occupy a national forest and destroy property there for 11 months. We have a task force looking into the matter now. There was a videotape of the actual raid to remove the protestors. We requested a copy of it for the committee. This tape had been shown to numerous outside parties, aired for the media, and had been provided in criminal discovery to defendants. There was no legal authority cited for withholding the tape. I have subpoenaed the tape, and Justice ultimately complied with my request, weeks later.

We have the U.S. Marshals Service, charged by statute with serving subpoenas. Generally they are helpful, except when it comes to serving officials in the Department of Justice. Several times they refused to serve Justice officials. They told us their "longstanding practice" is that they would not service Justice officials because the Marshals were part of the Department of Justice. I had to write them a letter that spelled out their legal obligation to ses. They ultimately changed their longstanding practice.

The FBI briefing in U.S. territories. We took a delegation of House Members to the territories in the Pacific last year. I arranged briefings for our delegation with all of the Federal bureaus and agencies. Every agency that was invited, except for the FBI, showed up for the briefing. I walked down the hall to the FBI office to remind them that they were supposed to send a representative to the meeting to discuss these issues. I have never been faced with such personal arrogance by a Federal agency official. This gentleman flatly refused to join our meeting. I did receive an apology letter from the director, but again, some unwritten, longstanding policy was cited for the FBI as a reason for failure for the agent to even attend our meetings.

Department Policies on Employees Receiving Payments From Outside Sources. A DOI and a Department of Energy employee received $350,000 each from an outfit called the Project on Government Oversight, a so-called watchdog group. This group is a group, external to the government, that paid government employees who had have been trying to fix the oil royalty problem for years within the bureaucracy. I had never heard of such a thing before -- an outside group with an agenda paid a government employee a third of a million dollars each because they worked to further their agenda.

We made document requests and issued subpoenas for records to the Department of Interior and again and again were met with Justice Department objections. Because the Interior IG was conducting a criminal investigation of the matter, "longstanding policy" supposedly prevented them from turning over much information to the committee investigators. We are still fighting this one.

Mr. Chairman, I could go on. We have an additional six other investigations right now. Let me close by saying I would be happy to review the rule change to eliminate this problem with the Department of Justice. They are preventing, my committee, and other committees from the oversight which we are charged to do, we are required to do so under the Constitutional and Rules of the House.

We must bring a halt to the stonewalling by this administration. There have been certainly six administrations since I have been in this Congress and this is the worst of all that I have ever been faced with. They did not cooperate, they ignore the constitutional law, they ignore the Congress, and in fact thumb their noses.

Thank you, Mr. Chairman.

Mr. Linder. Thank you, Mr. Young.

[The statement of Mr. Young follows:]

******** INSERT 1-6 ********

Mr. Linder. Mr. Burton.


Mr. Burton. Let me preface my remarks by saying I apologize for having such a lengthy report. It is actually much longer than my statement is going to be, and I will submit that for the record, if that is all right.

Mr. Linder. Without objection.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Burton. I wanted to comment briefly on an article that was in the Washington Post this morning on the front page. The last paragraph said: ‘meanwhile, the FBI's National Security Division balked at passing along intelligence information to the Justice Department task force investigating the 1996 campaign fund-raising.’

This intransigence -- this is according to the IG over there at the Justice Department -- this intransigence, according to the report, ultimately stymied a key criminal investigation.

I don't know for sure why Director Louis Freeh and his subordinates at the FBI might not have given all the information to the Justice Department, but I have a suspicion. And the suspicion is that they were afraid that some of the very important issues that they were investigating relating to national security and other issues might be leaked by the Justice Department itself to people in the White House who may have been involved. And for that reason, I think the FBI in many cases is very concerned about the security of their investigation.

I want to tell you personally, I have worked with Louis Freeh now for about 3 years, and I think he is doing his dead level best to be a good Director at the FBI. And I am convinced Chuck La Bella, who was the head of the campaign financing task force, was trying to do the best job possible. Both of them appeared before my committee and suggested that there should have been an independent counsel appointed to investigate the campaign contribution scandal. And the Justice Department and Janet Reno in particular, the Attorney General, would not adhere to what they thought the law required, and we are talking not only about Mr. La Bella, who headed the task force, Mr. Freeh, who is the FBI Director, but also Mr.  DeSarno, who was the agent in charge of the investigation for the FBI.

So I would just like to say from my experience that Louis Freeh, the Director of the FBI, and Chuck La Bella, the head of the task force, did their dead level best to provide the kind of investigation that this country would require. And the big problem, as far as that campaign finance investigation, was and is Janet Reno and the Justice Department.

Now, with that, I will go into my prepared statement, and I hope that you will bear with me because it is quite lengthy.

Shortly after I became chairman of the Committee on Government Reform, as you know, I began an investigation of campaign fund-raising irregularities. Today I will not go into the findings of that investigation, but, instead, I will share some of my insights into how the Justice Department has failed to do its job and how the Attorney General Janet Reno and her political appointees have placed roadblocks in front of my committee. And you have heard other committee chairmen talk about the stonewalling. I want to tell you, it is unbelievable.

What began as an inquiry into illegal campaign fund-raising has now become, in part, oversight of the Justice Department's failure to do the business of the American people.

Before I summarize my findings, I would like to note my concern over the end of the independent counsel law. The independent counsel law was not perfect, it had its flaws, but we have far more serious problems now that it has expired.

What happens when an Attorney General must investigate her boss, the President of the United States, or a political party? Remember, in the campaign fund-raising scandal, the main targets were not only higher-ranking government officials, but also the people who ran a political party. The party itself was directly implicated, the Democratic Party, and the Attorney General's professional career was primarily as an elected official of the Democratic Party.

There could conflict of interest, and that is precisely what FBI Director Louis Freeh and Chief Prosecutor La Bella told the Attorney General. They told her in no uncertain terms there should be an independent counsel.

In my view, there is no way that the head of the Justice Department can investigate her boss and her political party and maintain the confidence of the American people.

By conducting what has clearly been a failed investigation, Janet Reno further eroded the people's respect for the Department of Justice and, in my view, justice itself. In my view, this is the Attorney General's legacy. Through incompetence and partisan zeal, she has managed to bring the Justice Department to shame and disrepute. Confidence in the Department's ability to work for the American people is at an all-time low, and my colleagues have told you the same thing. And I haven't talked to any of them about this.

In the next few weeks, I will introduce legislation to create a bipartisan panel to choose a pool of qualified individuals who can be called upon to serve as Justice Department special prosecutors. This process will avoid the constitutional problems of the independent counsel law, but it will permit individuals from outside the administration to supervise sensitive Justice Department investigations. In other words, it will eliminate the possibility that an Attorney General can investigate her boss or protect her boss, the President.

Now, let me summarize my concerns with the Justice Department and Attorney General Reno. And before I start, though, let me play a tape, and I hope my colleagues can see this tape. I think it is a very good introduction as to how the Justice Department operates.

Mr. Linder. Please turn the lights down.

Mr. Burton. This is Mr.  Chuck La Bella, who is the task force head of the investigation.

[Videotape played.]

Mr. Burton. Now, I hope my colleagues will really focus on that. We were charged with the responsibility of investigating the campaign finance scandal. Chuck La Bella was the head of the task force appointed by the Attorney General for that job. And Mr.  La Bella wanted to cooperate and work with us. I called him and asked him to return my call, and one of the chief lieutenants of Janet Reno called him right after I called saying, don't talk to Dan Burton under any circumstances.

Now, that is obstruction of Justice, as far as I am concerned, because we speak for the people in the Congress, and we were conducting an investigation, and the Justice Department was deliberately trying to keep us from talking to Mr. La Bella.

Now, I want to cite some examples of why I am very concerned.

First, I am well aware that the Department obstructed investigations prior to my tenure as chairman of the Government Reform Committee. At the beginning of the Clinton administration, the de facto head of the Justice Department, Mr.  Webb Hubbell, who was convicted and went to jail, had boxes of Whitewater evidence in his basement while his staff was trying to decide what to do with criminal referrals that depended on the very evidence that Hubbell was withholding.

When Michael Dukakis said that a fish rots from the head down, he must have had Janet Reno's Justice Department in mind.

Second, throughout Chairman Clinger's tenure, the Justice Department repeatedly stonewalled him. The Travelgate investigation was maintained as an open case, even after a criminal trial completely exonerated Travel Office Director Billy Dale. They still wouldn't give Congress information because they said it was an open case, and he had been exonerated. These delays needlessly hampered Chairman Clinger's efforts. In fact, that is a recurring pattern. The Department keeps investigations open long after it has stopped doing any work and then tells Congress that it can't cooperate because the investigation is ongoing.

And I believe there are a number of cases right now that are being held open, that they are ready to close, simply because they don't want Members of Congress to have access to information regarding those investigations.

Third, when Chuck La Bella and Louis Freeh recommended the appointment of an independent counsel, Janet Reno took the political low road. She sided with her boss and her party and her political operatives. To this day, I imagine that she doesn't even care about the damage that decision has caused to the Department's reputation. I have read parts of the Freeh and La Bella memos myself, and I can tell you that what they said was really troubling. Janet Reno's political staff was using a higher threshold for senior White House political staff than for other citizens. This is what Mr. La Bella said, and I think I am quoting him pretty accurately: ‘The task force has commenced criminal investigations of noncovered persons based only on a wisp of information.’ They started investigations when there was just a wisp of information on people that weren't really important. He continued by noting that the threshold was much, much higher for Clinton administration political appointees. So they had one standard for people that weren't high in the Clinton administration, and another for the Clinton administration officials themselves.

It is also clear that investigations would have commenced much earlier if the people under scrutiny were not White House officials. Again, here is what La Bella said: ‘If these allegations involve anyone other than blank’ -- and you can imagine who he is talking about ‘if these allegations involved anyone other than blank, an appropriate investigation would have commenced months ago without hesitation.’

I want you to keep Mr.  La Bella's concerns on this point in mind in a few minutes when I talk about how Janet Reno's politicos allowed Charlie Trie a major opportunity to destroy evidence. They let Charlie Trie destroy evidence when they refused to authorize a search warrant, even though they had evidence that his employees were destroying documents.

In addition, the Department went through legal contortions to avoid moving forward on investigating those at the highest levels. Again, here is what La Bella actually said in his memo: ‘The contortions’  -- listen to this - ‘The contortions that the Department has gone through to avoid investigating these allegations are apparent.’ So he is saying the Justice Department went through contortions to avoid the law and avoid investigating.

As I said before, I am deeply troubled by the use of the double standard with which the political colleagues of the Attorney General are getting the benefit of more lenient investigations. Let's not beat around the bush here. Taken as a whole, these are allegations of corruption. When you fail to investigate members of your own political party, or when you apply different standards to administration officials than to other citizens, and when you go through contortions, as Mr.  La Bella said, to avoid investigating members of your party, then you are behaving corruptly. And I say that of the Attorney General. And that is why I have called for her resignation in the past.

La Bella and Freeh concluded that an independent counsel was necessary, before our committee. In return, Attorney General Reno's political staff overruled and belittled them, and they continue to belittle Mr. Freeh to this day.

Even though all agreed that he was the most qualified candidate, Chuck La Bella, who was the task force chief, was even denied the U.S. attorney position in San  Diego. Janet Reno overruled Freeh and La Bella and continued giving preferential treatment to her political allies. He was in line to be the U.S. attorney in San  Diego, and because he wrote that memo, and because he testified before our committee, they passed over him to a subordinate and gave them the U.S. attorney position. That is the kind of threat that they hold over people's heads. If you don't go along, you won't get what you are entitled to.

Although Washington is a town where the President debates the meaning of the word "is," where I come from, failure to apply the law evenhandedly and giving your political allies special treatment is corruption.

Fourth, speaking of corruption, over a year ago, we gave information to the Justice Department about a friend of the Attorney General's. This information alleges that the Attorney General's friend illegally obtained sensitive classified information from the Justice Department.

According to the information received by the committee, this friend of the Attorney General even suggested paying money to a Justice Department employee who helped obtain some of the illegal information. One document we have says that the person  the author talked to confirmed that Steel Hector was hired due to the relationship with the Attorney General. Steel Hector is a big Miami law firm where the Attorney General once worked.

The memo goes on to point out that Reno and the sister of the lawyer hired are good friends. Other documents indicate that the Department changed the policy related to release of information so that this person could help her client. This policy change, according to one memo obtained by the committee, was made personally by the Attorney General. Still another document talks about a confidential and reliable source within the Justice Department, and still another memo obtained by the committee states that the confidential source within the Department would not come forward publicly due to her pension that may be at risk if she was exposed. She added an offer that may have been made as to severance pay by the client if that resulted. Then here is the lawyer who is the friend of the Attorney General.

Janet Reno has steadfastly refused to investigate her friend. Again, I believe, this is corruption.

Fifth, on a related note, Janet Reno's political appointees dropped the ball completely when it came to prosecuting a Democratic fund-raiser who raised illegal campaign money in Venezuela. To make matters worse, her political appointees have interfered with our investigation of this matter.

Last winter, we asked the Justice Department to provide information for this investigation on DEA policies relating to computer access. For 6 months -- 6 months -- a Justice Department official refused to provide this information claiming the DEA would not provide it to him. Just 2 days ago, we found out that the DEA had never been informed that the committee wanted this information. As soon as the DEA found out about the committee's request, they worked to give us an answer, but in the meantime the Justice Department kept the committee from finding out critical information for 6 months.

Is it a coincidence that this information relates to our investigation of a Democratic fund-raiser from Miami? And I want to tell you, regarding this campaign money in Venezuela, the district attorney in New York, a Democrat, contacted the Justice Department and thought that this should be investigated, this man should be prosecuted, and there should be a complete and thorough investigation of this after Mr. Morganthau contacted the Justice Department, the department let the statute run out on that so that they couldn't pursue it.

Sixth, let's talk about the Department's handling of the Charlie Trie investigation. Campaign task force investigators knew that Trie's bookkeeper was destroying documents relating to Trie. The FBI saw people that worked for Trie destroying documents when he was under investigation. The FBI asked the Justice Department for a search warrant. FBI agents were even sent to Little Rock to execute the search warrant, but Janet Reno's hand-picked political advisors turned down the search warrant request, even though the Department knew documents were being destroyed.

Months went by before the search took place, and I just wonder if the Attorney General is proud of the head start that she gave Mr. Trie, because it gave him and his colleagues a lot of time to destroy very valuable documents that were relevant to the investigation. It is hard to know sometimes whose interest Attorney General Reno is really representing.

It is impossible to leave out the slap on the wrist that the Justice Department has agreed to give both Charlie Trie and John Huang. The Department has promised them no prison time at all: maybe some community service time, but no prison time. The Justice Department even promised to give John Huang back his voting rights.

When U.S. attorneys outside of Washington, D.C. have prosecuted conduit contributors recently, they have managed to get prison time or at the very least home incarceration. Why the kid-gloves treatment for Presidential friends like Mr.  Huang and Mr. Trie?

And Mr. Huang and Mr. Trie were involved in so many of the conduit contributions that we are aware of. Much of that money that came to the Democrat National Committee was returned had John Huang's name all over it. Charlie Trie was the solicitor. Yet they were given nothing but community service time while people who did a lot less were prosecuted.

Eighth, I also wonder what happened to the Attorney General's promised investigation of leaks within the Department. I have yet to hear her condemn her employees who leaked material damaging to the campaign finance investigation. I intend to ask for all records relating to these so-called investigations.

When the White House accused Independent Counsel Starr of leaks, the Justice Department went to work investigating him vigorously. When the Attorney General's political people run interference for the Administration, the Department is noticeably silent. This Justice Department investigates if there is a political benefit, but it is silent when real crimes have been committed.

Ninth, turning to national security, it was the Attorney General's political staff who reviewed search warrant requests for records at Los Alamos, where all of our nuclear secrets were given to the Communist Chinese. It appears that her political people weren't really all that concerned with national security. The FBI tried to get permission for wiretaps on Wen Ho Lee three times. He is the major suspect of the espionage. They wanted to find out if he was passing information to the Communist Chinese that would endanger the security of every man, woman and child in this country. The FBI was turned down not once, but three times on that search warrant and wiretap. To my knowledge, that is the first time in history where espionage has been alleged and the Justice Department has denied the FBI search warrants on wiretaps.

Tenth, one of the greatest hurdles facing the Committee is the routine failure by the Department to produce documents in a timely manner. Earlier I mentioned a specific example involving DEA documents. The excuses are endless. And the Department hides behind legally unsupportable readings of the Federal Rules of Criminal Procedure. At all times the Department has behaved as though it was defense counsel for the President of the United States and not a servant of the Constitution and the American people.

Eleventh, when law and politics collide, the political appointees at the Justice Department seem to ignore the law. Take for instance an anecdote from the recent Bob Woodward book. In May of 1996, White House counsel Jack Quinn was voted in contempt of Congress by my Committee for a failure to turn over subpoenaed documents. This is what Mr. Woodward says in his book: ‘Quinn was confident he wouldn't be sent to jail if we held him in contempt. Lawyers in the Justice Department had assured him they would not prosecute, even if the full House of Representatives cited him for contempt.’ That is collusion with the White House.

How many layers of corruption does this statement reveal? First, Justice Department lawyers decided they would simply ignore the law, that they would do a favor for the President's lawyer. Then they told Jack Quinn what they had already decided. I will bet that there are a lot of criminal defendants and defense attorneys who would like that sort of help from the Justice Department.

Twelfth, in August of 1998, Committee investigators interviewed Jack Ho. Jack Ho helped one of Charlie Trie's associates funnel $25,000 in foreign money to the DNC.

In the course of interviewing Ho, Committee staff learned that Ho had never been contacted by the Justice Department. After the Committee informed the Justice Department of Ho's existence, the Department scrambled to interview him.

Mr. Ho later told the committee that in the course of his Justice Department interview, investigators told him that he did not have to cooperate with Congress and our Committee.

Not only does the Justice Department obstruct us, the Attorney General's people have gone out of their way to tell others not to cooperate with us.

Thirteenth, when we asked to talk to lawyers at the Department of Justice who could shed some light on why the Attorney General's advisors decided to let the statute of limitations expire on Florida fund-raiser Charles Intriago, we were given a stiff arm. Five years ago, when Democrat Chairman Dingell wanted to talk to the same types of lawyers, he was given full access. Once again, just like the flip-flop over supporting and then opposing the independent counsel statute and the use of different standards for top White House officials, I wonder why the Attorney General makes decisions to benefit Democrats and changes her policies or mind when she is investigating Democrats.

Janet Reno has run the most politicized Justice Department since the Teapot Dome scandal of the 1920s. This Department, in my opinion, might even be worse. The legacy she will leave is one of public cynicism and professional frustration. There have been times that even the FBI hasn't been able to trust the Attorney General's political staff, and I submit to you that may be why you read what you read in the Washington Post this morning.

I, for one, think there should be a major housecleaning and that someone of the stature of FBI Director Freeh or Mr.  La Bella, both are men of stature, should be put in charge of the Department to restore the integrity that has been lost over the last 6 years. And for me, it couldn't happen a minute too soon.

Thank you, Mr.  Chairman.

Mr. Linder. I thank the gentleman.

[The statement of Mr. Burton follows:]

******** INSERT 2-1 ********

Mr. Linder. It is my understanding that Mr. Kanjorski has time concerns, and Mr. Hyde, with his typical grace, has agreed to sit back and let him take the next spot.

Mr. Hyde. He may even have my seat.

Mr. Kanjorski. Thank you very much, Mr. Hyde.

Mr. Linder. Thank you, Mr. Hyde.



Mr. Kanjorski. Thank you, Mr. Chairman, and members of the committee. I am pleased to respond to the request of the Chairman to testify on what I was led to understand was cooperation, comity, and confrontation in the nature of oversight of the executive branch. Having sat through some of the last testimony, I think we could strike at least two of those words.

Mr. Chairman, I have had the occasion over the 15 years of my service in Congress to observe oversight operations of the various committees of the House. First, may I say, by definition, clearly the 106th Congress has been the most tortuous, probably for several reasons that I think I can imagine, and I imagine the full committee can imagine. We have now elevated ourselves into a contest in political advantage to such an extent that we have reached out and used every arm of government and every arm of our institution, and probably are, in some instances willing to prostitute the Constitution to which we took an oath of office.

I think that is unfortunate. I do not hang that on the Majority or the Minority singularly. It probably is a tit for tat. As a matter of fact, last week, traveling across America, I had the occasion to spend some time deliberating, and it struck me that in most instances in the past, the Congress has acted as a representative of the people and forged high public policy. We hold most things that we do in the consideration of what would be best in the nature of public policy.

Today I daresay that regardless of what proposition is put forth by either side of the aisle, the other side of the aisle immediately says, ‘no’, in response, and puts a contrary position in place. A position that is sometimes not even consistent with their own basic philosophy or ideology is constructed simply as a reactive step in this high emotional climate in which we find ourselves.

It seems to me that the important thing is to see how we can step back and do the people's business, and quite frankly, I want to take 2 minutes to respond to the prior testimony of Mr. Burton.

I have had the occasion to serve on Mr. Burton's committee through the entire 105th Congress and 106th Congress. I have got to tell you that I have never before then experienced a determination by the Majority or the Chairman of that committee to arrive at a conclusion and then attempt to find the facts. It is rather astounding, to tell you the truth. I understand his frustration. He did not find the facts. He did not get to the ultimate goal that he wanted to attain, and it frustrated him greatly. It also destroyed the comity and the cooperation of that committee to a large extent, and, frankly, at this point I am not sure that the oversight committee of the House of Representatives, as presently constituted, can really carry on any oversight at all with any faith on either side of the aisle that we are pursuing a public policy end for the good of the people, as opposed to the benefit of political partisanship.

I think that is very unfortunate, and in light of that I looked back and I tried to come up with some key rules for oversight. I found that a good, former colleague of ours, Dennis Eckart of Ohio, had four rules that he tried to apply, and the rules were very simple.

One, do your homework and be properly prepared knowing all of the facts. Before we charge a committee to make an investigation or ride off into a challenge, we should make ourselves aware of all of the facts available.

Secondly, the facts should determine the agenda. One cannot let the political agenda drive the facts. Clearly, rule number two was the most grievously violated rule in the campaign finance investigation. There was a determination to fit those facts into a political agenda, regardless of what the facts indicated.

Thirdly, carefully guard the integrity and the credibility of the investigation. A congressional investigation may be a political event, but it cannot be partisan. I think anyone, as impartial as we could all attempt to be, or as objective as we could attempt to be, would have to say that clearly an investigation as carried on by the oversight committee over the last year has been probably as partisan as any investigation we have ever seen. Partisanship colored the entire investigation, lost the cooperation of the Minority, and, quite frankly, I think, in some instances, it embarrassed some of the members of the Majority.

Four, respect the process and participants. Keep in mind that when all is said and done, the public confidence and credibility of your report is directly related to the perception that everyone had their fair day in the hearing room. That was so clearly not done. There was a refusal to allow witnesses that would have established facts that were being chased down that did not exist. There was a misconstruction of what facts were put out on the table or narrowly channeling those facts to allow the drawing of conclusions that were not warranted.

It was an unfortunate experience. But from it, I think I have learned one fundamental lesson. Never will I sit on a committee of the House of Representatives and vote the subpoena power to a Chairman alone without a vote of the committee. I saw that happen in many instances causing grave damage to private American citizens. A Chinese American professor at Georgetown University had his entire life disrupted because the committee was so eager to issue a subpoena. They did not find out it was the right name and the wrong person, and it really caused unusual disturbance in the gentleman's life.

Exercising probably the most extraordinary power of government, to subpoena, where we cast aside all protections of individuals and subject them to the full might of this great government and this great Congress, and, then, not to take all the precautions necessary to protect their rights and limit their exposures, I think, would contrast some hearings that I have had. I do not, however, want necessarily to make that comparison.

All I will say is that it strikes me that the committee that I am talking about, and the investigation that Mr. Burton has just testified to, ultimately issued 758 subpoenas, 684 for documents and 74 for witnesses. We obtained more than a million and a half pages of documents from the executive branch and other sources. I was not certain that there were that many people down there who had time to write, but apparently they filed  a million and a half pages, and they gave them to this committee. I can tell you I do not think there was anybody on that committee that had enough time to read them.

So, what we did was cause great exacerbation in pursuit of the goal of making it appear that this administration, or this Justice Department, was engaged in some scandal or corrupt activity when, in fact, I am not certain what the legislative purpose of the investigation ultimately was. No legislation, a recommendation for campaign finance reform, has come out of it. No effort was undertaken in the beginning to define what the intention of the committee was. The investigations that were carried out by our committee were rather superficial and not professionally performed. In the meantime, there were other properly and legally constituted structures and institutions of this government that were carrying on for prosecution purposes these very investigations.

Ultimately, it was my conclusion that those of us who served, whether in the Majority or the Minority on that committee, were embarrassed for our service. We appeared to the American people to be zealots, not possessed of all the facts and information, and certainly not sensitive to the rights and the responsibilities of the witnesses and the people being investigated, and to the processes of the House of Representatives. I think this institution suffered greatly as a result.

On that basis, I would recommend this committee seriously look into the reforming of rule 11 of the House in regard to the issuance of subpoenas, and only under a vote of the entire House of Representatives ever empower a chairman again to issue subpoenas solely on his own power, if essential. To my own knowledge, over the last 15 years I have served here, I have never seen a real need for that.

I think this all came about because politics was a driving force. I have sat here for the last 6 years in Congress and watched something start out called Whitewater that possessed the attention of the Banking Committee for months. Then, when the potato did not seem to have any more heat in it, and it could not be tossed around, that closed down with a whimper and nothing came of it. And then we moved over to the oversight committee. There was Filegate, and nothing ever came of Filegate. There was Travelgate, and nothing ever came of Travelgate. Then there was a campaign finance investigation, and nothing ever came of campaign finance reform. We did have a special counsel that discovered a grave indiscretion of the President of the United States involving his personal life, and that did ultimately get resolved, but it had nothing to do with the official duties of the President, nor any corrupt act of an Attorney General or any Cabinet officer of the President of this United States.

I do not like to compare one administration to the other, because I do not think that is our role. But anyone to sit here before this committee of Congress and assert that this administration or this Justice Department is the most corrupt that ever existed, or comparing it to Teapot Dome, only speaks to the lack of historical perspective on the part of the witness. Anyone that knows Janet Reno may disagree with her judgments, but I do not think they have any right to attack her integrity or disagree with her integrity. Even I, on occasion, have taken exception to some of her judgments.

As a result of the successful prosecutions, none, to my knowledge, out of Whitewater, Filegate, Travelgate or campaign finance reform have moved into the Office of the President nor anything directly related to the President or Vice President of the United States, or any of their immediate appointees, and particularly nothing touching on their official function. These are all peripheral issues. Some people were caught making bad mortgages that were friends of the President in Arkansas, but they had no direct relationship to him and were really not the objects, nor should they ultimately have been the objects, of the investigation.

But quite frankly, we have gone through 6-1/2

years of tortuous investigations and restrictions on the Office of the President. I think that this disturbing element will result in continuing future activities in politics in the United States. 6-1/2 years: it is almost like the insane man who has been examined by a psychiatrist and determined to be sane. He is about the only one of us that can assert his sanity. This administration, having been so thoroughly investigated for 6-1/2 years, can literally represent that it is one of the least corrupt administrations in the history of the United States, not the most.

I know, however, the negative perception will not change because people have gathered and the words "scandal" and "corruption" are so willingly used by Mr. Burton. I respect the fact that my good friend Dan is not a lawyer. But, he certainly does jump off to conclusions without facts and without logical analysis to justify those conclusions. I would just temper him on that, not that you have to be a lawyer to be a chairman of this committee, but I think we should all be cautious before we label an American citizen or an official of this government as having committed a crime or attacking their personal integrity unless we have absolutely the facts sufficient to cause a conviction on that charge. I do not think those facts exist, and if they do exist, the Chairman has not brought them out or forwarded them on to any proper institution to proceed with the legal processes that our laws allow.

Finally, Mr. Chairman, I would like to say that I think there is a role for oversight. I think it is one of our biggest roles. I think the lack of good oversight is one of the greatest failings of this Congress. We always want to jump on the opportunity to pass a law to solve all problems, but few of us are willing to do the detailed and deep work, and to do the study and the analysis of how laws are acting and how they are being carried out. I think it would be very important, and it is very important, for this committee to step back for a moment and say, let us have some cooperation, some comity, and let us exercise proper congressional oversight of the executive branch of government and help make this government work more efficiently and more effectively, not for the Republicans, not for the Democrats, but for the people we represent, the American people. Thank you.

Mr. Linder. Thank you, Mr. Kanjorski.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Linder. I understand you have some time constraints. Would you respond to some written questions for us?

Mr. Kanjorski. Absolutely, Mr. Chairman.

Mr. Linder. Thank you very much.

[The information follows:]

******** COMMITTEE INSERT ********

Mr. Linder. Mr. Hyde.

Mr. Burton. Mr. Chairman, while Mr. Hyde is coming up, during the question and answer period, may I make some responses?

Mr. Linder. I don't think we need to debate this. Let's try and move forward on the rule issues.

Mr. Burton. Okay.

Mr. Hyde. May I proceed?

Mr. Linder. Yes.


Mr. Hyde. Thank you very much, Mr. Chairman. It has been a fascinating morning. I think it has been an interesting morning.

Very briefly, Mr. Kanjorski has some very salient points. You ought to let the facts drive investigations, but how do you get the facts? If you get stonewalled, stonewalling isn't so bad. Then you can find a way to dig under it or go around it, but it is when they aggressively obstruct that it becomes even tougher. So getting the facts is the predicate to an investigation, I agree, but trying to get the facts out of this administration is some trick.

Secondly, I heard Mr. Kanjorski talk about the pursuit of the President on his -- some private conduct. Judge Susan Webber Wright did not find him in contempt on any private conduct. That was overt conduct. We did not proceed against him for any private conduct, but for perjury, obstruction of justice, and those were overt felonies, not private conduct. That is the ongoing spin, and it still is spinning, but it isn't so.

I will eschew my preliminary remarks. We all know how important oversight is. Actually, it is an important function of Congress. We cannot legislate unless we do it based on information. Again, Mr. Kanjorski is quite correct. We need information, and if we can't get it from the agencies who possess it, we are frustrated, we cannot do our job. So it is very important.

Now, it is my opinion, and I have been here a few years, that the Department of Justice doesn't view congressional oversight with that benign a view. On the contrary, they have made a regular practice of delaying, ignoring or rejecting legitimate congressional requests for information. I experienced 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, and despite repeated requests for follow-up and demands for the information, the Department took more than 5 months to even respond to some of our questions. Most of these responses were inadequate and failed to answer the questions posed.

Now, the Department has been increasingly aggressive in lobbying against legislation that it opposes. I believe 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 and State appropriations bill with a provision that would allow any citizen, any citizen, who was criminally prosecuted but found innocent to recover attorney's fees where the judge determined that the government acted frivolously, vexatiously or in bad faith. That is 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, the whole bill, if my provision were a part of it. That struck me as odd. I can understand why a Federal prosecutor who may have acted unscrupulously would oppose the provision, but how could the Department, this 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 didn't just oppose it, they pulled out all the stops. Deputy Attorney General Eric Holder called the provision ‘drastic legislation’ and claimed that ‘people like John Gotti, John Hinckley and John DeLorean could wind up with big taxpayer checks.’ He went on to say it will handcuff prosecutors and 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 as we know it. Nonetheless, in November of 1997, the House passed the provision by a bipartisan vote of 340 to 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 memo to all 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. The last provision recently passed in the House by a vote of 375 to 48, but we face an uphill battle in the Senate where the Department has focused its lobbying efforts. I think we all feel the Department should spend more time responding to requests for information and less time in active opposition to our legislation.

The Department has talked a great deal about how important congressional oversight is, but as you have heard today, that is all windup and no pitch. Even more disturbing, the Department of Justice seems to have become a model of noncompliance with congressional oversight. As some of the earlier testimony today indicated, in some cases the Department has stepped into disputes and recommended against compliance with congressional requests to other departments or agencies in the executive branch. Such aggressiveness and noncooperation could be interpreted as political or partisan, but I believe the problem is one of attitude and goes much deeper. The Department often acts as though it is above the law, especially where congressional oversight is concerned.

On many occasions, the Department quotes its internal policies and practices as reasons for not complying with legitimate oversight requests. They have defended their recalcitrance with tortured interpretations of rule 6(e) or even novel claims of government privileges. Each of the chairmen here today is familiar with the Department's often-stated claim that compliance with oversight requests would interfere with an ongoing criminal investigation. In many cases, there is nothing, there is no amount of accommodation the committee can propose to overcome that objection.

As you decide whether the Department has considered itself above congressional oversight, please don't take my word for it. I wouldn't expect that. Listen to what the Department itself has said.

Michael Shaheen, who headed the Department's Office of Professional Responsibility from its inception in 1993 to 1997, said, and I quote, "There is no other department that is viewed with comparable terror or fear because there is no other department that by itself can put you in jail or take your 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 an incredible statement. The man who is responsible for ensuring that the Department lawyers act ethically and responsibly is concluding the Department is just too powerful to be accountable to outsiders; that is, Congress and the courts. This wasn't a boast. It was made in good faith and with good intention, but that only makes it more incredible. The cold hard truth is this has become a way of thinking in the Department. In short, congressional requests, legitimate requests for information, are too often dismissed or ignored.

We in the House are held accountable every 2 years. That is one of the primary reasons we must take seriously our responsibility to oversee those who think they are not accountable.

One of the reasons I ran for Congress, one of the reasons I studied and practiced law to become a lawyer, was to try and remedy injustice wherever I could. Everyone is entitled to their due. Justice means not being cheated, not being defrauded, and it sure means not being pushed around.

I have come to learn some people do get pushed around, and even by their government. I was very late in coming to that realization, but I learned that people in government exercising enormous power are human beings, and, like everyone else, capable of error and capable certainly of arrogance. Power is the ultimate aphrodisiac, Henry Kissinger said. These people who exercise this power -- and when it is the government it is limitless -- are capable of hubris, they are capable of overreaching, and on very infrequent occasions they push people around. So when such injustice happens, it is doubly frustrating when citizens have no other place to turn. If the government, your last resort, is your oppressor, you have no remedy.

This is especially true of the Department of Justice, which can take your life, take your liberty, take your property. The Department of Justice employs more than 120,000 people and has an annual budget in excess of $18 billion. That is five times the budget for the entire Federal judiciary and more than seven times the amount appropriated for the Congress, both the House and the Senate. We appropriated that money. We have empowered the Department, and it is our responsibility to ensure the Department is accountable to the public. The same group we are responsible for and to, so are they. That accountability can only come through our oversight.

In closing, I want to say I strongly support the Department of Justice and its mission. I strongly support and admire and respect the thousands of employees who do their work and do it well and are underpaid and overworked. I deeply respect the work they do. That is why I feel so strongly about the Department complying with legitimate - legitimate - congressional requests. I am afraid when the Department loses its credibility with this Congress and the American people, as I am afraid the whole government is losing its credibility, we are in serious trouble.

I don't think we can be indifferent to this, and we mustn't let it continue, and I thank you.

Mr. Linder. Thank you, Mr. Hyde.

[The statement of Mr. Hyde follows:]

******** INSERT 2-2 ********

Mr. Linder. I just have a few questions from the panel, and then Mr. Frank will come and testify next.

Mr. Hyde, in Cobell v. Babbitt, the class action suit revolved around the Indian Trust Funds. Judge Lamberth noted that on many occasions he took the Department of Justice's word during the discussions, and at the end he said -- more shocking, he said, is that the Court's trust in the Justice Department was misplaced. They lied to him.

What is the remedy?

Mr. Hyde. The remedy is having people who run the Justice Department impose sanctions on any one of their employees who lies, especially to a Federal judge in a court proceeding. That ought to be beyond toleration. The Attorney General ought to act on it promptly.

If the Attorney General refuses to act on something like that, that is something, I think, that would call for an intense discussion between the Judiciary and Appropriations Committee and the Department of Justice

Mr. Linder. Mr. Hoekstra, you on a couple of occasions needed to come to get special rules provided for your investigation.

Mr. Hoekstra. That is right

Mr. Linder. Is there anything that you would like to suggest might be changed in the rules so that you don't have to come back to Rules Committee, just complete the investigation?

Mr. Hoekstra. Well, the one that I mentioned in the testimony was that the subcommittee  -- or that committee chairmen would have the deposition subpoena authority in the rules at the beginning of the year. We found, very much to the credit of the Rules Committee and the House, that as we did our investigation into the Teamsters, that prior to getting the special rules in place and getting them approved by the House, we had to build up a track record of why they were necessary.

Well, you know, you start an investigation, a special investigation, you have to hire staff, you have to get the funds, you begin the work, and then to build the track record means that you are going through a 3- to 6-month process before you can actually create the compelling case for why those rules were necessary.

And I believe that those are rules that you can give  -- that should be given immediately if you expect an oversight subcommittee to be effective.

The other rule that I think that the Rules Committee should take a look at is the rule that  -- or the process where if someone is held in contempt of Congress, the Senate, I believe, has a process in place where the Senate then will take that through the courts. The House will rely on the Justice Department to put that through the courts or to follow up on our contempt citation. I think the House ought to seriously consider taking a look at the Senate provision and seeing if that is a more appropriate way of doing it. If we believe that someone is actually in contempt of the House, we should take the responsibility for then moving that through the courts and not moving it somewhere else into the executive branch in the hope that they agree with us and that they will aggressively pursue it.

So I think those are two changes that we should take a look at

Mr. Linder. Mr. Burton, I think you also had problems with rules changes in your investigation; did you not?

Mr. Burton. Well, we asked for deposition authority, and we were granted that. I think deposition authority is extremely important when you are conducting any kind of investigation. I am not so sure that there shouldn't be a rules change that allows any committee that is exercising oversight to do the same thing.

May I just say one more thing real quickly?

Mr. Linder. Sure.

Mr. Burton. I don't want to get into a discussion or debate, but the statement I made is based upon bank records and facts, and instead of attacking what I have said, it inevitably comes back to an attack on me and my credibility as chairman. And that does bother me.

One of the reasons that we have not been able to complete our investigation is we have had 121 people, which is unparalleled in American history, take the Fifth Amendment or flee the country. Cases also have been held open at the Justice Department, I believe, that should have been closed, but by remaining open, they have precluded the possibility of bringing these people before the Committee because they can still exercise their Fifth Amendment privilege. If the Justice Department would close those cases, we believe we could force them to come and testify, but unfortunately the Justice Department is holding those cases open ad infinitum, and we can't get to those people. That is why I feel so frustrated, and that is why I made the statements that I did today.

Thank you, Mr. Chairman.

Mr. Linder. Mr. Young, some observed that while the Justice Department refuses to share information with the Congress, some of that very information winds up on the front pages of the paper. And I believe The Washington Post editorial had some of that information relating to a Resources Committee investigation fairly recently. What does that do to your investigation?

Mr. Young. Well, it destroys an investigation, and I have to say one thing. I will say this Justice Department, without any reservation, I think  -- I will say it not as  -- I have been here longer than Mr. Kanjorski has been. I have been here 27 years. I have worked with six administrations, and this is probably the worst Justice Department in responding to the Congress in the responsibility of oversight. But saying that, I agree with Mr. Hoekstra. I think we have to get outside of the Justice Department when it comes to pursuing subpoenaing witnesses. I don't know whether we could do it through the courts, but somehow that has to happen because what is happening to us, we subpoenaed an individual. They claimed that it -- this was a line attorney within the Justice Department, and she would not be allowed to appear before the committee. We had the subpoena. They would not allow her to appear.

It was shown that, in fact, they falsely identified her, and we did have her before the committee, and she did give her testimony.

But I will tell you I do believe there has been a lot of leaks out of this Department that have tried to destroy any type of investigation and get to the bottom of the problem.

And I will also say that, as I say, under all the administrations, the use of regulatory law or executive order and the people involved establish an agenda that goes beyond their role, which is really the role of the Congress, is unparalleled. This has been one of the most amazing things I have ever seen in my life.

So I would like to suggest, as we change this, and you can say all you want, oversight is our responsibility to make sure the agency which we have responsibility to oversee operates lawfully, legally and correctly for the American people.

I don't believe this has happened. I think the Interior Department is probably in the worst shape it has ever been in. They have misused their powers. They have misused the land, the trust funds, for instance; the one I am really interested in. Mr. Babbitt's involvement in that, it is a criminal act.

Now, I will say we are going to continue to pursue it. We are going to continue to do what we have to do. It is a very difficult row to hoe because the Justice Department, frankly, doesn't want it to happen. And they don't care about justice. They care about protecting their party.

I have lived through John Dingell. He is my dear friend. He, when they are  -- your party was in power, they subpoenaed people, they went  -- the Justice Department agreed with them. They never stonewalled them even with George Bush and Jerry Ford and Richard Nixon, and Jimmy Carter. This administration is the one that stonewalls, and that is not justice because it is affects the people which I work with and represent. I am not picking on individuals in the private sector. I am picking on people that have done illegal things within the Department of Interior

Mr. Linder. Mr. Hyde, some time ago, the Georgia Legislature passed a law saying that agencies of government using taxpayers' funds may not lobby specific bills. What do you think of that idea?

Mr. Hyde. Well, that is a concern I have. I think the Justice Department has a point of view that they are entitled to express. We need to know where the Department stands on this or that legislation, but when they actively lobby, I think they have crossed a line.

I don't think government agencies should lobby. They should provide information. I admit that is a fine line, but I think that is appropriate.

Mr. Linder. Thank you.

Chairman Dreier.

Mr. Dreier. Thank you very much, Mr. Chairman.

Thank you all very much for your thoughtful remarks and for spending the time and effort that you put into this.

I wanted to follow on just one point that Don raised. And I suppose I should probably raise this with you, Henry, and that is apparently both Janet Reno and Webb Hubbell in the early part of their administration, when the Democrats were in control of this place, were extraordinarily accommodating in dealing with this issue, which I believe is a priority, programmatic and policy oversight, and I have underscored that. I mean, that is one of the things that Speaker Hastert and I discussed at the outset. We had to pursue programmatic and policy oversight. So when it came to that, there was an environmental crimes program, and it was entitled Damaging Disarray, and both Webb Hubbell and Janet Reno were very, very warm in extending invitations to have the legislative branch look closely at that.

To what do you attribute the fact that there has been, quite frankly, based on everything I have read, quite a bit of recalcitrance in allowing for the legislative branch to raise similar questions?

Mr. Hyde. I just think, regardless of the administration, there is always going to be a tension between an agency, a department of government, and Congress. We are viewed as an annoyance, unprofessional, headline-hunting. We just are not exactly welcomed into the bosom of any governmental agency

Mr. Dreier. The concern I have is that Don was indicating that in, I guess, the first 2 years of the administration, when we saw the President's party controlling the Congress, that tension was not nearly as great as it has been

Mr. Hyde. Well, I think there was a symbiosis between the Congress and the White House. They were on the same page of the same hymn book. When it becomes adversarial, then people's backs get up, and there is a resistance.

I think it is human. I think it is natural. I think it has gotten out of hand, too. Nobody thinks everyone is moving from base motives. I know in our long and much lamented impeachment inquiry, I did my level best, I wracked my brain to try and be fair, but we were attacked and criticized, and the polarization was total. It was harmful, and I think it still lingers, unfortunately.

Mr. Young. David, I would just like to  -- personally, my opinion, and Henry is absolutely correct, when we took control, this administration decided to do things without the concurrence of Congress. They did it through executive order. They set policy that was done by regulatory action, and circumventing the Congress, and we believe that many times it was done illegally, that that is the role of the Congress.

I think there is collusion with the Justice Department; that they have decided, all right, if we do this, what will be the result? The result will be zero because the Justice Department -- although something illegally has occurred, the Justice Department will not pursue the illegality of that action, knowing full well that over a period of time their term is over. On this  -- I am not being partisan. It just disturbs me because when they do that, they are circumventing our due process.

I mean, what we have been trying to do, we did it with Escalante, we are doing with Warner Creek -- show the Department of Interior, through the influence of the White House directly, has circumvented the constitutional authority of this Congress. Now, that is against the law, and they have decided to make this an issue that when they are out of office, it will be too late to do anything about it, and they will have achieved their goals outside the legislative process.

I think they have done this in collusion. I think this is a sit-down, war-room action that they have put together. And I know Dan's frustration. This is not about Democrats and Republicans. This is about a policy being set by the executive branch which is only within the authority of the Congress

Mr. Dreier. I think it is a very important point to make. I mean, I think that the tension to which Henry referred is something the framers really wanted in this struggle between the executive and legislative branches. So I don't think there is anything particularly wrong about that.

One of the questions that I have to follow up on that, though, is that, I mean, is it true that we have seen really a shift for the use of executive privilege really from the Department of Justice, in fact, to the White House?

Mr. Hyde. Did you say executive privilege?

Mr. Dreier. Yes.

Mr. Hyde. Well.

Mr. Linder. Executive orders?

Mr. Dreier. Executive privilege, really.

Mr. Hyde. Executive privilege was claimed by several people in several circumstances where I think it was very important. In fact, that was -- we considered that as an abuse of office, but we decided not to make it a count in our Articles of Impeachment. But, yes, I think executive privilege is a narrow doctrine and a good one and that it was abused.

Mr. Dreier. Thank you all very much. Thank you, Mr. Chairman.

Mr. Linder. Mr. Hall.

Mr. Hall. Thank you, Mr. Chairman. Just to start off, I want to say to Mr. Barton, who was here a little while ago, who referred to Mr. Franklin Haney. Mr. Barton said that Mr. Haney was charged with certain campaign violations, but he failed to say that Mr. Haney was acquitted. I think if we are going to say that somebody is challenged and charged, that we also ought to say that he is also acquitted.

Secondly, our own Rules of the House of Representatives are spelled out and they are pretty clear as to what we are supposed to do as far as oversight. It says that the general oversight responsibilities are to analyze, appraise, and evaluate the Federal laws, to assist in enacting new or additional legislation. We should look for changes or for additional legislation, or look at the organization and operations of Federal agencies.

And it goes on and on and on. I guess the problem that I have is that it seems so much of our investigations in the past few years have really been one-sided and haven’t been as much oversight as we really have the ability to direct.

All of you have talked about the tension that is between the administration and the legislature, and that is the way it is, that is the way it was set up. I think it is a good tension, because we have a good set of checks and balances in our government.

But I am concerned about the tension between members of the legislature, Republicans and Democrats, and that tension is something that -- it should be us investigating and having oversight against whatever administration is in power, Republican or Democrat, we shouldn't be against one another.

And I am so very concerned about partisanship costs of these investigations, the lack of bringing Democrats into the whole process. The Cox report was an exception. That was a good report. It was critical of the administration, it was critical of past administrations. We had Republicans and Democrats that joined to support it. It received a lot of good publicity. It was bipartisan in nature. There will be changes that come as a result of it. It is a good thing.

I am concerned about the tensions between the Republicans and Democrats in the Congress.

Mr. Hyde. May I just respond to this question?

Mr. Burton. I would like to as well. Do you want to go first?

Mr. Hyde. I just have something very short and simple, if not sweet to say. Our good friend Barney Frank, who I think is here  --

Mr. Linder. He stepped out.

Mr. Hyde. Did he? Well, he was quoted in The Washington Post this among, along with leader Gephardt, on the question of cooperation with us. And the Gephardt Doctrine apparently is not to cooperate so that we become a do-nothing Congress, and therefore it is easier for the Democrats to regain power and take over the Majority, which is the summa bonhomie, the highest good take power.

Mr. Frank made an amplifying comment that we don't have to legislate. Now, how would you suggest, Tony, that we react to that? How can we draw you guys out to make you want to cooperate with us and make you want to pass legislation that we might get some credit for? But you, too, tell us what you to do.

Mr. Hall. All right. I remember when the Democrats were in the Majority, I was Chairman of the Select Committee on Hunger. We didn't have legislative authority, but we had oversight authority. We looked over the Agriculture Department, AID, hunger programs, programs dealing with health and all kinds of programs dealing with poor people in our own country and overseas.

My committee was a very bipartisan committee. I was the first committee in those days to offer the Republicans at least one-third of the budget. We never had a disagreement in open. My co-chairman, or the Vice Chairman at the time was a fellow by the name of Bill Emerson, a good friend of all of us, who has passed away, a great man. We were very good friends, whenever we had a problem, we worked it out behind the scenes.

We never had a partisan problem. We passed many pieces of legislation as a result of our oversight. We analyzed laws affecting our foreign policy and agriculture programs. We worked it out. We were bi-partisan, we never had a fight, we passed laws. We analyzed.

And this committee, even though it is not in existence today, got more awards in the Congress than any other committee that I can remember in any Congress. We led with all the conscience of the Congress. And it is not because I was Chairman, it had to do with the relationship that was built up between Republicans and Democrats. And that is how we did that.

Mr. Linder. Will you yield on that?

Mr. Hall. I would be glad to yield.

Mr. Linder. What you are saying is that because the Minority members were willing to work with you and cooperate?

Mr. Hall. They were willing to work with us, but you have got to remember that the party in power then in the White House was Republican, and we worked together. That is the same kind of situation that we have today, except it is reverse: Republicans are in power in the Congress, Democrats control the White House.

What I am saying is my people back home, Republicans and Democrats, have come to me about these investigations and said, When are you people going to get together, when is the Republican Party going to stop appearing to look so vindictive and mean and spending all of this money? What are the results? Where are results coming from?

Mr. Burton. I recall as a young man when Howard Baker, during the Watergate hearing, said of the President, a member of his own political party: ‘What did he know, and when did he know it.’ We have never had that kind of response in our investigation from the Democrat minority. There appears to be a different attitude, and I wish it weren't so. I think you are a very good man, Tony. I have worked with you in the past. I have watched you. I have watched you work on hunger issues. But a lot of our colleagues are not as amenable to working together as you are.

Let us talk about the cost and duration, because I think it is a very important point. The White House blocked us for months and months and months from getting documents. The chief counsel of the President, Charles Ruff, came to my office and told me they were not going to claim executive privilege, and then later he said they were going to claim executive privilege.

He said they were going to give us all the documents that we wanted, and he didn't until I told him I was going to hold him in contempt of Congress. And then he said: ‘Okay, we are going to give you everything you want.’ He gave us 10 or 12 boxes of documents and said that was everything, and 4 months later, we got more boxes of documents.

Everything was being dragged out and dragged out and dragged out. I don't want to talk about the Lewinsky matter, but if you will recall in that particular case, the stonewalling by the White House that went on caused additional expense to the taxpayers of this country, because the White House was lying and withholding of information. That is the same thing we experienced in our investigation. If we had cooperation, that would never have occurred.

Now let me just say one more thing regarding the oversight and the problem we have had with the Attorney General and the Justice Department. Oversight would be minimized if we had cooperation with agencies: particularly the Justice Department. If they would work with us to have witnesses testify, we wouldn't have this problem. But we have had 121 people take the Fifth Amendment or flee the country. And they have kept cases open, I am confident well beyond when they knew they were going to be closed, simply to keep us from getting at those witnesses.

Now, when you have that kind of a problem, there is that tension within the Committee, and between the agency and the Committee. And that is the reason I think there is a lot of this acrimony. I would like to see it go away, but I don't think it is going to away until everybody starts really trying to work for proper administration of Justice and getting to the bottom of these things.

And, finally, I would like to sit down with you and show you bank records that show that the Democrat National Committee still has hundreds of thousands of dollars in contributions that should be returned. These were illegal conduit contributions that the DNC are still keeping and have not returned. And the DNC is not cooperating. And I can't get the Minority to work with us on that.

Mr. Hall. Dan, I am not on your committee, so I can't speak to these particular issues specifically.

Mr. Burton. Right.

Mr. Hall. But when I see you and I read about you in the paper and I hear about you in the committee hearings and I watch it, I don't get the impression there is anything that your committee, relative to working with Democrats -- are there two or three things that Republicans and Democrats have worked together on in the past, let us say, year?

Mr. Burton. Oh, sure; right now. We are working on a bill right now -- you were talking about campaign finance reform. I have got a bill that has Democrat co-sponsors that is going to make it a much more severe penalty for people to be involved in conduit contributions. I think everybody in both parties agree with that. Illegal campaign contributions coming through a conduit should be a felony. And there should be more civil penalties. This is a bipartisan bill.

Mr. Hall. Dan, you also, in my opinion, you represent me. I am part of the Congress, and you represent the constituency, you represent the country. When you are out in public, you are representing my wishes, too, of wanting to be able to do something for this country. And when you appear and look so tough and so vindictive towards an opposition party, you create a tension in this Congress and among the people out there that disgusts our constituents. And I don't want you to do that; you represent me too.

I want you to be the kind of person that is tough and fair, and I want you to do everything you can to reach out.

Mr. Burton. I don't want to get into a long dialogue   --

Mr. Linder. We are getting pretty far afield.

Mr. Burton. Let me just respond. I think this point should be made. If the administration of justice is being done properly, you will hear me praising. Today you heard me praise Louie Freeh and Chuck La Bella. I think they are two very fine men who did a good job. If I see an obstruction of justice by the Attorney General herself, I think it is incumbent upon me, as your representative and the representative of the people, to make sure that justice is administered properly and those who don't do it are taken to task. And if that is being vindictive, then so be it.

Mr. Young. I want to say one thing. Do you want to stop this? I don't have that problem, you know. I work pretty well with everybody, very successful in my committee. But I also remember how I was treated when I was in the Minority. I wasn't ever consulted, I was never worked with. And I have not yet had anybody on my side of the aisle say, yes, the Department of Interior is doing anything right; on the other side, I have not had anybody say it is doing anything wrong.

My job as the Chairman is to protect the people of the country when it comes to, I think, executive orders that go beyond the control of the Congress, of which you are part. If you really want to get serious about this, Mr. Chairman, you want to make it more healthy, shut that dumb TV off. And I say that in many respects. I mean, dead serious, that has caused -- I was here before -- it has caused us more animosity towards one another, because every morning we have these 1-minute speeches, and we throw a bomb this way and you throw a bomb this way. How can you work with people after you say you are no damn good? That is what I am saying.

Mr. Hall. We should put those 1-minutes at the end of the day.

Mr. Young. At the end of the day.

Mr. Linder. Tony and I have both signed that letter to Bill Archer.

Mr. Young. That way, people are gete to go. May I be excused?

Mr. Linder. Surely. Mr. Goss, do you have any questions?

Mr. Hastings. I don't want to ask.

Mr. Goss. Doc was previous to me.

Mr. Hastings. Don, I appreciate your testimony. You alluded several times about when you were asking for information from the Department about their longstanding practices, and others of you said the same thing.

I just wondered, two questions: First of all, what were some examples of the longstanding practices by which they wouldn't give you information, number one? And number two, when you were here in other administrations, did you experience the same, you know, the same excuses or same reasons?

Mr. Young. Well, actually, Mr. Hastings, everything we hear from them, when they say they can't respond to our inquiry, is to say that there is a criminal investigation. Well, I will be honest with you; I am not investigating anything that isn't criminal. But they use that as an excuse: We can't give you the information because there is a criminal investigation, and they just delay it and delay it and delay it.

And I, very frankly, sometimes find out that they are doing it to just to keep me from achieving my goal, and that is the primary, the people that have broken the law. And if I can trace that to the top man, I am going to do it. But I believe that a lot of these things that have occurred have no reason to occur other than stonewall, and that is my, you know, my real problem.

Mr. Hastings. The second part of that, then, is -- obviously you were in the Minority situation when we had other administrations in power, but did you experience the same thing, or did the committee in general experience those same  --

Mr. Young. No. The ones I can remember of the investigations, there was a total cooperation, I mentioned this with the George Bush, you know, all of the other ones, total cooperation. I will admit sometimes I wasn't informed of what was going on by the Chairman. He accuses me of the same thing right now. I try to do my best to inform him. But most of the investigations when I was in the Minority were not directed at the agencies, but more directed to private sector, and they used a lot of things, I think at that time, incorrectly. And some of it was correct; the use of subpoenas were done all the time.

But they did not investigate the agencies as much as I am doing, because again I am saying this administration has used the executive order so many times and regulatory law so many times in interpretation against the will of the Congress -- and that is our role; no agency should run rampant and not be held responsible by this Congress. If we don't do that job, then we are not doing what we must to uphold the Constitution.

The people can't do it. I mean, it has got to be us, and that is really what I am running into right now. And I want to continue this pursuit, and I do have to go.

Mr. Hastings. If others could respond. Pete.

Mr. Hoekstra. I just wanted to build on what Mr. Young has said. What is the impact of the Justice Department's taking that kind of behavior? As we went through the Teamsters, we heard it all over and over and over -- You can't talk to this person; we can't give you these records; we don't want you to have this person testify because there is a potential for litigation; there is an ongoing criminal investigation. A year and a half later, nothing has happened.

So what this now tells me is that either they didn't find anything or they are not prosecuting or whatever, but the next time we go through a similar case and the Justice Department comes back and says there is a potential for litigation or an ongoing investigation, that doesn't automatically stop our effort. We at that point as Chairmen have to make a decision as to whether we are going to honor their request or not.

What they are doing is, they are losing their credibility with us that there is actually an ongoing investigation that has any credibility that we should honor their request. So in the future, I am going to be much more questioning when they come to me and say, Pete, you can't do that, you are going to jeopardize an investigation. It is going to be kind of like we have been there, done that; and the last time you came to me with that and you raised that flag, you didn't do anything and you never delivered. I may just go ahead this time, because you don't have any credibility with me anymore, and I would rather move ahead with my investigation, because in the past, when you have slowed mine down, you have never delivered or followed up. That is the risk that they are running.

Mr. Hastings. Okay. Dan, you were, from body language, ready to respond.

Mr. Linder. Turn on your mike.

Mr. Burton. I won't belabor the point. I will just say ditto to what both my colleagues have just said. The Justice Department has stonewalled our Committee and 121 people have taken the Fifth. In the next few weeks there might be some evidence to the effect that shows that the Justice Department is deliberately keeping cases open so Congress cannot exercise its oversight responsibilities. And if that is the case, then I think that is definitely obstruction of justice, and they should be held accountable.

But there is no question, I think all of us have said the same thing, that the Justice Department hides behind 6(e) material, grand jury material. They hide behind investigations that are allegedly ongoing, and they keep us from doing our job.

Mr. Hastings. Thank you.

Mr. Linder. Mr. Sessions.

Mr. Sessions. Thank you, Chairman.

I have sat through the testimony this morning of not only Mr. Kanjorski, but also my colleague Mr. Hall, and I think very good points have been made on both sides.

Just to let Mr. Hall know, as a freshman I have sat in the very first meeting of Government Reform and Oversight with Mr. Burton, and from day one, day one, a decision was made to make personal attack personally Dan Burton, and this has continued today. And when someone is constantly personally attacked by the other side, that is an indication to me of an unwillingness to work together.

What I have heard today seems like a denial of history, we have been led to believe that there were not some 900 FBI files in the personal residence of the President and the First Lady. No wonder we have never been able to resolve that matter. No one will tell the truth.

No one when they raise their hands will admit to what they did. It is a mockery of Justice. We saw the President of the United States, in a sham explanation to the American people, openly lied. He calls it not telling the truth. It is a lie. The American people are sick and tired of people when they raise their hand, intentionally misleading and lying to people.

As a member of the Government Reform and Oversight Committee, day after day I was disappointed to see how the Department of Justice would encourage people not to participate with us. We had the director of the FBI and Mr. La Bella, Mr. Freeh and Mr. La Bella openly come to us and explain beyond a reasonable doubt not only their view of the law, but what thought process they had. The Attorney General showed up and would not discuss her thought process with us, what was the advice she received, and why this might not be pertinent.

One of the questions I have: Is it possible for us to develop a process that even the most sensitive information could be explained and discussed appropriately with full disclosure, openly and honestly, between the administration and the appropriate leadership either of the House of Representatives and the Senate or of committees?

I believe that as Chairman of the Intelligence Committee, Porter Goss should be privy to the most sensitive information that our country has. I believe that as Chairman of the Judiciary committee and the Ranking Member, that they should be privy to the most sensitive information of ongoing investigations and the thought processes that are going on in the Department of Justice. Yes, they should have an obligation not to disclose that information and, yes, it should be put in a way where they can provide information without allowing them to co-opt with the Attorney General.

But if we do not allow ourselves or have the ability to hear forthrightly, to gain the information, or if we are blocked from that information because someone who might be in an official capacity appears to have an upper hand because they are the upholder of the law, as though we would not be concerned about it, I think is a mistake.

I hope that what we are able to do today is to look very carefully at the instances that have been brought up by I think well-meaning, honest Members of Congress. Dan Burton, Mr. Hyde, and Mr. Hoekstra represent me also. But the integrity of this institution, the ability that we have to work through the most sensitive and difficult problems without being stonewalled and lied to and accused for political purposes of trying to find the truth should not be a casualty today.

I, like you, Mr. Hall, and my colleagues that are in this room, understand that if we cannot make this system work, that the American public will not trust us, and they will seek something else. This is simply an experiment; that is what constitutional law is all about, but it requires forthrightness on all sides, not just two sides, but three or four, if that is how big the triangle or the square might be.

And I believe that these hearings today have beyond any reasonable doubt proven that we have a problem, that we have a problem when honest, legitimate people are attempting to ask questions and political charades and innuendos are thrown at people. I don't admire it, and I don't like it.

And the day that a gentleman like Mr. Goss asks questions about our national security or Mr. Dicks, whether there be a Republican President or a Democrat President, and they cannot find out the truth and to appropriately make decisions, then I think that freedom has been jeopardized.

I hope that we can through this process work clearly and carefully so that we avoid problems in the future, rather than this being just another hearing that we disagree because we are on two different sides, because of some political mission that Republicans are on. I believe that the American public knows the truth and they want from us to get it. Thank you.

Mr. Linder. Thank you.

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Mr. Linder. Mr. Goss.

Mr. Goss. Thank you. I assure my friend from Texas that we do our best to stay on top of the oversight in the Intelligence Committee, and we do it on a bipartisan basis. I think Mr. Hall would agree and we have had a great deal of success, but I would admit to considerable frustration with the Department of Justice on investigations which I think they are taking advantage of in order to not discuss with us matters which I think are our within purview.

I can mention some active espionage cases that are ongoing, names that we would be aware of -- Chung, Huang, Hsia, Trie -- that I believe that there is active espionage involved in some matters that we need to know about, and it may be wrong, but I need to know about it.

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Mr. Sessions. Counterintelligence is a matter that has recently caught our attention in the Cox report. And the Cox report did work on a bipartisan basis and the results of the Cox committee, Cox-Dicks committee was unanimous, it was bipartisan, it was a pretty good report.

I will say, however, it was not an easy berth to get from the decision we made unanimously on a bipartisan basis to what we were able to tell the public. And I think part of that goes to the problems we are having disclosing information to the public, that is rightly to the public, because the administration, for one reason or another, is not of the same mind that the public should have all of that information, and that is a curious and serious problem.

I know this to be true. I know that in the

Clonin Avenue Detention Center a few years ago, there was a willful deceit of an oversight committee of Congress not to reveal the truth, but not only not to reveal the truth, but to conduct a charade to hide an activity that the Department had taken. It had to do with immigration and the question of the overloaded Clonin Detention, trying to deceive a congressional delegation.

Now, finally, a whistle was blown on that, and belatedly some action was taken. I know there were other matters that were taken that I had apologies from very high levels of members working in the Department of Justice for matteet timely, full, and accurate response. And the way it was handled was that members of the administration when confronted finally said, You know, we have looked into that and there is absolutely no reason that we owe you an apology.

So I know there have been troubles, and some of them I will put down to, well, there is an awful lot of water that goes over the dam in government business and people in responsible positions can't possibly know it all.

And the question I would address to the panel is this question that no matter how good the effort is at bipartisanship, loyal opposition as we have has operated in a democracy.

I would ask this question. I think we all understand in a political world there is sun shining and that we want to put our best foot forward, but I would ask the question: When does putting your best foot forward become willfully deceiving the American public with misinformation, disinformation or omission of information?

I don't know that we have made that decision or that standard. And I think that is the problem we have. I can well understand that somebody wants to tell me a piece of information that puts them in the best possible light, the best political consequences, but I cannot accept the fact that somebody will come out and try and hide information or mislead me when they are speaking from an official public position.

I wonder how  -- I will give a specific on that. I wonder how the President of the United States could come forward on March 19th, after all of the discussion about the Cox report and say, What security problem at Los Alamos? That is a hard question for me to understand.

Why would the President shake his finger and say to the American people this is what it is, when he probably knows this is what it isn't? I think that is a serious problem. And I think it flows down through our relations through several agencies.

My portfolio goes into several agencies, as you know. And I am concerned that we are getting in the position of habitually getting used to spin and hype and exaggeration and accepting it, and truth is a casualty. And I think that is totally unacceptable. I think it is demeaning to Americans, I think it is demeaning to the institutions that we represent, and I think it is demeaning to the people that we represent, and I think for that reason this is a useful hearing.

I don't want this hearing to be considered as a piling on. I am not speaking of it that way because I don't want to talk party partisan politics. I want to talk about the narrative truth. And I don't think there is anybody more senior or respected in this institution than Mr. Hyde, who has a position of responsibility, who has dealt across the board. And I would very much regard a judgment from you on if you can discern between what is allowable spin, putting your best foot forward, and what is going over the line?

Mr. Hyde. I thought long and hard about the generic problem we all confront today. If everybody was Tony Hall, this would be the smoothest operating Rolex you ever saw, because I know where Tony's heart is. If political power is the ultimate goal, not doing good for America, not walking down the stairs of the Capitol for the last time saying, I did some good, I made the community a little better, I pulled my weight -- but political power, if that is the ultimate goal, then whatever you do to attain that political power can't be too bad, including lying, including covering up.

And I am afraid political power is the ultimate goal of too many people rather than the notion that you came here to do some good. And I think that is the problem. People's goals are not as lofty or as idealistic as they should be, and the only thing we are getting out of it is cynicism, massive public cynicism. And this great experiment, this representative democracy is going to founder, because good people aren't going to want to serve in it.

That is my analysis of where we are, and where some of us are on two different tracks. Some of us would like to work, have to work -- nobody had to work with Democrats more than I did, because I needed a two-thirds vote in the Senate for removal. I couldn't get any Democrats, I could not get any Democrats. And I would have done contortions, I would have done one-finger pushups, I would have tried -- well, I thought about it.

But it just wasn't to be, because it was a struggle for power, it was to protect the administration and circle the wagons, and anybody who wants to bring this down is an enemy of the people. And that is what happened. Truth became the enemy. Anything to keep that power was okay, and that is wrong.

Mr. Linder. Porter, anything else?

Mr. Goss. No. What you are saying to me is this basically is an individual matter of honor, and I suspect that is right.

Mr. Hyde. Right. In the end, that is true.

Mr. Goss. Well, maybe that is the basis of the success of our democracy.

Mr. Hyde. And good leadership on both sides can help persuade people to act honorably.

Mr. Goss. I would agree with that.

Mr. Burton. Can I make one brief comment --

Mr. Goss. If the Chairman will allow.

Mr. Burton. -- In response to your question? I think the record shows, regarding Los Alamos, and you brought that particular case up in nuclear theft, that in late 1996 and possibly even 1995, Mr. Berger, head of the National Security Council, knew about the espionage. He had been informed about it, we know that from our investigation, and he advises the President on national security matters.

It is inconceivable to me that he would not have gone right into the Oval Office and said there is a problem at Los Alamos. But the President said up until just a short time ago, as far as he knew there was no espionage or threat to our security from nuclear theft.

Mr. Berger - who told the Cox committee that he didn't know about it at that time - said he had made a mistake, he made a misstatement, and that he did know about it in late 1996. Later it was said by the head of the Department of Energy, Mr. Richardson, that the President knew about this in early 1997.

Now, the credibility of the entire government is at stake when those misstatements are made, because they are perceived as out-and-out lies, and we are talking about national security.

The reason I am so upset, Tony, about a lot of things that are going on, is because I believe after our investigation for 2 years -- and I am not trying to be acrimonious or partisan now -- I believe that the Administration knew about the illegal campaign contributions coming in. Now I believe they knew at the same time there was espionage going on, and it bothers me this was going on and there apparently was nothing being done.

If campaign contributions are coming in from illegal foreign sources in China, and at the same time there is espionage, that is very troubling; and the American people have a right to be concerned. And I think we as members who are investigating these things have a right to be concerned as well.

Mr. Linder. Thank you all. You have been helpful with your testimony, and generous with your time. We are grateful. Thank you.

Mr. Hyde. Thank you for having these hearings.

Mr. Linder. Mr. Frank, thank you for your patience. It has been a long line, and we are happy to have you here.


Mr. Frank. Thank you, Mr. Chairman. I welcome the chance  --

Mr. Linder. Put your mike up.

Mr. Frank. What is that? I welcome the chance to address these subjects because as a member of both the Banking and Judiciary Committees, I have been a participant in many of these matters, and I don't recognize what I have been hearing.

I guess as I listened to this repetition of accusations disproven, I am reminded of the old saying in Washington: "Where there is smoke, there are politicians with a smoke machine." And I think we are in the midst of a big smoke machine.

I, for instance, heard the gentleman from Texas, when I came back in, talking about the FBI files being in the White House residence. Kenneth Starr, hardly partisan of the administration, announced after the election, conveniently, that there was nothing to link Bill Clinton to that whatsoever. In fact, I asked Mr. Starr at what point he decided that the President was exonerated from involvement with the FBI files. He said, well, there was never a moment at which we exonerated him because there was never a prior moment at which he was in any way implicated.

Many of these issues were in fact investigated, some of the things that have been talked about, by Kenneth Starr. And I think what you have here is some frustration that Kenneth Starr found, contrary to the views of some who have testified earlier, that Vincent Foster tragically killed himself, that he wasn't nefariously done away with in some fashion. That was a deeply held view of some responsible officials, and Kenneth Starr, among everybody else who investigated it, said no, he committed suicide.

Ken Starr said with regard to the FBI files in the Travel Office, there was no basis for any accusations against the President. In terms of congressional oversight, I was on the Banking Committee in 1994 when we had a hearing chaired by then-Chairman Gonzalez. The Republicans said that this was an inadequate hearing. And so when the Republicans took over, they had a new hearing, chaired by Mr. Leach, and went thoroughly into Whitewater. It was a very long investigation, and a week-long hearing. And do you know what that report concluded, Mr. Chairman? If you do, you are psychic, because there was no report.

The Banking Committee, under the Republicans in 1995, having used the fullest subpoena powers and everything else to investigate Whitewater and to try to prove something on the administration, followed the old principle, "If you have nothing bad to say, don't say anything," because this committee never filed a report.

What you have here is an understandable frustration and a failure to bring things up, and it wasn't because of stonewalling -- I don't know if Mr. Hyde is still here. I was somewhat surprised that he cited me and something I said as a an example of why he couldn't reach out to Democrats.

My recollection when he wanted to move the civil asset forfeiture bill was that he didn't think my attitude was much of an obstacle. My recollection was that we cooperated, perhaps he thought it wasn't cooperation, I certainly thought it was.

I do agree with regard to some of the fundamental issues involving the role of government, compromise is unlikely, and those genuine philosophical issues ought to be carried to the public. But I would be disappointed to have the record that we have in the Judiciary Committee and the intellectual property field and civil asset forfeiture, or a number of other areas, characterized as one of noncooperation. I can think of no case where I was asked to cooperate in a legislative issue where there were not fundamental ideological obstacles to an agreement, where cooperation didn't go forward.

And it is in that case that I want to just specifically address the Justice Department. Janet Reno in my experience is a woman of enormous integrity. She can sometimes be difficult for people to get along with. Indeed, it is ironic that she is probably not in the best of repute with some of people in the White House precisely because she has been unwillingly to accommodate them in every case. But the suggestion that she is involved in cover-ups or is obstructing Justice seems to me terribly unjustified.

And I do want to recall that in October of 1997, the House Judiciary Committee had an all-day hearing with Attorney General Reno, based on a letter that was sent -- this was the basis for impugning her integrity for failing to appoint an independent counsel. And it failed miserably, I think, to make the case.

Not surprising, for example, on page 12 of that letter, one of the suggestions was that because people from Paraguay had given campaign contributions when the White House denounced a potential military coup against the President of Paraguay, that that was a sign of political corruption. The notion that when an administration says an elected official, president, should not be thrown out by the military, that that is somehow corruption, did not rise to a serious level, and it wasn't treated seriously.

One of the arguments was when the President in 1996 declared -- this is in the letter, this is the basis on which Ms.  Reno's refusal to appoint independent counsel was challenged -- when the President in 1996 declared a substantial area in Utah to be a national monument, it was a very controversial. A Democratic Member of the House may well have lost a seat over that -- Mr. Orton. It was a controversial thing.

But it was a request that the President acceded to that had long been made by an environmentalist. This was a major issue about declaring that part of Utah to be a national monument, and the letter suggested that this was really corruption, because it was really motivated by the need to protect the coal deposits of the Riadys. And when the President takes an action of national significance involving an environmental matter that had long been debated and asked for by environmentalists, when Ms.  Reno was asked to appoint independent counsel because this was really a secret plot just to protect the coal deposits of the Riadys, it got no serious attention, nor did it deserve any.

There was also extortion of campaign contributions. This is from the letter of September 3rd, 1997, which represented the best effort to document this. It says, well, maybe Mr. Gore was guilty of extortion. Another donor recalled Gore phoning in saying, I have been tasked with raising 2 million, and you are on my list. The donor said he felt pressured by the Vice  President's sales pitch. Yet another major business figure said he was solicited by Gore and said there were elements of a shakedown. "It was awkward. The Vice President has real power, and when he asked me for money, he gave me no choice. I have so much business that touches on the Federal Government."

There is no allegation in any of this that the Vice President did anything more than ask for money, and the man said well, the Vice President has got power, and I have got business before the government. Not many committee chairs would go unindicted if this was the standard. I mean the hypocrisy of this is just overpowering. The fact is that the Vice President, like almost every other elected official in this city, asked people for money, some of whom have business before the government; and on that and nothing else, on no suggestion that there was anything other than a request, that was grounds for asking an independent counsel.

And then there was the famous phone call that the Vice President made, and if, in fact, everybody in the Capitol who had ever used a telephone in the Capitol to ask for money were to be thrown in prison, we would, I assume, be now meeting somewhere in a Federal penitentiary and the press could come and interview us on visiting day. Again, the hypocrisy of saying that justifies an independent counsel is overpowering.

What we have here, I think, is political frustration. People have tried very hard to get the President, and I have to say -- the gentleman from Texas is not here -- he decried the political, the personal attack on Mr. Burton. The notion that personal attack had been one-sided on this is, of course, bizarre, including some of the language that has been used about the President.

From 1995 on, there has been an effort of using the full panoply of congressional powers. We have had Mr. Starr fully investigated. Mr. Starr had no obstacles placed on him by Congress. Indeed we couldn't place any obstacles on him by Congress. He came up with nothing on Whitewater and nothing on the FBI files and nothing on the Travel Office. I mean, those are the ones that I know most about.

I would ask to put in the record the letter from the Judiciary Committee Majority of September 3rd, 1997, which is their best effort to show that there is a case for an independent counsel, and it is silly.

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He opposed a military coup in Paraguay. He declared a national monument in Utah. The Vice President actually asked someone for money. These are the standards by which you impugn the integrity of the Attorney General. I think it is clearly partisan, and I regret this.

And I would just say, finally, I do think oversight is important. There are times I have been critical of the administration, but you discredit oversight when it is so blatantly political. And I think, in fact, our ability to engage in effective oversight has been undercut not by obstruction, but by obsession, by transforming the legitimate oversight function into this crusade to get the President, and what we now have is the frustration that it has boiled over because it has been unsuccessful.

Mr. Linder. I am going to yield to Tony Hall right now because he has got a time constraint; he would like to ask some questions.

Mr. Hall.

Mr. Hall. Thank you, Mr. Chairman. I want to thank Mr. Frank for being here. He has been on two important committees that have been involved in investigations and oversight. Of the money that has been spent, Mr. Frank, I don't know the actual numbers, but just on the committees that you have served on in the last couple of years, let us say in the last 6 years, how much money has been spent on the various investigations?

Mr. Frank. Well, I would say obviously between the Banking and the Judiciary Committees, it is in the well over $100,000 -- of course, that throws in the appeal. But even if you set that aside, because we may have  -- we had the Starr report which goes on that -- it is -- I would say this. More money has been spent in trying to prove that the President committed crimes in both of those two committees, or enforcing investigations, than on any other single subject, including the kind of oversight I would like to see of the Immigration Service, et cetera, et cetera.

Clearly it has been a major preoccupation of the Judiciary Committee.

On the Banking Committee, I will say this. It was in 1994 in the Banking Committee under the Democrats, because the Republicans asked for it, and then it was in 1995, Mr. Leach, whose committee has jurisdiction over Federal banking regulation and thus Whitewater and all of its related applications, after the lack of success in trying to find something negative in 1995, pretty much left it alone. So the Banking Committee has not really done much on this in 1995. The Judiciary Committee has from time to time continued to deal with it.

Mr. Hall. What action -- of all of these millions of dollars that have been spent, there has been a figure that has been thrown around by a number of our colleagues to the tune of about $17 million over the past 6 years on investigations.

Mr. Frank. I assume that would include the independent counsel?

Mr. Hall. Yes. And as far as the investigations in Travelgate, Whitewater, have there been any results that have come from that?

Mr. Frank. Well, the one result I can see has been the  -- and it has really been Mr. Starr and nobody else -- it has been the periodic indictment of Webster Hubbell. Mr. Starr has had this view that when in doubt, indict Webster Hubbell to give the indication of activity, and he has several times indicted him. He did send him to prison once for things that Mr. Hubbell did, things he should not have done, long before he was a member of this administration.

I mean, the conviction of Mr. Hubbell affected matters involving a private law firm and money he stole from his partners in that law firm long before Bill Clinton was President of the United States.

Other than that, with regard to the Travel Office and the FBI files, those were people fired in the FBI office. They should have been fired; they misbehaved. But remember Ken Starr was the one that looked into that as Whitewater -- he started out with Whitewater; he had the FBI files and the Travel Office.

In terms of people serving in the Clinton administration, in terms of any criminal charges, the answer was nothing. And as I said, the Banking Committee in 1995, which had a full investigation of the Whitewater situation, never even made a report on it. So I am aware of no results here. And it is true we looked at the campaign finance and the Judiciary Committee, but apparently their conclusion there was the only problems were enforcement. The laws were fine, because people didn't think we should do anything about changing the law or tightening the law in any way.

Mr. Hall. Do you think we need to change any rules? We have rules saying that the standing committees have the ability to look at the laws, have oversight over the agencies, have hearings, change the laws? Why don't we just do oversight and investigate the agencies?

Mr. Frank. Frankly, I think in some cases oversight that is policy-related took second place to this obsession, as I said, with trying to find out things that weren't wrong. I am not aware of any changes you can make that would increase this. Indeed, you know, there are some areas, by the way, in policy grounds, as with Mr. Hyde, I think one of the inadvertent contributions Kenneth Starr made to America is that he had made it possible to deal with prosecutorial excess. A political climate exists to curb prosecutorial excess that didn't before, and prosecutorial excess includes the prosecutors that work for the U.S. justice Department.

And I have collaborated with others in the House on trying to curb excess by the current Justice Department as well as others. But beyond that, I don't see any great obstacles. In fact I will say with regard to some of the investigations, not the Judiciary, but I do think in the Government Reform investigation, I heard stories of repeated, lengthy depositions of individuals, frankly, which seem to me to be examples of investigatorial excess against which I would like to protect people.

Mr. Hall. Why do you think people, our constituents, over the past few years have stopped us on the street and said to us, when are you going to start getting together? When are the Republicans and Democrats going to start working together? Why is the Majority party so vindictive? Why are you spending this kind of money to investigate? What results are coming out of it?

Mr. Frank. Well, I think there is a confusion about where there should be conflict and where there shouldn't be. I want to say -- and, again, I do believe on fundamental issues of public policy -- whether Medicare should be contracted or expanded, whether there should be a big tax cut or instead an expansion of funding in areas involving education and the environment, the issues such as abortion -- those are legitimate public policy issues, and there ought to be debate about those.

And I am not a great fan of compromise for its own sake and in some cases I think when the elected officials are closely divided, our job is to frame the issues in debate and put them to voters to decide.

But what happens is instead people don't like -- and I think like this -- people are sometimes uncomfortable debating principle and debating philosophy. They feel that they will do better if they can prove that the other side is a bad guy.

Now, I have to say that happens on both sides. I disagreed with Mr. Sessions' suggestion that this was a one-sided set of personal attacks, say, on Mr. Burton. There have been personal attacks equally made on all sides, and I think unfortunately. But people would rather -- I think people feel that they get better leverage in an argument if they can prove that somebody is immoral and evil and crooked than if their ideas are wrong, it is easier to debate peoples' failings.

But the public, I think correctly, says that is just not the case, especially when it appears to be a double standard. Now Mr. Hyde said, correctly, there are inevitable executive-legislative tensions, but some of what I have heard today, frankly, were accusations against the Clinton administration for acting as any other administration does. And I think when people see a kind of a double standard, they get upset.

I also believe that the public says at some point, enough. I mean, I don't know how many investigations it is going to take of poor Vincent Foster's suicide before people let it alone. People were chewing on Whitewater since 1994, when we had the beginning of the Fiske investigation, and people, I think, begin to say, Look, at some point you have to accept that you are not going to be able to find anything.

So I think it is the preference for personal attacks over philosophical debate that unfortunately exists on both sides; but in this particular case, particular obsession with getting Bill Clinton, and the less successful people were in getting something on him, the more driven they were, and I think that turned the public off.

Frankly, I think there was  -- it will now turn out that Bill Clinton was never more popular than when people were trying hardest to get him. I think the President's popularity has decreased since impeachment was over. He may be secretly hoping there will be more hearings like this, because he did better when he could appear to be the victim, when whatever misbehavior he engaged in was overshadowed in the public's mind by what appeared to them to be the greater transgressions of the inquisitors.

Mr. Hall. Thank you, Mr. Chairman.

Mr. Linder. Thank you, Mr. Hall.

I agree that the personal attacks versus the debate on principle is overcome. I look back at 75 charges filed in the ethics committee against Newt Gingrich, trying to discredit him and some of that work. I will say this, Mr. Frank, about your seemingly cavalier attitude about 900 files in the White House and nothing was done about it. The Republican Justice Department put Chuck Colson in jail for having one, inappropriately holding one FBI file; and the White House and this Justice Department did not find that 900 of them taken in there were worthy of an investigation.

Mr. Frank. Excuse me; no, you are wrong. It is not  -- it wasn't the Justice Department. It was Kenneth Starr. First of all  --

Mr. Linder. No, no, I am comparing it with the Republican Justice Department in the seventies.

Mr. Frank. I understand that. But, no, you are wrong for saying it was the Justice Department. The matter of the FBI files was turned over to Ken Starr for investigation. The decision not to take any action was Kenneth Starr's.

I will say I take exception to you saying I was cavalier about it. I said, I specifically remember this, that a couple of people were fired because of that and should have been, it was inappropriate. There was a difference between these files and Colson. Mr. Colson had that file for the specific purpose of doing damage to the individual, Mr. Rosenberg. There was no finding that anybody did any damage to individuals there.

In any case, whether you agree with the findings or not, the FBI file matter was given by the Attorney General to Kenneth Starr, and your quarrel with the results of the investigation into the FBI files is not with Janet Reno but with Kenneth Starr, because he as the independent counsel was consigned that by Janet Reno.

He is the one that said there is nothing to implicate the President, and he is the one who decided not to take any action of a criminal sort against anybody else, not the Justice Department.

Mr. Linder. Mr. Goss.

Mr. Goss. Thank you very much, Mr. Chairman.

Mr. Frank, I am very pleased you are here to help us out. I want to get back to the subject more at hand, and it seems part of our problem is that we are getting caught up in the finger-pointing and the partisanship here on the Hill, and then there is the problem of friction and the tension between the executive branch and the legislative branch, which the Founding Fathers put in there for I think good and adequate reasons.

So let us go to an impartial third-party party observer, the Judiciary. Let us go to the judge's side of it and get presumably an impartial view of some of the things that are going on in the Justice Department.

I am going to read from a case -- American Physicians and Surgeons Versus Hillary Rodham Clinton -- and the judge wrote, and I would like your views on this judge, at least his opinion, "This court found that the government's discovery tactics were 'preposterous,' 'incomplete' and 'inadequate.' It is clear that the decisions here were made at the highest levels of government, and that the government itself is -- and should be -- accountable when its officials run amok. Most shocking to this court, and deeply disappointing, is that the Department of Justice would participate in such conduct. This kind of conduct is reprehensible, and the government must be held accountable for it."

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Mr. Goss. Now, presumably, we are part of the accountability process with our oversight. Do you feel that a judge making a statement like that about a judicial process, where obviously something has gone wrong with the system of Justice in our country because it has apparently been inappropriately dealt with by the executive branch, is something we should overlook?

Mr. Frank. Oh, no, not at all. I am glad we have independent judges that do that. And from time to time --

Mr. Goss. No, I didn't say independent judge. I said judge.

Mr. Frank. You object because I said independent judge rather than judge. I don't understand the basis of that objection.

Mr. Goss. I want to make sure you are not equivocating what kind of judge. I mean this is an appointed judge  --

Mr. Frank. What kind of hair-splitting are you getting into, Porter?

Mr. Goss. This is a specific judge.

Mr. Frank. I must say your argument you want to rise above partisanship is undercut by that kind of hair-splitting. I was saying that I  -- you said we have an impartial branch, the Judiciary. I was trying to be silly. I did not realize you were in the mood for that.

Mr. Frank. What I said was I am glad we have an independent judge that did this. And when you take exception to my calling the judge independent, I don't know what that means. Is it a dependent judge? Was it a codependent judge? Did the judge have an enabler there on the bench? What are you talking about?

But the answer is, I am glad we have judges who are able in specific cases to step in. If that had to do with the failure to open up the process during the health plan, I think the administration made a serious mistake there, and I am glad the judge rebuked them.

Mr. Goss. Okay. That is the point that we are trying to get at. When the executive branch, any executive branch, through any administration, tries to derail or manage or shape a process of Justice to their advantage, to the advantage of that administration, it appears there has got to be accountability, and it would appear that that would be the job of this institution, the legislative branch that has oversight and legislative capabilities.

When that is frustrated willfully by the branch known as the executive branch or by top leaders in the executive branch, that would appear to warrant the attention of the Congress of the United States on behalf of the people. Would you agree with that?

Mr. Frank. I thought I already had, but I will be glad to repeat that. Yes, and that has been the case, in my experience, throughout all of the three administrations I have been here. As I said, I thought Mr. Hyde was right, that there was this inherent tension between the two.

I must say the first time I encountered the notion that the administration could block any sanction came under the Reagan administration. There was an investigation into the environmental protection administration involving Ann Gorsuch and others, and the Congress was voting a contempt citation, in fact, I think did vote a contempt citation, and the Justice Department, under President Reagan, announced that this contempt citation would have no meaning because it was entirely a matter of prosecutorial discretion as to whether or not any prosecution would take effect.

And indeed what  -- an interesting case, the Justice Department went to court under William French Smith in a case which was curiously titled United States of America v. The House of Representatives, making us, I suppose, kind of a voluntary association, in which the Justice Department under President Reagan sought to enjoin the House of Representatives from going forward. And the judge, an independent judge, I hesitate to note, threw it out, and I am glad that he did.

So, yes, I think when the executive, whether it is the Reagan or the Bush or the Clinton or the Carter or any administration, seeks to frustrate an investigation, that is legitimately a cause for us to do whatever we can to prevent that.

Mr. Goss. I guess we can agree that all judges are independent unless proven otherwise, and if you mean it in that sense, that is fine.

Let me continue. Just to make sure this wasn't one isolated incident, you mentioned that, well, there was a case about health care, let me give you another case, a different time. This time February 22nd, 1999, Cobell v. Babbitt. I believe the Chairman has referred to this in part. Let me again quote to you some of the judge's statement: "The way in which the defendants," this would be the Justice Department, "have handled this litigation up to the commencement of this contempt trial is nothing short of a travesty. The defendants decided to begin a campaign of stonewalling and strained interpretations of the court's orders in a desperate attempt to avoid the penalties that they deserved. The court is deeply disappointed that any litigant would fail to obey orders for production of documents, and then conceal and cover up that disobedience with outright false statements that the court then relied upon. But when the litigant is the Department of Justice, the misconduct is all the more troubling. The institutions of our Federal Government cannot be trusted," et  cetera.

That to me is a very troubling statement.

Mr. Frank. I agree with you.

Mr. Goss. Thank you very much.

Mr. Linder. Mr. Hastings.

Mr. Hastings. Thank you, Mr. Chairman.

I have to say I always appreciate watching and hearing our witness when he is on the floor and testifying. His quick mind is something to behold. So I will say that.

But what I want to ask you, Barney, is something that was alluded to and then testified by some of the committee chairmen that were here. Don Young talked about some excuses that were used by some of the agencies, longstanding practices, why we can't bring thus and so to the committee. Other of the chairmen mentioned exactly the same thing. The response -- so I asked about that. I said, what are these longstanding practices? They typically had to do with litigation or grand jury or something like that, which, of course, is legitimate, to which Peter Hoekstra responded by saying, well, this is  -- it is these sort of things which I respect, but which, at the end of the day over a period of time, when there is nothing resolved in these inquiries, that causes a distrust, at least from his part, from the oversight standpoint.

Now, the question, I guess, is, and I would like to have your observations on this, how do we overcome that? Because the separation of powers, to me, implies that nobody is higher than others, but yet in a response like this, it appears that in this case the executive branch is  -- what this agency is saying, we are higher, and we are not going to do anything to respond to what your oversights are.

Mr. Frank. Two things. First of all, I completely disagree with this administration and the Bush and Reagan and other administrations when they argue that they can't comment on something because it is under litigation. That is just nonsense. That is what lawyers say when they don't want to say something. You have to separate out.

I do believe that the secrecy of grand jury testimony is important. Remember, there is something unique about the grand jury. The grand jury is the only part of our system where it is not a fair shake. I mean, everything else we do is adversarial. There is a trial, and there is a defense and a prosecution, or a defense and a plaintiff. Here we have equal debate. In the grand jury, there is only the prosecutor, and I think we have made a decision to give the prosecutor advantages in the grand jury setting that we don't anywhere else, in return for keeping it secret.

But when you get to the broader question, and I have found this with administrations  -- and again, my only difference would be if people said, oh, this is a problem of the Clinton administration. It is a problem with all executive branches. Yes, it is a problem of the Clinton administration and the Bush administration and the Reagan administration. I first encountered it when James Watt told us in the old, what was called the government operations, that he couldn't testify about some conversation he had with the Department solicitor because of the attorney/client privilege. I said, well, wait a minute. The attorney/client privilege protects the attorney. You are the client. What are you talking about?

And then they would say, well, it is under  -- we can't discuss this because it is being litigated. Except if you look at any administration, the Clinton administration, the Reagan administration, if something is under litigation and they want to talk about it, they do. They only use this excuse when it is not.

There is no reason whatsoever why you can't talk about something because it is under litigation. So I agree, that is a problem.

But here is the secondary problem. You are right, we should be able to compel them. The problem is that until fairly recently the notion was that if you refuse to give Congress information when the appropriate procedures were followed, you could cite someone for contempt. But you have to go back to this situation involving Gorsuch where the Reagan administration promulgated for the first time, to my knowledge, the notion that prosecutorial discretion meant that an administration, if it chose not to prosecute a contempt citation criminally, had the absolute right not to do that. Now, the Clinton administration in this seems to be fully at one with the Reagan administration. They like that idea fine, and that is the dilemma we have.

Under that notion of complete prosecutorial discretion, there is no way to bring in the third party, the judicial system, to arbitrate the dispute. So in that case, whoever has the information wins. And I -- that is a -- I mean, people haven't focused on that enough. That was a big change. The assumption always was that if there was a dispute between the President and the Congress about access to information, it would go to a neutral third party, and then the Reagan administration said, no, it doesn't, because of prosecutorial discretion. And the Clinton administration has bought into that.

Maybe what we should be doing is saying, okay, prosecutorial discretion applies, and we can't do a criminal contempt citation, but perhaps we should  -- this was something I once thought about and then sort of dropped -- we ought to put into effect a civil proceeding whereby when there is a dispute over information, we can get it to court, and you get around the prosecutorial discretion thing because it would be civil and not criminal. And that, I would very much think, would be a source of bipartisan, legislative interest; that is, because you have got a good issue here.

Congress wants information the executive branch says there is a legitimate reason for not sending. There needs to be a procedure whereby that could be sent to a third party for a dispute, and I agree that all administrations tend to withhold, and we ought to figure out a way to try to break that logjam because what has historically been the way that we thought we could get to court was a criminal contempt citation, and that has been gone for the last 15 years

Mr. Hastings. You said you thought about it and then dropped it. Why did you drop that thought?

Mr. Frank. Something else came up. Literally, I remember thinking about it at one point, and then something else interceded. But I would be willing to work on people again to do it and do it right away.

Mr. Hastings. One other thing that I mentioned, and this is probably more for clarification than anything else, you were in and out of the testimony that was going on by others, and when you came in your remarks were such, at least what I heard, that a lot of this is driven by partisanship. And we, Republicans and Democrats, do have a difference of opinion.

But on the other hand, if one side is driving something by partisanship, then it would be logical, it seems to me, to assume that the other side in response would be driving their decision by partisanship also.

Mr. Frank. Yes.

Mr. Hastings. Would you conclude then --

Mr. Frank. Absolutely.

Mr. Hastings. -- If A is right in your case and B is right in the other case, then we have the same frustrations?

Mr. Frank. Partisanship generally begets partisanship. No matter what we voted on the Ten Commandments and the National Day of Prayer, Fasting and Humiliation, other-cheek-turning is not one of the major practices in this city.

Mr. Hastings. Thank you.

Mr. Linder. Mr. Sessions.

Mr. Sessions. I have no questions, Chairman. Thank you.

Mr. Linder. Thank you, Mr. Frank.

Let me just point out one thing about all the investigations going on. It has been estimated that there were 500 investigations undertaken in the first century and a half of our Nation's history. In the 90th Congress, which is the first 2 years of the Nixon administration, there were 496 investigations in that Congress of the Nixon administration.

Mr. Frank. Right. Now, the only thing I would say is this, Mr. Chairman: In the case of the Clinton administration, there was a tendency to take the large number of investigations as a criticism of the executive branch. You seem to be suggesting in this case that it is the Congress' fault.

Mr. Linder. I will say Congress does an awful lot of investigating.

Mr. Frank. Right, in both cases. And you would also agree that the fact that Congress investigates a lot does not necessarily justify an inference that the administration being investigated deserved to be investigated?

Mr. Linder. Not in every instance.

Mr. Frank. Thank you.

Mr. Linder. Thank you for your time. The meeting is adjourned.

[Whereupon, at 1:20 p.m., the subcommittee was adjourned.]