We have received your letter of July 18, which incorporates by reference the letter of July 11 sent to this Office by Mr. Chertoff and Mr. Ben-Veniste on behalf of the Committee. We have given your request considerable thought in view of the importance of our respective obligations. In connection with the Committee's investigation into the handling of documents of former Deputy Counsel to the President Vincent W. Foster. Jr.. the Committee has requested that this Office provide the Committee with reports of interviews of Henry O'Neill and Margaret Williams that were conducted by this Office and by Mr. Fiske's Office. In addition, the Committee has requested a copy of a particular polygraph report, or at least of questions asked during a particular polygraph examination. Finally, the Committee has requested permission to ask an individual employed by the FBI Laboratory questions about the work he has performed for the Independent Counsel. We respectfully decline these requests. As we have informed the Committee on this and previous occasions, we will not disclose to the Congress any investigative work product from this active and ongoing investigation. As you know, we must abide by the strictures of grand jury secrecy contained in Federal Rule of Criminal Procedure 6(e). In addition, our position that we will not disclose to the Congress any investigative work product from an open investigation represents sound policy that is deeply rooted in the history and tradition of this Nation. See generally Memorandum for Oliver B. Revell Re: Congressional Requests for Information from Inspectors General Concerning Open Criminal Investigations, Op. Off. Legal Counsel, at 5 (March 24, 1989) ("the policy and practice of the executive branch throughout our Nation's history has been to decline, except in extraordinary circumstances, to provide committees of Congress with access to, or copies of, open law enforcement files. No President, to our knowledge, has departed from this position affirming the confidentiality and privileged nature of open law enforcement files"). We will adhere to this deeply rooted tradition, and therefore we We note, moreover, that our policy on these issues is not based on whether the requested information is exculpatory or incriminating, but rather is made in accordance with long-standing Department of Justice policy to protect the internal work of this Office with respect to an active and ongoing investigation and to protect the privacy of individuals. Separately, through Mr. Chertoff and Mr. Ben-Veniste, the Committee had also requested the use of Mr. Foster's briefcase. As an accommodation to the Committee's investigative needs, we provided the briefcase to the Committee. Such pre-existing material, which was neither created nor modified by this Office or Mr. Fiske's office, is in our view readily distinguished from investigative work product. Moreover, in circumstances where such material cannot be obtained from any other source and where disclosure of it would not hinder or impede our ongoing investigation, we believe it appropriate to disclose such material to the Committee upon its joint request. In sum, the question whether and under what conditions a law enforcement agency such as this Office can and should provide information to Congress relating to an open criminal investigation entails a delicate balancing of numerous competing concerns. With respect to the Foster documents investigation, we have balanced the competing concerns and formulated the above policy. In so doing, we have been advised by Ethics Counsel Samuel Dash. We have adhered to this policy thus far, and we intend to continue to do so. We do not believe, moreover, that there has been any inconsistency in our responses to the Committee's joint requests. Thank you for your cooperation. Please do not hesitate to contact me if you have any questions. Respectfully yours. Kenneth w. Stan / mor Kenneth W. Starr Independent Counsel Committee on Banking, Housing and Urban Affairs Dear Mr. Chairman and Senator Sarbanes: We have received your letter of July 31, which renews the Special Committee's earlier requests that this Office provide the Special Committee copies of all FD-302 reports and notes from all interviews of Margaret Williams and Henry O'Neill conducted by this Office and Mr. Fiske's Office. We deeply appreciate the importance of Congress's oversight authority and the constitutional underpinnings of that power; to that end, we have attempted to accommodate the Committee in executing its oversight duties. We likewise recognize the Special Committee's particular interest in obtaining any information that might shed light on whether the Senate testimony of Officer O'Neill and Ms. Williams is consistent with their prior statements to law enforcement officials. Nevertheless, after careful reflection, we are constrained to adhere to our firmly-held position that we cannot in conscience disclose to Congress any investigative work product from our active and ongoing investigations. Therefore, we again respectfully decline the Committee's request. The As we stated in our letter to you of July 19, our position reflects a time-honored policy first expressed by President Washington and subsequently reaffirmed by or on behalf of Presidents Jefferson, Jackson, Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Eisenhower, among others. See "History of Refusals by Executive Branch Officials to Provide Information Demanded by Congress" (Part I), 6 Op. O.L.C. 751 (1982).. reason for this policy is as simple as it is fundamental: Executive Branch is obligated to protect its Article II responsibility to prosecute the laws fully and fairly. Congress is apprised of details of an investigation while that investigation is ongoing, there is a distinct danger that congressional pressures will influence, or will be perceived to If the The Honorable Alfonse M. D'Amato Page 2 Executive Branch has, as a matter of course, declined to provide Congress with access to, or copies of, open law enforcement files. See generally, Memorandum for Oliver B. Revell, Re: Congressional Requests for Information from Inspectors General Concerning Open Criminal Investigations, Op. O.L.C., at 5 (March 24, 1989). Attorney General Robert H. Jackson addressed this very issue over 50 years ago. Recognizing the competing interests of both Congress and the Executive Branch where the dissemination of investigative materials was at stake, then-Attorney General Jackson concluded: It is the position of [the] Department [of Justice], restated now with the approval of and at the direction of the President, that all investigative reports are confidential documents of the executive department of the Government, to aid in the duty laid upon the President by the Constitution to "take care that the laws be faithfully executed," and that congressional or public access to them would not be in the public interest. Disclosure of the reports could not do otherwise than defendant or prospective defendant, could have no greater it can rely upon. This is exactly what these reports are intended to contain. 40 Op. Att'y Gen. 45, 46 (1941). In short, the Executive Branch "cannot effectively investigate if Congress is, in a sense, a partner in the investigation." Memorandum for Edward L. Morgan, Deputy Counsel to the President, from Thomas E. Kauper, Deputy Assistant Attorney, Office of Legal Counsel (Dec. 19, 1969). The concerns articulated by Justice Jackson are as valid now as they were at the dawn of World War II. Moreover, the disclosure of investigative materials presents other perils to law enforcement that are similarly compelling. Consider, for example, the following: sensitive law enforcement techniques, methods and strategies may be revealed; witnesses may be "chilled" from speaking with law enforcement officers for fear of embarrassment or personal safety; and law enforcement officers themselves may be reluctant to express candidly their views and recommendations on controversial and sensitive matters if those views could be exposed to public scrutiny by Congress upon General from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Congressional Subpoenas of Department of Justice Investigative Files 14-20 (Oct. 17, 1984); United States v. Nixon, 418 U.S. 683, at 705 (1974) ("[H] uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interest to the detriment of the decision-making process."). As we have previously stated, our policy against disclosing investigative material does not hinge on whether the requested material is exculpatory or incriminating. Nor do we believe that this policy can or should be reevaluated based on the course of congressional proceedings. Indeed, with respect to the Special Committee's request, we would be setting a dangerous precedent were we to release FD-302 reports or any other prior statements made to law enforcement officials whenever there is speculation that such statements contain inconsistencies with testimony taken before the Senate. We hasten to recognize that there have been instances deemed to constitute extraordinary circumstances in which federal law enforcement disclosed to Congress certain investigative information. See, e.g., Letter to John D. Dingell, Chairman, Subcommittee on Oversight and Investigations, House Committee on Energy and Commerce, from William French Smith, Attorney General, 6 Op. O.L.C. 31, at 103 (1982) (regarding request for open law enforcement investigative files of the Environmental Protection Agency). However, after reviewing the present circumstances with the aid and consultation of our Ethics Counsel Professor Samuel Dash, we believe that relevant authority and tradition guides us to one conclusion this Office's interest and obligation to protect the confidentiality of its open investigations is paramount in this instance. We must, accordingly, respectfully decline the Special Committee's request. - Respectfully yours, Tared W. Stan Kenneth W. Starr |