Index
December 12, 2001

MEMORANDUM FOR THE ATTORNEY GENERAL

SUBJECT: Congressional Subpoena for Executive Branch Documents

I have been advised that the Committee on Government Reform of the House of Representatives has subpoenaed confidential Department of Justice documents. The documents consist of memoranda from the Chief of the Campaign Financing Task Force to former Attorney General Janet Reno recommending that a Special Counsel be appointed to investigate a matter under review by the Task Force, memoranda written in response to those memoranda, and deliberative memoranda from other investigations containing advice and recommendations concerning whether particular criminal prosecutions should be brought. I understand that, among other accommodations the Department has provided the Committee concerning the matters that are the subject of these documents, the Department has provided briefings with explanations of the reasons for the prosecutorial decisions, and is willing to provide further briefings. I also understand that you believe it would be inconsistent with the constitutional doctrine of separation of powers and the Department's law enforcement responsibilities to release these documents to the Committee or to make them available for review by Committee representatives.

It is my decision that you should not release these documents or otherwise make them available to the Committee. Disclosure to Congress of confidential advice to the Attorney General regarding the appointment of a Special Counsel and confidential recommendations to Department of Justice officials regarding whether to bring criminal charges would inhibit the candor necessary to the effectiveness of the deliberative processes by which the Department makes prosecutorial decisions. Moreover, I am concerned that congressional access to prosecutorial decisionmaking documents of this kind threatens to politicize the criminal justice process. The Founders' fundamental purpose in establishing the separation of powers in the Constitution was to protect individual liberty. Congressional pressure on executive branch prosecutorial decisionmaking is inconsistent with separation of powers and threatens individual liberty. Because I believe that congressional access to these documents would be contrary to the national interest, I have decided to assert executive privilege with respect to the documents and to instruct you not to release them or otherwise make them available to the Committee.

I request that you advise the Committee of my decision. I also request that the Department remain willing to work informally with the Committee to provide such information as it can, consistent with these instructions and without violating the constitutional doctrine of separation of powers.