Assertion of Executive Privilege With Respect to Prosecutorial Documents

Assertion of Executive Privilege with Respect to
Prosecutorial Documents
Executive privilege may properly be asserted in response to a congressional subpoena seeking
prosecutorial decisionmaking documents of the Department of Justice.

December 10, 2001

THE PRESIDENT
THE WHITE HOUSE

My Dear Mr. President: I am writing to request that you assert executive privi-
lege with respect to 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 or not particular criminal prosecutions should be brought. The Committee
on Government Reform of the House of Representatives has issued subpoenas to
me demanding these documents.
The Department has gone to great lengths, consistent with the constitutional
and statutory obligations of the Executive Branch, to accommodate the Commit-
tee’s needs concerning the prosecutorial decisions that are the subject of these
documents. The Department has provided briefings that included explanations of
the reasons for the decisions, and we are willing to provide further briefings. The
Committee has been unsatisfied with these accommodations, however, and has
pressed for access to the documents themselves.
I strongly believe that releasing or otherwise making these extremely sensitive
prosecutorial decisionmaking documents available to Congress would compromise
the ability of the Department of Justice to assist you in discharging your constitu-
tional law enforcement responsibilities. The authority to investigate and prosecute
criminal suspects is one of the core executive powers vested in the President by
the Executive Power and Take Care Clauses of Article II of the Constitution. In
order to assist the President in fulfilling his constitutional duty, the Attorney
General and other Department decisionmakers must have the benefit of candid and
confidential advice and recommendations in making investigative and prosecutori-
al decisions.
The need for confidentiality is particularly compelling in regard to the highly
sensitive prosecutorial decision of whether to bring criminal charges. The
Department’s attorneys are asked to render unbiased, professional advice about the
merits of potential criminal cases. The formal mechanism by which this process
occurs is the preparation of prosecution and declination memoranda. In short,

1

227-329 VOL_25_PROOF.pdf 11 10/22/12 11:10 AM
 Opinions of the Attorney General in Volume 25

these documents review the strength of the evidence, substantive legal issues,
policy considerations, and overall likelihood of success if the case were to
proceed.
If these deliberative documents are subject to congressional scrutiny, we will
face the grave danger that prosecutors will be chilled from providing the candid
and independent analysis essential to the sound exercise of prosecutorial discretion
and to the fairness and integrity of federal law enforcement. As the Supreme Court
described its concern about a chilling effect: “Human experience teaches that those
who expect public dissemination of their remarks may well temper candor with a
concern for appearances and for their own interests to the detriment of the
decisionmaking process.” United States v. Nixon, 418 U.S. 683, 705 (1974). The
Court observed that “the importance of this confidentiality is too plain to require
further discussion.” Id.
Just as troubling, the prospect of congressional review might force prosecutors
to err on the side of investigation or prosecution simply to avoid public second-
guessing. This would undermine public and judicial confidence in our law
enforcement processes. It is for all of these reasons that the Supreme Court has
unanimously recognized the “valid need for protection of communications
between high Government officials and those who advise and assist them in
the performance of their manifold duties.” Id.
Disclosure of declination memoranda would also implicate significant individ-
ual privacy interests. Such documents discuss the possibility of bringing charges
against individuals who are investigated but not prosecuted, and often contain
unflattering personal information as well as assessments of witness credibility and
legal positions. The disclosure of the contents of these documents could be
devastating to the individuals they discuss.
The Department respects and cooperates with the legitimate exercise of Con-
gress’s oversight authority. Congressional committees need to gather information
about how statutes are applied and funds are spent so that they can assess whether
additional legislation is necessary. We have significant concerns, however, about
oversight requests for prosecution and declination memoranda. The nexus between
such inquiries and the purpose of oversight is questionable, and this kind of
demand threatens to politicize the criminal justice process. Legislative Branch
pressure on prosecutorial decisionmaking is inconsistent with the separation of
powers and thereby threatens individual liberty.
The memoranda to former Attorney General Reno and the prosecutorial
decisionmaking documents addressed to other Department officials clearly fall
within the scope of executive privilege. The Constitution clearly gives the
President the power to protect the confidentiality of Executive Branch delibera-
tions. Under controlling case law, a congressional committee is required to
demonstrate that the information sought is “demonstrably critical to the responsi-
ble fulfillment of the Committee’s functions.” Senate Select Committee on

2

227-329 VOL_25_PROOF.pdf 12 10/22/12 11:10 AM
 Assertion of Executive Privilege with Respect to Prosecutorial Documents

Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en
banc). And those functions must be in furtherance of legitimate legislative
responsibilities of Congress. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927)
(Congress has oversight authority “to enable it efficiently to exercise a legislative
function belonging to it under the Constitution”).
We believe that the Committee has failed to provide a sufficient reason to
disclose these sensitive prosecutorial documents. Congress cannot justify a
demand for a decisionmaking document based on its disagreement with a prosecu-
torial decision. See Response to Congressional Requests for Information Regard-
ing Decisions Made Under the Independent Counsel Act, 10 Op. O.L.C. 68 (1986).
In any event, even if the Committee has a legitimate oversight interest in these
documents, its oversight needs cannot outweigh the Executive Branch’s interest in
the confidentiality of prosecutorial decisionmaking and our concerns about
congressional influence on such decisionmaking in individual cases. I do not
believe that access to these prosecutorial decisionmaking documents is “demon-
strably critical to the responsible fulfillment of the Committee’s functions.” Senate
Select Committee, 498 F.2d at 731.
It is my legal judgment that executive privilege may properly be asserted in
these circumstances. I request and advise that you do so.

JOHN D. ASHCROFT
Attorney General

3

227-329 VOL_25_PROOF.pdf 13 10/22/12 11:10 AM