Letter to The Honorable Eric Holder

Letter

Senate Judiciary Committee Ranking Member Chuck Grassley is pressing Attorney General Eric Holder to produce documents about a quid pro quo between the Justice Department and St. Paul, Minn where the Department agreed to drop two False Claims Act cases against St. Paul in exchange for the city dropping its pending appeal before the Supreme Court in Magner v. Gallagher.

At issue is evidence that shows the Justice Department declining to intervene in a False Claims Act case, over the concerns of career department attorneys, in exchange for St. Paul dropping the case before the Supreme Court that could have had negative repercussions against a policy favored by the Justice Department.

In a letter to Holder, Grassley wrote that a recent transcribed interview with former Associate Attorney General Tom Perelli made clear that Assistant Attorney General Tony West was involved in the quid pro quo deal. West has been nominated to be the Associate Attorney General.

In light of West's nomination, which is pending before the Senate Judiciary Committee, Grassley requested that the 1,202 documents withheld by the department regarding the quid pro quo matter be produced to the committee as part of the background review process for his nomination.

Grassley said that any suggestion that he, as a Ranking Member of a committee, does not have access to the documents in question has no basis in law or policy.

Grassley wrote, "I do not abandon my constitutional responsibilities simply because I am in the minority; rather, I remain bound to provide oversight to those executing the law. A committee chairman may set the agenda for a committee, but a chairman does not control activities of the minority in fulfilling their obligations under the Constitution."

In addition, Grassley wrote that court cases support the role of Congress in conducting oversight. In Murphy v. Dep't of the Army, the District of Columbia Circuit held that "[a]ll Members [of Congress] have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information." That court also found that restricting information-gathering powers only to committee chairmen is an "intrusion into the legislative sphere" because "[e]ach [Member] participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as well enable him to carry out the responsibilities of a legislator." The Second Circuit agreed with this principle when it held in Devine v. United States that the Privacy Act does not prevent committee members other than the chairman from receiving information that might otherwise be protected from disclosure by the statute.

Grassley relayed in his letter that it was unfortunate that West's nomination could be delayed, but it was necessary to appropriately evaluate Mr. West's performance in his current role, as the Judiciary Committee reviews his nomination for Associate Attorney General.

Ultimately, it is up to the Justice Department to produce these documents in order for West's nomination to proceed.

Here is a copy of the text of Grassley's letter to Holder. A signed copy can be found here.

November 26, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.
Attorney General
U.S. Department of Justice
950 Pennsylvania Ave., N.W.
Washington, DC 20530

Dear Attorney General Holder:

On September 24, 2012, and October 4, 2012, I joined Chairman Smith of the House Committee on the Judiciary, Chairman Issa of the House Committee on Oversight and Government Reform, and Chairman McHenry of the House Subcommittee on TARP, Financial Services And Bailouts of Public and Private Programs in writing regarding the production of documents and access to witnesses from the Department of Justice (Department). We requested the documents and witnesses as part of our investigation into the quid pro quo deal where the Department agreed to drop two False Claims Act cases against the City of St. Paul, Minnesota in exchange for the City dropping its pending appeal before the Supreme Court in Magner v. Gallagher. On October 11, 2012, the Department responded to our letters stating that 1,268 pages of documents were made available to the House Committees, 1,202 of which were only made available for review in camera at the Department. Only 66 pages were actually produced to the House Committees. The October 11 letter also declined to make Department officials available for transcribed interviews.

My staff, along with the staff of the House committees, is currently investigating the details of this quid pro quo. To date, the Department has failed to allow my staff to review the 1,202 documents, even in camera, despite my oversight responsibilities on the Senate Committee on the Judiciary (Committee) and the serious questions this arrangement raises. I am disappointed that the Department has failed to provide my staff the same access that it has provided the staff of the House Committees.

Most recently, through a transcribed interview with former Associate Attorney General Thomas Perrelli that occurred on November 19, it has become clear that Assistant Attorney General Tony West was involved in this arrangement in his capacity as head of the Department's Civil Division. Given that Mr. West's nomination for Associate Attorney General is currently pending before the Committee, it is important that the Committee understand his involvement in these matters. Therefore, I write today requesting that the 1,202 documents withheld by the Department regarding this matter be produced to the Senate Judiciary Committee as part of the background review process for his nomination.

It is unfortunate that Mr. West's nomination could be delayed by this request, but it is necessary because you have denied my staff access to documents essential to ensure adequate and appropriate Congressional oversight of the Executive Branch as part of the executive nominations process. Specifically, I have been informed that the Department refused my staff access to the documents on Monday, October 15, 2012, because there was not a request from the Chairman of the Committee. However, no such request is required by any law, rule, regulation, or judicial precedent.

The Department's decision to deny the opportunity for my staff to review these documents is misplaced and threatens to delay the review of Mr. West's nomination. This investigation was undertaken in conjunction and cooperation with Chairman Smith, Chairman Issa, and Chairman McHenry. Therefore, the Department's general policy that investigations be conducted by and through the authority of the chairman of a committee with jurisdiction is fully satisfied.

The Department's position seems to be that I, as a ranking member of a Committee, must receive permission from the chairman in order to allow access to the documents in question. Yet, any suggestion to this effect is without a basis in law or policy. Senate committees are organized so as to give minority parties significant resources to conduct our own investigations and further our own priorities. I do not abandon my constitutional responsibilities simply because I am in the minority; rather, I remain bound to provide oversight to those executing the law. A committee chairman may set the agenda for a committee, but a chairman does not control activities of the minority in fulfilling their obligations under the Constitution.

Indeed, the Department's current insistence that I seek the Chairman's permission is tantamount to executive interference in internal Legislative Branch affairs. Both chambers of Congress have a long-established practice of partnerships between Members and Chairmen of other committees with appropriate jurisdiction to permit us to exercise our constitutional power of inquiry. By preventing my staff from viewing these documents, the Department is interfering with these internal rules and norms. As a result, the Department is intruding into how Congress organizes itself and attempting to prevent Members from working cooperatively to advance our legitimate interests.

Moreover, the principle that Congress controls its internal affairs in these matters has been strongly supported by the judiciary, most notably in Murphy v. Dep't of the Army and Devine v. United States. In Murphy, the District of Columbia Circuit held that "[a]ll Members [of Congress] have a constitutionally recognized status entitling them to share in general congressional powers and responsibilities, many of them requiring access to executive information." That court also found that restricting information-gathering powers only to committee chairmen is an "intrusion into the legislative sphere" because "[e]ach [Member] participates in the law-making process; each has a voice and a vote in that process; and each is entitled to request such information from the executive agencies as well enable him to carry out the responsibilities of a legislator." The Second Circuit agreed with this principle when it held in Devine that the Privacy Act does not prevent committee members other than the chairman from receiving information that might otherwise be protected from disclosure by the statute.

Accordingly, I ask that the Department provide the 1,202 responsive documents outlined in the October 11 letter no later than December 4, 2012. Without these documents, it will be impossible to appropriately evaluate Mr. West's performance in his current role, as the Committee reviews his nomination for Associate Attorney General.

Sincerely,

Charles E. Grassley
Ranking Member

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