Hearing of the Commerce, Justice, Science and Related Agencies Subcommittee of the House Appropriations Committee - Fiscal Year 2009 Budget for the Department of Justice
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REP. ADAM SCHIFF (D-CA): Thank you, Mr. Chairman.
Mr. Attorney General, I want to ask you a few questions about the subpoena department -- the subpoena power of the department and the courts and the Congress.
When the department subpoenas witnesses to come before the grand jury, I take it they have an obligation to appear before the grand jury. They can make a claim of privilege once they get there, but they're required to appear before the grand jury, aren't they?
ATTY GEN. MUKASEY: That's grand jury subpoenas?
REP. SCHIFF: Yes.
ATTY GEN. MUKASEY: Yes.
REP. SCHIFF: And if they want to make a claim of privilege, they would have to particularize it and say that as to this question or this document, that's a matter of attorney-client privilege and I'm not required to provide that.
ATTY GEN. MUKASEY: And grand jury proceedings are secret.
REP. SCHIFF: Right.
And when you are on the federal bench, if someone was subpoenaed to come into your courtroom and testify, I take it they are required to appear in your court and make a claim of privilege if they had one to make. They couldn't simply --
ATTY GEN. MUKASEY: Absent a success motion to strike the subpoena, which occasionally does happen.
REP. SCHIFF: But absent that, they couldn't simply fail to appear.
ATTY GEN. MUKASEY: Right.
REP. SCHIFF: Why doesn't the same principle apply when the Congress issues a subpoena to the executive? Why isn't the executive required to appear and to make a claim of privilege and make a particularized claim? And say, as to this question -- this is covered by executive privilege; as to that question, I can testify.
ATTY. GEN. MUKASEY: I think what it's talking about is subpoenas that I testified about before the Oversight Committee relating to if particular people immediately around the president who were subpoenaed as to whom there was long-standing OLC authority to the effect that their testimony was privileged under executive privilege. And that that privilege embraced, because they were people who were directly around the president, embraced essentially no necessity to appear because what they were being asked to do was to discuss their advice to the president, which was privileged.
REP. SCHIFF: Mr. Attorney General, as we've seen in the case of the torture issue, the opinions of the Office of Legal Counsel are often wrong, and they're often repudiated. I would take it if someone were subpoenaed to appear in your court when you were a judge, notwithstanding that they had the opinion of their own attorney that what they had to say was privileged, the fact that their own attorney might advise them what they had to say was privileged doesn't preclude them from having to go to court and make the argument why their testimony is privileged. So why is it different in the case of the executive, in particular, in the case of a former executive official?
ATTY. GEN. MUKASEY: I reviewed the petition of opinions relating to the subpoenas that I think you're talking about. And I believe they are valid. I think what's different is, in large part, the fact that we're talking, oddly, about two matters. One is congressional oversight, the other is executive privilege. Oddly, neither of which is provided for directly in the Constitution, but both of which are implicit in the Constitution.
REP. SCHIFF: Well, I mean, you don't deny the power of the Congress to subpoena someone to come and testify, right?
ATTY. GEN. MUKASEY: No, we do not.
REP. SCHIFF: The only question is whether the privilege applied. And how can it be the policy of the department, how can it be legal to take the position that we can simply fail to appear and not have to particularize any claim of privilege based on our own internal opinion?
ATTY. GEN. MUKASEY: I think when you're talking about people who were directly involved in advising the president, we're not talking about people who were lower down in the executive but people who were directly involved in advising the president, the principles are somewhat different.
REP. SCHIFF: Well, they can make those arguments, I would assume, when they appear before Congress when they're asked to take a question, that this question was a subject of discussion with executive and, therefore, is privileged. The president -- (inaudible) -- respect to some of the things that the Congress was interested in that he wasn't a party to the discussions. And so presumably, there would be areas of testimony that would not be within the realm of executive privilege. So how can we make that determination in a vacuum?
ATTY. GEN. MUKASEY: Even if the president is not, himself, a direct participant, there is a decision-making process within the White House that has been found to be the subject of executive privilege.
REP. SCHIFF: And that's probably exactly correct. But that would not apply to every question about every issue and can't be made, I think, in isolation within the executive. If I can ask you also, Mr. Attorney, ask you to put your federal judicial hat on again. The Congress disagreed with your opinion --
ATTY. GEN. MUKASEY: That would be a violation of --
REP. SCHIFF: Well, just for the purpose of today. The Congress disagreed with the opinion of the Office of Legal Counsel. It found that the failure to appear constituted contempt. According to the statute that when the Congress makes that finding, the United States attorney, "whose duty it shall be to bring the matter before the grand jury for its action." So once it's brought before the U.S. attorney, the statute says that that U.S. attorney shall bring the matter before the grand jury. Now, when, as a federal judge, have you interpreted the word "shall," such clear terms, to mean may? And what's the basis for instructing U.S. attorney that the requirement that he shall bring it before the grand jury is somehow discretionary?
ATTY. GEN. MUKASEY: I think the basis is set forth in an OLC opinion which says, essentially, that when there has been a finding of a valid claim of executive privilege, a United States attorney could not, under those circumstances -- that is, when there has been a finding that the claim of executive privilege is valid -- could not, under those circumstances, bring a contempt proceeding.
REP. SCHIFF: But don't you see how this would inoculate the executive in every circumstance? Because presumably, whenever the executive operates insisting what it's own attorneys tell it, it will then instruct the U.S. attorney not to enforce any type of a contempt citation. It seems to me that the issue will be placed before the grand jury to decide. But by the executive taking the position that we can write our own legal opinion to justify the failure to appear, and that we can write our own legal opinion to justify the failure to enforce our failure to appear, the executive inoculates itself from any enforcement mechanism by the Congress.
ATTY. GEN. MUKASEY: Respectfully, I don't think that inoculation is necessarily 100 percent effective, because as I understand it -- and I don't know this to be the fact -- but I have read that there is to be a lawsuit relating to those subpoenas. And that matter will be decided in the court.
REP. SCHIFF: Well, there is a lawsuit. We had to take that extraordinary step. But the problem that I'm pointing out here is that, as the chief law enforcement officer for the country, I don't think you can take the position that in answer to a lawful subpoena, the executive can simply fail to appear on the basis of its own attorney's view, and it can instruct its own attorneys not to enforce, contrary to the explicit language of the statute, when it does so.
ATTY. GEN. MUKASEY: I certainly agree with you as an across-the- board matter that that should not happen. But in these particular cases for reasons that we've outlined, we think it should. And that matter is going to be resolved in court. There have been previous cases involving assertions of executive privilege, and they have been sustained at times, overridden at times. And one case that comes strongly to mind is United States versus Nixon where the same material was subpoenaed by a grand jury and by a congressional committee. And where the issue broke was that, as to the grand jury subpoena, the subpoena was upheld, and the objection was overridden. And as to the congressional subpoena, essentially the same material, the objection was sustained.
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REP. SCHIFF: Thank you, Mr. Chairman.
I want to discuss for a moment the situation with DNA evidence.
Before I do, I do want to make one final point on the discussion we had earlier on the subpoena issue, and that is to raise a concern about what to me is a disturbing circularity in the arguments on this issue that we don't want to have to appear. We request our own lawyers to give an opinion. Our own lawyers tell us we don't have to appear. We don't appear. We're held in contempt. The statute says "that shall be brought before the grand jury." We don't bring it before the grand jury, because our legal opinion says that the failure to appear was okay. And it just goes around in a circle.
And the problem I see is that I think this undermines the Department of Justice; I think it undermines the Congress; and I think it undermines the checks and balances to the system. I understand this is the position you've taken on this issue, but I would just urge that in other contexts, that we not employ this circularity of reasoning that is flowing from these Office of Legal Counsel opinions. They should not be the first and last word about the obligations of the department.
Turning to DNA: I understand that the FBI has a backlog of about 200,000 convicted offender DNA samples. The backlog increased substantially in 2006 when a new law took effect requiring that a greater category of felons be required to submit DNA samples. There's another law that will take effect later this year or 2009 that will again expand the number of samples that we take. The fiscal year '09 request is a little over 30 million (dollars). That to me seems far short of what will be necessary to bring that backlog down.
So the first question I have is, is that going to be adequate to get rid of the backlog, particularly with the new law kicking in?
The second thing I want to ask is: A lot of our states and localities have a tremendous backlog of their own. And some cities -- I think I saw a report that the city of Oakland, for example, half of the rape kits have gone unanalyzed, which to me is a tragedy of enormous proportions that we could be taking rapists off the street, serial rapists off the street. And we're not, even though the evidence is sitting there in a lab unanalyzed.
The president a few years ago announced with great fanfare an initiative to spend over $200 million a year for five years to do away with that backlog around the country. But this year, all the funding for DNA has been rolled in with the Byrne Grant Program that funds everything and the sum of all of those programs is about 200 million (dollars). So it's got to be a fraction of what the president said he wanted to do some years ago and the backlog problem has gone away. So I want to ask your thoughts about that.
And then, finally, one last DNA question. I'm working on legislation that would try to make greater use of the private labs which localities are turning to. And when a private lab analyzes an offender sample -- not a case worker sample, that's more complicated, but just a swab from an offender -- it provides that to a local crime lab. The local crime lab can't upload that into the system to see if there's a match with this suspected murderer or rapist until there's a 100 percent technical review of what the private lab did.
And I'm interested to know if the department would support a legislative change that would allow the state lab to upload that sample prior to the technical review being done. The technical review would still have to be done at some point. But my understanding is, in every case where there's a hit because you upload a sample, they take a new sample from the offender anyway to double-check the work. So it's not like it's going to misidentify someone or you won't have to repeat the test anyway.
But the loss of that time means that someone that's committed a violent crime is still on the street committing other violent crimes before you take him off the street. So I'd be interested to know if you would support that kind of legislative change.
ATTY GEN. MUKASEY: Obviously we'll take a look at the legislation and give it serious evaluation. As to the DNA problem that you mentioned, I think a large part of it relates to getting in place regulations that do two things: One, impose standards on labs so that we can say that once we get results, they are reliable; but secondly, don't impose standards that are so high that no lab can meet them. And that's -- I'm told that we're close to getting the regs in place that'll do that, and that'll help correct for that problem and hopefully help clear up that backlog, which I'm told we can do, assuming that we get our house together as far as getting regulations.
REP. SCHIFF: Now, I assume you're referring to the private labs when you talk about the standards, or are you referring to the state and local crime labs?
ATTY GEN. MUKASEY: I'm referring to state and local crime labs.
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