Executive Privilege issue with Chairman Fascell, before the subpoena's due date. The objective of the discussion would be to obtain the committee's agreement to abide by the privilege claims or, failing that, to obtain an extension of the subpoena's due date. If the subcommittee and committee do not believe the privilege claims are well founded, and the documents are still not produced to Congress on the due date, they could vote to hold you (and the other Cabinet Secretaries involved) in contempt of Congress. The full committee's vote would then be reported to the full House. The House could then consider and vote out a citation holding you in contempt of Congress. Enforcement of such a citation presents difficult, technical legal issues. The House has three enforcement options: (1) it can refer the matter to a U.S. Attorney for prosecution under the criminal contempt of Congress statute; (2) it can initiate a civil action in Federal District Court to obtain a judicial order requiring compliance with the subpoena and, if necessary, a contempt of court enforcement order; and (3) theoretically, it can dispatch the Sergeant-at-Arms to arrest you and detain you in the Capitol (this is very unlikely today). Each action would be met by appropriate legal responses by Commerce and Department of Justice lawyers. cc. J McEnte (w/o attachment) Prepared by: July 3, 1991 INFORMATION MEMORANDUM Wendell L. Willkie, II Thomas H. Stillman OS/OGC/OCC-EXA 377-5301 Subpoena for Documents Requested by Rep. As you know, you have been served with a subpoena signed by the Chairman of the House Committee on Foreign Affairs (copy attached at Tab A). The subpoena demands production by Monday, July 8, of all documents requested by Rep. Gejdenson's subcommittee in its April 19 letter to you. The subpoena demands that if the documents are not produced by July 8 you appear before the subcommittee on July 10. Commerce produced six boxes of documents to the subcommittee on June 24, three days before the subpoena was served. We are prepared to produce the remaining documents, with the exception of two [one] categories[y] of documents. [First, BXA recently located in Commerce archives additional responsive documents dating back 12 years to 1979. These documents must be reviewed and processed before production to the subcommittee. [We plan to seek the subcommittee's agreement to accept these documents after the July 8 subpoena deadline.j subcommittee has agreed to accept production of these documents The second category of documents that we do not plan to produce on July 8 is those over which the President is asserting [may assert] Executive Privilege. This applies to only five documents in the Commerce Department's possession. None of these documents was originated at Commerce; each was generated by another agency (State, Defense, or the NSC). Copies of the five documents are attached at Tab B. The President plans to assert Executive Privilege over [five] additional documents that are not in Commerce's possession. Executive Privilege is a constitutionally based privilege of the Executive Branch to withhold information from the courts, the public, or the Congress. It has been asserted by numerous Presidents, beginning with George Washington, and it was explicitly recognized by the Supreme Court in United States v. (1974) Nixon (1974) The reason for the portion of the privilege applicable here, according to the Court, is "the necessity for 385 protection of the public interest in candid, objective, and even Blunt or harsh opinions in Presidential decisionmaking." Asymmay mally 30 on a case-by-case bas is a qualified one, a court weighs the best t 55-927 - 93-16 Executive Privilege issue with Chairman Fascell, before the subpoena's due date. The objective of the discussion would be to obtain the committee's agreement to abide by the privilege claims or, failing that, to obtain an extension of the subpoena's due date. If the subcommittee and committee do not believe the privilege claims are well founded, and the documents are still not produced to Congress on the due date, they could vote to hold you (and the other Cabinet Secretaries involved) in contempt of Congress. The full committee's vote would then be reported to the full House. The House could then consider and vote out a citation holding you in contempt of Congress. Enforcement of such a citation presents difficult, technical legal issues. The House has three enforcement options: (1) it can refer the matter to a U.S. Attorney for prosecution under the criminal contempt of Congress statute; (2) it can initiate a civil action in Federal District Court to obtain a judicial order requiring compliance with the subpoena and, if necessary, a contempt of court enforcement order; and (3) theoretically, it can dispatch the Sergeant-at-Arms to arrest you and detain you in the Capitol (this is very unlikely today). Each action would be met by appropriate legal responses by Commerce and Department of Justice lawyers. |