metings: to subpoena appearance of em ......metings: to subpoena appearance of em. ployees of the...

METINGS: TO SUBPOENA APPEARANCE OF EM.PLOYEES OF THE DEPARTMENT OF JUSTICEAND THE FBI AND TO SUBPOENA PRODUCTIONOF DOCUMENTS FROM ROCKWELL INTERNATION-AL CORPORATION

MEETINGSBEFORE THE

SUBCOMMITTEE ONINVESTIGATIONS AND OVERSIGHT

OF THE

COMMITTEE ONSCIENCE, SPACE, AND TECHNOLOGYU.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED SECOND CONGRESS

SECOND SESSION

JULY 30; AUGUST 12, 1992

[No. 146]

Printed for the use of theCommittee on Science, Space, and Technology

U.S. GOV3RNMKNT PRINTING OFFICIO

58-100 ±i WASHINGTON : 1992

For sale by the U.S. Government Printing Office

Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

ISBN 0-16-039208-X

H_!11 1 - 16

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

GEORGE E. BROWN, JR., California, ChairmanJAMES H. SCHEUER, New York ROBERT S. WALKER, Pennsylvania*MARILYN LLOYD, Tennessee F. JAMES SENSENBRENNER, Ja.,DAN GLICKMAN, Kansas WisconsinHAROLD L. VOLKMER, Missouri SHERWOOD L. BOEHLERT, New YorkHOWARD WOLPE, Michigan TOM LEWIS, FloridaRALPH M. HALL, Texas DON RITTER, PennsylvaniaDAVE McCURDY, Oklahoma SID MORRISON, WashingtonNORMAN Y. MINETA, California RON PACKARD, CaliforniaTIM VALENTINE, North Carolina PAUL B. HENRY, MichiganROBERT G. TORRICELLI, New Jersey HARRIS W. FAWELL, IllinoisRICK BOUCHER, Virginia LAMAR SMITH, TexasTERRY L. BRUCE, Illinois CONSTANCE A. MORELLA, MarylandRICHARD H. STALLINGS, Idaho DANA ROHRABACHER, CaliforniaJAMES A. TRAFICANT, JR., Ohio STEVEN H. SCHIFF, New MexicoHENRY J. NOWAK, New York TOM CAMPBELL, CaliforniaCARL C. PERKINS. Kentucky JOHN J. RHODES, II, ArizonaTOM McMILLEN, Maryland JOE BARTON, TexasDAVID R. NAGLE, Iowa DICK ZIMMER, New JerseyJIMMY HAYES, Louisiana WAYNE T. GILCHREST, MarylandJERRY F. COSTELLO, Illinois SAM JOHNSON, TexasJOHN TANNER, Tennessee GEORGE ALLEN, VirginiaGLEN BROWDER, AlabamaPETE GEREN, TexasRAY THORNTON, ArkansasJIM BACCHUS, FloridaTIM ROEMER, IndianaROBERT E. "BUD" CRAMER, AlabamaDICK SWZIT, New HampshireMICHAEL J. KOPETSKI, OregonJOAN KELLY HORN, MissouriELIOT L. ENGEL, New YorkJOHN W. OLVER, Massachusetts

RADioRD BycLvy, JR., Chief of StaffMiCHAzL RODWMTR, Chief CounselCAROLYN C. Gmuurmuw, Chief Clerk

DAvw D. CLtmT, Republican Chief of Staff

SUBCOMMITFKE ON INVTIOAIONS AND OVE GHT

HOWARD WOLPE, Michigan, ChairmanPEE GEREN, Texas SHERWOOD L. DOENLERT, New YorkDAVID R. NAGLE, Iowa F. JAMES SENSENBRENNER, JR.,JOHN TANNER, Tennessee WisconsinRAY THORNTON, Arkansas

'Ranking Republican Member.

CONTENTS

MEETINGSPape

July 30, 1992:Meeting of the Subcommittee on Investigations and Oversight .................... 1

August 12, 1992:Meeting of the Subcommittee on Investigations and Oversight ..................... 79

APPENDIX

SuBcoMMirr'm MATERIAL RzLATE TO JULY 30, 1992 MEETING

Item 1. A agenda .......................................................................................................... 143Item 2. Subcommittee Staff Memo dated July 27, 1992 to Chairman

W olp e ...................................................................................................................... 144Item 3. Congressional Research Service Memo dated July 22, 1992 enti-

tled "Analysis of Investigative Jurisdiction of House Science, Space,and Technology Committee with Respect to Rockwell InternationalCorporation Plea Bargain". ................................................................................ 152

Item 4. Letter dated June 16, 1992 to Committee Chairman George Brownfrom Ranking Republican Robert S. Walker .................................................. 161

Item 5. Article entitled "Indirect Issues Shaped Rocky Flats Plea" fromThe DOJ Alert, Vol. 2, No. 7, July 1992 ........................................................... 163

Item 6. Article entitled "DOJ s Environmental Mess" from Legal Times,W eek of July 20, 1992, Vol. XV, No. 9 ............................................................. 165

(nI)

MEETING: TO SUBPOENA APPEARANCE OF EM-PLOYEES OF THE DEPARTMENT OF JUSTICEAND THE FEDERAL BUREAU OF INVESTIGA-TION AND TO SUBPOENA PRODUCTION OFDOCUMENTS FROM ROCKWELL INTERNATION-AL CORPORATION

THURSDAY, JULY 30, 1992

HOUSE OF REPRESENTATIVES,COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY,

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT,Washington, D.C.

The subcommittee met, pursuant to call at 10:30 a.m. in Room2325, Rayburn House Office Building, the Hon. Howard Wolpe[Chairman of the subcommittee] presiding.

Mr. WOLPE. The committee will come to order, and I note thepresence of a quorum.

On June 1st, 1992, the United States Federal Court for the Dis-trict of Colorado accepted a plea bargain between the United StatesDepartment of Justice and RockwelI Corporation for violations ofenvironmental laws committed by Rockwell in its capacity as man-agement and operating contractor of the Rocky Flats nuclear weap-ons plant.

The settlement was a culmination of a five-year investigation ofenvironmental crimes at the facility, conducted by a joint Govern-ment task force involving the FBI, the Department of Justice, EPA,EPA's National Enforcement Investigations Center, and, in a limit-ed capacity, the Department of Energy Inspector General.

Under the agreement, Rockwell pleaded guilty to 10 criminal vio-lations of environmental laws, including four felony violations ofthe Resource Conservation and Recovery Act, one felony violationof the Clean Water Act and five Clean Water Act misdemeanors,and paid a fine of $18.5 million.

At first glance, this appears to be a fairly impressive agreement.However, a review of the documents related to the investigationand settlement of this case raises some troubling issues. The $18.5million fime does not even match the $22.4 million in profits thatRockwell received from the Government for the period duringwhich the crimes were committed. Moreover, Justice, EPA, and theColorado Department of Health gave up the right to pursue thecorporation and its employees for any further violations related toany environmental matters at Rocky Flats that were knownthrough the date of the settlement, thus foregoing potentially mil-

lions of dollars in additional criminal and civil penalties. Addition-ally, serious allegations related to environmental crimes and crimi-nal conduct by Government and Rockwell officials were not re-solved.

The entire settlement also raises some troubling institutionalquestions. A recent press story about the settlement-based oninterviews with individuals familiar with negotiations--painted apicture in which the Government's own self-interest overrode ag-gressive enforcement of laws to protect the public's interests.

Incredibly, the nature of DOE's contract with Rockwell indemni-fied the company for all costs, even fines, unless the Governmentproved the actions resulted from misconduct or lack of good faith.That would require more than showing that Rockwell personnel in-tentionally violated the law. It would require proof that Rockwellmisled DOE by its activities at the site. And, of course, Rockwellmaintained it was just following DOE's orders.

The article further pointed out that the government was not anx-ious to convict its own officials for these crimes, because then itwould be exposed to potentially large civil suits by citizens in thesurrounding communities.

This description, if accurate, is very unsettling. Rockwell settlesfor minimal counts and a relatively small fine. Serious charges,which might lead to a debarment of Rockwell, convictions of Rock-well and Department of Energy officials, to large civil suits, wereall bargained away because the government officials believed it wasnot in their interest to pursue the charges. The government shouldnever put itself in a position where its interests conflict with thepublic it was elected to serve.

Clearly, the facts of this case, and the institutional questionsraised here are of great importance to the Congress and this sub-committee. The subcommittee has a manifest interest in the per-formance of the Department of Energy and Rockwell International.The Committee on Science, Space, and Technology has jurisdictionover a significant number of DOE programs, while Rockwell is amajor contractor to agencies under the jurisdiction of this commit-tee-especially the National Aeronautics and Space Administra-tion. It is imperative that in the course of making major policy andfunding decisions, the committee be fully informed of all activitiesof those parties that may call into question their ability to fulfilltheir contractual and programmatic responsibilities within the con-fines of the law. It is also critical that we be assured that our agen-cies are not signing contracts so full of loopholes and protectionsfor the contractors that they literally and figuratively become li-censes to pollute.

Moreover, it is essential that the subcommittee and full commit-tee be assured that the Department of Justice will effectively andfairly act to hold such parties accountable in the event of wrongdo-ing. Otherwise, there is no guarantee that the policy and programsenacted by this committee will be enforced.

The subcommittee initiated a preliminary investigation into theRocky Flats settlement to explore these issues. It was hoped thatmany of the questions could be addressed through interviews withthe FBI agents and Department of Justice attorneys who were re-sponsible for the case. Without the input of the personnel who

3

were directly involved in the intimate details of the case, it will beimpossible for the subcommittee to adequately fulfill its oversightresponsibilities to the full committee and the Congress.

Without objection, I will enter into the record the correspond-ence between the subcommittee and the Department of Justice andthe FBI on this matter.

[The information follows:]

U.S. HOUSE OF REPRESENIATIVIES

COMMITTEE ON SCIENCE, SPACE,AND TECHNOLOGY

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The Honorable William S. SessionsDirector, Federal Bureau of InvestigationJ. Edgar Hoover Building, Room 7176Washington, D.C. 20535

Dear Mr. Sessions:

As part of its ongoing oversight of environmental complianceby federal agencies, the Subcommittee is conducting a review of therecent settlement with Rockwell. Specifically, the Subcommittee isreviewing the issues and activities cited In a 1989 application andaffidavit for a search warrant, and the resolution of those items.

In order to assist the Subco'mittee in its review, I requestthe following:

1.) That the FBI provide a briefing to the Subcommittee onthis matter, including, but not limited to the facts of the case,the details of the involvement and activities of the FBI, and thedetails of the issues and activities covered by the investigationand the resolution of those items;

2.) That the special agent who signed the search warrant, aswell as all other agents who were involved in the case, be madeavailable for interviews by Subcommittee staff in the Subcommitteeoffices during the week of June 22;

3.) That the FBI maintain possession of all materialscollected and or acquired during its investigation of these mattersin anticipation of a document request from this Subcommittee; and

4.) That the FBI supply the Subcommittee with all of theRecords of Interviews (also referred to as the 302's) produced inconjunction with this case no later than July 2, 1992. In order toexpedite the Subcommittee's review of this issue, please providethe requested material as it becomes available, rather thandelaying delivery until all of it is ready for delivery.

June 11, 1992

5

The Honorable William S. SessionsJune 11, 1992Page 2

Please contact Bob Roach, Chief Investigator of theSubcommittee (225-6427) if you have any questions about thisrequest and to make arrangements for the interviews and delivery ofthe requested materials.

Thank you for your attention to this matter.

Sincere y,

owayrd Wo e -

Chairma ,Invest gations andOversight Subcommittee

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Michael NortonU.S. Attorney1961 Stout St., 12th floorDenver, Colorado 80294

Dear Mr. Norton:

Pursuant to its oversight responsibilities under Rule 26 ofthe Science, Space, and Technology Committee, the Investigationsand Oversight Subcommittee is conducting a review of the recentlyconcluded criminal case against Rockwell, Inc., resulting from itsactivities at the Rocky Flats nuclear weapons plant.

As part of that review, Edith Holleman, the Subcommitteecounsel, had requested a meeting with you. Ms. Holleman will be inDenver next week as part of this review to talk to relevantgovernment officials. She subsequently received a message from youthat you would be in trial next week, and that it was yourunderstanding that all interviews with you were to be coordinatedthrough the Justice Department's Office oe Legislative Affairs(OLA). However, OLA staff had already informeG Ms. Holleman thatit is not responsible for your interactions with Congressionalstaff as you are an independent, Senate-confirmed appointee withseparate Congressional reporting responsibilities.

Therefore, I am reiterating the Subcomnittee's request for aninterview. If your trial continues for all of next week, and thatweek is not otherwise convenient for you, I am requesting that youmake arrangements to be available for an interview withSubcommittee staff in the Subcomittee offices in Room 822, HouseAnnex I, in Washington during the week of June 22.

1 am also requesting that you and your office maintainpossession of all materials collected, acquired, created or usedduring its prosecution of the Rocky Plats case in anticipation ofa document request from the Subcomittee.

7

Mr. Michael NortonJune 12, 1992Page Two

Please contact Ms. Holleman, who can be reached this week atthe Subcommittee offices at (202) 225-4494 or next week at (303)694-0525 in Englewood, or Bob Roach, chief investigator, at (202)225-4494, to make arrangements for this interview. Your assistancein this matter is appreciated.

Since ely,

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Subc ittee on Investigationsand Oversight

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June 23, 1992

William P. Barr IIIAttorney GeneralU.S. Department of Justice10th and PennsylvaniaWashington, D.C.

Dear General Barr:

Pursuant to its oversight responsibilities under Rule 26 ofthe Science, Space, and Technology Committee, the Investigationsand Oversight Subcommittee is conducting a review of the recentlyconcluded federal criminal case against Rockwell, Inc., resultingfrom its activities and those of the Department of Energy at theRocky Flats nuclear weapons plant.

As part of that review, I request that Kenneth Fimberg, theassistant United States attorney in charge of that prosecution, bemade available to the Subcommittee staff for an interview onTuesday, June 30, 1992, at 10 a.m. in the Subcommittee offices inHouse Annex 1, Room 822. This request represents theSubcommittee's second attempt to interview Mr. Fimberg, who hadearlier been made available to both local and national press todiscuss the settlement of this case. Subcommittee staff maJe afirst request on June 11, 1992, prior to a staff trip to Denver,but was told by the Department's Office of Legislative Affairs thatis was the "general practice" of the Department that 'lineattorneys" are not available to Congrecsional committees, eventhough they are allowed to speak with members of the press. I havesince learned that this 'practice' appears to be quite flexible asother Congressional committees have interviewed assistant U.S.attorneys.

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Please have your staff contact Bob Roach, the Subcommittee'schief investigator, at (202) 225-4494 if you have any questionsabout this request and to make arrangements for the interview.


Sincerely,

HOWARD pChain i

e SubcU ittee on Investigationsand Oversight

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The Honorable William S. SessionsDirectorFederal Bureau of InvestigationJ. Edgar Hoover Building, Room 7176Washington, D.C. 20535

Dear Mr. Session:

Yesterday, Investigations and Oversight Subcommittee staff metwith Patrick Connolly of the Federal Bureau of Investigation (FBI)concerning the Bureau's response to my letter of June 11 whichrequested certain briefings, interviews and documents from theBureau. In the following paragraphs, I am describing myunderstanding of the positions taken by the Bureau on each of theserequests. If any of these descriptions are incorrect, pleaseclarify the Bureau's position in writing.

1. I requested that the FBI provide a briefing to theSubcommittee on its investigation of possible criminal activitiesat the Rocky F'ats site, including, but not limited to the facts ofthe case, the details of the involvement and activities of the FBI,and the details of the issues and activities covered by theinvestigation and the resolution of those items. This briefing hasnot been scheduled. At yesterday's meeting, Subcommittee staffrequested that this briefing be held as soon as possible.

FBI RESPONSE: Mr. Connolly indicated that he wcrld contactthe appropriate people and contact the Subcommittee staff today(June 26) concerning a decision as to whether and when the briefingwould be held. The people most likely to be involved would beRobert Schiradio, a supervisory special agent, and WilliamEsposito, chief of the white collar crime section. Mr. Connollycould not confirm a briefing would be given, but was unaware of theBureau ever refusing to grant a briefing.

2. I requested that the FBI provide the special agent whosigned the affidavit for a search warrant in the Rocky Flats caseas well as all other agents who were involved in the case forinterviews in the Subcommittee offices during the week of June 22.These interviews have not been scheduled.

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The Honorable William S. SessionsJune 26, 1992Page Two

FBI RESPONSE: Mr. Connolly stated that the PBi policy was torefuse to provide investigative personnel for Congressionalinterviews. He said that he was not authorized to make theinvestigative agents available, and the FBI was not in a positionto make the agents available. After Subcommittee staff pointed outthat FBI agents had been made available to other committees, Mr.Connolly said that he would discuss my request with his supervisorand others within the Bureau and respond to the Subcommittee.Although the staff asked for a written statement of the FBI'sposition in ?:is matter, Mr. Connolly said he was not able at thatpoint to commit to a written response. It would be hisrecommendation to superiors that a written response be sent.

3. I requested that the FBI maintain possession of allmaterials collected and/or acquired during its investigation ofthese matters in anticipation of a document request from thisSubcommittee.

FBI RESPONSE: Mr. Connolly indicated that the relevantoffices had been contacted and instructed to maintain possession ofthese materials.

4. I requested that the FBI supply the Subcommittee with allof the Records of Interviews (also referred to as 0302s') producedin conjunction with this case no later than Thursday, July 2, 1992,and that they be provided as the material became available, ratherthan delaying delivery until all documents have been received.

FBI RESPONSE: Mr. Connolly indicated that the 302s would beprovided, but would have to be reviewed by the Office of LegalCounsel for 6(e) privileges under the Federal Rules of CriminalProcedure and to address other concerns. He said that this workcould not begin until mid-July and would take several weeks.

Mr. Connolly asked if the Subcommittee could prioritize itsrequest to facilitate a response by the Bureau. To comply withthat request, the Subcommittee staff asked that the FBI providethree items: 1) A list of the names of the persons for which 302inteniew forms were completed, 2) A description of any computersystem established or used to manage documents during thisinvestigation, and 3) any lists of the documents that were acquiredor generated by the FBI during this investigation. The staff alsoinvited the Bureau to provide it with any other such lists, indicesor other information that might facilitate the effort by theSubcommittee to prioritize and assist the Bureau.

The Honorable William S. SessionsJune 26, 1992Page Three

Therefore, based on that meeting, I request:

1. That the briefing discussed in Item 1 above be providedduring the week of June 29, 1992.

2. That the FBI provide a list of persons for which 302interview forms were completed, and the date(s) of eachinterview by 5 p.m., Friday, July 10.

3. That, during the week of June 29, 1992, the FBI providethe Subcommittee staff with a briefing on the developmentand/or use of a computerized and/or manual tracking and/ordocument retrieval system for the Rocky Flats investigation.

4. That, by 5 p.m., Thursday, July 2, 1992, the FBI provideall documents in its possession describing the computerizedand/or manual tracking and/or document retrieval systemdeveloped and/or used for the Rocky Flats investigation.

5. That the FBI provide a copy of all lists of documentsgenerated in this investigation, whether maintained in acomputerized form or within a computer storage media of anyform or in a print, handwritten or any other form by 5 p.m.,Friday, July 10, 1992.

6. That the FBI provide a list of the agents involved in theinvestigation of this case by 5 p.m., Thursday, July 2, 1992.

7. That those agents be made available for interviews bySubcommittee staff in the Subcommittee offices during the weekof July 6, 1992.

Several of these requests are being made in an attempt toassist and, hopefully, lessen the burden on the FBI in respondingto my initial letter of June 11. Please have your staff contactBob Roach, Subcommittee chief investigator, at (202) 225-4494, toarrange for these briefings and interviews or if you have anyquestions or need additional information.


Sincerely,

Subcommittee on Investigationsand Oversight

U.S. Department of Justke

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June 29, 1992The Honorable Howard WolpeChairman, Subcommittee on

Investigations and OversightCommittee on Science, Space, and TechnologyU.S. House of RepresentativesWashington, D.C. 20515

Dear Mr. Chairman:

This is in response to your June 23, 1992 letter to theAttorney General, requesting that the Department of Justice makeAssistant United States Attorney Kenneth Fimberg available foran interview with the staff of the Subcommittee.

Your letter indicated that the interview would be part ofthe Subcozmittee's review of the criminal prosecution againstRockwell, Inc. with respect to the Rocky Flats nuclear weaponsplant. Subject to resolution of the jurisdictional issue that wehave discussed with your staff, we will permit Mr. Fimberg tojoin United States Attorney Michael Norton in the Subcommitteestaff interview that has already been scheduled for July 10,1992. This exception to the Department's policy against makingline attorneys available for congressional interviews is based onthe fact that Mr. Fimberg has participated in a press conferenceon this case.

You should be aware that there may be certain areas ofquestioning to which Messrs. Norton and Fimberg may not be ableto respond. For example, national security concerns areobviously implicated in any review of defense nuclear facilitiessuch as Rocky Flats. Moreover, as we have discussed with yourstaff, the prosecutors are subject to the grand jury secrecyrequirements of Rule 6(e) of the Federal Rules of CriminalProcedure, and they will similarly be constrained in discussingthe internal deliberations of this Department in connection withits exercise of prosecutorial discretion.

14

Please do not hesitate to contact me or Faith Burton of mystaff if you wish to discuss this matter.

sincere y,

W. Lee RawlsAssistant Attorney General

cc: Honorable Sherwood L. BoehlertHonorable Les AspinHonorable William Dickinson

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William P. Barr IIIAttorney GeneralU.S. Department of Justice10th and Pennsylvania AvenueWashington, D.C.

Dear General Barr:

On June 29, 1992, I received a letter from W. Lee Rawls, theassistant attorney general for the Office of Legislative Affairs,in response to my June 23 letter to you. Mr. Rawls stated thatKenneth Fimberg, the assistant United States attorney in chargeof the federal criminal case against Rockwell International,Inc. , resulting from its activities and those of the Departmentof Energy at the Rocky Flats nuclear weapons plant, would be madeavailable to the Subcomittee staff for an interview on Friday,July 10, in conjunction with the staff interview alreadyscheduled with United States Attorney Michael Norton.

However, Mr. Rawls appeared to suggest that Mr. Fimberg'savailability was conditional upon the resolution of some as-yet-undefined jurisdictional problem.

It is my firm belief - - which is supported by the counsel ofthe House of Representatives -- that the jurisdictional scope ofthe Science, Space, and Technology Committee is decided by thisbranch of government and not by the executive branch. As you mayknow, representativesof the Department of Justice demanded ajurisdictional statement from the Subcommittee in their meetingwith staff on Wednesday, June 23. This statement was immediatelyhand delivered to them in the form of my letter to you of June23. Therefore, I consider that any misunderstanding theDepartment may have had about jurisdiction has been resolved.

However, there are other matters concerning documents andinterview procedures raised by your staff that bear furtherdiscussion. I am aware of the restrictions of Rule 6(e) of theFederal Rules of Criminal Procedure which protect disclosure ofthe deliberations of the grand jury, but those limitations are

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William P. Barr II!July 2, 1992Page Two

not nearly as broad as our briefing from the Department implied.Also, to the extent that the Justice Department is concerned thatcertain aspects of the Subcommittee's investigation will touchupon prosecutorial discretion, please be advised that over sixdecades ago, the United States Supreme Court found that Congresshad the power to look into and obtain information and documentsconcerning the Department of Justice's exercise of prosecutorialdiscretion. McGrain v. Daughtery, 273 U.S. 135 (1927). Mr.Rawls' statement that implies that the Department is constrainedby the Federal Rules of Criminal Procedure from discussing thesematters is clearly incorrect.

Therefore, I am requesting that Mr. Rawls meet with membersof my staff and Chairman Brown's staff to discuss in specificdetail those issues. I am requesting that this meeting be heldno later than Wednesday, July 8, 1992. Please contact Bob Roach,Subcommittee chief investigator, at (202) 225-4494, or MichaelRodemeyer, Couittee counsel, at (202) 225-6375 to makearrangements for this meeting.

Additionally, to acquaint you with the Subcommittee's rulesconcerning staff interviews, I have enclosed a copy of our May 9,1991, letter to Secretary James D. Watkins, Department of Energy,describing that policy.

Thank you in advance for your cooperation in this matter.

Sincerely,

Chai 4n~Su mmittee, on Investigationsand Overs: .ght

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The Honorable James D. WatkinsSecretaryDepartment of EnergyWashington. D.C. 2055

Dear Mr. Secretary.

As you know, the Subcommittee on Investigations and Oversight of the Science.

Space and Technology Committee. pursuant to its authorities under Rules X and XT

of the United States House of Representatives. has been reviewing the Department

of Energy's proposed Superconducting Super ColJider (SSC) program. On March

20. 1991. as part of this review, a staff interview was conducted with Mr. Robert

Scarlett. the bead of the Independent Cost Estimating (ICE) staff, to determine the

basis for its cost estimate for the SSC.

During the course of arranging for that interview, the Department of Energy's

SCongressional Affairs office advised that it is Departmental policy that interviewee

may bring one person of their choice to an interview. In our letter to you on

March 8. we made it plain that it is the policy and practice of this Committee

consonant with the constitutional oversight prerogatives of the House of

Representatives, to set the ground rules for its investigatory proceedings, including

the manner in which the staff interviews of agency officials wili be conducted. As

we explained. the inherent potential for conflict of interest arising from the

presence of a Department official. as weU as the possible inhibiting effects of such a

presence. underlie this policy. But we noted that interviewees may be accompanied

by a personal attorney. Mr. Scarlett chose to attend alone, in apparent

acknowledgment of the Subcommittee's policy.

However, on March 22, 1991. we received a letter from M. Jacqueline

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The Honorable Ja)m D. WatkinsMay 9. 1991Pass

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indicating a continued insistence on the Department's rejected sta . As aconsequent, we feel compelled to set forth concisely the pragatic and legalrationale for the Subcommittee's overriding policy.

The ability of the Subcommittee to effectively carry out its oversight

responsibilties requires that it be confident that the responses it obtains from

officers and employees with respect to the administration of agency programs are

candid. objective, and truthfuL We have no way to ascertain with any degree of

certainty whether any interviewee's particular request to be accompanied by

Departmental personnel is. in (act. 'based solely on the employee's persona

wishes.' Our policy, then. seeks to insulate an interviewee from presence of

departmental personnel during a staff interview and stems from our desire to

assure effective oversight of Departmental operations wle protecting interviewees

from the possibility of abuse. threats, and coercion.

The legal basis to ensure the effective accomplishment of the Subcommittee

oversight responsibilities is unassailable. It has been deemed axiomatic that '[al

legislative body cannot legilate wisely or effectively in the absence of information

regarding conditions which the legislation is intended to affect or change.* Mcgi

VD 273 US. 1I.S 175 (1927). In a variety of contexts, the Courts have

recognized that the "power of inquiry - with process to enforce it - is an essential

and appropriate auxiliary to the legislative function.* Id. at 174. As a consequence.

'Congress. whether as a body. through committees, or otherwise, must have the

widest possible access to executive branch information, if it is to perform its

manifold responsibilities effectively.' Murphy v. Department of the Army. 612 F.2d

1151. 1158 (D.C. Cir. I9). For that reason. "'(t1he scope of the (Congressional)

power of inquiry ... is as penetrating and far-reaching as the potential power to

enact snd appropriate under the Constitution." Eastland Y. United State

Servicemen'. fund, 421 U.S. 491. 504 n.14 (1975) (quoting Barenblatt v. United

The Honorable James D. WatkinsMay 9. 1991Page 3

&a" 360 U.S. 109. W (1959)).

Thus. Congress has been vested with broad. oonstitutionally based oversight

powers to ensure that public officials remain accountable to legislative scrutiny to

allow it to see whether its laws are being fully executed. Watkins v. United States,

354 U.S. 178. 187 (1957). Moreover, through the enactment of specific statutes, it

has sought to protect the rights of public employees to conunicate with Congress

and provide information and materials t,' the Members and Committees of

Congress. Experience has demonstrated that government employees who feel free

to provide evidence at public for& are essential tools of government aocountability.Congress in the past bad proscribed 'gag orders' forbidding federal employees from

directly communicating with Congress without seeking the approval of their

supervisors and guaranteed the right of civil servants to freely communicate with

elected representatives. The Lloyd-LaFollette Act. S U.S.C. S 7211, provides that-

The right of employees. individually or collectively. to petitionCongress or a Member of Congress. or to furnish informationto be Committee or Member thereof. may not be interferedwith or denied.

Alo. in the Civil Service Reform Act of 1978. Congress again emphaized its

need for a free flow o( information from the Executive Branch by mating it

unlawful to take reprisab against so-caUed "wbistieblowers." SM $ U.C. S2302(bX8). The Senate Report declared: "Protecting employees who disclose

governmental illegality, waste, and corruption is a major step toward a more

effective civil service. In the vast bureaucracy, it is not difficult to conceal

wrongdoing provided that no one summons the courage to disclose the truth.' S.

Report No. 969. 95th Cong.. 2d Sess. 8 (1978). In 1988 and 1989. Congress further

strengthened the protections of whistleblowers. See Military Whistleblowers

Protection Act. P.L 100-456. S 846 102 Stat. 1918. 20V-30 (1988). codified at 10

U.S.C. S 1034; and the Whistleblowers Protection Act of 1989 P.L No. 101-2, 103Stal 16.

20

7e Honorable James D. WatkijnMay 9. 199Pap 4

F'tnaly, Congress ba made it a violation of federal criminal law to impede a

Congressional investigation or intimidate Congressional witnesses. Se 18 U.S.C. $

1 and 1512(bXc).

We are €onfident that you are sensitive to the need to folow both the letter

and spnt o( these important statutes and case precedents and understand their

close relations ip to the requirements of uninhibited Subcommittee access to

departmental personneL Further insistence on the Department's interview policy.

with its potential damage to and chilling effect on continued cooperation of

department employees with current and future Subcommittee inquiesk poses the

threat of an unnecessay obstack to what heretofore has been a productive

relation. Certainly the option afforded any interviewee of requesting the presence

of a personal attorney sufrKienUy protects the interests of the interviewea and

satisfies any perceived obligation of the Department.

We appreciate your cooperation in this matter and look forward to working

with you in the future.

Sincerely,

W W E SHERWOOD BOEHLERT

Su oSuommittee on Investigationand Oversight and Oversight

U&S Depeitmeat at JugtieOffice of Legislative Affairs

Oftie of the Anui" A~ P aq GetW~ f DC IfflAc

July 8, 1992

Honorable Howard WolpeChairmanSubcommittee on Investigationsand Oversight

Committee on Science, Space,and Technology

U.S. House of RepresentativesWashington, D. C. 20515

Dear Mr. Chairman:

As you requested in your letter to the Attorney General,dated July 2, 1992, I have agreed to meet with Committee andSubcommittee staff to discuss certain issues that have arisen inconnection with the Subcommittee's current review of the criminalprosecution against Rockwell, Inc. with respect to the RockyFlats nuclear weapons plant.

The meeting was scheduled for 1:30 p.m. today, and I andother Department representatives were prepared to attend in aneffort to resolve these issues in a way that would accommodateour respective interests. We were informed just prior to themeeting, however, that the full Committee Minority Chief of Staffand General Counsel had asked to attend today's meeting but wouldnot be permitted to attend. We believe that these importantpending issues can best be resolved by the Committee's unifiedefforts with this Department. Hence, we regret that the meetingthis afternoon could not go forward but we are prepared toschedule another meeting, on short notice if necessary, when theMinority Chief of Staff and General Counsel are to be included.

Several of the issues we would have addressed today pertainto the interview of U.S. Attorney Norton and Assistant U.S.Attorney Fimberg, which was scheduled for Friday, July 10, 1992.Since those issues have not been resolved and the individualsplanned to travel today, this interview has been postponed.Again, we are ready to reschedule once the pending concerns havebeen addressed.

22

Please contact me if there are any questions about thismatter.

Sincerely,


cc: Honorable George E. Brown, Jr.Honorable Robert S. WalkerHonorable Sherwood L. Boehlert

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(202) 2214371

July 8, 1992


Dear General Barr:

On July 2, 1992, in a letter to you, I requested that W. LeeRawls, the assistant attorney general for the Office of LegislativeAffairs (OLA), meet with Subcommittee staff to discuss issuesconcerning our scheduled interviews with Michael Norton, UnitedStates Attorney for the District of Colorado, and Kenneth Fimberg,an assistant U.S. attorney under Mr. Norton, on Friday, July 10.These interviews were for the purpose of discussing the Rocky Flatscase. Because of some of the legal concerns raised by the JusticeDepartment, I had asked that Michael Rodemeyer, the Committee'scounsel, participate in that meeting.

On Tuesday, July 7, shortly after 5 p.m., Mr. Rodemeyerreceived a call from Mr. Rawls. In a return phone call within thehour, Mr. Rawls and Mr. Rodemeyer agreed that the meeting would beheld today at 1:30 p.m. in the Committee offices in 2320 Rayburn.Today, shortly before the scheduled meeting time, Mr. Rawls calledMr. Rodemeyer and left a message indicating that he had put themeeting on hold because he "understood" that the full Committeeminority staff director objected to the meeting taking place if hedid not attend. Upon my direction, Mr. Rodemeyer, in a return callat about 1:20 p.m., told Mr. Rawls that since I, as Subcommitteechairman, had requested the meeting, it was my prerogative todetermine who would be invited to attend. In a succeeding call afew minutes later, Mr. Rawls told Mr. Rodemeyer that he [Mr. Rawls]had decided that he would not meet with my staff because of thisdisputesl or "controversy". (Strangely enough, this 'dispute" wasnever raised with me or my staff by the minority staff director --nor was a request by the minority staff director to attend receivedin my office -- prior to the initial telephone call from Mr.Rawls.) Mr. Rawls further stated that he would meet with my staff

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William P. Barr IIIPage TwoJuly 8, 1992

only when this *dispute* was resolved, and also said that he wouldcancel the interviews with Mr. Norton and Mr. Fimberg it there wasno 'resolution' in the near future.

Since I am the Subcommittee chairman who made the request forthe meeting, I can assure you that there is no dispute that needsto be resolved. My staff will be in attendance at the meeting. Inaddition, the staff of the Subcommittee's ranking Republican hasbeen advised of the meeting and its purpose. To ensure that theinterviews scheduled for Friday, July 10, will take place asplanned, I request that the meeting between Mr. Rawls and my stafftake place Thursday; July 9, 1992, at 2 p.m. in the Subcommitteeoffices in House Annex 0 1, Room 822. Please have your staff callBob Roach, Subcommittee chief investigator, or Edith Holleman,Subcommittee counsel, at (202) 225-4494 to make arrangements forthis meeting.


Sincerely,

WARD pChain /n#Sub mmittee on Investigations

aed Oversight

25

U.S Deperims of JusticeOffice of LUistive Affairs

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July 9, 1992

Honorable Howard WolpeChairmanSubcommittee on Investigations

and OversightCommittee on Science, Space,

and TechnologyU.S. House of RepresentativesWashington, D. C. 20515

Dear Mr. Chairman:

It would appear that our respective letters dated July 8,1992 "crossed in the mails." In my letter, I explained theDepartment's view that it is desirable that the pertinent viewsof the Committee and the Subcommittee be represented at themeeting we had scheduled to address certain issues presented bythe Subcommittee's request for access to documents and Departmentattorneys relating to the criminal prosecution against Rockwell,Inc. with respect to the Rocky Flats nuclear weapons plant.

The Department remains prepared to meet in an effort toaccommodate the Subcommittee's interests. Since our documentsand employees are the focus of these interests and we have beeninformed that full Committee Minority staff have an interest inthese discussions, we want to ensure that all relevantcongressional interests are explored. We have assumed that youshare this belief, because your July 2, 1992 letter requested ameeting with both Committee and Subcommittee staff. In order tofacilitate this process, we are willing to host a meeting at 3:30pm today, July 9, 1992, here at the Department. Representativesof Majority and Minority Staff of the full Committee and theSubcommittee are welcome to attend. I believe that such aninclusive effort will more expeditiously advance all of interestsinvolved in this matter.

Finally, I must note for the record that the suggestion inyour letter that the Minority Chief of Staff of the fullCommittee had not requested and been denied attendance toyesterday's scheduled meeting prior to my initial call isinaccurate. All this is beside the point, however. It is myhope that all interested parties can get together today.

26

1 look forward to meeting this afternoon with representa-tives of the Committee and Subcommittee.

Sincerely,


cc: Honorable Georqe Z. Brown, Jr.Honorable Robert S. WalkerHonorable Sherwood L. Boehlert

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July 9, 1992

William P. Barr IAttorney GeneralU.S. Depment of Justice10th and PennsylvaniaWashington, D.C.

Dear General Bair.

I have 4q5s received ictier from W. Lee Rawls in response to my July 8,1992 letter to youregarding a meeting with my Subcommittee staff concerning the Rocky Flats matter.

Let me say that I find the tone and the content of this letter to be most inappropriate. Ihave tried to engage the Department of Justice in a good faith dialogue to address the Issuessurrounding this matter in a mutuatly agreable manner. The Department, however, seemsunwilling to engage in such a dialogue. Frankly, I find it very troubling that &a assistantattorney general for congressional reltions would have the temeity to try to date theterms and condition s of a meeting equesed by a Member of Congress. Such an approacbdoes not reflect wel on the profe4sn m of the Department of Justice.

I assume that representatives of the Department of Justice have met with the minority staffof the House Committee on Science, Space, and Technology concerning this and othermatters. I assume that additional meetings will occur in the future. I assure you that Iwould never be so presumptuous as to Insist that my Subcommittee staff be allowed toattend all such meetings. To do so, in my mind, would represent a serious breach of civility.In addition, it would seriously impede the capability of both majority and minority staffs toconduct their business.

Let's try to rise above this pettiness. I requested a meeting in my Subcommittee officetoday. As I have requested the meeting, I think you will agee that it Is within my discretionto determine who shall attend. I request that such a meeting occur today at 3:30 p.m. inHouse Annex l1 Room 822.

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Thank you in advance (or your cooperation in this mailer.

Sincere

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July 14, 1992

Mr. Donald R. Beall, ChairmanRockwell International Corp.2201 Seal Beach Blvd.Box 4250Seal Beach, Calif. 90740

Dear Mr. Beall:

Pursuant to its oversight responsibilities under Rule 26 ofthe Science, Space, and Technology Committee, the Investigationsand Oversight Subcommittee is conducting a review of the recentlyconcluded federal criminal case against Rockwell, Inc., in thefederal District of Colorado. This case resulted from a federaAinvestigation into the failure of Rockwell, formerly the managementand operations contractor at the Rocky Flats facility, and theDepartment of Energy, its owner, to comply with federal and stateenvironmental laws.

As part of that oversight, I am requesting that Rockwellprovide the Subcommittee with the following documents:

1. Copies of all letters, memoranda, notes, electronicand fax transmissions and any other documentsgenerated by Rockwell and/or its attorneys andtransmitted by any means to the U.S. Department ofJustice, the U.S. Attorney's Office for theDistrict of Colorado, the Environmental ProtectionAgency and/or the Colorado Department of Healthwhich relate to the negotiation of 1) the chargesin the information, 2) the final plea agreement, 3)the settlement of this criminal case and 4) anyother proposed plea agreements or settlements madeby Rockwell and/or its attorneys or the U.S.Department of Justice and/or the U.S. Attorney'sOffice for the District of Colorado.

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Mr. Donald R. BeallPage TwoJuly 14, 1992

2. Copies of all letters, memoranda, notes, electronicand fax transmissions and any other documentsgenerated by the U.S. Department of Justice, theU.S. Attorney's Office for the District ofColorado, the Environmental Protection Agencyand/or the Colorado Department of Health andtransmitted by any means to Rockwell and/or itsattorneys which relate to the negotiation of 1) thecharges in the information, 2) the final pleaagreement, 3) the settlement of this criminal caseand 4) any other plea agreements or settlementsproposed by Rockwell and/or its attorneys or theU.S. Department of Justice and/or the U.S.Attorney's Office for the District of Colorado.

Please provide these documents to the Subcommittee's officesby 5 p.m. on Tuesday, July 28, 1992. If you have any questions orreed additional information, please contact Bob Roach, Subcommitteechief investigator, or Edith Holleman, counsel, at (202) 225-4494.

I look forward to your cooperation in this matter.

Sincerely,

iittee on InvestigationsOversight

US. Department of Justke

Federal Bureau of Investigation

Honorable Howard WolpeChairmanSubcommittee on Investigations and OversightCommittee on Science, Space, and TechnologyHouse of RepresentativesWashington, D.C.

Dear Mr. Chairman:

This is in response to your letter to FBI DirectorSessions dated June 11, 1992, and in partial response to yourletter dated June 26, 1992, both of which relate to the RockyFlats Nuclear Facility investigation.

-As we indicated to your staff on June 25th, the FBIendeavors to assist your Subcommittee by responding to yourrequests as expeditiously as possible and to the extent that thelaw and applicable policies allow. While your request raises ajurisdictional issue that will be addressed separately by theDepartment of Justice and involves other concerns identifiedherein, please be assured that the FBI desires to cooperate withyour Subcommittee.

Our responses to the numbered paragraphs of yourJune 11th letter are as follows:

1. This office will promptly coordinate a briefing byFBI Headquarters personnel for you and/or members of your staffon the Rocky Flats investigation and its administration.

82

Honorable Howard Wolpe

2. Your staff has asked to interview FBI SpecialAgents and first-line Supervisors in this case. Consistent withthe long-standing policy of the FBI and Department of Justice,the FBI does not make such personnel available for interview. Wewill, however, make every effort to explore alternative ways forthe Subcommittee to obtain the information it desires. Normally,this is done through the interview of suitable managementofficials or by written communications.

Our policy is based, in part, on three factors. First,requests for information can almost always be satisfied by FBIpersonnel other than "street Agents." Second, a proliferationof such requests will adversely impact on the FBI's investigativeresponsibilities because of the logistical factors involved.Finally, and perhaps most importantly, the FBI believes stronglythat its field investigators must not be concerned about politicalissues as investigations are conducted. Special Agents should beunfettered by those concerns so as not to be impeded or daunted asthey follow whatever leads develop. Therefore, the FBI mustrespectfully decline your request for access to the Special Agentinvestigators in the Rocky Flats case.

3. The FBI will secure all materials currently in ourpossession that were collected and/or acquired during theinvestigation in anticipation of processing these documents basedupon your request.

4. Pursuant to discussions with your staff onJune 25th, the FBI will determine if there exists a list ofdocuments seized/acquired during the investigation, as well as alist of persons interviewed. These will be processed, and thenmay be used to further refine your document request and reducethe number of documents to be processed. The FBI has begun theprocess of acquiring the Records of Interviews (FD 302s) from ourDenver Field Office. The review necessary to protect informationsuch as the identities of confidential sources and qrand jurymaterial cannot begin until other documents have been processedin response to prior congressional requests. We would expect tobegin reviewing the Rocky Flats lists and 302s in mid to lateJuly, but will be unable to respond to your request for staggeredproduction until a preliminary review of the documents has takenplace.

88

Honorable Howard Holpe

we appreciate the Subcommittee's understanding ofour position and we look forward to cooperating with yourstaff as this matter proceeds. Please do not hesitate to callSSA Patrick L. Connolly, telephone number (202) 324-8381, of ourCongressional Affairs Office if you have any further questions.

Sincerely yours,

lei104 2 Coli oospector in Chargecongressional Affairs Office

1 - Honorable Sherwood L. BoehlertHouse of RepresentativesWashington, D.C. 20515

1 - Honorable Les AspinChairmanHouse Armed Services CommitteeHouse of RepresentativesWashington, D.C. 20515

1 - Honorable William L. DickinsonHouse of RepresentativesWashington, D.C. 20515

I - Honorable Jon KylHouse of RepresentativesWashington, D.C. 20515

U S. HOUSE OF REPRESENTATIVES


SUITE 2320 RAYOURN HOUSE OFFICE BUItDIPIWASHINGTON, OC 20616-6301

oiJ 225-431

July 22, 1992

The Honorable William P. Barr IIIAttorney GeneralU.S. Department of Justice10th and Pennsylvania Avenue, N.W.Washington, D.C. 20530

Dear Mr. Attorney General:

After reviewing our correspondence of the last several weeks,(see, e.g., my letters dated June 23, July 2, July 8 and July 9,1992, and return correspondence from W. Lee Rawls, assistantattorney general for legislative affairs, dated June 29, July 8,July 9 and July 15, 1992), I am forced to conclude that theDepartment of Justice has no intention of meeting with the staff ofthe Investigations and Oversight Subcommittee or providing therequested departmental employees for staff interviews. Theseinterviews are essential for our preliminary review of the issuesrelating to settlement of the government's criminal environmentalcase arising out of the actions of Rockwell International Inc. andthe Department of Energy at the Rocky Flats facility.,

The Department has purportedly agreed to provide for staffinterviews Michael J. Norton, the U.S. Attorney for the federalDistrict of Colorado and Kenneth R. Fimberg, the assistant U.S.Attorney in charge of this case. However, the Department'slegislative affairs staff has raised one feeble excuse afteranother as to why the Subcommittee staff cannot meet with thesepeople -- both of whom have already talked freely to the pressabout this case. Let me recap briefly the obstructionist behaviorof the Justice Department.

In early June, my staff called Mr. Norton and Mr. Fimberg toarrange to meet with them during a staff trip to Denver. Bothindicated that they had no objection, but that the interviews hadto be coordinated through Justice's headquarters office. Justiceacknowledged that, as a Senate-confirmed appointee, Mr. Norton hasindependent reporting responsibilities to Congress. His interviewwas to be scheduled through the Executive Office of U.S. Attorneys,and the Subcommittee was contacted by that office. The interview

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The Honorable William P. Barr IIIPage TwoJuly 22, 1992

was initially scheduled for June 30, and then postponed until July10. Mr. Norton's appearance, however, is now being held up byJustice's Office of Legislative Affairs, despite his "independentreporting responsibilities.'

Justice initially refused to provide Mr. Fimberg because ofyour position that 'line attorneys* should not be interviewed bCongressional committees, a policy which is selective at best.TSubsequently, the Department made an 'exception to (its] policy*after the Subcommittee pointed out that Mr. Fimberg hadparticipated in press conferences to discuss the settlementagreement. Then Justice stated that both of these interviews wouldoccur only when the Subcommittee resolved 'the jurisdictionalissue' that Justice and the Committee's ranking Republican memberhad raised. Justice gave no inkling of what it would deem a'resolution.'

Justice also attempted to generate another controversy bystating that the prosecuting attorneys would not be allowed to talkabout 'the internal deliberations of this Department in connectionwith its exercise of prosecutorial discretion.' I responded bypointing out to you the inaccuracy of your position as spelled outin the McGrain decision. Over six decades ago, the United StatesSupreme Court found that Congress had the power to look into andobtain information and documents concerning the Department ofJustice's exercise of prosecutorial discretion. Mc.Z_ inv.Daughtery, 273 U.S. 135 (1927).

In an attempt to cooperate, however, I asked for a meetingbetween staff and Mr. Rawls on Wednesday, July 8, to discuss thisahd other issues. I also enclosed a copy of a May 9, 1991, letterto Secretary James D. Watkins, Department of Energy, describing theSubcommittee's interview policy so that there would be nomisunderstanding concerning the Subcommittee's procedures. I hadasked the Committee's counsel to be present at that meeting. OnJuly 7, Mr. Rawls called the Committee's counsel and set themeeting for 1:30 p.m. on July 8 in a Committee room.

Shortly before the scheduled meeting, Mr. Rawls called theCommittee counsel and left a message that he had put the meeting onhold because he understood that the Committee's minority staff

j ustice's alleged policy is not implemented across the board,but seems to come into play only when the Department fears thatCongress may be critical of its actions. See, "9., Subcommitteeon Crime, Committee on the Judiciary, U.S. House ofRepresentatives, 99th Congress, 2d Session, December 1986, ..Hutton Mail and Wire Fraud, Serial No. 13, pp. 142-43 and fn. 62.

86

The Honorable William P. Barr IIIPage ThreeJuly 22, 1992

director objected to a meeting at which he was not present. 2 ina new twist, Mr. Rawls .- who apparently had given up thejurisdictional issue -- then said that he could not meet until this'dispute" or "controversy" was resolved. In response, I indicatedto you that there was no dispute, and requested a meeting on July9 at 2 p.m. Mr. Rawls' response was that he would not attend ameeting without the minority staff director and general counselpresent, and that the interviews with Mr. Norton and Mr. Fimberghad been postponed.

In a second follow-up letter, Mr. Rawls suggested a meeting at3:30 p.m. on July 9 at the Justice Department, but again demandedthat the full Committee minority staff be included. I asked for a3:30 p.m. meeting in the Subcommittee offices with Subcommitteestaff, but Mr. Rawls' secretary called my counsel and told her thathe 'could not make a meeting this afternoon,' although he w s theone who had originally set a 3:30 p.m. time for a meeting. Thesecretary also indicated to my counsel that Mr. Rawls wouldreschedule. The Subcommittee has not yet heard from him.

The Subcommittee's experience with the Department is becomingdepressingly similar to that of several other Congressionalcommittees attempting to carry out their Constitutionalresponsibilities to conduct oversight. Delay of the Congressionalinquiry is always a key component of the Justice Department'sstrategy.4 By refusing to allow Congressional staff to conductpreliminary interviews to become more familiar with the issuesinvolved in an already closed criminal case, the Department itselfis arousing suspicions about its conduct in the case.

2 As I indicated to you earlier, the minority staff directorhas not to this day contacted my office or my Subcommittee staffwith his concerns, nor has the ranking Republican member. TheJustice Department appears to have assumed the completelyinappropriate role of intermediary in the affairs of another branchof government.

3Mr. Rawls called the full Committee counsel with the samemessage.

4See, " ., Executive Summary, H.P. Hutton Mail and WireFrau , supra, pp. XX. Committee on Government Operations, U.S.House of Representatives, 102nd Congress, First Session, July 3,1991, Bureau of Prisons Halfway Houses: Contracting outResponsibility, H.Rpt. 102-139, pp. 12-3 and fn. 11 and 13. Thetortured path of the Subcommittee on Government Information,Justice and Agriculture to review the halfway house programs ofJustice's Bureau of Prisons is chronicled in this report.

37t

The Honorable William P. Barr IIIPage FourJuly 22, 1992

I and my staff have made a good-faith effort to work in acooperative manner with the Department. But a month has now passedsince my formal request to interview Mr. Norton and Mr. Fimberg andthe Department of Justice has been unwilling to attend even apreliminary meeting to discuss such interviews. Rather, theDepartment has persisted in trying to dictate the scope and termsof the Subcommittee's oversight activities, which is clearly notthe prerogative of the Department.

I see no reason to allow the Subcommittee's inquiry to befurther delayed by what are clearly dilatory tactics. Therefore,I am requesting that the Department provide to the Subcommittee inwriting by 5 p.m. on Friday, July 24, a commitment that Mr. Nortonand Mr. Fimberg will appear (1) individually for preliminaryinterviews in the Subcommittee offices, (2) prior to August 14,1992, and (3) under the procedures of the Subcommittee as stated toyou in my May 9, 1991, letter to Secretary Watkins. If a writtencommitment encompassing all of the points listed above is notreceived, I will be forced to consider other options open to theSubcommittee to conduct its constitutionally mandated oversightactivities.

Sincer ly,

CHAR.D PECIhai OnSub mmittee on Investigations

and Oversight

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July 23, 1992


Dear Mr. Sessions:

On June 11, 1992, I made my initial request to you that thestaff agent who signed the search warrant used to obtain numerousdocuments used in the environmental crimes case against RockwellInternational, Inc., and the other agents who were involved inthat case, be made available for interviews by the Subcommitteestaff in the Subcommittee offices during the week of June 22.

This request was not honored. On June 25, the Subcommitteemet with representatives of the Bureau who told the Subcommitteethat the FBI policy was to refuse to provide investigativepersonnel for Congressional interviews. When the Subcommitteepointed out that it was aware that other Congressional staff hadconducted interviews with FBI investigative personnel, PatrickConnolly of the Bureau's Congressional relations office,indicated that he would discuss this situation with hissuperiors. Subsequently, the FBI continued to maintain thatthese agents would not be made available to the Subcommittee.

The FBI's alleged 'policy' -- later put in writing to theSubcommittee in a July 15, 1992, letter from John E. Collingwood,inspector in charge -- appears to be a selective one. Forexample, on October 10, 1991, FBI Special Agent William Fordtestified before the Oversight and Investigations Subcommitee ofthe Committee on Energy and Commerce on the issue of health care-related fraud.1 Mr. Ford was interviewed prior to this hearing.

1Subcommittee on Oversight and Investigations, Committee onEnergy and Cosmerce, U.S. House of Representatives, *Health CareFraud and Waste (Part 1)," Serial NO. 102-107, October 10 and 17,

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The Honorable William S. SessionsPage TwoJuly 23, 1992

He is a 'street agent' in the same section as the agents that Ihave requested for interviews. I am also aware of otherCongressional staff which has interviewed street FBI agents.

Nonetheless, my Subcommittee attempted to work with theFBI's stated procedures. Mr. Connolly offered to attempt toobtain answers to the Subcommittee's questions by allowing thestaff to ask questions of a supervisor in Washington, who wouldthen call the agent in charge in Denver, and relate the answerback to the staff. Prior to his transfer to Honolulu last week,the Washington intermediary, who was somewhat familiar with thecase, met with the Subcommittee staff for several hours on twoseparate occasions in an attempt to answer some of our questionsabout this investigation. Not surprisingly, this was not anacceptable solution. It met neither the Subcommittee'sinformational needs nor was it an efficient exercise for eitherthe Subcommittee or the Bureau. If the Subcommittee asked aquestion that the supervisor could not answer, he had to write itdown, ask the agent in charge and get back to the Subcommittee.If that answer triggered a follow-up question, the supervisor hadto go back again to the agent in charge to get the answer.Because as chairman of this Subcommittee, I require that thestaff complete a thorough, in-depth review of all of the issuesin question to ensure the quality of our work, this process couldgo on literally for months.

An agent who does not have day-to-day responsibility for acase cannot be expected to know the details of the work done bythe agent in charge. Just as the Bureau cannot carry out itsinvestigative responsibilities by restricting its interviews topersons who are not personally familiar with the facts, theSubcommittee, which has constitutional oversight responsibilitiesdelegated by the U.S. House of Representatives, cannot carry outthose responsibilities by restricting its interviews to askingquestions of intermediaries.

Therefore, by this letter, I am requesting that the Bureauprovide to the Subcommittee in writing by 5 p.m. on Monday, July27, 1992, a commitment that certain special agents (listed below)will appear {l) individually for preliminary interviews in theSubcommittee offices, (2) prior to August 28, 1992, and (3) underthe procedures of the Subcommittee as outlined in the attachedMay 9, 1991, letter to Secretary Watkins. These agents are: JonLipeky, Vincent Lemmons, Michael Wonn, A. Kirk Francis and SimonThorton.

1991, pp. 116-130.

40

The Honorable William S. SessionsPage ThreeJuly 23, 1992

If a written commitment encompassing all of the pointslisted above is not received, I will be forced to consider otheroptions open to the Subcommittee to conduct its constitutionallymandated oversight activities. Please have your staff contactBob Roach, Subcommittee chief investigator, or Edith Holleman,Subcommittee counsel, at (202) 225-4494, if you have anyquestions or need additional information.

Sincerely,

OWARD WCha irmaj~Subco- ttee on Investigationsan;Oversight

ATTACHMENT

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The Honorable James D. WatkihsSecretaryDepariment of Ener yWashington. D.C. 20M

Dear Mr. Secretary.

As you know. the Subcormittee on Investigations and Oversight of the Science.

Spac and Technology Comittee. pursuant to its authorities under Rules X and XIof the United States House of Representatives. has been reviewing the Departmentof Energy,' proposed Superconducting Super Collder (SSC) protran. On March20. 1991, as pert of this review, a staff interview was conducted with Mr. RobertScarlett, the bead of the Independent Cost Estimating (ICE) staff, to determine the

bess for iU colt estimate for the SSC.

During the course of arranging for that interview, the Department of Energy'scongressional Affairs offri advised that it is Departmental policy that intervieweesmay brio on person of their choice to an interview. In our letter to you onMarch S. we made it plain that it is the policy and practice of this Committee,on.onant with the constitutional oversight prerogatives of the House ofRepresentatives, to set the ground rules for its investigatory proceding% includingthe manner in which the staff interviews of agency officials will be conducted. Aswe explained, the inherent potential for conflict of interest arising from the

presence of a Department of icial, as well as the possible inhibiting effects o-such a

presence. underlie this policy. But we noted that interviewees may be accompaniedby a personal attorney. Mr. Scarlett chose to attend alone, in apparentacknowledgment of the Subcommittee's policy.

However. on March 22, 1991. we received a letter from Ms. Jacqueline

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42

The Honorable lames D. WatkinsMay 9. 1991page 2

Knox-Brown. Asmistant Secretary for Congressional and Interagency Affairs.indicating a continued insistence on the Department's rejected stance. As aconsequence. we feel compelled to set forth concisely the pragmatk and legalrationale for the Subcomrnhttee's overriding policy.

The ability of the Subcommittee to effectively carry out its oversightresponsibilites requires that it be confident that the responses it obtains fromofficers and employees with respect to the administration of agency programs arecandid, objective, and truthfuL We have no way to ascertain with any degree ofcertainty whether any interviewee's particular request to be accompanied byDepartmental personnel is. in fact, *based solely on the employee's personalwishes." Our policy, then, seeks to insulate an interviewee from presence ofdepartmental personnel during a staff interview and stems from our desire toassure effective oversight of Departmental operations wie protecting intervieweesfrom the possibility of abuse, threats, and coercion.

The legal basis to ensure the effective accomplishment of the Subcommitteeoversight responsibilities is unassailable. It has been deemed axiomatic that "allegilative body cannot legislate wisely or effectively in the absence of informationregarding conditions which the legislation is intended to affect or change.* MrX. LaghteIy 273 US. 135, 17S (1927). In a variety of context, the Courts haverecognized that the *power of inquiry - with process to enforce it - is an essentialand appropriate auxiliary to the legislative function.' M. at 174. As a consequence,'Congress. whether as a body, through committees, or otherwise, must have thewidest possible access to executive branch information, if it is to perform itsmanifold responsibilities effectively." MJPhy . _hntotAmy, 612 F.2I1151, U58 (D.C. Cir. l79). For that reason, "'(the scope of the (Congressional]power of inquiry . . is as penetrating and far-reaching as the potential power toenact and appropriate under- the Constitution." Eastland Y. United StatesServkemen's Pund 421 U.S. 491, 504 n.14 1975) (quoting Barenblatt v. Unite

43


Mlg. 360 US. 109. ll (1959)).

Thus. Congress has been vested with broad. constitutionally based oversight

powers to ensure that public officials remain accountable to legislative scrutiny to

alow it to see whether its laws are being fully executed. Watkins v. United State.

354 US. 178. 187 (1957). Moreover, through the -enactment of speck statutes. it

has sought to protect the rights of public employees to communicate with Congress

and provide information and materials to the Members and Committees of


to provide evidence at public foray are essential tools of government accountability.

Congress in the past had proscribed 'gag orders' forbidding federal employees from


supervisors and guaranteed the right of civil servants to freely communicate with

elected representatives. The Lloyd-LaFollette Act. $ U.S.C. S 7211. provides that-

"le right of employees, individuaUy or collectively, to petitionCongress or a Member of Congress. or to furnish informationto te Committee or Member thereof. may not be interferedwith or denied.

Also, in the Civil Service Reform Act of 1978. Congress again emphasized its

need for a free flow o information from the Fxecutive Branch by making it

unlawful to take reprisals against so-called "whisUeblowerm" See $ U.S.C. S2302(bXS). The Senate Report declared: 'Protecting employees who disclose

governmental illegality, waste, and corruption is a major step toward a more

effective civil service. In the vast bureaucracy. it is not difficult to conceal

wrongdoing provided that no one swnmons the courage to disclose the truth.' S.

Report No. 969, 95th Cong.. 2d Sess. 8 (1978). In 1988 and 1989. Congress further

strengthened the protections of whistleblowers. Se Military Whistleblowers

Protection Act. P.L 100-456. 5 846. 102 Slat. 1918 2027-30 (1988). codified at 10

U.S.C. S 1034; and the Whistleblowers Protection Act of 1989. P.L No. 101-12. 103Stat. 16.

44

T Honorable James D. WatkinaMay 9. 1991Pae 4

Fimlly. Congress has made it a violation of federal criminal law to impedeCongressional investigation or intimidate Congressional witnesses. 1 18 U.S.C. SWO and U512(bXc).

We are confident that you are sensitive to the need to follow both the letterand spirit of these important statutes and case precedents and understand theirclose relationship to the requirements of uninhibited Subcommittee access todepartmental personnel Further insistence on the Department's interview policy.with its potential damage to and chilling effect on continued cooperation ofdepartment employees with current and future Subcommittee inquiries poses thethreat of an unnecessary obstacle to what heretofore has been a productiverelation. Certainly the option afforded any interviewee of requesting the presenceof a personal attorney sufficiently protects the interests of the interviewees andsatisfies any perceived obligation of the Department.

We appreciate your cooperation in this matter and look forward to workingwith you in the future.

Subc ttee on Investigationsand Oversight

Sincerely, /

SHERWOOD BOEHLFRTRani RepblicanSubconitte on Investigationand Oversight

U.S Depstment of JusticOffice of Legislative Affairs

Offiw of '. Amo~ia Amw mysi ~ Awon.D 0

July 24, 1992

Honorable Howard WolpechairmanSubcommittee on Investigations and

OversightCommittee on Science, Space and

TechnologyU.S. House of RepresentativesWashington, D. C. 20515

Dear Mr. Chairman:

This responds to your letter, dated July 22, 1992, regardingthe Subcommittee's preliminary review of the criminal prosecutionof Rockwell, Inc. with respect to the Rocky Flats nuclear weaponsfacility.

Contrary to the perception set forth in your letter, thisDepartment unequivocally intended to meet with your staff toresolve certain issues relating to the interview of U.S. AttorneyNorton and Assistant U.S. Attorney Fimberg. In fact, we wereprepared to go forward with that meeting on July 8, 1992 until wewere informed that minority staff members, who asked to attend,were to be excluded. We were even prepared to go forwardnotwithstanding the continuing questions about the Subcommittee'sjurisdiction in this matter. In light of your decision not topermit minority staff to attend such a meeting, we have conferredwith them separately and they have withdrawn their request toattend.

We remain committed to meet with Subcommittee staff todiscuss these issues. We are convinced that once we haveexplained why we believe it is necessary that Messrs. Norton andFimberg be interviewed together, focusing particularly on thecomplexities that attend enforcement of the grand jury secrecyrequirements of the Federal Rules of Criminal Procedure, theSubcommittee will agree that the joint interview is necessary inthese circumstances. We agree with your decision (expressed inyour July 8th letter) to include Michael Rodemeyer, theCommittee's counsel, in this meeting because of the legal issuesthat are presented.

We hope that your staff will contact Faith Burton, ActingDeputy Assistant Attorney General in this Office, so that ameeting can be arranged at ¥6ur earliest convenience.

Since ,



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SUITE 2320 Y YURN HOUSE OfFIC BUILDINGWASHINGTON, DC 205I15301

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July 24, 1992

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The Honorable William P. Barr IIIAttorney GeneralU.S. Department of Justice10th and Pennsylvania Avenue N.W.Washington, D.C. 20530


Today I received a letter from W. Lee Rawls, assistantattorney general, in response to my July 22 letter to you. Mr.Rawls requested a meeting with the Subcommittee staff to discussoutstanding issues concerning our early June request to interviewMichael Norton, U.S. Attorney for the District of Colorado, andKenneth Fimberg, assistant U.S. attorney, concerning the criminalprosecution of Rockwell International for environmental crimes atRocky Flats. I have instructed my staff to make arrangements tohold that meeting as soon as possible and hope that it will be amost productive one. However, I must inform you that this meetingwill not be considered a substitute for the written commitment thatI had requested in the July 22 letter but have not yet received.

In that letter, I asked that the Department provide to theSubcommittee in writing by S p.m. today a commitment that Mr.Norton and Mr. Fimberg would appear (1) individually forpreliminary interviews in the Subcommittee offices, (2) prior toAugust 14, 1992, and (3) under the procedures of the Subcommitteeas provided to you in a copy of my May 9, 1991, letter to SecretaryWatkins. If I did not receive that commitment, I indicated that Iwould be forced to consider other options open to the Subcommitteeto conduct its constitutionally mandated oversight activities.

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As I indicated before, the Justice Department has a very poorrecord of cooperation with Congressional oversight committees. Ihope that in next week's meeting, the Department will provide thewritten commitment that I requested in the July 22nd letter.- Butplease be assured that, if it is not received, my intentions totake every necessary step to complete this investigationexpeditiously have not changed.

Sincere y

ChaiSubc ttee on investigationsand Oversight

49

U.S. Depurtment of Justice

Federal Bureau of Investigation

I4l5AUogftm. D C V355J

Honorable Howard WolpeChairmanSubcommittee on Investigations and OversightCommittee on Science, Space, and TechnologyHouse of Representat iveWashington, D.C.

Dear Mr. Chairman:

This is in response to your letter of July 23, 1992 inwhich you requested certain FBI "Street* Agents be made availableto the Subcommittee for interview.

As I indicated in my letter of July 15, 1992, the FBI'spolicy is not to permit investigative level Agents to beinterviewed for reasons that have been discussed with your staff.This case is the precise circumstance for which the policy isdesigned to address. Hot only would a number of Agents be divertedfrom investigative responsibilities, but also some of theinformation desired, i.e. opinions regarding the settlement in thecase, is not an area appropriate for FBI comment. As a policymatter, we do not want "street" Agents concerned about possiblefuture political ramifications as they conduct criminalinvestigations. Knowing that they could be subject to inquiryoutside the Judiolal process could unnecessarily fetter the zealwith which our Agents pursue investigations.

I understand that your staff has been briefed by the FBIon two occasions for over six hours. We have made every attempt toanswer every question, and when an answer was not known, theinformation was obtained and transmitted in a timely manner to yourstaff. During the last briefing, several additional questions wereraised and the FBI Is currently securing that information.Moreover, at the request of the Subcommittee, the FBI is currentlyprocessing over 800 Records of Interview (FD 302's), an extremelycostly and labor intensive process. These documents will provideyour staff with further infox..ation regarding the case.

50


Director Sessions is firmly committed to the reasonableand necessary flow of Information from the FBI to the Congress, andwe want to accommodate the Committee's needs as best we can.However, that accommodation cannot be without sone limits - limitsimposed not only by statutory and judicial constraints, but also bydemands that adversely impact on the FBI's primary mission ofinvestigating violations of U.S. law. Accordingly, again, I mustrespectfully decline your request. I would like to make it clear,however, that we remain fully willing to make supervisory personnelthat are fully aware of the investigation available to theCommittee and answer promptly written questions. We also intend tocontinue processing all of your document requests as quickly as weare able.

In your letter of July 23, 1993, you mentioned that a"street Agent" named William Ford testified on October 10, 1991.Our records indicate that Williams J. Esposito, Section Chief of theWhite Collar Crime Section, testified at that particular hearing.He was accompanied by Supervisory Special Agent Joseph Ford, whosupported Mr. Esposi to's testimony. Both witnesses are 731Headquarters program managers, and, consistent with the above,neither is a field investigator.

The FBI will continue to work with the Subcommittee in aneffort to provide the information you seek. Much of thatinformation is likely contained in the 302's referred to above. Ifyou or your staff have additional questions, I encourage you tosubmit them in writing so that the FBI can provide you with theinformation.

Z. Col1li good

Spector in Chargeoffice of Public andCongressional Services

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July 28, 1992


Dear Mr. Sessions:

Today I received a letter from John Collingwood, inspector incharge of the FBI's Office of Public and Congressional Services, inresponse to my July 23, 1992, letter to you concerning theSubcommittee's review of the investigation and settlement ofenvironmental crimes charges against Rockwell InternationalCorporation resulting from its management of the Rocky Flatsnuclear weapons plant.

In that letter, I asked that the Department provide to theSubcommittee in writing by 5 p.m. Monday a commitment that the fivenamed FBI special agents would appear (1) individually forpreliminary interviews in the Subcommittee offices, (2) prior toAugust 14, 1992, and (3) under the procedures of the Subcommitteeas provided to you in a copy of my May 9, 1991, letter to SecretaryWatkins. If I did not receive that commitment, I indicated that Iwould be forced to consider other options open to the Subcommitteeto conduct its constitutionally mandated oversight activities.

Mr. Collingwood today stated once again that the FBI would notmake these agents available to the Subcommittee. While weappreciate the efforts the Bureau is making to provide documents tothe Subcommittee, we cannot carry out our work without directaccess to the agents responsible for this investigation. Also,please be advised that we have been informed that FBI Special AgentTom Gates was recently interviewed for 11 hours by staff of theHouse Judiciary Coeittee in connection with an FBI investigation.

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52

The Honorable William S. SessionsJuly 28, 1992Page Two

Therefore, I have scheduled a Subcommittee meeting forThursday, July 30, at 10 a.m. to consider the issuance of subpoenasrequiring the appearance of these agents before the Subconmittee.

I and my staff are, of course, willing to discuss this matterfurther with you prior to this meeting. If you have any questionsor need further information, please have your staff contact BobRoach, Subcommittee chief investigator, or Edith Holleman,Subcomittee counsel, at (202) 225-4494.

Sincerely,

mnittee on InvestigationsOversight

53

AU.. Depertmt of Justke

Fedemrl Bureau of Investigation

oM Qi bews W.UVOi D C ji

July 29, 1992


and OversightComittee on Science, Space,and Technology

House of RepresentativesWashington, D.C.

Dear Nr. Chatrman:

Your letter of the 26th indicates that- the Subcommitteemay convene for the purpose of considering the issuance ofsubpoenas for FBI investigative or "street" Agents to beinterviewed by your Subcommittee. I respectfully request thatyour Subcommittee utilize other available FBI sources ofinformation to complete your inquiry.

I have great respect for the oversight process andyoter responsibility to the American people in that regard. I

so firmly believe that FBI investigators must carry out their=rn duties unfettered by concern about being subjected to the.tical process as a result of conducting investigations. For

that reason, the FBI does not make investigators available toCongress for interview. I understand that there has been muchcommunication between your staff and the FBI on this issue.

As you know, we are making substantial documentationavailable to your Subcommittee. We are also quite willing tomake available supervisory or policy level officials totallyfamiliar with the investigation and attempt to answer any writtenquestions you would like to submit. I know we have answeredseveral already. It is my desire to do everything we can-shortof making the Agents available to satisfy the needs of yourSubcommittee. I am confident we can do so.


Accordingly, I ask that you reconsider the Issuanceof subpoenas and that we seek a mutually acceptable way oftccommodatinq your needs. The FBI would be pleased to work withyou in that regard and will do everything we can to supply theinformation you have requested.

Xin or Iyo 7

T

Director

i - Honorable Sherwood L. BoehlortRanking Minority MemberSubcommittee on Investigations


and TechnologyHouse of RepresentativesWashimnton, D.C.

55

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July 29' 1992

The Honorable Howard WolgeRepresentativeUnited States House of RepresentativesWashington, D. C. 20001

Dear Chairman Wolp:

This firm represents Rockwell International, and yourletter of July 14, 1992, to Hr. Donald Beall, Chairman of theBoard, has been referred to me for a response.

Rockwell desires to cooperate and to work with theSubcommittee to address these questions of interest to it. Tothat end, various counsel for Rockwell have commenced the processof assembling the materials requested.

However, to preserve the interests of Rockwell invarious pending civil matters relating to its operation of theRocky Flats Plant on behalf of the Department of Energy, it isour belief that an appropriate subpoena should issue for thedocuments your Subcommittee seeks.

It is my understanding that, in the conversation lastTuesday between Edith Holleman, your staff counsel, and Rockwellcounsel Lee Foreman, of Waddon, Morgan L Foreman, Denver,Colorado, it was agreed that the Subcommittee would obtain anappropriate subpoena witb a return date of August 31, 1992. We

56

WILLIAMS & CONNOLLY

The Honorable Howard WolpaJuly 29, 1992Page No. 2

believe that production d the materials requested by your letter

of July 14 can be effected by that time and in that manner.

Thanking you f4r your cooperation, I am,

Vy truly yours,

Vincent J. Fu/er

VJV ImC



SUITE 2320 RAYUI HOUSE OFFCE SUIWINGWASHNGTON, DC 2051-6301

(202) 2264371

July 29, 1992



Yesterday, my staff met with Lee Rawls, assistant attorneygeneral for legislative affairs, to determine whether an agreementcould be made with the Justice Department for Subcommittee staffinterviews of the attorneys representing the federal government inthe prosecution of the environmental crimes case against RockwellInternational Corporation for its activities at the Rocky Flatsnuclear weapons plant.

As I had hoped, this meeting was a productive one. In thisletter, I would like to memorialize the elements of the agreementthat was reached between the Department and the Subcommittee.

1. Interviews will be conducted by Subcommittee staff ofMichael Norton, U.S. attorney for the District ofColorado, Kenneth Fimberg, assistant U.S. attorney, andPeter Murtha, Justice trial attorney. Mr. Norton and Mr.Fimberg will be interviewed in Denver at dates to bearranged by the staff and Justice. It is expected thatthese interviews will take place within the next twoweeks. The interview of Mr. M-urtha will followexpeditiously in Washington.

2. Mr. Norton, Mr. Fimberg and Mr. Murtha may be accompaniedby an attorney of their choice from the Department. Eachone will be represented by a separate and differentattorney. Mr. Norton and Mr. Fimberg will be representedby someone from the U.S. attorney's office in Denver whowas not otherwise involved in the prosecution of thiscase. Mr. Norton, Mr. Fimberg and Mr. Murtha cannot

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represent each other or choose an attorney from amongtheir supervisors or the other attorneys in theEnvironmental and Natural Resources Division. The namesof the attorneys representing Mr. Norton, Mr. Fimberg andMr. Murtha will be provided to the Subcommittee inadvance of the interviews.

3. Mr. Norton, Mr. Fimberg and Mr. Murtha will beinterviewed individually by Subcommittee staff. The onlyother person allowed in the room during an interview willbe an attorney representing the interviewee.

Your assistance in this matter was greatly appreciated. It ismy sincere hope that the Subcommittee's work can proceed in thefuture with the full cooperation of the Justice Department.

Sincerely,

/Cha~i i7 Subco ittee on Investigationsand Oversight

Mr. WOLPE. I am pleased to report that after a prolonged stale-mate, the subcommittee has worked out an agreement with theJustice Department which will enable our staff to interview therelevant Justice Department personnel in a manner that preservesthe rights and interests of the subcommittee and of Justice.

However, the FBI has refused to make the five agents whoworked on this case available for interviews by the subcommitteestaff. The FBI initiated this investigation and gathered all of thecritical information on the activities of Rockwell and DOE. The in-

- formation and perspectives of the agents involved in the case com-prise a critical factual background that the subcommittee needs toevaluate the actions of the Department of Energy and Rockwellthat led to this investigation.

Congressional interviews of agents are not unprecedented. Forexample, both the Judiciary and Energy and Commerce committeeshave conducted interviews of FBI line agents in the course of theirinvestigations. The particulars on these examples are included inthe briefing packet that has been distributed to all Members-toall of the Members' staff. In this instance, directly interviewing theagents is the most accurate and efficient approach for the subcom-mittee to take in this review.

Therefore, to facilitate the subcommittee's fulfillment of its con-stitutional oversight responsibilities, I intend to make a motion tosubpoena the five FBI agents who worked on this case to appearbefore the subcommittee to provide information on their investiga-tions of the Rocky Flats issue.

Additionally, we have requested documents from Rockwell. Rock-well's attorneys have indicated their intention to cooperate withthe subcommittee on this matter, and have asked, as a precaution-ary step, that the subcommittee subpoena these documents to pro-tect its interests in pending civil matters related to its operation ofthe Rocky Flats plant. Without objection, I will enter into therecord a letter from Rockwell's counsel conveying this request.

[The letter follows:]

LAW OFFICES

WILLIAMS & CONNOLLY725 T ,(LFTH StRUt. N V

WASMINCTON, D C. 20005

(202) 4)4.000

FAX 4202) 434-5029

FAAA 4 CONVOLLY t-988-611111

July 29, 1992

The Honorable Howard WolgeRepresentativeUnited States House of RepresentativesWashington, 0. C. 20001

Dear Chairman Wolpe:

This firm represents Rockwell International, and yourletter of July 14, 1992, to Hr. Donald Beall, Chairman of theBoard, has been referred to me for a response.

Rockwell desires to cooperate and to work with theSubcommittee to address these questions of interest to it. Tothat end, various counsel for Rockwell have commenced the processof assembling the materiAls requested.

However, to preserve the interests of Rockwell invarious ;pending civil matters relating to Its operation of theRocky Flats Plant on behalf of the Department of Energy, it isour belief that an appropriate subpoena should issue for thedocuments your Subcommittee seeks.

It is my understanding that, in the conversation lastTuesday between Edith Holleman, your staff counsel, and Rockwellcounsel Lee foreman, of Paddon, Morgan & Foreman, Denver,Colorado, it was agreed that the Subcommittee would obtain anappropriate subpoena witk a return date of August 31, 1992. We

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WILLIAMS 6 CONNOLLY

The Honorable Howard WolpeJuly 29, 1992Page No. 2

believe that production cif the materials requested by your letter

of July 14 can be effected by that time and in that manner.

Thanking you f4r your cooperation. I am,

Vey truly yours,

Vincent J. Fu]er

VJF:mc

58-100 0 - 92 - 3

Mr. WOLPE. Given the company's position on this matter, I willalso make a motion to subpoena those documents from Rockwell.

Finally, it is important to stress that nothing that we do willchange the fine or the charges agreed to in this case. However, areview of this matter can help us assess if it is necessary to insti-tute some legislatively-mandated changes in the practices of DOEand other contracting agencies. For these reasons, I ask for thesupport of my colleagues on these subpoena votes.

With that, I would like now to yield to my distinguished RankingMember, Mr. Boehlert.

Mr. BOEHLERT. Thank you, Mr. Chairman.I agree with Chairman Wolpe that there are interesting ques-

tions relating to the Rocky Flats settlement, particularly thaqetouching upon DOE's "management culture. I appreciate the Chair-man's assurances that the subcommittee's activities are not politi-cally motivated.

I also understand his claim that in issuing subpoenas to the FBI,all we are asking for is access to FBI agents so that the subcommit-tee can engage in fact-gathering to determine whether these broadquestions are worth further work.

However, I also note the majority staff have been actively culti-vating the press on this vote in an effort to get maximum coverage.I also know that there is a strong desire expressed by the majoritystaff to hold a quick hearing in September on this very, very com-plex case.

How, then, am I supposed to believe that these moves are not de-signed to turn seemingly open-ended questions into pointed chargesdesigned to gain partisan advantage? That is a concern.

There is something disingenuous about the claim that there mayor may not be anything here, and the subcommittee just wants toask some questions of the FBI. The fact is, we can't hold that posi-tion and also plan to hold a September hearing.

There is no way we can do a thorough, professional investigationinto a case of the size and complexity of this one by September.What can certainly be done by then is a cheap political shot.

I have been proud of the work of this subcommittee. The staffhave done their homework, read all the documentation, inter-vievved all officials and carefully prepared for public hearings. Ihonestly feel that until this moment, the subcommittee has been amodel of bipartisan work in its focus and efforts.

But, apparently, the temptation of a presidential election year is.too great to resist, and partisanship has injected itself into ourwork. Reviewing the issues and questions the subcommittee is mostinterested in leads me to conclude that what they really want to dois review the decision-making process in the Department of Justiceto determine whether Justice went easy on a corporate polluter.

Mr. Wolpe knows very well that I have been as active in pressingfor strong punishment of environmental crimes as he has been. Itwas, in fact, our shared values on the environment and good gov-ernmert that led me to choose to serve on this subcommittee withhim.

If there was some truth in the allegation regarding Justice, Iwould be every bit as angry as Mr. Wolpe. And I share his desire toget answers from the Department of Justice. The people in the best

position to answer these legitimate questions are the U.S. attorneym Denver and the attorney who led the grand jury probe.

These line attorneys are the only people in a position to knowwhat decisions were taken by prosecutors regarding how to settlethis case. Are we here today to vote a subpoena for these attor-ne ys?

No. Because two days ago the Department of Justice reached anagreement with the subcommittee regarding access to those attor-neys. Instead, we find ourselves here today asked to vote on sub-poenas for five FBI agents. Two of these agents were not evenworking on the case while it was coming to closure and have exact-ly zero knowledge of Justice's decision-making process.

What is the point of demanding access to these agents? Why votethe subpoena without first determining whether the informationthat the Justice officials provide to us satisfies our concerns?

Why is it unreasonable to ask members of this subcommittee topostpone the subpoena vote on the FBI agents until after subcom-mittee staff have done their job and met with the two principalJustice Department attorneys?

Why not simply take this investigation one step at a time, in-stead of rushing ahead?

Do Members realize what kind of time commitment we aremaking in issuing the subpoena?

The five agents served will be compelled to appear before thesubcommittee in a hearing. Subcommittee staff and Members willask hundreds of questions of those witnesses, potentially eating upseveral entire legislative days.

Not only are we imposing, perhaps pointlessly, on the FBI fieldagents' time so that they are stuck in D.C. at the beck and call ofthe subcommittee and not out in the field fighting crime, but weare tying up our own staff and our time for much of the rest of thesession.

And, incidentally, while we are talking about staff, let it beknown the other frustration those of us on the minority feel. Whatis the staff?. Four professionals and two support staff for the major-ity? One staffer for the minority. One staffer against six. And wehave worked well together.

But one staffer for the minority finds it impossible to do every-thing that is expected of that individual. Issuing a subpoena is aserious step.

What do we do if after subcommittee staff asks their questions ofthe Justice Department attorneys in the next couple of weeks theyfind that this really isn't that promising an issue? Do we say weare sorry, we didn't mean to issue these subpoenas? Never mind.

Do we pretend to hold a hearing for the sake of appearances andcome out in the hall to announce that we found nothing and weregret wasting the field agent's time?

Alternatively, what if the FBI ignores the subpoena and refusesto make their agents available? Is this committee prepared tospend the time and energy necessary to fight to the end throughthe courts, if necessary, to compel the FBI to produce those agents?

What if the FBI ignores the subpoena, but in the wake of thatvery embarrassing public slap at this committee, the staff deter-mines they don't have sufficient interest in this issue to pursue it

to the end? Do we try to compel compliance on an issue we know tobe dead, or do we let the challenge to our authority stand?

Either response reduces the seriousness and stature of this sub-committee. What happens in the next Congress with the new Chairof this subcommittee?

I ask all of you to reflect carefully on these questions. ChairmanWolpe may be leading us into a lasting institutional conflict thathe regretfully will not be able to see through to the end.

I don't like to see him leave this Congress. He is a good man, afine man, and I consciously chose this subcommittee to serve withhim because I respect him. And the fact is, that we have a viablealternative to issuing the subpoenas.

Director Sessions offers the subcommittee access to all docu-ments. Director Sessions offers to provide written answers to writ-ten questions. Director Sessions offers to let headquarters agentsanswer any questions they can and act as intermediaries with thefield agents when necessary.

Remember that the FBI is not at the center of the subcommit-tee's interests. The FBI has some information, some facts thatwould be useful. I acknowledge that. And Director Sessions has in-dicated he will cooperate fully in making that information avail-able through means that protect his agents in the field.

The FBI s procedures may not be the most efficient process. De-mocracy itself is not known for efficiency. Perhaps the FBI's ap-proach is a little inconvenient for subcommittee staff. But it willget the members of this subcommittee the information they want.

And it will get the subcommittee the information it desires with-out compromising the FBI's legitimate interest to keep their agentsin the field and protect them from political second-guessing. I amnot against issuing subpoenas to force those who fought the prerog-atives of Congress to meet our just requests for information, accessand documentation.

I have voted for a subpoena out of this subcommittee in the past,as the Chairman well knows, and I will vote for the subpoena fordocuments from Rockwell today. If subcommittee staff had alreadyextensively interviewed Justice Department officials and workedthrough the FBI system and still thought they needed to meet fieldagents, I would be willing to vote for a subpoena.

But as of today, without this essential groundwork being laid, Iam opposed to these subpoenas for FBI field agents. I think it is aprecipitous and unjustified step that throws this committee andCongress into an unnecessarily provocative confrontation with theFBI and executive branch, and gives the appearance-and let-mestress gives the appearance--of being politically motivated duringthe election season.

I am somewhat disappointed that we have come to this point forthe first time since we have begun this joint effort. I am sorry toreport, Mr. Chairman, I am going to have to oppose you.

Mr. WOLPE. Thank you very much, Mr. Boehlert.I would like to respond, first of all, to some of the observations,

and then I will yield to other of my colleagues who might like tomake opening statements.

Let me say I am rather startled by what you have indicated here.The suggestion that partisanship underlies the effort that the com-

mittee is into at this point to understand the implications of theRocky Flats agreement is totally without foundation.

The gentleman has worked close enough with me over not onlythe last two years, but over many years, to know that I do not ap-proach these kinds of matters which I think are of fundamental in-stitutional importance in a partisan fashion. Mr. Walker, I think,attested to that just the other day. We joined together on theHouse Floor, and I ended up voting against my committee chair-man on a policy matter that I thought was very important that Mr.Walker had raised, not a very comfortable position to be in.

So I think it is, frankly, silly, and I think this is a very signifi-cant set of issues, which, if I understand, Mi. Boehlert, you ac-knowledged in your initial remarks of your opening statement.There are some very serious institutional questions involved herethat I want to just draw the attention of the committee Membersto.

One particular article that I thought was particularly useful inlaying out what those issues, in fact, are, the institutional ques-tions that are involved that go way beyond partisanship, go muchmore to the nature of the contracts that are entered into by theagencies, and the contractors that apparently indemnify themagainst many kinds of fines that they might be subject to for crimi-nal or civil misconduct, that relate to issues of debarment thatarise, allegations of fraud that are a part of a set of charges thatare brought by the Government, a whole series of very serious in-stitutional questions that we ought to be looking at.

And that is why it is those questions that the Rocky Flats issuepresents. So I just, frankly, dismiss out of hand the suggestion, andI think it is beneath the normal analysis of my distinguished col-league from New York. I am saddened by it; simply not true.

Secondly, this notion that there is already a hearing set for Sep-tember is also simply without foundation. In fact, under the time,assuming that all goes as anticipated, we probably won't even getto the FBI interviews until 'September. So the notion that we al-ready have a definite public relations effort to try to build some-thing before the elections themselves is simply nonsense.

Thirdly, the only reason we are in this public session today is be-cause of obstacles that we have encountered to the normal investi-gative process. There has been no public discussion of this matter,not one iota of discussion from staff or Members or anyone else upuntil the point that we thought it necessary to establish this hear-ing for the issuance of subpoenas. That is the reality and the histo-ry of what we are, where we are.

Now, with respect to, the specific question that has been raised, Igather the gentleman does not object to the issuance of subpoenaswith respect to Rockwell?

Mr. BOEHLERT. Right.Mr. WOLPE. The only point of contention is in respect to issuance

of subpoenas with respect to the FBI. I think there are two or threepoints that need to be said.

First of all, I wish it were rot necessary. I am surprised that it isnecessary. I am surprised that it is necessary for two reasons.

First of all, this is a case that has been closed. I mean, nothingthat we do at this point is going to alter the agreement that hasbeen already reached. It is a closed case.

Secondly, there is clear precedent, absolutely clear precedent forFBI fi61d agents being interviewed by the Congress. They wereinterviewed by staff of the Oversight and Investigations Subcom-mittee of the Energy and Commerce Committee for a hearing onOctober 10th of 1991 on health care-related fraud.

There was a 1983 hearing on unfair trade practices by theEnergy and Commerce Committee. There was a 1985 hearing onprescription drug diversion and counterfeiting, all involved inter-views with FBI field agents.

Recently the Judiciary Committee interviewed an FBI field agentin the course of an investigation that it was undertaking. These aresome examples that we have been able to identify on very shortnotice, and there are undoubtedly many more examples.

So I was, frankly, very surprised by the FBI's response here. Wedo not anticipate any difficulty in that regard, and wish that wewere not in this situation right now of feeling it necessary to issuethe subpoenas.

Why do we feel it necessary to talk to the FBI agents in the fieldrather than, as the gentleman suggests, first talk to the Justice De-partment? Because what the Justice Department does is to reviewthe factual material generated by the people that are closest to theinvestigation, the raw material that leads to the analytical work ondeciding how it is going to proceed. What we are interested inknowing is precisely the raw material.

It is the people that have gotten the factual basis of what tran-spired that are the people that are most relevant for our efforts oftrying to determine the propriety and appropriateness in terms ofpolicy and institutional response to the factual material that waslaid out. We need to know the factual material, and you can't get itsecondhand. We have tried. In fact, there been some efforts in talk-ing to FBI home office people, and they constantly say, well, wewill get back to you; and they go back to the field agents.

In one instance, they actually gave a response and they had tocome back a little bit later and say, well, actually, we were wrong.The fact of the matter is it is only by the discussion of people whohave done the investigation, who were in the field, that you canfully understand the basis of what transpired.

Sometimes you don't even know what the right questions areuntil you are talking to the folks that have actually done the inves-tigation. So that is why we felt the need to talk to the FBI fieldagents and that is what the purpose of the sessions with the FBIagents would be all about.

With that, let me yield to any of my colleagues.Mr. SENSENBRENNER. Mr. Chairman?Mr. BOEHLERT. Just one thing, Mr. Chairman.I would ask unanimous consent that at this point in the record I

include the letter to you from Director Sessions.Mr. WOLPE. Fine. Without objection, it will certainly be entered

in the record.[The information follows:]

US. Department of Jusdce

Federal Bureau of Investigaon

Ofi' oliw D.ecmrWwsAigiooL DC 203J

July 29, 1992

Honorable Howard golpeChairmanSubcommittee on Investigationsand Oversight


House of RepresentativesWashington, D.C.

Dear Mr. Chairman:

Your letter of the 28th indicates that the Subcommitteemay convene for the purpose of considering the issuance ofsubpoenas for FBI Investigative or "street" Agents to beinterviewed by your Subcommittee. I respectfully request thatyour Subcommittee utilize other available FBI sources ofinformation to complete your inquiry.

I have great respect for the oversight process andyour responsibility to the American people in that regard. Ialso firmly believe that FBI investigators must carry out theirsworn duties unfettered by concern about being sub ected to thepolitical process as a result of conducting investigations. Forthat reason, the FBI does not make investigators available toCongress for interview. I understand that there has been muchcommunication between your staff and the FBI on this issue.

As you know, we are making substantial docuAentationavailable to your Subcommittee.- 'eo are also quite willing tomake available supervisory or polly level officials totallyfamiliar with the investigation and attempt to answer any writtenquestions you would like to submit. I know we have answeredseveral already. It is my desire to do everything we can shortof making the Agents available to satisfy the needs of yourSubcommittee. I am confident we can do so.

68


Accordingly, I ask that you reconsider the issuanceof subpoenas and that we seek a mutually acceptable way ofaccommodating your needs. The FBI would be pleased to work withou in that regard and will do everything we can to supply theinformation you have requested.

Siner 1yows>(

Director

1 - Honorable Sherwood L. BoehlertRanking Minority MemberSubcommittee on Investigations


and TechnologyHouse of RepresentativesWashington, D.C.

Mr. WOLPE. Let me yield to my chairman, Mr. Brown.Mr. BROWN. Forgive me, I hadn't really intended to speak, but I

will not be able to remain too long and I wanted to clarify for therecord the situation as I see it here, not going into the particulardetails, but the overall situation.

For one thing, I think it is quite obvious that the target that thesubcommittee proposes to attack here is an important one. The sit-uation at Rocky Flats has long been a matter of deep concern.

Obviously, many things going on there which were contrary tothe public interest, and it requires that aggressive oversight be con-ducted.

Secondly, this is a poor time to be doing aggressive oversight, be-cause it does appear that it may be politically motivated because ofthe proximity of the election. I worry about that.

And I recall back, and my memory is heightened by the news inthis morning's paper, when I sat on the Intelligence Committee,this time of the year, an election cycle, and important people in theadministration lied to me and to the committee time after time,and those lies are just not coming out into the open. And I thoughtto myself at that time, and we were very lenient in the committee.We accepted at face value what we were told by important peoplelike Ollie North, Clair George, all of whom are great people andpatriots and all- that.

But I said to myself, if this were a Democratic administration in-stead of a Republican administration, would I have felt that thisshould have been pursued vigorously, and I felt it should have beenpursued vigorously then, and I said, yes, it should have been. Be-cause when we can no longer depend upon the veracity and goodjudgment of the administration, regardless of party, then thissystem is in serious trouble. And on balance, it was my view that itwas appropriate to go ahead with the vigorous oversight.

The third condition that bothers me is that unless we actpromptly and diligently and well, that our inquiries are conductedwith propriety and professionalism, that we will waste a lot oftime, because the power of this Congress to get at this problem willend before too very long, and this needs to be dealt with in aprompt and vigorous way.

If we can't do it, then we have wasted a lot of time. And I amstill concerned about that. It may be that we are too late in thecycle to do the job that should be done.

On balance, I have come to the conclusion that we need to moveas promptly, as professionally, and as well as we can; that weshould be very careful that what we are doing serves a broaderpublic-purpose. And if the committee is convinced of that, then weshould move ahead as quickly as we can on it.

If we don't achieve this prompt action, we will have frustratedthe will of the Congress and have wasted a lot of our own time andenergy, and we don't have too much of that to waste at this par-ticular time. So-I have decided that I will support prompt actionhere, with the real hope that it act as a stimulant to the appropri-ate executive branch officials to be forthcoming, and that we willnot need to pursue it further.

I

If that doesn't happen, if they decide to follow a course of delay,they will probably succeed in preventing the effectuation of whatwe are trying to do here, and I think that would be unfortunate.

And I thank you for this opportunity.Mr. WOLPE. I thank the Chairman for his observations. I would

only note that we had actually no control over the timing.The settlement was not officially agreed to until June 1st, and

within two weeks we immediately began our staff discussions withthe appropriate parties. I would again say that we would not be inany public dimension whatsoever, were it not for some of the obsta-cles that we have encountered. Mr. Sensenbrenner?

Mr. SENSENBRENNER. Mr. Chairman, first of all, let me say that Ibelieve we have a duty in Congress to conduct rigorous oversight.Oversight doesn't shut down during the last six months of everyterm. And I also have no objection to issuing the subpoena directedtoward the Rockwell Corporation, and, as a matter of fact, Rock-well's lawyer has indicated that they would prefer that this matterbe disclosed pursuant to a subpoena rather than voluntarily.

I do, however, share many of the concerns expressed by the gen-tleman from New York, Mr. Boehlert, relative to subpoenaing spe-cific FBI field agents. But I do so from a different perspective thanhe does.

I served for nine-and-a-half years as the Ranking Republicanmember on the Subcommittee on Civil and Constitutional Rights ofthe House Judiciary Committee, which has got oversight jurisdic-tion over all of the activities of the FBI, and the gentleman fromCalifornia, Mr. Edwards, and I spent a considerable amount of timein a bipartisan effort, making sure that the FBI, is a professionalcriminal investigation agency, rather than an agency that is sub-ject to the political whims of whatever administration may happento be in power at the time.

And that professionalism has got to be preserved, regardless ofthe issues and regardless of the personalities. To my knowledge,the Congress has never subpoenaed specific FBI agents. The JusticeDepartment has made specific FBI agents available for interviewby congressional staff pursuant to an agreement that has beenreached between the relevant committee and the Justice Depart-ment.

But there never has been a subpoena compelling a specific FBIfield agent to appear before a committee or subcommittee of theHouse of Representatives for as long as I can recollect. And I thinkthat there is a very good reason for that. And that is that I don'tthink we as a Congress want FBI agents who are in the field andwho are sworn to enforce the law to be subjected to politicalsecond-guessing by people in Washington, D.C.

The FBI agents in the field are restricted in their activities bysome rather tightly-drawn regulations of the Department of Jus-tice, which the Civil and Constitutional Rights Subcommittee overthe years has had a hand in drafting and had a hand in refiningand conducting oversight. And I think that there is ample evidenceto show that there is no end of trouble that can be caused by inject-ing the specter of politics or even the appearance of politics intothe field activities of regulators or criminal enforcement agents.

And I just would point out that one of the major things that ledto the savings and loan crisis getting out of control was politicalpressure that was put on the Federal Home Loan Bank Board byformer Speaker and Majority Leader, Jim Wright, against a specif-ic bank regulator who was getting to the bottom of some nefariousdealings in savings and loans in the Dallas and Forth Worth area.

Now, I am not as concerned about directing a subpoena towardsspecific FBI agents in this area, which is a closed case, as I am theprecedent this will set, that someone who is a target of a criminalinvestigation can go put political pressure on a committee chair-man or a subcommittee chairman at some time in the future todirect a subpoena toward an FBI agent or a regulatory agent whois hot on the trail of illegal or unethical activity, and that can veryeasily be done, and the whole case that is attempted to be put to-gether against that particular target can be blown, and probablythe public won't know about it until years after the fact. Just aswhat happened relative to the regulator that was looking into sav-ings and loan activities in Texas.

C I am going to oppose the subpoena directed toward the FBIagents on these grounds, on policy grounds, not because I don'tthink the subcommittee ought to be able to review the documenta-tion, and at some time be able to informally interview these agentswhen the proper questions are asked. But simply because I don'twant to see any one of a hundred-plus subcommittee and commit-tee chairmen within the House of Representatives deciding thatthey can go subpoena a criminal law enforcement field agent when-ever they decide to do so.

The final point I would like to make is that if this was a sweet-heart deal between Rockwell and the Department of Justice, that isnot a decision for an FBI field agent to make. That is an issue ofprosecutorial discretion, and the people to subpoena to determinewhat issues were involved in making the determination to enterthe consent decree between the Department of Justice and Rock-well are the policy-making officials in the Justice Department, bothin Washington as well as the United States Attorney for the Dis-trict of Colorado. There is ample precedent that these types of offi-cials have been subpoenaed, and I will support a subpoena directedtoward those officials at the proper time if it is determined thatthey are not cooperating in subjecting themselves to interview bysubcommittee staff.

But I would just implore my friends on the majority side not toset the precedent today to start subpoenaing specific FBI fieldagents, because you will be opening a Pandora s box that this Con-gress as an institution will live to regret in the years to come asother people get the same idea as some people here today on thissubcommittee have had.

Mr. WOLPE. Thank you. I have a-I want to recognize Mr. Nagleat this point. I have a suggestion to make that maybe mightnarrow the difference, but let me first yield to Mr. Nagle.

Mr. NAGLE. I don't want to raise the temperature in here, but Iwish you would have given that speech last week when we voted,onthe Floor as to whether or not the move by your party to turn overthe raw files for the Post Office investigation, the conduct of Mem-bers, I wish you would have given that.

Mr. SENSENBRENNER. Will the gentleman yield?Mr. NAGLE. I will yield when I am done. I wish the gentleman

had given that speech when we had voted to turn over the recordsto the Justice Department of bank members who didn't even cash abad check. At that point all of a sudden an investigation was very,very, very important to this institution, and anything less than fulldisclosure because it involved Democrats was a cover-up. And I sawthe releases from your party's political campaign in my district.Now, as I said, I don't want to politicize this, but I find a great dealof hypocrisy dripping off the gentleman's words.

Mr. SENSENBRENNER. Mr. Chairman, I rise to a question of per-sonal privilege and under the House rules I get an hour to talkabout it.

Mr. WOLPE. Would the gentleman yield?Mr. NAGLE. I yield to the Chairman.Mr. WOLPE. Let me ask that tempers cool here. There is a lot of

hard feeling about things that have transpired in the course ofFloor debate over the last several weeks and months, but I wouldrather not at this point-I would like to put that aside to try tokeep the focus on this matter, because I think issues raised here dogo beyond party.

Mr. SENSENBRENNER. Mr. Chairman, I will reiterate my point ofpersonal privilege, and I am going to take about two minutes.

Mr. WOLPE. I would be pleased to-well, it is Mr. Nagle's time atthis point, but if he would yield to Mr. Sensenbrenner.

Mr. NAGLE. I would be happy to yield.Mr, SENSENBRENNER. I think there is a substantial difference be-

tween voluntary disclosure of records that are under control of theagency seeking disclosure, in this case the House of Representa-tives voluntarily disclosing records to the Justice Department inthe case of the bank and in the case of the Post Office, and issuinga subpoena which provides for involuntary disclosure or involun.tary appearances of individuals.

And, you know, the subpoena power is something that is a veryimportant power for Congress, but has got to be used with a greatdeal of discretion. I point out to the gentleman from Iowa thatbefore he got here, I served as a member of the Ethics Committeeduring the Abscam investigation, and all of those people who wereinvestigated, save one, were not members of my party, but weremembers of yours.

And one of the reasons I took the assignment on the Ethics Com-mittee is because we decided, the 12 members of that committee,that we would be making decisions based upon facts, based uponevidence, and based upon testimony, rather than running out inthe hallway and leaking information to the press about what isbeing investigated based upon raw evidence. And I am proud to saythat during that two-year period oftime, there was not one leakthat came out of the Ethics Committee, and the people who werecharged by the Ethics Committee in the Abscam scandal werecharged as a result of the formal hearing process and being givenan opportunity to rebut those charges before the newspapers foundout about that at all. And you know, I am quite proud of that fact.

As a Matter of fact, our committee with Republican support dis-missed charges against a very prominent Democratic Representa-

tive, and the press didn't know about it until a year later. And thedimissal of those charges against that Representative resulted inthe Special Counsel that was hired by the committee to prosecutethose charges resigning. And again, that was done on a confidentialbasis without political posturing.

It seems to me that the issue that we are discussing here today,you know, relates to whether the Congress in its discretion shouldsubpoena field agents of the FBI whose job is completely non-politi-cal. That is where the difference of opinion occurs.

Mr. NAGLE. Well, I would just note, if I could reclaim my time,that I am not the one that walked Jim Wright into this room thismorning, and I am not the one that stood on the Floor, and itwasn't my party that stood on the Floor and tried to cut staff allo-cations and then complains this morning about the lack of them.

But on the merits of the controversy in front of us, if this com-mittee cannot seek all relevant information from all sources, thenwe are failing, in my judgment, to fulfill our constitutional func-tion, which is not only to oversee the expenditures of governmentmonies, but to review whether or not laws passed by this institu-tion are, in fact, enforced. I appreciate the Chairman's tenacity inpursuing this matter to the level that he has.

I appreciate the difficulty of the timing, but I do agree with thegentleman from Wisconsin that we can't stop our functions simplybecause it is near an election. But the day that we cannot reviewthe operations of the Justice Department staff where Governmentmonies and Government laws are involved is a day when this Con-gress should just frankly terminate its function. So I am going tosupport the subpoena for all of the reasons that are proper in thefunction of this committee and the function of this Congress.

Mr. WOLPE. Are there other Members that wish to be recognized?Let me throw out one suggestion to Yny colleagues to see if thismight narrow the difference.

Still, I am going to throw it out, because I think-if you wish toreject it, that is fine. I was going to suggest, Mr. Sensenbrennermade a very important observation. There have been ample in-stances in the past where FBI agents have been made available tooversight committees of the Congress. As I indicated myself, that isnot unprecedented, it has happened oftentimes.

It is not clear to me why there is less-I mean, this notion thatsomehow to subpoena the FBI agents raises a question of politicalsecond guessing when their presence before the committees if theyare not subpoenaed, I don't understand that distinction at all.

But as I said at the outset, it troubles me that a subpoena wouldbe necessary. I would like to ask my Republican colleagues--Iwould be prepared to frame the motion with respect to the issuanceof a subpoena that that subpoena would not be issued for twoweeks if the FBI agents will be made available on a voluntary basissubject to terms agreeable to the subcommittee.

If that is agreeable, then we could proceed in that fashion as wedid on one previous occasion. Otherwise, I would proceed just for adirect motion for the issuance of a subpoena.

Mr. SENSENBRENNER. Well, if the gentleman will yield, delayingthe issuance of the subpoena for two weeks does not obviate thesubstantial policy problem involved in subpoenaing individual field

agents of the FBI. If you want to subpoena the appropriate peoplewho made decisions in the Justice Department, I would supportthat. But it is not the FBI agent's-job to do it.

Mr. WOLPE. The gentleman misunderstood me. What I was pro-posing was the motion would read the authorization of the issuanceof the subpoena two weeks from now on the understanding thatthat subpoena would not, in fact, issue if the FBI agents were to bemade voluntarily available to the committee.

Mr. SENSENBRENNER. If the Chairman would yield further-Mr. WOLPE. Let me just indicate, all I was trying to circumvent,

was the notion that this would be the first time-I don't know thatit is--in which subpoenas were actually issued. It shouldn't havebeen necessary. We have not had a single indication, however, ofthe FBI's willingness to make the FBI agents voluntarily availableto this committee on the same fashion as they have repeatedly inmany other instances in the past.

Mr. SENSENBRENNER. If the gentleman is proposing that we justdelay the issue and subpoena the five FBI agents for two weeks,that does not obviate the significant policy problems caused by sub-poenaing field agents of the FBI. I couldn t support that delay.

Again, if you want to subpoena the people in the Justice Depart-ment who had the prosecutorial discretion and asked them whythey decided to do what they do, they are the ones that signed offthat provided for the entry of this consent decree in the casebrought against Rockwell, that is fine, I would support that, be-cause then we are subpoenaing the people who made the policy de-cision.

But the investigators out in the field and the FBI, again, it is nottheir job to make those decisions and I think the subpoena issimply opening up a Pandora's box.

Mr. WOLPE. It is not to get into policy questions. We simply wantto know the factual material that was uncovered and what theylearned in the course of that inquiry.

Mr. Geren?Mr. GEREN. I just want to ask a question to follow up on some-

thing that the Chairman just said. If I heard you right, you saidthat there is nothing that we know of that would suggest that theFBI would be willing to make the agents available. Do I under-stand you as saying that we have not specifically asked them tomake them available-

Mr. WOLPE. No, we have asked them, but-several times. Severaltimes they have been asked, and they have refused that requestseveral times. I am sorry, I wasn't clear. I just made the point thatthere has been no indication on their part in response to our que-ries.

Mr. GEREN. In fact, have they gone so far as to say under no cir-cumstances would they make them available?

Mr. WOLPE. Yes.Mr. GEREN. I just picked up an inference in there that disturbed

me, that-Mr. WOLPE. No, no, no. It was a surprise to us.Mr. TANNER. Thank you, Mr. Chairman. I would like to make

the point at this stage that the concerns expressed by the minority

would be valid if we were talking about an ongoing investigation.As you pointed out in your opening statement, we are not.

This agreement has been, so to speak, a done deal. What we aretrying to do in our function as the oversight subcommittee of juris-diction is simply to determine the facts and determine, based onthe facts, should there be a policy change of direction in how we dothese-how we construct these contracts.

It is inconceivable to me that the FBI would not want to cooper-ate with this committee. We all work for the same Government. Itis inconceivable to me that the minority would pose a problem withtrying to find out factually what happened so that we can addressin a policy manner as we are charged with the responsibility to sodo to change things so that this doesn't happen again.

I don't understand this reluctance, particularly in light of someof the actions that have been taken in the past, but, as you say, weare going to leave those to another day and focus on this particularmatter-at this time.

Mr. WOLPE. I thank you for your observations, Mr. Tanner. Ifthere is no further comment, I would be prepared at this point toread the motion.

Mr. GEREN. I would like to say one thing further, Mr. Chairman.Mr. WOLPE. Sure.Mr. GEREN. I must say I have deep reservations about subpoena-

ing FBI agents in the field. That troubles me. I worry that it is apower that could be abused, and it is-the only reason I supportthis motion today is because I have confidence in you that you w1ilnot do that.- But just to follow up on what John said and to respond to some

of the concerns that Mr. Sensenbrenner and Mr. Boehlert haveraised, this is very troubling, and I think that as a Congress andwe as a committee need to understand that this is a very seriousundertaking that we are going about that any time you are goingout into the field-these folks aren't policy people, these folksaren't people that are used to coming before congressional commit-tees.

These are, so to say, cops on the beat. And the thought of havingto be hauled before a congressional committee if you goof up, itcould be very intimidating. And I think that is something as a com-mittee we have to bear in mind.

We have to be very respectful of that institution, and also justbear in mind the practical impact of the fear of being hauled beforethis committee. And again, I am going to support the Chairman,but I think that we must understand, this isn t something we dolightly, and that the concerns raised by the minority are veryvalid, and it is because of the tremendous respect I have for you,and I know that you are pursuing this for the right reasons that Iam willing to support it. But I just want to voice the concerns thatI have.

Mr. WOLPE. I want to thank the gentleman from Texas for hisobservations and for his repetition of, I think, a very importantconcern that I fully share. Again, I repeat, I wish that this wasn'tnecessary.

I am advised, incidentally, that this is not-it turns out withoutprecedent in one sense, that Secret Service agents were subpoenaed

by Senator Ervin in the course of the Watergate hearings; thePresident objected at that point, but they came on that occasion. Sowe are not breaking entirely new ground, which indicates, eventhough it happened on one occasion, it did not become a patternand a precedent and that kind of situation to give cart blanche forsome kind of a process. I hope it will never become necessary everagain.

Let me yield to Mr. Boehlert.Mr. BOEHLERT. Just one thing. No one has argued on this side

that this is unprecedented.I am just arguing very strongly that we should take it one step

at a time, and I do wish to point out once again to my colleagueswho may not have the benefit of the letter from Director Sessionsto the Chairman, a copy of which was provided me; I don't thinkall the members of the subcommittee received a copy, but the es-sence of the letter is that the FBI will be more than pleased towork with us and cooperate fully to provide information that weneed in the course of our investigation. That is what they shoulddo. That is no great concession on their part.

But the point is that the Director Sessions is being very up frontand very cooperative.

Mr. Chairman, I think we have sort of exhausted this.Mr. WOLPE. Mr. Thornton?Mr. THORNTON. Very quickly, I do not think we should withdraw

from your most generous suggestion that the subpoena, issuance ofthe subpoena might be delayed for a couple of weeks pendingwhich the FBI would have opportunity to reverse its position thatthey do not permit investigative-level agents to be interviewed forreasons that have been discussed.

What is being denied here is not an appearance in a sessionbefore the committee, but a denial of the agent's right to be inter-viewed by staff in order to accomplish a full and complete factualdevelopment from which it might or might not be appropriate toask policy questions. And it seems to me that your suggestion thatthe subpoena be-the issuance of the subpoena be delayed for twoweeks in order to allow the FBI to produce these agents -for inter-view by the staff in order to determine whether there are factualmatters that need to be further developed is a most generous andbipartisan type approach.

Mr. Boehlert was not here at the time that that suggestion wasmade, and it seems to me that you are going very far in trying toaccommodate to the wish of the minority.

Mr. BOEHLERT. No, no, I was here.Mr. WOLPE. Let me just say, I would be prepared to offer the

motion in that fashion on the understanding that we would author-ize the issuance of the subpoena today, but the subpoena would notissue for two weeks if the FBI made its agents available on condi-tions acceptable to the subcommittee.

My hope was that that-I thought it was have very generousoffer, and my hope was it would be a way of reaffirming the bipar-tisanship of the approach to this. So I still-I shall repeat the hopeand the aspiration. But let me offer the motion when we get to itin that fashion. I thank the gentleman for his suggestion.

Mr. THORNTON. Thank you, Mr. Chairman.

Mr. WOLPE. Let me go back to the first motion with respect toRockwell.

I move to authorize the issuance of a subpoena by the Chairmanof the Subcommittee on Investigations and Oversight to compelDonald R. Beal, Chairman of Rockwell International Corporation,to provide the following documents to the subcommittee offices inO'Neill House Office Building, room 822, by 5:00 p.m. on Wednes-day, August 26, 1992, pursuant to the authority granted to theCommittee on Science, Space and Technology by Rules X and XI ofthe Rules of the House of Representatives and to the subcommitteeby Rules XXVI and XXXIII of the committee:

One, copies of all letters, memoranda, notes, electronic and faxtransmissions and any other documents generated by Rockwelland/or its attorneys during investigation ahd prosecution of envi-ronmental crimes case arising from Rockwell's activities at theRocky Flats nuclear weapons plants and transmitted by any meansto the U.S. Department of Justice, the U.S. Attorney's Office forthe District of Colorado, the Environmental Protection Agencyand/or the Colorado Department of Health, which relate to the ne-gotiation of, A, the charges in the information, B, the final agree-ment, C, the settlement and, D, any other plea agreements or set-tlement proposals made in this case by Rockwell and/or its attor-neys or the United States Department of Justice and/or the U.S.Attorney's Office for the District of Colorado.

Two, copies of all letters, memoranda, notes,- electronic and faxtransmissions and any other its documents generated in the sameinvestigation and prosecution by the U.S. Department of Justice,the U.S. Attorney's Office for the District of Colorado, the Environ-mental Protection Agency and/or the Colorado Department ofHealth and transmitted by any means to Rockwell and/or its attor-neys which relate to the negotiation of A, the charges in the infor-mation, B, the final agreement, C, the settlement and, D, any otherplea agreements or settlement proposals made in this case by Rock-well and/or its attorneys or the United States Department of Jus-tice and/or the U.S. Attorney's Office for the District of Colorado.

That is the motion. Is there any further discussion on themotion?

If not,-the Chair will ask that the roll be called.Ms. WATSON. Mr. Wolpe.Mr. WOLPE. Yes.Ms. WATSON. Mr. Boehlert.Mr. BOEHLERT. Yes.Ms. WATSON. Mr. Geren.Mr. GEREN. Yes.Ms. WATSON. Mr. Sensenbrenner.Mr. SENSENBRENNER. Yes.Ms. WATSON. Mr. Nagle.Mr. NAGLE. Yes.Ms. WATSON. Mr. Tanner.Mr. TANNER. Yes.Ms. WATSON. Mr. Thornton.Mr. THORNTON. Yes.Ms. WATSON. Mr. Brown.Mr. WOLPE. Mr. Brown votes yes by proxy.

Ms. WATSON. Mr. Walker, not present.Mr. BOEHLERT. Walker by proxy, aye.Ms. WATSON. Thank you.A total of nine.Mr. WOLPE. The motion passes on a unanimous vote. The second

motion will be to authorize the issuance of a-I am sorry. I wastrying to try extemporaneously to do that, but let me await staff'scorrections.

I move to authorize the issuance of subpoenas two weeks fromthis date by the Chairman of the Subcommittee on Investigationsand Oversight to compel the appearance of Jon Lipsky, VincentLemons, Michael Wonn, A. Kirk Francis and Simon Thornton, spe-cial agents of the Federal Bureau of Investigation, before the sub-committee to testify concerning matters of inquiry committed tothe Committee on Science, Space and Technology by Rules X andXI of the Rules of the House of Representatives and to the subcom-mittee by Rules XXVI and XXXIiI of the committee. On the under-standing that such subpoena-I will, in fact, not issue such a sub-poena if, in fact, the FBI is agreeable to make the agents availableto the subcommittee under conditions acceptable on the subcom-mittee.

Any further discussion of this motion?Any further discussion?Hearing no discussion, the clerk will call the roll, please.Ms. WATSON. Mr. Wolpe.Mr. WOLPE. Yes.Ms. WATSON. Mr. Boehlert.Mr. BOEHLERT. No.Ms. WATSON. Mr. Geren.Mr. GEREN. Yes.Ms. WATSON. Mr. Sensenbrenner.Mr. SENSENBRENNER. No.Ms. WATSON. Mr. Nagle.Mr. NAGLE. Yes.Ms. WATSON. Mr. Tanner.Mr. TANNER. Yes.Ms. WATSON. Mr. Thornton.Mr. THORNTON. Aye.Ms. WATSON. Mr. Brown.Mr. WoLPE. Mr. Brown votes aye by proxy.Ms. WATSON. Mr. Walker, no response.Mr. Wolpe, six aye, two nay.Mr. WOLPE. The motion carries. That, I believe concludes the

business of the committee today. I thank the Members for theirparticipation. The committee stands adjourned.

[Whereupon, at 11:30 a.m., the subcommittee was adjourned, sub-ject to the call of the Chair.]

MEETING: TO SUBPOENA APPEARANCE OF EM-PLOYEES OF THE DEPARTMENT OF JUSTICEAND THE FEDERAL BUREAU OF INVESTIGA-TION AND TO SUBPOENA PRODUCTION OFDOCUMENTS FROM ROCKWELL INTERNATION-AL CORPORATION

WEDNESDAY, AUGUST 12, 1992

U.S. HOUSE OF REPRESENTATIVES,COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY,

SUBCOMMITrEE ON INVESTIGATIONS AND OVERSIGHT,Washington, D.C.

The subcommittee met, pursuant to notice, at 10:26 a.m., in room2318, Rayburn House Office Building, the Hon. Howard Wolpe[Chairman of the Subcommittee] presiding.

Mr. WOLFE. The subcommittee will come to order.I note that a quorum is present. Without objection, I will summa-

rize my statement and my full statement will be entered into therecord in its entirety.

I deeply regret that we are here today. For over two months thesubcommittee has been trying, with no success to date, to interviewthe U.S. Attorney, the Assistant U.S. Attorney, and agents of theFBI concerning criminal violations of federal environmental lawsby the Rockwell International Corporation during its operation ofthe Rocky Flats nuclear weapons facility.

The purpose of today's meeting is to issue sobpoenas to compelithe appearance before the subcommittee of the U.S. Attorney, theAssistant U.S. Attorney, and a Justice Department attorney in-volved in the case. Since earley June the subcommittee has beentrying to interview Michael J. Norton, the U.S. Attorney for theFederal District of Colorado, and Kenneth R. Fimberg, the Assist-ant U.S. Attorney responsible for the case. On July 28th the De-partment agreed to meet with subcommittee staff to discuss theground rules for interviewing Mr. Norton and Mr. Fimberg. Bothsides outlined their concerns. After some discussion, a verbal egree-ment was reached.

This agreement was formally put forward in the July 29th letterfrom the subcommittee to the Department and confirmed in a July30th response from the Department. In light of this written agree-ment, the subcommittee concluded that it was not necessary to sub-poena Mr. Norton and Mr. Fimberg.

On July 30th this subcommittee met to issue subpoenas to fiveFBI agents and to Rockwell. I made the following statement at the

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July 30th hearing: "I am pleased to report that after a prolongedstalemate, the subcommittee has worked out an agreement withthe Justice Department personnel in a manner that preserves therights and interests of the subcommittee and of Justice."

During the week of August 3rd the subcommittee staff talkedwith the Department to make arrangements to interview Mr.Norton and Mr. Fimberg from August 12th to 14th during a stafftrip to Denver. But on August 6th, the Department insisted on newconditions on interviews that, in my view, would gut our agree-ment. The Department has tried to characterize these new de-mands as simply an "addendum' to our agreement, but in factthese demands represent a frontal assault on the primary concernsof the subcommittee in conducting sensitive interviews.

Without objection, a subcommittee letter of May 9th, 1991 to Sec-retary Watkins, spelling out the subcommittee's interview proce-dures, will be entered into the record after my formal openingstatement.

These new conditions are unacceptable to the subcommittee forreasons that are described in my formal statement and I won't gointo them here.

While it may appear that we are at an impasse, I think there isa way out of this that will satisfy the concerns of both the subcom-mittee and the Department. I am therefore proposing that the sub-committee issue subpoenas to compel the appearance of the inter-viewees at subcommittee hearings in September. At the start of thehearing I will make a motion that the hearing be closed to thepublic. The witnesses can be accompanied by counsel only. Neitherthe press nor the Department of Justice will be allowed in theroom. While many questions will be posed by the staff, the partici-pation of members will allow the interviews to be both conductedunder oath and transcribed. The transcript will be controlled bythe subcommittee and will be available for review by an inter-viewee. This approach will address the concerns expressed by thesubcommittee and the Department.

The Department has claimed that such a subpoena is unneces-sary. They claim that the witnesses will be voluntarily provided. Iwish I could believe them, but two weeks ago we reached an agree-ment with the Department that allowed them to avoid the issuanceof a subpoena at our July 30th subcommittee meeting. That agree-ment stated that the staff interviews would occur in Denver fromAugust 12th to 14th. Two members of the subcommittee staff are inDenver right now. They had planned to start their interviews withMr. Norton and Mr. Fimberg today, but these interviews will notoccur today.

Another complication has arisen that necessitates the issuance ofsubpoenas. It is imperative that the subcommittee interview Mr.Fimberg, who was in charge of the prosecution of the case againstRockwell. However, it is my understanding that Mr. Fimberg willbe involved in a case that will go to trial in late August and is ex-pected to last four to six weeks. Therefore, a subpoena must beissued to demonstrate to the judge presiding over the trial the im-portance of allowing Mr. Fimberg to appear before the subcommit-tee in September. While I regret altering the schedule of the trialto permit Mr. Fimberg's appearance, this would not be necessary if

81

the Department of Justice had made him available for an interviewin June, July, or August.

As I indicated at the outset, the subcommittee has been trying tointerview these individuals for two months. The Department's ad-dendum to our July 30th agreement will only serve to delay theseinterviews by at least another month. But even with the issuanceof subpoenas, at least three months will have passed since theseinterviews were originally requested.

In closing, I would strongly emphasize that today's action doesnot represent a lack of trust in the individuals involved. My con-cern is with the Department of Justice itself, and we simply cannotafford any further delays. I would urge my colleagues to supportthis effort.

[The prepared statement of Mr. Wolpe, plus the subcommittee'scorrespondence follow:]

OPENING STATEMENT OF REP. HOWARD WOLPE

SUBCOMMITTEE ON INVESTIGATIONS AND OVERSIGHT

August 12, 1992

The Subcommittee will come to order. I deeply regret that we are here today. Forover two months the Subcommittee has been trying -- with no success to date -- to interviewthe U.S. Attorney, the assistant U.S. Attorney, and agents of the Federal Bureau ofInvestigation concerning criminal violations of federal environmental laws by RockwellIncorporated during its operation of the Rocky Flats nuclear weapons facility.

The purpose of today's meeting is to issue subpoenas to compel the appearancebefore the Subcommittee of the U.S. Attorney, the assistant U.S. Attorney, and a JusticeDepartment attorney involved in this case. I am deeply troubled by the bad faith exhibitedby the Department of Justice that necessitates today's meeting.

In this business, trust is the coin of the realm. A person's word must meansomething. My trust in the Department of Justice has steadily eroded in the last two monthsas I have witnessed a pattern of behavior that appears designed to stall, obstruct, andimpede the ability of the Subcommittee to conduct legitimate oversight activities. I would,therefore, like to take a few minutes to describe in detail how we got to this point. Withoutobjection, the Subcommittee's correspondence with the Department of Justice on this matterwill appear in the hearing record at the close of this statement.

On June 1, 1992, the federal court for the District of Colorado approved a pleabargain agreement between the Department of Justice and Rockwell to settle criminalviolations of environmental laws by Rockwell during its operation of Rocky Flats.

In early June, the Subcommittee staff called Michael J. Norton, the U.S, Attorney forthe federal District of Colorado, and Kenneth R. Finberg, the assistant U.S. Attorneyresponsible for the case, to arrange for staff interviews during a trip to Denver. Bothindicated their willingness, but said the interviews had to be coordinated through theDepartment headquarters in Washington, D.C. The Department claimed authority to speakfor the attorneys and indicated that direct contacts between tho attorneys and theSubcommittee were not proper.

The Department initially reffised to provide Mr. Fimberg because of its position that"line attorneys" cannot be interviewed by Congress. The Department subsequently agreedto "make an exception" when confronted with two facts: First, Mr. Fimberg had discussedthis case with the press; and second, DOJ had provided line attorneys for Congressionalinterviews in the past.

83

Betweent June23 and-July 9, 1992 the Subcommittee sent four letters to the Justice

Department requesting these interviews. But the Department responded by raising a series

of weak excuses as to why they could not even attend a meeting to discuss the groundrules

for such interviews.

On July 22, the Subcommittee sent a letter to Attorney General Barr indicating that

if the Subcommittee did not receive written assurances by July 24 that Mr. Norton and Mr.

Fimberg would be made available, the Subcommittee would, "be forced to consider other

options open to the Subcommittee to conduct its constitutionally mandated oversight

activities." End of quote. While no such assurances were received in its July 24 response,

the veiled reference to a subpoena apparently got the Department's attention and they

finally agreed to meet with Subcommittee staff to discuss the matter.

On July 27, a Subcommittee meeting was scheduled for July 30 to issue subpoenas

for Mr. Norton, Mr. Fimberg, five FBI agents, and documents from Rockwell.

The day after the subpoena meeting was announced, July 28, the Subcommittee staff

met with the Departm,'rnt to discuss the groundrules for interviews for Mr. Norton and Mr.

Fimberg. Both sides outlined their concerns. The Subcommittee's primary concern in

conducting interviews on sensitive subjects is to create an environment in which interviewees

feel free to speak candidly without fear of reprisal. The Subcommittee therefore insisted

that no one from Department of Justice headquarters be present in the interviews. Without

objection, I will enter into the record at the end of this statement a May 9, 1991 letter to

Secretary Watkins that describes the Subcommittee's procedures for conducting interviews.

The Department's primary concern seemed to be that interviewees be accompanied

by counsel who are knowledgeable about grand jury secrecy requirements.In recognition of the concerns of both the Subcommittee and the Department, the

Subcommittee staff proposed that Mr. Norton, Mr. Fimberg and Mr. Peter Murtha, an

attorney who worked on the case in the Department headquarters, be interviewed

individually by Subcommittee staff and that the only other person allowed in the room

during the interview will be an attorney representing the interviewee. After conferring

among themselves, the Department accepted the terms of the Subcommittee's proposal.

This agreement was formally put forward in a July 29 letter from the Subcommittee

to the Department, and confirmed in a July 30 response from the Department. In light of

this written agreement, the Subcommittee concluded that it was not necessary to subpoena

Mr. Norton and Mr. Fimberg.

On July 30 this Subcommittee met to issue subpoenas to five FBI agents and to

Rockwell. I made the following statement at the July 30 hearing:

84

'I am pleased to report that after a prolonged stalemate, the subcommitteehas worked out an agreement with the Justice Department which will enable

our staff to interview relevant Justice Department personnel in a manner thatpreserves the rights and interests of the subcommittee and of Justice."

During the week of August 3, the Subcommittee staff talked with the Department to

make arrangements to interview Mr. Norton and Mr. Fimberg from August 12 to 14 during

a staff trip to Denver.

But on August 6, the Department contacted the Subcommittee to back out of the

agreement. The Department insisted on new conditions on the interviews that would clearly

gut our agreement. The Department has tried to characterize these new demands as simply

an "addendum" to our agreement. But, in fact, these demands represent a frontal assault

on the primary concern of the Subcommittee.

The Department claimed that these new conditions had been requested by Mr.

'Norton and Mr. Fimberg -- despite the fact that the Department had earlier claimed tke

authority to negotiate on their behalf. But I would also emphasize that we have no way of

knowing if the effort to alter our agreement originated with the interviewee or the

Department of Justice.

The Department sought to dramatically alter the agreement by requiring that a court

reporter be present to produce transcripts of the interviews. It is claimed that these

transcripts are necessary to protect the interviewees from attempts to distort their testimony

and leak it to the press. The Subcommittee never has and never will engage in st~ch activity.

Nonetheless, the Subcommittee staff offered to provide written assurances that the contents

of the interviews would not be leaked to the press. But such assurances were apparently

insufficient. The Department insisted that two transcripts of each interview be produced:

one for the Subcommittee and one for the interviewee.

But this proposal flies in the face of the Subcommittee's primary concern about

creating an environment in which an interviewee is free to speak without fear of reprisal.

At our meeting we insisted that Justice headquarters not be present during interviews. But

the Department could easily use this new condition as a trojan horse to gain access to the

interview room. We have no may to ensure that the Department will not demand that the

interviewees turn over their copies of the transcript to the Department of Justice. It is

therefore imperative that any record of an interview be kept in the possession of the

Subcommittee to prevent undue pressure on the interviewee.

However, there are two obstacles to the creation of transcripts of staff interviews thatwould be in the possession of the Subcommittee, but available to interviewees for review.First, the House does not permit Committee staff to use reporters to make transcripts ofstaff interviews. Second, it is the long-standing position of the Subcommittee that formal

testimony received by the Subcommittee must be taken under oath and staff is not

authorized to take sworn statements.- On August 7 at 3:00 pm -- in an attempt to avoid these obstacles and address the

concerns of both the Department and the Subcommittee -- the Subcommittee staff made averbal counter proposal. We offered to tape record the interviews and allow the intervieweeaccess to such tapes in the Subcommittee's offices if statements made during an interview

are used in a public manner that is found objectionable. But at 5:00 pm, that offer wassummarily rejected by the Department of Justice. Justice apparently is concerned with

technical problems that could result from the use of a tape recorder.On Monday, August 10 I received a letter from the Department reiterating its

insistence that the interviewees be provided a transcript of any staff interview.

While it may appear that we are at an impasse, I think there is a way out of this thatwill satisfy the concerns of both the Subcommittee and the Department. I am therefore

proposing that the Subcommittee issue subpoenas to compel the appearance of theinterviewees at Subcommittee hearings in September. At the start of the hearing, I willmake a motion that the hearing be closed to the public. The witnesses can be accompanied

by counsel only. Neither the press nor the Department of Justice will be allowed in the

room. While many questions will be posed by the staff, the participation of Members willallow the interviews to be both conducted under oath and transcribed. The transcript will

be controlled by the Subcommittee and will be available for review by an interviewee. Thisapproach will address the concerns expressed by the Subcommittee and the Department.

I described this approach in a letter that I sent to the Attorney General yesterday.I'm sure that the Department will claim that such a subpoena is unnecessary. They

will probably claim that the witnesses will be voluntarily provided. I wish I could believethem. But two weeks ago we reached an agreement with the Department that allowed them

to avoid the issuance of a'iubpoena at our. July 30th Subcommittee meeting. But theDepartment walked away from that agreement. That agreement stated that the staff

interviews would occur in Denver from August 12 to 14. Two members of the

Subcommittee staff are in Denver right now. They had planned to start their interviews with

Mr. Norton and Mr. Fimberg today. There is an old saw that is applicable to this situation:

"fool me once, shame on you; fool me twice, shame on me."

Another complication has arisen that necessitates the issuance of subpoenas. It isimperative that the Subcommittee interview Mr. Fimberg, who was in charge of theprosecution of the case against Rockwell. However, it is my understanding, that Mr. Fimbergwill be involved in a case that will go to trial in late August and is expected to last four tosix weeks. Therefore, a subpoena must be issued to demonstrate to the judge presiding overthe trial the importance of allowing Mr. Fimberg to appear before the Subcommittee inSeptember. While I regret altering the schedule of the trial to permit Mr. Fimberg'sappearance, this would not be necessary if the Department of Justice had made himavailable for an interview in June., July, or August.

As I indicated at the outset, the Subcommittee has been trying to interview theseindividuals for two months. The Department's refusal to honor our July 30th agreement hasonly served to delay these interviews by at least another month. But even with the issuanceof subpoenas, at least three months will have passed since these interviews were originallyrequested.

In closing, I would strongly emphasize that today's action does not represent a lackof trust in the individuals involved. My lack of trust is in the Justice Department itself andwe simply cannot afford any further delays. Unfortunately, the Department's behavior givesus little choice but to issue these subpoenas today. I urge my colleagues to support thiseffort.

U.S. HOUSE OF RPIESENTATIIS


SUITE 2320 RAYBURNM NOOS| orFIC9 GUILoNWASHING TOM. 00 lOUI

2031 20-371

May 9. 1991

The Honorable James D. WatkinsSecretaryDepartment of EnergyWashington. D.C. 2058

Dear Mr. Secretary:

As you know. the Subcommittee on Investigations and Oversight of the Science.

Space and Technology Committee. pursuant to its authorities under Rules X and XIof the United States House of Representatives. has been reviewing the Departmentof Energy's proposed Superconducting Super Colider (SSC) program. On March20. 1991. as part of this review, a staff interview was conducted with Mr. RobertScarlett. the bead of the Independent Cost Estimating (ICE) staff, to determine the

basis for its cost estimate for the SSC.

During the course of arranging for that interview. the Department of Energy'sCongressional Affairs office advised that it is Departmental policy that interviewees

may bring one person of their choice to an interview. In our letter toyou onMarch 8 we made it plain that it is the policy and practice of this Committee,consonant with the constitutional oversight prerogatives of the House ofRepresentatives, to set the ground rules for its investigatory proceedings, includingthe manner in which the staff interviews of agency officials will be conducted. Aswe explained, the inherent potential for conflict of interest arising from the

presence of a Department official. as well as the possible inhibiting effects of such apresence. underlie this policy. But we noted that interviewees may be accompaniedby a personal attorney. Mr. Scarlett chose to attend alone, in apparentacknowledgment of the Subcomznittee's policy.

However. on March 22. 1991. we 'received a letter from Ms Jacqueline

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88


Knox-Brown. Assistant Secretary for Congressional and Interagency Affairs.indicating a continued insistence on the Department's rejected stance. As aconsequence. we feel compelled to set forth concisely the pragmatic and legalrationale for the Subcommittee's overriding policy.

The ability of the Subcommittee to effectively carry out its oversightresponsibilities requires that it be confident that the responses it obtains fromofficers and employees\ with respect -to the administration of agency programs arecandid, objective, and truthful We have no way to ascertain with any degree of

certainty whether any interviewee's particular request to be accompanied byDepartmental personnel is, in fact, 'based solely on the employee's personalwishes." Our policy, then, seeks to insulate an interviewee from presence of

departmental personnel during a staff interview and stems from our desire toassure effective oversight of Departmental operations while protecting intervieweesfrom the possibility of abuse, threats, and coercion.


oversight responsibilities is unas,ailable. It has been deemed axiomatic that 'lailegislative body cannot legislate wisely or effectively in the absence of informationregarding conditions which the legislation is intended to affect or change.' Mc.raiv._Jue.b a 273 U.S. 135. 175 (1927). In a variety of contexts, the Courts haverecognized that the 'power of inquiry - with process to enforce it - is an essentialand appropriate auxiliary to the legislative function.' Id. at 174. As a consequence,'Congress. whether as a body. through committees, or otherwise, must have the


manifold responsibilities effectively.' Murphy v. Deprtment of the Army. 612 F.2d1151. 1158 (D.C. Cir. L979). For that reason. "'[he scope of the [Congressionallpower of inquiry . ..is as penetrating and far-reaching as the potential power to

enact and appropriate under the Constitution." Fatland v. United StatesServicemen's Fund, 421 U.S. 491. 504 n.14 0975) (quoting Barenblatt v. United

89

The Honorable James D. WatkisMay 9. L991Page 3

&=360 U.S. 109. W1 W5 9)).

Thus, Congress has been vested with broad. constitutioi iy based oversightpowers to ensure that public officials remain accountable to legislative scrutiny toallow it to see whether its laws are being fully executed. Watkins Y. United States354 U.S. 178, 187 (1957). Moreover, through the enactment of specific statutes, it

has sought to protect the rights of public employees to communicate with Congressand provide information and materials to the Members and Committees ofCongress. Experience has demonstrated that government employees who feel freeto provide evidence at public fora are essential tools of government accountability.Congress in the past had proscribed 'gag orders' forbidding federal employees from

directly communicating with Congress without seeking the approval of theirsupervisors and guaranteed the right of civil servants to freely communicate withelected representatives. The Lloyd-LaFoUette Act. 5 U.S.C. S 7211, provides that:

The right of employees, individually or collectively, to petitionCongress or a Member of Congress. or to furnish informationto be Committee or Member thereof. may not be interferedwith or denied.

Also. in the Civil Service Reform Act of 1978. Congress again emphasized its

need for a free flow of information from the Executive Branch by making itunlawful to take reprisals against so-called owhistleblowers.' &M S U.S.C. S2302(bX8). The Senate Report declared: 'Protecting employees who disclosegovernmental illegality, waste, and corruption is a major step toward a moreeffective civil service. In the vast bureaucracy, it is not difficult to concealwrongdoing provided that no one summons the courage to disclose the truth.* S.Report No. 969. 95th Cong.. 2d Sess. 8 (1978). In 1988 and 1989. Congress furtherstrengthened the protections of whistleblowers. 5c Military Wistleblowers

Protection Act. P.L 100-456, 846, 102 Stat. 1918, 2027-30 0988). codified at 10U.S.C. S 1034; and the Whistleblowers Protection Act of 1989. P.L No. 101-12. 103Stat. 16.


Finally, Congress has made it a violation of federal criminal law to impede a

Congressional investigation or intimidate Congressional witnesses. 18 U.S.C. S

1505 and 1512(bXc).

We are confident that you are sensitive to the need to follow both the letter

and spirit of thtse important statutes and case precedents and understand their

close relationship to ti requirements of uninhibited Subcommittee access to

departmental personnel. Further insistence on the Department's interview policy.

with its potential damage to and chilling effect on continued cooperation of

department employees with current and future Subcommittee inquiries, poses the

threat of an unnecessary obstacle to what heretofore has be -n a productive

relation. Certainly the option afforded any interviewee of requesting the presence

of a personal attorney sufficiently protects the-interests of the interviewees and

satisfies any perceived obligation of the Depailment.

- We appreciate your cooperation in this matter and look forward to working

with you in the future.

Sincerely. /

HOW WO E SHERWOOD BOEHLERT1 Ranking eubicnu ttee on Investigations Subcommittee on Investigation

and Oversight and Oversight

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June 12, 1992

Michael NortonU.S. Attorney1961 Stout St., 12th floorDenver, Colorado 80294

Dear Mr. Norton:

Pursuant to its oversight responsibilities under Rule 26 ofthe Science, Space, and Technology Committee, the Investigationsand Oversight Subcomnittee is conducting a review of the recentlyconcluded criminal case against Rocvwell, Inc., resulting from itsactivities at the Rocky Flats nuclear weapons plant.

As part of that review, Edith Holleman, the Subcommitteecounsel, had requested a meeting with you. Ms. Holleman will be inDenver next week as part of this review to talk to relevantgovernment officials. She subsequently received a message from youthat you would be in trial next week, and that it was yourunderstanding that all interviews with you were to be coordinatedthrough the Justice Department's Office of Legislative Affairs(OLA). However, OLA staff had already informed Ms. Holleman thatit is not responsible for your interactions with Congressionalstaff as you are an independent, Senate-confirmed appointee withseparate Congressional reporting responsibilities.

Therefore, I am reiterating the Subcommittee's request for aninterview. If your trial continues for all of next week, and thatweek is not otherwise convenient for you, I am requesting that youmake arrangements to be available for an interview withSubcommittee staff in the Subcomnittee offices in Room 822, HouseAnnex I, in Washington during the week of June 22.

I am also requesting that you and your office maintainpossession of all materials collected, acquired, created or usedduring its prosecution of the Rocky Flats case in anticipation ofa document request from the Subcommittee.

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Mr. Michael NortonJune 12, 1992Page Two

Please contact Ms. Holleman, who can be reached this week atthe Subcommittee offices at (202) 225-4494 or next week at (303)694-0525 in Englewood, or Bob Roach, chief investigator, at (202)225-4494, to make arrangements for this interview. Your assistancein this matter is appreciated.

XSince

ely,

OWARD WXE~Cha iSubcl ittee on Investigationsand Oversight

93

US, Depuianc of iutke

June 26t 1992 UN u

Tbe Honorable Howard WolpeChairman(;ubcomttee on Investigatt-ns

and OversightCommittee on sciences Space,

SSuite 2320 Rayburn House Offic ButildingWashington, D.C. 20515-6301

ear Mr Chairman:

This is In reply to your recent letter reobesting the

opportunity for Edith Holleman of your -staff to meet with me todiscuss the prosecution Involving the Rocky laLs Nuclear WeansPlant.

I understand that Mr. ealaise of our ExeuLlve Office has

been in touch with Ms. Holleman and that it has been agreed thatthis meeting will take place on Friday morning, Jul 10 inWashington. To that end, will be traveling Lu Wshington forthat purse at that time.

I lok forward to being of service to you azd iut committeeIn this regard.thismeetng wll tke paceor F ry morilg,J'10i

in thistregardw 'very truly,

Unite tates Attorney

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Dear General Barr:

Pursuant to its oversight responsibilities under Rule 26 ofthe Science, Space, and Technology Committee, the Investigations&nd Oversight Subcommittee is conducting a review of the recentlyconcluded federal criminal case against Rockwell, Inc., resultingfrom its activities and those of the Department of Energy at theRocky Flats nuclear weapons plant.

As part of that review, I request that Kenneth Fimberg, theassistant United States attorney in charge of that prosecution,' bemade available to the Subcommittee wtaff for an interview onTuesday, June 30, 1992, at 10 a.m. in the Subcommittee offices inHouse Annex 1, Room 822. This request represents theSubcommittee's second attempt to interview Mr. Fimberg, who hadearlier been made available to both local and national press todiscuss the settlement of this case. Subcommittee staff made afirst request on June 11, 1992, prior to a staff trip to Denver,but was told by the Department's Office of Legislative Affairs thatis was the 'general practice' of the Department that 'lineattorneys' are not available to Congressional committees, eventhough they are allowed to speak with members of the press. I havesince learned that this 'practiceO appears to be quite flexible asother Congressional comittees have interviewed assistant U.S.attorneys.

95

William P. BarrJune 23, 1992Page Two

Please have your staff contact Bob Roach, the Subcomittee'schief investigator, at (202) 225-4494 if you have any questionsabout this request and to make arrangements for the interview.


Sincerely,

HOWARD PChal Vip~Subc ittee on Investigations

and Oversight

96

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JUne 29, 1992The Honorable Howard VolpeChairman, Subcommittee on

Investigations and OversightCommittee on Science, Space, and TechnologyU.S. House of RepresentativesWashington, D.C. 20515

Dear Kr. Chairman:

This is in response to your June 23, 1992 letter to theAttorney General, requesting that the Department of Justice makeAssistant United States Attorney Kenneth FiAberg available foran interview with the staff of the Subcommittee.

Your letter indicated that the interview would be part ofthe Subcommittee's review of the criminal prosecution againstRockwell, Inc. with respect to the Rocky Flats nuclear weaponsplant. Subject to resolution of the jurisdictional issue that wehave discussed with your staff, we will permit r. FTimberg tojoin United States Attorney Michael Norton in the Subcommitteestaff interview that has already been scheduled for July 10,1992. This exception to the Department's policy against makingline attorneys available for congressional interviews is based onthe fact that Mr. Fimberg has participated in a press conferenceon this case.

You should be aware that there may be certain areas ofquestioning to which Messrs. Norton and Fimborg may not be ableto respond. For example, national security concerns areobviously implicated in any review of defense nuclear facilitiessuch as Rocky Flats. Moreover, as we have discussed with yourstaff, the prosecutors are subject to the grand jury secrecyrequirements of Rule 6(e) of the Federal Rules of CriminalProcedure, and they will similarly be constrained in discussingthe internal deliberations of this Department in connection withits exercise of prosecutorial discretion.

~97

Please do not hesitate to contact me or Faith Burton of mystaff if you wish to discuss this matter.

Sincere y,


cc: Honorable Sherwood L. BoehlertHonorable Lee AspinHonorable William Dickinson

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William P. Barr IIIAttorney GeneralU.S. Department of Justice10th and Pennsylvania AvenueWashington, D.C.

Dear General Barr:

On June 29, 1992, I received a letter from W. Lee Rawle, theassistant attorney general for the Office of Legislative Affairs,in response to my June 23 letter to you. Mr. Rawls stated thatKenneth Fimberg, the assistant United States attorney in chargeof the federal criminal case against Rockwell International,Inc., resulting from its activities and those of the Departmentof Energy at the Rocky Flats nuclear weapons plant, would be madeavailable to the Subcommittee staff for an interview on Friday,July 10, in conjunction with the staff interview alreadyscheduled with United States Attorney Michael Norton.

However, Mr. Rawls appeared to suggest that Mr. Fimberg'savailability was conditional upon the resolution of some as-yet-undefined jurisdictional problem.

It is my firm belief -- which is supported by the counsel ofthe House of Representatives -- that the jurisdictional scope ofthe Science, Space, and Technology Committee is decided by thisbranch of government and not by the executive branch. As you mayknow, representatives of the Department of Justice demanded ajurisdictional statement from the Subcomittee in their meetingwith staff on Wednesday, June 23. This statement was immediatelyhand delivered to them in the form of my letter to you of June23. Therefore, I consider that any misunderstanding theDepartment may have had about jurisdiction has been resolved.

However, there are other matters concerning documents andinterview procedures raised by your staff that bear furtherdiscussion. I am aware of the restrictions of Rule 6(e) of theFederal Rules of Criminal Procedure which protect disclosure ofthe deliberations of the grand jury, but those limitations are

99

William P. Barr IIIJuly 2, 1992Page Two

not nearly as broad as our briefing from the Department implied.Also, to the extent that the Justice Department is concerned thatcertain aspects of the Subcommittee's investigation will touchupon prosecutorial discretion, please be advised that over sixdecades ago, the United States Supreme Court found that Congresshad the power to look into and obtain information and documentsconcerning the Department of Justice's exercise of prosecutorialdiscretion. McGrain v. Daughter, 273 U.S. 135 (1927). Mr.Rawls' statement that implies that the Department is constrainedby the Federal Rules of Criminal Procedure from discussing thesematters is clearly incorrect.

Therefore, I am requesting that Mr. Rawls meet with membersof my staff and Chairman Brown's staff to discuss in specificdetail those issues. I am requesting that this meeting be heldno later than Wednesday, July 8, 1992. Please contact Bob Roach,Subcommittee chief investigator, at (202) 225-4494, or MichaelRodemeyer, Committee counsel, at (202) 225-6375 to makearrangements for this meeting.

Additionally, to acquaint you with the Subcommittee's rulesconcerning staff interviews, I have enclosed a copy of our May 9,1991, letter to Secretary James D. Watkins, Department of Energy,describing that policy.


Sincerely,

nmittee on InvestigationsOversight

ENC:

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May 9. 1991

The Honorable James D. WatkinsSecretmDepartment of EnerWashington. D.C. 20%

Dear Mr. Secretary-

As you know. the Subcommittee on Investigations and Oversight of the Science.Space amd Technology Committee, pursuant to its authorities under Rules X and XIof the United States House of Representatives, has been reviewing the Departmentof Energy's proposed Superconducting Super Collider (SSC) program. on March20. 1991. as part of this review, a staff interview was conducted with Mr. RobertScarlett. the bead of the Independent Cost Estimating (ICE) staif, to determine thebasis for its cost estimate for the SSC.

During the course of arranging for that interview, the Department of Energy'sCongressional Affairs office advised that it is Departmental policy that interviewmay bring one person of their choice to an interview. In our letter to you onMach I. we made it plain that it is the policy and practice of this Committee,comnant with the constitutional oversight prerogatives of the House ofRepresentatives. to set the ground rules for its investigatory proceedings, includingthe manner in which the staff interviews of agency officials will be conductt.4 Aswe explained. the inherent potential for conflict o( interest arising from thepresence of a Department official. as weU as the possible inhibiting effects of such apresence. underlie this policy. But we noted that interviewes may be accompaniedby a personal attorney. Mr. Scarlett chose to attend alone. in apparentacknowledgment of the Subcommittee's policy.

However. on March 22. 1991. we received a letter from Ms. Jacqueline

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101


Knox-Brown. Assist nt Secretary for Congressional and Interagency Affairs.

indicating a continued insistence on the Department's rejected stance. As a

consequence, we feel compelled to set forth concisely the pragmatic and legal

rationale for the Subcommittee's overriding policy.

The ability of the Subcommittee to effectively carry out its oversight

responsibilities requires that it be confident that the responses it obtains from

officers and employees with respect to the administration of agency programs are

candid, objective, and truthful. We have no way to ascertain with any degree of

certainty whether any interviewee's particular request to be accompanied by

Departmental personnel is. in fact, *based solely on the employee's personal

wishes.' Our policy, then, seeks to insulate an interviewee from presence of

departmental personnel during a staff interview and stems from our desire to

assure effective oversight of Departmental operations while protecting interviewees

from the possibility of abuse, threats, and coercion.


oversight responsibilities is unassailable. It has been deemed axiomatic that 'Ia]

legislative body cannot legislate wisely or effectively in the absence of information

regarding conditions which the legislation is intended to affect or change.* Mcxain

y ghtem 273 U.S. 1. 175 1927). In a variety of contexM the Courts have

recognized that the "power of inquiry - with process to enforce it - is an essential

and appropriate auxiliary to the legislative function.' Id. at 174. As a consequence.

'Congress, whether as a body. through committees, or otherwise, must have the


manifold responsibilities effectively.* Murphy v. Department of the Army. 612 F.2d

1151. 1158 (D.C. Cir. 1979). For that reason. "'ihe scope of the [Congressional]

power of inquiry . . . is as penetrating and far-reaching as the potential power to

enact and appropriate under the Constitution." Eastland v. United States

Servicemen's Fund, 421 U.S. 41, 504 n.14 (1975) (quoting Barenblatt v. United

102

Tw Honorable James D. WatkinsMay 9. 1991Pase 3

States 360 U.S. 109. W11 (1959)).

Thus. Congress has been vested with broad, constitutionally based oversight

powers to ensure that public officials remain accountable to legislative scrutiny toallow it to see whether its laws are being fully executed. Watkins v. United States354 U.S. 178, 187 (197). Moreover, through the enactment of specific statutes, it

has sought to protect the rights of public employees to communicate with Congress

and provide information and materials to the Members and Committees of


to provide evidence at public fora are essential tools of government acsountability.

Congress in the past had proscribed *gag orders' forbidding federal employees from


supervisors and guaranteed the right of civil servants to freely communicate withelected representatives. The Lloyd-LaFollette Act. S U.S.C. S 7211. provides that-

The right of employees, individually or collectively, to petitionCongress or a Member of Congress. or to furnish informationto be Committee or Member thereof. may not be interferedwith or denied.

Also, in the Civil Service Reform Act of 1978. Congress again emphasized its

need for a free flow of information from the Executive Branch by making it

unlawful to take reprisals against so-called "whistleblowem." See S US.C. S230"(XS). The Senate Report declared: 'Protecting employees who disclosegovernmental illegality, waste, and corruption is a major step toward a more

effective civil service. In the vast bureaucracy, it is not difficult to concealwrongdoing provided that no one summons the courage to disclose the truth." S.

Report No. 969. 95th Cong.. 2d Sess. 8 (1978). In 1988 and 1989. Congress further

strengthened the protections of whistleblowers. See Military WhistleblowersProtection Act. P.L 100456. 5 846. 102 Stat. 1918, 2027-30 (1988), codified at 10U.S.C. S 1034; and the Whistleblowers Protection Act of 1989. P.L No. 101-12, 103Stat 16.

103


Finally. Congress has made it a violation of federal criminal law to impede aCongressional investigation or intimidate Congressional witnesses. St 18 U.S.C. S1505 and .S12(bXc).

We are confident that you are sensitive to the need to follow both the letterand spirit of these important statutes and case precedents and understand theirclose relationship to the requirements of uninhibited Subcommittee access todepartmental personnel. Further insistence on the Department's interview policy,with its potential damage to and chilling effect on continued cooperation ofdepartment employees with current and future Subcommittee inquiries, poses thethreat of an unnecessary obstacle to what heretofore has been a productiverelation. Certainly the option afforded any interviewee of requesting the presenceof a personal attorney sufficiently protects the interests of the interviewee- andsatisfies any perceived obligation of the Department.

We appreciate your cooperation in this matter and look forward to workingwith you in the future.

Sincerely.

tHOWWOL F SHERWOOD BOEHILERTSuite onbincav

Su ;emmittee on Investigations Subcomtt on Investigationand Oversight and Oversight

104

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July 8, 1992


Dear General Barr:

On July 2, 1992, in a letter to you, I requested that W. LeeRawls, the assistant attorney general for the Office of LegislativeAffairs (OLA), meet with Subcomwnittee staff to discuss issuesconcerning our scheduled interviews with Michael Norton, UnitedStates Attorney for the District of Colorado, and Kenneth Fimberg,an assistant U.S. attorney under Mr. Norton, on Friday, July 10.These interviews were for the purpose of discussing the Rocky Flatscase. Because of some of the legal concerns raised by the JusticeDepartment, I had asked that Michael Rodemeyer, the Committee'scounsel, participate in that meeting.

On Tuesday, July 7, shortly after 5 p.m., Mr. Rodemeyerreceived a call from Mr. Rawls. In a return phone call within thehour, Mr. Rawls and Mr. Rodemeyer agreed thac Lhe meeting would beheld today at 1:30 p.m. in the Committee offices in 2320 Rayburn.Today, shortly before the scheduled meeting time, Mr. Rawls calledMr. Rodemeyer and left a message indicating that he had put themeeting on hold because he 'understood" that the full Committeeminority st ,f director objected to the meeting taking place if hedid not att 1. Upon my direction, Mr. Rodemeyer, in a return callat about 1.- J p.m., told Mr. Rawls that since I, as Subcommitteechairman, had requested the meeting, it was my prerogative todetermine who would be invited to attend. In a succeeding call afew minutes later, Mr. Rawls told Mr. Rodemeyer that he [Mr. Rawls]had decided that he would not meet with my staff because of thisIdisputeR or 'controversy'. (Strangely enough, this 'dispute' wasnever raised with me. or my staff by the minority staff director --nor was a request by the minority staff director to attend receivedin my office -- prior to the initial telephone call from Mr.Rawls.) Mr. Rawls further stated that he would meet with my staff

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105

William P. Barr IIIPage TwoJuly 8, 1992

only when this "dispute* was resolved, and also said that he wouldcancel the interviews with Mr. Norton and Mr. Fimberg if there wasno "resolution" in the near future.

Since I am the Subcommittee chairman who made the request forthe meeting, I can assure you that there is no dispute that needsto be resolved. My staff will be in attendance at the meeting. Inaddition, the staff of the Subcommittee's ranking Republican hasbeen advised of the meeting and its purpose. To ensure that theinterviews scheduled for Friday, July 10, will take place asplanned, I request that the meeting between Mr. Rawls and my stafftake place Thursday, July 9, 1992, at 2 p.m. in the Subcommitteeoffices in House Annex # 1, Room 822. Please have your staff callBob Roach, Subcommittee chief investigator, or Edith Holleman,Subcommittee counsel, at (202) 225-4494 to make arrangements forthis meeting.


Sincerely,

mittee on InvestigationsOversight

106

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July 8, 1992

Honorable Howard WolpeChairmanSubcommittee on Investigationsand Oversight



Dear Mr. Chairman:

An you requested in your letter to the Attorney General,dated July 2, 1992. I have agreed to meet with Committee andSubcommittee staff to discuss certain issues that have arisen inconnection with the Subcommittee's current review of the criminalprosecution against Rockwell, Inc. with respect to the RockyFlats nuclear weapons plant.

The meeting was scheduled for 1:30 p.m. today, and I andother Department representatives were prepared to attend in aneffort to resolve these issues in a way that would accommodateour respective interests. We were informed just prior to themeeting, however, *%at the full Committee Minority Chief of Staffand General Counsea had asked to attend today's meeting but wouldnot be permitted to attend. We believe that these importantpending issues can best be resolved by the Committee's unifiedefforts with this Department. Hence, we regret that the meetingthis afternoon could not go forward but we are prepared toschedule another meeting, on short notice if necessary, when theMinority Chief of Staff and General Counsel are to be included.

Several of the issues we would have addressed today pertainto the interview of U.S. Attorney Norton and Assistant U.S.Attorney Fiuberg, which was scheduled for Friday, July 10, 1992.Since those issues have not been resolved and the individualsplanned to travel today, this interview has been postponed.Again, we are ready to reschedule once the pending concerns havebeen addressed.

107

Please contact me if there are any questions about thismatter.

Sincere

W.Lee RawlsAssistant Attorney General


- 2 -

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U.S. HOUSE OF R EPMSENATIVES


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William P. Barr [Attorney GeneralU.S. Department of Justice10th and PennsylvaniaWashington, D.C.

Dear GCneal Barr.

I have just received a letter from W. Lee Rawls in response to my July 8, 1992 letter to youregarding a meeting with my Subcommittee staff concerning the Rocky Flats matter.

Let me say that I find the tone and the content of this letter to be most inappropriate. Ihave tried to engage the Department of Justice in a good faith dialogue to address the issuessurrounding this matter in a mutually agreeable manner. The Department, however, seemsunwilling to engage in such a dialogue. Frankly, I find it very troubling that an assistantattorney general for congressional relations would have the temerity to try to dictate theterms and conditions of a meeting requested by a Member of Congress. Such an approachdoes not reflect wel on the profession of the Department of Justice.

I assume that representatives of the Department of Justic have met with the minority staffof the House Committee on Science, Space, and Technology concerning this and othermatters. I assume that additional meetings will occur in the future. I assure you that Iwould never be so presumptuous as to insist that my Subcommittee staff be allowed toattend aH such meetings. To do so, in my mind, would represent a serious breach of civility.In addition, it would seriously impede the cpability of both majority and minority staffs toconduct their business.

Let's try to rise above this pettiness. I requested a meeting in my Subcommiftee officetoday. As I have requested the meeting, I think you wilagme that it is within my discretionto determine who shall attend. I request that such a meeting occur today at 3:30 p.m. inHouse Annex 01 Room 822.

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Sincere,

owaM P

Subcommittee on Investigationsand Oversight

110

U.& Deprtment of Justice

P1~) Office of Legislative Affairs

Officm of dw Ann"a uAorMY G=",' NsAisqg. DC 3X

July 9, 1992


and OversightCommittee on Science, Space,and Technology


Dear Kr. Chairman:

It would appear that our respective letters dated July 8,1992 'crossed in the mails.' In my letter, I explained theDepartment's view that it is desirable that the pertinent viewsof the Committee and the Subcommittee be represented a: themeeting we had scheduled to address certain issues presented bythe Subcommittee's request for access to documents and Depertmentattorneys relating to the criminal prosecution against Rockwell,Inc. with respect to the Rocky Flats nuclear weapons plant.

The Department remains prepared to meet in an effort toaccommodate the Subcommittee's interests. Since our documentsand employees are the focus of these interests and we have beeninformed that full Committee Minority staff have an interest inthese discussions, we want to ensure that all relevantcongressional interests are explored. We have assumed that youshare this belief, because your July 2, 1992 letter requested ameeting with both Committee and Subcommittee staff. In order tofacilitate this process, we are willing to host a meeting at 3:30pm today, July 9, 1992, here at the Department. Representativesof Majority and Minority Staff of the full Committee and theSubcommittee are welcome to attend. I believe that such aninclusive effort will more expeditiously advance all of interestsinvolved in this matter.

Finally, I must note for the record that the suggestion inyour letter that the Minority Chief of Staff of the fullCommittee had not requested and been denied attendance toyesterday's scheduled meeting prior to my initial call isinaccurate. All this is beside the point, however. It is myhope that all interested parties can get together today.

111

I look forward to meeting this afternoon with representa-tives of the Committee and Subcommittee.

Sincerely,



112

Office of L~gA~gbv Affair

OUi of ft A" AM 0d ft O ne JU=

July 9, 1992


and OversightCommittee on Science, Space,and Technology


Dear Mr. Chairman:

It would appear that our respective letters dated July 8,1992 Ncrossed in the mails. In my letter, I explained theDepartment's view that it is desirable that the pertinent viewsof the Committee and the Subcomittee be represented at themeeting we had scheduled to address certain issues presented bythe Subcommittee's request for access to documents and Departmentattorneys relating to the criminal prosecution against Rockwell,Inc. with respect to the Rocky Flats nuclear weapons plant.

The Departxent remains prepared to meet in an effort toaccommodate the Subcommittee's interests. Since our documentsand employees are the focus of these interests and we have beeninformed that full Committee Minority staff have an interest inthese discussions, we want to ensure that all relevantcongressional interests are explored. We have assumed that youshare this belief, because your July 2, 1992 letter requested ameeting with both Committee and Subcommittee staff. In order tofacilitate this process, we are willing to host a meeting at 3:30pm today, July 9, 1992, here at the Department. Representativesof Majority and Minority Staff of the full Committee and theSubcommittee are welcome to attend. I believe that such aninclusive effort will more expeditiously advance all of interestsinvolved in this matter.

Finally, I must note for the record that the suggestion inyour letter that the Minority Chief of Staff of the fullCommittee had not requested and been denied attendance toyesterday's scheduled meeting prior to my initial call isinaccurate. All this is beside the point, however. It is myhope that all interested parties c&. get together today.

113

I look forward to meeting this afternoon with representa-tives of the Committee and Subcommittee.

Sincerely,



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After reviewing our correspondence of the last several weeks,(see, e.g., my letters dated June 23, July 2, July 8 and July 9,1992, and return correspondence from W. Lee Rawls, assistantattorney general for legislative affairs, dated June 29, July 8,July 9 and July 15, 1992), I am forced to conclude that theDepartment of Justice has no intention of meeting with the staff ofthe Investigations and Oversight Subcommittee or providing therequested departmental employees for staff interviews. Theseinterviews are essential for our preliminary review of the issuesrelating to settlement of the government's criminal environmentalcase arising out of the actions of Rockwell International Inc. andthe Department of Energy at the Rocky Flats facility.

The Department has purportedly agreed to 1.rovide for staffinterviews Michael J. Norton, the U.S. Attorney for the federalDistrict of Colorado and Kenneth R. Fimberg, the assistant U.S.Attorney in charge of this case. However, the Department'slegislative affairs staff has raised one feeble excuse afteranother as to why the Subcommittee staff cannot meet with thesepeople -- both of whom have already talked freely to the pressabout this case. Let me recap briefly the obstructionist behaviorof the Justice Department.

In early June, my staff called Mr. Norton and Mr. Fimberg toarrange to meet with them during a staff trip to Denver. Bothindicated that they had no objection, but that the interviews hadto be coordinated through Justice's headquarters office. Justiceacknowledged that, as a Senate-confirmed appointee, Mr. Norton hasindependent reporting responsibilities to Congress. His interviewwas to be scheduled through the Executive Office of U.S. Attorneys,and the Subcommittee was contacted by that office. The interview

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was initially scheduled for June 30, and then postponed until July10. Mr. Norton's appearance, however, is now being held up byJustice's Office of Legislative Affairs, despite his "independentreporting responsibilities."

Justice initially refused to provide Mr. Fimberg because ofyour position that "line attorneys" should not be interviewed byCongressional committees, a policy which is selective at best.1

Subsequently, the Department made an "exception to (its] policy"after the Subcommittee pointed out that Mr. Fimberg hadparticipated in press conferences to discuss the settlementagreement. Then Justice stated that both of these interviews wouldoccur only when the Subcommittee resolved "the jurisdictionalissue" that Justice and the Committee's ranking Republican memberhad raised. Justice gave no inkling of what it would deem a'resolution."

Justice also attempted to generate another controversy bystating that the prosecuting attorneys would not be allowed to talkabout "the internal deliberations of this Department in connectionwith its exercise of prosecutorial discretion-.' I responded bypointing out to you the inaccuracy of your position as spelled outin the McGrain decision. Over six decades ago, the United StatesSupreme Court found that Congress had the power to look into andobtain information and documents concerning the Department ofJustice's exercise of prosecutorial discretion. McGrain v.Daughter, 273 U.S. 135 (1927).

In an attempt to cooperate, however, I asked for a meetingbetween staff and Mr. Rawls on Wednesday, July 8, to discuss thisand other issues. I also enclosed a copy of a May 9, 1991, letterto Secretary James D. Watkins, Department of Energy, describing theSubcommittee's interview policy so that there would be nomisunderstanding concerning the Subcommittee's procedures. I hadasked the Committee's counsel to be present at that meeting. OnJuly 7, Mr. Rawls called the Committee's counsel and set themeeting for 1:30 p.m. on July 8 in a Committee room.

Shortly before the scheduled meeting, Mr. Rawls called theCommittee counsel and left a message that he had put the meeting onhold because he understood that the Committee's minority staff

'Justice's alleged policy is not implemented across the board,but seems to come into play only when the Department fears thatCongress may be critical of its actions. See, t _., Subcommitteeon Crime, Committee on the Judiciary, U.S. House ofRepresentatives, 99th Congress, 2d Session, December 1986, L.L.Hutton Mail and Wire Fraud, Serial No. 13, pp. 142-43 and fn. 62.

116

The Honorable William P. Barr IIIPage ThreeJuly 22, 1992

director objected to a meeting at which he was not present.2 Ina new twist, Mr. Rawla - - who apparently had given up thejurisdictional issue - - then said that he could not meet until this"dispute" or "controversy" was resolved. In response, I indicatedto you that there was no dispute, and requested a meeting on July9 at 2 p.m. Mr. Rawls' response was that he would not attend ameeting without the minority staff director and general counselpresent, and that the interviews with Mr. Norton and Mr. Fimberghad been postponed.

In a second follow-up letter, Mr. Rawls suggested a meeting at3:30 p.m. on July 9 at the Justice Department, but again demandedthat the full Committee minority staff be included. I asked for a3:30 p.m. meeting in the Subcommittee offices with Subcommitteestaff, but Mr. Rawls' secretary called my counsel and told her thathe "could not make a meeting this afternoon,I although he was theone who had originally set a 3:30 p.m. time for a meeting.3 Thesecretary also indicated to my counsel that Mr. Rawls wouldreschedule. The Subcommittee has not yet heard from him.

The Subcommittee's experience with the Department is becomingdepressingly similar to that of several other Congressionalcommittees attempting to carry out their Constitutionalresponsibilities to conduct oversight. Delay of the Congressionalinquiry is always a key component of the Justice Department'sstrategy.4 By refusing to allow Congressional staff to conductpreliminary interviews to become more familiar with the issuesinvolved in an already closed criminal case, the Department itselfis arousing suspicions about its conduct in the case.

2As I indicated to you earlier, the minority staff directorhas not to this day contacted my office or my Subcommittee staffwith his concerns, nor has the ranking Republican member. TheJustice Department appears to have assumed the completelyinappropriate role of intermediary in the affairs of another branchof government.

3Mr. Rawls called the full Committee counsel with the samemessage.

4See, g., Executive Summary, E.F. Hutton Mail and WireFraud, supra, pp. XX. Committee on Government Operations, U.S.House of Representatives, 102nd Congress, First Session, July 3,1991, Bureau of Prisons Halfway Houses: Contracting outResponsibility, H.Rpt. 102-139, pp. 12-3 and fn. 11 and 13. Thetortured path of the Subcommittee on Government Information,Justice and Agriculture to review the halfway house programs ofJustice's Bureau of Prisons is chronicled in this report.

117

The Honorable William P. Barr IIIPage FourJuly 22, 1992

I and my staff have made a good-faith effort to work in acooperative manner with the Department. But a month has now passedsince my formal request to interview Mr. Norton and Mr. Fimberg andthe Department of Justice has been unwilling to attend even apreliminary meeting to discuss such interviews. Rather, theDepartment has persisted in trying to dictate the scope and termsof the Subcommittee's oversight activities, which is clearly notthe prerogative of the Department.

I see no reason to allow the Subcommittee's inquiry to befurther delayed by what are clearly dilatory tactics. Therefore,I am requesting that the Department provide to the Subcommittee inwriting by 5 p.m. on Friday, July 24, a commitment that Mr. Nortonand Mr. Fimberg will appear (1) individually for preliminaryinterviews in the Subcommittee offices, (2) prior to August 14,1992, and (3) under the procedures of the Subcommittee as stated toyou in my May 9, 1991, letter to Secretary Watkins. If a writtencommitment encompassing all of the points listed above is notreceived, I will be forced to consider other options open to theSubcommittee to conduct its constitutionally mandated oversightactivities.

Since

ly,

O WARD PEChai rnSub mmittee on Investigationsand Oversight

118

Office of LaegisIve Affair

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July 24, 1992

Honorable Howard WolpeChairmanSubcommittee on Investigations and

OversightCommittee on Science, Space and


Dear Mr. Chairman:

This responds to your letter, dated July 22, 1992, regardingthe Subcommittee's preliminary review of the criminal prosecutionof Rockwell, Inc. with respect to the Rocky Flats nuclear weaponsfacility.

Contrary to the perception set forth in your letter, thisDepartment unequivocally intended to meet with your staff toresolve certain issues relating to the interview of U.S. AttorneyNorton and Assistant U.S. Attorney Fimberg. In fact, we wereprepared to go forward with that meeting on July 8, 1992 until wewere informed that minority staff members, who asked to attend,were to be excluded. We were even prepared to go forwardnotwithstanding the continuing questions about the Subcommittee'sjurisdiction in this matter. In light of your decision not topermit minority staff to attend such a meeting, we have conferredwith them separately and they have withdrawn their request toattend.

We remain committed to meet with Subcommittee staff todiscuss these issues. We are convinced that once we haveexplained why we believe it is necessary that Messrs. Norton andFJmberg be interviewed together, focusing particularly on thecomplexities that attend enforcement of the grand jury secrecyrequirements of the Federal Rules of Criminal Procedure, thesubcommittee will agree that the joint interview is necessary inthese circumstances. We agree with your decision (expressed inyour July 8th letter) to include Michael Rodemeyer, theCommittee's counsel, in this meeting because of the legal issuesthat are presented.

119

We hope that your staff will contact Faith Burton, ActingDeputy Assistant Attorney General in this Office, so that ameeting can be arranged at your earliest convenience.


cc: Honorable George I. Brown, Jr.Honorable Robert S. WalkerHonorable Sherwood L. Boehlert

- 2 -

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Today I received a letter from W. Lee Rawls, assistantattorney general, in response to my July 22 letter to you. Mr.Rawls requested a meeting with the Subcommittee staff to discussoutstanding issues concerning our early June request to interviewMichael Norton, U.S. Attorney for the District of Colorado, andKenneth Fimberg, assistant U.S. attorney, concerning the criminalprosecution of Rockwell International for environmental crimes atRocky Flats. I have instructed my staff to make arrangements tohold that meeting as soon as possible and hope that it will be amost productive one. However, I must inform you that this meetingwill not be considered a substitute for the written commitment thatI had requested in the July 22 letter but have not yet received.

In that letter, I asked that the Department provide to theSubcommittee in writing by 5 p.m. today a commitment that Mr.Norton and Mr. Fimberg would appear (1) individually forpreliminary interviews in the Subcommittee offices, (2) prior toAugust 14, 1992, and (3) under the procedures of the Subcommitteeas provided to you in a copy of my May 9, 1991, letter to SecretaryWatkins. If I did not receive that commitment, I indicated that Iwould be forced to consider other options open to the Subcommitteeto conduct its constitutionally mandated oversight activities.

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As I indicated before, the Justice Department has a very poorrecord of cooperation with Congressional oversight committees. Ihope that in next week's meeting, the Department will provide thewritten commitment that I requested in the July 22nd letter. Butplease be assured that, if it is not received, my intentions totake every necessary step to complete this investigationexpeditiously have not changed.

Sincer y,

ChaiSubc ttee on Investigationsand Oversight

122

U.S. HOUSE OF REPRESENTATiVES


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Yesterday, my staff met with Lee Rawls, assistant attorneygeneral for legislative affairs, to determine whether an agreementcould be made with the Justice Department for Subcommittee staffinterviews of the attorneys representing the federal government inthe prosecution of the environmental crimes case against RockwellInternational Corporation for its activities at the Rocky Flatsnuclear weapons plant.

As I had hoped, this meeting was a productive one. In thisletter, I would like to memorialize the elements of the agreementthat was reached between the Department and the Subconnittee.

1. Interviews will be conducted by Subcommittee staff ofMichael Norton, U.S. attorney for the District ofColorado, Kenneth Fimberg, assistant U.S. attorney, andPeter Murtha, Justice trial attorney. Mr. Norton and Mr.Fimberg will be interviewed in Denver at dates to bearranged by the staff and Justice. It is expected thatthese interviews will take place within the next twoweeks. The interview of Mr. Murtha will followexpeditiously in Washington.

2. Mr. Norton, Mr. Fimberg and Mr. Murtha may be accompaniedby an attorney of their choice from the Department. Eachone will be represented by a separate and differentattorney. Mr. Norton and Mr. Fimberg will be representedby someone from the U.S. attorney's office in Denver whowas not otherwise involved in the prosecution of thiscase. Mr. Norton, Mr. Fimberg and Mr. Murtha cannot

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represent each other or choose an attorney from amongtheir supervisors or the other attorneys in theEnvironmental and Natural Resources Division. The namesof the attorneys representing Mr. Norton, Mr. Fimberg andMr. Murtha will be provided to the Subcommittee inadvance of the interviews.

3. Mr. Norton, Mr. Fimberg and Mr. Murtha will beinterviewed individually by Subcommittee staff. The onlyother person allowed in the room during an interview willbe an attorney representing the interviewee.

Your assistance in this matter was greatly appreciated. It ismy sincere hope that the Subcommittee's work can proceed in thefuture with the full cooperation of the Juetice Department.

Sincerely,

Lbco~ittee on Investigationsand Oversight

124

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July 30, 1992

Honorable Howard WolpechairmanSubcommittee on Investigations

and OversightCommittee on Science, Space and


Dear Mr. Chairman:

This responds to your letter, dated July 29, 1992, regardingthe agreement that we have reached with the Subcommittee.

With the exception of the provisions relating to the choiceof attorney by Assistant U.S. Attorney Kenneth Fimberg, we are inagreement with the elements set forth in the numbered paragraphs1-3 of your letter. We believe that Mr. Fimberg should have theright to select a Department attorney of his choice, other thanthe one chosen by Mr. Norton or one who was directly involved inthe investigation or prosecution of this case. We have beenunable to confer with Mr. Fimberg, who is on vacation, about thecounsel that he would choose. Hence, we are obliged to waituntil we can discuss the matter with him early next week. Wewill advise Subcommittee staff as soon as possible thereafterabout his interview.

Notwithstandlnj this agreement, we will continue our policyand position against making line attorneys available forcongressional interviews. We remain fundamentally convinced thatcareer prosecutors should not be subjected to pressure by thepolitical process. We appreciate your understanding of theDepartment's position in this matter.

Please contact Faith Burton, Acting Deputy Assistant

125

Attorney General, at 514-1653, at your convenience to schedulethe interviews.

W. Lee RawIsAssistant Attorney General


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On July 28, 1992, the Subcommittee on Investigations andOversight negotiated a good-faith agreement with the JusticeDepartment, represented Lee Rawls, assistant attorney general forlegislative affairs. This agreement established the terms forstaff interviews of the attorneys representing the federalgovernment in the prosecution of the environmental crimes caseagainst Rockwell International Corporation for its activities atthe Rocky Flats nuclear weapons plant. Faith Burton, deputyassistant attorney general for legislative affairs, NeilCartusciello, chief, environmental crimes section, and Paul Colbornof the Office of Legal Counsel, were also at that meeting.

This agreement was memorialized in my July 29 letter to you.Confirmation was received in Mr. Rawls' July 30 letter to me.(Copies of those letters are attached.) Th- agreement focused onthree issues: location and timing of interviews; attorneyrepresentation for the interviewees; and attendees at theinterviews. Because of our concern that interviewees not beintimidated by superiors or others at the Justice Department, werequired that these interviews 'be private with only specifiedSubcommittee staff, the interviewee and his attorney in the room.A personal attorney from the Justice Department was allowed so thatthe interviewee could be represented by someone with expertise ongrand jury secrecy issues. It was my understanding that the onlyoutstanding issue was the selection of a personal attorney by oneof the interviewees. This issue was resolved yesterday withoutdispute.

The result of this agreement was my decision not to offer amotion at the Subcomittee's July 30 meeting to subpoena thoseattorneys to appear before the Subcomaittee. I fully believed the

August 7, 1992

127.

The Hon. William P. Barr IIIAugust 7, 1992Page 2

agreement with the Department had brought to an end almost twomonths of attempts by the Subcommittee to meet with theseattorneys.

These efforts began in early June with personal telephonecalls to the Colorado attorneys, who indicated -- one incorrespondence which I have also attached -- that they were willingto discuss this matter with staff. Michael Norton, the U.S.attorney for the District of Colorado, on June 26 even agreed to ameeting in Washington on July 10 as had been scheduled by theExecutive Office of U.S. Attorneys (see attached letter).

However, shortly after that, the Office of Legislative Affairsassumed control of those interviews, attempted to establish variousunacceptable procedures for the Subcommittee to follow before theinterviews were allowed, and then canceled the July interviews whenwe refused to agree to Justice's conditions. After several time-consuming meetings, we reached an agreement that I personallyviewed as positive and workable -- a position that I conveyedpublicly at our July 30 meeting. The interviews were scheduled forAugust 12-14 in Denver.

Therefore, I was extremely troubled to learn yesterday thatthe Justice Department had decided to renege on the agreement thatthe Subcommittee negotiated in good faith. The Department now isattempting to impose additional conditions concerning the recordingof these interviews. There is no way to know whether these demandsare coming from the individual attorneys or from Justiceheadquarters.

However, it is my position that Mr. Rawls' signaturerepresented the full authority of the Department and bound itsattorneys, regardless of where they are located. Indeed, theDepartment took the position from the beginning that they wereauthorized to negotiate for the individual attorneys, and thatdirect contacts between the Subcommittee staff and those attorneyswas not proper. If we had had any understanding last week that Mr.Rawls did not have such authority, we would have subpoenaed theattorneys, as originally planned, at our July 30 meeting.

Yesterday Ms. Burton indicated that these new conditions werenecessary because of concerns that I or my staff intend to distortwhat is said in these interviews and use them for press purposes.We never have and never will engage in such actions. But, in anattempt to avoid further time-consuming confrontations, I offeredlast night to provide written assurances that this would not occur.These assurances apparently were not sufficient.

128


My staff also expressed once again my longstanding concernsthat interviews recorded by the Justice Department could easily beused by high-level Justice officials and others to reviewstatements made in private to Congressional investigators.

Notwithstanding my concerns about the Department's good faith,at 3 p.m. today, I made the following offer to the Department:

1) The Subcommittee would tape the interviews;

2) The tapes from each interview would be put in an envelopesealed in the presence of the interviewee, his attorneyand Subcommittee majority and minority-staff, and signedby each of the persons present;

3) The sealed envelope would be kept in the Subcommittee'spossession, and would be opened only at the initiative ofMr. Norton or Mr. Fimberg, under the conditions describedin 4); and

4) If statements made during the interviews are used in apublic manner by the Subcommittee majority members orstaff which Mr. Norton or Mr. Fimberg believesmisrepresents their actual statement, the interviewee,either with or without the attorney who represented himat the interview, can listen to that portion of the tapesin the Subcommittee offices in the presence ofSubcommittee staff.

My staff also warned the Department that the transcripts paidfor by Justice would most likely be available under the Freedom ofInformation Act to the public.

1

At 5:15 p.m., this offer was rejected by the Department in atelephone conversation between Edith Holleman, Subcommitteecounsel, and Ms. Burton. In that conversation, Ms. Burton nowstated that transcripts of the interviews were necessary to protectthe attorneys against possible future allegations that theyviolated the grand jury secrecy law despite the fact that theSubcommittee had already agreed to their representation by a fellowJustice Department attorney to address that very issue.

'Justice FOIA attorneys are apparently of the view that thetranscripts can be protected under the inter-agency document((b) (5)) exception to FOIA. The definition of "agency" for FOIApurposes does not include any Congressional offices.


Therefore, because of the upcoming Congressional recess, Ihave today given the Subcoaiittee members notice that we will meeton Wednesday, August 12, to subpoena these attorneys.

If the Department has any questions or would like to discussthis matter further, please have your staff contact Keith Laughlin,Subcommittee staff director, at (202) 225-4494.

Sincerely,

/ 4d E h

le/Subc it/ee on Investigationsand Oversight

130

U.S. Department of Jusice

Office of Legislative Affairs

Offik of dh AWMm amn orwWml Wku, D.C 200

August 10, 1992

Honorable Howard WolpechairmanSubcommittee on Investigations

and OversightCommittee on science, Space and


Dear Mr. Chairman:

This supplements our earlier correspondence about theinterviews of Mr. Norton, the U.S. Attorney in Colorado, and Mr.Fimberg, an Assistant U.S. Attorney in Colorado, beginning onAugust 13, 1992, and the subsequent interview of Mr. Kurtha, anattorney in the Environmental Crimes Section of the Department'sEnvironment and Natural Resources Division.

Your suggestion that the Department has Orenegedv on theagreement relating to the interviews of these individuals isunfounded. Subsequent to the date of that agreement, each of theinterviewees raised with the Department his concern that a recordof his interview should be made. Each has now formally requestedthat his interview be recorded by a court reporter so that he canhave available a transcript in the event that there are anyquestions later about his interview. The interviewees regard thetranscript as particularly important due to the likelihood thatthe interviews will touch upon matters, the disclosure of whichwould be prohibited by the grand jury secrecy requirements ofRule 6(e) of the Federal Rules of Criminal Procedures. Copies oftheir letters concerning this matter are enclosed.

We understand that the Subcommittee staff is concerned thata transcript could affect the interviewees' willingness to beforthcoming with the staff. While this concern is, in fact,groundless, we would like to accommodate the staff insofar as itis possible consistent with this request of our employees.Hence, we are prepared to provide for two copies of eachtranscript, one for the Subcommittee and one for the interviewedindividual. The individual would be at liberty to use thetranscript in conferring with his counsel but he would not makeit available to any other person unless, in his judgment, that

131 '

was necessary to respond to incorrect or misleading statementsabout the interview. The individuals are concerned that suchstatements might appear in the press or at a hearing. In anyevent, you may be assured that the Department, including thesuperiors of each individual, will not seek access to thetranscript. Since it would remain within the exclusivepossession and control of the individual for his ue.e as indicatedabove, the transcript would not be considerLd an agency recordfor purposes of the Freedom of Information Act.

Similarly, the Subcommittee would not publicly disseminatethe transcript or its contents except that it could be used at ahearing relating to this review. If the contents were to be usedat such a hearing, then the individual interviewed would beequally at liberty to disseminate his copy or its contents.

We have discussed with the individuals and Subcommitteestaff the possibility of using a tape recorder in lieu of a courtreporter to address the concerns noted here. The experiencethese individuals have had with tape recorders, which canmalfunction without obvious indications that would permitcorrection or replacement, has led them to conclude that only areported transcript will provide an accurate record of theinterviews.

We believe that this addendum to our agreement of July 30,1992, concerning an issue we had not foreseen at that time, wouldserve the best interests of the Subcommittee and the individuals.If no agreement on the proposed interviews can be reached,however, the interviewees have authorized me to state that theyare prepared to appear voluntarily at a Subcommittee hearing.Mr. Fimberg has a scheduling conflict during the month ofSeptember, which we have reported to Subcommittee staff.

Please do not hesitate to contact Faith Burton, ActingDeputy Assistant Attorney General, at 514-1653, if we can provideany additional information relating to this matter.

Sincerely,


Enclosures


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eatabli Shd isv lan the Principles .5 Peeoas Prasesutlon, yIV happy to jurtieipate ie thie intare.

nover. I vuld insist that any int~arvie v with meconcerning the Rocy lat inve tigation and N.Ve.enIrbe h preserSed o utbatim by the preobee

|nt4Zs~l a ceI rtified court reporter . I insist uponJ enavaurate travissaption .t the intetview tor two related b Mcea o1) tram eptresentaen Opes publi statnt o huly P0r 195t,it is appareat that the Cenresionael investigation may sas

diacicoure of teot. developed during the grand julry investi-ation. Disloewate attsIch this ast ant eys hg overent vuld subjeIt thatat toney to the very reel proe

Of criminal proseoutien. A verbatim travioript of my interviews neeaergmry t Rnsky tat no llegation of unlawu disoloeureo ra n jury mtters during the intemrvie nay be directedpersonally at now my tiate and 2) media Ittention st used bypublio disolosurs by tiho ubomittee of this dinvestSgationa isapparent. Should t the ormal disnloue o inormwa seeaksaicbltq statements to pe as having been ade during theinterview a verbatim record of the ntescvi will insure anunassalable record of my exact ords and the aontext in whch

they were spoken.

Best Available Copy

188

It is my view that insisting upon an accurate rocord beingad* of the forthcoming interview is reasonable and prudent.Hua n memory, and perceptions as recorded in notes. are subateotto inaccuracies and distortion. A written verbatim tranloriptproteats all patias from the potential of isundertadng whathas been said.

Yours very truly,

Uni'e Stte Atorney

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Augiut 10, 2592

W. los RawlsAis&Lst&ivt Attcrne' Geer~.al0ffLoe of I*jislativ* AffsiveUnited N:atos ripsrtmnt ef Yutleewaashington, D.c. 20530

Rat eR,;kYAigt Invest 4t! An

bear Mr. Pawls:

2 an sure you are a-dare that the Tn-eustigatiens endOvoralfh% Subcocniittee :01Wv) of t~to $cienco, Spes end?echnblogy Corinittee has :eqjostod Chiat r part loiIt&t ina aninformal. interview In co-arectlon with i.ts in-.estigatie-n o~f the.dtisposjtions of the Ro~cky Ilate matter. AP moneone whc. has beanInvolved ina zhe prouecuticna of *eavliwcr~iotol erl~es fo~r nearly adecade, anid a maraber cf the nvirermortal Crites Feotlon mtin~e1916. I persona-ly wel~comue the op~orturaity to correct 4nynie-perceptions =&a night have about the case. Tn the event thatwe are unable to reach a final agzeeoerat with 1&0 &s to the ter-nsof their Inform~al inwerviev ot as scheduled for the week efAigiat 17, r sm i-Iincg to waive the right to be eubpeenaed endvolunte to testify ina tho 8uhcovm'-tt~o's formaal investigative,hearing. I feeot conpolied to request, however, that regardlceoa the nature of th~e procoodirof, anay statement 1 give bemeaxoialived In. a vs batils tranaetip%.

An 2 understand vs have na4 clear to x&;i, dsocuss~onsconcornina prosoo-Atorial, daeiin-ak ig In. this *&tzerulticate:.y "~ inevitably load to mattieve ecoarrinq before thegrand jury which may net be disolos*d -- under penalty ofor inal ocateept -- akeent a court order. In the ever.t gratiS

u ary material somehow tecoxee publio In the **urve o! the 1&0nvest igation, I must have a imeane of 1provinl with certainty that

I 4mn ot the &our*e of the uneathorized diec:.oe'are. There is nioeffsctive substitute for a verbatim transcript.

185

VKp concerns are heightened kK the. fact that 1&0 staffershtve apparently fe~t frog to opec w.vith the vedis c~r.c~rr.Ln;their investigation, ani despite its Ipre3Lir.~y status, haveclearly (anj i n-rrect ly) Inu.inuateJ "~ten-.ia* wrngdoin~g by thegovermier.t. he you well know, Depart:2ent of Justice policyforbids prosecutors frox coxnentin? publicly abcut cngzingin-iestigaticris *Ycejrt w1thir. certain niarrow pm~rswz.tors. Giventhat :&C soar~s to be operating %-1tncu: the kla*ne( of * siui~ar!olicy, I fear that inforn1at'.on laiav:-ig the p-ibl~c v'..th ann;crrect lapresmion of the facts ity be relessed. A vsro*atim

trrscrip-z w-'ll help ensure that ultiatly, the record is met

Finally, let me Sispel any nut2.cn that by going wonl thercrlI vi.1l somehow be echi I '.ec2' In lihot irnforraticn. X can

proviler the Subcor~ittee. J.Zst the orposite Is tr-ue: 7n 4%r&nscript will qive ixe the security cf Xrowirng what I say cannotbe inadlvertently misq.otod or tacen :iut of corttext. Moreover,there has not been that fain-es~t hint b y lr In the Dpartsenttrhat I should tetfy anything other than truthfully and fully,within -Lhe limitetiona of the law

I a;pratciator yo%.r atsistanza in naking ar-rargeffenza with ISOthat will ensure the pzoceuotion of a t~ransarlp-: In this matter.

sincerely,

Ifter xuZ .

- 2-

136

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W. Los 5tavle, gag.Assistant Attorney GeneralOtflioe of Legisiative AffairsU.S. Department of Jutice19th & Constitution Avenue, 1..Washington, D.C. 20120

Dear Kr. Rawles

To the extent fully consistent vith all applicable laws,policies and procedures, professional ethics and the Principles ofFede&rel ProoecutIon, I vii be happy to meet vit representativesof the Committee on Science, Space and Technology concerning theeucoesaful prosecution of the RocXy Plate criminal investigation,on Wednesday, August 12, 1002.

x must insist, however, that the committee's interview berecorded verbatim by a certified court reporter, for the followingreaonat First, Congresas&n Wolpo's publio statement on July 30,1992 indicates that the Co/nittee may inquire into area* involvingrrand lury information which, as you know, I an prohibited by lowtrom discussing. A verbatim record of the interview will ensurethat there is n future misunderstanding or allegation that Id1massed sauzb matters. Second, there have already been a numberot falseO a inaccurate statements to the media about our investi-gation, and a varbatin record Vill ensure an accurate account of myown words and the context in Which they were spoken. I am sure theCommittee has no objection to making an accurate record.

v truly y 8/

*eMoth a. V oJAesstant U.S. Attorney

187

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A%-L U.S. HOUSE OF REPRESENTATIVESM * r t.. COMMITTEE ON SCIENCE, SPACE,

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August 11, 1992JMNW P. CWTUA46 Ob"

The Honorable William P. Barr III

Attorney GeneralU.S. Department of Justice10th and Pennsylvania Avenue, NW.Washington, D.C. 20530


Yesterday I received a letter from W. Lee Rawls in response to my August 7, 1992letter to you concerning the Justice Department's unfortunate decision to renege upon anagreement regarding the terms and conditions for Subcommittee interviews with MichaelNorton, U.S. Attorney for the District of Colorado, Kenneth Fimburg, assistant U.S.Attorney, and Peter Murtha, Justice trial attorney.

For two months this Subcommittee has sought in vain to interview Mr. Norton and-Mr. Fimberg. For weeks, the Department of Justice refused to even meet withSubcommittee staff to discuss such interviews. It was only when the Subcommitteescheduled a meeting for July 30 to issue subpoenas that the Department of Justice agreedto sit down with the Subcommittee staff to discuss this matter.

The Subcommittee staff met with the Department on July 28 and identified amutually agreeable set of groundrules for such interviews. I formally presented thisagreement in a letter to the Department dated July 29. The Department confirmedacceptance of the terms of the agreement in a letter of July 30. As a result of thisagreement, the Subcommittee did not consider subpoenas for Mr. Norton, Mr. Fimberg, andMr. Murtha when it met on July 30.

In the wake of this agreement, the Subcommittee worked with the Department toschedule the interviews with Mr. Norton and Mr. Fimberg on August 12 to 14 during a stafftrip to Denver. I was, therefore, shocked to learn on Thursday, August 6 that theDepartment of Justice was suddenly insisting upon new conditions that violate both the letterand the spirit of the agreement confirmed in the Department's letter of July 30.

In an attempt to resolve this matter, the Subcommittee made a counter proposal tothe Department at 3:00 p.m. on Friday, August 7. That offer was dismissed out of hand bythe Department at 5:00 p.m. on Friday. Late yesterday, I received a letter from W. LeeRawls insisting upon the new conditions raised by the Department on August 6. Thoseconditions are simply unacceptable to the Subcommittee.

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The Honorable William P. Barr IllAugust 11, 1992Page 2

While it may appear that we are at an impasse, there is a path that can satisfy theconcerns of both the Subcommittee and the Department. I will therefore propose at aSubcommittee meeting tomorrow that subpoenas be issued to compel the appearances ofMr. Norton, Mr. Fimberg, and Mr. Murtha at Subcommittee hearings in September. At thestart of those hearings, I will move that the hearing be closed. Neither the Department ofJustice nor the press will be allowed in the room. The interviewees will be accompanied bycounsel agreed upon in our previous agreement. The interviews will be conducted underoath and a transcript will be produced that will be in the possession of the Committee, butavailable to the interviewees.

You will no doubt claim that the interviewees will be provided and that subpoenasare unnecessary. If this claim is made, I would reject it for two reasons. First, since earlyJune the Department of Justice has engaged in a pattern of non-cooperative behaviorintended to stall, obstruct, and impede the Subcommittee's ability to conduct legitimateoversight activities. On July 30 we thought we had a good-faith agreement with theDepartment and therefore refrained from issuing subpoenas. Under that agreement, theSubcommittee staff was scheduled to interview Mr. Fimberg tomorrow. Two members ofthe Subcommittee staff are in Denver right now. But those interviews will not occur becausethe Department decided to unilaterally change the terms of the agreement. In light of thispattern of behavior, how are we supposed to believe any future assurances from theDepartment? There is an old saw that says "fool me once, shame on you; fool me twice,shame on me."

Second, the Subcommittee wishes to interview Mr. Fimberg, who was in charge of theprosecution of the case against Rockwell. However, it is my understanding that Mr. Fimbergwill be involved in a case that will go to trial in late August and is expected to last four tosix weeks. Therefore, it is imperative that a subpoena be issued to demonstrate to the judgepresiding over the trial the importance of allowing Mr. Fimberg to appear before theSubcommittee in September. While I regret altering the schedule of the trial to permit Mr.Fimberg's appearance, this would not be necessary if the Department of Justice had madehim available when we first sought an interview with him in June.

Sincere

, Aowad W eChairmSubcommittee on Investigations

and Oversight

139

U.S. Deprtment of JMe

Offic of l.,ave Affairs

Ofic of die A"WtAz ""Mrny Ceaceu Waddm, D.C 230

August 11, 1992

Honorable Howard WolyeChairmanSubcommittee on Investigations

and OversightCommittee on Science, Space and


Dear Mr. Chairman:

This furthers our earlier correspondence concerning theSubcommittee's interest in obtaining information from Mr. MikeNorton, U.S. Attorney in Denver, Mr. Ken Fimberg, Assistant U.S.Attorney in Denver, and Mr. Peter Murtha, an attorney in theEnvironmental Crimes Section of the Department's Environment andNatural Resources Division.

Since we were unable to resolve certain concerns relating tothe interviews of these individuals, we understand that theSubcommittee plans to schedule a hearing in September in order totake testimony from each of them. As we have indicated, theDepartment-is willing to make Messrs. Norton and Murtha availablefor such a hearing during September without a subpoena. We havealso expressed our willingness to make Mr. Fimberg availableexcept that he is scheduled to begin on August 31st a criminalsecurities fraud trial, which is expected to run for three tofour weeks. It is unlikely that the court would recess the trialso that he could participate in a hearing in Washington, D.C.

Please do not hesitate to contact Faith Burton, ActingDeputy Assistant Attorney General, at 514-1653, if we can provideany additional information relating to this matter.

Sincerely,



140

Mr. WOLPE. I would like to yield now to my distinguished Rank-ing Member, Mr. Boehlert.

Mr. BOEHLERT. Thank you, Mr. Chairman.Having reviewed the respective needs of the Department of Jus-

tice and the subcommittee, I have concluded that the surest way toguarantee all parties's interest is to issue a subpoena.

Department of Justice attorneys, out of legitimate concerns thatthey have some protection against charges that they have violatedGrand Jury information, are calling for a verbatim transcript.House rules preclude staff from using a court reporter. Further, itis a tradition of the subcommittee that verbatim records be takenunder oath. Our staff cannot swear in witnesses for staff inter-views. In addition, one of the attorneys which the subcommitteewishes to interview, a Mr. Fimberg, has a trial scheduled for Sep-tember, and the only certain access to that witness is to subpoenahim.

Finally, I must note that the Department and this subcommitteehave been wrangling for two months over the terms under whichthe subcommittee can meet with Department of Justice attorneys.At the time of our last meeting to issue subpoenas, we believed-and Justice believed-that there was an agreement that all partiescould live with. Regretfully, that agreement fell apart.

I want the record to show, Mr. Chairman, that the Departmentof Justice has promised to make their attorneys available to thesubcommittee at the call of the Chair. And while I trust them inthis promise, the possibilities of other schedule problems, as well asthe difficulties in Mr. Fimberg's schedule, convince me that subpoe-nas are the surest way to guarantee that the attorneys can appearbefore this subcommittee. Therefore I will vote to issue subpoenastoday, and I consider this a "friendly act." This will guaranteethat, in a closed hearing before members of this subcommittee, ourquestions will be answered, while the interests of the witnesses willbe protected.

Thank you, Mr. Chairman.Mr. WOLPE. I thank you very much, Mr. Boehlert, for that state-

ment.Are there any additional comments from our colleagues, includ-

ing the Chairman?I request your indulgence. We need one more Member here to

constitute the majority. I wonder if we can temporarily recess andresume the hearing momentarily.

Mr. BOEHLERT. I might make an observation, Mr. Chairman. Itgives the minority unlimited power. If I decided to take a walk, youwouldn't have a prayer of getting that-

Mr. WOLPE. I know, and its only your statesmanship and sense ofresponsibility-

Mr. BOEHLERT. It's getting thick. We'd better go off the record.Mr. BROWN. I might note that this gentleman has no knowledge

of how you go about getting a quorum, and has demonstrated thatrepeatedly. But I had come to this meeting in the hope that thedistinguished Subcommittee Chairman would be able to resolvethat problem.

Mr. WOLPE. The quorum, we have. It is a majority that is re-quiredto do business, Mr. Chairman.

141

[Recess.]Mr. BROWN. Mr. Chairman, during all of this--Mr. WOLPE. First let me recognize the Chairman.Mr. BROWN. Well, I was just trying to fill up a little time. But

there was no inkling at any point during this elaborate processthat lawyers were exempt from subpoenas or anything of that sort,was there?

Mr. WOLPE. That was one argument that was not advanced.Mr. BROWN. Okay. There is a lot of evidence that many lawyers

.are amenable or susceptible to subpoenas, and they are no differentfrom ordinary human beings in that regard.

Mr. WOLPE. Okay. The subcommittee will resume its proceedings.We now have sufficient membership here to actually have a voteon the subpoenas. Let me recognize the Clerk to read the motion.

The CLERK. "Motion to authorize the issuance of a subpoena bythe Chairman of the Subcommittee on Investigations and Over-sight, to compel the appearance of Peter Murtha, Michael J.Norton, and Kenneth Fimberg, to appear before the subcommitteeto testify concerning matters of inquiry committed to the Commit-tee on Science, Space, and Technology by Rules X and XI of theRules of the House of Representatives, and to the Subcommittee byRules 26 and 33 of the Committee.

Mr. WOLPE. I would offer that motion. Is there any discussion?[No response.]Mr. WOLPE. Hearing no discussion, the Clerk will call the roll.The CLERK. Mr. Wolpe?Mr. WOLPE. Aye.The CLERK. Mr. Boelhert?Mr. BOEHLERT. AyeThe CLERK. Mr. Geren?[No response.]The CLERK. Mr. Geren?Mr. GEREN. Aye.The CLERK. Mr. Sensenbrenner?Mr. BOEHLERT. No by proxy.The CLERK. Mr. Nagle?[No response.]The CLERK. Mr. Tanner?Mr. TANNER. Aye.The CLERK. Mr. Thornton?[No response.]The CLERK. Mr. Brown?Mr. BROWN. Aye.The CLERK. Mr. Chairman, there is a total of six.Mr. WOLPE. Mr. Walker's name should be read, even though he

is not present.The CLERK. I'm sorry. Mr. Walker?[No response.]Mr. BOEHLERT. I have just been advised-I know Mr. Sensenbren-

ner's intentions, but we don't physically have his proxy, so we willhave to withdraw that vote by proxy.

Mr. WOLPE. Okay. The Clerk indicated there are six voting in theaffirmative. I think that would be five, would it not?

142

The CLERK. Yes. I had included the proxy for Mr. Sensenbrenner.You are correct, Mr. Chairman, that's five for the total.

Mr. WOLPE. Okay. Well, five having voted in the affirmative, thesubpoenas are duly authorized for issuance.

Let me express my appreciation to all my colleagues for theirpresence and their participation in today's meeting. The subcom-mittee stands adjourned.

[Whereupon, at 10:37 a.m., the subcommittee adjourned, to recon-vene at the call of the Chair.]

148

APPENDIX

COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGYU.S. HOUSE OF REPRESENTATIVES

WASHINGTON, D. C. 20525

Meeting of theSubcommittee on Investigations and Oversight

Thursday, July 30, 199210100 a.m.

Room 2325, Rayburn House Office Building

AGENDA

1. Reading of *Motion to Authorize Issuance of Subpoenas byChairman of the Subcommittee on Investigations and Oversightto Compel the Appearance of Jon Lipsky, Vincent Lemmons,Michael Wonn, A. Kirk Francis and Simon Thornton, SpecialAgents of the Federal Bureau of Investigation, before theSubcommittee.' (Shirley Watson, Clerk)

2. Reading of "Motion to Authorize Issuance of Subpoena byChairman of the Subcommittee on Investigations and Oversightto Compel the Production of Documents by RockwellInternational Corporation." (Shirley Watson, Clerk)

144

TO: Congressman Howard WolpeChairman,Subcommittee on Investigations and Oversight

FROM: Subcommittee Staff

RE: Recommendation for Subcommittee Subpoena Meeting reSettlement of Rocky Flats Environmental Crimes Case

DATE: July 27, 1992

SUMMARY

In May, the Subcommittee received allegations that a proposedplea agreement between the Department of Justice and RockwellInternational Corporation to settle environmental criminal chargesagainst Rockwell during its operation of the Rocky Flats nuclearweapons plant did not include all of the charges that could havebeen proven against Rockwell, certain of its employees and someemployees of the Department of Energy (DOE). DOE is the owner ofthe Rocky Flats facility.

After the agreement was approved by the federal court for theDistrict of Colorado on June 1, 1992, we began looking into thoseallegations. Almost immediately, we ran into difficulties withJustice and the Federal Bureau of Investigation (FBI), which headeda five-agency investigation team for this case. Justice and theFBI have refused to allow Subcommittee staff to interview theprosecuting attorneys and investigators, claiming long-term"policies" against such interviews. These policies are, however,very selective and usually imposed when Justice fears a negativeinvestigation.

After over a month of attempts to negotiate these interviews,it is clear that Justice will not permit them without furtheraction by the Subcommittee. Therefore, we are recommending asubpoena be issued to compel these attorneys and FBI agents toappear before the Subcommittee.

Additionally, we have requested documents from Rockwell.Rockwell's attorneys have requested that these documents besubpoenaed so that there can be no allegation that they violatedthe plea agreement provision that "matters occurring before thegrand jury" not be revealed.1

The background of the Rocky Flats case, the Subcommitteeattempts to review the investigation and settlement, the need forsubpoenas and some jurisdictional issues are discussed in greaterdetail below.

'The Subcommittee requested only correspondence and otherrecords of communications between Rockwell and Justice. No requestwas made for grand jury records.

145

BACKGROUN

On June 1, 1992, the U.S. Federal Court for the District ofColorado accepted a plea bargain between the Department of Justiceand Rockwell International Corporation for violations of criminalenvironmental laws committed by Rockwell while it was managementand operating (M&O) contractor of the Rocky Flats nuclear weaponsplant. The plant is owned by the Department of Energy (DOE).Although a grand jury took evidence in this case for over twoyears, there were no indictments, but an information agreed to byboth parties.

Even before the settlement was approved, the Subcommitteereceived allegations that Justice had not aggressively pursued allof the criminal offenses that had occurred. There was particularconcern about the lack of individual indictments of either Rockwellor DOE employees and the dropping of some fraud, false statementand concealment charges against both Rockwell and DOE. As part ofa preliminary evaluation of these allegations, the Subcommitteestaff reviewed parts of the court file on the case, including theaffidavit in support of a search warrant for the Rocky Flatsfacility, the plea agreement and information, and the plaintiff'sand defendant's sentencing memoranda. Copies of these documentsare attached.

This is not the only criminal environmental prosecution underreview by a Congressional committee. As described in the attachedLegal Times article, the Energy and Commerce Committee will holdhearings in September concerning a list of 20 such cases in whichit is alleged that Justice has protected polluters.

The settlement of the Rocky Flats case was the culmination ofa five-year investigation conducted by a joint government taskforce after rears of allegations of environmental mismanagement atRocky Flats. The following agencies participated: the FBI, theDepartment of Justice, the Environmental Protection Agency (EPA)and its National Enforcement Investigations Center, and, to alimited extent, the Inspector General of the Department of Energy.A raid on the plant was executed; hundreds of thousands ofdocuments from DOE, the Environmental Protection Agency andRockwell were reviewed; and hundreds of witnesses were interviewed.

Under the agreement, Rockcwell pled guilty to ten criminalcounts under two environmental laws: four felony counts under theResource Conservation and Recovery Act (RCRA); one felony countunder the Clean Water Act (CWA); and five CWA misdemeanor counts.It paid a fine of- $18.5 million. Although this fine is oftendescribed as adding up to the total profit that Rockwell received

2The cost of the clean-up of Rocky Flats, which will be paidby DOE, is currently estimated at over $1 billion.

146

between 1987 and 1989 at the plant, it actually represents onlyRockwell's performance bonuses. The total amount-- above costs --that Rockwell received during that period was $22.4 million infees, awards and bonuses. All of it was risk-free profits.

ISSUES RAISED BY SBN'LEMENT

The settlement of the case raises several troubling questions.

1. Justice apparently gave up millions of dollars inpotential criminal and civil penalties. The criminal penalty paidby Rockwell was $18.5 million. It represented the maximum fineallowed on the charges agreed to. However, in exchange, Justicegave up the right to charge the corporation and any individualRockwell employees for all violations of RCRA, CWA, theComprehensive Environmental Resource Compensation and Liability Act(CERCLA) or the Toxic Substances Control Act related to anyenvironmental matters at Rocky Flats that were known through thedate of the settlement. EPA and the Colorado Department of Health(CDH)- were also required to give up their civil prosecutionrights under state and federal law.

This raises two questions: It appears that over $10 millionin potential civil penalties on the listed -- and easily provable -- violations were given away. Secondly, it appears that the pleaagreement did not include all of the RCRA and CWA violations thatthe federal government was aware of at the time.4 One of theallegations we have received is that the parties initially agreedthat the amount of the fine would equal the performance bonuses,and the charges agreed to were only enough to equal that amount.

2. No individual Rockwell or DOE employees were charged withresponsibility for the numerous environmental violations thatoccurred at Rocky Flats. The Denver papers reported in 1990 that"target letters' had been sent to several members of Rockwell's topmanagement at Rocky Flats. Some of the charges against them

3Of the total fine, $2 million went to the Colorado Departmentof Health.

4Each day a facility covered under the Clean Water Act or theResource Conservation and Recovery Act is in violation under thoselaws is a separate, chargeable offense. The ten counts comprisingthe information included 410 separate violations. Because of thecontinuing failure of the Rocky Flats facility to meetenvironmental laws, it is quite possible that hundreds ofadditional violations were not charged.

3-

147

involved fraud and false statements.5 We have receivedallegations that the headquarters of the Justice Department quashedthose prosecutions. The Denver prosecuting attorney stated at theclose of the case that no individuals were charged because theywould have been mid-level employees "following orders," but we haveno evidence that Justice attempted to find out who gave the orders.

3. DOJ Alrt, citing "individuals privy to the negotiations,"alleged that the fraud and false statement charges were droppedbecause any admissions of fraudulent behavior by Rockwell or itsemployees would have resulted in an almost automatic debarment ofthe company from future government contracting.6 Because over 40percent of Rockwell's business comes from government contracts,Justice may have dropped these charges - - one of which wasdescribed as a "slam, dunk" charge because of the existence of asigned false statement -- to preserve Rockwell's other governmentbusinesses. The reason given in the sentencing memo for notpursuing one false statement charge was that EPA and CDH shouldhave known that the statement was false because of otherinformation they had received. Additionally, it appears that theprosecutors allowed the five-year statute of limitations for fraudand false statements to run while the grand jury was sitting.

4. It appears that the Department of Energy is going to payfor a major portion of Rockwell's attorneys' fees. An article ina Denver newspaper estimated Rockwell's legal fees as "severaltimes more" than the $2 million expended by the federal government.While the agreement prohibits Rockwell from seeking reimbursementunder its DOE contract for the $18.5 million fine and the

5For example, the affidavit supporting the search warrantauthorizing the raid on Rocky Flats in June 1989 states that "thereis probable cause to believe that Rockwell and DOE officials haveknowingly and falsely stated Rocky Flats compliance withenvironmental laws and regulations and concealed Rocky Flats''serious contamination.'" Application and Affidavit for SearchWarrant, para. 2.11, p. 14. The affidavit later states "As part ofRocky Flats' November 8, 1985 submission, DOE's Albert E. Whitemanand Rockwell's J.E. Dorr also certified that Rocky Flats'groundwater monitoring system complied with RCRA requirements. hodiscussed in Part 10, this certification was false, in violation of18 U.S.C. § 1001." ;&., para. 5.22, p. 38.

6 "Indirect Issues Shaped Rocky Flats Plea," The DOJ Alert, pp.4-5.

148

attorney's costs incurred after January I. 19907 that areassociated with the violations to which it pled guilty, itapparently allows Rockwell to seek reimbursement from DOE for allattorneys' fees incurred before January 1, 1990; attorneys' feesand costs incurred in providing legal representation to past andpresent Rockwell employees; and costs concerning a document-tracking and retrieval computer system used in this case andpending civil litigation.

It must be assumed that major legal work occurred prior toJanuary 1, 1990. The raid occurred on June 6, 1989, and the grandjury investigating the case began to call witnesses and subpoenaadditional documents by September of the same year, events whichwould have required significant legal work. Additionally, Rockwellapparently attempted to represent all of the past and presentRockwell employees, many of whom were involved in illegalactivities and did not have the same legal interest as thecorporation did. It will be very difficult to separate the workdone for individual employees, which would be reimbursed, and thework done on specific charges, which may or may not be reimbursed.Additionally, because Rockwell is a defendant in at least threecivil lawsuits involving its work at Rocky Flats, it appears thatthe government-funded computer system is being used for multiplelitigation.

T HE NEED FOR A SUBPOENA

The Subcommittee initiated a preliminary review into the RockyFlats settlement to determine if the questions surrounding theinvestigation and settlement of the case that are summarized abovecould be satisfactorily explained, or warranted a formalinvestigation. We waited to initiate our work' until the pleabargain was signed to avoid any possibility of interfering with theprosecution. It was hoped that many of the questions could beaddressed through interviews with the FBI agents and JusticeDepartment attorneys who were responsible for the case.

Unfortunately, repeated efforts by the Subcommittee tointerview these persons have been rebuffed, despite numerousmeetings and letters. The Justice Department, which initially tookthe position that the assistant U.S. attorney prosecuting the casecould not be interviewed because of the "chilling effect," changedits mind after we pointed out that this person had been interviewed

7The significance of this date appears to be that it is thesame day that EG&G replaced Rockwell as the management andoperating contractor at Rocky Flats.

149

by the press.8 But Justice then refused to provide that assistantU.S. attorney -- and the U.S. attorney for the District ofColorado, who is a Senate-confirmed appointee -- until somejurisdictional problems were "resolved." (See discussion below.)When we pointed out that jurisdiction was a Congressional issue,and,-it appeared that it was not a "I.ive" one in this instance,Justice said it would not even meet wich the Subcommittee staff todiscuss our other differences -- such as its refusal to allow itsattorneys to discuss their "prosecutorial discretion" and arequirement that both attorneys will be interviewed together --unless we allowed the Committee's minority staff to attend ourmeetings. All negotiations broke down at that point.

For its part, the FBI said that it did not allow its "streetagents" to be interviewed about their investigations because "aproliferation of such request will adversely impact on the FBI'sinvestigative responsibilities because of the logistical factorsinvolved," and "its field investigators must not be concerned aboutpolitical issues as investigations are conducted." (Letter fromJohn Collingwood to Chairman Wolpe, July 15, 1992.) Once again,this is a very selective policy. We have provided the Departmentwith examples of where FBI street agents have been interviewed byCongressional staff and/or testified before Congressionalcommittees.9 Copies of the correspondence between the

8Justice's alleged policy is very selective and appears to beused only when the Department fears that Congress may be criticalof its actions. See, 9.S., Subcommittee on Crime, Committee on theJudiciary, U.S. House of Representatives, 99th Congress, 2dSession, December 1986, E.F. Hutton Mail and Wire Fraud, Serial No.13, pp. 142-43 and fn. 62; Committee on Government Operations, U.S.House of Representatives, 102nd Congress, First Session, July 3,1991, Bureau of Prisons Halfway Houses: Contracting outResponsibility, H.Rpt. 102-139, pp. 12-3 and fn. 11 and 13(interviews scheduled only after a subpoena was threatened.) Morerecently, Justice refused to allow its attorneys to be interviewedby Energy and Commerce's Oversight and Investigations Subcommitteefor its investigation of environmental crimes enforcement, althoughnumerous Justice employees had been interviewed and even testifiedin other Committee hearings. See, a_,., Subcommittee on Oversightand Investigations, Committee on Energy and Commerce, U.S. House ofRepresentatives, 102nd Congress, 1st Session, 1991, Activities ofEPA's ffice of Inspector General, Committee Print, pp. 47-48, inwhich a staff interview with an assistant U.S. attorney is quotedat length. After a negative press report, some interviews havebeen scheduled.

9For example, FBI field agents were interviewed byCongressional staff as part of the investigation for an October 10,1991, hearing before the Oversight and Investigations Subcommitteeof the Energy and Commerce Committee on health care-related fraud,

160

Subcommnittee, the FBI and the Department of Justice on this matterare attached.

While trying to work out our differences, we did attempt towork with the FBI's stated procedures for obtaining information.We asked questions of an FBI supervisor in Washington, who wouldthen call the agent in charge in Denver, and relate his answerback to the staff. Prior to his recent transfer to Honolulu, theWashington intermediary, who was somewhat familiar with the case,met with the Svbcomiittee staff for several hours on two separateoccasions in an attempt to answer some of our questions.

Not surprisingly, this was not an acceptable solution. It metneither the Subcommittee's informational needs nor was it anefficient exercise for either the Subcommittee or the Bureau. Ifthe Subcommittee asked a question that the supervisor could notanswer, he had to write it down, ask the agent in charge for ananswer and get back to the Subcommittee. If the answer triggereda follow-up question, the supervisor had to go back again to theagent in charge. It would not be difficult to imagine this processgoing on literally for months.

As a result, on July 22 and 23, respectively, the Subcommitteerequested Justice and the FBI to provide a written commitment thatthey would provide the persons requested to the Subcommittee forprivate interviews.1 0 Both failed to provide that commitment.

Obviously, if we cannot talk to FBI agents or assistant U.S.attorneys about their work, we cannot obtain the informationnecessary to determine if the questions surrounding theinvestigation and settlement of this case can be satisfactorilyexplained or warrant a full investigation. Without the input ofthe personnel who were directly involved in the intimate details ofthe case, it will be impossible for the Subcommittee to adequatelyfulfill its oversight responsibilities to the full committee andthe Congress. Many, many types of misconduct, favoritism,malpractice and just general poor work can be covered up.

and for 1983 hearings on unfair foreign trade practices and 1985hearings on prescription drug diversion and counterfeiting by thesame Subcommittee. Recently, the Judiciary Committee interviewedan FBI agent for 11 hours during an investigation. "House Query onH'wood Probes," The Hollywood Reporter, May 29, 1992, p. 1.

1"Justice, who has said several times that it wants thedepartment to speak with "one voice," wants to have an agencyrepresentative at the staff interviews. Because of the possibilitythat employees may wish to speak with more than one voice, we haverequested private interviews with only the interviewee's personalattorney present, if requested. This is a policy we frequentlyfollow, especially when mid- or low-level employees are involved.

151

Clearly we need to be very sensitive to the needs ofprosecutors, especially when they are in the midst of an on-goingcase. That is not the situation here. Nothing we do will changethe fine or the charges agreed to in this case. It can, however,if merited, led to administratively or legislatively mandatedchanges in the practices of DOE and other contracting agencies --and the Justice Department, which is mandated with enforcingfederal laws.

JURISDICTION

In June, shortly after the Subcommittee began looking at thisissue, Rep. Robert Walker, the Committee's Ranking Minority Member,wrote Chairman Brown (copy attached) to allege that the Committeedid not have jurisdiction over this matter. He subsequentlycontacted the Chairman of the Armed Services Committee and twoMinority Members to bring this issue to their attention.

Like many other issues we review, we do not claim to haveexclusive jurisdiction over the Rocky Flats investigation andsettlement. However, the Committee has a manifest interest in theperformance of the Department of Energy and its management andoperating (M&O) contractors. In Fiscal Year 1991, M&O contractorsreceived $15 billion, almost 70 percent of the entire DOE budget.Therefore, it is imperative that in the course of making majorpolicy and funding decisions, the Committee be fully informed ofall activities of those parties that may call into question theirability to fulfill their contractual and programmaticresponsibilities within the confines of the law. Moreover, it isessential that the Committee be assured that the Department ofJustice will effectively and fairly act to hold such partiesaccountable in the event of wrongdoing while under federalcontract. Otherwise, there is no guarantee that the policy andprograms enacted by this Committee will be enforced. The Committeehas a particular interest in the actions of Rockwell, which is alsoa major National Aeronautics and Space Administration (NASA)contractor.

This is not the first time that this Subcommittee has lookedat environmental problems at M&O-operated federal weaponsfacilities. It held a joint hearing with the Energy Subcommitteein 1983 on environmental problems at the Y-12 plant at Oak Ridge.Also numerous technology transfer bills considered by thisCommittee affect DOE's defense programs.

A detailed analysis of the Subcommittee's jurisdiction overthis matter, prepared by the Congressional Research Service, isattached.

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CRS Congressional Research Service - The Library of Congress ' Washington, D.C. 20540

July 22, 1992

TO : House Subcommittee on Investigations and Oversight,Committee on Science, Space and TechnologyAttention: Edith Holleman

FROM American Law Division

SUBJECT Analysis of Investigative Jurisdiction of House Science, Spaceand Technology Committee with Respect to RockwellInternational Corporation Plea Bargain

BACKGROUND

On March 26, 1992, the Department of Justice (DOJ) and RockwellInternational Corporation (Rockwell), which from 1975 to 1989 managed andoperated the United States Department of Energy (DOE) Rocky Flats NuclearEnergy Weapons Plant, announced an agreement that Rockwell would pleadguilty to ten criminal violations of the Resource Conservation and Recovery Actand the Clean Water Act and would pay a fine of $18.5 million, for actions takenduring its operation of the facility. No liability was sought by the DOJ againstany officer or employee or either Rockwell or DOE. The D03 sentencing memo-randum explained this decision as follows:

The crimes here were institutional crimes -- committed by oneinstitution called ROCKWELL and fostered, in a significant sense, byanother institution called DOE. They were not crimes by a few.rogue' individuals, but rather were the result of a culture, substan-tially encouraged and nurtured by DOE, where environmental compli-ance was a much lower priority than the production or recovery ofplutonium and the manufacture of nuclear *triggers.' For thesereasons, the UNITED STATES believes that it is more appropriate tocharge ROCKWELL, as an organization, with this collective, institu-tional conduct. While DOE, as a governmental entity, cannot becharged, this document serves in part to make government officialsand the general public aware of the Energy Department's seriousenvironmental failure in most of the 1980s.

The plea agreement was accepted by a Federal district court on June 1, 1992.

In 1990, Rockwell was replaced as the Rocky Flats operations manager byEG&G, Inc. Recently, EG&G was charged by the State of Colorado with 56hazardous waste law violations in its operation of the facility. Rockwell,

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however, has been designated by'the National Aeronautics and Space Admini-stration (NASA) as the prime contractor for space shuttle orbiter fabrication,and a Rockwell subsidiary was awarded a contract for space station powersystems, at total estimated costs of some $5 billion.

Your Subcommittee has commenced an investigation to determine whatDOE operational practices fostered, encouraged and maintained such "institu-tional cultures* in Rockwell -and DOE, and the nature and extent of thosepractices, in order to formulate a legislative strategy to forestall any repetitionof what occurred at Rocky Flats at other Federal facilities. You indicate thatsome questions have been raised with respect to the Committee's jurisdictionalauthority to conduct such an investigation. Our review of the House Rulesgoverning your authority, and oversight and investigative, and legislative,actions taken pursuant to that grant of authority, indicates a substantial bodyof relevant precedents that appear to support your initiative in this area. Inparticular, it appears there has been a significant number of instances ofCommittee oversight and legislative activity with respect to R&D laboratoriesthat were located on purely military or mixed military and nonmilitary Federalfacilities.

Under House Rule X, cl. (r), the Committee on Science, Space and Technol-ogy is given subject matter jurisdiction over "(3) [the] National Aeronautics andSpace Administration," '(8) scientific research, development, and demonstration,and projects therefor, and all federally owned or operated nonmilitary energylaboratories," and "(11) all energy research, development, and demonstration, andprojects therefor, and all federally owned or operated nonmilitary energylaboratories". Like other standing committees of the House, your Committee isdirected by House Rule X, cl. 2 (b)(1) to:

...review and study, on a continuing basis, the application, administra-tion, execution, and effectiveness of those laws, or parts of laws, thesubject matter of which is within the jurisdiction of that committeeand the organization and operation of the Federal agencies and enti-ties having responsibilities in or for the administration and executionthereof, in order to determine whether such laws and the programsthereunder are being implemented and carried out in accordance withthe intent of the Congress and whether such programs should be con-tinued, curtailed, or eliminated. In addition, each such committee shallreview and study any conditions or circumstances which may indicatethe necessity or desirability of enacting new or additional legislationwithin the jurisdiction of that committee (whether or not any bill orresolution has been introduced with respect thereof)...

In addition, the Committee is vested with 'special oversight function' of"reviewing and studying, on a continuing basis, all laws, programs, andGovernment activities dealing or involving nonmilitary research and develop-ment." Rule X, cl. 3(0.

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OVERSIGHT AND LEGISLATIVE ACTIVITIESRESPECTING MILITARY FACILITIES

Several instances of oversight and legislative initiatives since 1980 by theScience Committee, including a number conducted by this very Subcommittee,that involve energy research and development activities at military facilities maybe referenced.

In 1981, the Subcommittee on Investigation and Oversight conducted over-sight hearings on the "Human Total Body Irradiation Program" at the OakRidge, Tennessee, Medical Division. The Oak Ridge facility engages in majordefense-related activities, including the operation of the Y-12 plant whichmanufactures nuclear weapons. The Subcommittee was investigating allegationsthat treatments at the facility "were of little therapeutic value and inferior toother techniques that were available, that fully informed consent was not givenand, most importantly, that the attempt to gain data for the space program tookprecedence of the treatment of patients." The Chairman stated the goals of theinvestigation included "the kinds of controls that were exerted from thesponsoring agencies on this program, and the nature of the decision processesat the Oak Ridge Medical Division.' The sponsoring agencies were NASA andDOE.

In July 1983, a joint hearing was held by the Subcommittees on Investiga-tions and Oversight and Energy Research and Production on "The Impact ofMercury Releases At The Oak Ridge Complex." In his opening statement, Chair-man Gore noted, among both the specific and broad-reaching purposes of thehearing, the need to understand the nature of the institutional response of DOEto the problem and how that agency's decisional processes could be improved.The Subcommittee's focus on overall DOE management problems directly paral-lels the investigation that is the current subject of concern.

As we listen to the witnesses today, we will be focusing on fivequestions. First, we need to further ascertain the extent of themercury contamination and the potential for any long-term impact onthe health and environment of Oak Ridge. We need to do this in orderto develop and implement any necessary remedial action in time toprevent any further impact of mercury. Fortunately, ive have the timeand expertise to undertake such activities, and it is my hope that stepsto resolve this problem will be taken in an orderly, reasoned, and openfashion,involving the public, DOE, EPA, the State of Tennessee, TVA,and other interested parties.

Second, we need to understand, given the extent of knowledgeabout the mercury loss at Oak Ridge, at DOE, and UCMB, since atleast the mid-1970's, why no action was taken on this problem untillate 1982 and 1983 when the matter became public because of aFreedom of Information Act request.

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We need to examine the structure at DOE to understand why,given the knowledge and talents of the people involved and theirresponsibility to the public, why there was apparently a collectivefailure to notify the public. Our purpose is to learn from any mistakeand look for new institutional arrangements that will prevent such afailure in the future.

Third, we need to know what is being done about the otherproblems, like the S-3 ponds and the waste oil burial grounds. Weneed to know what DOE is doing to gather data to assess the problemsand to formulate and implement plans to comply with environmentallaws. We know we are looking at many problems today that had theirorigins in another time when the Nation was primarily focused onnational security and when environmental pollution and its healtheffects were not well understood. We know we are dealing with oldfacilities, but the laws and the times have changed and so must thosefacilities. Moreover, the Federal Government must accept responsibil-ity for these changes immediately.

In our investigation we have become aware of many problems, butwe have found none that are currently affecting human health. How-ever, it is important and critical that we act quickly and responsibly.

Fourth, we seek to examine the positions of DOE, EPA, and theState to learn whether their institutional responsibilities under thehazardous waste and clean water laws conflict, and whether theresponsibility of each agency needs to be more clearly defined beforethe business of protecting the health and environment can beaccomplished. We also need to look further and see whether Federalfacilities are legally subject to less stringent compliance than privatefacilities or whether those charged with carrying out the law haveadministratively decided n*t to hold Federal facilities to strictcompliance with the law.

Last, we seek to learn how we can all work together to quicklyand effectively solve these problems and put this matter behind us.

Chairperson Lloyd, in her opening statement, carefully detailed the breadthof the Science Committee's jurisdiction at Oak Ridge and the fact that the focusof the hearing was the overall impact of the Y-12 nuclear weapons facility onthe surrounding environment and DOE's management of that problem.

I believe it would be useful for me to outline what stronglyreinforces my interest here in the mercury contamination issue as wellas the Subcommittees' interest.

The Subcommittee on Energy Research and Production, which Ichair, authorized nuclear fission R&D and magnetic fusion energyprograms for the DOE, of which many of the activities are conducted

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at the Oak Ridge National Laboratory, and the gas centrifuge develop-ment activity carried out at K-25 as well.

Our Subcommittee also authorizes funding for the uraniumenforcement activities of the Oak Ridge Gaseous Diffusion Plant jointwith other committees of the House.

Moreover, our Science and Technology Committee is responsiblefor fossil conservation and basic research programs at ORNL.

Thus from the perspective of committee responsibilities, I have agreat interest in all aspects of the Oak Ridge pilot programs andrelated activities, including environmental effects and their mitigation.

Furthermore, our subcommittee has institutional jurisdiction overthe Department of Energy's Oak Ridge Operations Office, since itserves as a field office for all the programs I have mentioned.

My chief objectives in holding this hearing with Mr. Gore ere to:One, understand the history of the extent of the mercury contamina-tion problem and the reason that it was handled in the way that itwas.

Two, what are the potential impacts from mercury contaminationfrom Y-12's activities? In these contexts, I wish to know whetherDOE, ORO is serving as a just steward in discharging in environ-mental responsibilities.

Three, I want to understand what information, including that tobe derived from further analysis, experiments, and monitoring, isrequired to arrive at a solid, scientific basis for remedial action it isindeed warranted.

I am also specifically concerned about any potential environmentalproblems with respect to the ORNL and the gaseous diffusion plantfacilities, which my subcommittee directly oversees.

Finally, I believe that DOE should capture the lesson learnedfrom this mercury contamination problem such that DOE can assurethat similar occurrences, environmental or otherwise, will not behandled in this manner. Our overall aim to have government at alllevels work for the good of the- people is my concept of goodgovernment.

I believe a generic problem that we must recognize is that theDOE is operating 1950 facilities, while striving to comply withenvironmental requirements of the 1980's. To achieve such

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compliance will require constructive cooperation on the part of theEPA and the State with DOE, and I am committed to working in bothof my committees of the Congress to secure funds for environmentalimprovement at DOE facilities.

This mercury problem and related environmental questions are anunfortunate part of the heritage of Oak Ridge, but I believe that wehere in east Tennessee are blessed with the tools to solve theseproblems. The research expertise of the Oak Ridge National Labora-tory in environmental, health, and safety is unique and we must seeto it that it is utilized to the utmost.

In 1980, the Science Committee was the jurisdictional committee for theStevenson-Wydler Technology Innovation Act of 1980, Pub. L. 96-480, whichestablished programs to encourage the transfer of technology from FederalGovernment laboratories to the private sector and state and local governments.In 1989, the Science Committee was represented on the reference committee forH.R. 2461, the National Defense Authorization Act for Fiscal Years 1990-1991,Pub. L. 101-189, for the provisions of section 801, which established newrequirements for the Critical Technologies Plan, and sections 3131-3138, dealingwith technology transfer provisions, which broadened the Stevenson-Wydler Actby extending to all government-cwned, contractor-operated (Go-Co) laboratoriesperforming research for the Fedral Government, such as the National EnergyLaboratories operated for the Department of Energy, the authority to enter intocooperative research and development agreements to transfer technologydeveloped in Go-Co laboratories to the private sector. The conference reportaccompanying the bill clarified the purpose and scope of the expanded definitionof a Federal laboratory. The conferees explained that "Stevenson-Wydler (wasmeant] to provide that a group of GO-Co facilities under a common contract area laboratory (for purposes of section 12 of Stevenson-Wydler) when a substantialpurpose of the contract is the performance of research and development for theFederal Government.' Among the examples presented of clustered facilities thatwould be covered by the Act was "the Y-12 Production Facility" at Oak Ridge.H. Conf. Rept. No. 331, 101 of Cong. 1st Sess 758 (1989). Thus no distinctionis made between military and non-military laboratories. Moreover, a recentDOE publication describing its R&D Laboratory Technology Transfer Programnoted with respect to its defense programs that "the National CompetitivenessTechnology Transfer Act creates an opportunity to more fully utilize theresources resident in the nuclea weapons complex to simultaneously fostertechnology transfer of unclassified research and development and comply withprimary mission of DP (Defense Programs], which is national security. Inaddition, section 91 of the Atomic Energy Act was amended to emphasize theimportance of transferring 'federally owned or originated technology to Stateand local governments, private industry, and universities or other nonprofitorganizations' by making these activities a mission of DP.*

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The Science Committee was active in the passage of the Nuclear WastePolicy Act of 1982, Pub. L. 97-425, and has since continued its oversight overenvironmental and energy research and development, and over mixed energylaboratories. See, e.g., "Nuclear Waste Policy Act: Current States and FutureOptions", H. Subcommittee on Energy Research and Production, Committee onScience and Technology, 99th Congress, 2d Seas. (July 22, 1986).

In July 1991, the Subcommittee conducted oversight hearings respectingDOE's deletion of standard protective provisions in management and operatingcontracts at the Lawrence Levermore National Laboratory, a facility exclusivelydevoted to defense work. "Administration and Implementation of the Manage-ment and Operating Contracts for the Lawrence Levermore Laboratory and theLawrence Berkeley Laboratory", 102d Cong., lot Sess. (1991).

Most recently, the Subcommittee held hearings on the subject of uncoateddobligations*, i.e., money obligated to DOE contractors for which the governmenthas not yet received any goods and services. At the end of fiscal 1991 theseuncosted obligations at DOE were found by the Subcommittee to have grown to$7.9 billion, some $4.9 billion of which are attached to operating fund accounts.The Subcommittee review encompassed contract management and auditingpractices of all DOE facilities, military and non-military. Chairman Wolpedescribed the scope and significance of the inquiry as follows:

The bottom line is that there is a huge pot of money sitting in theDepartment of Energy accounts and no one has any idea of whetherthe money has any legitimate use. Obviously, this means that theDepartment has no way of knowing what the budget requests shouldbe because it does not know how much of the current funds are reallyrequired. Make no mistake. When billions of dollars are handled insuch a fashion, this money can serve, effectively, as a slush fund.Clearly, there is a strong potential for abuse.

This situation is a manifestation of the unique way in which theDepartment operates its facilities. The Department of Energy is thelargest civilian contracting agency in the Federal Government. It isuniquely dependent on management and operating, or M&O, contrac-tors to construct, manage, and operate almost all of its facilities,including its weapons plants and laboratories. In fiscal year 1991,M&O's received $15 billion, almost 70 percent of the Department'sentire budget.

DOE agreements with its M&O's are multi-year, multi-billion-dollar contracts. Because the contractors are responsible for virtuallyall aspects of the management, operation, and maintenance of Depart-mental facilities, their contracts are very broad in scope. It is difficult,if not impossible, to specify all of the services the Government isacquiring for its money. In fact, some funds are obligated without aspecifically defined purpose.

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To account for these obligations, the Department has set up asystem to track the costs incurred by its contractors. These uncoatedobligations reflect goods or services the Government has received or itsmoney. The problem arises when trying to assess the obligations thathave not been costed--that is, money obligated to the contractors forwhich the Government has not yet received any goods or services.

What do these "uncosted obligations' represent? Are they fundsthat are committed or planned for a specific purpose? Are they fundsthat are no longer needed for the purpose for which they were origi-nally obligated? Or are they funds whose use has never beenspecified?

Most likely, the DOE's uncostd obligations encompass all ofthese things. It is the responsibility or the Department to track thesefunds, assess their status, and determine if the money is still neededor could possibly be used to offset budget requests in future years.That is responsible budget formulation. However, the Departmentdoes not systematically track and assess these funds. It does notrequire the contractors to report this information, nor has it estab-lished guidance to ensure consistency in reporting and classification offunds. Even where information does exist, it is more often used toidentify source of funds that can be tapped for some other purposerather than determine whether they may be used to offset futurebudget requests.

This has several negative effects. The fact that these funds havebeen obligated removes them from the scrutiny normally accordedunobligated funds during budget reviews even though there may be nospecific plans for utilization of the money. It is much easier for theDepartment to shift and reprogram uncommitted funds than it is toobtain new appropriations. By shifting the surplus funds, it is possiblefor the Department to alter the funding priorities established byCongress. Thus, the existence of surplus funds creates the potentialfor spending on unnecessary or lower priority projects, leading to thepotential for waste and abuse of taxpayer funds.

Hearings, "Department of Energy Uncosted Obligations', 102d Cong. 2d Seas.(1992).

There is other precedent for referring bills that address military nuclearproblems at DOE facilities when the bill addresses an issue that is ordinarily theScience Committee's jurisdiction. For example, in 1977, H.R. 6566 was intro-duced in the House to authorize appropriations for the Energy Research andDevelopment Administration for national security applications of nuclear energy.123 Cong. Rec. 13980 (May 9, 1977). Due to the subject matter of the bill, itwas sequentially referred to the Science Committee for consideration of suchportions of the bill which related to nonmilitary nuclear energy research anddevelopment. Most recently, H.R. 5231, the National Competitiveness Act of

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1992, which would amend the Stevenson-Wydler Act again, was exclusivereferred to the Science Committ.'e. The measure covers a broed range of DOEand DOD R&D activities.

CONCLUSION

In sum, then, a substantial case can be made that Houre Rules and pastCommittee oversight and legislative activities support the preliminaryinvestigation into the DOJ resolution of the Rocky Flats proceeding. Theforegoing review of oversight and legislative actions of the Committee coveringa period of twelve years underlines a consistent recognition of Committeejurisdiction where the focus has been on oversight of management and opera-tional concerns. In those circumstances it has not mattered that an inquiry orproposed legislation encompassed both military and non-military R&D. The ideaof significant failure of institutional control and supervision by a majorgovernment contractor and its sponsoring agency divorced from individualresponsibility may well have a legal basis of distinction in the application of thecriminal laws, but it would not appear to have had the effect of foreclosinginquiry by ajurisdictional committee of possible past and future maladministra-tion. The precedents reviewed above indicate no rigid line of prohibition for theScience Committee to inquire into nonmilitary R&D when they occur at militaryfacilities. Nor are we aware of precedent foreclosing the Committee frominquiring with respect to the qualifications of a major contractor operating atagency under its unquestioned jurisdiction -- Rockwell at NASA -- and seekinginformation as to those qualifications at another agency where its generaljurisdiction is similarly established.

Morton RosenbergSpecialist in American PublicAmerican Law Division

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The Honorable George E. Brown, Jr.Chairman, Committee on Science,

Space, and TechnologyU.S. House of RepresentativesWashington, C20515

Dear Mr. a

It has come to my attention that the Subcommittee on Investigationsand Oversight, claiming 'ongoing oversight of environmental compliance byfederal agencies,' is conducting a review of the recent settlement between theUnited States and Rockwell.

A careful reading of the Rules of the House of Representatives gives theCommittee on Science, Space and Technology jurisdiction over 'Environmentalresearch and development.' Nowhere in Rule X, clause I is there any basisfor jurisdiction over environmental compliance at facilities that do not fallwithin the jurisdiction of the Committee. In fact, the settlement between theUnited States and Rockwell pertains to the management by Rockwell of theRocky Flats Colorado facility which is a weapons production facility entirelywithin the jurisdiction of the Committee on the Armed Services.

Just as I feel quite strongly about other committees attempting to usurpour jurisdiction, I also feel strongly that the Committee on Science, Space andTechnology should not attempt raids on other committees. I urge you to takeimmediate steps to end the current activities of u c mittee onInvestigations and Oversight.

Cordially

Robert S. Walker

cc: Honorable Les AspinHonorable William L. DickinsonHonorable Howard WolpoHonorable Sherwood L. Boehlert

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THEDO ALERTVOL. 2, NO. 7, JULY 1992 COPYRIGHT C 1992 Prontlioe Hafl Law 8 Busjnois

ENVIRONMENT

Eleven Years ofRCRA Enforcement Jeopardized ................................... 2'Rocky Flats': Debarment, lndenwificatlioo Issues Cricial ........................... 4

CRIMINAL

DOJ Expands Forfeiture Scope .................................................. 6

CIVIL

DOJ Fl~gb Wbteblowcr Setmets ............................................ 7

ANTITRUST

DOJ Defends Handling of Ivy Leape Can ........................................ 9

JUDICIAL NOMINATIONS

Listing of Pending Nominations ................................................. 10

IN BRIEF

Sharing of Information with Criminal Division Opposed ............................ I IDOJ Contractor Sues Former Employee ......................................... 11DOJ Offers Vigorous Defense to Bank Fraud Record ............................... 12DOJ M oves .................................................................. UBank Fraud Sca~ecard ........................................................ 12

AMICUS BRIEFS .............. .......................... 13

DATELINE JUSTICE ......................................................... is

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Indirect Issues Shaped Rocky Fiats PleaTbe $18.5 l lion record enviroo-

menta fine paid l.st month by Rock.well Enterniational for its operation ofthe Department of Energy RockyFlats weapons plant in Colorado wasa compromise forced by concerns onboth sides that extended far beyondthe immediate criminal exposure(United States v. Rock-Kell, No. 92-CR- 107, D. Colo.)

Last month, individuals privy tothe negotiations described for thefirst time the considerations thatforged the plea bargain, which in-cluded a fine almost equal lote totalof all fines by all defendants in Illhazardous waste cases nationwidesince 1986.

The two most important issues,:h of which dwarfed the imrnedl-

ate criminal case, were Rockwell'sconcerns about dcbarment and thegove went's concerns about Rock.well's right to indemnification.

From Rockwell's standpoint, hadit demanded a trial, D0 likelywould have expanded thectiarges toinclude fraud, which wor ld,.se re-quired DOE Immediately to tr.:the firm from all government coO.tracts.

For Rockwell, that would havebeen devastating. Rockwell last yeadid $5.2 billion in business with theUnited States, an amount equal to44percent of the company's lot reve.nue. Worse, the suspension woudhave come during general defensecutbacks while competitors areeager to grab unclaimed busineL

Suspension also would have beenzonvenent for the govermeat,

RockwellIs NASA's leading con.tractor for support of the space shut.tie, the Army's only supplier of theHelue snti-tank missile, and man.

ager of the National AerospacePlane program.

By admitting only to crimes thatDOE already had d'lermlned wouldnot result in suspension, Rockwellprotected that pan of its business.

More important to the govern.meant was what cane to be knownamong government litigators as the"DOE defense." Unlike the suspend.slon/debarment question, that de.fense was a problem of boundlesscomplexity.

Superfictally. the DOE defensemeant that Rockwell would presentitself as a Scapegoat for what werereally DOE crimes. But that defensereally presented a much more seri-ous problem for the government.

Rocky Fsts was what procure-ment officials call a "GOCO." agovernmxnt.owned, contrctor-op-crated facility. And under suchOOCO contracts, te Department ofEnergy My indeamifled contrac-tots like RockwelL At the time, theIndemnIfication was to cover every-thing except situations in which thegovernment could demonstrate"ex-plIt m1sccoduct or lack of goodfaith" by Rockwell's "managerialpersonnel." Simply put, if Rockwelland the DOE committed the crimestogte, theta the government paidfor everything , Including criminalfnC and defense clow.

For government lidgators, simplyconvictig Rockwell of environ-mentaleimes would not have Pre-

vented indemniicatdon. An environ.mental conviction proves only thatthe offender committed the acts in-tentionally. It does not prove badfaith or specific intent to violate thelaw. Consequently, there was astrong likelihood that the govern.ment might win large fines that werefully indemnified by the govern.meant. Thle only net effect would beto enrich Rockwell's attorneys.

To overcome the problem, thegovernment would have to show

some kind of fraud or bad faith inRockwell's reports to the DOE.Since Rockwell reported to variouslevels of DOE management, the de-termination was not simple, andboth sides considered the outcomeuncertain,

The chief government negotiator,who personally attended severalmeetings, was Barry Hartman. Au- 'Acting Assistant Attorney Oeneralfor Environment and Natural Re-sources Hrtman, who left the gov-ernment on June S. supervised theEnvironmental Crimes Sectionwhich prosecuted Rockwell. He alsosupervised the Eavironment De-fense Section which was defendingthe Department of Energy.

Any victory EnvironmentalCrimes won, likely would become aclaim spinet the government thatBovirnintal Defens would haveto defend. And the evidence pro-duced by litigation first In the Dis-trict of Colorado, tun in th Claims

Superficially. the DOE defense meant thatRockwell would present itself as a scapegoat

for what were really DOE crimes. But thatdefense really presented a much moreserious problem for the government.

Cowi, could have increased DOE'scivil eAposuze from workers andnearby residents.

By agreeing to the plea bargainand not charging Rockwell withmore serious crimes like fraud andknowing endangerment, the govern-ment limited not only Rockwell'scivil liability, but its own as welL

The bargain also helped protectRockwell's right to indemnificationfor that civil liability, Had Rockwellbeen convicted of fraud. it wouldhave been much easier for the gov-ernment to avoid indem(nifying thefirm for anything related to thecrimes. And bad sentencing comeunder the Alternative Fines Act.Rockwell might have faced finesequal to twice the damage caused.

The plea agreement also protectsRockwell rom other actions underthe Resource Conservaton and Re-covery Act, the Clean Water Act,103 of the Comprehensive Envl-

ronmental Response, Compensationand UIablity Act, the Clean AirAct,and the Toxic Substances ControlAct.

As was widely reported Rock.weU agreed In the plea bargain toforego indemnification of the $18.5million fine in question as well asattorneys' fees associated with itsdefense. Sources on both sides saythe government presumably will in.demnify Rockwell for civil liabilityfrom workers and nearby residentspursuant to its GOCO contract withDOE.

In fact, the plea agreement explic.itly says, "For purposes of inde.ni-ficadon provisions in Rockwell'scontracts with DOE, nothing in thisagreement shall be construed as an

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admission by Rockwell, or a deter.urination by the Department of Jus-tice, of 'wilu misconduct or lackofgood fa2th'by Rockwell's 'mana-gerial personnel.'" Moreover. thegovernment's sentencing memoran-dum all but accuses DOE of com-plicity in the environmental crimes.

The filings stopped short of idea-tifing responsible DOE officials, adecision hat has angered some en-vironmentalists who said it flew inthe face of DOJ's espousedpolicy ofprosecuting federal employees whocommit environmental offenses.(Thatpolicy was repeated Jue I intestimony by Acting Assistant At-torney General Roger Clegg beforethe House Judiciary Subcommitteeon Crime and Criminal Justice.)

But DO] sources say DOE offi-cials escaped because the law is un-clear whether RCRA applied toDOE habdling of mixed hazardouswaste before 1987.

The $18.5 million is roughlyequal to the bonuses Rockwell hadbeen paid over the period the crimeswere committed.

The sentencing memorandumcontains laguage that presumablywill reduce, the civi exposure ofRockwell and the government,though both sides say that was notthe reason for it inserOon. Two suitsagainst Rockwel have been filed byformer employees and another bydownstream propeny owners.

The memorandum says, "Basedon the evidence gathered in this in-vestigation, and to the best of theJustice Department's presentknowledge and Information, theconduct to which Rockwell hasplead gulty did not result in substan-

til physiological harm. or tie immi.ment threat of substantial pbysiologi-cat ha., to members of the publicresiding and working outside RockyFlats' boundaries. The RCRA viola-tions involved on-site treatment andstorage of hazardous mixed wastes.and their environmental impacts ap-pear to have been substantially lim-ited to inside the Plant's bounda.ries."

It is unlikely however, DOEwould reimburse Rockwell for ajudgment in a suit based on the UeClaims Act that has been filed by aprivate whistleblowez. But in theplea bargain, the Civil DivisionCommercial Litigation Sectionagrees not to intervene in that sut(United States ez rel. Stone v. Rock-well International, No. 89C-1154,D. Colo.)

Another consideration vital toRockwell was that the governmentguaranteed in the plea agreementthat no individual RockweU executies or employees would becharged.

One of Rockwell's attorneys con-firmed that the possibilities of su-pension, loss of indemniflcation andthe prosecution of individual em-ployees were all factors that Rock-well considered before deciding toaccept the $18.5 million fine.

Former Acting Assistant Attor-ney General Hartman, now withKirkpatrick & Lockhart in Wshing.ton, D.C., and EnvironmentalCrimes Section Chief Neil Castus-cielo declined to discuss publiclythe plea bargain negotiations, as didRockwell's outside counsel, Had-don, Morgan & Foreman in Denver.

THE DOJ ALERT Vol. 2, No. 7, July 1992 $

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LA iNs::YN NTH AIN' AIA

Wilk-JULY 30, 1992 VOL.XVNO.9 $9.50

Sweetheart plea agreements. Secret meetings with defensecounsel. Political favoritism. It all ads up, say critics,

to a breakdown in federal enforcement of environmental laws.

DOJ's Environmental MessKea Eiceey fred off a -thding lelne

mY LINDA HIMELSIEM elictr tis yea to U.S. Att y Genera

in May 19 , riccl. of Pasco. William Barr aruing thal PureGroInMa y 198.rsid of Pas co, "-should nor havc been allowed 40 esape

,A, eh in -om lc f n ur oc with only mi or sanctions" a" termingha radcthn ho ch emis aftpr aid oni S o- his experience with the departmentcal .. .c e Jo ..s as i n e n.a li s. "frustrai ng and unreading cal c rield lick and Ivela lDo~n$ whoi.ed h.TcN lie ,,'Cl from he rid, werehii~u~ciali'dand )lck ded a few nvinihsIdler

In the late's first "knowing eA-dungeimenl eni irvnmcnlll case underf "drl law. h pesticide manufacturerallcetedl) iponsble for ie i rlent. he

Nrnreci Co, wa. changed with the Illegalstorage, Iraniportamon. and disposal ofhaand~Os - ases But far from facing saiffpenaliei for Ihe alleged wrongdoing.which may or may nor have contributed toDowns' deaih, he company pleadedguilty to one misdemeanor av4 paid a mi-rk $5.000 fIlln

Despite vchliivent prolests from slaleprosecutor and officials of he Environ-menial Ptoleciiov Agency who invcstl-gated tl incident. Puro~ro was able so

Washlngo AG Kea Blhenbikecri~cked DOJ prosecution ack.stike a deal with the Justice Departent

The end fun so infurialed lawyersworking on the case, who argued that

PurcOo had knowingly endangeied 23people, tha Washington Atoricy General

T7%e Juslice [ :pl.nrt. *,after sevralconversation %ith defense counsel im-medialely sojthl Io dismn., all chargesagain dcfenants," wrote EAlC~nbrny inhis Jan l tter. "This was i Spite Of Uhfad dial the corpoiae defendani had of-frd to plead guilyto afelOeY."

Eihcnberry's leticr-irnd interviewswith 45 go ,mnlen officials, preT0 ,uIois.EPA investgtor. and private low-yces, l-USesis that the Prero an tsmach mon tdan an isolaed di agn emenlRItter, thte case represents a Patters ofbehavior by Juste Dcpartmeni o'lciabldl is sernosly hindering rffol.s by law¢a'orcm to hold pollu:er accountable fordir nviron"m net. crime$.

i lINYIRONI1T, PAG4F 22

Best Available Copy

166

2 1,tl VA $i llKt5O Y 2.1"2

Justice Assailed for Going Easy on Polluterscontve OnMlt I PROM PAW4 I

ficot. 'cs InEPAI.e wcot lke most ugh.,I gu'elinnm o~ Itlvie-ed for ir, I eieqcects sonoefly. Its she (nc ot hloductoe lics

ootpt oeres. trying to cuntoli toe rold-,thovuta..Worsient I c o odoea odvordksoiy ooorfe~nng -ith p-'tion1

coit~ -.titoto fi ctldgoa vNioxeOuW a,Iop.ocl.othc kovd~vtlg o rit.tgo

to c -I&tw.odscod~to Thty also Cat*ns canoc In Whiht mclovwtctd do-Iiodaoic .,,noioe faoable ualvo(com di,, than smgal tome,11 opolsIootkitd cle y amtoub~led hby theoplloll is toy delay investigations of hi11Pooseootoslclotn,

Zc.oasC &etrcloos san quck a Poosc hat the tliajo-iy afpflp hitit occur

sto. depaunaser aificis autnoi wonrendal"Oitcvtadnby do..saIaiwsvxto pnoood aga~nstdfndalc-a stlonicthan ha. Flt iOfb olde ictttiDepat-,,otoa' 3O-lovyer Eoviconveooa Cntreniutoo' shoh ispan oftheE.vovent

Ldft LP-A. iig6c ha op~

a Ilu of ,oo '10 phai Aud. FN. 'clags Da..d Wlt, EPA speui seos Achag of theiSoiavh ,so regyor

d'IS rdjloc, ticot iultC -11 "I

-s.' t, M do U 5 atottonys

10ilt SioncainvySucch haodhlimng critiismchacierg.

Steod anoxtsve cnogofsesiortu probe,nlto whthter the Justtice £opctmost iscahotacg, pnoseiculo o o" ogoo

-oeThe ttceatigairct, a btisg pcoudbyglth ouse Focgysnd Commerceiubtootnri as 0 etsojiht and is-coatoacveo. chardtby Rep )&ub Dp&U

* I IIh ',ddepyu-ln.1 alltonsccAjigstng there crt-a l

to Dreprtvnt oFlcoi ha.e dis-

JulyO6 o'o "'actHeacoos o D'~ pnoot mched-

vlod for Sepeonhet

reatjccein sdoAroaco" inaau.okut's tonce l Poersitgvc

0o~mlt tush.

itryinggto pt~s,ot hiviol at a

tn~ttktooi ca"gpcSgnThveeuct DtparTtoeg tlouetohly e.

lcvdtis gcolud ofttnflonsC-1011~omcrota .s Sopco C~qg.&ovdg alclctsltnoy joitl utcheofic-oeost mdNorali Soso"igcs Dtton. nag, cuall.taics ltsosx li die dtpcttesas .1 outsmi mestto tackingdown 04en vscowmti cn

CUoS. 37. who had been voh de EA-Dv, o ol"o l h a It efore

takingo*.a asoI.t-acaNo5IIel a11IOttt

Pogstos 00 fore it. amn 1'd0A inteQy

weat an9 Chg oco I I loI s

doe Wilay t'aa asf As ado" sodo~ ply niie 5 Wvee" ai

Wivceti o 50he eomieaSeveral 5.nm dovdsnRAI., ftwd.g thet Esxonop . is' Rout-ottl intutctgaor Cop.

coltle .cargs that thety had comigtedetci docs total cooo

And althtougih to dectremc no disussc As'PucGo mattr oceealocher awosahbc" ch.h toevs c&trd. Citgsf conerdsthat cuttot's.toet peoo11ie

iT' iI £sgorome "CnirtosdooSectothe Justice Dnparmesr hcs had an out-tatdon reorodac have th 5itILIOtWY1 oildhe s-otoimettalotgoca.at hisEPA,-cays Cleggs The admires-"gtoct eyprnoud o(ciavood

Sarry, hAIantia. Cliggcl ptedrtrccm.hosties aM any tloor ch" fts & Wc.cnont' 5 t tirtuervo tal nourd is mnogiS

sasyehaven' stoesa I1olliOltoprotigtcutmioneralcfut ies.-saysHictctm owa pattne n teDoTc'eof Ktttpaoickh A Lockhso If every-body's cn iodlng a. chsen maybe vverndoing vsmrtfs'g nggi5

Both Hacocav agcd CiigS deni "a amyoad tetoiccon igoc beltwe sate safe=.mottagtosc ftEPA.UL)S acoocs'poffices, aod fine0 inooyc .,toen the Etc-ogtuomoetgat Cnms Sion TI" nn.tohNle avg ge-ulllhet to touliO d'tagriirneor tlc liev0 togtlc daring the dectl-op'nereo. ula~ec Uliatlyl they cuu

-g Aire tad of ho dacy, ct-) Proveuculoital decoomade n theoigc.

eve d~ a t L oimeyiagosdoo ethoiot logo. Cltgao'-Icd

Veil ttuasieic. cviefofft occctoco

tioocrenti u~doltC.ove.

Nheti he nor his sootto responded Invtilotn qutcto. whch ietemedttoclt.ng

Gttin tse Omeen Ugttt

light fIo -. 1icJ'to agii g A10

IT tol 5 t i t 11obi ify wdI1

air

'At the end of the day, everyprosecutorial decision made in theenvironmental area in the last year

was one which we and the U.S.attorneys agreed on the bottom l ine.'

11001t cuoo0Acting Assistant Atltney Oeral

Environment and Natural Iaosorces Division

offcotthaie been ct~a oc d Pios,. thei a hvgpoijutoorsoonor Oreluoc I Yot. the chiauiino ;he e , -ciooagoggddi county have dtioiocrd polaI entldshcbtowhc5 S~ta tx -to o f ttoanottyl- iosi

rte i c, lu They are gevicer is- o ltv" ncic~taO4g'itaI'.gli tga u avo rs sgtllocrha s 111.0 heo rlidta~hful.ouou.I.1NcllvrgoNv Vacco odnolvci od i.. naNocJ,

-1ttbgiooggtot.gyou hadtoocasuoad lbe f~wiocotc te M~a,stgoN.ts,sp ooanuy ototliS aiions'yocto EPA.Nond hiscolloaa ice t,& k oa-.dolis to cissl.- ohsucsniiled. edging psdiftloitos.touagcO tatvm

EAgomeulCnonottciStdeocsow cotlotlNcacnftupo iIt

a pate n0C 's Vetable. I tpt. Thinr ha'se been d~llittgcs ve ,r

1B -. d A C-erct. i Tudoc co ,t Anto l t r Wet .gho 'Is - . oopu i I -tA "11 of fs' in) tII

IIlud nt n"Sat gcog es

Dovt~plst~ht u tll

Jltojcaltomltlu'diy :: being - inc~ vccuiotonsc. anP-1co.Iuio

The ~sagsi tur s.y swsn tadsdoo fveo

i beottcton U S sdotii now c)". Sracd flottions,go CDpaitttrn officials aver to. tolA voctet'Iv mntto l ao nc -t Ec allet [he y~lue, olfol'-411 1

Nealott Vaucace as'ew" a " EAsOf"o Ciiawille~ts Ifn labefudowss t , l swcstlooc id i m

* e~4m~in.mamm~msmammn .tr..n~c" * 'tsr- ~-

167

L I GAt TIMIS.W5I OfJtL 11,1. 1"1

1ye C lot recal, a1inc a he ius he Isa,

iny t Jscl 4"eai

Thi tred to lopee andI iio~a ,aLohle foret call. thy, the

prmuowI. o irState c ayodded a

Steoaed elatsooareached ahead soMay during aJa.ae Deatie. pmrsiecusot.., .mri ursoo a Salt Lake City

'wn% t dran ndc ted*onte lty o thttti aq

*1 Lk it ii Icmisofric I Vs thi Pwee aooex ouK

aterela _____

h -C "Cf. i-m ism toAt Upn atott

-11,It ecomeetin eM ftteti

Hrrea d es egineeic ttrey e0

iorneys Assgned to come csam ar "no.,*Nsed.* says Hartman "Any timee

saaa donee f-Sjh the iteats haytitelsSai Wei Coty aleeprovided a fortrnfor

proectos I* grumeble aboutn delaysCc al d by Jutiues a mcomagnocem.- and to quito tae a

eeesteeseteter s tUyo tee lnOfassstwhoibs a SatLA*e.

Weal. CueSomme pessssueeet and EPA oesanigm-

ban saim tht teli best example of doe do.paeeeetini mamipsiaitoo Bad mco

maisiemeauocesned in he heietoaWaa hfssqeroeee Can 1A Oak Brack.Inl -hued =Yaew ~u .aeaaig has

no e Id . oe she iegal teanseo.attoo Ad siseage of Agen tOrange a

Alakatins.Lisse attorney m i.ihe Environetal

CeIeeou Scinee.. EA Issyee cad Iso,.11atlconeee Ansd iitate prosecutor all

pushed frea feloy inditm~entmamma OAKecompany and two or ol roiai. leest

efd"the sau Thecoreal she .dwqf de CheetIsiAN fWttanspotl in; and lstaiss. and that. atthe very hose, a jsey shoutsd havea biee,allowed toc determine he eospmeyI

of-oHamon. ao waes oI harge

Wes time. asked as me ttaemasi sen *'Whyate we note going aft e sotnYnyHartemas qetcare=1.0leiChemica Wmmwefffytloye te sesfolly Pioeeea ts a related cst i

Iso Caeistoic. who me Tal chooa.-. aJ Wsse defense yvomml. aeg~d %%a

ad m broes may~ Las eeteeed tre s tel cAd becaued i cots

Apet,,estIWIJVe'AJsees.,usevi delays.

1ocAhe a C-i

Pinoe at sheA intdiciet eltser sltd yea,(Ao the e .4 tc Ivlt-rqst h..hatteady orpeaoed. Caetataioiatto hibsedthae 10 Abarod a UN aS £ ~ )IN)y li

Wte gjt-ecitontnem .Ill111 tto rus-se atAlibeaph -stmr- e~uc. Pue leii

-tde it, ftssittt Att. opts-v

ftt.,t Jrts.,- tk JPt te t.-

A,t,. , ,.J eoPh,,hteatwd

0Ta.e crp.src, or the tHoghe, 4,.craft Co emIiiged si r.i.t l.tve

aySo- te (tta te. Wvtst~

babter Dstrst of Pmj dIett

The c.Tect of*DOJ'S allegedbehavior 'canonly be to..undermine ...

the effectivenessof the EPA'ns

he !'t±"rv2 d the r enforcementWeiner-coared the sa~t the ti

Numntwihetitaals,&Jitehatlhtevs program.'tosdlyrog m oss" ooemietete gong __________ rate lo-l~et eitltqtetO. -hQ id ee

5 1 1P. JOHN DIOELL

cerithe peoedd ntai )IhDMkm.and he ovenw gos gie them,"

Weimer asked* The Theonsex Eeetgy Corp .a Dallas- lhrftgh *id. coe proper papereo eh m assedl; to three i..silsa Deparit

hated erangiestatet of blamineg agents as saeegeat Ttt s stl atim aeoitil Preuteeessed Its rimmntg sod eel teplots". isa 0A Colorvieadsed mtesicones sey The thyastoM dectsuetou its..

:=eWtged hy the EPA mind lsated us hate tera otwieosed for Ks handlieg of PCI. e~ledsld eas"sheoe21 dettee; or hawadoite mime ussc sahastauses regutated by the EPA Shronitmisr"

med hoecidoss taeato sudge at I arLelier b dusus the. eo gv9M..wgAafrstlty aC-pee. wyee. asuedieg us usedyc Leoee .utd MM& AmiiusIness!e meeeoraeelsoeA plea eessinco Ag bero deyatmoemas pelow gmswasaworked ot ti Thhe company to andteieei a shortageoexpiotio wdtigiaso19W. beg sueass fouhai -A ther se -oeber rmmmk Segau m eVoerts) wod a lack of casicms: orasay thoae u ownieoe noeer fooed jos rmrsme o.a ariua

- Wasu came. maesilvee o elicitoruthe Eatsusmees Cies Section 6

onuct tot ath rsiers of seee,i een placed oe had ofpeoplehois, m luxss edge oftoansd lieeted ItSgitor etyottenei

&A " bhb Clegand Cattsoeths%m,1 set tweothe n S etsc Iprifirusf , ese tiaut Ceas

leros. say Agoo jastio iaayo",eusetheameld by s1 Ps~ttsAJ Walda tatho tol~usto usohld hig hasmiut

seualfeo us etriesee A

hastg w k X oa usim teo ek

seot us' ca o

Tody kmolol~, ndIknw

1"tnofea eesatoeinttttseeealdyatinest of Justice has old us sito

psaobet oaheeaaastseS an,

forftEasti eMw Dttof Tiler-. Oth~ersdefend the seatmtettes

ealloed by polsacal cossidrmON

soya HarmtO ther foesinet oEast"-Dttesdsef W-We hadeaaittotl l

to.eh hod sbse een s our

yStill. f touso Dg epaewos Is tdae o ossoe"Dnell-r ss a c a - pTh rlo e to The y ttmos "c" otate a"t " da4m ~

I ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ h effheb oa lossha~detu dep mmell rn-toa1 aeme

58-100 (172)