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                                                       Calendar No. 438
110th Congress                                                   Report
                                 SENATE
 1st Session                                                    110-203

======================================================================



 
    THE SECURITY FROM POLITICAL INTERFERENCE IN JUSTICE ACT OF 2007

                                _______
                                

                October 23, 2007.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 1845]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 1845) to provide for limitations in certain 
communications between the Department of Justice and the White 
House Office relating to civil and criminal investigations, and 
for other purposes, having considered the same, reports 
favorably thereon with amendment and recommends that the bill, 
as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Security From Political Interference 
     in Justice Act of 2007...........................................2
 II. History of the Bill and Committee Consideration..................7
III. Section-by-Section Summary of the Bill...........................8
 IV. Congressional Budget Office Cost Estimate........................9
  V. Regulatory Impact Evaluation.....................................9
 VI. Conclusion.......................................................9
VII. Minority Views of Senator Kyl...................................11
VIII.Appendix A--September 29, 1994 Letter From Attorney General Janet 
     Reno to White House Counsel Lloyd Cutler........................13
 IX. Appendix B--April 15, 2002 Memorandum From Attorney General John 
     Ashcroft........................................................14
  X. Appendix C--May 4, 2006 Memorandum From Attorney General Alberto 
     Gonzales........................................................17
 XI. Changes to Existing Law Made by the Bill, as Reported...........20

 I. Background and Purpose of the Security From Political Interference 
                         in Justice Act of 2007


  A. RULES GOVERNING CONTACT BETWEEN DEPARTMENT OF JUSTICE AND WHITE 
                            HOUSE OFFICIALS

    The effectiveness and integrity of the administration of 
justice depends upon the Department of Justice (the Department) 
operating free of political interference. The most dangerous 
potential source of such interference is the White House.
    In order to minimize the likelihood of improper White House 
interference in the Department's affairs, the executive branch 
has, since at least 1993, regulated contact between Department 
and White House officials related to pending investigations and 
cases. Between May, 1993 and April, 2002, seven people at the 
Department and the White House were permitted to have initial 
communications regarding pending investigations and cases: the 
President, Vice President, White House Counsel, Deputy White 
House Counsel, Attorney General, Deputy Attorney General, and 
Associate Attorney General. If continuing contact was required 
on a particular matter, the White House Counsel's Office and 
the senior Department official involved in the matter were 
required to design a process for (and monitor) that continuing 
contact. This policy did not apply to communications regarding 
matters of policy, appointments, legislation, budgets, public 
relations and ``other similar matters.'' It also envisioned 
periodic communications between the White House Counsel's 
Office and the Office of Legal Counsel on matters in which the 
White House sought a legal opinion as well as White House 
contact with the Solicitor General's Office regarding appellate 
litigation. This policy was memorialized in a September 29, 
1994 letter from Attorney General Janet Reno to White House 
Counsel Lloyd Cutler. (Appendix A).
    On April 15, 2002, Attorney General John Ashcroft issued a 
memorandum while Alberto Gonzales was White House Counsel 
(published in the Department's Organization and Functions 
Manual as Rule 32) altering the above-referenced policy. 
(Appendix B). The new policy stated:

    Except with respect to national security matters, all 
initial communications that concern or may concern a pending 
criminal investigation or a criminal case pending at the trial 
level should take place only between the Office of the Deputy 
Attorney General and the Office of the Counsel to the 
President. . . . Staff members of the Office of the Attorney 
General, if so designated by the Attorney General, may 
communicate directly with officials and staff of the Office of 
the President, Office of the Vice President, Office of the 
Counsel to the President, the National Security Council, and 
the Office of Homeland Security.

    By adding the Offices of the Attorney General, Deputy 
Attorney General, President, Vice President, White House 
Counsel, National Security Council, and Homeland Security, in 
their entireties, this new policy permitted at least 417 people 
in the White House to communicate with at least 42 people at 
the Department on non-national security related matters.
    On May 4, 2006, Attorney General Alberto Gonzales issued a 
memorandum altering the policy again. (Appendix C). The new 
policy added, inter alia, the Chief of Staff and Counsel to the 
Vice President and staff of the Office of Management and Budget 
to the list of those permitted to communicate with staff in the 
Office of the Attorney General regarding pending investigations 
and cases. The new, and still current, policy permits at least 
895 people in the executive branch to communicate with at least 
42 people at the Department on non-national security related 
matters. The Organization and Functions Manual was never 
updated to reflect this new policy.

                       B. CONGRESSIONAL OVERSIGHT

    On April 19, 2007, the Senate Judiciary Committee held a 
hearing titled ``Department of Justice Oversight,'' with 
Attorney General Alberto Gonzales appearing as the sole 
witness.
    Senator Sheldon Whitehouse asked Mr. Gonzales about the 
changed policy regarding contact between the Department and the 
White House (Senator Whitehouse referred to the memorandum 
issued on April 15, 2002 because the most recent, and extant, 
memorandum was not publicly available):

    Senator Whitehouse. What possible interest in the 
administration of justice is there to kick the portal so wide 
open that this many people now can engage directly about 
criminal cases and matters, compared to before?
    Mr. Gonzales. Senator, I think you've raised a good point 
here, one that I was concerned about at the [White House] 
counsel's office and I remain concerned as Attorney General, in 
terms of making sure that communications from the White House 
and the Department of Justice remain in the appropriate 
channels.
    I do recall being concerned about that as White House 
counsel.
    Senator Whitehouse. Quite a pronounced change, isn't it? . 
. .
    Mr. Gonzales. Senator, let me say this. I am not aware that 
there are initial contacts between the White House and the 
Department of Justice as an initial matter with respect to 
specific criminal cases.
    Or if there are--let me put it this way: I don't think 
there should be. I think it's very, very important--I agree 
with you. It is important to try to limit the communications 
about specific criminal cases between the counsel's office and 
the Department of Justice.
    Senator Whitehouse. But when I see the rules opened this 
much, it makes me wonder to what extent this safeguard is 
considered significant in this administration.

    Attorney General Gonzales did not inform Senator Whitehouse 
at this oversight hearing that the April 15, 2002 policy was no 
longer in effect and had, in fact, been expanded.
    On June 29, 2007, the Senate Judiciary Committee held a 
hearing titled ``Oversight of the U.S. Department of Justice,'' 
with Attorney General Gonzales again appearing as the sole 
witness. During the period of time between this hearing and the 
above-referenced April 19 hearing, Senator Whitehouse became 
aware of the policy issued by Attorney General Gonzales on May 
4, 2006. Senator Whitehouse asked Attorney General Gonzales 
about the most recent policy change:

    Senator Whitehouse. Isn't the White House the number one 
locus of general concern that's persisted through many 
administrations as to where political influence coming into the 
Department of Justice improperly is going to come from?
    Mr. Gonzales. Obviously, that would be certainly a key 
source of concern.
    Senator Whitehouse. The key--the key, right?
    Mr. Gonzales. Probably the key source of concern.
    Senator Whitehouse. OK. And in response to that, as we 
discussed in the last hearing--I'd like to remind you there was 
the 1994 letter from Janet Reno to Lloyd Cutler.
    And in response to that concern, which we agree is a very 
real one, the letter announced--and I believe that the letter--
I wasn't here at the time, but I believe the letter was 
actually reduced to writing at the direction and instigation of 
then-Judiciary Chairman Orrin Hatch, who saw this as a 
significant concern.
    And the letter said this: ``Initial communications between 
the White House and the Justice Department regarding any 
pending department investigation or criminal or civil case 
should involve only the White House counsel or deputy counsel 
(or the president or vice president) and the attorney general 
or deputy or associate attorney general''--seven people.
    As you'll recall, I showed you a graph of what had been 
done since.
    And in response to that, you seemed to agree that I had a 
somewhat legitimate concern that I was pursuing. You said--and 
this is from your transcript--``I remain concerned as attorney 
general in terms of making sure that communications from the 
White House and the Department of Justice remain in the 
appropriate channels.''
    You further said, ``I agree with you, it is important to 
you to try to limit the communications about specific criminal 
cases between the counsel's office and the Department of 
Justice.''
    You specifically said, ``I think the safeguards that you're 
referring to I think are very, very important.''
    And then you said, ``I, like you, am concerned about the 
level of contacts in ensuring that the communications from the 
White House and the Department of Justice occur at the 
appropriate--within the appropriate channels.''
    Mr. Gonzales. Channels.
    Senator Whitehouse. Now, I then showed you the letter that 
Attorney General--the memorandum that Attorney General Ashcroft 
prepared. And that's the document that, sort of, kicked open 
the door from seven to hundreds of people to be involved and 
have discussions about ongoing criminal/civil investigative 
matters. And that's what led to our discussion about all of 
this.
    Now, you've had some time to think about this. You've 
indicated desire to clean up the mess at the department. I 
would like to bring to your attention a May 4th, 2006, 
memorandum that is a subsequent document to the Ashcroft 
memorandum. This one is signed by you.
    Here's what concerns me. In the Ashcroft memorandum, which 
was a subject of concern before, at the very, very end of the 
Ashcroft memorandum, as you'll remember, there was that 
paragraph under asterisks that changes the whole memorandum in 
front of it.
    It says, ``Notwithstanding any procedures, limitations set 
forth above, the attorney general may communicate directly with 
the president, vice president, counsel to the president, 
assistant to the president for national security affairs, and 
various others.'' And then it provides who the staff members 
can consult with: ``directly with officials and staff of the 
Office of President, Office of the Vice President, Office of 
the Counsel to the president, National Security Council'' and 
so forth.
    Now, I took the position that that was pretty much kicking 
down a very important door that had protected the department 
from political influence, but I see in your May 4th, 2006, 
memorandum a number of things that concern me even more.
    The first is at the bottom of the first page where there is 
an asterisked footnote, which says at the bottom, ``For 
convenience, the executive functions of the vice presidency are 
referred to in this document as the Office of the Vice 
President or OVP, and the provisions of this memorandum that 
apply with respect to communications with the EOP''--Executive 
Office of the President, I assume that is--``will apply in 
parallel fashion to communications with the Office of the Vice 
President.''
    Let me ask you first, what on Earth business does the 
Office of the Vice President have in the internal workings of 
the Department of Justice with respect to criminal 
investigations, civil investigations, ongoing matters?
    Mr. Gonzales. As a general matter, I would say that that's 
a good question.
    Senator Whitehouse. Why is it here then?
    Mr. Gonzales. I'd have to go back and look at this.
    Senator Whitehouse. I'd like to know where this came from 
and how that addition was made.
    Then, if you look at the very back, the very last 
paragraph, once again there's a final paragraph set off by 
asterisks that pretty much undercuts everything that was said 
in the previous enumerated paragraphs.
    And here, you can see the difference. It's almost identical 
with the previous memorandum, only it adds some things: 
``Notwithstanding any procedure or limitations set forth above, 
the attorney general may communicate directly with the 
president, vice president''--so far, same as the Ashcroft 
memorandum. Then you add, ``their chiefs of staff, counsel to 
the president,'' then you add ``or vice president.''
    Somebody took the trouble to write in ``counsel to the vice 
president'' and provide that individual access to ongoing 
criminal investigations, ongoing civil investigations and 
ongoing other investigative matters.
    Mr. Gonzales. Which--I don't know whether or not that, in 
fact, has happened, so I want to--I want to (inaudible) . . .
    Senator Whitehouse. Part of what we do around here is to 
prevent things from happening.
    Mr. Gonzales. Exactly, exactly.
    Senator Whitehouse. And when you kick down doors, you 
invite people to do it whether or not it's been done.
    Mr. Gonzales. And I agree.
    Senator Whitehouse. OK.
    Mr. Gonzales. And on its face, I must say, sitting here, 
I'm troubled by this.
    Senator Whitehouse. Yes.
    Mr. Gonzales. I will say . . .
    Senator Whitehouse. And if you can continue--just let me 
finish, because we're not done with the paragraph.
    Mr. Gonzales. All right.
    Senator Whitehouse. If you go further on down, what was the 
staff of the Office of the President has become the staff of 
the White House Office and the entire Office of Management and 
Budget has been thrown in.
    So you come here today with, I think, to put it mildly, 
highly diminished credibility, asserting to us that you want to 
bring--to restore the Department of Justice.
    And yet here, where there is something that you could do 
about it, since our past discussion, nothing has been done, the 
memo that has your signature makes it worse, and we've agreed 
that this connection between the White House and the Department 
of Justice is the most dangerous one from a point of view of 
the potential for the infiltration of political influence into 
the department.
    How, in the light of all those facts, can I give you any 
credibility for being serious about the promises you've made 
that you intend to clean up the mess you've made?
    Mr. Gonzales. Well, because we have taken--I've taken 
several steps to clean up, to address some of the mistakes that 
have been made, Senator.
    I can say that I have directed my staff to try to 
understand what happened with respect to the Ashcroft memo, 
what was the genesis of it. And in fact, we went back and 
talked to a former member of the Ashcroft leadership team to 
understand what was the basis of the change. What caused this 
to happen? And so we have been looking at this issue because I 
am concerned about it.
    And with respect to this memo, quite frankly, I'd have to 
look at it. And I would be concerned about inappropriate access 
to ongoing investigations. And it's something that--if that's 
encouraged by this kind of memorandum, I think it's something 
that we ought to rethink.

    C. REPORTING REQUIREMENTS AS AN ESSENTIAL TOOL OF CONGRESSIONAL 
                               OVERSIGHT

    Congress has a compelling interest in protecting the 
Department of Justice from undue political interference and in 
conducting vigorous oversight of the executive branch. One of 
the most common, and effective, tools of Congressional 
oversight is to require the executive branch to produce reports 
to Congress. Indeed, the Department is currently responsible 
for more than 100 statutorily mandated reports to Congress on 
issues as varied as the administration of the Dispute 
Resolution Act (Pub. L. 96-160) and the joint United States-
Canada Alternative Inspections Project (Pub. L. 107-173). The 
White House is responsible for more than 600 statutorily 
mandated reports to Congress. See ``Reports To Be Made To 
Congress, Communication from the Clerk of the U.S. House of 
Representatives,'' House Document 108-188.
    The Security from Political Interference in Justice Act of 
2007 would create a simple reporting requirement: the 
Department and the White House would be required to make 
separate, semi-annual reports to the House and Senate Judiciary 
Committees detailing which Department and which White House 
personnel had communications regarding ongoing Department 
investigations or cases. The reporting requirement would not 
apply to the President, Vice President, White House Counsel, 
Deputy White House Counsel, Attorney General, Deputy Attorney 
General, or Associate Attorney General. Furthermore, it would 
not apply to communications relating to policy, appointments, 
legislation, rulemaking, budgets, public relations, 
programmatic matters, intergovernmental relations, 
administrative or personnel matters, appellate litigation, or 
requests for legal advice. The bill would place no restriction 
on which personnel in either the White House or the Department 
may have such communications.

          II. History of the Bill and Committee Consideration


                      A. INTRODUCTION OF THE BILL

    Senator Whitehouse introduced S. 1845 on July 23, 2007, 
joined by Chairman Leahy. The bill was referred to the 
Committee on the Judiciary.

                       B. COMMITTEE CONSIDERATION

    The bill was considered by the Committee on the Judiciary 
on September 20, 2007. During committee consideration, Senator 
Cornyn requested to be added as a cosponsor of the measure.
    After discussions with the offices of Senators Leahy, 
Hatch, and Cornyn, Senator Whitehouse introduced an amendment 
in the nature of a substitute. In addition to a minor change 
meant to clarify that the bill does not apply to contacts 
regarding appellate litigation, the substitute amendment 
deleted language prohibiting non-covered officers from engaging 
in ``covered communication.''
    Instead, as discussed above, the substitute amendment 
requires the Department and the White House to produce 
separate, semi-annual reports to the House and Senate Judiciary 
Committees detailing which Department and White House personnel 
had communications regarding ongoing Department investigations 
or cases. The reporting requirement would not apply to the 
President, Vice President, White House Counsel, Deputy White 
House Counsel, Attorney General, Deputy Attorney General, or 
Associate Attorney General. Furthermore, it would not apply to 
communications relating to policy, appointments, legislation, 
rulemaking, budgets, public relations, programmatic matters, 
intergovernmental relations, administrative or personnel 
matters, appellate litigation, or requests for legal advice. 
The bill would place no restriction on which personnel in 
either the White House or the Department may have such 
contacts.
    The substitute amendment was accepted by a voice vote.
    The Judiciary Committee then reported the Security from 
Political Interference in Justice Act of 2007, with an 
amendment in the nature of a substitute, to be reported 
favorably to the full Senate, with a recommendation that the 
bill do pass. The committee proceeded by roll call vote.
    The vote record is as follows:
    Tally: 14 Yeas, 2 Nays
    Yeas (14): Leahy (D-VT), Specter (R-PA), Kennedy (D-MA), 
Hatch (R-UT), Biden (D-DE), Grassley (R-IA), Kohl (D-WI), 
Feinstein (D-CA), Feingold (D-WI), Schumer (D-NY), Durbin (D-
NY), Cornyn (R-TX), Cardin (D-MD), Whitehouse (D-RI)
    Nays (2): Kyl (R-AZ), Coburn (R-OK)

        III. Section-by-Section Summary of the Bill, as Reported


Section 1. Short title

    Title: ``The Security from Political Interference in 
Justice Act of 2007''

Sec. 2. Definitions

    This section defines a ``covered communication'' as any 
communication relating to an ongoing investigation conducted by 
the Department of Justice in any civil or criminal matter 
(regardless of whether a civil action or criminal indictment or 
information has been filed). The definition of a ``covered 
communication'' specifically excludes communications relating 
to policy, appointments, legislation, rulemaking, budgets, 
public relations, programmatic matters, intergovernmental 
relations, administrative or personnel matters, appellate 
litigation, or requests for legal advice.
    This section also defines a ``covered Department of Justice 
officer'' as the Attorney General, Deputy Attorney General, and 
Associate Attorney General. It defines a ``covered White House 
officer'' as the President, Vice President, Counsel to the 
President, and Counselor to the President. The definitions of 
covered officers mirror the officials named in the above-
referenced September 1994 letter from Attorney General Reno to 
White House Counsel Cutler.

Sec. 3. Reports to Congress

    This section would require the Department and the White 
House to make separate, semi-annual reports to the House and 
Senate Judiciary Committees detailing which Department and 
which White House personnel had communications regarding 
ongoing Department investigations or cases. Covered Department 
and White House officers, as defined in Section 2, need not be 
included in the reports.

             IV. Congressional Budget Office Cost Estimate

    The Committee on the Judiciary sets forth, with respect to 
the bill, S. 1845, the following estimate prepared by the 
Director of the Congressional Budget Office under section 402 
of the Congressional Budget Act of 1974:

                                                September 27, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1845, the Security 
from Political Interference in Justice Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Leigh Angres.
            Sincerely,
                                           Peter R. Orszag,
                                                          Director.
    Enclosure.

S. 1845--Security From Political Interference in Justice Act of 2007

    S. 1845 would require biannual reports on communications 
between White House and Department of Justice (DOJ) employees 
regarding ongoing civil or criminal matters. Under the bill, 
the White House and DOJ would report to the Congress the names 
of its employees who engaged in those communications. The bill 
would provide a reporting exemption for communications between 
officials specified in the bill. Those officials would include 
the attorney general, deputy attorney general, and the 
associate attorney general within DOJ, and the President, Vice 
President, White House counsel, and counselor to the President.
    CBO estimates that the cost of implementing S. 1845 would 
be insignificant. Any such spending would be subject to the 
availability of appropriated funds. Enacting the legislation 
would not affect direct spending or revenues.
    S. 1845 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Leigh Angres. 
This estimate was approved by Peter H. Fontaine, Assistant 
Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee on the Judiciary finds that no 
significant regulatory impact will result from the enactment of 
S. 1845.

                             VI. Conclusion

    The Security from Political Interference in Justice Act of 
2007, S. 1845, applies a fundamental tool of Congressional 
oversight--the reporting requirement--to the issue of 
communications between the Department and the White House 
regarding pending investigations and cases. The legislation 
would not regulate in any way who may have such communications. 
However, through its reporting mechanism, it would provide the 
Congress, and the public, with a clear sense of the degree to 
which the White House is involved in the administration of 
justice.

                   VII. Minority Views of Senator Kyl

    This bill is very likely unnecessary. Members of this 
committee have been reliably informed that the Justice 
Department's policies regulating intra-executive communications 
about criminal investigations are currently under review. 
Moreover, the Senate is about to confirm a new U.S. Attorney 
General. Some might think it wise that, before imposing another 
burdensome and potentially problematic reporting requirement on 
the Justice Department, this committee allow the new Attorney 
General an opportunity to complete the current policy review 
and to implement new policies.
    Recognizing, however, that the absence of a need for 
legislation is rarely regarded as grounds for delaying its 
progress, I will emphasize one change that must be made to this 
bill before it is allowed to proceed to the floor. The bill 
requires reporting on some potentially very sensitive 
communications--communications whose public disclosure could 
compromise very important national-security and criminal 
investigations. For example, if a United States Attorney in a 
rural district is investigating a potential crime of terrorism 
and communicates with the NSA, public disclosure of the fact of 
that communication may very well alert those who are the 
subject of the investigation that they are under surveillance. 
Similarly, public disclosure of the existence of communications 
between the Justice Department's public-integrity section and 
the staff of one of the smaller components of the Executive 
Office of the President also poses a serious risk of 
compromising an ongoing investigation.
    This bill at the very least needs to be amended to mandate 
that the reports that it requires to be submitted to Congress 
be made confidential. It is not enough that the relevant 
committees can choose not to disclose the contents of the 
reports. Whether to reveal the facts of these communications 
and to potentially compromise ongoing investigations should not 
be a matter of legislative discretion. If Congress is to 
receive reports about these communications, it must not make 
the contents of those reports public.
    I would reiterate, however, that this bill is very unlikely 
unnecessary. This committee has in recent years required a 
large number of new reports to be prepared by the Justice 
Department. The recent reauthorization of the USA Patriot Act, 
Public Law 109-177, for example, has probably set the record 
for the greatest number of new reports required in a single 
bill. It is no secret that a large number of these reports are 
never read by the committees who mandate their production. And 
it should be obvious that the more resources that the Justice 
Department is forced to devote to these reports, the fewer that 
it may allocate to its core mission of investigating acts of 
terrorism and prosecuting federal offenses. I would propose 
that before we unnecessarily add to this reporting burden 
through this bill, we at least allow the new Attorney General 
an opportunity to review and revise the current policies.

                                                           Jon Kyl.

                            VIII. Appendix A

                                                September 29, 1994.
Lloyd N. Cutler, Esq.
Special Counsel to the President, The White House,
Washington, DC.
    Dear Mr. Cutler: You have asked for my views on the subject 
of communications between the Department of Justice and the 
White House concerning matters pending in the Department. These 
are the principles and procedures I think we should follow.
    In order to ensure the President's ability to perform his 
Constitutional obligation to ``take care that the laws be 
faithfully executed,'' the Justice Department will advise the 
White House concerning pending civil or criminal law 
enforcement matters, where important for the performance of the 
President's duties and where appropriate from a law enforcement 
perspective. Consistent with this principle, since May 1993 the 
Department has followed procedural rules governing 
communications with the White House concerning pending 
Department investigations or criminal or civil cases. Initial 
communications between the White House and the Justice 
Department regarding any pending Department investigation or 
criminal or civil case should involve only the White House 
Counselor, Deputy Counsel (or the President or Vice President), 
and the Attorney General or Deputy or Associate Attorney 
General. If continuing contact is required on a particular 
matter, the White House Counsel's Office and the senior 
Department official with whom it is dealing design and monitor 
that continuing contact.
    This process does not apply to communications regarding 
matters of policy, appointments, legislation, budgets, public 
relations and other similar matters, as to which the White 
House staff should deal with whomever is appropriate in the 
Department. In addition, from time to time the Department 
establishes specific procedures for communications between 
particular entities. For example, the White House Counsel's 
Office deals directly with the Office of Legal Counsel on 
matters in which it is seeking the opinion of the Department, 
and directly with the Office of the Solicitor General regarding 
the status of supreme court cases. Particularized procedures 
have also been applied to communications with the Pardon 
Attorney and the National Security Council.
            Sincerely,
                                                        Janet Reno.

                             IX. Appendix B

                                                    April 15, 2002.

    MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS AND UNITED STATES 
                               ATTORNEYS

From: The Attorney General
Subject: Department of Justice Communications with the White House
    It is imperative that there be public confidence that the 
laws of the United States are administered and enforced in an 
impartial manner. To that end, all components of the Department 
of Justice, including United States Attorneys' Offices, shall 
abide by the following procedures governing communication 
between the Department of Justice and the White House.

              1. PENDING CRIMINAL INVESTIGATIONS AND CASES

    The Department shall provide the White House with 
information about pending criminal investigations or cases only 
when doing so is important for the performance of the 
President's duties and appropriate from a law enforcement 
perspective. Except with respect to national security matters, 
all initial communications that concern or may concern a 
pending criminal investigation or a criminal case pending at 
the trial level should take place only between the Office of 
the Deputy Attorney General and the Office of the Counsel to 
the President, and all initial communications that concern or 
may concern a criminal case pending at the appellate level 
should take place only between the Office of the Counsel to the 
President and either the Office of the Deputy Attorney General 
or the Office of the Solicitor General. If appropriate with 
regard to a particular case or investigation, the Office of the 
Counsel to the President and the senior Justice Department 
official with whom the White House is dealing will design and 
monitor a process for ongoing contact between the White House 
and Justice Department concerning that particular matter.

               2. PENDING CIVIL INVESTIGATIONS AND CASES

    The Department shall provide the White House with 
information about pending civil investigations or cases only 
when doing so is important for the performance of the 
President's duties and appropriate from a law enforcement or 
litigation perspective. Except with respect to national 
security matters, all initial communications that concern or 
may concern a pending civil investigation or a case pending at 
the trial level should take place only between the Office of 
the Counsel to the President and either the Office of the 
Deputy Attorney General or the Office of the Associate Attorney 
General. All initial communications that concern or may concern 
a civil case pending at the appellate level should take place 
only between the Office of the Counsel to the President and the 
Office of the Deputy Attorney General, the Office of the 
Associate Attorney General, or the Office of the Solicitor 
General. If appropriate with regard to a particular case or 
investigation, the Office of the Counsel to the President and 
the senior Justice Department official with whom the White 
House is dealing will design and monitor a process for ongoing 
contact between the White House and the Justice Department 
concerning that particular matter.

                      3. NATIONAL SECURITY MATTERS

    The Office of the Deputy Attorney General may communicate 
directly with the National Security Council and the Office of 
Homeland Security concerning investigations and cases involving 
national security issues. Pursuant to Department of Justice 
policies and procedures, the Criminal Division and the FBI also 
may communicate directly with the National Security Council and 
the Office of Homeland Security concerning investigations and 
cases involving national security issues. Such communications 
should be limited to those aspects of the matter that implicate 
national security or homeland security.

                4. WHITE HOUSE REQUESTS FOR LEGAL ADVICE

    The Office of Legal Counsel and the Office of the Counsel 
to the President may communicate directly concerning requests 
from the White House for legal advice. All requests for formal 
legal opinions from the Department of Justice shall be directed 
to the Assistant Attorney General for the Office of Legal 
Counsel or the Attorney General.

                    5. PRESIDENTIAL CLEMENCY MATTERS

    The Office of the Pardon Attorney and the Office of the 
Counsel to the President may communicate directly concerning 
Presidential clemency matters.

   6. OTHER COMMUNICATIONS NOT RELATING TO PENDING INVESTIGATIONS OR 
                        CRIMINAL OR CIVIL CASES

    All communications between the Department of Justice and 
the White House that are limited to policy, legislation, 
budgeting, appointments, public affairs, intergovernmental 
relations, administrative or personnel matters or similar 
matters that do not relate to a pending investigation or a 
criminal or civil case, may be handled directly by the parties 
concerned. As a general matter, such communications should take 
place with the knowledge of the Department's lead contact 
regarding the subject under discussion.

           *       *       *       *       *       *       *

    Notwithstanding any procedures or limitations set forth 
above, the Attorney General may communicate directly with the 
President, Vice President, Counsel to the President, Assistant 
to the President for National Security Affairs, or Assistant to 
the President for Homeland Security regarding any matters 
within the jurisdiction of the Department of Justice. Staff 
members of the Office of the Attorney General, if so designated 
by the Attorney General, may communicate directly with 
officials and staff of the Office of the President, Office of 
the Vice President, Office of the Counsel to the President, the 
National Security Council, and the Office of Homeland Security.

                             X. Appendix C

                                                       May 4, 2006.

    MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS AND UNITED STATES 
                               ATTORNEYS

From: The Attorney General
Subject: Communications with the Executive Office of the President
    Four years ago, Attorney General Ashcroft issued a 
memorandum outlining the procedures that govern communications 
between the Department of Justice and the White House. I write 
today to reiterate those procedures (with some minor revisions 
and clarifications) in order to ensure that new personnel are 
aware of these rules and to remind everyone of their 
importance. It is imperative that there be public confidence 
that the laws of the United States are administered and 
enforced in an impartial manner. I ask that all components of 
the Department of Justice, including Federal Law enforcement 
agencies and the United States Attorneys' Offices, abide by the 
following procedures on communications between the Department 
and the Executive Office of the President (EOP).\*\
---------------------------------------------------------------------------
    \ *\As used in this memorandum, the term ``EOP'' means the White 
House Office, the Office of Policy Development, the Executive 
Residence, the Office of Administration, the National Security Council 
staff: the Homeland Security Council Staff, the Council of Economic 
Advisers, the Office of Management and Budget, the Office of National 
Drug Control Policy, the Office of Science and Technology Policy, the 
Office of the U.S. Trade Representative, the Council on Environmental 
Quality, the President's Foreign Intelligence Advisory Board, and the 
Privacy and Civil Liberties Oversight Board. For convenience, the 
executive functions of the Vice Presidency are referred to in this 
document as the ``Office of the Vice President'' or ``OVP,'' and the 
provisions of this memorandum that apply with respect to communications 
with the EOP will apply in parallel fashion to communications with the 
OVP.
---------------------------------------------------------------------------

                  1. CRIMINAL INVESTIGATIONS AND CASES

    The Department shall provide EOP officials and staff with 
information about a criminal investigation or case only when 
doing so is important for the performance of the President's 
duties and appropriate from a law enforcement perspective. 
Except with respect to national security matters, all initial 
communications that concern or may concern such an 
investigation or case pending at the trial level should take 
place only between the Office of the Counsel to the President 
and the Office of the Deputy Attorney General (ODAG), and all 
initial communications that concern or may concern a criminal 
case pending at the appellate level should take place only 
between the Office of the Counsel to the President and either 
ODAG or the Office of the Solicitor General (OSG). If 
appropriate with regard to a particular case or investigation, 
the Office of the Counsel to the President and the senior 
Justice Department official with whom the EOP is dealing will 
design and monitor a process for ongoing contact between staff 
at the EOP and the Justice Department concerning that 
particular matter.

                   2. CIVIL INVESTIGATIONS AND CASES

    The Department shall provide EOP officials and staff with 
information about a civil investigation or case only when doing 
so is important for the performance of the President's duties 
and appropriate from a law enforcement and litigation 
perspective. Except with respect to national security matters, 
all initial communications that concern or may concern such an 
investigation or case pending at the trial level should take 
place only between the Office of the Counsel to the President 
and either ODAG or the Office of the Associate Attorney General 
(OASG). All initial communications that concern or may concern 
a civil case pending at the appellate level should take place 
only between the Office of the Counsel to the President and 
ODAG, OASG, or OSG. If appropriate with regard to a particular 
case or investigation, the Office of the Counsel to the 
President and the senior Justice Department official with whom 
the EOP is dealing will design and monitor a process for 
ongoing contact between staff at the EOP and the Justice 
Department concerning that particular matter.

           3. NATIONAL SECURITY AND HOMELAND SECURITY MATTERS

    ODAG may communicate directly with the National Security 
Council (NSC) and the Homeland Security Council (HSC) 
concerning investigations and cases involving national security 
or homeland security, and OASG may do so with respect to any 
such investigation or case that has become the subject of civil 
litigation. If appropriate with regard to a particular case or 
investigation, ODAG will design and monitor a process for 
ongoing contact between staff at the NSC or HSC and the Justice 
Department concerning that particular matter.

                      4. REQUESTS FOR LEGAL ADVICE

    The Office of Legal Counsel (OLC) may communicate directly 
with counsel for each component within the EOP (including, for 
example, the: Office of the Counsel to the President or the 
General Counsel of the Office of Management and Budget) 
concerning requests for legal advice. It may be advisable to 
copy an appropriate attorney from the Office of the Counsel to 
the President on communications with other EOP components. All 
requests for formal legal opinions from the Department of 
Justice shall be directed to the Attorney General or the 
Assistant Attorney General for OLC.

                    5. PRESIDENTIAL CLEMENCY MATTERS

    The Office of the Pardon Attorney may communicate directly 
with the Counsel to the President and the Deputy Counsel to the 
President (and their designee) concerning Presidential clemency 
matters.

 6. OTHER COMMUNICATIONS NOT RELATING TO INVESTIGATIONS OR CRIMINAL OR 
                              CIVIL CASES

    All communications between the Department of Justice and 
the EOP that are limited to policy, legislation, budgeting, 
appointments, public affairs, intergovernmental relations, 
administrative or personnel matters, or similar matters that do 
not relate to an investigation or a criminal or civil case may 
be handled directly by the parties concerned. Such 
communications should take place with the knowledge of the 
Department's lead contact regarding the subject under 
discussion.

           *       *       *       *       *       *       *

    Notwithstanding any procedures or limitations set forth 
above, the Attorney General may communicate directly with the 
President, Vice President, their Chiefs of Staff, Counsel to 
the President or Vice President, Assistant to the President for 
National Security Affairs, Assistant to the President and 
Homeland Security Advisor, or the head of any office within the 
EOP regarding any matter within the jurisdiction of the 
Department of Justice. Staff members of the Office of the 
Attorney General, if so designated by the Attorney General, may 
communicate directly with officials and staff of the White 
House Office, the Office of the Vice President, the National 
Security Council, the Homeland Security Council, and the Office 
of Management and Budget.

       XI. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 1845, as reported, are shown as follows (new matter is 
printed in italic):
    In the appropriate place, insert:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Security from Political 
Interference in Justice Act of 2007.''

SEC. 2. DEFINITIONS.

    In this Act--
          (1) the term ``covered communication''--
                  (A) means any communication relating to an 
                ongoing investigation conducted by the 
                Department of Justice in any civil or criminal 
                matter (regardless of whether a civil action or 
                criminal indictment or information has been 
                filed); and
                  (B) does not include any communication 
                relating to policy, appointments, legislation, 
                rulemaking, budgets, public relations, 
                programmatic matters, intergovernmental 
                relations, administrative or personnel matters, 
                appellate litigation, or requests for legal 
                advice;
          (2) the term ``covered Department of Justice 
        officer'' means--
                  (A) the Attorney General;
                  (B) the Deputy Attorney General; and
                  (C) the Associate Attorney General; and
          (3) the term ``covered White House officer'' means--
                  (A) the President;
                  (B) the Vice President;
                  (C) the Counsel to the President; and
                  (D) the Counselor to the President.

SEC. 3. REPORTS TO CONGRESS.

    (a) Department of Justice Report.--Not later than 30 days 
after each January 1 and July 1 of each calendar year, the 
Attorney General shall submit to the Committee on the Judiciary 
of the Senate and the Committee on the Judiciary of the House 
of Representatives a report with the name and title of each 
officer or employee of the Department of Justice who made a 
covered communication during the 6-month period preceding that 
January 1 or July 1 with any officer or employee of the 
Executive Office of the President. The report need not include 
any covered Department of Justice officer.
    (b) White House Report.--Not later than 30 days after each 
January 1 and July 1 of each calendar year, the Counsel to the 
President shall submit to the Committee on the Judiciary of the 
Senate and the Committee on the Judiciary of the House of 
Representatives a report with the name and title of each 
officer or employee of the Executive Office of the President 
who made a covered communication during the 6-month period 
preceding that January 1 or July 1 with any officer or employee 
of the Department of Justice. The report need not include any 
covered White House Officer.