[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
COMMITTEE DEPOSITION AUTHORITY
=======================================================================
HEARING
before the
COMMITTEE ON RULES
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
on
H. RES. 836
GRANTING THE AUTHORITY PROVIDED UNDER CLAUSE 4(c)(3) OF RULE X OF THE
RULES OF THE HOUSE OF REPRESENTATIVES TO THE COMMITTEE ON EDUCATION AND
LABOR FOR PURPOSES OF ITS INVESTIGATION INTO THE DEATHS OF 9
INDIVIDUALS THAT OCCURRED AT THE CRANDALL CANYON MINE NEAR HUNTINGTON,
UTAH
__________
DECEMBER 5, 2007
__________
Printed for the use of the Committee on Rules
----------
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COMMITTEE ON RULES
LOUISE M. SLAUGHTER, New York, Chairwoman
JAMES P. McGOVERN, Massachusetts DAVID DREIER, California
ALCEE L. HASTINGS, Florida LINCOLN DIAZ-BALART, Florida
DORIS O. MATSUI, California DOC HASTINGS, Washington
DENNIS A. CARDOZA, California PETE SESSIONS, Texas
PETER WELCH, Vermont
KATHY CASTOR, Florida
MICHAEL A. ARCURI, New York
BETTY SUTTON, Ohio
Dan Turton, Staff Director
Hugh Nathanial Halpern, Minority Staff Director
C O N T E N T S
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December 5, 2007
Page
Opening statement of the Hon. Louise M. Slaughter, chairwoman of
the Committee on Rules......................................... 1
Opening statement of the Hon. David Dreier, ranking member of the
Committee on Rules............................................. 2
Statement of:
Miller, Hon. George, a Representative in Congress from the
State of California [prepared statement p. 5].............. 3
McKeon, Hon. Howard, a Representative in Congress from the
State of California [prepared statement p. 10]............. 6
Halstead, T.J., Legislative Attorney for the Congressional
Research Service [prepared statement p. 23]................ 21
Additional Material Submitted for the Record:
Letter trom Jonathan L. Snare, Acting Solicitor of Labor..... 7
EMERGENCY MEETING ON H. RES. 836, GRANTING THE AUTHORITY PROVIDED UNDER
CLAUSE 4(c)(3) OF RULE X OF THE RULES OF THE HOUSE OF REPRESENTATIVES
TO THE COMMITTEE ON EDUCATION AND LABOR FOR PURPOSES OF ITS
INVESTIGATION INTO THE DEATHS OF 9 INDIVIDUALS THAT OCCURRED AT THE
CRANDALL CANYON MINE NEAR HUNTINGTON, UTAH
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WEDNESDAY, DECEMBER 5, 2007
House of Representatives,
Committee on Rules,
Washington, DC.
The committee met, pursuant to call, at 2:00 p.m. in room
H-313, The Capitol, Hon. Louise M. Slaughter [chairwoman of the
committee] presiding.
Present: Representatives Slaughter, McGovern, Hastings of
Florida, Matsui, Cardoza, Welch, Castor, Arcuri, Sutton,
Dreier, Hastings of Washington, and Sessions.
The Chairwoman. The Rules Committee will please come to
order.
We are here to consider H. Res. 836, Granting the Authority
Provided under clause 4(c)(3) of rule X of the Rules of the
House of Representatives to the Committee on Education and
Labor for Purposes of its Investigation into the Deaths of 9
Individuals that Occurred at the Crandall Canyon Mine near
Huntington, Utah.
On August 6 of this year, pillars in Utah's Crandall Canyon
Mine exploded and tragically killed six miners. The entire
Nation watched around the clock as rescuers made their best
effort to recover these six persons. Unfortunately, tragedy
struck again just 10 days later when three rescuers themselves
died in the midst of their heroic efforts.
The rescue effort ultimately was called off, and the mine
was closed. Although any mine rescue will be treacherous,
serious questions were raised about the rescue efforts of the
Labor Department's Mine Safety and Health Administration and
the mine owner, Murray Energy, and the safety of the mine
itself.
Since the mine accident, the Education and Labor Committee
has been engaged in exhaustive investigation into not only any
safety problems in the mine that were known to MSHA and Murray
Energy prior to the accident, but also the conduct of Murray
Energy and MSHA in attempting the rescue. The investigation has
consisted of countless staff interviews, document requests, a
subpoena and a hearing.
While the committee has attempted to obtain needed
information through voluntary interviews and document requests,
some individuals have indicated that they will not cooperate
voluntarily with the investigation. Whether such recalcitrance
was caused by the fear of retaliation or by the fear of self-
incrimination, it is hindering a legitimate congressional
investigation into all of the most recent of several mining
incidents.
This resolution provides the authority that the Education
Committee needs to uncover what happened and what needs to be
done to prevent future accidents.
House Resolution 836 would extend the authority that
already exist in the House rules and will permit the committee
to call witnesses for Member and staff depositions. It is
important to know that the deposition authority in H. Res. 836
is limited to the committee's investigation of the mine deaths
at Crandall Canyon Mine. It does not extend to any other
investigation or even any accident in any other mine.
In addition, the minority members of staff must be afforded
equitable treatment with respect to notice and participation in
any depositions. These are just a few of the many provisions in
the authority that protect the rights and prerogatives of the
Members. Just a few hours ago, the Education Committee adopted
deposition rules in anticipation of H. Res. 836 passing the
House. The committee rules provide significant protections to
the committee members and witnesses called for depositions.
I ask that during their testimony Chairman Miller and
Ranking Member McKeon describe for us these precautions,
protections and how they will differ from past deposition
rules. I believe that the resolution and the committee rules
provide a reasonable tool for the continuation of the Crandall
Canyon Mine investigation.
It is my understanding that the Education Committee's
ranking member has been involved closely in the development of
the resolution and the rule and that many, if not all of his
concerns have been addressed.
I hope that this committee and the House will approve the
resolution so that the investigation can continue and that the
truth of Crandall Canyon can be uncovered and that the
information obtained can be used to prevent future mine
accidents.
I now recognize Mr. Dreier for an opening statement.
Mr. Dreier. Thank you very much, Madam Chairman.
As I listen to your very thoughtful opening remarks, I am
of course brought, as we all are, back to those days in August.
In many ways it seems like it is a long time ago. It is hard to
believe it was just 3 months ago. I can remember vividly
sitting up late, as we all do, when disasters like this hit and
there are people whose lives are threatened, who are waiting
and watching these reports that were coming from the Crandall
Canyon Mine disaster.
I do think that it is essential that everything that
possibly can be done to ensure that what we faced then never
happens again. This is not a first. This has obviously happened
repeatedly. I remember when our former Rules Committee
colleague, Mrs. Capito, was dealing just a few years ago with
the tragic loss of life there. I remember what a roller coaster
ride that was when they came that night, do you remember, and
said that everyone was safe, and, then, of course they got the
reverse before long.
I can't say how saddened I am to having thought about that
situation again. I want to express my condolences.
I will say that we are at the end of the day going to be
supportive of this effort, but I would like to raise a couple
of concerns that I have seen on this. We all know that this is
an extraordinary procedure that we are talking about here. I
just wrote down what you said in your opening remarks. You said
this already exists in House Rules.
It does exist in House Rules in that on the opening day
when we passed the rules package, which, not surprisingly, Mr.
McKeon and I and Mr. Hastings opposed for numerous reasons,
which we outlined at that point, one of those included
providing our California colleague, Mr. Waxman, with basically
blanket and extraordinary authority. In fact, Madam Chairman,
back in the 105th Congress you were a signatory to minority
views which described that as extraordinary.
I will say that I believe it very important that we move as
carefully as we possibly can. I think that Mr. McKeon will
probably point to the fact that while, as you said in your
remarks there, that there may be some people who, for one
reason or another, feel that they do not want to come forward,
subpoena authority does exist. I do believe that we have the
ability to glean the necessary information.
I also want to say that if you look at the package here in
dealing with the Education and Labor Committee, it is far
better than what you described as already existing in the House
rules, the package that was put into place on the opening day
of the 110th Congress. I wish very much that the model that has
been put forward for Chairman Miller and Mr. McKeon would have
been the model utilized for Mr. Waxman's committee.
In closing, I would simply say, Madam Chairman, that this
is the first original jurisdiction hearing of the Rules
Committee for the 110th Congress. I hope very much that it
won't be the last as we proceed with the very important
jurisdiction which falls within the Rules Committee.
Thank you very much.
The Chairwoman. Thank you very much.
Let me call Mr. Miller, the Chair, and Ranking Member
McKeon to the table.
Mr. Miller, we would be happy to hear from you.
STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Miller. Thank you. Thank you for this hearing and for
the resolution.
Madam Chairman, you and Mr. Dreier have pointed out the
reason why we are here, the tragedy at Crandall Canyon Mine and
our obvious need to investigate what transpired there over a
considerable period of time from the approval of plans to the
accidents and the aftermath of the accidents. As you know, not
only were the miners killed, but then three who went in to
rescue them were killed in that process.
We believe that this authority is necessary to engage in
these depositions. A number of people we have talked to from
various aspects of this accident have indicated that they will
not cooperate for different reasons, and that is certainly
their right currently. But we believe that their testimony and
our ability to probe them is essential to the success of this
investigation.
Mr. McKeon said this morning, and you mentioned it, that
there is an investigation going on by MSHA, but MSHA itself--
its activities and responses are a part of that investigation,
so that this can't be left just to theirs. We have been
respectful of their investigation. We have pursued this
investigation parallel with theirs and others that have taken
place by the State of Utah and others, and we have worked
cooperatively with them.
But at this stage we believe that this authority is
necessary, and the resolution that you have under consideration
is obviously essential to our having the authority to do it in
this fashion.
It is unusual. There is no permanent rule for the
committees, as you pointed out. Authority was granted to
Government Reform but not to us, and that is obviously why we
are here.
This committee has sought that authority, I think, in the
past, when we were doing the Teamsters investigation a number
of years ago. That authority was given.
Mr. Dreier has noted that this is different than that
authority. In working with the Rules Committee, with Government
Reform, and with the minority on this, we have made some
changes.
We think that our rules now are reflecting the consensus
and cooperation that Members would receive 3 days notice before
the chairman issues the subpoenas, the chairman's rulings on
objections in the depositions are promulgated to the Members
before the ruling is implemented and can be overruled by the
full committee. Members are given an opportunity to object to
the introduction of deposition testimony into evidence before
the committee at such time that evidence is offered. The
Republicans are consulted before subpoena notice goes out.
Minority counsel is given a full opportunity to question the
deponents and participate in the depositions with the majority
counsel. For the deponent, they can bring personal counsel in
applicable cases, agency counsel or corporate counsel to advise
the deponent and respect the deponent's rights.
The deponents do not have to answer questions for which a
privileged objection is made. In the first instance, subject to
overruling that privilege, that objection by the committee, the
depositions are taken by counsel, not attorney staff, who are
able to consider, respect the deponent's constitutional rights
and of the privileges. As you know, you can't exercise
privileges before a congressional committee, but the
congressional committee has the authority to override them.
But we protect those rights, we protect the rights of the
majority and the minority with respect to notice participation
and rotating the ability to ask the questions, to go back and
forth in selected periods of time in that inquiry. So we think
it does meet the test of fairness and protection of the rights
of all parties to this. We recognize this is unusual authority,
but we clearly believe that it is necessary at this stage of
the investigation.
Thank you.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman, House Committee on
Education and Labor
Madam Chairwoman, thank you for the opportunity to speak with your
Committee today about H. Res. 836.
This resolution would grant authority to the Education and Labor
Committee to compel witnesses to appear for depositions in our ongoing
investigation into the tragic deaths of nine men at the Crandall Canyon
Mine in Utah in August 2007.
Six coal miners who were trapped in a collapse at the mine remain
entombed there. Three rescuers who made valiant efforts to reach the
trapped miners also paid with their lives.
Given the seriousness of this disaster, it clearly warrants a full
and independent investigation.
Although the federal Mine Safety and Health Administration has
begun its own investigation, the agency simply cannot be entrusted with
this responsibility.
That is why, soon after the tragedy, I began a Committee
investigation into the circumstances leading up to, during, and
following the collapse.
I believe that a mechanism for full and independent investigations
of mining tragedies must be enshrined into law. My committee has
already approved legislation that would do just that.
But now, in the absence of such a mechanism, it is essential that
Congress fully investigate what happened at Crandall Canyon.
In most investigations, a combination of documentary and
testimonial evidence provides the greatest insight. Our committee has
begun to receive documentary evidence, including emails and memoranda,
that have helped our work.
To conduct a thorough investigation, however, we also need to have
the ability to collect testimonial evidence.
We need to know who knew what, when they knew it, and how they came
to know it. We need to know about face-to-face meetings and telephone
conversations they had.
Emails and memos are important, but they will only tell a part of
the story. The technical aspects of mining plans, the mining plan
approval process, and other features specific to the mining industry
will require precise questioning in fully transcribed, bipartisan
deposition sessions.
While we would prefer that individuals come forward voluntarily to
supply the Committee with information, we believe this step is
necessary to ensure that we get the information we need from all
relevant witnesses, whether they volunteer the information or not.
And the seriousness of this matter requires that interviews be
conducted under oath, as they would be in a deposition.
I am pleased to say that, earlier today, the Education and Labor
Committee approved new bipartisan committee rules governing the use of
this deposition authority.
We developed these rules in close consultation with Senior
Republican Member McKeon and his staff. These rules will protect the
rights of the deponents and the rights of the minority.
The Committee's majority and minority staffs include attorneys
experienced in litigation, investigations, and House procedure. This
deposition authority will enable them to pursue this investigation as
effectively and efficiently as possible.
Madam Chairwoman, earlier this year my Committee heard from family
members of the miners and rescuers who died at Crandall. They want to
know what happened to their loved ones. They have a right to know what
happened.
With a full and independent investigation, we will learn what went
wrong and what steps could be taken now to help prevent future
tragedies. We owe that to the families of the miners who have died and
to the thousands of miners who risk their lives working underground
every day.
Thank you.
The Chairwoman. Thank you, Mr. Miller.
Mr. McKeon.
STATEMENT OF THE HON. HOWARD McKEON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. McKeon. Thank you, Madam Chairman, Ranking Member
Dreier and Members of the committee. I appreciate the
opportunity to testify on the proposal to grant deposition
authority to the Committee on Education and Labor and the
investigation of the Crandall Canyon mining disaster.
I joined my colleagues in that just a short time ago to
establish rules to govern these depositions. The rule adopted
by our committee to direct this process was developed
cooperatively to ensure that this authority, regardless of
whether it is merited, will be exercised fairly and with the
full consultation of the minority.
Based on his actions up to this point, I have every
confidence that the chairman will treat this respectfully in
this process. While I did not object to the parameters of the
deposition authority, I expressed caution, and just as I do
now, that this authority is premature, unnecessary and has the
potential to cause great harm.
The Education and Labor Committee has a history of working
carefully and cooperatively to ensure safety in our Nation's
mines.
Last year we oversaw the development and enactment of the
Miner Act, the most sweeping mine safety reforms in a
generation. We take seriously our commitment to mine safety,
which includes appropriate oversight.
Because of that, I do not believe we should take lightly
this proposal to diverge from our accepted oversight
capabilities.
At a minimum, this proposal is premature. Our committee has
already made significant progress in our investigation through
existing authority to conduct hearings, demand documents and
interview witnesses and experts. Our colleagues on the other
side of the Capitol are engaged in similar exercises.
At the same time, the U.S. Department of Labor and the
State of Utah have undertaken a series of investigations into
the cause of the mine collapse and handling of the events in
its wake. There are inquiries into the cause of the collapse,
inquiries into the development and observance of the mine
safety plans and inquiries into the handling of the rescue by
both the mine operator and Federal regulators.
There is no shortage in the number and scope of these
inquiries. Our role in these investigations is to conduct
robust oversight.
To that end, the committee has requested, and the
Department of Labor has produced, hundreds of thousands of
pages of documents related to this mine and its collapse.
More documents are on the way. We also have significant
tools at our disposal, even without this new and extraordinary
authority, to hold hearings, interview witnesses and officials,
insert findings into the official record and compel the
disclosure of documents. We have not come close to exhausting
the resources at our disposal to investigate the incident.
Not only is the deposition authority premature at this
juncture, it also appears to be unnecessary. Although the
majority staff have refused to discuss who they intend to
depose, we have been told that only four or five witnesses
would need to be subpoenaed. I see no reason why the regular
hearing process could not accommodate that small number of
witnesses.
Today, however, we are beginning down a path that I believe
goes far beyond our charge to conduct oversight. By granting
the Education and Labor Committee the authority to depose
witnesses, we are venturing into an arena rarely entered by
Congress and then only under circumstances such as national
security, the impeachment of a President and the alleged
defrauding of a national organization by its leadership.
Deposition authority will allow dozens of interviews to be
conducted under oath and be compelled by subpoena. This could
create the possibility of a potential web of conflicts of
interest, produce claims and rulings, requests for immunity,
leaks and contradictory evidence.
Previous congressional probes would serve as a cautionary
tale as we head down this path. Tactics used in the
congressional oversight investigation of the Iran Contra Affair
caused key testimony against Oliver North to be thrown out and
his convictions to be overturned.
In early September, the Acting Solicitor of Labor wrote to
Chairman Miller and myself, along with the leadership of the
House, expressing concerns that the committee's parallel
investigation may compromise the integrity of MSHA's law
enforcement investigation and potentially jeopardize its
ability to enforce the law and hold violators accountable.
Madam Chairman, I would like to include that letter in the
record. The danger described in the letter is as real today as
it was then.
The Chairwoman. Without objection.
[The information follows:]
Department of Labor,
Office of the Solicitor,
Washington, DC, September 11, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Chairman Miller: I am writing to express grave concerns that
the Committee's current plans to pursue its own parallel investigation
of the Crandall Canyon mine accident may compromise the integrity of
the Mine Safety and Health Administration's (MSHA's) law enforcement
investigation and potentially jeopardize its ability to enforce the law
and hold violators accountable. Specifically, the Department is
concerned about the Committee's plans to interview witnesses and hold a
public hearing before MSHA's officially constituted accident
investigation team has the chance to interview the witnesses and carry
out its statutorily mandated law enforcement responsibilities. For the
Committee's parallel inquiry to proceed while MSHA's investigation is
ongoing and in its early stages is likely to result in confusion for
the families and the public and may taint the ongoing accident
investigation to such a degree that MSHA is unable to prosecute any
violations of mine safety and health standards that contributed to or
exacerbated the accident. In light of these concerns, the Department
requests that the Committee postpone witness interviews for a few weeks
and that the October 3, 2007, public hearing be rescheduled for a date
following completion of the witness interview phase of the law
enforcement investigation.
MSHA's statutory law enforcement obligations
As you know, MSHA has been overseeing rescue and recovery
operations at the Crandall Canyon coal mine as a result of a mine
accident on August 6, 2007. Pursuant to its mine accident investigation
authority under Section 103 of the Federal Mine Safety and Health Act
of 1977 (Mine Act), 30 U.S.C. Sec. 813, and consistent with general law
enforcement investigation protocols, MSHA investigates mine accidents
and issues formal reports summarizing the findings and conclusions of
the investigation, identifying causes of the accident and how the
incident unfolded. At the conclusion of the investigation, should MSHA
discover violations of safety or health standards that contributed to
the accident, the responsible parties are cited civilly. If there is
evidence of intentional or willful violations, criminal referrals will
be made to the appropriate U.S. Attorney's office. Accordingly, on
August 30, 2007, MSHA announced that its investigation team will review
relevant documents, conduct interviews of relevant witnesses, including
the mine owner, mine management, other miners, and MSHA employees
involved in oversight of Crandall Canyon. At the completion of the
investigation, the results of the investigation as well as the
transcripts of non-confidential witness interviews will be made
available to the public.
In accord with MSHA practice, the investigations will be conducted
under law enforcement investigation protocols. For example, the MSHA
investigation team looking into the accident itself will conduct
government-only witness interviews jointly with the State of Utah.
Information from interviews or transcripts will only be released after
MSHA's chief investigator and the designated Utah official determine
that a release will not jeopardize the integrity of the investigation.
All witnesses will be asked not to discuss the substance of their
interviews with other witnesses or the public in order to protect the
integrity of the investigation and to prevent prejudice to the
testimony of other witnesses.
In addition to the accident investigation, the Department announced
on August 30, 2007, the appointment of independent outside mine safety
experts to review the actions of MSHA relative to the Crandall Canyon
Mine accident. That review will include actions taken before the August
6 accident and the ensuing rescue operations and will consist of a
thorough examination of documents relevant to the Crandall Canyon Mine
and interviews of MSHA employees with personal knowledge of MSHA's
inspection responsibilities and enforcement procedures at the mine.
Committee staff rejected proposed accommodation
On September 6, 2007, the investigative staff of the Education and
Labor Committee informed the Department of Labor that they were
planning to interview employees of MSHA Region 9 in Denver, Colorado.
On September 7, the Department of Labor contacted the Committee's
investigative staff to discuss the request. Committee staff again
stated that they intended to question MSHA employees on various aspects
of the accident on September 12 and also indicated that the Committee
intended to call some of the interviewees for a hearing on October 3,
2007. The Department explained that MSHA's ongoing law enforcement
investigation would not be complete by the time of the interviews
proposed for this week and that it would jeopardize the law enforcement
investigation for the Committee to interview witnesses before the MSHA
law enforcement investigation team had done so. Committee staff stated
they could not wait beyond September 12 or 13 for the Department to
produce the following witnesses for interviews: the MSHA district
manager, the roof control specialist who approved the Crandall Canyon
roof control plan, and the roof control specialist's supervisor.
The Department requests a short delay that will minimize the potential
prejudice to the open law enforcement investigation
The Department has no objection to providing the Committee with
background information and information on MSHA procedures that pertain
to the Crandall Canyon accident or to allowing Committee staff to
interview appropriate MSHA personnel at an appropriate time in the near
future. The Department, however, strongly believes that interviews at
this time and a public hearing would jeopardize the law enforcement
investigation. Although the Committee has a legitimate interest in
determining how the Department enforces statutes, congressional
investigations during the pendency of the law enforcement investigation
pose an inherent threat to the integrity of that investigation. Your
parallel investigation could prejudice the testimony of other
witnesses, subject witnesses to possible intimidation, tip off
potential civil or criminal violators that they are under suspicion,
and/or taint the investigation such that any enforcement action is
precluded from being brought. See, e.g., Walkins v. United States, 354
U.S. 178 (1957) (noting that Congress is not ``a law enforcement
agency'' as that is a function of the executive branch); Letter of
Assistant Attorney General Robert Raben (Jan. 27, 2000); Opinion of
Attorney General Jackson, 40 Op. Att'y. Gen. 45, 46 (1941) (citing
Attorney Generals from the beginning of the 20th Century). Accordingly,
the Department has serious concerns about a parallel investigation by
the Education and Labor Committee proceeding while the Department's
investigation is ongoing.
The Department also takes very seriously its responsibility to
protect the privacy interests of individuals about whom information is
developed during a law enforcement process. The reputations of
individuals mentioned in investigations could be severely damaged by
the public release of incomplete circumstantial information about them,
especially when they may be exonerated by additional investigation and
other evidence later developed.
In conducting its own parallel but limited investigation before an
October 3 hearing, it is likely the Committee will not know all the
facts and may come to conclusions on the accident that are later
contradicted by other evidence. The public airing of that incomplete
information on October 3 will inevitably affect the testimony of any
witnesses not interviewed by the accident team before October 3, tip
off possible targets, confuse the victims' families and the public, and
possibly unfairly tarnish the reputation of innocent individuals.
The Department will continue to cooperate with the Committee
The Department respects the prerogatives of the Committee to
conduct oversight and, as you know, has previously responded to a
number of Committee letters requesting information on other matters as
well as dozens of requests from your staff for documents and
information, briefed the Committee on a number of occasions on mine
safety issues, and testified before the Committee. The Department has
already provided the Committee with non-confidential documents in the
course of the Crandall Canyon investigation in response to requests and
will continue to provide requested information as it becomes available.
The Department asked the Committee staff to delay its investigation
for a short period of time to enable the law enforcement investigative
team to complete the interviews and fact-gathering phase, after which
the Department would be pleased to facilitate the Committee's
inquiries. However, because staff represented during a conference call
on Friday with Department attorneys that the Committee intended to
forge ahead despite the serious concerns expressed, MSHA has already
asked the requested personnel to be available on September 12 in
Colorado for a brief interview by your staff. In response to this
particular Committee request, the Department is providing access to
these witnesses for non-public interviews only. The Department believes
that disclosure of the contents of these interviews could adversely
impact our law enforcement efforts by prematurely revealing information
to other witnesses. Accordingly, the Department requests that the
Committee take appropriate steps to ensure that such disclosures do not
occur and otherwise to conduct your investigation in a manner that will
avoid risks of compromising our efforts. In view of our concerns, the
Department trusts you will find this to be a good faith accommodation.
The Department remains particularly concerned that a public hearing
would complicate our efforts to hold any culpable parties accountable
for any legal violations that may have caused or contributed to the
mine accident. Accordingly, the Department respectfully urges you to
delay the Committee's inquiry appropriately.
Sincerely,
Jonathan L. Snare,
Acting Solicitor of Labor.
Mr. McKeon. The majority has thus far heeded our warnings
and the Department of Labor. Interviews have proceeded
cautiously to avoid any inadvertent sabotage of our pending
inquiries. Our hearing was structured in such a way as to avoid
endangering the investigations.
I am concerned that by granting unfettered deposition
authority the House is backing away from that cautious approach
and rekindling the threat that our activities could undermine
the aggressive enforcement that MSHA and that other
investigators have an obligation to pursue. The deposition
authority today is crafted narrowly not only to cover the
Crandall Canyon Mine collapse. I have serious questions about
the timing and necessity of this discrete authority.
Beyond that, however, I want to make it perfectly clear
that the narrow authority being granted in this instance should
in no way be viewed as a precedent for future oversight
functions of our committee.
Our committee rules allow for a range of tools and
resources that can be used to conduct rigorous oversight, tools
that, I would add, are not being fully utilized in this
instance.
If there is any effort to begin granting a more wide-
ranging deposition authority, I believe the dangers will be
multiplied exponentially. As such, my objections will be
multiplied as well.
Before yielding back, I would like to commend the chairman,
thank him for the openness and really working with the minority
on this. They granted many of our requests, which the chairman
outlined, and I think have made for a better process.
I thank him for that and look forward to working with him
on it as we move forward on this and other issues.
[The prepared statement of Mr. McKeon follows:]
Prepared Statement of Rep. Howard P. ``Buck'' McKeon (R-CA)
Thank you Madam Chair, Ranking Member Dreier, and members of the
Committee. I appreciate the opportunity to testify on the proposal to
grant deposition authority to the Committee on Education and Labor in
the investigation of the Crandall Canyon mining disaster. I joined my
colleagues in that committee just a short time ago to establish rules
to govern these depositions. The rule adopted by our committee to
direct this process was developed cooperatively to ensure that this
authority--regardless of whether it is merited--will be exercised
fairly and with the full consultation of the minority. Based on his
actions up to this point, I have every confidence that the Chairman
will treat us respectfully in this process. While I did not object to
the parameters of the deposition authority, I expressed caution then,
just as I will do now, that this authority is premature, unnecessary,
and has the potential to cause great harm.
The Education and Labor Committee has a history of working
carefully and cooperatively to ensure safety in our nation's mines.
Last year, we oversaw development and enactment of the MINER Act, the
most sweeping mine safety reforms in a generation. We take seriously
our commitment to mine safety, which includes appropriate oversight.
Because of that, I do not believe we should take lightly this
proposal to diverge from our accepted oversight capabilities. At a
minimum, this proposal is premature. Our committee has already made
significant progress in our investigation through existing authority to
conduct hearings, demand documents, and interview witnesses and
experts. Our colleagues on the other side of the Capitol are engaged in
similar exercises.
At the same time, the U.S. Department of Labor and the State of
Utah have undertaken a series of investigations into the cause of the
mine collapse and the handling of events in its wake. There are
inquiries into the cause of the collapse; inquiries into the
development and observance of the mine's safety plans; and inquiries
into the handling of the rescue by both the mine operator and federal
regulators. There is no shortage in the number and scope of these
inquiries.
Our role in this collage of investigations is to conduct robust
oversight. To that end, the Committee has requested--and the Department
of Labor has produced--hundreds of thousands of pages of documents
related to this mine and its collapse. And more documents are on the
way. We also have significant tools at our disposal, even without this
new and extraordinary authority, to hold hearings, interview witnesses
and officials, insert findings into the official record, and compel the
disclosure of documents. We have not come close to exhausting the
resources at our disposal to investigate this incident.
Not only is the deposition authority premature at this juncture, it
also appears to be unnecessary. Although the majority staff has refused
to discuss who they intend to depose, we have been told that only
``four or five'' witnesses would need to be subpoenaed. I see no reason
why the regular hearing process could not accommodate that small number
of witnesses.
Today, however, we are beginning down a path that I believe goes
far beyond our charge to conduct oversight. By granting the Education
and Labor Committee the authority to depose witnesses, we are venturing
into an arena rarely entered by Congress, and then, only under
circumstances such as national security, the impeachment of a
President, and the alleged defrauding of a national organization by its
leadership.
Deposition authority will allow dozens of interviews to be
conducted under oath and compelled by subpoena. This could create the
possibility of a potential web of conflicts of interest, privilege
claims and rulings, requests for immunity, leaks, and contradictory
evidence.
Previous congressional probes should serve as a cautionary tale as
we head down this path. Tactics used in the congressional investigation
of the Iran-Contra affair caused key testimony against Oliver North to
be thrown out, and his convictions to be overturned.
In early September, the Acting Solicitor of Labor wrote to Chairman
Miller and I, along with the leadership of the House, expressing
concerns that the Committee's ``parallel investigation . . . may
compromise the integrity of MSHA's law enforcement investigation and
potentially jeopardize its ability to enforce the law and hold
violators accountable.'' Madam Chair, I would like to include that
letter in the record. The danger described in that letter is as real
today as it was then.
The majority has thus far heeded our warnings and those of the
Department of Labor. Interviews have proceeded cautiously to avoid any
inadvertent sabotage of the pending inquiries. Our hearing was
structured in such a way as to avoid endangering the investigations.
I'm concerned that by granting unfettered deposition authority, the
House is backing away from that cautious approach and rekindling the
threat that our activities could undermine the aggressive enforcement
that MSHA and other investigators have an obligation to pursue.
The deposition authority proposed today is crafted narrowly to
cover only the Crandall Canyon mine collapse. I have serious questions
about the timing and necessity of this discrete authority. Beyond that,
however, I want to make it perfectly clear that the narrow authority
being granted in this instance should in no way be viewed as a
precedent for future oversight functions of our committee. Our
committee rules allow for a range of tools and resources that can be
used to conduct rigorous oversight--tools that, I would add, are not
fully being utilized in this instance. If there is any effort to begin
granting a more wide-ranging deposition authority, I believe the
dangers will be multiplied exponentially. As such, my objections will
be multiplied as well. With that, I yield back.
The Chairwoman. Thank you, Mr. McKeon. One question for
either of you that I have is, if I am correct in this, this
mine has already been mined, retreat mined and abandoned.
Murray Energy was able to buy it for a few cents on the dollar;
is that correct?
Mr. Miller. I don't know all the particulars. The mine was
a mine that I guess, you know, they say played itself out. But
with new technologies and these new technologies you can go
back in.
Retreat mining is an old practice, you have pillars in the
mine that are out of coal, and you pull them out. Basically you
are running a series of controlled collapses in the mine.
The Chairwoman. As you leave.
Mr. Miller. It is very dangerous. Alan Mollohan, our
colleague, used to do this for a living. He can explain this to
you. It sounds like a horrendous place to work.
The Chairwoman. It sounds awful, but in that case if they
are allowed to use abandoned mines that are already retreat
mines--then the legislation that you spoke of last year in mine
safety, did it deal with that in any way?
Mr. Miller. I don't believe that it dealt with that
particular practice. This mine was already operating at that
process.
The Chairwoman. The laws that exist.
Mr. Miller. I believe there is precedence elsewhere about
how the plans were approved and all of that. That is part of
the investigation, but I don't think we spoke specifically to
retreat mining in the Miner Act of last year.
The Chairwoman. It is true that MSHA is basically made up
of mine owners?
Mr. Miller. Well, they have people from the industry who
have been brought to the regulatory agency. That is not that
unusual, but they haven't been the swiftest agency in
responding to these accidents that have happened, the loss of
life that has taken place over the last several years.
Their early actions on the Crandall mine in the first few
hours are called into question, especially when you had the
owner, Mr. Murray, handing out information to the press that
was of questionable value or accuracy or truthfulness. MSHA, in
this sense, is supposed to take over the release of
information.
There was a lot of questions here by a lot of different
parties. That is essentially why we need this authority. We are
down to, as Mr. McKeon pointed out, a limited number of people,
but we believe they are important. My investigators tell me
they are important, and they are not at this point willing to
cooperate.
The Chairwoman. Mr. McGovern.
Mr. McGovern. I am losing my voice, so I want to be very
brief here.
I just want to say for the Record that I trust you both to
use this very wisely, and I think all of us are interested in
the same thing; that is, getting to the truth and getting some
semblance of justice and trying to make sure these things don't
happen again in the future. I expect you will work with us and
you will also work with the Department of Labor. As was
mentioned, this is not unprecedented. In this particular case,
it is limited to a single investigation.
I agree with Chairman Slaughter and Ranking Member Dreier
when I say I think you have both worked together in a
cooperative way to craft a carefully worded statute that I
think strikes the right balance. I just want to say thank you
for your cooperation and for a commitment that is reasonable.
Thank you.
The Chairwoman. Mr. Dreier.
Mr. Dreier. Thank you very much, Madam Chairman.
Thanks, as everyone said, to both of you, for working hard
on this. I will say that, again, you can say this is not
precedent setting, but it is--but it has been granted in the
past Congresses. We did it again on the opening day rules, the
opening day rules package for the Government Reform Committee.
I am, as Mr. McKeon pointed out in his statement, concerned
about this, I guess I would ask both of you the following
question. You both referred to the fact that the other has been
cooperative in this process.
Do you, Mr. McKeon, feel as if you were cooperative in
being willing to say, at the committee level, the notion of
subpoenaing any of these five witnesses about whom you have
spoken to come before the committee and provide answers to the
very tough questions that obviously are out there, did you in
any way stand in the way of the committee's ability to do just
that?
I say that because it seems to me, as you said in your
statement, the tools are already there. I understand that
deposing someone is different from having testified before a
hearing, I understand that. But these questions are out there.
I think most of us know what they are. Everyone here has raised
them.
I clearly have more than a few myself as we all followed
that horror. But I wonder if you do feel that you were going to
do everything that you possibly could to ensure that the
committee would have had the ability to do exactly what this
measure that we are dealing with here is designed to address.
Mr. McKeon. A word on the minority, we don't select the
witnesses. Generally, if there are more witnesses, we get one.
So all we get on a regular hearing is the opportunity to submit
the name for a witness.
Mr. Dreier. Well, on this you certainly would have. I mean,
I think you both agree, you just said, George, these four or
five witnesses are the people in question here who may for some
reason feel the prospect is threatening or they fear some sort
of retribution.
Mr. McKeon. Not by us.
Mr. Dreier. No, no, no, obviously within their community in
some way.
Mr. Miller. There has been no issue here about the
hearings. We have had a hearing on this. We have been working
together. There is no issue here.
You have people who don't want to cooperate at this level.
I could subpoena them and bring them before the committee, but
it may not be terribly helpful in the sense that their
information may be preliminary to another part of the
investigation. Some of this is technical. Some people only want
to come under a subpoena, with all due respect. They say you
want me, subpoena me. I am not coming voluntarily because I
work here, I work there, fine.
But a lot of that, if you were trying to manage it with 27
members of the committee asking questions at the same time, it
is really not very good for the witness. And it is not very
good in terms of drilling down on the particular evidence that
you are looking for to fill in the puzzle.
That is why this is done. That is why it is done at the
depositional stage because it may not be information that you
can get out if every member has 5 minutes to ask a question on
whatever comes into their mind.
Mr. Dreier. Let me just say that is clearly part of the
legislative process. There is no question, there is no
committee in this institution that for the nearly three decades
I have been privileged to serve here does as good a job at that
than the Energy and Commerce Committee.
John Dingell and that team, without this authority,
regularly--I remember in the 1980s when he as chairman of the
Investigations and Oversight Subcommittee there went very, very
diligently at more than a few witnesses.
Mr. Miller. Mr. Dreier, we can do it. It is a choice. I am
chairman of the committee. In my meetings with the
investigative staff who have long, long experience in these
kinds of complex investigations, they have made a
determination. We have talked it over. I think they are right.
I have gone through complex investigations, did the Exxon
Valdez. It took a very, very long time. In fact, there, because
everything was put out in the hearing, it did destroy the legal
case.
In fact, members of the minority took information from our
conversation on the floor and put them into the Congressional
Record.
I am very aware of the ability to sabotage hearings and how
careful you have to be. I think this allows us to get the
information at a level out of the public eye so people can talk
to us, tell us what is on their mind, and we can, as Mr. McKeon
said, we can protect the other parallel investigations that are
taking place at the same time. That is all.
Mr. Dreier. I hope you appreciate--I am just looking at the
institution and the fact that this has never been done before
in the 110th Congress.
Mr. Miller. We gave authority to Mr. Hoekstra to do the
Teamsters investigation in our committee because you had the
same problem. There are people there that said I ain't coming
forward to talk to you guys, you know, subpoena me.
Mr. Dreier. But a concern that I have is just the notion of
our continuing to do this, since it has been done, you know,
first, as I say in an opening day rules package and here.
Mr. Miller. I disagree with you, I disagree. I think this
is absolutely critical. I think every committee that has this
kind of authority that you have over these programs, this is
part of separation of powers, this is a part of the authority
of the Congress to be able to do its job.
Mr. Dreier. I am doing all I possibly can to ensure
oversight.
Mr. Miller. That is not the discussion here tonight.
Mr. Dreier. Thank you, Madam Chairman.
Mr. Miller. I think to have depositional subpoena power is
critical to the stages of the investigation.
The Chairwoman. I am sure that is why we are here, Mr.
Miller.
Mr. Hastings.
Mr. Hastings of Florida. Thank you very much, Madam
Chairman.
The courts have repeatedly held that Congress has
investigatory prerogatives. The thing that is inherent in this
particular measure, as offered, is the transparency and the
minority participation.
When Mr. McKeon decided on a very critical matter dealing
with Oliver North what he may not be privy to and there were
other investigations that were conducted, incidentally, I
happened to have served when a very similar deposition was put
forward with reference to the Iran-Bosnia hearings which have
been on the dustbin that nobody bothered to review.
So this isn't as precedent setting, as my friend from
California suggests, as it is Congress pursuing its
prerogative.
That said, the only thing that I would ask of you
particularly, Mr. Miller, is what potential national policy
outcomes, further investigation in this specific case, do you
see? Otherwise, the conflicts, the parallels, the question that
I literally subscribe to that you addressed, I think,
appropriately. As my colleague, Mr. McGovern said, obviously we
have great confidence in you and Mr. McKeon to protect matters.
One of the things that has not been said here is there are
families who expect it of the Labor Department. I might add,
they would, if I know correctly, take a very long time to come
to some conclusions. There obviously are potential litigation
circumstances, particularly civil. I don't know about any
criminal investigation, but Congress' prerogative should not be
precluded.
What do you see as some kind of national policy outcome
from this, Mr. Miller, and that would be my only question?
Thank you, Madam Chairman.
Mr. Miller. I would say that one of the questions that is
sort of central to this is we see energy prices continuing to
increase, coal that was left in the ground at one time has now
become valuable. Where you made a decision that it was unsafe
to mine this coal when oil was $30 a barrel, at $100 a barrel
this coal looks pretty valuable.
The national policy implications for the miners and their
families and for the owners of these mines is under what
conditions and how would you approve these mines?
I mean, people willingly walked out of these mines and they
said it was too dangerous. We are closing the mine here and
went looking for another property to mine.
Price changed all of that. It does so in the oil and gas
business, too. You reopen wells that you didn't think were
worth much 5 years ago, and you are pumping oil today. This has
ramifications because people have to go into these
arrangements.
We have had a series of hearings where we have been looking
at safety procedures and survival procedures and all the rest
of that. It is very contentious. This is a pretty independent
mining industry, and they like doing business the way they have
been doing it.
But clearly change came on with the Miner Act of last year.
We have additional legislation proposed for this year. The
whole idea of retreat mining really wasn't on the scale until
the price of energy went up so high.
But how that is done, and a central question has been
raised on what was the approval of these plans and who provided
for that approval, was it done in regular order, and were there
a series of questions that should have been asked and were
they, in fact, asked.
I don't know the answer to that, but I know that it has
been focused and clearly in the public also. Those issues
clearly have been raised in our hearings.
There are serious implications for this because this is an
activity, as I said, that would have been abandoned in a
different energy situation.
Mr. Hastings of Florida. Thank you very much for your
answer. Thank you.
The Chairwoman. Mr. Hastings.
Mr. Hastings of Washington. Thank you, Madam Chairman.
As I listen to your testimony here and what you are trying
to accomplish, I certainly sense that there is bipartisan
effort to try to find out and get to the bottom of what
happened there. It sounds to me, at least on Mr. McKeon's
testimony, that at least the rules and regulations that you
have set up, how you are going to proceed will be fair. All of
that process seems pretty good, which I congratulate you both
on.
But there is one area where it seems like there hasn't been
correspondence, and I would ask both of you to respond to that,
and that is how many people will be deposed. Mr. McKeon said he
wasn't sure. After talking to staff it was four or five.
This seems to me that this is something that has broader
national or broader interest within the bipartisan Education
Committee. Why would that part not be something that would be
discussed in a bipartisan way so that you could agree on who
should be coming to testify and why wouldn't the minority,
prior to coming here, know who you want to----
Mr. Miller. We don't know where this testimony is going to
take us. That is the nature of these investigations. We don't
know. We think we are down to a handful of people that this
might apply to. I think in fact in some cases it may be when
they find out we have the authority they may come. I don't
know, but I am not going to limit it to that because that is
illegal.
We will notify and discuss the witnesses and set up the
procedures as is outlined in the rule change and with the
approval of the resolution. But I don't know.
Mr. Hastings of Washington. That echoes the heart of my
question, and maybe you have answered it, and I don't want to
put words in your mouth, I hope I understood what you said
correctly, but you have gotten down--I understand you don't
know where investigations will go until you ask a question.
That may be something else prompts some other questions.
I guess where you have some broad agreement before, why
would not the minority know at least who you are thinking about
talking about? That is my question.
Mr. Miller. We are conducting--I am responsible for this
investigation. I am conducting it in a fashion that I think is
fair. As we also know that there are parallel investigations
going on, we are talking to those investigators in those other
agencies. In some cases, they may want to take a crack at a
person before we do, but we still want them for a different
reason. That is not helpful to our case to have or to the
investigation, I should say, not to the case, to the
investigation, to have that discussed.
Mr. Hastings of Washington. Mr. McKeon.
Mr. McKeon. Our whole purpose in this--we did pass the
Miner Act last year, it has a 3-year implementation, and we are
only 18 months into that. Now we passed, at least in the House,
this other mining safety bill, which we see could have some
potential problems, and now we are getting more involved in
this investigation.
My whole hope on this is that we can really find out what
happened there, that this isn't just--and I don't think it is.
I hope I am not also putting words into people's mouths. This
is not just a political witch hunt. I haven't seen that, and I
think the real purpose on both sides is to find out what really
happened and if somebody was at fault to bring them to justice.
My concern is that you have been a judge. You know a lot
more about that. I am not an attorney. I just know there is a
risk out there of doing damage to a potential case. I have
talked to enough people associated with mining and with this
accident that I think there was, I think there is some problem.
Mr. Miller. If I might, let me just say something. We have
had a series of accidents in this country, and for whatever
reasons those accidents weren't very thoroughly investigated
either in this Congress or otherwise when they took place.
I have gone to West Virginia, I have gone to Kentucky, and
I have met with the families of the miners who were killed and
we have had them here in Washington, D.C. They were not allowed
to come and testify about their loss or what they knew about
the investigations in those earlier accidents.
I just made a flat-out commitment to those families that on
my watch that will never happen again. This investigation is
part of that, and we are going to find out what happened at
Crandall Canyon, and we are going to find out what happened at
those other mines. This is a tool that I am asking you to put
in our quiver.
We will use it sparingly, properly and responsibly. But I
can't have the investigation that those families deserve
without this.
Any of us who have been involved in litigation in any form,
this is just fundamental. This is just fundamental. I don't
need governmental agencies asking our questions. This committee
doesn't need somebody else asking our questions, and that is
just that fundamental with me.
I have watched these families over the last couple of years
and that agony and when they couldn't get answers from the
government, from the Congress or from anybody else. It is just
not going to be that way on my watch.
Mr. Hastings of Washington. Last thing, just to clarify
because you said this is Crandall Canyon and others, but this
is just narrowly drafted.
Mr. Miller. This is just Crandall Canyon. The others are a
different type of investigation and much more time has passed.
It is different, but I am just saying, those aren't unfinished
on our agenda either.
Mr. Hastings of Washington. You implied they will be looked
at.
Mr. Miller. No, this applies just to this investigation.
Mr. Hastings of Washington. The others will be done under
regular order then presumably?
Mr. Miller. Yes.
Mr. Hastings of Washington. Thank you.
The Chairwoman. Ms. Matsui.
Ms. Matsui. Thank you, Madam Chairman.
I just want to follow up on your comments, Mr. Miller. I
noted that there were several mining accidents this year, quite
a few, in fact, I realize this is narrowly prescribed. I
believe that, and I understand Department of Labor has its
investigation, MSHA certainly has, but we have an oversight
responsibility.
We have constituents, we represent the people. I believe it
is our role to have this responsibility. Things have happened,
and we know that. We can't exactly pin the responsibility at
this point in time.
I think this is very necessary. My understanding is that
you have issued subpoenas and information was not forthcoming,
particularly with perhaps Mr. Murray. So, therefore, I believe
the deposition authority is very, very necessary.
I also understand that we have to be careful, and it seems
to me that this particular committee, because of its history of
working together, will make sure that this is narrowly
prescribed. In essence, I think you said, Mr. McKeon, and maybe
Mr. Miller also, that, in essence, you have looked at this. You
probably understand where you need to go right now with
witnesses. Perhaps you need to depose, but you are not sure
yet.
I think a lot of this happens to be a tool that is
necessary because there are people who do not want to speak in
public and would rather speak in private, but they also need to
be subpoenaed to do that, too. I think this is a very necessary
tool. I believe the way it has been organized and put together
here is the proper way to go.
I thank you both very much. I believe that this authority
is very necessary.
Thank you.
The Chairwoman. Mr. Sessions.
Mr. Sessions. Thank you, Madam Chairman.
Mr. McKeon, I am reading your testimony that you have here,
and I find it interesting that one says that there is no
shortage in the number and scope of these inquiries that is
taking place already by the Federal Government and the State of
Utah, top of page 2.
What I am saying is lots of people are dealing with this.
Mr. McKeon, would you anticipate at any point your
committee would gain knowledge into or seek information which
would change the behavior of this from becoming an
investigation into a criminal investigation?
Mr. McKeon. I don't know. I think there is information that
we don't have. I think that is what the chairman is trying to
get.
I don't understand if there are other investigations going
on, if there are criminal investigations.
Mr. Miller. Yes. I don't want to comment on that, because I
don't know where MSHA's investigations are taking them, where
the State of Utah, the attorney general there is taking them. I
really don't know that, and I don't want to speculate on people
who have been called to testify.
Mr. Sessions. Chairman, I would like to ask you then at any
point do you intend to delve into the difference between
criminal investigation and oversight? Do you understand the
difference between criminal investigation and oversight?
Mr. Miller. Yes, I think I do.
Mr. Sessions. Do you mind discussing that with us? You said
you didn't want too get into it.
Mr. Miller. I have conducted oversight this year on the
Reading First program. We have recommended to the Justice
Department that they take action.
I think we just had another investigation on boot camps
where a young person died in a boot camp, and it was not
properly investigated. The FBI has now taken that again under a
criminal investigation. There is a point at which we say----
Mr. Sessions. So it is a certain point.
Mr. Miller. Well, let me finish the answer. There is a
point at which we make a decision that this now has moved
beyond us. And we send our material, our evidence, our letter
of transmittal, our reasons why to, in this case, I should say
the Justice Department, for their action.
Mr. Sessions. Okay. Do you believe that in any way, and I
know we have had some conversations here about precedent-
setting circumstances, that this is going to lead us into
getting into things that happened in colleges where there are
shootings or Columbines or things like that?
Mr. Miller. I have no way of knowing that.
Mr. Sessions. You have no way of knowing that.
Mr. Miller. I am sorry, I don't know if you were here. I
happen to believe--I don't want to get trapped here.
I happen to believe that this authority resides under these
kinds of conditions between the majority and minority in
committees of jurisdiction, with legislative jurisdiction over
these programs. I just think that is part of our oversight. The
Congress hasn't done that. I respect that, and that is why we
are here.
Mr. Sessions. This Member, notwithstanding what any other
Member thinks, this Member believes it is true what was said
here, there is no shortage in the number and scope of
inquiries, that if the Department of Labor, State of Utah are
engaged in this issue, and that I would really prefer to have
the committee, just maybe myself, to be able to offer some
evaluation as a result of professionals who would go in and
look at and do their own investigation and then for you to
grill those people after they have completed their
investigation. That would be my own personal take on this.
I believe there is a sense that I have--a sense that I have
that there may be some criminal element that is engaged here,
not just mine safety, rather willful misconduct or other things
which could take place.
I think the committee is ill prepared, not only that it
lacks the jurisdiction, in my opinion, to even accurately see
the bigger picture in that.
So my point would be I would like to see you not do that.
Let them go and investigate it. Once it is all over go grill
whoever you would like to go grill. I think, in my opinion, we
are not a professional organization that is prepared to
understand criminal law.
I yield back.
The Chairwoman. Thank you.
Mr. Cardoza.
Mr. Cardoza. I don't have any questions.
The Chairwoman. Mr. Welch.
Mr. Welch. I have no questions, but I certainly support the
use of the committee having the tools it needs to the oversight
and the Congress to do what the Congress has the ability to do.
The Chairwoman. Ms. Castor.
Ms. Castor. I want to thank you gentlemen, with all of the
items on your agenda, all of the national policies, the.
Education and Labor initiatives, your landmark college aid
package you passed this year. For you to say we are not going
to give up on this investigation is an important commitment to
these families and to the American people who really want you
to get to the bottom of this terrible tragedy at the mine.
I thought the memo from Mr. Halstead was very well written.
Of course the memo recognizes, of course, as I do, the
preponderance of authority and expansion of the Congress and
the oversight, and that includes the ability of the committees
to conduct depositions and, of course, issue subpoenas.
I thought the memo was very thoughtful and did detail that
since 1974 this has been done at least 10 times. So I support
the rule change and wish you luck with the investigation.
The Chairwoman. Mr. Arcuri.
Mr. Arcuri. Thank you.
Gentlemen, thank you very much for being here. I think that
you are actually right to be delving into this area. I mean,
most prosecutors welcome other agencies looking into issues. I
mean, all they hope for is that the other agency recognized the
fact that there is the possibility that there may be criminal
investigation as well.
Certainly, I think you can't abdicate our responsibility as
Congress of looking into something, because, frankly no
criminal agency, no criminal office, no prosecutor's office, no
criminal agency may look into this. Then the people who look
into this, the people who may have done something improper will
not receive the thorough review that is so needed by this.
So I think from a prosecutorial, a prosecution perspective,
your actions are welcome.
Mr. Miller. I would just say, that is an interesting point
you just raised. We did an investigation of these boot camps
where kids are taken out and sort of given some form of tough
love, but it is a real problem. A young person died, wasn't a
resident of the State, wasn't a resident of the county. The
corporation was from another State, the State had no laws.
They looked at that and they said this person died of
natural causes. When the GAG went in and looked, and the
Inspector General went in and looked at the autopsy and the
amount of abuse this young person received, they said, no, that
is not what happened here.
Now that is under a full criminal investigation because
nobody else really had any stake in the game, tragically so.
For a considerable period of time, it was just a closed case,
and that has changed. That would not have happened without this
investigation.
Mr. Arcuri. I will take it a step further. I think by doing
what you are doing you are actually aiding potential
prosecutions, if, again, that is what is necessary--because you
will be doing fact finding, you will be uncovering, perhaps,
issues that may not otherwise get uncovered and eventually get
you a prosecutor. It will be very beneficial. So I say that.
The second point I wanted to make that I think is
important, obviously, in terms of doing depositions, anybody
can do a deposition. The problem with doing a good deposition
is that you need to have expertise into the background of
what's going on. Clearly, your committee has that expertise.
You know, there is no substitute for being able to know
that a person you are asking a question of is not telling you
the truth or not giving you all the facts clearly. Your
committee coming down around and being part of the jurisdiction
is clearly beneficial in terms of looking into it. I think that
you doing it in this limited area is really putting the first
team in and essentially basically helping us get to the bottom
of it.
So I commend it. I support it, and I thank you both for
your consideration.
The Chairwoman. Ms. Sutton.
Ms. Sutton. Thank you, Madam Chairman. I wholeheartedly
support what you are doing, briefing, regulations have been
pulled back. This Congress has a distinct, a distinct
responsibility to provide accountability and oversight so that
we can prevent this from happening ever again.
Mr. Miller. Thank you.
The Chairwoman. I thank you both. This is very personal to
me as well. I was born in the coal fields of Kentucky.
I think the most distressing thing I heard here was that
family members of mine victims had not been allowed to testify.
I hope that wasn't because benefits were not tied to that. That
really is an appalling thing which I would like to know about.
If this leads to criminal charges, so be it. People die
here in a mine where they may not have needed to be in the
first place.
I thank you very much. I think after 12 years of no
investigation in this House people are afraid of it. Wherever
it leads, it should be done.
Mr. Miller. I think Mr. McKeon and I are both committed to
the idea that we want to get to the end of this story. He has
been very supportive of this effort. I don't want my passion to
suggest that somehow people haven't been cooperative. This has
all gone very well to date.
The Chairwoman. Yes, indeed, thank you.
Mr. Miller. Thank you.
The Chairwoman. You are welcome. Now I am happy to call
T.J. Halstead, Legislative Attorney of Congressional Research.
Without objection, Mr. Halstead, your full statement will
appear in the Record, and we will welcome your summary, if you
will give us one. Thanks for being here.
STATEMENT OF T. J. HALSTEAD, LEGISLATIVE ATTORNEY,
CONGRESSIONAL RESEARCH SERVICE
Mr. Halstead. Thank you, Members of the committee. I thank
you for inviting me to testify today regarding the committee's
consideration of H. Res. 836, which would imbue, as you heard,
the House Committee on Education and Labor with the authority
to adopt a rule authorizing and regulating the taking of
depositions by a member or counsel of the Committee on
Education and Labor relating to the committee's ongoing
investigation into the tragedy that occurred last August at the
Crandall Canyon Mine. .
The mechanics of deposition practice are similar in the
judicial, executive, and legislative context, but I think it is
essential to analyze the vesting of staff deposition authority
in relation to point constitutional authority that Congress
possesses in the oversight context.
A long line of Supreme Court precedent establishes
Congress' power to engage in oversight and investigation of any
matter related to its legislative function, to the extent that
it is unremarkable, I think, to state that the Supreme Court
has held conclusively that congressional and investigatory
power is so essential that it is implicit in the general
vesting of legislative power in the Congress.
Viewed in light of that expansive power, I don't think
there is any discernible basis upon which it can be
successfully argued that Congress lacks the ability to
authorize staff depositions.
I think this conclusion is supported by the fact that
deposition authority has factored prominently in an increasing
number of significant congressional investigations since the
Watergate era. For instance, in a report accompanying a 1997
resolution granting deposition authority to the Committee on
Government Reform and Oversight, this committee observed that
the House had granted deposition authority in at least 10 major
investigations since 1974.
I have laid this information out more specifically in my
prepared statement, but there are several additional stamps
dating from the 1970s to today where deposition authority has
been granted pursuant to Senate and House resolution----
Ms. Castor. Would the gentleman yield for just one moment?
Did I misspeak? Was it the Government and Oversight Reform
Committee?
Mr. Halstead. No. For instance, in 1977--that I referenced
in my paper, that was pertaining to a specific investigation
regarding campaign finance, campaign finance improprieties in
the report accompanying the resolution that this committee
passed granting that authority to the House Government
Oversight and Reform Committee. The report noted at least 10
instances where authority had been given as a general matter.
The Chairwoman. It was part of the packet?
Mr. Halstead. And there are, again, numerous additional
examples where that authority has been granted pursuant to
either a Senate or a House Resolution. This authority has been
extended in the current Congress, for instance, to the Senate
Committee on Homeland Security and Governmental Affairs, as
well as to the House Committee on Oversight and Government
Reform. And as Congressman Dreier alerted earlier, that is a
bit of a distinction there because it is a general authority
vested in the Oversight Committee that had not been done
previously. And as you well know, the resolution before the
committee today would simply extend the House Oversight
Committee's deposition authority to the Committee on Education
and Labor with the restriction that it be applied specifically
to the Crandall Canyon investigation.
In light of those factors, I think it is evident that there
is ample support for the proposition that Congress may delegate
this deposition authority to its committees and staff. But as
has been mentioned earlier, the committee may also wish to
consider practical and legal factors that may affect the
exercise of deposition authority. It has been argued in the
past that staff depositions may circumvent the traditional
committee process that consists of hearings and informal
interviews, and can impact the rights of deponents and restrict
the role of the minority in the investigative process.
Furthermore, to the extent that the current proposal
contemplates inquiries into the administration of relevant laws
by government agencies, including the Department of Labor and
the Mine Safety and Health Administration, executive agencies
may raise legal, constitutional, and policy objections to the
attendance of agency officials at those depositions. However,
in many instances depositions can serve as a desirable
alternative to a hearing, since they can enable a committee to
obtain information that it needs quickly and confidentially,
and without the logistical constraints that often impede robust
oversight activity in the traditional hearing context. This
factor ameliorates the burden imposed by conducting field
hearings that require the presence of members, and may be of
particular utility in the current scenario given the logistical
and investigative difficulties imposed by conducting a
traditional hearing-based Congressional oversight inquiry into
a mine disaster in the State of Utah. Finally, the efficacy of
the staff deposition process appears to have been enhanced by
congressional action taken over the past 10 years that
emphasizes that criminal sanctions pertaining to the
obstruction of a congressional investigation into the making of
false statements applied during the taking of depositions.
Ultimately, the House's action on this issue will
necessarily hinge upon a determination as to whether the
potential benefits of vesting staff deposition authority in the
committee outweigh the perceived risks to traditional oversight
practice.
Madam Chairman, I will conclude my statement there. The
Congressional Research Service stands ready to assist the
committee in its consideration of any of these issues, and I
would be happy to answer any questions that you or the members
of the committee may have.
[The prepared statement of Mr. Halstead follows:]
Prepared Statement of T.J. Halstead, Legislative Attorney, American Law
Division, Congressional Research Service
Madam Chairman and Members of the Committee: My name is T.J.
Halstead. I am a Legislative Attorney with the American Law Division of
the Congressional Research Service at the Library of Congress, and I
thank you for inviting me to testify today regarding the Committee's
consideration of H. Res. 836.\1\
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\1\ H. Res. 836, 110th Cong., 1st Sess. (2007).
---------------------------------------------------------------------------
H. Res. 836 would imbue the House Committee on Education and Labor
with the authority to adopt a rule authorizing and regulating the
taking of depositions by a Member or counsel of the Committee in
furtherance of the Committee's investigation into the deaths of nine
individuals that occurred in August 2007 at the Crandall Canyon Mine
near Huntington, Utah. H. Res. 836 would authorize such depositions to
be taken pursuant to a subpoena issued in accordance with the Rules of
the House of Representatives, and would also authorize the Committee to
provide that a deponent be directed to subscribe an oath or affirmation
as administered by an authorized individual. The resolution under
consideration would accomplish this by extending to the Committee by
reference the authority that is currently exercised by the House
Committee on Oversight and Government Reform pursuant to clause 4(c)(3)
of rule X of the Rules of the House of Representatives.
Generally speaking, a deposition is a pre-trial discovery device
commonly used in litigation that typically involves the oral
questioning of a witness (the deponent) by an attorney for one party,
outside the courtroom, and out of public view. A deposition is taken
following notice to the deponent, and is sometimes accompanied by a
subpoena. The deposition testimony is given under oath or affirmation
and a transcript is made and authenticated. While the mechanics of
deposition practice are similar in the judicial and legislative
spheres, the vesting of deposition authority in a Committee and its
staff is best analyzed in relation to the exercise of oversight
authority by Congress generally. While there is no definitive
constitutional or statutory provision imbuing Congress with oversight
authority, a long line of Supreme Court precedent establishes Congress'
power to engage in oversight and investigation of any matter related to
its legislative function.\2\ Unless there is a countervailing
constitutional privilege or a self-imposed statutory restriction upon
its authority, Congress and its committees possess the essentially
unfettered power to compel necessary information from executive
agencies, private persons and organizations. Indeed, even though the
Constitution does not contain any express provision authorizing
Congress to conduct investigations and take testimony in support of its
legislative functions, the Supreme Court has held conclusively that
congressional investigatory power is so essential that it is implicit
in the general vesting of legislative power in the Congress.\3\
---------------------------------------------------------------------------
\2\ For a thorough analysis of legal principles governing
congressional oversight, See Morton Rosenberg, Investigative Oversight:
An Introduction to the Law, Practice and Procedure of Congressional
Inquiry, Congressional Research Service Report No. 95-464A, April 7,
1995.
\3\ E.g., McGrain v. Daugherty, 272 U.S. 135 (1927); Watkins v.
United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360
U.S. 109 (1959); Eastland v. United States Servicemen's Fund, 421 U.S.
491 (1975); Nixon v. Administrator of General Services, 433 U.S. 425
(1977); See also, United States v. A.T.T., 551 F.2d 384 (D.C. Cir.
1976) and 567 F.2d 1212 (D.C. Cir. 1977).
---------------------------------------------------------------------------
In Eastland v. United States Serviceman's Fund, for instance, the
Court stated that the ``scope of its power of inquiry . . . is as
penetrating and far-reaching as the potential power to enact and
appropriate under the Constitution.'' \4\ Also, in Watkins v. United
States, the Court emphasized that the ``power of the Congress to
conduct investigations is inherent in the legislative process. That
power is broad. It encompasses inquiries concerning the administration
of existing laws as well as proposed or possibly needed statutes.'' \5\
---------------------------------------------------------------------------
\4\ 421 U.S. at 504, n. 15 (quoting Barenblatt, supra, 360 U.S. at
111).
\5\ 354 U.S. at 187.
---------------------------------------------------------------------------
Viewed in light of the expansive power possessed by Congress in the
oversight context, there is no discernible basis upon which it may be
argued that Congress lacks the ability to authorize the procurement of
information through means short of a formal hearing, including through
the conduct of a deposition.\6\ Likewise, there would not appear to be
any support for the proposition that the investigatory prerogatives of
Congress do not extend to authorizing the conduct of such depositions
by congressional staff.\7\
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\6\ The courts have upheld another alternative to a congressional
hearing, statutes requiring the filing of information with
administrative agencies, on the ground that they are an exercise of the
legislative power to obtain information. See Electric Bond & Share Co.
v. SEC, 303 U.S. 419 (1938) (upholding statutory provision requiring
public utility holding companies to register with SEC); United States
v. Rappeport, 36 F. Supp. 915 (S.D.N.Y.), aff'd sub nom. United States
v. Herling, 120 F.2d 236 (2nd Cir. 1941). There is also specific
statutory recognition of the use of depositions in congressional
probes. In 1978, Congress granted the District Court for the District
of Columbia original jurisdiction over civil actions brought by the
Senate to enforce process issued by the Senate, including Senate
subpoenas to respond to depositions. See, e.g., 28 U.S.C. Sec. 1365.
\7\ In light of the fact that staff can conduct interviews (see
United States v. Weissman, 1996 U.S. Dist. LEXIS 19125 (S.D.N.Y. Dec.
19, 1996)) and pose questions at hearings (see House Rule XI, cl.
2(j)(2)(C)), then it would seem that they can be permitted to take
depositions. The Supreme Court has recognized, in a decision extending
constitutional immunity under the speech or debate clause to
congressional staff, that ``the day-to-day work of such aides is so
critical to Members' performance that they must be treated as the
latter's alter egos. . . .'' Gravel v. United States, 408 U.S. 606,
616-17 (1972) (emphasis added). The value of the information elicited
at a deposition is not diminished by the fact that it is obtained by
staff since, presumably, a transcript of the deposition will be
available for Members of the committee to read. Cf. Christoffel v.
United States, 338 U.S. 84, 91 (1949) (Jackson, J., dissenting).
---------------------------------------------------------------------------
This conclusion is buttressed by the fact that deposition authority
has factored prominently in an increasing number of significant
congressional investigations over the last thirty years. One of the
early investigations to make extensive use of this authority was the
Senate's 1980 probe of the relationship between President Carter's
brother, Billy Carter, and Libya, in which thirty-five depositions were
taken.\8\ Additionally, approximately 250 sworn depositions were taken
by committee counsel and/or one or more Members of Congress under
authority vested in the House and Senate committees that investigated
the Iran-Contra affair.\9\ Moreover, in a report accompanying a 1997
resolution granting deposition authority to the Committee on Government
Reform and Oversight for purposes of its investigation of alleged
political fund-raising improprieties, this Committee observed that the
House had granted deposition authority in ``at least 10 major
investigations'' since 1974.\10\
---------------------------------------------------------------------------
\8\ See, ``Inquiry into the Matter of Billy Carter and Libya:
Hearings before the Subcommittee to Investigate the Activities of
Individuals Representing the Interests of Foreign Governments of the
Senate Judiciary Committee,'' 96th Cong., 2nd Sess., Vol. III (App.) at
1741 (1980).
\9\ S. Rept. 100-216, 100th Cong., 1st Sess. at xiv, 685 (1987).
\10\ H. Rept. 105-139, 105th Cong., 1st Sess. 12 (1997).
---------------------------------------------------------------------------
Regarding authorization for staff depositions, it is generally
conceded that ``committee staff may take depositions only if the
committee is given that authority by its parent house.'' \11\ Apart
from the authorization extended to the House Committee on Oversight and
Government Reform pursuant to clause 4(c)(3) of rule X, neither house
of Congress has rules that specifically authorize staff depositions.
However, as noted above, such specific authority has been granted
pursuant to Senate and House resolutions on a number of occasions. Such
authority has likewise been extended, for instance, to the Senate
Committee on Homeland Security and Governmental Affairs.\12\ Numerous
other examples of such authorizations may be found in a Congressional
Research Service report entitled ``Staff Depositions in Congressional
Investigations.'' \13\ When vested with such authority, a committee
will normally adopt procedures for the taking of depositions, including
provisions for notice (with or without a subpoena), transcription of
the Deposition, the right to be accompanied by counsel, and the manner
in which objections to questions are to be resolved. The House
Committee on Oversight and Government Reform has adopted such
procedures in relation to the authority extended to it by clause
4(c)(3) of rule X.\14\
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\11\ John C. Grabow, ``Congressional Investigations: Law and
Practice, Sec. 3.3 (1988). It should be noted that both the Senate and
the House have previously asserted that standing committees possessed
the authority to conduct staff depositions in certain investigations
despite the absence of an authorizing resolution. See, e.g., S. Res.
495, Sec. 3 96th Cong. (1980) (stating in a provision granting
deposition authority that ``this resolution shall supplement without
limiting in any way the existing authority of Senate committees and
subcommittees to conduct examinations and depositions.'' (emphasis
added)); See also, H. Rept. 104-472 at 12, 104th Cong. (1996) (stating,
with regard to a resolution granting staff deposition authority to the
House Committee on Government Reform and Oversight, that nothing
``shall be construed as undermining or reversing procedural precedents
established in the course of past congressional investigations. . . .
[T]he committee is aware that, in the past, sworn testimony has been
taken from witnesses [at staff depositions] in the absence of a
specific resolution authorizing the taking of such statements.'').
\12\ See S. Res. 89, 110th Cong., 1st Sess. Sec. 11(e)(3)(E)
(2007).
\13\ Jay R. Shampansky, ``Staff Depositions in Congressional
Investigations,'' Congressional Research Service, Report No. 95-949A
(1999).
\14\ See House Committee on Oversight and Government Reform,
Committee Rules and Jurisdiction, Rule 22 (available at [http://
oversight.house.gov/rules/]).
---------------------------------------------------------------------------
From the above analysis, it is evident that there is ample
precedent for the proposition that Congress may delegate deposition
authority to its committees and staff. However, the Committee may wish
to consider several factors, both legal and pragmatic, that adhere to
the vesting of deposition authority in committees and staff. From one
perspective, staff deposition may be seen as affording a number of
significant advantages for committees engaged in complex
investigations.
For instance, the imprimatur conveyed by such delegated authority
may encourage a more rapid and robust response to general staff
requests for information. Additionally, the actual conduct of such
depositions may enable committee staff to obtain relevant information
quickly and confidentially, without the necessity of Members devoting
time to lengthy hearings that may be unproductive because witnesses do
not have the facts needed by the committee, or refuse to cooperate.
Depositions are conducted in private and may be more conducive to
candid responses than would be the case at a public hearing.\15\
Statements made by witnesses that might defame or even tend to
incriminate third parties can be verified before they are repeated in
an open hearing. Depositions can likewise prepare a committee for the
questioning of witnesses at a formal hearing and may also serve as a
screening mechanism to filter witnesses who do not possess pertinent
information. The deposition process may also serve to obviate the time
and resource constraints that impede full utilization of the formal
hearing process, and enables the questioning of witnesses outside of
Washington, D.C. This factor ameliorates the burden imposed by
conducting field hearings that require the presence of Members, and may
be of particular utility in the current scenario, given the logistical
and investigative difficulties posed by conducting a traditional
hearing-based congressional oversight inquiry into a mine disaster in
Utah. Finally, the efficacy of the staff deposition process would
appear to be enhanced by congressional action emphasizing that criminal
sanctions pertaining to the making of false statements apply during the
taking of depositions.\16\
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\15\ Committee staff engaged in the taking of depositions may wish
to consider the issues adhering to grants of immunity by Congress. See
Frederick M. Kaiser, et al., ``Congressional Oversight Manual,''
Congressional Research Service, Report No. RL30240 (2007).
\16\ See, e.g., 18 U.S.C. Sec. 1001 and the False Statements
Accountability Act of 1996, P.L. 104-292, where Congress acted in
response to the Supreme Court's decision in Hubbard v. United States,
514 U.S. 695 (1995) (which held that 18 U.S.C. 1001 applied only to
false statements made in executive branch department and agency
proceedings).
---------------------------------------------------------------------------
Conversely, it has been argued that staff depositions may
``circumvent the traditional committee process'' (i.e., hearings and
informal staff interviews) and, depending on the terms of the
resolution authorizing such depositions and related committee
procedural rules, compromise the rights of deponents and restrict the
role of the minority in the investigative process.\17\ Furthermore, to
the extent that the current proposal contemplates inquiries ``into the
administration of relevant laws by government agencies, including the
Department of Labor and the Mine Safety and Health Administration,''
executive agencies may raise legal, constitutional, and policy
objections to the attendance of agency officials at staff
depositions.\18\ Finally, from a practical perspective, it might be
argued that staff depositions present a ``cold record'' of witness
testimony that might not be as useful to Members as in person
investigations. The Congressional Research Service stands ready to
assist the Committee in its consideration of any of the aforementioned
issues.
---------------------------------------------------------------------------
\17\ H. Rept. 105-139, supra note 3, at 20-26 (minority views).
\18\ See Shampansky, n.13, supra, at 2. Depending on the issues and
personnel implicated, a host of issues ranging from executive privilege
to separation of powers concerns might be raised. For example, the
Final Report of the Select Subcommittee to Investigate the U.S. Role in
Iranian Arms Transfers to Croatia and Bosnia (``The Iranian Green Light
Subcommittee''), 104th Cong., 2nd Sess. 44-64 (1996) [hereinafter, The
Iranian Green Light Subcommittee Report], illustrates the potential for
such conflict in the staff deposition context. Agencies cooperated to
some extent with the efforts of the Iranian Green Light Subcommittee to
obtain deposition testimony. The Department of Defense made agency
personnel (with the exception of the Secretary of Defense) available
for subcommittee depositions (id. at 50) while the Department of State
questioned the authority of the subcommittee to take depositions from
``principals'' (the Secretary, Deputy Secretary, and Undersecretary)
(id. at 54). The White House asserted that the President's deliberative
process (executive privilege) would be infringed by efforts of the
subcommittee to obtain deposition testimony from senior National
Security Council staff. Id. at 55-57. Executive privilege was asserted
``on dozens of occasions in depositions'' taken by the House Committee
on Government Reform and Oversight in its investigation of the White
House Travel Office firings and related matters. H. Rept. 104-849,
104th Cong., 2d Sess. 178 (1996). Compromise between the branches in a
controversy over executive compliance with a congressional request for
attendance at a staff deposition may be possible. Alternatives to a
staff deposition may include an interview (distinguished from a
deposition by the absence of an oath and a transcript) and a briefing
of Members by senior executive branch officials. The Iranian Green
Light Subcommittee Report, supra, at 55, 57.
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Madam Chairman, that concludes my prepared statement. I would be
happy to answer any questions that you or other Members of the
Committee might have, and I look forward to working with all Members
and staff of the Committee on this issue in the future.
The Chairwoman. Thank you, Mr. Halstead. That was very
helpful. I appreciate it very much, and the efforts and time
you put in to come here today.
Mr. Halstead. My pleasure.
The Chairwoman. Mr. McGovern.
Mr. McGovern. I, too, would like to say thank you for your
very comprehensive statement. If I am understanding your
statement correctly here, there is nothing that we are doing
here that is unprecedented. The courts have ruled that this
authority does, in fact, appropriately rest with Congress in
certain cases, and that nothing we are doing here is
threatening or undermining the institution. And so the case
that Mr. Miller has made, and I think, you know, which I find
is a compelling case, in my opinion, justifies us supporting
this resolution. And I thank you very much.
Mr. Halstead. You are welcome.
The Chairwoman. Mr. Hastings.
Mr. Hastings of Washington. Thank you, Madam Chair, and
thank you, Mr. Halstead, for being here. Just, first did I hear
or understand in your testimony that this authority was first
vested to the Congress and ultimately sustained by the courts
in the Watergate hearings?
Mr. Halstead. Well, it is beginning in the Watergate era
that you see an increasing utilization of this mechanism. There
is actually no record when it was first employed. We have not
been able to identify that. There is a long history,
particularly in internal administrative matters of the
Congress, of deposition authority being utilized.
Mr. Hastings of Washington. I just wanted to get a sense
because I don't think there is any argument, frankly on any
side, that this authority does not exist within the Congress.
The question is as a matter of degree and how that is used. And
my friend from Massachusetts said that there is nothing
unprecedented about this. And I would just ask the question to
say is there any precedent in the past that you could find
where deposition authority was given carte blanche to a
committee in the standing rules of the House?
Mr. Halstead. That has been a recent development with the
110th Congress.
Mr. Hastings of Washington. So there is no precedent before
the 110th Congress?
Mr. Halstead. Right. To my knowledge from my research has
not revealed a prior instance where the type of authority that
the House Committee on Oversight and Government Reform and the
Senate Committee on Homeland Security and Governmental Affairs
now possess by virtue----
The Chairwoman. Would the gentleman yield?
Mr. Hastings of Washington. I would be happy to yield.
The Chairwoman. I probably misunderstood what you said. My
understanding was you said that was not an unprecedented act,
and had been given to other committees in the rules package.
Mr. Halstead. Oh, I am sorry. No, generally speaking, they
are ad hoc resolutions that are committed----
The Chairwoman. As needed.
Mr. Halstead [continuing]. As needed, There are, however,
examples on the Senate side, I believe, of the Permanent Select
Committee on Intelligence and the Senate Committee on Aging
that have had long-standing staff deposition authority. It is
not specifically referenced in the rules package itself, but it
has been I believe for the Committee on Aging it was first
adopted in the 70s, late 1977, '78. And they do exercise that
authority to this day.
The Chairwoman. Thank you. I did misunderstand. Thank you
for yielding, Mr. Hastings.
Mr. Hastings of Washington. You are welcome. I just wanted
to make the point nobody really argues that CRS can't go back
and find out specifically when it started, but if the
escalation was post-Watergate it would only be logical, I
guess, to assume that if it were done in the standing
committees before that would be easier to find. So this--we
really are setting a precedent, have set a precedent in this
Congress by giving at least one standing committee that
authority in the House rules.
Mr. Halstead. I would say with regard to the House of
Representatives that is----
Mr. Hastings of Washington. That is all we are worrying
about. Sometimes we reference the other body and sometimes not
in nice ways, so I am only focusing on what I am saying here on
the House of Representatives. Okay. Well, I again, the concern
that we have, part of the concern we have is that we are glad
this is focused as narrowly as the ranking member has
suggested, but we have a little bit of a caution on how it is
being used, given the precedent in this Congress of
establishing that for a standing committee. So I thank you for
clarifying that.
Mr. Halstead. You are quite welcome.
The Chairwoman. Ms. Matsui.
Ms. Matsui. Thank you, Madam Chair. I have no questions. I
just want to thank you very much for testifying.
Mr. Halstead. Thank you.
The Chairwoman. Mr. Sessions.
Mr. Sessions. Thank you, Madam Chairman. Mr. Halstead,
thank you so much for your comprehensive brief and you being
here with us today. Mr. Halstead, have civil lawsuits been
struck in this case?
Mr. Halstead. I am sorry, regarding----
Mr. Sessions. Are there civil lawsuits that exist in this
case?
Mr. Halstead. Pertaining to the mine investigation?
Mr. Sessions. Yes.
Mr. Halstead. As I say, I am not privy to the mine
investigation itself. I am focusing specifically on the
institutional issues of staff deposition authority. So I would
have to plead ignorance on that point.
Mr. Sessions. Has this extensive, comprehensive brief that
you have done and this background investigation, has there ever
been a circumstance where it dealt with where Congress decided
to get in what I would say pretty up front, as opposed to
behind, receiving information from others that may do an
investigation, but not out on-site, just of the people who--the
investigators where there was a civil lawsuit involved?
Mr. Halstead. Again, not to my knowledge. But I would be
happy to do some follow-up research to try to identify. It
wouldn't surprise me if that would be the case, but I am not
aware off the top of my head of that being of any particular
instance.
Mr. Sessions. The documents that might be yielded as a
result of this investigation is there any privacy related to
those, or are all of those just open to anyone who would want
to see them----
Mr. Halstead. Well, Congress itself can ensure a degree of
privacy should it in its negotiation in the receipt of
testimony.
Mr. Sessions [continuing]. Should it choose to?
Mr. Halstead. Uh-huh.
Mr. Sessions. But there is no real--is there any----
Mr. Halstead. Not that I am aware of as a prophylactic
matter.
Mr. Sessions. Typically speaking, where there are
interviews that would take place by let us say a congressional
investigator, are those typically available to people?
Mr. Halstead. It is really something that is done on an ad
hoc basis. The House Committee on Oversight and Government
Reform, for instance, on their Web site, has made available a
deposition that they conducted, I believe, in June of 2007 with
an official from, I believe the Executive Office of the
President. I am drawing a blank on the name. It may be Julie
Stone, something of that nature. So it has been done on
occasion, but there are certainly many instances where the
information would not be released.
Mr. Sessions. In your comprehensive analysis, have you
discovered any sort of a code of ethics that would be required
for an investigation by an oversight committee in this case,
oversight, as it related to discussions with other legal
counsel, for instance, perhaps someone that filed a civil
lawsuit where they would or would not be included in or receive
information? Or is there a code of ethics related to the
investigators? Or can they talk to the media, can they talk to
anybody that is perhaps considering a lawsuit or----
Mr. Halstead. As a fundamental matter, the authority that
has been given to the House Committee on Oversight and
Government Reform under rule 10 and that will be extended in
the Committee on Education and Labor is limited to the taking
of depositions by members and staff that are counsel. So by
incorporation that would extend for committee staff who are
counsel, they would be fully covered by the bar rules of their
particular State.
Mr. Sessions. In this case, would they be under a court?
Because all lawyers are, wherever they are licensed, they are
part of a court, responsible to a court. Is there any
responsibility under their legal duties, these lawyers, to be
under the jurisdiction, supervision or adherence to any court
structure, in this case I assume which would be Utah?
Mr. Halstead. It would raise an interesting question,
actually, as to whether or not the State of Utah would consider
the staff depositions being conducted at that locus to qualify
as the practice of law in the State of Utah. I would think as a
fundamental matter the interpretation that would prevail would
be that a state level restriction of that nature could not
serve to trump a congressional investigation.
Mr. Sessions. In this case, would you assume that a Federal
district court that might have jurisdiction would at some point
have jurisdiction, or are we under our constitutional duties of
the first branch of government immune to that?
Mr. Halstead. Yeah, I would be--I think it would be
exceptional for a court to try to involve itself in a
congressional investigation.
Mr. Sessions. So in other words, a court might, if they
felt some need to become engaged, they would simply look at our
rules and make sure we followed our rules, the internal ethical
standards or procedures that had been established.
Mr. Halstead. Potentially. I would be hard pressed to
conceive of a situation that would arise where something of
that nature would become justifiable.
Mr. Sessions. I could think of one real quickly. And that
is that you have civil lawsuits that have been filed and civil
people went and talked to the lawyers about the investigation.
Mr. Halstead. Yeah, there is certainly----
Mr. Sessions. I can do that in half a second. I am
surprised that you didn't think of that.
Mr. Halstead. No, there are numerous instances that can
arise as a practical matter regarding the impact the
congressional investigation can have, both on civil lawsuits
and certainly on criminal investigations as well. Congress,
should it so desire, can essentially destroy a criminal
investigation through the granting of immunity.
Mr. Sessions. Right. As has been stated. So you believe
then that inasmuch as the application of this to the committee,
that we would be giving two lawyers, which is a higher standard
in my opinion, and I think you would say that, too, because you
have been versed in the law as opposed to investigation, that
you would understand a tight set of circumstances by which you
are operating to gain information to offer immunity, to do
those kinds of things as opposed to a wide open game. So you
think we would go out with those careful set of understandings
about what we were trying to do.
Mr. Halstead. Yeah, I think that the committee staff are
certainly professional staff, and certainly Congress itself can
monitor to ensure that they are behaving and operating in an
appropriate fashion.
Mr. Sessions. Okay. I guess the last question I have is, is
there any responsibility to ask for or share in information
that would be considered criminal that would be outside the
scope of what you think they would be granted?
Mr. Halstead. Under this resolution?
Mr. Sessions. Yes.
Mr. Halstead. No, I don't see any limitation that would
prevent them from inquiring to that end.
Mr. Sessions. So in other words it is not, you are saying
it is not a well-crafted, careful, cautious, well-understood.
You are saying they have full authority to branch out. However,
they would be lawyers and bound by whatever.
Mr. Halstead. Right. And that would be similar not in the
staff deposition context, but, for instance, with regard to
Chairman Burton's investigation into misconduct of the Boston
FBI field office. That was another example of a congressional
investigation----
Mr. Sessions. Is that where the FBI had----
Mr. Halstead. Yes.
Mr. Sessions [continuing]. Lied to and coerced----
Mr. Halstead. Right. I believe that led to the first
invocation of executive privilege by the Bush administration,
that was then ultimately withdrawn.
Mr. Sessions. Yes.
Mr. Halstead. But certainly there is always that potential.
And it is incumbent upon entities that are engaged in these
types of investigations to operate in a responsible fashion.
Mr. Sessions. I want to thank you for being here today and
for taking your time. And I appreciate the gentlewoman's
extended time to me.
Mr. Halstead. You are quite welcome.
The Chairwoman. Mr. Welch.
Mr. Welch. No questions, thank you.
Ms. Castor. No questions, thank you.
The Chairwoman. Mr. Arcuri.
Mr. Arcuri. Just a couple questions. One is the actions
that the Congress will be taking would in no way violate any
double jeopardy problems in Utah. Is that correct?
Mr. Halstead. I would be hard pressed, again, to really
conceive of that. You know, Congress's power again in this
context is quite expansive.
Mr. Arcuri. This person would be able to be tried for any
criminal matter in the State of Utah. There would be no double
jeopardy problems as a result of the hearings that are going
on. Is that correct?
Mr. Halstead. I wouldn't think so.
Mr. Arcuri. And there is no authority here to give Congress
any conferral of immunity authority or make any conferral of
immunity.
Mr. Halstead. Not within this particular resolution. There
are standards in place at a general level that apply to the
granting of immunity.
Mr. Arcuri. Right. It would be use immunity, though, right?
Which means the person would still be able to be prosecuted?
Mr. Halstead. That would be one of the options available,
certainly.
Mr. Arcuri. Thank You. Nothing further.
Ms. Sutton. I have no questions, thank you.
The Chairwoman. Mr. Halstead, we thank you very much for
your time and for your statement. It was very helpful to us.
Mr. Halstead. Thank you. You are quite welcome.
The Chairwoman. That will end the hearing portion of this
matter. We will proceed to the original jurisdictional markup
of H. Res. 836, and the Chair will be in receipt of a motion.
Mr. McGovern. Madam Chair, I move that the committee
favorably report House Resolution 836, granting the authority
provided under clause 4(c)(3) of rule 10 of the Rules of the
House of Representatives to the Committee on Education and
Labor for purposes of its investigation into the deaths of nine
individuals that occurred at the Crandall Canyon mine near
Huntington, Utah.
The Chairwoman. Thank you, Mr. McGovern. You have heard the
motion of the gentleman from Massachusetts. Are there any
amendments?
Mr. Dreier. Madam Chair, I would just like to ask Mr.
McGovern to repeat the motion and read it a little more loudly.
The Chairwoman. Mr. McGovern is indisposed somewhat.
Mr. Dreier. That is the reason I asked.
The Chairwoman. Can he pass to me?
Mr. Dreier. That is good. We have no amendments, Madam
Chair.
The Chairwoman. In that case we will proceed to the
question. All in favor say aye. Aye. All opposed, no. In the
opinion of the Chair the ayes have it. It will be carried for
the majority by me.
Mr. Dreier. And Madam Chair, I am scheduled to do this, and
I would like to state for the record we do have minority views
that we would like to have incorporated.
The Chairwoman. Absolutely. Without objection. The Rules
Committee stands adjourned. Thank you all very much.
[Whereupon, at 3:17 p.m., the committee was adjourned.]