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“DIRECTING SENATE LEGAL COUNSEL” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S2444-S2445 on April 7, 2000.
The publication is reproduced in full below:
DIRECTING SENATE LEGAL COUNSEL
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 283, submitted earlier by Senator Lott and Senator Daschle.
The PRESIDING OFFICER. The clerk will report the resolution by title.
The assistant legislative clerk read as follows:
A resolution (S. Res. 283) to direct the Senate Legal Counsel to intervene in the name of the Senate Committee on Appropriations and the Senate Committee on the Judiciary in United States of America v. Northwest Airlines Corporation, et al.
There being no objection, the Senate proceeded to consider the resolution.
Mr. LOTT. Mr. President, Northwest Airlines, one of the defendants in a civil antitrust action brought by the Department of Justice on behalf of the United States in the U.S. District Court for the Eastern District of Michigan, has subpoenaed the General Accounting Office to produce documents that GAO collected or generated in the course of its preparation of testimony or reports for several Senate committees, including the Committee on Appropriations Subcommittee on Transportation and the Committee on the Judiciary Subcommittee on Antitrust, Business Rights, and Competition.
GAO advised Northwest's counsel that the documents sought were unavailable because they are protected by both the Speech or Debate Clause of the Constitution, which is Congress's legislative privilege, and GAO's own deliberative process privilege. Northwest Airlines has chosen to contest GAO's assertion of privilege by moving in the U.S. District Court for the District of Columbia to compel GAO to produce the documents.
The records that Northwest Airlines is seeking were records that GAO, which is an investigative agency of Congress, collected or created while preparing testimony or reports in response to requests from committees and subcommittees of the Senate. Northwest has not given GAO, the Senate, or the Court any explanation for why it may defeat the privileges inhering in GAO internal work product and deliberative documents, including drafts of proposed testimony, to defend itself in this antitrust action. None of these internal records at issue in this matter has been provided to Northwest's adversary, the Justice Department. Nor are the final reports issued by GAO or GAO's congressional testimony at issue in this matter, as all parties to the litigation, including Northwest Airlines, have been given full access to these materials.
GAO is opposing Northwest's motion to compel, invoking its deliberative process privilege. But the legislative privilege that is grounded on the Constitution's Speech or Debate Clause belongs to the Congress. In order to ensure congressional independence from the other branches of the government, the Constitution affords Congress with an absolute privilege from compelled questioning through the courts about the performance of its legislative responsibilities, such as the gathering of information and preparation of hearings, the conduct of administrative oversight, and the consideration of legislation.
The Senate has a strong interest in the ability of its committees to receive testimony and analysis from GAO, which serves as its investigative arm, without fear that entities whose activities are the subject of that testimony and analysis will be allowed to root around in GAO's internal work papers, drafts, and deliberative documents seeking something of possible help to them in unrelated litigation. That kind of intrusion into the legislation process is precisely what the Speech or Debate Clause was intended to foreclose.
Because the Speech or Debate Clause privilege belongs to the Congress and because it is the committee of Congress that are the direct beneficiaries of GAO's contributions to their legislative work, it is appropriate that the court hear directly from those Senate committees for which GAO was providing analysis how Northwest's attempt to compel production of GAO's internal work product threatens their autonomous performance of legislative duties entrusted to them under the Constitution. Accordingly, this resolution authorizes the Senate Legal Counsel to intervene in this matter in the name of the Committee on the Judiciary and the Committee on Appropriations to assert the Speech or Debate Clause as protection against compelled questioning of GAO, through compelled production of GAO's internal work product when responding to requests from Congress.
Mr. MURKOWSKI. Mr. President, I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and that any statements relating to the resolution be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. Res. 283) was agreed to.
The preamble was agreed to.
The resolution, with its preamble, reads as follows:
S. Res. 283
Whereas, in the case of United States v. Northwest Airlines Corporation, et al., Misc. No. 99-424, pending in the United States District Court for the District of Columbia, defendant Northwest Airlines, by seeking to compel the production of documents of the United States General Accounting Office, has placed in issue the privileges of the United States Senate under the Speech or Debate Clause, Art. I, sec. 6, cl. 1, of the United States Constitution; and
Whereas, pursuant to sections 703(c), 706(a), and 713(a) of the Ethics in Government Act of 1978, 2 U.S.C. 288b(c), 288e(a), and 288l(a), the Senate may direct its counsel to intervene in the name of a committee of the Senate in any legal action in which the powers and responsibilities of Congress under the Constitution are placed in issue: Now, therefore, be it
Resolved, That the Senate Legal Counsel is directed to intervene in the name of the Senate Committee on Appropriations and the Senate Committee on the Judiciary in the case of United States v. Northwest Airlines Corporation, et al., to protect the Senate's privileges under the Speech or Debate Clause of the Constitution.
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