Floor Statements

Mr. Speaker, I yield myself such time as I may consume.

I'm happy that the House is able to complete today the Congress' consideration of this bipartisan legislation. As we have stated at every turn, Republicans strongly support the mission and appreciate the sacrifice of our dedicated Reservists and Guardsmen. We continue to agree that Reservists and Guardsmen who are plunged into bankruptcy by the demands of their service should be given a helping hand under the Bankruptcy Code.

Earlier this session, Judiciary Committee Republicans labored long and hard to achieve a workable compromise that would help these willing warriors. The merger issue for us was simple--that the bill respond to bankruptcies attributable to a Reservist's or Guardsman's service. The Senate has returned a bill to us that preserves the balance that we struck. The Senate has added one amendment, but it is technical in nature and was sought by the Administrative Office of the United States courts.

I urge all Members to support the passage of this legislation, and I look forward to the bill's implementation as law. I also look forward to the results 2 years from now of the GAO study contained in the bill. This study will tell us for sure whether Reservists and Guardsmen are using the relief granted by the bill when it is their service that leads to bankruptcy--not other factors. With this study in hand, when the bill reaches its 3-year sunset, we will know for sure whether it's being abused in cases lacking the necessary link to service. If it is being abused, we will be able to address that abuse at the time that reauthorization is considered.

In light of these considerations, I'm pleased to support passage of the bill.

I would also like to thank others who have worked on this bill, in particular Congressman Rohrabacher from California. I made, as the chairman of the Subcommittee on Commercial and Administrative Law that has oversight of the Bankruptcy Act, a promise that we would reconsider this bill that was done some years ago. Mr. Rohrabacher has done an amazing job, given leadership and determination to bring this bill to where it is today and, by doing so, has redeemed my promise and his and that of many other people.

I reserve the balance of my time.

I thank the gentlelady.

The American people are enraged by this bailout, or rescue as we're now calling it, and I think justifiably so. And they ought to be enraged that the real cause here--or the real cause of what I think should be the rage is that this has been done in a way that has been mandated, directed, expected that we would respond without much involvement. The rage of the American people reminds me of a bull often goes after the cape rather than goring the toreador. And what we need to do here, I think--I hope the American people recognize the opportunity to demand a transparent government.

There was no reason why the administration couldn't have made its three-page proposal available not as a legislative demand but as an outline of what the discussions should have been. There is no reason why we here in Congress have not done an open rule and had a debate on this. We could easily have taken this measure, debated it openly, amended it, adjusted it, and done things that make some sense.

Now the problem as I see the bailout--and the gentlelady and I have talked about this at some length--is that it pumps liquidity into banks and takes paper. That paper we hope is good. We hope it will be more valuable than what we have spent on it.

I thank the gentlelady. We have plenty of time on my side. If the gentlelady would like to yield back temporarily, I would be happy to use my time to talk about that point.

I thank the gentlelady, and if she wishes to remain, perhaps we can have a colloquy at some point.

Let me make a couple of points. We have had a long and intense discussion about what we can do to help solve, not the problem of the banks with their toxic loans which we hope we will buy at a reasonable price in a reverse auction, but what we do on the other side of this problem, which is homeowners who can't afford the loans that they got on property that was often misappraised or appraised fraudulently and therefore left in a box without being able to pay, with mortgages that are resetting at higher interest rates, sometimes with higher balances because of the way the mortgages were arranged.

So how do we help Americans stay in their homes in a reasonable fashion? And we've talked about bankruptcy as one way to do that.

Now in the bill that we did not pass here in the House recently, the Secretary had wide authority. I'm expecting that authority to be continued; and what I would hope is that the Secretary will not just put $700 billion into paper which may or may not be useful, but also something like $50 billion or $100 billion into funds that are intended to help people stay in their homes by creating the opportunity to buy mortgages at a discount, then renegotiate those mortgages with the people who are in those homes or others, and thereby avoid the downward spiral of housing costs.

I don't know that we're going to be able to do much with bankruptcy if this bill that passed the Senate passes the House today, I don't know that we're going to be able to deal with it. But I think that we ought to demand as the House that the Secretary recognize that this is not just a matter of buying paper and saving banks, but it's rather a matter of keeping a downward spiral on housing prices from continuing so that Americans can maintain the value on their homes, can keep their homes, and we can get this economic crisis behind us and perhaps even save some money.

I recognize the gentlelady is standing there. I would be happy to yield to her.

Reclaiming my time, I thank the gentlelady. The nice thing about being clear in your principles is that it's possible to negotiate and come up with compromises that work. It's been a pleasure to work with the gentlelady and also the chairman of the full committee who is also here with us, Mr. Conyers. It's not possible to be farther apart on the political spectrum than I think Mr. Conyers and I are, but we have had a very pleasant, and I think profitable, working relationship on many issues where because of his clear principles, and I hope my clear principles, we've been able to reach compromise.

Going back to what the gentlelady was saying, I fervently hope that I will not be part of any further negotiations on bankruptcy. I hope that we solve this problem today or tomorrow, I suppose, and then make the American people more safe by us being out of town and then letting the next year's crop of people come back and deal with the issue.

Let me just reiterate a couple of things the gentlelady has said. $2.1 trillion of subprime and Alt-A loans are in trouble. If we don't do something about that, those loans, as they fail--to the degree that they fail, and many are likely to fail--are likely to draw down to create a suction that will pull down the prices of all the other houses in America, creating chaos in our market.

It's imperative that the Secretary recognize his authority under, I think, the current language, and make it clear that he intends to do something not just about the paper because, as the gentlelady has pointed out, we don't own all of the fractions of the interests in these mortgages, and therefore we don't have the ability, by pumping money into paper, to solve the underlying problem. You have to do that in another way. And certainly where you have a second or a third, there is no ability by the Treasury, under the current program, to deal with that suction on prices.

So I am hoping that the Secretary of the Treasury will today make it clear that he intends to use part of this bailout money for which he has I think the discretion. I think it is important that he be clear that he has that discretion, that he intends to use the money that way so we can create a floor not just under the banks but also under the prices of our homes.

With that, I reserve the balance of my time.

Mr. Speaker, I noted earlier that the gentleman from California (Mr. Rohrabacher) had worked diligently on this bill, and I talked about his intelligence and determination and the fact that he has redeemed his promise and mine by bringing this bill to the floor today. I would like to yield as much time to him as he may consume.

Will the gentleman yield?

Thank you.

We're now at a point where we're going to be voting very quickly on this bill. I think you heard the colloquy between the gentlelady from California and myself. I'm wondering if the gentleman can be satisfied if the Secretary takes a position publicly that he is going to use some of this bailout money under the discretion that he's given in the bill to do what I suggested earlier, which is, to put money into funds that would buy mortgages and keep people in their homes. Is that the kind of thing that we can do--

Recognizing the gentleman's limited time, we have I think more time on our side, and I would be happy to yield some to Mr. Conyers if he would like more.

Would the gentleman yield for a colloquy on this issue?

Mr. Speaker, I would yield 2 minutes to the gentleman at this point.

The problem we're facing, or course, is the urgency of what's going on. And the gentleman has heard my concern with the failure of the administration to have this aired transparently; but that said, we do have some urgency. If the Secretary is very clear in what he says, can we move forward, as opposed to, say, amending the Senate's bill--which will come over to us--and then sending it back to the Senate for further votes. Personally, I don't think that that is likely to happen; it's your leadership that will control the Rules Committee. But I suspect that we're not going to get the perfect here with the good, that is, a commitment by the Secretary that is clear and open and patent.

Would that serve to resolve the gentleman's concerns?

Mr. Kucinich, if you would like to continue, we don't disagree, and I think by having a further colloquy, I think we actually can come to an understanding.

As I understand your concern, the Secretary does not have the ability--or it would be difficult for him to buy up all the fractionated interests in any given mortgage, and therefore, he is incapable, in his current position--unless he does something remarkable and spends more money than we intend him to spend, he can't provide relief on individual mortgages.

What I'm suggesting the Secretary has the authority to do is to put money into private funds that can then go to the servicing agent of a nonperforming loan, where the person is in an anti-deficiency State, or otherwise can walk away from that loan without recourse to the bank. At that point, the servicing agent has the ability to sell a mortgage, or a package of mortgages. In that event, what I suggest is that if the Secretary will pump some significant resources into the private sector to buy mortgages from servicing agents, and from banks and others, in a market where we are having deterioration of prices, that would tend, dramatically, to solve the problem. It goes a long way toward, I think, the gentleman's concerns.

Reclaiming my time, let me just say the gentlelady is absolutely accurate in her portrayal of the problem. Let me just clarify one thing, because a lot of people listening to us today don't understand what a reset is.

You have mortgages that are at a fixed rate which will then pop up to a market rate in the future. It is that pop up that is a problem. If you have a mortgagee who is behind in his payments, he may be able to stay in the mortgage when it goes up, but he may not be able to afford it. If he's behind, he can't refinance. He's stuck in a world where he can't get out of that mortgage, and the market will drive him. And the bank that wants him to renegotiate can't do it because of the fractionated ownership of that mortgage.

Reclaiming my time, I thank the gentlelady because she has made exactly the point. What we're trying to do here is avoid the collapsing values of houses.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I yield myself such time as I may consume.

I rise in support of S. 3641, a bill to authorize funding for the National Crime Victim Law Institute to provide support for victims of crime under Crime Victims Legal Assistance Programs as part of the Victims of Crime Act of 1984.

In 2007, over 1.4 million Americans were victims of violent crime and nearly 10 million were victims of property crime. All too often, many of these victims are not given a voice in criminal proceedings. Many crime victim organizations around the country such as the National Crime Victim Law Institute work tirelessly every day to ensure that the interests and needs of crime victims are represented throughout the trial process.

The National Crime Victim Law Institute, housed at the Lewis and Clark Law School, was founded in 1997 as a resource for crime victims and crime victim lawyers to further the enforcement of crime victims' rights in criminal and civil proceedings.

The institute is a national network of pro bono legal clinics that represent victims of crime in State, Federal, and tribal courts as they assert and seek enforcement of their rights. Since 2004 the institute has successfully launched and provided ongoing assistance to these legal clinics. This network of clinics has provided legal counsel to over 1,000 crime victims in criminal cases, thereby ensuring victims' rights and voices are honored.

The institute ensures the success of the clinics through regular legal research and expert consultation on the clinics' cases and through rigorous training in victim law for each clinic and its partners.

S. 3641 ensures that the valuable work of the institute will continue and that crime victims will be given justice by the courts and made whole again by their offenders.

I urge my colleagues to support this legislation.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I move to reconsider the vote.

Motion to Table

Madam Speaker, pursuant to the Republican Leadership standards on earmarks, I am submitting the following information for publication in the Congressional Record regarding earmarks I received as part of H.R. 2638, the Consolidated Security, Disaster Assistance and Continuing appropriations Act, 2009:

Congressman Chris Cannon. H.R. 2638.

Account: FY09 Defense, Air Force Procurement, 048 C-130.

Project: SENIOR SCOUT Beyond Line-of-Sight, BLOS, Satcom Data Link Project.

Recipient: L3 Communication Systems West, located at 6400 North 2200 West, Salt Lake City, UT 84116.

Description: It is my understanding that the $7 million will be used to upgrade the SENIOR SCOUT system to increase connectivity and data rates for real-time Reachback and dissemination of intelligence to national and tactical consumers.

Spending Plan: The $7 million in funds will be used for two fixed- site SATCOM Earth Terminals supporting SENIOR SCOUT missions. One fixed site would be located in the CONUS for exploitation/analysis of SENIOR SCOUT data and the second site would be Out-of-CONUS supporting Theater tactical operations.

Congressman Chris Cannon. H.R. 2638.

Account: Aircraft Procurement 001 F-35.

Project: Automated Composite Technologies and Manufacturing Center Project.

Recipient: Alliant Techsystems, ATK, located at Bldg. B14, Freeport Center, Clearfield, UT.

Description: It is my understanding that the $5 million will be used to scale-up enhanced fiber placement processing technologies.

Spending Plan: The program will provide improved military capability to fulfill an unmet requirement or need identified by the Department of Defense. Funding execution and expenditure plans shall be developed and approved by the responsible program manager for the Department of Defense, Military Service or Department of Defense Agency, pursuant to applicable federal acquisition laws, regulations and guidelines.

Congressman Chris Cannon. H.R. 2638.

Account: Research, Development, Test and Evaluation, 33 0603005A Combat Vehicle and Automotive Advanced Technology.

Project: JAMMA Lightweight, Armored, Hybrid, Power Generating, Tactical Vehicle Project.

Recipient: Klune Industries, located at 1800 N. 300 West, Spanish Fork, UT 84660.

Description: It is my understanding that the $2 million will be used for the Joint, All-terrain, Modular Mobility Asset (JAMMA) family of vehicles which is designed to greatly enhance mission performance and survivability and become a force multiplier for all U.S. conventional and special operations forces.

Spending Plan: The funds will be used for building test article JAMMA vehicles for User Group validation, for advanced requirements testing, and for refinement of the design in regards to lowering the manufacturing costs of the JAMMA family of vehicles.

Congressman Chris Cannon. H.R. 2638.

Account: Air Force Procurement, Research, Development, Test and Evaluation, 12 0602204F Aerospace Sensors.

Project: Space Qualification of the Common Data Link.

Recipient: L3 Communication Systems West, located at 6400 North 2200 West, Salt Lake City, UT 84116.

Description: It is my understanding that the $1.6 million will be used to increase persistence of intelligence data from space-based systems to the combatant forces. The addition of CDL to space-based military ISR and commercial remote sensing platforms allows in-theater tasking collaboration, collection and dissemination that can take place in real-time by the war fighter using existing deployed CDL ground infrastructure to support multi-layered sensor networks for air, space, and cyber domains.

Spending Plan: The funds will be used to continue work directed by the Air Force Research Laboratory, Wright Patterson AFB. Specifically for Harden MODEM, Analog-to-Digital converters and other key components to space environment, ``S-Qual'', and to produce and test Common Data Link system to support Operationally Responsive Space initiatives including TACSAT II and other space-based ISR platforms.

Congressman Chris Cannon. H.R. 2638.

Account: Navy Research, Test and Evaluation, 42 0603561N Advanced Submarine System Development.

Project: Fiber Optic Conformal Acoustic Velocity Sensor.

Recipient: Northrop Grumman Corp, located at 1000 Wilson Blvd., Suite 2300, Arlington, VA, 22209

Description: It is my understanding that the $2 million will be used to accelerate development of Fiber Optic Conformal Acoustic Velocity Sensor, FOCAVES, technology for the next generation SSN, Virginia Block IV, and the follow-on Ballistic Missile Submarine. These systems need to be demonstrated in the 2009-2010 timeframe to support future ship sonar acquisition efforts.

Spending Plan: Complete development and fabrication of a SSN FOCAVES Wide Aperture Array Panel. Conduct integration and testing of the FOCAVES panel Begin risk reduction simulation/stimulation and testing at Lake Seneca.

Mr. Speaker, I thank the ranking member.

I rise in opposition to this bill. A similar bill passed under suspension by about a vote of 410-11, and I was one of the people that voted for the bill at that time. The bill went over to the Senate. The Senate has amended the bill.

The underlying bill I think is actually a very good bill. It's a very important bill. We need to do something with it. But the bill that has come back is dramatically different from the bill that went over to the Senate.

My understanding is that the Senate has included in this bill the power for Federal law enforcement agencies to seize equipment that may be used in violation of the act. And what that means is, if you have got a kid who downloads music improperly, your computer may be seized. I'm not exactly sure what the scope of that seizure is, but that's in part because this is a gerrymandered piece of this bill that was added to an underlying bill that was coherent and integrated and would have worked very, very well.

As it is, I have to rise in opposition to this, what I think of as an extraordinary assertion of Federal authority over what we do with our personal lives and our computers and our equipment.

That is not to condone, by any stretch of the imagination, the improper use of copyrighting material, but to say, rather, that this bill, in its current form, has gone too far in that regard.

And so I oppose the bill, and I ask that my colleagues take a look at it and consider it and consider opposing this bill, along with me, because of the overreach that has happened here.

I might note this seems like this happened about 8 years ago where the Senate added a provision to one of the appropriations bills that would have allowed the recording industry to spike, that is, to put a virus on the computer of the user on which downloaded music resided.

That was inappropriate. We worked on this side to stop that, and I think we should stop that here with this bill now.

Mr. Speaker, I rise today in support of H.R. 7084, the Webcasters Settlement Act of 2008.

I want to thank my friend, Chairman Berman, for his tireless work on this issue, as well as Mr. Inslee, Ms. Zoe Lofgren and the ranking member of the Judiciary Committee, Mr. Smith.

Since the CRB's ruling in March of 2007, the stakeholders, including the Digital Media Association, NPR and RIAA, have been negotiating for a lower rate to preserve the existence of Internet radio as we know it.

We know that the rates set by the CRB would have killed Internet radio, and today we stand on the cusp of a major breakthrough after months of difficult negotiations between the private parties. This bill does nothing to affect the scope of performance rights or make any other changes to the underlying copyright law. It clearly does not affect broadcasters. They will not be bound by any settlement, negotiated settlement or settlement agreement.

This bill simply clears the path for the private negotiations to continue while Congress is in recess. I have long opposed congressional mandates and other government impositions on private parties.

I urge my colleagues to support this legislation. It simply gives the webcasters and copyright holders the freedom to continue the negotiation process.

Without this legislation, negotiation could not continue, and all parties would be bound by the CRB decision.

Mr. Speaker, this is likely to be the last time I address the House, at least for some time, and I would like to take a moment to thank the Judiciary Committee staff, and the majority staff, and minority staff, for their tireless work, and for the floor staff of both the majority and minority parties who have been amazingly good at keeping things moving here.

Finally, I would like to thank our wonderful clerical staff who keep things moving and have made this such a pleasant and wonderful place to do business. I think I should also like to add thanks to our security for the floor for the wonderful support they have been.

Would the gentleman yield?

This is an amazing, actually, pass. Mr. Inslee and I, of course, have worked on the Natural Resources Committee together and differed sharply on many issues, but never unpleasantly.

This is an amazing pass where people of such divergent views are together on the same issue. It's a nice send-off. I appreciate your kind comments and those of the gentlelady from California and the gentleman from Washington and the gentleman from Texas.

Madam Speaker, I yield myself such time as I may consume.

On Tuesday, the life of an Alexandria, Virginia, police officer was spared because he was wearing a bulletproof vest when he was shot in the chest. The officer was shot during a traffic stop on Interstate 395 just outside of Washington, DC, by a man who later took his own life. Fortunately, the officer is expected to make a full recovery.

There are more than 900,000 State and local law enforcement officers who risk their lives every day to keep our community safe, yet we often lose sight of how quickly something as routine as a traffic stop can turn deadly for a police officer. Each year approximately 16,000 State and local officers are injured in the line of duty. In 2007, for instance, 55 police officers were killed by firearms in the line of duty.

Thankfully, many police officers and sheriff's deputies are saved each year by bulletproof vests. The Bulletproof Vest Partnership was created by the Bulletproof Vest Partnership Grant Act of 1998 as a Department of Justice program to provide funding for bulletproof vests and other body armor to State and local law enforcement.

Since 1999, 40,000 State and local governments have participated in the Bulletproof Vest Program. The program, administered by the Office of Justice Programs, has awarded Federal grants to support the purchase of an estimated 1.5 million vests, including over 800 vests to law enforcement agencies in my home State of Utah, making my police and many police around the country safer.

H.R. 6045 reauthorizes the Bulletproof Vest Partnership Grant Program through fiscal year 2012. This legislation enjoys broad bipartisan support and endorsements from a number of law enforcement organizations, including the Fraternal Order of Police.

It is important that we reauthorize this simple and effective program to protect our men and women in law enforcement. I urge my colleagues to support this bill.

I reserve the balance of my time.

Madam Speaker, I yield for so much time as he may consume to the gentleman from New Jersey (Mr. LoBiondo).

Madam Speaker, I wanted to just thank Mr. Visclosky and also Mr. LoBiondo who suffered tragic losses and resulted in very important protection for my police and police around the country.

I yield back the balance of my time.

Madam Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Speaker, I yield myself such time as I may consume.

The gentlewoman from California has eloquently set forth the facts, the simple facts that relate to why we are here today. This is a profoundly important piece of legislation because it transforms a wrong in American history.

I would just like to say that one of the profoundly important things in our time, one of the things that I am most proud of and most pleased with, in fact one of the things that gives me the greatest pleasure in life, is the fact that we are in a time when a person's ethnicity is less important than his or her capabilities.

I think it is time that we ask the President to pardon Jack Johnson, because he represents some of the difficulty in our past. I am impressed that he was killed in a car accident after he sped away from a restaurant that refused to serve him. Every American today is uncomfortable with that. It was a standard at one point in time. It is not the standard in America today, something that I think is wonderful in our country.

At a time with other crises going on around us, I am pleased to ask for our colleagues to support this bill and do something right, or recognize that some wrong was done in America and do something about that.

I support the passage of House Concurrent Resolution 214, which calls on the President to grant a posthumous pardon to Jack Johnson for a racially motivated conviction for violating the Mann Act.

Jack Johnson was the first African American boxer to become the heavyweight champion of the world. But the Mann Act conviction diminished Mr. Johnson's athletic, cultural, and historic significance and tarnished his reputation.

Jack Johnson was born in Galveston, TX, in 1878. The son of former slaves, Johnson grew up poor. He attended school only until the fifth grade and began boxing as a young teenager.

By 1902, Johnson had won at least 50 fights against both white and black opponents. However, his efforts to win the heavyweight title were thwarted as world champion Jim Jeffries refused to face him. In 1905, Jeffries retired from the sport rather than give Johnson a title fight.

In 1908, Johnson finally won the heavyweight title when he knocked out Tommy Burns in Sydney, Australia. However, Johnson was not officially recognized as champion until 1910, when he bested Jim Jeffries who came out of retirement specifically for the fight.

Johnson went on to defend his title a number of times. But in 1913, at the height of his career, the boxer was convicted of violating the Mann Act--a law that outlawed the transportation of women across state lines for ``any immoral purpose.''

After his conviction, Jack Johnson fled the country and spent several years abroad as a fugitive. In 1915, he lost his title to Jess Willard in Cuba.

Five years later, Johnson returned to the United States, surrendered to authorities, and served 1 year and 1 day in prison. He was never given another shot at the heavyweight title, and he never cleared his name. He died in a traffic accident in 1946 at age 68. He was furiously speeding away from a restaurant that refused to serve him.

In 2004, filmmaker Ken Burns initiated the movement for a pardon after producing a documentary about Jack Johnson's life. That year, the Senate approved Senate Resolution 447, an earlier version of today's resolution, by unanimous consent.

In 2005, a bipartisan group of Senators, led by Senator McCain, wrote a letter to the President to request a pardon. The letter stated that a pardon ``would be a strong and necessary symbol to the world of America's continuing resolve to live up to the noble ideals of freedom, opportunity and equal justice for all.''

Although it has been over 90 years since Jack Johnson's conviction and over 50 years since his death, a Presidential pardon would be untimely but still just.

I join my colleagues in supporting this resolution and ask that the President grant a long-awaited pardon to Jack Johnson.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Speaker, I yield myself such time as I may consume.

I would just like to thank the gentlewoman from California for taking the lead here today on this issue. It is an important issue, and she has laid out the facts behind the need for this today.

We live in a world of very quickly transforming technology. The courts sometimes have difficulty keeping up with that, and we have to act to create the legal environment for the courts to appropriately act. This bill does that. I encourage my colleagues to support it when it comes to a vote.

Mr. Speaker, I rise in support of H.R. 4120, the Effective Child Pornography Prosecution Act of 2007. The House passed this legislation in November of last year to combat the pervasiveness of child pornography on the Internet.

Child abuse and exploitation are among the most heinous crimes committed in this country. And in recent years, the Internet, with its virtually unregulated access to information and to people all over the world, has become a foul source for this type of criminal activity. However, in many instances, Federal prosecutors are prevented from seeking justice.

In a decision by the 10th Circuit United States Court of Appeals in United States v. Schafer, the Court ruled the transmission of

child pornography on the Internet did not satisfy the interstate requirement in child pornography laws.

H.R. 4120, the ``Effective Child Pornography Prosecution Act of 2007,'' responds to that decision by expanding jurisdiction for prosecuting Internet child pornography crimes.

This bill allows the government to prosecute cases when child pornography or is transmitted ``using any means or facility of interstate or foreign commerce.'' This is the broadest assertion of interstate commerce power that Congress can make consistent with the Constitution.

H.R. 4120, as passed by the Senate, includes provisions similar to H.R. 4136, the ``Enhancing the Effective Prosecution of Child Pornography Act of 2007'' which also passed the House last November.

This language closes a loophole used by child pornographers to circumvent the law by expanding current child pornography statutes.

Current law prohibits the ``possession'' of child pornography. This law pre-dates the prevalence of the Internet in transmitting child pornography images. Today, a pedophile can access child pornography and view it but, under the current statute, may not be criminally liable for possessing it. This provision will prohibit accessing such content with the intent to view it and will no longer require an offender to actually download the material.

It is no longer sufficient to warn our children to not talk to strangers. With the expansion of the Internet and other technologies, we must now find new ways to protect our children from the dangers of the world.

H.R. 4120, the ``Effective Child Pornography Prosecution Act of 2007,'' provides law enforcement important tools for combating these heinous crimes.

I urge my colleagues to support this bill.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Madam Speaker, consistent with the Republican Conference standards established earlier this year, I submit the following information regarding the Metals Affordability Initiative that I support.

Bill: H.R. 5658, Duncan Hunter Defense Authorization.

Account: Air Force Research, Development, Test and Evaluation.

Legal name of receiving entity: Metals Affordability Initiative Consortium.

Address: MAI Program Management Office, Pratt & Whitney, c/o Thomas Rupprecht, Mail Stop 114-45, 400 Main Street, E. Hartford CN.

Anticipated sources of the funding for the duration of the project: MAI operates under a Technical Information Agreement (TIA) with a total project cost cap of $75,000,000 through FY 13. AFRL has budgeted approximately $13.5 mil through FY 2011 from limited discretionary funds for developing advanced structural metals technology.

Percent and source of required matching fund: MAI participants cost share 10 percent on AFRL-directed Type I projects and at least 25 percent on industry-directed Type II projects, funded by congressional directions.

Justification for use of federal taxpayer dollars:

The mission of MAI is to maintain U.S. leadership in the strategic aerospace metals industrial sector by using technology innovation to maintain global competitiveness while improving performance and increasing affordability of weapons systems. This sector includes the entire domestic specialty aerospace metals industrial manufacturing base, representing all elements of the supply chain, which produce aluminum, beryllium, nickel-base superalloys, and titanium.

MAI is a model for government/industry collaboration. MAI programs have already accomplished 47 current or planned technology insertions into military systems.

MAI provides innovation, rapid development and implementation of new metals technology. Many of the MAI programs impact sustainability of the aging Air Force fleet. The authorization provided for in this bill will allow for the initiation of 6 new programs, as well as sustaining ongoing programs, directed at sustainment and life extension, fuel savings/energy management and access to space.

Madam Speaker, will the gentleman yield?

I thank the gentleman for yielding.

Madam Speaker, I simply want to associate myself with the gentleman's remarks about our friend Ted Kennedy. I'm going to do a Special Order in a little while about energy. I think he would disagree with most of what I say, but he would do it in an agreeable fashion. He has been a good friend and great legislator. And I want the gentleman to know that, with him, my prayers and the prayers of many others on our side of the aisle go out to the Senator in this time of great difficulty.

I would like to speak this evening about energy policy in America, and the sources of energy, and I expect to be joined here in this discussion with several other Members of Congress. Adrian Smith from Nebraska is going to be speaking to us, and I will yield to him very shortly about the Alaskan National Wildlife Reserve; John Peterson will be with us about natural gas and the need to develop that resource; Rob Bishop will join us I think shortly to talk about what it means in the human costs to not have the resources that we need. We expect to be joined by Phil Gingrey of Georgia and perhaps John Shimkus of Illinois as well.

Let me begin by just saying that the U.S. policy to use corn for ethanol and drive up the prices of grain worldwide and to not develop the resources that we have so richly in America are not morally neutral. They are profoundly wrong. So I hope that after some discussion about these issues tonight, our colleagues in Congress will begin to understand what the resources are and how we can use them.

Now I would like to yield to the gentleman from Nebraska (Mr. Smith), and when he is finished talking about the ANWR issue, I would like to put that in perspective by talking about what other resources we have and how that fits. But drilling in ANWR is profoundly important. If we had done that some years ago, we would absolutely not have prices over $100 a barrel for oil.

I yield to Mr. Smith.

Would the gentleman be willing to answer a couple of questions?

Thank you. They won't be hard. I might point out in Utah we had 76 billion tons of coal locked up by one monument that President Clinton made, the Grand Staircase-Escalante National Monument. That is the equivalent, the gentleman mentioned coal-to-liquid, that is the equivalent of 150 billion barrels of oil locked up in a monument.

But let me make sure I have these numbers right, because they are actually startling. The whole Alaska National Wildlife Reserve is 19.6 million, almost 20 million acres. That is bigger than most northeastern States.

The Third District of Utah is large as well that I represent, and that is about the size of that. And so we have about 1.5 million acres that were set aside by President Carter and the Congress when the refuge was established for oil development. Now we are talking about 2,000 acres of land to develop oil on. That is the proposal. That yields 10 billion barrels of oil.

That would mean, I think you said, about 1 million barrels of oil a day.

What would happen to the $120, now pushing on or moving toward $130, per barrel of oil if we had 1 million additional barrels of oil production a day?

Those speculators have virtually no downside. The upside is limited only by what they are willing to guess on in the future. So to bring that oil price down, I think we need to bring some new sources on or make it clear we are going to bring some new sources on. I think, like the gentleman, that would cause these prices to plummet.

I think that is absolutely right. Reclaiming my time, I thank the gentleman. I would like to point out to him, I paid $3.59 for gas the last time I bought gas. That is obscene. It is obscene. If we had been thoughtful about ANWR, if we had acknowledged the desires of the people who live in ANWR, who care about the land in ANWR, we would be drilling there, having minimal effects, and producing a much, much lower price for gas. That is an obscenity that we ought to be rid of.

As you leave, I appreciate that. I drove to a new gas station the other day. I went to the pump and put my card in and got ready to pay for the gas, and as I did that, I reached over to get the gas hose and it said $4.39 a gallon. I was stunned. Then I looked. It was green and I realized that that pump had a diesel handle on it as well. The 15 or 20 percent better mileage you get doesn't cover the extra dollar that you pay, the 25 percent higher prices. So I sympathize with the gentleman.

But I would point out that oil shale is essentially diesel fuel and then can be used for that, and if we develop that, it should bring your prices down, Mr. Smith, significantly, and all the rest of the world's as well, which I think is the right thing to do.

Thank you very much for your time. We appreciate that.

We are now joined by Congressman Bishop from Utah, who agreed to join us despite the fact he is hosting a group of German members of the Bundestag. So I would like to turn some time over to him to talk about whatever he wishes, but probably the human costs of these horrible energy prices and policies that we have in America.

I yield to the gentleman.

Would the gentleman be willing to enter into a colloquy?

We talked a little bit about innovation. I think that in the bill that we are proposing as the Western Caucus, we have some prizes in there for energy efficiency including what is under consideration, a prize for a motor or an engine or gasoline engine that would go say 100 miles per gallon. And the gentleman probably knows this, but the typical engine in America gets about 17 percent efficiency. In other words, you get about 17 percent of the energy out. The highest efficiency are diesel engines on long-haul trucks, which get about 35 percent; meaning 70, 65, or 83 percent is wasted in the process.

If innovation would support us in doubling the efficiency of engines, what would happen to the price of gasoline in America and diesel?

Heaven help us, from experts sitting in Washington who get paid to continue the problem instead of solve the problem.

Thank you, Mr. Bishop. Appreciate your time.

Let me just point out that production and conservation are both matters of innovation. We're going to talk tonight about new ways to innovate in production, and also in other areas of conservation.

A new motor would conserve a great deal, a new, more efficient motor would conserve a great deal of energy. And I think that if you doubled the efficiency of engines on the highway today, or if you had an engine that doubled the efficiency, the threat of that doubling of efficiency would almost immediately result in a plummeting of the price of oil overnight, without any additional production.

We're joined now by Congressman Peterson from Pennsylvania. And Mr. Peterson has been a great advocate of developing our natural gas resources with reasons why this is a critical part of what we're doing in the country. And I would yield to Mr. Peterson as much time as he may consume. And hopefully, at the end of your presentation, we can chat a little bit about what this means for America.

Would the gentleman yield?

You know, looking at that chart is actually a little disturbing, because unless we produce a great deal more natural gas, our current reserves being diminished, or diminishing, we have to import a lot of natural gas. So if we're not going to do coal power plants, if that chart, instead of widening for coal, shrinks for coal, then you have to widen natural gas, which means you're going to have to import a great deal of natural gas.

So here we are, the Middle East of coal. We have more coal than we know what to do with. We've stopped using coal. We don't use coal to liquid. We don't use those things because we can't sequester the CO2. That means, instead of expanding, coal declines. Coal declines. Natural gas goes up.

So now all of sudden you just listed all the things that we use natural gas in. And I add those things all to be an inflationary environment where, in particular, food prices go up, or continue to go up, having doubled, in some cases tripled over the last couple of years.

You and I have been talking about this issue for years now, and we've seen no increase, a modest increase in some drilling in the inter-mountain west, but very little new sources.

And what's happened to costs of gas, that is, natural gas, over the last 3 years?

I don't think so either, and I don't think the American people think so. And I think the American people are really fed up. You can't double or triple people's natural gas costs, their heating costs in their homes. You know, personally sometimes I drive in the wintertime even without a coat on. If I jumped out of my truck and went into that store, I'm not sure I would be comfortable, but that's one of the costs that we're imposing on people.

We cannot--the American people are not going to allow us to maintain these idiotic policies that lock up resources while people are actually going hungry in other parts of the world because we're using corn for ethanol and we are taking natural gas, and instead of turning it into fertilizer, we're bidding it off to the Japanese, the Chinese, and the Indians.

Those are the best blue-collar jobs in America and Democratic policies are driving them offshore.

You and I are on the Resources Committee together. We are going to have a vote on this issue, and every American is going to know because every talk show host and every newspaper is going to talk about this vote because this vote is about the cost of energy.

And included in that mark-up we are going to have a vote on ANWR, and we will have other votes that I think will be profoundly important.

It was in the mark-up a year ago that the Democrats, over our objections and over our votes, insisted that BLM not be allowed to go forward with its regulatory scheme for oil shale. We're now a year behind on that. It was in the appropriations bill last year. The Democrats put a provision that prohibited the use of any money that BLM had for processing permits on BLM property. Thank heaven that we have school trust lands that can be developed for oil shale. But without that, we would be in real trouble.

And you and I talked about the increase in price that went from $2 to $9 briefly and then it came back down a little bit, but we talked about how if we don't do this Outer Continental Shelf Development, if we don't do the inter-mountain west and other and gas resources, we'd be in the predicament that, lo and behold, we're in today.

We're talking about families doubling the price of heating their homes, businesses, doubling or tripling the price of heating their business because of failed policy.

We have energy. We need to develop it.

That's right. You cannot compete.

These traders are betting that Saudi Arabia and other OPEC countries won't act contrary to their own interests and allow the price to keep going on up, and that's why you get the speculative bill that we had today.

I actually used to be a lawyer, and I can't imagine a legal theory upon which you sue a sovereign

country. I can imagine a legal theory upon which you react to Congress, And you know what that is? Vote for someone else.

Thank you, Mr. Peterson. We agree on that point. I think that for the first time in maybe our tenure in Congress, we're going to see a huge increase in the Natural Resources Committee markup of an energy bill to see if we're going to actually drill in ANWR, if we're going to drill in the Intercontinental Shelf and loosen up our drilling elsewhere around the country.

But that sort of begs the question, right now we're talking about various kinds of oil and gas. Let me put some context here.

In our conventional oil resources we have about 50 billion barrels that we know about. That includes 10 billion in ANWR. These are in the United States of America. We have some oil sands. Those are very difficult to develop in America. They're very different from the oil sands in Canada where each grain has a little molecule of water so the oil comes off the sand with just a little bit of heat.

We have about 100 million barrels of oil on the Outer Continental Shelf, and all of that adds up to about 200, 225 million barrels of oil that we have available to us today in the United States.

Think about that. 225 barrels of oil. We now have, and I'm going to pull up a chart here. We have in oil shale about 1.4, 1.3, let's see, that's ``trillion'' barrels of oil. I'm sorry. That's not ``billion'' barrels of oil, that's ``trillion'' barrels of oil in Colorado. In Utah, we have about 800 million barrels of oil and Wyoming about 500 million barrels of oil. Those are millions. We're not talking about a lousy 225 million barrels in all of our other resources. We're talking about 2.6 trillion barrels of oil that are available to America today in oil shale.

Now, let's pull up the map, if we can here. This is a map of Utah. Idaho is over in the corner, southeast Wyoming and northeast Colorado, and you can see the dark green are areas with more intense reserves of oil shale and that the lighter green are areas where you have not quite as dense oil shale. And these are the areas that have the oil that we were just talking about, 1.2 trillion barrels in Wyoming, 800 million barrels in Utah. These reserves are different, and the way to get them out, the way to get the oil out is going to differ between those.

Let's talk for just a moment about why we can be actually talking about producing oil out of shale today whereas it did not work in the past.

In the old days, and over here you see on the side it says ``past oil shale efforts,'' we used heat to convert kerogen. We broke the shale up and put it into a rotary kiln, and then heated it up. The problem is you needed enough heat in that rotary kiln to get the kerogen out, but at the same time, that was hot enough so that the rock melted into itself; and so you would have to shut the operation down occasionally and go in with sledge hammers, literally, and knock the rock out that had melted into itself.

Today you use chemistry and minimal heat to convert the kerogen to oil.

That's a profound difference, and there are about six different companies, four large companies and two small companies, that are using different kinds of technology to get with a smaller amount of heat to convert that kerogen to take it out of the shale. Kerogen, by the way, is a lot like diesel fuel and comes out of the system, very close to that. Needs to be cleaned up a little bit. It's like JP-8 diesel fuel.

In the old days, we mined this. We had a strip mine or room and pillar mining, and then we brought the shale to the surface to be processed. Today, the focus is on in situ recovery and conversion.

Back in the day, low-quality energy, intensive product, or low- quality energy, intensive product to refine; that is you had to put a lot of energy in it and it was hard to refine. And today you have high- quality value product with minimal cost to refine, and then we were focused on the resource back then, and now we're focused on balanced environmental, technical, and economically sustainable methods.

The fact is we've transformed the way we work technologically in the world today, and we can get these resources out of the ground much more cheaply.

Let's talk just for a moment about the reserves that we have--or what we use imported to the United States and the world's reserves.

The Saudi Arabians have about 264 billion barrels of reserves that we know about. Canada has about 179 million or billion barrels of oil, Iran has 138, Iraq, 115, and Kuwait 102. And the people that supply this oil are Mexico, and these are average barrels per day that we import.

So from Canada we import about 2.43 million barrels of oil, from Mexico 1.53, from Saudi Arabia 1.49, from Venezuela 1.36, and from Nigeria 1.13, and then we import a great deal more from other countries who export lesser amounts to us as we go.

These are not exactly the kind of people that we want to be relying on except with the exception of Canada perhaps and also to some degree Mexico, and that's improving.

And in the last couple minutes we have before we finish this, let me just say that this is complicated. The natural resources is complicated and the technology is complicated, but we've advanced dramatically in our knowledge and understanding of how to do that. We have now, today, for the first time in 30 years a commercial test going on here in eastern Utah of how to get oil shale out of--oil out of shale, and we think that test will be done about September 15, and the projection is we will be able to get oil out of shale for $30 a barrel.

Now consider this: Trillions of barrels of oil at about $30 a barrel. That's profound. I think that cost is going to actually go lower than $30 a barrel, and I'm about to introduce a bill that will allow the President to cut through the permitting processes and allow us to develop our oil shale at a reasonable time using reasonable understanding of the technology and the environmental impacts so that we can actually bring that shale to market, bring down the cost of oil, stop funding our enemies in Iran and Saudi Arabia and Venezuela, and start producing oil in America.

Mr. Chairman, I have an amendment made in order under the rule.

Mr. Chairman, I rise today to offer an amendment that is necessary to refine the vague language contained within this bill.

The legislation requires the lands included in the National Landscape Conservation System be managed for values, without ever defining what the term values means.

As we all know, values have different meaning to different people. In the case of land management agencies, values can range from cultural and historic resources to things as nebulous as ``smell-scapes.''

The loose definition of the underlying bill leaves the Federal Government open to litigation based on what someone may or may not determine to be consistent with what they believe are the values of lands included within the National Landscape Conservation System.

Our Federal land management agencies are currently overwhelmed with litigation which distracts from their primary mission of land management.

This amendment will prevent unnecessary and onerous litigation.

While the underlying legislation has a savings clause, it does not prevent the bringing of a lawsuit. We have been assured time and again that activities on these lands currently allowed will continue without a problem. However, the language does not include important and defined terms such as multiple use.

To illustrate the problem, in the event that multiple use activities such as grazing are currently accruing on lands within the NLCS system and an individual or group decides that grazing activities are not consistent with the values of NLCS lands, they can sue to stop the grazing activities. Consequently, a permitted activity is left open under this new regime to lawsuits based on the loose definition of values.

Most of the parameters by which management is to occur are clearly defined. Passage of the underlying bill would create standards which are not practical to administer. This will allow external groups of all kinds to challenge the BLM's management of NCLS lands based upon what the perceived values of these lands are.

My amendment merely will prohibit lawsuits against the Bureau of Land Management based on how they manage the lands under the NLCS system.

Given the huge cost that we are now suffering with litigation, preventing unnecessary litigation should be a goal of this body.

I urge all of my colleagues to support getting dollars to the ground for management, rather than tying them up in legal proceedings.

I urge support for this amendment and reserve the balance of my time.

I appreciate the gentleman accepting this amendment.

Mr. Chairman, without further ado, I yield back.

Mr. Speaker, I have a motion to recommit at the desk.

Yes, Mr. Speaker, in its current form.

Mr. Speaker, it is essential that we keep the second amendment protections on BLM lands. This motion to recommit will prevent the NLCS from imposing a complete ban on the right to bear arms like the National Park Service.

In 2006 the National Park Service prevented visitors from protecting themselves, and 11 individuals were murdered, 35 were raped, and 16 were kidnapped. We cannot let the NLCS become an area where the public won't go because they can't protect themselves.

There's a crisis on our Federal lands, especially along the southern border, and a National Park Service second amendment restriction will ensure only the drug traffickers, rapists, and murderers will have guns. The ability to carry firearms on these lands for personal protection is a mere lawsuit and a sympathetic judge away from being denied.

The Altmire amendment already agreed to preserve certain rights, but the vague language of this legislation leaves second amendment rights woefully unprotected. The second amendment was never meant to provide cafeteria-style rights for legislators, for us to pick and choose. The second amendment is a constitutional right which you either support or oppose. This motion to recommit will unequivocally make sure that is the case.

I urge a ``yes'' vote on this motion to recommit.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I demand a recorded vote.

Mr. Speaker, I demand a recorded vote.

Madam Speaker, will the gentlewoman yield?

I hope the gentlewoman will remain on the floor so that on my time I will be able to yield for a colloquy.

Madam Speaker, I would ask the chairman of the Subcommittee on Commercial and Administrative Law, who has oversight of this matter and which committee I rank on, to remain on the floor so we could have a colloquy on this issue.

It appears that she has left the floor. That's unfortunate. Her response to my inquiry about yielding was that she didn't have enough time, and we are standing here today with very little time to debate an issue that is dramatically important. It's important for this institution, and, by the way, people on both sides of the aisle have said and the Speaker and majority leader have both made a point of how important this issue is to this body. It is vitally important to me that we retain the rights of this body as it relates to administration, whether that's a Republican administration or Democratic administration.

In his opening statements, Mr. Diaz-Balart gave a quote from former Attorney General Janet Reno in which she said there was no right to do what we're trying to do today. I would have loved to have asked the chairman on the Subcommittee on Commercial and Administrative Law if she thought that was the case or if she disagreed with what the scope of the right of the administration is to not appear.

Obviously, there is a sense in this case that we ought to get something done; and, in fact, we have done a great deal. We have had hundreds of hours of depositions, literally tens of thousands of pages, tens of thousands of e-mails. We have asked questions of everyone involved in the matter in the case. And what have we come up with? I wanted to ask the chairman what the evidence we are going to present to the U.S. Attorney is that he can take and say, I have a need to get this information from these people in the administration who won't show up to the House. I have a need to understand these facts which seem to be in confusion. I have a need to decide what between these two different stories is the truth.

But we haven't said that to him. We don't have evidence that we can give the U.S. Attorney. What we are giving to him is a desire to continue a witch hunt which has produced up to today zero, nothing, as far as I can tell; and I've been in every meeting, every hearing, and followed on every single deposition that we have had. There is nothing that indicates that anybody has lied or that there is a reason that the White House has been involved. And, therefore, there is no reason that I can understand, and I have asked many times on the record in committee hearings what those reasons are, what it is, what the discrepancies, what the problems are for which we need to subpoena people in the White House and create a showdown, a showdown between our institution and the White House. And I ask the gentleman, as the chairman of the committee has just risen to his feet, and I would love to yield to him if he is willing to answer that question: What are the discrepancies?

Reclaiming my time, Madam Speaker, I appreciate the gentleman's position. The gentleman has said that eloquently in the past on many occasions. But we are now talking about getting a subpoena, enforcing a subpoena in a criminal process against people for whom we have no evidence, as far as I can tell, and I will be happy to yield to the gentleman if he has evidence, no evidence that they have been involved.

There are no discrepancies in the testimony that we have had before us, is there?

Reclaiming my time, Madam Speaker, I appreciate the gentleman's candor, and I appreciate the very gracious way the gentleman has handled this whole investigation. But it comes back down to this: we have no evidence.

Let me just finish by saying that having seen this, if there was a conspiracy, and I know that the majority believes there is something evil that is happening out there, then we ought to have given enough time and enough context to be able to track that down and prove that this administration has done something wrong.

As opposed to what the gentleman has just said, we have had a number of statements by the chairman of this committee saying that there is evidence of corruption. But we have had no evidence of corruption, none at all adduced anywhere from all the investigations we have done, and there is no basis for these contempt citations. I ask that we vote against them.

Cooper & Kirk,

Washington, DC, December 4, 2007.

Hon. Lamar S. Smith,

Ranking Member, Committee on the Judiciary, House of

Representatives, Washington, DC.

Dear Mr. Smith: We write in response to your request for

our views regarding the legal issues raised by the Judiciary

Committee's resolution recommending that the House of

Representatives find Harriet Miers and Joshua Bolten in

contempt of Congress. Each of us has had substantial

experience in the Executive Branch, including in the Office

of Legal Counsel. Charles J. Cooper served as Assistant

Attorney General for the Office of legal Counsel from

November 1985 through July 1988. Howard C. Nielson, Jr.

served as Deputy Assistant Attorney General for the Office of

Legal Counsel from June 2003 through August 2005. In

addition, our law firm has successfully litigated a number of

significant separation of powers cases.

We have reviewed the opinions of the Justice Department

regarding the assertion of executive privilege and

testimonial immunity in response to the Miers and Bolten

subpoenas. We have also reviewed the committee report

relating to this matter, the additional views of the Chairman

and Subcommittee Chair, and the minority views. The positions

asserted by the Administration reflect the longstanding and

considered views of the Executive Branch, views repeatedly

affirmed by Administrations of both parties. These views were

held during our tenures in the Office of Legal Counsel, and

we continue to believe that they are sound. Moreover, we

believe that a decision by the House to hold Ms. Miers and

Mr. Bolten in contempt would likely be a legally futile

gesture that could ultimately undermine Congress's ability to

obtain information from the Executive Branch.

As an initial matter, even if the House votes to hold Ms.

Miers and Mr. Bolten in contempt, and even if a contempt

citation is referred to the appropriate United States

Attorney, the United States Attorney will have no choice but

to decline to take action on the matter. It has long been the

position of the Executive Branch that ``the criminal contempt

of Congress statute does not apply to the President or

presidential subordinates who assert executive privilege.''

Application of 28 U.S.C. 458 to Presidential Appointments of

Federal Judges, 19 Op. O.L.C. 350, 356 (1995) (opinion of

Assistant Attorney General Walter Dellinger). As then-

Assistant Attorney General Theodore B. Olson explained the

position of the Executive Branch in 1984:

``First, as a matter of statutory interpretation reinforced

by compelling separation of powers considerations, we believe

that Congress may not direct the Executive to prosecute a

particular individual without leaving any discretion to the

Executive to determine whether a violation of the law has

occurred. Second, as a matter of statutory interpretation and

the constitutional separation of powers, we believe that the

contempt of Congress statute was not intended to apply and

could not constitutionally be applied to an Executive Branch

official who asserts the President's claim of executive

privilege in this context.''

Prosecution for Contempt of Congress of an Executive Branch

Official Who Has Asserted a Claim of Executive Privilege, 8

Op. O.L.C. 101, 102 (1984); see also id. at 119, 129

(documenting similar positions taken by the Eisenhower and

Ford Administrations).

While the Chairman and Subcommittee Chair note that Justice

Department opinions such as the Dellinger and Olson memoranda

are not binding on Congress or the Judiciary, such opinions

are binding on members of the Executive Branch--including the

United States Attorney to whom a contempt citation would be

referred. Furthermore, because a prosecutor's ``decision

whether or not to prosecute . . . generally rests entirely in

his discretion,'' Wayte v. United States, 470 U.S. 598, 607

(1985), it is highly unlikely that Congress could obtain any

sort of judicial review of the United States Attorney's

refusal to submit the contempt citation to a grand jury.

Assuming Congress could somehow obtain judicial review of

the claim of executive privilege, we believe that it could

not overcome that claim on the facts presented here. To be

sure, there is a paucity of judicial authority resolving

executive privilege disputes between Congress and the

Executive; still, the following factors should persuade a

court to uphold the claim of executive privilege here.

First, the threshold arguments that executive privilege has

not been, or cannot be, properly invoked to protect the

communications at issue here appear insubstantial. The

Chairman and Subcommittee Chair have identified no

authority--and we are aware of none--requiring the Executive

Branch to submit a privilege log to sustain a claim of

executive privilege in a legislative proceeding. The letter

sent to Chairman Conyers by Counsel to the President

Fielding, written ``at the direction of the President'' to

``advise and inform [Congress] that the President has decided

to assert Executive Privilege,'' Letter of Fred F. Fielding

to Chairmen Leahy and Conyers at 1 (June 28, 2007), plainly

suffices to invoke executive privilege under controlling

precedent. See In re Sealed Case, 121 F.3d 729, 744, n.16

(D.C. Cir. 1997). And In re Sealed Case clearly establishes

that executive privilege extends to ``communications

of presidential advisors which do not directly involve the

President,'' id. at 751, and protects ``communications

that these advisors and their staff author or solicit and

receive in the course of performing their function of

advising the President on official government matters''--

whether or not the President is aware of those

communications. Id. at 752. Given the essential role of

the President in appointing and removing United States

Attorneys, communications to or from senior presidential

advisors regarding the replacement of United States

Attorneys plainly fall within the scope of the privilege

recognized by In re Sealed Case. As the D.C. Circuit

explained, where ``the President himself must directly

exercise the presidential power of appointment and removal

. . . there is assurance that even if the President were

not a party to the communications over which the

government is asserting presidential privilege, these

communications nonetheless are intimately connected to his

presidential decisionmaking.'' Id. at 753.

Second, there is nothing novel or unprecedented in the

claim of privilege here. On the contrary, many historical

precedents support the Administration's refusal to disclose

confidential communications and deliberations relating to the

appointment or dismissal of executive officers. For example,

as early as 1886, the Cleveland Administration rejected

Congress's attempt to obtain communications relating to the

dismissal of a district attorney (the historical predecessor

of today's U.S. Attorneys). As President Cleveland explained,

``the documents related to an act (the suspension and removal

of an Executive Branch official) which was exclusively a

discretionary executive function.'' History of Refusals by

Executive Branch Officials to Provide Information Demanded by

Congress, 6 Op. O.L.C. 751, 767 (1982) (opinion of Assistant

Attorney General Theodore B. Olson); see also id. at 758-759

(discussing similar refusals to provide information regarding

the appointment or removal of executive officers by the

Jackson and Tyler Administrations). Furthermore, D.C. Circuit

precedent addressing executive privilege expressly recognizes

that ``confidentiality is particularly critical in the

appointment and removal context.'' In re Sealed Case, 121

F.3d 729, 753 (D.C. Cir. 1997).

Third, when the judiciary has adjudicated executive

privilege disputes between Congress and the Executive, it has

required Congress to establish that the information it seeks

``is demonstrably critical to the responsible fulfillment of

[Congress's] functions'' to overcome even a generalized claim

of executive privilege. Senate Select Committee on

Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731

(D.C. Cir. 1974) (en banc). To satisfy this burden, it is not

enough for Congress to show that the information it desires

``may possibly have some arguable relevance to the subjects

it has investigated and to the areas in which it may propose

legislation.'' Id. at 733. Rather, it must identify

``specific legislative decisions that cannot responsibly be

made without access to materials uniquely contained in'' the

documents or testimony it seeks. Id. Furthermore, decisions

such as United States v. Nixon, 418 U.S. 683 (1974), and In

re Sealed Case that limit executive privilege to accommodate

the special needs of the criminal justice system offer little

support for Congress here. As the D.C. Circuit has explained:

``There is a clear difference between Congress's

legislative tasks and the responsibility of a grand jury, or

any institution engaged in like functions. While fact-finding

by a legislative committee is undeniably a part of its task,

legislative judgments normally depend more on the predicted

consequences of proposed legislative actions and their

political acceptability, than on precise reconstruction of

past events; Congress frequently legislates on the basis of

conflicting information provided in its hearings. In

contrast, the responsibility of the grand jury turns entirely

on its ability to determine whether there is probable cause

to believe that certain named individuals did or did not

commit specific crimes.''

Senate Select Committee, 498 F.2d at 732. Cf. Nixon, 418

U.S. at 713 (``Without access to specific facts a criminal

prosecution may be totally frustrated.'').

Given the voluminous documentary evidence and testimony

already provided by the Executive Branch--not to mention the

additional documents and testimony that the White House has

offered to make available in attempt to resolve this

controversy, see e.g., Letter of Fred F. Fielding to Chairmen

Leahy and Conyers at 1-2 (June 28, 2007)--it seems clear the

lingering factual ambiguities identified by the Committee

Chairman and the Subcommittee Chair are inadequate to

overcome even a generalized claim of executive privilege

under controlling precedent. And a judicial determination to

that effect would plainly prejudice Congress's ability to

obtain sensitive information from the Executive Branch not

only in this investigation but in future investigations as

well.

The Justice Department's determination that Ms. Miers is

immune from compulsion to testify before Congress likewise

reflects the longstanding and consistent position of the

Executive Branch. As Attorney General Reno explained in a

formal opinion to the President, ``It is the longstanding

position of the executive branch that `the President and his

immediate advisors are absolutely immune from testimonial

compulsion by a Congressional committee.' '' Assertion of

Executive Privilege with Respect to Clemency Decision, 23 Op.

O.L.C. 1, 4 (1999) (quoting Memorandum from John M. Harmon,

Assistant Attorney General, Office of Legal Counsel, Re:

Executive Privilege at 5 (May 23, 1977). This view is not

only that of the current Administration and the Clinton

Administration. As documented in Attorney General Reno's

opinion, this view also reflects the position of the Reagan,

Carter, and Nixon Administrations. See id. (collecting

opinions from Assistant Attorneys General Theodore B. Olson,

John M. Harmon, Roger C. Crampton, and William H. Rehnquist).

This view also reflects the position of the Johnson and

Truman Administrations. See History of Refusals, 6 Op. O.L.C.

at 771-72, 777-78. And as documented by the Justice

Department in its opinion regarding Ms. Miers, the Executive

Branch--including, again, Administrations of both parties--

have long taken the position that the same immunity extends

to former Presidents and their Advisors. See Memorandum from

Stephen G. Bradbury, Principal Assistant Attorney General

Office of Legal Counsel, Re: Immunity of Former Counsel to

the President from Compelled Testimony at 2-3 (July 10, 2007)

(documenting positions taken by the Truman and Nixon

Administrations).

In short, we believe the President's assertions of

executive privilege and testimonial immunity in this instance

are entirely constitutionally sound. We also believe that a

determination by the House to hold Mr. Bolten and Ms. Miers

in contempt of Congress would be futile as a legal matter and

might ultimately prejudice Congress's ability to obtain

information from the Executive Branch.

Sincerely,

Charles J. Cooper.

Howard C. Nielson, Jr.