The Honorable Alberto R. Gonzales
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, DC 20500
Dear Judge Gonzales:
I have received your April 29, 2002, letter concerning your efforts to respond to the Committee?s March 27, 2002, request for information about certain communications Executive Office of the President (EOP) officers or staff had with or relating to Enron Corporation. Although I appreciate your keeping me apprised of your progress in responding to our request, I am deeply disappointed that you have chosen to employ an overly complicated and unduly long process that seems destined to produce an inadequate response to the Committee?s reasonable request.
As you know, the Committee sent the EOP an information request on March 27, 2002, as part of its inquiry into the federal government?s oversight of and interactions with Enron. The Committee requested information from the EOP because of the central ? and generally appropriate ? role the White House and other EOP offices play in developing, coordinating and helping to implement federal policy. The Committee?s EOP information request differed little from ones sent to several other agencies ? including the SEC, CFTC, FERC and the Labor Department ? each of which was able to provide the Committee with a timely and comprehensive response, reporting information dating back more than a decade.
In contrast, it appears from your April 29 letter that you took few, if any, concrete steps to gather responsive information for more than a month after receiving the Committee?s request. Perhaps more troubling, the only step your letter reports having taken ? sending a three question survey to certain EOP personnel on April 29 ? almost certainly will not produce a full and timely response to the Committee?s request.
To begin with, I am troubled that you have apparently limited your search for responsive information to sending a bare bones survey only to current White House officials of a certain rank and an unclear set of officials in other EOP offices, asking solely about their own contacts with Enron. It is unclear whether this search encompasses all EOP offices or just selected ones. There does not appear to be any effort to check whether the President or Vice President met or communicated with representatives of Enron, information the Committee requested. And the survey seems to exclude entirely any contacts with former EOP staff, as well as contacts with ? or recalled by ? EOP staff not included in your survey.
These omissions will likely be of serious consequence to the Committee?s inquiry. For example, according to news reports, the Department of Energy (DOE) has asserted that Andrew Lundquist, a DOE employee detailed to direct the National Energy Policy Development Group (NEPDG) was during the time of his detail an EOP employee for the purposes of submitting information requests about his activities. Given Mr. Lundquist?s portfolio, he is among the individuals most likely to have information responsive to the Committee?s information request. Yet, because Mr. Lundquist has left for the private sector, your survey likely would not capture information about his communications with or about Enron and, for example, the Energy Department.
You also appear to have omitted entire search avenues used by your predecessors that are fundamental to any meaningful search ? like executing a search of your e-mail and other automated systems, reviewing records of those admitted to the White House/Old Executive Office Building complex and the like. Absent a more comprehensive effort than the one you have outlined, it is hard to see how you possibly can have any degree of confidence that you have located and then provided to the Committee the information it has requested.
Even if it were possible to view sending a survey to a limited number of individuals as an adequate effort to gather the requested information, the survey you have designed still would be a problem, because it likely will not elicit even from the survey?s recipients all information they have responsive to the Committee?s request. To start, I am at a loss to understand why, if you are trying to obtain responsive information as soon as possible, you would offer respondents only check mark choices and explicitly direct them not to provide the details requested by the Committee ? such as the identity of the persons with whom they communicated, the subjects they discussed and the dates of those interactions. I understand that you intend to have your lawyers question respondents that do not check ?no,? but common sense would dictate that you would at least ask respondents to provide the limited information requested by the Committee if your goal were to provide us the requested information as soon as possible.
Just as importantly, your survey does not seem designed to elicit all of the information the Committee requested. Question two of the EOP survey, for example, asks about communications with Enron relating to eight listed agencies but could easily be read as not including communications relating to the ?laws, regulations, and policies administered or enforced? by these agencies ? communications the Committee clearly asked about — if the survey respondent does not recall the communications being explicitly tied to the agencies themselves. Thus, a survey question incorporating the Committee?s language likely would trigger a survey respondent to reveal any discussions with Enron about the Commodity Futures Modernization Act, auditor independence, or open access to electricity transmission. Your question, in contrast, easily could deny the Committee that information unless the conversation explicitly mentioned the CFTC, SEC, or FERC. Similarly, you included in survey question three a request for recipients to indicate whether they had any communications relating to Enron with any of the eight listed agencies, but you chose to omit entirely the Committee?s explicit request for communications with other federal agencies relating to the listed agencies. In short, the steps outlined in your letter fall far short of what could be considered reasonable efforts to collect the information the Committee requested on March 27; indeed, the narrow scope of questions asked and recipients identified make it entirely possible that,
in the EOP offices covered by the Freedom of Information Act, a FOIA request would trigger a more comprehensive search than that conducted in response to this Congressional Committee?s request.
The survey also fails entirely to ask about communications with Enron relating to the NEPDG. You indicate that you hope to receive ?further guidance? from the Committee about this issue and ask that the Committee provide a ?factual predicate? for believing that its request for these communications is relevant to the Committee?s investigation. Respectfully, the Committee?s April 24, 2002, letter already has explained to you the basis for our jurisdiction over this matter, as well as the reasons why we are examining this issue. We are aware of neither rule nor precedent that requires anything more. With five weeks having passed since our March 27 information request, you apparently have not even begun to collect the requested NEPDG information. That is unacceptable. If you wish to lodge an unprecedented assertion of categorical privilege over conversations with Enron related to the NEPDG, please do so; the Committee will then determine how to respond to that claim. Otherwise, please follow the traditional course, search for responsive information and, after evaluating it, discuss with the Committee any specific privilege claim you wish to assert.
On a related matter raised in your letter ? that of information related to the presidential appointment process ? our reading of your survey suggests that it would elicit information about communications with Enron regarding appointments to the specified agencies. If we are not correct that you are seeking that information now with the intention of discussing specific privilege claims with respect to that information after evaluating it, please let us know.
Finally, I am concerned that the timetable you have proposed ? in which you anticipate that even an initial response to the Committee will likely take until early to mid-June ? does not accommodate the Committee?s schedule and will unnecessarily delay our investigation.
As discussed in the Committee?s April 24 letter, I had hoped that the Committee?s investigation into the government?s activities with respect to Enron would be a cooperative one. For that reason, the Committee did not begin its investigation by seeking subpoenas, nor did it even ask any federal agency to produce documents. We chose that course because we thought it would allow us to conduct a timely yet thorough inquiry without being unduly burdensome or intrusive on the agencies whose activities we are reviewing. Agencies like FERC, CFTC, the Labor Department and the SEC have proven to us that we made the correct choice; they provided us with quick and comprehensive responses and have been cooperative when we sought additional or clarifying information. I am deeply disappointed that the same cannot be said of the EOP.
The time is fast approaching when the Committee will be seeking to wrap up the information-collecting stage of its investigation. We simply cannot be in a position of having to wait another month before starting to see an incomplete information flow from the EOP, especially when it does not appear that the EOP is making serious efforts to collect all information responsive to the Committee?s request.
So that I can advise the Committee on possible next steps in its investigation, including whether to seek subpoenas, I would appreciate a response to the following questions by close of business on Tuesday, May 7:
1) What efforts other than the distribution of the April 29 survey has EOP undertaken to search for information responsive to the Committee?s March 27 request? Is EOP searching any automated databases? Is EOP reviewing records to determine whether Enron representatives visited the EOP complex?
2) When were those efforts made?
3) Did you send the survey to all EOP offices? Why have you limited the pool of survey respondents to officials of a certain rank? Are you searching for responsive information with respect to the President and Vice-President?
4) What is EOP doing to determine whether former EOP employees had any contacts or communications covered by the Committee?s information request?
5) Is EOP collecting and compiling information from survey respondents about communications with Enron regarding appointments to the listed agencies?
6) Will EOP be collecting and compiling information about communications with Enron regarding the NEPDG? When?
Thank you for your attention to this matter. Should you have any questions, please feel free to call me at any time or have your staff contact Cynthia Lesser of my staff at (202) 224-4974.
Sincerely,
Joseph I. Lieberman Chairman