Chuck Grassley

United States Senator from Iowa

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Watchdog Agency Made to Sign Non-Disclosure Agreements to Get Information from FBI

Sep 25, 2017

Before cooperating with Hatch Act investigation of James Comey, FBI required NDAs in exchange for voluntary compliance

                                                                                                                      
WASHINGTON – Senate Judiciary Committee investigators have learned that the Office of Special Counsel (OSC) was only able to obtain the voluntary cooperation of the FBI in its Hatch Act investigation of former Director James Comey by agreeing to sign Non-Disclosure Agreements (NDAs) that sought to specifically prohibit sharing information with Congress.  The NDAs required OSC to substantially redact documents and provide the FBI an opportunity for further redactions before any disclosure to Congress.  Senate Judiciary Committee Chairman Chuck Grassley wrote to FBI Director Christopher Wray and Acting Special Counsel Tristan Leavitt seeking information on these non-disclosure agreements. 
 
“In sum, the FBI held key information hostage from OSC that the agency needed to fulfill a statutorily mandated responsibility under the Hatch Act for the express purpose of limiting the rights of the Committee to obtain information from OSC.  The FBI also sought to contract out of the statutory rights of access to information by Congressional establishments, such as the Government Accountability Office, which it has no right to do,” Grassley wrote.
 
“These agreements are an inappropriate attempt to withhold information from an independent government watchdog agency in exchange for a promise to limit government transparency and hamstring Congressional oversight.”
 
In his letter to the FBI, Grassley asks the FBI for an explanation of why the agency required such an agreement in this particular investigation when, according to OSC, it has not done so before.  In his letter to OSC, Grassley further requests that OSC provide the committee with any other non-disclosure agreements FBI has required before cooperation and for notification of any future attempts by any agency under the committee’s jurisdiction to limit Congressional oversight through a non-disclosure agreement.
 
Last month, Grassley and Senator Lindsey Graham (R-S.C.) sought details on the drafting of Comey’s public statements concluding the FBI’s investigation of Hillary Clinton, which the heavily redacted transcripts indicate took place before the FBI interviewed key witnesses.
 
OSC is the permanent, independent investigative agency for personnel matters in the federal government and is not related to Robert Mueller’s temporary prosecutorial office within the Justice Department.
 
Grassley’s letter to OSC can be found here.
Grassley’s letter to FBI can be found here.
 
Text of both letters follows.
 
September 25, 2017
VIA ELECTRONIC TRANSMISSION
                                   
The Honorable Christopher Wray
Director
Federal Bureau of Investigation
935 Pennsylvania Avenue, N.W.
Washington, D.C. 20535
 
Dear Director Wray:
 
On August 30, 2017, the Committee requested that the FBI provide unredacted copies of certain documents relevant to the Committee’s review of the firing of former Director James Comey.  Those documents relate to Mr. Comey’s handling of the Clinton e-mail investigation and the Office of Special Counsel’s (OSC) related Hatch Act inquiry into Mr. Comey’s conduct. 
 
As noted in that August 30 letter, at the Committee’s request, OSC on August 8, 2017 provided copies of transcripts of interviews of two FBI employees conducted during its investigation.  The transcripts indicated that Director Comey began preparing drafts of a statement exonerating Hillary Clinton months before he made his July 2017 public announcement on this topic.  However, those transcripts were also heavily redacted, leaving many important questions unanswered.  
 
Accordingly, the Committee requested that the FBI provide unredacted copies of these transcripts and other related materials.  The FBI has not responded. 
 
The Committee has since learned that OSC was only able to obtain the voluntary cooperation of FBI employees in its Hatch Act investigation because it agreed to sign Non-Disclosure Agreements with the FBI and the Department.  On their face, the agreements require OSC to redact certain information from materials or testimony FBI provides in the course of OSC’s investigation prior to “any disclosure to Congress, any Senator or Member of Congress, and/or any Congressional Committee, Subcommittee, or other Congressional establishment.”  The agreements also require OSC to provide FBI an opportunity to further redact the materials before any disclosure to Congress.  Categories of information FBI sought to restrict include those that are not protected by any constitutional privilege. 
In sum, the FBI held key information hostage from OSC that the agency needed to fulfill a statutorily mandated responsibility under the Hatch Act for the express purpose of limiting the rights of the Committee to obtain information from OSC.  The FBI also sought to contract out of the statutory rights of access to information by Congressional establishments, such as the Government Accountability Office, which it has no right to do.  These agreements are an inappropriate attempt to withhold information from an independent government watchdog agency in exchange for a promise to limit government transparency and hamstring Congressional oversight.
 
According to OSC, the FBI has never before required OSC to sign NDAs as a condition of its voluntary cooperation with a lawful OSC investigation.  The Committee seeks to understand why this particular investigation warranted such a tactic and whether the FBI took extra steps that it would not ordinarily take, merely to protect its former Director from public scrutiny. 
 
In addition to providing all materials requested in the Committee’s June 30, 2017, letter, please provide a full explanation for seeking NDAs with OSC in this case. 
 
 
Sincerely,
 
 
Charles E. Grassley
Chairman
 
cc:        The Honorable Dianne Feinstein
            Ranking Member
 
 
 
September 25, 2017
VIA ELECTRONIC TRANSMISSION
                                   
Tristan Leavitt
Acting Special Counsel
U.S. Office of Special Counsel
1730 M Street, N.W., Suite 218
Washington, D.C. 20036
 
Dear Mr. Leavitt:
 
On June 30, 2017, I requested that the Office of Special Counsel (OSC) provide a briefing for Committee staff on the status of OSC’s investigation of alleged Hatch Act violations by former FBI Director James Comey.  I also asked OSC to provide copies of transcripts of its interviews with two FBI employees.  OSC provided heavily redacted copies of these transcripts on August 8, 2017. 
 
OSC has indicated that FBI proposed these redactions pursuant to Non‑Disclosure Agreements (NDAs) between OSC and FBI.  According to OSC, the agency entered into these agreements as a condition required by the FBI in exchange for its voluntary cooperation with OSC’s investigation.  Simply put, it is wrong for the FBI to withhold information that OSC needs to conduct its statutorily mandated responsibilities under the Hatch Act or to hold that information hostage in exchange for a nondisclosure agreement designed to shield the FBI from Congressional oversight. 
 
On their face, the agreements require OSC to redact certain information from materials or testimony FBI provides in the course of OSC’s investigation prior to “any disclosure to Congress, any Senator or Member of Congress, and/or any Congressional Committee, Subcommittee, or other Congressional establishment.”  The agreements also require OSC to provide FBI an opportunity to propose further redactions to the materials before any disclosure to Congress.  Categories of information FBI sought to restrict include those that are not protected by any constitutional privilege.  Moreover, the OSC and FBI do not have the authority to contract out of the statutory rights of access to information by Congressional establishments, such as the Government Accountability Office. 
 
The heavily redacted copies of the transcripts also appear to go further than the NDAs to shield even questions posed by the OSC investigator to the FBI employees.  Neither OSC nor the FBI has offered any explanation of how such questions could be privileged or law enforcement sensitive.
 
Please provide the Committee with any other NDAs FBI has required from OSC in order to secure its voluntary cooperation with OSC investigations, as well as an estimate of how many investigations OSC has conducted involving FBI employees without first agreeing to such terms.
 
Finally, in the future, please notify the Committee of any attempt by any agency under its jurisdiction, in any matter, to obtain an NDA that purports to limit the rights of the Committee to obtain information from OSC.  Moreover, if any agency under the Committee’s jurisdiction withholds voluntary cooperation with OSC for any other reason, please inform the Committee of the circumstances in a timely manner.  OSC cannot fulfill its statutory missions without timely access to information from agencies, and the Committee needs to be aware of any specific examples of access issues with agencies under its jurisdiction.
 
 
Sincerely,
 
 
Charles E. Grassley
Chairman
 
 
cc:        The Honorable Dianne Feinstein
            Ranking Member
 
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