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Late last month members of Congress investigating a decades-old miscarriage of justice traveled to Boston to interview Dennis Condon, a former agent with the Federal Bureau of Investigation. For two days the team questioned Condon, 79, on his involvement in a prosecution that sent four men to prison in 1967 for a murder they did not commit. The congressional investigators were armed with an internal Justice Department document — a prosecutorial memorandum President George W. Bush had ordered the Department of Justice just two months earlier to keep confidential in his first and only formal claim of executive privilege since taking office. Now, lawyers and staff of the House Committee on Government Reform, chaired by Rep. Dan Burton, R-Ind., expect to review five additional DOJ documents subpoenaed seven months ago, but withheld under Bush’s executive privilege claim made on Dec. 12. Among the records are prosecutorial memorandums laying out the cases against dozens of crime figures in Boston in the 1960s and 1970s. Under the agreement reached Feb. 27, the Justice Department will retain physical possession of the documents and edit them to protect grand jury and other highly sensitive material. Other records subpoenaed by the committee, including some related to the Justice Department’s controversial campaign finance investigation, will not be turned over. Jim Wilson, chief counsel to the House Committee on Government Reform, says he is satisfied with the compromise. “Documents are the raw material of any investigation,” Wilson says. “All we wanted to do was see the documents. We didn’t want to win some battle.” The resolution is not in itself unusual; past administrations have frequently wrangled with Congress over access to executive branch information and ultimately reached similar accommodations. But the reversal is striking coming from the Bush administration, which has made an issue out of restoring executive privilege. In a separate dispute with the General Accounting Office, the White House has been willing to go to court rather than hand over information it considers confidential. Publicly, DOJ and White House lawyers maintain that the arrangement is consistent with the president’s order. But privately, the same administration lawyers say they may have been too quick to assert executive privilege to protect the Boston documents. Once the subpoena was on the table, they say, the administration felt compelled either to comply or to assert a privilege. Assistant Attorney General Daniel Bryant, the Justice Department’s top congressional liaison, says he believes both branches have learned from the dispute. “It’s our hope that the experience with respect to these documents leaves us better positioned to work out these kinds of requests for information from congressional committees in the future,” Bryant says. But by asserting executive privilege and then compromising, the administration may have weakened the very principle they hope to strengthen, says Mark Rozell, a political science professor at Catholic University. “I think it’s a gross mistake to throw the heavy artillery out there and then back off it,” Rozell says. “It cheapens the principle of executive privilege every time an administration does that.” THE HUB OF THE DISPUTE The House Committee on Government Reform launched its investigation into the FBI’s handling of organized crime investigations in Boston about a year ago. At the heart of the inquiry is the case of Joseph Salvati. Salvati served 30 years in prison for murder before being exonerated in 1997. Congressional investigators maintain that Salvati and three other innocent men were railroaded to protect FBI informants responsible for the killing. According to committee reports, the Salvati case and related incidents have led to several lawsuits that could cost the government millions of dollars. Over the course of the investigation, the Justice Department provided committee staffers with thousands of pages of documents. But a Sept. 6 subpoena sparked a showdown over a series of documents requested by the committee — prosecutorial memorandums containing advice on whether or not to bring criminal charges against figures involved in the Boston investigation. White House and DOJ officials balked at the request, arguing that opening such communications to congressional scrutiny would politicize the law enforcement process and prevent prosecutors from sharing their candid thoughts on cases. In December, Bush issued a formal claim of executive privilege stating, “Because I believe congressional access to these documents would be contrary to the national interest, I have decided to assert executive privilege with respect to the documents and to instruct [Attorney General John Ashcroft] not to release them or otherwise make them available to the Committee.” In two subsequent appearances before the committee, DOJ officials remained unyielding, offering to brief committee members on the contents of prosecutorial memos, but not to share the actual documents. “The prospect of congressional review might force prosecutors to err on the side of investigation or prosecution simply to avoid public second-guessing,” Bryant said in Feb. 6 testimony. “This would undermine public and judicial confidence in our law enforcement process.” But just one week later, the department gave Burton’s committee access to its first privileged document — a 1967 memo regarding a murder case against New England mafia boss Raymond Patriarca. And on Feb. 27 — within an hour of a new threat by Burton to hold the president in contempt — the Justice Department’s Office of Legislative Affairs contacted the committee’s lawyers to put forth the new offer. “People committed very serious crimes in Boston, and they were not prosecuted. These documents may shed light on why they were not prosecuted,” says Wilson, the committee’s top lawyer. “This is part of a process of attempting to restore people’s faith that nothing is hidden.” Covington & Burling partner Eric Holder Jr., who served as deputy attorney general for three years in the Bill Clinton administration, says he understands the Justice Department’s predicament. “As there has been a greater trend toward disclosing prosecutorial memoranda, I think that has affected the quality of them,” Holder says. “I think people write now with the thought in the back of their minds that what they write may one day be turned over to a congressional committee.” He adds, “You generally want to use executive privilege as a last step when there’s really no other alternative.”

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