SEC GC cites executive privilege

One of the most amazing and pathetic performances ever by SEC staff at a Congressional hearing--yesterday top SEC officials were grilled by House members over the Madoff fraud. They ducked questions, citing ongoing investigations.

At one point, acting SEC general counsel Andy Vollmer cited exectutive privilege, in part. Rep. Gary Ackerman (D-N.Y.) and Rep. Paul Kanjorski (D-Pa.) are quizzing Vollmer on where he gets off. Check it out:

ACKERMAN: ... Mr. Vollmer, I believe you were the one who thought that your people didn't have to testify here today. I don't know where you got that, but some of us think otherwise. Maybe -- maybe you could tell us. How did they miss all this?

VOLLMER: We're as committed as each of you...

ACKERMAN: That's not the question! We give you credit for being committed.

VOLLMER: Perhaps -- perhaps you could let me answer.

ACKERMAN: Perhaps you can try to answer.

VOLLMER: And what we -- what we're asking...

ACKERMAN: No, no. We're asking. You have to tell us things. You're forgetting what the -- what this procedure is. You're not coming here to ask.

VOLLMER: Let's let...

ACKERMAN: We're asking you! How did you screw up?

VOLLMER: ... the inspector general's process works. It's a process Congress set up to identify the facts that we all need to make these judgments. Let's let the system work that Congress created. There will be some recommendations. There will be time for this committee to look at the facts and to think of the recommendations themselves.

ACKERMAN: Tell that to the people who...

VOLLMER: And that's the appropriate way...

ACKERMAN: ... have lost their whole lives that they have time.

VOLLMER: ... to proceed in this matter.

ACKERMAN: People don't have time. We need to tell them something...

VOLLMER: And the other thing that matters...

ACKERMAN: ... instead of lecturing us, Mr. Vollmer.

VOLLMER: ... is that there law enforcement proceedings going on. There are personal rights at stake. There are the -- there is the integrity of the investigations to protect.

ACKERMAN: We wouldn't be in this mess if you people did your job.

VOLLMER: That's why we've asked the committee to bear with...

ACKERMAN: No, we're asking you. We are asking you.

VOLLMER: ... these investigations to allow them to proceed.

ACKERMAN: Could you cite whatever authority you're citing, and have cited?

VOLLMER: I'd be delighted. I'd be happy to do that. I'd be happy talk with...

ACKERMAN: Because you have a right not to answer our questions under the Constitution...

VOLLMER: ... your lawyers.

ACKERMAN: ... Fifth Amendment procedure.

I'm not a lawyer. I'm a citizen, though.

VOLLMER: I'd be happy to talk lawyer...

ACKERMAN: I'm a frustrated citizen.

VOLLMER: ... happy to give the references to you or to your lawyers.

ACKERMAN: I'm listening. Give us the references.

VOLLMER: There's a very important opinion from Attorney General Robert Jackson in 1941, where he explained the need to discharge the constitutional and statutory obligations of the executive branch in connection with law enforcement in civil litigation...

ACKERMAN: Are you citing executive branch immunity, Mr. Vollmer?

VOLLMER: ... in response to requests for information from the Congress.

ACKERMAN: Are you citing executive branch immunity, Mr. Vollmer?

VOLLMER: There are various protections at...

ACKERMAN: Are you citing executive branch privilege, Mr. Vollmer?

VOLLMER: I would like to let you allow me to answer your question.

ACKERMAN: It's a yes or no question, sir. Either you are or you are not.

VOLLMER: Well, no, it is not.

There are a variety of reasons and privileges and protections. One of them is executive branch protections. There's a deliberative process protection.

They stem from the same desires that you have. And we're asking that you allow those processes to work.

ACKERMAN: We are out of patience. And the question, obviously, is a yes or no question. Either you're citing executive privilege immunity, or you're not doing that.

VOLLMER: I just explained, there are a variety...

ACKERMAN: You know, if you're citing your Fifth Amendment privilege, you don't make a speech.

VOLLMER: ... and that's one of them, was the executive privilege.

ACKERMAN: You are -- was that a "yes," you're citing executive privilege immunity?

VOLLMER: In part, it is, yes.

ACKERMAN: I'm sorry?

VOLLMER: I said, yes, it is in part.

KANJORSKI: Have you inquired of the Justice Department or someone else that they have analyzed that position for this hearing today, and they found that the Securities and Exchange Commission, requested by Congress to discuss a very important pending piece of legislation is being established to protect hundreds of thousands, perhaps millions of people, that you have a right, representing the executive branch, the president of the United States, to stand on that authority?

Have you posed that question to the attorney general or...

VOLLMER: No.

KANJORSKI: Then, this is on your interpretation?

VOLLMER: This is the position of the agency.

KANJORSKI: And you're the general counsel for the agency. I assume you make the legal determinations for the agency.

VOLLMER: No. The commission makes the decisions for the agency...

KANJORSKI: So, this question has been passed through...

VOLLMER: ... (inaudible) from a variety of sources, and the general counsel's office is one of those...

KANJORSKI: So, this has been passed through the new director, or chairman, of the commission and the members of the commission. And they...

VOLLMER: (inaudible).

KANJORSKI: ... agree and have instructed you to instruct this panel not to respond to the questions of Congress, because of executive privilege, and maybe other privileges contained in the 1941 Supreme Court case. Is that correct?

VOLLMER: The commission supports this position.

ACKERMAN: That wasn't the chairman's question.

VOLLMER: Yes, I -- the answer to that specific question is "no."

ACKERMAN: The answer is "no." So, you're acting on your own volition.

VOLLMER: I didn't say that, no. And I would disagree with that.

ACKERMAN: You know, most of us speak English, and we're having a hard time getting an answer from you.

This is not the -- this was not discussed by the commission, but it's the commission's position. Is that what you just said? Do you divine that?

VOLLMER: The commission's approved taking this position.

ACKERMAN: The commission has voted the position that you will cite executive privilege, and not testifying before this committee and answering its questions.

VOLLMER: I couldn't say that to you honestly, because the specific reasons...

ACKERMAN: Obviously.

VOLLMER: ... weren't discussed and given by the commission. But the basis is that we were...

ACKERMAN: Your value to us is useless (ph).

VOLLMER: ... (inaudible) and accommodation. And we've tried to be accommodating...

ACKERMAN: Your value to the American people is worthless.

VOLLMER: ... with you. And...

ACKERMAN: Your contribution to this proceeding is zero.

VOLLMER: ... we ask that you take into account the concerns that have been well settled over many years. And we'd ask you to take those into account.

ACKERMAN: Our economy is in crisis, Mr. Vollmer.

We thought the enemy was Mr. Madoff. I think it's you.

You were the shield. You were the protector. And you come here and fumble through make-believe answers that you concoct, and attribute it to executive privilege that you've not consulted with executive branch on.

Mr. Chairman, I'm through.

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