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House Oversight Committee Chairman Jason Chaffetz (R-Utah) and ranking member Rep. Elijah Cummings (D-Md.) slammed a top Justice Department official. (AP) Chaffetz, Cummings tangle with DOJ official over GPS tracking documents

A longstanding and unfulfilled congressional demand for memos about the use of GPS tracking devices in federal investigations triggered a tense exchange Thursday that saw key House lawmakers from both parties bearing down hard on a top Justice Department official.

House Oversight Committee Chairman Jason Chaffetz (R-Utah) and ranking member Rep. Elijah Cummings (D-Md.) slammed Justice Department legislative affairs chief Peter Kadzik, after he refused to commit to sharing the documents and directives on use of geolocation techniques.

"Why is it that members of Congress with security clearances ... why is it that I cannot actually see what you're sending out far and wide?" Chaffetz asked. "You're sending this out to all of your prosecutors ... When you send this out far and wide, why can't Elijah Cummings and I go look at it?"

Kadzik insisted the memos had not been sent out "far and wide" and that the records amounted to attorney-work product that should be kept confidential. "It goes to those prosecutors who need that information when they litigate cases and they approve or disapprove particular investigative techniques ... We have provided briefings," the assistant attorney general for legislative affairs said.

"No. No. No. No. No. A briefing's not good enough. A briefing's not good enough," Chaffetz shot back. He noted that in the wake of a 2012 Supreme Court ruling requiring warrants for use of such devices in criminal investigations, the Justice Department produced heavily redacted memos under the Freedom of Information Act in which all the substantive policy guidance was blacked out.

"We got concerns post-Jones, that the federal government is potentially spying on Americans. ... We represent the people. We have a security clearance," Chaffetz added. "We're asking in an in-camera review situation to be able to read this ourselves. ... You won't allow members of Congress to look at it? Why?"

"We'd be happy to provide additional [court] pleadings and additional briefings, but there are law enforcement sensitivities, and it is attorney-work-product information," Kadzik replied.

"The American people trust us, but you don't trust us," Chaffetz declared.

"It's not that I don't trust you, Mr. Chairman," Kadzik said.

If the Justice official was hoping for some relief when Cummings took over questioning, the hope was misplaced.

Cummings asked whether Justice's real concern was about criminals using the information, to which Kadzik said, "Yes."

"We're concerned that if these techniques are disclosed, criminal elements can use that information in order to avoid detection and law enforcement efforts," Kadzik said.

"The bottom line is that you don't trust us," Cummings said, echoing Chaffetz nearly verbatim. "If we are saying that we'd like to see this information in confidence and make commitments that we're not going to disclose, what would be the reason? ... Am I missing something?"

"I want to actually read it," Chaffetz insisted. "Why do you assume because we read it, in camera, that it's suddenly going to get out, out in the public?"

Kadzik then shifted gears, saying that DOJ was concerned that showing the memos to lawmakers might waive the legal privilege protecting the memos from disclosure in litigation. "The fact that we provide it to a third party, could potentially be an argument that we've waived the privilege," he said.

"There's nobody up here that wants to interfere in a criminal investigation," Cummings chimed in. "It seems like we ought to be able to reach some type of balance." He also asked for case law supporting the claim that sharing information with a congressional committee would make it discoverable in court.

Chaffetz said the law was to the contrary, pointing to a 35-year-old D.C. Circuit case. "When a congressional committee compels production through a properly issued subpoena, it does not prevent assertion of the privilege," he said. "You're hiding this from the American people. Who is the client? Who is the client that you're trying to protect?"

"We're trying to protect the American people," Kadzik responded.

"And we represent the American people," Chaffetz interjected.

"And so do we, but providing this memorandum for broad public disclosure... " the Justice official said.

Chaffetz quickly noted that he and Cummings weren't seeking public disclosure. "We just want to read the documents you're giving to the prosecutors and the criminal chiefs, and you're saying, 'No,' and it should scare every American."

The exchange took place at a hearing on congressional document requests pending at federal agencies. In addition to the Justice Department, the hearing included witnesses from the Departments of Homeland Security and State, the Office of Personnel Management and the Office of Management and Budget.

