Mr. President, with the approaching hearings before the Judiciary Committee on the nomination of Eric Holder to be Attorney General, I thought it might be useful to frame some of the issues and put…
Mr. President, with the approaching hearings before the Judiciary Committee on the nomination of Eric Holder to be Attorney General, I thought it might be useful to frame some of the issues and put them into perspective, at least my perspective, in advance of the hearings, and to advise Mr. Holder in some greater detail than our brief meeting, when he paid his courtesy call a few weeks ago, to discuss some of those issues so he would be in a better position to respond.
I begin with the view that I wish to be helpful to President-elect Obama in his dealings with the enormous problems which face our Nation. I have come to know President-elect Obama in his capacity as Senator for the last 4 years. His office is right down the hallway. I consider him a friend, and certainly we are in need of action on some of the enormous problems our Nation faces. We approach these problems in the context of our constitutional roles. The Constitution, in article I, gives certain powers to the Congress and, in article II, certain powers to the executive branch. The core of our constitutional Government is checks and balances so we have that responsibility to have oversight and to give our candid judgments. Frequently, it is more helpful to say no than to say yes. When we deal with the position of Attorney General, we have a role which is significantly different from other Cabinet officers.
For example, Cabinet officers carry out the President's policies on a wide variety of issues and, to an extent, so does the Attorney General. But the Attorney General has a significantly different role in his responsibility to the people and to the rule of law. Senator Leahy and I wrote extensively on this subject, published last October in Politico.
Some Attorneys General have been very compliant with the administration and have not fared very well historically. Attorney General Harry Daugherty was sullied by the Teapot Dome scandal. Although ultimately cleared, he resigned amid allegations of impropriety. We had the Attorney General during the administration of President Roosevelt, Attorney General Homer Cummings, who yielded to the court-packing plan, certainly not the sort of institutional integrity which we would look for in an Attorney General. Some Attorneys General have been very diligent. Perhaps the best example is Attorney General Elliot Richardson, who resigned rather than fire Special Prosecutor Archibald Cox during the administration of President Nixon, and Deputy Attorney General Bill Ruckelshaus followed suit.
In today's press, there are reports about the distinguished career of Attorney General Griffin Bell, who just died. One of the hallmarks of Attorney General Bell's career was his willingness to say no to President Carter, who had appointed him. President Carter, it is reported, wanted a certain prosecution brought. Attorney General Bell said that it wasn't an appropriate matter for a criminal prosecution. Attorney General Bell advised President Carter that the way he would get that prosecution brought would be to appoint a compliant Attorney General, that he would resign before he would undertake that prosecution.
We have seen, regrettably, with the administration of Attorney General Alberto Gonzales, yielding to the Executive will without upholding the rule of law; the hearings conducted by the Judiciary Committee, for which I was ranking member, over the termination of U.S. attorneys; the attitude of Attorney General Gonzales on habeas corpus, testifying that there was no positive grant of habeas corpus in the Constitution, notwithstanding the explicit clause which says habeas corpus may be suspended only in time of rebellion or invasion. So this is a very key and critical appointment.
The Attorney General also has enormous responsibilities in advising the President more generally on the scope of Executive authority. Mr. Holder will doubtless be questioned at some length on the issue of the terrorist surveillance program, warrantless wiretaps, and the meaning of the Foreign Intelligence Surveillance Act; and where does congressional authority under article I stop on the flat prohibition against wiretaps without warrants, contrasted with the Executive's power as Commander in Chief under article II; and what are the Attorney General designate's views on attorney-client privilege restrictions, a matter which he initiated in 1999 and which has seen further restrictions in the Thompson memorandum and subsequently. Last Congress I introduced legislation to try to deal with that. There is also the reporter's privilege issue, where the Department of Justice has opposed the privilege for reporters where they have been held in contempt. A New York Times reporter was held in jail for some 85 days after the source of the confidential disclosure had been addressed. These are just a few of the issues which we will be looking at in the confirmation hearings of Attorney General Holder.
With respect to Mr. Holder, specifically, he has had an outstanding academic and professional record--I acknowledged that early on-- prestigious college and law school, Columbia; a judge of the District of Columbia Superior Court; involved in Department of Justice prosecution teams; and later served as Deputy Attorney General. But aside from these qualifications on Mr. Holder's resume, there is also the issue of character. Sometimes it is more important for the Attorney General to have the stature and the courage to say no instead of to say yes.
There are three specific matters which will be inquired into during the course of Mr. Holder's confirmation hearing. The first one involves a highly publicized pardon, the Marc Rich pardon. Mr. Holder testified he was ``not intimately involved'' in the Rich pardon and he assumed that regular procedures were being followed. But when you take a look at some of the details as to what was disclosed in the hearing by the House of Representatives and in the hearing in the Senate Judiciary Committee, which I chaired 15 months after the pardon, Mr. Holder met privately with Mr. Rich's attorney. According to Mr. Holder's own testimony, he tried to facilitate a meeting between the prosecutors in the Southern District of New York and Rich's attorney. Rich's attorney, Mr. Quinn, testified that Mr. Holder advised him to go straight to the White House rather than through the pardon office, which is the regular procedure. Mr. Quinn produced an e-mail from himself to a colleague with the subject line ``Eric,'' in which he noted that ``he says go straight to the WH, also says timing is good. We should get it in soon.''
That is not conclusive, but these are matters to be inquired into. The pardon attorney was opposed to the pardon, but he never issued a recommendation because he didn't think the pardon was under serious consideration. Then the White House requested Mr. Holder's opinion, and he is quoted as saying that he was ``neutral, leaning towards favorable'' on the pardon.
On this case of the record, with the very close connections between Mr. Rich and very sizable contributions to the Clinton library and very sizable contributions to President Clinton's party, these questions inevitably arise and have not been answered satisfactorily. During the course of the hearings, both in the House and in the Senate, where I chaired the full committee hearing, the claim of executive privilege was made. We face a little different situation when we are looking at a confirmation hearing for Attorney General, in terms of the legitimate scope of Senators' inquiry which will be pursued. It ought to be focused on the fact that the charges against Rich were very serious. They involved tax evasion, fraud, trading with the enemy,
with Iran. It should also be emphasized that the U.S. attorney who prosecuted the case was opposed to the pardon and, in fact, refused to meet with Mr. Rich.
The second issue which requires a hearing on the issue of character and the determination as to whether Mr. Holder was yielding to the President to give him or the Vice President a conclusion they wanted to hear was the issue of the appointment of an independent counsel on the allegations that Vice President Gore engaged in fundraising from the White House in violation of Federal law.
Mr. Holder, in his capacity as Deputy Attorney General, was advising Attorney General Reno. Attorney General Reno came to the conclusion that independent counsel ought not to be appointed. The House of Representatives committee filed this report:
. . . the failure of the Attorney General to follow the law
and appoint an independent counsel for the entire campaign
finance investigation has been the subject of two sets of
Committee hearings. FBI Director Louis Freeh and the Attorney
General's hand-picked Chief Prosecutor, Charles LaBella,
wrote lengthy memos to the Attorney General advising her that
she must appoint an Independent Counsel under the mandatory
section of the Independent Counsel Statute. . . .
That mandatory section does not leave it to the discretion of the Attorney General, but the Attorney General declined to appoint independent counsel.
In hearings conducted before the Senate Judiciary Subcommittee, which I chaired, Attorney General Reno was questioned extensively on the evidence, which showed that hard money was being discussed as the matter of fundraising to be undertaken by Vice President Gore.
Attorney General Reno did not consider a very critical piece of evidence written by a man named Strauss who had attended the meetings. The Strauss memo contained the notation of a certain percentage of hard money and a certain percentage of soft money. Attorney General Reno did not consider that because, as she testified, it did not refresh the recollection of Mr. Strauss.
Well, there are a number of exceptions to the hearsay rule. One is when a piece of paper is reviewed by a witness and it refreshes his prior recollection, and another is when the witness testifies that the notes were made contemporaneously with the discussion and it constitutes prior recollection recorded, which is an exception to the hearsay rule and the witness does not have to remember what had occurred.
That critical piece of evidence was not considered by Attorney General Reno. So here again are issues which are appropriate for inquiry on the character issue.
On the issue of whether Mr. Holder will exercise sufficient independence, Vice President Gore sought to explain to the FBI that he was out of the room a good bit of the time of the discussion because, as he had put it, he had consumed a lot of iced tea on that occasion. Well, these are matters which the independent counsel statute was designed to deal with, to conduct a further investigation, to consider all of the ramifications, and not to show favoritism because the subject of an investigation happened to be the Vice President of the United States. Mr. Holder's role in advising the Attorney General on that matter, his role as Deputy Attorney General, is an appropriate matter for inquiry.
The third issue to be inquired into involves the hearings on the so- called FALN organization, the Armed Forces of Puerto Rican Nationalists. The FALN was an organization linked to over 150 bombings, threats, kidnappings, and other events which resulted in the deaths of at least six people and the injuries of many more between 1974 and 1983. Four of the persons who received clemency were convicted of involvement in the $7 million armed robbery of a Wells Fargo office.
In the face of this kind of conduct, and in the face of a report by the pardon attorney in the Department of Justice, the actions of Deputy Attorney General Holder were very extensive in what eventuated in the granting of clemency.
The Department of Justice sent the matter back for another evaluation, apparently dissatisfied with the recommendation of the pardon attorney that the clemency application ought to be denied.
On this second occasion, according to press accounts, the submission by the pardon attorney ``made no specific recommendation'' regarding clemency, but it did reflect that the FBI and two U.S. attorneys' offices opposed clemency. Notwithstanding that record, clemency was granted. It is an appropriate matter for inquiry to see specifically what role Mr. Holder played.
Senator Hatch, who was the chairman of the committee at that time, had this to say about the conclusion:
President Clinton, who up to this point had only commuted
three sentences . . . offered clemency to 16 members of FALN.
This to me, and really almost every Member of Congress, was
shocking.
Senator Leahy joined in the criticism of the grant and raised the question about the failure of the Department of Justice to contact the victims. The matter came before the Senate, which rejected and criticized the grant of the clemency by a vote of 95 to 2.
All of these matters relate to judgment and relate to whether Mr. Holder had the kind of resoluteness displayed by Attorney General Griffin Bell or Attorney General Elliot Richardson to say no to his superior.
In raising these concerns, I am raising questions. I will approach these hearings next week--a week from Thursday--with an open mind to give Mr. Holder an opportunity to explain his conduct and his actions and to see if, on the totality of the record, he displays the requisite character and judgment and can justify the actions in these sorts of matters which would warrant the confidence of the Judiciary Committee, really representing the confidence of the American people.
After our experience with Attorney General Gonzales, and given the experience of other Attorneys General in the past and the very critical role which they play in upholding the rule of law, these are the sorts of issues which ought to be aired. Mr. Holder ought to have his day in court, so to speak--the hearing before the Judiciary Committee--to see if he can state the case which would warrant his confirmation.
Mr. President, I ask unanimous consent that a detailed statement be printed in the Record at this point in full. What I have tried to do is to summarize a more detailed statement.
