January 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 49

our own beloved TED KENNEDY, who much of a lawmaker’s time, too much look forward—yes, look forward to the went from being a bitter adversary in of a lawmaker’s energy is now con- next 50 years. Amen. Amen. the beginning of my years to my dear- sumed in raising money for the next That concludes my remarks. est friend. It has been an honor and a election or to pay off the last one. I yield the floor and I say good night great privilege to have served with I lament that too many legislators in to the Chair and all the people here. these Senators and with so many oth- both parties continue to regard the I suggest the absence of a quorum. ers who have contributed and who still Chief Executive in a roll much more The PRESIDING OFFICER (Mr. contribute to the Senate to make it elevated than the Framers of the Con- SANDERS). The clerk will call the roll. the great institution it has become. I stitution ever intended. The Framers The legislative clerk proceeded to hope and I pray to the Good Lord that of the Constitution did not envision call the roll. in my 50 years here, I have also made the Office of the President of the Mr. MCCONNELL. Mr. President, I a small but positive contribution, and I United States as having the attributes ask unanimous consent the order for pray that I will continue to do so. of royalty. We as legislators have a re- the quorum call be rescinded. Because of the good people of West sponsibility to work with the Chief Ex- The PRESIDING OFFICER. Without Virginia, my half century—my 50 ecutive, but it was intended for this to objection, it is so ordered. years—of service in this Chamber has be a two-way street, not a one-way f allowed the foster son of an impover- street. The Senate must again rise and ished coal miner from the hills of be the coequal branch of Government MINNESOTA SENATE RACE southern West Virginia—and the wife which the Constitution of the United Mr. MCCONNELL. Mr. President, ear- of that coal miner to have a son—to States intended it to be. lier today there were some comments have the opportunity to walk with I lament the decline of the thorough- about the Minnesota Senate race that I Kings, to meet with Prime Ministers, ness of Senate committee hearings. In would like to briefly address. The only and to debate with Presidents. I have its classic study, ‘‘Congressional Gov- people who have pronounced the Min- had the privilege not only to witness ernment,’’ Woodrow Wilson pointed out nesota Senate race over are Wash- but also to participate in much of that the ‘‘informing function of Con- ington Democrats and the candidate America’s history. From the beginning gress is its most important function.’’ who is the current custodian of the and the apex of the Cold War to the This was revealed in 1973 when, after 8 most votes. The people of Minnesota collapse of the Soviet Union, from my days of hearings and after hours upon certainly do not believe the Minnesota opposition to the 1964 Civil Rights Act hours of questioning, L. Patrick Gray, Senate race is over. The Minneapolis to my role in securing the funds for the President Nixon’s nominee to be Direc- Star Tribune, which never could be building of the memorial to Martin Lu- tor of the FBI, revealed that White confused for a conservative publica- ther King, from my support for the war House counselor John Dean had lied— tion, wrote an editorial in their paper in Vietnam to my opposition to Mr. lied—lied—to FBI investigators, thus today entitled, ‘‘Court Review is Key Bush’s war with Iraq, I have served beginning the unraveling of the Water- in Senate Recount.’’ here, and I have loved every second of gate coverup. Today, we have the Writing about yesterday’s Can- every blessed minute of it. knowledge this could not happen with vassing Board findings, the editorial My half century of service in the the time restrictions that are in place says—and again, this is in today’s Min- great Senate has also allowed me to ex- on the Senate’s hearings. neapolis Star Tribune—the editorial perience profound changes in this insti- I am pleased to say that during my today says: tution. Unfortunately, not all of them half century in the Senate, there have As Minnesotans are learning, that deter- have been for the best. also been positive changes in the Sen- mination is not the same as declaring a win- During my tenure, especially in re- ate. I will mention a few. The first is ner in this amazingly close race. cent years, this Chamber has become the Senate has become more open and It went on to say: bitterly partisan. All of us already the Senate has become more con- Both Franken and Coleman should want know this, so I will not belabor the stituent friendly. This was highlighted court-ordered answers to questions that the point other than to say we should do in 1986 when television cameras were fi- Canvassing Board could not answer. better. I will point out that we should nally installed and the American peo- The winner of this contest deserves the le- do something about the vitriol before ple all across this country could watch gitimacy that would come with a court’s po- it destroys the Senate and the people’s their Senators debate the issues of the litically independent finding that he got faith in the Senate. day on C–SPAN. I am proud to have more votes than his opponent. If anyone thinks I am exaggerating, I been a part—though a small part—but The bottom line is this: The Senate will give just one example. The fili- a part of that innovation. race in Minnesota will be determined buster is a prime guarantee of the prin- During my tenure, the Senate has be- by Minnesotans, not here in the Sen- ciple of minority rights in the Senate. come more open and it has become ate. The filibuster is a device by which a more diverse. When I came here in 1959, f single Senator can bring the Senate to there was only one—one female Sen- a halt if that Senator believes his ator. In the 111th Congress, there are 17 OPENING OF THE 111TH CONGRESS cause is just. But our partisan warfare women in the Senate. In the 50 years Mr. MCCONNELL. Mr. President, the has often transformed this unique, fun- prior to my service, not a single—not opening of a new Congress is always an damental Senate tool into a political one African American was elected to important moment in the life of our weapon which has been abused. As a re- the Senate. During my 50 years here, Nation. Every time a gavel falls on a sult, there have lately been efforts to three African Americans have been new legislative term, we are reminded abolish it. If this should ever happen, a elected to the Senate. This is a small of the grandeur of the document we are vital and historic protection of the lib- number, but one of those three has now sworn to uphold. We are grateful to the erties of the American people will be been elected to the highest office in the citizens of our respective States—in lost, and the Senate will cease to func- land—President of the United States. my case the people of Kentucky—who tion as the one institution that has So, my fellow colleagues, we have come give us the opportunity to serve. We provided protection for the views and a very, very, very long way. are thankful once again that the U.S. the prerogatives of a minority. Let me conclude my remarks by sim- Constitution has endured to guarantee I lament the ever-increasing costs of ply acknowledging it has been a won- the freedom and the prosperity of so running for a Senate seat. In 1958, Jen- derful 50 years serving in this ‘‘great many for so long. nings Randolph and I spent a combined forum of constitutional American lib- The growth of our Nation over the $50,000 to win the two Senate seats in erty.’’ I only wish my darling wife, who years is one of the most remarkable West Virginia. Today, Senators can ex- now sings in the heavenly choir above, feats of man, and it was far from inevi- pect to spend about $7 million. Too were here today to say with me that I table. When Congress first organized

VerDate Mar 15 2010 11:36 Apr 22, 2011 Jkt 079102 PO 00000 Frm 00012 Fmt 0686 Sfmt 0634 E:\BR09\S06JA9.000 S06JA9 erowe on DSK5CLS3C1PROD with BOUND RECORD 50 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 January 6, 2009 under the Constitution, the United spent. If lawmakers think it is, then face of pressure on congressional States consisted of 11 States and 3 mil- they need to make a convincing case to Democrats from interest groups and lion citizens. Today, more people than the people who are paying for it. local politicians. that live in Kentucky alone. Yet de- Now, 16 years ago we rejected a simi- Here is an issue on which the Repub- spite a bloody Civil War, the arrival of lar stimulus the size of the Minnesota licans and Democrats can work to- millions of immigrants, economic col- State budget. We should not be rushed gether for a positive result for the lapse, World Wars, social unrest, and into voting for a bill that, by any esti- American people. My hope is that once the long-delayed realization of Amer- mate, will be bigger than all 50 State we achieve it, we will have a model to ica’s original promise of equality for budgets combined, especially when build on for the remainder of the 111th all, we have come together as a body many of the jobs it promises will not Congress. The opportunities for co- and as a nation. We have not just en- even materialize for another year. If we operation are numerous. Throughout dured these things, we have flourished, are serious about protecting the tax- his campaign, President-elect Obama and that is well worth remembering payer, these projects will be awarded spoke about the importance of a strong and celebrating as the 111th Congress through a fair and open process and al- national defense. He spoke of the need convenes. lowed to compete with other priorities to reduce the national debt. He vowed As we meet in January of 2009, Amer- in the budget. We should encourage, to go through the budget line by line to ica faces many serious challenges. not discourage, questions about this cut wasteful programs. He pledged to None is more urgent than our troubled bill in a reckless rush to meet an arbi- cut taxes on virtually all Americans economy. President-elect Obama was trary deadline. We should be open to and on small business. And he promised one of those who recognized the grav- new ideas aimed at protecting the tax- to put America on the path to energy ity of the current troubles early on. He payer. independence within the next 10 years. reassured many by fielding a solid Here are three new ideas worth con- These are all goals Republicans sup- team of economic advisers. He agrees sidering: Congressional Democrats port. At this moment, nothing should with Republicans that we should put have talked about sending hundreds of stand in the way of our achieving them more money in the pockets of middle- billions of dollars to the States. If we together. class American families by cutting loan those funds rather than give them I have told the new President I am their taxes, and he has proposed work- away, States will be far less likely to eager to work with him. I have told ing with Republicans to create jobs and spend the money frivolously, and the him he can expect cooperation on the confirmation of qualified nominees to to encourage long-term economic sta- taxpayer would have greater assurance key Cabinet posts so the American peo- bility with a massive domestic spend- their money is well spent. ple do not have to worry about a power ing bill the details of which Members Idea No. 2: Congress has had nearly 1 vacuum at places such as the Pen- of Congress and the American people year to review the fiscal 2009 spending tagon, the State Department, Treas- are increasingly eager to see. requests. These remaining bills now ury, or Homeland Security. I have dis- After a long and rough campaign sea- make up a $400 billion Omnibus appro- cussed with him something he already son, it is encouraging for many Ameri- priations bill. This is a bill that meets knows but which is worth repeating on cans to see that the two parties in the level of spending proposed for the the first day of the new Congress. When Washington are in broad agreement stimulus, and it is a bill that could it comes to new Presidents, history of- about something so important to their pass Congress by Inauguration Day. If fers a clear path, a clear path to suc- daily lives. And Republicans will work speed is one of the goals, it strikes me cess and a clear path to failure. that passing the omnibus achieves that with President-elect Obama to make Some new Presidents have chosen to sure that as we consider this legisla- goal. work with the other party to confront Idea No. 3, middle-class tax relief: tion the taxpayer is not taken for a the big issues of the day that neither One way to get more money into peo- ride. party is willing or able to tackle on its ple’s pockets quickly is to increase the All of us agree the economy needs own. Others have decided they would size of their paychecks immediately. help. We are concerned and taxpayers rather team up with members of their are concerned. But if we are going to An immediate 10 percent cut in taxes own party and focus on narrow, par- appropriate an unprecedented amount for nearly 30 million Americans would tisan issues that only appeal to a tiny of money from the Treasury for this provide a significant jolt to the econ- sliver of the populace but which lack spending bill, it is absolutely essential omy that all of us want. These are the support of the American main- that we determine up front whether ideas on which both parties could stream. the spending is going to be wasteful or agree. Each of them is designed to pro- In my view, the choice at this par- wise. tect and empower the taxpayer. So ticular moment is clear. If the new Specifically, the American people let’s consider them. But either way the President pursues the former course, should have at least a week, and it American people should be in on this our chances of achieving a positive for looks as if we will have more than spending plan because the potential for the American people will be strong. that, to see what this enormous spend- waste and abuse is enormous. The parties will continue to disagree. ing plan includes. President Clinton Now, some loose-lipped local politi- This is good for democracy, but polit- proposed a $16 billion stimulus package cians have already described the grant ical conflict is not an end in itself. At in his first year in office. Congress, as ‘‘free money’’ from Washington. this moment we have an opportunity back in 1993, rejected it for being too Others openly hope to use it on frivo- to show the American people, and we expensive. Now Democrats in Congress lous pet projects that no sensible tax- know that. are proposing a stimulus that would payer would sign off on if they had a The majority leader has mentioned cost taxpayers more than 50 times choice. The American people do not that this year the opening of Congress what President Clinton’s would have want to be pick-pocketed. They do not coincides with two important anniver- cost. want to be taken advantage of. They saries. The first is Senator BYRD’s 50th This potentially $1 trillion bill would want a real return on their investment, anniversary. This feat of longevity has be one of the largest spending bills in and all of us should be eager to show no equal in the history of this body, U.S. history. It would increase the def- that we understand the difference. and this is quite fitting for a Senator icit by a half trillion dollars overnight President-elect Obama has said a who has no equal in the history of this and deepen an already enormous na- stimulus plan will have to create jobs, body. tional debt. have an immediate impact, and lead to When ROBERT CARLYLE BYRD took Before we all agree to it, the Amer- the strengthening of the long-term the oath of office on January 5, 1959, he ican people need to see the details. economy. Republicans agree, and we could not have known that he would be They need to be able to see for them- will help to ensure just that by insist- the longest serving Senator in U.S. his- selves whether this is money well ing on scrutiny and oversight in the tory or that he would one day write

VerDate Mar 15 2010 11:36 Apr 22, 2011 Jkt 079102 PO 00000 Frm 00013 Fmt 0686 Sfmt 0634 E:\BR09\S06JA9.000 S06JA9 erowe on DSK5CLS3C1PROD with BOUND RECORD January 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 51 this body’s definitive history. But optimism about the future of America President Roosevelt, Attorney General through the support of his beloved and our optimism about achieving Homer Cummings, who yielded to the Erma, his legendary devotion to our something important for the American court-packing plan, certainly not the Constitution, and his tireless will to people over these next 2 years. Now is sort of institutional integrity which we improve the lives of the people of his our chance to deliver—not just in word, would look for in an Attorney General. State, the senior Senator from West but in deed. This is a solemn charge. Some Attorneys General have been Virginia has accomplished a remark- For some, it might cut against the very diligent. Perhaps the best example able feat, and today we honor him for grain. But if we are to have a future is Attorney General Elliot Richardson, it. worthy of our past, it is a charge that who resigned rather than fire Special The other anniversary we commemo- must be kept. Prosecutor Archibald Cox during the rate today is no doubt dear to Senator I yield the floor. administration of President Nixon, and BYRD’s heart because 150 years ago this The PRESIDING OFFICER. The Sen- Deputy Attorney General Bill Ruckels- very month the Senate moved from its ator from Pennsylvania. haus followed suit. In today’s press, there are reports old home down the hall, where we had f the reenactment of the swearing in of about the distinguished career of At- ERIC HOLDER CONFIRMATION new Senators today—its old home torney General Griffin Bell, who just HEARING down the hall, to the room we are in died. One of the hallmarks of Attorney now. This transition meant far more in Mr. SPECTER. Mr. President, with General Bell’s career was his willing- its day than the mere packing of books the approaching hearings before the ness to say no to President Carter, who and rearranging of desks because back Judiciary Committee on the nomina- had appointed him. President Carter, it is reported, wanted a certain prosecu- then, as now, every expansion of the tion of Eric Holder to be Attorney Gen- tion brought. Attorney General Bell Capitol has come with a fresh realiza- eral, I thought it might be useful to said that it wasn’t an appropriate mat- tion of the great adaptability of the frame some of the issues and put them ter for a criminal prosecution. Attor- U.S. Constitution and is further proof into perspective, at least my perspec- tive, in advance of the hearings, and to ney General Bell advised President of its greatness. Carter that the way he would get that According to the CONGRESSIONAL advise Mr. Holder in some greater de- prosecution brought would be to ap- RECORD, the man who was selected to tail than our brief meeting, when he point a compliant Attorney General, speak on the occasion of the Senate’s paid his courtesy call a few weeks ago, that he would resign before he would relocation in 1859 was John to discuss some of those issues so he would be in a better position to re- undertake that prosecution. Breckenridge, a Democrat and a Ken- We have seen, regrettably, with the spond. tuckian who served as Vice President administration of Attorney General I begin with the view that I wish to under President Buchanan. Alberto Gonzales, yielding to the Exec- be helpful to President-elect Obama in In his remarks, Breckenridge offered utive will without upholding the rule his dealings with the enormous prob- an eloquent lesson on the history of of law; the hearings conducted by the lems which face our Nation. I have the Senate and, after paying appro- Judiciary Committee, for which I was come to know President-elect Obama priate tribute to the heroes of the Rev- ranking member, over the termination olution, he made an intriguing sugges- in his capacity as Senator for the last of U.S. attorneys; the attitude of At- tion to the Senators of his day. 4 years. His office is right down the torney General Gonzales on habeas cor- Breckenridge suggested that the Sen- hallway. I consider him a friend, and pus, testifying that there was no posi- ators of 1859 had an even greater re- certainly we are in need of action on tive grant of habeas corpus in the Con- sponsibility than the Senators of 1789 some of the enormous problems our Na- stitution, notwithstanding the explicit because, as he put it, ‘‘the population, tion faces. We approach these problems clause which says habeas corpus may extent, and the power of our country in the context of our constitutional be suspended only in time of rebellion surpass the dawning promise of its ori- roles. The Constitution, in article I, or invasion. So this is a very key and gin.’’ gives certain powers to the Congress critical appointment. If this was true in 1859, it is truer and, in article II, certain powers to the The Attorney General also has enor- still in 2009. Americans have seen quite executive branch. The core of our con- mous responsibilities in advising the vividly over the past 8 years, and even stitutional Government is checks and President more generally on the scope over the past few months, that the balances so we have that responsibility of Executive authority. Mr. Holder will challenges which confront America and to have oversight and to give our can- doubtless be questioned at some length our response to those challenges have a did judgments. Frequently, it is more on the issue of the terrorist surveil- powerful effect on the wider world. helpful to say no than to say yes. When lance program, warrantless wiretaps, Not a single Member of this body is we deal with the position of Attorney and the meaning of the Foreign Intel- unaware of the profound impact of his General, we have a role which is sig- ligence Surveillance Act; and where or her decisions. And that is why not a nificantly different from other Cabinet does congressional authority under ar- single Senator in this body wishes any- officers. ticle I stop on the flat prohibition thing but the best to President-elect For example, Cabinet officers carry against wiretaps without warrants, Obama. out the President’s policies on a wide contrasted with the Executive’s power Despite party differences, all of us variety of issues and, to an extent, so as Commander in Chief under article II; feel a certain institutional pride in does the Attorney General. But the At- and what are the Attorney General des- having one of our own in the White torney General has a significantly dif- ignate’s views on attorney-client privi- House. And every American will feel a ferent role in his responsibility to the lege restrictions, a matter which he special national pride when, for the people and to the rule of law. Senator initiated in 1999 and which has seen first time in our Nation’s history, an LEAHY and I wrote extensively on this further restrictions in the Thompson African American man raises his hand subject, published last October in Po- memorandum and subsequently. Last to recite the oath of office from the litico. Congress I introduced legislation to try Capitol steps. Some Attorneys General have been to deal with that. There is also the re- The President-elect has promised very compliant with the administra- porter’s privilege issue, where the De- leadership that sees beyond the politics tion and have not fared very well his- partment of Justice has opposed the of division. But that responsibility torically. Attorney General Harry privilege for reporters where they have does not rest with the President alone. Daugherty was sullied by the Teapot been held in contempt. A New York It rests with all of us. Before Inaugura- Dome scandal. Although ultimately Times reporter was held in jail for tion Day, there is the opening of this cleared, he resigned amid allegations of some 85 days after the source of the 111th Congress. This too is a great civic impropriety. We had the Attorney Gen- confidential disclosure had been ad- ritual. And this too should renew our eral during the administration of dressed. These are just a few of the

VerDate Mar 15 2010 11:36 Apr 22, 2011 Jkt 079102 PO 00000 Frm 00014 Fmt 0686 Sfmt 0634 E:\BR09\S06JA9.000 S06JA9 erowe on DSK5CLS3C1PROD with BOUND RECORD 52 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 January 6, 2009 issues which we will be looking at in the fact that the charges against Rich are appropriate for inquiry on the char- the confirmation hearings of Attorney were very serious. They involved tax acter issue. General Holder. evasion, fraud, trading with the enemy, On the issue of whether Mr. Holder With respect to Mr. Holder, specifi- with Iran. It should also be emphasized will exercise sufficient independence, cally, he has had an outstanding aca- that the U.S. attorney who prosecuted Vice President Gore sought to explain demic and professional record—I ac- the case was opposed to the pardon to the FBI that he was out of the room knowledged that early on—prestigious and, in fact, refused to meet with Mr. a good bit of the time of the discussion college and law school, Columbia; a Rich. because, as he had put it, he had con- judge of the District of Columbia Supe- The second issue which requires a sumed a lot of iced tea on that occa- rior Court; involved in Department of hearing on the issue of character and sion. Well, these are matters which the Justice prosecution teams; and later the determination as to whether Mr. independent counsel statute was de- served as Deputy Attorney General. Holder was yielding to the President to signed to deal with, to conduct a fur- But aside from these qualifications on give him or the Vice President a con- ther investigation, to consider all of Mr. Holder’s resume, there is also the clusion they wanted to hear was the the ramifications, and not to show fa- issue of character. Sometimes it is issue of the appointment of an inde- voritism because the subject of an in- more important for the Attorney Gen- pendent counsel on the allegations that vestigation happened to be the Vice eral to have the stature and the cour- Vice President Gore engaged in fund- President of the United States. Mr. age to say no instead of to say yes. raising from the White House in viola- Holder’s role in advising the Attorney There are three specific matters tion of Federal law. General on that matter, his role as which will be inquired into during the Mr. Holder, in his capacity as Deputy Deputy Attorney General, is an appro- course of Mr. Holder’s confirmation Attorney General, was advising Attor- priate matter for inquiry. hearing. The first one involves a highly ney General Reno. Attorney General The third issue to be inquired into in- publicized pardon, the Marc Rich par- Reno came to the conclusion that inde- volves the hearings on the so-called don. Mr. Holder testified he was ‘‘not pendent counsel ought not to be ap- FALN organization, the Armed Forces intimately involved’’ in the Rich par- pointed. The House of Representatives of Puerto Rican Nationalists. The don and he assumed that regular proce- committee filed this report: FALN was an organization linked to dures were being followed. But when . . . the failure of the Attorney General to over 150 bombings, threats, you take a look at some of the details follow the law and appoint an independent kidnappings, and other events which as to what was disclosed in the hearing counsel for the entire campaign finance in- resulted in the deaths of at least six by the House of Representatives and in vestigation has been the subject of two sets people and the injuries of many more the hearing in the Senate Judiciary of Committee hearings. FBI Director Louis between 1974 and 1983. Four of the per- Committee, which I chaired 15 months Freeh and the Attorney General’s hand- picked Chief Prosecutor, Charles LaBella, sons who received clemency were con- after the pardon, Mr. Holder met pri- wrote lengthy memos to the Attorney Gen- victed of involvement in the $7 million vately with Mr. Rich’s attorney. Ac- eral advising her that she must appoint an armed robbery of a Wells Fargo office. cording to Mr. Holder’s own testimony, Independent Counsel under the mandatory In the face of this kind of conduct, he tried to facilitate a meeting be- section of the Independent Counsel Statute. and in the face of a report by the par- tween the prosecutors in the Southern ... don attorney in the Department of Jus- District of New York and Rich’s attor- That mandatory section does not tice, the actions of Deputy Attorney ney. Rich’s attorney, Mr. Quinn, testi- leave it to the discretion of the Attor- General Holder were very extensive in fied that Mr. Holder advised him to go ney General, but the Attorney General what eventuated in the granting of straight to the White House rather declined to appoint independent coun- clemency. than through the pardon office, which sel. The Department of Justice sent the is the regular procedure. Mr. Quinn In hearings conducted before the Sen- matter back for another evaluation, produced an e-mail from himself to a ate Judiciary Subcommittee, which I apparently dissatisfied with the rec- colleague with the subject line ‘‘Eric,’’ chaired, Attorney General Reno was ommendation of the pardon attorney in which he noted that ‘‘he says go questioned extensively on the evidence, that the clemency application ought to straight to the WH, also says timing is which showed that hard money was be denied. good. We should get it in soon.’’ being discussed as the matter of fund- On this second occasion, according to That is not conclusive, but these are raising to be undertaken by Vice Presi- press accounts, the submission by the matters to be inquired into. The par- dent Gore. pardon attorney ‘‘made no specific rec- don attorney was opposed to the par- Attorney General Reno did not con- ommendation’’ regarding clemency, don, but he never issued a rec- sider a very critical piece of evidence but it did reflect that the FBI and two ommendation because he didn’t think written by a man named Strauss who U.S. attorneys’ offices opposed clem- the pardon was under serious consider- had attended the meetings. The ency. Notwithstanding that record, ation. Then the White House requested Strauss memo contained the notation clemency was granted. It is an appro- Mr. Holder’s opinion, and he is quoted of a certain percentage of hard money priate matter for inquiry to see specifi- as saying that he was ‘‘neutral, leaning and a certain percentage of soft money. cally what role Mr. Holder played. towards favorable’’ on the pardon. Attorney General Reno did not con- Senator HATCH, who was the chair- On this case of the record, with the sider that because, as she testified, it man of the committee at that time, very close connections between Mr. did not refresh the recollection of Mr. had this to say about the conclusion: Rich and very sizable contributions to Strauss. President Clinton, who up to this point had the Clinton library and very sizable Well, there are a number of excep- only commuted three sentences . . . offered contributions to President Clinton’s tions to the hearsay rule. One is when clemency to 16 members of FALN. This to party, these questions inevitably arise a piece of paper is reviewed by a wit- me, and really almost every Member of Con- and have not been answered satisfac- ness and it refreshes his prior recollec- gress, was shocking. torily. During the course of the hear- tion, and another is when the witness Senator LEAHY joined in the criti- ings, both in the House and in the Sen- testifies that the notes were made con- cism of the grant and raised the ques- ate, where I chaired the full committee temporaneously with the discussion tion about the failure of the Depart- hearing, the claim of executive privi- and it constitutes prior recollection re- ment of Justice to contact the victims. lege was made. We face a little dif- corded, which is an exception to the The matter came before the Senate, ferent situation when we are looking at hearsay rule and the witness does not which rejected and criticized the grant a confirmation hearing for Attorney have to remember what had occurred. of the clemency by a vote of 95 to 2. General, in terms of the legitimate That critical piece of evidence was All of these matters relate to judg- scope of Senators’ inquiry which will not considered by Attorney General ment and relate to whether Mr. Holder be pursued. It ought to be focused on Reno. So here again are issues which had the kind of resoluteness displayed

VerDate Mar 15 2010 11:36 Apr 22, 2011 Jkt 079102 PO 00000 Frm 00015 Fmt 0686 Sfmt 0634 E:\BR09\S06JA9.000 S06JA9 erowe on DSK5CLS3C1PROD with BOUND RECORD January 6, 2009 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 53 by Attorney General Griffin Bell or At- nomination. History demonstrates that tably, we have seen what happens when an torney General Elliot Richardson to presidents who seek the advice of members attorney general ignores this basic tenet and say no to his superior. of the Senate prior to submitting a nomina- considers the president, not the American In raising these concerns, I am rais- tion frequently see their nominees confirmed people, as his principal. We must ensure that ing questions. I will approach these more quickly and with less controversy than the rule of law never plays second fiddle to those who do not. A recent example is that of the partisan desires of political operatives.’’ hearings next week—a week from President Clinton who consulted with then- American history provides several exam- Thursday—with an open mind to give Chairman Hatch prior to nominating Justice ples of Attorneys General whose independ- Mr. Holder an opportunity to explain Ruth Bader Ginsberg and Justice Stephen ence was tested; some succumbed to being his conduct and his actions and to see Breyer to the Supreme Court. Both nominees ‘‘yes men’’ and some resolutely said ‘‘no.’’ if, on the totality of the record, he dis- were confirmed with minimal controversy. One example of an Attorney General who plays the requisite character and judg- In contrast, on the nomination of Mr. may have been swayed by political pressure ment and can justify the actions in Holder, President-elect Obama chose not to was Harry M. Daugherty (51st Attorney Gen- these sorts of matters which would seek my advice or even to give me advance eral under Presidents Harding and Coolidge, notice, in my capacity as Ranking Repub- 1921–1924). In 1924, the Senate launched an in- warrant the confidence of the Judici- lican on the Judiciary Committee, which is vestigation into the failure of the Attorney ary Committee, really representing the his prerogative. Had he done so, I could have General to prosecute those implicated in the confidence of the American people. given him some facts about Mr. Holder’s Teapot Dome Scandal, which was headed by After our experience with Attorney background that he might not have known, Democratic Senator Burton K. Wheeler of General Gonzales, and given the experi- based on my experience on the Senate Judi- Montana. The investigation included an ex- ence of other Attorneys General in the ciary Committee. For example, in 1999, I amination of Mr. Daugherty’s involvement past and the very critical role which chaired a Senate Judiciary Committee over- in the scandal and why he failed to prosecute they play in upholding the rule of law, sight task force that investigated whether the Secretary of the Interior and others im- these are the sorts of issues which the Department of Justice fulfilled its re- plicated. Although Mr. Daugherty was even- sponsibilities in investigating the Waco tually cleared of all charges, his failure to ought to be aired. Mr. Holder ought to siege, Chinese nuclear spying, and alleged aggressively prosecute those involved, com- have his day in court, so to speak—the campaign-finance abuses by Democrats dur- bined with allegations that he obstructed hearing before the Judiciary Com- ing the 1996 elections. As part of that inves- justice by trying to block the congressional mittee—to see if he can state the case tigation, I chaired six hearings before the investigation, resulted in a loss of confidence which would warrant his confirmation. Judiciary Committee’s Subcommittee on Ad- in him. Mr. Daugherty resigned in March Mr. President, I ask unanimous con- ministrative Oversight and the Courts, dur- 1924, prior to the conclusion of the investiga- sent that a detailed statement be ing which we heard from numerous witnesses tion. printed in the RECORD at this point in and reviewed many documents. The insight Another example is that of Homer S. full. What I have tried to do is to sum- gained during that investigation might have Cummings (55th Attorney General under been valuable to President-elect Obama, be- President Franklin Roosevelt, 1933–1939). marize a more detailed statement. cause Mr. Holder was Deputy Attorney Gen- Frustrated with several Supreme Court deci- There being no objection, the mate- eral (DAG) of the Justice Department from sions declaring New Deal programs unconsti- rial was ordered to be printed in the 1997 until 2001 and, therefore, played a piv- tutional, President Roosevelt asked Mr. RECORD, as follows: otal role in determining the level and scope Cummings to secretly draft a bill that would HOLDER FLOOR STATEMENT of the Justice Department’s investigation of have added one new judge for every judge With the Judiciary Committee hearings these important matters. I also chaired the who refused to retire at age 70. This pro- approaching on the nomination of the Attor- Senate Judiciary Committee’s 2001 hearing posal, which came to be known as the ney General-designate Eric H. Holder, Jr., I on the controversial pardons of international ‘‘court-packing plan,’’ could have created as think it would be useful to put some of the fugitives Marc Rich and Pincus Green. Dur- many as six vacancies on the Supreme Court issues into perspective, at least my perspec- ing that hearing, the Committee heard testi- as well as a number of lower court vacancies. tive. I begin with the view to help President- mony from Mr. Holder on his role in those The resulting legislation was widely criti- elect Obama deal with the enormous prob- pardons. I will describe some of the details cized as an overt political plan to cir- lems facing our nation. I worked with then- on those matters shortly. Based on my role cumvent the Supreme Court. The plan was Senator Obama; I had an office close to his on those investigations, I could have pro- never enacted, in part, because Justice Owen on the 7th floor of the Hart Building, and vided President-elect Obama with informa- Roberts, who had traditionally voted against consider him a friend. I sent a congratula- tion on Mr. Holder that he might not other- New Deal legislation, started voting with the tory letter after the election and was pleased wise have had and might have found useful. ‘‘liberal’’ wing and upholding such measures. to get his telephone call to discuss working Seeking to be helpful to the new adminis- Justice Roberts’ apparent about-face in ju- together in the new year. tration does not necessarily mean agreement risprudence is known as ‘‘the switch in time The fundamentals of our continuing rela- on all matters. Sometimes saying ‘‘no’’ may that saved nine.’’ tionship will be governed by the Constitu- be more helpful, but may not appear to be at A third and possibly the most egregious ex- tion. Separation of powers and checks and the time. ample is that of John N. Mitchell (67th At- balances are the basic precepts of dealings I acknowledge the many good features torney General under President Nixon, 1969– between the Congress (Article I) and the Ex- about Mr. Holder’s education and profes- 1972). In 1974, Mr. Mitchell was indicted for ecutive (Article II). My record demonstrates sional background. He received his B.A. from conspiracy, obstruction of justice, giving my willingness to cross party lines when I Columbia University in 1973 and his J.D. false testimony to a grand jury, and perjury, consider it appropriate—frequently to my from Columbia Law School in 1976. Fol- for his role in the Watergate break-in and own political disadvantage. lowing law school, Mr. Holder pursued a ca- cover-up. He was convicted of these charges The Constitution requires the President’s reer in public service, first as a trial attor- in 1975 and sentenced to two-and-a-half to choice for Attorney General to be confirmed ney in the Public Integrity Section of the eight years in prison. by the Senate—specifically, with the Sen- Department of Justice, then as an Associate In contrast, probably the most memorable ate’s ‘‘advice and consent.’’ On June 13, 2005, Judge for the Superior Court of the District example of an Attorney General who did not in the context of a possible Supreme Court of Columbia, next as the United States At- bend to political pressure is that of Elliot L. nomination, Senator Leahy described his torney for D.C., and then as Deputy Attorney Richardson (69th Attorney General under opinion of the role of the Senate as pre- General and, for a short period, as Acting At- President Nixon, 1973). On October 20, 1973, scribed by this clause stating: ‘‘The Con- torney General. Following his tenure at the Nixon ordered Richardson to fire Watergate stitution provides that the President ‘shall Department of Justice, Mr. Holder joined the special prosecutor Archibald Cox. Mr. Rich- nominate, and by and with the Advice and D.C. office of Covington & Burling, LLP as a ardson and his deputy attorney general, Wil- Consent of the Senate, shall appoint’ judges. partner. liam D. Ruckelshaus, resigned rather than For advice to be meaningful it needs to be In addition to the accomplishments on a carry out the order. informed and shared among those providing nominee’s resume, however, there is a crit- Another example is President Lincoln’s at- it. . . . Bipartisan consultation would not ical qualification of character in upholding torney general, Edward Bates (26th Attorney only make any Supreme Court selection a principles when tempted to yield to expedi- General, 1861–1864). Even in the midst of the better one, it would also reassure the Senate ency by being a ‘‘yes man’’ to please a supe- Civil War, Bates did not hesitate to express and the American people that the process of rior or to accommodate a friend. As Chair- independent judgment. Bates disagreed with selecting a Supreme Court justice has not man Leahy and I noted in an op-ed we co-au- President Lincoln on a number of issues that become politicized.’’ (Cong. Rec. S6389) Sen- thored last October and published in Polit- arose from the war, including Lincoln’s de- ator Leahy’s statement is at least relevant, ico, ‘‘[I]ndependence is also an indispensable sire to allow West Virginia to be admitted as if not equally applicable, to Mr. Holder’s quality in an attorney general. . . . Regret- a state. In part because he was unable to

VerDate Mar 15 2010 11:36 Apr 22, 2011 Jkt 079102 PO 00000 Frm 00016 Fmt 0686 Sfmt 0634 E:\BR09\S06JA9.000 S06JA9 erowe on DSK5CLS3C1PROD with BOUND RECORD 54 CONGRESSIONAL RECORD—SENATE, Vol. 155, Pt. 1 January 6, 2009 convince Lincoln to agree with him, Mr. ($867,000), to the Clinton Library ($450,000) straight to the White House (Id. at 204) and Bates resigned from office. and had donated $66,300 to individual Demo- maintained that he thought the regular par- The Attorney General is unlike any other cratic candidates. don procedures were being followed; however, cabinet officer whose duty it is to carry out On February 8 and March 1, 2001, the House he admitted that he never spoke to anyone the President’s policy. The Attorney General Committee on Government Reform held two either in the pardon office or in his own of- has a corollary, independent responsibility hearings on the pardons of Rich and others fice about whether the Rich pardon petition to the people to uphold the rule of law. made during President Clinton’s final days had been received. (President Clinton’s Elev- Chairman Leahy and I mentioned this re- in office. On February 14, 2001, I chaired a enth Hour Pardons: Hearing Before the Sen- sponsibility in the aforementioned Politico full Judiciary Committee hearing on the ate Comm. on the Judiciary, 107th Cong. 30 op-ed stating, ‘‘[t]he attorney general’s duty controversial pardons. At the Judiciary (2001)) is to uphold the Constitution and the rule of Committee hearing, Roger Adams, DOJ’s Finally, Mr. Holder testified that he had at law, not to circumvent them. The president Pardon Attorney, testified that ‘‘none of the least one conversation with Mr. Quinn about and the American people are best served by regular procedures . . . were followed’’ with a potential Attorney General position in Al an attorney general who gives sound advice regard to the Rich and Green pardons. Gore’s possible administration while the and takes responsible action, rather than Mr. Holder testified that he was not ‘‘inti- Rich pardon was pending, and that he was one who develops legalistic loopholes to mately involved’’ in the Rich pardon, and sending Mr. Quinn the resumes of people on serve the partisan ends of a particular ad- that he assumed that the regular procedures his staff and asking for his help in finding ministration.’’ were being followed. Mr. Holder said that, them jobs after Clinton left office. (The Con- After our recent experience with Attorney the night before the pardon was granted, troversial Pardon of International Fugitive General Gonzales, it is imperative that the White House Counsel Beth Nolan contacted Marc Rich: Hearing Before the House Comm. Attorney General undertake and effectuate him to ask his position on the pardon re- on Govt. Reform, 107th Cong. 202 (2001)) Mr. that responsibility of independence. Mr. quest. Mr. Holder stated that he had reserva- Holder noted, however, that the actions he Gonzales left office accused of politicizing tions about the pardon request since Mr. took with regard to the Rich pardon were the Justice Department, failing to restrain Rich was still a fugitive and because it was done after the election had been decided in Executive overreaching, and being less than clear that the prosecutors involved would favor of President George W. Bush when the forthcoming with Congress. Even before be- not support the request, but he ultimately Attorney General position was no longer an coming Attorney General, we now know that told Ms. Nolan that he was ‘‘neutral, leaning option. he pushed Attorney General Ashcroft to ap- towards favorable’’ on the request. He testi- While serving as DAG, Mr. Holder also was prove the President’s surveillance program fied that one factor influencing his decision intimately involved in the decision-making over the objections of high-level Justice De- was the assertion that Israeli Prime Minister process that resulted in Attorney General partment officials. Once in office, he either Ehud Barak had weighed in strongly in favor Janet Reno rejecting the Department of Jus- abdicated his responsibility to subordinates of the request; therefore, the granting of the tice and FBI task force’s recommendation to or was complicit in the questionable firings request might have foreign policy benefits. appoint an independent counsel to probe the of several U.S. Attorneys, depending on He made no inquiry, however, as to whether allegations of fund-raising abuses by Vice which of his statements one accepts as true. that was true. President Al Gore during the 1996 presi- And, he repeatedly defended aggressive Ad- Notwithstanding, based on these hearings, dential campaign. (David Johnston, Reno ministration positions that appeared serious questions have been raised regarding Aides Recommend Against Outside Counsel, dismissive of Congress and the Courts. In- Mr. Holder’s candor while testifying before Austin American-Statesman, Nov. 22, 1997; deed, in his zeal for the Administration’s pol- Congress. (Jerry Seper, Holder Testimony on Deputy Attorney General Holds Justice De- icy on detainees, he even questioned the con- Pardon Questioned, The Washington Times, partment Weekly Media Availability, FDCH stitutional basis for habeas corpus review. Dec. 18, 2008) In response to a question from Political Transcripts, Dec. 18, 1997; US Seeks On January 18, 2007, when he testified before Congressman Burton, Mr. Holder testified to Verify Chinese Campaign Influence, The the Judiciary Committee, it was astounding that he had ‘‘only a passing familiarity with Bulletin’s Frontrunner, Feb. 13, 1998; John to hear his claim that ‘‘there is no express the underlying facts of the Rich case.’’ (The Bresnahan, Hatch May Hold New Hearings to grant of habeas in the constitution.’’ When I Controversial Pardon of International Fugi- Pressure Reno on 1996 Campaign Finance pressed him on the point, he replied ‘‘the tive Marc Rich: Hearing Before the House Violations, Roll Call, May 11, 1998; Michael constitution does not say every individual in Comm. on Govt. Reform, 107th Cong. 193 Kirkland, Reno Gets Advice from Freeh on the United States or every citizen is hereby (2001) (statement of Mr. Eric Holder)) Despite Gore Probe, United Press International, July granted or assured the right to habeas. It this assertion, correspondence with the Jus- 27, 2000) The House Committee on Govern- simply says the right of habeas corpus shall tice Department obtained by the House Com- ment Reform and the Senate Committee on not be suspended.’’ Later, the Detroit Free mittee and testimony from other witnesses Governmental Affairs both conducted exten- Press editorialized: ‘‘The moment when shows that, 15 months before the pardon, Mr. sive investigations of the fund-raising activi- Alberto Gonzales proved he was just wrong Holder met privately with Mr. Rich’s attor- ties. Both Committees found significant evi- for the job of U.S. attorney general came ney and received a presentation about what dence of wrongdoing and recommended that . . . after Sen. Arlen Specter, R-Pa., asked Mr. Rich’s defense believed were flaws in the the Attorney General appoint an inde- him about the constitutional guarantee of government’s case. (Id. at 175–76) Further, pendent counsel to investigate further. In its criminal due process, known as habeas cor- according to Mr. Holder’s own testimony, he report on the investigation, the House Com- pus.’’ I am convinced that many of Attorney tried to facilitate a meeting between the mittee wrote: ‘‘the failure of the Attorney General Gonzales’ missteps were caused by prosecutors in the Southern District of New General to follow the law and appoint an his eagerness to please the White House. York and Rich’s attorney, Mr. Jack Quinn, independent counsel for the entire campaign Similarly, when Mr. Holder was serving as over a year before the pardons were granted. finance investigation has been the subject of DAG to President Clinton, some of his ac- (President Clinton’s Eleventh Hour Pardons: two sets of Committee hearings. FBI Direc- tions raised concerns about his ability to Hearing Before the Senate Comm. on the Ju- tor Louis Freeh and the Attorney General’s maintain his independence from the presi- diciary, 107th Cong. 31 (2001)) hand-picked Chief Prosecutor, Charles dent. The most widely reported incident in- Allegations have also been raised that Mr. LaBella, wrote lengthy memos to the Attor- volved the aforementioned controversial par- Holder was responsible for the deviation ney General advising her that she must ap- don of fugitive Marc Rich. Mr. Rich fled the from normal pardon procedures. Allegedly, point an Independent Counsel under the country in 1983 after a federal grand jury in Mr. Quinn wrote to and spoke with Mr. Hold- mandatory section of the Independent Coun- New York returned a 51-count indictment er several times between November 2000 and sel Statute. . . . Until an independent coun- against him, his partner, and his company, the night of January 19, 2001, and primarily sel is appointed in this matter, the American which included allegations of tax evasion, relied on him for guidance and information people cannot be assured that the same fraud, and trading with the enemy (Iran, dur- rather than the pardon office. Mr. Quinn tes- standards of justice will be applied to the ing the hostage crisis). Those charges carried tified that Mr. Holder advised him to go President and Vice-President as apply to a maximum sentence of 300 years in prison. straight to the White House rather than every other citizen.’’ (Investigation of Polit- On January 20, 2001, President Clinton grant- through the pardon office, and Mr. Quinn ical Fundraising Improprieties and Possible ed Rich a pardon that did not follow the reg- produced an email from himself to a col- Violations of Law, Interim Report, H.R. Rep. ular pardon procedures. Mr. Rich never ap- league with the subject line ‘‘eric’’ in which No. 105–829, Sixth Rep., Vol. 1, at 3 (1998)) peared for trial, had attempted to ship sub- he noted that ‘‘he says go straight to wh. Following these two Committees’ inves- poenaed documents out of the country, and also says timing is good. we shd get in soon.’’ tigations, I chaired a special task force to was still a fugitive. Prior to his pardon, he (The Controversial Pardon of International examine whether the Justice Department had been listed on the FBI’s ‘‘Ten Most Fugitive Marc Rich: Hearing Before the fulfilled its responsibilities in investigating Wanted’’ fugitives list. Further tainting his House Comm. on Govt. Reform, 107th Cong. these matters. That lengthy investigation of pardon was the fact that his ex-wife wife had 640 (2001) (email from Jack Quinn)) Mr. Hold- the campaign finance scandal included six donated large sums to the Democratic Party er denied that he told Mr. Quinn to go hearings before the Judiciary Committee’s

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