[Senate Hearing 106-684]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 106-684

   NOMINATIONS OF DAVID W. OGDEN, OF VIRGINIA; AND ROBERT RABEN, OF 
 FLORIDA, EACH TO BE ASSISTANT ATTORNEY GENERAL FOR THE DEPARTMENT OF 
                                JUSTICE

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

    THE NOMINATIONS OF DAVID W. OGDEN AND ROBERT RABEN, EACH TO BE 
           ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE

                               __________

                             AUGUST 4, 1999

                               __________

                          Serial No. J-106-42

                               __________

         Printed for the use of the Committee on the Judiciary

?

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........     1
Schumer, Hon. Charles E., U.S. Senator from the State of New York     6
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...     7

                               PRESENTERS

Statement of Hon. Robert Graham, U.S. Senator from the State of 
  Florida........................................................    10
Statement of Hon. Henry Hyde, U.S. Representative in Congress 
  from the State of Illinois.....................................    13
Statement of Hon. John Conyers, U.S. Representative in Congress 
  from the State of Michigan.....................................    14
Statement of Hon. John W. Warner, U.S. Senator from the State of 
  Virginia.......................................................    18

                                NOMINEES

Testimony of Robert Raben, of Florida, to be Assistant General, 
  Office of Legislative Affairs, U.S. Department of Justice......    17
Testimony of David W. Ogden, of Virginia, to be Assistant 
  Attorney General, Civil Division, U.S. Department of Justice...    19

               ALPHABETICAL LIST AND MATERIALS SUBMITTED

Conyers, Hon. John: Testimony....................................    14
Graham, Hon. Robert:
    Testimony....................................................    10
    Letter from the Congress of the United States, House 
      Committee on the Judiciary, to Senator Hatch dated Apr. 26, 
      1999.......................................................    12
    Prepared statement of Hon. Connie Mack, U.S. Senator from the 
      State of Florida...........................................    13
Hatch, Hon. Orrin G.: Prepared statement of Hon. Charles S. Robb, 
  U.S. Senator from the State of Florida.........................    36
Hyde, Hon. Henry: Testimony......................................    13
Ogden, David W.:
    Testimony....................................................    19
    Prepared statement...........................................    21
    Questioning by Senators:
        Hatch....................................................    23
        Sessions.................................................    26
Raben, Robert:
    Testimony....................................................    17
    Questioning by Senators:
        Hatch....................................................    23
        Sessions.................................................    34
Specter, Hon. Arlen: Letter from the U.S. Senate, Committee on 
  the Judiciary, to Janet Reno, dated July 22, 1999..............     8
Warner, Hon. John W.:
    Testimony....................................................    18
    Prepared statement...........................................    19

 
   NOMINATIONS OF DAVID W. OGDEN, OF VIRGINIA; AND ROBERT RABEN, OF 
 FLORIDA, EACH TO BE ASSISTANT ATTORNEY GENERAL FOR THE DEPARTMENT OF 
                                JUSTICE

                              ----------                              


                       WEDNESDAY, AUGUST 4, 1999

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 8:38 a.m., in 
room SD-628, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Specter, Sessions, and Schumer.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    The Chairman. As we begin today's nominations hearing, and 
commence consideration of two nominees seeking leadership 
positions within the Department of Justice, I must confess my 
deep disappointment and concern over the state of affairs at 
the Department.
    Earlier this week, I stated publicly that in my 23 years in 
the Senate, I had never seen a more politicized Justice 
Department. This statement is not a hyperbole, nor is it an 
overly dramatic phrasing of a less-severe situation. It is, 
rather, my candid assessment of a profoundly disturbing set of 
situations.
    A country's commitment to dispensing justice is best 
measured by its dedication to the rule of law, and there is no 
more accurate barometer of this dedication than how a country's 
top officials police themselves.
    Despite a historical legacy replete with examples of 
integrity, our Department of Justice now seems mired in an 
ethical quagmire. For more than 4 years now, Federal law 
enforcement and committees of Congress have been confronted 
with allegations of illegal campaign contributions from a 
foreign government to the incumbent President's campaign for 
reelection. These contributions came at the same time the 
administration was making a wide range of unusual concessions 
to that same foreign government on trade, human rights, and 
technology transfer matters.
    More recently, this situation has grown even more serious 
as these allegations have been compounded with other charges, 
contained in a unanimous, bipartisan congressional report. That 
report details how the administration, when told of the 
possibility of a dangerous breach of national security by the 
same foreign government that was involved in the illicit 
campaign activities, did not take adequate steps to investigate 
or halt such activities, despite the fact that these matters 
concern some of our most closely guarded nuclear secrets.
    Indeed, we have learned relatively recently that during the 
summer of 1997, the Justice Department refused the FBI's 
request that the Department seek a Court's authorization for 
wiretap authority to further investigate evidence of espionage 
at nuclear laboratories, a decision, I might add, that Members 
of Congress from both parties have found astonishing.
    Simultaneous with this decision, the Department has been 
quietly setting about to terminate investigations and 
prosecutions of those suspects and criminals who violated our 
campaign finance laws. Only this past week, news reports 
appeared suggesting that prosecutors have told reporters that 
they are ``disgruntled'' with the way in which the Justice 
Department political appointees have ``botched'' the campaign 
finance probe.
    There is good reason for such frustration. Consider some of 
the specific, irrefutable facts that undermine the Department's 
heated denial of wrongdoing.
    No. 1, next week, the Department intends to ask a Federal 
District judge in Los Angeles to approve a plea agreement for 
John Huang, a major political fundraiser with close White House 
ties who raised some $1.6 million that the Democratic Party was 
forced to return. Remarkably, the Justice Department's plea 
deal focuses only on a pair of minor illegal donation charges, 
and the Department will recommend a sentence for Mr. Huang, 
consisting of only a year's probation and a small fine, that 
would appear so lenient as to raise serious ethical questions 
concerning the Department's law enforcement efforts.
    No. 2, the Justice Department has also drafted a plea 
agreement that would terminate further criminal proceedings 
against a reported friend of the President named Yah Lin 
``Charlie'' Trie, who raised more than $1.3 million that had to 
be returned. Trie has been permitted to plead guilty to one 
count of making false statements to the Federal Election 
Commission, a charge that carries with it a maximum sentence of 
up to 6 years in prison. Yet, disturbingly, prosecutors have 
recommended a penalty of only 3 years' probation.
    These settlements follow on the heels of generous plea 
agreements involving other key figures in the campaign finance 
investigation, such as Johnny Chung, who entered a plea bargain 
that resulted in a minimal sentence of only probation and 
community service.
    Ultimately, I fear that these plea agreements and proposed 
sentences, if entered, will constitute the last, sad, tawdry 
arrangement in an investigation that has already permitted 
numerous witnesses to flee the country and in which numerous 
other witnesses have taken the fifth amendment, and one cannot 
help but contrast the relative dispatch with which these plea 
agreements were entered, with the Department's reported 
``active'' consideration of other longstanding investigations 
into Representative Dan Burton and Haley Barbour.
    Incredibly, evidence has now emerged that the courts may 
have acquiesced in some of these highly suspect arrangements, 
and I cite the Associated Press article on Judge Sent Hubbell, 
Trie cases to Clinton employees on July 31, of this year. There 
is a deeply troubling report that the chief judge of the 
District of Columbia District Court bypassed that court's 
random case assignment procedures by taking the unusual step of 
handpicking those judges to whom the Trie case and also the 
Webster Hubbell case were assigned. This account is disturbing 
because each such case was assigned to judges nominated during 
this current administration, notwithstanding that the 
allegations contained in each case implicated the 
administration. If these reports are true, even if deviations 
from the district court's random case assignment procedures are 
technically permitted by local rule, I share the concern that 
has been expressed by other judges on the court that these 
assignments will damage the public's confidence that these 
cases were impartially adjudicated.
    Now, having said that, I have no reason to believe that the 
judge who made the assignments did anything intentionally wrong 
because my experience has been only of decency and dedication 
with regard to this judge.
    The Department's prosecutorial efforts in these campaign 
finance matters are too superficial in investigation and too 
lenient in punishment to give the public confidence that our 
campaign finance laws, which were designed to protect our 
democratic election process, are in fact being enforced. Sadly, 
when such laws go unenforced and the public takes note that the 
beneficiary of illegal contributions goes unpunished, the 
likely perception is that justice is being dispensed unfairly, 
with the powerful protected and others not, and that, of 
course, is no justice at all.
    The questions that flow from this administration's poor 
handling of these serious allegations remind many of us why we 
so fervently called upon the Attorney General to appoint an 
independent counsel for these matters over the past number of 
years. Faced now with a public perception that this 
administration is more interested in protecting itself than in 
enforcing the country's campaign finance laws, we cannot help 
but question the Attorney General's stubborn refusal on several 
different occasions to appoint an independent counsel, 
notwithstanding that the available evidence clearly and 
credibly raised the possibility of serious crimes by high-level 
Government officials.
    As you know, it has been my view throughout that as a 
matter of law, such an appointment was mandated. Furthermore, 
the Attorney General had before her the strongest possible 
recommendations for such action in the form of a careful, 
thorough, but urgently worded memorandum from the Director of 
the FBI and in the form of personal counsel from the very 
prosecutor, Charles LaBella, she placed in charge of the 
investigation.
    Had such an independent counsel appointment been made by 
the Attorney General, public confidence most assuredly would 
have been maintained in the handling of these campaign finance 
cases, no matter the ultimate disposition. This is because an 
independent counsel would have removed the conflict of interest 
caused by the participation of the Attorney General in a 
criminal investigation and prosecution in which she was closely 
identified with an elected official who was ``substantially 
involved in the conduct that is the subject of the 
investigation.''
    Incidentally, if this standard sounds familiar, it is 
because I have just quoted from the Department of Justice's own 
regulations governing conflicts of interest, and in light of 
the publicly announced conclusions of both Director Freeh and 
Mr. LaBella that the Attorney General has a political conflict 
of interest with the President in the campaign finance matter, 
and given the Attorney General's own statement to Congress that 
there is an inherent conflict of interest whenever an Attorney 
General is called upon to investigate a President, it strikes 
me as all but impossible that the Attorney General's 
involvement could be defended as not implicating an appearance 
of conflict, let alone an actual conflict.
    Sadly, the Attorney General's obstinacy in refusing an 
independent counsel, and her consequent engagement in so 
conspicuous a conflict of interest in these campaign finance 
investigations, sadly seems to have taken its toll. Consider 
the loss of public confidence occasioned by some of the recent 
actions of this Department.
    The Justice Department failed to thoroughly investigate 
information it had about the transfer of $300,000 in a Citibank 
account by a Chinese military officer and former aerospace 
executive to Johnny Chung, another major fundraiser who entered 
a plea bargain in exchange for a minimal sentence.
    A former Federal prosecutor in California was ordered to 
halt a probe that had begun in 1996 into fundraising 
improprieties involving the Vice President.
    In 1997, the Justice Department ordered the immediate 
return to Washington of an FBI agent and prosecutor sent to 
Little Rock, AR, to stop documents from being shredded by Mr. 
Trie's secretary.
    The Department's own Inspector General recently issued a 
report concluding that the Department's campaign finance 
investigation was conducted ineptly.
    The Department in 1997 rejected the FBI's request that the 
Department ask a court for wiretap permission to investigate 
Wen Ho Lee, the prime suspect for espionage of our country's 
most coveted nuclear secrets to the same foreign government 
implicated in the campaign finance scandal.
    With all this as merely a partial background to the 
Department's troubling actions, let me move now to my most 
pressing concern. As Chairman of the Senate Judiciary 
Committee, it is my column obligation to exercise oversight 
over the Department of Justice and thereby provide an 
indispensable check by a separate branch of Government into the 
executive power's investigation and prosecution of criminal 
violations.
    To this end, my office has been conducting witness 
interviews, under oath, of those Department and FBI officials 
involved in the Chinese espionage investigation, with the aim 
of putting together a factual record that will shed some light 
on the Department's actions in this matter.
    With respect to the campaign finance issues, I have sent a 
letter, together with Senator Specter, that explains that the 
public has a right to know much of the information contained in 
a transcript of a hearing at which Attorney General Reno 
appeared before the Judiciary Committee in early June. Yet, the 
Department appears to have dug in its heels seeking to keep 
substantial portions, which in my view do not appear to 
implicate national security, redacted and away from public 
scrutiny.
    Also, several of my colleagues and I have asked the 
Department to expeditiously deliver to this committee all 
documents ``pertaining to * * * allegations against, 
cooperation from and plea bargains with'' those persons 
suspected of campaign finance violations. Although the 
Department 2 days ago made an initial delivery of documents 
that I had asked for, the real test of the Department's 
willingness to comply with this Committee's oversight 
responsibilities remains to be seen.
    But I have to say, the Department is deeply mistaken if it 
believes that it can elude compliance with the request for 
declassification of the Attorney General's hearing transcript, 
or with this committee's document request, with a gambit that 
is no more sophisticated than a child's game of hide-and-seek. 
The recent book Shadow contains an interesting insight into 
something I have empirically confirmed as being a constant 
truth under this administration, that it employs a strategy, as 
author Bob Woodward put it,

          Never join the issue, never have an all-out fight 
        with * * * the congressional committees. Never say 
        ``no'' to requests for documents or testimony. Always 
        say, ``We'll get back to you, we'll get you what we 
        can. Let's talk about this, Let's meet, Let's 
        negotiate.'' Always keep something on the table. Avoid 
        confrontation. Write conciliatory letters. The reason 
        for the strategy was also simple: if there was no 
        confrontation, there was no news, * * * The less 
        scandal news, the better for the president and his 
        reelection.

    Now, it is my expectation that this committee will receive 
the Department's full cooperation as it takes steps to gain an 
understanding into the Department's investigation and 
prosecutorial decisions concerning the corruption of the law 
governing our country's democratic election process. Such 
oversight is essential if the public is ever to gain an 
understanding into why the Department, notwithstanding the 
plain conflicts of interest, has embarked upon a course that is 
so routinely and properly criticized as lax in its law 
enforcement efforts, and that is so widely perceived as 
protecting this administration from investigation and 
prosecution at all costs.
    Let me make very clear that I do not intend to hold up the 
two nominees before us today because I have larger concerns 
with the Department, but I do have questions, and many of them, 
that must be asked and properly answered before I can cast any 
vote to confirm high-level officials to this Department of 
Justice.
    Now, I took a little longer than I normally do, but I felt 
like I had to make this statement in light of all the things 
that have happened and in light of some of my distaste for what 
has happened. So I apologize to my distinguished colleagues 
from the House of Representatives for having done so, but I 
felt like I had to do that this morning.
    I will turn to Senator Schumer who represents the Minority.
    Senator Schumer. Thank you, Mr. Chairman. I have heard your 
statement. I would like for you to tell us how you really feel 
about this.
    The Chairman. Well, I was quite light this morning, I have 
to admit.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. I guess I will just make a couple of quick 
points in response to it. I do not think it can go completely 
unanswered, although I know this is a day for the nominees and 
their families are here and our witnesses have been waiting. So 
I will be brief.
    I guess, first, I would say, without answering all the 
specifics, I think it is a bit of a stretch to tie the Wen Ho 
Lee investigation to previous talk about campaign contributions 
from China and all of that.
    I mean, I have talked to Secretary Richardson, I have 
talked to law enforcement people, and if you believe them--and 
I do not think there is anything nefarious going on--they are 
trying to build a case. You need evidence, and when things are 
done, particularly on computers, it is awfully hard to get the 
evidence. So I would certainly take strong difference with any 
implication that the investigation of Win Ho Lee is in any way 
tied to the previous investigations which have gone on a long 
time about campaign finance reform, whatever we think of them, 
and I think it is a wild stretch to make or imply that analogy. 
And I would strongly make that point to the chairman.
    Second, I guess I would say I have been here now--this is 
my 19th year in this town, and it has become sport already. 
When there is a Democratic administration, Republicans are 
quick to find scintilla of scandal in everything that happens. 
When there is a Republican administration, Democrats do the 
same. We have all been through this.
    I suppose looking at it from 20,000 feet above, it is a 
good process overall. It keeps each administration honest, but 
I think we have to be careful that it does not go overboard. I 
think what the American people have been saying to us over the 
last several years, most recently in the last year or 2, get on 
with the business of making our lives better. If you are going 
to spend all your time just pointing fingers to each other, we 
are not going to improve the status of this country.
    And I am glad that the chairman, despite his strong 
feelings, which I respect because I know he is a man of great 
integrity, has decided to move these fine nominees forward 
because they are good nominees. I know one of them in 
particular well, and it is their day. So I am glad that we are 
moving forward, despite our differences of opinion in regard to 
many of the things that the chairman said.
    With that, I would ask unanimous consent. Senator Leahy is 
on the floor talking about the dairy compact, and I would ask 
unanimous consent that his statement be put into the record.
    The Chairman. Without objection, we will put it in the 
record.
    [The prepared statement of Senator Leahy follows:]

 Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the 
                            State of Vermont

    I am delighted to see us making progress with respect a few of the 
scores of nominees backlogged here in the Committee. Both of the 
nominations for Assistant Attorney General positions at the Department 
of Justice being considered today are important, both involve people 
who have dedicated their lives to public service and who can provide 
outstanding leadership at the Department. I trust that this hearing 
will be the start of progress toward Committee consideration and a 
favorable Senate vote on each of them. They have each been delayed too 
long and will likely now be pushed back beyond the August recess into 
September.
    I also note that the nomination of another outstanding public 
servant to an Assistant Attorney General position who remains in limbo 
before this Committee. A Senate vote on that nomination has been 
delayed over two years. That is wrong. The nomination of Bill Lann Lee 
to be Assistant Attorney General to head the Civil Rights Division 
should be delayed no longer. It should be sent to the Senate for a fair 
vote on its merit.
    Last month in communities all around the country and here at the 
United States Capitol, Asian Pacific Americans led all Americans in a 
demonstration of our commitment to one America, equal opportunity and 
equal justice under law by urging the Senate to vote on the nomination 
of Bill Lann Lee to head the Civil Rights Division at the Department of 
Justice.
    These demonstrations marked the second anniversary of the initial 
nomination of Bill Lann Lee to the office of Assistant Attorney General 
for Civil Rights. I repeat today that it is past time to do the right 
thing, the honorable thing, and report this qualified nominee to the 
Senate so that the Senate may fulfill its constitutional duty under the 
advice and consent clause and vote on this nomination without further 
delay.
    After Bill Lann Lee graduated from Yale and then Columbia Law 
School he could have spent his career in the comfort and affluence of 
any one of the nation's top law firms. He chose, instead, to spend his 
career on the front lines, helping to open the doors of opportunity to 
those who struggle in our society. His is an American story. The son of 
immigrants whose success can be celebrated by all Americans.
    It appears that some on the Republican side want to hold the Lee 
nomination as a partisan trophy--to kill it through obstruction and 
delay rather than allowing the Senate to vote up or down on the 
nomination. This effort started with a letter from the former Speaker 
of the House, Newt Gingrich, to the Republican Majority Leader of the 
Senate in 1997. over the ensuing weekend progress toward confirmation 
of this nomination ground to a halt. Speaker Gingrich is gone but the 
disastrous consequence of his unjustified opposition to this nomination 
lingers. It is past time to put injustice to rest.
    It is time for the Senate to vote on the nomination of Bill Lann 
Lee. Let the Senate vote on the confirmation of this good man. We need 
Bill Lann Lee's proven problem-solving abilities in these difficult 
times with hate crimes on the rise across the country. He is 
spearheading efforts against hate crimes, against modern slavery and 
for equal justice for all Americans.
    I ask the Judiciary Committee again today, in the spirit of 
fairness, that the Committee recognize the 18-month stewardship of the 
Civil Rights Division of Bill Lann Lee, his qualifications, and his 
quiet dignity and strength and send his nomination to the full Senate 
so that the United States Senate may, at long last, vote on that 
nomination and, I hope, confirm this fine American to full rank as the 
Assistant Attorney General for Civil Rights.
    When confirmed Bill Lann Lee will be the first Asian Pacific 
American to be appointed to head the Civil Rights Division in its 
storied history and the highest ranking Federal Executive officer of 
Asian Pacific American heritage in our 200-year history.
    Civil Rights is about human dignity and opportunity. Bill Lann Lee 
ought to have an up or down confirmation vote on the Senate floor. The 
Senate should fulfill its constitutional duty under the advice and 
consent clause and vote on this nomination. He should no longer be 
forced to ride in the back on the nominations bus but be given the fair 
vote that he deserves.
    I call on the Judiciary Committee and the Senate to bring this 
nomination to the floor for an up or down vote without obstruction or 
further delay so that the Senate may vote and we may confirm a 
dedicated public servant to lead the Civil Rights Division into the 
next century. Let the Senate move forward from the ceremonial 
commemorations earlier this year by doing what is right and voting on 
the nomination of Bill Lann Lee.
    The Chairman has previously told this Committee that he was 
reviewing the actions of the Civil Rights Division over the last 
several months and that he had hoped to have concluded his review by 
Memorial Day. I hope the Committee will not serve to block this 
nomination any longer but will afford the Senate a fair opportunity to 
vote to confirm Bill Lann Lee without further delay or obstruction.

    Senator Schumer. I yield back the rest of my time.
    The Chairman. Senator Specter, who has taken a very special 
interest in this, has asked for a few moments. So I will turn 
to him, and then we will turn to our witnesses.
    Senator Specter. Thank you very much, Mr. Chairman.
    I think you have made an important statement, and I would 
like to make a comment or two and I will be brief. We have very 
distinguished Members here who are waiting to speak on the 
pending nominees.
    The Congress has very substantial oversight 
responsibilities, and commensurate with that, very substantial 
oversight powers. I believe that there are many questions which 
have to be asked and answered. I believe you, Mr. Chairman, 
have posed many of those questions, and I would agree with 
Senator Schumer that we ought not draw conclusions as to Wen Ho 
Lee and campaign finance connections, but I believe that as to 
Wen Ho Lee and Peter Lee, there are very major questions as to 
how those prosecutions were handled. I think it is time, Mr. 
Chairman, that we put into the record the letter which you and 
I sent to Attorney General Reno on July 22, which poses those 
questions.
    [The letter follows:]

                                       U.S. Senate,
                                Committee on the Judiciary,
                                     Washington, DC, July 22, 1999.
The Honorable Janet Reno,
Attorney General of the United States, U.S. Department of Justice, 
        Washington, DC.
    Dear Madam Attorney General: We are writing to request that you 
provide to the Judiciary Committee all documents in the Department's 
possession relating to (1) the Department's ' investigation of illegal 
activities in connection with the 1996 federal election campaigns, and 
(2) the Department's investigation of the transfer to China of 
information relating to the U.S. nuclear program. Your submission 
should include a copy of Charles La Bella's report recommending 
appointment of a campaign finance independent counsel. In addition, 
your submission should include, but not be limited to, any and all 
memoranda, reports, agreements, notes, correspondence, filings and 
other documents pertaining to:

  1. The allegations against, cooperation from and plea bargains with 
    Peter H. Lee.

  2. The allegations against, cooperation from and plea bargains with 
    Johnny Chung.

  3. The allegations against, cooperation from and plea bargains with 
    Charlie Trie.

  4. The allegations against, cooperation from and plea bargains with 
    John Huang.

  5. The Department's reported decision not to prosecute Mr. Wen Ho 
    Lee.

  6. Any other individuals who were or still are under investigation by 
    the Department for campaign finance violations.

  7. Any other individuals who were or still are under investigation by 
    the Department for passing nuclear technology to China.

    These matters--for which we now seek documents--are at the heart of 
this Committee's oversight responsibilities. Indeed, it would be 
difficult to imagine more compelling cases for this Committee's 
oversight than those involving the Department's investigation and 
prosecutorial decisions concerning the possible theft of the nation's 
nuclear secrets and the possible violation of our campaign finance 
laws. The fulfillment of these oversight responsibilities is imperative 
to ensure that our national security and campaign finance interests are 
adequately protected, and to identify any shortcomings in current law 
or procedure so that any necessary corrective act can be taken in a 
timely fashion. Moreover, the information we seek herein is imperative 
if this Committee is to meaningfully address various matters left 
outstanding following your appearances before this Committee on March 
12, May 5 and June 8, 1999.
    . We would appreciate a response within ten days as to whether you 
intend to comply with this request, including a timetable for document 
production.
    Thank you for your cooperation.
            Sincerely,

Orrin G. Hatch.

                                    Arlen Specter.

Bob Smith.

                                    Strom Thurmond.

Jon Kyl.

                                    Chuck Grassley.

Jeff Sessions.

                                    Mike DeWine.

    Senator Specter. Campaign finance matters are separate, but 
they also require answers, and our letter specified not only 
Peter Lee and Wen Ho Lee, but also Johnny Chung and Charlie 
Trie and John Huang and all others who were under 
investigation. This ought to be done in the spirit of asking 
questions, looking for answers, not making charges unless the 
facts will support those charges.
    When it comes to Attorney General Reno's testimony before 
this committee on June 8, we did not get a transcript until 
July 2. The transcript was so badly redacted that the pages 
were mostly black, with almost nothing remaining. I would like 
to put into the record, Mr. Chairman, letters which I sent to 
you on June 29, July 13, and July 26, which summarizes, without 
my going into any detail, but that this committee is prepared 
on a bipartisan basis, at least to some extent, to file a 
petition for a resolution with the full Senate for the 
disclosure of these matters under rule 29.
    [The letters were not available at presstime.]
    Senator Specter. We have delayed that in order to be doubly 
and trebly sure that the disclosures will not compromise 
sources and methods. They have been reviewed and re-reviewed, 
and we are having them reviewed for a third time at the present 
time because the affidavit of probable cause, which was 
submitted to the Justice Department in the Wen Ho Lee case, was 
powerful, and I say that with having had some experience in 
statements of probable cause for search warrants.
    Then there is the issue of the selection of judges on 
sensitive cases in the U.S. District Court for the District of 
Columbia, and here again, only questions to be raised, but I 
have prepared legislation and I am glad to know that you, Mr. 
Chairman, will join with me to require random selection of 
judges.
    In my days as a trial lawyer and as a prosecutor, a 
fairness is assured when the judges are taken off in a random 
way, not assigned in any specific way. It certainly has the 
appearance of raising a question. Whether there is any question 
really there remains to be seen by the facts, but this 
legislation proposal will set the stage for a Judiciary 
Committee hearing, although we have oversight responsibilities, 
and this does not go to the issue of judicial independence as 
to how judges decide cases. These are administrative matters 
which are subject to congressional control as we legislate it 
on a speedy trial rule and time limits on habeas corpus and 
many other administrative matters.
    Finally, Mr. Chairman, I agree with you that these nominees 
ought to be processed promptly. I do not believe we should hold 
up the work of the Justice Department by delaying confirmations 
of nominees, but we have seen these questions, and this will be 
detailed later, where questions have been posed to the Attorney 
General on hearing after hearing after hearing after hearing 
and there is always a response that is a valid question, we 
will get back to you, and the Department of Justice and the 
Attorney General never do. I believe that this oversight matter 
is going to have to be pursued as they have been historically 
and we have to be prepared to be tenacious, and that involves 
subpoenas and that involves contempt citations and that 
involves taking these cases to the Court of Appeals, if not the 
Supreme Court, but the law is plain that we have the authority 
to discharge that important responsibility.
    I am glad to hear you commented, Mr. Chairman, and again in 
a context of raising questions, no answers, let's find out. I 
hope and I think we will be joined in a bipartisan way, as we 
will on the resolution to compel disclosure of the Attorney 
General Reno deposition and these other matters which touch on 
national security.
    When you get to campaign finance reform, it may be a little 
different, but I think we will even have bipartisan support 
there.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Specter.
    Let me just say, with regard to Wen Ho Lee, I did not mean 
to imply that was part of the campaign finance problems, but it 
is a part of a problem, a series of problems that troubles me 
down there at the Department. Of course, nothing I said would 
indicate I was trying to bring that into that context, but one 
thing that bothers me about that is that the Department of 
Energy had obtained a waiver. So the FBI could have gone in and 
shut down that computer and got all of the materials from it 
and prevented the downloading that actually occurred, where our 
legacy codes were allegedly lost. Of course, they did not tell 
the FBI about it, and that is something that is really very 
troubling to me, but be that as it may, I have raised a lot of 
issues here this morning that I think have to be raised and I 
believe are importantly raised and honestly raised, and we will 
go from there.
    We have some very distinguished witnesses with us this 
morning. I understand Senator Warner will be here, and we will 
see what happens here, but Senator Bob Graham is here from 
Florida to testify, and then we have the distinguished chairman 
of the Judiciary Committee in the House, a great friend of 
mine, who will then be next to testify, and then a great 
friend, the Ranking Minority Member in the Judiciary Committee 
in the House, Congressman John Conyers.
    So we are delighted to have you with us. We are honored to 
have you all here.
    We will start with you, Senator Graham. When Senator Warner 
comes, we will go to him next, if we can.

STATEMENT OF HON. ROBERT GRAHAM, A U.S. SENATOR FROM THE STATE 
                           OF FLORIDA

    Senator Graham. Thank you very much, Mr. Chairman.
    In deference to the time of this committee and the 
distinguished visitors who have come from the House of 
Representatives on behalf of Mr. Robert Raben, I will file my 
statement for the record and speak briefly and 
extemporaneously.
    Mr. Chairman, it is a great privilege to introduce Robert 
Raben for your consideration as the next Assistant Attorney 
General for Legislative Affairs. I would like to take this 
opportunity to introduce his family members who have joined him 
today, his wife, Carol, and daughter, Madeline--oh, they will 
be back. I am sorry. You have a treat in store for you--his 
parents, Mr. and Mrs. Murray Raben.
    The Chairman. We are happy to welcome all of you to the 
hearing this morning.
    Senator Graham. Mr. Chairman, as you will hear in more 
detail from two distinguished Members of the House of 
Representatives who have worked closely with Robert Raben, he 
has demonstrated throughout his career a mastery of the law, a 
dedication to the principle of bipartisanship, an abiding 
commitment to public service, and a keen understanding of 
Congress, qualities which will be critical in the discharge of 
his new responsibilities.
    I would like, Mr. Chairman, before going further, relative 
to Mr. Raben, to thank my good friend and colleague, Senator 
Mack, who has joined me in this recommendation and 
introduction. Unfortunately, because of other commitments, he 
could not be with us today, but I would like to ask if I could 
submit a statement from Senator Mack.
    The Chairman. Without objection, we will place it in the 
record immediately following yours.
    Senator Graham. Mr. Chairman, that is an occasion to also 
thank you and the other members of the committee for your many 
courtesies to Senator Mack and myself relative to the rather 
large number of nominations; particularly for the Federal 
District Court, which have come from Florida and have been 
handled with such courtesy and dispatch by this committee.
    The Chairman. Thank you, Senator. We appreciate the way 
both of you have worked together on these nominees, and that 
has helped greatly. We are very happy to help you.
    Senator Graham. I appreciate that, and I am confident that 
the same experience will be afforded to Mr. Raben in his 
current nomination.
    I think one of the most impressive aspects of Mr. Raben's 
service, which has been primarily to various Democratic Members 
of the House of Representatives and to the Democratic Members 
of the House Judiciary Committee, has been the strong support 
that he has received from the chairman and the Republican 
Members of the committee. I would like to file for the record a 
letter to you, Mr. Chairman, dated April 26, signed by a dozen 
or more Members of the Judiciary Committee from the Republican 
side of the aisle, and just to quote one sentence from this 
letter,

          Robert has demonstrated a superior ability to work in 
        conjunction with the Majority, and where there are 
        differences of opinion, disagree respectfully and 
        constructively. We can think of no more important 
        quality to have for the position of Assistant Attorney 
        General for Legislative Affairs and hope you will give 
        his confirmation great consideration.

That is a tribute to the qualities that Mr. Raben has 
demonstrated, and it will be extremely important as he carries 
out his duties as the Assistant Attorney General for 
Legislative Affairs.

    [The letter follows:]

                     Congress of the United States,
      House of Representatives, Committee on the Judiciary,
                                    Washington, DC, April 26, 1999.
The Hon. Orrin Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: We write to support the nomination by the 
President of Mr. Robert Raben to the position of Assistant Attorney 
General for Legislative Affairs and urge you to hold a hearing on his 
confirmation by the Senate.
    Robert has served the House Committee on the Judiciary since 1995 
as Democratic Counsel to the Subcommittee on the Constitution, then as 
Democratic Counsel to the Subcommittee on Courts and Intellectual 
Property. Throughout his tenure with the Judiciary Committee, Robert 
has distinguished himself with a commitment to his profession, and a 
dedication to serving the Members. We credit him for his strong 
intellectual curiosity and his ability to grasp the ramifications of 
complex legislative proposals while being ever mindful of the political 
landscape through which legislation must pass to become law.
    As you know, especially on our Committees, the legislative process 
is not always the most harmonious of endeavors; yet Robert has 
demonstrated a superior ability to work in conjunction with the 
majority, and where there are differences of opinion, disagree 
respectfully and constructively. We can think of no more important 
quality to have for the position of Assistant Attorney General for 
Legislative Affairs and hope you will give his confirmation great 
consideration.
            Sincerely,

Henry J. Hyde,                      Charles Canady,
Chairman, Committee on the 
Judiciary.

                                    Chairman, Subcommittee on the 
                                    Constitution.

Howard Coble,                       Bill McCollum,
Chairman, Subcommittee on Courts 
and Intellectual Property.

                                    Chairman, Subcommittee on Crime.

George Gekas,                       Bob Goodlatte,
Chairman, Subcommittee on 
Commercial and Administrative Law.

                                    Committee on the Judiciary.

Asa Hutchinson,                     Mary Bono,
Committee on the Judiciary.

                                    Committee on the Judiciary.

Joe Scarborough,                    Ed Pease,
Committee on the Judiciary.

                                    Committee on the Judiciary.

Lamar Smith,                        Elton Gallegly,
Chairman, Subcommittee on 
Immigration and Claims.

                                    Committee on the Judiciary.

James E. Rogan,                       
Committee on the Judiciary.           

    Senator Graham. I might say he has been also recognized by 
the group such as the Fraternal Order of Police who have 
described him as an ideal choice for this important post, who 
has distinguished himself by his bipartisan approach to 
crafting policy.
    Mr. Andrew Fois, who previously served in the position of 
Assistant Attorney General for Legislative Affairs, described 
Mr. Raben as an exceptional individual and well qualified for 
this position.
    Mr. Chairman, we have before us a man whose full career has 
prepared him for this specific and important responsibility, 
serving both the Department of Justice and the U.S. Congress.
    I would urge with my colleague, Senator Mack, that his 
nomination be given expeditious and positive consideration by 
this committee.
    Thank you.
    [The prepared statement of Senator Mack follows:]

    Prepared Statement of Hon. Connie Mack, a U.S. Senator From the 
                            State of Florida

    Mr. Chairman and members of the committee, it is my privilege to 
introduce Robert Raben for your consideration as the Assistant Attorney 
General for Legislative Affairs at the Department of Justice.
    Mr. Raben has an impressive resume and a distinguished legal 
career. He began his academic studies at the University of Pennsylvania 
where he graduated with a B.S.E. degree from the Wharton School of 
Finance. Mr. Raben then earned his Juris Doctorate from the New York 
University School of Law.
    Shortly after completing law school, he served as a judicial clerk 
for the Honorable James Robertson of the Supreme Court of Mississippi. 
Such clerkships are few and far between, and granted only to those who 
have mastered the theory of law during the course of their studies.
    After his one-year clerkship was complete, Mr. Raben was again 
awarded a privilege that is earned by a very few. Only one year out of 
law school, Mr. Raben was invited to teach Professional Responsibility, 
Legal Writing, and Racism and the Law at the University of Miami School 
of Law.
    After spending a year as a professor, Mr. Raben moved on to another 
aspect of his varied legal career. He joined a prominent Washington, 
D.C. law firm where he specialized in the practice of international 
trade, Federal lobbying, and white collar criminal defense.
    In 1994, Mr. Raben came to Capitol Hill. He began on the Hill as 
counsel to the personal staff of Representative Barney Frank, and then 
served as counsel to the House Committee on the Judiciary, Subcommittee 
on the Constitution. Presently, Mr. Raben is counsel to the House 
Committee on the Judiciary, Subcommittee on Courts and Intellectual 
Property. In a letter to the Judiciary Committee, Henry Hyde, Charles 
Canady, Howard Coble, and Bill McCollum stated that ``we credit [Robert 
Raben] for his strong intellectual curiosity and his ability to grasp 
the ramifications of complex legislative proposals while being ever 
mindful of the political landscape through which legislation must pass 
to become law.'' That is a wonderful compliment from four esteemed 
members of the House of Representatives.
    In addition to his work on Capitol Hill, Mr. Raben makes time in 
his busy schedule to teach courses as an adjunct professor at 
Georgetown University School of Law, and to serve as Treasurer on 
Hispanic Bar of the District of Columbia.
    Mr. Raben's credentials are impeccable, and it is evident that he 
has achieved excellence in his career. He is respected by his peers and 
praised by his superiors.
    Mr. Chairman, it has been my honor to introduce this fine and 
capable man to the Judiciary Committee this morning. Thank you.

    The Chairman. Thank you, Senator. That is high praise, and, 
Mr. Raben, I am sure you feel honored to have a Senator speak 
for you.
    We are very honored to have the chairman of the Judiciary 
Committee in the House, someone to whom I have always looked up 
and whom I considered, along with the Ranking Member, to be 
personal friends. So we are sorry it has taken so long to get 
to you, but we will turn the time over to you now, Chairman 
Hyde.

STATEMENT OF HON. HENRY HYDE, A U.S. REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ILLINOIS

    Representative Hyde. Thank you very much, Senator Hatch, 
and my good friend, Chuck Schumer, and Senator Sessions. It is 
an honor and a privilege to be invited here to testify, and it 
is something I was eager to do because, frankly, when I heard 
that Robert Raben was in line for this important post of 
Assistant Attorney General for Legislative Affairs, I was 
really overjoyed.
    In working with him since 1995, I found him to be an 
extraordinarily competent lawyer, a very fair-minded, straight-
shooter, and someone who wants to be helpful. He is a liberal 
Democrat, but he understands how to service the committee of 
what our needs are and has been remarkably nonpartisan or 
bipartisan in helping us get information.
    I cannot think of a tougher job than being liaison between 
the Justice Department and the Senate and House Judiciary 
Committees, but Mr. Raben welcomes the appointment, and I was 
just as pleased as I could be because he has been enormously 
helpful to us.
    Our problem is somewhat similar to your problem, Senator 
Hatch, and that is getting answers from the Justice Department. 
I believe Rob Raben will help us get those answers. He has 
already been very helpful on certain legislation that I was 
interested in, and so it is a real privilege to endorse his 
nomination. He has an extraordinary academic background. He is 
an adjunct professor at Georgetown University School of Law. He 
taught at the University of Miami Law School. He has practiced 
with Arnold and Porter. He clerked for a Justice of the Supreme 
Court of Mississippi, and he is a graduate of the Wharton 
Business School of the University of Pennsylvania and the New 
York University School of Law. So he has an outstanding 
background.
    He is a fine person. He is a straight arrow. He works in a 
nonpartisan way on this very difficult job, and I hope that he 
is speedily confirmed. I think things will be a lot better 
between the Justice Department and our committee.
    Thank you.
    The Chairman. Thank you, Mr. Chairman.
    Mr. Raben, that is certainly very, very good praise.
    My friend, John Conyers.

   STATEMENT OF HON. JOHN CONYERS, A U.S. REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Representative Conyers. Good morning, Mr. Chairman, to my 
friend, Charles Schumer, Senator Sessions, and to my colleagues 
here at the table.
    My job is easy because the description of Robert Raben 
comports exactly with the person that I know. The only 
difference is that I was less enthusiastic about the 
possibility of this appointment and him leaving us than perhaps 
they are.
    The Chairman. I am starting to think you were one of those 
that gummed everything up for him, you know.
    Representative Conyers. I was hoping that he would get it, 
but I was not really over here working overtime because of his 
personal value to me and the staff members on the Democratic 
side. He is a person that fits into all of the many issues that 
come within the jurisdiction of the Judiciary Committee, and I 
think he is uniquely qualified for Assistant Attorney General 
for Legislative Affairs.
    I have known him for many years, first as a legislative 
assistant to Barney Frank, then as Minority counsel for the 
Subcommittee on the Constitution, then as the Minority counsel 
for the Subcommittee on Courts and Intellectual Property, and 
then as counsel for the full Judiciary Committee. I have had a 
tremendous time and an enjoyable one as well working out many 
of the very sticky problems, including constitutional ones, 
that come before us.
    During all this time, Mr. Raben has consistently displayed 
a firm grasp of both the policy and political ramifications of 
the Committee's work. He has worked on a wide variety of 
complex issues that come before the Committee, on almost every 
one of our subcommittees, and is respected, as the testimony 
that has already come in on both sides of the aisle shows. His 
integrity is unquestioned, and on numerous occasions, he has 
helped Democrats and Republicans bridge gaps and build 
consensus on the often contentious matters that come before the 
Committee on the Judiciary, and this included the lobby reform 
bill enacted during the 104th Congress and last year's digital 
millennium copyright bill.
    So I believe that all of these skills and experiences serve 
to recommend Mr. Raben for the challenge that lay ahead of him 
at the Justice Department.
    Chairman Hyde and I were fortunate to have the benefit of 
his services on our Committee, and I think the Attorney General 
and your Committee also will benefit from his considerable 
knowledge and expertise in his service at the Justice 
Department.
    Fortunately, if this confirmation is agreed to by this 
committee and the Senate, it will not mean that we are losing 
him. We will be getting him back in a higher and more valued 
position. So, with that thought in mind, all of my earlier 
reluctances have disappeared, and I am as enthusiastic as 
everybody else at this table in urging that this nomination be 
confirmed.
    Thank you very much.
    The Chairman. Thank you.
    We will turn to Senator Schumer, I assume, who would like 
to comment.
    Senator Schumer. Thank you, Mr. Chairman. I wanted to wait 
until my colleagues from the House had made their statements, 
but I just want to add my statement on behalf of both of our 
nominees, and it is great to see Chairman Hyde and Ranking 
Member Conyers, as well as my colleague, Bob Graham, here. It 
is a pleasure to welcome to the Senate, Robert Raben, a 
pleasant reminder of my 18-year career in the House, who has 
been nominated, of course, for the Assistant Attorney General 
for the Office of Legislative Affairs. I am quite familiar with 
the position, as his predecessor was my chief of staff and 
served well, Andy Fois, who has now gone on to the private 
sector.
    So I can tell you that the experience that Robert has had 
is just exactly the right experience for assuming this job. I 
know him well, in addition to knowing the job well, because he 
sat behind me during Judiciary Committee meetings for the last 
3 years because Robert worked for Congressman Frank and Barney 
and we sat next to each other in committee. When I turned 
around, to one shoulder I had my staff person and the other was 
Robert. So I had an opportunity to see him work up close, and I 
can tell you that working for Barney Frank is not easy. He is 
quick and he is impulsive and unpredictable.
    The Chairman. Working with him is not always easy.
    Senator Schumer. But he is remarkably insightful.
    The Chairman. Yes, he is.
    Senator Schumer. It takes a great deal of intelligence and 
nimble thinking and facile writing to keep up with him. Bob 
Raben was one of the best and most respected staff members that 
Barney ever had, and that is saying quite a bit. He also had 
the respect, as was noted, of the Majority staff and Chairman 
Hyde. So I think he will be an outstanding addition, and I hope 
that he will be quickly approved.
    Mr. Chairman, I want to say--and I think I say this on 
behalf of the whole Democratic side--we appreciate your moving 
this nominee and Mr. Ogden, who I will talk about in a minute. 
Despite your misgivings about some of the things that are going 
on with the Justice Department, I think that shows a commitment 
to making sure that our Government works despite our 
disagreements.
    I also want to introduce David Ogden, nominated to be the 
Assistant Attorney General for the Civil Division. His 
qualifications are also outstanding. He served in the 
leadership offices of Justice more than 5 years, Associate 
Deputy Attorney General, then counselor, then chief of staff. 
He recently has been serving as Assistant Attorney General for 
the Civil Division in an acting capacity, but that is not all. 
He has held two other positions that make him well suited for 
this post, private practice at Jenner and Block which requires 
him to work both with and against the Government, and second as 
Deputy General Counsel for the Department of Defense, an agency 
which is often represented in its litigation by DOJ Civil 
Division. So, therefore, he has worked for DOJ, against DOJ, 
with DOJ, and as a client of DOJ. What better experience than 
that could be. So I think he, too, will be a terrific addition 
and support fully his nomination.
    I thank you, Mr. Chairman, and apologize to our witnesses. 
My new job in the Senate--my House colleagues will appreciate--
this brings me to the floor. I have to go to the floor to 
defend the dairy compact. That is something I did not do that 
much in the House.
    So I thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    I am really grateful to all of you being here.
    Chairman Hyde, I know that you need to leave to chair a 
hearing on the important issue of hate crimes, and I want to 
commend you for your leadership on this issue. As you may know, 
I have introduced legislation over here on the subject, and my 
proposal has passed the Senate, along with Senator Kennedy's, 
as an amendment to the C-J-S appropriations bill. I would have 
appeared as a witness in front of your committee this morning 
except for this hearing, so if you will forgive me for not 
being there, but I hope that you will be willing to put my 
statement into the record in your hearing.
    I just want to thank all three of you for being here. You 
have helped us here before the committee, and I believe you 
have helped both of these nominees. We appreciate your coming.
    Representative Hyde. Thank you.
    Representative Conyers. Thank you.
    I am glad to hear you mention your work on hate crimes 
because it is my bill that is going to be heard this morning. I 
thank you very much for your cooperation.
    The Chairman. Let's see if we can work together to come to 
an effective conclusion on that.
    Representative Conyers. I would be delighted.
    The Chairman. I would like to see something pass this year.
    Thanks, my friend.
    All right. If we can have the two nominees step forward. 
Please raise your right hands. Do you swear that the testimony 
you shall give in this hearing shall be the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Raben. I do.
    Mr. Ogden. I do.
    The Chairman. Mr. Raben, do you have a statement? First, 
maybe you could introduce your friends and members of your 
family who are here, and any statement you would care to make 
we would love to have at this time.

TESTIMONY OF ROBERT RABEN, OF FLORIDA, TO BE ASSISTANT ATTORNEY 
  GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, U.S. DEPARTMENT OF 
                            JUSTICE

    Mr. Raben. Thank you. I appreciate that, sir. I am 
delighted to have some of my family. I have a very large 
family, and they did not all come up from Miami, but I have my 
daughter, Madeline----
    The Chairman. Hi, Madeline.
    Mr. Raben [continuing]. Who is 8 and 11, 12th, her mother, 
Carol, and my parents, June and Murray Raben who are 
celebrating their 15th anniversary this year.
    The Chairman. Well, congratulations. We are happy to 
welcome both of you here.
    Mr. Raben. And a cadre of friends and coworkers.
    The Chairman. OK; well, you friends all stand up. I want to 
see you, just for a minute.
    [Persons stood.]
    The Chairman. That is great. We are delighted to have all 
of you here. We welcome you.
    Mr. Raben. Can we divide the questions? [Laughter.]
    The Chairman. Mr. Raben.
    Mr. Raben. Thank you, sir.
    Chairman Hatch, Senator Sessions, staff that I have worked 
with and look forward to working with, I begin most emotionally 
by expressing what an enormous honor it is for me to appear 
before you today for your consideration toward confirming me as 
an Assistant Attorney General at the Department of Justice.
    The professional honor, made more special by the presence 
and support of colleagues and friends from both sides of the 
aisle, is compounded further by the support today from my 
family and friends. I have introduced my family, and I am 
pleased that they have been able to come up to join me on this 
special day.
    I do want to say publicly that in both prayer and in 
practice, I am profoundly grateful to them for their unrequited 
love and support.
    I am honored to have been selected by Attorney General Reno 
and President Clinton for this position, to have the strong 
support of so many Members and Senators from both sides of the 
aisle, and to be poised with your approval to act in an 
official capacity as a responsible and respectful ambassador 
between you and the Department of Justice.
    My nearly 7 years as counsel in the House of 
Representatives provided an excellent opportunity to work on 
difficult and sometimes emotional issues with people all along 
the political spectrum, and to do so, I feel, with respect, a 
sense of humor, and mutual admiration.
    I feel and I hope that I have earned the trust of many 
elected officials and staff as someone who does what he says he 
will do, provide straightforward answers in a timely fashion, 
and has a deep and abiding respect for the law and particularly 
the legislative branch.
    I hope to, and pledge that I will, continue manifesting 
those qualities as the confirmed Assistant Attorney General for 
Legislative Affairs. I am very eager to work with you in that 
capacity.
    The Chairman. Thank you very much. We appreciate having you 
here and look forward to working with you, and listening to our 
colleagues from the House, it is apparent that you could break 
through a lot of problems that we have. We are looking forward 
to seeing that happen.
    Mr. Raben. Thank you.
    The Chairman. Mr. Ogden, we have an equally high opinion of 
you.
    Mr. Ogden. I appreciate that, Mr. Chairman.
    The Chairman. We are happy to have you introduce your 
family and make any statement you care to make.
    Mr. Ogden. Thank you very much, Mr. Chairman.
    I have a pretty substantial contingent here today. In the 
front row is my wife, Wannette Smith Ogden, my son, Jonathan, 
my daughter, Elaine. Right behind them is my uncle, Bill 
Condrell, my sister, Jessica, my sister, Connie, Connie's 
husband, Bill Graham, and behind them, my cousin, Alex, and my 
cousin Bill Condrell, and my brother-in-law, Don Smith.
    The Chairman. We are happy to welcome all of you here. 
Thank you very much.
    Mr. Ogden. Mr. Chairman----
    The Chairman. Could I interrupt to allow Senator Warner to 
make a statement?

STATEMENT OF HON. JOHN W. WARNER, A U.S. SENATOR FROM THE STATE 
                          OF VIRGINIA

    Senator Warner. I think you are doing quite well, and I 
will submit my statement for the record, Mr. Chairman.
    The Chairman. We will be happy to place it in the record, 
and there is no question, we are honored to have you here.
    Senator Warner. I have had extensive consultations with 
this fine nominee. I commend the President, Attorney General, 
and he is just going to do a splendid job. He has my support, 
and having said that, you are on your own. Good luck.
    The Chairman. That is what I call a real helpful statement. 
[Laughter.]
    Senator Warner. Do you want to hear it?
    The Chairman. Oh, no. I thought it was more helpful the way 
you delivered it, to be honest.
    You are great. Thanks, John.
    [The prepared statement of Senator Warner follows:]

  Prepared Statement of Hon. John W. Warner, a U.S. Senator From the 
                           State of Virginia

    Chairman Hatch, and my other distinguished colleagues on the 
Senate's Judiciary Committee, I am pleased to support the nomination of 
David W. Ogden, a longtime Virginia resident, to serve as Assistant 
Attorney General for the Civil Division in the Department of Justice. 
Mr. Ogden has a strong history of serving the public interest and 
impeccable credentials.
    Mr. Ogden has an impressive record of public service in his legal 
career. Currently, Mr. Ogden is acting Assistant Attorney General for 
the Civil Division in the Department of Justice.
    Prior to this position, Mr. Ogden served as the Chief of Staff to 
the United States' Attorney General. He has also served as counselor to 
the attorney general and deputy attorney general/legal counsel to the 
United States Department of Defense. While at the Department of 
Defense, Mr. Ogden was awarded the Department of Defense Medal for 
Distinguished Public Service.
    Prior to serving in the public sector, Mr. Ogden engaged in the 
private practice of law for over eleven years. Mr. Ogden's had a 
diverse practice of law in complex civil litigation. He represented 
clients before a number of courts, including the United States Supreme 
Court and other appellate courts, and represented those clients in a 
number of areas of law, including the First Amendment, antitrust law, 
the law of professional ethics and education, and the law of non-profit 
and professional associations.
    In addition to his impressive career in the private and public 
sector, Mr. Ogden's educational achievements indicate that he is an 
extremely bright man who will serve the Department of Justice well. In 
1976, he graduated from the University of Pennsylvania with a B.A., 
summa cum laude, Phi Beta Kappa. In 1981, he earned his J.D., magna cum 
laude, from Harvard Law School. After graduation from law school, Mr. 
Ogden served as a law clerk to the Honorable Abraham D. Sofaer, United 
States District Court judge for the southern district of New York. Mr. 
Ogden then had the honor to serve as a law clerk to the late Honorable 
Harry A. Blackmun on the United States Supreme Court.
    Mr. Ogden is obviously a very accomplished American who has 
dedicated a large portion of his professional career to public service. 
He is well qualified to serve as Assistant Attorney General for the 
Civil Division in the Department of Justice, and I am certain that he 
will in this position with honor, integrity, and distinction. Mr. Ogden 
would be a strong asset for our Department of Justice.
    Again, I am pleased to indicate my support for Mr. Ogden. I look 
forward to the Committee reporting his nomination favorably and for a 
confirmation vote before the fall Senate.

    The Chairman. All right. Mr. Ogden, we will turn to you for 
any statement that you have. We welcome your family here and 
your friends, both nominees' families and friends.
    Go ahead.

   TESTIMONY OF DAVID W. OGDEN, OF VIRGINIA, TO BE ASSISTANT 
  ATTORNEY GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Ogden. Thank you very much, Mr. Chairman, Senator 
Sessions. Senator Warner, thank you very much for your comments 
in my support.
    I am very honored to come before you today as the nominee 
to be Assistant Attorney General for the Civil Division of the 
U.S. Department of Justice.
    I thank the President for having nominated me and the 
Attorney General for her confidence in me.
    I am very thankful to you, Mr. Chairman, for holding this 
hearing and considering my qualifications. I am thankful to 
Senator Warner and Senator Robb for their statements of support 
for me.
    I would like to recognize a few people to whom I owe a 
particular debt of gratitude. I am deeply grateful to my wife, 
Wannette, for her unfailing support and encouragement. Without 
her love, generosity, and faith in me over the past 16 years, I 
would not be sitting before you today. I am also grateful to my 
children, Jonathan and Elaine. I need look no further than 
their love, friendship, and strength as people, as inspiration 
to continue working for the future of our country and to 
believe in that future. I am grateful to my uncle, Bill 
Condrell, for his guidance and great generosity of heart and 
spirit.
    I wish so much that my father, Hod Ogden, were here and 
alive to see this day. Dad taught me many important things, 
including how to think and the great virtues of public service.
    For medical reasons, my mother, Elaine Ogden, cannot be 
here today, but every day for more than 45 years, my mother has 
taught me by her constant example about love, strength, and 
integrity.
    Finally, I want to mention Justice Harry A. Blackmun, who 
died late this winter. He gave me the opportunity as a very 
young lawyer to clerk for him at the U.S. Supreme Court. I will 
always remember Justice Blackmun for his faith, that dedication 
to the craft and the tools of the law is the best path for 
discovering justice.
    Mr. Chairman, I want to serve as Assistant Attorney General 
for the Civil Division because few jobs afford as great an 
opportunity to use a litigator's skills in the services of our 
country, its Constitution, and the American people.
    I have had the privilege of working closely with the 
Division in different capacities, as Senator Schumer mentioned. 
For more than a decade in private practice, I represented 
parties in litigation with the United States, sometimes adverse 
to the Civil Division and other times aligned with it. When I 
was at the Department of Defense as the Deputy General Counsel, 
I was responsible for coordinating and overseeing litigation 
Departmentwide.
    In that role, I worked closely with the Civil Division as 
its client on the most important litigation matters facing the 
Department, the Defense Department, and together with the 
senior military and civilian leaders at DOD, I worked with the 
Civil Division to develop strategies that vindicated DOD 
policies and to marshal DOD resources in support of those 
strategies. And when I served for 3\1/2\ years in leadership 
offices at the Department, among my most important duties was 
helping the Attorney General and the Deputy Attorney General 
oversee the work of the Civil Division. Since February, I had 
had the privilege of directing the division as its acting head. 
From all of those vantage points, I have learned that the great 
strength of the Civil Division is the extraordinary talent and 
dedication of its career attorneys, who work tirelessly to see 
that the interests of the American people and their Government 
are served in the courts.
    The division has a proud tradition of protecting the public 
fisc and the integrity of the Nation's laws, and of seeking 
justice under law for the Government and those litigating 
against it. I commit, without reservation, that if the Senate 
confirms my appointment, I will do everything I can to live up 
to those high standards.
    Should I be confirmed, I will be mindful that the interests 
of the United States are defined by the Congress as reflected 
in the laws it passes and by the President, and that 
representing the United States requires respect for the policy 
choices reflected in Federal legislation and the implementing 
regulations and policies at the executive branch. When Congress 
has passed a law, the Civil Division should defend it against 
constitutional challenge whenever reasonable arguments can be 
made in support of its constitutionality, except in the rarest 
instances, and those are defined by the Department's practices.
    In the 6 months I have served as Acting Assistant Attorney 
General, my commitment to that principle has been reflected in 
the defense of a number of Federal statutes that have come 
under attack in the Federal courts.
    If confirmed, I will also devote my primary attention to 
the interests of American taxpayers who foot the bill for the 
many important activities of their Government. Every prudent 
and effective step consistent with the law must be taken to 
defeat nonmeritorious claims against the public fisc and to 
recover funds wrongfully obtained from or denied to the 
Treasury through false claims or other wrongs.
    If confirmed, I will also be mindful of the Department's 
unique obligations, to the judicial branch and to the 
Department's adversaries in litigation, obligations of absolute 
candor to the court, respect for its precedence, and due regard 
for judicial economy.
    Finally, Mr. Chairman, I recognize the importance of 
working with you and your colleagues in Congress on the policy 
issues within the jurisdiction of the Civil Division and in 
connection with your oversight responsibilities. If confirmed, 
I will do everything I can to ensure a productive and 
cooperative relationship.
    I thank you again for considering my nomination and would 
be very happy to respond to any questions you may have.
    [The prepared statement of Mr. Ogden follows:]

                  Prepared Statement of David W. Ogden

    Mr. Chairman and Members of the Committee: I am very honored to 
come before you today as the nominee to be Assistant Attorney General 
for the Civil Division of the United States Department of Justice. I 
thank the President for having nominated me and the Attorney General 
for having confidence in me. I am very thankful to you, Mr. Chairman 
and Senator Leahy, for holding this hearing and considering my 
qualifications.
    If I may, I would like to introduce the members of my family who 
are here today. I am grateful to all of them, and to my friends who 
have come today, for being here and for their support.
    I would like to recognize a few people to whom I owe a particular 
debt of gratitude. I am deeply grateful to my wife, Wannett Smith 
Ogden, for her unfailing support and encouragement. Without her love, 
generosity, and faith in me over the past sixteen years, I would not be 
sitting where I am today. I am also grateful to my children, Jonathan 
and Elaine. I need look no farther than their love, friendship and 
great strengths as people for inspiration to continue working for and 
believing in our country's future. I am grateful to my Uncle, Bill 
Condrell, for his guidance and great generosity of heart and spirit.
    I wish so much that my father, Hod Ogden, were alive to see this 
day. Dad taught me many important things, including how to think and 
about the great virtues of public service. For medical reasons, my 
mother, Elaine Ogden, cannot be here today. Every day for more than 
forty-five years, my mother has taught me by her constant example about 
love, strength and integrity.
    Finally, I want to mention Justice Harry A. Blackmun, who died late 
last winter. He gave me the opportunity as a very young lawyer to clerk 
for him at the United States Supreme Court. I will always remember 
Justice Blackmun for his faith that dedication to the craft and tools 
of the law is the best path to discovering justice.
    Mr. Chairman, I want to serve as the Assistant Attorney General for 
the Civil Division because few jobs afford as great an opportunity to 
use a litigator's skills in the service of our country, its 
Constitution, and the American people. The Civil Division represents 
the United States, its agencies, and its employees in general civil 
litigation in the trial and appellate courts. The subject matter of 
this litigation is as varied as the activities of the Division's 
client: cases worth billions of dollars in areas such as fraud, 
contracts, international trade, patents, and bankruptcy; suits 
challenging the constitutionality of federal statutes and the 
lawfulness of regulations or official actions; general tort claims, 
including those that involve toxic substances, aviation, admiralty, and 
so-called Bivens actions against federal officials in their individual 
capacities; and litigation to enforce various federal laws, including 
the Nation's consumer and immigration laws. The Division also 
administers two very important compensation programs for the victims of 
radiation exposure and for individuals, primarily children, who suffer 
extreme adverse reactions to certain vaccines.
    I have had the privilege of working closely with the Division in 
different capacities. For more than a decade in private practice, I 
represented parties in litigation with the United States sometimes 
adverse to the Civil Division, and other times aligned with it, as when 
I represented the National Association of Broadcasters and, together 
with the Civil Division, worked successfully to uphold certain 
provisions of the 1992 Cable Television Act. When I was at the 
Department of Defense as Deputy General Counsel, I was responsible for 
coordinating and overseeing litigation Department-wide. In that role, I 
worked closely with the Civil Division as its client on the most 
important litigation matters facing the Defense Department. Together 
with the senior military and civilian lawyers at DOD, I worked with the 
Civil Division to develop strategies that vindicated DOD policies, and 
to marshal DOD resources in support of those strategies. When I served 
for three and one-half years in the leadership offices at the Justice 
Department, among my most important duties was helping the Attorney 
General and Deputy Attorney General oversee the work of the Civil 
Division. And since February, I have had the privilege of directing the 
Division as its acting head.
    From all of those vantage points, I have learned that the great 
strength of the Civil Division is the extraordinary talent and 
dedication of its career attorneys, who work tirelessly to see that the 
interests of the American people and their government are served in the 
courts. The Division has a proud tradition of protecting the public 
fisc and the integrity of the Nation's laws, and of seeking justice 
under law for the government and those litigating against it. I commit 
without reservation that, if the Senate confirms my appointment, I will 
do everything I can to live up to those high standards.
    Should I be confirmed, I will remain mindful that the interests of 
the United States are defined by the Congress, as reflected in the laws 
it passes, and by the President, and that representing the United 
States requires respect for the policy choices reflected in federal 
legislation and the implementing regulations and policies of the 
Executive Branch. When Congress has passed a law, the Civil Division 
should defend it against constitutional challenge whenever reasonable 
arguments can be made in support of its constitutionality, except in 
the rarest instances, such as where the statute violates the 
constitutional separation of powers or directly conflicts with a 
Supreme Court ruling of constitutional dimension. In the six months I 
have served as Acting Assistant Attorney General, my commitment to that 
principle has been reflected, for example, in our defense of the Child 
Online Protection Act, which was enacted to protect children from 
harmful materials on the Internet; our defense of a statute that caps 
attorneys fees in cases brought in the District of Columbia under the 
Individuals with Disabilities in Education Act; our defense of 
regulations implementing the Federal Credit Union Membership Access 
Act, passed by Congress in 1998; and our continued defense of the 
constitutionality of the Violence Against Women Act. If confirmed, I 
will also devote my primary attention to the interests of American 
taxpayers, who foot the bill for the many important activities of their 
government. Every prudent and effective step, consistent with the law, 
must be taken to defeat non-meritorious claims against the public fisc, 
and to recover funds wrongfully obtained from or denied to the Treasury 
through false claims or other wrongs.
    If confirmed, I will also remain mindful of the Justice 
Department's unique obligations to the judicial branch and to the 
Department's adversaries in litigation--obligations of absolute candor 
to the court, respect for its precedents, and due regard for judicial 
economy. And because the delay and expense of litigation can be 
wasteful, inefficient, and themselves can deny justice--particularly 
for those with limited resources--I will look for better alternatives 
where possible, including the appropriate use of Alternative Dispute 
Resolution techniques.
    Finally, Mr. Chairman, I recognize the importance of working with 
you and your colleagues in Congress on the policy issues within the 
jurisdiction of the Civil Division, and in connection with your 
oversight responsibilities. If confirmed, I will do everything I can to 
ensure a productive and cooperative relationship.
    I thank you again for considering my nomination, and would be very 
happy to respond to any questions you may have.

                      questioning by senator hatch

    The Chairman. Thank you. We are glad to have both of you 
here.
    We are going to ask some tough questions here today because 
I have set the stage with my opening remarks, and we will start 
with you, Mr. Raben.
    The position of Assistant Attorney General for Legislative 
Affairs is one of great importance from the standpoint of an 
oversight committee, such as the one before which you are 
appearing right now.
    Please provide me with your views on the state of affairs 
between this committee and the Department at the present time, 
and tell me in what direction you wish to move relations 
between the committee and the Department in the event that you 
are confirmed.
    Mr. Raben. Thank you very much. I appreciate that question.
    I don't have a great sense of the state of affairs between 
this committee and the Department of Justice, apart from what I 
know from my years in----
    The Chairman. I will just define it for you. It is a little 
bit pathetic, and it could be improved, greatly improved.
    Mr. Raben. I think your characterization of it is extremely 
important to me, and it sounds like I have a lot of work to do 
to prove it.
    The Chairman. I understand that some of my colleagues have 
asked you about an article you wrote in January 1997 for ``Roll 
Call,'' and I want to give you an opportunity to address this 
matter here because it should be addressed by you and in an 
open forum so that people will know.
    In that article, you argued against a drug testing rule 
adopted by the House and wrote,

          Many things are illegal, but we don't try to root out 
        behavior for scrutiny and retribution because it is 
        illegal. My guess is that a fair number of employees of 
        the House, like anywhere else, may not report all their 
        cash income from weekend waitering jobs.

Then you went on to note that the practice was ``illegal,'' but 
``largely unenforced.'' You then concluded that,

          The fact that certain acts are illegal and employees 
        or members engage in them doesn't in other context mean 
        we will lose our jobs.

    Now, I would like you to please clarify the following for 
me. Was it, and if so, does it continue to be your position 
that a person may intentionally under-report their income to 
the IRS, the practice commonly known as tax fraud, yet should 
be eligible for continued employment as a public servant at the 
highest level of Federal Government?
    Mr. Raben. Absolutely not. I appreciate you raising that 
article and the specific question that you raised. The article 
in question, I wrote several years ago, and was intended as 
satire. And I won't be doing that again. It apparently is 
satire fallen flat, and I take full responsibility----
    The Chairman. I have had some of those experiences myself.
    Mr. Raben. I take full responsibility for that.
    The broad context that I intended was that we have a 
terrible problem with drugs in this country and other illegal 
behavior, and that the attack, the war, if you will, ought to 
be holistic and it ought to include drug testing, education, 
treatment, rehabilitation, and very strong enforcement with 
respect to the laws. I strongly believe that. The intention of 
that article through satire was to point out that drug testing 
alone is not going to be the beginning, middle, and end of 
solving the drug problem. It is an important part of it.
    With respect to the paragraph you read me, and I wrote, if 
I can recall correctly what was in my mind at the time, the 
point was to show that there are other--that there are 
underenforced laws, and that is a mistake; that all of our laws 
should be enforced.
    To answer your question directly, if someone under-reports 
his or her income, I think that is a very serious problem and 
it ought to be sanctioned.
    The Chairman. Thank you.
    As somebody who has kind of a quiet sense of humor that is 
sometimes misinterpreted as talking about factual matters, I 
fully understand that can happen.
    You also wrote in that article that, ``Those who lose sleep 
knowing that someone else has taken a hit from a joint on a 
Saturday night or on a roll with this drug-testing program and 
for entertainment's sake, I hope this is just a first step.'' 
You need to tell us what you meant by that statement.
    Mr. Raben. It's a very poor choice of words. Again, it's 
satire meant to point out as a broad policy matter we ought to 
be enforcing our laws. We ought to be taking them seriously, 
and with respect to drugs in particular, we ought to be 
strongly enforcing the laws, drug testing, treatment, 
rehabilitation.
    The Chairman. Thank you.
    Mr. Ogden, let me ask a few questions of you. Did you 
assist the Attorney General in any of her considerations 
whether to appoint an independent counsel, and if so, what were 
your recommendations in those matters?
    Mr. Ogden. Mr. Chairman, I did have some role, a relatively 
minor one, during the 8 months in which I served as the 
Attorney General's Chief of Staff with respect to the campaign 
finance task force and with respect to certain of the decisions 
that she made in the Independent Counsel area.
    I would like to explain, if I might, what my role as Chief 
of Staff was----
    The Chairman. Sure.
    Mr. Ogden [continuing]. So that it might better explain 
what my responsibilities were in that area.
    As Chief of Staff, I was Chief of Staff of the Attorney 
General's personal staff, not Chief of Staff of the Department 
as a whole. There are six or seven lawyers on her staff, and 
there were other responsibilities in the office as well, 
correspondence and scheduling. My responsibility was to run 
that staff and to try to be sure that the Attorney General's 
needs were met with respect to the issues she looked to us for 
in that area.
    She had--prior to the time I became Chief of Staff, her 
previous Chief of Staff was a former prosecutor, and his 
responsibilities for advising her were in the area of criminal 
law. My expertise is in the area of civil law, and my role in 
the civil law area was in the civil law area, substantively, 
and I had no role whatever in the Independent Counsel process 
or the campaign finance process with respect to any decisions 
made in that area prior to becoming Chief of Staff.
    When I became Chief of Staff, the Attorney General went out 
and got another senior counselor to serve as her principal 
advisor on criminal matters on our personal staff, and her 
senior counselor had primary responsibility in that area.
    What I tried to do outside the civil area as Chief of Staff 
was to be the one other person in the office who had 
familiarity with a spectrum of important issues that were 
before the Attorney General, and I did sit in on meetings of 
the campaign finance task force for that 8-month period in 
order to remain familiar with those issues.
    On a few of those issues, she did ask for my views, along 
with those of the other people who were submitting those views, 
and that included some of the decisions she made with respect 
to appointment of an Independent Counsel. Whenever I made 
those--gave her that advice, I gave her it based on my own best 
evaluation of the facts and the law that was presented. I tried 
to give it as independent advice, without regard to the 
political consequences and without regard to the 
recommendations that were being made by others.
    You have asked me specifically what my recommendations to 
the Attorney General were. She feels strongly, and it is the 
Department's policy, that the advice that her senior advisors 
give her not be reported outside the Department. She makes the 
final decision. She makes that decision independently, and it's 
the Department's policy not to report specifically what those 
recommendations were.
    The Chairman. Well, my time is up, but could I ask one 
other question, Senator Sessions? I do not want to intrude on 
your time.
    What steps did you take as both counselor and Chief of 
Staff to the Attorney General to ensure that she was not 
conflicted from participating in the campaign finance probe? 
For instance, I would like for you to address with specificity 
those actions you took to establish compliance with the 
Department's regulations that forbade anyone from 
``participating in a criminal investigation or prosecution'' if 
he or she is ``closely identified with an elected official'' 
who is ``substantially involved in the context that is the 
subject of the investigation.''
    Mr. Ogden. As I said before, Senator, as counselor to the 
Attorney General, I simply didn't have responsibilities in the 
area of the Independent Counsel law and the decisions that were 
made under it.
    As her Chief of Staff, we did discuss that issue because it 
was raised by Members of Congress, and it was an issue that--
obviously, that process was well underway by the time I became 
involved in it. It was analyzed. It was looked at quite closely 
by Criminal Division people, by people who are responsible for 
ethics issues, and their conclusions were that the decisions 
she made were decisions that was appropriate for her to make.
    The Chairman. Reported recently was an article stating that 
the chief judge of the District of Columbia District Court 
bypassed that court's random case assignment procedures by 
taking the unusual step of handpicking those judges to whom the 
Trie case and also the Webb Hubbell case were assigned, oddly 
enough two Clinton appointees. Had you at any time heard in any 
fashion, directly, indirectly, or by rumor how these two 
matters were assigned? And if so, please describe when and how.
    Mr. Ogden. No, sir, I don't have any information about 
that.
    The Chairman. OK; well, I have other questions, but I may 
submit them.
    Senator Sessions, we will turn to you.

                    questioning by senator sessions

    Senator Sessions. Thank you, Mr. Chairman.
    The Chairman. I am going to leave for a minute. I will be 
right back. So you go right ahead.
    Senator Sessions. I want to thank you for your opening 
remarks and raising a number of important issues, and I am 
concerned as a longtime practitioner in Federal court, the case 
assignment policies of the judge in Arkansas on some of these 
cases. That is stunning to me that the idea of equal justice 
can be tarnished when a judge assigns cases as they see fit, 
and maybe we are going to have to look at that. I hate to. I 
know we do not want to and you do not want to. That is a really 
serious matter.
    And the questions of these plea bargains in which there 
appear to be little or no sentence and little or no cooperation 
is also dangerous, and maybe--I appreciate your willingness to 
confront the issues.
    The Chairman. If you would yield.
    One other thing I have to tell both of you that bothers me 
a great deal is the number of media presentations which 
indicate that a number of these people wanted to tell more of 
the story, and they would not even listen to them at the 
Justice Department. Now, if that is true, that is abysmal. I 
mean, we will all lose confidence in the Justice Department if 
that is true. I am not saying it is, but we sure had a lot of 
reports on that, and it bothers me greatly because we ought to 
be interested in getting at the bottom of illegal conduct, 
regardless of who it is. So, naturally, I am very concerned.
    Senator Sessions. Well, that is the point, Mr. Chairman. If 
the Department is going to undertake these cases, they have got 
to do them aggressively and with the highest degree of 
professionalism. If they are not, they are best given an 
Independent Counsel, as you requested from the beginning, and 
it is a high burden.
    Mr. Ogden, I want to ask you a number of questions. In your 
questionnaire, you were asked to list all other organizations 
to which you belonged that are active in lobbying before public 
bodies. That is a standard question that has been asked of many 
nominees, and you failed to answer the question. Everybody 
else, to my knowledge, has, and you stated, ``In the past, I 
have given contributions to organizations that by virtue of my 
donation conferred on me the status of member. I did not 
consider myself to be a member of any such organization by 
virtue of a donation,'' and then you declined to answer 
further.
    It seems to me if you give money to an organization that 
declares you a member and you know that when you make the 
contribution, then you clearly meet the definition of the 
statement. Would you provide me and the Members of this 
Committee a complete list of the organizations of which you are 
a member?
    Mr. Ogden. I certainly would be pleased, Senator, to 
provide you with a list of those organizations, to the best of 
my ability, that falls in the category I identified.
    I consulted with the folks in the Department who are 
responsible for these things and who told me that that was an 
appropriate way to answer the question, but if you want that 
information, I will do my best to provide it.
    Senator Sessions. Well, that is very troubling to me. It 
seems to me that the Department ought not to so advise. If you 
are a member of an organization that you have given money to, 
you ought to disclose that, and it is too typical of this 
tendency in modern thought and even within this Department, I 
must say, to define words to mean as they wish. The question 
was were you a member, not whether you considered yourself to 
be, but did you know you were a member and receive, I guess, 
statements and membership brochures and material from them. So 
would you respond completely?
    Mr. Ogden. Yes, Senator. I would be happy to do that.
    I will say I don't believe there are any such organizations 
that would say I am a member presently, but I will provide 
whatever information I can on that.
    Senator Sessions. I think you should, and we will perhaps 
follow up with a written question on that.
    Mr. Ogden. That is fine, Senator.
    Senator Sessions. You mentioned earlier about advising the 
Attorney General and not advising on criminal matters and that 
there was someone on the staff that did that. Who was that 
person?
    Mr. Ogden. She received advice from a number of people. On 
her personal staff, while I was the Chief of Staff, her 
counselor, Gary Grindler, was responsible for criminal matters. 
In addition to that, of course, she received primary support 
from the Deputy Attorney General and his staff on criminal 
matters.
    Senator Sessions. Mr. Ogden, I have no desire and interest 
in defending the tobacco industry. I have not taken 
contributions from them, and I do not think it is a healthy 
activity to smoke and I oppose it. I think it is detrimental to 
the health and well-being of America, but I am a person that 
for a number of years have had some concern about utilization 
of lawsuits. For public policy reasons, it ought to be 
established through the political forum where people are 
elected if they want to change health policy, for example.
    I would like to ask you a few questions about that. With 
regard to the development of the tobacco litigation strategy, 
have you been involved in that, and do you expect to be a key 
player in that process?
    Mr. Ogden. Yes, sir, I have, and I certainly will be.
    Senator Sessions. I noticed in a news briefing on July 29, 
the Attorney General's weekly news briefing, she was asked: 
There is some speculation that the selection of David Ogden to 
be made the head of, the acting head of Civil Division was 
based on his support for proceeding with tobacco lawsuit and 
that perhaps some of the other individuals under consideration 
were more skeptical of the Federal tobacco lawsuit. Can you 
comment on that?
    And her answer was: No; I think the White House would have 
to comment on the reasons for the selection of Mr. Ogden, but 
Mr. Ogden having served as my Chief of Staff, has been a fine 
lawyer, and I have seen him operate and he is qualified, et 
cetera.
    Were you selected by the White House, and was your position 
on tobacco litigation a factor in that selection?
    Mr. Ogden. I was--well, I certainly was nominated by the 
President, of course. The Attorney General recommended me for 
this position. I hope that the reason that she recommended me 
and the reason that the President nominated me was that they 
considered me qualified based on the many experiences that I 
have had and the talents that I have.
    Senator Sessions. Were there discussions within the 
Department about this litigation, and did you express your 
opinion on it to members of the White House before being 
nominated?
    Mr. Ogden. I didn't have--the answer to that is yes. There 
certainly were discussions within the Department. Of course, we 
were looking at the question. The Civil Division in particular 
was looking at the question, and as I said, part of my 
responsibilities in the oversight offices was on the civil side 
of the house, and there were extensive discussions about the 
potential for tobacco litigation, particularly in the wake of 
the $200-billion settlement that the States entered into with 
the tobacco companies.
    There were discussions for a protracted period of time with 
the White House concerning their interest in the possibility of 
tobacco litigation if it would be supported by the facts in the 
law.
    Senator Sessions. Well, it is quite well known that the 
contributions of plaintiff lawyers and tobacco lawyers have 
been huge to this administration, and that the Department of 
Justice had declined at least and the Attorney General had 
indicated her lack of belief in the legality of the sound legal 
basis for action against tobacco. Now we are beginning to see 
that change.
    Isn't it true that there are professional members of the 
Civil Division of the Department of Justice who have opposed 
this litigation?
    Mr. Ogden. No, sir. I'm not aware that that's the case. The 
Attorney General addressed herself in testimony to the question 
of whether the Justice Department could file a lawsuit based on 
Medicaid claims, which were the claims that the States were 
pursuing, and she said, and it is certainly the case, that 
there is no basis in law for the Federal Government to bring a 
lawsuit respecting Medicaid claims because the statute, the 
Medicaid statute specifically, identifies the States as their 
own agent and the agent for the Federal Government for that 
type of litigation.
    Senator Sessions. Under Medicare, what theory of law is it 
that the tobacco companies would be liable to the United 
States?
    Mr. Ogden. Well, the potential programs that would be--that 
could be looked at here include Medicare. They include the 
Veterans Administration. They include the Department of Defense 
health expenditures, and we are looking at all of the potential 
claim, the potential theories that the States pursued and that 
might be available to the Federal Government, and no final 
decision has been made at this time as to----
    Senator Sessions. Well, I think you need to be careful 
about it because this is very important. It is not a matter of 
polling data. I know you are familiar with the power of that, 
but under the Standard Oil case, it makes clear that the United 
States must have a legal basis for a cause of action in this 
kind of lawsuit. Would you not agree?
    Mr. Ogden. I would agree completely, sir.
    Senator Sessions. I think we ought not to decide this 
matter on politics. We ought not to decide it on polling data, 
and I would ask you, are you prepared to tell the President of 
the United States, if there is no legal basis for this suit, 
that it ought not to be pursued?
    Mr. Ogden. I am absolutely prepared to do that, Senator.
    Senator Sessions. Senator McConnell has asked that internal 
memorandum concerning this issue, some of which he believes are 
negative to the filing of the lawsuit, from a legal point of 
view, where there is a legal basis to file it, and I do not 
believe the Department of Justice has produced that. Will you 
produce that in response to a specific inquiry from me?
    Mr. Ogden. Senator, we will produce whatever we can produce 
consistent with the Department's practice. The difficulty, of 
course, is that legal memoranda, as you know, that is prepared 
in anticipation and preparation for litigation and in 
contemplation for litigation is not subject to discovery and in 
legal cases because the disclosure of it can be very damaging 
to the interest of the litigant. We would not want to disclose 
any memorandum that would reflect the internal deliberations of 
the Department on a case we haven't even decide----
    Senator Sessions. Well, the problem is--let me just tell 
you what the problem is. This is not a normal litigation. This 
is a matter of national public policy that many highly paid, 
enriched attorneys and people who have very strong views about 
tobacco are not satisfied with the way the public elected 
officials have conducted that policy, and they would like to do 
it through the legal system, it seems to me.
    I have seen that. I have wrestled with the legal questions, 
and I have asked at various times as Attorney General of 
Alabama what are the theories, legal justification for these 
causes of action. Fundamentally, I have some doubts about it. I 
think others do, and within the Department. We have been there 
a long time. We have no political axe to grind and have doubts. 
I hope that you will be objective.
    Mr. Chairman, I had a few more questions, but I would be 
glad to--my time is up now, and if I could have a few more 
later, I would appreciate it.
    The Chairman. I think what we are going to do, we have a 
vote on right now, and I think we should finish with these 
witnesses. We have got this other hearing that starts at 10 
o'clock. So we will keep the record open for written questions.
    Senator Sessions. Could I ask a few more, or do you want to 
ask some more?
    The Chairman. I would like to ask a couple, if you do not 
mind.
    Senator Sessions. You go ahead.
    The Chairman. I think they will be along the same lines as 
you have.
    Senator Sessions. All right.
    The Chairman. I was concerned about this tobacco litigation 
as well for both of you. Let me just turn to some of the issues 
arising out of the Department's expected suit against the 
tobacco companies.
    As you know, I do not have any love for the tobacco 
companies, but I do want to see the rule of law upheld. I have 
various questions and requests for documents, and I will submit 
those to save time here. Let me just ask a couple of short 
questions.
    As I understand it, you are taking the lead in supervising 
the projected suit against the tobacco companies. Am I wrong on 
that, or am I right?
    Mr. Ogden. No, Senator. That is correct.
    The Chairman. Indeed, you have requested that the Congress 
appropriate an additional $20 million to fund personnel and 
document production, and I am aware of your estimation of how 
the money will be spent.
    In order to ascertain the validity of the projected suit, 
could you please explain the causes of action and legal 
theories underlying the suit? It is my understanding that 
recently you have taken the position that revealing this 
information violates either the work product privilege or the 
attorney-client privilege. Now, that, to me, presents a 
problem. How can the Congress discern the legitimacy of the 
lawsuit without knowing more about the underlying or 
underpinning legal theories underpinning the lawsuit?
    It is my recollection that in the past, the Department has 
agreed to let a small number of staffers review litigation 
documents that were claimed to be privileged. Now, could you 
agree to that approach?
    Mr. Ogden. Mr. Chairman, I think that at the present time 
when we have not yet even decided what theories we are focussed 
upon and what theories we are prepared to pursue or indeed 
whether we would file a lawsuit in this situation, it would not 
be something that we would be prepared to pursue.
    I am very sympathetic, Mr. Chairman, with your concerns, 
particularly in conjunction with the budget request for the 
funds, for more information, and it is simply at this point, 
when we haven't focused or made a decision about----
    The Chairman. As soon as you do, will you work with the 
committee to explain the causes of action and the legal 
theories underlying or underpinning the----
    Mr. Ogden. Yes, Mr. Chairman.
    The Chairman. I do not see any reason why you would not, 
especially if you are asking for additional funds. We would 
certainly want to know that the rule of law is being abided by. 
If it is there, fine. If it is not there, that is something 
that we have got to abide by as well.
    Mr. Ogden. And I agree with you entirely in your comments 
about the rule of law and with those that Senator Sessions 
stated in his final statement in his questioning. We will work 
with you to provide as much information as we can once we have 
made some decisions.
    The Chairman. OK; now, let me ask you this. What role, if 
any, did you play in the approval by the Department of the plea 
agreements concerning Johnny Chung, Yah Lin ``Charlie'' Trie, 
and John Huang?
    Mr. Ogden. No role whatsoever, Mr. Chairman. I had left 
the----
    The Chairman. But you are aware of the Department's efforts 
in those cases?
    Mr. Ogden. I am aware, but only really from news accounts.
    The Chairman. OK.
    Mr. Ogden. I am not involved in that at all at this point.
    The Chairman. Well, don't those news accounts disturb you 
as much as they disturb me?
    Mr. Ogden. Senator, because I know sometimes there is a 
distinction between what's in the news and what is the reality, 
I withhold judgment. I really don't have any information with 
which to evaluate those situations.
    The Chairman. That is not my question. If those news 
accounts are true, wouldn't that be disturbing to you?
    Mr. Ogden. Certainly, they----
    The Chairman. Certainly with regard to special treatment 
that these people appear to be getting and the allegations that 
the Justice Department will not even listen to the stories they 
want to tell?
    Mr. Ogden. Mr. Chairman----
    The Chairman. I have never heard of that before, and if 
that is true, wouldn't that disturb you?
    Mr. Ogden. It certainly would be of concern to me. Yes, Mr. 
Chairman.
    The Chairman. It is of great concern to me.
    Now, an article published in The Washington Post, 2 days 
ago, asserts that the Department continues to consider its 
investigations into Representative Dan Burton and Haley Barbour 
to be ``active.'' Assuming that that article is accurate in 
this respect, how can you justify that position for these 
longstanding investigations, particularly when they are 
contrasted with the dispatch with which the investigations and 
prosecutions of Johnny Chung, Charlie Trie, and John Huang all 
seem to have been treated?
    Mr. Ogden. Mr. Chairman, I have had no involvement in any 
of these matters since February 1. So I am not in a position to 
comment.
    The Chairman. If you understand why I am driving at this, 
because it looks as though the Department is again playing 
politics, to hold a hammer of one Member of Congress and one a 
former national Republican chairman, where I do not see any 
reason at all to have the hammer, and yet are entering into 
these plea bargains and plea agreements with people who 
literally are admitting that they did wrong and who gave 
millions of dollars to the Democratic National Committee that 
had to be given back, clearly in violation of the campaign 
laws.
    Mr. Ogden. I do understand what you are saying, Mr. 
Chairman, and I will convey your concerns to the Attorney 
General.
    The Chairman. I hope you will, but you can see why I am 
upset. That is why I gave that rather lengthy statement at the 
beginning.
    I do not relish or enjoy jumping all over the Justice 
Department. I have always worked closely with you folks down 
there. I want to continue to do so. I want to be fair, but 
there are some things here that look just awful. We have got to 
clear them up.
    I think both of you could play a significant role in 
helping to clear them up, and I think if you do, you are going 
to have a lot of support up here on Capitol Hill because we 
have not had much in the way of cooperation down there.
    And this business of redacting all that they did out of the 
general statement in our private hearing in S-407, it is an 
insult to the committee and I think to the country to redact 
stuff that clearly is not subject to classification. In fact, I 
do not think there was hardly anything in that whole hearing 
that should have been subject to classification.
    We have got to rely on you folks to maybe set some 
standards of integrity that we are starting to think have 
eroded down there.
    Mr. Ogden. Mr. Chairman, I will convey your concerns to the 
Attorney General. That is another subject on which I have had 
no involvement, and certainly in the area of the Civil 
Division's responsibilities, I will do, if I am confirmed, 
everything I possibly can to promote them.
    The Chairman. All right. Are you aware of and did you have 
any involvement in the reported actions by the Department in 
holding the probe that a former Federal prosecutor in 
California had begun in 1996 into fundraising improprieties 
involving the Vice President? Did you have anything to do with 
that?
    Mr. Ogden. I am--there were issues--there was an 
Independent Counsel decision that was made pertaining to the 
Vice President while I was Chief of Staff, and my previous 
remarks about my involvement attending those meetings applied 
to that decision. I am not sure if that is the case that you 
refer to there.
    The Chairman. Well, I still would like to have your 
comments about what was done, why it was done. If you would 
like to submit those in writing, that would be fine with me, 
why the decision was made or the decisions were made.
    Mr. Ogden. I--again, if it was a decision that I had any 
involvement with, I'll do my best to provide that information.
    The Chairman. All right. We will expect that.
    Mr. Ogden. Yes, Mr. Chairman.
    The Chairman. Now, were you aware of and did you have any 
involvement in the reported actions by the Department in 
ordering the immediate return to Washington of an FBI agent and 
prosecutor sent to Little Rock, AR, to stop documents from 
being shredded by Mr. Trie's secretary?
    Mr. Ogden. No, Mr. Chairman. I don't believe I did.
    The Chairman. You don't know anything about that.
    Well, I had to ask these questions because they are 
questions that are bothering Members of the Committee and 
questions that are of great concern to me.
    As you can see, Mr. Raben, we are very concerned about 
cooperation from the Justice Department which we think has been 
sorely lacking with this committee, and you can see Chairman 
Hyde feels the same thing, that we are just getting stiffed. We 
personally want to tell you, I believe that Woodward's comments 
in Shadow are absolutely accurate, and I think it is abysmal to 
have that kind of lack of cooperation between this committee 
and/or the House Judiciary Committee and the Department of 
Justice. So you are going to have your hands full, and I just 
want you to be aware of that.
    I am going to recess until Senator Sessions gets back. I 
will allow him to ask some questions, but we are going to start 
the next hearing as soon as I get back. So I will just recess, 
and then he can restart it when he gets back. So, with that, we 
will just recess for a few minutes.
    [Recess taken from 10 a.m. to 10:08 a.m.]
    Senator Sessions. Maybe we can get started. I know Senator 
Hatch will be back very shortly, and I just had a few questions 
that I would like to ask.
    Mr. Raben, you and I have discussed your article you 
referred to as satire. I was troubled by it. You described the 
congressional initiative that allowed for drug testing of 
Members and staff as silly and ``another salvo in the wrong-
headed war that passes for this Nation's drug policy.''
    What I wanted to say to you--and you also mocked, I think 
smugly, that ``those who lose sleep knowing that someone else 
is taking a hit from a joint on a Saturday night are on a roll 
with this drug-testing program.'' I think it may be fair to say 
that I did lose sleep over young people using drugs on Saturday 
night and any other night, and when I became a part of this 
Department of Justice as U.S. attorney in 1981, we did commence 
a war on drugs, and some said it failed, but it did not fail. 
It was a success.
    A University of Michigan study in 1979 showed that 50 
percent of young people, high school seniors, used drugs within 
the last 30 days, I believe the date was, and that number 
dropped by 50 percent, dropped every single year that 
Presidents Reagan and Bush conducted a war on drugs.
    I believe one of the greatest failures of this 
administration has been too little comment on, when they 
allowed this to get away from them, this progress, and it was 
because we adopted, I think, this kind of attitude, this 
``Well, I wish I had inhaled'' on MTV and the drug czar's 
office is cut and we don't have a clear message again and drug 
use started going up dramatically. It is up 50 percent or more 
since the President has taken office among those same high 
school seniors.
    So I ask you, how do you feel about that? You are going to 
be the spokesman, the representative of the Department of 
Justice. It is against the law to utilize drugs. How can you be 
effective if this is your view about this matter?
    Mr. Raben. I deeply appreciate you raising this and asking 
me about this. I know it is a very important matter.
    When we visited in your office recently, you described the 
article as arrogant and flip, and today, smug. I say candidly 
to you, I agree with you that it was all of that, and it was a 
mistake to try to have a serious conversation in any forum 
through that type of satire.
    On policy, I don't know exactly how you feel on every 
aspect of the drug war, but I generally agree with your 
characterization that we have an enormous problem in this 
country and that it should be attacked on a number of fronts, 
including strong enforcement, testing, treatment.
    Senator Sessions. I was with the Attorney General in 
Houston on Monday for a weed-and-seed conference, and I met a 
young police officer who drove me to the airport. We discussed 
this very issue, and he is in the classrooms a lot talking with 
children, young people, about drugs. He said the critical thing 
is an unequivocal clear message that drug use is bad. If the 
adults of this country cannot do that, how can we expect 
children not to be confused when they are tempted? I think that 
was an unclear and ambivalent message at best. In fact, I think 
it was demeaning to those, like that police officer, who are 
out every day trying to do that.
    I want to ask you one more thing. In June 1997 in ``Roll 
Call,'' you indicated you thought this was a satire in your 
article, but you did say, You would absolutely consider taking 
legal action if you were subjected to testing and therefore had 
standing to bring suit. If I don't have standing, I will help 
someone who does.
    Does that indicate that you have a constitutional objection 
to drug testing in the workplace?
    Mr. Raben. I must--no. I took a drug test my first day at 
the Department of Justice and predictably passed the drug test. 
So I have no problem in appropriate circumstances both for 
myself and other people being subjected to drug tests. It is 
not for me, nor or at any point I presume, to say exactly what 
the constitutional requirements are on the fourth amendment, 
and I think I strongly support the fourth amendment, but I 
personally subjected myself to it voluntarily, complied with 
it, and would again.
    Senator Sessions. Well, you indicated in this article that 
you would take legal action if you were subjected to testing, 
and you would represent somebody else apparently pro bono 
because you are so hostile to it.
    Mr. Raben. I did neither of those--I wrote that as part of 
a satirical piece to point out that there are----
    Senator Sessions. Well, I am quoting now from an interview 
of you in ``Roll Call'' in June 9, 1997. It said Robert Raben, 
minority counsel to the House Judiciary Committee, said he 
``would absolutely consider taking legal action'' if he were 
subjected to testing and therefore had standing to bring a 
suit. ``If I don't have standing, I will help someone who 
does.''
    Mr. Raben. Thank you. I appreciate that. I was confused. I 
also referenced standing I believe in the satirical piece. You 
are right, I did say that, but I did not take legal action or 
any steps to pursue it.
    Senator Sessions. I spent a lot of time, 12 years, actively 
involved in coalitions against drugs and Partnership for Youth 
and focussed on drugs. I would just say to you, drug testing in 
the workplace is a very healthy act. It sends a message that 
you care about employees, that this company, this business is 
not going to allow its efficiency and safety to be diminished, 
and that I think it helps create a climate of rejection of 
drugs in America. Anyway, that can be studied, and I think it 
can be proven. Businesses have proven that to be worthwhile.
    Mr. Ogden, I was concerned about your comments on judicial 
activism or the meaning of our Constitution and how it ought to 
be interpreted in an article you wrote back in July 1986 
concerning the Bowers case in Georgia, and actually, we have 
had a lot of judges come forward for nominations and I usually 
ask them about how they view and how their degree of commitment 
to the Constitution as written. You know the Preamble says, We 
the people of the United States, in order to form a more 
perfect union, establish justice, domestic tranquility and so 
forth, and then it says do, ordain, and establish this 
Constitution. We have adopted a Constitution, and I think it is 
pretty plain in most instances, but, anyway, this is what you 
said.

          Constitutional interpretation cannot be limited to 
        ascertain the way a particular law would have been 
        viewed by the Framers. While constitutional principles 
        do not change, the society and individuals in whom they 
        are applied do, and our knowledge about that society 
        and those individuals improves with time.

Then you noted the changing social context is as much a part of 
the constitutional issues to be decided as the statute itself 
because to ignore it is to fail in the court's basic task, 
adapting the great outlines of the Constitution to the 
particular problems of each generation, and then you went on to 
make some other comments.

    The Chairman. Senator, I think we have got to wrap this up.
    Senator Sessions. All right.
    The Chairman. What I would like to do is keep the record 
open until Friday for questions to be submitted by any Member 
of the committee, including yourself and myself, and we would 
appreciate the answers back as quickly as you can.
    Senator Sessions. I will have some more questions, and I 
would also, Mr. Chairman, just like to express my concern I was 
going to get into next about the bringing-in of plaintiff 
tobacco lawyers within the Department of Justice to apparently 
provide the advice to justify this lawsuit. I think that lacks 
an objectivity. It demeans the professional staff and raises 
questions about the true independence of the Department of 
Justice and their legal integrity as they make those decisions, 
but I can ask that with written questions.
    The Chairman. I do not nearly have that much of a problem 
with that because the Department of Justice has used experts in 
various fields to help them with various litigation, but I am 
concerned whether there is a correct legal theory followed. I 
am concerned whether this is just to punish an industry and to 
use the awesome power of the Federal Government against an 
industry with no good justification or reason or predicate. So 
we all find fault with the tobacco industry, but they still are 
a legitimate industry in this country and they ought to be 
treated as such. So I am concerned about that.
    Mr. Ogden. Mr. Chairman, would it be possible for me to 
comment on those? I know you are hurrying for the next 
hearing----
    The Chairman. I am.
    Mr. Ogden [continuing]. But Senator Sessions had put a 
question----
    The Chairman. Sure.
    Mr. Ogden [continuing]. And if it would be possible for me 
to respond to it?
    The Chairman. Let me first just say the record will remain 
open until the close of business on Friday to submit additional 
questions, and that way Senators can ask whatever they care.
    I will put Senator Robb's statement in the record. He went 
to the bother of creating statement here, and we would like to 
have it in the record for you.
    [The prepared statement of Senator Robb follows:]

  Prepared Statement of Hon. Charles S. Robb, a U.S. Senator From the 
                            State of Florida

    Mr. Chairman, I regret that I cannot be present to introduce David 
W. Ogden, a fellow Virginian, to the Committee on the Judiciary. Mr. 
Ogden is the President's nominee for the position of Assistant Attorney 
General for the Civil Division at the U.S. Department of Justice.
    Mr. Ogden has been a resident of Virginia for sixteen years, and a 
member of the Virginia State Bar for thirteen years. He has a solid 
academic record and varied legal experience, including judicial 
clerkships with the U.S. District Court for the Southern District of 
New York and the Supreme Court of the United States, more than a decade 
in private practice as a litigator, and five years of public service 
with the U.S. Departments of Defense and Justice. His qualifications 
are impressive.
    Specifically, I would call to the Committee's attention the support 
Mr. Ogden has received from the Judge Advocate General of the Army who 
served with Mr. Ogden at the Department of Defense. According to Major 
General (retired) Michael J. Nardotti, Jr., Mr. Ogden

          gained the trust and confidence of leaders and members of all 
        the Services, and those responsible for critical litigation 
        routinely looked to him for guidance and assistance in their 
        most demanding cases. Without question, during his tenure as 
        Deputy General Counsel and Legal Counsel for DoD, Mr. Ogden was 
        essential to the success the Department enjoyed in this crucial 
        mission. * * * He clearly is the right person to assume the 
        awesome responsibilities of the Assistant Attorney General, 
        Civil Division, Department of Justice.

    David W. Ogden is a talented attorney and dedicated public servant. 
I'm pleased to offer my support and urge the Committee to act on his 
nomination with dispatch.

    Mr. Ogden. I appreciate that very much, Mr. Chairman, and 
thank you for giving me just a minute and I will be brief.
    As far as the tobacco litigation, I agree completely that 
any lawsuit we bring needs to be supported as a matter of law 
in that it needs to be decided on the law and only on the law 
and not on politics. I do pledge that if I am confirmed, that 
is the way I will approach the issue.
    With respect to my article, Senator Sessions, back in 1986, 
the most important thing I think that I can say about that 
article is that as the Assistant Attorney General for the Civil 
Division, if I am confirmed, my job will be to defend the laws 
of the United States, the statutes that are passed by the 
Congress, by advancing any reasonable argument that can be 
advanced in their defense, and I will do that without regard to 
my own personal views of the Constitution as they were in 1986 
or as they may be today.
    I certainly strongly agree with one thing that was in the 
article that you have read and that I think is consistent with 
your own views, I hope, that the principles that are 
established in the Constitution do not change and that those 
are the principles that were established by the Framers. I do 
believe that is very important, and I hope we can agree on that 
at least.
    Senator Sessions. I think so.
    Mr. Chairman, both of these individuals appear to be good 
people. They have got good friends and people I know and 
respect that have supported them, and I thank you for the 
hearing.
    The Chairman. I feel exactly the same way, and I do believe 
this Justice Department needs good people at this time. There 
are a lot of good people working at Justice, but you have got 
to admit, I raised a lot of issues this morning that are 
matters that would concern anybody, regardless of political 
background, and I think I have a reputation for fairness at the 
Department. I intend to continue to have a reputation for 
fairness.
    I respect both of you, and I personally believe that you 
will add to a better atmosphere down there and hopefully help 
to clarify some of these things and stop some of the things 
that I think are wrong, but there is a lot of demoralization 
down there because of what they view, people that I know view, 
as partisan politics, and I suspect that--I hate to say it, but 
both sides sometimes get too partisan. We have got to do 
something about that, and I am counting on you two gentlemen, 
once you get there, being able to add some dimensions that 
there will get this out of politics and let's do what is best 
for the American people.
    With that, we will try and move your nominations as quickly 
as we can. We clearly will not be able to before the recess, 
but we will try to do so as soon as the recess is over. I just 
want both of you to know that we appreciate your appearance 
before the committee, and I particularly appreciate these young 
people you have brought with you. They have been really, really 
good. I am not kidding. So we are really respectful of you 
young people. So keep being that way, and you are going to grow 
up as good as your parents, OK?
    Thanks so much.
    [The questionnaires are retained in committee files.]
    The Chairman. We will recess until further notice. We have 
to clear the room for the next hearing.
    Mr. Raben. Thank you, sir.
    Mr. Ogden. Thank you very much.
    [Whereupon, at 10:23 a.m., the committee was adjourned.]
  

                                
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