[Senate Hearing 108-472]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 108-472




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION


                            OCTOBER 29, 2003


                          Serial No. J-108-49


         Printed for the use of the Committee on the Judiciary

                            WASHINGTON : 2003
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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                            C O N T E N T S




Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................    99
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   101
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, prepared statement and attachments.......................   103


Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York presenting James B. Comey, Jr., Nominee to be Deputy 
  Attorney General, Department of Justice........................     3
Warner, Hon. John, a U.S. Senator from the State of Virginia 
  presenting James B. Comey, Jr., Nominee to be Deputy Attorney 
  General, Department of Justice.................................    36

                        STATEMENT OF THE NOMINEE

Comey, James B., Jr., Nominee to be Deputy Attorney General, 
  Department of Justice..........................................     5
    Questionnaire................................................     7

                         QUESTIONS AND ANSWERS

Responses of James B. Comey, Jr. to questions submitted by 
  Senator Durbin.................................................    57
Responses of James B. Comey, Jr. to questions submitted by 
  Feingold.......................................................    63
Responses of James B. Comey, Jr. to questions submitted by 
  Grassley.......................................................    67
Responses of James B. Comey, Jr. to questions submitted by 
  Hatch..........................................................    70
Responses of James B. Comey, Jr. to questions submitted by 
  Kennedy........................................................    71
Responses of James B. Comey, Jr. to questions submitted by 
  Leahy..........................................................    81
Responses of James B. Comey, Jr. to questions submitted by 
  Schumer........................................................    95

                       SUBMISSION FOR THE RECORD

Warner, Hon. John, a U.S. Senator from the State of Virginia, 
  prepared statement.............................................   107



                      WEDNESDAY, OCTOBER 29, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:06 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kennedy, Feingold, and Schumer.

                       THE STATE OF UTAH

    Chairman Hatch. Good afternoon. Since Senator Schumer is 
here, I am going to proceed.
    I want to welcome everyone to today's hearing to consider 
James Comey's nomination to serve as Deputy Attorney General of 
the United States. I want to congratulate you, Mr. Comey, for 
being selected by President Bush for this important position in 
the Justice Department. In my view, you are uniquely qualified 
to serve as Deputy Attorney General. You bring a wealth of 
experience and perspective as a line prosecutor, as manager of 
the U.S. Attorney's Office of the Eastern District of Virginia, 
and most recently as U.S. Attorney for the Southern District of 
New York.
    Most importantly, your record demonstrates that you are a 
leader who can inspire others to accomplish great things and 
one who can oversee and manage an organization such as the 
Justice Department.
    With the recent departure of Larry Thompson, who was a fine 
Deputy Attorney General, I am sure everyone shares my view that 
Mr. Comey has very big shoes to fill. However, I am confident 
that in your case, Mr. Comey, you are the right person for the 
job. Your impressive background and past Government service 
make me confident that you will be a great asset to the 
Department of Justice, this Committee, and the American people.
    The importance of the Deputy Attorney General within the 
Justice Department cannot be overstated. Over the years, the 
Deputy Attorney General's office has played a greater role in 
overseeing the Department's operations, implementing new policy 
initiatives, and ensuring the effective enforcement of our 
criminal and civil laws. It is important for the Committee to 
review Mr. Comey's nomination and act quickly to ensure that 
the Justice Department's important work on terrorism, cyber 
crime, and other criminal and civil issues continues with as 
little disruption as possible.
    The stakes in this area are simply too high to leave this 
essential position unfilled for any length of time. I want to 
thank Senator Leahy for his cooperation in quickly scheduling 
this hearing.
    Of course, I am not suggesting that we shirk our duties to 
review carefully these nominations, but I am asking members to 
be mindful of the circumstances in which we are acting and to 
work together to move this important nomination as quickly as 
    A review of Mr. Comey's record establishes one simple fact: 
He is well qualified to serve as Deputy Attorney General. Since 
January 2002, Mr. Comey has served as U.S. Attorney in the 
Southern District of New York, an office that many consider to 
be the premier U.S. Attorney's Office in the country. In the 
Southern District of New York, Mr. Comey has earned the respect 
of judges, defense counsel, and prosecutors for his 
professionalism, for his fairness, for his judgment.
    While serving as U.S. Attorney, Mr. Comey was responsible 
for leading his office in some of the more significant 
terrorism and white-collar crime investigations and 
    Prior to assuming the position as the U.S. Attorney, Mr. 
Comey served from 1996 to 2001 as Managing Assistant U.S. 
Attorney in charge of the Richmond Division of the U.S. 
Attorney's Office for the Eastern District of Virginia. From 
1993 to 1996, Mr. Comey was an associate and later a partner at 
the law firm of McGuireWoods in Richmond, Virginia. Early in 
his career from 1987 to 1993, Mr. Comey served as an Assistant 
U.S. Attorney in the Southern District of New York.
    As a Federal prosecutor, Mr. Comey investigated and 
prosecuted a wide variety of cases, including firearms, 
narcotics, major frauds, violent crime, public corruption, 
terrorism, and organized crime. In the Eastern District of 
Virginia, he handled the Khobar Towers terrorist bombing case 
arising out of the June 1996 attack on a U.S. military facility 
in Saudi Arabia in which 19 of our airmen were killed.
    Mr. Comey was educated at William and Mary. He had a B.S. 
with honors in 1982, chemistry and religion majors, and the 
University of Chicago Law School, where he got his juris 
doctorate in 1985. After law school, he clerked for then-U.S. 
District Judge John Walker in Manhattan.
    Let me take one moment to perhaps highlight Mr. Comey's 
most important accomplishment. While serving his country in a 
variety of prosecutorial positions, he has demonstrated that he 
is a dedicated family man. He and his lovely wife, Patrice, are 
raising five very wonderful children ranging in age from 15 to 
as young as 3 years old. I want to congratulate both of you for 
the excellent family that you have and for your family 
commitment, and I am happy to welcome your family here before 
this Committee.
    Mr. Comey is a dedicated public servant and a talented, 
well-respected prosecutor. He is uniquely qualified to lead as 
the Deputy Attorney General of the Justice Department, and I am 
hopeful that this Committee will act favorably and quickly on 
his nomination as soon as we can.
    With that, we will turn to Senator Schumer, and you want to 
speak from the dais rather than the table.

                   FROM THE STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman, and I want to 
thank you for holding this hearing today. I also want to thank 
the nominee, James Comey, for the opportunity to introduce him.
    Mr. Chairman, it is a sign of the kind of person that Jim 
Comey is that, after we met yesterday, he still wanted me to 
introduce him today.
    Chairman Hatch. You don't know what a big sign that is.
    Senator Schumer. Now, the reason is simple, Mr. Chairman. I 
told Jim Comey that I praise his experience, reputation, and 
character, which I consider the highest. But I was going to 
insist on answers to some tough questions about the CIA leak 
investigation before I decide how to vote. And, nevertheless, 
Mr. Comey wanted me to introduce him, and I am very proud to do 
    Before I get to his personal qualifications, I should note 
that Jim is a Yonkers native, now lives in Somers, New York, up 
in the other end of the great County of Westchester. And if he 
is confirmed, my State will lose seven constituents: Jim, his 
wife, Patrice, and their five children. And I assure you, Mr. 
Chairman, despite the fact that I would hate as a New Yorker to 
lose such a handsome family, it will not influence my decision.
    I have gotten to know Jim personally. I am convinced he is 
a man of honor and integrity. He puts family and country above 
all other interests, and every day he works hard to ensure that 
he serves both to the best of his ability.
    Everyone you talk to who knows him says great things about 
him, and in a world where it is easy to make enemies, Jim Comey 
has managed to do nothing but win admirers. When it comes to 
the professional, it would be hard to find a more impressive 
resume and reputation.
    Jim is a prosecutor's prosecutor. When Mary Jo White left 
her post in the U.S. Attorney's Office in the Southern District 
of New York, she left some pretty big shoes to fill. The White 
House proposed Jim Comey, and I don't know that they could have 
come up with a better man for the job. With his terrorism 
prosecution experience, including handling the Khobar Towers 
case, his management experience running the U.S. Attorney's 
Office in Richmond and his reputation as a guy who doesn't pull 
punches, it was an easy choice to support him for the Southern 
District post. And since he became the Southern District's top 
prosecutor, Jim has only burnished his reputation. He has been 
an excellent U.S. Attorney.
    So, in my judgment, at least, Mr. Chairman, there is no 
question he is qualified; there is no question he is a fine 
man; and under normal circumstances, there would be no question 
of my unqualified support for him. But, unfortunately, these 
are not normal circumstances. Over the past several weeks, the 
Department of Justice has been handling--or should I say 
mishandling the investigation into who leaked the identity of a 
covert CIA agent. I take the Justice Department's criminal 
investigation into the leak of a covert CIA operative's 
identity very seriously because it is an act so vile and so 
heinous that it shocks the conscience. It demands a full, fair, 
and fearless investigation that is above and apart from 
    But so far, the way this probe has been conducted falls 
quite short of that bar. There are serious concerns that the 
White House is being treated with kid gloves. From unexplained 
delays to disturbing apparent conflicts of interest, we have 
many reasons to be worried that this investigation is being 
bungled so badly that the culprits may never be caught.
    This leak, in my opinion, is a dastardly crime. It goes to 
the heart of our ability to deal with terrorism. We have to 
make sure we find the leakers, punish them as severely as 
possible, and send a clear message that playing politics with 
national security will not be tolerated. And as you know, Mr. 
Chairman, I called for an investigation into this leak the day 
it was announced in the newspapers. I had no knowledge of who 
the trail might lead to. I still don't. So I don't care who 
they come up with, as long as they come up with the right 
person or persons and make sure they are punished to the full 
extent of the law.
    Yesterday, Mr. Comey came by my office, and we spent about 
45 minutes discussing these issues. I know that he agrees that 
this is an incredibly serious matter, and it should be 
investigated in accord with the highest principles of 
prosecution. If he is confirmed, Mr. Comey will oversee the 
Criminal Division and, as a result, oversee this investigation.
    The question we all want to know, Mr. Chairman, is: If he 
is confirmed, will he straighten a ship out that appears to be 
sailing way off course?
    I gave Mr. Comey a list of questions that I intend to ask 
him today. Mr. Chairman, I didn't want to catch him by surprise 
or to say that he needed more time to think about how to 
answer. This investigation is just too important. So today I 
will ask Mr. Comey what standards he will use in deciding 
whether to recommend that Attorney General Ashcroft recuse 
himself. I will ask what principles he will use in deciding 
whether to recommend the appointment of a special counsel. To 
me, at least, this investigation has many apparent conflicts, 
as this chart shows. Mr. Comey has an obligation to explain how 
he will address these conflicts, some real, some apparent.
    I will also ask Mr. Comey what he will do if he believes 
the investigation is being compromised, and if he cannot use 
his authority to bring the investigation into line.
    These are important questions, and we have a duty to the 
American people to get satisfactory answers before we vote on 
this nomination. There is no question, Mr. Chairman, Jim Comey 
is a good man. He has the right credentials for the job. But 
being involved in this investigation is an incredibly delicate 
and difficult undertaking.
    Jim is well-known for two qualities: loyalty and integrity. 
These two qualities may come into conflict with one another as 
the probe progresses.
    This Committee and the public need to know what Mr. Comey 
in his new position will do to ensure that the Justice 
Department will conduct this investigation in the most 
thorough, fearless, and comprehensive way possible, no matter 
where it leads. I hope that Mr. Comey will give answers today 
that will satisfy the questions the Committee and public have 
about an investigation that has thus far been criticized by 
    I look forward to hearing his answers to our questions.
    Chairman Hatch. Well, thank you, Senator.
    I think Senator Kennedy is going to preside for the 
Democrats, and when he gets here, we will interrupt whatever we 
are doing and allow him to make his opening remarks.
    Mr. Comey, if you would, I would like you to please stand 
to be sworn. Do you swear that the testimony you are about to 
give shall be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Mr. Comey. I do.
    Chairman Hatch. Thank you, sir. We would like you to 
introduce your family and any friends you have here with you 
and, of course, make any statement you would care to make at 
this time.


    Mr. Comey. Thank you, Mr. Chairman.
    Mr. Chairman, Senator Schumer, members of this Committee, I 
am honored to be before you, and I have not changed my view, 
Senator Schumer, that I very much appreciate your introducing 
me, and I look forward to answering your questions.
    I also very much appreciate the Committee and Mr. Chairman 
and Senator Leahy scheduling this hearing so shortly after my 
nomination. I have devoted nearly all of my working life to the 
Department of Justice, and I am honored that the President and 
the Attorney General have asked me to serve in yet another role 
with the amazing men and women of the Department.
    I meet with each Assistant U.S. Attorney in the Southern 
District of New York on their first morning before I administer 
the oath, and I give them what they now teasingly call ``the 
speech.'' And I tell them what my expectations are for their 
job, and the most important thing I tell them is that they are 
about to begin the journey of a lifetime because they are about 
to take a job where their only obligation is to do the right 
thing, an opportunity few people ever have.
    And I tell them that, ``You are about to get a gift that 
you didn't earn, and that was earned for you by things done and 
sacrifices made by people long since gone, and that is this: 
When you stand up as an Assistant U.S. Attorney and say, `I 
represent the United States of America,' people believe the 
next thing you say. You didn't earn that. That's a gift,'' is 
what I tell them.
    And I tell them that, ``You've gotten from those people 
long since gone a reservoir of trust and credibility, and your 
absolute obligation--and I will insist upon it as your U.S. 
Attorney--is that you take that reservoir, you guard it, you 
protect it, and you turn it over to the next group that follows 
you as full as you got it or fuller.''
    If I am fortunate enough to be confirmed as Deputy Attorney 
General, I will receive just such a gift, an office once 
occupied by people like Byron White or Benjamin Civiletti or 
Bill Barr or my friend Larry Thompson most recently. And I'll 
have the opportunity to help supervise an organization made up 
of people who have done good in this country for generations. 
In small towns and big cities, there are folks who sacrifice, 
including some who risk their lives every day that I've worked 
with very closely, and they do it because they love getting 
paid to do the right thing for a living.
    I promise you that if I'm confirmed as Deputy Attorney 
General, I will take my own advice. I will safeguard the gift 
that I didn't earn, the reservoir of credibility and trust that 
is the Department of Justice. And I will protect it. I will 
make sure it's as full as the moment I got it, if not fuller, 
when I hand it over to whoever is lucky enough to follow me.
    Let me just say a brief word about the six people sitting 
behind me. Sitting to my right is my best friend since I was 19 
years old and the only love of my life. She has made sacrifices 
for this country and for me that I cannot put into words 
without getting choked up, so I won't, except to know I can 
never repay that.
    Also behind me are my five troops: Maurene, Kate, Brien, 
Claire, and Abby, the full gamut, 15, 13, 9, 6--almost 7, 
Claire--and 3. They are the joy of our lives. They make my life 
fun and full and a little nuts, but by being their wonderful 
selves, they remind me every day of what really, really matters 
in life. And I'm very grateful for them being here today, and I 
look forward to answering your questions.
    [The biographical information of Mr. Comey follows:] 

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    Chairman Hatch. Well, thank you so much. I think I differ 
with you in one of your statements, and that is, I think you 
have earned the right to be here. I don't think it is just a 
free gift. I think you have earned it. I know quite a bit about 
you, and I have to say I am very impressed that you have been 
asked to do this job. And I know you will do an excellent job, 
and that is all we can ask.
    Let me just ask a few questions of you before I turn to 
either Senator Kennedy or Senator Schumer.
    From my vantage point, it seems that over the last few 
administrations each Deputy Attorney General has left his own 
mark on the Department's mission. Now, what do you see as your 
major priorities as you pursue this job in the current Justice 
    Mr. Comey. Well, Mr. Chairman, I hope to, in filling the 
big shoes of Larry Thompson, continue two of the things that 
consumed most of his days, and that is, our number one 
priority, counterterrorism. It will remain that. It will remain 
what I do every day. And his leadership of the Corporate Fraud 
Task Force. I've been lucky enough to be involved in a lot of 
significant white-collar cases. I think that is a mission of 
the Department of Justice and the regulators and everybody in 
law enforcement that simply cannot be neglected. We can deter 
white-collar crime, and I think we're doing a great job out 
there in the field, and I would look to continue that.
    There's a lot of other things I'm interested in because 
I've prosecuted a lot of different cases. I care passionately, 
as I know you and Senator Schumer do, about child pornography. 
When I started as a prosecutor in 1987, like smallpox, child 
pornography had almost been wiped out in this country. And with 
the Internet, we've seen an explosion of child pornography, and 
even worse, the exploitation that produces it. So that is 
something that I am happy to devote my energy to and something 
that I will pursue very aggressively.
    Chairman Hatch. Well, thank you.
    Given your experience as a line prosecutor and manager of a 
staff of prosecutors in the U.S. Attorney's Office for the 
Southern District of New York, can you describe how those 
experiences have helped to prepare you for this very important 
position in the Justice Department?
    Mr. Comey. To the extent I'm prepared, I think it comes in 
two different forms. I've been lucky enough to actually do the 
cases and work with the men and women, the cops, the State 
troopers, the special agents, to make criminal cases of all 
sorts. So I know what it's like where the rubber meets the road 
in the U.S. Attorney's Offices, and I think that helps me and 
gives perspective that maybe folks who have been at 
headquarters their whole life don't have.
    I also think managing an office of over 500 people in the 
Southern District of New York has given me a sense of just what 
my role is as a manager. And it is not, in my view, for me to 
micromanage the work of my people, but for me to manage my 
people and help them work their cases. That's something I've 
learned as U.S. Attorney. In Richmond, I could be much more 
hands-on because I had a smaller place, but--so I think those 
two elements to my experience will help me.
    Chairman Hatch. Let me ask you a question I asked your 
colleagues last week, Assistant Attorney General Chris Wray and 
U.S. Attorneys Patrick Fitzgerald and Paul McNulty. As you 
know, the Committee is holding a series of bipartisan hearings 
to assess the sufficiency of our laws to prevent and respond to 
acts of terrorism. Now, my question is this: Given your vast 
experience in this area, do you believe the country is in a 
better position to prevent terrorist attacks against America 
today than we were on September 11, 2001?
    Mr. Comey. I do, Mr. Chairman. I think we are--
    Chairman Hatch. Why do you think that?
    Mr. Comey. We are very much safer. We are still at great 
peril from terrorists, and they lie awake at night trying to 
find ways to hurt our people. But I think for a variety of 
reasons and the one that leaps out at me is the portion of the 
PATRIOT Act that lowered the so-called wall between 
intelligence and criminal responses to terrorism.
    You mentioned Pat Fitzgerald, one of my closest friends, 
the U.S. Attorney in Chicago, and the godfather of Brien Comey. 
And Pat Fitzgerald describes it in the way only he can, sort of 
down-to-earth ways, how important it was to lower that wall. 
When he ran the investigation of Al-Qaeda and Osama bin Laden 
starting in 1996, when no one had heard of bin Laden in the 
world at large, as he says, ``I could talk to cops. I could 
talk to civilian witnesses. I could talk to foreign police 
officers. I could talk to foreign spies. I could talk to the 
CIA. I could talk to Al-Qaeda members who had come over to our 
side and were cooperating. There was only one kind of person I 
couldn't talk to, and that was the FBI agent upstairs who was 
conducting the intelligence investigation on those same 
    And as Pat Fitzgerald says, ``A world where I can talk to 
Al-Qaeda but not to the FBI is a world where we are not safe.'' 
And so I think that change, among all the changes in the 
PATRIOT Act, was the most profound and did the most to make the 
American people safer.
    Chairman Hatch. Thank you. But I think we gave you a lot of 
other tools in the PATRIOT Act as well.
    Mr. Comey. Yes, sir, you certainly did.
    Chairman Hatch. And they are working.
    Mr. Comey. They definitely are, sir. As I think came out at 
your hearing last week, there's a great deal of both 
apprehension and misunderstanding with respect to the PATRIOT 
Act. The tools of the PATRIOT Act have been very, very 
important to the FBI agents and the prosecutors in the field 
who are working in ways that we may never hear about in 
investigations to make people safer. So we are very grateful to 
Congress for those tools.
    Chairman Hatch. Thank you.
    Now, you also have significant experience in violent crime 
prosecutions. Some have suggested that the war on terrorism is 
being conducted at the expense of traditional prosecutions of 
violent criminals. From your vantage point, do you have a view 
on that particular suggestion?
    Mr. Comey. I have not seen it, Mr. Chairman, certainly in 
New York. It's obviously a time of resource-juggling because 
the FBI, for reasons that every American would understand, has 
moved resources to counterterrorism. But what I've seen 
happening is the good men and women of the State Police in New 
York, the men and women of the New York City Police Department, 
for example, stepping up and contributing more bodies, as we 
say in law enforcement, to task forces, so the FBI in 
particular is able to leverage its resources.
    My indictment numbers in the Southern District of New York 
have gone up in the 2 years since September the 11th. My people 
are working as hard as they ever did, but I think what's 
happened is we've come together as law enforcement not just to 
do our primary mission, which is to fight terrorists, but we've 
come together to make sure that folks who are the victims of 
violent crime are not left behind and those cases are made.
    Chairman Hatch. Well, thank you. I am going to reserve the 
balance of my time and turn to Senator Schumer for questions.
    Senator Schumer. Thank you, Mr. Chairman.
    And, again, just let me reiterate, I think the nub of the 
difficulty we face here is that you are well-known for 
exhibiting two admirable qualities: loyalty and integrity. And 
in tough and delicate situations, they come into conflict, and 
that is why I think these questions are so important in what I 
consider to be a very important investigation.
    So my first question is this: Have you recused yourself or 
your office from an investigation during your career as a 
prosecutor? If so, what standard have you used in making that 
    Mr. Comey. I have, Senator. In one particular case that 
comes to mind, my office in the Southern District of New York--
in a matter that I believe is still pending in another office 
because we recused ourselves, so I'll be a little vague about 
the details--found ourselves involved in an investigation of a 
firm in the financial services industry, and we learned as the 
investigation went on that one of the principals of the firm 
was the spouse of one of my prosecutors one of my supervisors. 
And so we engaged in more investigation so we could understand 
a number of things that were important to me: How big is the 
firm at issue? What is their status? Are they, for example, a 
witness, subject, or target? And how close is the connection 
between this individual and the firm and the conduct at issue?
    And so at the end of the day, we concluded that there were 
only a handful of people that controlled this particular firm 
and that they were, in fact, the subject of the investigation. 
And given the relationship between one of those handful of 
people who controlled it and one of my supervisors, I thought 
it was appropriate to recuse not just that supervisor, which I 
could have done, I suppose, pushed that supervisor to the side, 
but the entire office simply because the--and as I know you 
know, Senator, the issue with prosecutors, we have great people 
out there making these cases. And so the issue is not actual 
partiality. The issue is appearances. And I was concerned in 
that case that given the substantial connection between my 
office and this firm and the substantial role played by the 
spouse, that did raise an issue with respect to partiality, 
frankly, because we might find ourselves in a position of 
having to make a charging decision about the spouse of one of 
my key people and maybe putting the guy in jail and affecting 
my employee financially.
    So for those reasons, I recused the entire office after 
getting advice from a variety of my folks, and then it was 
moved by the Department to another office.
    Senator Schumer. Was that the only time there was recusal 
for yourself or the office, the people you had jurisdiction 
    Mr. Comey. There was one other time that I thought of last 
night where our office was asked to investigate a law 
enforcement agency in the theft of money, an agency that we 
worked very, very closely with. And that's also pending so I 
can't specify more. But given how closely we work day to day 
with the folks whose office was the subject--was the place 
where the money had disappeared, we decided that for 
relationship issues we would simply ask another office to 
handle it.
    That's a little different because that wasn't an appearance 
issue. It was more we have got to work with these guys every 
day; we don't want to be locking one of them up.
    Senator Schumer. Can you describe--it is hard to do, but, 
in general terms, when you think recusal is appropriate, when 
either the conflict or the appearance of conflict is even a 
harder standard, as you know, and the one more usually applied, 
when that has to be invoked?
    Mr. Comey. Well, Senator, as you said, it is a hard thing 
to spell out in the abstract. As I say, despite what my mother 
taught me about not caring what other people think, as a 
prosecutor you have to care that the public has confidence in 
the work you're doing. So the rule that I've applied--and I'll 
probably garble whatever is in the Code of Federal Regulations, 
but if I find a situation where because of a personal or 
business relationship to a person who is substantially involved 
in one of our investigations, the appearance of partiality 
arises, I make a judgment call, and as you saw in the example I 
gave you first, I err on the side of caution because I care 
about people's faith in the institution of the U.S. Attorney's 
Office. And in that circumstance, I would consider recusal.
    Now, as you can tell from the way I have no doubt garbled 
the CFR standard, as I did in the case I mentioned, I talk to 
the folks in my office who know this stuff, who've done the 
legal research on it and are kind of the old hands, and get 
their advice before I make that kind of call.
    Senator Schumer. Do you believe that an appearance of a 
conflict of interest can be enough to require the Attorney 
General to recuse himself? I am not asking about a specific 
case, but abstractly.
    Mr. Comey. Yes, Senator, I think I would agree. Any chief 
prosecutor, whether U.S. Attorney or the Attorney General, 
might find himself in a situation where the appearance issue 
was substantial enough. The prospect that folks would conclude 
that he or she was biased in a particular investigation, 
recusal would be appropriate.
    Senator Schumer. And the other standard, of course, is 
extraordinary circumstances. This is for a special counsel, not 
just a recusal. But let me ask you both: Do you believe that an 
appearance of a conflict can be enough to give rise to 
extraordinary circumstances that would necessitate the 
appointment of a special counsel in the case of Attorney 
General? Again, I am asking it generally, not just--
    Mr. Comey. Again, a tough one to answer in the abstract. I 
am sure I could imagine, given enough time, circumstances where 
there were extraordinary enough circumstances that it created, 
as I said, a substantial risk that folks would conclude that 
the Department or that chief executive, that chief prosecutor 
was unable to be impartial that it would be appropriate.
    Senator Schumer. You mentioned the second case, which was 
offices that had to work closely together. So that can be a 
circumstance as well where recusal would be appropriate?
    Mr. Comey. It can be, Senator, and, again, the example I 
gave was probably not one in which I was applying the standard 
recusal, because I could imagine a circumstance where--
    Senator Schumer. The law is flexible.
    Mr. Comey. That's exactly right. I could imagine a 
circumstance in the case I mentioned where I could wall off a 
group and handle it, or if there was someone who was 
particularly close to the folks in that office, the set of 
office cubicles where the money had disappeared, we could 
handle it. We could take other steps. I just decided that--I 
don't want to give away what the agency was, but because of 
that particular relationship, folks who needed to have lunch 
together and work these cases together, it was probably easier 
for me to make that call.
    Senator Schumer. All right. And let me ask you this, now 
getting to the specific case. You have mentioned close working 
relationship. There are probably very few closer working 
relationships between, say, an Attorney General and the White 
House, in this case a group that he might be investigating, the 
Counsel's Office and so many other parts.
    Just inform us a little bit. I know you have not immersed 
yourself in the facts of this case, but inform us in terms of 
that standard, what you would look at here, because, again, 
this is a close--it is a close daily relationship. And one of 
my concerns, frankly, is the Attorney General has to go to some 
of the very same people to get things for his Department, to 
get a policy recommendation implemented that he might be 
looking into. That creates not only an appearance of a 
conflict, but it actually might create the extraordinary 
circumstances where recusal would almost be required.
    Tell me why it might not be or why it might be in this 
situation. Again, I am not asking to pin you down in a yes or 
no answer here; rather, I want to get your parameters.
    Mr. Comey. Senator, I understand that. I am not comfortable 
discussing the particular case for a number of reasons. First 
of all, as an experienced prosecutor I never talk about 
investigations or an aspect of them publicly. I certainly don't 
talk about investigations, even if I were otherwise inclined, 
that are not mine.
    Senator Schumer. I am just asking the general standards you 
would use to determine the closeness of the relationship, the 
appearance of the conflict.
    Mr. Comey. And as we said earlier, it's by necessity a 
standard that is difficult to define. It turns upon the 
relationship at issue, the role of the party with whom the 
prosecutor you are looking at has that relationship in the 
investigation, that is, witness, subject, target. That 
obviously turns on specific facts. And also from that 
relationship, what's the nature of the concern about partiality 
that arises?
    And that sounds all fuzzy. That's because it is fuzzy to 
define in the abstract. It's simply one in which you have to be 
conscious of the importance--as I started, the touch stone is 
that you want to do the job right and you want to make sure 
that folks have confidence in the job that you do.
    Senator Schumer. Right. I am speaking personally here. I 
find it virtually impossible for anyone to come to the 
conclusion--we can debate when a special counsel is needed, but 
in terms of recusal because of an appearance, I find it 
virtually impossible, given the naturally close and nothing 
illegal, I mean nothing wrong, with the relationship between 
the Attorney General and all of the nexus of people in the 
White House and all the interrelationships, that there would 
not be an appearance. That is one of the reasons I am 
frustrated. I thought the Attorney General--I have stated this 
publicly, there is nothing new--should have recused himself 
from the outset.
    So again, I do not want to try to pin you down here 
unfairly, but I would like to know--you follow this, you do not 
know the details, but all you have to know, here we are talking 
about structure, not actual investigation. So I think it is 
appropriate to ask this question. How could there not be an 
appearance of conflict given all the close nexus of the 
relationships that we know about. We do not know who did this. 
I have no idea who did this. But we do know that some of the 
names that have been bandied about by some, and those people 
have such close and intertwined relationships it is virtually 
impossible for me to believe there is not an appearance. Could 
you address that? I mean this chart is really not hyperbolic, 
even though it might appear to be, there is just so many 
different relationships.
    Mr. Comey. Senator, as I said--
    Chairman Hatch. Senator, your time is up. But answer the 
question. Then I am going to call on Senator Warner who would 
like to make opening remarks on behalf of--
    Senator Schumer. Fine. I have no problem as long as I get a 
chance to just continue this line of questioning, Mr. Chairman, 
after Senator Warner. That is fine with me.
    Chairman Hatch. Unless Senator Kennedy comes in, but we 
will work it out.
    Senator Schumer. Please.
    Mr. Comey. Thank you, Senator. Thank you, Mr. Chairman.
    It is a question that I am not neither comfortable nor 
equipped to answer with respect to a particular case, Senator. 
My--as you and I discussed, what I would do in this 
circumstance is, if I am fortunate enough to be confirmed as 
Deputy Attorney General, is do what I do every day when I am 
involved with a case, is make sure I have a mastery of where we 
are factually, understand the law, and decide what is 
appropriate with respect to any of the issues that you have 
raised, and make my best judgment in that area and give my best 
    Senator Schumer. But you would not rule out, by any stretch 
of the imagination, recommending to the Attorney General that 
he recuse himself?
    Mr. Comey. Certainly not. I am not in a position to rule 
anything in or out. I do commit to you that I approach this as 
a professional. And you mentioned integrity and loyalty, 
there's no choice in my mind. Loyalty's a terrific thing, but 
integrity and the love of my family is all I have left at the 
end of this life, and so that is paramount in my mind. There is 
no conflict there for me.
    Senator Schumer. Thank you, Mr. Chairman. I would be happy 
to defer to my senior colleague from Virginia.
    Senator Warner. I thank the Chair and my colleague and good 
friend from New York.
    Chairman Hatch. Happy to have you here.

                       STATE OF VIRGINIA

    Senator Warner. Having listened to his lasts phrase, I have 
two observations. One, I am going to take it and use it myself, 
and I am not going to attribute it to you.
    Senator Warner. I like that phrase, and I can simply say, 
with the unanimous consent of this Committee, I will just 
submit my statement on behalf of this very distinguished 
individual, who I have known for some time.
    Chairman Hatch. Without objection, we will put that 
statement in the record.
    Senator Warner. So you are on your own, my friend, and you 
are doing magnificently. Just keep rolling.
    Senator Warner. Thank you.
    [The prepared statement of Senator Warner appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator Warner. Thank you for 
taking time out of what we know is a horrendous schedule, and 
being here to lend your support to Mr. Comey.
    I am not going to ask any more questions. We will turn to 
Senator Schumer. Can you finish in one--
    Senator Schumer. Thank you, Mr. Chairman. I appreciate it. 
As you know, this is a very important issue to me, and I am 
trying to approach it as fairly as I can, but I do need some 
more time here to flesh this out a little bit.
    Chairman Hatch. Happy to do it. You have 10 more minutes.
    Senator Schumer. Thank you.
    Let us be specific. I will not even use a hypothetical 
here. The closeness of the Attorney General to Karl Rove in 
terms of their being political consultants, having a long and 
ongoing relationship, I have no idea if Mr. Rove did this or 
did not. I am not even pointing the beginning of any finger. 
But he is obviously a possible person who did it. He did say, I 
guess, it is reported, that Joe Wilson's wife was fair game. 
That would mean any prosecutor would want to interview him. 
Again, just please tell me, given that close relationship, how 
could there not be a conflict? That is what I do not understand 
here. And again, the happiest thing I would be is if they would 
appoint a independent counsel of stature and let the 
investigation go forward under--not independent counsel, excuse 
me--special counsel, all of us would go on to other things with 
the confidence that we would get to the bottom of this and then 
the chips would fall where they may.
    But the closeness of that relationship is well known. It 
has existed over 10 years. Knowing you, I believe in my heart 
that if you approach that relationship just with Mr. A and Mr. 
B, you would have a strong inclination to say there ought to be 
some kind of recusal. Just elaborate a little more for me. 
Someone is a consultant to someone. Someone is a friend of 
someone. Someone is a political associate of someone. They have 
worked together long and hard. I mean the bottom line is you 
protect the law deeply and almost religiously, which I admire. 
It would seem to me that given the fact that there are many 
other people who could be capable of getting to the bottom of 
this without those at least appearances of conflict, that that 
recusal is sort of a no-brainer.
    Just again, tell me a little more about your thinking in 
    Mr. Comey. Well, Senator, as I said earlier, I think it is 
unwise for anyone in my position--I know it's unwise for me--to 
talk about a pending matter. Among other reasons, as your 
question highlights, it requires me to assume facts about who's 
what--in what capacity in an investigation, witness, subject, 
    As I said to you, what we did in the case that I mentioned 
with the financial services company was not stop once I found 
out someone was connected to my supervisor, but try to figure 
out from some more investigation a number of key things, 
including what was the company's status in our investigation. 
And because there are plenty of situations that we encounter 
where one of my supervisors can have--in fact I know of one, 
where his mother was a bank teller at a bank that we were 
investigating, and--his mom wasn't in any trouble--and we 
concluded that there was no reason for that, to raise that 
significant issue. And so that's why I sort of steer clear of 
the specific and return to the general, which is incredibly 
important, and that is two things, what you mentioned, my love 
of law, and love of integrity and love of the institution that 
I believe is shared by the people that I'm going to work for 
and with, by the Attorney General and all the folks who will be 
below me if I'm confirmed.
    So I approach it with an open mind. I approach it with a 
careful enough character that I make sure I understand facts 
and understand law, and then make a judgment that I believe is 
the right judgment. That's my totem is what is the right thing?
    Senator Schumer. I know Senator Kennedy is here, and I have 
a different line of questioning, but if you like, Mr. Chairman, 
I would certainly defer to Senator Kennedy.
    I just had one final question. Let us just say, 
hypothetically, you come to the conclusion that the Attorney 
General should recuse himself, which you said you might or 
might not, but it is possible that you would, you have not 
ruled it out, which I appreciate. And you recommended to him 
and he says, ``No, here are the reasons, James, that I do not 
think I should.'' And you feel quite strongly that he should.
    Will you just say, ``Well, he has overruled me and that is 
that?'' Would you go to another arbiter? Would you--what would 
you do? You have had to have thought about that--well, I asked 
you about it yesterday, so you had to have thought about it 
overnight. It is not an easy question.
    Mr. Comey. And I appreciate your doing that. We are not 
going to conduct cross-examination in the Department like that, 
but I appreciate it.
    Senator Schumer. I would not want you to. Do not get any 
ideas about this investigation either to do that.
    Mr. Comey. No. We will be tougher, but you were 
extraordinarily fair in that regard.
    Really impossible for me to answer in that hypothetical 
form. People disagree with me every day, including my 
underlings in the U.S. Attorney's Office. I'll say, ``I think 
we ought to do it this way.'' They say, ``You're a bonehead. 
Here's the way we ought to do it.'' And they explain to me why 
it ought to be done that way, and ultimately agree.
    You are asking me to imagine an apocalyptic situation that 
I don't expect to encounter. I would not take this job if I 
thought I was going to be working with people who didn't share 
my love of the law and love of the institution. So I don't 
think I'll ever find myself in that position. I can commit to 
you though that--because I talk so much about integrity and 
about this great group behind me--that's what I really care 
about. I don't care about politics. I don't care about 
expediency. I don't care about friendship. I care about doing 
the right thing. And I would never be part of something that I 
believe to be fundamentally wrong. I mean obviously we all make 
policy judgments where people disagree, but I will do the right 
    Senator Schumer. I have more questions, but I defer to 
Senator Kennedy if you would like, and then I will resume.
    Senator Kennedy. Thank you, Mr. Chairman, and thank you, 
Senator Schumer.
    I am going to come back to what Senator Schumer mentioned 
in somewhat a little different way. But first of all I 
understand we have your four daughters and a son that is here.
    Mr. Comey. Yes, sir.
    Senator Kennedy. I am sure they have been presented. I am 
sure they have had a long afternoon.
    Mr. Comey. Two were evicted, Senator. The 6-year-old and 
the 3-year-old are on furlough.
    Senator Kennedy. Keeping their interest is challenging at 
the best of times, and particularly at a hearing. So we thank 
you for being here and we welcome your family.
    I welcome Mr. Comey to the Committee, and I have had the 
opportunity to meet with him, heard much praise of him by those 
who know him well, and I am encouraged that we will have a 
Deputy Attorney General of high caliber and integrity if we 
confirm him. The Deputy Attorney General is one of the most 
important officials in the Federal Government, especially when 
the Attorney General has close ties to the President. The 
Deputy may often be in the day-to-day charge of the Department. 
When my brother was Attorney General his Deputy Attorney 
General was the outstanding Denver lawyer, Byron White, who 
performed so well as Deputy. President Kennedy appointed him to 
the U.S. Supreme Court in 1962. His successor was Nick 
Katzenbach, war hero and law professor, who also did an 
outstanding job, was promoted to Attorney General when my 
brother came to the Senate in 1965.
    So Mr. Comey has many superb models to guide him as he 
meets the new challenges. Perhaps the most relevant one today 
is that of William Ruckelshaus, Deputy to Eliot Richardson, who 
was Attorney General during the Watergate crisis as part of his 
confirmation proceedings. Mr. Richardson made a clear 
commitment to the Committee, the Congress and the Nation that 
he would not fire the Watergate Special Prosecutor, Archie Cox, 
except for extraordinary improprieties. And when Cox 
investigated the White House too well, President Nixon ordered 
him fired. Richardson refused and resigned. Ruckelshaus, as 
Acting Attorney General, also refused and resigned.
    Those acts of courage and integrity by both the Attorney 
General and the Deputy Attorney General, which took place 
exactly 30 years ago this month, stand out in the annals of the 
Justice Department as moments which all of us hope will never 
have to be repeated.
    We are faced today, however, with a serious problem, a 
possible White House abuse of power involving the disclosure of 
the name of the CIA covert employee. The President himself has 
asked for a vigorous examination of the alleged security leak, 
and the intimidation campaign at the White House. The Justice 
Department has begun the investigation, but it is far from 
clear, the integrity of that investigation, especially in light 
of the close ties between the Attorney General, the press and 
the White House staff.
    Many of us on both sides of the aisle are hopeful that the 
appointment of Mr. Comey will facilitate Attorney General 
Ashcroft's decision to recuse himself from the investigation so 
that Mr. Comey will be serving as the Acting Attorney General 
for the purposes of the investigation.
    Obviously, we do not expect Mr. Comey to become part of a 
new Archibald Cox situation, but his impressive qualifications 
and the timing of his nomination are auspicious.
    Mr. Comey and I have had a full and frank conversation 
about this prospect, and based on that discussion, I believe 
that once he takes office he will very promptly gather the 
available facts on the allegations, including the results of 
the investigation thus far, and if the Attorney General has not 
already decided to turn the matter over to Mr. Comey, Mr. Comey 
will decided for himself whether the public interest in a 
credible investigation requires the Attorney General to recuse 
himself and will advise the Attorney General accordingly, and 
if he is given responsibility for the investigation, Mr. Comey 
will insist that he and only he will make the further decision 
as to whether the public interest requires the appointment of a 
special counsel.
    Since there is now no statute on special counsel, Mr. Comey 
will follow the precedent set by Attorney General Richardson, 
and Professor Cox in 1973, and consult with the members of this 
Committee on the selection of and the mandate for the counsel.
    Mr. Comey, I know you will clarify the record if you take 
issue with the accuracy of any of the conclusions I have 
reached from our discussions on Monday.
    Mr. Comey. Senator, I thought I heard you just say that 
I've committed to do what Eliot Richardson did.
    Senator Kennedy. No. I have indicated that--I said given--
Mr. Comey will assist--he will make the--requires of a special 
counsel. Since there is no statute, there is no statute on 
special counsels, the statute, which is the original statute 
that was used even in the special counsel statute, was 
basically the one under which the--came about for the 
establishment of the special counsel at the time when Attorney 
General Richardson and Professor Cox appeared before this 
Committee and was worked out, Republican and Democrat at that 
    And what I am asking you is that since there is no statute 
on special counsels, if you reached a decision and a judgment, 
would you then feel that you would follow the special counsel 
statute that was worked out at that time, which is the basic 
    Mr. Comey. I'm sorry, Senator.
    Senator Kennedy. Then would you also consult with the 
members of the Committee at that time as well.
    Mr. Comey. Senator, I thank you for that, and I agree with 
you. I think Eliot Richardson and Deputy Attorney General 
Ruckelshaus are two of the reasons that this institution has 
such credibility because of the kind of people that have worked 
there, and they being two shiny examples.
    There is in place a regulation. In preparing for my, I 
hope, new job, I've read it, 28 CFR 600, which is the 
regulation governing to appointment of special counsel 
propounded by Attorney General Reno. So I think in the first 
instance I would be obligated, and even if I weren't, I think 
that would be the prudent decision. Anyone considering the 
appointment of special counsel would go to that regulation and 
look at the procedures laid out there.
    Senator Kennedy. So that would be the statute that you 
would follow if it was necessary to trigger?
    Mr. Comey. Yes, sir. And I believe it's been used once. 
Attorney General Reno used it to appoint former Senator 
Danforth as special counsel in 1999, and that would be the 
starting place. In terms of who else I might or might not 
consult if I ever found myself in that position, I'm really not 
in a position to say.
    Senator Kennedy. There are probably four areas that I would 
like to talk with you about. One is on the civil rights issues. 
The Department of Justice has been the guardian of America's 
civil rights laws. The nature of the civil rights violation 
have changed since the days when the Department was involved in 
the historic efforts such as the desegregation of the 
University of Mississippi. The U.S. Marshals were needed to 
protect those seeking to integrated. The Department of Justice 
seems to be filing fewer cases than the past, and fewer pattern 
or practice cases, particularly in the areas of job 
discrimination. Though there may be difference of opinion in 
certain areas, most Americans support, and I am sure that 
members of the Committee support the basic core of the work 
that the Department does in the area of civil rights and 
enforcing well-established statutes of the Civil Rights Act, of 
the Fair Housing Act.
    If you are confirmed to the position of Deputy Attorney 
General will you work to ensure the Department of Justice takes 
prompt action in response to various civil rights violations?
    Mr. Comey. Senator, as I think you and I both agree, that 
is one of the things that makes the Department of Justice 
special. It is one of the things that really only the 
Department of Justice can do, and that is pursue civil rights 
cases. It is something that I personally have taken very 
seriously as a prosecutor.
    Yesterday my office in New York indicted a former New York 
City police officer for killing a young man by throwing a radio 
at him as he rode his bicycle and knocking him off his bike, 
and then not reporting the head injury of the young man. So we 
indicted him in a civil rights case, and that's just one 
example of many that I think makes us still a special place in 
the area of civil rights.
    And I do commit that it would remain for me personally and 
for the Department, a priority.
    Senator Kennedy. We talked about this last week along with 
several of my colleagues on the Committee. I introduced a bill 
to renew the Undetectable Firearms Act, make it permanent. The 
Undetectable Firearms Act, known as the plastic gun law, makes 
it illegal to manufacture, import, possess, or transfer a 
firearm not detectable by walk-through metal detectors or 
airport X-ray machines. Only firearms necessary for certain 
military intelligence use are exempt. You know the background 
law was enacted in 1988 and then re-enacted, but it expires 
December 10th.
    The bill is supported by all the major gun safety 
organizations, the International Brotherhood of Police 
Officers, Airline Pilots Association, flight attendants. Can 
you speak for the Department on whether they are going to 
support our bill?
    Mr. Comey. Yes, Senator, I can. Even though I am not yet at 
the Department, I did see that you asked about that at the 
hearing my great friend Pat Fitzgerald testified at, and so I 
found out. The Department supports the extension of that law.
    Senator Kennedy. Okay. Well, after you are confirmed, we 
will be looking for a good letter from you indicating support 
on that.
    Let me ask you about the--
    Chairman Hatch. You will learn to be so forthright.
    Senator Kennedy. I had a heads up on that answer, Mr. 
Chairman, before this.
    I want to raise the issues of hate crimes. You are familiar 
with the issue, the challenge, the problem, the limitations 
that exist under the existing law. And after September 11th, we 
saw a shameful increase in the number of hate crimes committed 
against Muslims, Sikhs, Americans of Middle Eastern descent. 
The Justice Department has expressed their commitment to 
investigating and prosecuting the backlash hate crimes. The 
Department's ability to respond was severely limited by the 
outdated and unnecessary laws.
    Will you make it a priority as Deputy Attorney General to 
work with us in trying to fashion legislation to deal with this 
    Mr. Comey. Senator, hate crimes are among the things that 
most motivate prosecutors because folks are victimized not just 
for the usual awful reasons but for particularly awful reasons 
having to do with race, creed, color, orientation, things of 
that sort. And there's nothing that we out in the field take 
more seriously. And speaking from the field's perspective, I 
have been very proud of what the U.S. Attorneys and I think the 
Department as a whole did in the wake of September 11th, that 
it was not just empty rhetoric. When the word went out to the 
field, make sure that we protect our Arab American citizens and 
visitors from backlash, I mean, that was really meant and 
really pursued, and I don't think just by the Feds, but by 
local departments and State organizations as well.
    So it is something that all of us in law enforcement feel 
very, very strongly about. I am not familiar with any 
particular legislative details, but it is obviously something I 
care about and would work on.
    Senator Kennedy. On the issue of the death penalty, as 
United States Attorney, Southern District of New York, you have 
been responsible for reviewing the recommendations made by a 
Committee of prosecutors in your office regarding whether to 
seek the death penalty in particular cases. In turn, you have 
submitted your recommendations to Attorney General Ashcroft.
    As you know, the Attorney General has frequently rejected 
the recommendations by U.S. Attorneys not to seek the death 
penalty 37 times since February of 2001. On several occasions, 
Federal prosecutors have been forced to seek the death penalty 
against defendants who were willing to plead guilty in return 
for lengthy terms of imprisonment, including life sentences, in 
order to avoid the death penalty.
    In February 2003, the New York Times reported Attorney 
General Ashcroft had overruled death penalty recommendations by 
U.S. Attorneys in New York at least ten times.
    How many times has the Attorney General overruled your 
recommendations in the Southern District?
    Mr. Comey. Senator, I don't know that that's a matter of 
public record because some of those cases may be pending. The 
New York Times has reported that I was overruled in two cases. 
I used to say they're a very accurate newspaper. But I have 
commented publicly on that in response to the Times' reporting 
that I was overruled.
    Senator Kennedy. Well, is that classified? Or what is it 
not a matter of public record?
    Mr. Comey. I don't think it's--it's certainly not 
classified, but I would imagine that while the cases are 
pending, we certainly want--to the extent we would not 
otherwise be reluctant to release internal deliberations in the 
Department, we certainly wouldn't want to be speaking about 
decisionmaking on cases that may or may not be going to a jury 
on the death penalty.
    Senator Kennedy. Just then can you answer, has the Attorney 
General overruled your recommendation in any case where the 
defendant, without getting into the specific names of the 
cases, where the defendant was willing to plead guilty and 
receive a sentence of life in prison?
    Mr. Comey. Senator, I have the same concern because I'm 
thinking about a particular case, or cases, that is pending and 
I don't want to do anything to influence them because we have 
some the juries are going to be selected shortly.
    Senator Kennedy. It has been reported that Federal 
prosecutors have failed to persuade the jury to impose the 
death penalty in 15 of the last 16 trials in which they sought 
it. During this administration, only five death sentences have 
been imposed in 34 Federal capital trials. Why do you believe 
the Justice Department is losing so many death penalty cases?
    Mr. Comey. Death penalty cases are among the hardest cases 
to try, and as they should be, among the hardest cases to 
obtain a death penalty because of the safeguards built into the 
Federal death penalty statute. It is stacked in favor of life, 
and I think most prosecutors support that, that it ought to be 
the extraordinary case in which we are able to obtain the death 
    So I'm not in a position to say whether the numbers are any 
different across administrations. I do know from having been 
involved in these cases that they're very hard to win. I was 
involved in one in Richmond under the prior administration 
where we sought the death penalty against four defendants in 
the same trial, and the jury returned life verdicts on all 
    And as I said, I don't ever want to be in a situation where 
I'm saying it ought to be easier to seek the death penalty. 
These are the decisions we as prosecutors and as the Department 
of Justice take most seriously. I know all U.S. Attorneys, as I 
do now, debate them, discuss them, analyze them internally 
before making a recommendation to the Department of Justice. 
There is no harder call I make as U.S. Attorney. And as I said 
publicly at the time of the New York Times article, the fact 
that the Attorney General might disagree with a U.S. Attorney 
does not--and maybe I was too colorful. I said ``does not mean 
either of them is out to lunch.'' These are often very, very 
close questions, and I believe the Department has an 
obligation, one that I recognized even from the field, to make 
sure that the death penalty is fairly administered across the 
country. There has to be someone in that high fire tower 
looking out all over the country and saying we want a defendant 
in Alabama to be treated on identical facts similarly in New 
Hampshire. And that's the job of headquarters.
    Senator Kennedy. I want to go to another issue on this 
judicial blacklist. As you know, earlier this year a number of 
controversial sentencing provisions were added at the last 
moment to the Amber Alert law on missing, abducted, and 
exploited children. These provisions, called the Feeney 
amendment, had nothing to do with protecting children and 
everything to do with handcuffing and eliminating fairness in 
our Federal Sentencing Commission.
    Chief Justice Rehnquist said, ``They do serious harm to the 
basic structure of the Sentencing Guideline system, seriously 
impair the ability of courts to impose just and responsible 
    One of the most troublesome provisions in the Feeney 
amendment allows the Attorney General and the House and Senate 
Judiciary to establish judicial blacklists, detailed reports on 
the sentencing practice of individual judges. This provision 
has drawn criticism from Republican-appointed and Democrat-
appointed judges alike. Chief Justice Rehnquist has said that 
it potentially amounts to an unwarranted and ill-considered 
effort to intimidate individual judges in the performance of 
their judicial duties, cautions that it should not be used to 
trench upon judicial independence.
    Another judge, Reagan appointee Paul Magnuson, of the 
District of Minnesota, recently wrote, ``This report 
requirement accomplished its goal. The court is intimidated. 
The court is scared to depart. The reporting requirements will 
have a devastating effect on our system of justice, which for 
more than 200 years protected the rights of citizens. Our 
justice system depends on a fair and impartial judiciary that 
is free from intimidation from other branches of Government. 
The departure reporting requirements constitute an unwarranted 
intimidation of the judiciary.''
    Then on June 24th, Judge Joseph Martin, a Bush I appointee 
and former U.S. Attorney, Southern District Court, conservative 
record on criminal issues, announced he was retiring from the 
Federal bench because he no longer wants to be part of an 
unjust criminal justice system. He cited the Feeney amendment 
as Congress' most recent assault on judicial independence, an 
affront to intimidate judges.
    What is your opinion regarding Judge Martin's comments and 
resignation from the bench?
    Mr. Comey. I have great respect for Judge Martin. He held 
the job that I now hold, and I think he was a very, very fine 
district court judge, and I know him socially and 
professionally. I certainly respect Judge Martin's opinion. He 
was I don't think ever a fan of the Sentencing Guidelines. My 
response whenever he and I discussed it is, ``Judge, I'm a 
servant of the law. Congress passed the law. Congress passed 
the punishments. And I believe my job is to make sure that they 
are fairly carried out and that I never do anything to undercut 
    And there is a risk that prosecutors can do that by not 
being forthright in the way they charge crimes and insist upon 
plea resolutions to those crimes. So I respect Judge Martin, 
and I'm sure were he a legislator, he would vote differently, 
and that's something I respect.
    Senator Kennedy. Well, this is a continuing issue where 
there is obviously division, even on our Committee. But it is 
one that is a very key aspect of the criminal justice system. 
And we will be wanting to visit.
    I am going to submit some issues on immigration, which is a 
cause, particularly about law enforcement and immigration and 
community policing. We talked briefly about that, and you 
indicated your own kind of personal experience in noting sort 
of the challenges that they have in community policing and also 
whether the local enforcement can enforce the immigration laws. 
But I will submit questions on that. But I was impressed both 
by your sort of knowledge and awareness of what the 
considerations are on that issue.
    Let me just ask you just finally about the Department of 
Justice Diversity Report. You are familiar with this report. It 
recently released a heavily redacted report on diversity, and 
it is my understanding the report which was prepared by a 
private consultant examines the issue of diversity at DOJ in 
such areas as hiring, promotion, and retention of DOJ 
    While the Department is to be commended for the 
commissioning the report, I am extremely troubled by the 
Department's treatment of the report since it was completed. 
The DOJ Diversity Report found that white lawyers are far more 
likely than minorities to hold powerful and well-paid positions 
in the Senior Executive Service. Men are about 50 percent more 
likely to be Senior Executive Service than women. Pay grade DOJ 
component are taken into account. Minority and female attorneys 
are paid significantly less than their white male counterparts. 
The attrition rate for minority attorneys is 50 percent higher.
    According to the press accounts, for more than a year the 
Department sort of ignored the requests, including Freedom of 
Information requests, to release the report. When it finally 
did publish it on the DOJ website, substantial areas of the 
report were blackened out.
    Unfortunately, the manner in which the Department has 
treated the report gives the distinct impression that the 
Department commissioned the report and then left it on the 
shelf, ignoring the conclusions instead of seeking to correct 
the internal problems.
    Senator Leahy and I sent a letter to the Department asking 
that the report be provided to the Committee as soon as 
possible so we could have the correct version of the report.
    Are you familiar with the report? Do you know about it? 
Would you have any problems making sure that we had access to 
the original report?
    Mr. Comey. I'm familiar with the report from the press 
accounts, Senator. I haven't read it. I think it's a point of 
pride, actually, for the Department of Justice and one of the 
reasons I think Larry Thompson was such a great Deputy Attorney 
General that he initiated this. As far as I can tell, no one 
had ever done this before, and he said, ``I want somebody to 
come in and scrub what we are doing to figure out how well we 
are doing.''
    And my sense of it is--even though I haven't read it, I 
have seen the conclusions of it reported--that we are doing 
very well, not as well as we can do--we can always do better, 
but certainly better than other major law employers, law firms, 
and State legal organizations. It's something I care 
passionately about, have worked very, very hard on in Richmond 
and in New York. I know that the Department has already begun 
enacting some of the report's suggestions. One of the things 
that I was so thrilled to hear about is that they've set aside 
money to help young lawyers, minority lawyers coming out of law 
school loaded with debt, to help them defray the costs of those 
loans, because my challenge always as a chief prosecutor in 
attracting minority lawyers was these kids come out of law 
school and they're broke. They tend to be more broke than their 
non-minority counterparts, and they get the golden handcuffs 
from the big law firms slapped on them, and they never come 
    And so I'm thrilled that the Department is moving forward 
on this. As I said, I care very much about diversity, Senator, 
and, of course, I will work on it as an issue and follow up.
    Senator Kennedy. Okay. After you are approved, which I 
expect that you will be, we will follow up on the exchange of 
    Thank you very much, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Feingold?
    Senator Feingold. Mr. Chairman, I am going to, if I could, 
defer to Senator Schumer, who said he wanted to finish a line 
of questioning.
    Chairman Hatch. That would be fine with me.
    Senator Feingold. Then I would prefer to go after that.
    Chairman Hatch. Can you finish in the remaining 5 minutes 
you have, Senator Schumer?
    Senator Schumer. I was hoping for 10.
    Chairman Hatch. It is the second round. Why don't we give 
you 10, but finish in the 10, will you?
    Senator Schumer. Thank you. Okay. I will do my best.
    Chairman Hatch. We will give you a full 10, and then we 
will turn to Senator Feingold.
    Senator Schumer. Thank you, Mr. Chairman.
    Chairman Hatch. I have got to close this down.
    Senator Schumer. I have a lot of questions, but I will try 
to be as brief as I can.
    Chairman Hatch. I understand. And we will keep the record 
open for written questions until Friday at 5 o'clock, so all 
written questions will have to be in by Friday.
    Senator Schumer. Thank you.
    Another concern of many of us is the opaqueness of the 
structure of this investigation, going back to the CIA leak. No 
one knows who is in charge. This has nothing to do with which 
witnesses are being interviewed, what line. They say Justice 
Department officials. Some people say Mr. Dion is in charge. 
Some people say, well, sometimes he is in charge, et cetera.
    Will you commit to letting this Committee know, letting the 
public know, the structure of the investigation, who is 
completely in charge, who can overrule that person, et cetera? 
I think that is very, very important because, again, the 
amorphous sort of ad hoc way this investigation seems to have 
proceeded has troubled many people.
    Mr. Comey. And as I said when we were talking about this 
earlier, Senator, I don't know that from the outside I'm in a 
position to criticize or have an opinion on the structure of 
it. I did read Christopher Wray's testimony before this 
Committee, and he described it in the way I would have imagined 
an investigation being conducted by the Department, with the 
career folks reporting to the career supervisor and then up to 
the AAG for Criminal.
    What I can commit to you is, as I said earlier, that if I 
am fortunate enough to be confirmed as Deputy Attorney General, 
I will be in the chain of command. I will know how the 
investigation is structured. I will, as I said, master the 
facts, understand the law, and take appropriate action or give 
appropriate advice on a whole range of topics, some of which 
we've discussed.
    Senator Schumer. But will you let us know what that 
structure is?
    Mr. Comey. I don't know that I'm in a position to commit to 
that, Senator, simply because as a career prosecutor I'm very 
reluctant to make any promises about what I will say publicly 
about an investigation, any investigation, not just one that 
involves a subject as important as this one.
    Senator Schumer. I am not asking, I don't think anyone is 
asking for the details of the investigation, which could 
compromise it, but, rather, again, the structure, who is 
running it. Who is running it day to day? Who makes the day-to-
day decisions? And how often do they consult or do they consult 
with higher-ups before, say, a witness is requested or 
whatever? We have been assured over and over again that there 
are professional prosecutors in charge. Yet we don't know who 
they are and in what situations they are making the decisions 
and what situations they are consulting before making decisions 
with the appointees?
    Now, as I say, I have complete faith in you, but I still 
think the public ought to know that if, say, Mr. Dion is in 
charge of the investigation, that he has to consult with so-
and-so before he can make--or that he doesn't.
    Mr. Comey. And I would hope, Senator, that as you said, 
knowing me, if I were the Deputy Attorney General, you would 
know and you and the public I hope would take some comfort from 
the fact that a guy who knows his business and who is committed 
to integrity and the rule of law and running out facts is there 
and in that position.
    Senator Schumer. Do you know you will be involved in this 
investigation yet if you are confirmed?
    Mr. Comey. I'm certain that I will. I mean, just given the 
nature of the Deputy Attorney General's job, I'm certain that I 
    Senator Schumer. Okay. Let me ask you this: As you know, 
when we talked yesterday, I am really troubled by the way the 
investigation has proceeded, particularly in the gathering of 
information where it seems, either by design or just by 
accident, different groups of people have been notified ahead 
of time, either in the media or by informal discussion, that 
documents will be requested. Is that usual? Do you do that? Is 
that standard procedure that a prosecutor will telegraph that 
within 3 days, within some period of time, within 12 hours, we 
will request documents?
    Mr. Comey. With respect to the particular investigation--
    Senator Schumer. I am just asking in general.
    Mr. Comey. Okay. With respect to, for example, white-collar 
investigations that I participated in, every one is different 
and it depends upon a host of factors. There are times when we 
execute a search warrant because we simply think the entire 
entity we are dealing with is corrupt. There are other times 
where we have a comfort level with a general counsel or a 
relationship with a law firm of credibility that has been 
conducting an internal investigation, that we will ask them to 
pull together relevant things and show them to us. There are 
other times we will serve a grand jury subpoena.
    It's very hard, in my experience, to answer in a vacuum. 
Each case turns on its facts.
    Senator Schumer. Have you ever been involved in a situation 
where you have asked an office or a protagonist for documents, 
they said, ``Give us 12 hours before you demand them,'' and you 
have said yes?
    Mr. Comey. I think so, Senator. I think in some of the 
white-collar work that we've done, companies are very--
particularly regulated companies are very sensitive to--
    Senator Schumer. Criminal investigations?
    Mr. Comey. Yes, criminal investigations, to the service of 
grand jury subpoenas, because that triggers--it may be a 
material event in the life of that company and trigger a 
reporting requirement. And so I believe I have dealt with 
situations where company counsel has said, ``Look, before you 
hit us with the subpoena, give us a chance to pull together 
what you need to see.''
    Senator Schumer. They communicated that to their employees, 
that in 12 hours, or whenever, or it was made public that--I 
mean, I understand if you quietly call the counsel and say, 
``We are going to request them,'' and he says, ``Give us 12 
hours.'' Wouldn't you naturally say, ``Well, don't let anybody 
know until''--you know, don't let anyone know ahead of time 
before the issue was ordered?
    Mr. Comey. Not necessarily, Senator. What I was trying to 
explain was a situation where a company wants to cooperate with 
us and they say rather than you guys giving us a subpoena that 
we'll have to disclose to the SEC and to the marketplace, give 
us a period of time to pull together the relevant records, 
we'll send out, you know, to all the relevant divisions and ask 
them to collect their documents, and then we'll provide them to 
you and we're going to show you X or Y about this 
    Again, as you can tell by my struggling, it's hard to 
answer in a vacuum, but I believe there have been those 
situations, and there are plenty of situations where we just 
slap them with a subpoena--
    Senator Schumer. That is the usual situation, isn't it?
    Mr. Comey. That's probably more frequent, yes, sir.
    Senator Schumer. Let me just ask you this for the record: 
Do you believe that the deliberate exposing of the identity of 
a covert CIA operative is serious crime with potentially 
devastating consequences to our National security and deserving 
the prosecution to the fullest extent of the law?
    Mr. Comey. I agree with you, Senator, that it is an 
extremely serious matter. The only word that a prudent 
prosecutor does not use during an investigation is ``crime,'' 
and just for this reason: that if you later lock somebody up, 
they will say you prejudged it and you concluded that they had 
committed a crime. It is an extraordinary--
    Senator Schumer. Not referring to this particular--any 
particular case. I am just saying--
    Mr. Comey. Any particular case. I've learned from some of 
the really fancy counsel I've dealt with in New York, you've 
got to be careful what you say. But it is--of course I agree 
with you--an extraordinarily serious matter worthy of fair and 
aggressive investigation.
    Senator Schumer. Okay. Let me ask you this: As a career 
prosecutor, do you think it potentially helps or hurts the 
investigation for the White House Press Office or for any 
outside office to conduct its own investigation and then 
announce that it is satisfied that no wrongdoing has occurred 
on the part of the people they have interviewed? Isn't that 
unusual? Isn't that damaging?
    Mr. Comey. I'm in the same place there in being unable to 
comment about the particular investigation, both because it's 
not my investigation, at least not yet, and I don't do that--
even if it were mine, I don't do that as a matter of course. So 
I don't think I--
    Senator Schumer. Well, look, let's say you are 
investigating a company and the public relations person of the 
company then said, ``Well, I have interviewed these people and 
they are just fine. I have gone over questions with them and 
everything else.'' What would you do? Anything?
    Mr. Comey. Well, in that hypothetical, I'm not sure what, 
frankly, difference it would make to my approach to the 
investigation other than I would continue to--I am going to run 
out every fact. I don't care what someone else's opinion is. 
And we encounter this frequently with companies that conduct 
internal investigations. That's terrific and that's helpful, 
but we need to run out the facts ourselves. And that's the way 
I approach investigations.
    Senator Schumer. Let me ask you this: It has been reported 
that some former administration officials are consulting with 
the White House on strategy related to this controversy. Are 
they fair game to be interviewed in an investigation? I am not 
asking whether you would or not, but is that appropriate and 
reasonable to do under some circumstances?
    Mr. Comey. I don't think it's appropriate for me to comment 
for the reasons I said. First of all, it's an investigation I'm 
not in yet, and also, that would illustrate some of the perils 
of commenting about a pending investigation. I wouldn't ever 
want in any investigation people to know my view on who should 
and should not be interviewed, what avenues should or should 
not be pursued. They need to know when we handle a case only 
that we're on it and that we're going to make our own 
    Senator Schumer. Okay. I am going to ask you one more 
hypothetical related to what we talked to before, and then I 
will have written questions, Mr. Chairman, because I see that 
my 10 minutes are up.
    You are investigating Enron for corporate crimes. This is 
hypothetical. Imagine you instructed the general counsel of 
Enron to order all employees to preserve potential evidence. 
Imagine Enron's general counsel then asked you if he could wait 
until the following morning to instruct employees not to 
destroy evidence. Would you agree to that request?
    Mr. Comey. I used to use, Senator, Enron as a hypothetical 
because the Southern District of New York had nothing to do 
with it.
    Senator Schumer. Right. That is why I chose it.
    Mr. Comey. I think in the new job, though, I will, so we 
will have to pick another company name.
    Senator Schumer. Pick another company name.
    Mr. Comey. A very hard question to answer in the abstract. 
It would depend upon a host of factors, as I alluded to 
earlier, including our relationship with the firm representing 
them, our sense of the entity, a whole bunch of things.
    The one thing that I would know is that certainly since 
Sarbanes-Oxley was passed, I have a terrific tool as a 
prosecutor, and that is, if somebody destroys a document before 
I've served a subpoena, before anything, thinking about that we 
might be coming, then they've committed a crime. And that's 
often a terrific tool to flip people in an investigation. So 
anybody who did that would do it at their peril.
    Senator Schumer. I would just say--
    Chairman Hatch. Senator, your 25 minutes is up.
    Senator Schumer. Yes, thank you, Mr. Chairman. I think this 
issue deserves more than 25 minutes, to be honest with you, but 
I will defer to your wishes. I just want to make one comment, 
which is this: I do hope that you will think about particularly 
my question about the structure of the investigation. I mean, 
all of the others, I understand that you want to get immersed 
in the details. But I think no matter what happens, for the 
public to know who was actually in charge, what is happening, 
who can overrule the ongoing parts of this, particularly in 
light of the fact, if there is no recusal. You have said you 
would be willing to recommend recusal, and we will see what 
happens there. But particularly if there is not, I think that 
is really important. And I will reiterate that question to you 
in writing and ask you to think about it.
    Thank you, Mr. Chairman.
    Chairman Hatch. You are welcome. I appreciate your 
    Senator Schumer. And I thank my colleague from Wisconsin.
    Chairman Hatch. I just need to point out that, you know, 
these leaker investigations are the toughest investigations 
there are. Very seldom have they ever found out who it was. And 
I suppose both sides try to exploit those, no matter what. But 
we expect you to handle that in a straightforward, upright, 
honest manner, and knowing you, I know you will. And it is a 
serious situation, but good luck. That has been the experience 
around here, and, frankly, I wish it wasn't. But that is the 
way it is.
    Senator Feingold, I hope you can finish in 10 minutes 
because I have got to be in the conference.
    Senator Feingold. I will certainly do it within 25--no, I 
won't be--
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Hatch. You will be on my list, is all I can say, 
if you do that.
    I expected Senator Schumer to take longer. He is from New 
York, and he always does take longer, so that is what we 
    Chairman Hatch. Senator Feingold.
    Senator Feingold. Welcome and congratulations on your 
nomination. I would like to first thank you for your service 
and particularly time you have spent during the last 2 years as 
U.S. Attorney for the Southern District of New York. We know 
that the Southern District has had a critical role in 
investigating and prosecuting terrorism cases, both before and 
after September 11th, 2001.
    I would like to use my time to ask you about how you would 
use your experiences to guide you in your new role and about 
your plans to lead the Department on certain issues. The first 
has to do with the U.S.S. Cole investigation. I would like to 
begin by asking you about that incident which took place in 
October 2000 and resulted in the death of 17 crew members, 
including one of my constituents from Fond du Lac, Wisconsin.
    I understand that you and your office had a central role in 
the investigation and resulting indictments in that case. So 
like most Americans I was surprised to learn that on April 
11th, 2003, 10 men, including men suspected of involvement in 
the Cole bombing, escaped from a prison building in Yemen. One 
month later on May 15th, the Justice Department unveiled a 51-
count indictment against two of the escapees, Jamal al-Badawi, 
and Fahd al-Quso, who were indicted on various terrorism 
    I am very troubled that these people were able to escape, 
particularly when there was an active Federal investigation 
under way resulting in indictments of two of the escapees. As 
the U.S. Attorney in charge of this investigation, can you tell 
me what happened and what steps have been taken to ensure that 
the suspects would not be able to escape?
    Mr. Comey. Certainly, Senator. That U.S.S. Cole is one of 
those that I am most proud to have been involved in. My deputy, 
Deputy United States Attorney David Kelley went to Yemen on 
that terrible October day within 24 hours to help the FBI 
investigate, and has spent years working with the families, I'm 
sure including the family of your constituent, to see that 
these thus were brought to justice. Because the matter is 
pending in my Court, I'll try to be a little more careful what 
I would say with a case that was concluded. But what I can tell 
you is that FBI and my office are working very hard on that 
continuing investigation, also investigating what happened in 
    As you know, the men you're talking about were in the 
custody of the Yemeni authorities, not in United States 
custody, and our handling of the case involved close 
coordination with the Yemeni authorities. All I can tell you at 
this point is it's something we take very, very seriously. 
There is nothing that I would want more--the families feel it 
more than anyone--but to have these people back in custody. 
It's a great frustration for us that they escaped. I'm not in a 
position to report what the results of that investigation are 
yet. It's not done. But it's something that we take hugely 
seriously, Senator.
    Senator Feingold. I thank you for that. I have made every 
conceivable effort to find out what happened in any setting 
that was available to me, and if there is something new to tell 
me in some other setting, I would really like to know how this 
could have happened. So I will have my staff contact you, but I 
still have heard nothing that gives me any clue about how this 
could have happened.
    Press reports have suggested that the prison where these 10 
were held was not an ordinary prison, but instead a, quote, 
``political security prison,'' unquote. Did you take steps to 
determine the security of the prison where the suspects were 
behind held?
    Mr. Comey. I did not, Senator, and I don't know what was 
done in that regard by the FBI. I don't. I can't say at this 
    Senator Feingold. According to the indictment, al-Badawi 
was recruited by members of Osama bin Laden's inner circle. 
Since he was known as a senior Al-Qaeda operative, what steps 
were taken to monitor the facility where he was held?
    Mr. Comey. I don't know the answer to that, Senator.
    Senator Feingold. Well, I thank you for your attempt to 
respond. I just conclude by saying that I certainly hope this 
situation is not standard practice for the Justice Department 
or other Federal agencies in any case, let alone a case where 
close associates of Osama bin Laden are actually in custody. It 
is almost incredible to me. I hope it is not representative of 
the level of attention the administration is giving important 
terrorism investigations requiring international cooperation, 
but I do appreciate your willingness to try to pursue this.
    Let me switch to a different subject. In June the Justice 
Department Civil Rights Division issued guidance to Federal law 
enforcement agencies banning racial profiling. I was very 
pleased to see the Department finally take a concrete step to 
address racial profiling, but in my view it still falls short 
of the pledge made by President Bush in 2001 to end racial 
profiling in America. For example, it does not apply to State 
and local law enforcement, but the guidance does largely adopt 
the definition of racial profiling that is contained in 
legislation introduced by myself and Representative Conyers 
last Congress, and that we hope to reintroduce again. This is a 
priority issue for me and many members of the House and Senate. 
I understand that one responsibility of the Deputy Attorney 
General is to ensure that all components of the Justice 
Department implement Department policies. If confirmed, what 
will you do to ensure that the FBI and other components of the 
Department comply with the Department's guidance banning racial 
    Mr. Comey. Thank you, Senator. There is to me, nothing in 
law enforcement that is more wrong and dumber than racial 
profiling. It is morally wrong, morally offensives, and as I 
think a very forward-looking law enforcement leader, Ray Kelly, 
the Police Commissioner of New York, with whom I work very 
closely, explained to his troops when he was Customs, it's also 
dumb because you miss the bad guys. You not only abuse innocent 
folks, you miss the bad guys.
    So it's something that I am committed and I know this 
Department is committed to ending. I, like you, think that the 
guidance that was put out is terrific. As you said, it doesn't 
apply to the States. I certainly know though that we as Feds 
serve as a role model to so many State and local law 
enforcement organizations, that they look to us to set the 
standard, so I think that that's a terrific step forward, that 
we've set that gold standard. I would expect that as Deputy 
Attorney General I would ensure, that as with other very 
important policies of the Department of Justice, those who 
violate it are subject to the normal sanctions of--that happen 
in their employment when they violate any important policy.
    I don't know enough at this point to say what the range of 
sanctions would be, but it's, it's not something that's on the 
book just for show. It's a real thing for me and for the men 
and women of law enforcement.
    Senator Feingold. I like your wrong and dumber 
characterization, because I do this in the spirit of tremendous 
respect for law enforcement people who I know do not think this 
is a good practice and do not want to be associated with the 
practice, so I appreciate that.
    As you may know, President Clinton issued an Executive 
Memorandum in 1999 directing Federal law enforcement agencies 
to collect data on stops and searches and directing the 
Attorney General to compile and analyze this data. In early 
2001 President Bush essentially committed to continuing this 
directive. President Bush pledged to end racial profiling and 
directed the Attorney General to, quote, ``Develop methods or 
mechanisms to collect any relevant data from Federal law 
enforcement agencies,'' unquote. A few days later the Attorney 
General announced that he would direct the Deputy Attorney 
General to implement the President's directive, including 
reviewing the nature and the extent of racial profiling by 
Federal law enforcement agencies.
    I understand the data has been collected by Federal law 
enforcement agencies and transmitted to the Attorney General. 
The Attorney General has not yet issued a report on the results 
of the data collection effort. If confirmed, will you commit to 
providing Congress with a report on the data collected by 
Federal law enforcement agencies pursuant to these presidential 
    Mr. Comey. Senator, as I said, I am committed, as you are 
and I think all right-thinking people are, to ending racial 
profiling in this country, and it's certainly something that I 
know that my predecessor, Larry Thompson, the Deputy Attorney 
General, with whom I have had such close association, shared a 
passion for that. I commit to you that it is something that I 
will pursue very, very aggressively. I'm not familiar with the 
particular data collection that you've mentioned, but it's 
something that I will follow up on, and that you can rest 
assured that I will dedicate myself to following up on 
eradicating racial profiling and making sure that we're doing 
    Senator Feingold. Well, obviously, this hearing shows you 
are going to have an awful lot to do, and I know you are going 
to have to get up to speed, but I think a very reasonable time 
for you to report to Congress on this Federal data collection 
effort would be within 6 months of assuming your new position. 
Will you commit to providing this report to Congress within 6 
months of your confirmation?
    Mr. Comey. Senator, I will commit to following up on it. I 
don't know whether if it committed to that I would horrify 
people sitting behind me. That sounds like plenty of time--
    Senator Feingold. They look okay.
    Mr. Comey. Okay.
    Mr. Comey. I don't mean my children, although they must 
have all left me.
    Mr. Comey. I can assure you, Senator, that I will look into 
it, and if that is feasible, if that is possible, I will commit 
to that.
    Senator Feingold. Will you commit to continued collection 
of data on stops and searches by Federal law enforcement 
agencies to allow the Department to monitor whether agencies 
are in compliance with the guidance banning racial profiling?
    Mr. Comey. I would assume, Senator, that that's what my 
predecessor directed law enforcement agencies to do, that's 
something we would want to continue. I sit here not knowing 
enough to be able to say whether it's a good idea or a bad idea 
to continue collecting the data, depending on what the first 
set of data show. My mind is completely open on that. My head 
is largely empty on the details, but my mind is open.
    Senator Feingold. Well, both President Bush and President 
Clinton recognized data collection as a valuable tool. It 
allows management to determine whether an agency or individual 
officers are engaging in racial profiling. I think it goes 
directly to your characterization of racial profiling as being 
wrong and dumber, and this is a way to monitor whether it is 
happening or not. There should be some mechanism to monitor 
progress and determine if goals have been met. If you are not 
relying on data collection, I guess I would ask you how would 
you plan to monitor whether DOJ components and other Federal 
agencies are in compliance with the DOJ guidance banning racial 
profiling? How would you do it if you didn't have this?
    Mr. Comey. I don't know, Senator. Logic tells me that the 
way you suggest is the way to do it, but it is something that I 
will study and figure out.
    Senator Feingold. I thank you, Mr. Chairman. I will reserve 
the other 15 minutes for the next hearing.
    Chairman Hatch. You are always a gentleman, and I 
appreciate it very much.
    Now, the Committee, in closing this, has received several 
significant letters of support for Mr. Comey's nomination. 
Specifically, we have received letters from the National 
District Attorney's Association, the Fraternal Order of Police 
and the National Sheriff's Association, all in support of your 
    Significantly, we received a lengthy letter of support from 
Helen Fahey, who served as U.S. Attorney for the Eastern 
District of Virginia from 1993 to 2001 under the Clinton 
administration. She is very familiar with Mr. Comey's work as 
the Managing Assistant U.S. Attorney and Criminal Division 
Supervisor in the Richmond, Virginia office. Now, she concludes 
in her letter--and I will just read this one rather lengthy 
paragraph out of a really lengthy letter.
    ``Mr. Comey is intelligent, articulate and possessed of an 
outstanding legal mind. He will bring to the position of Deputy 
Attorney General years of Federal prosecution, experiences 
covering a wide range of cases from violent crime to white 
collar to terrorism. I consider Mr. Comey a friend and one of 
the most competent attorneys I have had the pleasure to work 
with in more than 25 years. He is respected, admired and 
genuinely liked by all who have worked with him, and I cannot 
think of anyone more qualified to serve as Deputy Attorney 
General of the United States.''
    That is a great letter of support, and I am very grateful 
to have received it, and I am sure you are as well.
    Now, with regard to the sentencing issue that was raised, 
actually there is no such thing as a Feeney amendment. That was 
modified and modified way down by the Hatch-Sensenbrenner 
amendment, and admittedly, the Chief Justice was upset about 
the Feeney amendment, but I have never heard any upset about 
the Hatch-Sensenbrenner amendment, which limit it in very 
specific ways.
    But just to cover that issue for Senator Kennedy and 
others, Senator Sessions is going to hold a Sentencing 
Commission hearing in November, and I am hopeful that the 
Senate schedule will permit that hearing.
    Finally, on this issue of leakers, I have every reason to 
believe that Mr. Dion is totally competent and capable of 
taking care of this matter. He is a career, long-term career 
employee, who has always had an impeccable reputation for 
honesty and decency. Clearly identifying the person who 
released the employee's name may be difficult, as it always is. 
I think my colleagues should recall that former Attorney 
General Reno, in June 2000 testimony before the Senate 
Intelligence Committee, upon which I sit also, told us that the 
pool of potential leakers in any administration often is 
extremely large, she said She goes on to say, quote, ``Almost 
inevitably''--this is Janet Reno, by the way, who was the 
Attorney General in the Clinton administration, quote--``Almost 
inevitably we find that the universe of individuals with 
authorized access to the disclosed information is so large as 
to render impracticable further efforts to identify the 
leaker,'' unquote.
    Attorney General Reno went on to say, quote, ``Almost all 
leak investigations are closed without having identified a 
    The best known example of how hard it is to identify those 
who leak information is that it has been some 30 years since 
someone identified only as, ``Deep Throat,'' passed information 
to reporters, and despite attempts by scores of individuals who 
tried to find out who that individual is, we still do not know 
who that person is. So when I say good luck, it is not just 
with tongue in cheek, although in this case it was, because it 
is going to be very difficult, and all administrations have 
leaked, and we can even name some of the great leakers of the 
past in both Democrat and Republican administrations.
    But whoever did leak this matter was wrong and committed a 
criminal act apparently. So I am sure you are going to be asked 
to do your very best to try and locate that, as is the FBI and 
other law enforcement people, but to try and make a major 
political event out of this I think may be pushing the envelope 
just a little bit.
    So let me just say this, Mr. Comey, you are really an 
impressive person. Your family is impressive. Your record is 
impressive. I have no doubt you are an honest, decent, 
honorable man, and that you will do this job very, very well, 
and I intend to work closely with you and to help you every 
step of the way, and when you think we could help you more than 
we are, I would like you to be sure to use the open door that I 
will always for you and let me know what we can do better, 
because we will work together for the best interest of our 
country and the best interest of safety and protection for our 
American people.
    But this is an important position, one of the most 
important in Government, and I commend you for being willing to 
take this position and to continue your life in public 
services. It is a disadvantage in many ways to your family 
because this is not an 8-hour-a-day job, this is 18 hours a 
day, and as you know, Larry Thompson was worn out because he 
had just worked himself to death, as virtually every Deputy 
    So I just want to apologize, to let your family know this, 
that I might as well your good wife know this in advance. But 
if anybody can do this job well, it is you.
    So with that, we are going to recess until further notice. 
And we will get you up as soon as we can. We will put you on 
not tomorrow's, but next Thursday's markup, and hopefully they 
will not put you over for a week. We will get you passed out 
down on the floor and get you confirmed before we recess for 
this session of Congress.
    Mr. Comey. Thank you, Senator.
    Chairman Hatch. That is as it should be, and I hope 
everybody will cooperate in getting that done.
    Thank you for being here, thanks to your family. We are 
proud of you, and with that we will recess until further 
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record