[Senate Hearing 112-]
[From the U.S. Government Publishing Office]
COMMERCE, JUSTICE, SCIENCE, AND RELATED AGENCIES APPROPRIATIONS FOR
FISCAL YEAR 2013
----------
THURSDAY, MARCH 8, 2012
U.S. Senate,
Subcommittee of the Committee on Appropriations,
Washington, DC.
The subcommittee met at 10:01 a.m., in room SD-124, Dirksen
Senate Office Building, Hon. Barbara Mikulski (chairman)
presiding.
Present: Senators Mikulski, Leahy, Feinstein, Lautenberg,
Pryor, Brown, Hutchison, Shelby, Alexander, Murkowski, and
Graham.
DEPARTMENT OF JUSTICE
Office of the Attorney General
STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL
OPENING STATEMENT OF SENATOR BARBARA A. MIKULSKI
Senator Mikulski. Good morning, everybody. The Commerce,
Justice, Science, and Related Agencies Appropriations
Subcommittee (CJS) will come to order. This morning, we welcome
the Attorney General of the United States, and as is the usual
and customary way, Senator Hutchison and I will make opening
statements. We'll go to you, Mr. Attorney General, for yours,
and you may summarize. With unanimous consent, all statements
will be included in the record.
Senator Shelby, our colleague and former ranking member on
this subcommittee, has a banking hearing. With Senator
Hutchison's concurrence, we'll go right to Senator Shelby for
the first question.
Senator Hutchison. Okay.
Senator Mikulski. Does that sound okay?
Senator Shelby. Thank you.
Senator Mikulski. And then we will observe Senators in
their order of arrival, and we expect robust participation.
We're going to strictly adhere to the 5-minute rule.
So, having laid the groundwork, I just want to say good
morning and welcome to our first CJS subcommittee hearing, the
Attorney General of the United States, in which we will hear
his presentation on the Department of Justice (DOJ) budget.
We have a very positive relationship with the Attorney
General. He's brought to the Justice Department the experience
of a career prosecutor. He's been dedicated to fighting violent
crime and terrorism. He knows that he is pioneering work now,
working with our administration, on how to deal with the new
and emerging threat of cybersecurity, which is, how do we
protect our citizens, and his views and recommendations on
protecting our civil liberties.
Well, Mr. Attorney General, before we get into the numbers
and the money, I would just like to thank you, and in thanking
you, I want to thank all the hardworking men and women who do
work at DOJ. There are 116,000 employees who work there; 25,000
are Federal agents, and people work at the Federal Bureau of
Investigation (FBI), Drug Enforcement Administration (DEA), the
U.S. Marshals Service (USMS), and the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF). We have 20,000 prison
guards and correctional staff, and 10,000 prosecutors and
investigators. They've had some amazing accomplishments, which
I'll talk about when I get to my question period.
But we want to thank them, because every day and every way,
they stand sentry, either to do prevention and intervention, to
make sure they are out on the street, doing traditional violent
crime work, to really being all over the world, and then
fighting issues related to white collar crime.
As the chair of the CJS Subcommittee, I have three
priorities when examining the budget: communities security, how
does the budget support the mission of keeping our communities
safe; national security, what resources are needed to keep
America safe; and then, oversight and accountability. No
boondoggles on the watch of this subcommittee. And I want to
make sure the Justice Department has what it needs to do its
mission.
As I looked at the President's budget, I noted that there
was only one new initiative, and that's the expansion of
mortgage and financial fraud. That request is $611 million. It
is a modest $5 million targeted increase, and we are going to
want to hear more about that. Because we, in our own State of
Maryland, have seen such a rising number of scams, and schemes,
and predatory lending practices, and we need to know what you
want to do with the money.
We can't have a strong, economically vibrant community
unless they're safe, whether it's in our neighborhoods, whether
it's protecting small business on Main Street. So, I want to
know how the budget will keep America safe at home on Main
Street.
The request for $2 billion for grants to State and local
law enforcement, I wonder if it's sufficient. This is $32
million less than the 2012, and we might have to consider, you
know, reorganizing priorities. The State and local funding
seems to have borne the brunt of budget cuts. Since 2010,
grants have been cut by $1 billion in local funding. Now, part
of this was the axe and acts of the Congress itself.
Many of my colleagues don't realize that cuts have
consequences in discretionary spending. So, we need to hear
your view on what we can do. We know the Government
Accountability Office (GAO) has recommended that you should
conduct a review and eliminate unnecessary duplication. We
support that.
We also want to work in community security at the
protecting of our children. One of the areas of bipartisan
support is in the money to catch predators who use the Internet
to stalk children, break up children's pornography rings, and
track down and arrest these child molesters. We understand you
are requesting $328 million, and we'll look forward to seeing
how you will allocate that, and what to do.
The Southwest Border--my colleague, Senator Hutchison, has
worked assiduously in that area. I want to know that this is
not only bipartisan support--we think it ought to be
nonpartisan to support our border, and I'll let her raise those
questions in there.
In the area of cyberthreats, our Nation faces a growing and
pervasive threat overseas, from hackers, cyberspies, and
cyberterrorists. We need safe and resilient networks. We worry
about online banking and commerce, the safety of our power
grids, air traffic control systems, digitized records.
Yesterday, with the administration, the Senate held a cyber
exercise. The majority of the Senators were there to listen to
an exercise on an attack on a major city's power grid. It was
chilling. It was terrifying to know what happened there, and
what we could do to protect it. So, we need to know about
cyber.
PREPARED STATEMENT
Finally, I want to know how the Justice Department is
improving its accountability to taxpayers. You know, you've
gotten a bad rap--some of them, about lavish banquets, cost
overruns, the Inspector General doing its audits--and it
should. So, we want to know how we stand sentry over the money
we do spend.
We have very specific questions, but with the number of
people here, I'm shortening my statement.
[The statement follows:]
Prepared Statement of Senator Barbara A. Mikulski
Good morning and welcome to our first Commerce, Justice, Science,
and Related Agencies (CJS) Subcommittee hearing. We begin our
examination of the President's fiscal year 2013 budget by welcoming
Attorney General Eric H. Holder, Jr.
Today, we'll discuss how the Justice Department's fiscal year 2013
budget request strengthens national security and counter terrorism;
protects the safety, security, and rights of U.S. citizens; and ensures
taxpayer dollars are used wisely.
We have a very positive relationship with Attorney General Holder.
He has brought to the Justice Department the experience of a career
prosecutor dedicated to protecting the American people from terrorism
and violent crime. Welcome back, Attorney General Holder, and thank you
for joining us today.
I want to begin today's hearing by thanking all of the hardworking
men and women of the Justice Department's 119,000 civil servants:
--the 25,000 Federal agents of the Federal Bureau of investigation
(FBI);
--Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF);
--the Drug Enforcement Agency (DEA);
--the U.S. Marshals Service (USMS)--and the people who support those
agents;
--the 20,000 prison guards and correctional staff; and
--the 10,000 prosecutors, investigators, and legal experts.
They've had some amazing accomplishments during the last year. USMS
arrested more than 12,000 fugitive sex offenders. DEA agents put more
than 3,000 drug traffickers out of business. FBI dismantled 366
criminal enterprises involved in white collar crimes. U.S. Attorneys
collected $6.5 billion in criminal and civil penalties.
They are the guardians of our justice system, but they are often
overlooked and undervalued. I want them to know that the CJS
Subcommittee knows and appreciates what they do every day.
The President's fiscal year 2013 budget request for the Department
of Justice (DOJ) totals $27.1 billion, which is $110 million less than
the fiscal year 2012 level. The budget request also includes $368
million in cuts to prior year funding for core Federal law enforcement
functions and grants. This year's budget also relies more heavily than
ever on payments into the Crime Victims Fund, which will finance 30
percent of the Department's operating budget in fiscal year 2013. The
request reflects the stringent reality of our times.
As chairwoman of the CJS Subcommittee, I have three priorities when
examining the budget for the Justice Department. The first is community
security. How does the budget support the mission of keeping our
communities safe? The second is national security. What resources are
needed to keep America safe from terrorism? And finally, oversight and
accountability. Are tax dollars being spent wisely?
I want to make sure that the DOJ has what it needs to uphold the
rule of law and to protect this country from predatory attacks.
There is only one new initiative in the Department's budget request
this year--an expansion of mortgage and financial fraud task forces.
Our economy depends on the integrity of our financial markets. Our
neighborhoods and communities have been rattled by mortgage fraud
schemes and scams.
The budget request includes $611 million to fight mortgage and
financial fraud, including a modest $55 million targeted increase to
hire new FBI agents, new attorneys, new specialized support staff, and
new forensic accountants and in-house investigators. This will also be
used to combat financial and mortgage fraud, going after the schemers
and scammers who prey on hardworking families and destabilize
neighborhoods.
We can't have strong, economically vibrant communities unless they
are safe. So I want to know how the budget request keeps Americans safe
here at home. The request is $2 billion for grants to State and local
law enforcement. This is $32 million less than fiscal year 2012.
State and local funding has borne the brunt of budget cuts. Since
2010, grants have been cut by $1.5 billion, or 43 percent. This is a
time when we must be frugal. Tough choices have to be made. The CJS
Subcommittee is committed to making sure our police are not walking a
thin blue line. We need to know which grants are truly most effective
and which programs we need to take a closer look at before reinvesting
American taxpayers' dollars in them.
A recent Government Accountability Office report recommended that
the Attorney General should conduct an assessment to better understand
which grant programs overlap with one another to prevent unnecessary
duplication. I think that is an excellent recommendation, and I
encourage the Attorney General to complete this analysis.
I know how committed the Attorney General is to keeping children
safe from abuse, sexual predators, and cyber stalkers. The budget
request includes $328 million to catch predators who use the Internet
to stalk children, break up child pornography and prostitution rings,
and track down, arrest, and prosecute child molesters.
The FBI and USMS have crucial roles. FBI's Innocent Images
initiative targets sexual predators who use the Internet to distribute
child pornography. USMS are charged with tracking down and arresting an
estimated 100,000 unregistered sex offenders.
The Adam Walsh Act called for 500 new Deputy U.S. Marshals to carry
out this mission. But since 2010, we've been able to prevent furloughs
and layoffs, but we've been in a holding pattern of 160 new Marshals. I
want to make sure we're putting the right resources in the right places
to protect children from these despicable predators.
The Department's budget request includes more than $1.8 billion for
Federal law enforcement efforts, including the DEA, ATF, FBI, and USMS,
to dismantle drug cartels that smuggle illegal drugs, guns, and humans
along the border, and terrorize citizens and neighborhoods with fear
and intimidation.
Drug trafficking-related homicides in Mexico continue climbing.
There were a sickening 12,100 murders in Mexico last year, up 86
percent since 2009. We are very concerned about spillover violence. I
want to know if the funds requested are sufficient to shut down the
flow of firearms into Mexico, and to stop drugs and violence from
coming into the United States from Mexico.
Our Nation faces a growing and pervasive threat overseas from
hackers, cyber spies, and cyber terrorists. We need safe and resilient
networks to protect our online banking and commerce, electrical and
power grids, air traffic control systems, and digitalized records.
At the Justice Department, more than 1,500 personnel are working to
prevent a broad range of cyber threats, such as computer intrusions,
Internet fraud, intellectual property theft, and online child
pornography; and to identify the perpetrators.
The FBI is tasked with the most urgent cyber security
responsibilities. They are on the front lines collecting intelligence
and investigating computer intrusions that threaten our critical
technology infrastructure. We will hear more details about this next
week, when FBI Director Robert S. Mueller, III testifies before this
subcommittee. But I want to know what you see as the Justice
Department's role as a key guardian of our Nation's cyber security.
Finally, I want to know how the Justice Department is improving
accountability of taxpayer dollars so that every $1 spent to secure our
communities is $1 well-spent. The subcommittee has taken steps to
prevent waste, fraud, and abuse; prohibit funds for lavish banquets;
control cost overruns; and require the Inspector General to do random
audits of grantees. I want to know what concrete steps you have taken
to put these guidelines into practice and give teeth to make sure they
are followed.
Given all of the Justice Department's important roles and
responsibilities, we must ensure that it has the resources it needs to
protect the lives of 330 million Americans. But we also want to make
sure the Justice Department is a good steward of taxpayer dollars and
makes sure every $1 we spend to keep our Nation safe is $1 well spent.
I thank Attorney General Holder for his leadership, and I look
forward to continuing our work together making a safer, stronger
America.
Senator Mikulski. I'm going to turn now to Senator
Hutchison, and then to you.
STATEMENT OF SENATOR KAY BAILEY HUTCHISON
Senator Hutchison. Well, thank you, Madam Chairman, very
much, not only for the deference on border security, where I
live, but also on the way you run this subcommittee, which is
for us to do what's right for America.
Mr. Attorney General, I do want to address some of the
areas of border security. First of all, State Criminal Alien
Assistance Program (SCAAP) funding is something that continues
to be shortchanged by your budgets, and SCAAP, of course, is
the reimbursement for local counties that incarcerate illegal
alien prisoners. And along the border, our counties are
generally very poor and don't have those kinds of resources,
and each year, you continue to not fund.
We did put the money back in last year, $240 million, but I
would hope that you would support increasing that, as we go
through this process, because we must incarcerate these illegal
alien criminals, who are mostly in the drug cartel and
operations, so that this will not be borne by the counties on
the border.
In response to Operation Fast and Furious, language was
included in last year's bill that would prohibit Federal law
enforcement agencies from selling operable weapons to cartels.
This request that you're giving us removes that language,
saying it's unnecessary. Mr. Attorney General, we just want to
make positively sure that what happened does not happen again,
and I would hope that you would support our insertion of that
language again.
Last year, our Commerce, Justice, Science, and Related
Agencies bill provided $10 million to expand the capacity at
the overcrowded El Paso Intelligence Center (EPIC). And this is
critical for our Southwest Border information sharing, and is
the border's focal point to help stop the flow of narcotics,
combat illegal immigration, and end human trafficking and
firearms smuggling.
It is imperative that EPIC and the DEA take full advantage
of the resources available from DOJ agencies like the FBI,
USMS, and ATF. And I hope that you can give us an update on the
status of this funding and the project.
There have been reports that cartels across the border are
attempting to recruit college students to smuggle drugs into
the country, and it says that minors are more appealing,
because criminal penalties are lighter for them. One of the
good parts of your budget request is $312 million for juvenile
justice prevention programs. I will be interested in hearing if
you are aware of these border threats to our youth, and if some
of that money that you are requesting could be put on the
border to try to make sure that we try to help our youth
overcome the cartel overtures.
The VALOR program, the Violence Against Law Enforcement and
Ensuring Officer Resilience and Survivability, is one that I
applaud your efforts to put in place. And unfortunately, the
number of Federal, State, and local officers who died in the
line of duty in America last year increased, from 153 to 173.
The feedback from the training and research being conducted
through VALOR is very positive, including the alert center at
Texas State University, which was credited by the two officers
who came into Fort Hood when Major Nidal Hasan started shooting
unarmed military people. Both of those officers survived, even
though Sergeant Munley was shot several times. But they both
credited their swift response that day to the alert active
shooter training program that they had received. So, that's
something that's very good that I applaud in your budget.
I want to state a concern that I have about the National
Park Service pushing for construction, which is in progress, on
an unmanned border crossing at the Big Bend National Park, in
south Texas. This is not a DOJ decision, but it is going to
affect some of the personnel, and I'm concerned that this is an
area where illegal immigrants can walk across. The water is
knee deep, and you can walk right across the river, and into
Big Bend, and having an unmanned border crossing, I think, is
insufficient. So, we're going to talk about that at some point
to see if we can get FBI, DEA, ATF, Border Patrol, somebody to
man a place like that, where it is so vulnerable.
And last, but not least, Attorney General Holder, I'm going
to ask you some questions about your public integrity unit. I'm
going to give you full credit for dismissing the case against
the late Senator Ted Stevens when you learned of the corruption
within that division of your Department. I'm going to ask you
questions, because the report will be public within days, and
if there's anything that you should take as your major
responsibility, it is that the public corruption unit and DOJ
is fair and evenhanded, and, clearly, that was not the case in
the prosecution of a great friend to many of us, and a great
patriot for our country, who, unfortunately, was very badly
abused by the DOJ.
But, I will say, you did dismiss the case when you learned
of the misbehavior, and I gave you credit on the Senate floor
for doing that, and will again, but I do want to ask you about
the report when we have time to ask questions.
Thank you.
Senator Mikulski. Mr. Attorney General.
SUMMARY STATEMENT OF ERIC H. HOLDER, JR.
Attorney General Holder. Thank you. Chairwoman Mikulski,
Ranking Member Hutchison, other distinguished members of the
subcommittee. I want to thank you very much for the opportunity
to appear before you today and for your continued support of
the Justice Department's critical work.
I look forward to discussing the President's fiscal year
2013 budget for the Department and how these investments would
be used to build on what I think is our extraordinary record of
success.
The President's budget proposal demonstrates a clear
commitment to advancing the Department's core missions and
augmenting our ability to fulfill our most important
obligation, and that is protecting the American people. Despite
the significant fiscal constraints the Federal Government has
faced in recent years, the 116,000 dedicated employees who
serve in the Department offices around the world have made
significant, and in many cases, historic progress in
safeguarding our citizens from terrorism, from violent crime,
from financial fraud, and from a range of threats that often
disproportionately threaten the most vulnerable members of our
society.
We've also proven our commitment to acting as sound
stewards of precious taxpayer dollars. As you can see in the
most recent budget request, proposed spending increases have
been exceeded by proposed cuts. In fact, as a result of
numerous steps taken to streamline operations, almost $700
million worth of savings have been developed and reinvested in
critical mission areas. I believe that the Department is
perhaps more efficient and more effective than ever before.
Our recent achievements underscore this point, especially
when you consider our national security efforts. By continuing
to work collaboratively alongside U.S. and international
partners, we have identified and disrupted numerous alleged
terrorist plots, including one by two Iranian nationals to
assassinate the Saudi Ambassador to the United States. We have
thwarted multiple plots devised by homegrown extremists, and we
have secured convictions and robust sentences against a number
of dangerous terrorists.
In October, the Department obtained a guilty plea from Umar
Farouk Abdulmutallab for his role in the attempted bombing of
an airplane on Christmas Day in 2009. Just last month,
Abdulmutallab was sentenced to four life terms in prison. In
November, we secured the conviction of Viktor Bout, a notorious
arms dealer who sold millions of dollars in weapons for use in
killing Americans. In December, Waad Ramadan Alwan pleaded
guilty to 23 charges, including conspiracy to use a weapon of
mass destruction against U.S. nationals abroad, attempting to
provide material support to al Qaeda in Iraq, and conspiracy to
transfer, possess, and export explosive devices against United
States troops in Iraq.
The list goes on and on. With the sustained and increased
investments included in the President's budget for the
comprehensive national cybersecurity initiative, the high-value
detainee interrogation group, the joint terrorism task forces,
the Render Safe program, and other key national security
efforts, the Department will be able to strengthen our critical
surveillance and intelligence gathering capabilities.
It will also allow us to bring our fight against financial
fraud to a new level. On Monday, as many of you know, President
Obama issued a proclamation to mark the beginning of this
year's Consumer Fraud Protection Week, and I'm proud to note
that the Justice Department's Consumer Protection Branch has
established a record of success in defending the interests of
American consumers that is worth celebrating and will be
expanded upon.
In 2011 alone, our Consumer Protection Branch attained a
95-percent conviction rate, recovered more than $900 million in
criminal and civil fines, restitution, and penalties, and
obtained sentences totaling more than 125 years of imprisonment
against more than 30 individuals. This represents remarkable
and unprecedented progress, but it really is only the
beginning. In fact, since the start of the administration, the
Justice Department has signaled an unwavering commitment to
combating and preventing a wide range of financial and
healthcare fraud crimes, and we've taken bold steps to address
the causes and the consequences of the recent economic crisis.
Through the efforts of the President's financial fraud
enforcement task force, which was launched in 2009, and which
I'm proud to chair, charges have been brought against numerous
CEOs, CFOs, corporate owners, board members, presidents,
general counsels, and other executives of Wall Street firms,
hedge funds, and banks who have engaged in fraudulent activity.
In recent months, we have obtained prison sentences of up
to 60 years in a variety of fraud cases, including multi-
million-dollar Ponzi schemes, and the largest hedge fund
insider trading case in U.S. history.
Just this week, we secured a conviction against the former
board of directors' chairman for an international bank for
orchestrating a $7 billion investment fraud scheme. The task
force has established two new working groups: the Consumer
Protection Working Group, which will enhance civil and criminal
enforcement of consumer fraud, and the Residential Mortgage-
Backed Securities (RMBS) Working Group, which bring Federal and
State partners together to investigate and to prosecute abuses
in our housing markets. Both will help to amplify existing
efforts, and to foster cooperation and collaboration in the
Department's response to these problems.
Just a few weeks ago, a similar collaborative approach led
the Departments of Justice and Housing and Urban Development,
as well as other agencies, and 49 State attorneys general to
achieve a landmark $25 billion settlement with the Nation's top
five mortgage servicers, the largest joint Federal and State
settlement in our Nation's history.
Although this will not, on its own, cure all that ails our
housing market, this agreement builds on the record fair
lending settlement obtained by the Civil Rights Division's fair
lending unit last year, and will provide substantial relief to
homeowners. It also provides a blueprint for future
collaboration across levels of government, State borders, and
party lines.
There is perhaps no better illustration of our recent
progress than the Department's groundbreaking work to combat
healthcare fraud. Over the last fiscal year alone, in
cooperation with the Department of Health and Human Services,
as well as other partners, by utilizing authorities provided
under the False Claims Act and other essential statutes, we
were able to recover nearly $4.1 billion in funds that were
stolen or taken improperly from Federal healthcare programs.
That is the highest amount ever recorded in a single year.
Over the same period, we opened more than 1,100 new
criminal healthcare fraud investigations, secured more than 700
convictions, and initiated nearly 1,000 new civil healthcare
fraud investigations. For every $1 that we have spent combating
healthcare fraud, we have returned, on average, about $7 to the
United States Treasury, the Medicare Trust Fund, and others.
These numbers are stunning, but my colleagues and I
recognize that we cannot be satisfied, and this is no time to
become complacent. That's why in addition to helping us build
on this record of success, the President's budget request also
would bolster our fight against drug trafficking, international
crime networks, gangs, and cyber criminals. It would increase
our efforts to protect the law enforcement officers who keep us
safe, and expand upon the work being done by our Civil Rights
Division to guarantee that the rights of all Americans are
protected in border areas, workplaces, housing markets, and
voting booths.
PREPARED STATEMENT
I am committed to building on these and our other many
achievements, and I know that you understand that in this time
of uncommon threats and complex challenges, we simply cannot
afford to cut back on the amount and the quality of justice
that we are obligated to deliver. The Department must remain
vigilant in protecting this Nation and in enforcing the law,
and these efforts must be appropriately and adequately funded.
I look forward to continuing to work with the members of
this subcommittee and your colleagues throughout the Congress
to accomplish this, and I would be happy to answer any
questions that you might have.
Senator Mikulski. Thank you, Mr. Attorney General. And your
full statement will be entered into the record.
[The statement follows:]
Prepared Statement of Eric H. Holder, Jr.
Good morning Chairwoman Mikulski, Ranking Member Hutchison, and
members of the subcommittee. Thank you for the opportunity to meet with
you today to discuss the President's fiscal year 2013 budget for the
Department of Justice (DOJ) and the Department's key priorities.
I also appreciate the opportunity to tell you more about the good
work that is being done by DOJ employees across the United States and
overseas to protect all of our citizens from harm and to ensure equal
protection under the law, in order to promote ``liberty and justice for
all.''
The President has emphasized his goal to stabilize the economy by
creating new jobs and reducing our national debt through greater
revenue generation and spending cuts. To assist in the economic
recovery, we continue to ask even more from our talented DOJ personnel.
This is as true in DOJ as it is in the rest of the Federal Government.
The President has asked DOJ to do more with less, recognizing that
many across the country are still suffering; I am committed to
presenting the Congress with a serious and thoughtful budget, which
clearly reflects this awareness, and allows us the resources to
faithfully carry out DOJ's mission and fulfill our obligation to the
American people.
Upon careful examination of our mission and the range of the
priorities I will present here we cannot simply ``cut back'' on the
extent or quality of justice that we are obliged to deliver; we cannot
cease to enforce the law. We cannot ignore an indictment, or choose at
the end of the process not to imprison a criminal, if sentenced. We are
responsible for enforcing the law, and these efforts must be funded.
What we can and must do, however, is examine the way we do our
work, and find better ways to continue to do it well. In response to my
call for savings across DOJ, my staff developed almost $700 million
worth of budget offsets, so that we can reinvest that money and protect
DOJ's core mission and priorities. In presenting DOJ's fiscal year 2013
budget, we have aligned the entire amount to pay for high-priority,
mission-related needs. Specifically, we have proposed $228 million in
program increases. Our overall discretionary budget authority is
reduced from $27.2 billion in fiscal year 2012 to $27.1 billion in our
fiscal year 2013 request.
In this fiscal year 2013 budget, we have proposed changes in
operational accounts, as well as leadership offices. We have used
balances from prior years that were left on the books to offset this
year's costs, and we tried to find less expensive ways to accomplish
the same outcome.
Each of our proposed reorganizations and realignments has been
developed with one goal in mind, to save taxpayers money, while
remaining dedicated to our mission to protect our citizens. I can
assure you that none of our reorganizations or realignments will
compromise this fundamental mission; personnel and resources will be
shifted to achieve the same end, to remake DOJ in ways that make us
more responsive to the American people whom we proudly serve.
To be clear, then, we at DOJ recognize that we are accountable to
the American people, to identify and eliminate areas of waste, fraud
and duplication, and also to marshal limited resources for the greatest
return on investment. I have carefully reviewed with my staff DOJ's
fiscal year 2013 budget request, and have directed them to focus
resources on programs that have a measurable impact and demonstrate
success in keeping our citizens safe.
In his fiscal year 2013 budget, President Obama proposes that the
Congress fund the work of DOJ in the amount of $27.1 billion. In this
hearing, I would like to focus on DOJ's work in six critical areas,
namely,
--To sustain our Nation's security interests;
--To uphold DOJ's traditional mission programs;
--To combat financial, mortgage, and healthcare fraud;
--To support our State, local, and tribal law enforcement partners;
--To invest in Federal prisons and enhance detention capacity; and
--To streamline programs and operations across DOJ.
NATIONAL SECURITY
The fiscal year 2013 budget includes a total of $4 billion to
sustain our first priority--DOJ's national security mission. As with
our law enforcement mission, the Department continues to work to build
strong ties with intelligence and security partners around the world,
to protect the American people. At the same time, we are diligent in
protecting U.S. technologies, goods, services, and national security
interests from illegal tampering, malicious manipulation and
acquisition by other countries, in order to maintain our Nation's
competitive edge.
The funding previously enacted, which the fiscal year 2013 budget
maintains, for our national security programs ensures the continuation
of critical investments made to improve intelligence coordination;
expands information sharing efforts with trusted counterparts; secures
our cyber infrastructure; widens investigations of drug trafficking
organizations with ties to terrorist groups; and continues to extend
anti-terrorism training to our law enforcement partners.
In the past year, we were successful in several key national
security investigations. In October, DOJ obtained the conviction
against Umar Farouk Abdulmutallab for his role in the attempted bombing
of an airplane full of holiday travelers on Christmas Day in 2009. He
was sentenced to life in prison earlier this month. Working closely
with our United States and international partners, we thwarted a plot
by two Iranian nationals to assassinate the Saudi Ambassador to the
United States, as well as numerous other suspected plots by homegrown
violent extremists. We also secured the conviction of notorious arms
dealer Viktor Bout for his efforts to sell millions of dollars of
weapons for use in killing Americans. In May of last year, a grand jury
indicted Waad Ramadan Alwan on 23 charges, including conspiracy to use
a weapon of mass destruction against United States nationals abroad;
attempting to provide material support to al Qaeda in Iraq; and
conspiracy to transfer, possess, and export explosive devices against
United States troops in Iraq. In December, Alwan pleaded guilty to all
23 charges.
In the fiscal year 2013 budget, DOJ seeks to maintain critical
counterterrorism and counterintelligence programs, and sustain
significant, recent increases related to intelligence gathering and
surveillance capabilities; detecting and deterring cyber intrusions and
fully supporting cybersecurity through the Comprehensive National
Cybersecurity Initiative. We also look to maintain our investments
supporting the High Value Detainee Interrogation Group; the Joint
Terrorism Task Forces; and the Render Safe Program.
TRADITIONAL MISSION PROGRAMS
In the fiscal year 2013 budget, DOJ seeks increases of $31.8
million in support of programs in DOJ's traditional core mission of
combating violent crime, cybercrime, crimes against children, and
criminal trafficking in persons; and enforcing the Nation's civil
rights and environmental laws.
Criminal Law
In combating organized crime, I announced in January 2011 the
single largest operation against the mafia ever undertaken by the
Federal Bureau of Investigation (FBI), the result of unprecedented
cooperation among Federal, State, local, and foreign law enforcement
personnel. The operation resulted in the arrest of more than 100
suspected mobsters--all without a hitch. In July, we announced the
results of Project Delirium, a Drug Enforcement Administration (DEA)
operation targeting La Familia Michoacana (Mee-shoa-CA-na), a violent
drug cartel and supplier of most of the methamphetamines smuggled into
the United States. Working with other Federal, State, local, and
foreign law enforcement partners, including the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF), DEA oversaw more than 1,900
arrests and the seizure of more than $63 million in U.S. currency; more
than 2,700 pounds of methamphetamine; more than 2,700 kilograms of
cocaine; 900 pounds of heroin; nearly 15,000 pounds of marijuana; and
$3.8 million in other assets. An ATF investigation targeting a gang in
Philadelphia known as the Young Hit Men or Harlem Gang resulted in an
89-count superseding indictment charging 23 members with an array of
Federal violations, including multiple firearms violations. The trial
of these gang members is scheduled for May. And finally, in 2011, the
U.S. Marshals Service (USMS) captured nearly 125,000 fugitives,
including 7 from their ``Fifteen Most Wanted'' list in 2011. This was
the fourth consecutive year that the USMS captured more than 100,000
fugitives. These are only highlights, but, as you can see, it's been a
busy year for DOJ.
Investigating cyber crime and protecting our Nation's critical
network infrastructure is another of DOJ's top priorities. Successful
cyber attacks can have devastating effects on our national security,
infrastructure, and economy; and hackers have been relentless in their
efforts to attack U.S. Government agency Web sites, including ours. In
combating these efforts, we continue to build and strengthen our
capabilities to counter and prevent these attacks. Here again, DOJ
works on a global scale to achieve success, in cooperation with our law
enforcement partners abroad. FBI estimates that Americans lose hundreds
of millions of dollars to cyber criminals based in Eastern Europe
alone. Working closely with the FBI Cyber Division and with our legal
attache personnel in Bucharest, our Romanian counterparts have arrested
more than 300 cyber criminals in the last 3 years. Our efforts to build
relationships with foreign counterparts continue to produce real
dividends. FBI, the DOJ Office of International Affairs, and the
Southern District of New York cooperated closely with the Israeli
National Police and the Israeli Ministry of Justice. Together, we took
down two boiler rooms in Israel that had targeted elderly persons in
the United States in a lottery telemarketing scam, and had swindled
them out of more than $10 million of their hard-earned savings. Thanks
to this cooperation, 24 members of the ring were arrested in Israel and
the United States; and 19 of the 21 have been extradited to the United
States. Most pleaded guilty, and have been sentenced.
In fiscal year 2013, DOJ is requesting an increase of $15.2 million
within the Justice Information Sharing Technology program to transform,
strengthen, and protect DOJ internal networks. This will counter newly
emerging cyber security threats, including insider threats, provide
advanced intrusion detection and response capabilities, and implement
cost-efficient scalable enterprise architecture.
The fiscal year 2013 budget also includes $3 million in new
investments to combat transnational criminal organizations, and a total
of nearly $2 billion to maintain the security of our Nation's Southwest
Border. The budget also increases funding for international
investigation and deterrence of intellectual property crime by $5
million, which brings our investment to nearly $40 million annually to
combat online piracy and otherwise protect our Nation's intellectual
capital and maintain our competitive edge in developing American ideas
and technologies to better compete in the global marketplace.
DOJ's budget request also supports our continuing work to prevent,
investigate, and prosecute child exploitation crimes. Sadly, our
caseload in this area continues to increase. Our budget request will
fund ongoing efforts to investigate and prosecute offenders such as
those who participated in the so-called Dreamboard, an international,
members-only, online bulletin board that was dedicated to the sexual
abuse of children. Just as Dreamboard's members operated across
international boundaries in committing their crimes, so too did law
enforcement personnel work across boundaries to take down this
nefarious ring. To date, 72 Dreamboard members have been indicted; 53
have been arrested in the United States and abroad.
DOJ has successfully investigated and prosecuted public corruption,
not only in the several high-profile cases that made the news, but
across the United States. The American electorate trusts that their
public servants will obey the law; they expect DOJ to bring to full
justice those who abuse that trust.
Civil Rights
A fundamental highlight of DOJ's budget request for traditional
mission programs is $5 million in new resources for the Civil Rights
Division to prevent and combat human trafficking; hate crimes; and
misconduct by law enforcement and public officials. These issues
warrant our greater investment and vigilance as we advocate for every
American--without exception. Safeguarding the civil rights of every
American is at the heart of what we do, and represents our core
mission. In this good work, DOJ continues to achieve success and helps
our Nation to create ``a more perfect union''.
In seeking redress for the host of inequities uncovered by the
mortgage morass, DOJ has fought especially hard to protect the civil
rights of Americans. Recently, I announced that DOJ had reached a $335
million settlement with a lender to resolve allegations of lending
discrimination against African-American and Hispanic borrowers who
qualified for mortgage loans, but were charged higher interest fees or
were steered into sub-prime loans, solely because of their race and/or
national origin. More than 200,000 Americans will be entitled to
compensation. We have also acted to protect the civil rights of our
servicemembers who have been targeted by these unconscionable,
predatory lending practices. In May 2011, we announced settlements with
two lenders to resolve allegations that they had wrongfully foreclosed
upon active-duty servicemembers without first obtaining court orders,
in clear violation of the Service Members Civil Relief Act. The
settlements provided more than $22 million in compensation to our men
and women in uniform who were forced to worry about their families and
losing their homes through unlawful foreclosures, while also having to
endure the horrors of war. We fought hard for them because we believe
that, as Americans, we are much better than that, and that our fellow
citizens, who place their lives on the line for all of us, deserve far
better than that.
Our other civil rights priorities in fiscal year 2013 include a
greater focus upon combating human trafficking; in uncovering and
prosecuting hate crimes that target Americans for who they are and what
they believe; in upholding and enforcing the constitutional right of
every eligible American to participate in our Nation's political
process and vote freely; and fully implementing provisions of the Civil
Rights for Institutionalized Persons Act.
Environment and Natural Resources
Since 2011, a team of our agents and prosecutors continues to lead
the Deepwater Horizon Task Force, which has investigated the conduct of
those involved in the tragic explosion and oil spill that claimed the
lives of 11 people; despoiled the coastal waters of the Gulf of Mexico;
killed scores of wildlife; and damaged the vibrant economy of a
beautiful region, which our citizens have struggled mightily to
restore.
Financial, Mortgage, and Health Fraud
In our fiscal year 2013 budget, DOJ seeks an increase of $55
million, for a total investment of more than $700 million, to
investigate and prosecute financial and mortgage crimes that have
sorely hurt the American people and damaged their trust in the
financial markets they expect to engage in fair play. The abuses by
many in the financial sector have had a devastating effect on the U.S.
economy, and have contributed significantly to the economic suffering
of so many Americans. It is essential that DOJ address these abuses
forcefully, to hold fully accountable those who are responsible for
these abuses and ensure that they are not repeated. In this budget, we
propose an increase in specialized staffing and technologies to combat
and root out fraud in the area of securities and commodities;
investment scams; mortgage foreclosure schemes; and increasingly, in
healthcare fraud.
The program increase of $55 million would provide funding for
additional FBI special agents, criminal prosecutors, civil litigators,
in-house investigators, forensic accountants, and paralegals to hone
DOJ's capacity to investigate and prosecute the full spectrum of
financial fraud. Bringing aboard specialized and dedicated personnel,
especially investigators and forensic accountants, is key to our
successful detection and prosecution of complex financial schemes, and
helps us to stay well ahead of the criminals who devise them. Of the
$55 million program increase, $37.4 million is to increase criminal
enforcement efforts and $17.6 million would increase civil enforcement
efforts. Our total request also includes $9.8 million for technology
tools and automated litigation support.
We have already been actively engaged in these efforts. Since
fiscal year 2010, the Financial Fraud Enforcement Task Force has
spurred investigation and prosecution of financial fraud that has been
uncovered by the 2008 financial crisis and economic recovery efforts.
The task force has charged and sentenced a great number of defendants
involved in securities fraud, investment fraud, Ponzi schemes, and
other financial fraud. In October 2011, the managing member of Galleon
Management LLC was sentenced to 11 years in prison, based on DOJ's
investigation of the largest hedge fund insider trading scheme in
history. We also continue to aggressively prosecute those who commit
mortgage fraud. Mortgage fraud victims include distressed homeowners
preyed upon by fraudsters posing as foreclosure rescue experts; the
elderly who are victimized in Home Equity Conversion Mortgage or
``reverse mortgage'' schemes; U.S. servicemembers; and entire
neighborhoods blighted by blocks of abandoned homes. In fiscal year
2011, the U.S. Attorneys' offices filed 513 cases against 947
defendants, an increase of 92 percent in just 2 years.
Earlier this month, I joined Housing and Urban Development
Secretary Shaun Donovan and the Attorneys General of Colorado, Indiana,
North Carolina, Illinois, and Iowa to announce the unprecedented
agreement reached by the Federal Government and State attorneys general
with the Nation's five largest mortgage servicers to address mortgage
loan servicing and foreclosure abuses. This agreement--the largest
joint Federal-State settlement ever obtained--provides substantial
financial relief to homeowners and establishes significant, new
homeowner protections. It holds mortgage servicers accountable for
abusive practices and requires them to commit more than $20 billion
toward financial relief for consumers. As a result, struggling
homeowners throughout the country will benefit from reduced principal
amounts and the refinancing of their loans. The agreement also requires
substantial changes in how servicers do business, which will help to
ensure the abuses of the past are not repeated.
Moreover, on January 27, I announced the formation of the
Residential Mortgage-Backed Securities Working Group, supported by
current manpower and funds, to leverage State and local resources in a
nationwide effort to investigate and prosecute crimes in the
residential mortgage-backed securities market. DOJ will join the
Securities and Exchange Commission and the New York State Attorney
General under authority of the Financial Fraud Enforcement Task Force
in leading the working group, which will be staffed by at least 55 DOJ
agents, analysts, investigators, and attorneys from around the United
States.
Finally, DOJ remains fully engaged with the Department of Health
and Human Services (HHS) to prevent and combat healthcare fraud.
Earlier this month, HHS Secretary Kathleen Sebelius and I reported the
success of our joint efforts, having recovered nearly $4.1 billion for
U.S. taxpayers in fiscal year 2011. The 3-year average return on
investment for healthcare fraud funding in fiscal year 2011 was more
than $7 for every $1 invested--the highest ever for this program.
In fiscal year 2013, we plan to redouble our efforts and ask the
Congress for $294.5 million through the HHS budget for healthcare fraud
funding to support DOJ initiatives to combat civil and criminal
healthcare fraud. Increased funding will permit DOJ to expand Medicare
Fraud Strike Force operations and to more effectively target locations
where healthcare fraud activities are rampant. We also propose
additional support to bolster civil enforcement efforts, including
False Claims Act matters, to investigate and prosecute fraud by medical
and pharmaceutical providers.
STATE, LOCAL, AND TRIBAL LAW ENFORCEMENT
In our fiscal year 2013 budget, DOJ seeks a total of $2 billion to
assist State, local, and tribal law enforcement personnel, especially
in combating violent crime and violence against women and all other
victims of crime, and in supporting victim programs.
DOJ's budget request is strong on law enforcement; it's strong on
solid program research and development; it's strong on juvenile
justice; and it's strong on innovation. In presenting this budget
request, we've taken a long, hard look at what has worked best in these
areas, in order to extend these best practices across the broad range
of our work.
The key to DOJ's success in protecting the American people
continues to be in developing effective partnerships with law
enforcement counterparts throughout the United States and abroad to
leverage a more focused and effective law enforcement response. To put
this in perspective, there are 65,000 U.S. Federal agents dedicated to
criminal investigations; by comparison, there are 700,000 State and
local law enforcement officers in the United States, not to mention
scores of others who work for agencies from other nations. Crime is
increasingly transnational and global in scope, and criminals respect
no boundaries. We owe it to the American people to work closely with
our partners--at home and abroad--to prevent these criminals from
harming our citizens, and to ensure that those who do so are brought to
justice.
Here at home, one of our most important partnering programs is the
Community Oriented Policing Service (COPS) grant program. These grants
assist State and local police in hiring officers for targeted patrol
and other proven strategies to reduce and prevent crime. From fiscal
year 2009 through fiscal year 2011, the COPS office funded more than
7,100 positions. More than 5,000 of these positions have been filled so
far; nearly 4,000 of them as new hires. The budget requests an
additional $91 million for the COPS hiring program in fiscal year 2013,
for a total of $257.1 million. Of this amount, $15 million will be
dedicated to community policing development initiatives and $15 million
will be directed to tribal jurisdictions.
It is worth noting that COPS will be giving preference in any
fiscal year 2012 hiring grant award to communities that hire post-9/11
veterans of our armed forces. Put simply, this is the right thing to
do, and I assure you that this policy will continue in grants funded by
the fiscal year 2013 appropriation.
To give you an idea of the impact that COPS funding has had within
local communities, let me tell you about Fresno, California. Given
budgetary constraints, the Fresno Police Department had lost 100 sworn
police officer positions and 265 civilian positions over a 3-year
period. COPS funding added 41 front-line officers who helped Fresno
reduce violent crime by targeted removal of dangerous criminals from
the community's streets. The results are impressive. In 2011, Fresno
experienced decreases in violent crimes across the board and had its
lowest murder rate in a decade. Without COPS funding, the Fresno Police
Department would have been forced to disband its violent crime impact
team and redeploy officers into patrol, and merely react to crime.
Instead, COPS funding helped the people of Fresno become more active in
safeguarding their community.
In this area, too, DOJ seeks funding for grant programs proven to
be effective in preventing crime. Increased funding is requested for
the Byrne Criminal Justice Innovation Program; for residential
substance abuse treatment; for Second Chance Act implementation; for
Part B Juvenile Justice Formula Grants; and for a new, evidence-based
juvenile justice competitive demonstration grant program.
The Adam Walsh Act significantly enhances DOJ's ability to respond
to crimes against children and vulnerable adults, and to prevent sex
offenders who have been released back into the community from
victimizing others. The fiscal year 2013 budget also includes $20
million for States and local jurisdictions, and an additional $1
million to develop the National Sex Offender Public Web site.
Finally, a significant outlay under the fiscal year 2013 budget
includes increased funding to squarely address domestic violence and
child abuse in rural areas through support of projects specifically
designed to prevent these crimes in rural jurisdictions. A significant
portion of these funds will be dedicated to implementing public safety
programs in Indian country, to assist tribal law enforcement partners
in reducing the disproportionately high levels of violent crime there.
PRISONS AND DETENTION
In DOJ's fiscal year 2013 budget, we are seeking $8.6 billion to
ensure that prisoners and detainees are held in secure Federal
facilities and to improve Federal prisoner re-entry.
Last year, DOJ made strategic investments to enhance the Nation's
security and make communities safer. There are more than 2 million
people incarcerated in the United States; estimates project the Federal
inmate population in the United States to increase by 6,500, in
addition to the estimated 5,000 inmates who will be processed in fiscal
year 2012. The fiscal year 2012 enacted appropriation included partial
funding for activation of new prisons in Alabama and New Hampshire. In
the fiscal year 2013 budget, DOJ requests funding to fully activate
these facilities and initiate two others, in Mississippi and West
Virginia. In all, DOJ plans to add 2,500 prison beds and 1,000 new,
low-security contract confinement beds in fiscal year 2013. DOJ will
also direct increased funding to hire additional corrections workers
and cover increased costs to transfer, accommodate, and secure the
larger prisoner population.
While opening the secure facilities we need to confine criminals,
DOJ's budget request also addresses the parallel need to free up prison
space and reduce long-term detention and incarceration costs. This
budget recognizes the need to work with you in the Congress to make
simple changes to the calculation of good conduct time, and to explore
ways to further reduce recidivism. These proposals provide proven
incentives for good behavior among certain eligible, nonviolent
inmates, and their participation in programs designed to keep them from
returning to prison, and will have a direct impact in relieving
overcrowding in Federal prisons. Beyond the steps proposed in this
budget, the Federal Government has an opportunity to build on the work
of States like Texas and Indiana to modernize criminal sentencing,
ensuring that violent and career criminals remain behind bars and off
the streets, while strengthening programs to help eligible, nonviolent
offenders to safely and productively re-enter their communities.
The programs we propose to fund aim to reduce recidivism by
expanding participation in these re-entry programs. DOJ's fiscal year
2013 budget request includes expansion of the Bureau of Prison's
residential drug abuse program, which supports Second Chance
objectives. This expansion will enable greater use of the sentencing
credits available to eligible, nonviolent inmates who complete drug
treatment programs. Thus, as this program contributes to reducing
crime, it will also result in fewer taxpayer resources directed at
incarcerating inmates.
SAVINGS AND EFFICIENCIES
DOJ's fiscal year 2013 budget presents a highly streamlined array
of programs, which will help us to achieve our mission more efficiently
while protecting the American people more effectively.
DOJ proposes almost $700 million in efficiencies, offsets, and
rescissions. We at DOJ recognize that we must do our part to help our
Nation maintain its sound fiscal footing. In our fiscal year 2013
budget request, we seek to balance fiscal responsibility demanded by
the American people with DOJ's national security and law enforcement
mission to prevent, prosecute, and bring to justice all who would do us
harm.
In leading this effort, I directed DOJ staff to identify areas
where we would achieve significant savings for the American taxpayers
by implementing changes in the way we execute our mission. These
changes include improving the way we target funding, seeking support
for programs that work; redirecting funding from the Department level
to component agencies to reduce overhead and increase operational
efficiency; and consolidating offices and redirecting or reducing
personnel and resources.
In all, we identified $646.6 million in administrative
efficiencies, nongrant program reductions, and rescissions of prior-
year balances, which will reduce our bottom line without impairing our
mission or capabilities.
In submitting DOJ's fiscal year 2013 budget request, I emphasize
that we continue to hold the line on expenses, seek to eliminate waste,
and promote efficiencies. In this request, we propose to reorganize DOJ
by consolidating offices. In doing so, we will become a leaner, more
agile, and more responsive organization. Our goal is to enhance our
service to the American people, without sacrificing the essential
mission. Instead, we intend to realign our staff and resources to meet
the greatest needs.
In proposing these realignments, we add our efforts to the
President's Campaign to Cut Waste. In July 2010, I launched DOJ's
Advisory Council for Savings and Efficiencies, or the SAVE Council, to
focus these efforts within DOJ. In just the last 2 years, the SAVE
Council has helped DOJ realize nearly $60 million in savings and cost
avoidance.
The fiscal year 2013 budget includes savings expected from merging
detention functions currently performed by the Office of the Federal
Detention Trustee into USMS, merging core functions of the National
Drug Intelligence Center into DEA, and transfer management of the Law
Enforcement Wireless Communication program to FBI, returning funding
and the concomitant responsibility for radio operations and maintenance
to DOJ's law enforcement components.
Additional savings and efficiencies were identified in the areas of
information technology, space requirements, overhead, administration,
and operations. For example, the IT offset represents savings that will
be developed through greater inter-component collaboration in IT
contracting; funds will be redirected to support DOJ's cyber security
and IT transformation efforts and other high-priority initiatives.
CONCLUSION
In conclusion, I am keenly aware that the President and I have
asked DOJ's dedicated employees to do much more with fewer resources
during this period of economic recovery. That they have done so with
continued dedication to our mission to protect the American people is
truly exemplary and inspiring.
I appreciate this opportunity to tell you about our good work at
the Department of Justice, to thank you for your support to date, and
to ask you to fund the important work that lies ahead.
At this time, I would be pleased to take your questions.
Senator Mikulski. As a matter of senatorial courtesy, we're
going to turn to Senator Shelby, who has a Banking Committee
hearing that he must join, then I'll pick up, followed by
Senator Hutchison. We will recognize the members in order of
arrival, and we'll follow the 5-minute rule.
Senator Shelby.
STATEMENT OF SENATOR RICHARD C. SHELBY
Senator Shelby. Thank you. Thank you, Madam Chairman. Good
morning, Mr. Attorney General.
Attorney General Holder. Good morning.
TERRORIST EXPLOSIVE DEVICE ANALYTICAL CENTER AND NATIONAL CENTER FOR
EXPLOSIVES TRAINING RESEARCH
Senator Shelby. Two key DOJ facilities will soon be
operating on Redstone Arsenal: The FBI's Terrorist Explosive
Device Analytical Center (TEDAC), and the ATF's National Center
for Explosives Training Research (NCETR). These two national
assets will help law enforcement officials deal with the
growing threat posed by terrorists and criminal use of powerful
explosives.
You and I have discussed these facilities previously, and I
believe you agreed then with me that the missions of NCETR and
TEDAC are distinct, but complementary, and that it made sense
to colocate them at Redstone, where there's a lot of property,
a lot of land.
For the benefit of the subcommittee, Mr. Attorney General,
can you describe how DOJ will utilize NCETR and TEDAC?
Attorney General Holder. TEDAC, run chiefly by the FBI,
deals with the examination of improvised explosive devices
(IEDs), that we see coming out of Afghanistan and other places.
NCETR, by contrast, run by the ATF, deals with other, more
common explosive devices.
Senator Shelby. More prevalent maybe?
Attorney General Holder. More prevalent explosive devices
that we see. I think that you're right, they have fundamentally
different responsibilities, but they complement one another,
and the location of them in that place makes a great deal of
sense.
Senator Shelby. Could you describe the value of colocating
these facilities on a large Federal arsenal, with lots of range
of space?
Attorney General Holder. Yes. I think there's a great deal
of cross-pollination, the ability to talk to one another.
Although the purposes are distinct, there are going to
certainly be scientific things, breakthroughs, perhaps, that
you can exchange information about by having people who are
relatively close by. Having the two agencies that are primarily
responsible for explosives determination and prevention close
by each other, even though they have distinct roles that have
been pretty well delineated--it is good to have them there and
talking to one another.
Senator Shelby. Also, you're aware that the community
there, near Redstone, Huntsville, has the highest per capita
Ph.D. communities in science and engineering.
Attorney General Holder. There are a lot of smart people
there. That's true.
Senator Shelby. You plan to utilize that then.
Attorney General Holder. Yes. We'll use smart people
wherever we can find them. There are a lot there. That is fair.
ACTIVATION OF ALICEVILLE FEDERAL CORRECTIONS INSTITUTE
Senator Shelby. Well, I want to go to another question.
People make mistakes and pay for it, I guess.
Attorney General Holder, the Justice Department is seeking
funds this year to activate a new women's prison in Aliceville,
Alabama. This prison was designated as a female-only facility,
based on input from your Department, and it cost nearly $250
million when it was finished. Does the Department plan to
activate this soon? I know you've got a lot in it. The Bureau
of Prisons (BOP) said that was one of their top priorities.
Attorney General Holder. We want to activate it. It was
specially designed to deal with the unique needs that female
prisoners have. We need to expand our capacity to handle female
prisoners in the Federal system. Given the fact that the
facility was specially configured for female prisoners, it
would be our hope to activate it as quickly as we can, and for
the use for which it was designated.
Senator Shelby. Well, you've got a lot in it, and it's
finished. And I'd hope you would do that soon, because to
activate it, it costs hardly anything, compared to what it cost
to build.
Attorney General Holder. No. I don't disagree with that.
The need is clearly there for the expanding female population,
unfortunately, that we see in the Federal prison system.
Senator Shelby. It would be a priority for you?
Attorney General Holder. Yes.
Senator Shelby. In that area.
Attorney General Holder. We want to bring online as many of
these facilities we can, and this is one that, as I understand
it, is extremely close, where we're just about ready to open
it.
Senator Shelby. Good. Madam Chairman, thank you very much
for taking me out of order, and I appreciate it very much.
Senator Mikulski. Mr. Attorney General, I have two
questions. I had many, but we'll submit them for the record.
FEDERAL PRISON FUNDING
First of all, Federal prisons. As I look at the
Department's budget, almost one-third of the Justice Department
money is going into Federal prisons. That amount is now at $6
billion, and it is rapidly approaching almost what the FBI
budget is, which is $8 billion.
Now, my question is: What's going on with Federal prisons?
First of all, we want the bad guys and gals off the street. So
we want you to prosecute and incarcerate, particularly where
there are people who constitute a danger to our country or to
our communities. I don't know if we can sustain this growth,
and then I'm concerned about once we put them in, it's a
revolving door, and we keep expanding their prisons with the
same people. They keep coming back.
Could you elaborate on your Department's needs? Are there
any recommendations you'd have to begin to contain the prison
population? Are we federalizing too many crimes? Is recidivism
the problem? Again, safe streets--but this is really an ever-
increasing part of our appropriations.
Attorney General Holder. There are a whole variety of
reasons why we see the prison population expanding. We now have
about 215,000 people in the Federal system. That number goes up
every year, and it is for that reason that we consistently come
back to this subcommittee asking for additional funds for BOP.
There are a variety of reasons why you see people coming
into the system. We are good partners with our State and local
counterparts, and we try to help them, to the extent that we
can. And so, some cases violate both Federal and State law, and
if they are very serious criminals, we bring them to the
Federal system if there are evidentiary rules or more harsh
sentences that we can give to them.
I think the point that you hit on, that we really need to
focus on, is how can we rehabilitate people so that we cut down
on recidivism rates? One of the things that we have talked
about is the Second Chance Act, coming up with ways in which we
make available to people re-entry possibilities, so that they
have the chance of not being recidivists, coming up with
educational, vocational, drug treatment programs while we have
them in prison.
We've actually seen pretty good success being made by some
State systems that has been shared with me by the Pew Research
Foundation. I think we can learn a lot from them in that
regard.
Senator Mikulski. Well, Mr. Attorney General, we would
really look forward to specific recommendations. We want our
local and our Federal law enforcement to prosecute and get bad
people off the street, whether they're terrorists or whether
they're terrorizing a neighborhood, like some of the drug
dealers in some of my own communities in Maryland.
At the same time, we don't want our Federal prisons to be
an incubator for more crime, where the lessons that they learn
when they go to prison is not to commit crimes again, but how
to be better crooks. We want our prisons to teach them how to
be better citizens, and then to come back to a community
support system where they don't fall back into the behavior
that got them.
So, I'm concerned that our Federal prisons are such that we
need to really look and evaluate, and learn some of these
lessons. So, we want to work with you. I know you feel that
way. You're very experienced in street crime, which takes me to
the other point.
COMMUNITY ORIENTED POLICING SERVICE GRANTS
Ultimately, you've done this fantastic job of fighting
terrorism, keeping America safe. It's been stunning what our
national security services have accomplished, both military and
civilian. Again, I'll come back to streets and neighborhoods.
You know, we have communities that face crime every single day.
And we talk to our local law enforcement, our local
prosecutors' offices, and so on. They feel they're under the
gun. They need Byrne grants, they need Cops on the Beat, and so
on.
Do you feel that this is sufficient funding? In fiscal year
2010, we had $3.7 billion that went into State and local
grants. Due to acts of the Congress and so on, now, we're down
to $2 billion. Yet, everywhere I go in Maryland, from our local
police commissioners to local district attorneys, or States'
attorneys, as they're called in my State, people say we need
those Justice Department grants. They give us better
technology. They give us tools to deal with violence against
women. They express gratitude for the lethal index. They need
you. They love having you as a partner.
Do we have enough money in the right places to do the job
to protect our communities?
Attorney General Holder. We have in the budget request
$2.04 billion for State and local assistance programs; $1.4
billion for Office of Justice Programs (OJP); about $290
million for COPS; and $412 million for the Office on Violence
Against Women (OVW).
This is the level that's about equal to the level we
requested last year. It is lower than numbers that you had
said. But, I think that given the budget realities that we
face, the amount that we have requested is strong on law
enforcement. It's strong for science. It's strong for victims.
Would I like to have more money? Yes, but the budget
realities that we confront, and the need to stay within a
budget in the executive branch have gotten us to this point. I
think that through the provision of this money, through the
technical assistance that we can also provide to our State and
local partners, we can do the job.
I met with the National Association of Attorneys General
just this week, and I think the partnership that we have is an
unprecedented one. I think that the combination of that
partnership, the sensitivity that we have to their needs, and
the $2 billion that we are seeking here will allow us to be
good partners.
Senator Mikulski. Well, we have many questions. So, I'm
going to turn to Senator Hutchison.
What I would find very helpful is two things. One, if you
look at your Byrne grants, Cops on the Beat, and so on, what
was the amount of money requested by State and local people to
apply for those grants, and what could you fund?
Attorney General Holder. Yes. I mean the request--oh.
Sorry.
Senator Mikulski. No. My time's up. So I'd like that for
the record.
[The information follows:]
Funds Requested by State and Local Organizations for Byrne Grants
COMMUNITY ORIENTED POLICING SERVICE OFFICE
In 2011, the Community Oriented Policing Service (COPS) office made
238 awards to fund 1,021 law enforcement officer positions, totaling
$243,398,709. The total amount requested was $2,067,924,397 from 2,712
law enforcement agencies.
OFFICE OF JUSTICE PROGRAMS
Because individual Byrne Justice Assistance Grant (JAG) program
awards are determined and limited by a specific, statutorily driven
crime and population formula, States, local governments, and tribes
cannot request more than the total amount available in any fiscal year.
Because of this, it is not possible to determine what the unmet need
was in fiscal year 2011 under the JAG program. In fiscal year 2011,
there were a total of 56 States and territories and 1,348 local
jurisdictions eligible for JAG funds, with a total of $365.9 million
available in prescribed amounts. Of the local governments eligible for
a direct JAG award, all but 127 applied for their funding allocation.
Of the 127 that did not apply for their eligible funding, 120 of these
jurisdictions would have received an award of between $10,000 and
$25,000. As a result of these failures to apply, $1,949,103 in Byrne
JAG funding was not awarded in fiscal year 2011.
However, in fiscal year 2011, Office of Justice Programs' (OJP)
Bureau of Justice Assistance (BJA) released 63 funding solicitations
and received 4,295 funding applications requesting a total of
$3,793,937,608 in Federal funding from BJA. BJA had sufficient
appropriations to meet 19.32 percent of this requested total, funding
51.66 percent of all applications submitted. These figures do not
include unmet demand from programs such as the State Criminal Alien
Apprehension Program and the Bulletproof Vest Partnership, which had
additional unmet funding requests.
DUPLICATION OF SERVICES
Improving the effectiveness and efficiency of Federal programs is a
critical priority of the administration and the Department. The
Department is committed to continuing efforts to prevent unnecessary
duplication, streamline through approaches such as the consolidation of
grant programs, and identify effective programs using evidence-based
methods.
Department of Justice (DOJ) grantmaking agencies closely
collaborate on the development and implementation of grant programs to
avoid the types of potential problems cited by the Government
Accountability Office (GAO). Managers from OJP and its bureaus, COPS
office, and the Office of Violence Against Women (OVW) often meet to
coordinate programs and objectives. The following selected examples are
illustrative of the Department's commitment to work collaboratively
among its own components as well as Federal Government-wide to improve
government performance and effectively target the public safety needs
of our communities.
--In January 2011, I convened the first meeting of the Federal
Interagency Reentry Council. The council is addressing short-
term and long-term goals on prisoner re-entry through enhanced
communication, coordination, and collaboration across Federal
agencies. OJP is leading a parallel staff-level effort, which
includes 35 people from 17 different Federal agencies--
including the Departments of Health and Human Services (HHS),
Housing and Urban Development (HUD), Labor, Education (ED),
Veterans Affairs, Agriculture, and the Social Security
Administration, and others.
--OJP is also spearheading the National Forum on Youth Violence
Prevention, which is an effort launched--at the direction of
the White House--by DOJ and ED, to directly and locally address
the needs of communities that continue to experience high
levels of youth violence. Using comprehensive technical
assistance, the Forum enables Federal agencies to serve as
catalysts for broad-based positive change at the local level in
a very efficient, cost-effective manner.
--All of DOJ's components and leaders are working together to provide
the most efficient and timely information to tribal
communities. As cited in the GAO report, beginning in fiscal
year 2010, the Department created the Coordinated Tribal
Assistance Solicitation (CTAS), which consolidates most of the
Department's tribal government-specific criminal justice
assistance programs administered by OJP, OVW, and COPS under
one solicitation. Through CTAS, tribes can apply for funding
for many of their criminal justice needs with one application.
--The Tribal Law and Order Act enacted in July, 2010, contained
amendments to multiple laws with an impact across DOJ
activities in Indian country, including a number of OJP
programs. The CTAS collaborative experience readied us for
statutorily mandated coordination required for law
enforcement, training, increased grants authority, and
crime data analysis and reporting.
--We are also partnering with other Federal agencies to conduct
inventories of Federal resources, develop interagency
memorandums of agreement, and long-term comprehensive plans
to improve our performance, eliminate duplication, and
identify gaps to better serve tribal governments and their
communities, in consultation with tribes.
--The Defending Childhood Initiative is being coordinated across OJP,
COPS, OVW, the U.S. Attorneys offices, as well as other
components within the Department and the Federal Government.
The Neighborhood Revitalization Initiative--which is a White House-
led interagency collaboration--is executing place-based strategies to
engage and support local communities in developing and obtaining the
tools they need to revitalize their own neighborhoods of concentrated
poverty.
The Federal Government already directs significant resources to
these neighborhoods, but we can always look for additional ways to
continue to support them. Better alignment of Federal programs will
help local leaders to use Federal funds more effectively, making our
taxpayer dollars go further.
Additionally, the Department is working as a whole to coordinate
and improve our grants management efforts. There is a DOJ-wide Grants
Management Challenges Workgroup, comprised of grants officials from
COPS office, OJP, and OVW, that meets to share information and develop
consistent practices and procedures in a wide variety of grant
administration and management areas. In fiscal year 2011, the working
group successfully implemented the DOJ-wide high-risk grantee
designation program and a DOJ-wide, on-line financial training tool for
DOJ grantees.
Through our Byrne Criminal Justice Innovation program, OJP and the
Department will strengthen partnerships with HUD, ED, HHS, and the
Department of the Treasury in distressed neighborhoods to implement
effective strategies to address persistently high violent crime, gang
activity, and illegal drugs.
As mentioned, the Department is equally committed to consolidating
grant programs as appropriate. The fiscal year 2013 budget re-proposes
a consolidation that was also included in the fiscal year 2012 budget
but not adopted, the consolidation (Problem Solving Justice) and
expansion of funding for Drug Courts and the Mentally Ill Offender Act
Program. The fiscal year 2013 budget also proposes the creation of a 7-
percent tribal grant set aside to address the needs of Indian country,
rather than several separate programs.
As resources have become tighter, we are working smarter by
promoting evidence-based approaches and developing and spreading
knowledge about what works and what causes crime and delinquency.
Evidence-based knowledge is critical to help policymakers at the
Federal, States, and local levels know what to fund, but perhaps more
importantly right now, what not to fund. For example, OJP has developed
tools such as CrimeSolutions.gov and the Diagnostic Center, which help
jurisdictions focus on evidence-based ``smart on crime'' approaches to
maximize resources and improve public safety results.
Senator Mikulski. The second thing is: The GAO report
raises issues related to duplication of services, and I'd like
to have your reaction to the GAO report on how we can
streamline, get more efficiencies. I think you're already on
that road.
But let me turn to Senator Hutchison.
STEVENS CASE
Senator Hutchison. Thank you, Madam Chairman. Mr. Attorney
General, we will have questions for the record, but I wanted to
pursue this public integrity unit's misconduct against Senator
Stevens.
After you moved to dismiss the case, the court appointed
counsel to investigate the botched prosecution of Senator
Stevens, and found that the prosecutors engaged in systematic
concealment of evidence, but they were not guilty of criminal
contempt. And according to the summary that was put out in the
public, the full report coming later, the court said, ``Despite
findings of widespread, and at times, intentional misconduct,
the special counsel, Mr. Schuelke, recommended against contempt
charges, because prosecutors did not disobey a clear and
equivocal order by the judge, as required under law.''
Now, Judge Sullivan said, ``Upon review of the docket and
proceedings in the Stevens case, Mr. Schuelke concludes no such
order existed in this case. Rather, the court accepted the
repeated representations of the subject prosecutors that they
were familiar with their discovery obligations, were complying
with those obligations, and were proceeding in good faith.''
My question to you is: Does it concern you that the only
reason these prosecutors escaped criminal charges is that the
judge in the Stevens case didn't file an order specifically
telling the prosecutors that they should follow the law?
Attorney General Holder. We have to take into account a
variety of things. When I was made aware of the issues that led
to the inquiry that Judge Sullivan ordered, I made sure I
ordered that the case be dismissed.
Senator Hutchison. Dismissed.
Attorney General Holder. I also ordered that an Office of
Professional Responsibility (OPR) report be done as an internal
DOJ report, which has now been completed. It is now in its
final stages of being worked through.
Senator Hutchison. Will it be made public, Mr. Attorney
General?
Attorney General Holder. I'm hoping that we can. There are
privacy interests that we have to deal with, but my hope is to
get that report, or as much of the report, made public as we
possibly can. It is an exhaustive study. It is hundreds of
pages long. I think the people at OPR have done a good job, and
there are recommendations with regard to sanctions that ought
to be made. I'm hoping that we will make that available.
Senator Hutchison. I'm going to request that you do.
Attorney General Holder. Okay. I'm not really at liberty to
discuss the report that Mr. Schuelke did. We've gotten a
limited number of those reports in the Justice Department, 10
or 15 of them, and we're under orders by the judge not to
discuss those. I've had a chance to review, certainly, the
summary and portions of it, and some of the findings that are
made there are disturbing. They were disturbing when I made the
decision to dismiss the case.
We have done a lot since that time to come up with ways in
which we try to prevent those kinds of mistakes from happening
again. We have an extensive training program. We have hired
somebody who is responsible as a coordinator to make sure that
discovery is handled properly in criminal cases and civil cases
that the Justice Department is involved in, so we don't fall
back into those same kinds of errors. I have spoken to members
of the judiciary. All to make sure that what happened in the
case involving Senator Stevens is not replicated. I would urge
everybody to understand that this Justice Department, this
Attorney General, when we made that determination that mistakes
occurred, took the extraordinary step of dismissing that case.
Senator Hutchison. Which I give you full credit for.
PROSECUTORS IN STEVENS CASE
Now, let me ask you: Four of the six prosecutors, according
to reports, who were investigated, opposed releasing the
report, and their names have been redacted. I want to ask you
if any of these prosecutors are still in the Justice Department
system.
Attorney General Holder. I have to check that, just to make
sure, but I believe all of the prosecutors who were involved in
that case are still in the Department. I believe that's true.
I'm not totally sure of that.
Senator Hutchison. Does that trouble you, that there would
be findings of misconduct in such a sensitive area that you
would not let them go outside of our justice system?
Attorney General Holder. It depends on the nature of the
misconduct, what it is that they did, the mistakes that were
made. I think one has to look at the Schuelke report that is
about to be released, combined with the OPR report and the
recommendations for sanctions that are contained in that OPR
report, to look at what exactly should happen to these people.
Was the incident an isolated one? How serious was it? What is
the nature of their contribution?
Senator Hutchison. Are you going to do that, Mr. Attorney
General? Are you going to make a decision regarding people who
have clearly exhibited that they do not have the integrity to
prosecute in this sensitive area? Will you tell the
subcommittee what your actions are when you have made that
determination?
Attorney General Holder. I don't think there was any
Privacy Act interest that prevents us from sharing with this
subcommittee what actions we have ultimately decided to take
against those people who are found to have been culpable.
Senator Hutchison. Well, I ask that you report that to the
subcommittee. Thank you, Madam Chairman.
Senator Mikulski. Senator Brown.
STATEMENT OF SENATOR SHERROD BROWN
Senator Brown. Thank you, Madam Chair, and thank you,
Attorney General Holder, for your service.
RESIDENTIAL MORTGAGE-BACKED SECURITIES WORKING GROUP
You established the new RMBS Working Group. Thank you for
that. I want to talk a moment about that. But, last week, Phil
Angelides, from Senator Feinstein's State, former chair of the
Financial Crisis Inquiry Commission, observed that the number
of lawyers, some 55 lawyers, investigators, and other staff of
the working group I just mentioned, that is far fewer than the
100 law enforcement professionals dedicated to the Dallas bank
fraud task force during the savings and loan era.
Mr. Angelides also suggested the Congress should extend the
statute of limitations for financial institutions fraud from 5
years to 10 years, as the Congress did in 1989, when it passed
the Federal Institutions Reform Recovery Enforcement Act after
the savings and loan crisis. And you, of course, are aware of
the public sentiment of anxiety, frustration, outrage--pick
your noun--toward the fact that so few people have been
prosecuted.
Talk to me about the working group, the dollars you're
dedicating of the $55 million increase you're asking for. Is it
going to go into the RMBS Working Group? And comment, if you
would, on Mr. Angelides' recommendation that the statute of
limitations, similarly 20 years ago on a, if not a similar
scandal, surely a scandal, when it was lengthened to 10 years
by the Congress then, if that's something we should do.
Attorney General Holder. I would say, first off, that this
whole mortgage fraud scandal that we are dealing with is
something that we have taken extremely seriously. We brought
charges against about 2,100 people last year, all over the
course of the last few years, in connection with the mortgage
problem. You mentioned there are 55 Federal personnel to go to
the RMBS task force--that's the Federal component. One of the
things that I think is unique about that is that we're working
with our State and local partners, and, in particular, State
attorneys general. So, the number of people who will be
ultimately devoted to that task force will be substantially
greater than that.
I suspect we will also be adding people from various U.S.
Attorneys' offices around the country. I think we're looking at
four or five that will be intimately involved in this, so that
number will ultimately go up. We're going to have adequate
resources, in terms of the numbers of people, to do the job
that we need to do with regard to the RMBS Working Group.
With regard to the extension of the statute of limitations,
that is something that I'd be more than glad to discuss with
the members of this subcommittee after I've had a chance to
speak with the prosecutors on the ground, to see if, in fact,
that is something that we need. We want to use all the tools
that we have, and also consider any possibilities that we might
want to acquire, so that we can hold accountable the people and
institutions who really had a devastating impact on our
Nation's economy, and continue to have a lingering effect on
our Nation's economy and, in particular, the housing market,
which drags down the recovery.
Senator Brown. Okay. Thank you for that. And we will be
following up with your office on the wisdom, hearing from your
prosecutors that might be in the middle of initiating these
cases or in the middle of these cases, about the importance of
that extra 5 years of the statute of limitations.
OIL AND GAS PRICE FRAUD WORKING GROUP
Let me talk for a moment about gas prices. You know, oil
prices are more than $100 per barrel. The Department of Energy
and the Commodity Futures Trading Commission have told us
inventories of oil are sufficient. Domestic production is up.
We hear that. The number of rigs has grown. The consumption is
down. All reasons that gas prices should not be going up,
understanding that the turmoil in the Middle East and the
discussion of Iran.
Some analysts have estimated speculation may be adding 50
cents to the price per gallon of gas. It's my understanding
over the last year, DOJ organized the Oil and Gas Price Fraud
Working Group to determine the role speculators and potential
price manipulation are having on the price of gasoline.
What have you found? What are your next steps? What can we
expect?
Attorney General Holder. That working group continues to be
in effect. In fact, they're having a call today to discuss the
situation in which we find ourselves with regard to these
rising gas prices. That working group, itself, will be meeting
before the end of this week. The work of that group has been
ongoing and looking to see if there are inappropriate
manipulations of the market.
The Federal Trade Commission (FTC) is also working in this
area. I don't want to speak for them, but I understand they're
working on a report of some sort that we should be seeing
relatively soon. That is, again, the FTC working independently
of us. But within the Department, that Oil and Gas Price Fraud
Working Group has been active, and as I said, has a call today
and a meeting that will happen, I think, by tomorrow.
Senator Brown. Okay. I would like to request that after the
phone call, and after the meeting today or tomorrow, that task
force brief me and other members of the subcommittee who have
expressed interest.
Attorney General Holder. All right. To the extent we can,
we will certainly do that.
Senator Brown. Thank you.
Senator Mikulski. All right. Mr. Attorney General, we
really would like to see that. This is very, very, very
important.
We would now like to turn to Senator Murkowski.
STATEMENT OF SENATOR LISA MURKOWSKI
Senator Murkowski. Thank you, Madam Chairman, and Mr.
Attorney General. Welcome this morning.
STEVENS CASE
I want to follow onto Senator Hutchison's questions
regarding the prosecution of Senator Ted Stevens. I think so
many of us were absolutely shocked. I was horrified, as a
friend, and as an Alaskan, to read Judge Sullivan's comments
that this ill-gotten verdict not only resulted in the loss of
Senator Stevens losing his seat, but in his words, tipped the
balance of power in the U.S. Senate. Pretty powerful, in terms
of what DOJ did to a great man.
I appreciate, and I recognize, and I thank you for your
actions in dismissing that case, and in your decision to not
attempt to retry, and I join Senator Hutchison with that. But,
there are questions that still remain. You know that. I have a
long series of them, and what I would like to do is submit them
to you today, and ask that you respond to them prior to the
release of the report, which is due to come out next Wednesday,
the 15th of March. So, I would appreciate your attention to
that.
ATTORNEY'S FEES FOR PROSECUTORS IN STEVENS CASE
I have a question regarding what is happening now with the
release of this report. The USA Today reported that DOJ has
spent $1.8 million in defending prosecutors from allegations
that they broke the law in the Stevens prosecution. And Senator
Grassley was one who mentioned that it seems like this is an
unseemingly high amount of money being spent by the taxpayers
to defend what appears to be egregious misconduct. And, again,
Senator Hutchison has noted the words that Judge Sullivan used
in his order, saying that the report demonstrated significant
widespread, and at times, intentional misconduct by the
prosecutors.
Now, I understand that the $1.8 million went for attorney's
fees to defend the actions of the Justice Department
prosecutors who were under investigation for contempt by the
counsel appointed by Judge Sullivan. The report of that
counsel, again, is due to be released on the 15th. In addition
to spending taxpayer money to defend your attorneys, did the
taxpayers also pay for the attorneys to argue that the contents
of this report should not be publicly released? You have stated
that this is a matter that has risen to a level of public
attention. So, if you can answer that question for me, and also
whether the Justice Department supports the merits of the
appeal that has been raised by Mr. Edward Sullivan, who is one
of the prosecutors who has asked the U.S. Court of Appeals for
an emergency stay to prevent the release of this report next
week.
So, the question is whether you support the merits of that
appeal, and, again, whether or not the taxpayers are on the
hook to pay for his attorneys to argue that this report should
be kept from the public.
Attorney General Holder. I don't think we take any position
with regard to what he has said about his desire to keep the
report sealed. The Justice Department has indicated that we do
not object to the release of the report. I think that given the
issues that we found there, the magnitude of the case, and,
frankly, the magnitude of the errors that led me to decide to
dismiss the case, that there is a legitimate public interest in
knowing as much as we can about what happened, why it happened,
what steps the Justice Department has taken in connection with
these findings of misconduct.
Senator Murkowski. So is the Justice Department paying for
his attorneys' fees in this matter, to keep this from being
made public?
Attorney General Holder. I don't know about him,
specifically, but I do know that as a result of the charges
that were brought against them, the determination was made that
there would be a conflict of interest for the Justice
Department to defend them, which would be typically how we
would do it, and they were, therefore, allowed to get outside
counsel. Under the regulations, the Justice Department then
pays for those legal representations, which has happened in a
variety of cases, a variety of circumstances, former attorneys
general and lawyers who have been reimbursed by the Government.
I'm hoping I won't have to do that, but other attorneys general
have done that.
Senator Murkowski. So, even now that the independent
counsel that Judge Sullivan had appointed, even though that
counsel has found that members of the Stevens prosecution had
engaged in significant, widespread and, at times, intentional,
and again, intentional misconduct, does the Government have any
recourse to recover the funds that have been paid for their
attorneys' fees, when they have engaged in intentional
misconduct?
Now, you mentioned in your comments to Senator Hutchison
that after the OPR report, that there may be sanctions that we
will see, but is there recourse? Are you pursuing any recourse?
It seems to me that in an instance like this, where it has been
made clear that the conduct was intentional, that it was
substantial, and it was widespread, that we should not be
defending and paying for the attorneys' fees to again allow
these individuals to conduct such acts, and then to learn that
they're still within DOJ doesn't give me much confidence.
Attorney General Holder. Certainly, one of the things that
happens is that because the Justice Department can't represent
these people, and they have their own views of what happened,
they want to be able to explain, with counsel, defend
themselves. That is why the expenditure of money actually
occurred. That is why they are allowed to get outside counsel.
As I said, that has happened, not frequently, but it certainly
happened in the past, and we acted with regard to them as we
have done in the past with regard to the retention of outside
counsel.
Senator Murkowski. I would think that $1.8 million to go to
defend these attorneys, who have engaged in intentional
misconduct, is just stunning to me. I'd like to think that
there could be some recourse.
Madam Chairman, I'm well over my time. I thank you for your
indulgence.
Senator Mikulski. It was important that you had the
opportunity to completely pursue your line of questioning. The
situation that has been presented by you and Senator Hutchison,
reminding the subcommittee, is deeply troubling. We must have
public integrity. We also must have an independent judiciary.
We have to have, regardless of which party is in the White
House, a Justice Department that we believe in, and that the
American people believe in. So, I know the Attorney General
will be responsive, and then we'll take it from there.
Senator Murkowski. Madam Chairman, I just want to thank you
for those comments, and agree wholeheartedly. And I do think
the Attorney General took a major first step, when he dismissed
the case. That was huge. But, now we must followup, so that
there is no question that the people who did this, and the
report will show whatever it shows, that they're not able to
prosecute ever again. Ever.
Senator Mikulski. Thank you.
Senator Murkowski. Thank you.
Senator Mikulski. Senator Pryor.
STATEMENT OF SENATOR MARK PRYOR
Senator Pryor. Thank you, Madam Chair, and Attorney
General, welcome to the subcommittee. Thank you for being here.
PRISON OVERCROWDING
I want to add my voice to something that was said earlier
about prison overcrowding. And I could go through the facts and
figures on that, but you know those better than any of us do.
It is just a real concern.
One of the prisons that's on the short list is actually in
Arkansas, and back in fiscal year 2010, it was scheduled to be
funded in fiscal year 2014. Well, now, it keeps getting pushed
back. Now, it's fiscal year 2018. So, it's an example of us not
being able to fund some of the real needs that we have. I know
I'm not alone in that. So, I want to voice my concern there.
SEQUESTRATION
Let me ask about sequestration. I don't believe anyone's
had a chance to ask about sequestration. And I'm curious about
what the Justice Department perceives will happen to DOJ
funding if sequestration does, in fact, take place, and what
steps you're taking to address that.
Attorney General Holder. I certainly hope that's something
that we don't have to face. As I look at it, we'd be looking at
an across-the-board cut of about 7.8 percent, which would mean
a cut of about $2.1 billion. No Justice component would be
exempt from those cuts. And from an operational perspective, we
would have to cut personnel funding and nonpersonnel funding.
We are estimating that we'd have to furlough all position
types, including agents, Federal agents, FBI agents, DEA
agents, ATF agents, and attorneys, who try cases, investigate
cases, for an average of about 25 days. We would have to lose
permanently a pretty substantial number of jobs. This across-
the-board cut would have a devastating impact on the Justice
Department's ability to protect the American people, to do
investigations. It would be something that would just simply be
devastating. My hope would be that the Congress will find a way
to avoid this sequestration, which, just from my own parochial
interests, which I think actually are the Nation's as well, to
really avoid the very negative consequences that could have a
permanent impact on our well-being.
Senator Pryor. And so, you've mentioned these furloughs,
but I assume, also, you'd have to suspend the funding of many
of your programs that help local and State law enforcement
agencies.
Attorney General Holder. That's an excellent point. The
consequences are not restricted to simply what happens to the
Justice Department here in Washington and in our field offices.
Our ability to be good State and local partners would certainly
be impacted by the reduced amounts of money that we'd be able
to share with our State and local partners, in terms of grants,
Cops on the Beat. It would be a devastating thing for this to
happen.
THE JOHN R. JUSTICE PROGRAM
Senator Pryor. And let me ask about personnel in a little
different context. The John R. Justice Program has about 1,600
prosecutors and about 1,200 public defenders in the last fiscal
year that received assistance under that program, to help them
pay off their student loans, et cetera. But, this budget, as I
understand it, does not have funding for that program this
year. So, my concern there would be that we want the best and
the brightest out there trying cases on both sides. Again, this
is public defenders and prosecutors. And in our criminal
justice system, it's critical that we have good representation
on both sides. And I'm afraid that we're going to lose a lot of
talent if we don't have a program like this. Do you share that
concern, and what steps you think we can take to keep the best
and the brightest coming on board?
Attorney General Holder. I do share that concern. We want
the best and the brightest to come and take what are low-paying
jobs on the prosecution side, on the defense side. These kids
come out of law school with enormous amounts of debt. And I
don't want them to make career choices based on how they're
going to repay those loans, as opposed to following their
passions, and taking their great skills to become members of
the Justice Department, State and local prosecutors offices, or
on the other side, to be good defense attorneys. And that is
one of the things that I'm concerned about.
We have a tough budget, and you're right, the money is not
there, to the extent that it was in the past. To the extent
that we can work on ways in which we come up with creative
things to do to make sure that those career decisions,
especially those first job career decisions, by people coming
out of law school, are not a function of their financial
concerns, but really is a function of how they want to help
build a better society.
Senator Pryor. Thank you.
CYBERSECURITY
And Madam Chair, I don't really have time to ask another
question, but I would like to just make an observation. The
chair of the subcommittee here yesterday took a leadership role
in a cybersecurity exercise in a classified setting, and we
appreciate her leadership in getting all of us to go and
participate. It was very informative, very interesting. And I
know that DOJ has been very involved in what's going on with
Federal Government cybersecurity issues, and all the task
forces and everything you're working on. But, I also hope that
you will not neglect the private sector, as well as the State
and local governments, because they have a role to play in this
as well.
Attorney General Holder. That's exactly right. This is not
something that the Federal Government can handle by itself.
This is a national security issue, certainly, but it's also an
infrastructure issue which involves our State and local
partners. Then one looks at just the amount of theft that
occurs, intellectual property theft, in particular, so that the
private sector has to be involved as well.
We have to come up with mechanisms, means by which all of
those various components talk to one another, if we ultimately
want to be successful in what I think is the most pressing
thing that we're going to be facing in the coming years.
Senator Pryor. Thank you. Thank you.
Senator Mikulski. Thank you, Mr. Attorney General. I want
to go back to the excellent question Senator Pryor raised about
the impact of sequester. Could we have that answer in more
detail, in writing, so that everybody would have a chance to
study it, and go over it in programs and so we can really grasp
the full consequences?
Attorney General Holder. Yes.
[The information follows:]
Impact of Sequestration
The Department of Justice's (DOJ) supports the fiscal year 2013
President's budget request, which would avoid a sequestration, if
enacted as proposed. Therefore, I am not describing the impact of a
potential sequester, which the administration is committed to avoiding.
However, I can describe the impact of an across-the-board cut of 7.8
percent, or more than $2.1 billion, to DOJ's budget authority. To
implement this cut, DOJ would have to cut both personnel and
operational funding. Personnel cuts would require DOJ to implement a
hard hiring freeze, which would mean losing 4,800 positions, and
furloughing all DOJ employees for 25 days. These personnel cuts, along
with significant operational cuts, would mean reductions in the
apprehension of violent fugitives, fewer Federal Bureau of
Investigation (FBI) national security investigations, fewer affirmative
litigation efforts, and more crowded prisons. For context, a 7.8-
percent cut would mean that the Bureau of Prisons would be cut by $510
million, FBI by $730 million, the Drug Enforcement Administration by
$175 million, the U.S. Marshals Service by $90 million, and the U.S.
attorneys office by $150 million.
Senator Mikulski. I'd now like to turn to Senator Graham.
STATEMENT OF SENATOR LINDSEY GRAHAM
Senator Graham. Thank you, Madam Chairman. I'd like to add
my voice to what you just echoed, and Senator Pryor, that
sequestration, as it's set up, would devastate DOJ, our ability
to defend ourselves, and destroy the military, and surely we
can find a better way to do it than that. So, I think you're
dead on. This is just an ill-conceived idea of cutting money
blindly, in my view.
Now, you were in South Carolina couple days ago, is that
right, Mr. Attorney General?
Attorney General Holder. It was yesterday.
Senator Graham. Yesterday. Well, we're glad to have you.
Hope you spent money while you were there.
Mr. Holder. I did.
NATIONAL ADVOCACY CENTER
Senator Graham. But, the National Advocacy Center (NAC), in
Columbia, that you visited, what would you tell the
subcommittee about the NAC, in terms of being a value to the
Nation?
Attorney General Holder. It is an invaluable resource for
us.
Senator Graham. Did you all hear that?
Okay. I'm sorry. Go ahead.
Attorney General Holder. No. I mean it is. It is an
invaluable resource for the training that goes on in the
Justice Department. It is one that I think could actually be
expanded. I'm concerned that we're not interacting with our
State and local partners to the extent that we once did in
doing training with them. We're trying to bring into the NAC
people from the defense side as well. It's where people learn
to be good trial lawyers, learn a variety of skills, learn
their ethical obligations. It's an invaluable resource.
Senator Graham. Well, we appreciate your visit, and it will
be a place where, you know, cybersecurity is probably the issue
of the 21st century, and whether it's a crime, an act of war,
it depends, I guess, who's involved, but a lot of local law
enforcement folks probably have no idea how to handle this, and
it would be a good way to kind of educate the country as a
whole. And the collaboration between the University of South
Carolina and the NAC, I appreciate.
And I want the subcommittee to know that we took about 200
or 300 DOJ jobs out of Washington, because after 9/11, we were
worried about having every part of our Government in one city.
And we moved those folks down to South Carolina, in Columbia,
and you leased a building from the university. It saved about
$35 million. So, I just want to applaud you for trying to be
creative to decentralize DOJ, so that in case we're ever
attacked here, we don't lose all of our national assets, and it
was a way to save money.
Attorney General Holder. And we also have that relationship
with the university about the rule-of-law component as well.
And I think that's been a good synergy.
Senator Graham. To my colleagues, and I've been to
Afghanistan and Iraq, like many of you, and we're trying to
develop a rule-of-law program in Iraq, Afghanistan, Africa--you
name it. Without some basic rule of law, no country can
develop. And all the lessons we've learned the hard way, from
making mistakes, but finally getting it right in many ways,
we're trying to create a center at the University of South
Carolina, where those who have been overseas can share their
thoughts about what worked, what didn't. You could train before
you went. DOJ, Department of Agriculture, and the Department of
Defense, this is a team.
This war requires a team concept. And we're trying to reach
out to the Islamic world and create partnerships with lawyers,
and attorneys general, and judges in the Islamic world, so we
can understand them better, and they can understand us. And I'm
excited about it, and I appreciate your support.
REVAMPING THE FEDERAL CRIMINAL CODE
Now, Justice Scalia came out yesterday, or the day before,
talking about, he thought it would be wise if we looked at our
Federal criminal code, particularly in the drug area, to see if
we could reform it. And I think he's right. I think we've
Federalized way too many crimes, creating work for our
judiciary that could probably be handled better at the State
level. What do you think about the idea of revamping the
Federal criminal code, and looking at maybe undoing some of the
over-Federalization?
Attorney General Holder. When I came into office, I set in
place a number of working groups to look at that issue. Are we
bringing the right people into the Federal system? Are the
sentences that we have for the crimes that are Federal ones
appropriate?
Senator Graham. Like crack cocaine. We finally fixed that,
but that was just sort of an indefensible sentencing disparity.
Attorney General Holder. Right. I think the bipartisan
effort that resulted in the lowering of that ratio from 100 to
about 16 to 1 was something that was long overdue, and was a
great example. People don't focus on it, but it was an example
of Republicans and Democrats getting together and doing the
right thing, not only for the system, but it was something that
I think was morally right as well.
RECESS APPOINTMENTS
Senator Graham. And an area where we may disagree, we'll
talk about the law of war later, we don't have time here, but
the recess appointments made by President Obama a while back to
the National Labor Relations Board, is there a situation
similar to that in the history of the Senate, or by a previous
President, of appointing someone to a Federal agency under
those circumstances, that you're aware of?
Attorney General Holder. If you look at the 23-page report
by the Office of Legal Counsel (OLC), they go through a variety
of precedents. They look at the laws that exist, tradition, and
the conclusion that they reached was that given the length of
the recess, 20 days, or so, that the appointments were, in
fact, appropriate. This is obviously something that the courts
are going to ultimately decide, but I think that the OLC
opinion was accurately described.
Senator Graham. I think Senator Alexander will have a
discussion with you about that, but I take a different view.
But, I'll let him discuss that with you.
MILITARY COMMISSIONS
And finally, just to note, I think, maybe it was last week,
we had a plea bargain with a military commission detainee who
was one of the Khalid Sheikh Mohammed close confidantes. And I
know Mark Martins is the chief prosecutor, and you've got a
good defense team down there. I do support Article III courts
for terrorism trials, when appropriate. But, I just want to
acknowledge your support for military commissions in
appropriate circumstances, and with your help, I think we've
got these things up and running, and I look forward to more
action coming out of Guantanamo Bay to get some of these people
through the legal system. So, thank you for that support. And
to all those at Guantanamo Bay doing your job, you're doing the
country a great service, particularly the defense counsels.
Attorney General Holder. I think that's right. I think that
people should understand that the revised commissions that
exist, as I said in my speech at Northwestern, have many of the
elements of due process that we consider vital to the American
system. I think we have great defense lawyers down there.
The military system doesn't get the credit that it deserves
for the fair way in which it deals with people, and under the
direction of Mark Martins, who's a person I've known for some
time, I think we'll be proud of the work they do.
Senator Mikulski. Thank you very much, Mr. Attorney
General.
We're now going to turn to Senator Feinstein. Before
Senator Pryor leaves, I thank you and others for mentioning the
cyber exercise yesterday, and all who participated. Next week,
we're going to hear from the FBI, and we're going to do an open
hearing, and then we're going to do a classified hearing. This
will be an opportunity to ask many of your cyber questions and
go into the level of detail I think the subcommittee would
like. So, thank you.
Senator Feinstein.
STATEMENT OF SENATOR DIANNE FEINSTEIN
Senator Feinstein. Thanks very much, Madam Chairman, and
welcome, General.
I want to associate myself with the comments of Senator
Murkowski and Senator Hutchison. To me, the tragedy is that
Senator Ted Stevens died before he knew this was a faulty
prosecution. And that, to me, elevates this to a new height.
And so, I think this investigation is really important. And I
think that actions have to be taken. And I just wanted to
express that.
OIL SPECULATION
I wanted to followup on Senator Brown's comment. It's my
understanding that there's more oil available in the United
States than demand calls for. And as a matter of fact, surplus
is being sold outside. This, I think, would bring to special
attention the issue of speculation. And I hope the study that
you're doing is going to take a good look at the financial
marketplace, with regard to its ability to impact price in this
way.
Attorney General Holder. The Oil and Gas Price Fraud
Working Group that we formed last year as part of the
President's Financial Fraud Enforcement Taskforce has been
meeting. It just happens that they are having a call today, and
a meeting, I think either tomorrow or on Monday. The full
committee will be getting together to look at the issues that
you've raised and the issues that Senator Pryor raised.
Senator Feinstein. Good. Thank you.
FOREIGN INTELLIGENCE SURVEILLANCE ACT
As you know, title 7 of the Foreign Intelligence
Surveillance Act (FISA) expires at the end of the year. This
allows for electronic surveillance of targets outside the
United States. Senator Mikulski and I both serve on the Senate
Intelligence Committee, and we've done extensive oversight of
the Government's use of these surveillance authorities, and
look forward to working with you to make sure Congress can
reauthorize title 7 well before the end of 2012. We need to
maintain the collection of critical foreign intelligence and
provide certainty to intelligence professionals in that regard.
For members of this subcommittee that don't follow this
issue closely, could you explain the need to reauthorize title
7 of FISA and the efforts taken to protect the civil liberties
and privacy of Americans, as this title is carried out.
Attorney General Holder. The surveillance authorities that
are in the FISA Amendments Act are absolutely critical to our
national security. On a day-to-day basis, I authorize FISAs,
the head of the National Security Division does, sometimes the
Deputy Attorney General. It is a critical tool that we have in
keeping the American people safe. The administration strongly
supports the reauthorization, and as you indicated, hopes that
it occurs well before the end of the year, so that the
certainty that is needed by the men and women who are in our
intelligence community will have some degree of assuredness
that those tools will remain there, and that our fight against
those who would do harm to the United States can continue.
NATIONAL SECURITY
Senator Feinstein. Thank you. I also want to thank you for
your enormous help and the help of FBI with respect to national
security. FBI now has thousands of agents and analysts located
around the United States, essentially doing intelligence work.
So, that transition has been effectively made.
Director Mueller, at a worldwide threat hearing, indicated
to us that in the past year there have been 20 arrests in the
United States of people in this country planning or
participating in attempted terrorist attacks. And as you
mentioned in your recent testimony, Umar Farouk Abdulmutallab
was recently sentenced to life in prison.
Now, I also want to say that even though its specific
activities are classified, in your written testimony, you
mention the High-Value Detainee Interrogation Group, or the
HIG, as we call it. I can say that we've seen the excellent
intelligence the HIG is producing. And earlier this week, also,
four principle members of hacking groups, Anonymous and
LulzSec, were charged with computer hacking, and a fifth member
pled guilty.
NATIONAL SECURITY FUNDING
Now, to my question. It's two-fold. I think we have to
begin to look for redundancy and duplication of effort. We now
have a counterterrorism center. We now have Homeland Security
with intelligence, and we also now have FBI. And so I hope you
will take a look at that, because the dollars are precious, and
we're already experiencing cuts in the intelligence budget.
So, here's my question. What are, in the national security
area, your budget reductions? What will that mean for
counterterrorism, and are there any gaps in our efforts?
Attorney General Holder. We have adequate amounts of money
contained in the budget that we have requested. If you look at
the amount of money that has gone to FBI in the national
security sphere, since 2001 we've had about a 300-percent
increase for the Justice Department. For FBI, it might have
been about 400 percent. So, it's a very substantial increase
over the course of the last 10 years or so. Even with the flat
budget that we essentially have for the Justice Department and
its components, including FBI, we have adequate amounts of
money to keep the American people safe.
I will tell you that to the extent that I feel that it is
not the case, my voice will be heard. We have no greater
responsibility than keeping the American people safe.
Senator Feinstein. Good. Thank you very much. Thank you,
Madam Chairman.
Senator Mikulski. Senator Feinstein, we look forward to
working with you on that part of it.
Senator Alexander.
STATEMENT OF SENATOR LAMAR ALEXANDER
Senator Alexander. Thanks, Madam Chairman, and General
Holder, welcome. It's good to see you. I was thinking about a
conversation we had during your confirmation about Griffin
Bell, for whom you worked, and I know you admired him, and I
certainly admired him. I was a law clerk on a court when he was
judge. And one of the things he used to say and which I've
heard you say, I think, too, is that the attorney general is
the lawyer for the United States, not just the lawyer for the
President.
RECESS APPOINTMENTS
So, in following up with Senator Graham's comment on the
so-called recess appointments, I wanted to ask you a question.
As the lawyer for the United States, if the President calls you
up and said, ``General Holder, I notice that the Senate's gone
into recess for lunch. I've got a Supreme Court nominee I want
to appoint. Can we put him on the court without their advice
and consent?'' what would your answer be?
Attorney General Holder. Going to lunch? That would not be
a sufficient recess.
Senator Alexander. Well, what if he said they're going to
recess for lunch and for dinner, and they won't be back until
tomorrow? Would that be a sufficient recess?
Attorney General Holder. What we're getting at, if you look
at that OLC opinion, they would----
Senator Alexander. I'm asking your opinion, Mr. Attorney
General.
Attorney General Holder. Well, I associate myself with that
OLC opinion.
Senator Alexander. Does that mean you agree with it?
Attorney General Holder. With the OLC opinion?
Senator Alexander. Yes.
Attorney General Holder. Yes.
Senator Alexander. You do agree with it.
Attorney General Holder. Yes.
Senator Alexander. Then that means that the President, not
the Senate, can decide when it's in session for purposes of
advice and consent.
Attorney General Holder. Well, one has to look at the
reality, the totality of the circumstances, in determining
whether or not the Senate is actually in session, as that term
has historically been used, and the determination made by OLC
was that given the----
Senator Alexander. Well, if we look at that, Mr. President,
was your deputy solicitor wrong when he told the Supreme Court
in a letter 2 years ago that the Senate may act to foreclose
recess appointments by declining to recess for more than 2 or 3
days at a time? And was Senator Reid wrong in 2007 when he
really devised the plan for pro forma 3-day sessions, because
he said he heard that President Bush was about to make recess
appointments. And Senator Reid said on November 16, 2007,
``With the Thanksgiving break looming, the administration has
informed me they want to make several recess appointments. As a
result, I'm keeping the Senate in pro forma to prevent recess
appointments until we get back on track.'' And the next year he
said, ``We don't need to vote on recess. We'll just be in pro
forma session. We'll tell the House to do the same thing.''
President Bush didn't like it, but he respected it.
So, are you saying that the President, not the Senate, can
decide when it's in session for purposes of a recess
appointment?
Attorney General Holder. What we have to do and what we
have done in this OLC opinion is look at history, look at
precedent, look at the law, use some common sense when it comes
to the approach of whether or not the Senate is actually in
session.
Senator Alexander. Well, was Senator Reid wrong?
Attorney General Holder. The determination that we made
here was that with regard to that 20 days in which those pro
forma sessions were occurring, that those were, in fact----
Senator Alexander. But the Senate had decided it was in a
3-day session, according to the Reid formula. So, was Reid
wrong about that?
Attorney General Holder. I'd have to look at exactly what
occurred during that 3-day period, but given the facts that
were presented to OLC in this instance, I think the
determination that they made was correct.
Senator Alexander. So, I don't see why the President
couldn't look at the Senate and say, ``I'm going to send up a
Supreme Court justice, and I'm going to skip advice and
consent.'' I'm astonished by this, really. And I would think
Democratic as well as Republican Senators would honor the Reid
formula that President Bush honored. The Senate did the very
same thing in January, and the President, nevertheless, made
four appointments during the time when constitutionally he
shouldn't have, according to all the precedent that I've seen.
Attorney General Holder. The only thing I'd correct is that
the determination was not made by the President. The
determination was made by OLC, we then shared that opinion with
the President, and the President made the decision as to what
he wanted to do.
Senator Alexander. He made the decision not to respect the
Senate's decision about when it's in session or when it's not,
which, to me, is a blatant lack of regard for the
constitutional checks and balances, and something that we ought
to avoid.
METHAMPHETAMINE LABS
May I ask quickly a question? Last year, the Department
found money to support the work against methamphetamine, and I
compliment the Department for that. I know it's getting
increasingly harder. In our State, we had the highest number of
meth lab seizures in the Nation. The money's running down. The
State's increasing its funding. Will the Department again be
able to try to help States that are working on this, as you
were able to do last year?
Attorney General Holder. We are certainly going to try to,
as best we can. I know one of the things that we have seen with
regard to the cleanup of meth sites is that there have been a
number of these container activities. I think this is right,
that Tennessee is actually a leader in that effort.
Senator Alexander. Yes.
Attorney General Holder. There have been a number of States
that have come up with things, and instead of it costing, I
don't know, $3,000, $4,000, $5,000 to do that, it actually
comes down to $200 or $300. The experience that we have seen
there is something that we have to extrapolate and use in other
parts of the country as well.
Senator Alexander. Thank you, General Holder. Thank you,
Madam Chairman.
Senator Mikulski. Senator Lautenberg.
Senator Lautenberg. No. I think----
Senator Mikulski. Oh. I'm sorry. Wait. Wait. It's a little
rock-and-roll in here today. First of all, Senator Leahy, the
chair of the Judiciary Committee, excuse me, and then Senator
Lautenberg.
STATEMENT OF SENATOR PATRICK J. LEAHY
Senator Leahy. Thank you, Madam Chair.
RECESS APPOINTMENT
Attorney General Holder, good to have you here. If I could
just follow-up a little bit on what my good friend from
Tennessee, Senator Alexander, said on the recess appointments.
There is an easy way out of all of this. It requires a little
cooperation on both sides. And I suggested this in the
Judiciary Committee, that the President resubmit the
nominations, and the Republicans agree to have an up or down
vote, say, within 1 week or 2 weeks. The President did this,
because even though everyone knew there were more than 50
votes, which is normally what it takes to confirm somebody,
available, my friends on the other side of the aisle were
blocking having a vote.
I understand the President's frustration, but I think the
easy way out of this is simply if the Republican leadership
would agree to an up or down vote, say, within 1 week or 2
weeks, whatever amount of time needed for it to be, and
resubmit them and have the up or down vote. That takes care of
all the problem. I just would suggest that as an easy way out.
It's not as much fun on the talk shows, but it helps the
Government.
GRANT PROGRAM DUPLICATION
Mr. Attorney General, your Department administers many
crucial grant programs that help victims and law enforcement,
including ones that I've been very heavily involved with, the
Violence Against Women Act programs. And as you know, Senator
Crapo and I have a reauthorization bill on the COPS grants and
the bulletproof vest partnership program. GAO has said there's
duplications and inefficiencies in some of the grant programs.
Will your Department work to make sure if there are any
duplications that they be removed? Because these are good
programs, but there's only so much money to go around.
Attorney General Holder. That's exactly the problem that we
have. There's limited amounts of money to go around, and we
have to make sure that there's not duplication. Managers from
OJP, from COPS, OVW regularly meet to coordinate their
programs, their activities. I think that one thing that people
should not assume is that because, for example, you see the
word ``victim'' in a number of the things that we do in the
Department, that necessarily means that we're duplicating
efforts there. They have very distinct responsibilities. We are
working to make sure that the money that we have is being used
in an efficient and appropriate way.
BULLETPROOF VESTS
Senator Leahy. One of the things I'm very proud of for my
time here in the Senate is a bill that I wrote with then-
Senator Ben Nighthorse Campbell on bulletproof vests, so much
so, that I walked down the street in Denver, Colorado, 1 year
or so ago, a police officer came up, asked if I am who I am.
And I said, ``Yes, I am Senator Leahy.'' He just tapped his
chest and said, ``Thank you.''
But, we've been told by GAO that there's some funds that
have not been obligated on the bulletproof vest partnership
grant program. Law enforcement--especially in the smaller
communities, where they do not have the budget to buy the
bulletproof vests, which are $500, $600--need these funds. Can
you check to make sure these funds are obligated as quickly as
possible?
Attorney General Holder. Yes. To the extent that funds were
not drawn down, we are taking steps to allow jurisdictions to
use that unused funding, and have the time period with which
they could drawdown extended, so that we can get these
bulletproof vests out to these officers.
Senator Leahy. And I would reiterate what I had told you
when we chatted earlier this week, when I was in Vermont, about
your speech earlier this week in guiding drones and targeting
of U.S. citizens, I still want to see the OLC memorandum, and I
would urge you to keep working on that. I realize it's a matter
of some debate within the administration.
Attorney General Holder. That would be true.
Senator Leahy. And please keep my staff and me updated on
the progress of the review of the NYPD surveillance of Muslim
Americans.
Attorney General Holder. We will.
SAME-SEX IMMIGRATION PETITIONS
Senator Leahy. And last, I wrote to you and the Secretary
of Homeland Security, Janet Napolitano, to encourage you to
hold marriage-based immigration petitions for same-sex spouses
in abeyance, in light of the administration's decision to no
longer defend the constitutionality of the Defense of Marriage
Act. I heard it may be granting individual cases. I hope you
will reconsider the administration's position.
We have a case I've written to you about, Frances Herbert
and Takako Uedo, who are married in Vermont lawfully. We have a
number of States where same sex marriages are legal, but then
they run up against the immigration problem. So, please review
that.
Attorney General Holder. Okay. I will look at that case,
and we'll get back to you, Senator.
Senator Leahy. Thank you. Thank you, Madam Chair.
Senator Mikulski. Those were excellent points, Senator
Leahy, and thank you very much.
Senator Lautenberg.
STATEMENT OF SENATOR FRANK R. LAUTENBERG
Senator Lautenberg. Thanks very much, Madam Chairman, and
welcome, Attorney General Holder. The job doesn't seem to be
getting easier, and I'm not blaming you. I'm just sympathizing
in some ways.
Attorney General Holder. It's a good observation.
VIOLENT CRIME
Senator Lautenberg. Not so much that I won't ask for more,
because we're doing with less, and we see it in my State of New
Jersey, 246 gun murders in 2010; 12 percent more than the
previous year. We've had layoffs galore from cities that can't
afford to maintain their police force structure. So, when I
look at the things that we're doing, I worry about what it is
that we can do from your Department and from others. What can
we do to help these communities? State budget cuts have caused
Newark, Camden, and other cities in New Jersey to cut their
police forces at alarming rates; one-third of the police force
in Camden, more than 100 terminations of police officers in
Newark.
In December, I wrote asking if you could provide Federal
resources to assist our ailing cities, and I am pleased, Mr.
Attorney General, to see an increase in the budget for COPS
grants. Is DOJ planning other steps that we can use to help
protect New Jerseyans from violent crime?
Attorney General Holder. We're certainly making sure that
in terms of COPS grants we do the best that we can there. We
have a substantial amount of money in the budget. I spoke to
the mayor of Camden. I was at a reception and I saw her. We
have certainly, with regard to Camden, in 2011 made available
monies to hire 14 officers, $3.79 million; 2010, 19 officers,
$4.2 million. We'll be looking at that kind of unique situation
again this year. We certainly are putting into New Jersey, and
in other places, task forces, so that the DEA, the ATF, the FBI
are helping to the extent that we can, as well.
There are a variety of ways in which the Federal Government
can help, given the economic situation that many cities around
the country are facing. We want to be good partners in that
way. Camden is a place that deserves special attention, given
the unique problem that we see there.
Senator Lautenberg. Can I ask your view on whether or not
you think we're doing enough between your Department, the FBI,
our State and local police people? Are we doing enough, based
on what we see with the statistics? Do you think that we're
doing enough to say honestly that we're protecting our people
appropriately?
Attorney General Holder. We have crime rates that are at
historic lows, 40- and 50-year lows, and yet, I'm still
troubled by the number of police officers, for instance, who
have been killed in the line of duty in the last 2 years, where
we've seen a 16-, 20-percent increase there. That is something
that we have to work on.
I'm concerned about the fact that although the numbers of
murders are down, 67 percent of them occur by people who are
using firearms. That's an issue that we have to deal with. Too
many of the wrong people have access to guns, and they use them
in inappropriate ways. The targets of many of those people are
law enforcement officers, who are sworn to protect us, and we
have to do everything that we can to try to protect them.
HIGH-CAPACITY AMMUNITION
Senator Lautenberg. Well, the wrong people or wrong laws?
The man who shot Congresswoman Giffords last year used a gun
with a high-capacity ammunition clip to kill 6 people, wound
13. It was only when he fired all 31 rounds in his clip that
people were able to subdue him. And these high-capacity
magazines were banned by the Congress until 2004. Last year,
you said that you thought that reinstating this ban should be
examined. What's the result of that examination?
Attorney General Holder. We're still in the process of
working our way through that. I think there are measures that
we need to take. We need to be reasonable, understanding that
there is a second amendment right with regard to firearms, but
even the dissent in the Heller case indicated that reasonable
restrictions can be placed on the use of weapons. What this
administration has tried to do is to come up with ways in which
we are respecters of the second amendment, and yet come up with
reasonable, appropriate firearms laws that will ultimately
protect the American people.
Senator Lautenberg. Madam Chairman, your indulgence for one
more question, please.
NYPD SURVEILLANCE
Over the past several years, the NYPD has been engaged in
surveillance of New Jersey's communities and universities
searching for those who might be accused of terror; Governor
Christie and Newark Mayor Cory Booker both were apparently
unaware of this large-scale investigation. How can the law
enforcement agencies spy on another State's residents without
notifying the authorities, the Governor, the mayor even knowing
about it?
Attorney General Holder. I don't know. We are in the
process of reviewing the letters that have come in expressing
concerns about those matters. There are various components
within the Justice Department that are actively looking at
these matters. I talked to Governor Christie. Actually, I saw
him at a reception a couple days or so ago, and he expressed to
me the concerns that he had. He has now publicly expressed his
concerns, as only he can. I think, at least what I've read
publicly, again, just what I've read in the newspapers, is
disturbing, and these are things that are under review at the
Justice Department.
Senator Lautenberg. Thank you, General Holder. Thank you,
Madam Chairman. I assume the record will be kept open.
ADDITIONAL COMMITTEE QUESTIONS
Senator Mikulski. The record will be kept open for
questions, and we then ask the Department to respond within 30
days. Senators may submit additional questions. We ask the
Department to respond within 30 days.
[The following questions were not asked at the hearing, but
were submitted to the Department for response subsequent to the
hearing:]
Questions Submitted by Senator Barbara A. Mikulski
Question. The Department's request for State and local grants is $2
billion. This is down from roughly $3.7 billion funded for grants in
fiscal year 2010.
What is the total amount of money applied for in these competitive
grant programs versus the amount actually awarded to States and
localities?
Answer. In fiscal year 2011, Office of Justice Programs (OJP)
received a total request of more than $7.1 billion in discretionary
applications; OJP awarded more than $850 million in discretionary
funding.
In fiscal year 2011, the Office on Violence Against Women (OVW) OVW
had applications totaling $1,150,510,742; OVW awarded $457,900,491 in
grants. OVW's yearly budget requests seek funding to support four core
priorities of OVW:
--preventing violence against women;
--addressing sexual assault;
--extending our programming to underserved communities; and
--restoring and protecting economic security to victims of violence.
For fiscal year 2012, $412,500,000 was appropriated to OVW to
further the Department's efforts to improve the Nation's response to
domestic violence, dating violence, sexual assault, and stalking. The
fiscal year 2013 overall request for the OVW totals $412,500,000,
making the fiscal year 2013 total resource request for OVW equal to the
fiscal year 2012 enacted appropriation.
In fiscal year 2011, the Office of Community Oriented Policing
Services (COPS) received applications totaling $2,067,924,397. COPS
awarded more than $313 million in grants funding. The COPS office
received $243,439,595 for the COPS Hiring Program in appropriated funds
for fiscal year 2011 and awarded $243,398,709. All agencies were asked
to cap their request at no more than 5 percent of their current actual
sworn force strength, up to a maximum of 50 officers. However, in order
to provide funding assistance to the largest number of eligible
agencies, the COPS office decided to further reduce the cap from a
maximum of 50 officers to 25 officers. Had this methodology not been
adopted as part of the hiring program solicitation, the total amount
that would have been requested would have been $5,354,837,329. For
fiscal year 2012, $166,000,000 was appropriated for the COPS Hiring
Program. The COPS office will make 2012 hiring awards later this
summer. The fiscal year 2013 budget request includes $257,087,000 for
the COPS Hiring Program.
DUPLICATION IN GOVERNMENT PROGRAMS
Question. The Government Accountability Office (GAO) recently
released an updated version of its 2011 report on duplicative
Government programs, ``Opportunities to Reduce Potential Duplication in
Government Programs, Save Tax Dollars, and Enhance Revenue'', as well
as a new 2012 version of the report. In 2011 and 2012, GAO counted
Department of Justice (DOJ) programs among those that are potentially
duplicative.
Has the Attorney General conducted an assessment to better
understand which State and local grant programs overlap with one
another to prevent unnecessary duplication, as the GAO report
recommended?
Answer. Improving the effectiveness and efficiency of Federal
programs is a critical priority of the administration and the
Department. The Department is committed to continuing efforts to
prevent unnecessary duplication, identifying overlaps in programs, and
streamlining where it would ensure more effective grant assistance. The
Department will initiate an assessment to better understand the extent
to which Department grant programs may overlap and identify ways to
mitigate the risks for unnecessary duplication. This assessment will be
conducted by OJP's Office of Audit, Assessment, and Management.
Question. Has Department staff reviewed the report and conducted
the analysis of grants recommended by GAO?
Answer. The Department appreciates the work of GAO and has
carefully considered the findings and recommendations presented in
GAO's report. The Department agrees that preventing unnecessary
duplication in Government programs is a critical priority. The
Department's grant agencies have significantly improved collaboration
and information-sharing to mitigate the risk of duplicative Federal
spending. The DOJ grantmaking agencies closely collaborate on the
development and implementation of grant programs and share information
with each other to improve coordination prior to making awards. The
Department components will continue to coordinate with one another to
ensure sound stewardship and management of its grants.
Question. What independent steps have the Justice Department
taken--prior to the release of the GAO report--to identify potentially
duplicative grant programs?
Answer. DOJ grantmaking agencies closely collaborate on the
development and implementation of grant programs to avoid the types of
potential problems cited by GAO. Managers from OJP and its bureaus,
COPS, and OVW meet regularly to coordinate their programs and
objectives, and they pay particular attention to those areas where they
have complementary joint programs. Additionally, the executive branch
annual budget process provides a multi-level review of all component
budgets and requires programs to be modified or deleted if overlap or
duplication is identified. It is important to note, however, that
overlapping activities do not necessarily signify duplication. For
example, the following selected examples demonstrate the Department's
commitment to work collaboratively among its own components as well as
Federal Governmentwide to improve performance and effectively target
the public safety needs of our communities.
--In January 2011, the first meeting of the Federal Interagency
Reentry Council convened. The council addressed short-term and
long-term goals on prisoner re-entry through enhanced
communication, coordination, and collaboration across Federal
agencies.
--OJP is leading a parallel staff level effort, which includes 35
people from 17 different Federal agencies including the
Departments of Health and Human Services (HHS), Housing and
Urban Development (HUD), Labor (DOL), Education (ED),
Veterans Affairs, Agriculture, and the Social Security
Administration, and others.
--OJP is also spearheading the National Forum on Youth Violence
Prevention, which is an effort launched, at the direction of
the White House, by DOJ and ED, to directly and locally address
the needs of communities that continue to experience high
levels of youth violence. Using comprehensive technical
assistance, the Forum enables Federal agencies to serve as a
catalyst for broad-based positive change at the local level in
a very efficient, cost-effective manner.
--For the first time, all of DOJ's components and leaders are working
together to provide the most efficient and timely information
to tribal communities. As cited in the GAO report, beginning in
fiscal year 2010, the Department created the Coordinated Tribal
Assistance Solicitation (CTAS), which coordinates the
applications of most of the Department's tribal government-
specific criminal justice assistance programs administered by
OJP, OVW, and COPS under one solicitation. Through CTAS, tribes
can apply for funding for many of their criminal justice needs
with one application.
--The Tribal Law and Order Act enacted in July 2010, contained
amendments to multiple laws with an impact across DOJ
activities in Indian country, including a number of OJP
programs. The CTAS collaborative experience readied us for
statutorily mandated coordination required for law enforcement,
training, increased grants authority, and crime data analysis
and reporting.
--We are partnering with other Federal agencies to conduct
inventories of Federal resources, develop interagency
memorandums of agreement, and long-term comprehensive plans
to improve our performance, eliminate duplication, and
identify gaps to better serve tribal governments and their
communities, in consultation with tribes.
--DOJ is an active participant in the Senior Policy Operating Group
(SPOG), which coordinates Federal strategies and programs to
combat human trafficking. National Institute of Justice and the
State Department co-chair the SPOG Committee on Data and
Research.
--The Attorney General's Defending Childhood Initiative is being
coordinated across OJP, COPS, OVW, the U.S. Attorneys offices,
as well as other components within the Department and the
Federal Government.
--The Neighborhood Revitalization Initiative, which is a White House-
led interagency collaboration, is executing place-based
strategies to engage and support local communities in
developing and obtaining the tools they need to revitalize
their own neighborhoods of concentrated poverty.
--The Federal Government already directs significant resources to
these neighborhoods, but we can always look for additional
ways to continue to support them. Better alignment of
Federal programs will help local leaders to use Federal
funds more effectively, making our taxpayer dollars go
further.
--Through our Byrne Criminal Justice Innovation program, OJP and the
Department will strengthen partnerships with HUD, ED, HHS and
the Treasury in distressed neighborhoods to implement effective
strategies to address persistently high violent crime, gang
activity, and illegal drugs.
--The COPS office is heavily invested in the White House initiative,
Strong Cities Strong Communities, where it provides technical
assistance to the Chester, Pennsylvania police department on
issues such as crime analysis, faith-based partners, and
community-based government problem-solving.
--To further advance national discussion regarding these important
topics, the COPS office and OJP's Bureau of Justice Assistance
have convened an Officer Safety and Wellness Group that brings
together law enforcement leaders, criminal justice
practitioners, Federal agencies, professional organizations,
and academics to share perspectives on improving officer safety
and wellness.
Additionally, the Department is working as a whole to coordinate
and improve our grants management efforts. The Associate Attorney
General's Office leads the DOJ-wide Grants Management Challenges
Workgroup. The Workgroup is comprised of grants officials from COPS,
OJP, and OVW, to share information and develop consistent practices and
procedures in a wide variety of grant administration and management
areas. In fiscal year 2011, the working group successfully implemented
the DOJ-wide high-risk grantee designation program and a DOJ-wide,
online financial training tool for DOJ grantees.
Question. Have you met with any roadblocks in the Department's
attempts to eliminate or consolidate potentially duplicative programs?
Answer. The Department is committed to continuing efforts to
consolidate grant programs as appropriate and use ``evidence-based''
approaches to identify programs that work, as well as those that do
not. An example of this effort is the fiscal year 2013 President's
budget proposal for the consolidation and expansion of funding for Drug
Courts and the Mentally Ill Offender Act Program. A similar proposal
also was included in the fiscal year 2012 President's budget, but not
adopted.
In fiscal year 2012, the Congress supported the Department's budget
proposal to merge several youth-oriented programs under OVW into one
single program.
We are working smarter by promoting evidence-based approaches and
developing and spreading knowledge about what works and what causes
crime and delinquency because of limited resources. Evidence-based
knowledge is critical to help policy-makers at the Federal, State, and
local levels know what to fund, what not to fund. For example, OJP has
developed tools such as CrimeSolutions.gov and the Diagnostic Center,
which help jurisdictions focus on evidence-based ``smart on crime''
approaches to maximize resources and improve public safety results.
Question. Does the Department think that the programs listed in the
report are duplicative? Why or why not? What grant programs do the
Department view as duplicative?
Answer. In its comments to the GAO on the report, the Department
expressed significant concerns with GAO's methodology and identified
flaws in its analysis. This flawed methodology resulted in a
substantial overstatement of the number of programs that might
potentially be operating in the same policy area. GAO categorized 253
solicitations into broad justice areas to identify ``evidence of
overlap'' in justice areas. This approach is oversimplified and
imprecise, resulting in a large number of solicitations in each broad
category. Narrowing the justice areas would have provided for a more
informative analysis of where DOJ funding is being applied. For
example, the ``technology and forensics'' category is extraordinarily
and unnecessarily expansive. Refining this justice area--such as
information sharing standards development, criminal intelligence
sharing, DNA backlog reduction, equipment and materials testing--would
have been more informative, accurate, and less misleading.
Additionally, the GAO report identified 56 solicitations providing
victim assistance, citing these as overlapping. While some might look
at DOJ and see overlapping programs related to crime victims, what we
actually have are programs directed at providing direct assistance and
counseling to victims and their families; programs directed at training
community law enforcement entities to better address the needs of
victims; academic and forensic programs directed at research on victim
issues; and statistical collections providing national data on the
incidence of victimization and the consequences to crime victims.
GAO did not identify actual duplication; rather it cited examples
of potential duplication. DOJ examined the award information of these
grants and found no instance of grantees receiving funding to carry out
the same activities. Although GAO acknowledges DOJ's review, the
examples remain in the report to support its ``findings.'' One example
cited in the report as potential duplication involves the Office of
Juvenile Justice and Delinquency Prevention and COPS grants to the
Georgia Bureau of Investigation. DOJ determined that each of three
grants is being used to target different issues:
--child prostitution and potential sexual slavery issues in Georgia;
--Internet crimes against children; and
--identification of sex offenders.
A second example reports that one applicant received funding under
two awards from OVC and OVW to support child victim services through
its child advocacy center. DOJ reviewed these grants, to the Tuilpe
Tribes of Washington, and determined that the tribe sought multiple
funding sources because one source did not adequately cover the costs
to establish the center and then carry out its activities in subsequent
years.
Further, the Department was concerned with the lack of
understanding that GAO showed related to the Department's
``leveraging'' and sustainability funding strategy. GAO concluded that
DOJ's granting agencies have awarded multiple grants to the same
communities for the same or similar purposes. Although GAO
acknowledges, ``there may be times when Justice's decision to fund
grantees in this manner may be warranted'', the content and tone of the
report wrongly infers that recipients receiving related grant funding
from more than one agency is wasteful or unnecessary. Due to limited
funding, DOJ encourages grantees to use multiple funding streams in a
complementary manner to support local needs and implement comprehensive
programs. DOJ and other agencies encourage this as a ``leveraging'' and
sustainability strategy.
Question. What steps are the Department and the administration
taking--both independently and together--to eliminate duplication,
abuse, and waste in the Department's grantmaking process in response to
the GAO report?
Answer. The Department has been proactive in identifying and
addressing unnecessary duplication. During the program design and the
annual budget formulation process, the Department carries out the
following actions to avoid duplication and overlap:
--Components regularly collaborate during the budget formulation
process.
--DOJ's Justice Management Division Budget Division and senior
officials review all component budgets prior to their
submission to the Office of Management and Budget and require
programs to be modified or deleted if overlap or duplication
exists.
In addition, there are systems and tools in place that can be used
to ascertain if duplication of awarded funds exists. Such as:
--All three DOJ major grantmaking components (OJP, COPS, and OVW) use
the same accounting system and OJP and OVW both use the Grants
Management System (GMS). All GMS users can access detailed
program information.
--OJP's Office of the Chief Financial Officer conducts financial
monitoring of grants of all three DOJ grantmaking components
(OJP, COPS, and OVW) and identifies potential areas of overlap
between programs and related funding.
--DOJ grantee audits (both single audits and Office of Inspector
General grant audits) represent an independent examination of
funding at the grantee level. Single audits, which are
mandatory for grant recipients who expend more than $500,000 in
Federal funds during a fiscal year, provide the auditors with
an opportunity to examine funding and related expenditures for
all grant programs.
As it relates to existing program areas that cross components:
--OJP, COPS, and OVW regularly collaborate with other DOJ components
in areas where programs overlap to ensure that efforts are
efficient and effective. For example, the Attorney General has
convened the Federal Interagency Reentry Council in which 18
Federal agencies participate.
--DOJ coordinates intra-agency working groups to develop and improve
programs and reduce the possibility of duplication and overlap.
For example, CTAS involves DOJ, OJP, COPS, and OVW in
development of a single solicitation for all DOJ grants for
tribal governments.
--OJP also leads interagency coordination groups to strategically
utilize each component's strengths and minimize duplication.
For example, OJP leads the National Forum on Youth Violence
Prevention with strong participation from COPS, OVW, and other
Federal agencies such as DOL, HUD, and ED.
For grants management activities, DOJ grant components participate
in the Grants Management Challenges Working group as previously
described in another section.
The Department has tackled the challenges of grants management
aggressively, establishing policies, procedures, and internal controls
to ensure sound stewardship, strong programmatic and financial
management, and effective monitoring and oversight of its grants and
grant programs. These policies and internal control framework position
the Department to carry out statutory mandates and requirements and to
detect and prevent potential waste, fraud, and abuse of the billions of
taxpayer dollars the Department awards in grants each fiscal year.
The Department is dedicated to continuously improving its oversight
and monitoring of grantees and grant programs. The Department reduces
risks for fraud and abuse by identifying high-risk and at-risk grantees
and ensuring compensating controls are implemented. The DOJ high-risk
grantee program requires appropriate controls to be in place to ensure
that grantees with outstanding noncompliance issues implement timely
corrective actions to address the issues; a grantee's risk status is
addressed during the grant award process; enhanced oversight and
monitoring is provided to the grantee. The Department ensures grantees
have access to financial and grant fraud training. The OJP Office of
the Chief Financial Officer provides training to grantee participants
through its Regional Financial Management Training Seminars. These
seminars cover critical topics such as subrecipient monitoring, cost
principles for allowable and unallowable costs, reporting requirements,
grant fraud, waste, and abuse, audit requirements, and prohibition of
excess cash on hand. In December 2011, DOJ launched an on-line
financial management training tool for all DOJ grantees and grant
management staff.
The Department's Office of Inspector General works closely with the
grant components to provide training on detecting and preventing grant
fraud to its grantees and staff. For example, since fiscal year 2009,
more than 600 OJP employees have participated in grant fraud training.
FEDERAL PROGRAMS FACING CUTS
Question. Under the terms of the Budget Control Act of 2011 (Public
Law 112-25), funding for virtually all Federal programs will face an
across-the-board cut in January 2013 if the Congress fails to reduce
the national debt by $1.2 trillion. According to CBO estimates, this
would result in a cut of roughly 8 percent to programs across DOJ.
How would these cuts affect the Department?
Answer. Under the terms of the Budget Control Act of 2011 (Public
Law 112-25), virtually all Federal programs will face an across-the-
board cut in January 2013 if the Congress fails to enact legislation
that would reduce the national debt by an additional $1.2 trillion.
According to CBO estimates, such an across-the-board cut would result
in a reduction of at least 7.8 percent to programs across DOJ. A 7.8-
percent reduction equates to a loss in funding of approximately $2.1
billion.
Question. Please provide a list of expected workforce furloughs,
cuts to grant programs, and other reductions at DOJ if sequestration is
implemented.
Answer. The Department supports the fiscal year 2013 President's
budget request, which would avoid a sequestration, if enacted as
proposed. However, the impact of an across-the-board cut of 7.8 percent
would mean a reduction of approximately $2.1 billion to the
Department's budget authority. To implement this cut, the Department
would have to cut both personnel and operational funding. While the
specific implementation of a 7.8-percent across-the-board cut cannot
yet be determined, such a cut to DOJ's budget could result in the loss
of more than 15,000 personnel, including furloughing all DOJ employees
for 25 days. These personnel cuts, along with significant operational
cuts, would mean reductions in the apprehension of violent fugitives,
fewer Federal Bureau of Investigation (FBI) national security
investigations, fewer affirmative litigation efforts, and more crowded
prisons. For context, a 7.8-percent cut would mean 5,400 fewer Federal
agents and nearly 1,250 fewer attorneys available to investigate and
prosecute violent criminals, perpetrators of fraud, fugitives from
justice, transnational criminal organizations, and cartels and
terrorists. In addition, the Bureau of Prisons would have 2,500 fewer
correctional officers to operate prison facilities in a manner
consistent with officer and inmate safety and the Department's grant
programs would be reduced by $110 million compromising relationships
with State and local law enforcement organizations and programs
critical to advancing public safety.
Question. How would these cuts affect the Department's ability to
carry out its mission?
Answer. An across-the-board cut of 7.8 percent would jeopardize the
Department's ability to fulfill its missions to prevent terrorism,
enforce Federal law, and ensure the fair administration of justice.
While the specific implementation of a 7.8-percent across-the-board
cut cannot yet be determined, such a cut to DOJ's budget could mean:
--49,654 fewer immigration matters completed by immigration judges;
--5,430 fewer matters opened by the National Security Division;
--7,713 fewer cases filed by U.S. Attorneys;
--9,705 fewer investigations conducted by the FBI;
--$335 million more revenue in the pockets of drug trafficking
organizations;
--79 fewer local police hires;
--300 fewer Foreign Intelligence Surveillance Act applications filed
by the National Security Division;
--$1.6 million decrease in restitutions, recoveries, and fines
related to FBI white collar crime investigations; and
--6,495 fewer bulletproof vests for State and local law enforcement
personnel.
______
Questions Submitted by Senator Patrick J. Leahy
OFFICE OF LEGAL COUNSEL MEMORANDUM--COUNTERTERRORISM OPERATIONS
Question. Earlier this week, you gave a speech outlining some of
the legal rationale for the use of lethal force against American
citizens overseas in terrorism cases. In your speech, you stated that
``the executive branch regularly informs the appropriate Members of
Congress about our counterterrorism activities, including the legal
framework, and would of course follow the same practice where lethal
force is used against United States citizens.'' While your speech was a
welcome step toward more transparency about the legal rationale for
these actions, it is no substitute for an independent review by the
Congress of the actual legal opinion underpinning such actions. As
Chairman of the Judiciary Committee, I have made repeated requests for
the legal opinions upon which the administration has relied in taking
such extraordinary actions against American citizens.
Can you tell me when you will be sending me a copy of the Office of
Legal Counsel (OLC) memorandum authorizing the use of lethal force
against American citizens in counterterrorism operations, including the
operation that killed Anwar al-Awlaki?
Answer. OLC regularly publishes opinions that the office determines
are appropriate for publication. The opinion in question is currently
covered by executive privilege and therefore will not be released
beyond the Department. Moreover, the Department does not comment on any
specific case or individual. However, as noted before, the conduct and
management of national security operations are core functions of the
executive branch, as courts have recognized throughout our history. In
order to ensure proper oversight, and in keeping with the law and our
constitutional system of checks and balances, the executive branch
regularly informs the appropriate Members of Congress about our
counterterrorism activities, including the legal framework, and would
of course follow the same practice where lethal force is used against
United States citizens.
NEW YORK CITY POLICE DEPARTMENT SURVEILLANCE PROGRAM
Question. In recent months, we have heard troubling information
about the surveillance operations of New York City Police Department
(NYPD)--particularly targeting the Muslim-American community. According
to press accounts, the NYPD has been compiling databases of information
concerning Muslim Americans residing throughout the northeast, and has
used informants called ``rakers'' and ``mosque crawlers'' to infiltrate
mosques and Muslim student groups. There have also been reports of CIA
involvement in NYPD's surveillance program. Last week, you told a House
Appropriations subcommittee that the Department of Justice (DOJ) was
reviewing complaints it had received concerning the NYPD's surveillance
program, in order to determine what actions should be taken by DOJ.
I would request that you keep me and my staff updated as to the
progress of this review. Can you tell me the current status of the
Department's review into these allegations of civil rights violations
by the NYPD?
Answer. At this time, the Civil Rights Division is continuing its
review into allegations of civil rights violations by the NYPD
Surveillance Program. The Attorney General has authority to bring
litigation to address patterns or practices by law enforcement agencies
that deprive persons of rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States (42 U.S.C.
14141). This authority has been delegated to the Civil Rights Division
of DOJ and the Division often works with the local U.S. Attorney's
office. Each allegation of misconduct is reviewed and in a portion of
cases, a formal investigation or another response is authorized.
Investigations typically involve site visits, hundreds of interviews,
and the review of tens of thousands of pages of documents. In addition
to Division attorneys and investigators, the Division engages experts,
typically well-respected law enforcement executives, to assist in the
investigation. There is no way for us to provide a general timeframe
for a preliminary inquiry or a formal investigation. Timelines for
inquiries and investigations are controlled by the facts found.
Question. As the Department conducts its review of these
complaints, I also ask that you evaluate the extent of coordination
between the NYPD and the Federal Bureau of Investigation (FBI). I am
particularly interested in whether data obtained through NYPD
surveillance methods is shared with and used by FBI in accordance with
DOJ guidelines. Will you do that?
Answer. FBI and NYPD work together on the Joint Terrorism Task
Force, share investigative information, and exchange queries for
operational and tactical de-confliction purposes in accordance with DOJ
and FBI policies. However, FBI does not receive NYPD surveillance
information.
SAME-SEX IMMIGRATION PETITIONS
Question. On April 6, 2011, I wrote to you and the Secretary of
Homeland Security, Janet Napolitano, to encourage you to hold marriage-
based immigration petitions for same-sex spouses in abeyance in light
of the administration's decision to no longer defend the
constitutionality of the Defense Against Marriage Act (DOMA). The
response I received on May 17, 2011, suggested that discretion may be
granted in individual cases, but that the agencies would not exercise
discretion in a categorical manner. Subsequently, the Department of
Homeland Security (DHS) denied the spousal-based petition of a Vermont
couple, Frances Herbert and Takako Ueda who are lawfully married under
Vermont statute. Particularly in States such as Vermont, where same-sex
marriages are legally recognized, we believe that DHS has the legal
authority to hold such cases in abeyance, and to exercise prosecutorial
discretion for those in removal proceedings. I ask that you reconsider
the administration position articulated in the May 17, 2011 letter.
Will you do so?
Answer. While we cannot comment on the specific example cited, DOJ
and DHS are continuing to follow the President's direction to enforce
DOMA. Both DHS, through U.S. Citizenship and Immigration Services and
Immigration and Customs Enforcement (ICE), and DOJ, through the
Executive Office for Immigration Review, have discretion to make
individual case determinations, and have used that discretion in a
number of recent cases. The agencies have not, however, granted any
form of blanket relief to the entire category of cases affected by
DOMA. As ICE Director Morton described in a June 17, 2011 memorandum,
``Providing Guidance on the Exercise of Prosecutorial Discretion
Consistent With the Department's Civil Immigration Priorities'', ICE's
current enforcement priorities are aliens who pose a clear risk to
national security or to public safety and those with an egregious
record of immigration violations.
______
Questions Submitted by Senator Frank R. Lautenberg
PAN AM 103 BOMBING
Question. Only one person has ever been convicted in connection
with the Pan Am 103 bombing, and that person has since been released
from prison. On February 28, 2012, Secretary Clinton testified that the
United States ongoing investigation into the bombing is primarily a
Department of Justice (DOJ) responsibility. What progress has been made
on the investigation of the Pan Am 103 bombing?
Answer. We remain committed to pursuing justice on behalf of the
victims of this terrorist attack that took the lives of 189 Americans
and many others.
We continue to seek more information, as well as access to those
who might have been involved in the planning or execution of the
bombing. We have made clear--and will continue to make clear--to the
Government of Libya the great importance of this case to the United
States and our determination to bring all of those responsible to
justice.
The investigation into the Pan Am 103 bombing remains open, and we
will continue to follow any leads that could result in evidence to
support a criminal prosecution.
As this is an ongoing investigative matter, we cannot comment on
specific investigative steps that are being taken.
ILLEGAL TRAFFICKING OF TOBACCO
Question. Reports from the Government Accountability Office have
identified an estimated tax loss of $5 billion a year due to the
illegal trafficking of tobacco. The tremendous profits and low criminal
penalties have attracted the involvement of organized criminal and
terrorist groups. The Federal Bureau of Investigation (FBI) has primary
jurisdiction on terrorism and organized crime, while the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) holds primary
jurisdiction on cigarette trafficking. How does DOJ ensure that the FBI
and ATF work together to prevent illegal tobacco proceeds from
financing organized crime and terrorists?
Answer. DOJ's agencies have strong and effective working
relationships with their DOJ partners as well as other Federal, State,
and local agencies and a history of highly successful joint
investigations. Supervisors in the field regularly review
investigations on a case-by-case basis and involve other agencies as
appropriate. For example, recently the ATF and the FBI worked together
on ``Operation Secondhand Smoke'', an undercover investigation into a
nationwide network of retailers, wholesalers, distributors, importers,
and manufacturers who were avoiding cigarette taxes to make millions of
dollars in profits.
______
Questions Submitted by Senator Kay Bailey Hutchison
DEPARTMENT OF JUSTICE'S PREVENTING VIOLENCE AGAINST LAW ENFORCEMENT AND
ENSURING OFFICER RESILIENCE AND SURVIVABILITY INITIATIVE TRAINING
Question. Violence against law enforcement officers is at an all-
time high. According to National Law Enforcement Officers Memorial Fund
statistics, Texas leads the Nation with most police officers killed the
in the line of duty--1,594. Ensuring the safety of law enforcement is a
top priority for all of us in this subcommittee's bill.
During the Fort Hood shooting rampage in 2009, Department of the
Army civilian Police Sergeants Kim Munley and Mark Todd were two of the
first officers to arrive on the scene. Sergeant Munley was shot
multiple times. Sergeant Todd was able to wound and incapacitate the
shooter before he could shoot Sergeant Munley again. Both officers
credited their swift and heroic actions to the active shooter training
they received through the Advanced Law Enforcement Rapid Response
Training (ALERRT) Center at Texas State University, which is a partner
of the Department of Justice's (DOJ) Preventing Violence Against Law
Enforcement and Ensuring Officer Resilience and Survivability (VALOR)
Initiative. Their heroic actions show how a small investment in
training can have an impact on the safety of our Nation's law
enforcement officers.
Can you tell us about the successes of the VALOR Initiative and
DOJ's plans to expand this training?
Answer. More than 3,100 law enforcement professionals have received
the VALOR Initiative training, in 17 sessions across the country. We
have heard from sheriffs and police chiefs that this curriculum has
been successfully used in the field. Therefore, we plan to continue
promoting, refining, and expanding its availability along with the
VALOR Initiative officer toolkit. There have been 8,100 toolkits placed
in the field and the Web site has received 2.5 million hits.
The feedback from the training has been positive from the field.
Some of the feedback includes:
``It was truly some of the best training I've attended in 12 years
as a peace officer here in Georgia. I truly hope and urge you to bring
this training back to Georgia for more officers to attend, I would
definitely push this training for as many as my colleagues as I could
through the chain of command.''----Cartersville, Georgia
``This training was excellent, and every officer needs to take it.
It's an eye-opening experience! Excellent training!''----Arlington,
Texas
``Most relevant training ever to help prepare and heighten
awareness.''----Arlington, Texas
``I was involved in an incident where the training in pre-attack
indicators really helped prevent a violent struggle with a suspect.''--
--San Diego, California
``The training has helped me with being more vigilant and looking
for pre-incident indicators of violent attacks and armed persons. Cops
become complacent as time goes on. This type of training helps rid the
complacency and reopens the eyes of a patrol cop.''----San Diego,
California
Texas State University and its ALERRT active shooter training has
been, and is, an extremely important component of the VALOR Initiative
training.
In fiscal year 2011, the Institute for Intergovernmental Research
(IIR) received an award as the Bureau of Justice Assistance's (BJA)
VALOR Initiative grantee. IIR, through its internal awarding processes,
provided a sub-award of $200,000 to Texas State University for the
delivery of 11 ALERRT Active Shooter hands-on training sessions. In
fiscal year 2012, IIR will receive its second supplemental award for
the VALOR Initiative. IIR has discussed with BJA how it intends to use
the fiscal year 2012 funding, including awarding a second subcontract
to Texas State University for an anticipated additional $200,000 to
continue delivery of ALERRT trainings across the country. BJA has
discussed and is in agreement with the overall proposed work plan. IIR
follows its internal subcontracting guidelines as well as Office of
Justice Programs' (OJP) guidelines with regard to the expenditure of
Federal funds and subcontracting.
Question. Is the Department able to keep up with the requests for
this training?
Answer. Given existing resource constraints, it is a challenge to
satisfy the high demand of requests for this training. However, BJA is
working closely with our grantees to ensure that we are maximizing
attendees at each event. To better meet the demand, we are requesting
$5 million in fiscal year 2013, an increase of $3 million more than the
fiscal year 2012 enacted level of $2 million.
Question. Last year there were 31 cases of violence against U.S.
Marshal Task Forces. Seven of these instances resulted in fatalities of
Deputy U.S. Marshals or State and local officers working on the task
forces.
Is there any type of training being conducted with our Federal law
enforcement agencies? (Bureau of Alcohol, Tobacco, Firearms and
Explosives [ATF] and U.S. Marshals Services [USMS] conduct training)
Answer. DOJ, through BJA, reached out to Federal law enforcement
agencies as the VALOR Initiative was being developed. Specifically,
leadership levels of USMS have been briefed on the VALOR Initiative,
and coordination and joint efforts, including exchanges of curricula to
ensure consistent messaging, are in progress. A team from USMS was
invited to and participated in the first VALOR Intiative class held in
Tampa, Florida. BJA recently met with USMS staff to further develop
coordination and information sharing between both the BJA and the USMS
trainings. Leadership of ATF was also briefed on the VALOR Initiative,
and collaborative discussions are planned. Staff from the Federal
Bureau of Investigation (FBI) was significantly involved in the
development of the VALOR Initiative, in particular, the research that
supports the program. Coordination with Department of Homeland Security
(DHS) law enforcement agencies is also expected. BJA has also
coordinated VALOR Initiative trainings through U.S. Attorney's offices,
pursuant to the Attorney General's direction that the U.S. Attorneys be
engaged in assessing and responding to the officer safety issues in
their districts.
Question. Is there any type of coordination with DOJ and our
Federal law enforcement agencies to ensure that best safety practices
are being shared?
Answer. BJA has made specific outreach to Federal law enforcement
agencies to create best safety practices. BJA's VALOR Initiative
representatives will attend the current USMS training. USMS
representatives will attend a VALOR Initiative training to ensure that
best safety practices are shared. Additionally, leadership of the ATF
was also briefed on the VALOR Initiative and further discussions are
planned.
DOJ law enforcement components participate in DOJ-wide working
groups related to agent safety issues, such as body armor standards and
requirements. DOJ law enforcement components also compare, collaborate,
and share training techniques and methodologies, both formally and
informally.
The ATF, Drug Enforcement Administration (DEA), and USMS purchase
software licenses for three of the same online courses. Through cross-
component discussion and collaboration, these courses have been
established as important elements of safety training for agents of all
three components.
Components utilize co-located training facilities at Quantico and
Federal Law Enforcement Training Center (FLETC) and agents train using
driving and firearms ranges as well as simulators. FBI has traveled to
other law enforcement component training sites to establish liaison
contacts and share best practices.
Furthermore, BJA and Community Oriented Policing Services (COPS)
have established the National Officer Safety and Wellness Group. This
group brings together law enforcement thought leaders, criminal justice
practitioners, and colleagues to share their knowledge and perspectives
on improving officer safety and wellness. The group's mission is to
contribute to the improvement of officer safety and wellness in the
United States by convening a forum for thoughtful, proactive discussion
and debate around relevant programs and policies within the law
enforcement field. Information and insight gained and shared will help
enhance programs, policies, and initiatives related to officer safety
and wellness.
NATIONAL ACADEMY OF SCIENCES FORENSICS STUDY
Question. Prior to becoming ranking member, this subcommittee
commissioned the National Academy of Science (NAS) Forensics Study. The
intent was to show where DOJ lacked in supporting crime labs and how it
could provide more support to the forensics community. Unfortunately,
it evolved from a narrowly focused nonbinding study into a more far-
reaching study than what the Congress intended.
While the NAS study did produce some positive results, there are
questionable and unrealistic ones, such as creating an independent
bureaucracy responsible for oversight of forensics, excluding DOJ from
oversight.
Some special interest groups have even used a few of the individual
bad cases in the NAS study to attack the credibility of all crime labs
and law enforcement, resulting in impulsive and knee-jerk legislative
proposals.
I would also note that some of these same organizations were also
at the forefront of support for the Webb Crime Commission, which is an
example of another ``non-binding'' study to go bad and result in
overreaching and unnecessary legislative proposals.
Does the Department have a position on the NAS forensics study?
Answer. DOJ believes the report from the National Research Council,
``Strengthening Forensic Science in the United States: A Path
Forward'', is a helpful addition to the public discourse on the state
of the forensic science community. The report recommends many useful
steps to strengthen the community and enables it to continue to
contribute to an effective criminal justice system. The report did
conclude, ``that forensic science, as a whole, produces valuable
evidence contributing to the successful prosecution and conviction of
criminals, as well as to the exoneration of the innocent.'' However,
the report does not, and was never intended to:
--comprehensively assess the forensic science disciplines;
--undermine the use of forensic science in the courtroom;
--offer any judgments on any cases currently in the judicial system;
or
--recommend any rule or law changes in the area of evidentiary
admissibility.
Question. Does DOJ support creating an independent agency
responsible for having jurisdiction over forensics?
Answer. The Department concurs with the need for a concerted
national investment to advance forensic science and its utility, which
underlies all recommendations cited in the NAS report. However, the
Department does not believe that a new forensics agency is necessarily
needed to serve the interests of the criminal justice community at the
Federal, State, and local levels.
discrepancies between department of justice and president's requests
Question. Attorney General Holder, there are a number of
discrepancies between your fiscal year 2013 budget request and the
President's fiscal year 2013 budget request in the Office of Management
and Budget's (OMB) appendix. This can only mean that OMB littered DOJ's
request with programs and funding proposals up until the last minute
before releasing the budget.
This is evidence of part of the budget process that is not
transparent and should be made public. OMB and the White House are able
to adjust program funding levels and direct agencies through
``passback'' communications that they refuse to publicly disclose,
hiding behind the veil of ``executive privilege''.
The White House and OMB insert unrequested programs into an
agency's budget request, forcing the agency to cut their own priorities
to make room for it. A perfect example of this is the White House
inserting $600 million for COPS Hiring into DOJ's budget last year. We
know you did not request that funding level and it forced you to cut
other programs to make room for it.
OMB has authored numerous memos promoting transparency. Since
agencies are already required to postcongressional communications
online, I hope that the chairwoman and my other colleagues will work
with me in helping OMB close the circle of transparency by requiring
all Federal agencies to post their OMB passback communications online.
During these tough fiscal times, taxpayers, the media and watchdog
groups deserve to have full transparency and understand how the White
House and OMB influence the budget process and sometimes override what
agencies request.
Would you be supportive of being transparent and all OMB budget-
related communications being available for the taxpayers to see?
Answer. While DOJ supports transparency, the process involved in
the formulation of the President's budget request requires unimpeded,
back-and-forth dialog within the executive branch. These discussions
are considered ``pre-decisional'' and allow the frank and open
consultation and discussion that is necessary to reach the most cost-
effective and efficient resourcing decisions for the American taxpayer.
These internal confidential discussions are not intended to shield
dialog, but rather allow the consideration of a wide range of possible
options and alternatives. This is based on section 22 of the OMB
Circular No. A-11 (2011) ``Communications with the Congress and the
Public and Clearance Requirements''. The executive branch's internal
deliberations regarding the various issues and options that were
considered in the process leading to the President's decisions, we
believe, should remain a matter of internal record. This deliberative
process is intended to promote free discussion between agencies and the
President and is supported by the doctrine of the separation of powers.
It also ensures policy consistency between the President's budget and
budget-related materials given to the Congress.
Question. What are the discrepancies between the DOJ request and
the President's budget in the appendix?
Answer. There are several small discrepancies between the
Department's budget materials, including the fiscal year 2013 budget
and performance summary and the individual congressional
justifications, and the President's budget appendix; these
discrepancies have been footnoted where appropriate in the DOJ's budget
materials.
The cancellation language proposed for USMS, FBI, DEA, and ATF
included in DOJ's budget materials differs from the language included
in the budget appendix regarding the types of balances proposed for
cancellation. DOJ's budget materials reflect the correct language.
The language included in DOJ's budget materials for OJP, State and
Local Law Enforcement Assistance, differs slightly from the language
included in the Budget Appendix regarding funding levels for certain
programs (i.e., National Criminal History Improvement Program, National
Instant Criminal Background Check System Improvement Act Grants, and
Prison Rape Prevention and Response). The Department's budget materials
reflect the correct language.
The number of full-time equivalent (FTE) reported in the DOJ budget
summary varies slightly from the numbers reported in the President's
budget appendix due to a difference in the methodology used to
calculate the base FTE levels.
While the DOJ chapter of the President's budget states that a task
force offset is proposed in fiscal year 2013, DOJ is just now
finalizing its review of task force operations and an offset is instead
anticipated for fiscal year 2014.
Question. What do you attribute these discrepancies to?
Answer. The majority of these discrepancies can be attributed to
timing constraints during production of these separate documents, as it
is the intent of both the language proposed in the Budget Appendix and
the language proposed in the Department's budget materials to
accurately report the same information.
The difference in FTE between the DOJ congressional budget
submission and the President's Budget Appendix can be attributed to a
difference in the methodology used to calculate the base FTE levels.
The DOJ congressional budget submission used the authorized FTE level
to calculate the base for the enacted FTE in fiscal year 2011 and
fiscal year 2012 and the request in fiscal year 2013. The President's
Budget Appendix used the actual fiscal year 2011 FTE level as a
baseline for developing the fiscal year 2012 and fiscal year 2013 FTE
levels, as opposed to using the authorized FTE levels. This leads to a
slight discrepancy in the reported FTE level, as footnoted in the
Department's budget and performance summary.
DANGER PAY FOR MEXICO
Question. DOJ has given the subcommittee its word that it would be
advocating danger pay for USMS and ATF. What is the status of DOJ's
negotiations on this? Why is OMB opposed to supporting law enforcement
in Mexico receiving danger pay?
Answer. DOJ is continuing to monitor the issue of differential
rates of pay for DOJ agents and employees working in danger posts. We
are actively engaged in discussions with the Department of State, which
has jurisdiction over danger post determinations. The Department of
State is acutely aware of our concern and has assured us that it is
closely monitoring the situation in Mexico and will add additional
danger posts as necessary.
DEPARTMENT OF JUSTICE TASK FORCES
Question. Task forces play a major role in the DEA, USMS, FBI, and
ATF missions. I support the consolidation of duplicative efforts, but I
am concerned that there may be confusion on the part of the
administration in past proposals to consolidate task forces.
Specifically, the USMS Fugitive Task Forces come to mind. USMS have
made three times the arrests of all other Federal law enforcement
agencies combined.
Can you tell us about the uniqueness of USMS's fugitive task forces
and other task forces?
Answer. USMS plays a unique role in implementing DOJ's violent
crime reduction strategy as USMS is the Federal Government's primary
agency for conducting fugitive investigations, and it apprehends more
Federal fugitives than all other law enforcement agencies combined.
USMS has also been named the lead DOJ component to investigate and
prosecute crimes involving the noncompliance of sex offenders. While
USMS is responsible for investigating and apprehending individuals
wanted for escaping from Federal prison and for Federal parole and
probation violations, it has a long and distinguished history of
providing assistance and expertise to other Federal, State, and local
law enforcement agencies in support of fugitive investigations. This
support is coordinated though the USMS's Domestic Investigations and
Sex Offender Investigations Branches, 75 district-based task forces,
and 7 regional fugitive task forces, supplemented by three foreign
field offices and a wide range of technical surveillance and criminal
intelligence capabilities. USMS also participates on Organized Crime
Drug Enforcement Task Forces (OCDETF); the OCDETF program has reported
that its operations are substantially more effective when supported by
USMS.
The 75 district fugitive task forces operate areas not covered by
the regional fugitive task forces. The seven regional fugitive task
forces operate in the National Capital region, gulf coast region, Great
Lakes region, New York-New Jersey region, Pacific-Southwest region,
Southeastern U.S. region, and Florida. The combined regional fugitive
task force has proven to be a vital tool in ensuring the safety of
communities by arresting violent fugitives who prey on society.
USMS's task forces combine the efforts of Federal, State, and local
law enforcement agencies to locate and arrest the most dangerous
fugitives. All USMS task forces are designed and managed to ensure the
highest levels of cooperation, coordination, and deconfliction among
participating agencies. While some of this coordination is informal in
nature, in other cases, task forces use formal national and local
information sharing and deconfliction systems to coordinate
investigations and protect officer safety.
USMS locates and apprehends Federal, State, and local fugitives
both within and outside the United States. The warrants include but are
not limited to:
--homicide;
--rape;
--aggravated assault; and
--robbery; or
--if there was an arrest or conviction in the fugitive's record for
any of these offenses; or
--for any sex offense as defined in the Adam Walsh Child Protection
and Safety Act.
In fiscal year 2011, USMS task forces:
--arrested 36,268 Federal fugitives;
--arrested 86,449 State and local fugitives;
--cleared 39,398 Federal warrants;
--cleared 113,287 State and local warrants;
--arrested 3,867 homicide suspects;
--arrested 5,005 gang members;
--arrested 12,144 sex offenders;
--arrested 299 fugitives in Mexico; and
--the seven regional fugitive task forces made 41,654 arrests and
cleared 52,078 warrants.
DOJ's other primary task forces include DEA's regional task forces,
ATF's violent crime impact teams, and FBI's Safe Streets task forces.
As these task forces act as the primary investigative and operational
arm for their respective agencies, they each leverage unique expertise
in fulfilling their missions. For example, DEA's regional task forces
have unparalleled knowledge and experience related to identifying,
investigating, and ultimately dismantling drug trafficking
organizations, which DEA brings to bear in cases throughout the
country.
Question. Are there any task forces that you feel may be considered
for consolidation or elimination?
Answer. The fiscal year 2013 President's budget does not contain
plans to consolidate or eliminate additional task forces. Currently,
DOJ is finalizing its comprehensive assessment of task force
performance in coordination with ATF, DEA, FBI, USMS, the National
Institute of Justice and the Executive Office for U.S. Attorneys. The
review will also take into account the extent to which there is overlap
or duplication between DOJ-led task forces and those led by other
departments and agencies or State, local, or tribal led task forces.
This assessment will review all violent crime, drug, gang, and fugitive
task forces to determine their effectiveness and will culminate in
recommendations to maximize performance and reduce duplication and
overlap. The Department anticipates that the assessment will result in
the elimination or consolidation of some task force operations.
FAST AND FURIOUS LANGUAGE REMOVED FROM THE REQUEST
Question. As I mentioned in my opening statement regarding Fast and
Furious, language was included on the floor in last year's bill that
would prohibit Federal law enforcement agencies from selling operable
weapons to cartels. The fiscal year 2013 request removes that language
saying it's unnecessary. The amendment passed 99-0.
This budget proposes to eliminate a provision that prohibits
facilitating the transfer of operable firearms to agents of drug
cartels unless those firearms are continuously monitored. The budget
request's justification for removing this language only says this ``is
not necessary.'' That's hard to explain to the families of the Federal
agents killed by those weapons.
Can you elaborate on why the administration doesn't think it's
necessary?
Answer. In the fiscal year 2013 President's budget, consistent with
past practice of removing prohibitive language that limits executive
branch discretion, we proposed not to continue the Fast and Furious
provision, which was enacted in fiscal year 2012 with the intention of
preventing future ``gun walking'' operations. The Fast and Furious
provision does not need to be continued because, as stated on several
occasions, the Department does not intend to engage in any such
operations in the future.
Question. Doesn't the fact that it happened in the past suggest
that legislation to block it in the future may well be necessary?
Answer. The Attorney General has stated on several occasions that
the Department has no intention of engaging in such operations in the
future. Indeed, appropriate steps have been implemented to ensure that
this type of operation does not occur again. However, given the
sensitive nature of this issue, and in recognition of congressional
intent to ensure appropriate oversight, DOJ would not object to this
language being reinstated in the fiscal year 2013 bill.
CARTELS RECRUITING COLLEGE STUDENTS AND MINORS
Question. There have been reports that cartels are attempting to
recruit college students to smuggle drugs into the country, and college
campuses could serve as an easy recruiting ground. It's understandable
how young students could be enticed by large sums of cash. The reports
say that minors are more appealing because criminal penalties are
lighter for them. One of the bright spots in your budget request is
$312 million for Juvenile Justice Prevention programs. It's imperative
that we educate our children and students on the potential dangers of
being involved in cartels.
Are you aware of these threats to college students and Southwest
Border youth?
Answer. DOJ has become aware of the threats posed by drug cartels
to both college students and students in elementary and high schools
along the Southwest border through those who attend and conduct AMBER
Alert Southern Border Initiative trainings.
Question. Are any Juvenile Justice Prevention dollars being focused
toward education and awareness programs for the Southwest Border youth
to understand the dangers of cartels and the drug trade?
Answer. The Office of Juvenile Justice and Delinquency Prevention
(OJJDP) has not focused Juvenile Justice Prevention dollars toward
education and awareness programs for the Southwest Border youth.
However, OJJDP's AMBER Alert Training and Technical Assistance program
has developed a partnership with the Boys & Girls Clubs of America, a
national nonprofit organization which provides expansion and
development of sustainable Boys & Girls Clubs within tribal communities
and other communities across the Nation. While OJP does not fund Boys &
Girls Clubs activities directly through the AMBER Alert Training and TA
program, we have awarded funding to a training and technical assistance
provider that has a formal, established partnership with Boys & Girls
Clubs of America. Through that partnership, Boys & Girls Clubs have
been the conduit for information about gang and drug resistance
education to youth who participate in Boys & Girls Clubs activities,
and this may include education and awareness about the dangers of
cartels and the drug trade for youth along the Southwest Border.
OJJDP also has supported Boys and Girls Clubs. Boys & Girls Clubs
provide a variety of prevention programs and activities for youth that
help them develop character, education, social, and leadership skills.
In addition, the Boys & Girls Clubs provide the Delinquency and Gang
Prevention/Intervention Initiative. This community-based initiative
targets young people ages 6 to 18 that are at high risk for involvement
or are already involved with delinquency and gangs. These youth and
teens are directed to positive alternatives and learn about violence
prevention.
OJJDP supports gang prevention education in schools. The Gang
Resistance Education and Training (G.R.E.A.T.) Program, funded under
title V, is a school-based, law enforcement officer-instructed,
classroom curriculum administered by OJP's BJA and OJJDP. The delivery
and support of the G.R.E.A.T. Program is coordinated through the four
Regional Training Centers, the National Policy Board (NPB), a National
Training Team and two Federal agency partners:
--FLETC;
--DHS; and
--ATF.
The goal of the G.R.E.A.T. Program is to help youth develop
positive life skills that will help them avoid gang involvement and
violent behavior. G.R.E.A.T. uses a communitywide approach to combat
the risk factors associated with youth involvement in gang-related
behaviors. The curricula was developed through the collaborative
efforts of experienced law enforcement officers and specialists in
criminology, sociology, psychology, education, health, and curriculum
design and are designed to reinforce each other. The lessons included
in each curriculum are interactive and designed to allow students to
practice positive behaviors that will remain with them during the
remainder of their developmental years. There are 495 law enforcement
agencies in California, New Mexico, Arizona, and Texas that are
teaching G.R.E.A.T and 151 of those agencies are within 150 miles of
the border of Mexico.
BIG BEND
Question. Attorney General Holder, as I mentioned in the statement,
I'm concerned about opening an unmanned border crossing in Big Bend
National Park. The negative and unknown variables seem to outweigh the
few and minimal benefits. Not to mention that during these tough fiscal
times, these funds could be used more wisely elsewhere. It seems to me
that if terrorists were to smuggle weapons across the border, they
would do so in place that have easily accessible roads with the fewest
amount of border officials.
Although it's not under DOJ's jurisdiction, an incident involving
criminal activity after the fact very well would be. What is DOJ's
position on an unmanned border crossing in this area or any other area?
Answer. DOJ does not administer day-to-day activities regarding
U.S. border patrol and defers to DHS in making determinations regarding
the installation of border crossings. However, DOJ law enforcement
components collaborate daily with Federal, State, and local law
enforcement via field offices located throughout the country, including
the Southwest Border, to combat crime and deter, detect, and disrupt
any national security threats to the United States. DOJ stands ready to
work with DHS to address any security concerns regarding border
crossings or any other issue involving national security.
SWB COMMUNICATIONS
Question. Big Bend Telephone Company (BBTC) is applying to the
Federal Communication Commission (FCC) for a waiver from new rules that
would lower the amount of Universal Service Fund (USF) subsidies that
BBTC receives. BBTC is located in far West Texas, serves an area the
size of Massachusetts, and covers 25 percent of the United States-
Mexico border. Without a waiver, we believe that BBTC may go out of
business, with no other companies likely to serve the region because
the area is so rugged and sparsely populated. Because BBTC provides
network transport for the cell phone providers in the area, if BBTC
goes dark, so too do the cell phones. Furthermore, BBTC provides
critical communications service to numerous DHS facilities along and
near the border (including two ports of entry) and to many State and
local law enforcement agencies in the area. Without a waiver, these
facilities would be at risk of losing their critical phone and
broadband capabilities.
If a waiver is not granted by the FCC to BBTC, and if BBTC goes out
of business and thus its customers lose service, what would the impact
be on national security and public safety if Federal, State, and local
law enforcement agencies in the Trans-Pecos region lost its voice and
broadband Internet capabilities? Without such critical communications,
would these agencies be able to maintain their effectiveness in
patrolling and securing nearly 500 mountainous miles of the border?
More specifically, how would this impact the safety of Texas
communities in the border region? What impact would this have on any
DOJ entities or communications?
Answer. Should BTTC go out of business, DOJ would work closely with
stakeholders, including DHS, to ensure that any negative impacts on
public safety and national security are appropriately addressed.
SENATOR STEVENS CASE
Question. Attorney General Holder, first, I want to compliment you
for dismissing the case, and cooperating with the investigation of
misconduct and mishandling of evidence in the Government's case against
former Senator Ted Stevens.
After your request that the case be dismissed in April 2009, U.S.
District Judge Emmett G. Sullivan appointed a team to investigate and
report on the misconduct. Henry F. Schuelke III, who was appointed by
Judge Sullivan to investigate the case, concluded in a 500-page report
DOJ hid evidence that would have helped the Alaska Republican prove his
innocence. Most notably, it was called a ``systematic concealment'' of
evidence that could have helped Senator Stevens defend himself.
Despite findings of widespread and intentional misconduct, Schuelke
recommended against contempt charges because prosecutors did not
disobey a ``clear and equivocal'' order by the judge, as required under
law--which I question.
Four of the six prosecutors who were investigated for their role in
the case opposed releasing the report and their names were redacted.
Since Judge Sullivan has ordered that the investigative report in
the disgraceful prosecution of Senator Stevens be made public, can you
promise this subcommittee that the report by Justice's Office of
Professional Responsibility (OPR) will also be made public?
Answer. As DOJ's disciplinary review process has not yet been
completed, and due to limitations on public disclosure contained in the
Privacy Act, DOJ is unable to release the relevant OPR report at this
time. As I have stated previously, the Department will release as much
as we can of the OPR report and DOJ findings, at the appropriate time
and in a manner consistent with law and due process.
Question. Are any of the prosecutors who engaged in ``systematic
concealment'' of evidence in the Stevens case still in prosecutorial
roles?
Answer. Mr. Schuelke's report examined the conduct of a number of
current and former DOJ attorneys and found evidence of willful
nondisclosure of Brady and Giglio materials involving two of those
attorneys, Assistant United States Attorneys (AUSAs) Joseph Bottini and
James Goeke. Mr. Bottini is an AUSA in District of Alaska and handles
criminal prosecutions. Mr. Goeke is an AUSA in the Eastern District of
Washington and likewise handles criminal prosecutions.
Question. Are any of their legal bills also being paid by the
taxpayers? If so, please explain how much and the legal justification.
Answer. It is DOJ's long-standing policy to provide representation
to Federal employees for conduct performed within the scope of their
employment. The purpose for providing representation is to protect the
interests of the Government by assuring adequate representation with
respect to legal issues in which the United States has a concern and by
freeing its employees from the fear that proper and vigorous
performance of their duties may result in substantial personal legal
expenses. This may be so even where the employee has erred or where,
regardless of the lawfulness of the conduct, there is concern that
failure to provide representation may result in the establishment of a
legal principle that compromises the Government's ability to perform
its functions in a proper and lawful manner in the future. Moreover,
where there are disputed facts regarding the conduct giving rise to the
claim--or where the facts are under investigation--the employee is
afforded the benefit of the doubt to the extent it is reasonable to do
so. In all cases, the decision of whether or not to provide
representation is based upon the currently available information.
Consistent with this long-standing practice, 28 CFR 50.15 and
50.16, and Civil Division Directive 2120A, DOJ received representation
requests from six individuals with respect to two matters. At the time
representation was needed for the matters referenced below, the facts
that it took the Special Counsel several years to gather were not
available. In accordance with the usual processes available to Federal
executive, legislative, and judicial branch employees, DOJ determined
at that time that the prosecutors were acting within the scope of their
employment and representation was in the interest of the United States.
Private counsel was authorized because direct DOJ representation was
not appropriate.
DOJ utilized standard retention agreements that the Department
commonly uses in its representation of other Federal employees. Those
retention agreements imposed caps on the number of hours of work for
which, absent unusual circumstances, counsel would be reimbursed. Those
agreements also set hourly rates that are based on the attorney's
experience and are well below--and in some cases less than 50 percent
of--the rates that DOJ uses when determining rates to pay prevailing
parties against it in Washington, DC, under the Equal Access to Justice
Act. With respect to the six individuals for whom representation was
authorized, to date DOJ has spent $282,982.51 in connection with the
contempt order entered by U.S. District Judge Emmet G. Sullivan on
February 8, 2009, in United States v. Stevens, No. 08-cr-0231 (D.D.C.),
and $1,633,298.29 in connection with the subsequent investigation by
Special Counsel Henry F. Schuelke III, who was appointed by Judge
Sullivan on April 9, 2009, and who ultimately produced a 500-page
report regarding the investigation.
Question. Does it concern you that the only reason these
prosecutors escaped criminal charges is that the judge in the Stevens
case did not file an order telling the prosecutors to follow the law?
Answer. Yes. DOJ expects its prosecutors to fully comply with their
discovery obligations in every case regardless of the existence of a
court order directing such compliance. As a result, when the nature of
the undisclosed information was brought to my attention in 2009, I
authorized DOJ to move to vacate Senator Stevens' conviction and to
dismiss the indictment.
DOJ takes its discovery obligations seriously as evidenced by the
policies and training requirements that have been implemented since the
dismissal of the Stevens case. While DOJ continues to review the
Schuelke report, and all of the facts and circumstances surrounding the
discovery violations that occurred in the Stevens prosecution, DOJ
prosecutors are expected to comply with their discovery obligations
regardless of the existence of a court order.
Question. What are the names of these individuals? Please list what
positions and where these individuals have worked since this came to
light--to present.
Answer. The publicly filed version of the report identifies all of
the subjects in the report. As noted, Mr. Schuelke found evidence that
2 of the 6 subjects willfully withheld discoverable evidence. DOJ
understands this series of questions to pertain only to those two
individuals. AUSA Joseph Bottini has continued to prosecute cases in
the District of Alaska since the Stevens trial. After the Stevens
trial, AUSA Goeke continued as an AUSA in the District of Alaska until
May 2009, when he assumed the same position in the Eastern District of
Washington.
Question. Please list the cases that these individuals have
participated in and the results. For example, one participated in the
Alabama Bingo case which resulted in acquittals. Another involved the
National Security Agency. Please list each case, the outcome, the
individuals' names, and what their roles in the cases are.
Answer. We do not think it would be appropriate or useful to list
every case on which each attorney has worked. We can tell you that
since the Stevens trial, AUSA Joseph Bottini has handled a varied
criminal caseload, and there have been no findings of prosecutorial
misconduct in any of the cases that he has prosecuted. Similarly, AUSA
Goeke has continued to handle a routine criminal caseload, and there
have been no findings of prosecutorial misconduct in any cases that Mr.
Goeke has prosecuted since the Stevens trial. If you can identify a
specific need for additional information, we will be happy to consider
it.
Question. Will any investigation occur if the pending OPR
recommends further action?
Answer. No further investigation will occur, but OPR findings are
part and parcel of the Federal disciplinary process. Whenever OPR
reaches findings of misconduct involving current DOJ employees,
imposition of any disciplinary action as a result of those findings
must comport with the requirements of Federal law. Federal law requires
generally that employees receive at least 30 days' notice of any
proposed disciplinary action and that they have an opportunity to
respond both orally and in writing to the proposed action. After
considering the response, the designated deciding official would
determine whether the evidence supports the misconduct charge or
charges in the proposal and, if so, whether the recommended discipline
is appropriate. If a deciding official determines to suspend the
employee for more than 14 days, the employee can appeal that suspension
to the Merit Systems Protection Board. If the employee is suspended for
14 days or less, then the employee can file a grievance of the
suspension with the agency. If the disciplinary process results in the
affirmation of OPR's findings of misconduct, then OPR would ordinarily
refer the matter to the appropriate State bar disciplinary authorities
for any action they deem appropriate.
______
Questions Submitted by Senator Lamar Alexander
METHAMPHETAMINE IN TENNESSEE
Question. Tennessee had the second-highest number of
methamphetamine lab seizures in the country in 2011 (1,687 labs),
second only to Missouri. In 2010, Tennessee had the highest number of
methamphetamine lab seizures in the Nation with 2,082 seizures. The
average cost to clean up a methamphetamine lab is $2,300, and these
costs are putting tremendous strain on State and local law enforcement.
Last November, the Department of Justice (DOJ) helped Tennessee and
other States by providing $12.5 million to address methamphetamine lab
cleanup costs. However, this funding will run out in October 2012
according to the statewide Tennessee Methamphetamine Task Force.
Without cleanup funds, there is a real incentive to avoid seizing these
labs.
Given that this is one of the most urgent drug problems, especially
in rural communities with limited resources, DOJ should find a way to
help address this problem. In this year's budget will DOJ continue to
support methamphetamine lab cleanup efforts in Tennessee?
Answer. DOJ's budget includes $12.5 million in funding to continue
to support methamphetamine lab cleanups in Tennessee and other States.
Funding will be prioritized for States, like Tennessee, that have
established container programs because these container programs allows
DOJ and its State and local partners to complete cleanups in a more
cost-effective manner.
In fiscal year 2013, the Office of Community Oriented Policing
Services (COPS) requests $12.5 million to provide assistance to help
stem clandestine methamphetamine manufacturing and its consequences,
including the cleanup of clandestine laboratories. As in previous
years, DOJ assumes that these funds will provide for meth lab cleanup
activities.
Question. What is DOJ doing to help State and local law enforcement
deal with mobile methamphetamine labs, which account for a growing
number of lab seizures?
Answer. Over the past several years, Drug Enforcement
Administration (DEA) has developed a container-based cleanup program.
Under this program, DEA trains and certifies law enforcement officers
to remove gross contaminates from labs (including mobile labs) and
dumpsites; secure and package the waste pursuant to State and Federal
laws and regulations; and transport the waste to a centrally located,
secure container for storage. In States participating in the container
program, hazardous waste contractors travel periodically to a central
location to remove meth lab contaminates from across the State. In
noncontainer States, hazardous waste contractors must travel to each
individual lab or dumpsite to secure, package, and remove meth lab
contaminates.
DEA will be supporting cleanups in container and noncontainer
States in fiscal year 2012 through its various hazardous waste
contracts. Currently, eight States have operational container programs
(Alabama, Arkansas, Illinois, Indiana, Kentucky, Nebraska, Oklahoma,
and Tennessee), and DEA is working with five other States (Michigan,
Mississippi, North Carolina, Ohio, and Virginia) to implement the
container program during fiscal year 2012. DEA expects these additional
five States to have operational container programs in fiscal year 2013.
Thus far, the program has resulted in significant cost savings per lab
in States that have the containers deployed; a contractor cleanup
averages $2,230 while a container cleanup averages $320.
As container programs are more cost efficient and more States have
operational container programs in fiscal year 2013, $12.5 million in
funding, requested in the fiscal year 2013 President's budget in the
COPS appropriation, will continue to be sufficient in fiscal year 2013.
DEA has also contacted an additional eight States for potential
container program expansion. For those States without container
programs, DEA assesses whether or not the program is a cost-effective
option. If the state has only limited cleanups, the upfront equipment
and training costs can exceed potential container program savings. In
these cases, DEA will provide cleanup services through its hazardous
waste contractors.
JUSTICE DEPARTMENT ENFORCEMENT AND WIND FARMS
Question. In 2009, Exxon admitted to killing approximately 85
protected birds, including waterfowl, hawks, and owls. The company paid
a $600,000 fine and was required to implement an environmental
compliance plan.
The U.S. Fish and Wildlife Service (FWS) has referred similar cases
to the Department involving wind farms. I am concerned that wind farms
are not being treated the same as oil and gas companies with respect to
enforcement of the Migratory Bird Treaty Act (MBTA).
What concerns me the most is that the Justice Department's lack of
enforcement betrays a willingness to prosecute certain disfavored
groups while giving others a pass. This kind of selective prosecution
contradicts the Department's promise of ``equal justice under law''.
Since it is a criminal violation to kill birds protected by the
MBTA and we know that wind mills kills hundreds of thousands of birds
each year, including protected bald eagles, why hasn't DOJ taken
action? Will DOJ step up enforcement for wind producers in the same way
it has oil and gas companies?
Answer. FWS's Office of Law Enforcement (OLE) has primary
responsibility for investigating potential criminal violations of MBTA,
and refers appropriate matters to DOJ for prosecution. FWS's OLE has
stated publicly that, in the context of industrial takings of migratory
birds, it focuses its resources on investigating and prosecuting those
who take migratory birds without identifying and implementing
reasonable and effective measures to avoid the take.
In the context of the electric and oil and gas industries,
reasonable and effective measures to avoid the taking of migratory
birds have long been identified, and referrals have been made and legal
action has been taken when companies knowingly fail to use such
measures for avoiding bird mortality. Guidance on preventing bird
deaths in the wind energy context has been more recent. However, some
reasonable and effective measures for avoiding taking in this industry
have been identified. The Department of the Interior released interim
guidelines in 2003, and in March 2012, released final Land-Based Wind
Energy Guidelines designed to help wind energy project developers avoid
and minimize impacts of land-based wind projects on wildlife and their
habitat.
DOJ reviews each referral from OLE carefully, and determines
whether to initiate a prosecution based on the principles set forth in
DOJ's Principles of Federal Prosecution. DOJ is committed to the fair
and evenhanded administration of the MBTA and other criminal wildlife
protection laws.
NATIONAL FORENSIC ACADEMY--UNIVERSITY OF TENNESSEE
Question. The National Forensic Academy (NFA), which is located at
the University of Tennessee in Knoxville, has been providing hands on
forensic training since 2001 at one of the Nation's only training
centers where officers and investigators can practice forensic
techniques in the classroom and in the field.
NFA works closely with the Bureau of Justice Assistance (BJA) and
the National Institute of Justice (NIJ) to provide training courses to
Federal, State, and local law enforcement and crime scene
investigators, and this cooperation needs to continue.
In 2009, the National Academy of Sciences released a comprehensive
report on the needs of the forensic sciences community and concluded
that we are not doing enough to support forensics. The report
recommended new training and certification initiatives, among others.
At a time when we are trying to control Federal spending, doesn't
it make sense to support programs with a proven track record, like
those at NFA, instead of creating new Federal training programs to
support our forensic training needs?
Answer. NIJ is not creating any new Federal training programs to
support the forensic science community. Providing high-quality
educational opportunities for forensic science practitioners continues
to be a critical goal to maintain high-quality forensic services. In
order to increase the number of forensic science training opportunities
available to the forensic science, law enforcement, medical, and legal
communities, NIJ invested approximately $12 million in fiscal year 2010
and $5 million in fiscal year 2011.
In 2011, NIJ's Forensic Science Training and Delivery Program
released a solicitation that sought proposals in two major areas:
``Delivery of Training'' and ``Targeted Research on Forensic Science
Training Programs.''
One goal of the solicitation was to increase the number of no-cost
educational opportunities for public crime laboratory personnel and
practitioners in forensic science disciplines and provide forensic
science training to other relevant criminal justice partners and
professionals involved in treating victims of sexual assault. NIJ
sought to fund grant awards for the delivery of courses leveraging
existing forensic science training curricula or courses developed under
a previous NIJ award. Forensic disciplines supported by the program
include, DNA, pattern evidence (e.g., fingerprints and firearms), trace
evidence, digital evidence, and medicolegal death investigation.
The solicitation conveyed the importance of cost-effectively
leveraging existing curricula. For example, the 2011 training
solicitation delineated that proposals should not include costs
associated with further curricula development or modification.
The University of Tennessee's NFA received one award for $450,000
for ``Specialized Crime Scene Investigator Training in Forensic Digital
Photography and Crime Scene Mapping'' in fiscal year 2011 (2011-DN-BX-
K567. NIJ has competitively funded numerous trainings geared toward
crime scene investigators, forensic scientists, prosecutors, defense
attorneys, law enforcement officers, and judges. Additionally, the
University of Tennessee's NFA, with grant funding from BJA, has
produced successful and popular training courses for many years. The
University of Tennessee's Law Enforcement Innovation Center and its
instructors do an excellent job training crime scene investigators
during an intensive 10-week in house course.
NIJ will not be offering a targeted solicitation for training in
fiscal year 2012 in order to evaluate the various training programs,
and it will conduct a gap analysis of critical needs. We hope to
initiate this evaluation during fiscal year 2012 to determine how best
to proceed with training in the future. However, there are still
various training opportunities available through the ongoing training
grants from past years. Moreover, there are various Federal grants that
may be used for the purpose of training individuals at State and local
agencies, such as the DNA Backlog Reduction and Coverdell Forensic
Science Improvement programs. For example, Paul Coverdell funds may be
used to bring in a trainer to provide specialized training in-house or
funds may be used to attend trainings/meetings related to improving the
timeliness and quality of forensic and/or medical examiner services.
In the fiscal year 2011 proposal from the State of Tennessee, one
of the goals of the Office of the Acting State Chief Medical Examiner
(OCME) is to educate county medical examiners, medical investigators,
and/or regional forensic center nonphysician employees who serve as
death investigators in basic death scene investigation techniques.
Priority would go to individuals without any formal training in death
investigation. While each grand division of Tennessee is included, this
grant focuses on the smallest offices in the eastern division, because
of a recognized need for very basic training in those regions. The OCME
intends to send seven participants from across the State to either the
winter or spring session of the Medicolegal Death Investigation Course
in St. Louis, Missouri.
BUREAU OF PRISONS
Question. The Federal Bureau of Prisons (BOP) is estimated to be
operating at 43 percent more than rated capacity by the end of fiscal
year 2013, and overcrowding at high- and medium-security facilities is
projected to be 52 percent and 63 percent, respectively. DOJ's fiscal
year 2013 budget submission states:
``In light of overcrowding and stresses on prison staffing, BOP's
ability to safely manage the increasing Federal inmate population is
one of the Department's top 10 management and performance challenges
identified by the Office of the Inspector General in the DOJ
[Performance and Accountability Report].''
Additionally, the Inspector General Performance and Accountability
Report states:
``In sum, the Department continues to face difficult challenges in
providing adequate prison and detention space for the increasing
prisoner and detainee populations and in maintaining the safety and
security of prisons.''
I recognize the fiscal year 2013 budget submission includes funding
for an additional 3,496 beds (2,496 beds in Federal facilities and
1,000 new beds in contract facilities). However, BOP is projecting its
population will grow by 6,500 inmates during that time, which means
crowding will only get worse.
What additional resources are needed to provide the beds required
to meet capacity?
Answer. Continuing increases in the inmate population pose ongoing
challenges for BOP. The administration has taken several actions to
control Federal prison crowding including expanding capacity and
supporting legislation that will control prison population growth.
The fiscal year 2013 budget requests $81.4 million in program
enhancements to acquire 1,000 private contract beds and to begin
activating two institutions, the United States Penitentiary at Yazoo
City, Mississippi and the Federal Correctional Institution at Hazelton,
West Virginia. These new contract beds and the two prisons will
increase BOP's capacity by 3,496 beds once fully activated. (Exhibit O,
Status of Construction, in the fiscal year 2013 President's budget
request for buildings and facilities gives additional information on
pending construction projects.)
In addition, the administration supports two prisoner re-entry
provisions included in the Second Chance Reauthorization Act of 2011
(S. 1231), which was voted favorably out of the Judiciary Committee but
has not yet been scheduled for Senate floor action. The bill contains
provisions to increase inmate good conduct time by 7 days per year and
to provide a 60-day per year incentive for participation in recidivism-
reducing programs. If enacted, these legislative proposals will help
control the long-term prison population growth and result in an
estimated cost avoidance of $41 million; the President's budget assumes
enactment of these proposals and the corresponding savings.
Question. Is contract confinement a cost-effective solution for
housing low to minimum security offenders? Given current costs at
contractor and BOP facilities, is contract confinement a cost-effective
way to deal with overcrowding issues?
Answer. Contract confinement can be cost-effective when used for
housing low-security male criminal aliens. These inmates are
particularly well-suited for contract confinement because their
typically short sentence lengths and alien status generally preclude
them from participating in sentence and recidivism reducing programs.
Adding low-security private contract beds increases total system
capacity and helps control overcrowding in low-security BOP facilities.
At the end of fiscal year 2011, low-security overcrowding was 39
percent, which equates to about 80 percent of low-security inmates
being triple bunked, and in some cases regularly being housed in
television rooms, open bays, program space, etc.
______
Questions Submitted by Senator Lisa Murkowski
INDEMNIFICATION OF LEGAL FEES INCURRED BY STEVENS PROSECUTORS
Question. How much money was in fact spent defending the
prosecutors, what the money was spent defending the prosecutors from,
and why did the Justice Department spent the money?
Answer. It is the Department of Justice's (DOJ) long-standing
policy to provide representation to Federal employees for conduct
performed within the scope of their employment. The purpose for
providing representation is to protect the interests of the Government
by assuring adequate representation with respect to legal issues in
which the United States has a concern and by freeing its employees from
the fear that proper and vigorous performance of their duties may
result in substantial personal legal expenses. This may be so even
where the employee has erred or where, regardless of the lawfulness of
the conduct, there is concern that failure to provide representation
may result in the establishment of a legal principle that compromises
the Government's ability to perform its functions in a proper and
lawful manner in the future. Moreover, where there are disputed facts
regarding the conduct giving rise to the claim--or where the facts are
under investigation--the employee is afforded the benefit of the doubt
to the extent it is reasonable to do so. In all cases, the decision of
whether or not to provide representation is based upon the currently
available information. Those facts revealed that in the referenced
matters the prosecutors were acting within the scope of their
employment and representation was in the interest of the United States.
Private counsel was authorized because direct Department representation
was not appropriate.
DOJ authorized representation of six individuals with respect to
two matters and used standard retention agreements that the Department
commonly uses in its representation of other Federal employees. Those
retention agreements imposed caps on the number of hours of work for
which, absent unusual circumstances, counsel would be reimbursed. Those
agreements also set hourly rates that are based on the attorney's
experience and are well below--and in some cases less than 50 percent
of--the rates that DOJ uses when determining rates to pay prevailing
parties against it in Washington, DC, under the Equal Access to Justice
Act. With respect to the six individuals for whom representation was
authorized, to date DOJ has spent $282,982.51 in connection with the
contempt order entered by U.S. District Judge Emmet G. Sullivan on
February 8, 2009, in United States v. Stevens, No. 08-cr-0231 (D.D.C.),
and $1,633,298.29 in connection with the subsequent investigation by
Special Counsel Henry F. Schuelke III, who was appointed by Judge
Sullivan on April 9, 2009.
Question. Did DOJ enter into any agreement with the prosecutors or
their counsel prior to expending these funds? If so, please provide
copies of all such agreements.
Answer. DOJ did not enter into any agreement with the prosecutors.
In accordance with our usual practice, we sent our standard retention
letter to the private counsel retained to represent the prosecutors and
received back DOJ's standard retention agreement signed by private
counsel. As noted above, the retention agreements imposed caps on the
number of hours of work for which, absent unusual circumstances,
counsel would be reimbursed. The agreements also set hourly rates that
are based on the attorney's experience and are well below--and in some
cases less than 50 percent of--the rates that the Department uses when
determining rates to pay prevailing parties against it in Washington,
DC, under the Equal Access to Justice Act. Copies of the retention
letters and executed agreements are attached. (see Attachment 1)
Attachment #1
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, April 21, 2009.
Kenneth L. Wainstein,
O'Melveny & Myers, 1625 Eye St., NW, Washington, DC 20006.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Wainstein: The Department of Justice has concluded that it
reasonably appears at this time that representation of Joseph Bottini
in connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Mr. Bottini
by attorneys employed by the Department of Justice is inappropriate.
Mr. Bottini has requested that the Department agree to reimburse you
for his representation in this matter. Pursuant to 28 C.F.R.
Sec. 50.16(c)(1), your reimbursement will be subject to the applicable
statutes, regulations, and the terms and conditions set forth in the
enclosed addendum, which is incorporated into and made a part of this
agreement.
You and Mr. Bottini should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Bottini in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
The Department of Justice is continuing to experience delays in its
mail delivery, as mail addressed to the Department continues to be
forwarded to out-of-State facilities for irradiation. Therefore, please
e-mail the signature page of the retention agreement to the attention
of Ms. Lago at virginia.lago@usdoj.gov. In addition, please e-mail your
invoices to doj.private-counsel-program@usdoj.gov, or you may mail them
to Ms. Lago's attention at P.O. Box 7146, Washington, DC 20044.
Reimbursement of allowable fees and expenses will become available on
the Civil Division's receipt of the signed addendum.
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
Joseph Bottini, in connection with a Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Kenneth L. Wainstein
Date: April 23, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, June 16, 2009.
Matthew I. Menchel,
Kobre & Kim, 800 Third Avenue, New York, NY 10022.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Menchel: The Department of Justice has concluded that it
reasonably appears at this time that representation of James Goeke in
connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Mr. Goeke by
attorneys employed by the Department of Justice is inappropriate. Mr.
Goeke has requested that the Department agree to reimburse you for his
representation in this matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1),
your reimbursement will be subject to the applicable statutes,
regulations, and the terms and conditions set forth in the enclosed
addendum, which is incorporated into and made a part of this agreement.
You and Mr. Goeke should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Goeke in connection with this matter.
Although the Department of Justice has assumed responsibility for
remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
James Goeke, in connection with a Special Counsel. investigation in
United States v. Stevens, 08-cr-0231 (D.D.C.) will be in accordance
with the applicable statutes, regulations, and the foregoing terms and
conditions. This written instrument, together with the applicable
statutes and regulations, represents the entire agreement between the
Department of Justice and the undersigned, any past or future oral
agreements notwithstanding.
Signature: Matthew L. Menchel
Date: September 18, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, May 19, 2009.
Robert D. Luskin, Esq.,
Patton Boggs, 2550 M St., NW, Washington, DC 20037.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Luskin: The Department of Justice has concluded that it
reasonably appears at this time that representation of Nicholas Marsh
in connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Mr. Marsh by
attorneys employed by the Department of Justice is inappropriate. Mr.
Marsh has requested that the Department agree to reimburse you for his
representation in this matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1),
your reimbursement will be subject to the applicable statutes,
regulations, and the terms and conditions set forth in the enclosed
addendum, which is incorporated into and made a part of this agreement.
You and Mr. Marsh should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Marsh in connection with this matter.
Although the Department of Justice has assumed responsibility for
remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
Nicholas Marsh in connection with a Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Robert D. Luskin
Date: May 26, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, April 21, 2009.
Chuck Rosenberg, Esq.,
Hogan & Hanson LLP, 555 Thirteenth Street, NW, Washington, DC 20004.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Rosenberg: The Department of Justice has concluded that it
reasonably appears at this time that representation of Brenda Morris in
connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Ms. Morris
by attorneys employed by the Department of Justice is inappropriate.
Ms. Morris has requested that the Department agree to reimburse you for
her representation in this matter. Pursuant to 28 C.F.R.
Sec. 50.16(c)(1), your reimbursement will be subject to the applicable
statutes, regulations, and the terms and conditions set forth in the
enclosed addendum, which is incorporated into and made a part of this
agreement.
You and Ms. Morris should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Ms. Morris in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing her to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
Brenda Morris in connection with Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Chuck Rosenberg
Date: April 30, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, April 22, 2009.
Brian M. Heberlig,
Steptoe & Johnson, 1330 Connecticut Ave., NW, Washington, DC 20036.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Heberlig: The Department of Justice has concluded that it
reasonably appears at this time that representation of Edward Sullivan
in connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Mr. Sullivan
by attorneys employed by the Department of Justice is inappropriate.
Mr. Sullivan has requested that the Department agree to reimburse you
for his representation in this matter. Pursuant to 28 C.F.R.
Sec. 50.16(c)(1), your reimbursement will be subject to the applicable
statutes, regulations, and the terms and conditions set forth in the
enclosed addendum, which is incorporated into and made a part of this
agreement.
You and Mr. Sullivan should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Sullivan in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
Edward Sullivan in connection with Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Brian M. Heberlig
Date: April 24, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, April 21, 2009.
William W. Taylor III,
Zuckerman Spaeder, 1800 M Street, NW, Suite 1000, Washington, DC 20036-
5807.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Taylor: The Department of Justice has concluded that it
reasonably appears at this time that representation of William Welch in
connection with a Special Counsel criminal contempt investigation in
the above-referenced action is in the interest of the United States. It
also appears at this time, however, that representation of Mr. Welch by
attorneys employed by the Department of Justice is inappropriate. Mr.
Welch has requested that the Department agree to reimburse you for his
representation in this matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1),
your reimbursement will be subject to the applicable statutes,
regulations, and the terms and conditions set forth in the enclosed
addendum, which is incorporated into and made a part of this agreement,
You and Mr. Welch should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Welch in connection with this matter.
Although the Department of Justice has assumed responsibility for
remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
acceptance
I agree that my retention by the Department of Justice to represent
William Welch in connection with Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: William W. Taylor III
Date: May 8, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, February 27, 2009.
Chuck Rosenberg, Esq.,
Hogan & Hartson LLP, 555 Thirteenth Street, NW, Washington, DC 20004.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Rosenberg: The Department of Justice has concluded that it
reasonably appears at this time that representation of Brenda Morris in
connection with a contempt proceeding in the above-referenced action is
in the interest of the United States, It also appears at this time,
however, that representation of Ms. Morris by attorneys employed by the
Department of Justice is inappropriate. Ms. Morris has requested that
the Department agree to reimburse you for her representation in this
matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1), your reimbursement will
be subject to the applicable statutes, regulations, and the terms and
conditions set forth in the enclosed addendum, which is incorporated
into and made a part of this agreement.
You and Ms. Morris should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Ms. Morris in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing her to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
acceptance
I agree that my retention by the Department of Justice to represent
Brenda Morris in connection with Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Chuck Rosenberg
Date: March 3, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, February 18, 2009.
Howard M. Shapiro, Esq.,
Wilmer Hale, 1875 Pennsylvania Ave., NW, Washington, DC 20006.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Shapiro: The Department of Justice has concluded that it
reasonably appears at this time that representation of Patty Merkamp
Stemler in connection with a contempt proceeding in the above-
referenced action is in the interest of the United States. It also
appears at this time, however, that representation of Ms. Stemler by
attorneys employed by the Department of Justice is inappropriate. Ms.
Stemler has requested that the Department agree to reimburse you for
her representation in this matter. Pursuant to 28 C.F.R.
Sec. 50.16(c)(1), your reimbursement will be subject to the applicable
statutes, regulations, and the terms and conditions set forth in the
enclosed addendum, which is incorporated into and made a part of this
agreement.
You and Ms. Stemler should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Ms. Stemler in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing her to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
acceptance
I agree that my retention by the Department of Justice to represent
Patty Merkamp Stemler in connection with Special Counsel criminal
contempt investigation in United States v. Stevens, 08-cr-0231 (D.D.C.)
will be in accordance with the applicable statutes, regulations, and
the foregoing terms and conditions. This written instrument, together
with the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Howard M. Shapiro
Date: February 19, 2009
Tax Identification Number: __________
______
Civil Division,
U.S. Department of Justice,
Washington, DC 20530, February 18, 2009.
Mark H. Lynch, Esq.,
Covington & Burling, 1201 Pennsylvania Ave., NW, Washington, DC 20004.
RE: Special Counsel Criminal Contempt Investigation Arising from United
States v. Stevens, 08-cr-0231 (D.D.C.)
Dear Mr. Lynch: The Department of Justice has concluded that it
reasonably appears at this time that representation of William Welch in
connection with a contempt proceeding in the above-referenced action is
in the interest of the United States. It also appears at this time,
however, that representation of Mr. Welch by attorneys employed by the
Department of Justice is inappropriate. Mr. Welch has requested that
the Department agree to reimburse you for his representation in this
matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1), your reimbursement will
be subject to the applicable statutes, regulations, and the terms and
conditions set forth in the enclosed addendum, which is incorporated
into and made a part of this agreement.
You and Mr. Welch should be aware that, by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary liability
that might be imposed against Mr. Welch in connection with this matter.
Although the Department of Justice has assumed responsibility for
remunerating you in the course of representing him to the extent
specified in the addendum, your responsibility, of course, is solely to
your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact Attorney
Advisor Virginia G. Lago at (202) 616-4328.
If you find the provisions of the agreement acceptable, please
return the signed addendum, along with your firm's tax identification
number, to the following address:
Virginia G. Lago, Esq.
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 7146
Washington, DC, 20044
In addition, enclosed you will find a copy of the ACH VENDOR Direct
Deposit Form. Please fill out the blank areas on the form and fax the
completed form to:
Accounts Maintenance Unit
Attn: Gina McLaughlin
FAX: (202) 616-2207
The Debt Collection Improvement Act of 1996 requires that most
payments by the Federal Government, including vendor payments, be made
by electronic funds transfer. If you have any questions regarding the
delivery of remittance information, please contact the financial
institution where your account is held. If you have any questions
regarding completion of this form, please contact Ms. McLaughlin at
(202) 616-8103.
Thank you for your assistance in this matter.
Very truly yours,
Timothy P. Garren,
Director, Torts Branch.
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
acceptance
I agree that my retention by the Department of Justice to represent
William Welch in connection with Special Counsel criminal contempt
investigation in United States v. Stevens, 08-cr-0231 (D.D.C.) will be
in accordance with the applicable statutes, regulations, and the
foregoing terms and conditions. This written instrument, together with
the applicable statutes and regulations, represents the entire
agreement between the Department of Justice and the undersigned, any
past or future oral agreements notwithstanding.
Signature: Mark H. Lynch
Date: February 24, 2009
Tax Identification Number: __________
Question. Did the Justice Department have any role in the selection
of private counsel retained to represent its prosecutors? If so, how
was this role exercised?
Answer. The Department of Justice, upon determining that private
counsel should be provided, informs the employees to contact private
counsel of their choosing. If an employee is having difficulty in doing
so, the Department will attempt to assist the employee in finding
counsel. Once the employee selects counsel, the terms of retention as
outlined in our standard retention letter and agreement are explained
and, if private counsel agrees to the terms regarding reimbursement, he
or she signs and returns the retention agreement to the Civil Division.
Question. What cost controls, if any, were imposed on the private
counsel retained to represent the Department prosecutors?
Answer. Cost controls are specified in the retention agreement and
Civil Division Directive 2120A (see Attachment 2). The retention
agreement used by the Department requires the submission of detailed
monthly bills, provides for GAO audit of the private attorney time
sheets, places a maximum limit on the attorney's billable hours per
month (however the agreement also provides that we will consider paying
more if the press of litigation clearly necessitates the expenditure of
more time), limits the maximum hourly fee that may be charged, and
limits the services for which the private attorney will be compensated
to those directly associated with the litigation. As noted above, the
hourly rates are set based on the attorney's experience and are well
below--and in some cases less than 50 percent of--the rates that the
Department uses when determining rates to pay prevailing parties
against it in Washington, DC, under the Equal Access to Justice Act.
Attachment #2
[U.S. Department of Justice, Civil Division, Administrative Directive
CIV 2120A]
Retention and Payment of Private Counsel
May 1, 2002
Subject: Retention and Payment of Private Counsel
1. PURPOSE.
This directive sets forth the procedures for entering into
agreements to retain private counsel to represent Federal employees at
Federal expense and the procedures for paying private counsel fees and
expenses.
2. SCOPE.
The provisions of this directive apply to all branches, staffs, and
offices within the Civil Division.
3. DEFINITIONS.
a. A Private Counsel is a private attorney with whom the Department
of Justice has entered into an agreement regarding compensation for the
representation of a person, persons, or an entity being sued,
prosecuted, or subpoenaed for acts performed in the service of the
United States where the Department has determined that such
representation is in the interest of the United States. The Department
may enter into such compensation agreements with private counsel in any
instance described in 28 C.F.R. Sec. 50.15. Under the authority of 28
U.S.C. Sec. 517, the Department may also enter into such agreements
with private counsel for the representation of a person, persons, or
entity in circumstances similar to those described in 28 C.F.R.
Sec. 50.15.
b. The Assigned Attorney, or the ``Department attorney assigned,''
refers to the Civil Division attorney having assigned responsibility
for the case and not to the Assistant United States Attorney who may be
handling the case in the local district.
c. An ``Employee,'' for the purposes of this directive, is a
present or former employee of the United States or any other person or
entity to whom or to which the Civil Division extends representation
under the authority of 28 U.S.C. Sec. 517.
4. AUTHORITY.
28 C.F.R. Sec. 50.16(b) gives the Assistant Attorney General of the
Civil Division the responsibility for establishing procedures for the
retention of private counsel, including the setting of fee schedules.
28 C.F.R. Sec. 50.16(a) makes the retention of private counsel subject
to the availability of funds.
5. POLICY.
a. Department attorneys responsible for cases involving the
retention of private counsel will determine from the Civil Division's
Office of Planning, Budget, and Evaluation if funding is available for
estimated private counsel costs PRIOR to submitting the formal request
for authorization to enter into a private counsel retention agreement.
b. Once the Assistant Attorney General authorizes a private counsel
representation agreement in accordance with 28 C.F.R. Sec. Sec. 50.15
and 50.16, the Department of Justice will, SUBJECT TO THE AVAILABILITY
OF APPROPRIATIONS, pay a private attorney, or other members of the
attorney's firm, for those legal services reasonably necessary in the
defense of a current or former Federal employee in civil,
congressional, or criminal proceedings. The Department will not pay for
services that it determines are not directly related to the defense of
issues such matters present. Additionally, the Department will not pay
for services, even if they are directly related to the defense of those
issues, if the Department determines that the services are not in the
best interests of the United States. The Department will not pay for
services that advance only the interest of the employee.
6. RESPONSIBILITIES.
a. The Assistant Attorney General, Civil Division, authorizes the
representation of private counsel and determines what steps the
Division will take when representation is warranted but funds are not
available for it. The Assistant Attorney General may delegate these
responsibilities to another appropriate Division official (a designee).
b. The Deputy Assistant Attorney General for the Torts Branch
reviews and authorizes requests for additional private counsel hours
and unusual private counsel expenses in cases that are the
responsibility of other litigating divisions within the Department. He
or she also decides whether the Department will reimburse an employee
for previously incurred private counsel expenses.
c. Directors of the Civil Division's branches, offices, and staffs
(hereinafter ``Directors'') send decision memoranda to the Assistant
Attorney General (or designee) requesting authority to enter into
retention agreements with private counsel and forward Memoranda for the
File authorizing such agreements. They may sign letters presenting
retention agreements to private counsel when the Assistant Attorney
General has authorized retention of private counsel. They also review
and decide routine private counsel billing disputes and requests for
additional private counsel hours and costs after the assigned case
reviewer has informed the private counsel of the Department's
disallowance of a fee or expense. Directors refer such disputes to the
appropriate Deputy Assistant Attorney General to review and decide the
issues when the nature or expense of the case suggests the need to do
so.
d. Reviewers for cases involving retained private counsel examine
bills received from those counsel and certify them for payment, after
review by the assigned attorney. Where the reviewer determines that the
Department cannot pay for certain items as submitted, the reviewer
informs the private counsel in writing of the Department's
determination and of the private counsel's right to seek a
redetermination from the appropriate Director.
e. Attorneys assigned to cases involving requests for private
counsel estimate the costs of private counsel, inquire about the
availability of funds for private counsel costs, prepare requests to
enter into private counsel retention agreements, secure the actual
agreement with private counsel, request the obligation of funds,
suggest the deobligation of funds, submit all related documentation for
processing, and review and certify private counsel bills for payment.
f. The Office of Planning, Budget, and Evaluation (OPBE), Civil
Division, determines the availability of funds for private counsel,
obligates and deobligates funds for the payment of private counsel,
reviews bills for payment from private counsel, and arranges for the
payment of private counsel from the U.S. Treasury.
7. PROCEDURES.
a. Obtaining Authorization For Private Counsel Retention
Agreements.
(1) Determining the Availability of Funds. Unless the retention
of private counsel is clearly unwarranted under 28 C.F.R.
Sec. 50.16, attorneys responsible for cases in which the
possibility of representation arises must DETERMINE THE
AVAILABILITY OF FUNDS for any potential private counsel
retention agreement BEFORE SEEKING APPROVAL to enter into any
such agreement.
(a) The attorney must estimate the cost of a private counsel
for the fiscal year based on the kind of services needed,
the schedule of fees, and the approximate number of hours
to be worked.
(b) The attorney should send a memorandum to the Director of
OPBE inquiring about the availability of funds for the
estimated private counsel costs.
(c) OPBE will determine whether sufficient funds are available
to enter into a retention agreement and will notify the
attorney accordingly in writing. If funds are available,
OPBE will commit to the case the amount estimated for the
current fiscal year and will simultaneously reduce funding
availability by the amount of the estimate. OPBE will
obligate funds following the execution of a retention
agreement (see section 7.c.). OPBE will establish monthly
reports tracking availability, commitments, obligations,
and payments by Branch.
(2) Requesting Authorization for Private Counsel Retention
Agreements.
(a) After the attorney determines the availability of funds
from OPBE, the attorney's Director will send a memorandum
to the Assistant Attorney General (or designee) to obtain a
decision on the retention of private counsel for the case.
The memorandum will recommend whether to retain private
counsel; will recommend, if appropriate, the private
counsel to be retained; and will forward the supporting
documentation necessary for the Assistant Attorney General
(or designee) to make a decision. THE MEMORANDUM MUST
TRANSMIT:
1. a written verification from OPBE that the Civil
Division either has or does not have sufficient funds
to pay for the estimated private counsel costs. In
emergency situations, the memorandum may report an oral
verification from OPBE, with the written verification
for the record submitted later.
2. a Memorandum for the File, for the signature of
the Assistant Attorney General (or designee), that will
authorize the retention of private counsel and will
approve the attorney to be retained (see Exhibit 1 for
sample Memorandum for the File).
(b) The Assistant Attorney General (or designee) will consider
the availability of funds in determining whether to
authorize private counsel pursuant to 28 C.F.R. Sec. 50.16.
When private counsel representation is warranted and
sufficient funds are not available, the Assistant Attorney
General (or designee) may direct the Division to seek
additional funding from the Justice Management Division.
After signing the Memorandum for the File authorizing the
proposed retention of private counsel, the Assistant
Attorney General (or designee) will forward it to the
originating Director, who will return it to the originating
attorney.
b. Establishing Private Counsel Retention Agreements. Where the
Assistant Attorney General (or designee) approves the retention of
private counsel, the private counsel must sign a formal retention
agreement that sets forth the terms and conditions of the
representation. This written agreement will describe the legal fees and
expenses that the government agrees to pay and the format and frequency
of the bills that the private counsel will submit for payment.
Once the attorney receives the signed Memorandum for the File
authorizing the retention of private counsel, the attorney will prepare
the formal retention agreement, with a transmitting letter for the
signature of the attorney's Director. After the Director signs the
forwarding letter, the attorney will send these documents to the
private counsel for signature. Exhibit 2 is a sample forwarding letter
with the formal retention agreement.
THE PRIVATE COUNSEL MUST SIGN AND RETURN THE AGREEMENT TO THE
DEPARTMENT ATTORNEY ASSIGNED TO THE CASE BEFORE THE GOVERNMENT CAN PAY
FOR ANY SERVICES.
c. Establishing an Obligation for Retained Private Counsel. Once
the assigned attorney receives the signed agreement from the private
counsel, the attorney will prepare and send a memorandum to OPBE
requesting the establishment of a financial obligation for the
estimated costs of the private counsel (see the sample memorandum in
Exhibit 3). In this memorandum, the attorney will estimate the total
cost of the legal fees and expenses under the agreement. If the
attorney anticipates that the case will require the private counsel's
services longer than the current fiscal year, the memorandum should
provide an estimate for each fiscal year. The attorney must attach to
this memorandum:
(1) a copy of the Memorandum for the File authorizing the
retention of private counsel;
(2) the signed retention agreement and forwarding letter; and
(3) OPBE's original written certification of the availability of
funds for the agreement. After receiving the memorandum
requesting an obligation with these supporting documents, OPBE
will obligate funds for the payment of private counsel costs.
d. Deobligating Funds. The assigned attorney will closely monitor
the progress of the case and will promptly notify OPBE when the case
concludes or when the need for private counsel ends. Thereupon, OPBE
and the attorney will assess the total and expected payments, and, if
surplus funds remain obligated for the case, OPBE will deobligate those
funds so that they will be available for other requests for private
counsel representation.
e. Payment of Private Counsel Bills.
(1) The retained private counsel must seek Department approval
for any additional hours of service or any unusual expenditures
not specifically allowed in the retention agreement BEFORE
undertaking such services or incurring such expenses. The
private counsel will make written request for authorization to
the Department attorney assigned to the case. The assigned
attorney, in consultation with the assigned case reviewer, will
convey the Department's decision by letter to the retained
private counsel.
In cases that are the responsibility of other litigating
divisions of the Department, the Deputy Assistant Attorney
General for the Torts Branch will review and authorize requests
for additional hours or unusual costs.
(2) Private counsel will submit bills on a monthly basis to the
Director of OPBE for processing and payment.
(3) OPBE will route the bill to appropriate individuals for
review prior to payment. OPBE will attach a cover sheet to the
bill with delineated spaces or blocks for each individual in
the review process and a schedule for processing the bill at
each stage of review. Each reviewer will enter the results of
his or her review and will endorse the appropriate space on the
cover sheet.
(4) OPBE will examine each bill to ensure its consistency with
the financial conditions of the retention agreement (billable
hours, legal fees, expenses, etc.) and the accuracy of the
mathematical calculations. OPBE will not examine the necessity
or reasonableness of any service. OPBE will certify the
correctness of the bill for the items within the scope of its
review or will note any discrepancies it discovers.
(5) OPBE will forward the bills, with the above certification or
notation of discrepancies, to the assigned attorney for review
and certification for payment. OPBE will not forward those
billing items that the retained private counsel has indicated
might compromise litigation tactics if disclosed to assigned
Department attorneys, pursuant to paragraph 5 of the addendum
to the retention agreement. In these instances, the Director
responsible for the case will identify uninvolved Department
attorneys who will independently review those sensitive
portions of the bill directly for OPBE.
On receiving the bill, the attorney will review and then certify,
if appropriate, the necessity and reasonableness of the
services indicated and will forward the bill to the assigned
case reviewer for his or her certification. The assigned case
reviewer will then sign the bill, if appropriate, and return it
to OPBE for payment.
(6) Once the appropriate parties have properly reviewed and
certified the bill as payable, OPBE will submit it for payment
to the U.S. Treasury, through the Justice Management Division.
(7) Should this review process uncover any discrepancies or
nonreimbursable items, the assigned attorney will prepare a
letter for the signature of the assigned case reviewer to
inform the private counsel of the items not payable as
presented and to explain the reasons. The letter should ask the
private counsel to submit either a revised bill or an
explanation of any item for which information is insufficient
to determine if the item is payable. The assigned case reviewer
will forward a copy of the signed letter with the disputed bill
to OPBE.
Should the private counsel contest the disallowance of any items
that the Department will not pay, the private counsel may
submit a request for reconsideration to the appropriate
Director, who will decide the matter for the Department and
will inform the private counsel of the decision by letter.
(8) THE PROMPT PAYMENT ACT REQUIRES THE PAYMENT OF PRIVATE
COUNSEL BILLS WITHIN 30 DAYS OF RECEIPT AND THE NOTIFICATION OF
ANY DEFECTS IN BILLS WITHIN 7 DAYS OF RECEIPT IN THE CIVIL
DIVISION. FAILURE TO ADHERE TO THESE TIME REQUIREMENTS MAY
RESULT IN THE ASSESSMENT OF INTEREST PENALTIES. To avoid the
possible assessment of interest penalties, OPBE will complete
its initial review of private counsel bills and will forward
them to the assigned attorney within 3 days of their receipt.
Within 3 days of receiving the bill from OPBE, the assigned
attorney will ensure the complete certification of the bill for
payment and will return it to OPBE or will ensure the posting
of a letter to the private counsel concerning defects in the
bill.
f. Payment for Previously Incurred Private Counsel Expenses.
(1) Preparation and Routing of Request. In the event that an
employee seeks reimbursement for private counsel expenses
incurred in a matter that has already concluded or in which the
direct representation by Department of Justice attorneys has
become available, the employee or the employee's private
attorney may submit a request to the General Counsel of the
employee's agency. The employing agency shall forward the
request to the Director of the appropriate branch, office, or
staff of the Civil Division. The Director will assign the
matter to a trial attorney.
(2) Content of the Request. The request for reimbursement for
past representation must include a complete statement of the
fees and expenses for which the employee is seeking
reimbursement. This statement should follow the format
described in the sample reimbursement agreement (see Exhibit
2). The request should also include an explanation from both
the employee and the employing agency of the reason or reasons
why direct representation by the Department of Justice was not
sought or was not available.
(3) Assessment of the Statement of Fees and Expenses. The
assigned attorney will forward the statement of fees and
expenses to OPBE for a review of computational accuracy and for
consistency with the financial terms and conditions of the
normal representation agreement. After that review, OPBE will
return the bill to the assigned attorney with an explanation of
any computational errors and non-conforming items. OPBE will
also certify whether funds are available to pay the bill, after
allowances for computational errors (no allowance being made
for non-conforming items). On receipt of OPBE's assessment, the
assigned attorney will review the statement of fees and
expenses, including any non-conforming items, and will certify
them for payment if they are reasonable in light of all the
circumstances. In no case will the Department approve an hourly
rate in excess of the rate then applicable for an attorney of
the experience level of the billing private counsel.
(4) Preparation of Recommendation for Approval. The assigned
attorney will then prepare a memorandum for the signature of
his or her Director requesting that the Deputy Assistant
Attorney General for the Torts Branch approve the payment of
the private counsel. A request for approval must include:
(a) the employee's request and the agency's views;
(b) OPBE's confirmation that appropriated funds are available
to pay the bill;
(c) a recommendation as to the amount the Department should
pay; and
(d) a Memorandum for the File to record the Deputy Assistant
Attorney General's decision (see Exhibit 4).
A retention agreement is not necessary.
(5) Instituting the Decision. The Deputy Assistant Attorney
General will indicate his or her decision on the Memorandum for
the File, sign it, and forward it with the requesting
memorandum to the Director, who will send them to the assigned
attorney. If the decision is favorable, the assigned attorney
will send a copy of the Memorandum for the File and the
statement of fees and expenses to OPBE, which will then
obligate the funds and process the statement for payment.
Finally, the assigned attorney will prepare a letter to the
employee and the employing agency announcing the Department's
decision and indicating, if appropriate, that the Department is
now processing the bill for payment.
8. DOCUMENTATION.
Documents associated with the retention and payment of private
counsel often reflect the substance of communications between employees
and their Justice Department counsel. Accordingly, they are entitled to
the protection of the attorney-client privilege (see 28 C.F.R.
Sec. 50.15[a][3]). This includes documents related to the authorization
of private counsel and the payment of their bills.
The Civil Division will afford special handling to these documents
in accordance with the instructions contained in the Assistant Attorney
General's memorandum of July 26, 1983, titled ``Maintenance of
Attorney-Client Information.'' The Civil Division will treat these
documents as a part of the official litigation case file for the
particular matter, but will hold them in special file sections separate
and apart from the remainder of the official case file. These special
file sections will contain a cover sheet over the documents that
proclaims: ``This file contains privileged attorney-client information.
Access is limited to assigned trial attorneys and their supervisors.''
A similar message must appear on the outside of the file section folder
near the identifying DJ number. Civil Division employees will take
great care to prevent the unauthorized disclosure of the information in
these documents, generally treating them as ``Limited Official Use''
information (see Civil Division Directive CIV-2620).
When the case closes, the assigned attorney will promptly retire
the remainder of the case file, but the Civil Division branch, office,
or staff will retain the privileged file sections until the Department
of Justice and the National Archives determine their ultimate
disposition. A note will go into the official file indicating that the
Division has retained a privileged portion of the file, and a copy of
the signed closure form will go into the retained privileged file
sections.
9. RATES PAID TO PRIVATE COUNSEL.
OPBE will review rates paid to private counsel at least every 3
years to ensure that rates are sufficiently competitive to attract
qualified attorneys. Determinations to change rates will be based on
market conditions and funding availability.
10. ADDITIONAL INFORMATION.
Additional information on this subject it available from the
Director, OPBE (307-0034).
Robert D. McCallum, Jr.
Assistant Attorney General Civil Division.
EXHIBIT 1
MEMORANDUM FOR FILE
Re: Request(s) For Representation By Private Counsel Of [insert name of
employee(s)] in [insert case caption]
The request(s) for representation by private counsel at Department
of Justice expense in the above referenced matter is hereby granted,
subject to the terms, conditions and limitation of 28 C.F.R.
Sec. Sec. 50.15. 50.16 and Civil Division Directive 2120A.
DATE: ___________
________________
Assistant Attorney General
(or designee)
CIVIL DIVISION
EXHIBIT 2
SAMPLE PRIVATE COUNSEL RETENTION LETTER
[Insert Name of attorney or firm]
[Insert address]
Re: [Insert case name]
Dear [Name]:
The Department of Justice has concluded that it reasonably appears
at this time that representation of [insert employee's name] is in the
interest of the United States. It also appears at this time, however,
that representation of [insert employee's name] by attorneys employed
by the Department of Justice is inappropriate. [Employee] has requested
that the Department agree to reimburse you for [his or her] defense in
the above referenced matter. Pursuant to 28 C.F.R. Sec. 50.16(c)(1),
your reimbursement will be subject to the applicable statutes,
regulations, and the terms and conditions set forth in the enclosed
addendum, which is incorporated into and made a part of this agreement.
You and [employee] should be aware that by entering into this
agreement, the Department of Justice in no way assumes responsibility
on the part of the United States Government for any monetary damages
that may be imposed against [him or her] in connection with this
matter. Although the Department of Justice has assumed responsibility
for remunerating you in the course of representing [employee] to the
extent specified in the addendum, your responsibility, of course, is
solely to your client.
Should you have any questions concerning the terms of this
agreement, including the enclosed addendum, please contact [Department
attorney assigned to the case] at __- ___.
If you find the provisions of the agreement acceptable, please
return the signed addendum to [name of assigned attorney] at the
following address:
[Name of assigned attorney]
[Name of branch, office, or staff]
Civil Division
U.S. Department of Justice
Washington, D.C. 20530
Reimbursement of allowable fees and expenses will become effective
on the Civil Division's receipt of the signed addendum.
Very truly yours,
________________
Director
[Branch, office, or staff]
Civil Division
Enclosure
CONDITIONS OF PRIVATE COUNSEL RETENTION BY THE DEPARTMENT OF JUSTICE
FOR REPRESENTATION OF CURRENT AND FORMER FEDERAL EMPLOYEES
The following items and conditions shall apply to the retention of
a private attorney's legal services by the Department of Justice to
represent current and former Federal employees in civil, congressional,
or criminal proceedings.
1. NATURE OF RETENTION
Subject to the availability of funds, the Department of Justice
agrees to pay an attorney, or other members of his or her firm, for
those legal services reasonably necessitated by the defense of a
current or former Federal employee (hereinafter ``client'') in civil,
congressional, or criminal proceedings.
The Department will not honor bills for services that the
Department determines were not directly related to the defense of
issues presented by such matters. Examples of services for which the
Department will not pay include, but are not limited to:
a. administrative claims, civil actions, or any indemnification
proceedings against the United States on behalf of the client for any
adverse monetary judgment, whether before or after the entry of such an
adverse judgment;
b. cross claims against co-defendants or counterclaims against
plaintiff, unless the Department of Justice determines in advance of
its filing that a counterclaim is essential to the defense of the
employee and the employee agrees that any recovery on the counterclaim
will be paid to the United States as a reimbursement for the costs of
the defense of the employee;
c. requests made under the Freedom of Information or Privacy Acts
or civil suits against the United States under the Freedom of
Information or Privacy Acts, or on any other basis, to secure documents
for use in the defense of the client;
d. any legal work that advances only the individual interests of
the employee; and
e. certain administrative expenses noted in paragraph number 4
below.
The retained attorney is free to undertake such actions as set
forth above, but must negotiate any charges with the client and may not
pass those charges on to the Department of Justice.
THE ABOVE LIST IS NOT EXHAUSTIVE. The Department of Justice will
not reimburse services deemed reasonably necessary to the defense of an
employee if they are not in the interests of the United States.
To avoid confusion over whether the retained attorney may bill the
Department for a particular service under this retention agreement, the
retained attorney should consult the Justice Department attorney
assigned to the case, mentioned in the accompanying letter before
undertaking the service.
2. BILLABLE HOURS
The Department of Justice agrees to pay the retained attorney for
any amount of time not exceeding 120 billable hours per month for
services performed in the defense of the client. The retained attorney
may use the services of any number of attorneys, paralegals, or legal
assistants in his or her firm so long as the aggregate number of
billable hours in any given month does not exceed 120 hours. The client
is free, however, to retain the attorney, or members of the firm, to
perform work in excess of 120 hours per month so long as the firm does
not bill the excess charge to the Department of Justice.
The Department will consider paying for services in excess of 120
hours in any given month if the press of litigation (e.g., trial
preparation) clearly necessitates the expenditure of more time. The
retained attorney must make requests for additional compensation to the
Department in writing in advance of such expenditures.
3. LEGAL FEES
The Department agrees to pay the retained attorney up to $200.00
per lawyer hour, plus expenses as described in paragraph 4 below. The
charge for any services should not exceed the retained attorney's
ordinary and customary charge for such services. This fee is based on
the consideration that the retained attorney has been practicing law in
excess of 5 years.
In the event the retained attorney uses the services of other
lawyers in his or her firm, or the services of a paralegal or legal
assistant, the Department agrees to pay the following fees.
a. Lawyer with more than 5 years practicing experience: $200.00 per
lawyer hour
b. Lawyer with 3-5 years of practicing experience: $160.00 per
lawyer hour
c. Lawyer with 0-3 years of practicing experience: $133.00 per
lawyer hour
d. Paralegal or legal assistant (or equivalent): $78.00 per hour.
The Department of Justice periodically reviews the hourly rates
paid to attorneys retained to defend Federal employees under 28 C.F.R.
Sec. 50.16. If, during the period of this agreement, the Department
revises the schedule of hourly rates payable in such cases, the
Department will pay revised rates for services rendered after the
effective date of the revision in rates.
4. EXPENSES
While the Department will pay normal overhead expenses actually
incurred (e.g., postage, telephone tolls, travel, transcripts), the
retained attorney must itemize these charges. The Department will not
accept for payment a bill that shows only a standard fee or percentage
as ``overhead''. The retained attorney must describe, justify, and
clear IN ADVANCE unusual or exceptionally high expenses.
In addition, the retained attorney must describe, justify, and
clear in advance any consultations with or retention of experts or
expert witnesses.
The retained attorney must secure advance approval to use computer-
assisted research that involves charges in excess of $500.00 in a given
month.
The retained attorney must separately justify and obtain advance
approval for services such as printing, graphic reproduction, or
preparation of demonstrative evidence or explanatory exhibits.
The retained attorney must itemize and justify in-house copying
costs exceeding $150.00 in a given month. The Department will pay up to
a per page copying cost of $.15 per page.
The retained attorney must itemize and justify facsimile
transmission costs exceeding $150.00 in a given month.
The Department will pay expenses such as secretarial overtime or
the purchase of books only in exceptional situations. The retained
attorney must obtain advance approval for such expenditures.
Travel expenses may not include first class service or deluxe
accommodations. The retained attorney may not bill time spent in travel
unless it is used to accomplish tasks related to the litigation. The
retained attorney must specifically identify such tasks.
The Department will not pay for meal charges not related to out-of-
town travel. The Department will not provide compensation for client or
other entertainment. The Department will not pay expenses for meals
incidental to overtime.
The Department will not pay for expenses that can normally be
absorbed as clerical overhead, such as time spent in preparing legal
bills and filing papers with the Court. The retained attorney must
separately list and justify messenger services.
The retained attorney must enumerate the expenses incurred for
hiring local counsel by rate, hour, and kind of service. These hours
must fall within the 120-hour monthly maximum. The hourly rates paid to
local counsel may not exceed the rates listed in paragraph 3 above.
5. FORMAT OF BILLS
The retained attorney must submit bills on a monthly basis, stating
the date of each service performed; the name of the attorney or legal
assistant performing the service; a description of the service; and the
time in tenths, sixths, or quarters of an hour, required to perform the
service. Because of the limitation on reimbursable hours, a bill must
include all services rendered in a given month. The Department will not
consider subsequent bills for services rendered in a month for which it
has already received a bill.
In describing the nature of the service performed, the itemization
must reflect each litigation activity for which reimbursement is
claimed.
The retained attorney must attach copies of airline tickets, hotel
bills, and bills for deposition and hearing transcripts to the billing
statement.
The retained attorney must itemize local mileage costs (e.g.,
purpose of travel and number of miles). The Department will pay the
standard government cost per mile rate for the use of privately owned
vehicles.
Before the Department of Justice will pay a bill, Department
attorneys with substantive knowledge of the litigation will review it.
If the retained attorney believes that the detail of the legal bill
would compromise litigation tactics if disclosed to Department
attorneys assigned to the case, the retained attorney should list those
particular billing items on a separate sheet of paper with an
indication of the specific concern. Department attorneys uninvolved
with this case will independently review the separated, sensitive
portion of the bill solely to determine if payment is appropriate under
applicable standards. The individuals reviewing the bills will not
discuss these items with the Department of Justice attorneys having
responsibility for the case, nor will those responsible attorneys
review the items in question.
After Department attorneys complete the review of a bill, the
Department will notify the billing counsel if the Department deems any
item or items nonreimbursable or if any item or items require further
explanation. When further information or explanation is needed, the
Department will hold the entire bill until the retained attorney
responds. Only after the Department receives and reviews the response
will the Department certify the bill in whole or in part for payment.
For that reason, the retained attorney must respond promptly.
Should the Department determine that any items are not reimbursable
under this agreement, the billing counsel may request further review of
the Department's determination. The retained attorney shall make such a
written request to the appropriate Branch director at the address
indicated in the forwarding letter. The billing counsel must submit
such requests for further review within 30 days, unless additional time
is specifically requested and approved. Thereafter, the Department will
not reconsider its determination.
6. BILLING ADDRESS
The retained attorney should submit all bills to:
Director, Office of Planning, Budget and Evaluation
Civil Division
United States Department of Justice
Washington, D.C. 20530
Attn: Room 9042, L Street Building
7. PROMPT PAYMENT
The Prompt Payment Act is applicable to payments under this
agreement and requires the payment of interest on overdue payments.
Determinations of interest due will be made in accordance with
provisions of the Prompt Payment Act and Office of Management and
Budget Circular A-125.
8. GAO REVIEW
Periodically, the Department of Justice may ask the retained
attorney to submit copies of time sheets to the General Accounting
Office (GAO) for purposes of auditing the accuracy of corresponding
monthly bills, copies of which the Department will forward directly to
GAO.
9. TERMINATION
The Department of Justice reserves the right to terminate its
retention agreement with the retained attorney at any time for reasons
set forth in 28 C.F.R. Sec. 50.16.
ACCEPTANCE
I agree that my retention by the Department of Justice to represent
_____ in connection with _____ will be in accordance with the
applicable statutes, regulations, and the foregoing terms and
conditions. This written instrument, together with the applicable
statutes and regulations, represents the entire agreement between the
Department of Justice and the undersigned, any past or future oral
agreements notwithstanding.
Signature: ________________
Date: _________________
Tax Identification Number: __________
EXHIBIT 3
MEMORANDUM
TO: Supervisor, Accounts Maintenance Staff
Office of Planning, Budget, and Evaluation
Civil Division
FROM: [Name of Director]
[Name of Branch, Office, Staff] Civil Division
SUBJECT: Request to Establish Private Counsel Obligation
A decision was made to reimburse private counsel for representation
of a Federal employee in connection with [insert case caption].
It is estimated that [insert dollar amount] is needed for
reimbursement in fiscal year [insert year]. Please establish the
following obligation at this time.
Law Firm FY XX
[Name of private counsel] [insert dollar amount]
(on behalf of [insert employee(s) name])
[Address of private counsel firm]
The firm's tax identification number is: [insert tax identification
number]
If you have any questions, please contact [insert name] of my
office at [insert telephone number].
Attachments
EXHIBIT 4
MEMORANDUM FOR FILE
Re: Request For Authorization To Reimburse [insert name of attorney]
For The Representation of [insert name of employee] in [insert
case caption]
[Insert name of employee(s)] has requested that the Department of
Justice bear the cost of representation in this case. It appears that
representation of [insert name of employee(s)] would have been in the
interest of the United States and that failure to make a timely request
for representation is not attributable to any fault on the part of
[insert name of employee(s)]. Reimbursement of [insert attorney's name]
in the amount of $______ is hereby authorized.
DATE: ___________
________________
Deputy Assistant Attorney General
Civil Division
Question. Would you agree with Senator Grassley's characterization
that ``this is an unseemly high amount of money being spent by the
taxpayers to defend what appears to be egregious misconduct?'' If you
disagree, please explain the reason for your disagreement.
Answer. We respectfully disagree for two reasons. First, only
reasonable and necessary fees were reimbursed. The amount expended was
for the legal services for six different prosecutors and for two
separate but related matters:
--a contempt proceeding convened by the district judge; and
--a court-ordered several-years-long investigation, both stemming
from a high-profile criminal prosecution which proceeded to
trial.
The breadth of this undertaking is evidenced by the Special
Prosecutor's investigative report, which exceeded 500 pages. Second, as
noted in our previous response, employees are given a reasonable
benefit of the doubt on disputed factual matters and representation is
provided while the facts are being fully developed. This practice is
designed to protect the Federal workforce and to ensure that the
interests of the Government with respect to the legal issues in which
the United States has a concern are adequately defended.
Question. On November 21, 2011, Judge Sullivan issued an order
indicating that the report of his investigative counsel had been
submitted and seeking the views of certain stakeholders, including the
prosecutors, on whether the report should be made public. Did DOJ pay
the legal expenses or associated costs of any of the prosecutors with
respect to the issues raised in Judge Sullivan's November 21, 2011
order and if so, what public interest justified the expenditure of
these funds and how much money was paid?
Answer. Judge Sullivan's November 21, 2011, order asked DOJ,
Senator Stevens' attorneys, and the attorneys for the individual
prosecutors to submit comments and state their positions on its
release. The proceedings were conducted under seal and the Civil
Division did not have access to any of the sealed submissions. While
DOJ's position was unsealed on January 9, 2012, the positions of the
individuals were not revealed until March 15, 2012, when the Special
Prosecutor's report was released and Judge Sullivan's February 8, 2012,
order was made public.
Pursuant to DOJ's previous determination that representation in
connection with the investigation by Special Counsel Henry F. Schuelke
III was in the Government's interest, and prior to the unsealing of the
prosecutors' submissions on March 15, 2012, DOJ paid certain invoices
for work that was conducted in connection with the prosecutors' court-
invited comments on Special Counsel Schuelke's report.
Invoices were submitted by attorneys for Brenda Morris on December
15, 2011, January 24, 2012, and February 16, 2012, and payment was
approved on January 6, 2012, February 10, 2012, and March 2, 2012,
respectively.
Invoices were submitted by attorneys for James Goeke, on December
23, 2011, and January 31, 2012, and payment was approved on January 6,
2012, and February 8, 2012, respectively.
Invoices were submitted by attorneys for Joseph Bottini on December
13, 2011, and January 18, 2012, and payment was approved on December
20, 2011, and February 3, 2012, respectively.
Invoices were submitted by attorneys for Edward Sullivan, on
December 15, 2011, January 12, 2012 and February 14, 2012, and payment
was approved on December 20, 2011, January 20, 2012 and February 24,
2012, respectively.
The foregoing payments total approximately $106,000. The time
billed was used to review and analyze the Special Prosecutor's 500-
plus-page investigative report, formulate the client's position, and
file a response in accordance with the court's order.
In light of the Government's decision not to object to the release
of the report, DOJ has not paid invoices that were received after the
prosecutors' positions were unsealed on March 15, 2012, and that relate
to efforts to prevent the release of the report. The Civil Division has
received, but have not yet processed, an invoice submitted on February
29, 2012, from attorneys for James Goeke (who opposed release of the
Special Counsel report). We also received, but have not yet processed,
three invoices submitted on February 24, 2012, from attorneys for
William Welch (who did not oppose release of the Special Counsel
report).
Question. On February 8, 2012, Judge Sullivan issued an order
requiring that the investigative report and certain related documents
in the proceedings be released to the public on March 15, 2012. One of
DOJ's prosecutors, an Edward Sullivan, filed a motion in the District
Court to stay that order and when his request was denied filed an
emergency appeal to the D.C. Circuit to stay the release of the report.
Does DOJ intend to pay the attorneys fees incurred by Mr. Sullivan in
requesting the stay or the attorneys fees and/or associated costs he
incurs in connection with his appeal? If so, what public interest
justifies the expenditure of these funds?
Answer. DOJ has received, but not yet processed an invoice related
to Mr. Sullivan's request for a stay and his emergency appeal. This
invoice will be reviewed and processed in accordance with the terms of
our standard retention agreement. As noted in a previous response, that
agreement, among other things, limits the services for which the
private attorney will be compensated to those directly associated with
the litigation. And our practice is to require counsel to seek
authorization from the Civil Division to take an appeal from an adverse
ruling stemming from the litigation in which we have authorized
reimbursement. In this case, we have no record that counsel for Mr.
Sullivan contacted the Civil Division for authorization to pursue an
appeal. In addition, the retention agreement provides that DOJ will not
reimburse services even if deemed reasonably necessary to the defense
of the employee if it appears those services are not in the interest of
the United States. In light of the Government's decision not to object
to the release of the report, the Civil Division has not paid invoices
that were received after the prosecutors' positions were unsealed on
March 15, 2012, and that relate to efforts to prevent the release of
the report.
Question. Does DOJ believe that the report of Judge Sullivan's
investigative counsel and related documents should be released on March
15 as Judge Sullivan has ordered? Does DOJ intend to oppose Mr.
Sullivan's appeal to the D.C. Circuit?
Answer. Per the January 6, 2012, submission by DOJ (unsealed on
January 9, 2012), the Department did not object to the March 15, 2012,
release of the Special Prosecutor's report. DOJ has not entered an
appearance in connection with Mr. Sullivan's emergency appeal, but was
listed by private counsel as an interested party on the docket.
Question. If DOJ supports Mr. Sullivan's efforts to prevent public
disclosure of the report and associated documents please state the
public interest served by the Department's position?
Answer. See previous response. DOJ did not support Mr. Sullivan's
efforts to prevent public disclosure of the report and its associated
documents. As I previously stated at the March 8, 2012 Senate
appropriations hearing, DOJ does not object to the release of the
Special Counsel's investigative report.
Question. In his November 21, 2011 order Judge Emmet Sullivan'
indicates that his investigative counsel has found that members of the
Stevens prosecution team engaged in ``significant, widespread and at
times intentional--misconduct.'' In light of this finding and other
findings in the investigative report does the Government have any
recourse to recover attorney's fees and costs expended in the defense
of its prosecutors' conduct? If so does the Government intend to
exercise its rights?
Answer. Pursuant to long-standing policy, a Federal employee who
has been provided representation either by DOJ or by private counsel is
afforded the benefit of the doubt and his or her plausible version of
the facts usually will be credited until a contrary factual
determination is made by the employee's agency, a DOJ prosecuting
component, or the appropriate professional responsibility office.
Representation continues to be provided until DOJ decides to seek an
indictment against the employee related to the conduct concerning which
representation was undertaken or the Department determines that
continued representation of the employee through private counsel is no
longer in the interest of the United States (28 C.F.R. 50.16 (c)(2)(i)
and (iv)).
These rules apply whether the representation is provided by DOJ
attorneys directly or through the Department's private counsel program.
Just as there is no provision to recover services already rendered by
DOJ attorneys directly pursuant to an earlier decision to provide such
representation, there is no provision under the guidelines for
recovering fees already expended.
PROSECUTORIAL MISCONDUCT
Question. ``USA Today has reported that its 2010 investigation
found that the department's internal investigations frequently take a
long time and that prosecutors faced little risk of losing their jobs
even when officials documented serious misconduct. Court records show
that most of the attorneys named in the Stevens case continue to be
assigned to their official duties.'' Is the USA Today writer's
observation that prosecutors face little risk of losing their jobs even
in the face of documented serious misconduct accurate? Please explain.
Answer. We are aware of the 2010 USA Today investigation. In
January 2011 we created the Professional Misconduct Review Unit (PMRU)
to handle disciplinary actions for career attorneys at DOJ that arise
from Office of Professional Responsibility (OPR) investigations. The
PMRU is now responsible for reviewing all OPR findings of professional
misconduct against Assistant U.S. Attorneys (AUSAs) and Criminal
Division Attorneys. The PMRU also is responsible for imposing
discipline in those matters in which it upholds OPR's misconduct
findings. We created the PMRU following a comprehensive review of
existing disciplinary procedures and processes with the aim of creating
a more efficient and uniform system to provide consistent, fair, and
timely resolution of these cases. We believe that the PMRU is
fulfilling its mandate.
DOJ is also forthcoming with information concerning OPR's
performance. OPR provides the Attorney General with an annual report of
its activities. These reports include statistical information on OPR's
activities, significant policy changes and developments, and summaries
of cases completed during the fiscal year. The reports are available to
the public at http://www.justice.gov/opr/reports.htm. When making a
finding of misconduct, OPR shares a draft report of its investigation
with the subjects of the investigation prior to completing a final
report. OPR's misconduct findings then are subject to review by the
PMRU (for AUSAs and Criminal Division prosecutors) and the Office of
the Deputy Attorney General prior to the implementation of discipline.
Provided that OPR's findings of misconduct are upheld, discipline may
range from a reprimand to removal from Federal service.
Question. Has the OPR been tasked to investigation allegations of
misconduct by members of the Stevens prosecution team? How long has
this investigation been going on and when might the public expect that
it be concluded? Once OPR's investigation is completed, who is
responsible for implementing its findings? Will the findings be made
public?
Answer. OPR conducted a 2\1/2\ year investigation of the Stevens
misconduct allegations. While OPR completed its 672-page investigative
report on August 15, 2011, the entire disciplinary process involves
various steps, and the process is not finished until all the necessary
steps have been completed. OPR's misconduct findings are subject to
review by the PMRU and the Office of the Deputy Attorney General prior
to the implementation of discipline. No formal action is taken against
a Department employee until the disciplinary process is final. Because
DOJ's disciplinary process is not yet complete, and because of
limitations on public disclosure contained in the Privacy Act, the
Department is unable to release the OPR Report at this time. Such a
release also would be contrary to the integrity of the Department's
ongoing disciplinary process. As the Attorney General has stated
previously, the Department plans to release publicly as much of the OPR
report and the Department's findings as possible, at the appropriate
time and consistent with law. This cannot happen until the disciplinary
process is complete.
Question. What potential consequences could members of the
prosecution team found culpable of misconduct in the Stevens matter
face?
Answer. While we cannot discuss at this time OPR's specific
findings in the Stevens case, when OPR's findings of misconduct are
upheld by the PMRU (for AUSAs and Criminal Division attorneys) and the
Office of the Deputy Attorney General, discipline may range from a
reprimand to removal from Federal service. However, any suspension in
excess of 14 days is appealable to the Merit Systems Protection Board.
All disciplinary determinations must fully consider the 14 factors
enunciated in Douglas v. Veterans Admin., 5 MSPR 313 (1981) that can
mitigate or aggravate the level of discipline taken against an
employee.
Question. In his November 21, 2011 order, Judge Sullivan observes
that his investigative counsel found misconduct on the part of members
of the Stevens prosecution team--misconduct that was characterized as
``at times willful and intentional.'' DOJ has had access to the report
of Judge Sullivan's investigators since last November. Yet USA Today
states that court records show that most of the attorneys named in the
Stevens case continue to be assigned to criminal cases. As of March 8,
2012, does DOJ know who was responsible for the willful and intentional
misconduct referred to in Judge Sullivan's November order and has it
nevertheless permitted that individual or those individuals to continue
to work on criminal cases? Has DOJ acted on the findings of Judge
Sullivan's investigative counsel? If not, please explain why not.
Answer. In November 2011, Judge Sullivan released the report of his
investigative counsel, Henry F. Schuelke, III, to certain DOJ
individuals under a protective order for the purpose of assessing
whether privacy and/or privilege issues affected the public release of
the report. The designated individuals reviewed the document and
responded accordingly that DOJ did not object to the release of the
report. The report recently was publicly released. We are aware that
the report is critical of Department attorneys, and we are addressing
the matter through our disciplinary process. OPR, which cooperated
fully with Mr. Schuelke's investigation, has conducted an independent
review and has produced a detailed report concerning the misconduct
allegations. This report is similar to Mr. Schuelke's in that it
addresses the same misconduct issues; however, the OPR report makes
specific findings and recommendations regarding each subject's conduct.
Once our internal disciplinary review procedures are complete, and the
subjects have been afforded an opportunity to comment on OPR's report
and any disciplinary proposals, we will impose appropriate discipline
in accordance with the 14 factors enunciated in Douglas v. Veterans
Admin., 5 MSPR 313 (1981) that can mitigate or aggravate the level of
discipline taken against an employee.
FEDERAL CRIMINAL DISCOVERY REFORM
Question. Could you briefly explain what the Brady rule states and
whether it is in your judgment it is necessary to the guarantee of a
fair trial?
Answer. The Brady rule requires the disclosure of exculpatory and
impeachment evidence when such evidence is material to guilt or
punishment. Brady, 373 U.S. 83, 87 (1963); Giglio v. United States, 405
U.S. 150, 154 (1972). The Supreme Court indeed held in Brady that
Government disclosure of material exculpatory and impeachment evidence
is part of the constitutional guarantee to a fair trial. 373 U.S. at
87; Giglio, 405 U.S. at 154. DOJ is committed to ensuring this
constitutional guarantee is met in every Federal case.
Question. Some would suggest that it is awkward for prosecutors to
provide the defense with information that might undermine their hard
work to gain a conviction. I believe that you would agree with me that
the responsibility of a prosecutor is not to secure a conviction but to
secure justice. Would you explain what DOJ is doing, particularly in
light of the lessons learned from the Stevens case to ensure that Brady
obligations are met?
Answer. DOJ takes its discovery obligations very seriously. For
that reason, after discovery violations were uncovered in the Stevens
case, the Attorney General moved to set aside the guilty verdict
against Senator Stevens and dismiss the indictment. Furthermore, the
Attorney General took decisive and unprecedented action to improve the
criminal discovery practices within the Department. The following
steps, among others, have already been taken:
--The Office of the Deputy Attorney General issued memoranda to all
Federal prosecutors providing overarching guidance on gathering
and reviewing discoverable information and making timely
disclosure to defendants; directing each U.S. Attorney's Office
to develop additional, more specific discovery policies; and
providing separate guidance on discovery of electronically
stored information (ESI).
--DOJ developed a ground-breaking protocol concerning the discovery
of electronically stored information in criminal cases in
collaboration with representatives from the Federal public
defenders and counsel appointed under the Criminal Justice Act.
--DOJ dramatically expanded its discovery training requirements for
all Federal prosecutors and institutionalized those
requirements through codification in the U.S. Attorneys'
Manual. All Federal prosecutors are now required to undertake
annual discovery training, so that roughly 6,000 Federal
prosecutors across the country receive the required training
annually on a wide variety of criminal discovery-related
topics.
--DOJ holds ``New Prosecutor Boot Camp'' courses for newly hired
Federal prosecutors, which includes training on Brady, Giglio,
and ESI, among other topics.
--DOJ has trained thousands of Federal law enforcement agents and
support staff in criminal disclosure policies and practices,
and produced criminal discovery training materials for our
victim witness coordinators.
DOJ distributed to all Federal prosecutors nationwide a Discovery
Blue Book that comprehensively covers the law, policy and practice of
prosecutors' disclosure obligations, and made it available on the
desktop of every Federal prosecutor and paralegal.
Question. In spite of DOJ's efforts to educate its attorneys about
Brady's requirements, many commentators have noted that Brady practices
vary from office to office and even within offices. It has been
suggested that the Brady obligation should be codified in the Federal
Rules of Criminal Procedure. In fact, Judge Sullivan wrote to U.S.
Court of Appeals Judge Richard Tallman, Chair of the Advisory Committee
on the Federal Rules of Civil Procedure suggesting that this approach
be taken. It has been reported that DOJ opposed these efforts in 2006
and again in 2009 and the Advisory Committee chose not to pursue the
issue in light of this opposition. Is this accurate and can you explain
why this is the case?
Answer. In 2006, DOJ opposed any effort to amend the Federal Rules
of Criminal Procedure to codify or expand government disclosure
obligations under Brady. In 2009, this administration was prepared to
codify the Brady rule within the Federal Rules of Criminal Procedure.
However, the administration opposed the expansion of criminal discovery
under consideration, because we believed the expansion being considered
by the Advisory Committee would have damaged the carefully constructed
balance created by the courts for criminal discovery and would have
ignored the need to protect the rights of victims, witnesses, law
enforcement officers, and national security in criminal discovery
practice.
Question. In light of DOJ's lack of support for improving Brady
practices through the Federal Rules, the National Association of
Criminal Defense Lawyers has proposed a model Brady reform bill. I am
preparing this bill for introduction in the Senate. Is it reasonable to
expect that DOJ would oppose this proposal?
Answer. We will oppose legislation that deviates from Supreme Court
law, requires the disclosure of nonmaterial, legally irrelevant, and
inadmissible information, or that does not properly account for and
respect the interests of victims, witnesses, law enforcement officers,
and national security.
Question. Would DOJ be supportive of the Judiciary Committees
conducting a hearing on the Brady reform bill I intend to introduce and
Brady practices overall in the near future?
Answer. We think any hearing on criminal discovery legislation
should include witnesses who can speak to all the interests of justice,
including the interests of defendants, victims, witnesses, law
enforcement, and national security. A hearing on discovery legislation
should also explore the practical realities of the legislation. We
would have no objection to such a hearing.
BILL ALLEN MATTER
Question. Is there anything you would like to say, in addition to
what you told the subcommittee last year, which would explain why DOJ
declined the recommendations of career prosecutors and professional law
enforcement in this matter?
Answer. The protection of children is of the highest priority for
DOJ and we aggressively prosecute those who harm our Nation's children.
As a result of DOJ's decision to expand Project Safe Childhood (PSC) in
May 2011, the Department now coordinates closely with law enforcement
at the Federal, tribal, State, and local levels to investigate and
prosecute all Federal crimes involving the sexual exploitation of a
minor, including those committed in Indian country and those that
involve commercial sexual activity, whether or not they involve the
Internet.
Moreover, DOJ's track record of vigorously prosecuting those who
sexually abuse minors speaks for itself:
--In fiscal year 2011, DOJ obtained approximately 2,713 indictments,
against 2,929 defendants, for offenses involving the sexual
exploitation of a minor. This represents a 15-percent increase
in the number of indictments more than fiscal year 2007 (in
which 2,364 indictments were filed against 2,470 defendants).
Since the beginning of fiscal year 2007, more than 11,447
defendants have been convicted in Federal courts of an offense
related to the sexual exploitation of a minor. These crimes
have ranged from production of obscene visual depictions of
minors engaged in sexually explicit conduct; to receipt,
distribution, possession, and/or production of child
pornography; to the direct physical, sexual abuse of a minor.
--Since fiscal year 2001, the caseload of the attorneys in the Child
Exploitation and Obscenity Section of the Criminal Division has
increased every year, and it has increased cumulatively by more
than 1,100 percent.
As the Attorney General has previously testified regarding the
investigation of Bill Allen, any decision that we make to prosecute or
not prosecute a case is governed by the Principles of Federal
Prosecution, and we look at a host of relevant factors including the
strength of evidence; the state of the law; the age of the case; the
reliability of witnesses and other evidence; whether we can adequately
address anticipated pretrial motions and discovery demands; and whether
we believe any conviction can be defended on appeal, among many other
factors. Very simply, we make all decisions to prosecute or not
prosecute--including that relating to Bill Allen--based solely on the
law and the facts and nothing else.
Question. At my request, OPR has undertaken a preliminary inquiry
into this issue. Can you tell me the status of that inquiry and explain
what steps are being taken to ensure that OPR arrives at an independent
and objective conclusion on this politically sensitive issue?
Answer. OPR's preliminary inquiry is ongoing. While OPR reports to
the Attorney General, it operates independently, and the Attorney
General's office exerts no influence over OPR's investigations or the
content of its reports.
Question. The Alaska Attorney General's Office and the Anchorage
Police Department investigative team have asked to meet with OPR to
discuss their case. I have asked OPR to send a team to Alaska to
understand how the case against Mr. Allen was prepared. Is OPR team
authorized to travel to Alaska to meet with those who did the hard work
to build the sexual abuse case against Mr. Allen?
Answer. OPR has the authority to take whatever steps it deems
necessary in order to complete an inquiry or investigation.
Senator Mikulski. Before I recess the subcommittee, I want
to conclude the hearing the way I began. As I listened to the
questions, the answers, we've looked at the budget in the short
time that we have to review, I want to end the hearing the way
I began, which is to thank the men and women who work at the
Justice Department.
I've been on this subcommittee a long time. It's been a
great blessing and a great honor. And when I think about it,
the scope and complexity of what our citizens and our country
face, and what our Justice Department faces, it's an amazing
job, from community safety, to national safety--just in the
last decade, the expansion in the national security portfolio,
and the transformation of agencies. FBI is not, you know, J.
Edgar Hoover's FBI any more.
So for everybody who works, everybody's out on the street,
everybody tracking sexual predators, everybody who's doing
their job, the prison guards, and all the wonderful support
staff, the paralegals, the secretarial staff, the
administrative staff, et cetera, we just want to say thank you.
I think our country's safer, because of your work. And we
have to look out for our civil service, because we need an
independent judiciary. We need a Justice Department that
functions with absolute integrity. But we, who fund the
appropriations, need to know that if you're going to have a
crackerjack civil service, we have to also support that
crackerjack civil service. So, thank you, and God bless you,
and God bless America.
SUBCOMMITTEE RECESS
The subcommittee stands in recess until March 15, next
Thursday, at 10 a.m. We will take the testimony of the Director
of the FBI, in both an open hearing and then ultimately a
classified hearing.
The subcommittee is in recess.
Attorney General Holder. Thank you, Madam Chair.
[Whereupon, at 11:37 a.m., Thursday, March 8, the
subcommittee was recessed, to reconvene at 10 a.m., Thursday,
March 15.]