[Senate Hearing 112-94]
[From the U.S. Government Publishing Office]
S. Hrg. 112-94
THE PRESIDENT'S REQUEST TO EXTEND THE SERVICE OF DIRECTOR ROBERT
MUELLER OF THE FBI UNIT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JUNE 8, 2011
__________
Serial No. J-112-26
__________
Printed for the use of the Committee on the Judiciary
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68-239 PDF WASHINGTON : 2011
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 82
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 3
WITNESSES
Comey, James B., former Deputy Attorney General, U.S. Department
of Justice, Washington, DC..................................... 14
Harrison, John C., Professor, James Madison Distinguished
Professor of Law, University of Virginia School of Law,
Charlottesville, Virginia...................................... 19
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, U.S. Department of Justice, Washington, DC...... 4
Van Alstyne, William W., Professor, Leep Professor of Law,
William & Mary Law School, Williamsburg, Virginia.............. 16
QUESTIONS AND ANSWERS
Responses of John C. Harrison to questions submitted by Senator
Coburn......................................................... 31
Responses of Robert S. Mueller to questions submitted by Senators
Franken, Grassley, Coburn...................................... 35
SUBMISSIONS FOR THE RECORD
Comey, James B., former Deputy Attorney General, U.S. Department
of Justice, Washington, DC, statement.......................... 60
Congressional Research Service, Vivian Chu, legislative Attorney,
June 1, 2011, memo............................................. 62
Elliff, John T., former Intelligence, U.S. Department of Justice,
Washington, DC, statement...................................... 69
Harrison, John C., Professor, James Madison Distinguished
Professor of Law, University of Virginia School of Law,
Charlottesville, Virginia, statement........................... 74
International Association of Chiefs of Police (IACP), Mark A.
Marshall, President, Alexandria, Virginia, June 2, 2011, letter 81
Mueller, Robert S., III, Director, Federal Bureau of
Investigation, U.S. Department of Justice, Washington, DC,
statement...................................................... 84
National Association of Police Organizations, Inc. (NAPO), Wiliam
J. Johnson, Executive Director, Alexandria, Virginia, June 7,
2011, letter................................................... 88
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, June 3, 2011, letter................ 89
Office of Legal Counsel Opinion:
Westlaw, June 12, 1951, opinion.............................. 90
Lexis Nexis, November 2, 1987, opinion....................... 93
Westlaw, July 15, 1994, opinion.............................. 95
Van Alstyne, William W., Professor, Leep Professor of Law,
William & Mary Law School, Williamsburg, Virginia, statement... 100
THE PRESIDENT'S REQUEST TO EXTEND THE SERVICE OF DIRECTOR ROBERT
MUELLER OF THE FBI UNIT
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WEDNESDAY, JUNE 8, 2011
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., Room
SD-226, Dirksen Senate Office Building, Senator Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Durbin, Klobuchar, Franken, Blumenthal,
Grassley, Sessions, Lee, and Coburn.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF MINNESOTA
Chairman Leahy. Good morning, everybody. Good morning,
Director Mueller. At our last hearing here, I prematurely
complimented you. I said, well, this is the last time you have
to come to a hearing and put up with the Senate Judiciary
Committee. But welcome back.
Over a month ago, I met with the President on this topic.
He has requested the Congress authorize a limited extension of
Robert Mueller's service as Director of the FBI. The public
probably knows that we have a law that normally limits the FBI
directorship to one 10-year term. This law was enacted to span
Presidential terms, and will give the position the kind of
independence that somebody in this position in law enforcement
needs.
President Obama spoke of the ongoing threats facing the
United States, as well as the leadership transitions at other
agencies, like the Defense Department and Central Intelligence
Agency. He asked us to join together in extending Director
Mueller's leadership for the sake of our Nation's safety and
security.
I was convinced of the call that the President made.
Following the death of Osama bin Laden, I urged all Americans
to support our President and his efforts to protect our Nation
and to keep Americans safe. With the tenth anniversary of
September 11th, 2001 attacks approaching, and in the face of
continuing threats, threats both within and without our
borders, we must all join together for the good of the country,
and all Americans.
I'm pleased that in a law enforcement matter like this,
we've kept out of any kind of partisanship. Republicans and
Democrats have expressed support for the President's request to
maintain vital stability and continuity in the national
security leadership team.
Senator Grassley, this Committee's ranking Republican,
joined me, along with Senators Feinstein, Chambliss, chair and
vice chair of the Select Committee on Intelligence, introducing
a bill to permit the incumbent FBI Director to serve for up to
two additional years. Chairman Lamar Smith of the House
Judiciary Committee has spoken to me. He supports the
President's request. And I was encouraged to see reports that
Senator McConnell, the Senate Republican Leader, supports the
President's request.
A bipartisan bill on the Committee's agenda provides for a
limited exception to the statutory term of the service of the
FBI Director, and it will be on our agenda tomorrow morning. It
will allow Director Mueller to continue to serve for up to two
additional years, until September 2013, at the request of the
President. This extension is intended to be a one-time
exception and not a permanent extension or modification of the
statutory design.
The President could have nominated a new Director of the
FBI, someone who could serve for 10 years and would be there
well after President Obama's own term of office expired.
Instead, the President is asking Congress to extend the term of
service of a proven leader for a brief period, given the
extenuating circumstances and threats facing our country.
Bob Mueller served this Nation with valor and integrity as
a Marine in Vietnam, as a Federal prosecutor at all levels. He
again answered the call of service when President Bush
nominated him in July of 2001 to serve as Director of the FBI.
I was Chairman of the Committee at that time. I expedited
that nomination through the Senate. He was confirmed in just 2
weeks, from the nomination to the confirmation. Since the days
just before September 11, 2001, Bob Mueller has served
tirelessly and selflessly as the Director of the FBI. I felt
that President Bush, even though of a different party than I,
had made a very good choice and I saw no need, once we had the
hearing, to hold up that nomination. We moved very, very
quickly.
Director Mueller has handled the Bureau's significant
transformation since September 11, 2001 with professionalism
and focus. He's worked with Congress and this Committee,
testifying as recently as March 2011 in one of our periodic
oversight hearings. It was very evident at that hearing, if I
could just be personal for a moment, that Bob Mueller was ready
to lay down the burdens of this office and spend time with his
family.
But, as he has done throughout his career, Bob is now
answering duty's call. I should tell you, Director, what the
President said to me when I asked him if he had talked to you
about this idea. He said, ``Not yet.'' But Bob Mueller is a
Marine and he answers the call to duty. This is the President's
request as a patriotic American. Bob Mueller is willing to
continue to serve a grateful Nation.
Senator Grassley asked that Director Mueller appear at
today's hearing. Director Mueller has characteristically
cooperated, and I thank him.
Today we also welcome back to the Committee Jim Comey, who
served as a U.S. Attorney for the Southern District of New
York, and for 2 years as Deputy Attorney General during the
George W. Bush administration, when he worked closely with
Director Mueller. I told Mr. Comey earlier, a few minutes ago,
it was nice to have him back in this room where he's spent a
lot of time.
And the Committee will also hear testimony about the
constitutionality of passing an exception to the statute, which
authorizes a 10-year term. I thank Senator Grassley for his
cooperation and I hope we now have the hearing and we'll be
able to report the bill in the form that Senator Grassley
suggested without unnecessary delays.
I yield to Senator Grassley, then we'll go to Director
Mueller.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Well, thank you very much for holding
this hearing. And welcome back, Director Mueller.
This hearing is the first hearing in 37 years to
specifically address the 10-year term of Director of FBI. In
1968, Congress passed a law requiring an FBI Director to be
appointed with advice and consent of the Senate. Despite the
passage of this law, Director Hoover served until his death in
1972.
Following Hoover's death, a number of high-profile scandals
with the FBI came to light. This Committee held a hearing in
1974 to address legislation limiting the term of the FBI
Director, to provide for additional Congressional oversight of
the FBI Director, and most importantly, to insulate the office
from political control of the President.
In 1976, Congress acted by limiting the Director of FBI to
the current 10-year non-renewable term. Congress did so to
prevent the accumulation of excess power by the Director, as
well as to provide some political independence for the FBI. The
statute expressly prohibits reappointment of a Director.
Despite knowing about Director Mueller's impending term
limit and initiating a search for a successor led by the
Attorney General and Vice President Biden, President Obama
chose not to send the Senate a nomination for Director of FBI.
Instead, the President has decided that, notwithstanding those
statutory provisions, Director Mueller should continue to serve
in this position for another 2 years.
Although I do not think that our position on legislation to
permit this result should depend on personalities, Director
Mueller has performed admirably as FBI Director. With the
recent death of bin Laden and the approaching 10-year
anniversary of the September 11 attacks, we do in fact have
unique circumstances warranting a one-time limited extension of
the term of this particular Director.
Against this backdrop, and somewhat with a heavy heart, I
join in co-sponsoring S. 1103, a bill that would extend the
term of the current FBI Director for 2 years. But 2 years is as
far as I will go. Director Mueller has done a fine job, but he
is not indispensable and the likely continuation of the war on
terror for many years is not so singularly a circumstance to
justify extending the FBI Director's term. In 2 years, no
matter what, someone else will be nominated and confirmed for
this job.
Although I support this bill, I have resisted efforts to
simply pass it with minimal deliberation. Given the substantial
precedential value of any extension of the FBI Director's
terms, we have a duty to ensure that the regular order is
followed for the consideration of this bill.
First, I believe that the 10-year limit has achieved its
intended purpose. Until Director Mueller, no director subject
to the limit has served the full 10 years. The limit has been
successful in reducing the power of the Director and in
preserving the vital civil liberties of all Americans.
Second, the 10-year limit has provided important political
independence for the FBI Director. Only one director has been
fired in this period, and this did not occur for political
reasons.
Third, the prohibition on reappointment has also served the
Director's independence by eliminating any potential that the
Director will attempt to curry favor with a President to be
reappointed. We should proceed cautiously in setting a
precedent that a 10-year term can be extended. If we are going
to extend Director Mueller's term, we should establish a
precedent that doing so will be difficult and that unique
circumstances necessitating it exists, as those are
circumstances at this particular time.
We didn't just introduce a bill and hold it at the desk.
Instead, we introduced a bill that would amend existing law. We
are holding a hearing. As in 1974, we have called the Director
of the FBI to testify. We are pointing out the special
circumstances behind the bill and recognizing the
constitutional issues that may arise in extending the
Director's term, and without actually voting to advise and
consent to his serving an additional term we have called
experts to address constitutional. We will hold a Committee
mark-up, and if successful, we'll seek floor time to pass the
bill. That is how we should proceed. Changing the 10-year term
limit is a one-time situation that will not be routinely
repeated. Acting responsibly requires no less.
For all these reasons, Mr. Chairman, I especially thank you
for holding this hearing. I thank Director Mueller for
testifying, and all the other witnesses that have come. Thank
you.
Chairman Leahy. Thank you very much, Senator Grassley.
Director Mueller, the floor is yours again.
STATEMENT OF HON. ROBERT S. MUELLER III, DIRECTOR, FEDERAL
BUREAU OF INVESTIGATION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Director Mueller. Well, thank you Chairman Leahy, Ranking
Member Grassley, and the other members of the Committee who are
here today. I thank you for your introductions and for the
opportunity to appear before the Committee today.
As you pointed out, my term as FBI Director is due to
expire later this summer. However, in early May the President
asked if I would be willing to serve an additional 2 years.
Upon some reflection, discussion with my family, I told him
that I would be willing to do so.
Now the President has asked that Congress pass the
legislation necessary to extend that term and, if this
Committee and Congress see fit to pass the required
legislation, I look forward to continuing to work with the men
and women of the FBI.
As the Committee is well aware, the FBI faces a complex
threat environment. Over the past year we have seen an array of
national security and criminal threats from terrorism,
espionage, cyber attacks, and traditional crimes. These threats
have ranged from attempts by Al Qaeda and its affiliates to
place bombs on airplanes, to lone actors seeking to detonate
IEDs in public squares and on subways.
A month ago, as the Chairman pointed out, the successful
operation in Pakistan led to Osama bin Laden's death, and yet
created new urgency concerning this threat picture. While we
continue to exploit the material seized from bin Laden's
compound, we know that Al Qaeda remains committed to attacking
the United States.
We also continue to face a threat from adversaries like
Anwar al-Awlaki and Yemen, who are engaged in efforts to
radicalize persons in the United States to commit acts of
terrorism. And in the age of the Internet, these radicalizing
figures no longer need to meet or speak personally with those
they seek to influence. Instead, they conduct their media
campaigns from remote regions of the world, intent on fostering
terrorism by lone actors here in the United States.
Alongside these ever-evolving terrorism plots, the
espionage threat persists as well. Last summer, there were the
arrests of 10 Russian spies, known as ``illegals,'' who
secretly blended into American society in order to
clandestinely gather information for Russia. And we continue to
make significant arrests for economic espionage, as foreign
interests seek to steal controlled technologies.
The cyber intrusions at Google last year, as well as other
recent intrusions, highlight the ever-present danger from an
Internet attack. Along with countless other cyber incidents,
these attacks threaten to undermine the integrity of the
Internet and to victimize the businesses and people who rely on
it.
And in our criminal investigations, the FBI continues to
uncover massive corporate and mortgage frauds that weaken the
financial system and victimize investors, homeowners, and
ultimately taxpayers. We are also rooting out health care fraud
based on false billings and fake treatments that endanger
patients and cheat government health care programs.
The extreme violence across our Southwest border to the
South also remains a threat to the United States, as we saw
with the murders last year of American consulate workers in
Juarez, Mexico, and the shooting early this year of two Federal
agents in Mexico. Likewise here in the United States, countless
violent gangs continue to take innocent lives and endanger our
communities, and throughout, public corruption undermines the
public trust.
In this threat environment, the FBI's mission to protect
the American people has never been broader and the demands on
the FBI have never been greater. To carry out this mission, the
FBI has taken significant steps since September 11 to transform
itself into a threat-based intelligence-led agency.
This new approach has driven changes in the Bureau's
structure and management, our recruitment, hiring, and
training, and our information technology systems. These changes
have transformed the Bureau into a national security
organization that fuses the traditional law enforcement and
intelligence missions. And as this transformation continues,
the FBI remains committed to upholding the Constitution, the
rule of law, and protecting civil liberties.
Now, of course the FBI's transformation is not complete, as
we must continually evolve to meet the ever-changing threats of
today and tomorrow. And as I discuss the transformation of the
Bureau, I must say I am uncomfortable about much of the
attention that has been placed on me or put on me by reason of
this being the end of my term. The credit for these changes
goes to the men and women of the FBI who have responded
remarkably to the challenges that I have laid out, both in the
past and present.
Let me conclude by thanking the Committee on behalf of all
FBI employees for your continued support of the FBI and its
mission. The Committee has been an essential part of our
transformation and its legislation has contributed greatly to
our ability to meet today's diverse threats.
Thank you. I look forward to answering any questions you
may have.
Chairman Leahy. Thank you. Your full statement will be
placed in the record.
[The prepared statement of Director Mueller appears as a
submission for the record.]
Chairman Leahy. My questions will be brief. You and I talk
often, as you do with other members, and you have always been
available. I remember when you testified at an oversight
hearing on March 30 of this year. You talked about the
terrorism threats facing our Nation. Your remarks, well-spoken
and prepared, expanded on that topic today.
Tell us about the unique role the FBI plays in preventing
and prosecuting terrorist activity as compared to our other
intelligence and law enforcement agencies, all of which have a
role. What is unique about the FBI?
Director Mueller. Well, uniquely, the FBI has domestic
responsibility, acting under the Constitution, the applicable
statutes, and the Attorney General guidelines, to first of all
identify those individuals who might be undertaking terrorist
threats within the United States, along with our State and
local law enforcement, the other Federal agencies.
We also have the responsibility for working with the
intelligence agencies to identify threats from overseas that
may impact the domestic United States, and to assure that we
gather and analyze and disseminate that intelligence and
efforts to thwart those attacks.
If indeed an attack takes place, obviously our
responsibility then is to identify those persons responsible
for the attack, gather the evidence against them, and pursue
the case through indictment, conviction, and incarceration.
Uniquely, we have the responsibility--the broad
responsibility--domestically for undertaking this particular
aspect of the response against international terrorism, as well
as against domestic terrorism, which often may well be
overlooked.
Chairman Leahy. And one of the things I talked with the
President and others about, is the desire to have continuity in
the national security team. There are a number of changes going
on. Leon Panetta is leaving as CIA Director to become Secretary
of Defense; General Petraeus is coming in to the CIA; the head
of the Joint Chiefs term runs out in the next couple of months
and there will be a new head of the Joint Chiefs; we have
nominations pending for Deputy Attorney General, and also a
nomination pending for the Assistant Attorney General in charge
of the National Security Division.
Now, in that team, I assume the FBI Director or your
designee is a major part of the team. Is that correct?
Director Mueller. I believe that to be the case, yes. Also,
particularly Sean Joyce, the head of our National Security
Branch, as well as myself, are both part of the team.
Chairman Leahy. This is not a 9:00 to 5:00 job, I would
assume. I suspect you probably get a few calls in the middle of
the night.
Director Mueller. We do. It's somewhat continuous. But
that's part of the job.
Chairman Leahy. You served the FBI for nearly 10 years.
We've talked about a number of the things you've tried to
reform in the Department and other things you want to upgrade.
I know just a few weeks ago you were contemplating leaving as
FBI Director. Since then, assuming this legislation passes,
which I assume it will, what would you want to build on? Given
two more years, what would be a top goal in your mind?
Director Mueller. The areas of concentration--let me put it
that way--for the next 2 years should continue to be terrorism,
particularly in the wake of the death of bin Laden, the impact
that will have on his adherents, his followers. Quite
obviously, what is happening in Pakistan, what is happening in
Yemen, what is happening in Somalia, that bears on the threats
to the United States, along with domestic terrorism. That will
continue to be a focus.
I will tell you that we will increasingly put emphasis on
addressing cyber threats in all of the variations. Part of that
is making certain that the personnel in the Bureau have the
equipment, the capability, the skill, the experience to address
those threats, and not just the cadre of individuals that we
have to date who can address any of those threats, not just to
the United States but around the world, but all those in the
Bureau have a sufficient understanding of the cyber background
to be able to work in a variety of programs and understand how
those programs fit into the cyber arena.
We have done, I believe, a very good job in terms of
advancing our information technology. We have to finish off the
Sentinel project that has been ongoing for a number of years
and has been the subject of discussion with this Committee, and
I anticipate that we'll be coming to conclusion on that project
in the fall.
In the meantime, we have kept up-to-date in terms of giving
our agents, our analysts, and our professional staff the
information technology tools they need to do the job, but we
have to continue to be on the forefront, on the cutting edge of
that technology.
In terms of legislation, one area which we have raised with
this Committee, and that is what we call ``going dark'', where
we have a court order, whether from a national security court,
the FISA court, or a District court, based on probable cause to
believe that somebody is using a communications device to
further their illegal goals. Often now, given the new
technology, the persons, the recipients, the carriers of those
communications do not have the solution, the capability, to be
responsive to those court orders. We have to address that
increasing gap, given the new technologies, through
legislation. So, I would anticipate that that would be an issue
we'd want to address in the next couple of years.
Chairman Leahy. Well, thank you. I'm going to put in the
record letters of support from a number of people at the
National Fraternal Order of Police, the National Association of
Police Organizations, and so forth. But one I'm very pleased to
put in is a statement from John Elliff, who is sitting behind
you a couple rows back, a former detailee to my staff.
But the reason I especially wanted to note Mr. Effiff's
statement is that he testified at the 1974 hearing on the bill
creating the 10-year term for Director. I wasn't a Senator. I
was running for the Senate. I was a prosecutor at the time. But
Mr. Elliff helped me a great deal once he came here as a
detailee, with an institutional memory that is extraordinary.
[The letters appear as a submission for the record.]
Chairman Leahy. I know that the Deputy Majority Leader has
to leave for something else. Do you want to just make one
remark? And I thank Senator Grassley for that.
Senator Durbin. It has been my honor to work with Director
Mueller for the last 10 years. You are an honest, honorable man
and you've dramatically transformed our Nation's premier law
enforcement agency. I'm glad that the President recognizes that
talent and America is fortunate that you are willing to
continue to serve. I fully support this extension.
Thank you, Mr. Chairman.
Director Mueller. Thank you, Senator.
Chairman Leahy. Senator Grassley.
Senator Grassley. The President has stated that he believes
that continuity and stability at the FBI is critical at this
time. He emphasized ``at this time''. As I said, I'm not in
support of extending your term just because the President has
many leadership transitions occurring at the same time. There
are things a President can control, like when to change
leadership at DoD and CIA, and things the President cannot
control, like the 10-year anniversary of 9/11 or the recent
death of bin Laden and the revolutions in the Middle East.
So my first question, Director Mueller, would you agree
that the threat environment alone is sufficient reason to
extend your term for 2 years?
Director Mueller. I leave that determination to others. As
you point out, no one is indispensable. I do agree that during
a transition there is time spent on that transition process. We
certainly have been spending time on it. But to the extent that
either I or somebody else should be part of that team, I leave
that to someone else. The President asks that I stay. As I
said, based on--after reflections and talking to my family, I
decided to do that.
I will tell you that, as I said, nobody is indispensable.
Some of the calculus was, should I really stay? Often the
person who is in that position is the worst person to make that
decision. So I did go out and try to talk to other persons,
both in the Bureau and outside the Bureau, to get a more
objective view as to whether or not it would be the best thing
for the agency for me to stay for this time, even though the
President asked that that be done.
Senator Grassley. Well, the legislation on your position is
meant to, and for the last 30 or 40 years, give level of
independence to the Director, but at the same time, recognize
the President could fire a Director for any reason. I'm not
sure that that's fully understood, so I ask these questions of
you: as Director of the FBI with a fixed term, under what
circumstances can the President remove you?
Director Mueller. I think I serve at the pleasure of the
President.
Senator Grassley. OK. Would you support changing the law so
that the FBI Director could be removed only for cause, so you'd
have greater independence?
Director Mueller. I believe and support the law, including
the 10-year term limit.
Senator Grassley. OK. Would you support legislation
requiring the President to provide notice to Congress 30 days
prior to removal of an FBI Director, similar to the way the law
requires removal of an Inspector General?
Director Mueller. I really have not thought about that,
Senator.
Senator Grassley. OK. The FBI's Intelligence Analyst
Association supports the President's request to extend your
term. The FBI Agents Association appears to me to be a little
less enthusiastic. If you're extended, how would you intend to
bridge a gap--you might not agree that there's a gap, but I
guess that's the basis of my question--and manage the agents
who believe you are creating a double standard by extending
your tenure, while you limit theirs to your up-and-out policy?
Director Mueller. Well, I do believe that there is--I
understand the concern on certain agents' part. I do think
there's--it's a different issue. The issue of having a maximum
time for service as a supervisor in the Bureau was a part of a
plan to develop leadership. After looking at how you develop
leaders in the military, how you develop leaders in corporate
America, and how you give incentives and push persons, the best
leaders in the organization, to the top.
We had had some problems with that in the past and, after
much discussion, the decision was made to enact this. It was
one of the hardest decisions I probably had to make as a
Director during this period of time. But it has, in my mind,
had the beneficial effect, although we did lose some very, very
good supervisors who decided either to step down or retire.
I have, over the years, explained the thinking behind the
decision. I have, over the years, sought out opportunities to
discuss the import and impact of that decision, and I will
continue to do so.
Senator Grassley. Thank you.
Chairman Leahy. Thank you very much.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Director Mueller, I want to start off today by associating
myself with Senator Durbin's remarks and by commending you for
your tremendous service to this nation. It is in large part
because of your tenacity and leadership that we haven't seen
another major terrorist attack on our soil since 9/11. That is
no small achievement, and I want you to know that I am grateful
for all you've done to reshape the FBI's counterterrorism
strategy.
But I don't think it should come as a surprise that your
Department has been heavily criticized over the last 10 years
for significant misuse of the Department's surveillance powers
and for other major civil liberties violations. I think you've
done an extraordinary job, but I also believe that term limits
exist for a good reason. Term limits are like sunshine laws;
they force us to bring in new leaders who take a fresh look at
things. That is almost always a good thing.
I'd like you, if you could, to take a minute to talk about
some of the most controversial aspects of your tenure or of the
FBI during your tenure. How do you think you've addressed the
problems that arose with the FBI's misuse of surveillance
authorities granted under the PATRIOT Act and the Foreign
Intelligence Surveillance Act? Specifically, I would like you
to address the concerns raised by the Inspector General about
the Department's abuse of national security letters.
Director Mueller. Let me separate national security letters
out from the general discussion of surveillance. I do not
believe that we have abused our powers in any way, with maybe
one or two isolated examples and the additional authorities
that have been given us under the PATRIOT Act over the years,
and I don't believe the IG has found such substantial misuse.
With regard to national security letters, we did not do
what was necessary to assure that we were in compliance with
the applicable statutes. It was brought to our attention by the
Inspector General. As I know you were aware, national security
letters enable us to get not content, but information relating
to the existence of a communication. There was a statutory
framework for that and we should have set up a much more
thorough compliance program to assure that we were dotting the
i's and crossing the t's, and we did not.
As soon as we learned of the IG's scrutiny on this and the
problems that were pointed out, we moved to fix them. The first
thing we did, is make certain we had new software capability
and data base capability that assured that all of our agents,
in seeking national security letters, will have given all the
information that is required under the statute. We put out
comprehensive guidance to the field and additional training. We
assured that national security letters are signed off on by the
chief lawyer in each of our Divisions.
But perhaps as important if not more important, is we set
up a compliance program to address not just security letters,
but other areas such as national security letters where we
could fall into the same pattern or habits. So the national
security letters, I believe we addressed appropriately at the
time and it was used as a catalyst to set up a compliance
program that addresses the concern in other areas comparable to
what we had found with national security letters.
Senator Franken. In addition to those concerns, a number of
civil liberties groups have raised serious questions about the
FBI's misuse of the material witness statute, mishandling of
the Terrorist Watch List, infiltration of mosques, and
surveillance of peaceful groups that have no connection to
criminal activity. If your term were extended, do you believe
that you would be in a position to give these concerns a fresh
airing without being mired in the past?
Director Mueller. I am not certain it needs a fresh look
because I am very concerned whenever those allegations arise. I
will tell you that I believe, in terms of surveillances of
religious institutions, we have done it appropriately and with
appropriate predication under the guidelines and the applicable
statutes, even though there are allegations out there to the
contrary. I also believe that when we have undertaken
investigations of individuals expressing their First Amendment
rights, we have done so according to our internal guidelines
and the applicable statutes.
So whenever these allegations come forward, I take them
exceptionally seriously. I make certain that our Inspection
Division or others look into it to determine whether or not we
need to change anything. I will tell you that addressing
terrorism and the responsibility to protect against attacks
brings us to the point where we are balancing, day in and day
out, civil liberties and the necessity for disrupting a plot
that could kill Americans. It's something that we keep in mind
day in and day out.
The last thing I would say is, as our agents go through our
training classes, the importance of adhering to the
Constitution, civil liberties, is drilled into them day in and
day out. Every agent--and this was established by Louis Freeh,
my predecessor--goes through the Holocaust Museum before they
become a new agent to understand what can happen to a police
power that becomes unreigned and too powerful. So, we take that
and those allegations very seriously.
Senator Franken. Thank you.
Mr. Chairman, my time is up. I would just like to say that
there are exceptions that prove rules, and these are, I think,
a unique set of circumstances with the new CIA Director, the
new Defense Secretary, and Admiral Mullen retiring. I should
note that President Obama could nominate a new Director who
would be there for 10 years, and by extending you for 2 years,
he may not be the President. I think that bears mention. Thank
you.
Chairman Leahy. Thank you very much.
Dr. Coburn.
Senator Coburn. Director Mueller, first of all, let me
thank you for your service.
Chairman Leahy. Is your microphone on?
Senator Coburn. Yes, it is.
Chairman Leahy. OK.
Senator Coburn. I think it is. The light's on, so we'll try
that.
We're going to hear testimony in the next panel about some
questionable constitutionality of what we're trying to do in
meeting the President's request. I have some concerns about
that because, if in fact there can be a legal challenge to what
we're doing based on previous statutes--and let me give you an
example.
With the 2005 extension to the PATRIOT Act, we had an
additional requirement on 215 orders for certain sensitive
business records, such as library patron lists, book sales,
firearm sales records, and tax return records that are relevant
to terrorism investigations. They can only be obtained by the
approval of you, your Deputy Director, or the Executive
Assistant Director for National Security.
Could you envision a questionable constitutional challenge
to a Section 215 order that was approved by yourself during
your 2-year extension, and could that be related to the
possible unconstitutionality of this extension legislation?
Director Mueller. I would say at the outset that I'm not a
constitutional scholar.
Senator Coburn. Nor am I.
Director Mueller. And I have heard nothing in my
discussions, with the Department or otherwise, of a
constitutional issue that would make that a problem down the
road. If that were a substantial problem quite obviously then I
would be concerned, but I have not heard that to be the case.
Senator Coburn. Well, my hope would be that after your
testimony, you'd have somebody here to listen to the second
panel.
Director Mueller. And I do. Absolutely.
Senator Coburn. Because I have some concerns. I have no
objection to you continuing in this position at all, but I do
have concerns that we could get mired in court battles over a
questionable constitutional challenge on this that could
actually make you ineffective in carrying out your job.
With that, Mr. Chairman, I have no other questions.
Chairman Leahy. Thank you very much.
Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Welcome, Director. It's good to see you. Thank you for all your
good work.
My question is really, I remember when we met earlier at
the FBI about some of the challenges you face, particularly I'm
very focused on some of the white collar crime investigations,
as you know, the resources necessary for those, and how that
played in with the necessary steps you had to take after 9/11
to shift resources over to investigating terrorism. So with
that in mind, what do you see as the biggest challenges facing
the FBI over the next 2 years?
Director Mueller. Quite obviously, it's a continuation of
addressing the threat from terrorism, both international
terrorism and domestic terrorism, and increasingly in that area
is the radicalization of individuals over the Internet, where
the radicalizers can be offshore and the individuals can be in
their bedrooms here in the United States. They need not meet or
have any other personal contact, but persons can be radicalized
through the Internet.
I mentioned before the cyber--the increase of cyber as a
mechanism for conducting--Internet mechanism for conducting all
sorts of crimes, but also it being a highway to extracting our
most sensitive secrets or extracting intellectual property from
our commerce. We, as an organization, need to continue to grow
the capability of addressing that arena in the future.
From the criminal perspective, making certain that we
minimize whatever crime can come from south of the border in
the Southwest border area, and of course as you point out we
have still a backlog of mortgage fraud cases and substantial
white collar criminal cases that we are assiduously working
through.
Senator Klobuchar. And so you're concerned about budget
cuts that could affect local law enforcement that have been
taking up some of the slack here?
Director Mueller. I do. And if you talk to State and local
law enforcement, you understand their concerns in terms of
budget cuts all the way down the line. I think we're all in
agreement that we are much more effective working together.
Consequently, for all of us the increase in task forces where
we combine our areas of expertise and knowledge is going to
have to be at least a partial answer to the budget cuts that we
see coming down the road.
And always my encouragement to the appropriators is that,
in giving monies, give monies in such a way that that's an
incentive for us to work together in task forces as opposed to
a disincentive for persons to go and start their own look at a
particular area.
Senator Klobuchar. Exactly. And as you and I have
discussed, we've had some tremendous success in Minnesota with
some of these combined efforts. You brought up the cyber crime
issue. I think it's very important that we start getting
something done in this area and start to be sophisticated in
our laws as those that are breaking them.
I've heard that because of new technologies and outdated
laws, there's a growing gap in the FBI's ability to get court-
ordered information from communications and Internet service
providers. In prior statements you have referred to this as
``going dark''. Could you talk more about this problem and how
you see we could help to fix it?
Director Mueller. Yes. I did refer to it briefly before.
Where we have the authority to go to a court and get a court
order directing that a communications carrier of some ilk
provide ongoing communications to the Bureau in a terrorism
case, a white collar criminal case, a child pornography case--
could be any number of cases--what we increasingly find, given
the advent of all these new technologies, is that the carrier
of that communication no longer, or does not have the solution
in order to be responsive to that court order.
So my expectation is that legislation will be discussed,
and perhaps introduced that would close that gap for us. So we
cannot afford to go dark in the sense that we have a legitimate
authorized order from a court directing a communications
carrier to provide us with certain conversations related to
criminal activity and not be able to get those conversations
because a communications carrier has not put in place a
solution to be responsive to that court order.
Senator Klobuchar. That makes a lot of sense.
Two things I just wanted to mention at the end. First, I
want to thank the Bureau for the help with the synthetic drug
issue. Senator Grassley, Senator Schumer and I have been
working on this. Senator Grassley has a bill to include some of
these new synthetic drugs. We had a kid die from a synthetic
drug in Minnesota and a number of people get sick. I don't
think people realize the power of these drugs and the increase
we're seeing in the use of those drugs.
Second, I want to thank you for your having Kevin Perkins
at a hearing that I held earlier on the ways we can help law
enforcement find missing children. This is the issue of trying
to be as narrow as we can in getting exception to the tax laws
so that you don't have local law enforcement trying to find a
kid when it is in fact a family abduction, and then you have
one arm of the government, the IRS, that knows exactly where
that kid is, where that family is, and trying to put an
exception in place that doesn't hurt privacy interests but is,
like many of the exceptions that are already in that law, so
law enforcement only can access it.
So, thank you.
Director Mueller. Thank you, ma'am.
Chairman Leahy. Senator Lee, I understand the questions
have been asked that you were interested in.
Then Director Mueller, we'll excuse you with our thanks for
your service. But I should also thank Ann Mueller.
Director Mueller. Yes.
Chairman Leahy. Because she doesn't get thanked enough for
the support she gives you, as do your daughters in this. I
appreciate that very much. I appreciate that she said yes to
the President's request, too.
Director Mueller. Thank you. Thank you. She certainly
appreciates that acknowledgement. It's much--deserved.
Chairman Leahy. Well, she's a remarkable woman, as you
know. I appreciate that.
We'll take a three- or 4-minute break while we set up for
the next panel. Thank you.
Director Mueller. Thank you.
[Pause]
Senator Klobuchar. OK. Are we ready to swear in the next
panel? If you could stand, please.
[Whereupon, the witness was duly sworn.]
Senator Klobuchar. Thank you.
It's good to have all of you here for a second panel. I'm
going to introduce our first witness here. This is Jim Comey,
who served as the Deputy Attorney General of the United States
from 2003 through 2005. Prior to becoming Deputy Attorney
General, Mr. Comey was the U.S. Attorney for the Southern
District of New York. He is a graduate of the University of
Chicago Law School, and is now a member of the Management
Committee at Bridgewater Associates.
I should tell everyone assembled here that Mr. Comey and I
were in the same law school class. We graduated together. We've
known each other for a long time. I think maybe our classmates
would have not expected that we would be sitting in these roles
back when we graduated in 1985. But it is certainly great to
have him there today.
Mr. Comey.
STATEMENT OF HON. JAMES B. COMEY, FORMER DEPUTY ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC
Mr. Comey. Thank you, Senator Klobuchar. Senator Grassley
and distinguished members of this Committee, thank you for
inviting me to testify here today. It is great to be back in
this room before this distinguished Committee, and especially
to offer my voice in support of an extension of Director Bob
Mueller's term for 2 years.
I know Bob Mueller very well and believe he is one of the
finest public servants this Nation has ever seen. In his decade
as Director, I think he has made huge strides in transforming
the FBI and has contributed enormously to the safety of the
American people.
When I was Deputy Attorney General during those 2 years, I
spoke to Bob Mueller nearly every day and I watched as his
remarkable combination of intellect and tenacity drove the
FBI's counterterrorism efforts. Because the Director's
standards were so high, everybody's work had to be better.
His relentless probing, which was rooted in an almost
encyclopedic knowledge of the enemy and our capabilities to
respond to the enemy, rippled through the FBI and the rest of
the national security community. Everyone around Bob Mueller
knew their work had to be good because he would test it, he
would compare it to other work he had seen, and he would press
very, very hard.
The President--now two Presidents--could count on Bob to
offer sound advice and to prudently do what was best to protect
the country. I don't think there's ever a great time to change
FBI Directors because something is always lost in a transition
as the new Director climbs the learning curve and learns about
the threat, and also about our capabilities to respond to the
threat.
But I think there are bad, and even potentially dangerous,
times to change an FBI Director, and I think that this is one
of them. I no longer have access to threat intelligence, but
common sense and the publicly available information tells me
that the combination of the successful raid on bin Laden's
compound and the approaching tenth anniversary of 9/11 make
this an unusual and unique threat environment.
In the middle of that, as Senators have mentioned, the
leadership is changing at two of the pillars of our National
security community, at the CIA and Defense. I think at this
moment it makes good sense to ask Bob Mueller to continue his
leadership of the organization, which is primarily responsible
for protecting our homeland from terrorist attack.
To the extent that I have seen criticism of this idea, it
has been focused not on the man, but on the purpose of the 10-
year term, which I support very much, to reduce the risk of
abuse by a long-serving and too-powerful FBI Director.
But I think in this circumstance the man is the answer to
that criticism. There is no one that I have ever met who is
better suited to the responsible use of power than Bob Mueller.
I know firsthand his commitment to the rule of law, and frankly
I believe he is what we wish all public servants could be. I
think there are no politics in this decision, just as there are
no politics in Bob Mueller. This is as he is: only about doing
what's in the best interests of our country. I join my fellow
Americans in being both grateful and awestruck at his
willingness to continue to serve and sacrifice for our country.
Thank you again for the opportunity to discuss this
important issue, and I look forward to answering any questions
you might have. Thank you.
[The prepared statement of Mr. Comey appears as a
submission for the record.]
Senator Blumenthal. Thank you very much. Now I'd like to
introduce Professor Van Alstyne, who was appointed Lee
Professor of Law at the Marshall Wythe Law School at the
College of William & Mary. In 2004, he previously served in the
Civil Rights Division at the Department of Justice and has
appeared before this Committee several times.
Professor.
STATEMENT OF WILLIAM W. VAN ALSTYNE, LEE PROFESSOR OF LAW,
WILLIAM & MARY LAW SCHOOL, WILLIAMSBURG, VA
Professor Van Alstyne. Thank you very much. I have
submitted a statement and I'll just summarize parts of it.
First, I would like to say hello to Senator Grassley
particularly, since it's been some time since I was before this
distinguished Committee but remember his own participation well
from prior hearings. I look forward also to saying hello to
Senator Leahy, and even Senator Hatch, but I understand they're
just not with us today.
I've submitted my statement. I want, briefly, to simply
summarize it and offer what may seem to be a bolder view than
is even reflected in my remarks with respect to which I have no
doubt of the constitutional propriety of the proposed
extension.
It is odd, but as I've thought about this more, rather,
I've tentatively concluded that the only reasonable doubt to
have is whether or not it's within the authority of Congress to
put an outside limit on the service of a purely executive
officer.
They may abolish the office by legislation--don't
misunderstand me--but I'm now in doubt as to whether they can
actually limit the term of service because if it is exclusively
an executive office, as I regard this office to be for reasons
I've put on paper and I will shortly summarize, then in my own
view he necessarily--or she--serves at the pleasure of the
President.
So long as that service is deemed acceptable to the
President in the delegation of that modicum of executive power
which the President lodges, as permitted by an act of Congress,
in the subordinate executive official, I've come to doubt
seriously the authority of Congress to put a limit on the
service of that person so long as they continue to enjoy the
confidence of the President.
So my position is not merely that the extension will
clearly be constitutional and well-advised given the
President's express confidence in the officer who now holds it,
but has come to the conclusion that's not even stated in my
memorandum. I'm not at all confident that Congress has the
authority to restrict the term in which one who has been
approved by the Senate, once nominated by the President and who
holds a purely executive position under the direction of the
President, has the authority to limit the number of years which
they may hold that office as long as the President is pleased
to retain that person.
Now, as we are mutually aware, briefly to summarize this
somewhat maverick position of mine--I'm sure you've not heard
it previously--when incoming administrations come in and they
represent a different political party, it is customary for the
President to request the resignation of many executive
officials. He may sometimes accept some of those letters of
resignation and that terminates their particular holding of the
office. It opens the office for fresh nominations to be
submitted for those respective posts to come before the Senate
for confirmation or rejection. I completely understand that and
completely approve it.
On the other hand, the President, often for good reason,
declines to accept the letter of resignation that he himself
has requested. Being satisfied with the continuing performance
of the officer who is serving in a purely subordinate executive
capacity, then the resignation is politely refused and so the
individual stays on. Now, don't misunderstand me. It may be the
individual may resign the post, but if the resignation is not
accepted then they continue to answer the responsibility of the
office until something else happens.
Now, if one believes the President is acting corruptly in
refusing a letter of resignation, that is for the Impeachment
Committee of the House to decide, in whether or not the
President has acted with some corrupt motive worthy of being
deemed an impeachable offense under that clause. But it may
seem strange to this group. It is, rather, that I have no doubt
of the constitutionality of the proposed modest extension of
the current Director's purely executive service. It is, rather,
frankly, ladies and gentlemen, that I've come to doubt the
authority of Congress to restrict the President so long as he
has confidence in those who are serving in a purely subordinate
executive capacity.
Now, I move, briefly, to the mainstream of my remarks. It
is quite different with regard to the delegation of legislative
authority. To the extent, for instance, that Congress wants to
vest a certain interstitial lawmaking authority in the
independent agency, such as the National Labor Relations Board,
then to the extent that the NLRB itself makes law, albeit on a
mini scale, they make substantive regulations. They do not hold
hearings.
The regulations are published in the Federal Register and
they become the operative law that may now describe more finely
in a retail fashion what will be deemed to constitute, for
instance, and unfair labor practice under the Wagner or Taft-
Hartley or LMRA acts.
So they are acting in a quasi-legislative capacity in that
regard. Their authority to do so is delegated by Congress, as
we mutually know. So long as Congress identifies appropriate
criteria according to which they may make those substantive
rules and provides for the substantive reviewability to say
whether they've acted within those boundaries in the Federal
courts, then that degree of delegated legislative authority is
within the prerogative of Congress.
But since the NLRB and similar agencies are also lawmaking
bodies, obviously Congress may determine the terms of those who
will serve in that quasi-legislative capacity. Now I go back to
my main observation. The Constitution, among other things,
assigns to the President the power that he shall take care
faithfully to executive the laws of the United States.
In discharging that obligation, Congress has provided him
with certain services, certain help. One is the Office of the
Attorney General, who serves at the pleasure of the President.
Another is the Federal Bureau of, what, not ``legislation,''
not ``adjudication,'' but of ``investigation.'' The FBI. It's
director serves as the director of the investigations conducted
under the authority granted by Congress to the Department,
established a long time ago.
It is purely an executive function. It is impossible for
the President of the United States to acquit himself and his
manifold Article 2 obligations, including among them that he
shall take care that the law shall be faithfully executed,
unaided.
So Congress has provided him the means, and they do so
under Article 1, Section 8, the ultimate clause. It is called
the Necessary and Proper Clause, sometimes called the Elastic
Clause, that they shall have power to enact all laws necessary
and proper to carry into execution the foregoing powers, their
own legislative authority, and all other powers vested in the
government of the United States or any office or department
thereof. That's the office of the presidency.
So Congress has passed a variety of laws helpful to the
President in his capacity to carry out his obligations. The
earliest of these were those that established the respective
offices of the Secretary of State and of Defense. Am I clear?
They are purely executive officials. They are today. The
Secretary of State represents the United States in foreign
relations. That person is the deputy of the President in the
power to make treaties.
Now, the treaty does not become effective, as we all
recognize, until consented to by the Senate, not even including
the House, but they are made under the authority of the
President. Indeed, there are lesser kinds of executive
agreements that I'm sure we mutually recognize that do not
require even the consent of the Senate. But the duty of the
authority to make the treaty, to dicker with a foreign country,
whether on matters of trade or defense alliances and things of
that kind, that is an executive power. It's established in
Article 2. Then under the Necessary and Proper Clause, this
Congress has seen fit to aid the President in the efficient
discharge of that power and that duty by providing a Department
of State. It then establishes an office called Secretary of
State. The President then nominates and, with the advice and
consent of the Senate, approves or does not, and that is that.
That's the end of the story in my respectful constitutional
view.
Senator Blumenthal. Thank you very much.
Professor Van Alstyne. Congress may not require the
dismissal of the Secretary, and in my view that I now take, I
don't believe that the Congress can set a limit to the service
of any individual. As long as the person occupying the
position, having been nominated and approved by the Senate of
the United States, retains the confidence of the President,
then indeed they should be able to retain the office and
discharge the confidence that the President places in him. For
those reasons and those that I've reflected in my memorandum, I
have no doubt about the constitutionality of continuing Mr.
Mueller in service, and I have come to what may seem to be the
novel and somewhat more radical view that I even doubt whether
or not the more generous limit itself is within the authority
of the Congress itself to stipulate and enforce.
Senator Blumenthal. Thank you.
Professor Van Alstyne. I thank you for your time.
Senator Blumenthal. Thank you very much.
[The prepared statement of Professor Van Alstyne appears as
a submission for the record.]
Senator Blumenthal. We will now turn to Professor Harrison,
who is a graduate of the University of Virginia Law School. He
served for 10 years in Department of Justice in a variety of
positions and he's currently James Madison Distinguished
Professor of Law at the University of Virginia Law School.
Thank you for being here, Professor Harrison.
STATEMENT OF JOHN C. HARRISON, JAMES MADISON DISTINGUISHED
PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
CHARLOTTESVILLE, VA
Professor Harrison. Thank you, Senator.
Senator Blumenthal. You might want to turn on your
microphone.
Professor Harrison. There we go. The red light? Yes, sir.
Thank you.
Director Mueller is a distinguished public servant, so it
is with some hesitation that I say that I think that this mode
of extending his term for 2 years would be unconstitutional
because it would be an attempt by Congress to exercise,
directly through legislation, the appointments power.
But the Appointments Clause of Article 2 provides that
officers of the United States, including, for example, the
Director of the FBI, are appointed either by the President with
the advice and consent of the Senate, or if they're inferior
officers, which I think the Director of the FBI is not, by the
President alone, by head of Department, or a court of law.
Congress may not appoint officers. That is quite clear from the
Supreme Court's cases.
It can't do so through its own officers, it can't do so
directly through legislation. But a statute like S. 1103 would,
in a situation in which an office otherwise would be vacant,
cause a particular individual, through a legal act of Congress,
to hold that office, to be the incumbent of that office.
That is an appointment and that is something that Congress
cannot do. That has to be done through the Appointments Clause
by the President, with the advice and consent of the Senate for
a superior office of the United States. So just as a formal
matter, a statute like this would constitute an appointment and
would be inconsistent with the Appointments Clause.
It's also true, I think, that something like this is
inconsistent with the principles underlying the Appointments
Clause which are conjoined. There are two of them, primarily:
power and responsibility, which always go together. The
Appointments Clause is designed so that the President's
responsibility for all appointments to superior offices is
absolute. Only the President can nominate, only the President
can appoint. He has to have the concurrence of the Senate, but
he alone must do either one of those. He has what amounts to an
absolute veto, and that means that he has absolute
responsibility. That's true with respect to appointments. It's
not true with respect to legislation.
The President has an important role with respect to
legislation, but he does not have absolute responsibility for
every particular part of a bill that he signs because he may
decide that it's a compromise and that he has to accept parts
he doesn't like in order to get parts he does like. That's how
legislation works. That is not the way appointments work. The
Appointments Clause is designed to focus responsibility
strictly on the President. Doing it through legislation can
relieve him of that responsibility. It may not in any
particular case, but it can in principle.
It's also true that a Congressional exercise of the power
to appoint is an intrusion into the power of the President.
That is the flip side of responsibility. Again, the two always
go together. If the Congress is appointing, the President is
not appointing.
There is a 1994 opinion from the Office of Legal Counsel
that goes into this matter and that takes the position that a
direct Congressional appointment which otherwise would be
troublesome, at least, is permissible as long as the President
can remove the officer at his pleasure, that there is in effect
a constitutional remedy for the intrusion into the President's
appointment power.
I think that argument isn't persuasive because it assumes
that the power to remove an officer is, practically speaking
and for political purposes, the equivalent of the power to
decide not to reappoint that officer. But as a political
matter, as is well known, that is not true. It is certainly not
true with respect to U.S. Attorneys.
Firing a U.S. Attorney, although within the President's
power, is a politically much more controversial act and hence a
politically much more costly act for the President than is
deciding not to reappoint a U.S. Attorney. The power to remove
is not a complete substitute for the power not to reappoint,
and so the reasoning that as long as the President can remove a
Congressional reappointment is permissible I think is
unpersuasive. So as a matter both of the form of the
Constitution and the underlying principles, Congressional
appointment, which this amounts to, is not consistent with the
Constitution.
Another important point I want to make is, there is a
constitutional way to accomplish this, which is through a
combination of legislation providing for a new 2-year term and
a new nomination, confirmation, and appointment of Director
Mueller pursuant to the Appointments Clause.
The other point I want to make and the point on which I'll
conclude is that, as Senator Coburn's question earlier
indicated, deviations from the Constitution, as judged by the
courts, can be highly disruptive and have been highly
disruptive from time to time.
In 1978, Congress created a new system of bankruptcy
courts. Four years later, the Supreme Court decided that they
were inconsistent with Article 3 and Congress spent the next
couple of years trying to come up with a way to solve the
problem and keep the bankruptcy adjudication system operating.
More recently, a similar problem under the Appointments
Clause. In this case, the disruption created by a single
District Court opinion happened with respect to the transition
from the Federal Savings & Loan Insurance Corporation to the
Office of Thrift Supervision.
More recently, Congress has had to restructure the
administrative law judges for the Patient & Trademark Office
because it was discovered that their mode of appointment was
inconsistent with the Appointments Clause. This can be highly
disruptive and there is an easy way, a constitutional way, to
avoid the dangers. Thank you.
[The prepared statement of Professor Harrison appears as a
submission for the record.]
Senator Blumenthal. Thank you to all the members of the
panel. I'll begin with a question to Professor Harrison. You
discuss the Benny case in your written testimony--you haven't
just now--and you distinguish it based on the idea that the
acts at issue in Benny applied to the entire system, all the
bankruptcy court judges as opposed to a single individual.
Aren't the principles, though, in Benny and Shoemaker still
applicable here?
Professor Harrison. Well, two things, Senator. First, of
course, Benny is a Ninth Circuit decision and so its persuasive
authority is elsewhere, its precedential authority only in
Benny. But as to the difference between a large reappointment
and the reappointment of a single individual, the Supreme Court
itself in the Weiss case, which is another Appointments Clause
case, indicated that at least for some of the justices--and I
think some did not agree with this--there is a difference
between legislation that, as the bankruptcy legislation tried
to fix the problem that the Supreme Court discovered in
Northern Pipeline, the legislation that operates across a wide
range of officers might not be an appointment, an impermissible
exercise of the appointments power, whereas, again, this is
what Weiss suggested--whereas, one that operates as to a single
individual might be, that the numbers involved are different.
And I don't agree with that but I can understand it,
thinking that a larger class is more like legislation, whereas
the core of the Appointments Clause itself is the appointment
of a single individual. But here we're dealing with a single
individual. So insofar as Weiss indicates that that's one of
the indications of what constitutes an appointment, I think the
fact that it's just one person makes it more problematic.
As to Shoemaker, let me say that Shoemaker, I think, is a
case that creates a problem for this mode of proceeding because
Shoemaker is a case from the late 19th century--is one of the
cases that is regarded as standing for the proposition, and the
court has recently suggested that it stands for this
proposition, that statutory changes in the duties of an
officer, if they go so far as in effect to create a new office,
can require a new appointment. So actually, although Shoemaker
creates some room for Congress to operate when it changes the
duties of an officer, those two--the officers there were--no
need to--I'm sorry. No need to get into that. Congress has some
leeway there.
But Shoemaker pretty clearly stands for the proposition
that there is a point beyond which Congress cannot go, and I
think one point beyond which it cannot go is a simple extension
of the term. Because again, Shoemaker is about changing the
duties of an office not operating on the term itself, and even
there the court indicated it is possible to go to the point
where the office is so changed that a new appointment would be
required.
Senator Blumenthal. And in Shoemaker, the nature of the
change in duties and the nature of the office was very
different from what we have here, wasn't it?
Professor Harrison. In Shoemaker it was a quite small
addition to the duties of the offices that were involved, that
involved creating Rock Creek Park. It was, A) small, and B), in
the Supreme Court's own terms it was germane to the office that
already existed.
Whereas, what we're talking about here is a change in a
fundamental feature of the office, which is its term, and is
much more like an appointment than the change that was involved
in Shoemaker, precisely because it causes someone who otherwise
would not be in the office at all to continue to be in the
office. This is very different from what the Supreme Court said
was all right in Shoemaker.
Senator Blumenthal. But wouldn't it be fair to say that we
have no direct, clear guidance from the Supreme Court at least
on the issues at stake here?
Professor Harrison. Not clearly here. The main point on
which I think we can say that Shoemaker can be relied is that
legislation that is not in form of an appointment nevertheless
can run afoul of the Appointments Clause. On that point, I
think Shoemaker is reasonably clear. Exactly what kind of
legislation does that, we don't know as well. That's correct,
sir.
Senator Blumenthal. Thank you.
I'm going to turn to Senator Grassley.
Senator Grassley. Thank you all for your testimony. Mr.
Chairman, before I ask questions I have a paper from the
Congressional Research Service that I'd like to put in the
record. Also, three opinions on the topic issued by the Office
of Legal Counsel, DOJ, that I'd like to have put in the record.
Senator Blumenthal. Without objection.
[The prepared statement of the Congressional Research
Service appears as a submission for the record.]
[The prepared opinions from the Office of Legal Counsel,
Department of Justice appears as a submission for the record.]
Senator Grassley. OK. I'm going to start with Professor Van
Alstyne, your written testimony states that legislation
extending the term of a sitting appointment is clearly
constitutional. Conversely, Professor Harrison argues that such
legislation should pass absent a new confirmation hearing for
the appointment. A court could find invalid any reported
exercise of government power by the Director of the FBI serving
pursuant to the statute, like 1103.
My first question is, do you agree with Professor
Harrison's statement, and if not, why not?
Professor Van Alstyne. Well, for reasons I thought I'd made
clear in my opening remarks, but let me say this as well to
amplify on those statements. Even if I agreed with Professor
Harrison, as I emphatically do not at all, it seems to me that
insofar as the proposal has come here and it carries an
expression by the President of his continuing confidence in the
Director who is now the incumbent, to the extent that the
President has already expressed his confidence, a compatible
view with this would be that if this bill is reported favorably
then it carries along the President's approval of continuing
him in his office. It then becomes a nomination in its own
right and consistent with the approval of the Congress of this
particular bill that would confirm the appointment, so that any
residual doubt, which I do not personally entertain, would be
eliminated. That would be if I agreed with Professor Harrison.
I still think it would be quite arguable that, given the
message from the President that he wants Mr. Mueller to
continue to occupy this office, then by approving the bill
where the President expressed his confidence in this person,
that's effectively a nomination and would become effective with
the approval of this bill for the new term.
But I don't think that's a necessary way of looking at it.
Indeed, for reasons I've already shared with you, I now
seriously entertain doubts. I understand the background of the
notion of the term limit. Mr. Hoover was the original Director
of the FBI. He was continued under administration after
administration after administration.
Now, I do remember a little bit. Perhaps, Senator Grassley,
and perhaps if he were here Senator Hatch, some are too old--
one or two old-timers might remember that Mr. Hoover exerted
unusual power and it became almost an extortionist power at
some point. Indeed, he would sometimes communicate to the
President of the United States and some Senators of this Senate
privately that he had certain information about certain
misconduct on their part, but--they could trust to his
discretion, it would never get out. This was effectively, de
facto, extortion by the Director.
The Director also had these peculiar habits. He was a
cross-dresser. He dressed up in women's underwear, as it were,
and he was seen disporting himself in that respect. It was a
terrible scandal. The difficulty with Mr. Hoover was that he
was continued administration after administration, partly
because, gentlemen, I put it to you candidly, if you look at
the history of this affair and the longevity of the particular
Director, the original first Director, he became very powerful
and, by a threat to both the President and to members of this
body, was able to avoid the idea that he would simply be asked
to resign or fired. Under the circumstances, he induced a
certain fear.
That is the trigger for the original bill that set this 10-
year period. I understand and I appreciate that very much. It
was, I think--while Mr. Hoover, in the early years of the FBI,
was an admirable person, he became inflated with his own power
and because of his very peculiar sexual tastes abused his
office and had a horrendous private life. But he retained his
office, frankly through the threat power that he wielded
informally with regard to members of this body, members of the
House of Representatives, and frankly with the President of the
United States. They would not dare touch him, so he lingered on
through administration after administration.
Senator Grassley. My time is up, Mr. Chairman.
Professor Van Alstyne. I beg your pardon.
Senator Grassley. My time is up.
Professor Van Alstyne. I merely meant to suggest that that
was the origin of wanting to put a limit on these things.
Senator Blumenthal. Thank you. Thank you very much.
Professor Van Alstyne. And I respect that limit, though I
might have my doubt about the limit itself rather than the
validity of continuing the appointment under an extended term.
Senator Blumenthal. The time of the Senator from Iowa has
expired. I'm going to turn to Senator Lee.
Professor Van Alstyne. Certainly.
Senator Lee. Thank you, Mr. Chairman.
I've got a question for Professor Van Alstyne. So,
Professor Harrison has acknowledged, if I'm understanding him
correctly, that there is a way to do this while resolving any
constitutional questions. If we can invoke for a minute the
Doctrine of Constitutional Doubt for purposes of this
Committee, we might do so and in this instance resolve any such
doubt simply by taking a two-step process rather than a one-
step process, one in which we would first amend the existing
legislation making clear that this Director could serve an
additional 2 years, and then having the President re-nominate
Director Mueller to an additional 2-year term, subject to
Senate confirmation.
Given the questions that have been raised and given the
fact that Congress could do this reasonably without all that
much burden, why shouldn't we just do that?
Professor Van Alstyne. Well, you may if you want. I just
think it's quite unnecessary. The President has already
expressed his desire to have Mr. Mueller continue in the
office. If you are not comfortable merely in complying with his
wishes, which I am very comfortable with and find supported by
the majority of the testimony you've received in submitted
form, I want to suggest the alternative I've already suggested
to you, and that is that in reporting favorably you are also
acting on the President's recommendation that he wants this man
to continue in office for the additional 2-year period.
That itself, it seems to me, satisfies the nomination
requirement so that by the approval of the bill, with the
understanding that the President wishes Mr. Mueller to occupy
that position for that term, then you do it in a single step.
We do not go through the ordeal of having to put it back and
have the President formally submit the matter, we go through
hearings again with Mr. Mueller.
I've heard no reproach to his fitness to serve in this
role, nor reservations about the assiduousness with which he's
performing his exclusively executive duties. So I'm not hostile
to this suggestion, I just think it's gratuitous and it rests
on a constitutional point of view that I do not share and do
not think others that have submitted material to you that
you've heard before and has come to your attention, Chair,
either.
I think what has been proposed is sound. It meets the
President's need, it meets the country's need, and is utterly
constitutional. I don't object to the two-step procedure that
you've suggested, but I do suggest to you, implicit in what
you're doing now is that step itself, if you thought that
appropriate and necessary, as I do not.
Senator Lee. Thank you.
Professor Harrison, one question I've had that I've never
been really clear on is what exactly constitutes an
appointment, when does an appointment arise. Do you have--for
instance, what if you had an Attorney General who had been
confirmed by the Senate and that Attorney General was asked at
the conclusion of one Presidential administration and the
beginning of another to remain on and not to resign as
typically happens, would that person remain on with the
previous confirmation during the previous President's
administration or would that be an appointment?
Professor Harrison. That is not a new appointment because
the term of the Attorney General, as contrasted with the term
of the Director, is indefinite. The Attorney General simply
serves at the pleasure of the President. So I think it was
Attorney General Wirt, sir, in the early 19th century, served
for something like 12 years. The reason for that is simply
because the initial appointment was to an indefinite term. And
although we think of Cabinet offices as turning over at the end
of Presidential terms, routinely the statutes don't actually
provide for that and so there's no need to have a new
appointment again because of the terms of the initial
appointment.
Senator Lee. So in that circumstance the President's
authority to remove that person is sufficient because of the
fact that it started out indefinite, it started out as
something that could carry on perpetually?
Professor Harrison. The President's authority to remove the
Attorney General, for example, is sufficient to provide the
President with control over the Attorney General. And if you
think as I do--I know this is a matter of some controversy--
that the Constitution requires that the President have that
control, the removal power is adequate to create it, and indeed
many people think the removal power is constitutionally
required, in order to give Presidential control.
It's important to see that the Presidential control over
executive offices and the appointments clause, although they
overlap to some extent, are not identical. It's completely
constitutionally permissible to have an appointment that
continues through many Presidential terms, and the reason
that's not problematic from the standpoint of Presidential
control is precisely the removal power, or if there's some
substitute for it, like a Presidential directory authority over
the officer.
Senator Lee. So the President's removal power has a
different effect, whereas here Congress has set the term to a--
--
Professor Harrison. Here, Congress has set a specific term,
the Director serves for 10 years. Therefore, there is about to
be a vacancy in the Office of the Director. I think--I am not
sure if this is a definition or just a sufficient condition for
what constitutes an appointment--but in a situation where there
otherwise will be a vacancy in an office, an act that causes
someone to hold that office is an appointment. Normally the
President does that. The problem is that this statute would do
it.
Senator Lee. OK. Thank you.
Senator Blumenthal. Senator Coburn.
Senator Coburn. Thank you.
Mr. Comey, we've heard testimony conflicting as to the
constitutionality of this, or at least the potential for some
mischief. Would you see any problem with us doing this a
different way so that we don't allow for the potential risk of
carrying out of the duties of the FBI Director? Would you see
any problem if we could figure out a way to do this where we
wouldn't see a constitutional challenge?
Mr. Comey. As with Director Mueller, I'm no constitutional
scholar so I'm not in a position to evaluate the merits of the
disagreement.
Senator Coburn. All I'm saying is, wouldn't it make sense
that we would do this in a way where we're not going to see a
challenge? You know, there are some pretty savvy people out
there that are going to use any angle they can to challenge
some of the direct and proper duties of the Director of the
FBI. Would you not agree that we should try to do it in such a
way to minimize that?
Mr. Comey. I would agree. If you can do it in a way that
makes it bulletproof, especially against the kind of litigation
that you've spoken of, that would be better.
Senator Coburn. All right.
Professor Van Alstyne, your testimony earlier was that you
think that the 10-year statutory term is unconstitutional.
Professor Van Alstyne. Well, I've come to doubt it, that's
all. In the course of thinking about the Committee's
responsibilities and the opportunity to appear before you, I
originally was only concerned with the question that----
Senator Coburn. I know. But in your testimony you said you
didn't think it was constitutional. That's what you just said.
Professor Van Alstyne. I think that there is a more severe
doubt about the constitutionality of Congress presuming to
limit the term of service of a subordinate, purely executive
officer than there is reason to doubt the capacity to extend
the term with the--with the--with the----
Senator Coburn. So if that's the case----
Professor Van Alstyne. Yes.
Senator Coburn.--then why would a 2-year term be any less
vulnerable to your doubts?
Professor Van Alstyne. It would not be as a theoretical
constitutional proposition. I think it is far more seriously
arguable, gentlemen, that you may not restrict the term of
office of a purely subordinate executive officer as you might
with regard to one who is serving in a quasi-legislative
capacity who receives a delegation of interstitial lawmaking
power from this body. That is, to me, now an open question.
Senator Coburn. Well, I don't think it's an open question
because the term has not been challenged constitutionally.
Professor Van Alstyne. No. I appreciate that.
Senator Coburn. Professor Harrison, would you repeat again
how you could suggest we do this so that we don't end up with a
constitutional challenge so that we can have that very clear in
the record?
Professor Harrison. Senator, I think an unquestionably
constitutional way to accomplish this goal would be for
Congress to amend the 1968 statute that creates the current
structure for the Director, saying that in some short time
period to begin sometime soon the President may nominate
someone to a 2-year term, to say that such person would not be
subject to any restriction, to the 10-year restriction created
by the earlier statute, for the President--to have that expire
so could only be done in a narrow window, say this summer, to
have the President then nominate Director Mueller, the Senate
give its advice and consent, the President appoint Director
Mueller to the new 2-year term. That would be, I believe,
clearly constitutional. I think that would be bullet-proof and
that would not make it possible for any person who is the
subject of the authority of the Director of the FBI to raise in
court an objection to the Director's capacity to execute the
laws.
Senator Coburn. Thank you very much.
Thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Coburn.
Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
I thank all of you. This is an excellent, excellent panel,
and thoughtful discussion that's important for us every now and
then to think about.
Professor Van Alstyne, I believe you one time spoke to the
Eleventh Circuit----
Professor Van Alstyne. Yes, I did.
Senator Sessions.--Court of Appeals in conference to those
judges. I was a U.S. Attorney in the crowd and remember
distinctly--perhaps not so distinctly, but as I remember what
you said--you said if you truly respect the Constitution you
will enforce it as written, the good and bad parts. Is that
somewhat similar to what you said?
Professor Van Alstyne. I'm so flattered that you'd remember
that. That remains my view, almost religiously today. In fact,
the most recent article that I've written and will be published
this fall in the Cato Supreme Court review is called
``Conflicting Visions of a Living Constitution'', and I take
the view that was best espoused, I think, in those remarks and
also on the court by Justice Hugo Black, whose name certainly
should be familiar to you, Senator, from that region in the
country, and I hope to everyone in this room.
Hugo Black's view was that you take the Constitution very
seriously. You do not read into it phantom clauses, even though
you wish they were there. They're not there. You apply the
clauses according to the best understanding the text suggests,
as it may them be illuminated by the discussions that accompany
the drafting in its original enactment. This is sometimes
described as a form of originalism, but in simplest terms it
means you take the document as it is seriously.
As it is, it may have defects from a variety of points of
view. They're not all of the clauses that we would like to see.
I for one regret that the so-called Equal Rights Amendment
narrowly did not pass, even after an extended period,
originally 7 years, extended to 10 years. It could not muster
the 38 State ratifications. I think that's a constitutional
loss, but respect it. I don't think the court should read into
other clauses the substance of that particular amendment. As it
is, we now have a different Twenty-Seventh Amendment. In my
opinion it's rather trivial, but it's all right. To the extent
that it was enacted, it should be respected.
So I'm with Hugo Black on these matters. We take the
Constitution as it is, we do not read out clauses which we
regret are there and we don't over-read the clauses that are
there. We have a sense of documentary integrity about it.
Now, I've tried to base my own teaching and writing very
much on that thesis. I have great respect for the Constitution.
I have great respect for Professor Harrison. I just disagree
with him in this matter and don't think that this two-step is
necessary. In fact, even if I were to concede to his views--
which I do not, in all frankness--it seems to me that his views
are all compressed in the proposal, because what you have is a
proposal signifying the President's desire to have Mr. Mueller
continue for the 2-year period.
If, then, you can couple those in this one item, I don't
think it takes a whole new series of interviews and submissions
to do it. It's implicit in what the President has submitted and
in your adoption of the bill. You will then be approving Mr.
Mueller within the 2 years of the limit that is provided here.
I don't think it's necessary to review that--review it--view
the matter that way, but it's a perfectly logical, coherent
way.
I have no doubt that whichever way you do it, this one-step
which I believe to be eminently sound, or his proposed two-step
which may be somewhat more time consuming but it's perfectly
possible it will completely withstand any kind of challenge, I
have no doubt about that professionally at all. If I did or if
it turns out that I'm a bad prophet, I'll probably resign my
tenured chair post.
[Laughter.]
Professor Van Alstyne. At least, and apologize promptly to
Professor Harrison, because I think very well of him in
general.
Senator Sessions. Well, thank you. Your remarks about the
Equal Rights Amendment were remembered me from 16, 18 years
ago. I thought it was a very thoughtful approach you gave. If
you check the Congressional record, your name has been
mentioned with this quote probably 10 times since I've been in
this Senate, because I think when we wrestle with these issues
we need to understand that even the good government crowd--and
that's what this bill was passed for----
Professor Van Alstyne. Yes.
Senator Sessions.--is to make America better. We wouldn't
have a long-serving Attorney General. We somehow thought that
it ought to be limited. Just like some of the campaign finance,
the greatest intent in the world to make America better.
Professor Van Alstyne. Right.
Senator Sessions. But in the long run, we're better off
following that document. If you don't follow it as written, you
weaken it, in my view.
Mr. Harrison, as just a matter of policy, and we deal with
policy here as well as constitutional law, your proposal would
make it somewhat easier, would it not--excuse me. It would make
it somewhat more difficult and thereby make it--have it require
more thought and care from the President's point of view before
he would exercise this little plan to extend a term limit. In
other words, it would require a little more effort and work and
might in that regard be more faithful to the intent of the
people who drafted the statute.
Professor Harrison. Not only the people who drafted the
statute, but the Constitution. One thing I'd like to emphasize
is, the Constitution's formalities have to be complied with and
a request for legislation by the President is not a nomination.
It's not what the Constitution calls for here, even if in some
circumstances it's the equivalent of a nomination.
Nominations--and in fact, they normally get more scrutiny from
the President. One thing that the Chadha case--the case about
the legislative veto--stands for is the proposition that
formalities in the process of legislation, or here, nomination
and appointment, have to be complied with.
One of the questions in Chadha was whether the legislative
veto process, which involved a recommendation by the Attorney
General, and inaction by both the House and the Senate, was the
functional equivalent of legislation. Justice White said it was
a functional equivalent of the legislation, but he was
dissenting. The majority in Chadha said, I think correctly,
that the formalities are the formalities and it is necessary to
use them.
One reason to use the two-step process rather than treating
this as its equivalent is precisely that the two-step process
uses the formalities, whereas saying that this is the same
thing--this kind of legislation is the same thing as a
nomination belies the formalities and says, well, it's pretty
much the same. It's the functional equivalent. I think that's
not correct in principle. And again, Chadha, I think, stands
strongly for the proposition that it's not correct. I should
say I always hesitate greatly to disagree with Professor Van
Alstyne, who is one of the giants in our field.
Senator Sessions. Thank you, Mr. Chairman. I appreciate
that.
I would just say, Mr. Comey, that I share your respect for
Mr. Mueller. When I was in the Department of Justice, nearly 15
years, if you had taken a poll of the top three or four
prosecutors in America in terms of professionalism, experience,
judgment, and proven track record of important matters, and
then later as a supervisor and a leader, Bob Mueller would have
been one of the top. Wouldn't you agree?
Mr. Comey. Yes, sir.
Senator Sessions. I mean, he was universally recognized in
that way. He was appointed by President Clinton, I guess, to
the U.S. Attorney post in California.
Mr. Comey. San Francisco.
Senator Sessions. And he had been U.S. Attorney in----
Mr. Comey. Boston.
Senator Sessions. Boston.
Mr. Comey. Yes, sir.
Senator Sessions. And then held a high post in the
Department of Justice. But more than that, he tried a lot of
cases personally. I mean, he knows how you have to prepare a
case, present a case. He knows your integrity is on the line
every single day as a prosecutor. I've always felt that
President Obama--you know, I'm pleased that President Obama has
seen forward--seen fit to re-nominate him, and I hope we can do
that lawfully in a way that works. Perhaps it would work. I do
think there was some reason behind the limit and we ought not
to ignore that entirely.
So, thank you, Mr. Chairman.
Senator Blumenthal. Thank you, Senator Sessions. I share
your views about Director Mueller, and want to thank the panel
for being here today. We will stand adjourned. The record will
remain open for a week for any additional comments. Thank you
again for your very insightful, thoughtful, and valuable
comments.
We stand adjourned.
[Whereupon, at 11:43 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]