[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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                       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

                              ----------                              

                    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

                              ----------                              


                        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.]






                                 
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