[Senate Hearing 113-515, Part 3]
[From the U.S. Government Publishing Office]
S. Hrg. 113-515, Part 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
MAY 23, JUNE 11, and JUNE 19, 2013
----------
Serial No. J-113-1
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PART 3
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
S. Hrg. 113-515, Part 3
CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS
=======================================================================
HEARINGS
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
MAY 23, JUNE 11, and JUNE 19, 2013
__________
Serial No. J-113-1
__________
PART 3
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
24-005 PDF WASHINGTON : 2017
____________________________________________________________________
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Bruce A. Cohen, Chief Counsel and Staff Director \1\
Kristine Lucius, Chief Counsel and Staff Director \2\
Kolan Davis, Republican Chief Counsel and Staff Director
\1\ Retired on June 30, 2013.
\2\ Beginning July 1, 2013.
C O N T E N T S
----------
MAY 23, 2013, 10:27 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California
presenting Derek Anthony West, Nominee to be Associate Attorney
General........................................................ 1
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement........................................... 218
Schumer, Hon. Chuck, a U.S. Senator from the State of New York,
prepared statement........................................... 220
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 6
PRESENTER
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York presenting Derek Anthony West, Nominee to be Associate
Attorney General; Valerie E. Caproni, Nominee to be District
Judge for the Southern District of New York; and Vernon S.
Broderick, Nominee to be District Judge for the Southern
District of New York........................................... 3
prepared statement........................................... 328
STATEMENTS OF THE NOMINEES
Witness List..................................................... 27
Broderick, Vernon S., Nominee to be U.S. District Judge for the
Southern District of New York.................................. 20
biographical information..................................... 170
Caproni, Valerie E., Nominee to be U.S. District Judge for the
Southern District of New York.................................. 19
biographical information..................................... 101
renomination letter, January 3, 2013......................... 159
West, Derek Anthony, Nominee to be Associate Attorney General,
U.S.
Department of Justice.......................................... 6
biographical information..................................... 28
questionnaire update letter, March 20, 2013.................. 98
QUESTIONS
Questions submitted to Vernon S. Broderick by:
Senator Cruz................................................. 223
Senator Grassley............................................. 225
Questions submitted to Valerie E. Caproni by:
Senator Cruz................................................. 224
Senator Grassley............................................. 227
Questions submitted to Derek Anthony West by Senator Grassley.... 229
ANSWERS
Responses of Vernon S. Broderick to questions submitted by:
Senator Cruz................................................. 231
Senator Grassley............................................. 233
Responses of Valerie E. Caproni to questions submitted by:
Senator Cruz................................................. 237
Senator Grassley............................................. 240
Responses of Derek Anthony West to questions submitted by Senator
Grassley....................................................... 244
LETTER RECEIVED WITH REGARD TO VERNON S. BRODERICK
American Bar Association, April 16, 2013, letter................. 326
LETTERS RECEIVED WITH REGARD TO VALERIE E. CAPRONI
American Bar Association, November 15, 2012, letter.............. 321
Benczkowski, Brian A., et al., April 19, 2013, letter............ 323
LETTERS RECEIVED WITH REGARD TO DEREK ANTHONY WEST
Baltimore, MD, Police Department, May 15, 2013, letter........... 257
Bellows, Randy I., May 15, 2013, letter.......................... 261
Bratton Group LLC, The, May 14, 2013, letter..................... 253
California Police Chiefs Association, May 16, 2013, letter....... 273
City and County of San Francisco, CA, Police Department, May 15,
2013, letter................................................... 263
City of San Diego, CA, Office of the Chief of Police, May 20,
2013, letter................................................... 286
Congressional Black Caucus, May 20, 2013, letter................. 290
Fortuno, Hon. Luis G., former Governor, Puerto Rico, May 17,
2013, letter................................................... 279
Futures Without Violence, May 14, 2013, letter................... 255
Garcia-Padilla, Hon. Alejandro J., Governor, Puerto Rico, May 17,
2013, letter................................................... 281
Gorelick, Jamie S., May 16, 2013, letter......................... 267
International Association of Chiefs of Police, May 22, 2013,
letter......................................................... 311
Kris, David S., May 20, 2013, letter............................. 285
Leadership Conference on Civil and Human Rights, The, May 22,
2013, letter................................................... 299
Lee, Bill Lann, May 20, 2013, letter............................. 288
Los Angeles, CA, Police Department, May 15, 2013, letter......... 259
Los Gatos/Monte Sereno, CA, Police Department, May 16, 2013,
letter......................................................... 275
Melekian, Bernard K., May 21, 2013, letter....................... 297
National Association for the Advancement of Colored People
(NAACP), Washington Bureau, May 20, 2013, letter............... 292
National Association of Attorneys General, May 23, 2013, letter.. 312
National Center for Victims of Crime, May 21, 2013, letter....... 295
National Congress of American Indians, May 20, 2013, letter...... 284
National Council of La Raza (NCLR), May 24, 2013, letter......... 316
National Crime Prevention Counsel, May 14, 2013, letter.......... 251
National Organization of Black Law Enforcement Executives
(NOBLE),
May 17, 2013, letter........................................... 282
National Sheriffs' Association, May 16, 2013, letter............. 269
Parsons, Richard, May 16, 2013, letter........................... 271
Salazar, Hon. Kenneth L., former Secretary of the Interior, May
20, 2013, letter............................................... 293
Shurtleff, Mark L., May 22, 2013, letter......................... 305
Sierra Club, May 28, 2013, letter................................ 317
State Attorneys General, May 22, 2013, letter.................... 307
Taxpayers Against Fraud, May 28, 2013, letter.................... 319
United States Conference of Mayors, May 22, 2013, letter......... 301
Varney, Christine A., May 16, 2013, letter....................... 277
Wolf, Robert, May 15, 2013, letter............................... 265
Women in Federal Law Enforcement (WIFLE), May 22, 2013, letter... 303
MISCELLANEOUS SUBMISSION FOR THE RECORD
Boxer, Hon. Barbara, a U.S. Senator from the State of California,
prepared statement........................................... 331
C O N T E N T S
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JUNE 11, 2013, 9:33 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 336
prepared statement........................................... 474
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 333
Leahy, Hon. Patrick J. Leahy, a U.S. Senator from the State of
Vermont,
prepared statement........................................... 469
Lee, Hon. Michael S. Lee, a U.S. Senator from the State of Utah,
prepared statement........................................... 472
STATEMENTS OF THE NOMINEES
Witness List..................................................... 377
Delery, Stuart F., Nominee to be the Assistant Attorney General
for the Civil Division, U.S. Department of Justice............. 345
biographical information..................................... 428
prepared statement........................................... 485
Jones, B. Todd, Nominee to be Director of the Bureau of Alcohol,
Tobacco, Firearms and Explosives............................... 343
biographical information..................................... 378
prepared statement........................................... 481
QUESTIONS
Questions submitted to Stuart F. Delery by Senator Grassley...... 489
Questions submitted to B. Todd Jones by:
Senator Durbin............................................... 487
Senator Grassley............................................. 492
ANSWERS
Responses of Stuart F. Delery to questions submitted by Senator
Grassley....................................................... 508
Responses of B. Todd Jones to questions submitted by:............
Senator Durbin............................................... 522
Senator Grassley............................................. 527
attachment, response to Question 46.......................... 557
attachment, response to Question 48.......................... 558
LETTERS RECEIVED WITH REGARD TO STUART F. DELERY
Assistant Attorneys General for the Civil Division in the
Administrations of Presidents Ronald Reagan, George H.W. Bush,
William Clinton and George W. Bush, May 1, 2013, letter........ 636
Gorelick, Jamie S., former Deputy Attorney General, U.S.
Department of Justice, et al., May 13, 2013, letter............ 638
LETTERS RECEIVED WITH REGARD TO B. TODD JONES
Backstrom, James C., February 13, 2013, letter................... 659
Bailey, Gerald M., February 12, 2013, letter..................... 658
Barborini, Stephen J., February 9, 2013, letter.................. 656
Beaumaster, G. Paul, March 14, 2013, letter...................... 693
Boelter, Ralph, June 25, 2013, letter............................ 722
Campion, Michael, February 13, 2013, letter--Redacted............ 661
Choi, John J., April 4, 2013, letter............................. 696
Coffin, Tristram J., January 22, 2013, letter.................... 641
Durand, Al, March 6, 2013, letter--Redacted...................... 688
Ellison, Hon. Keith, a Representative in Congress from the State
of Minnesota, March 1, 2013, letter............................ 684
Fraternal Order of Police (FOP), May 31, 2013, letter............ 711
Green, Saul A., February 27, 2013, letter........................ 682
Heffelfinger, Thomas B., February 15, 2013, letter............... 667
Holton, Walter C., Jr., March 6, 2013, letter.................... 690
Humes, Joan D., February 6, 2013, letter--Redacted............... 653
International Association of Chiefs of Police, January 29, 2013,
letter......................................................... 643
James, Hon. Sylvester, Jr., Mayor, Kansas City, MO, February 20,
2013, letter................................................... 677
Jorgensen, George L., Major, Retired, United States Marine Corps,
February 19, 2013, letter...................................... 675
Khan, Asad, Lieutenant Colonel, Retired, United States Marine
Corps,
May 29, 2013, letter--Redacted................................. 707
Kingrey, John P., February 25, 2013, letter...................... 679
Kuca, Lisa A., May 31, 2013, letter--Redacted.................... 712
Lassar, Scott R., February 25, 2013, letter...................... 681
Mayors Against Illegal Guns, June 10, 2013, letter............... 718
Members of the Congress of the United States, February 6, 2013,
letter......................................................... 651
Men Against Destruction Defending Against Drugs and Social
disorder (MAD DADS), May 30, 2013, letter...................... 708
Murphy, Paul, February 4, 2013, letter--Redacted................. 644
Myhra, Mark A., February 14, 2013, letter--Redacted.............. 664
National District Attorneys Association, April 13, 2013, letter.. 698
National Organization of Black Law Enforcement Executives
(NOBLE),
June 11, 2013, letter.......................................... 720
O'Sullivan, Julie R., May 7, 2013, letter........................ 699
Pirotte, Steven, February 7, 2013, letter........................ 655
Presidentially Appointed United States Attorneys of the
Department of Justice, June 10, 2013, letter................... 714
Rossman, Richard A., March 8, 2013, letter--Redacted............. 691
Rubin, Mark S., February 15, 2013, letter........................ 673
Satorius, John A., March 5, 2013, letter......................... 686
Short, Brian P., May 10, 2013, letter............................ 703
Small, Robert M., February 5, 2013, letter--Redacted............. 649
Sorenson, Arne M., February 13, 2013, letter..................... 663
Zealey, Sharon J., March 19, 2013, letter........................ 695
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Bennet, Hon. Michael F., a U.S. Senator from the State of
Colorado,
prepared statement........................................... 821
Hill, Beth, January 23, 2013, letter............................. 723
Lerner, Carolyn N., U.S. Office of Special Counsel, June 10,
2013, letter................................................... 724
Politico, ``Empower ATF to fight crime,'' David Chipman, former
ATF special agent, June 10, 2013, article...................... 819
Violent Crime Rate by State, 1991-2011, graph.................... 822
C O N T E N T S
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JUNE 19, 2013, 2:59 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 823
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 826
STATEMENTS OF THE NOMINEES
Witness List..................................................... 841
Bruce, Colin Stirling, Nominee to be U.S. District Judge for the
Central District of Illinois................................... 833
biographical information..................................... 872
Ellis, Sara Lee, Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 832
biographical information..................................... 903
Haikala, Madeline Hughes, Nominee to be U.S. District Judge for
the Northern District of Alabama............................... 831
biographical information..................................... 977
Hughes, Todd M., Nominee to be U.S. Circuit Judge for the Federal
Circuit........................................................ 827
biographical information..................................... 842
Wood, Andrea R., Nominee to be U.S. District Judge for the
Northern District of Illinois.................................. 832
biographical information..................................... 933
QUESTIONS
Questions submitted to all Nominees by Senator Cruz.............. 1026
Questions submitted to Colin Stirling Bruce by:
Senator Grassley............................................. 1027
Senator Klobuchar............................................ 1040
Questions submitted to Sara Lee Ellis by:
Senator Grassley............................................. 1029
Senator Klobuchar............................................ 1041
Questions submitted to Madeline Hughes Haikala by:
Senator Grassley............................................. 1031
Senator Klobuchar............................................ 1042
Questions submitted to Todd M. Hughes by:
Senator Grassley............................................. 1033
Senator Klobuchar............................................ 1043
Questions submitted to Andrea R. Wood by:
Senator Grassley............................................. 1038
Senator Klobuchar............................................ 1044
ANSWERS
Questions submitted to Colin Stirling Bruce by:
Senator Cruz................................................. 1062
Senator Grassley............................................. 1064
Senator Klobuchar............................................ 1068
Responses of Sara Lee Ellis to questions submitted by:
Senator Cruz................................................. 1069
Senator Grassley............................................. 1071
Senator Klobuchar............................................ 1075
Responses of Madeline Hughes Haikala to questions submitted by:
Senator Cruz................................................. 1084
Senator Grassley............................................. 1087
Senator Klobuchar............................................ 1090
Responses of Todd M. Hughes to questions submitted by:
Senator Cruz................................................. 1045
Senator Grassley............................................. 1048
Senator Klobuchar............................................ 1061
Responses of Andrea R. Wood to questions submitted by:
Senator Cruz................................................. 1076
Senator Grassley............................................. 1079
Senator Klobuchar............................................ 1083
LETTER RECEIVED WITH REGARD TO COLIN STIRLING BRUCE
American Bar Association, May 7, 2013, letter.................... 1094
LETTER RECEIVED WITH REGARD TO SARA LEE ELLIS
American Bar Association, May 7, 2013, letter.................... 1096
LETTER RECEIVED WITH REGARD TO MADELINE HUGHES HAIKALA
American Bar Association, May 14, 2013, letter................... 1100
LETTERS RECEIVED WITH REGARD TO TODD M. HUGHES
American Bar Association, February 11, 2013, letter.............. 1091
Federal Circuit Bar Association, June 13, 2013, letter........... 1093
LETTER RECEIVED WITH REGARD TO ANDREA R. WOOD
American Bar Association, May 7, 2013, letter.................... 1098
NOMINATIONS OF DEREK ANTHONY WEST, NOMINEE TO BE ASSOCIATE ATTORNEY
GENERAL; VALERIE E. CAPRONI, NOMINEE TO BE DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF NEW YORK; AND VERNON S. BRODERICK, NOMINEE TO BE
DISTRICT JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK
----------
THURSDAY, MAY 23, 2013
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to other business, at 10:27
a.m., in Room SD-226, Dirksen Senate Office Building, Hon.
Sheldon Whitehouse, presiding.
Present: Senators Whitehouse, Feinstein, Klobuchar,
Franken, Blumenthal, and Grassley.
Senator Whitehouse. The hearing will come back to order.
Let me, first of all, welcome everybody and, second, describe
how we are going to proceed.
The first thing that we are going to do is let the
distinguished Senator from California, Senator Feinstein,
introduce Tony West. And when her introduction is complete, we
will take a brief recess so that folks can go over and vote. I
understand that there is an amendment that will be voted on at
10:30 on the farm bill, and then I will return as quickly as I
possibly can, and we will go on with the rest of the
proceedings, including the testimony of Tony West and of the
two judicial candidates.
So what I would do right now is yield to Senator Feinstein.
PRESENTATION OF DEREK ANTHONY WEST, NOMINEE TO
BE ASSOCIATE ATTORNEY GENERAL, BY HON. DIANNE
FEINSTEIN, A U.S. SENATOR FROM THE STATE OF
CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. I
would like to say a few words to offer my strong support to a
native Californian, Tony West, to be Associate Attorney General
of the United States. As a matter of fact, I saw his sister-in-
law come in the room, and she is the State Attorney General of
California, Kamala Harris, and I would very much like to
welcome her to these hearings. I do not see her at the moment.
If she would stand, we will give her a round of applause.
[Applause.]
Senator Feinstein. The role of the Associate Attorney
General, the third highest ranking position at the Department,
is to help lead the Justice Department and to oversee the
Department's civil units, such as the Civil Division, Antitrust
Division, and Tax Division, as well as the Office of Justice
Programs, which works in partnership with State and local law
enforcement. They provide grants for crime-fighting strategies
to our States, cities, and neighborhoods.
Mr. West is well qualified for this position, having served
for over 4 years in the Justice Department's leadership. He has
served for over a year as Acting Associate Attorney General. He
served for 3 years as Assistant Attorney General of the Civil
Division. Now, that is a position to which he was confirmed
without controversy after unanimous approval in this Committee.
So I am confident that he will do an outstanding job as
Associate Attorney General, and he has my strong support.
He was born in California. He earned his B.A. from Harvard
in 1987. He was the publisher of the Harvard Political Review.
He earned his J.D. from Stanford Law School in 1992 where he
was elected president of the Stanford Law Review.
From 1993 to 1994, he served as Special Assistant to
Deputies Attorney General Phil Heymann and Jamie Gorelick,
working on the 1994 omnibus crime bill, which I was proud to
support.
In 1994, he returned home to California where he spent 5
years as an Assistant United States Attorney. He prosecuted a
variety of offenses, including high-tech crimes, bank
robberies, fraud schemes, and sexual exploitation offenses. I
would like to just speak about one and put some others in the
record.
He successfully prosecuted members of an international
child molestation ring called ``the Orchid Club.'' An article
from 1996 points out that this club's members shared homemade
pictures, recounted their sexual experiences with children, and
even chatted electronically as two of the men molested a 10-
year-old girl. West was the sole prosecutor in the case. In
cooperation with the FBI and the Customs Service, he put the
evidence together to make the case against those who committed
these disgusting acts. There were 16 defendants, and all of
them were convicted.
From 1999 to 2001, he served as a Special Assistant
Attorney General for the State of California. In that role, he
worked with Attorney General Bill Lockyer on high-tech,
antitrust, and identity theft issues.
In 2009, he was appointed by President Obama and confirmed
by the Senate to lead the Civil Division of the Justice
Department. In this capacity, he has served with distinction in
a number of critical areas, including national security.
For example, he supervised the Government's trial and
appellate court litigation with respect to more than 150 habeas
corpus petitions filed by detainees at Guantanamo Bay,
personally arguing the Government's position in two very
important detainee cases in the D.C. Circuit Court of Appeals.
His career has earned him the strong support of law
enforcement, particularly in our shared State of California.
San Francisco Police Chief Greg Suhr notes that he has known
Mr. West personally and professionally for many years, and that
he has a deep personal commitment to public safety and
excellence in law enforcement.
L.A. Police Chief Charlie Beck echoes Chief Suhr's
endorsement, noting that Mr. West served in the trenches with
local police officers and Federal agents, prosecuting drug
traffickers and violent criminals. Chief Beck also notes that
Mr. West is a passionate advocate for law enforcement, pointing
to his efforts at the Justice Department to hold companies
accountable for knowingly manufacturing and selling defective
bulletproof vests that put the lives of our men and women in
law enforcement at risk.
And it goes on and on. Bill Bratton has good things to say.
To me, that just about sums it up.
Tony West is a distinguished, accomplished lawyer and law
enforcement official with a strong commitment to public safety
and extensive leadership experience at the Justice Department.
He is eminently qualified to serve as Associate Attorney
General of the United States, and he has my strong support. I
urge my colleagues to support him as well.
I thank you for this privilege, Mr. Chairman, for making
these remarks up front.
Senator Whitehouse. I thank Senator Feinstein for her kind
remarks. There is no one on this Committee who has more respect
from her colleagues than you, Senator, and I know your remarks
will be important in these deliberations.
Senator Feinstein. Thank you.
Senator Whitehouse. We do have a vote, and so consistent
with what I mentioned, I will put the Committee into recess for
a few minutes while we all go over and vote. And then we will
proceed upon our return. My apologies to those who will have to
wait a few moments, but that is the nature of the beast here in
the Senate.
We are in recess.
[Whereupon, at 10:35 a.m., the hearing was recessed.]
[Whereupon, at 10:51 a.m., the Committee reconvened.]
Senator Whitehouse. The hearing will come back to order. I
want to welcome my colleague, the distinguished Senator from
New York, Kirsten Gillibrand, who wishes to make an
introduction, and you have the floor, Senator.
PRESENTATION OF VALERIE E. CAPRONI, NOMINEE TO BE DISTRICT
JUDGE FOR THE SOUTHERN DISTRICT OF NEW YORK, VERNON S.
BRODERICK, NOMINEE TO BE DISTRICT JUDGE FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND DEREK ANTHONY WEST, NOMINEE TO BE
ASSOCIATE
ATTORNEY GENERAL, BY HON. KIRSTEN E. GILLIBRAND,
A U.S. SENATOR FROM THE STATE OF NEW YORK
Senator Gillibrand. Thank you, Mr. Chairman, and thank you,
Mr. Ranking Member and colleagues. I appreciate you being here.
I am here to introduce Valerie Caproni and offer my strong
support for her nomination to the United States District Court
for the Southern District of New York. I also want to recognize
her sister who has joined us today.
I want to thank President Obama for acting on my
recommendation and nominating another superbly qualified female
jurist to the Federal bench.
I also want to congratulate the other outstanding nominees,
Derek Anthony West, who has been nominated to serve as the
Associate Attorney General of the United States. As Acting
Associate Attorney General, Tony West has proven to be
extremely effective as he has served the Office of the Attorney
General.
And fellow New Yorker, Vernon S. Broderick, who is also
being nominated to serve as United States District Judge for
the Southern District of New York. Senator Schumer was supposed
to be here to do that full introduction, which will be
submitted for the record, but he is dealing with immigration-
related business.
I know Ms. Caproni to be a woman with impeccable
credentials, incredible intellect, and the kind of fair-minded
judgment that we need on the Federal bench. Ms. Caproni serves
today as vice president and general counsel for Northrop
Grumman Corporation where she leads all aspects of litigation
and internal investigations.
Ms. Caproni joined Northrop Grumman from her former
position as general counsel for the FBI, a position that FBI
Director Robert Mueller personally asked Ms. Caproni to serve
in the wake of the horrific attacks of September 11th.
Ms. Caproni knows full well the task at hand for the FBI is
never easy, from protecting America from terror and other
attacks, balanced with defending our civil liberties and our
civil rights. But as she has put it, they always try to do the
right thing and to maintain as a lodestar fealty to the
Constitution and the rule of law. That is what Ms. Caproni
believes to her very core.
Ms. Caproni also served as director of the Pacific Regional
Office of the Securities and Exchange Commission where she
enforced regulatory programs in the nine-State region. She and
her staff strengthened cooperation between the SEC and the U.S.
Attorney's Office to crack down on financial fraud.
Ms. Caproni also served as the chief of the Criminal
Division in the United States Attorney's Office for the Eastern
District of New York and in private practice at many top firms.
Through her breadth of experience, her talent and
intellect, and her character, I know Ms. Caproni will be an
outstanding jurist. I strongly believe this country needs more
women like her serving in the Federal judiciary, an institution
I believe needs more exceptional women.
Over the last several years, the number of women in the
Federal judiciary has stagnated, hovering at roughly 500, less
than a third of the Federal bench. While it is true that women
have come a long way in filling the ranks of the legal world,
we still have a long way to go to achieve full equality.
I have no doubt that having Ms. Caproni serving in the
Federal judiciary will bring us all closer to that goal. I was
honored to recommend her for this position, and I urge swift
approval of her nomination.
Thank you, Mr. Chairman. Thank you, Mr. Ranking Member.
[The prepared statement of Senator Gillibrand appears as a
submission for the record.]
Senator Whitehouse. Thank you very much, Senator
Gillibrand. I appreciate how busy you are, and the time you
have taken out to come here and introduce Ms. Caproni is very
helpful to the Committee. I know you have other business to get
to, so please feel free to go on.
It is now my distinct pleasure to have the opportunity to
channel Chuck Schumer for all of you, who could not be here. As
Senator Gillibrand said, he is tied up in the immigration bill
that passed out of the Judiciary Committee this week, and he is
working to get it prepared for, I hope, strong bipartisan
passage on the floor. But were he here, he would say that he
was extremely pleased to introduce Vernon S. Broderick to this
Committee.
While Mr. Broderick's accomplishments and distinguished
record would lend themselves to a very lengthy introduction, he
would keep his remarks brief. Really.
Mr. Broderick has stellar credentials: a B.A. from Yale,
J.D. from Harvard, 8 years in the United States Attorney's
Office, and now a partner at the distinguished firm of Weil,
Gotshal and Manges. Mr. Broderick has demonstrated his ability
to understand the breadth and depth of important legal issues.
His practice spans both civil and criminal matters. And while
he spent many years as a prosecutor, he has also taken an
active role in the criminal defense bar and served on the New
York Commission of Public Integrity and the Commission to
Combat Police Corruption.
On top of that, Senator Schumer would think it particularly
worth noting that Mr. Broderick devotes substantial amounts of
his time to giving back to the community. He is actively
involved in pro bono work and serves on the board of various
organizations dedicated to the improvement of the legal
profession.
Finally, Senator Schumer would express his extreme pride
that Mr. Broderick would be the first Dominican American
Federal judge on the New York bench. In sum, Mr. Broderick's
excellent legal background and professional experience, strong
ties to New York, intellect, and demonstrated leadership skills
make him an excellent choice for the District Court for the
Southern District of New York.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
How did I do?
[Laughter.]
Senator Whitehouse. Chuck would have done it better, but I
filled in as best I could.
So at this point, let me ask Mr. West to come forward and
let me officially welcome him as the Chairman. I have a
statement for the record from Senator Boxer on behalf of Mr.
West, and let me, without objection, add that to the record.
[The prepared statement of Senator Boxer appears as a
submission for the record.]
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. And let me welcome Mr. West. The
position of Associate Attorney General, as those of us know who
have served in the Department of Justice, is a critical one
with great responsibility. Confirming an outstanding nominee
like Mr. West to that position as quickly as possible will help
ensure the smooth running of the Department. Mr. West brings
exemplary credentials to this, and I look forward to what I
hope is a smooth, swift, and uneventful confirmation process.
And without further ado, let me turn to the distinguished
Ranking Member of the Judiciary Committee, Senator Grassley.
Senator Grassley. I do not have an opening statement.
Senator Whitehouse. All right. Things are looking smooth
already.
Mr. West, I am sure you have friends and family here who
you would like to take this opportunity to introduce, and I am
sure you have a statement as well. So I invite you to proceed,
and I welcome you to the Committee.
STATEMENT OF DEREK ANTHONY WEST,
NOMINEE TO BE ASSOCIATE ATTORNEY GENERAL
Mr. West. Thank you so much, Mr. Chairman and Mr. Ranking
Member. Thank you for having me this morning, and also let me
just express my gratitude to Senator Feinstein for her
introduction and her support.
There is no higher honor than being able to represent your
fellow citizens, and so I am quite honored to be here today
with you. And, yes, I do have many family members I would like
to introduce to you who have come this morning because the
simple fact is that, but for God's grace and their love and
support, I simply would not be sitting in this chair.
So, first, Mr. Chairman, if I could introduce my law school
classmate, my best friend, and the love of my life, my wife,
Maya Harris. Maya is an extraordinary woman of accomplishment,
in the law, in philanthropy, in public policy. As much as she
has been my partner in life, she has been my teacher, and every
day she is in my life is a blessing.
Our daughter in red, Meena, of whom we are ridiculously but
deservedly proud, I think. She graduated from Harvard Law
School just this last spring, and she is now clerking for the
D.C. Court of Appeals.
And next to Meena is my sister-in-law, Kamala, who was
introduced a little bit earlier. Kamala sets a remarkably high
standard for effective, admirable public service, and her
support and love has been unwavering, and I am deeply grateful
that she is here with us today.
Also with us is my aunt, Portia, who I am so glad that she
could make it. She flew--I think she came right from the
airport to be here with us this morning, and her love and
support is something that enriches my life, and I am so
grateful that she is here.
And then last, but not least, is my mother, who is seated
right behind me in blue. She--Peggy----
Senator Whitehouse. The one with the enormous smile, is
that----
Mr. West. An enormous smile. Her example of strength, of
courage, of compassion, and integrity is just something I try
to--I strive to emulate in my life every day, and so I am just
so grateful she could be here with us this morning.
There are four people who are not with us that I would
briefly like to introduce, Mr. Chairman: my two younger
sisters, Pamela and Patricia, whose love keeps me grounded as
only siblings can; my mother-in-law, Dr. Shyamala Harris, is a
brilliant cancer scientist who passed away several weeks before
my last confirmation hearing and whose spirit I have carried
with me every day since; and my father, who lost his own
courageous battle with cancer just 8 weeks ago.
Mr. Chairman, my father was born dirt poor to a family of
sharecroppers in the segregated Deep South. The first in his
family to attend college, he instilled in me, his only son, a
deep love for this country, an abiding faith in her virtues and
values, and a unbridled optimism in her possibilities. And his
presence certainly fills my heart today.
Mr. Chairman, if confirmed, I want to assure you that I
will continue to work tirelessly on behalf of the Department's
singular mission to pursue justice on behalf of the American
people. I will always strive to ensure that the Department's
work is characterized by professionalism, independence,
fairness, and nonpartisanship, whether it is through our
efforts to protect our national security or recover taxpayer
dollars lost to fraud, waste, and abuse, or to fairly and
effectively enforce our civil rights laws. And if confirmed,
Mr. Chairman, I will continue to seek opportunities to build on
my working relationship with this Committee and with others in
Congress.
I want to thank you again for this opportunity and for
considering my nomination. I want to also thank the President
for his confidence and the Attorney General for his confidence
in me and nominating me to this position.
[The biographical information of Mr. West appears as a
submission for the record.]
Senator Whitehouse. Thank you, Mr. West, and let me just
take this opportunity, in addition to expressing my
appreciation for you being here and for your exemplary public
service, to express the great pride and satisfaction that I
feel as a former United States Attorney in the manner in which
Attorney General Holder is conducting his duties and has
directed that Department. I think very, very highly of him, and
I have two questions that I will ask of you, and then turn to
the Ranking Member, and then to Senator Franken.
America has been described by a number of people as being
on the losing end of the biggest transfer of wealth in the
history of humankind through the cyber attacks that penetrate
our private sector corporations and steal wholesale by the
terabyte their intellectual property.
Part of the problem with the cyber situation is that
botnets swarm over the Internet. Botnets are groups of
computers that have been put under the control of another
computer, and unbeknownst to their user, they can be slaved and
used to attack private corporations, used as vehicles for cyber
attacks and so forth. And the Department pulled together a very
able group, and they took a very important civil action against
the Coreflood, so-called, botnet, and as a result, they took it
down.
After that, the participants in the Coreflood operation
went back to their individual offices from whence they had
come, and the team was disbanded, and I understand that there
have been sporadic efforts at botnets in individual U.S.
Attorney's Offices, but I want your pledge that, if confirmed,
you will sit down with me and any other interested Members of
this Committee to discuss how to improve the Department's
enforcement through civil means of ridding the Internet of
these botnets and using the various hygienic measures to try to
clear that out that are available.
Mr. West. Mr. Chairman, you have that pledge. This is a top
priority for the Department, dealing with the cyber threat, and
although much of how we deal with that threat does not fall
within my direct management responsibilities, I will certainly
be glad to work with you and anyone else on this Committee as
we look at different approaches on how best to meet that
threat.
We have been taking some steps that I know you are aware
of, whether it is the cyber specialist network and trying to
pull together prosecutors and agents and investigators who are
dedicated to dealing with this threat; whether it is the
enhanced coordination by the FBI and other investigators with
local and State law enforcement. But as you point out, this is
a threat that does not rest, and it is one that requires our
continued vigilance, and I look forward to working with you and
others on that.
Senator Whitehouse. The second question has to do with the
relationship between the Tax Division and the IRS. Now, I have
had a hearing that I think has highlighted my concern that
there are violations of fairly simple laws, like 18 U.S. Code
1001, the false statements law, which are, I think to use the
Department witness' testimony--I forget whether she said
``plain vanilla'' or ``bread and butter'' traditional criminal
prosecutions that are, I would describe as ``open and
notorious'' at this point and on which the Department has taken
no action because of an agreement with the IRS that it will not
take action in these matters until there has been a referral by
the IRS. And I would like to ask your commitment that, again,
with me and any other Members of the Committee who might be
interested in that issue, if confirmed, you will come and
discuss what would be the appropriate resolution there.
Mr. West. Again, I would be happy to have the opportunity
to talk with you about that. I want to be careful not to wander
too far outside of my lane because the Criminal Division is one
of those divisions which is not under the direct management
responsibility of the Associate's office. It falls under the
purview of the Deputy Attorney General. But having said that,
there is also, as the Attorney General has acknowledged, an
active inquiry into the IRS. But having said that, you have my
commitment that I would be happy to talk with you about these
and other issues.
Senator Whitehouse. And as I turn to the distinguished
Ranking Member, he kindly reminded me that I had omitted to
swear you in.
[Laughter.]
Senator Whitehouse. I think as a matter of law any witness
who is testifying before Congress is deemed to be sworn, and I
just want to clarify our understanding that your testimony
today is as if under oath and that the testimony you give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God.
Mr. West. I do. I had assumed as much.
Senator Whitehouse. Yes, thank you.
Senator Grassley. Now, that may sound like I did not
believe you were----
[Laughter.]
Mr. West. No, not at all, Senator.
Senator Grassley. For procedure, since I may be the only
one of my caucus that is here, I will have a lot of questions.
So if I would be holding up him in order to take a lot of time
for my questions, I would like to have Senator--so I do not
hold up the Senator from Minnesota.
Senator Franken. Well, thanks. I will take----
Senator Grassley. Would you like to go ahead?
Senator Franken. Yes. Thank you.
Senator Grassley. Please do.
Senator Whitehouse. Then I recognize the Senator from
Minnesota and thank the Ranking Member for his courtesy.
Senator Franken. Yes, I would like to thank the Ranking
Member.
Mr. West, when we met in my office, we talked a little bit
about the DOJ's case against S&P, against Standard & Poor's,
and this has been something I have been following because for
the last 3 years I have been looking for a way to reform our
credit rating agency--the process by which our credit rating
agencies now and have been chosen by the issuers of these
structured financial products. The banks will pick their own
credit rating agency to do it and give them a handsome fee, and
the credit rating agencies know that if they do not give AAA to
a product, they will lose the business for the next gig. And
your whole case against--what was your capacity in the DOJ case
against S&P?
Mr. West. Well, Senator, when I was the head of the Civil
Division, I pulled together the team to investigate that case
and to put it together, and as Acting Associate Attorney
General, I was able to approve it going forward with the
authority and concurrence of the Attorney General and the
Deputy Attorney General. But that is a case that I am very
proud of and believe very strongly in.
Senator Franken. Okay. Now, Senator Wicker and I are trying
to fix the system. We believe that the issuer-pays model in no
small way led to the entire collapse of the financial--the
meltdown of the financial system because AAA ratings were given
to these subprime mortgage-backed securities, and then to
collateralize debt obligations on those, and once they ran out
of subprime debt--mortgages to securitize, they then did bets
on the bets, and bets on the bets, and bets on the bets.
You gave a speech a couple months ago about this issue, and
I thought you got it exactly right. Here is what you said:
``Repeatedly S&P promised that its ratings would be objective
and independent even though the banks and other institutions
hired S&P to rate these financial products. And even though S&P
earned millions as a result of issuing those ratings, S&P
promised that its rating would be unaffected by their concerns
about market share, revenue, or profits. But the evidence we
have uncovered tells a different story.''
Could you tell us that story?
Mr. West. Well, briefly, Senator, we believe that and we
have stated in our complaint that S&P purported to make ratings
on products that were independent and objective, that those
were ratings that were unaffected by their concerns about
market share, about profit, about any fees they may actually be
receiving. And we believe that the evidence will demonstrate,
as we pursue this case, that that simply was not the case; that
business concerns, concerns about market share, concerns about
profit did affect the type of ratings that S&P issued. We
believe they simply said one thing and did another. And we
believe strongly in that case, and the recent motion to dismiss
that was filed by S&P does not lead us to conclude any
differently.
Senator Franken. As a matter of fact, in that filing they
cited an earlier case in which a judge said that their claims
to be independent and objective were mere commercial puffery
and, therefore, they could not be sued for fraud because they
would only be fraudulent if that claim of--if it had not been
so--they could only be sued for fraud if you could take that at
face value their claims of being independent and objective, and
everyone knew--this is what the judges said--that that was just
mere puffery.
Do you believe there is a need to reform the way the rating
agencies are done, the way they are chosen?
Mr. West. Well, I certainly think there is a need for
accountability, and that is the purpose that we spent so much
time investigating this case and ultimately bringing this case
against S&P. We believe that accountability here is extremely
important, and we believe, as we have stated in our complaint,
that the type of activity that we have outlined is activity
that helped contribute to one of the largest financial
calamities in the history of the country.
And so, you know, I leave it to policymakers and others to
determine what reforms, if any, are necessary. But certainly,
you know, as an official of the Department of Justice charged
with enforcing the law, we believe that accountability is
appropriate here.
Senator Franken. Well, I believe accountability is
appropriate. I also believe that we need to change the model by
which the credit rating agency is chosen by the issuer of the
product and also paid by them. And I think that creates a
pretty clear inherent conflict of interest, and that needs to
be changed. Thank you for your work on that.
Thank you, Mr. Chairman. I thank the Ranking Member, and
the Ranking Member and Senator Whitehouse both voted with
Senator Wicker and me on our fix on that, which is to change
the issuer-pays model, and I would like to thank them both.
Thank you, Mr. West.
Mr. West. Thank you, Senator.
Senator Whitehouse. I recognize our Ranking Member.
Senator Grassley. Mr. Chairman, I will proceed as if there
is one round, but if you want to interrupt me for another round
for you after a while, I understand.
I have no questions about your qualifications, so my goal
is to get some things on the record here. I want to question
you about your involvement with the Justice Department quid pro
quo/city of St. Paul. The Department declined to interview in
two false claims qui tam cases in exchange for the city of St.
Paul withdrawing a case pending before the Supreme Court. In a
transcribed interview with my staff and staff from the House
Judiciary and Oversight Committees, you testified about this.
You testified that, as Assistant Attorney General for the Civil
Division at the time, you had no personal role in making that
arrangement. But you also told us that the law specifically
authorizes the Assistant Attorney General for the Civil
Division to make the final decision whether or not to intervene
or decline qui tam cases. You also testified that you did not
delegate this power in the St. Paul case. I read this as being
somewhat contradictory.
The Assistant Attorney General for the Civil Rights
Division, Mr. Perez, also testified and stated that he traveled
to St. Paul February 2012 and personally made the arrangement
to decline the two False Claims Act cases in exchange for the
city withdrawing the Supreme Court case. So these are
questions--I think I will ask three questions in one because
they kind of go together.
Given the law requires you to sign off on these matters,
why was Mr. Perez in St. Paul settling two False Claims Act
cases instead of you? So that would also bring up the question:
Did you delegate your authority to Mr. Perez to make this
arrangement in your place? Or were you completely uninformed
about that happening?
Mr. West. Well, Mr. Ranking Member, thank you very much for
the opportunity to talk about this case. It is a very important
case, and giving me the opportunity to talk about why I am
comfortable with the fact that considering the advice that I
received from senior career attorneys in the Department of
Justice considering the variety of factors, including the fact
that the client agency did not support intervention in this
case, I appreciate the opportunity to explain why I believe the
decision I made in that case was in the best interests of the
United States.
One of the things--I think it is an important backdrop. One
of the things I am most proud of is, of the 3\1/2\ years I led
the Civil Division, our ability using the tools that you gave
us in the qui tam provisions as part of the False Claims Act to
recover more taxpayer dollars lost to fraud than in any other
3\1/2\-year period in the history of our country, over $11
billion. And we were able to do that, again, because of your
leadership in giving us those tools that allowed us to be
aggressive against fraud, waste, and abuse. And the fact is
that whistleblowers have a friend in this Justice Department.
When you look at the number of whistleblower suits that
were filed under my leadership in the Civil Division, it went
up by 50 percent, and that is because whistleblowers believe
that they will be fairly heard by this Justice Department.
Now, of course, not every whistleblower suit is as strong
as the next, and this is a case--the Newell case and the Ellis
cases were cases that from the very first time I heard about
that from career attorneys in the Justice Department, they were
described as ``close cases,'' and ultimately the most senior
career Justice Department attorney in the Civil Division, who
has decades of experience in False Claims Act litigation, he
described it as a ``weak case'' and recommended against
intervention. And so following the normal process that I
normally follow when I was in the Civil Division, taking the
advice of senior career attorneys, considering all of the
various factors, including the fact that HUD, the client agency
we would represent, did not support intervention in this case,
and considering, you know, a variety of issues, I ultimately
determined that intervention was not in the best interests of
the United States.
And so that decision was mine. It was the Civil Division's.
It was not delegated to anyone else. And so as far as that is
concerned, that was my decision, and it is one that I think was
the right one.
Senator Grassley. I think you answered the first questions
I asked except can you answer the one of--let me start over
again. Make clear to me then why Mr. Perez went to St. Paul
instead of you on February--or whenever he went up there to
deal with the people in St. Paul. Can you answer that for me?
Mr. West. Certainly, yes--well, generally, because I am not
as clear on the dates when he may or may not have gone. But
generally the reason Assistant Attorney General Perez was even
involved in this is because he was trying to resolve a case in
the Civil Rights Division called Magner. When he met with the
city, my understanding is that the city linked these two cases
together, asked that there be a resolution----
Senator Grassley. I think I can save some time here.
Mr. West. Okay.
Senator Grassley. I think you answered that question.
Now, you did give me some answers that in just a minute I
am going to raise some questions about the accuracy of what you
said.
Mr. West. Sure.
Senator Grassley. Initially career attorneys at HUD and in
the Minnesota U.S. Attorney's Office and the Civil Division
recommended the Department intervene in the case, although I
want to emphasize those are career attorneys. After Mr. Perez
became involved with HUD and the Civil Division, that
recommendation changed. In fact, Mr. Perez informed you that
HUD had changed positions, and that informed you in an email on
November 30, 2011.
Question: Did you find it odd that Mr. Perez seemed to know
more about a case pending in the Civil Division than you did?
Mr. West. Well, I do not think I ever had the impression
Mr. Perez knew more about a Civil Division case than I did. I
can tell you that the only recommendation I received--I
subsequently learned more about this case in preparation for
the interview I had with your staff. But at the time, the only
recommendation I received from career Justice Department
attorneys--and not just any career, the most senior career
Justice Department attorneys in the Civil Division with the
most experience in False Claims Act litigation. The only
recommendation I received from them was not to intervene, and I
agreed with that recommendation because in the words of one of
them, this was a weak case.
Senator Grassley. Okay. The email I was referring to, ``I
am confident that the position has changed. You will be hearing
from Helen today,'' that is the email I was referring to.
Mr. West. And I think I know what email you are talking
about. I think, if memory serves, that is an email exchange I
had with Mr. Perez--not so much about the merits of the qui tam
case but whether or not the client agency, HUD, was--what their
position was in that case. And it turned out that I was under
the impression that they may be supporting intervention, and it
was his impression that they were not.
Senator Grassley. Okay. Now, this is where I want to
challenge you on this business of whether it was a close call
or not. You testified that Mike Hertz, the highest ranking
career attorney in the Civil Division, was initially on the
fence about this case, calling it a ``close call.'' You then
testified he later said it was a weak case.
Now, we have documents that show that Mr. Hertz thought the
quid pro quo arrangement ``looks like buying off St. Paul.''
Mr. Hertz also had concerns and went directly to the Office of
Associate Attorney General expressing concerns about the
arrangements to then-Associate Attorney General Perrelli's
Principal Deputy.
Did Mr. Hertz express these same concerns to you?
Mr. West. Not in the way that you have just relayed them.
The concerns that--or the sentiments that Mr. Hertz--that I
recall Mr. Hertz expressing to me were the first time he
mentioned this case to me--and by ``this case,'' I mean the
Newell case--he said, you know, I think this is a close call. I
want the other career attorneys, the more junior career
attorneys on his team to do more work.
The more he learned about that case, the more concern he
expressed about its viability, because, you know, one of the
things we have to remember is that we intervene in only about
25 percent of the cases that are brought to us. The vast
majority of cases we do not intervene in. I think one of the
reasons we have been so successful in using our False Claims
Act tools is because we are choosy. We go with cases where
there is evidence to support the allegations.
And the more he learned about this case, the less sanguine
he felt about it. Ultimately what he told me is that, in his
view, this was a weak case that did not merit intervention.
Senator Grassley. In regard to this--and this is my last
question on this point, and then I want to talk to you about
whistleblower protection. The extent to which he talked to you
or not, we do know that Mr. Hertz went directly to the
Associate Attorney General, and not you. Was it because he
thought you were complicit with Mr. Perez in cutting a bad
deal?
Mr. West. I cannot speak to what Mike Hertz's state of mind
might have been. I can tell you that what you have just
relayed, those concerns or those sentiments were never
expressed to me by Mike Hertz. Mike--you know, the thing about
Mike--and I know you knew him, Senator. Mike had no compunction
with letting people know where he stood on any issue. And I got
to tell you, if he had a problem with the case--because there
were plenty that he would tell me, ``I got a problem with this
case or arrangement,'' he would let me know. And he never let
me know that.
Senator Grassley. Let us move on. When you were nominated
for Assistant Attorney General, Civil Division, in 2009, I
asked you about your commitment to whistleblowers. Specifically
I asked you if you would vigorously enforce the laws that
protect qui tame relators' false claims. You promised me and
pledged to Congress that you would work to protect
whistleblowers.
In the St. Paul quid pro quo case, we have Fredrick Newell,
the relator. He testified to the House a few weeks ago that he
was hung out to dry by the Justice Department's Civil Division.
So in declining to intervene in the case described by the
Civil Division career lawyers as ``a particularly egregious
example'' of fraud in exchange for the city dropping the Magner
case, would you say that you vigorously protected Mr. Newell's
interests?
Mr. West. I would say, Senator, that if you just look at
the facts and the numbers, I think it demonstrates that we
vigorously represent whistleblower interests in those cases
that we choose to get involved in. I mean----
Senator Grassley. Let me move on.
Mr. West. Sure.
Senator Grassley. Okay. I want to go to some questions
about possible conflicts between Civil Rights and the Civil
Division. If you are confirmed for the position of Associate
Attorney General, you will oversee both Civil Rights and Civil
Divisions within the Justice Department. In the St. Paul quid
pro quo case, you surrendered your authority over false claims
in the Civil Division to the Civil Rights Division effectively
letting Mr. Perez quarterback this ``deal that was not a
deal,'' to quote one of your Civil Division attorneys.
Question: As Associate Attorney General, would you continue
to allow the Civil Rights Division to exercise powers of the
Civil Division? And if not, would you plan on solving disputes
between the Divisions when they arise?
Mr. West. Senator, with respect, I have to disagree with
the premise of the question. I never abdicated my authority or
my responsibility in the Civil Division.
Senator Grassley. Okay. Let us move on.
Mr. West. All right.
Senator Grassley. To false claims. During your transcribed
interview, you agreed that it would be highly inappropriate for
the Justice Department to provide information to qui tam
defendants like St. Paul for the purpose of knocking out a
relator. But an investigation uncovered the facts that Mr.
Perez offered assistance to St. Paul by providing information
that would hurt Mr. Newell's case and might even result in its
dismissal.
Do you still believe it was inappropriate? And if so, then
do you disagree with Mr. Perez's decision to offer assistance
to St. Paul in challenging Mr. Newell as an original source?
Mr. West. I am sorry. Do I agree what was inappropriate?
Senator Grassley. Our investigation uncovered the fact that
Mr. Perez offered assistance to St. Paul by providing
information that would hurt Mr. Newell's case and might even
result in its dismissal. Do you still believe it would be
inappropriate? And if so, then do you disagree with Mr. Perez's
decision to offer to St. Paul in challenging Mr. Newell as an
original source?
Mr. West. So I think this issue concerns the attempt by the
city of St. Paul to get discovery outside the normal Toohey
process, because I do remember this coming up--I do not
remember or I am not aware of some of the conversations as you
have related them regarding Tom Perez, but I do remember----
Senator Grassley. But if you do not remember, let me
followup to hasten along----
Mr. West. Oh, sure, sure.
Senator Grassley. We will submit that to you for answer in
writing.
Mr. West. Sure.
Senator Grassley. And then go back and do that.
[The information referred to appears as a submission for
the record.]
Senator Grassley. In 2011, you responded to questions for
the record that I wrote to you regarding changes made to the
False Claims Act in the Affordable Care Act. One of those
provisions authorized the Department to challenge dismissals
sought by defendants on public disclosure grounds. I asked
whether you had issued guidance concerning when the Department
would oppose these types of motions using this new authority.
You stated that the Department does not believe issuing
guidance on this provision would be useful. However, in the
Newell case, this provision could have saved his case from
being dismissed on public disclosure grounds. In fact, by
choosing not to intervene in the case and choosing not to
contest the public disclosure filing by the city of St. Paul,
the Department then, as I have said, left Mr. Newell out to dry
twice.
Why did the Department choose not to contest the public
disclosure bar in Mr. Newell's case? Was it because that would
have violated the quid pro quo that Mr. Perez negotiated with
your approval?
Mr. West. I think the only way I can answer that is, to the
best of my knowledge and memory, the Newell case was one of the
75 percent of the cases that we chose not to intervene in
because it was not strong. And when we do not intervene in a
case, it does not end that case. That case can continue, and,
in fact, thanks to the qui tam provisions you authored, we will
still as the United States be able to recover if Mr. Newell is
successful. But the fact of the matter is the vast majority of
whistleblower suits under the False Claims Act are not
successful, which is why we are so choosy about which ones we
devote limited Government resources to support.
Senator Grassley. Our investigation uncovered that Mr.
Perez repeatedly asked attorneys in your Division to not
mention the deal with St. Paul in the declining memorandum that
you submitted to the court in Mr. Newell's qui tam case. On one
occasion, Mr. Perez directly called an attorney in Minnesota
and left a voicemail telling him not to include a discussion of
St. Paul's Supreme Court case, known as the Magner case, in the
memo. In fact, you conceded in your transcribed interview that
you agreed that it would be inappropriate to leave out this
discussion.
So then this is my last question to you, on any subject:
Explain to me why you believe that it would be inappropriate to
leave out this discussion?
Mr. West. Well, Senator, I believe you have the memo that I
signed suggesting that we would not--or making the decision
that we would not intervene in the Newell case, and there are a
whole variety of factors that I included in that memo. I just
believe that when I make those decisions and it is my practice
when I make those decisions to include a full discussion of all
the relevant factors, and that is what that memo reflects.
Senator Grassley. I do have a rebuttal to the fact that it
was--well, I better read it this way. I would like to point out
your office description of what occurred. This is from an
attachment to an email provided by the Department of Justice,
Bates stamped STP1411. ``Relators allege in Newell that the
city of St. Paul falsely certified that it was in compliance
with Section 3 of the Housing Act (incentives for low and very
low income citizens) when it obtained HUD community development
block grants. The Ellis cases alleges that the city of
Minneapolis is inappropriately condemning and knocking down
low-income housing, which has a disparate racial impact.
Government''--and this is emphasis. ``Government declined to
intervene in Newell and has agreed to decline to intervene in
Ellis in exchange for''--double emphasis--``in exchange for
defendants' withdrawal of a cert. petition in Gallagher case, a
civil rights action.''
This is not my characterization of the agreement that DOJ
reached. This is your office's real-time description of what
occurred, and it does not state that it was a close case or a
bad case. It does not say that Magner was just one of many
factors. It says that you dismissed the case in exchange for
getting the city to withdraw Magner. This is the update of the
case your office provided to the Deputy Attorney General and
how you described the agreement to him.
So in a sense, how can you sit here today and credibly
state otherwise?
Mr. West. Because it is the truth, Senator. I mean, you
know, I have--as I have said before, I can only tell you what I
considered in making the decision not to intervene, and that is
all reflected in a memo which we provided to you. There were a
number of factors. We were very up front that the Magner case
was one of the factors, but, candidly, it was not the most
important factor to me. It was much more important to know
whether or not we were going to be able to have the support of
the client agency to devote Government resources to this case.
There were other factors that were much more important, the
evidentiary basis of the allegations and what-not. But that is
all reflected in my memo.
Senator Grassley. I thank you for patience putting up with
me.
Mr. West. No, not at all, Senator. It is my pleasure to be
here and my honor to be here.
Senator Whitehouse. Mr. West, let me just followup briefly.
As you know, Senator Grassley is a passionate champion of the
rights of whistleblowers and the whistleblower process, and so
his questions come in very good faith, I believe, and from a
very sincere point of view.
My recollection from whistleblower cases, qui tam cases,
when I was U.S. Attorney is, as you have said, that the
Government may or may not intervene. If the Government does
intervene, it takes over the litigation and provides resources,
but it does not change the legal status of the case in any way.
The case has to stand on its own merits, whether it is pursued
by the qui tam proponent or whether it is pursued by the
Government. And a number of these cases go to trial without the
Government and are disposed of without the Government. Some are
successful, some are not.
We have spent a lot of attention in the hearing today on
the Newell case. Can you tell me what the disposition of it
was? Did it come to a disposition, and what was it?
Mr. West. I do believe the court dismissed the Newell case
because, I think, of the evidentiary basis. But I do think that
that dismissal is being appealed by Mr. Newell, which is his
right. And as I say, ultimately if he is successful in proving
his allegations in court, the Government will recover, get its
share of the recovery of any taxpayer dollars it is entitled
to.
Senator Whitehouse. And could you just give us a moment of
context in the--we have heard an immense amount about two qui
tam cases and one potential appeal. Put that into the context
of the scope of work that in your capacity you oversaw during
this time period?
Mr. West. Well, during the 3\1/2\ years I was the head of
the Civil Division, as I have said, I think one of the things I
am most proud of is the fact that we were able to participate
in hundreds of qui tam cases, and the result was we were able
to recover more taxpayer dollars lost to fraud than in any
other 3\1/2\-year period in the history of our country.
No Justice Department has recovered more money in that type
of time period before, and we are going to keep trying to set
new records every year.
But, again, you know, I have to tell you, I have a great
deal of not only respect for Ranking Member Grassley, but also
a great deal of gratitude to him because of not only his
leadership in championing the qui tam provisions, but the FERA
amendments in 2009, which Senator Grassley and Chairman Leahy
were really responsible for making sure we had at the Justice
Department the tools that we needed to be effective and
aggressive against fraud.
Senator Grassley. Can I----
Senator Whitehouse. Please.
Senator Grassley. You are absolutely right, how qui tam
works whether the Government is involved or not. But in regard
to this, Senator Leahy and I worked very hard--I do not know--
2, 3 years ago, whenever we passed some legislation, to take
care of the problem. So I want to read something in response.
Mr. Newell lost in court precisely because the U.S.
declined to intervene. After the U.S. declined to join the
case, the judge dismissed Mr. Newell's case because of, the
legal words, ``public disclosure bar,'' finding he was not
``original source''--again, a legal term--of the information to
the Government. That was the whole point in Mr. Perez's
agreement. That is why it was so important to the city of St.
Paul that the U.S. not join the case.
So referring to what Senator Leahy and I amended, we
amended the False Claims Act several years ago precisely to
prevent the outcome like this. Specifically the amendments made
clear that the Justice Department can contest the original
source dismissal, even if it fails to intervene, as it did in
this case. So the Department did not merely decline to
intervene, which was bad enough; the Department affirmatively
chose not to contest the city's motion to dismiss. In effect,
that decision all but guaranteed that Mr. Newell would be
defeated.
When I asked you, Mr. West, about this in 2011, you said it
was necessary to issue guidance on this. This would have
directly helped Newell, so that I want to know why it was not
used at that particular time.
Mr. West. Why the guidance was not used?
Senator Grassley. Yes.
Mr. West. I do not know the answer to that, Senator. I
think to the extent that my office had a role in----
Senator Grassley. But the point was you should have offered
guidance.
Mr. West. Well, I do not know if we did or did not. I am
not familiar with what happened. But I would be happy----
Senator Grassley. Well, then maybe you could answer in
writing, please.
Mr. West. Sure.
[The information referred to appears as a submission for
the record.]
Senator Grassley. I will rest my case.
Senator Whitehouse. Okay.
Senator Grassley. We could go on forever.
Senator Whitehouse. For the record, it is not clear to me
why the Department of Justice intervening either in the qui tam
case on the merits or in the public disclosure bar issue would
change the facts upon which the court ruled against Mr. Newell
on that matter. We come in as the new lawyer, but we do not
bring new facts when we come in as the Department of Justice.
But perhaps that can be further elucidated in the written
responses. Mr. West, I encourage you to be prompt with those. I
thank my Ranking Member for his attention to an issue that I
know commands his passion, and we will conclude this portion of
the hearing and take a very brief recess while the seats are
exchanged for the two judicial nominees who are present. And I
will join my colleagues in welcoming all of Mr. West's family
but most particularly his daughter. And as a former Attorney
General, let me go out of my way to welcome Kamala Harris, the
State Attorney General of California.
Thank you all very much.
Mr. West. Thank you, Mr. Chairman. Thank you, Senator.
Senator Grassley. Thank you.
[Pause.]
Senator Whitehouse. The hearing will return to order. Let
me welcome Ms. Caproni and Mr. Broderick. Let me do a little
bit of administrative work and ask unanimous consent to include
in the record the great number of letters of support that we
have received for Tony West's nomination, without objection.
[The letters appear as submissions for the record.]
Senator Whitehouse. And let me also put into the record a
letter from 18 Bush administration officials that the Chairman
and the Ranking Member have received in support of the
nomination of Valerie Caproni. And, without objection, that
will also be part of the hearing record.
[The letter appears as a submission for the record.]
Senator Whitehouse. I think given the hour I will forbear
from making my opening statement with regard to these two
nominees, but I do want to express a particular welcome to Ms.
Caproni. When she was general counsel to the FBI, I served on
the Intelligence and Judiciary Committees, and we did a lot of
work together. She was always entirely competent,
knowledgeable, capable, forthright, and a pleasure to work
with, and I could not be more pleased that she is a nominee for
the New York court.
Mr. Broderick, I welcome you as well. Although we do not
have the personal experience with one another, your
qualifications speak for you, as did Chuck Schumer through my
rather weaker voice this morning.
I know each of you have family members here you would like
to introduce and that you have a statement you may wish to
make, but before I do that, let me just----
Senator Grassley. I will just put a statement in the
record.
Senator Whitehouse. The Ranking Member will put a statement
in the record.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Whitehouse. Let me have you sworn in. If I can find
my little sheet. It is in there somewhere.
Well, never mind. Do you swear that the testimony you give
before this Committee today will be the truth, the whole truth,
and nothing but the truth, so help you God?
Ms. Caproni. I do.
Mr. Broderick. I do.
Senator Whitehouse. Thank you. Please be seated. If I do
not know that by heart yet, then I----
[Laughter.]
Senator Whitehouse. Why don't we proceed just across the
table, leading with Ms. Caproni.
STATEMENT OF VALERIE E. CAPRONI, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Ms. Caproni. Thank you, Mr. Chairman, and thank you for
those very kind words. I would like to thank the Committee for
having this hearing. I would also like to thank Senator
Gillibrand for her very kind introduction and for recommending
me to the President. And I would like to thank the President
for actually nominating me for this position.
I also want to thank my friends and family for their
support through this process in ways large and small. Their
help has been invaluable.
I would also like to thank my friends and colleagues from
Northrop Grumman who came along today and those who are
watching from the office in Falls Church. But it is time for
them actually to get back to work, so hopefully this will be
short from here on.
I would also like to thank my sister who has come up from
Georgia and my brother who is supposedly watching in his office
in Atlanta. Both my parents have passed away recently, but I am
sure they are here in spirit.
So, with that, I stand ready to answer any questions.
[The biographical information of Ms. Caproni appears as a
submission for the record.]
Senator Whitehouse. Mr. Broderick.
STATEMENT OF VERNON S. BRODERICK, NOMINEE TO BE DISTRICT JUDGE
FOR THE SOUTHERN DISTRICT OF NEW YORK
Mr. Broderick. Thank you, Chairman. And also thank you for
channeling Chuck Schumer earlier today. That was a very good
job.
I would like to thank President Obama for his confidence in
me and for the honor of the nomination.
I would like to thank Senator Schumer for the
recommendation to the President.
I would like to thank Chairman Leahy for scheduling this
hearing and for having us both as witnesses.
And I would also like to thank Ranking Member Grassley for
his participation in this hearing, and thank you, Senator, for
presiding over this hearing.
I do have some introductions. There are a lot of folks here
and many listening to the webcast. My mother, Mercedes, is here
behind me. I trust she is smiling, although I am not going to
turn around to look.
Senator Whitehouse. She is.
Mr. Broderick. Thank you.
Senator Whitehouse. Let the record reflect that it is a
very large and nice smile.
[Laughter.]
Mr. Broderick. Great. My sister, Cecily, and her daughter,
Dana, who is 7. Unfortunately, my brothers, Gregory and Cecil,
could not be here, but they are listening on the webcast. My
girlfriend, Fern Copas, is here. I am not sure exactly where
she is--oh, she is right in between my mom and my sister.
I also have Michele Melland and Mitch Strassberg, two of my
close friends, who are here with four of my godchildren:
Alexander and Stella, who are 9; Oliver, who is 7; Lena, who is
5. I should also mention I have nine godchildren all told, so I
almost got a majority of them here.
A college roommate, Dan Kelly, is here with two of his
children, Jenna and William. Todd Chandler and Kaylin Johnson
are here. Todd is my partner. I also have many other folks here
from our D.C. office, including, I think, most of the summer
associates from our D.C. office. Just about all of the summer
associates in New York are also listening. Laura Wilkinson from
the D.C. office, my partner, is also here. And I appreciate
their presence. And also Erin Law traveled here, who is a
former colleague and friend who is here to support me.
Last, I should mention--and it is one of the reasons I will
try and be on my best behavior--apparently the third through
the fifth grade class of the Friends Day School in Garden City
are also listening. That is Dana's classmates.
Those are the introductions I have. I welcome any questions
that you may have for me.
[The biographical information of Mr. Broderick appears as a
submission for the record.]
Senator Whitehouse. Thank you very much.
Let me ask each of you, I think there are five fairly
noncontroversial principles that we expect judges to abide by.
I think we expect that judges must respect the role of Congress
as representatives of the American people. We expect judges to
decide cases based on the law and the facts. We expect judges
not to prejudge any case but to listen to every party fairly
that comes before them. We expect judges to respect precedent.
And we expect judges to limit themselves to the issues that the
court must decide.
I believe that those are all noncontroversial, but I would
like to ask you for the record that you will adhere to those
principles as you conduct yourself in the office for which you
seek confirmation.
Ms. Caproni. I concur. If I am lucky enough to be
confirmed, I completely agree with those five principles.
Mr. Broderick. Absolutely, Chairman. I would absolutely
abide by those principles.
Senator Whitehouse. Let me ask you one additional question.
We have a distinctly American system of Government, one with
separated powers between judicial, executive, and legislative
branches. It is a system that has served us well through very
considerable upheavals and retained its essential nature
through our history as a country.
One of those elements, at least according to the Founding
Fathers and legal scholars like Blackstone and observers of
American history like de Toqueville, is the jury. And they
repeatedly assert that the jury has, in addition to its role as
a fact finder within judicial proceedings, a larger role within
the structure of American Government, a place where no matter
where the power structure lies, you can go and be heard before
regular people, a place where the decisions of Government are
conferred to ordinary citizens rather than officials, a place
that can stand against the tides of power and influence that
politics often cause to wash about, and a place that is
ultimately an instrument of liberty. And I would ask your
thoughts on that.
There is fairly considerable pressure to move as much away
from the jury as we can, to shunt things off into arbitration,
to raise the procedural bars that allow cases to be knocked out
before they get to a jury. Every case, of course, has to be
decided on its merits, but I am interested in what you see as
the role of the jury system. Does it, in your view, have any
role beyond being a mere fact-finding adjunct to the court?
Mr. Broderick. If I may, the fact finding is obviously a
very critical and important factor, but it is more that the
jury adds to the legitimacy of the judicial process in this
country. It has for decades. I have been fortunate enough as a
criminal prosecutor to see a jury in action, and it is
impressive. You have citizens that come in, 12 and some
alternates that come in, who hear a case, pay careful
attention, and render a decision. And I have to say that when
you have--and I have represented individual defendants also in
criminal matters. And when you have a jury who is sitting
there, it gives a level of comfort that you know that the
citizens are going to be there and are part of the jury system,
and the amount of dedication that people have, I think it
absolutely is a critical part of our judicial system and our
way of life.
Senator Whitehouse. Ms. Caproni.
Ms. Caproni. I do not have much to add to what my colleague
has just said. I think that is totally right. I have served on
a jury, and I have also, as a former prosecutor, argued before
many juries, and it is actually quite heart-warming how hard
normal citizens work to really be a critical part of the
justice system, either the criminal justice system or the civil
justice system, to listen carefully, really understand what is
going on, and they take their job very seriously. And I think
we owe citizens who serve on juries a huge debt of gratitude
for taking time out of their busy day to serve as part of our
judicial system.
Senator Whitehouse. I appreciate that. I think that one of
the reasons our system was designed the way it was with the
jury system there to protect individuals is because the
experience of the Founding Fathers was that the Governors could
be corrupted. They thought that very often they were. They were
very concerned about the colonial Governors. They thought that
passions of the moment could overwhelm legislatures. That was
their experience. Thomas Jefferson wrote eloquently about it.
They knew that the press could drive public opinion against
individuals. And if there you were with the Governor against
you, the legislature in the control of your opponent, the folks
who owned the presses driving and marshaling public opinion
against you, you still had the jury, 12 individuals just
selected for that, with no ability to mess with them. Jury
tampering is a crime. It is, I think, a very important piece,
and I urge you to maintain that thought as you serve with the
distinction that I hope we can expect.
Let me turn now to the Ranking Member, Senator Grassley.
Senator Grassley. I will start with Mr. Broderick. I have
two questions. And for Ms. Caproni I have five or six.
I see that you are a board member of Latino Justice,
formerly known as Puerto Rican Legal Defense and Education
Fund. Two questions--well, let me ask them separately.
Could you please explain to the Committee the role that you
have played in that organization, including litigation you may
have worked on or approved?
Mr. Broderick. Sure. At the role of the board, I have not
approved specifically litigation. Typically we hold board
meetings. There is an annual meeting. There are also periodic
meetings, I think once a quarter, where we deal with the
business of both fundraising as well as discussion of different
projects and expansion of the organization to other regions
within the country.
Senator Grassley. So you did not have any role in
litigation?
Mr. Broderick. That is correct. I did not have any role in
the litigations.
Senator Grassley. And then I think you have answered my
second question, because I was specifically going to ask if you
had played any role in the drafting of the amicus brief of
Latino Justice submitted in the Magner case.
Mr. Broderick. I did not.
Senator Grassley. Okay. For you, Ms. Caproni, in March 2007
I requested copies of unclassified emails relating to exigent
letters issued by the FBI. Director Mueller told this Committee
that he thought the emails were probably fairly substantial.
After 7 months, the FBI produced a small batch of heavily
redacted emails and said it would provide additional documents
as its review continued. Fourteen months later, in June 2008, I
asked Director Mueller for the remainder of the documents and
an explanation for the delay.
At some point, on a visit to my office while briefing my
staff on another issue, you were asked about the delay. At that
time you said that the documents were on your desk awaiting for
review. You left the FBI February 2011 without delivering these
documents. I still have not received them.
A, why did you tell my staff the documents were on your
desk awaiting your review? And why were the promised emails
never delivered to me?
Ms. Caproni. Senator, I am sorry. I do not know what
documents you are talking about.
Senator Grassley. Okay. Then we will ask you to research
that and give us an answer in writing.
Ms. Caproni. That is fine. I am just not familiar with the
documents you are referring to.
Senator Grassley. Okay. Did you ever write any emails
related to exigent letters?
Ms. Caproni. I am confident that I did.
Senator Grassley. Do you have a rough idea of how many you
wrote and why they were not produced to the Committee?
Ms. Caproni. If I understand, you indicated that you made a
request for them in March 2007?
Senator Grassley. That is the first one, and then 7
months--or in June 2008, I asked Director Mueller against them,
so over the course of March 2007 and again in June 2008.
Ms. Caproni. So, Senator, I do not know how many emails I
would have drafted that had the word ``exigent'' letter in it,
because I was substantially involved in cleaning up the problem
of exigent letters. There would have been a number of emails
well after March 2007 that I would have drafted. Before March
2007, I sincerely doubt I had any emails that relate to exigent
letters.
Senator Grassley. Let us not take any more time, and I
would ask you to respond in writing on that point.
Ms. Caproni. Certainly.
Senator Grassley. On those two points.
[The information referred to appears as a submission for
the record.]
Senator Grassley. As part of the review of the Inspector
General's reports on national security letters, I requested
transcripts of interviews the Inspector General conducted with
you. However, the Inspector General refused to produce comments
that you provided to the draft report. The Inspector General
indicated that he would be inclined to produce these comments
if you would consent to the release of these comments.
Will you provide the Inspector General your consent to
release these comments?
Ms. Caproni. Senator, I do not have any reason to believe
that--yes, I have no objection to my comments being turned over
if the Inspector General wishes to do so.
Senator Grassley. Thank you.
While at the FBI, your office was found to have
inaccurately reported its use of national security letters to
Congress. Even you called this--and I believe these are your
words--``a colossal failure'' in 2007 because you knew about
this problem before the Inspector General issued his report and
yet still did not fix the problem.
Briefly, why was the report inaccurate? Was it an innocent
mistake, intentional, or something else?
Ms. Caproni. Senator, is your question directly relating to
the erroneous report of numbers to Congress, the number of
NSLs?
Senator Grassley. Just a minute. Let me find out whether it
is that or something else.
Yes, inaccurate report of the number.
Ms. Caproni. So, Senator, I learned that the numbers that
were being reported were inaccurate at around the time of the
Inspector General's report. I was immediately part of the team
at FBI who put into place a number of different steps to ensure
that the numbers that were reported to Congress were accurate
in the future. Specifically, we adopted an electronic system
that was used throughout the Bureau that greatly enhanced the
accuracy both of national security letters themselves and the
reporting of statistics to Congress.
Senator Grassley. During the House Judiciary Committee
hearing in 2007, you discussed your concerns about FBI agents
that were confused or unfamiliar with different policies and
laws. You stated, ``The agents my age at the FBI all grew up as
criminal agent in a system which is transparent, which, if they
mess up during the course of an investigation, they are going
to be cross-examined and have a Federal district judge yelling
at them.''
Is it your experience that district judges yell at agents
often for being confused or unfamiliar with policy?
Ms. Caproni. Certainly not, and that was not my intent to
suggest that a district court judge would yell at an agent for
being confused.
Senator Grassley. If confirmed, how would you treat such
agents or any other party witness appearing before you?
Ms. Caproni. I would treat everyone who appears before me
with respect.
Senator Grassley. As you heard the Chairman say, I am
pretty up on whistleblowers doing their work because we would
never do our work if we did not get this inside information. In
fact, let me express a feeling I have. It does not matter
whether you have a Republican or Democrat President, where it
is in the bureaucracy, whistleblowers are kind of treated like
skunks at a picnic.
So with that background, let me ask you this question: In
2008, at American University Washington College of Law, you
suggested that FBI whistleblowers should not go public with
their information. I am not going to repeat your entire
remarks, but you characterized whistleblowers with language
such as ``a scheme,'' ``cranky employees,'' or ``some nutty
whistleblower.''
Furthermore, during your tenure at the FBI, whistleblower
cases languished for years. For example, Robert Kobis waited
nearly 6 years for resolution while the case of Special Agent
Jane Turner took nearly 12 years. Why did the FBI under your
leadership continue to appeal these cases despite strong
investigative findings by the DOJ Inspector General determining
that the FBI retaliated against both for protected
whistleblowing?
Ms. Caproni. So, Senator, let me say that I believe that
when I spoke at American University, I also said that
whistleblowers can inform and be a very important part of the
process, but that while some are, there are others that are
not, and some are simply cranky employees. That is not to say
they all are, and I certainly think that whistleblowers really
are an important part of the system of flushing out information
that needs to be disclosed. That said, certainly when I was at
the FBI, there were issues about classification and about
information that was being disclosed that was classified.
So it is a difficult issue, and each one has to be really
considered on the facts of what that particular person is
saying and doing.
Senator Grassley. But doesn't it seem like 6 years is an
awful long time to keep people hanging out there, or 12 years
in the case of Jane Turner? So you kind of get back to the
findings of the Justice Department Inspector General saying
they were not treated fairly.
Ms. Caproni. Senator, I do not have any recollection of one
of the cases. My recollection of the Jane Turner case is that
it was litigated in Wisconsin or one of the Midwestern States--
maybe it was Iowa; I am not sure--and that there was lengthy
litigation in connection with that case. But I do not remember
much about it beyond that.
Senator Grassley. Well, do you know of any strategy within
the Department to drag these cases out as long as possible just
so they either die or they give up and go away?
Ms. Caproni. Absolutely not. I am not aware of any such
thing, and that was certainly not the FBI's position when I was
general counsel.
Senator Grassley. I think you answered my question because
you did say in your speech at George Washington, you did speak
positively about whistleblowers. Why don't you tell me just
what you feel about whistleblowers?
Ms. Caproni. Again, I think whistleblowers can be
incredibly valuable at disclosing information that, for
whatever reason, is not being elevated appropriately either
within a governmental agency or within a private company. I am
now at a private company where whistleblowers are--we have lots
of different mechanisms where they can reveal information that
they are aware of that involves people within the company not
doing the right thing. We encourage employees to come forward
with such information, because if we in management are not
aware of the information, we cannot fix it.
So from that perspective, we encourage people to come
forward with information that they think reveals bad conduct
within the company. And similarly within the FBI, I think
Director Mueller was a major proponent of encouraging employees
to come forward with information that they were aware of that
should be acted on by upper management.
Senator Grassley. How would you approach a qui tam case
from the bench if you are a judge?
Ms. Caproni. Senator, I would approach a qui tam case like
I would approach any case. I would want to know what the facts
are. I would want to know what the law is.
Senator Grassley. My last question. The ABA Standing
Committee on the Federal Judiciary issued a rating letter last
fall which was signed by Judy Perry Martinez, Chair of that
committee. According to press releases from her company, she is
vice president and chief compliance officer and reports to an
individual who is corporate vice president and general counsel.
You are also a vice president and deputy general counsel at the
same company and report to the same individual as does Ms.
Martinez. So Ms. Martinez, who provided the ABA rating, appears
to be a colleague of yours, with both of you reporting to the
same individual.
My question for you is not about that arrangement but,
rather, about your sensitivity to recusal and ethics. If the
situation had been reversed, would you have recused yourself
from participating in the ABA rating and issuing the letter?
Ms. Caproni. So, Senator Grassley, Ms. Martinez was recused
from considering my involvement. I think she just signed the
transmittal letter. But she was not involved with the
committee's consideration of my candidacy.
Senator Grassley. Okay. Then I think that answers my
questions. Thank you.
Senator Whitehouse. Very good.
Senator Grassley. Thank you both very much and
congratulations.
Senator Whitehouse. I join the Ranking Member in thanking
you and in congratulating you, and I wish you expeditious and
smooth confirmation through the Committee and then on the
floor. And I thank the family for being present or, if they
could not be present, for tuning in. And I appreciate the
extremely good behavior of the children who are here.
[Laughter.]
Senator Whitehouse. The hearing is adjourned, and we will
keep the record open for 1 week for any additional materials
that may be required.
[Whereupon, at 12:12 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF B. TODD JONES, NOMINEE TO BE DIRECTOR OF THE BUREAU OF
ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES; AND STUART F. DELERY,
NOMINEE TO BE ASSISTANT ATTORNEY GENERAL OF THE CIVIL DIVISION
----------
TUESDAY, JUNE 11, 2013
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:33 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Amy
Klobuchar, presiding.
Present: Senators Klobuchar, Schumer, Durbin, Franken,
Coons, Blumenthal, Hirono, Grassley, Lee, Cruz, and Flake.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. I would like to call the hearing to
order. Thank you for coming today. We have a packed house.
Today we are considering two nominees: Stuart Delery, to be the
Assistant Attorney General for the Civil Division of the
Justice Department; and B. Todd Jones, to be the Director of
the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
First I will start with Mr. Delery. He is currently the
Acting Assistant Attorney General for the Civil Division, the
largest litigating component within the Department of Justice.
He graduated Phi Beta Kappa from the University of Virginia and
earned his J.D. from Yale Law School in 1993. After graduating
from Yale, he went on to clerk for Chief Judge Gerald Tjoflat
of the Eleventh Circuit Court of Appeals and Justices Sandra
Day O'Connor and Byron White on the United States Supreme
Court.
Mr. Delery then went on to private practice at Wilmer,
Cutler and Pickering, now known as WilmerHale, where he was a
litigator for 14 years. His practice ranged across complex
corporate and securities litigation and administrative law
matters.
In 2009, he left private practice for the Department of
Justice where he held a number of leadership roles, including
chief of staff and counselor to the Deputy Attorney General,
Associate Deputy Attorney General, and senior counsel to the
Attorney General. In these positions, he advised the
Department's leadership on a range of matters, including civil
litigation, appeals, national security litigation, and policy.
As Acting Assistant Attorney General for the Civil
Division, he supervises approximately 1,000 attorneys
representing the United States, the President, and Cabinet
officers and agencies. He supervises much of the Federal
Government's civil litigation, which includes the defense of
legal challenges to congressional statutes, administration
policies, and Federal agency actions.
At the Justice Department, he has devoted significant
attention to the Civil Division's extensive docket of national
security cases. He has also worked closely with the Office of
the Solicitor General to which he regularly makes
recommendations concerning Supreme Court cases.
Mr. Delery also has a strong track record of pro bono
service. For example, from 2007 to 2008, he supervised a team
of lawyers that conducted an investigation on behalf of the
District of Columbia's Office of Tax and Revenue into the theft
of over $48 million in District of Columbia funds by a long-
time employee. The employee pled guilty to Federal charges in
2008.
The Judiciary Committee has received letters in support of
Mr. Delery's nomination from a bipartisan group of current and
former Government officials and a group of Assistant Attorneys
General for the Civil Division in the administrations of
Presidents Reagan, George H.W. Bush, Clinton, and George W.
Bush.
Now I will turn to Todd Jones, whom I have known for a very
long time. We worked closely together as members of the
Minnesota law enforcement community when he was in his first
stint as U.S. Attorney for Minnesota when Bill Clinton was
President and I was the county attorney for Hennepin County.
For the past 2 years, Todd Jones has been doing the impossible:
filling two crucial Federal law enforcement positions as Acting
Director of the ATF and U.S. Attorney for the State of
Minnesota. I see his son Anthony back there, and I know it has
not been easy. Todd also has his wife, Margaret, and he also is
a father to not just Anthony but four other children, and a
good one at that. We welcome Anthony here today representing
the family.
Todd Jones has an impressive background that has him well
prepared to lead the ATF. After law school at the University of
Minnesota, he entered the U.S. Marine Corps where he served on
active duty as a judge advocate and infantry officer from 1983
until 1989. Two years later, he was called back to active duty
during the first Iraq War. In addition to his military career
and having the rare distinction of serving as U.S. Attorney
under two different Presidents, Jones also has a strong record
as a line prosecutor in the Minnesota U.S. Attorney's Office
and an outstanding career in private practice.
Today we are here to consider his nomination to be the
permanent Director of the ATF, a nomination that is supported
by the National Association of Former U.S. Attorneys, including
those who served under both Bush and Clinton administrations,
several former Assistant U.S. Attorneys, the administrator of
the Minnesota Bureau of Criminal Apprehension, the Minnesota
County Attorneys Association, the International Association of
Chiefs of Police, the Fraternal Order of Police, and the ATF
Association, to name just a few.
Given the ATF's important role in investigating crimes and
terrorist incidents like the Marathon bombing, this should be a
top priority for the United States Senate to have a permanent
Director of the ATF. It does not make sense for the Director to
be serving in a temporary capacity, and yet there has never
been a permanent Director in place since 2006 when it became a
Senate-confirmed position. I think that is wrong.
Something is wrong when the Senate fails to confirm the
head of an agency for 7 years. Something is wrong when we have
ATF agents, over 2,000 of them, on the front lines of major
investigations like the Boston Marathon bombing while victims
lay dismembered in the hospital, the agents were on the front
line figuring out who did it and what happened, and yet the
Senate still will not confirm a permanent leader of this
agency.
It seems that some Members of the Senate do not want ATF to
have the benefit of a confirmed Director, so for all the
concerns that have been raised about the ATF, some of them very
legitimate, confirming a full-time permanent Director should be
a critical step to making sure the ATF is doing its job and
doing it well.
Todd Jones has never turned down a tough assignment. He has
faced challenging situations throughout his career, and taking
over the ATF in the summer of 2011 was yet another example of
that.
As everyone knows, the agency was under a tremendous amount
of scrutiny and understandable criticism for the failed Fast
and Furious Operation, and Jones was brought in to get the ATF
back on its feet.
Since then, he has worked to revamp the agency's practices
and policies. He has begun making essential reforms that are
critical to the more than 2,300 agents who perform under
pressure, day in and day out, both on major investigations like
Boston and West, Texas, but also on lesser known investigations
like serial arsons in California, cigarette smuggling rings
that fund terrorists, and drug- and gun-trafficking undercover
operations in Miami.
Before taking over the ATF, Jones served as both the head
of the U.S. Attorney's Office in Minnesota under two Presidents
and before that as Assistant U.S. Attorney. As an assistant, he
was the lead prosecutor in a number of cases involving criminal
drug conspiracies, money laundering, financial fraud, and
violent crime in the 1990s. In the private sector, he became a
partner at two very well respected Minnesota law firms: Robins,
Kaplan and Greene, Espel.
To highlight some of his accomplishments, during his tenure
as U.S. Attorney in Minnesota, that office, with Todd Jones at
the helm, prosecuted Operation Rhino, which involved the
criminal prosecution of Omer Abdi Mohamed, who recruited young
Somali Americans to fight for terrorist groups in Somalia.
Mohamed was indicted in November 2009 and pled guilty in July
2011 to conspiracy to murder, kidnap, and maim abroad. To date,
the investigation has resulted in charges filed against 22
other individuals.
Operation High Life, which was a major drug-trafficking
investigation involving more than 100 local, State, and Federal
law enforcement officers and resulted in 26 indictments, 25
guilty pleas, and sentences of up to 200 months in prison.
Operation Brother's Keeper was a successful investigation
and prosecution of a RICO case involving a regional 200-member
gang which took 22 dangerous criminals off the street.
Operation Malverde received national attention and was a
prosecution of 27 defendants associated with a Mexican drug
cartel, including the apprehension of the cartel's regional
leader and sentences as high as 20 years in prison.
Jones' office was also active in other areas like complex
white-collar crime, including the successful prosecution of a
$3.65 billion Ponzi scheme. That is $3.65 billion, the second
biggest Ponzi scheme in United States history after Bernie
Madoff.
Those are just a few of the examples of the cases that Todd
Jones oversaw as U.S. Attorney in Minnesota.
He is well qualified and has a range of experiences and
accomplishments that leave him more than ready to lead the ATF
on a full-time basis--not on a temporary basis, not on an
interim basis. He is a talented, dedicated, and hard-working
public servant who has served his country in both the military
and in civilian agencies.
I look forward to hearing from both of our nominees today
and having a discussion about their past experiences and their
outlook on the positions to which they have been nominated.
Thank you, both of you, and I will turn it over to Senator
Grassley, the Ranking Member.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Thank you very much.
As the Chairwoman knows and as I told her yesterday, I
objected to holding this hearing today and requested the
hearing be postponed. As we sit here today, there remains an
open investigation by the Office of Special Counsel regarding
Mr. Jones' conduct as U.S. Attorney. Generally, when a nominee
is subject to an open investigation, the Committee does not
move forward until the issues are resolved. And, of course,
this is the sensible thing to do.
When there is a pending investigation, the Committee
obviously does not have the full information about the nominee.
In this case there are allegations of gross mismanagement and
abuse of authority in Mr. Jones' office, and there is a
complaint that Mr. Jones retaliated against a whistleblower.
These are serious charges and ones that are of particular
concern to me as a known defender of whistleblowers.
The public interest demand resolution of these issues.
Members of the Committee are entitled to know if these charges
have any merit. One way for that to happen is for the Committee
to undertake its own investigation. That has not happened.
Another is to follow the usual Committee practice and wait
for any third-party investigating agency to complete its
process and reach conclusion. That has not taken place either.
So we are left today to take Mr. Jones' word. We have no way of
independently verifying what he says to ascertain the truth of
the matter.
In addition to the open complaint, there are numerous
unresolved issues regarding Mr. Jones and his record while
serving as U.S. Attorney and Acting ATF Director. That is why I
requested a postponement of the hearing. While the Chairman did
postpone the hearing 1 week, that did not cure the procedural
defects with the nomination. So it is unfortunate that we go
ahead with this hearing before an open complaint is resolved.
In April, when the Chairman started talking about a hearing
for Mr. Jones, I was concerned about moving forward. There were
a number of outstanding requests that I had made to Mr. Jones,
and I had previously received a copy of an anonymous letter to
the Office of Special Counsel making vicious allegations
against Mr. Jones. I sent a letter to OSC on April the 8th
asking for an update on those allegations. On April the 12th,
OSC responded that there were two pending matters involving the
U.S. Attorney's Office, District of Minnesota, where Mr. Jones
is U.S. Attorney. The first matter was a prohibited personnel
practice complaint, and the second was a whistleblower
disclosure alleging gross mismanagement and abuses of
authority.
On May the 28th, the Chairman sent out a notice for a
hearing for Mr. Jones to be held the following week. The next
day, on May 29th, I sent a letter raising my concerns about
proceeding with a nominee who had open complaints and asked
that the hearing be postponed consistent with previous
Committee practice.
On June the 3rd, the Chairman postponed the hearing 1 week.
However, in doing so, the Chairman expressed disappointment
that the April OSC letter had been publicly disclosed. A
continuing justification for holding this hearing today is
that, based on this disclosure, the nominee should have an
opportunity to respond. But, of course, there was nothing
confidential in the OSC letter. In fact, I am not about to hide
this issue from the public. It is relevant to our inquiry as to
the qualifications of the nominee. If others want to hide this
information, that, of course, would be their decision.
Additionally, there were numerous allegations that
Republicans were holding up the nominee for no good reason. The
OSC letter clearly identified why Mr. Jones' hearing was not
going forward at this time. That justification remains valid
today. Again, this would be consistent with prior Committee
practice.
Furthermore, everyone knows that Mr. Jones' appearance
today is no substitute for a full investigation. We know the
investigation is open, so even if we ask questions today, we
cannot rely on the information we receive. The nomination
hearing is nothing like the investigative process conducted by
the Office of Special Counsel. In a full OSC inquiry, there
would be interviews with complaining witnesses, a review of
documents, and interviews with line attorneys and law
enforcement officials in Minnesota. We have access to none of
these at this point. We only have one witness, the nominee, who
is able to offer up his side of the story. So where are the
whistleblowers? Where are other Assistant U.S. Attorneys and
staff members? Who is offering the other side of the story?
We did receive a token offer from the majority for one
witness. That offer came Sunday night, a little more than 36
hours ago. And then late yesterday, we received from the
majority an offer to conduct some interviews this coming Friday
after today's hearing. Now, that is quite perplexing to me. We
are going to begin the investigation after the hearing is
concluded. When has the Committee ever conducted an
investigation after the hearing for that nominee?
On June the 4th, I suggested to the Chairman that a mere
one-week postponement of the hearing would not allow sufficient
time for open matters to be resolved. We had no reason to
believe that the OSC investigation would be closed. It seems to
me that if the majority did not want to wait until the OSC
completed its investigation, the Committee would be obligated
to fully investigate the matter for itself. I, therefore,
suggested that we begin the process by at least calling
additional witnesses to testify at today's hearing.
On June the 5th, OSC provided the Committee with an update
on two pending cases. It reported that while the whistleblower
disclosure case had been closed, the prohibited personnel
practice complaint was moving to mediation for the time being.
On June the 6th, the Chairman reported to me that he had
been notified by OSC that it had reached a resolution on the
retaliation allegations against Mr. Jones and that that
investigation was now closed. This directly contradicted the
information I had received. I again suggested that additional
witnesses might be necessary. On Sunday night, 36 hours ago, my
staff was notified by the majority staff that the Chairman
agreed to one minority witness. Of course, by that time, there
was no reasonable way that a witness could be contacted or
arrange for travel on Monday for appearance on Tuesday morning.
Yesterday I contacted the Special Counsel inquiring to her
availability to testify to at least explain more fully the
status of the complaints. Ms. Lerner replied, ``I am
unavailable to testify tomorrow about this matter. Moreover, it
would not be appropriate for me to provide any additional
information about the pending case.''
Ms. Lerner confirmed for the second time that the
investigation remained open. She stated, ``The reassignment of
the case for mediation did not result in the matter being
closed.''
Based on all of this, I cannot help but conclude that the
majority is intent on jamming this nomination through the
Committee no matter what.
So here we are left with an open investigation of serious
allegations of whistleblower retaliation, and these are not
unsubstantiated charges. In fact, of all the complaints receive
by OSC, only about 10 percent are chosen for further
investigation. This case was one of them. Why did the career
nonpartisan staff of OSC forward the case for investigation?
Presumably because they thought it needed to be looked into.
That says something about the likely merits of the case.
There are also indications of a larger pattern here, one
known to OSC. First, Acting Director Jones in a video sent to
all ATF agents stated, ``If you do not respect the chain of
command, if you do not find the appropriate way to raise your
concerns to your leadership, there will be consequences.''
Now, that throws a lot of cold water on anybody who might
want to whistleblow under the law. This video was seen by
several employees in the U.S. Attorney's Office of Minnesota,
also headed by Mr. Jones in his other capacity. These employees
anonymously wrote to the Office of Special Counsel asking for
``a review of the patterns, practices, treatment, and abuse
that they have suffered.'' They reference the ATF video,
stating that they had ``felt for the employees of ATF as we,
too, have had the same types of statements made to us.''
They then said Mr. Jones ``had instituted a climate of
fear, had pushed employees out of the office, dismissed
employees wrongly, violated the hiring practices of EEOC, and
put in place an Orwellian style of management that continues to
polarize the office.''
Next, a former special agent in charge of FBI's Minnesota
Division, Mr. Donald Oswald, wrote to this Committee voicing
concerns about Mr. Jones. In that letter he wrote, ``As a
retired FBI senior executive, I am one of the few voices able
to publicly express our complete discontent with Mr. Jones'
ineffective leadership and poor service provided to the Federal
law enforcement community without fear of retaliation or
retribution from him.''
Of course, those are chilling words. He cautioned, ``Mr.
Jones was and still remains a significant impediment for
Federal law enforcement to effectively protect the citizens of
Minnesota.''
The concerns and allegations in Mr. Oswald's letter were
corroborated by another Assistant U.S. Attorney in Mr. Jones'
office, Mr. Jeffrey Paulson. Yesterday Mr. Paulson gave his
consent that his whistleblower disclosure complaint be released
to the Committee. It contains a detailed account of the
mismanagement, abuse of authority, and other problems within
the office. It also details Mr. Jones' negative attitude
towards whistleblowers and retaliatory action he took against
Mr. Paulson. We received this document late yesterday
afternoon. We are still reviewing the document. OSC requested
of the Chairman that the file be designated ``Committee
confidential.''
Last evening, my staff informed the Chairman's staff that I
would be asking questions based on this document. We asked the
Chairman's staff to let us know if he intended to designate the
document ``Committee confidential.'' To my knowledge, the
Chairman has not done so. I certainly do not think that it
would be appropriate to hide this information. I see no reason,
given Mr. Paulson's waiver, why this should not be available as
part of the full record. In fact, I was told repeatedly that
today's hearing, this very day, would be my one opportunity to
ask Mr. Jones any questions that I wished, and I certainly
intend to ask Mr. Jones questions about the allegations
described in the complaint.
I have additional procedural problems with this nomination
today, minor, but one which illustrates another basic breakdown
of routine protocol and the normal Committee process was the
delivery of certain routine nomination materials. When I
received a routine file required of all nominees, I noted
missing pages, two separate documents. I requested these from
the White House on May the 28th. One of the requested documents
was delivered to my office last night at 9:58 p.m. There was no
explanation for the delay. I have yet to receive the other
requested document.
Now, it is no secret that there have been a number of
controversial events that Mr. Jones has been involved in to one
degree or another. I have sent numerous letters to the
Department requesting information from or about Mr. Jones. In
many cases I have received no response or an incomplete
response, and here is a sampling.
On Fast and Furious subpoenaed documents, on October 12,
2011, the House Oversight and Government Relations Committee
requested records of the Attorney General's Advisory Committee
related to Operation Fast and Furious during a period that Mr.
Jones was committee chair. I reiterated that request on April
the 10th this year.
Secondly, ATF accountability for Fast and Furious. On
October 19, 2012, January 15, 2013, I requested information on
which ATF employees would be disciplined for their roles in
Fast and Furious.
Three, Fast and Furious interview requests. On October 7,
2011, through January 2012, I requested staff interviews with
Mr. Jones regarding Fast and Furious. I reiterated the request
to Mr. Jones April 10, 2013. The interview request on Reno,
Utah, ATF, U.S. Attorney's Office breakdown. My April 10, 2013,
letter also indicated that Mr. Jones' failure to act on Reno
management issues was another area of question to be covered in
the staff interview.
Five, interview request on Operation Fearless. An April 10,
2013, letter indicating that the botched Operation Fearless in
Milwaukee was another area of questions to be covered in the
staff interview.
Six, document request of Operation Fearless. On May 10,
2013, I sent Mr. Jones a letter requesting a copy of the Office
of Professional Responsibility's Security Operations Report on
the botched Milwaukee storefront operation.
Now, what has been the reply to all these requests? On June
4, 2013, nearly 2 months after my requests for many of these
items, I received a letter from the Department of Justice
stating in part, ``Mr. Jones looks forward to answering your
questions about these matters during this nomination hearing
before the Senate Judiciary Committee.'' I regret that the
Chairman has allowed the Department of Justice to dictate to us
how our oversight investigation will be conducted. Furthermore,
it is disappointing that the Department was allowed to hijack
this nomination hearing to suit their purpose, not ours.
But since we have held zero hearings dedicated to Fast and
Furious in this Committee, perhaps I should be happy that we
now have an opportunity to ask questions at all. The same goes
for other matters that I have mentioned.
On the St. Paul quid pro quo matter, I was able to have a
staff interview with Mr. Jones. Just to remind my colleagues
about this issue, I will give a brief summary.
February 3, 2012, the Department of Justice and the city of
St. Paul struck a deal. The terms of the quid pro quo were as
follows: The Department declined to intervene in two False
Claims Act cases that were pending against St. Paul, and St.
Paul withdrew its petition before the U.S. Supreme Court in
Magner, a case that observers believed would invalidate the use
of disparate impact theory under the Fair Housing Act.
But this was no ordinary settlement. Instead of furthering
the ends of justice, this settlement prevented the courts from
reviewing potentially meritorious claims and recovering
hundreds of millions of dollars to the U.S. Treasury.
The U.S. Attorney in Minnesota at the time of the quid pro
quo, Mr. Jones was serving both as U.S. Attorney and Acting
Director of the Bureau of Alcohol, Tobacco, and Firearms. Mr.
Jones was interviewed by Committee staff as part of the
investigation March 8, 2013. However, before agreeing to be
interviewed, the Department demanded that staff not be
permitted to ask Mr. Jones any questions other than those
involving the quid pro quo. Questions remain about whether he
was effectively managing both jobs as U.S. Attorney and the
Acting Director.
A further example: When asked by Committee staff about his
failure to attend the seminal meeting between the Department's
Civil Division and representatives from the city of St. Paul,
which occurred December 2011, he stated that he did not attend
because he had an event at ATF that precluded his attendance.
When pressed further, Mr. Jones indicated the important event
an ATF was a holiday party called ``Sweet Treats,'' and he felt
it was more important that he attend the event than it was to
attend the seminal meeting on two pending False Claims Act
cases in his district.
So there are many issues to cover in this hearing today and
beyond. For his part, in a June 10, 2013, article in the
Minneapolis Star Tribune, Mr. Jones said, ``I am looking
forward to meeting with the Committee and answering all their
questions.''
Now, I hope that that is the case today, that I will
finally get some answers. But even so, many questions remain
for the nominee.
The first question is, given the open complaint and all the
other concerns that I have addressed, why are we even here
today? I do not think anyone can provide a good answer to that
question. Proceeding today is premature. Frankly, it is unfair
to the nominee--unfair to the nominee to force these questions
today before the OSC process takes its course. But if the Chair
wants to insist on proceeding, it would be unfair to the public
if we failed to perform our due diligence and examine all of
these issues very carefully.
Thank you.
[The prepared statement of Ranking Member Grassley appears
as a submission for the record.]
Senator Klobuchar. Thank you, Senator Grassley. And you
will have that opportunity now after we hear the opening
statements to ask the nominees questions. I will point out that
the nominee wanted to go forward with this hearing. I think he
believes that the ATF deserves better. When there are people on
the front line investigating these crimes, they deserve better
than not having a permanent Director for 7 years because the
Senate will not confirm anyone. I just think that is wrong.
In response to some of the points you have made, I would
prefer to have Director Jones answer these questions. But,
first of all, to make clear, he came in after Fast and
Furious--after Fast and Furious--and was asked to come in to
clean it up. And I am sure we can hear from him about some of
the things that he did.
Secondly, on the issue of the St. Paul case, which has, I
know, been well discussed during the nomination of Mr. Perez,
Mr. Jones agreed to be questioned for an entire day by your
staff and Goodlatte's staff in the House.
Third, I would note that as far as the complaint that you
have brought up within the office, I would first note that Mr.
Jones supervises 2,300 people with the ATF, 125 with the U.S.
Attorney's Office. As Mr. Delery will tell anyone here, it is
not always easy to supervise lawyers and cops, but he has done
his best job. I think it is very important that that complaint
be heard out, and that is what is happening now. But to clarify
the timeline here, Todd Jones was nominated in January. By
March, the Committee-required materials on his nomination had
been received and made available to Senator Grassley and his
staff. A planned April hearing over Mr. Jones' nomination was
delayed after the Committee was notified of the complaint filed
with the U.S. Office of Special Counsel. Chairman Leahy
intended to wait until after OSC had finished its work, work
that is meant to be confidential, before holding this hearing.
In late April, after these allegations were unnecessarily
made public, the Chairman decided to proceed so that Todd Jones
could publicly defend his reputation.
Today's hearing was originally noticed for a week ago, but
at the Ranking Member's request, it was postponed until today.
Last week, OSC notified the Committee that the underlying
complaint made against Mr. Jones of management failures was
closed due to insufficient evidence, and that the second
allegations made of retaliation for raising the underlying
management issues with Todd Jones, as for that, as Senator
Grassley points out, the parties agreed to mediation. That is
the procedural status. Part of it was dismissed. The other
part, the parties have willingly both agreed to mediation, as
often happens in employee matters across the Government.
Satisfied that the issues before the OSC were being resolved,
Chairman Leahy determined that today's hearing should move
forward, and he asked me to chair it.
This past Friday, Senator Grassley notified the Chairman
that he intended to invoke a not very much used Senate rule--in
fact, as far as I know, we have not seen witnesses to be called
in hearings involving nominees that are not at the Cabinet
level. He decided to invoke a Senate rule to have outside
witnesses testify at today's hearing. Instead of saying no to
that request, the Chairman agreed to that request. I personally
called Senator Grassley on Sunday morning to let him know that
we had agreed to that request, and we found our own witness.
Then Senator Grassley said he did not have time to get the
witness. Chairman Leahy sought to accommodate the Ranking
Member by offering to invite outside witnesses to be cleared to
come before the Committee today, and the witness was not ready.
So that is what the procedural status is of that particular
allegation.
The other thing I did want to note, I think we all know
that crime rates are affected by many things--by work of
police, by work of prosecutors, by many things. But I will note
as we look at the bigger picture here of Mr. Jones as U.S.
Attorney in Minnesota from 1998 to 2001--that would be his
first term as U.S. Attorney under President Clinton--the
violent crime rate decreased by 15 percent, and so far during
his second tenure, which began in 2009, the FBI statistics show
that the violent crime rate has already decreased by 9 percent.
I do not hold him responsible for those numbers. I just want to
note that because of the work that goes on between the local,
State, and Federal law enforcement in Minnesota, they have had
some major successes.
I would also note that Tom Heffelfinger, who was appointed
U.S. Attorney by both Presidents George H.W. Bush and his son,
George W. Bush, also serving two terms under Republican
Presidents, specifically rebutted the allegations in the former
FBI SAC's letter, and he said this: ``One year in Minnesota is
hardly long enough to learn how to shovel snow, much less long
enough to learn what Mr. Jones' reputation is among local,
State, and Federal law enforcement officials.''
Ralph Boelter, the special agent in charge of the FBI
Minneapolis office from 2007 to 2011, told the Associated Press
that he had a good relationship with Jones. ``We were in
sync,'' he said. ``Boelter said he did not experience anything
like the behavior Oswald described. He said when he had an
issue, Jones was `attentive to it, he was sensitive to it and
he responded to it.' ''
I think anyone involved in law enforcement knows there are
going to be disagreements, there are going to be issues. People
have different interpretations of decisions. There are outside
forces at work. In this case, Todd Jones was supervising two
major offices at the same time for nearly 2 years, and it is my
belief that the ATF deserves a permanent head, and I hope we
can now go forward with this hearing and with the testimony.
So, with that, I am going to swear in the witnesses here,
or the nominees. Do you affirm that the testimony you are about
to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Jones. I do.
Mr. Delery. I do.
Senator Klobuchar. Thank you. We will start with Mr. Jones.
STATEMENT OF B. TODD JONES, NOMINEE TO BE DIRECTOR OF THE
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES
Mr. Jones. Good morning, Madam Chairwoman, Ranking Member
Grassley, and Members of the Committee. Thank you for those
generous introductions and the recitation of my entire
professional career and for the chance to be here today to
answer questions. I am honored to be considered as the
President's nominee as the Director of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives.
Permit me a moment to thank my family for their incredible
love and support. As you mentioned, Senator, my oldest son,
Anthony, is here representing the family, but my wife,
Margaret, is the tie that binds our family together. She
shouldered much of the burdens and joys that come with raising
five kids. She is in St. Paul with my youngest son, Lucas, who
just finished his junior year of high school. My two daughters
are there with her in St. Paul. My youngest daughter, Monica,
recently graduated from the University of Minnesota and is
moving to Seattle in the next week to start her career in her
life. And my oldest daughter, Stephanie, is on home leave from
teaching in Nicaragua. So the core group is there in Minnesota.
My other son, Michael, is a graduate student in architecture in
Seattle, and hopefully he will keep an eye on Monica when she
gets out there. But as you mentioned, Senator, my oldest son,
Anthony, is here. He lives here in DC. He works at the House of
Representatives. We did not get to see much of each other the
first couple years of his life because I was deployed pretty
regularly in the Marine Corps. But if you choose to approve
this nomination, Anthony is probably going to find himself with
a new roommate.
Over the years, my family has sacrificed a great deal to
allow me to pursue a career in public service, and that career
began in 1977, when I was fortunate enough to do constituency
work for Senator Hubert Humphrey, who epitomized public service
in the best Minnesota tradition, and he inspired me to follow
that path.
And as was mentioned, after graduating from law school at
the University of Minnesota, I joined the United States Marine
Corps, and that was a decision that changed my life and made me
the person that you see sitting before you today.
My formal leadership training began in the Marine Corps,
and while I joined to be a trial lawyer, much to Margaret's
chagrin, I was so energized by the experience, the challenges,
the spirit, and camaraderie of basic training that I stayed an
infantry officer for the first several years of my active-duty
time.
During that time, I learned the importance of concepts like
unit cohesion, readiness and training, and staying focused on
the mission. The Marines taught me about leadership and leading
people toward a common goal. And in the end, I learned it was
not ever about me. It was about the team. It was about the
unit. It was about the collective work together to attain that
goal.
I have continued to employ those principles during the two
times I have been U.S. Attorney in the District of Minnesota, a
job that it has been an honor and a privilege to serve in, and
as the Senator mentioned, my team in Minnesota has tackled a
variety of complex cases from the largest Ponzi schemes to
national security work we do investigating the terrorist
organization Al-Shabaab. And I have continued to rely on those
experiences in my current capacity as Acting Director of ATF.
And when I came to ATF in September 2011, I found an agency
in distress. Poor morale undermined the efforts of the
overwhelming majority of ATF. These hardworking, devoted public
servants are committed, absolutely committed to the mission of
professional law enforcement. I listened to them the first
several months I was there. I learned a lot from them. And I
took firm, immediate steps to address their concerns and the
strategic needs of the Bureau.
I built a new leadership team, appointing 22 new special
agents in charge, 23 headquarters executives, conducted a top-
to-bottom review of all ATF policies and procedures, and we
have overhauled nearly 50 orders and directives. And since my
arrival, I have worked to refocus the Bureau on its mission to
combat violent crime and to enhance public safety. And I am
proud to say that the men and women at ATF have responded with
professionalism and dedication.
Senator, you mentioned some of the recent events that ATF
has been involved in from Newtown to Boston, from West, Texas,
to Stockton, California. And we will continue to do our job,
and should the Senate confirm my appointment, I look forward to
leading these men and women permanently and to help them carry
out this very important mission.
And I look forward to answering your questions. Thank you.
[The biographical information and the prepared statement of
Mr. Jones appear as submissions for the record.]
Senator Klobuchar. Thank you very much.
Mr. Delery, it looks like you have a happy family behind
you there, so please start.
STATEMENT OF STUART F. DELERY, NOMINEE TO BE ASSISTANT ATTORNEY
GENERAL OF THE CIVIL DIVISION
Mr. Delery. Thank you, Madam Chairwoman, Ranking Member
Grassley, and Members of the Committee. I am deeply honored to
appear before you today as the nominee to be Assistant Attorney
General for the Civil Division, and I thank you for your
consideration. I would also at the outset like to thank the
President for nominating me and the Attorney General for his
support.
I do have a number of family members here today, and with
the Chair's invitation, I would like to introduce them.
Senator Klobuchar. Please do. I think I can tell who they
are, though.
Mr. Delery. First is my partner, Richard Gervase. I would
not be here without the support that he has given me over the
last 20 years, since we were classmates in law school. And in
addition to being a great father, he is a terrific lawyer, and
I have been improved by his intelligence, judgment, integrity,
and sense of justice.
Our children, Michael and Sebastian, are the joys of my
life, and they are here today to see a little bit about how
their Government works, so I thank them for doing that.
And I owe a deep debt to my parents for the firm foundation
that they gave me. My father, Gus Delery, was an engineer who
worked his entire career for Louisiana Power and Light, and he
passed away back in 1996, but set a striking example for me of
hard work, dedication, and character, and I miss him. But my
mother, Elizabeth Towe, is here along with her husband, Harry
Towe, and Mom was the first women's athletics director at
Tulane University, and I watched as she built a program from
the ground up. And I have kept those lessons in mind as I have
learned myself how to be a leader.
Both Mom and Harry are the children of people who were in
public service. My grandfather, in addition to serving in the
Army in both World War I and World War II, was a career lawyer
in the Justice Department for more than 30 years, including in
the Civil Division, and so I am honored to be following in his
footsteps. And Harry's father was a Congressman from New
Jersey, a Republican, in the 1940s and 1950s.
I also have my sister here, Janet Delery, who is a school
teacher in Charlotte, North Carolina, and she made it here
about 1:30 in the morning because of the storms. I am grateful
that she persevered to be here.
And, finally, one of Harry's daughters, Margaret Kirtland,
is here. She flew from her home in New Orleans to North
Carolina to help Mom and Harry get here today, and so I am very
grateful to her for doing that.
And then, finally, I have a number of other friends here. I
am very touched that they are here, and in particular, my
colleagues in the Justice Department.
Madam Chairwoman, it has been a real privilege to work with
the talented and dedicated lawyers and staff of the Civil
Division over the past year, and it is an honor to be nominated
to lead them now.
The Division's greatest resource is its people who come to
work every day with a single-minded dedication to protecting
the interests of the country and its citizens, whether by
defending Government programs and the national security or
safeguarding taxpayer funds from fraud or protecting the health
and safety of all Americans. If I am fortunate enough to be
confirmed, I will bring to this job a commitment to zealous in
court on behalf of our Nation, to giving candid advice, to
hearing all sides of an issue with fairness and respect, and
perhaps most importantly, to working tirelessly with our strong
team of career professionals to defend and advance the
interests of the United States.
And so, again, I thank you for your consideration, and I
look forward to any questions that you may have.
[The biographical information and the prepared statement of
Mr. Delery appear as submissions for the record.]
Senator Klobuchar. Thank you very much, Mr. Delery.
I note that Senator Durbin was here earlier, and he is
going to put some questions on the record because he has to go
to a Defense hearing that is important. And I know Senator
Coons is going to try to return, and others will be here.
[The questions of Senator Durbin appear as a submission for
the record.]
Senator Klobuchar. I guess I will start with a question for
you. I will explain to your family, to your sons especially, if
less of the questions are devoted to your Dad, that does not
mean it is a bad thing. All right?
[Laughter.]
Senator Klobuchar. Mr. Delery, can you--I think any of us
can read the job description of Assistant Attorney General for
the Civil Division, but having done this role on an interim
basis, how do you see your role? What are your primary
responsibilities? What direction do you want to take the
Division?
Mr. Delery. Well, Senator, thank you for giving me a chance
to talk a little bit about what the Division does and the
vision for it.
There are really two main roles. The Civil Division defends
the Government when it is sued, whether that is in a
constitutional challenge or a suit for money damages, for
breach of contract or personal liability. But then we also
bring affirmative cases to pursue money that is lost to the
taxpayers because of fraud, waste, and abuse or to protect
consumers and to protect the safety of the food that we eat and
the medicines that we take. And so if I am fortunate enough to
be confirmed, I will continue to pursue several priorities. One
of them, and the most important for the Department and the
Division, is protecting national security. We do play a role in
a number of pieces of litigation related to those issues.
I will also continue to use the powerful tool of the False
Claims Act as well as other tools to pursue fraud against the
Government. Last fiscal year, we had a record recovery of more
than--or just about $5 billion under the False Claims Act that
I know Senator Grassley and other Members of this Committee
have supported over the years, and I will continue to make that
a priority, if confirmed.
And then, finally, our work related to health and safety,
to pursuing cases like the one that we brought a few months ago
against executives of a peanut butter manufacturer because of a
salmonella outbreak. We take very seriously our partnership on
those issues with the FDA and will continue to work to protect
the safety of the food we eat, medicines, the toys children
play with, and the like.
Senator Klobuchar. Very good. Thank you. Actually, as you
probably know, three of the victims from that peanut butter
outbreak were from Minnesota, including a grandmother who one
day just ate a piece of toast, and they lost her. And she was
an incredible woman, so I really thank you for going forward
with that somewhat difficult case. Thank you for doing that.
Mr. Delery. Thank you.
Senator Klobuchar. Mr. Jones, as I noted, the ATF has not
had a permanent Director since 2006 when the law was changed
requiring the Director to be Senate-confirmed. I think Senator
Durbin has either put in or is talking about putting in a bill
to put the ATF under the FBI because of the fact that we just
cannot continue like this. It is not fair to you. It is not
fair to the agency. And I think it has to change, and one way
we can show it has changed is by confirming you as Director.
There are many reasons why the heads of certain agencies
are made confirmable by the Senate, and one of those is because
we want the individual to be fully accountable to Congress, and
also the men and women who work at that agency.
First, I would like to ask you, why is it so important for
the ATF to have a confirmed full-time Director? What will a
confirmed Director mean for the roughly 2,300 agents of the
ATF?
Mr. Jones. Thank you for that question, Senator, and I have
given it a lot of thought. While I have learned over the last
almost 2 years that ATF is a very resilient organization and
there are great public servants there, I think it is absolutely
critical that they have a permanent Director. Having been twice
confirmed by this body as United States Senator, I know that
the imprimatur of this organization is one that is really
important. It has impacted morale. It does send a message not
only to the employees within ATF that they have been so long
without a permanent Director after having several actors over
the last 7 years, it does impact morale.
I think it is also a fundamental question of good
government because, as you mentioned, being a confirmed
appointee does carry a certain amount of gravitas so that you
can be a more effective advocate for resources, so that you can
be accountable to this body and to the organization that you
work with, in this case the Department of Justice. Decisiveness
is a critical quality for anyone who is in a leadership
position, but decisiveness with credibility I think is also
absolutely critical. And a series of actors, no matter how
skilled, does diminish the credibility that you are going to
have continuity of operations, that the vision is going to stay
sure, and that the mission will be accomplished.
So at its core, it is good government to have a confirmed
Director at all of the agencies in the executive branch that
are subject to Senate confirmation.
Senator Klobuchar. Thank you.
All of us on this Committee had concerns about what
happened during the Fast and Furious Operation. You were named
Acting Director shortly after the Fast and Furious
whistleblowers came forward. The President named you because he
felt you had the knowledge, experience, and leadership to put
the ATF back on the right path.
Can you tell us the steps you have taken and the safeguards
you have put in place to make sure operations like that cannot
happen again and that any major operation is fully vetted up
the chain of command? And after something like Fast and Furious
comes to light, we all want to know what appropriate
disciplinary action is being taken against the people who acted
wrongly. Could you also talk about the steps you have taken to
discipline or terminate people involved?
Mr. Jones. Well, with respect to your first question,
Senator, I think that it is important to note that the
Inspector General did do an extensive report and made
recommendations and identified problems. When I arrived at ATF
in September of 2011, as I mentioned, it was an agency very
much in distress, and the first thing that I did was go to the
Phoenix Field Division and visit sort of the ground zero for a
lot of the controversy that evolved.
But one of the first things that I did was look at who was
in positions of responsibility, who was in leadership
positions, and there has been a number of changes. None of the
individuals who were identified in leadership positions during
the Fast and Furious incident are currently in place. We have,
as I mentioned, 22 new special agents in charge. We have a
number of assistant directors. Six out of the eight assistant
directors who help me as a team lead ATF are new, and all of
them have experience as former special agents in charge.
We are continuously in the process of implementing and
following through and executing on many of their
recommendations made in the IG's report, but we did not wait
for the IG's report to come out. We knew that there was a
failure in leadership and oversight.
One of the first things we did was issue and clarify our
firearms transfer policy with the underpinnings being that
public safety always trumps investigative needs.
We have reviewed our undercover order. We have reviewed our
confidential informant order. We have instituted and continue
to exercise a monitored case program. But these are just some
of the internal fixes. More than anything else, I think it was
important to keep the agency's eye on what its underlying
mission is, which is public safety, because ATF plays such a
critical role within the Department of Justice in the fight
against violent crime, in the explosives arena, in the arson
arena. And it is important that we do not have public safety
suffer as a result of continuous critical examination.
Senator Klobuchar. Okay. I am going to have one more
question and then hope to keep my questions under 10 minutes.
If Senator Grassley could do the same, I am sure we will have a
second round, and then so we will give the other Senators a
chance here to ask some questions.
There have been questions raised about decreasing numbers
of Federal prosecutions in Minnesota with respect to violent
crimes, including gang, drug, and gun offenses. When I was
county attorney in Hennepin County, I worked closely with you
and your predecessors, the other U.S. Attorneys, to make sure
that we tackled the tough criminal cases. I also worked with
your successors, including Tom Heffelfinger, to make sure we
made the most effective and efficient use of Federal resources.
I still remember after 9/11 that the U.S. Attorney's Office
was focused in Minnesota, having caught one of the terrorists
in our State, on those terrorism type cases, and our office,
the county attorney's office, started doing many more white-
collar cases at many higher amounts than we had done before.
And I did that when Bush was President, working with the U.S.
Attorney's Office. We took on significant more white-collar
criminal prosecutions. So I understand how there can be this
ebb and flow, depending on resources and depending on the types
of crimes.
Gang, drug, and gun cases were some of the areas that I was
focused on as county attorney. I know they are important to
you, so I am hoping you can address the concerns that have been
raised and explain why some of the numbers out of the U.S.
Attorney's Office may be down. Is it a trend? Is it an anomaly?
Is it something else? Thank you.
Mr. Jones. Senator, I believe that the statistics that you
cite only tell part of the story. Over the last several years,
the Department of Justice in general, and in particular the
District of Minnesota, which is somewhat unique in that we
cover the entire State and we have the full range of Federal
challenges. We have got Indian country. We have got a border
with Canada. We have a major metropolitan center with all of
the respective violent gun crime, gang, drug, and financial
fraud issues. It really has been a challenge in this period of
diminishing resources--and not that the lack of resources is
any excuse--to look and be smart about how we utilize those
resources.
As you well know, our partnership with our State
counterparts, the 87 county attorneys in Minnesota, is
absolutely critical for us collectively to do our jobs, and
what we have essentially done is looked at what are uniquely
Federal issues that the State cannot handle, what are DOJ
priorities like national security and Indian country, and where
we have concurrent jurisdiction, as in the gun and drug area,
we are making smart choices so that the worst of the worst, so
that organizations who deal in drugs, so that armed career
criminals are appropriately handled in Federal court.
Over the last several years, as you mentioned earlier, we
have had a string of very complex cases that have gone to
trial: Tom Petters; there is a trial with Frank Vennes going on
right now; mortgage fraud cases; and, of course, our national
security cases, two of which of those actually went to trial.
So the folks in the District of Minnesota U.S. Attorney's
Office, both in the criminal and civil division, have been
working very hard with a very active caseload. And our bottom
line is we are focused on impact cases. We are focused on cases
that augment what State and local prosecutors do, and we are
focused on cases that fit within the priorities of the
Department of Justice. And as a result, our raw numbers have
dropped. But we are making a difference.
Senator Klobuchar. Thank you very much. I will turn it over
to Senator Grassley.
Senator Grassley. Madam Chairman, before I ask questions,
there are a couple things I want to clear up in your rebuttal
to my statement.
She is absolutely right that there has been 6 years without
a confirmed head, but remember that it was 2 years after the
President was elected before a nominee was even sent up here.
So we cannot confirm anybody that is not sent up here.
And then when Mr. Traver was sent up here, the Committee
asked for additional information, which was never provided;
therefore, he never had a hearing. And, of course, if the
Committee asks for additional information and that information
is not given and you cannot have a hearing without it, that
obviously is either the nominee's or the White House's fault.
Then Mr. Traver's nomination was withdrawn at the end of the
last Congress, and Mr. Jones was nominated January 24th, and we
started talking about the hearing in April.
Then there is one other point that I would make, and that
is in regard to what you said, and it is not inaccurate, what
you said, but I want to point out that when this goes to OSC
and it is in mediation, there is a big difference between being
resolved and the President--or the Chairman in his letter to me
saying it is resolved, because OSC, as I said in my statement,
has made very clear that it is not resolved.
Thank you, Mr. Delery, for speaking about false claims,
because I ask every Attorney General nominee, wherever they are
in the Department, about it because I am the author of that
legislation, and I am very glad to know that you are going to
use it vigorously.
Mr. Jones, you would not expect me to not be concerned
about whistleblowers. I am sure you know my reputation in that
area. And not every whistleblower would necessarily be right,
but every whistleblower is entitled to a hearing, either when
they are personally affected and retaliated against or in the
case of somebody bringing information forward, they ought to
have that information considered. And I have come to the
conclusion a long time ago that whistleblowers are about as
respected in their organization as skunks are at a picnic. So I
think they need a lot of consideration because they give us a
lot of valuable information.
On March 6, 2013, an employee of yours filed a complaint
with Special Counsel alleging you personally undertook ``a
prohibited personnel action'' against him in retaliation for
his raising concerns about gross mismanagement within the U.S.
Attorney's Office. This employee has 30 years as a Federal
employee, 24 of those years in the U.S. Attorney's Office in
Minnesota. The employee alleges that after bringing serious
concerns about mismanagement in the office to your attention,
he was suspended for 5 days without pay and involuntarily
transferred to a new section in the office.
The complaint also raises allegations about the appointment
of an attorney to a supervisory position despite concerns about
her performance by Federal and State law enforcement and judges
on the Federal bench. The Special Counsel wrote to us yesterday
stating that the complaint was referred for investigation April
of this year and that the investigation remains open with the
possibility of mediation. Because the majority scheduled your
hearing despite the fact that this investigation is pending,
that is why I bring this matter up.
You were quoted in the Star Tribune as saying, ``I am
looking forward to meeting with the Committee and answering all
their questions.'' Based on that, I am going to assume that you
will answer the questions I ask you today.
First question: Mr. Oswald, former special agent in charge,
FBI Minneapolis, wrote a detailed letter this January alleging
you mismanaged the office and had ``an atrocious professional
reputation with the Federal law enforcement community.'' A 24-
year veteran Assistant U.S. Attorney filed a complaint with the
Office of Special Counsel against you which corroborates the
account. Have you been interviewed by the Office of Special
Counsel? And if so, when?
Mr. Jones. Senator, to answer your last question first, I
am aware that the OSC has requested information from our office
in the District of Minnesota. Because those complaints are
confidential as a matter of law, I have not seen the substance
of the complaints, nor can I comment on them. I have learned
more from your statement today than I knew before I came here
this morning about the nature and substance of the complaint.
I can assure you that I have always taken very seriously
the duty my office has to follow all the laws and regulations,
not engage in a prohibited personnel practice, and to be very
sensitive to the issues surrounding those that you have so
vigorously advocated for over the years with respect to
whistleblower protection.
Senator Grassley. So you have not been interviewed then by
Special Counsel?
Mr. Jones. I have not, Senator.
Senator Grassley. Other than the FBI special agent in
charge and the Assistant U.S. Attorney who filed the complaint
with the Office of Special Counsel, are you aware of any other
individuals in your office who raised similar concerns? And if
so, who?
Mr. Jones. I am not aware of any other complaints, Your
Honor--Your Honor? Senator. This is like a courtroom.
[Laughter.]
Senator Grassley. Well, I feel----
Mr. Jones. I feel like a defendant.
[Laughter.]
Senator Grassley. And as a farmer, I feel honored.
Have you taken any adverse personnel actions against anyone
who complained about how you were managing the office?
Mr. Jones. You know, Senator, that is--thank you for the
question. I have had the opportunity to be in a management
position both in the public and private sector. I have always
tried to approach that position of responsibility with respect
for those that I work for in a collaborative nature, but always
with expectations, and I have----
Senator Grassley. So I think the answer to my question is
you do not feel you have taken any adverse action against
anyone who complained about how you were managing the office.
Are you aware of the anonymous complaint filed July 20,
2012, signed by ``Employees of the U.S. Attorney's Office for
the District of Minnesota''? Those employees wrote--well, are
you aware--well, no. Let me go on. Those employees wrote,
``Since he became U.S. Attorney here in Minnesota, he has
instituted a climate of fear, has pushed employees out of the
office, dismissed employees wrongly, violated the hiring
practices of EEOC, and put in place an Orwellian style of
management that continues to polarize the office.''
Did you at any time learn who these individuals were? Did
you take any adverse personnel action against them?
Mr. Jones. Senator, I recently saw a copy of that anonymous
letter. Again, I have not taken adverse actions against anyone
that I have worked with. I was quite surprised by the nature of
the allegations, whether it is at ATF or at the U.S. Attorney's
Office. In both situations I came into a less than perfect
environment, and I quite frankly have been an agent of change,
and change is hard sometimes for individuals to deal with. And
I have always had a focus on doing the right thing for the
right reasons, and sometimes folks are not happy about the
direction overall.
Senator Grassley. Okay. Now, I am including in that
statement about adverse personnel action an unwanted
retaliatory transfer. Does that change your answer?
Mr. Jones. Again, Senator, I am not familiar with the OSC
complaint, and I am at somewhat of a disadvantage with the
facts. I can say that Privacy Act considerations do fit into
the picture. I have a certain awareness about disciplinary
processes, but, again, it has never been my practice to engage
in retaliatory employment practices.
Senator Grassley. Will you answer the complaints about the
Assistant U.S. Attorney when the--because that is why you are
here today. How are we supposed to ask about these allegations
if we cannot ask you?
Mr. Jones. Well, quite frankly, Senator, I am at a
disadvantage with the facts. There is a process in place. I
have not seen the OSC complaint. I do know that our office,
working with the Executive Office of U.S. Attorneys, is in the
process of responding to the issues that you have talked about
this morning, but I have not had the opportunity to either be
interviewed or have any greater knowledge about what the OSC
complaint is.
Senator Grassley. Well, you know, I am kind of
uncomfortable asking these questions because we should not have
been moving forward with this hearing, but the Chairman said
this was the opportunity for us to have this interview with you
and to get these questions answered. And, of course, you agreed
to answer all the questions, so I would ask that you answer
them. But if you do not answer, you know, that is the way it
has to be.
Do we want to go to the Senator from Connecticut?
Senator Klobuchar. That would be very helpful, thank you,
because he has something else. I appreciate that, Senator
Grassley.
I also wanted to put on the record the letters from law
enforcement in support of Todd Jones, including the Fraternal
Order of Police, the International Association of Chiefs of
Police, former U.S. Attorneys including Tom Heffelfinger, the
Republican appointee under both President Bushes, Members of
Congress, Minnesota County Attorneys Association, several
Minnesota county attorneys from across our State, the National
District Attorneys Association, several former Assistant U.S.
Attorneys, and the former magistrate judge for the District of
Minnesota.
I did want to read one of the letters into the record from
Beth Hill to Todd Jones. Ms. Hill's son, Otahl Saunders, his
wife, and her 15-year-old daughter were murdered by two men in
a brutal home invasion in St. Paul, Minnesota, in 2007.
Unfortunately, the case lingered for 2 years. When Mr. Jones
returned to the U.S. Attorney's Office in 2009, Ms. Hill
contacted him and asked him to review the case. Mr. Jones'
office investigated the case and obtained convictions against
the perpetrators. In 2011, both of the men were sentenced to
life in prison on three counts of murder.
In her letter she says, ``In my son's keepsake box, I have
the handwritten note that you sent me in response to my plea to
you for justice for Otahl, Maria, and Brittany. You did not
promise me anything but a commitment to review my case when you
came into the office. Your note gave me hope and the strength
to continue to fight for justice for my children.''
She wrote to wish him well and success in his new
leadership role at ATF, writing, ``When the job feels like you
cannot go on and the odds seem stacked against you, think about
mothers like me who will rely on you to help stop senseless
violence and move this country forward.'' I thought those were
pretty powerful words, and I will also include that letter on
the record.
We also have letters of support, as I mentioned, for Mr.
Delery from former Justice Department officials from previous
administrations, both Republican and Democratic, that will also
be entered into the record.
[The letters appear as submissions for the record.]
Senator Klobuchar. With that, I turn it over to Senator
Blumenthal.
Senator Blumenthal. Thank you, Madam Chairman, and thank
you both for being here today. I thank each of you for your
public service, particularly, Mr. Jones, your service in the
Marine Corps as well as in the United States Attorney's Office
in Minnesota and, Mr. Delery, for your service in the
Department of Justice as well as in private litigation.
Mr. Jones, as you well know probably better than any of us
here, there has been a lot of debate about the ways to promote
more prosecutions under existing law that is designed to
prevent gun violence, and even for some of us who strongly
favor improvements to that law, the question is: What can we do
to promote more rigorous and vigorous enforcement of existing
laws that relate to either illegal purchases or illegal
possession of firearms? And my own view is that inadequate
resources are a major reason for the lack of sufficient
prosecutions or the failure to increase the number. And I would
like you to comment on what you view as the reasons--or the
ways that we can improve that rate of prosecution.
Mr. Jones. Well, two things, Senator. One is you need a
vibrant and healthy ATF. Part of the reason I am here for this
process is because they need a confirmed Director. They have
never had one, and for all the reasons we previously mentioned,
that is an impediment to give stability, direction, and
guidance, not--
Senator Blumenthal. And I heard your testimony, and I agree
that a confirmed leader is absolutely essential to provide
direction and vision and the kind of basic leadership. But in
addition to that?
Mr. Jones. Well, the ATF is not completely healthy. Its
biggest challenge is its human capital. It has been subject, as
some Federal agencies, to the ebb and flow of hiring, but one
of our biggest challenges is in the next 5 years the attrition
among our special agent community. The special agents are at
the core of our criminal investigative processes, and because
of the mandatory retirement age for Federal law enforcement, we
are going to have nearly a third of our special agent community
become retirement eligible.
The resources and the opportunity to bring on new special
agents, which does take time, has not been sufficient for one-
to-one replacement, and so----
Senator Blumenthal. What is the median age of your agents?
Mr. Jones. Our special agent community is one of the more
senior in Federal law enforcement. I do not know the median
age, but it is a very experienced workforce, and because of the
nature of the work that ATF does in arsons and explosives and
investigations, it takes time to develop that expertise. We
call it the ``brain drain,'' and we are aggressively, even in
the current environment, looking at that knowledge transfer.
But that human capital for continuity and maintaining our
current status and abilities is probably one of the biggest
challenges we face over the next several years.
Senator Blumenthal. And would resources help you to attract
more qualified potential agents, special agents at the ATF?
Mr. Jones. You know, that helps, but I think some of the
other constraints that we have been operating under with a
hiring freeze, with some of our abilities to be--Schedule B,
for example, to bring on agents, there is a lot of talent out
there, and there is a lot of talent inside the Bureau. But what
we need to do is very quickly match that up so that we do not
diminish our capacity.
Senator Blumenthal. ATF, as you know, has a strong history
of responding to high-profile incidents and investigations, as
you did in Sandy Hook. And perhaps you can talk about the ATF's
role under your leadership at Sandy Hook, which was
particularly important to my State of Connecticut and to me,
having spent a lot of time there with the community.
Mr. Jones. Well, the tragic school shooting in Newtown at
Sandy Hook was a seminal event for us personally and for ATF.
ATF, of course, is one of several Federal law enforcement
components, and so our immediate response, in addition to
bringing agents from around the region down there, was, of
course, to ensure the safety of the school and the community
but, more importantly, to work with other Federal and State--
importantly, the State Police and the local police department,
as is our practice, to focus in on the firearms issues. There
is an examination of the Federal firearms licensee that Mrs.
Lanza purchased the weapon from. There was initial forensic
work done with the weapons, but always in partnership with the
Connecticut State Police, with the local police department, and
with our brother agency at the Federal Bureau of Investigation.
Senator Blumenthal. I want to thank your agency and the
special agents who were there for not only the rigor but also
the sensitivity that they demonstrated from the very first
hours that they arrived there and began interviewing everyone
involved for a potential firearms violation, including some of
the licensed firearms dealers in the area and others who might
have knowledge working very closely with our State Police who
led the investigation. The investigation is ongoing, as you
know, and, again, my thanks to the special agents who were
there and to your agency.
Thank you, Madam Chairman.
Senator Klobuchar. Thank you very much, Senator.
Senator Flake.
Senator Flake. Thank you.
Acting Director Jones, in answer to a previous question,
you stated that none of the individuals in leadership during
Fast and Furious are now in place. What does that mean? Were
they removed? Are they just gone by virtue of attrition? What
does that mean?
Mr. Jones. What it means, Senator, is that folks that--
individuals who were primarily in the Executive Service have
either retired or resigned or have left the Bureau of Alcohol,
Tobacco, Firearms, and Explosives. The personnel processes can
be somewhat dicey. The Privacy Act issues sort of preclude me
from giving you a more fulsome description, but from the former
Acting Director down to the group supervisor in the Phoenix
Field Division, they are no longer in positions of
responsibility and leadership within ATF.
Senator Flake. Was anyone disciplined?
Mr. Jones. Yes.
Senator Flake. Are you at liberty to share who and when?
Mr. Jones. Not really because of the privacy--I am being
very dicey. We can respond once I get some clearance. I am
being very careful and very respectful of the privacy issues
that are involved with making disclosures with some
specificity. But there was discipline imposed throughout the
chain of individuals involved.
Senator Flake. Well, when you are at liberty to share that,
we would certainly need to know that.
Can you tell us what disciplinary action was taken without
revealing names?
Mr. Jones. We have a range of options internally, ranging
from termination from employment, which would then be subject
to a different appeal process, to demotions from your grades,
down to moving people into non-supervisory positions.
Senator Flake. And which of those were taken, which of
those actions?
Mr. Jones. I think a combination of all of them.
Senator Flake. So termination?
Mr. Jones. I think the full range of our disciplinary tools
were utilized in handling the issues that arose as a result of
the IG report and our own internal affairs examination.
Senator Flake. So from termination to demotion or removal--
--
Mr. Jones. You know, one of the challenges, Senator, to be
quite candid with you is because of the leadership positions,
the supervisory nature of the positions, there were individuals
who were eligible for retirement, and so in some instances the
disciplinary process was cut off by the fact that individuals
did submit resignations.
Senator Flake. Does that describe all of those who were----
Mr. Jones. Not all of them, Senator.
Senator Flake. So some of them actually were demoted or
terminated.
Mr. Jones. Some individuals were on the disciplinary
process that opted to retire if they were eligible.
Senator Flake. It is important for us to have that
information and for what can be shared to be shared, because I
can tell you, particularly coming from Arizona, which was the
scene for a lot of this, there is a lot of mistrust, and people
do not think that anybody is held to account at any time. And
it is difficult for any of us to say with any surety that they
were without this kind of information. So we will be following
up, but to the extent that information can be put out in terms
of disciplinary action, honoring any privacy rules that we
have, but I think it is important to do so.
Let me just bring up one case. During your tenure as Acting
Director of ATF, there was a disagreement between the Reno ATF
that was alluded to by Senator Grassley--a disagreement between
the Reno ATF and the U.S. Attorney's office for the District of
Nevada that resulted in the ATF not being able to submit cases
for prosecution for a full year, 2011 to 2012. The Reno Gazette
Journal asserted that ATF's lack of action on this issue
constituted a public safety threat, yet when the issue was
brought to your attention, ATF whistleblowers said that you had
mentioned that you had bigger things to worry about, and it was
not until there was a letter from Senator Grassley that this
issue was addressed and action was taken. But then it was just,
as I understand it, to transfer agents to other offices, which
left the Reno office understaffed.
Was this issue handled appropriately, in your view?
Mr. Jones. Well, this was yet again one of those issues
that was what I call my inheritances, and let me assure you
that public safety was never at risk in the District of Nevada.
And as a U.S. Attorney, I was very dismayed when I first heard
of a disconnect between the Federal prosecution office and ATF.
One of our challenges has been making sure that we have
accountable leadership and oversight so I can assure you and
the public in Nevada that we have got new leadership in the San
Francisco Field Division, we have very good communications with
the special agent in charge, very good communications with the
Reno office, which is a satellite in Nevada from the Las Vegas.
We have shifted agents, as I mentioned earlier. One of our
resources challenges is where we are putting our limited
resources based on the needs in the violent crime front. We
currently have two full-time and soon to be three agents in
Reno. We have enhanced the working relationship, and we are on
a good path in Reno to fix whatever concerns historically
existed there.
Senator Flake. So you believe you have moved swiftly enough
on that particular case?
Mr. Jones. Yes, I do.
Senator Flake. Thank you.
Senator Klobuchar. Thank you.
Senator Franken.
Senator Franken. Thank you, Senator Klobuchar, for chairing
this and for this hearing. I apologize for getting here a
little late. I have been in the HELP Committee where we are
doing the markup of the Elementary and Secondary Education Act
reauthorization, so I am going to also have to be leaving.
But first, Mr. Jones, I would like to thank you for your
service to the State of Minnesota. I know Senator Klobuchar
feels the same way. After taking the bar exam, you did not join
a law firm. You joined the United States Marines. And you have
been serving our country in various capacities for much of your
career since then, so I just wanted to start out by thanking
you for that.
I also want to take this opportunity to acknowledge the
many brave ATF agents who responded courageously and
professionally to the bombing at the Boston Marathon and to the
recent Texas plant explosion. Mr. Jones, your nomination to be
ATF's permanent Director arose out of the shooting at Sandy
Hook, but these other recent events remind us that the ATF's
role extends beyond gun issues.
Mr. Delery, thank you for meeting with me. I enjoyed our
discussion a few weeks ago. Congratulations on your nomination
as well. You have done some tremendous work at the Department
on issues like marriage equality and holding credit rating
agencies accountable for their role in the financial collapse,
so thank you for being here to answer the Committee's
questions.
I will go right to my questions now. Mr. Jones, since you
were named ATF's Acting Director in August of 2011, you somehow
managed to run that Bureau while also serving as U.S. Attorney
in Minnesota. So you have basically been asked to do two full-
time jobs at once. If you are confirmed, you will be able to
devote your full attention to ATF. That is important. We have
been without a permanent ATF Director for about 7 years. Can
you explain what it would mean for ATF to finally have a
permanent confirmed Director in place?
Mr. Jones. Thank you for the question, Senator, and I think
it is absolutely critical. As I mentioned earlier, I think at
its core it is a good government issue. Not only does it send a
positive message to the men and women within the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, but it sends the
right message to the industries that we regulate and to our
State and local law enforcement partners that there is a
permanent person that has been given the stamp of approval to
lead the organization going forward.
That has not diminished really over the last 7 years with
the men and women in ATF performing their job. But it has been
a challenge to have the change in direction.
When I was in the service, I remember leaders that I had
that were good and the lessons taken away from them. But just
as importantly, I remember the leaders that were bad and the
lessons that were taken away from them. But having that steady
hand on the tiller that can share with the men and women at ATF
the vision, the mission, the execution to help keep the
American public safe in those areas where we have jurisdiction
I think is absolutely critical.
Senator Franken. Thank you.
Mr. Jones, ATF works closely with State and local law
enforcement authorities to investigate arsons, bombings, gun
crimes, and acts of terrorism. I have heard from some Minnesota
law enforcement officials who are concerned about the budget
cuts from the sequester and that they could hamper this type of
collaborative work. What is sequestration's impact on ATF?
Mr. Jones. Well, specifically with ATF, because it has been
somewhat underresourced, we as an organization are resilient,
but it will hurt. The President's proposed 2014 budget, I
think, I believe, gets us on the path of being healthy. With
the anticipated worst-case scenario from the sequester,
potential sequester cuts, you are cutting bone. You are cutting
bone, and you are impeding, I believe, our ability to be as
effective as we have been, as lean as we have been over the
last 4 or 5 years.
Senator Franken. Thank you. My time is just about up. Would
it be okay if I asked one more question, Madam Chair?
Senator Klobuchar. Sure.
Senator Franken. Mr. Jones, I was disappointed that the
Senate was unable to pass the Manchin-Toomey amendment. Under
current law, someone who cannot pass a background check to buy
a gun simply can go to a gun show or to classified ads and get
a gun anyway. The Manchin-Toomey amendment would expand the
background check system to cover commercial guns sales.
I have heard from a lot of Minnesotans who support the
proposal regardless of their views on other aspects of the
President's gun violence prevention initiative, and this
Committee heard a lot of testimony from law enforcement leaders
who said that the background check saved lives.
What are your thoughts on this?
Mr. Jones. I believe that the background check system, the
NICS system that is currently in place which, since 1998, has
kept legal firearms out of the hands of nearly 1.5 million bad
guys, has been effective. Is there room for improvement? Yes.
Can we deal with the current system? We have. I followed with
some interest the debate and will defer to this body and
Congress generally to do what you do with respect to expanding
or not expanding background checks. I can tell you that the
current system is very effective in working within the limits
that it is currently working. But there is always room for
improvement, including tightening up what could be
characterized as the gray market in firearms, because, of
course, the background check only applies to those who choose
to go to licensed firearms dealers to purchase or obtain guns.
Senator Franken. Thank you.
Thank you, Madam Chair.
Senator Klobuchar. Thank you.
Senator Grassley is going to go for 5 more minutes, and
then we will go to Senator Schumer and then Senator Cruz.
Senator Grassley. Since you said you cannot offer any other
answers to questions on the Office of Special Counsel
complaint, I will go to something that you should have heard
about--the letter from the FBI official, the letter to the
Committee. Did you hear of complaints about your office by the
former special agent in charge of the FBI office, Mr. Oswald?
Mr. Jones. The answer to your question, Senator, is no, and
I was quite shocked when I saw the copy of that letter because
my belief during the 1 year that Mr. Oswald was the special
agent in charge of the Minneapolis Field Division, my
perception was that we had a professional working relationship,
so I was very surprised when that letter was submitted to the
Senate.
Senator Grassley. In 2009, after you were confirmed by the
Senate, did you remove the chief of the Narcotics and Violent
Crime Section of the U.S. Attorney's Office? And that was one
of the allegations that Mr. Oswald made.
Mr. Jones. In 2009, when I became the U.S. Attorney for the
second time, I spent the first month talking to every single
Assistant United States Attorney in the office. I received
several resignations from individuals who had been serving in
supervisory roles, and as every new United States Attorney's
prerogative is, I formed a leadership team that remains in
place and has been very effective in helping move the district
forward with the goals and objectives of both the district and
the Department of Justice.
Senator Grassley. So did you remove the chief of the
Narcotics and Violent Crime Section of that office?
Mr. Jones. I made management changes when I came into
office for the second time in August and September of 2009.
Senator Grassley. Did you remove that person?
Mr. Jones. Did I remove that person?
Senator Grassley. The chief of the Narcotics and Violent
Crime Section of the U.S. Attorney's Office.
Mr. Jones. I received the resignations of most of the
supervisory AUSAs, as is a common practice, when I became U.S.
Attorney.
Senator Grassley. You did appoint a new chief to the
section?
Mr. Jones. I did.
Senator Grassley. How did you know the individual you
appointed as chief of the section?
Mr. Jones. How did I know them?
Senator Grassley. Know that person to that section, the
Narcotics and Violent Crime Section?
Mr. Jones. I knew many of the AUSAs I have known over 20
years in that office, so I know individuals by reputation and I
know individuals personally.
Senator Grassley. Did she have previous management
experience?
Mr. Jones. In terms of--who are you speaking of in
particular, Senator? I do not want to engage in guess work
here. If the question is did an individual that remains as our
Narcotics and Violent Crime chief, Assistant U.S. Attorney
Carol Kayser, have previous management experience, I believe
the answer to that is yes, she is a very experienced prosecutor
from the Northern District of Georgia, where she was an AUSA
doing asset forfeiture. Before that, she was a De Kalb County
State prosecutor in Georgia and was brought into the U.S.
Attorney's Office prior to my arrival under the previous
administration. And so she was very experienced and had some
management experience before making her the deputy chief for
Narcotics and Violent Crime.
Senator Grassley. Go to Mr. Cruz.
Senator Klobuchar. I think it is Senator Schumer next, and
then we will go to Senator Cruz. I just wanted to follow up on
one question since Senator Grassley was asking about management
of the office. Before you were U.S. Attorney, who was U.S.
Attorney before that?
Mr. Jones. There was a 2-year period, nearly 2-year period
where Frank McGill, now Judge McGill, was the interim U.S.
Attorney. But the prior presidentially appointed, Senate-
confirmed United States Attorney was Rachel Paulose.
Senator Klobuchar. And what happened to Rachel Paulose?
Mr. Jones. There was a period of challenges for the office,
and eventually Ms. Paulose resigned as U.S. Attorney.
Senator Klobuchar. And she was appointed--was involved
when, I think, Attorney General Gonzales was in, and then one
of the first acts, just to clarify the record, when Attorney
General Mukasey came in, was to actually call me--I just would
like the record to reflect that--to get some names of people
that could take over for an interim basis. So when you--and one
of my suggestions was Mr. McGill, and so when you took over the
office, it was only 2 years after this turmoil, as you have
described it, which made the front page of many newspapers in
the country. Is that correct?
Mr. Jones. That is correct, Senator.
Senator Klobuchar. Okay. Thank you.
Senator Schumer.
Senator Schumer. Well, thank you.
First, I want to thank you, Director Jones, for your
service both in the U.S. Attorney's Office and now as Acting
Director of ATF. You have had a long, distinguished career. You
were passed unanimously for U.S. Attorney by this Committee a
few years ago, and now, of course, it has taken a long time to
move your--to get your nomination made--approved by this
Committee and by the Senate. And so I would like to first say
that I think having a vacancy at this agency is a big mistake.
Such an agency has to have leadership to provide direction to
many employees who work here and keep Americans safe. So let me
ask you this question.
What would happen to the FBI without a Director? Don't you
think that that could be used by terrorists to say the United
States is weak on terrorism, not doing all it could against
terrorism, if we did not have--if we had for years an Acting
Director of the FBI? I do. I just want to know your opinion.
Mr. Jones. Well, it is sort of comparing apples to oranges
because the FBI has always been part of the Department of
Justice. It has only been 10 years since ATF has been part of
the Department of Justice. And it has only been since 2006 that
the Director of ATF has been subject to Senate confirmation. So
the analogs are not quite right.
But to your point, that continuity in leadership----
Senator Schumer. That is what I am----
Mr. Jones [continuing]. Has been absolutely essential. When
I left Government service in 2001 and when I came back in 2009,
knowing 9/11 happened in the interim, the Federal Bureau of
Investigation was not the same organization that I knew when I
left after serving as U.S. Attorney before. Much of that--and I
have known Mr. Mueller for a long time. Much of that is because
they have continuous outstanding leadership over a long period
of time, which has allowed things to structurally settle and
for them to stay focused on those missions that are in their
bailiwick.
Senator Schumer. Look, it is my view having lack of an ATF
Director signals the same thing. We do not have the continuity.
Gun trafficking, crime, the kinds of things ATF does is vitally
important, and it is not good to have a vacancy for so long,
and I would hope that your confirmation would be moved. I am
not directing this at any particular person, but somehow it
seems in agencies that people do not like what the agency
does--NLRB, EPA, or D.C. Circuit. We somehow get vacancies
there, and they are blocked for a very long period of time. And
I would hope that would change. I would hope that would change.
Your record is exemplary, and you were approved by this body
unanimously as U.S. Attorney. And I would just hope we could
move forward with you.
I have a few specific questions. I know my time is running
out. The Undetectable Firearms Act, this deals with 3-D guns.
It expires at the end of this year. First, I want to commend
your agency, working with TSA and Secret Service, to keep us up
to date on this.
Now, when the law was passed, there were very few guns that
could be brought undetected through a metal detector. Now that
has changed. Aren't there guns that fire at least one shot that
can successfully be brought through a metal detector, the gun
itself, these 3-D guns with plastic parts, by and large? From
what I understand, the only metal they need is a little spring,
and that is not detectable in our metal detectors. Is that fair
to say?
Mr. Jones. Our Firearms Technology Branch, as you
mentioned, Senator, worked with the Secret Service and with TSA
and the FBI and other law enforcement organizations, is in the
process of testing variations of the 3-D gun and some other
components that are somewhat troublesome. But the fundamental
material for that, that being various grades of polymer, does
make it undetectable without metal components.
Senator Schumer. So in light of this, do you think we have
to reauthorize the Undetectable Firearms Act? And would your
agency be prepared to submit some recommendations if any
changes are needed?
Mr. Jones. We are always available to provide technical
guidance and advice, given our expertise, and I think that the
evolving technology that underlies 3-D printing on a variety of
fronts certainly generates a sense of urgency, particularly
since the Undetectable Firearms Act sunsets at the end of this
year for this body to examine this in the public safety
context.
Senator Schumer. Well, once again--my time is expiring--I
want to thank you for your service. I want to thank you for
continuing under very difficult circumstances.
And I want to thank you for your very calm demeanor in this
hearing as well.
Mr. Jones. Thank you.
Senator Klobuchar. And we hope that continues.
Senator Cruz.
Senator Cruz. Thank you, Madam Chairman.
Mr. Jones, thank you for being here. You are a currently
sitting United States Attorney. You previously served as
Chairman of the Attorney General's Advisory Committee. You are
the Acting Director of ATF. You are perhaps uniquely situated
to discuss the Obama administration's priorities and record
concerning gun prosecution. So I would like to ask you a
question.
Is it a priority for the Obama Justice Department to
prosecute felons and fugitives who attempt to illegally
purchase firearms?
Mr. Jones. Senator, thank you for that question, and one of
the priorities of the Department of Justice has always been
during my second tenure as U.S. Attorney protecting the
American public from violent crime, including violent firearms
crimes.
Senator Cruz. Is that a yes?
Mr. Jones. That is a yes.
Senator Cruz. Would you describe it as a high priority?
Mr. Jones. It is one of the major priorities.
Senator Cruz. So a major priority.
Mr. Jones. Yes.
Senator Cruz. I guess then I would ask you to reconcile
that comment that it is a high priority with the data. And in
particular, in 2010, out of 48,321 felons and fugitives who
attempted to illegally purchase firearms, the Department of
Justice prosecuted only 44 of them--44 out of over 48,000. And
at least for me, I have difficulty reconciling those hard facts
with the assertion you have made that it is a high priority of
the Obama Justice Department to prosecute felons and fugitives
who try to illegally purchase firearms.
Mr. Jones. During fiscal year 2012, Senator, the Department
of Justice did approximately 85,000 Federal criminal cases
involving defendants, and one out of seven involved firearms
offenses. The NICS check does generate hits of people who are
potentially prohibited, and you are correct in that the number
of folks who are prosecuted federally for what has been coined
``lying and trying'' is a small number. But the number does not
tell the story about what the Department has done with armed
career criminals----
Senator Cruz. With respect, sir, my question was not about
armed career criminals. My question was whether it was a
priority to prosecute felons and fugitives who try to illegally
buy firearms.
Now, this data focuses exactly on that. That is why I
wanted--you could have said no, it is not a priority, and I
would suggest the data demonstrate it is not a priority of the
Obama Justice Department to prosecute felons and fugitives. In
my view, that is completely unacceptable. Do you disagree? Do
you think prosecuting just 44 out of over 48,000 felons and
fugitives who tried to illegally buy guns, do you think that is
an acceptable allocation of prosecutorial resources?
Mr. Jones. Prosecutorial resources are thin, and there are
a number of issues that U.S. Attorneys across the country deal
with, ranging from national security, financial frauds, and we
have tough decisions to make. The reality is, as a first-line
prosecutor and someone who exercises their discretion on a
regular basis, if given the choice between doing a ``lying and
trying'' case, which we have not done in Minnesota, and doing
a----
Senator Cruz. So your office----
Mr. Jones. We have not done a ``lying and trying'' case.
Senator Cruz. So your office has prosecuted zero felons and
fugitives who tried to illegally purchase firearms?
Mr. Jones. We have not tried a--we have not prosecuted a--
--
Senator Cruz. Is that a yes?
Mr. Jones [continuing]. A trying case. We have done over
150 felon in possession armed career criminal cases. We have
done straw purchaser cases. On the spectrum of prosecutions
that U.S. Attorneys can do, ``lying and trying'' cases, both
because of the dedication of resources and the potential
deterrent impact and the sentence that is going to be involved,
are not commonly done, which is underlying that 44 figure that
you cited earlier, Senator.
Senator Cruz. Mr. Jones, I have to admit I find it
remarkable that you testified to this Committee that is it a
``major priority'' of the Department of Justice to prosecute
felons and fugitives who attempt to illegally purchase
firearms, and that then you respond to this Committee that it
is an acceptable allocation of prosecutorial resources to
prosecute just 44 out of over 48,000. And even more
astonishingly, you inform this Committee that you have
prosecuted zero.
My question to you is: Are there other things you would
describe as ``major priorities'' of the Department of Justice
that at the same time you have chosen to prosecute zero cases,
enforcing those so-called major priorities?
Mr. Jones. With all due respect, Senator, just so the
record is clear, a major priority of this Department of Justice
is protecting the American public from violent crime, including
violent gun crime. I just want to make sure that that is clear
so that what my testimony is is not twisted into something that
it is not.
Your question, sir, was?
Senator Cruz. Are there any other so-called major
priorities on which you have prosecuted zero cases?
Mr. Jones. We have made hard decisions with our resources.
Priority number one is national security. In Minnesota, we have
made major efforts on that front with Al-Shabaab. We have made
major efforts on protecting our community from violent crime,
including gun crime. We have made major efforts protecting the
safety of people's nest eggs in financial fraud. And so we have
a veritable smorgasbord of decisions that we are making, and
all of our work has been consistent with the priorities of this
Department of Justice.
Senator Cruz. Mr. Jones, I would note you chose not to
answer my question. I just want to have one final question with
the Chairman's indulgence, which is that the Grassley-Cruz
legislation that was introduced on the floor of the Senate that
received a majority of votes in the Senate, 52 Senators--
including 9 Democrats. It was the most bipartisan of all of the
comprehensive gun legislation introduced. It provided funding
for prosecuting felons and fugitives who attempt to illegally
purchase firearms because, in my judgment and in the judgment
of a majority of the Senate, it is utterly unacceptable for
this Justice Department to refuse to prosecute felons and
fugitives who attempt to illegally purchase firearms.
In your role as Acting Director of the ATF or as U.S.
Attorney, did you support the Grassley-Cruz legislation and do
you support that legislation?
Mr. Jones. I am not familiar with the specifics of that
legislation, and I am not in a position to answer the question
because I am not familiar with the legislation.
Senator Cruz. Very well. Thank you.
Senator Klobuchar. Thank you, Senator Cruz.
I wanted to include a few things on the record. First of
all, a discussion here just took place about prosecutions of
cases, and I discussed earlier how crime rates are very
important, and, in fact, we can attribute them to a lot of
things. But I would note that the crime rate in the State of
Texas, the violent crime rate, is twice the rate--Senator Cruz,
the violent crime rate in the State of Texas is twice that of
the State of Minnesota. Between the years 1991 to 2011, during
many of those years you were the U.S. Attorney in the State.
Mr. Jones, the data I have here is that the Minnesota violent
crime rate in 2011 was a little over 200 per 100,000
inhabitants. These are FBI statistics. And the violent crime
rate in Texas was about 400.
I also have the crime rates of every Member of the
Committee that is here. I thought it was just interesting to
look at, and I would note that the only two States that have
lower crime rates per 100,000 inhabitants than Minnesota are
the State of Utah--unfortunately, Senator Hatch is not here--
and the State of Vermont. And while, again, there are many
things that contribute to crime rates, I would point out that
this idea that somehow during your term work is not being done
just is not supported by these numbers, and I would put that on
the record.
I also would put on the record the fact that we have many
people here from law enforcement in this room in support of
you, Mr. Jones: first of all, Jim Pasco, the executive director
of the Fraternal Order of Police. We have the International
Association of Chiefs of Police represented by Deputy Executive
Direct James McMahon, and Director of State Association of
Chiefs of Police Gene Voegtlin. We also have Prince Georges
County Police Chief Mark A. Magaw representing the
International Association of Chiefs of Police. We have
Washington, DC, Metropolitan Police Department Command Staff
Representative of Chief Cathy Lanier. We have Manassas Park
Police Chief John Evans. We have Prince William County Police
Chief Stephan Hudson. We have the Maryland State Police
represented by Commander David Rule on behalf of Superintendent
Marcus Brown.
With that, I will turn it over to Senator Coons.
Senator Coons. Well, thank you, Madam Chair, and I, too, am
pleased to hear about the support for the nominee for the IACP,
the FOP, and many other police and professional law enforcement
organizations.
Mr. Delery, thank you for your presence here today. I look
forward to your service. Forgive me, but my questions will also
focus on Acting Director Jones. I suspect you have had a more
comfortable confirmation hearing than perhaps you might have
expected.
Senator Klobuchar. I would note that Mr. Delery's young
sons have been attentive throughout the entire questioning of
Mr. Jones. It is much appreciated.
[Laughter.]
Senator Coons. Particularly impressive.
Acting Director, if I might just first, given the comment
about the support your nomination has received from the law
enforcement community fairly broadly, as someone who before
coming to the Senate had a responsibility for a local law
enforcement agency, just tell me about your perspective on the
importance of collaboration and information sharing between
Federal, State, and local law enforcement. And then, if you
would, tell us something about your experience in the Miami
undercover investigation and how that strengthens that
experience for Minnesota and now in the ATF.
Mr. Jones. Well, Senator, thank you for the question, and I
think that one of the strengths that I have discovered over the
last 20 or so months as the Acting Director is the
reinforcement of my belief that there are outstanding working
relationships with ATF and State and local law enforcement. It
is absolutely critical given the mission that ATF has on the
arson front, which is oftentimes understated and under-known,
but absolutely critical expertise, and that, of course, has us
with close working relationships with State and locals.
And on the violent crime, particularly violent gang and gun
crime front, we have nearly 600 task force officers that work
with ATF special agents around the country that we could not do
that work without that collaboration and that cooperation.
So our relationship with the State and locals is absolutely
critical, and we have always valued that relationship because
we cannot get it done without that level of work.
With respect to Miami, it was--it is still an ongoing
prosecution now, but it was an excellent example of a number of
operations, surges, undercover storefronts that we have engaged
in as ATF that took nearly 95 violent, violent criminals off
the streets in Miami Gardens. Some of them went State, some of
them went Federal, and over 200 weapons, and it was a
collaboration, again, not only with State and locals but with
our sister agency, the DEA.
Senator Coons. Some concern has been raised about the
Magner case. That has been of real interest to me as well. And
as the U.S. Attorney for the District of Minnesota, who was
your client? Who were you representing in that role?
Mr. Jones. Well, of course, the Department of Justice
represents the United States in courts of law around the
country, both in civil and criminal matters. So the client
agency in that matter was HUD.
Senator Coons. And in making litigation decisions on behalf
of the United States, in your view is it ethical and
appropriate to take into account not only the judgment of an
agency with enforcement responsibility but also the
consequences of a litigation decision that might impact the
broader ability of the Government to enforce civil rights
statutes? Is that your view?
Mr. Jones. That is my view, and I have expressed that
before in sessions with Senator Grassley's staff.
Senator Coons. Speak, if you would, about whistleblowers.
The protection, the advancement of the concerns of
whistleblowers, is something that was of real primacy for me in
my local government service. Some characterizations of
communications internally within the ATF have been made to
suggest that you have attempted to suppress whistleblowers, and
I wanted to give you an opportunity to speak to that, to answer
a concern as to whether or not you have led the ATF as Acting
Director in a way that suggested that you would welcome or
support whistleblowers or the contrary.
Mr. Jones. You know, thank you for giving me an opportunity
to again reinforce and sort of dismiss a misperception that I
have engaged in conduct that suppresses whistleblower rights.
Nothing could be further from the truth. I have represented
whistleblowers in private practice. Some of my most satisfying
experiences have been in the representations of those who put
themselves in the position of being whistleblowers. And I know
firsthand from my former clients how difficult that can be in
terms of your perception internally and the challenges on you
personally. And I have the utmost respect for both the
underpinnings and the purpose of whistleblower protections. It
is, again, a fundamental good government effort, and it is
absolutely critical to us doing our job effectively as public
servants with responsibility for public agencies.
Senator Coons. A lot of the challenges that existed at the
ATF that you were responsible for addressing or cleaning up
when you became Acting Director were in part a result of an
ongoing operation that came to light because of whistleblowers.
Do we have a commitment from you that, if confirmed, you will
continue this view of welcoming and supporting whistleblowers
within the agency as appropriate in order to ensure that this
good government practice is a part of the ATF going forward?
Mr. Jones. Well, you definitely have my assurance. The
Inspector General's report exemplifies the importance that
whistleblowers play in the Fast and Furious issue. We have,
since I have been there, enhanced our ombuds program
internally. We have strengthened our relationship with the DOJ
IG and their ombuds program, and any misperception that I do
not believe in open channels of communication and respect for
whistleblower protections I hope can--has been and will
continue to be diminished.
Senator Coons. Thank you for your testimony and for your
service as a Marine and for your service as the U.S. Attorney
and for your service as Acting Director, and I appreciate your
testimony here today. And, Mr. Delery, and your sons,
congratulations and thank you for your testimony as well.
Senator Klobuchar. Thank you very much, Senator.
Senator Grassley.
Senator Grassley. A common complaint that I have heard
within ATF is that U.S. Attorney's Offices are unwilling to
pursue straw purchasing charges. According to one account, you
reportedly said of gun and drug cases, ``we could do that all
day, but we have chosen not to because that is not the best use
of our resources.''
How would you expect to encourage agents in the ATF to
pursue gun crime when you would not think it is a high priority
for yourself as a U.S. Attorney?
Mr. Jones. Well, gun crime, Senator, is a high priority for
me as the United States Attorney, and I think our record----
Senator Grassley. The statement I read that you said, is
that statement wrong?
Mr. Jones. Without knowing the context or the specifics of
the statement, it is difficult.
Senator Grassley. It was in the Minneapolis Star Tribune.
Mr. Jones. If what I recall you may be referring to, it is
an overall--it was an article that addressed what we discussed
earlier as to why the drop in terms of the overall numbers and
criminal prosecutions, and, again, it really is driven by three
things--our resources, our collaboration with State and locals,
and what can we do that they cannot do--and focusing more on
impact cases as compared to be solely driven by the numbers. I
believe that was the context, because in particular, in the
drug and gun area, in Minnesota there is a pretty vibrant--
Senator Klobuchar knows--felon in possession statute. In each
of the last 3 years, county attorneys in Minnesota have
prosecuted in excess of 800 individual cases, and this is
subject to a reporting requirement they have annually. And so
working in collaboration with them, what we have done,
sometimes formalizes what we call ``Exile White'' in
Minneapolis, but generally throughout the State is make sure
that those most egregious offenders do come into Federal court
without impeding on the jurisdictional prerogatives of our
county attorneys who do yeoman's work working with us to keep
the streets safe.
Senator Grassley. You were Chair of the Attorney General's
Advisory Committee from 2009 to 2011. In that capacity, you
were a member of the Southwest Border Strategy Group. In
October 2009, that group decided to distribute a draft strategy
for combating Mexican cartels. The draft stated, ``Merely
seizing firearms through interdiction will not stop firearms
trafficking to Mexico.''
The draft strategy goes on to emphasize identifying the
members of armed trafficking networks. The implication is
clear. The strategy places a higher value on gathering
intelligence about trafficking networks than on arresting straw
purchasers.
Now, were you there at the October 26, 2009, meeting of the
Southwest Border Agency Group? Did you approve of the strategy
to de-emphasize straw purchasing cases? And do you think it is
a good strategy to go for big cases instead of putting a stop
to straw purchasers whenever you can?
Mr. Jones. To answer your first question, Senator, I was
not there. I was brought in as the Chair of the Attorney
General's Advisory Committee in September, and we were ramping
up with a revitalization of that and a transition. So I was not
at that meeting. I was not an active participant on the
Southwest Border Working Group. I was a participant on the
Northern Border Working Group because that had more relevance
to the District of Minnesota.
With respect to your last question about opinions about the
firearms case, we have made it clear from the outset that
public safety will never be sacrificed for prosecutive or
investigative needs. Public safety is first and foremost in
what we strive to achieve in our investigations.
Senator Grassley. When you took over at ATF, you set out to
clean up the shop. Rather than disciplining some of the ATF
employees who were clearly responsible for Fast and Furious,
you waited for an Inspector General's report. It took a year.
After 18 months, after the Inspector General's report, ATF has
not reported a single individual being disciplined for Fast and
Furious. Nobody seems to be fired. Instead, several people were
allowed to retire or terminate for other reasons.
I want to ask you about a series of individuals. They are
all criticized by the Inspector General for that role. For each
one, I would like you to tell me whether the ATF proposed any
discipline to hold them accountable for Fast and Furious.
The Fast and Furious--how about the ATF group supervisor
David Voth? What was the situation with him? How was he
disciplined?
Mr. Jones. Special Agent Voth was subject to the internal
disciplinary process, and there were repercussions. Again, I am
very sensitive here in this context about the Privacy Act
concerns. But he was subject to the disciplinary process.
Senator Grassley. The Privacy Act does not apply to
hearings in Congress, but let us move on. How about the
Assistant Agent in Charge George Gillett?
Mr. Jones. Former ASAC George Gillett has retired from ATF.
Senator Grassley. Assistant Special Agent in Charge James
Needles?
Mr. Jones. Assistant Special Agent in Charge James Needles
is in another capacity within ATF.
Senator Grassley. So nothing has really happened to him.
Special Agent in Charge of Phoenix, Bill Newell?
Mr. Jones. There is still resolution pending that should be
forthcoming.
Senator Grassley. So after all these years, nothing has
happened to him.
Deputy Director in Washington Bill McMahon?
Mr. Jones. Bill McMahon has retired from ATF.
Senator Grassley. Okay, retired. Not disciplined. Some of
these individuals are involved in other controversies in
addition to Fast and Furious. For example, I understand that
the ATF's Internal Affairs Division found fault with George
Gillett and Bill Newell's involvement in the investigation of a
fire at an ATF agent's home in 2008. In a separate matter,
Gillett sold his personal firearm to a suspect 1 week after his
office opened a gun-trafficking case on that person. This was
one of multiple firearms transactions of Gillett that are
currently under investigation by the Inspector General. Another
is a gun that Gillett bought that was recovered at a murder
scene of a Mexican beauty queen alongside a gun from Fast and
Furious.
However, instead of Gillett being disciplined when you took
control of ATF in the summer of 2011, he was allowed to wait it
out and retire in 2012. Why did you allow Gillett to retire
rather than hold him accountable?
Mr. Jones. Senator, with all due respect, there are
processes in place, and these processes do take time. And, you
know, you mentioned the Privacy Act. The specifics of each of
these cases, I would like to just make sure that you
understand, that the American public understands that we did
not stand idly by and not take corrective action, including
disciplinary action, according to the rules of the road and the
processes that are in play that sometimes are painfully slow.
But all of the individuals you mentioned did get their due
process. Many of them were ably represented by counsel.
Senator Grassley. Well, can you even tell us what
discipline was proposed against Newell as a result of the
October 2012 report?
Mr. Jones. That is a matter that is quickly coming to
resolution, and as soon as we can disclose it to you, we will.
Senator Grassley. ATF Deputy Director William McMahon was
the official in Washington, DC, primarily responsible for
supervising Gillett and Newell. The Inspector General
criticized him for his failure to do so and the result is Fast
and Furious. Yet under your leadership, the ATF was going to
allow McMahon to retire early at the age of 50. ATF allowed him
to go on extended leave and continue to earn credit towards
retirement while working a high-paying job for JPMorgan Chase
in the Philippines at the same time. It was not until after I
brought this unusual double-dipping arrangement to your
attention that ATF attempted to correct the situation. ATF was
not even aware that he was in the Philippines.
How was McMahon's status resolved? How is it possible that
one of your senior leaders in headquarters could be overseas
for months while drawing a Federal paycheck without ATF knowing
it and working for a private company? And what does that say
about how you are running the agency?
Mr. Jones. Senator, Mr. McMahon was one of the individuals
terminated. He was not allowed to retire. He was terminated.
Senator Grassley. Was he terminated?
Mr. Jones. He was terminated.
Senator Grassley. He was able to----
Mr. Jones. He was terminated. At the end of the process he
was terminated.
Senator Grassley. Was that after I brought it to your
attention?
Mr. Jones. The issue that you raised about his leave status
and his prior employment status were all subject to a process.
We very much appreciate the information enhancing our level of
knowledge about things that were already in plan internally,
but the end result was Mr. McMahon was terminated from ATF.
Senator Grassley. You have stated that on November 3, 2011,
you issued a memorandum saying that the ATF must take all
reasonable steps to prevent criminal misuse of firearms. Will
you provide a copy of that memorandum to the Committee?
Mr. Jones. I believe that that is an updated ATF order that
we will provide.
Senator Grassley. Okay. What guidance have you issued to
ATF on the issue of questioning suspected straw purchasers?
Mr. Jones. I am not quite sure I understand the question,
Senator.
Senator Grassley. Well, you have issued some guidance to
the ATF on the issue of questioning suspected straw purchasers.
What does that guidance say? In other words, you have got
people out there questioning straw purchasers. What guidance
have you given to them for this questioning?
Mr. Jones. Well, as I sit here, other than the fact that we
have special agents who are sometimes involved in the
investigation of firearms trafficking that would lead them to
question as any other potential suspect, I am not aware of any
special guidance that would carve out straw purchasers.
Senator Grassley. Well, what about guidance issued to ATF
about cooperating Federal firearm licensees and their role that
they should play in investigations?
Mr. Jones. With respect to that particular issue, I do know
that after I arrived at ATF, one of the issues that we
addressed were weaknesses and lack of clarity in our
confidential informant order internally. We did a review of
that, as we did with the undercover order, and we revised
appropriately based in part on things that did not proceed as
they should in the District of Arizona. So we have greater
clarity on the use of FFLs as confidential informants currently
in place.
Senator Grassley. Despite the congressional prohibition
against keeping a national gun registry, I know that ATF keeps
a suspect gun database. Is there any legal standard that ATF
agents are required to meet before adding information on a
purchaser to a suspected gun database?
Mr. Jones. Well, if the Senator is talking about our E-
trace or our tracing capability, then those are crime guns that
are entered in with make, model, and serial number. As you and
many other are well aware, the Firearms Owner Protection Act of
1986 precludes anything--a national gun registry, and it would
be illegal to do that.
Senator Grassley. I have also heard allegations from
several States of ATF agents going to Federal firearm licensees
and taking pictures of every Form 4473 in the store. Have you
heard of this practice? And is this the kind of activity by ATF
agents acceptable to you?
Mr. Jones. As I sit here, I am not familiar with the
practice. I do know that our industry operations investigators,
all 700-plus of them with the range of responsibilities they
have with literally tens of thousands of FFLs, work very hard
to do the appropriate inspections of FFLs. And that is
difficult work.
Senator Grassley. My staff says to me by note here that we
are not talking about tracing. We are referring to the suspect
gun database which was used extensively in Fast and Furious.
Mr. Jones. As I sit here, I will have to----
Senator Grassley. Well, then, I will let you answer that
question in writing.
Mr. Jones. Yes.
Senator Grassley. Thank you.
[The information appears as a submission for the record.]
Senator Grassley. On October 12, 2012, the House Committee
on Oversight and Government Reform subpoenaed ``all agendas,
meeting notes, meeting minutes, and follow-up reports for the
Attorney General's Advisory Committee that refer or relate to
Operation Fast and Furious'' during the time that you were
Chair. The Justice Department has never produced any such
documents or certified that none exist. Do any such minutes or
notes exist? And if so, why haven't they been turned over
pursuant to the subpoena?
Mr. Jones. Well, I do not have any knowledge beyond the
fact that relevant documents have been collected internally at
the Department and that that matter is probably a part of
litigation. If anyone ever wants to ask Mr. Delery questions, I
am sure----
[Laughter.]
Mr. Jones [continuing]. He can provide greater clarity
about ongoing litigation involving production of documents
pursuant to subpoenas.
Senator Grassley. Well, let us just suppose--you said you
did not know, and that is maybe legitimate. Let me ask you if
you would respond to that question in writing.
Mr. Jones. To the extent I have those documents still, we
will respond in writing, Senator. Yes, we will.
Senator Grassley. Or if they are available anyplace that
you can put your hands on them.
[The information appears as a submission for the record.]
Senator Grassley. On April 12, 2013, I sent you personally
a letter requesting that you provide any personal notes from
the Advisory Committee that you may have taken regarding Fast
and Furious. You have not provided any such notes or certified
to me that you do not have any such notes. And so why have you
not responded?
Mr. Jones. Well, I do not have, as I sit here, any
recollection of a letter that has got that specific request,
but as I said before, all of my--all of the documentation
related to my tenure at the Attorney General's Advisory
Committee is at the Department, and I am sure that review and
production processes have taken place.
Senator Grassley. U.S. Attorney for the District of Arizona
Dennis Burke was also on the Attorney General's Advisory
Committee during the time you were Chair. Have you ever
discussed Operation Fast and Furious, whether by name or
otherwise, with Burke? If so, when?
Mr. Jones. Senator, I did serve with Dennis Burke when I
was Chair of the AGAC, and, in fact, Dennis Burke was Chair of
the Subcommittee for the Southwest Border, and our
conversations were always at a higher level than the specific
cases that were ongoing in the District of Arizona. So I have
no recollection of discussing that case specifically with
Dennis during my time as Chair.
Senator Grassley. Burke testified that as a result of Fast
and Furious you raised the issue of Title III wiretap approval
with the Advisory Committee. What do you recall about those
discussions?
Mr. Jones. My general recollection was the pace with which
and the volume of Title III requests that the Office of
Enforcement Operations, in an effort through the U.S. Attorney
community, to try and enhance their capability to review Title
III applications generally.
Senator Grassley. We recently learned from a follow-up
Inspector General's report that Deputy Attorney General Cole
reprimanded Dennis Burke for his role in leaking documents
related to Fast and Furious to the press. The leak was part of
an attempt to undermine the credibility of the primary
whistleblower, ATF Special Agent John Dodson, which is a
perfect example of what I tell you about so often, or not just
your agency but every agency in town: A whistleblower is about
as welcome as a skunk at a picnic.
What was your opinion of Burke's unauthorized release of
information about ATF's agents' participation in an undercover
operation?
Mr. Jones. I think the circumstance with Dennis Burke is
unfortunate. I know what the rules of the road are with respect
to appropriate communications in the U.S. Attorney Manual, and
I do not have an opinion one way or the other about the facts
and circumstances because, quite frankly, I know as much as you
know on the public record about interactions between former
U.S. Attorney Burke and the Deputy Attorney General.
Senator Grassley. So then is that your answer to my next
question: When and how did you learn that Burke was responsible
for the leak?
Mr. Jones. That is the answer. I know as much as you know
when you knew it and when it became part of the public record.
Senator Grassley. Can you tell me, did you ever discuss the
document that Dennis Burke leaked with Mr. Burke? If so, please
describe those discussions?
Mr. Jones. I do not have any recollection of having those
kind of discussions with Mr. Burke.
Senator Grassley. Madam Chairman, I have some documents
that I want to put in the record, if I can.
Senator Klobuchar. All right.
Senator Grassley. The first one deals with a letter dated
June 10, 2013, from Carolyn Lerner at the Office of Special
Council explaining that the investigation of Mr. Jones is in
mediation but is not a closed matter.
Senator Klobuchar. It is in the record.
[The letter appears as a submission for the record.]
Senator Grassley. The second one is a letter from Oswald
that I have referred to, the former FBI special agent in
charge, that I have referred to several times that should be
made a matter of the record.
[The letter appears as a submission for the record.]
Senator Grassley. And then I have a whistleblower letter
from the White House. The letter is addressed to Senator
McCaskill and cc'd to me, describing the administration's views
of whistleblowing protection. I would like to quote: ``We wish
to encourage such individuals to expose waste, fraud, and other
improper behavior. The administration has been steadfast in its
commitment to that very principle and to ensuring that
individuals who make lawful disclosures receive legal
protections they deserve. This administration''--and this is
highlighted. ``This administration has also repeatedly made
clear that it will not tolerate retaliation against lawful
whistleblowers.''
[The letter appears as a submission for the record.]
An editorial comment on that. I believe every President--at
least since Reagan, I have talked to every President about
protecting whistleblowers. And you know what one President said
when I suggested that you ought to have a Rose Garden ceremony
honoring some whistleblowers? And you would send from the top
of the administration down to the lowest level of public
employment a clear picture that being a whistleblower is a
patriotic thing to do if you happen to be right what you are
whistleblowing about. And, you know, one President told me, he
said, ``Well, if we did that we would have 3,000 whistleblowers
coming out of the woodwork.''
Now, isn't that a nice thing for a President to tell me?
And it was not this President that told me that.
And so, you know, I believe what the President said here,
but it is not getting down to the lowest levels. And I hope if
you are confirmed, Mr. Jones, that you will do what the
President has said his administration wants to do, and do that.
The only thing I would say in conclusion, Mr. Jones, if you
had agreed to a staff interview, these things that we are
discussing here could have been discussed in a private forum,
and I would like to ask you why you did not give the staff
interview we asked.
Mr. Jones. Senator, I look forward, if I am confirmed, to
having regular communications in an oversight capacity with you
and your staff and Members of this august body.
Senator Grassley. That does not really answer my question
why you did not respond to our request that you give us a staff
interview.
Mr. Jones. I did have an interview with respect to a
particular matter, but--
Senator Grassley. Well, what about the other matters that
we asked you to have a staff interview with? I mean, is it
embarrassing for you to tell us why you would not come?
Mr. Jones. I am a member of the Department of Justice,
and----
Senator Grassley. They told you not to?
Mr. Jones. You know, under some circumstances, Senator, I
do not have the freedom of action as I did as an individual
citizen.
Senator Grassley. Okay. Thank you, Madam Chairman.
Senator Klobuchar. Thank you very much, Senator Grassley.
I just wanted to end here by just going through summarizing
some of the discussion today. I appreciate Senator Grassley's
focus on whistleblowers. I think it is very important, and he
has done a great service to our country in calling attention to
this.
And I also appreciate his willingness to question people,
and I think that is what we are supposed to be here to do. So
thank you, Senator Grassley, as well as the other Senators who
have taken part in this hearing.
Senator Grassley, with that, you have another question?
Senator Grassley. No, not another question.
[Laughter.]
Senator Klobuchar. Okay.
Senator Grassley. But I would request of you that the
record stay open a little longer than the normal 1 week,
because I think there are a lot of things that can come up yet.
Senator Klobuchar. Okay. We will keep it open for 2 weeks.
Is that all right? No? What would you like?
Senator Grassley. Until we get done with this whole----
Senator Klobuchar. I think we will keep it open for 2
weeks, and if you and the Chairman want to have another
discussion about it, that is up to you. But for now I will keep
it open for 2 weeks.
Senator Grassley. Thank you.
Senator Klobuchar. I wanted to clarify a few things. First
of all----
Senator Grassley. Is it okay with you if I leave?
Because I have got the prospective Secretary of Commerce
coming to my office.
Senator Klobuchar. I think that is very important, and she
is a good nominee, as are these nominees, so we hope you have a
good meeting with her.
I just wanted to conclude by going through just what we
have heard today. There are a lot of attacks that have been
made against Mr. Jones, and I know, coming from law
enforcement, having experienced some of this myself, it is not
easy to manage lawyers, it is not easy to manage police. There
are judgment calls that are made all the time. Some are good,
some are bad. Mistakes are made. You learn from them, you move
forward. And I think that is important to keep in mind here.
One of the most overriding things that I think we should
learn from all this is that these 2,300 agents deserve someone
who is permanently in charge of them. No matter what the title
of the agency is, no matter if people have political
disagreements with work that is being done, I think that the
fact that we have an agency of the United States Government
that we currently do not have a permanent chair of, that we
have left dormant for 7 years, no matter why, no matter if no
one would face a hearing, I think it is just wrong. And I want
to say that having Mr. Jones being willing to come forward to
this hearing, knowing exactly what he was going to be subjected
to, and with many of these things coming out just recently
since he has been nominated, I think that is courage right
there.
First of all, we have been talking about the criminal work
in Minnesota, and I think he has explained his decisionmaking.
Others may disagree on that. But I would note, again,
emphasizing that a lot of things go into this--police work, FBI
work, local, State prosecution efforts, Federal prosecutor
efforts--that if you look at it as a whole, Minnesota has a
pretty good track record with the violent crime rate having
gone down 15 percent during Mr. Jones' first tenure as U.S.
Attorney from 1998 to 2001, a 9-percent decrease with the
latest stats we have from 2009 to 2011. And I would also note
that overall Minnesota is doing a good job compared to many
States, including most of the States represented by Senators on
this Committee.
Secondly, the support from law enforcement I have mentioned
that is in the room, people who have worked with Mr. Jones over
a period of time, I think that is important.
Some of the issues that were raised, I think it was Senator
Coons who asked some questions about the St. Paul case, I think
that is important to have on the record, and we have those on
the record.
Of Fast and Furious, obviously Senator Grassley and Senator
Cruz and Senator Flake all asked about this, and I would say
that if you were in the private sector and something went
greatly wrong, one of the things you looked at was are the
people still in place that were in charge when this happened.
And as Mr. Jones has pointed out, I think he changed nearly
two-thirds of the people in charge at the agency when he came
in after Fast and Furious, that there have been disciplinary
proceedings that are underway and have been concluded. I
understand why he cannot attach a discipline to every single
name of a person, and I know he will work with the Senators who
were concerned about that. But I do think it is really
important to note that he was brought in after Fast and
Furious, after clear mistakes had been made in the agency to
make some changes.
I do not think that we should forget the good work that has
been done by ATF in just the last few months with Sandy Hook,
with the investigation after Boston, and how quickly those
terrorists were apprehended, and then also what happened in
West, Texas, which was a horrible tragedy, a horrible
explosion, and ATF was right there on the front line figuring
out what went wrong. And as I also pointed out, day in and day
out there are cases that you do not read about in the news
where solutions are found, where investigations are conducted.
The last part, of course, would be the whistleblower case
in Minnesota. I know that person. I have respect for him. I
know there can be disagreements. I am glad this is going into
mediation. I think that is very important. But when you look at
this whole--everything together, I think anyone in law
enforcement would be able to find a series of problems within
agencies. And I think what you have to look at is what has Mr.
Jones done since he took over ATF. Is that worthy of merit? Is
it worthy for other future nominees decades from now to show
that if someone comes in and is willing to take that
responsibility instead of just keeping their job, keeping happy
with their families, staying in the state they are in, and they
are willing to take on a really hard job and do above average,
as we like to say in Minnesota, in terms of trying to clean
things up, is that to be rewarded or is that to be criticized?
And so I will just end with a quote that I gave my daughter
in the car. It is kind of one of those cliche quotes, but I
thought it was so fitting when I was trying to get her to do
something the other day. And so I took out that old Roosevelt
quote, where he said, ``It is not the critic who counts; not
the man who points out how the strong man stumbles, or where
the doer of deeds could have done them better. The credit
belongs to the man who is actually in the arena, whose face is
marred by dust and sweat and blood, who strives valiantly; who
errs, who comes short again and again, because there is no
effort without error and shortcoming, but who does actually
strive to do the deeds, who knows the great enthusiasms, the
great devotions, who spend themselves in a worthy cause; who at
best knows in the end of the triumph of high achievement; and
who, at the worst, if he fails, at least fails while daring
greatly, so that his place shall never be with those cold and
timid souls who know neither victory nor defeat.''
Now, when I tried that quote on my daughter, she said,
``That is just about men. They only use the word `man.' '' I
think I have tried to get beyond that to say that Mr. Jones was
willing to take on a very tough assignment. Again, I think we
owe these agents to have a permanent Director. I think we
should get him confirmed. And I hope despite all of the work of
Senator Grassley in bringing out these important questions,
which we must do when we have a nominee before us, that we are
able to move forward and get through this and do this in a
timely manner.
I also thank you, Mr. Delery, for your fine credentials and
the work you have already done with the Justice Department, and
your most amazing family seated behind you who continue, I can
tell--if you can manage the Civil Division of the Justice
Department as you clearly manage your kids, you are going to do
a really good job.
[Laughter.]
Senator Klobuchar. So I want to--that was positive to the
boys. That was a very good thing.
I want to thank both the nominees, their families, Anthony
out there, everyone who has been willing to sit through this
hearing, as well as the Senators who were willing to attend. I
hope we can move forward with this nomination. I also want to
thank Caroline Holland of my staff who headed up the work on
this, as well as Senator Leahy's and Senator Grassley's staff.
Thank you. As noted, the hearing record will be open for 2
weeks unless the Chairman decides to change that, and we will
move forward, I hope, to a vote on this nominee. Thank you and
the hearing--and the other nominee. The hearing is adjourned.
[Whereupon, at 12:03 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
NOMINATIONS OF TODD M. HUGHES, NOMINEE TO BE CIRCUIT JUDGE FOR THE
FEDERAL CIRCUIT; HON. MADELINE HUGHES HAIKALA, NOMINEE TO BE DISTRICT
JUDGE FOR THE NORTHERN DISTRICT OF
ALABAMA; ANDREA R. WOOD, NOMINEE TO BE DISTRICT JUDGE FOR THE NORTHERN
DISTRICT OF ILLINOIS; SARA LEE ELLIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS; AND COLIN STIRLING BRUCE, NOMINEE TO
BE DISTRICT JUDGE FOR THE CENTRAL
DISTRICT OF ILLINOIS
----------
WEDNESDAY, JUNE 19, 2013
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 2:59 p.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Dick Durbin,
presiding.
Present: Senators Durbin and Sessions.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. This hearing of the Judiciary Committee
will come to order, and today we will consider five outstanding
judicial nominees to the Federal bench: Todd Hughes, nominated
to serve on the U.S. Court of Appeals for the Federal Circuit;
Madeline Hughes Haikala, nominated to be a district judge for
the Northern District of Alabama; and three district court
nominees from my State of Illinois: Colin Bruce, nominated to
serve in the Central District; Sara Ellis, nominated to serve
in the Northern District; and Andrea Wood, also nominated to
serve in the Northern District.
Each of these nominees has the support of their home State
Senators. I commend President Obama for sending their
nominations to the Senate Judiciary Committee.
At these hearings it is traditional for nominees to be
introduced to the Committee by Senators from their home States.
Today I will introduce the nominee for the Federal Circuit, Mr.
Hughes, since he is a resident of the District of Columbia and,
thus, has no home State Senator. And I will also introduce the
nominees from Illinois proudly. Later I will perhaps turn to
one of my colleagues who will introduce the nominee from
Alabama. We believe he is on his way.
First, let me introduce Todd M. Hughes, currently serving
as Deputy Director of the Commercial Litigation Branch at the
U.S. Department of Justice Civil Division, a position he has
held since 2007. He is a native of Delaware, Ohio, received his
B.A. from Harvard College, an M.A. from Duke University, and a
J.D. with honors from Duke Law School.
After law school, he clerked for Judge Robert Krupansky of
the Sixth Circuit Court of Appeals. Mr. Hughes then joined the
Commercial Litigation Branch of the Justice Department in 1994
as a trial attorney, and he has worked at the Justice
Department until the present day.
From 1999 to 2007, Mr. Hughes served as Assistant Director
in the Commercial Litigation Branch and in 2007 became Deputy
Director. His work is primarily focused on appellate litigation
involving personnel law, veterans benefits, government
contracts, and international trade.
Mr. Hughes has won numerous honors, including special
commendations from the Justice Department for his work on
personnel law, tax litigation, and veterans appeals. He has
also received a Special Contribution Award from the Department
of Veterans Affairs and the Attorney General's John Marshall
Award, which he received in 2007.
I hope Mr. Hughes will not mind my pointing out the
historic nature of his nomination. If he is confirmed, he will
be the first openly gay American to serve as a Federal
appellate court judge. His confirmation would represent another
important milestone in the journey toward equality in America.
Mr. Hughes, we welcome you here today, as well as your
parents, Barbara and Michael; your sister, Cindy; and your
nephews.
I will now introduce the three district court nominees from
Illinois. Let me note at the outset that Senator Kirk and I
both support these nominees. In Illinois we have established a
bipartisan process for recommending judicial nominations to the
White House, and it has worked well to produce outstanding
candidates for the Federal bench. I look forward to working
with Senator Kirk to see that these nominations are confirmed.
Now, the first Illinois nominee today is Colin Stirling
Bruce, who has been nominated to fill the judicial vacancy that
will open up in Urbana when Judge Michael McCuskey takes senior
status at the end of this month. Mr. Bruce has worked in the
U.S. Attorney's Office for the Central District of Illinois
since 1989, currently serves as the First Assistant U.S.
Attorney, a position he has held since 2010. In his current
capacity, he oversees the day-to-day operations of the U.S.
Attorney's Office and helps supervise all of the Federal
criminal investigations, prosecutions, and appeals in the
district. He also supervises all civil, defensive, and
affirmative litigation in the district in which the U.S. is a
party. He was born in Urbana, received his undergraduate and
law degrees from the University of Illinois, and after law
school he went straight to the U.S. Attorney's Office. He
started handling criminal and civil cases, including bankruptcy
and tort claims, then shifted to prosecuting complex criminal
matters such as drug and fraud cases. Over the years, he
developed particular expertise in cyber crime and prosecutions.
In 2007, he was appointed branch chief of the Urbana
Division of the U.S. Attorney's Office, in 2010 was named First
Assistant U.S. Attorney, the number two position in the office.
Mr. Bruce has received numerous recognitions for his work,
including Certifications of Appreciation from the Justice
Department, FBI, and DEA, as well as awards from the Illinois
State Police and the Metropolitan Enforcement Group and Task
Force.
He has a record of giving back to the Urbana community
through his association with charities such as the Central
Illinois Chapter of the American Red Cross and Imagine No
Malaria, a charity pursuing the purchase of mosquito nets for
families in Africa.
He is joined today by his wife, Martha; his son, Duncan;
his daughter, Katherine; and by his parents, Kenneth and
Rosalind. I welcome you all.
Our next nominee is Sara Lee Ellis, who has been nominated
to the Chicago judgeship formerly occupied by Judge Joan
Gottschall. Ms. Ellis currently works at the law firm Schiff
Hardin in Chicago. She handles white-collar criminal matters,
complex civil litigation, and corporate counseling. She was
born in Ontario, Canada, to parents who emigrated from Jamaica.
She moved to the U.S. and became a citizen at age 15, received
her undergraduate degree from Indiana University, her law
degree from Loyola University Chicago College of Law.
After law school, Ms. Ellis joined the Federal Defender
Program in Chicago and served for 6 years as a staff attorney.
In that capacity she represented indigent criminal defendants
in all aspects of criminal litigation. Ms. Ellis then worked in
private practice for several years at the white-collar defense
firm Stetler and Duffy in Chicago, then joined the Chicago City
Department of Law in 2004, serving as Assistant Corporation
Counsel for 4 years, handling Section 1983 cases.
In 2008, she joined Schiff Hardin where she handles
criminal and civil matters. She served as an adjunct professor
at Loyola University Chicago College of Law, teaching Federal
criminal practice and legal writing. She has a distinguished
record of pro bono work and community service, and among many
endeavors she has taught reading and legal skills to children
living in juvenile detention, coached students at the Hyde Park
Academy in mock trial, and provided legal advice and guidance
to the Warren Park Youth Baseball League. She is also actively
involved with S. Gertrude Catholic Parish in Chicago and is on
the board of the parish school of the Northside Catholic
Academy.
Ms. Ellis is joined today by her family and friends,
including her husband, Alfred; her daughter, Sofia; her sons
Freddie and Luke; her mother, Mary; her father, Robert; her
brother, Robert; and many others came by my office. We welcome
all of you here today.
Our final Illinois nominee is Andrea Wood. Ms. Wood has
been nominated to fill the Chicago judgeship left vacant by the
untimely death of Judge Bill Hibbler. Ms. Wood currently serves
as Senior Trial Counsel at the Securities and Exchange
Commission Division of Enforcement in Chicago, representing
that agency in complex litigation. Ms. Wood is a native of St.
Louis, received her B.A. from the University of Chicago, where
she was selected as one of the student convocation speakers.
She received her law degree from Yale where she was on the Yale
Law Journal.
After graduating from law school, Ms. Wood clerked for
Judge Diane Wood of the Seventh Circuit, then joined the
Chicago office of the law firm of Kirkland and Ellis, handling
securities, bankruptcy, and other litigation matters. She
joined the SEC in 2004 as a senior attorney in the Division of
Enforcement, investigated and litigated securities law
violations; in 2007 became a senior trial counsel serving as
lead SEC attorney on litigation matters and coordinating with
U.S. Attorney's offices and other regulators on enforcement
actions. She has received numerous awards for her work at the
SEC, including the Director's Award from the Division of
Enforcement as well as eight Special Act Awards for her work on
individual matters.
In addition to her Government service, Ms. Wood has served
the Chicago community through a variety of charitable causes,
including volunteering at organizations serving homeless women.
She is joined here today by her husband, Percy, who I met
earlier, and we welcome both of you, of course, to this.
And before I proceed to the first panel, let me turn it
over to my colleague from Alabama, Senator Sessions.
OPENING STATEMENT OF HON. JEFF SESSIONS,
A U.S. SENATOR FROM THE STATE OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman, and I am sure
you are indeed pleased to have this fine group of nominees,
being Illinois' Senator that you are, and being the Assistant
Leader of the U.S. Senate. I know that they are pleased to have
your support and things will go well.
I am pleased to introduce to the Committee Magistrate Judge
Madeline Haikala of the Northern District of Alabama. She is
the magistrate judge now, and President Obama has nominated her
to the District Court for the Northern District of Alabama, and
I congratulate, Judge Haikala, and President Obama because he
has made by all accounts a very good choice.
Judge Haikala has dedicated her life to the legal system to
improving the lives of those around her through legal practice
and extensive civic involvement. She got her undergraduate at
Williams College. After graduating with honors from Tulane, she
was named Order of the Coif. She joined the prestigious firm of
Bradley Arant in Birmingham and then I believe was a founding
partner at the real fine firm of Lightfoot Franklin, where she
remained for 22 years practicing general and commercial
litigation. She is known as one of the premier attorneys in
Alabama, having been recognized for her appellate practice and
dedication to pro bono work throughout her career. And the
American Bar Association has rated her unanimously well
qualified, and I believe that is a legitimate honor that you
received.
She has been recognized by the Birmingham Volunteer Lawyers
Program. She has been voted the top attorney in appellate law
by Birmingham Magazine in 2012. She is a member of the
Birmingham Volunteer Lawyers Association, a participant in the
Women's Fund for Greater Birmingham Voices Against Violence
Initiative. She is, of course, a member of the Birmingham and
American Bar Associations and otherwise has exemplified the
best in the legal practice.
Last year, the judges of the court, the United States
District Court of Birmingham, selected Judge Haikala to be
their magistrate. That is a very competitive process. They have
good lawyers. It is the kind of office where the district
judges entrust great powers and responsibilities to the
magistrate judges, more than a lot of districts in the country,
and they look to get really good people for that office. Chief
Justice Blackburn at that time noted, ``The court selected
Judge Haikala due to the wide breadth of her legal experience,
her reputation as an outstanding lawyer, her tremendous
intellect, and her wonderful temperament. These qualities are
strong predictors that she will be an excellent magistrate
judge.''
I believe these qualities as well as her experience as
magistrate judge will serve her well in this new position. She
will certainly be an asset to the court. I congratulate
President Obama for the fine nomination, and I look forward to
being of assistance as I can, Senator Durbin, in the
confirmation process.
Senator Durbin. Thank you, Senator Sessions, and I know
that you are busy with a bill on the floor. I hope you will
stay as long as you can, but I understand if you have to leave.
For those who have not attended these hearings before, some
of the Members will send in written questions to the nominees,
which they will be asked to answer in a prompt fashion. We will
ask a few questions of each today during the course of this
hearing. We will divide it into two panels. The first panel
will be our circuit court nominee, Federal Circuit court
nominee Todd Hughes, and then the second panel of the district
court judges, the three from Illinois and one from the State of
Alabama.
So, Mr. Hughes, if you would please approach the witness
table. Please raise your right hand. Do you affirm that the
testimony you are about to give before the Committee will be
the truth, the whole truth, and nothing but the truth, so help
you God?
Mr. Hughes. I do.
Senator Durbin. Thank you very much. Let the record reflect
that the nominee has answered in the affirmative.
I would like to give you an opportunity now to make an
opening statement and acknowledge anyone you would like to at
this point, and then I will ask a few questions. Please
proceed.
STATEMENT OF TODD M. HUGHES, NOMINEE
TO BE CIRCUIT JUDGE FOR THE FEDERAL CIRCUIT
Mr. Hughes. Thank you, Senator Durbin, for chairing the
hearing. Thank you to Ranking Member Grassley and the Committee
for holding the hearing.
I would first like to thank President Obama for the honor
of nominating me to the Federal Circuit, and I would like to
introduce my family:
My parents, Michael and Barbara Hughes, from Ohio. My
parents are retired farmers and still live on the family farm,
and my mother is also a retired township clerk.
My sister, Cindy Smith, and my twin nephews, Bryer and
Bryce Smith, who I think are probably going to have a pretty
good back-to-school story when they start middle school in the
fall.
I have a number of friends and colleagues from the
Department of Justice and elsewhere both in the audience and
watching the webcast, and I would like to thank them as well as
my family for their support and encouragement.
[The biographical information of Mr. Hughes appears as a
submission for the record.]
Senator Durbin. Thank you very much.
Let me say a word about the Federal Circuit. It is a unique
court among the 13 circuit courts of appeal. It has nationwide
jurisdiction over a wide range of subjects, including
international trade, Federal personnel, Government contracts,
patents and trademarks, and veterans benefits. Administrative
law matters make up about half of the court's caseload and
intellectual property cases make up about a third.
Mr. Hughes, you have had quite a legal career working for
the U.S. Department of Justice in the Commercial Litigation
Branch, and you have argued, I understand, 45 appeals before
the Federal Circuit. Can you talk a little bit about that
court, your experience, and what you look forward to if you are
given the opportunity to serve?
Mr. Hughes. Thank you for the question, Senator Durbin. The
Federal Circuit is a very unique court, as you know. It has
specialized jurisdiction, national jurisdiction over a number
of areas of the law. I believe it occupies a very significant
role in our country in a number of areas, both in international
trade, business and commerce from the patent cases, but it also
plays a very, very significant role in protecting the rights of
veterans and making sure that they get the benefits due to
their service and making sure that Federal workers are given
due process as well.
And so the Federal Circuit is a significant and unique
court and has a very special role in our country's judicial
system.
Senator Durbin. Those of us who had an opportunity or
privilege to practice before any Federal courts have our
opinions about what makes a good Federal judge and what makes a
bad one. And I would like you, if you would, at this point tell
us a little bit about what you think are the qualities that
need to be part of a judge's contribution on the bench.
Mr. Hughes. Thank you, Senator Durbin, for the question.
The first and foremost quality a Federal judge should have is
fidelity to the law. A judge should be a neutral, partial
observer. He should be fair to all the litigants. He should be
thoroughly prepared, understand the facts of the case, the law,
and come to a reasoned and equitable decision.
Senator Durbin. So as you look back on your practice, can
you pick out a few of those qualities in judges you have
appeared before, some illustrations of things that you thought
indicated the right temperament or the right approach?
Mr. Hughes. Well, I have the honor--and it is an extreme
honor to me--of being nominated to fill the seat of Judge
William Bryson who just took senior status. Judge Bryson
exemplifies all those qualities. I practiced before him for
many years. He is thoroughly fair to all the parties appearing
before him. He is extremely well prepared. We will often get
there, and he will ask a question that nobody has anticipated
because he has pulled the record and found something that is
very interesting to him and that he wants explained. He shows
no bias. He has an incredible judicial demeanor.
What also I--this is perhaps more personal, but I admire
Judge Bryson as well, because before his appointment to the
bench, he was also a career Justice Department attorney and
spent almost his entire legal career before appointment at the
Solicitor General's Office and in various other capacities.
Senator Durbin. Mr. Hughes, at the Justice Department you
were involved in briefing and arguing the case of Hesse v.
Department of State. This case involved allegations by a State
Department foreign affairs officer that his security clearance
was suspended in retaliation for acts of whistleblowing on his
part. The Merit Systems Protection Board determined that it
lacked jurisdiction to consider whether the State Department's
decision to suspend the security clearance was proper, and the
Federal Circuit agreed.
Can you tell us a little bit about the facts of the case
and the work you put into it?
Mr. Hughes. The Hesse case did involve an individual at the
Department of Defense that claimed whistleblower retaliation as
a result of the security clearance revocation, and before I get
to my answer, I would just like to note that I and the
Department are firmly committed to the Whistleblower Protection
Act and think that it is a critical role to protecting Federal
workers and, indeed, to the operation of our Government. And I
would certainly be committed to upholding it when I got--if I
am fortunate enough to be confirmed to the court.
Hesse involved a very narrow question that had already in
the Department's view been decided by the Supreme Court in
Egan, and that was whether the revocation of a security
clearance was the type of personnel action that could be
litigated in the Merit System Protection Board and then in the
Federal Circuit. And the Federal Circuit--I am sorry. The
Supreme Court in Egan recognized that security clearance
decisions are firmly committed to the discretion of the
executive branch and that it was not appropriate for the MSPB
or the Federal Circuit to review those decisions. And the Hesse
decision simply followed that reasoning and concluded that even
in the context of a whistleblower case, the security clearance
decision could not be litigated.
That is not to say that somebody whose security clearance
has been revoked does not have alternative avenues. Every
agency has full internal administrative procedures if
somebody's security clearance is proposed to be suspended or
revoked.
Senator Durbin. So was that Egan decision based on a court
evaluation of the statute as written or precedent in cases that
preceded it?
Mr. Hughes. I believe it is based on a couple of things,
Senator. It is based primarily upon its reading of the Civil
Service Reform Act and its conclusion that security clearances
were not specifically included in the list of personnel actions
covered by the Civil Service Reform Act. Its decision was also
certainly colored by the constitutional underpinnings that
place certain decisions regarding national security within the
executive branch.
Senator Durbin. Mr. Hughes, when you were a trial attorney
for the Justice Department, you were involved in several cases
relating to the harbor maintenance tax that Congress enacted to
provide funding for harbor maintenance and development. These
cases led to the 1998 Supreme Court decision in U.S. v. United
States Shoe Corporation in which the Court held that the taxes
applied to exporters violated the Constitution's Export Clause.
This Supreme Court decision then led to a number of subsequent
cases in which companies sought refunds of the tax.
Tell us a little bit about the harbor maintenance tax cases
that you worked on.
Mr. Hughes. The harbor maintenance tax legislation was
enacted by Congress to provide much needed funding for harbor
maintenance and development projects, and I believe ended some
longstanding delays over critical projects. In order to enact a
tax, they enacted an ad valorem tax on basically everybody that
used the ports, and some exporters challenged it because there
is a clause in the Constitution that prohibits taxation of
goods exported.
We attempted to defend the tax on the basis that it was
neutral and did not single out exporters. In what was a fairly
novel issue of law, the Supreme Court ultimately ruled that the
tax did indeed burden exports and was unconstitutional. After
that, all the other taxpayers that were burdened by the tax
attempted various arguments to get refunds as well. We were
successful in defending against those cases and preserved
hundreds of millions of dollars for port maintenance and
development and saved that money for the Treasury.
Senator Durbin. When you look at the caseload that faces
the Federal Circuit Court, we talked about some of the things,
intellectual property cases I think take up a third of the
matters that are involved there. Have you witnessed or been
involved in any cases in that subject matter area?
Mr. Hughes. I have not, Your Honor. Intellectual property
will be the main area of the court's jurisprudence that I will
have to work hard to get up to speed on. I have, though,
substantial familiarity with the other remaining 60 or so
percent of the court's docket--the veterans benefits, the trade
law, government contracts, and Federal personnel.
Senator Durbin. This is no reflection on you because it is
rare that a judicial nominee has really handled everything that
can come before the court, so I did not want to throw a curve
ball at you, but I think that is one that I thought, boy, I
would have to do some studying myself to face any cases on
intellectual property. I usually leave that to my colleagues
who are expert in the area, but thank you for your candor on
that.
In terms of the bulk of the caseload in the Federal
Circuit, though, you have seen a lot of those cases.
Mr. Hughes. I have, Your Honor. I have been at the Justice
Department for almost 19 years now, and I would say at least 50
percent of my work is at the appellate court, either as an
attorney of record personally handling the cases earlier in my
career, where now mostly supervising other very bright trial
attorneys who handle the cases before the court. So I am very
well acquainted with all the other areas of the court's
jurisprudence.
Senator Durbin. Great. I do not have any further questions,
and I will give you a chance to make a closing statement if you
would like, and then, of course, some questions may be sent
your way by other Members of the panel after this hearing. So
if you would like to say something in conclusion, you are
welcome.
Mr. Hughes. I do not have anything further, Senator Durbin,
just thank you for the opportunity to be here today.
Senator Durbin. I was always warned that when you are doing
well in a court case, do not keep talking.
[Laughter.]
Senator Durbin. And you are doing very well, and thank you,
Mr. Hughes, for joining us today. We appreciate that very much.
Mr. Hughes. Thank you.
Senator Durbin. You are excused at this point.
Senator Durbin. I want to welcome the second panel, which I
have introduced formally: Colin Bruce, of Illinois; Sara Ellis,
of Illinois; Andrea Wood, of Illinois; and Madeline Hughes--
``High-ka-la'' or ``Hay-ka-ala''?
Judge Haikala. ``High-ka-la.''
Senator Durbin. Thank you. I am sorry I mispronounced your
name--of Alabama. Please join us. Before you sit down, I will
administer the oath. If you would each raise your right hand,
do you affirm that the testimony you are about to give before
the Committee will be the truth, the whole truth, and nothing
but the truth, so help you God?
Judge Haikala. I do.
Ms. Wood. I do.
Ms. Ellis. I do.
Mr. Bruce. I do.
Senator Durbin. Let the record reflect that all four of the
nominees have answered in the affirmative. I am going to give
each of you now an opportunity to say a word or two and
introduce any family members or friends who are in attendance,
and let me start with Ms. Haikala.
STATEMENT OF HON. MADELINE HUGHES HAIKALA, NOMINEE TO BE
DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF ALABAMA
Judge Haikala. Thank you very much, Senator Durbin. Thank
you for having me here today. I want to express my appreciation
to the entire Committee and, of course, I am deeply grateful to
President Obama for this nomination and for the honor of being
nominated.
I have here with me today my mother, Janice Hughes, from
New Orleans; my son, Matthew Haikala, and my daughter, Leila
Haikala. I also have a couple of friends from Williams College
who are here to support me.
Back in New Orleans and in Birmingham, there are family and
friends who are watching, and I would like to say a special
hello to my daughter, Allie, who hopefully is watching from
Nashville. She is there in the Dominican Convent and hopefully
watching with some of her sisters. And my youngest son,
Christian, is in Birmingham, so hello to him, too.
[The biographical information of Judge Haikala appears as a
submission for the record.]
Senator Durbin. Thank you.
Ms. Wood.
STATEMENT OF ANDREA R. WOOD, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS
Ms. Wood. Yes, first of all, I would like to thank you,
Senator Durbin, for showing confidence in me and submitting my
name to the President. I would also like to thank Senator Kirk
for his role in the process, as well as the Committee for
providing me with the opportunity to appear today. And, of
course, I would like to thank the President for nominating me
for this position.
With me here today is my husband, Percy Moss, who has been
a wonderful source of support and love for me over the years.
Also, I have a couple of friends--a high school friend,
Kirsten Williams, is here with me, as well as a friend from law
school, Robin Meriweather--who took time out of their busy
schedules to be here, for which I am very thankful.
There are also a few people I would like to acknowledge who
were not able to be here in person: my mother, Margaret Wood,
who was not able to make the trip but is at home in St. Louis
sending her thoughts and prayers this way; and also my father,
Carl Wood, who passed away almost 3 years ago but continues to
be an inspiration for me.
I would also like to thank my sisters, Angela and Anita,
and their families, as well as my father- and mother-in-law,
Dr. Percy Moss and Mary Moss; my sister-in-law, Marla, and her
daughter, Madison, who have welcomed me into their family as if
I were born into it.
And then, finally, I just want to thank my colleagues at
the SEC as well as my friends and family who may be watching
this on the webcast for all of their support personally and
professionally.
[The biographical information of Ms. Wood appears as a
submission for the record.]
Senator Durbin. Thank you.
Ms. Ellis.
STATEMENT OF SARA LEE ELLIS, NOMINEE TO BE DISTRICT JUDGE FOR
THE NORTHERN DISTRICT OF ILLINOIS
Ms. Ellis. Thank you, Senator Durbin. I would like to thank
Senators Leahy and Grassley for scheduling this hearing and
giving me the opportunity to be here today.
I would like to thank you for chairing this hearing and for
recommending my name to the White House.
I would like to thank Senator Kirk for supporting my
nomination.
And, most of all, I would like to thank the President for
nominating me. This is a wonderful and great honor.
If I may, I would like to acknowledge, as you noted, the
vast mob from Chicago that has accompanied me today. Present
are my husband, Dr. Alfred Martin; my children, Sofia, Freddie,
and Luke; my parents, Dr. Mary Escoffery and Dr. Robert Ellis;
my dad's wife, Susan Ellis; my brother, Robert Ellis; my
cousin, Dr. David Escoffery; my other cousin by marriage, the
Honorable Daniel Martin; my sister-in-law, Bernadette Martin;
and my nephew, Dominic Jentza; friends from Chicago: Joy,
Sydney, and Samantha Baer; a colleague from Schiff Hardin,
William Hannay; and there are a few family members who,
surprisingly, could not make it--there are actually people that
did not come--and that would be my sister, Juliet Ellis, and
her family; my 94-year-old grandmother, Mavis Ellis, in
Jamaica; and I would also like to thank my aunts and uncles and
cousins who are watching both internationally and around the
country.
And, finally, I would like to thank everybody who is
watching at Schiff Hardin today, in particular our managing
partner, Ron Safer; my practice group leader, Tom Quinn; and my
wonderful friend and mentor, Patricia Holmes, who has supported
me and encouraged me in this process along the way.
Thank you.
[The biographical information of Ms. Ellis appears as a
submission for the record.]
Senator Durbin. Thank you, Ms. Ellis.
Mr. Colin Bruce.
STATEMENT OF COLIN STIRLING BRUCE, NOMINEE TO BE DISTRICT JUDGE
FOR THE CENTRAL DISTRICT OF ILLINOIS
Mr. Bruce. Thank you, Senator. I would like to take the
time to thank you for chairing this Committee.
I would like to thank Senator Grassley for the opportunity
to be here as well, thank Senator Obama--excuse me, President
Obama--he was Senator--President Obama for nominating me, you
for recommending me, Senator Kirk for his support.
I would like to introduce the family that has come with me.
Seated almost directly behind me is my wife, Martha, of just
about 15 years, and I did not forget that my wedding
anniversary is next week. She is not only my best friend, she
is the engine that drives our whole household.
Next to her is my son, Duncan. He is 11. He is starting
sixth grade in the fall.
Carefully seated behind him in a separate row is his
sister, Katherine. She is 9. She is in fourth grade, and they
are both on their best behavior at this time.
Next to them monitoring their activities is their
grandparents: my father, Kenneth Bruce, and my mother, Rosalind
Bruce. They have always supported me and encouraged me in
everything I have tried to do, and I think it is fair to say
they are very excited about being here and seeing me sitting
here before this Committee.
Finally, I would like to thank all my friends and
colleagues at the U.S. Attorney's Office, many of whom are
watching me on web cam and I am sure will have a critique of my
performance when I am done.
Thank you.
[The biographical information of Mr. Bruce appears as a
submission for the record.]
Senator Durbin. Thank you very much.
Now, you are all under oath, so we always ask this question
because we want to get you on the record about what you think a
Federal judge should be like, how they should conduct
themselves, what their temperament should be. So this is sworn
testimony on your part.
Mr. Bruce, would you, based on your experience of spending
many days and hours in front of Federal judges, tell us what
you think are the right qualities for a good judge?
Mr. Bruce. Thank you for that question, Senator. I believe
the right qualities for a judge are, first, that the judge be
respectful--respectful and courteous to all the parties that
appear before the court. I think that is very important because
the judge is essentially the face of the judiciary.
In addition to being respectful and courteous to all the
parties, a district court judge should also adhere to the law,
follow the Supreme Court precedents, and in our district follow
the Seventh Circuit, that way giving the parties fair warning
of what will be coming and how decisions will be rendered.
Those would be the characteristics I would look--hope to
have.
Senator Durbin. Ms. Ellis, repetition is accepted, but I
just want to give each of you a chance for the record. Please.
Ms. Ellis. Thank you, Senator. I believe that a good judge
is a judge that follows the rule of law so that the parties
know what to expect when coming before a judge; that a good
judge is also courteous and kind and respectful, shows no bias
toward any party; and, finally, that a judge works efficiently
and expediently because justice delayed is justice denied. So a
good judge is a judge that issues opinions in a prompt manner
and opinions that are well reasoned and thoughtful.
Senator Durbin. Thank you.
Ms. Wood.
Ms. Wood. Yes, Senator Durbin, in my view, the most
important quality for a judge to possess is impartiality,
respectfulness, respect not just for the parties who appear in
the court but also just the respect for the institution of the
judiciary, respect for the rule of law. A judge should always
be open-minded and approach each case before him or her fully
prepared, with diligence, and prepared to ensure a just result
that is consistent with the precedent; and then, finally,
always to represent the institution of the judiciary to the
best of their abilities.
Senator Durbin. Thank you.
Ms. Haikala.
Judge Haikala. Well, Senator, it is hard to be at the end
of the list for that question. I have to second everything that
my fellow nominees have said. And I suppose if I had to look
for a couple of qualities to add to those, I would say that it
is important for a judge to be even-tempered, to be calm,
because often you are the calm in the middle of the storm,
being the neutral and being somebody who is trying to listen
well to both sides, to all of the sides when you have complex
litigation; and also to have a sense of humor, because I think
at times that is important as well as a member of the bench.
Senator Durbin. Judge Haikala, you presided over the case
of Dudley v. the City of Bessemer, a gender discrimination
action brought by a former chief court clerk. Tell me a little
bit about the case and your ruling.
Judge Haikala. In that case, the former clerk of court
brought her gender discrimination case. The defendants, who are
the city and the former mayor of the city, moved to dismiss the
case. They challenged the nature of the pleading and argued
that there was not a legal basis for one of the claims in the
case. There were Federal claims. There was also a State claim
in addition to the Federal claims.
The parties briefed the motion to dismiss. I heard oral
argument on the motion to dismiss, and ultimately denied the
motion to dismiss. The parties were arguing very--well, the
defendants were arguing for a very strict application of Iqbal,
and I believed and I said in my decision that they were asking
too much of Iqbal, that the complaint was pled with sufficient
specificity that it satisfied the Iqbal test, so I denied the
motion to dismiss.
Senator Durbin. You have been a magistrate for a year or
so?
Judge Haikala. Not quite.
Senator Durbin. Not quite a year. Have you had a variety of
different defendants before you?
Judge Haikala. I have. I have had the good fortune to have
a lot of exposure on the criminal side, so I have been doing a
lot of the magistrate judge work in criminal proceedings. And
then on the civil side, the cases that I have run the gamut.
In the Northern District of Alabama, Senator Sessions
mentioned--and I need to stop and thank him for that lovely
introduction. But he mentioned that magistrate judges have a
great deal of responsibility, and from my experience from
talking to other magistrate judges around the country, I think
we really do. And one of the things that is perhaps unique
about the Northern District, or at least rare, is that
magistrate judges get cases off the wheel. So the civil cases
are assigned randomly to magistrate judges, just as they are to
the district court judges. And the goal is for magistrate
judges to build consent among the parties so that we actually
may exercise dispositive jurisdiction.
So with that in mind, we see every type of case that the
district court judges see and have the opportunity to become
involved in all the legal issues that the district court judges
see.
Senator Durbin. I sometimes think about people appearing
before a Federal judge, some of whom have limited life
experience in a courtroom, limited education, may come to this
experience believing the deck is stacked against them, either
because of their economic status, their racial status, sexual
orientation, whatever it may be. And they look up to that judge
and think, ``Do I have a chance in this courtroom, even with a
good attorney?''
Have you ever reflected on that as you look down from the
bench?
Judge Haikala. I really have. I have thought about that a
lot. One of the things that I have talked to my clerks about in
my office is we get a lot of prisoner litigation, and I have
talked to them about how important it is, in the opinions that
we write, in the orders that we issue in prisoner litigation,
to use everyday language and not to use some of the legal
terminology that can become sort of weight in an opinion for
somebody who really is not familiar with the legal system.
Often the prisoners are acting pro se. I would say 95
percent of the time they are acting pro se, and so they have to
understand what the court is telling them to be able to engage.
So certainly from that perspective, I have considered it,
but as you point out, as a magistrate judge, there are so many
times that people come into the courtroom, and it is their
first time to have any sort of interaction with the court
system. It is intimidating. It is frightening. And so I pay
very close attention to that and try to moderate my voice and
do things to make them as comfortable as possible.
In detention hearings, family members will come in to try
to offer to serve as third-party custodians for defendants, and
that has to be a very difficult situation for them to be in,
and I am very aware of that.
Senator Durbin. Ms. Wood, your work at the SEC is involved
with complex issues and litigation. You have received many
awards for work that you have done there, certainly have an
excellent legal background. As a Federal judge, you are going
to deal with criminal matters probably more than you have in
your private practice or life to this point. How do you reflect
on that challenge that lies ahead?
Ms. Wood. Thank you for that question, Senator Durbin. I am
looking forward to the challenge presented by presiding over
criminal matters, should I be fortunate enough to be confirmed
as a district court judge. It is true that my practice has been
in civil litigation. However, through my experience at the SEC
in particular, I have been fortunate enough to gain a great
deal of familiarity with criminal law and criminal procedure.
I would say that the vast majority of the matters that I
have worked on have also had a parallel criminal proceeding of
some nature. Frequently, I am working alongside and
collaborating with my colleagues at the various agencies that
have criminal jurisdiction, primarily the Department of Justice
but also sometimes other agencies. And through that process, I
have gained a familiarity with the ways in which the civil
practice is similar to and also different from the criminal
practice. I believe that that will provide me with a foundation
upon which to build and grow my knowledge, such that if I am
fortunate enough to be confirmed, I can bring myself up to
speed on the areas that I need to to gain facility with in
order to be an effective judge over criminal matters. And I
would focus my personal education and training in coming up to
speed on criminal matters as quickly as possible, also seek out
the wisdom and guidance of some of the judges in the Northern
District who I know to be particularly adept in that area. And
through hard work and enthusiasm, I believe that I will be well
prepared to handle that segment of the docket.
Senator Durbin. One of the cases the lead counsel in for
the SEC involves a fraud action against Sentinel Management
Company, an investment adviser. It is my understanding this
case was headed toward a civil trial early last year when the
U.S. Attorney's Office indicted two individuals at Sentinel and
that the SEC case has been stayed pending resolution of the
criminal proceeding.
What can you tell us about this matter and the work that
you performed on it?
Ms. Wood. Certainly. Sentinel was one of the first
financial services firms to suffer and falter as a result of
the market liquidity crisis in the late summer/early fall of
2007. At that time Sentinel was managing over $1.4 billion in
client funds. These are funds from a variety of investment
advisory clients, hedge funds, individuals, pension funds, all
sorts of clients.
As a result of the liquidity crisis and some issues
regarding the investments that they were making, they lost
several hundred million dollars' worth of that $1.4 billion
that they originally had under management. The SEC became
involved early on when it appeared that there were problems at
the firm. I was involved at the very early stages when we went
into district court in Chicago as an emergency action in order
to try to preserve as much of the money that was left as we
could and also to begin an enforcement proceeding to try to
obtain some measure of justice for the clients who had been
harmed.
Since that time, in August 2007, I have been the lead
counsel with respect to the subsequent litigation. In that
role, I have had responsibility for all aspects of discovery,
motion practice, just investigating what actually happened at
the firm. I have also--this would be an example of a situation
where I have worked closely with individuals from the
Department of Justice as well as with the CFTC who also had
parallel enforcement actions involving Sentinel going on at the
same time. And as you mentioned, that matter is currently
stayed. We did prevail, ``we,'' the SEC, did prevail on a
summary judgment motion against one of the individual
defendants who was the investment manager at Sentinel, and the
remainder of the case remains to be resolved.
Senator Durbin. Thank you.
Ms. Ellis, I chair a Subcommittee of Judiciary, and it is
the Constitution, Civil Rights, and Human Rights Subcommittee.
It is a great assignment. Just about everything you can think
of falls within the jurisdiction of that Subcommittee, if you
choose to look into it. And I think one of the most important
hearings we held in this room was, I believe, last year, and it
was on the issue of solitary confinement, segregation of those
who have been incarcerated. And it was prompted by some things
I had read about the impact on individuals if they are
separated from social contact for a long period of time.
I note that you represented a pro bono plaintiff in Sparlin
v. LaSalle County. It was a case brought against LaSalle County
that challenged the practice of using solitary confinement for
extended periods. I have been interested in this issue,
obviously, and I wonder if you could tell me a little bit about
the facts of the case and the work that you put in it.
Ms. Ellis. Thank you, Senator. Mr. Sparlin was a pretrial
detainee in LaSalle County, and he spent approximately 18
months in solitary confinement, so from the time that he
entered LaSalle County as a pretrial detainee until the time
that he left LaSalle County, he was held in solitary
confinement. Originally, he brought this case on his own as a
pro se plaintiff, and, in fact, my colleague here, Mr. Hannay,
I assisted him actually in representing Mr. Sparlin in this
matter.
Judge Kennelly appointed Mr. Hannay, and I had assisted
him. We filed a new complaint, kind of refined the allegations
in the complaint, and then conducted discovery and actually
settled the case with LaSalle County just recently. But the
crux of the complaint was that individuals, when they are held
in solitary confinement for an extended period of time do
suffer damage, psychological damage, from being isolated for
such a long time, that it really is something that if
institutions are going to use this practice, that they need to
assess how the effects of solitary confinement are being played
out and determine whether the individual is being affected by
this and also determine whether it is appropriate and
absolutely necessary to keep the individual in solitary
confinement.
Senator Durbin. You were not exactly on the other side of
the issue, but in a similar case, you represented the city of
Chicago as an Assistant Corporation Counsel in a private
practice in the class action case of Dunn v. City of Chicago
that dealt with the length and conditions of confinement of
those arrested by the Chicago Police Department. I understand
you were closely involved in the settlement of this case and
the creation of policies and procedures to address the claims
that were raised. Can you reconcile those two legal
experiences?
Ms. Ellis. Oh, I can, and it is very--my career actually--I
at least have found it very interesting in that I have spent
time on both sides. So throughout my career, I have represented
plaintiffs and defendants. I have represented individuals in
criminal cases, criminal defendants, and then spent 4 years at
the city representing the police department, the department as
a whole and then individual officers. So it has been able to
give me balance as I go through and allowed me to really assess
the strengths and weaknesses of particular cases knowing that I
have to look for the weaknesses in the case, and the
experiences that I have had representing both sides I think
gives me that unique perspective.
Senator Durbin. Thank you.
Mr. Bruce, I recently was visited by a friend of mine who
is an attorney in Chicago. She came in with another colleague
and sat down with me, and she said, ``Senator, why do you
Senators always pick prosecutors to be judges? You should be
more balanced in your approach. These prosecutors have that
prosecutorial mind about them.'' And so I remember when U.S.
Attorney Jim Lewis came by my office with you not that many
months ago, praising your work as his First Assistant at the
U.S. Attorney's office, and I looked through your resume, the
cases you handled. Clearly you are an accomplished prosecutor.
And how will you deal with the fact now that you are no longer
on the State side but you are on the bench looking at both
sides?
Mr. Bruce. Thank you for that question, Senator. I
recognize that there is a difference between being a
prosecutor, that is, being the attorney, and being a judge. A
prosecutor, or any attorney, for that matter, represents a
party. They are the advocate for that party. For the last
almost 25 years I have been the advocate for the United States.
That is a different role than a judge has. I am aware and
recognize that a judge should be neutral. The judge should have
a faithful adherence to the law and applying the law to the
facts and be neutral. And I believe, Senator, I have the
characteristics that I could perform in that manner.
Senator Durbin. You have been involved in a lot of
prosecutions. I looked through the list here: the prosecution
of 19 conspirators engaged in a multimillion-dollar fraud
scheme known as Omega Trust and Trading. This scam involved
enticing victims to pay money to invest in offshore debentures,
promising a 50:1 profit; 17 of the defendants pled guilty and 2
were convicted at trial.
It seems like a pretty complicated assignment to prosecute
a case of this magnitude in a downstate area. Can you tell me a
little bit about your experience on that?
Mr. Bruce. Certainly, Senator. The Omega Trust and Trading
fraud case originated with a man named Clyde Hood, who was
actually a retired electrician from Mattoon, but he could
really talk the talk and convince people of almost anything.
And he aligned himself with several other individuals, and they
principally targeted the elderly. They would promise a 50:1
return on what were called ``prime bank notes''--which are
fictitious, they do not exist--and talk about giving them this
type of bank debenture and talk about overseas accounts. And
essentially they promised a 50:1 return for every $100
invested. They were so effective at doing this, Mr. Hood and
his co-conspirators, that they collected millions and millions
of dollars, oftentimes cleaning out people's entire life
savings.
When it came time for the payout in this case, there was
always a reason why the payout could not come: It is Y2K. The
computers made a mistake. The postal truck with the payouts got
in an accident and caught on fire. There was a satellite
glitch. These were all excuses they gave to their victims,
which numbered in the hundreds, up to almost a thousand. We
never could keep track because Omega Trust and Trading did not
keep track of who they were getting the money from. They just
wanted the money.
In the end, all but two of the defendants pled guilty. The
other two did go to trial. Each one had a multi-week trial, and
in both trials they were convicted. I helped in the
investigation. I was the lead counsel on one of the trials and
the second chair on the other trial. It was a highly complex
case, especially from a little small downstate town like
Mattoon, Illinois. All I can tell you the proudest moments of
my career, knowing everyone was convicted and trying to give
back the restitution and actually making a few of the victims
whole, which was nice.
Senator Durbin. Thank you.
I do not have any further questions, and if you are
wondering what all those lights mean on that clock behind you
on the wall, it means we have started a roll call vote, which
they just gave me a note on, which means I have some work to do
myself during the rest of the day. But I want to thank all four
of you for being here and bringing your families and friends
with you for this moment.
I have no further questions, and there may be some written
questions from the staff or other Senators that will be sent
your way, and we are hoping that you will respond to them in a
timely fashion. The record is going to be open as well for at
least a week for any additional materials that you would like
to submit.
I thank you all for being here today, and at this point the
Senate Judiciary Committee will stand in adjournment.
[Whereupon, at 3:53 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Responses of Madeline Hughes Haikala
to Questions Submitted by Senator Cruz
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