[Congressional Record Volume 146, Number 25 (Wednesday, March 8, 2000)]
[Senate]
[Pages S1283-S1285]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF RICHARD A. PAEZ
Mr. SESSIONS. Mr. President, I believe I have the responsibility
today to write the majority leader to ask that we not proceed to vote
on the Paez nomination, and to ask that additional hearings be held on
that nomination to determine whether or not he correctly and properly
handled the guilty plea and sentencing of John Huang in Los Angeles,
CA, that fell before his jurisdiction in the Los Angeles district
court.
This is a matter of importance. It is something we have not gotten to
the bottom of. It is something my staff has uncovered as we have come
up to this final vote. I believe it is important.
Judge Paez is a Federal judge today. He has been controversial
because of his activist opinions and background and has been held up
longer than any other judge now pending before the Congress. We have
only had a few who have had substantial delays, probably fewer than two
or three. There are two now who have been delayed. He is still the
longest. I do not lightly ask that he be delayed again, but he is a
sitting Federal judge; he has a lifetime appointment. It is not as if
his law practice is being disrupted and he is being left in limbo about
his future. He can continue to work until we get to the bottom of this.
The President seeks to have him confirmed to the Ninth Circuit Court
of Appeals, which is the highest appellate court in the United States
except for the Supreme Court. It is a high and important position. We
ought to make sure we know what really happened out there when John
Huang was sentenced.
Basically, that is what happened. The John Huang case was part of the
investigation of campaign finance abuses by the Clinton-Gore team in
the 1996 election. Mr. Huang is the one who raised $1.6 million, a lot
of it from foreign sources, the Riadys in China--those kinds of things.
Ultimately, the Democratic National Committee had to refund $1.6
million that they believed they had received wrongfully and illegally.
Eventually, the Clinton Department of Justice proceeded with this
investigation.
The Judiciary Committee chairman, Orrin Hatch, and the chairman of
the Governmental Affairs Committee, Fred Thompson from Tennessee,
repeatedly urged the U.S. Attorney General not to investigate that case
herself because she held her office at the pleasure of the President of
the United States. He could remove her at any time. Even if she did a
fair and good job with it, people would have reason to question it.
They urged her repeatedly--and I have, others have, and a large number
of Senators have--to turn this over to an independent counsel. She did
on many other investigations. But this one they would not let go of;
they held onto it. The President's own appointees held on to this
campaign finance investigation.
I spent 15 years as a Federal prosecutor, 12 as a U.S. attorney, 2\1/
2\ as an assistant U.S. attorney. I have personally tried hundreds of
cases. I have personally participated in, supervised, and directly
handled plea bargains. I know something about the sentencing
guidelines, which are mandatory Federal sentencing rules saying how
much time one should serve.
What happened is that the case did not go before a Federal grand jury
for indictment. The prosecutor, a Department of Justice employee, and
Mr. Huang and his attorneys met and discussed the case. They reached a
plea agreement. That plea agreement called for him to plead guilty to
illegal contributions to the mayor's race in Los Angeles for $7,500--
maybe another little plea, but I think it was just that $7,500--and he
would be given immunity for the $1.6 million or any illegal
contributions he may have received for the Clinton-Gore campaign that
had to be refunded. He would be given immunity for that. He was
supposed to cooperate and testify. That was going to justify the
sentence.
After they reached this agreement and Mr. Huang agreed to waive his
constitutional rights to be indicted by a grand jury, he said: Don't
take me before a grand jury. You make a charge, Mr. Prosecutor, called
an information, instead of an indictment, and I will plead guilty to
that. So they worked out an agreement. He agreed to plead guilty to
that.
Sometimes that is done. It is not in itself wrong, but it is a matter
that increases the possibility of an abusive relationship between the
prosecutor and the defendant, I must admit.
They say that cases are randomly assigned in Los Angeles. There are
34 judges in Los Angeles. Judge Paez was one of those judges. He got
the Huang case. Curiously, he also got the Maria Hsia case. They had a
case against Maria Hsia in Los Angeles because she was involved in
this, too, and they eventually tried her a few days ago and convicted
her in Washington on charges of tax evasion, I believe, arising out of
this same matter. She was tried and convicted here on separate charges.
Oddly, this judge, who was a nominee of the President of the United
States, somehow got these cases and presided over them. I think there
is a real question whether he should have taken the cases.
There is no doubt in my mind, as a professional prosecutor who has
been through these cases for many years, that the prosecutor's duty is
to make sure the defendant is given credit for cooperating; that is,
spilling the beans, admitting he did wrong, asking for mercy in those
cases, agreeing to testify about what he knows. When you do that, you
are entitled to get less than the sentencing guidelines would cause you
to get.
But the critical thing is, Mr. Huang knew high officials in this
administration and knew the President. I believe he spent the night in
the White House. He has certainly been there for meetings at times. So
this was a man who had been involved in not just some inadvertent event
but a very large effort to solicit foreign money, some of it connected
to the country of China, which is a competitor of the United States. It
was a big deal case.
Knowing that the person who had nominated him at that very moment
could have been embarrassed or maybe even found to be guilty of
wrongdoing if Mr. Huang spilled all the beans, I am not sure he should
have taken the case at all out of propriety, but he took it, assuming
he did the right thing.
The case then came up for sentencing. Some of the people who defend
Judge Paez have told me repeatedly in recent days that they don't
believe it was Judge Paez's fault so much as it was the fault of the
Department of Justice, that they did not tell him all the truth; they
acted improperly; if they had told him all the facts, he may have
rendered a more serious sentence than he did under these circumstances.
I have had my staff review the plea agreement. Much of it is not
available to us. We did not get the pre-sentence report, which I would
love to see. We did not get to see some other matters involving the
extent of the cooperation of Mr. Huang. That was not available to us.
But we do have a transcript of the guilty plea, what went down and what
facts were produced and what facts the judge did know and the judge was
told.
It appears to me the judge was not told all the facts by the
Department of Justice. That is a very serious thing, if it occurred. It
is a failure on their part to fulfill the high ideals of justice in
this country.
If we look on the Supreme Court building, right across the street
from the Capitol, the words written in big letters on the front of that
building are these: Equal justice under law. When charges were brought
against President Nixon, the impeachment charges voted
[[Page S1284]]
against him were clearly established by the Supreme Court--that the
President and no person in this country is above the law.
We are a government of laws and not of men. That is a foundation
principle of America. It is in our early debates about establishing the
Constitution and the rule of law.
We are a government of laws and not of men. That was raised during
the drafting of the impeachment clause. I remember I researched that at
the time. That high ideal was discussed by the people who wrote our
Constitution. So I say to you that this was a high-profile case of
immense national interest. It had been a subject about which TV and
news stories, magazines, newspapers, and so forth have written--the
Huang case. The American public had every right to expect this case
would be handled scrupulously and that there not be the slightest
misstep.
A judge with a lifetime appointment ought not to have felt in any way
obligated to do anything other than conduct himself according to the
fair and just aspects of handling this case. That, to me, was basic.
That is why we give the stunning power of a lifetime appointment. But
we have to ask that they adhere to high standards in utilizing that
power. If they misuse it, we can't vote and say: We don't like the way
you are doing your job, judge, we are going to remove you. No. He has a
constitutional right to a lifetime appointment, unless he commits an
impeachable offense. Bad decisions are not impeachable offenses.
So the judge took this case, and I believe he had a high obligation
to conduct himself properly. The whole Nation was watching. Maybe he
didn't have all the facts, but we found that he started at a base level
of 6. Under our Federal sentencing guidelines--many of you may not
know, but this Congress did a great thing a number of years ago. When I
was prosecuting cases, they eliminated parole and put a restriction on
how a judge could sentence. They said you have to carefully evaluate
every case that comes before you, and we have a sentencing commission
that goes over the details.
There are guidelines about what you must find. If you find the
defendant used a gun, or that he is a previously convicted felon, or
that he used corrupt means to organize an entity, all of these factors
could increase the time he or she serves in jail. How much money was
involved could increase the time in jail; a little bit is less, and
more is more. Judges have used all of those guidelines. But there was
great concern in the Congress that many judges in Federal court didn't
sentence appropriately. You might have an offense in one district that
is treated one way, and it might be treated much more lightly in
another district. So he got the base level for that.
One of the factors that the judge had awareness of and had the
evidence on was that a substantial part of this fraudulent scheme was
committed outside the United States. Under the sentencing guidelines,
that calls for adding two different levels to this sentence. Judge Paez
made no adjustment. He did not increase the level for the fact that in
part of this scheme the money came from outside the United States.
People who were giving the money were from outside the United States. A
substantial part of this involved international activity. That is
precisely the motive behind adding to punishment within the level of
guidelines. The judge failed to do so. I believe he clearly should have
done so under the circumstances.
He also had evidence that at least 24 illegal contributions were
spread out over the course of 2 years involving multiple U.S. and
overseas corporate entities, which John Huang was responsible for
soliciting and reimbursing these illegal contributions. So he was
actively involved with these corporations. Under Federal guidelines,
``If an individual is an organizer or a manager that significantly
facilitated the commission or concealment of the offense''--that is a
direct quote--``under 3(b)1.3, he should be given a 2 to 4 level
increase.''
Judge Paez gave him no level increase for those two acts. John Huang
also was ``an officer and director of various corporate entities
involved and also was a director and vice chairman of a bank.'' What
does that mean when you are doing sentencing guidelines? Under the
guidelines, if an individual abuses a position of public or private
trust, such as using his position as a board director and vice
president of a bank in a manner that significantly facilitated the
commission or concealment of the offense, then he should have added two
additional levels for that. Right there, we are talking about at least
six, maybe eight, different additional levels. The judge found no
increases for that.
So when he pleaded guilty, Judge Paez found that his level was eight.
That is very critical because, I am sad to say, that is the highest
level you can have and still get probation and not spend a day in jail.
It calls for a sentence of zero to 6 months if you have level 8. If the
judge wants to be tough, he can give him 6 months if he falls under
level 8. If he wants to be lenient, he can give straight probation, or
zero time in jail. Judge Paez gave him probation, the lowest possible
sentence. If it would have been level 9, the lowest possible sentence
would have been time in the slammer, in the bastille where he belonged.
I am troubled by that. I know there was a lot of pressure to move
this case along, get this case out of the way and not have any
embarrassment. I am sure there was a lot of tension. But a lifetime-
appointed Federal judge should have a commitment to the highest
standards of integrity. Even if it involved the President of the United
States, the man who appointed him, he should not play with the
sentencing guidelines. I assure you that 18-, 19-, and 25-year-old
kids, every day, going into Federal court--and I have seen it; I
presided over them--are getting 10, 15, 25 years without parole because
they are significant drug dealers and they have been selling crack.
They are sent off to the slammer and nobody worries about them.
So how is it that John Huang raises $1.6 million that had to be
returned, pleads guilty to some token offense on a contribution to the
mayor of Los Angeles, and he gets to walk out without 1 day in jail?
Well, the prosecutor was at fault, in my opinion. This was an
unjustified disposition of this case, in light of the circumstances
involved.
I cannot imagine that anybody can ultimately defend the disposition
of this case. They may say, well, the judge just followed the
prosecutor's recommendation. The judge did follow the prosecutor's
recommendation, but he was not required to do so. In that plea bargain,
as I noted, it said the judge is not required to follow this plea
bargain. If he, Mr. Huang, rejects it, we will withdraw the plea and we
will go back to square one and start all over. The judge is not
required to accept it. The judge wasn't required to accept the plea,
and he should not have accepted this plea.
These are the exact words from the plea agreement:
This agreement is not binding on the court. The United
States and you--
Meaning Mr. Huang, in the contract between the prosecutor and Mr.
Huang--
understand that the court retains complete discretion to
accept or reject the agreed upon disposition provided for in
this agreement. If the court does not accept this agreement,
it will be void, and you will be free to withdraw your plea
of guilty. If you do withdraw your plea of guilty, this
agreement made in connection with it and the discussions
leading up to it shall not be admissible against you in any
court.
That is standard language. I have used it many times myself. The
judge was obligated to follow the law of the United States. He was
obligated to make sure justice occurred, if there was equal justice
under the law.
I don't know how judges who send kids to jail for 20 years without
parole can sleep at night when they are talking about letting this guy
off the hook for this offense.
Mrs. BOXER. Mr. President, will the Senator yield?
Mr. SESSIONS. Yes.
Mrs. BOXER. I know my friend doesn't want us to vote on Judge Paez.
Mr. SESSIONS. Let me just say to the Senator that I have asked for an
additional hearing to find out if I might be wrong about this and hear
both sides of it. But I am not going to support a filibuster on this
nomination. If we do that, we will just vote on it, as far as I am
concerned.
Mrs. BOXER. I thank my friend very much.
[[Page S1285]]
I want to ask him if he read what Senator Specter said regarding the
two cases we raised, the Maria Hsia case and the Huang case. I ask the
Senator to react to this because I think it is important.
When asked if this vote ought to be put off, he said:
These matters are now ripe for decision by the Senate.
There has been some suggestion of a further investigation on
this matter, but when Judge Paez's nomination has been
pending since 1996, and all of the factors on the record
demonstrate it was the Government's failure, the failure of
the Department of Justice to bring these matters to the
attention of Judge Paez and on the record, he has
qualifications to be confirmed.
In other words, what Senator Specter is saying is that Judge Paez was
following the recommendation of the prosecutor.
I ask my friend: When the prosecutors say this is what we think is
the best for the case, is it really that unusual for a judge to say let
the prosecution stand? If we want to accuse Judge Paez of something, it
ought to be that he was soft on the case, No. 1. I say to my friend: It
was randomly selected; he got these two cases; he didn't ask for these
cases. No. 2, he followed the prosecution's request, and he is being
condemned for it.
My last point is--I know my friend will comment on all of this--my
friend was interested in the sentencing issue surrounding Judge Paez.
We have the facts on that, and he does as well.
I think it is important to note that if you look at U.S. district
court as a whole--
Mr. SESSIONS. I have the floor.
Mrs. BOXER. I will come back to it.
Mr. SESSIONS. I will finish, and the Senator can respond.
Mrs. BOXER. I appreciate my friend yielding. I will wait.
Mr. SESSIONS. I am sorry. I will be happy to enter into a dialogue
and come back to it later.
Senator Specter was, in fact, a State prosecutor. He is familiar in
that boiler room of Philadelphia when judges are sitting up there and
prosecutors come forward on burglary cases. The judge is a victim. He
has to take the recommendation of the prosecutor and does so routinely.
Federal judges try to do that, but it is always recognized that they
have ultimate responsibility, as this plea agreement says.
In a case of national importance, which in itself just on the face of
it does not pass the smell test, in my view, he should not have
accepted it.
Another thing Senator Specter has never done is handle the sentencing
guidelines. They were not a part of the State courts of Philadelphia or
Pennsylvania, but they were a part of the Federal court where Judge
Paez was sitting. I don't think Senator Specter has ever considered the
fact that the evidence is what the judge had, and he did not have all
that he should have had. But what he did have indicates that he did not
properly apply the guidelines. That is the only thing he can be
responsible for, in my view. If evidence was withheld from him, I
understand that. But what I have been quoting here is what he did have.
I also note in Roll Call, in the Republican Representative Jay Kim
probation case, they said Judge Paez's sentence of Representative Kim
was a mere slap on the wrist and makes us think that the Senate
Judiciary Committee ought to question whether or not Paez is too soft
on criminals to be a Federal judge.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. SESSIONS. I thank the Chair.
I hate to ask this to be delayed. But he is a sitting Federal judge.
It is not messing up his Federal practice in a couple or three weeks to
get to the bottom of this and how the case was assigned, because it
didn't come out of an indictment by a grand jury, it came out of the
handling by the prosecutor. In my experience, those cases are not
randomly assigned. Quite often, they are taken directly by the
prosecutor to the judge.
I would like to have somebody under oath explain to me how the Hsia
case and the Huang case went to Judge Paez. Out of 34 judges, they went
to Judge Paez. That doesn't strike well with me. I would like to know
that before we go forward with the vote. If he has a good answer, I am
willing to accept it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. GRAMS. Mr. President, I ask unanimous consent to be allowed to
proceed in morning business for up to 10 minutes and that my remarks be
followed by the Senator from California, Mrs. Boxer.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAMS. Thank you very much.
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