[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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