[Congressional Record Volume 153, Number 93 (Monday, June 11, 2007)]
[Senate]
[Pages S7421-S7426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        NO CONFIDENCE RESOLUTION

  Mr. HATCH. Mr. President, this afternoon the Senate will decide 
whether to end debate on proceeding to Senate Joint Resolution 14, 
which expresses the sense of the Senate that the Attorney General no 
longer holds the confidence of the Senate or the American people.
  I rise to oppose this so-called no confidence resolution on both 
procedural and substantive grounds and will urge my colleagues to vote 
against ending debate. To paraphrase Shakespeare, whether or not this 
joint resolution amounts to sound and fury, it signifies nothing. It is 
nothing more than a bit of political theater which should be rejected 
out of hand.
  Let me make two points about its form and two points about its 
substance before offering a few comments about the controversy from 
which it arose. The first point I want to make about its form is that 
this measure would express the sense or opinion of the Senate through a 
joint resolution. As opposed to regular Senate resolutions that require 
only Senate passage, joint resolutions are legislative vehicles 
requiring passage by both houses and signature by the President.
  We use joint resolutions to propose constitutional amendments and 
some other legislative business, but this legislative vehicle is simply 
the wrong way to conduct non-legislative business such as expressing 
the opinion of one house. In a report dated today, the Congressional 
Research Service concludes that the form of this measure as a joint 
resolution is inappropriate for what it purports to do.
  I think this is significant and the reason for this conclusion is 
obvious. If this joint resolution should somehow pass the Senate--which 
I certainly expect it will not--it will be sent to the House.
  How on Earth can the House vote on the sense of the Senate? What 
could a House vote about the Senate's opinion on this matter possibly 
mean? By a negative vote, would the House be saying that what the 
Senate has expressed as its own opinion is really not the Senate's 
opinion? This makes no sense whatsoever. In fact, the House already has 
its own resolution regarding the Attorney General's service, and it is 
a regular House resolution.
  The sponsors of S.J. Res 14 either do not understand or have 
disregarded how the legislative process is supposed to work. I suspect 
it is the latter, using this political ploy to force the President's 
involvement.
  Either way, this body should reject it out of hand.
  The Senate has not used a joint resolution in the past on the rare 
occasion when it has sought to criticize executive branch officials. 
Resolutions in the 109th Congress to censure the President or condemn 
remarks by a former Cabinet Secretary were Senate resolutions.
  The resolution to censure the President introduced in the 106th 
Congress, offered by one of the cosponsors of today's joint resolution, 
was a Senate resolution. Resolutions in the 81st and 82nd Congresses 
demanding the resignation of Secretary of State Dean Acheson were 
Senate resolutions. The resolution to censure and condemn President 
James Buchanan in 1862 was a Senate resolution. Our only attempt to 
censure the Attorney General, back in 1886, was through Senate 
resolutions. This unprecedented use of a joint resolution would distort 
our legislative procedure, and I urge my colleagues to reject it.
  The second point about the form of this measure is that it purports 
to be a no confidence resolution. Parliaments take no-confidence votes 
for an obvious reason. In a parliamentary system of government, the 
legislative body's confidence or support is necessary for the head of 
government and cabinet ministers to serve.
  For an equally obvious reason, the so-called no-confidence resolution 
before us should be rejected. This is not a parliament. In our 
Presidential system of government, the separation of powers means that 
the chief executive is elected separately from the legislature, and 
cabinet officials such as the Attorney General serve at the pleasure of 
the President.
  Under the Constitution, the Senate's consent was required for the 
Attorney General's appointment, but our confidence is not required for 
the Attorney General's continued service. The Attorney General serves 
at the pleasure of the President, not at the confidence of the Senate.
  The separation of powers has been a casualty throughout the 
controversy concerning the removal of U.S. Attorneys that gave rise to 
this misguided resolution. As with the Attorney General--and with very 
few exceptions--U.S. attorneys serve at the pleasure of the President.
  The U.S. attorney statute says that they are subject to removal by 
the President. Neither the Constitution nor this statute say anything 
about the confidence of the Senate for the continued service of 
officials the President has authority to appoint.
  The separation of powers, a principle fundamental to our 
constitutional system itself, is becoming a casualty of partisan 
politics.
  The brand new Congressional Research Service report I mentioned 
earlier could not identify a single resolution like this one even being 
offered in the past and this should not be the first. No matter what 
its substance, a joint resolution is inappropriate for expressing the 
sense of the Senate about his issue. No matter what its form, a 
resolution expressing a lack of confidence in an executive branch 
official is inappropriate in our system of government.
  Let me now address two points regarding the substance of this 
inappropriate joint resolution. The first point is about the real 
purpose behind its words. Even though expressing a lack of confidence 
in an executive branch official is irrelevant in our system of 
government, we all know that the real purpose behind this resolution is 
to pressure the Attorney General to resign.
  On the one hand, if its sponsors want to call for the Attorney 
General's resignation, they should be honest and do so. On the other 
hand, Senators certainly do not need a resolution--especially one as 
fundamentally flawed and inappropriate as this one--to call for the 
Attorney General's resignation. As a number of this resolution's 
sponsors have already done, with the rapt attention and constant 
repetition of a compliant media, Senators can demand the Attorney 
General's resignation any time they choose.
  My second point about the substance of this misguided joint 
resolution concerns its actual content, the words themselves.
  This joint resolution does not condemn or criticize the Attorney 
General for anything he has done or said. It does not call for his 
censure. And, just to repeat, this joint resolution does not call for 
the Attorney General's resignation.
  In the past, the Senate has considered resolutions doing each of 
these, albeit through regular Senate resolutions properly suited to the 
task. But this joint resolution before us does not even contain a 
single ``whereas,'' clause offering any indication of the basis or any 
reason for what it says. Rather, this joint resolution speaks vaguely 
of ``holding confidence,'' as if this were an all-or-nothing 
proposition, as if this were some kind of a pass-fail test.
  Even when parliaments take no-confidence votes, those votes are at 
least limited to the confidence of parliament itself. This joint 
resolution purports to speak about all the confidence of all the 
American people. But what could a ``yes'' or ``roll vote on such a 
resolution possibly mean? Would a ``no'' vote

[[Page S7422]]

mean that no American has any confidence in the Attorney General about 
anything?
  Would a ``yes'' vote mean that every American has complete confidence 
in the Attorney General about everything?
  Because neither one of those can possibly be true, a resolution 
worded this way is either seriously misguided or nothing but a 
publicity stunt. It is not focused on his job performance, or his 
leadership of the Justice Department, but is focused on the Attorney 
General himself.
  A resolution asking for a ``yes'' or ``no'' vote on something as 
vague and misdirected as confidence in a person attempts to reduce the 
multifaceted and complex to the unilateral and simplistic. In doing so, 
this misleading joint resolution turns a bit of political theater into 
a theater of the absurd.
  The Senate should not even consider such a resolution evoking the 
image of Caesar listening for the chants of the crowd before giving a 
thumbs-up or a thumbs-down. Rather than purporting to speak for the 
American people, I think we should let the American people speak for 
themselves.
  I found 16 opinion polls by nationally recognized polling outfits 
during March and April asking Americans whether the Attorney General 
should resign. These polls did not ask a vague, squishy question such 
as: Do you have confidence in the Attorney General? No these polls 
asked the real question behind the joint resolution before us today: Do 
you think the Attorney General should resign? An average of 39 percent 
of Americans said ``yes.'' Only one poll showed bare majority 
responding in the affirmative and, considering its margin of error, 
even that one might not show majority support for this result at all.
  Frankly, I am a little surprised that the percentage of Americans who 
say the Attorney General should resign is not higher. My Democratic 
colleagues and many of their media allies, after all, have been working 
very hard week after week after week to persuade our fellow citizens 
that the Attorney General should go.
  Daily front-page news coverage, Senate and House hearings, protests 
and lobbying by activists, blogs, columns, editorials--the Attorney 
General's critics have been pulling out all the stops for 6 months now. 
And while the joint resolution before us suggests that this aggressive, 
coordinated effort has deprived the Attorney General of everyone's 
confidence about everything, only a little over a third of Americans 
think he should resign. The Pew Research Center examined news coverage 
during the week in March when the Attorney General gave a much-
criticized press conference. They found that the story about dismissed 
U.S. attorneys was the most reported story in the national media, with 
coverage jumping eight fold from the previous week. In spite of that 
Herculean media effort, however, only about 8 percent of Americans said 
this is the story they followed most closely.
  These national polls are far better suited to measure what the 
American people think than the joint resolution before us, and my 
Democratic colleagues might want to consider another nugget of public 
opinion.
  A USA Today/Gallup poll showed that while 38 percent of Americans 
believe that the Attorney General should resign, 40 percent of 
Americans believe that Democrats in Congress are spending too much time 
on this issue. Let me repeat that. More Americans say Democrats spend 
too much time on this issue than believe the Attorney General should 
resign. One reason might be that there is so little to show for the 
effort.
  Just a few weeks ago, one of my distinguished Democratic colleagues 
said during a press conference that Democrats just know that U.S. 
attorneys were fired last year for improper reasons. How do Democrats 
know this? Because they have any evidence for that conclusion?
  No. My Democratic colleague had to admit that ``we don't have a 
smoking gun.'' That is Washington political code for ``just take our 
word for it because we can't prove it.''
  Just a couple of weeks before that, another distinguished Democratic 
colleague told a gaggle of reporters after a Judiciary Committee 
hearing that he ``just knows'' someone in the White House ordered that 
those U.S. attorneys be removed. Now, how does he know this? Because he 
has any evidence for this conclusion? No. He too had to admit that ``of 
course we don't know that''
  It is truly ironic that this controversy involves prosecutors. 
Prosecutors must have some evidence to bring charges. Prosecutors must 
have some evidence for a conviction. I just wish that some of my Senate 
colleagues felt such an obligation either to prove their allegations or 
move on to more important matters.
  We have been investigating and probing the removal of those U.S. 
attorneys for 6 months. Dozens of staff in the Senate, the House, and 
the Justice Department have done little else since the 110th Congress 
began. We have seen hearing after hearing, interview after interview, 
thousands of pages of documents, and even hundreds of thousands of 
taxpayer dollars to hire outside law firms as reinforcements.
  Democrats continue to authorize subpoenas not only for people who 
have not refused to testify, but for people who have agreed to testify, 
and even for people who have already testified. And after all that, my 
Democratic colleagues have to admit that they have no smoking gun, they 
cannot prove the accusations they continue to repeat. There are plenty 
of innuendos, caricatures, and characterizations. But repeating talking 
points, sound bites and cliches is no substitute for evidence.

  This summer, Americans will see sequels of several movies in the 
theaters. Here in the Senate's political theater, we have already seen 
several sequels of the same movie. Last week's Judiciary Committee 
hearing, for example, was part five on the hiring and firing of U.S. 
attorneys. Every one of those same sequels has the same ending. It is 
no wonder more Americans believe that enough is enough than believe the 
Attorney General should resign.
  Before I close, let me say a few words about the controversy that was 
the impetus for this misguided joint resolution. As I said earlier, 
U.S. attorneys serve at the pleasure of the President. With very few 
exceptions, he may remove them for whatever reason he chooses. The 
President has the authority to remove a U.S. attorney to allow someone 
else to serve in that position or because that U.S. attorney's 
performance is, in some general or specific way, inadequate. Each of 
the U.S. attorneys removed last year had served his or her 4-year term 
and had no right to serve longer if the President didn't want them to. 
That means the real issue is whether these U.S. attorneys were removed 
for genuinely improper reasons, such as interfering with an ongoing 
case. After all this time, all this effort, and all this taxpayer 
money, there is no evidence for that conclusion.
  I must candidly say, at the same time, that the process by which this 
administration set out to evaluate U.S. attorneys and replace some of 
them was bungled from the start. Proper respect for the office of the 
Federal prosecutor and for the individuals who occupy it would, it 
seems to me, require a more rigorous, disciplined, organized process 
than apparently was used here. The Attorney General has said as much 
and said he should have been more involved. I also think the 
individuals who were asked to resign deserve better, more respectful 
treatment. But there is a high burden of proof for those who say that a 
badly executed and explained process, even a poorly conceived and 
mismanaged process, was instead a nefarious, partisan, political scheme 
to subvert the justice system. Continuing to make such claims without 
coming close to meeting that burden appears to many designed, instead, 
to serve partisan political goals.
  As I close, I ask my colleagues to consider one more set of polls. 
During the same 2 months, March and April, as they were asking about 
the Attorney General's resignation, national polling outfits also asked 
Americans if they approve of the way Congress is doing its job. While 
an average of 39 percent of Americans believe the Attorney General 
should resign, an average of 56 percent of Americans disapprove of how 
we are doing our job. Should we all resign? I think there are some 
people who probably would say yes. Far more Americans disapprove of 
Congress than believe the Attorney General should resign. I wonder 
whether spending so

[[Page S7423]]

much time on fishing expeditions that yield no fish and wasting time on 
inappropriate, misleading resolutions such as the one before us today 
only add to Americans' disapproval of our job performance.
  In a statement last Friday, the main sponsor of this joint resolution 
said the vote on this resolution is about loyalty. I suppose he meant 
loyalty to the President, as if that were the only reason to oppose 
using the wrong vehicle for a misleading statement that has no 
relevance to our system of government. In a way, I agree this is about 
loyalty, but I think it is about loyalty to the Constitution, to the 
integrity of the legislative process, to this body as an institution, 
and to a fair and honest debate about these issues. If my colleagues 
are loyal to those, they will see that this bit of absurd political 
theater serves no real purpose and will only add to most Americans' 
already negative view of how we are doing our job.
  So I urge my colleagues to reject this cloture motion.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. FEINSTEIN. Mr. President, I wish to ask what the time allocation 
is because I wish to speak on the Democratic side.
  The PRESIDING OFFICER. The remaining 20 minutes is under the control 
of the majority.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, similarly reserving the right to object, 
I have been waiting. I wonder if we might have a unanimous consent 
agreement that I be permitted to speak for 10 minutes, unless the 
Senator from California wants to go first?
  Mrs. FEINSTEIN. Mr. President, if I might respond to that. Of course 
I want to cooperate, but I wish to use the 20 minutes of Democratic 
time. I would be prepared to extend the time for morning business if 
the Senators would agree to that.
  Perhaps there could be a unanimous consent agreement that Senator 
Specter is allowed 10 minutes, and I would be allowed the 20 minutes of 
Democratic time, requiring an extension of 10 minutes of morning 
business.
  The PRESIDING OFFICER. Is there objection?
  Mr. SPECTER. Mr. President, how much time remains on each side?
  The PRESIDING OFFICER. The majority has 18\1/2\ minutes and the 
Republican time has expired.
  Mr. SPECTER. Mr. President, the majority has 18\1/2\ minutes, and the 
minority has how much?
  The PRESIDING OFFICER. The minority time has expired.
  Mrs. FEINSTEIN. If I may, Mr. President, through the Chair to the 
distinguished ranking member of the Judiciary Committee, say my 
suggestion is we extend the time of morning business to accommodate the 
Senator's 10 minutes and my 20 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I have sought recognition to speak about 
the resolution of no confidence on Attorney General Gonzales. This 
resolution poses many currents and crosscurrents and many overlapping 
currents and crosscurrents. I have written down five of the currents 
which I believe are involved in the analysis of this issue.
  First: Have I lost confidence in Attorney General Gonzales? Second: 
Is this resolution politically motivated? Third: Does Senator Schumer 
have a conflict of interest? Fourth: Will this resolution likely lead 
to the departure of Attorney General Gonzales or give him more reason 
to stay on? And fifth: Is the principal reason for this resolution to 
help the Department of Justice or to embarrass Republicans? It is an 
interrelationship and a wing of these various considerations which has 
led to my own conclusion on this resolution.
  First of all, have I lost confidence in Attorney General Gonzales? 
Absolutely yes. Attorney General Gonzales has made representations 
which are false. He said he was not involved in discussions. He was 
contradicted by three of his top aides and by documentary evidence, e-
mails. He said he was not involved in deliberations. Again, he was 
contradicted by three top aides and documentary evidence, the e-mails. 
He said he was not involved in the memoranda which were circulated on 
this matter. Again, contradicted by three top aides and documentary 
evidence.
  He said the terror surveillance program brought no objection within 
the Department of Justice, and we find on examination there were 
serious dissents within the Department of Justice on the 
constitutionality of the terrorist surveillance program. So much so 
that Alberto Gonzales, when he served as White House counsel, was one 
of those who went to the hospital room of then-Attorney General John 
Ashcroft to get Attorney General Ashcroft to certify that the program 
was constitutional. So there is no doubt in my mind that there is no 
confidence which is residing in Attorney General Gonzales.
  This is much more than a personnel matter. This is a matter for the 
administration of the Department of Justice, which is second only to 
the Department of Defense on the welfare of the people of the United 
States. The Department of Justice has the responsibility for 
investigating terrorism and antiterrorism, has the responsibility for 
enforcing our drug laws, has the responsibility for enforcing Federal 
laws of violent crime and white-collar crime. The Attorney General has 
the responsibility for supervising 93 U.S. attorneys from around the 
country who have very important positions, something that I know 
something about in some detail, since I was the district attorney of 
Philadelphia for some 8 years. There is no doubt the Department at the 
present time is in shambles.
  The Attorney General called me before his hearing came up and asked 
for my advice, and I said: Set out the reasons why you asked these 
individuals to resign. Set out the reasons why. He did not do so. The 
day after a very tempestuous hearing in the Judiciary Committee, he 
called me again and asked for my advice as to what he ought to do. I 
said: Al, you still haven't responded as to why you asked these people 
to resign. I took the position at that time, and I take the position at 
the present time, that I am not going to ask the President to fire 
Attorney General Gonzales. That is a matter for the President to 
decide. I am not going to let the President tell me how to vote, and I 
am not going to say to him how he ought to run the executive branch on 
grounds of separation of power. Similarly, with Attorney General 
Gonzales, as to what he does, that is a personal decision for him to 
make. But I have been very emphatic in the Judiciary Committee 
hearings, as we have investigated this matter, that I think the 
Attorney General has not done the job and that the Department of 
Justice would be much better off without him.
  The second question I looked at is: Is this resolution politically 
motivated? I think that it certainly is. This ties in to the 
crosscurrent as to whether Senator Schumer has a conflict of interest. 
I believe he does. I said so to Senator Schumer eyeball to eyeball, 
confronting him in the Judiciary Committee meeting. The day after New 
Mexico's U.S. Attorney David Iglesias testified about a conversation 
that Iglesias had with Senator Domenici, the Democratic Senatorial 
Campaign Committee posted on their Web site criticisms of Senator Pete 
Domenici. The following day, the Democratic fundraising apparatus, led 
by Senator Schumer, published a fundraising letter, and there is no 
doubt about that conflict of interest. Senator Schumer has been 
designated to lead the investigation because he is the chairman of the 
relevant subcommittee. So I think there is no doubt about the overtone 
of heavy politicization and the conflict of interest.
  The third consideration I have is will this resolution likely lead to 
the departure or give the Attorney General a reason to stay on? My 
hunch is the thrust of the resolution, if it seeks his ouster, is going 
to be a boomerang and is going to be counterproductive. My own sense is 
there is no confidence in the Attorney General on this side of the 
aisle but that the views will not be expressed in this format. Already, 
some who have called for his resignation on the Republican side of the 
aisle have said they will not vote for this resolution. Others who have 
declined to comment about his capacity have said that this is not the 
proper way to proceed, that our form of government does not have a no-
confidence vote.
  Is the principal reason for this resolution to help the Department of 
Justice or to embarrass Republicans? I

[[Page S7424]]

think clear cut, it is designed to embarrass Republicans. It is 
designed to embarrass Republicans if the Senate says the Senate has no 
confidence in the Attorney General, and it is designed to embarrass 
Republicans who vote against the motion for cloture because it will be 
a ``gotcha'' 30-second commercial in later campaigns. It will be used 
to say that whoever votes against the motion to invoke cloture is 
sanctioning the conduct of Attorney General Gonzales, and anybody who 
votes against the motion to invoke cloture is going to be the recipient 
of those 30-second ``gotcha'' commercials.
  Now, there are many reasons to vote against the cloture motion. One 
reason--and a dominant reason--is that the Senate has a lot more 
important things to do than engage in this debate on this issue. 
Thursday night, the majority leader took down the immigration bill. 
Regrettably, he had cause to because the Republican Senators who had 
objected to the immigration bill wouldn't allow any amendments to come 
up. They wouldn't allow their amendments--they didn't step forward with 
their amendments, nor did they allow others to offer amendments. But we 
were on the verge of getting a list. It was taking a little more time. 
The majority leader took down the bill. But the national interest would 
be a lot better served had we continued with the bill on Friday or 
perhaps on Saturday--we can work on Saturday--or return to the bill 
today--or still return to the bill today, instead of taking up this 
resolution.
  Another reason why people could justifiably vote against cloture is 
because the investigation is not complete. That is still hanging fire, 
so why have the resolution before we finish our investigation?
  But there is another reason: the Constitution arguably expresses a 
way to deal with Attorney General Gonzales, and that is by impeachment, 
as it is not in line to have a resolution of disapproval. That is the 
British system of no confidence. It is my sense that many on this side 
of the aisle, if not most, if not almost all--I ask unanimous consent 
for 1 additional minute.

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. It is my sense that many on this side of the aisle--
most, if not almost all--will vote against cloture because there are 
ample reasons to vote against cloture. But as I look at this matter, as 
to which is the more weighty, the more compelling, the more important, 
candidly stating I have no confidence in Attorney General Gonzales or 
rejecting the outright political chicanery which is involved in this 
resolution offered by the Democrats, I come down on the side of the 
interests of the country, and moving for improvements in the Department 
of Justice is to make a candid statement that I have no confidence in 
the Attorney General, which I have said repeatedly. It is no surprise. 
I am going to deal with this resolution on the merits and vote to 
invoke cloture.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. FEINSTEIN. Mr. President, I don't often differ with the 
distinguished ranking member. But I came to the floor as a member of 
the Senate Judiciary Committee now for 15 years and as one who takes no 
particular pleasure in what I am about to say. I urge a ``yes'' vote on 
cloture. I want to say why.

  The Department of Justice is one of the country's most important 
departments. It has a budget of $24 billion and over 100,000 employees. 
It is charged with combating terrorism, fighting violent crime, 
stopping drug trafficking, upholding civil rights, and enforcing civil 
liberties. It houses key agencies, including the FBI, DEA, the Bureau 
of Prisons, the Marshals Service, and U.S. Attorney's Offices.
  As a leader of the Department, the Attorney General is the chief law 
enforcement officer for the people of this Nation. He is the chief 
lawyer of the United States. He runs a big department. He must be a 
strong manager who can direct the day-to-day operations and an 
independent leader with an unyielding commitment to the law, who is 
willing to stand up against, yes, even the President, if necessary. He 
must lead by example, upholding the highest ethical standards.
  I think President Lincoln's Attorney General put the challenge on the 
map when he said this:

       The office I hold is not properly political, but strictly 
     legal, and it is my duty above all other ministers of state 
     to uphold the law and to resist all encroachments from 
     whatever quarter.

  That is the job of the U.S. Attorney General. The subject before us 
today is the fact that, for many of us, this Attorney General has not 
lived up to this standard, and he has lost our confidence. 
Unfortunately, the Attorney General has failed to meet the challenges 
during his tenure.
  The Department of Justice has become highly politicized in its hiring 
and firing--I hope to lay that out--and I believe in many of the legal 
opinions it issues as well. In many respects, it is today an extension 
of the White House, rather than the scrupulous, independent enforcer of 
Federal law as suggested by President Lincoln's Attorney General.
  Through the investigation into the hiring and firing of at least 9 
U.S. attorneys, we have heard Attorney General Gonzales give vague and 
unconvincing responses in critical areas about his Department's 
performance.
  The Attorney General testified that he does not know who selected the 
various U.S. attorneys to be fired; therefore, he does not know why 
they were fired. Can you believe that? He testified that the firings 
were based on a ``process of consulting with senior leadership in the 
Department.'' However, every single one of the Department of Justice's 
senior officials who have testified has stated under oath that they did 
not place a U.S. attorney on the termination list, with one exception--
Kevin Ryan of California. This includes Kyle Sampson, the Attorney 
General's Chief of Staff; James Comey, former Deputy Attorney General; 
Paul McNulty, Deputy Attorney General; Mike Elston, Paul McNulty's 
Chief of Staff; Monica Goodling, White House Liaison; Bill Mercer, 
Associate Attorney General; Mike Battle, Director of the Executive 
Office of the U.S. Attorneys; and David Margolis, Associate Deputy 
Attorney General. They have all said they did not add names to the list 
of those to be fired. To this day, we have been unable to find out who 
put in place the unprecedented targeted program to fire several U.S. 
attorneys midterm, at one time, and who made the decision to place 
these attorneys on that firing list.
  We also learned that an internal order, entitled ``Delegation of 
Certain Personnel Decisions to the Chief of Staff,'' that was issued 
March 1, 2006--in that order, the Attorney General designated his role 
in hiring and firing certain senior officials in the Department of 
Justice to his Chief of Staff, Kyle Sampson, and a young, 33-year-old 
former researcher for the Republican National Committee, Monica 
Goodling. I must say that I find this a major abdication of the duty of 
a leader. In fact, according to internal memos, the Attorney General 
was going to completely abdicate his role, until the Office of Legal 
Counsel stepped in, saying he must at least be consulted in the 
process.
  In a memo dated February 24, 2006, Paul Corts, Assistant Attorney 
General for Administration, wrote this:

       The Office of Legal Counsel advises that permitting the 
     Attorney General's delegates to approve appointments (or 
     removals) of constitutionally ``inferior officers''. . . 
     would be inconsistent with the [Excepting Clause in the 
     Constitution]. The Office of Legal Counsel recommends that 
     the delegates exercising the authority of this delegation 
     submit appointments or removals to the Attorney General.

  Taken together, the most favorable interpretation of these various 
actions is that the Attorney General has clearly sought to avoid these 
key responsibilities.
  Unfortunately, information has come to light that demonstrates that 
the problems are not limited to poor management. Rather, the 
Department's reputation, independence, and credibility have been put in 
serious question.
  Mr. Gonzales has stated that he believes the Attorney General wears 
``two hats''--one as a member of the President's staff and another as 
the Nation's top law enforcement officer. How does this compare with 
what I just read from Abraham Lincoln's Attorney General? Answer: It 
does not.
  It is this perspective which I believe has led the Attorney General 
to treat

[[Page S7425]]

the Department of Justice as a political arm of the White House rather 
than as the independent law enforcement agency it should be. For 
example, the committee's investigation has shown that seven of the nine 
U.S. attorneys who were fired were not fired for so-called 
``performance reasons'' at all, as stated. In fact, when reviewing the 
six evaluation and review staff reports, which are called the EARS 
reports, of the fired U.S. attorneys, all were given strong, positive 
performance evaluations. Here are some examples:
  Bud Cummins:

       United States Attorney Cummins was very competent and 
     highly regarded by the Federal judiciary, law enforcement, 
     and the civil client agencies.

  Despite this review, Mr. Cummins was fired in June of 2006.
  Carol Lam:

       U.S. Attorney Carol Lam was an effective manager and a 
     respected leader in the District . . . The United States 
     Attorney committed significant prosecutorial resources to the 
     felony immigration and border crime cases.

  Despite this review, Mrs. Lam was fired on December 7, 2006, 
ostensibly for the very reason that the EARS report found she had done 
a good job.
  David Iglesias:

       This U.S. Attorney had well-conceived strategic plans that 
     complied with Department priorities and reflected the needs 
     of the District overall. The U.S. Attorney effectively 
     managed complaints, detention decisions, and pretrial 
     practices.

  Despite this review, Mr. Iglesias was fired on December 7, 2006.
  Dan Bogden:

       U.S. Attorney Bogden was actively involved in the day-to-
     day management of the U.S. Attorney's office, had established 
     an excellent management team, and had established appropriate 
     priority programs that support Department initiatives.

  Despite this review, Mr. Bogden was fired on December 7, 2006.
  Paul Charlton:

       U.S. Attorney Charlton also made his goals and expectations 
     clear to his staff. . . .The U.S. Attorney's office 
     prosecuted more immigration violations than any other 
     district.

  Despite this review, Mr. Charlton was fired December 7, 2006.

  John McKay:

       McKay is an effective, well-regarded, and capable leader of 
     the [U.S. Attorney's office] and the District's law 
     enforcement community.

  Despite this review, Mr. McKay was fired on December 7, 2006.
  The Department did not turn over the EARS reports for the two U.S. 
attorneys who were said to have performance concerns and who were not 
identified until late in the process--Margaret Chiara and Kevin Ryan.
  Since the initial cause for the firing, performance was clearly 
debunked by these reports. It now appears that these 6 U.S. attorneys 
were fired because they upset the political arm of the White House.
  For example, David Iglesias, by all accounts a rising star, was only 
placed on the list to be fired after the President and Karl Rove called 
the Attorney General to pass along complaints.
  Specifically, Kyle Sampson, former Chief of Staff to the Attorney 
General, testified on March 29, 2007, that:

       I do remember learning, I believe, from the Attorney 
     General that he had received a complaint from Karl Rove about 
     U.S. Attorneys in three jurisdictions, including New Mexico, 
     and the substance of the complaint was that those U.S. 
     Attorneys weren't pursuing voter fraud cases aggressively 
     enough.

  Mr. Sampson went on to testify that he also remembered that:

       Just a week before I left the Department in March, I 
     remember the Attorney General telling me that he had had a 
     meeting with the President in October sometime. . . . I 
     remember the Attorney General saying, ``You know, I remember 
     the President in that meeting we had in October telling me 
     that [there were] concerns about Iglesias.''

  In addition, the committee's investigation has shown that many of the 
U.S. attorneys who were fired, or put on a list to be fired, were 
handling contentious election-related cases, including Todd Graves, 
former U.S. attorney in Missouri, who recently revealed that he, too, 
was forced to resign after he had refused to support a case against the 
Democratic secretary of state in Missouri, alleging that Missouri was 
violating Federal law for failing to purge voter rolls--that is despite 
the rules of the Department urging that no case involving election 
practices be brought prior to an election; John McKay, former U.S. 
attorney in Washington, fired, it appears, because he refused to bring 
a case during the hotly contested gubernatorial race against 
essentially the Democratic candidate; David Iglesias, former U.S. 
attorney in New Mexico, who, it appears, was fired because he refused 
to bring a case alleging voter fraud prior to the election; Tom 
Hefflefinger, former U.S. attorney in Minnesota, who was put on a list 
to be fired when he was pushing for an investigation into voter 
discrimination against Native Americans; Steve Buskupic, U.S. attorney 
in Wisconsin, who was put on a list to be fired, and his district was 
the focus of a document sent over from the White House for 
investigation that provided information on Milwaukee voting trends.
  These are just examples of U.S. attorneys who were fired or 
considered to be fired because of their involvement in election fraud 
cases. Other U.S. attorneys who were fired were involved with sensitive 
public corruption cases.
  The congressional investigation has also uncovered that political 
considerations were being taken into account with regard to hiring and 
firing decisions for career employees at the Department and the 
prestigious Honors Program. Now, that is a no-no.
  Monica Goodling, a young, inexperienced lawyer, 33 years old, was 
named White House Liaison at the Department of Justice, and in that 
role she was given the authority to hire and fire personnel for many 
critical positions at the Department.
  On May 23, 2007, Ms. Goodling testified that ``I may have gone too 
far in asking political questions of applicants for career positions, 
and I may have taken inappropriate political considerations into 
account on some occasions.''
  This is a 33-year-old making these decisions. Where was the Attorney 
General?
  The Congress has also discovered that political appointees directed 
changes to be made to the performance evaluations of career staff and 
overrode career attorneys' recommendations regarding which cases to 
pursue or not pursue.
  For example, in testimony before the House, Joe Rich, who worked at 
DOJ's Civil Rights Division for 37 years, testified that he was 
``ordered to change the standard performance evaluations of attorneys 
under my supervision to include critical comments of those who had made 
recommendations that were counter to the political will of the front 
office and to improve evaluations of those who were politically 
favored.''
  What does this do to the credibility of the Department of Justice of 
the United States?
  In the Senate Judiciary Committee's hearing last week, Brad Schlozman 
testified that ``on a number of occasions, I believe I did order [Joe 
Rich to change performance evaluations.]''
  There you have it, the politicization of the Department of Justice.
  Sharon Eubanks, lead attorney for the Department of Justice on the 
tobacco cases, has stated that in June 2005, she was pressured to ask 
for lesser penalties against the tobacco companies. She said:

       At first, the administration officials attempted to get the 
     litigation team and me and my staff to agree to lower the 
     amount, but there was no basis for doing that, and we 
     refused. And finally, after a number of very heated 
     discussions, I said, ``You write it and I'll say it.''

  What a terrible comment about some of the biggest cases ever made in 
the history of the United States.
  Each of these facts on its own is disconcerting, but taken together, 
they show a department being run based on politics and not on law.
  I also believe the Attorney General has compromised important legal 
principles by taking positions and espousing opinions that are outside 
the mainstream of legal thought. For example, the Attorney General 
testified on January 18, 2007, that habeas corpus, the right to 
challenge one's imprisonment, is not protected by the Constitution. 
Here is what the Attorney General said:

       There is no express grant of habeas in the Constitution. 
     There is a prohibition against taking it away . . . I meant 
     by that comment, the Constitution doesn't say ``Every 
     individual in the United States or every citizen is hereby 
     granted or assured the right to habeas.''

  He has also pushed to narrow the definition of torture and changed to 
whom the Geneva Convention applies. In the January 2002 memo he wrote:


[[Page S7426]]


       In my judgment, this new paradigm renders obsolete Geneva's 
     strict limitations on questioning of enemy prisoners and 
     renders quaint some of its provisions.

  And when it comes to Guantanamo, Attorney General Gonzales has 
expressed strong objections to closing the detention facility and 
moving detainees to the United States.
  The New York Times reported of March 22 of this year that Mr. Gates 
argued to close Guantanamo. But according to administration officials--
this is the newspaper only:

       Mr. Gates's arguments were rejected after Attorney General 
     Gonzales and some other Government lawyers expressed strong 
     objections to moving detainees to the United States, a stance 
     that was backed by the Office of the Vice President.

  And despite the fact that the U.S. Code states ``the Foreign 
Intelligence Surveillance Act shall be the exclusive means'' by which 
electronic surveillance may be conducted, the Attorney General has 
argued that the language used in the authorization for use of military 
force implicitly authorized the President to exercise powers, 
``including the collection of enemy intelligence.''
  In his prepared testimony from January 2006, he stated:

       The Supreme Court confirmed that the expansive language of 
     the resolution--``all necessary and appropriate force''--
     ensures that the congressional authorization extends to 
     traditional incidents of waging war . . . [and] the use of 
     communications intelligence to prevent enemy attacks is a 
     fundamental and well-accepted incident of military force.

  He is thereby saying that Guantanamo is a creature of this and, 
therefore, legal. I don't agree with that assessment.
  I believe each of these legal opinions has had dramatic negative 
consequences, including negatively impacting America's relationship 
with most countries abroad.
  Finally, and perhaps most disturbing, the Senate has heard testimony 
from Deputy Attorney General James Comey that calls into question the 
Attorney General's character and integrity.
  Mr. Comey testified about the conversation in the intensive care unit 
of George Washington University Hospital where he witnessed then-White 
House Counsel Gonzales ``trying to take advantage of a very sick man'' 
to reverse a judgment that the Terrorist Surveillance Program was 
illegal.
  The testimony--his testimony, Comey's testimony--raised questions 
about actions that are contrary to the ethical standards lawyers are 
required to uphold.
  Mr. Comey's testimony stands in sharp contrast to the statements made 
by Mr. Gonzales to the Senate about this incident.
  In response to Senators' questions on February 6, 2006, the Attorney 
General left the impression that any reports of disagreement within the 
administration about the surveillance program were either inaccurate or 
in reference to some other program or issue.
  He said:

       There has not been any serious disagreement [about the 
     program] . . . The point I want to make is that, to my 
     knowledge, none of the reservations dealt with the program 
     that we are talking about today.

  That was under oath, Mr. President, before us. He didn't tell us 
about this. He didn't tell us that he went, as White House Counsel, to 
a critically ill man's intensive care unit bed and tried to reverse a 
decision that the Acting Attorney General was making. It wasn't until 
Mr. Comey came forward and told us about it did we know.

  What do I conclude? Each of these issues is serious on its own and 
each would raise serious questions about the qualifications and service 
of this Attorney General. The Department of Justice is charged with 
enforcing the law and protecting all Americans' rights and security. 
The Attorney General must enforce the law without fear or favor to its 
political ramifications. He must act independently and pursue justice 
wherever it may lead, and without compromise. He must uphold the 
highest ethical standards.
  Let me quote again from President Lincoln's Attorney General:

       [t]he office I hold is not properly political, but strictly 
     legal; and it is my duty, above all other ministers of State, 
     to uphold the law and to resist all encroachments from 
     whatever quarter. . . .

  This is what the Attorney General should be. That is why I am going 
to support the motion to close off debate and support the resolution.
  I thank the Chair. I yield the floor.

                          ____________________