[Congressional Record Volume 154, Number 185 (Wednesday, December 10, 2008)]
[Senate]
[Pages S10856-S10858]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 ATTORNEY GENERAL DESIGNATE ERIC HOLDER

  Mr. SPECTER. Madam President, I further sought recognition to comment 
briefly about the scheduling of the hearing for Attorney General 
designate Eric Holder.
  In looking toward the hearing process, I am looking for a very 
constructive engagement to determine the qualifications of Mr. Holder. 
There is no intent on my part or on the part of any of my colleagues on 
the Republican side of the aisle to engage in partisan sniping. As I 
say, we intend to be constructive and not destructive. We are looking 
to strengthen the Department of Justice.
  The position of Attorney General is an extraordinarily important 
position. We have seen that during the administration of Attorney 
General Alberto Gonzales, stated candidly, the Department was not well 
handled. That is a candid statement and also a very mild statement.
  During the course of Attorney General Gonzales' tenure, there were so 
many situations where the Attorney General molded his views to 
accommodate his appointer, the President of the United States. A great 
deal that went on in the Department of Justice was partisan and not in 
the interests of the work of the Department or in the interests of the 
American people.
  We have seen, since 9/11/2001, a vast extension of Executive 
authority. We found the terrorist surveillance program was initiated by 
the President without consultation under the tradition of notifying the 
chairman, which I was during the 109th Congress, or the ranking member. 
We found there was an engagement with the telephone companies to engage 
in electronic surveillance, again without notifying the chairman or 
ranking member of the Judiciary Committee and without notifying the 
intelligence committees of both Houses, as mandated by law. Further was 
the expansion of signing statements all during the tenure of the 
Attorney General.
  Without going into the issues of politicization, they were rampant 
during the tenure of Attorney General Gonzales. I refer to an article, 
coauthored by the current chairman of the committee and myself, which 
appeared not too long ago in Politico, on October 28, 2008, where we 
said in part:

       The Attorney General must be someone who deeply appreciates 
     and respects the work and commitment of the thousands of men 
     and women who work in the branches and divisions of the 
     Justice Department, day in and day out, without regard to 
     politics or ideology, doing their best to enforce the law and 
     promote justice.

  With respect to Attorney General designate Holder, there is no doubt 
he comes to this nomination with an outstanding record, for the most 
part. Not without question but for the most part. He has an excellent 
educational background from Columbia: undergrad and law degree, a trial 
attorney in the Department of Justice, an associate judge of the 
Superior Court of the District of Columbia, U.S. attorney, Deputy 
Attorney General, Acting Attorney General--a very distinguished resume, 
which I have recited.
  But there are questions which have to be inquired into fairly, as 
already noted in the commentaries of the media on the editorial pages. 
There has been considerable publicity about the pardon of Marc Rich. 
There was a case involving Mr. Rich, who was a fugitive, who had given 
very substantial sums of money to entities connected to the President. 
The regular procedures for a pardon were bypassed. The Department of 
Justice was not consulted. The attorneys in the Southern District of 
New York, which was handling the Rich case, were opposed to the pardon.
  From my own days as district attorney of Philadelphia, where I dealt 
with celebrated cases involving people who were fugitives, who had 
fled, that is about as serious a matter as you could find and hardly 
one where there would be an expectation of leniency or pardon to wipe 
out the charge, eliminate the matter, while the defendant was in 
absentia.
  There was an extensive report filed on this issue by the House of 
Representatives Committee on Government Reform, the 107th Congress, 
second session. It is available for anyone to read. There are quite a 
number of very serious questions involving what happened with Mr. 
Holder and the people involved there.
  The concern that arises is why Mr. Holder lent the recommendation, 
which has been characterized as neutral leaning in favor, in this 
context. I come to no conclusions on the matter. I approach this 
matter, as I try to approach all matters, with an open mind. But in an 
extensive interview with Mr. Holder he has presented his views. I don't 
think it is useful to get into the specifics as to the precise concerns 
which I raised and his precise answers. Let that await a day where we 
have a hearing and where Mr. Holder is in a position to speak for 
himself. But by analogy to the Gonzales tenure, I think it is 
imperative we be sure the Attorney General of the United States does 
not bend his views to accommodate his appointer; that the Attorney 
General does not bend his views in any way which is partisan or 
political, to serve any interest other than the interests of justice.
  As noted in the article cited in Politico, where you have the 
professionals in the Department of Justice, they wouldn't even meet 
with attorneys for Mr. Rich, they thought it was such an open-and-shut 
case, and were opposed--at least according to information provided. 
This is all to be brought out at a hearing. But to run counter to the 
views of the professionals is a major red flag which has to be inquired 
into and inquired into with some depth.
  Then we have the situation where Attorney General Reno recused 
herself on the issue of appointing an independent counsel to 
investigate alleged--and I emphasize alleged--illegal fundraising by 
Vice President Albert Gore out of the White House. There was the 
relatively notorious incident where the Vice President was at a meeting 
and drank a lot of ice tea and absented himself from certain parts of 
the meeting where he was not able to--or had a rationale for not 
knowing certain things.
  I questioned Attorney General Reno in detail about that during 
Judiciary Committee hearings and she said: Well, there just wasn't 
sufficient evidence.
  She had disregarded a document, a note taken by someone present, 
because, as she said, it did not refresh that witness's recollection.
  I asked her about the doctrine of prior recollection recorded, which 
is a well-known exception to the hearsay rule. She denied knowing about 
it.
  I note a frown on the face of the Presiding Officer, who is a 
distinguished district attorney herself. Doubtless we could speak at 
length about prior recollection recorded. I mention that because of the 
curious circumstances of what happened there. There we had an assistant 
U.S. attorney named LaBella, who was asked to take on the job of making 
a recommendation. According to the information provided to me, he made 
a recommendation for an independent counsel and the professionals in 
the Department asked for an independent counsel, and it was overruled.
  I am not going to comment about Mr. Holder's role. Let him respond to 
that and let us take that up in due course. But here again is a 
potential situation where the interests of justice and objectivity were 
not followed in the highest levels of the Department of Justice when 
Mr. Holder was in charge, with the Attorney General, Attorney General 
Reno, having recused herself.
  There are many other matters which warrant inquiry, and I will not 
take the time to go into them now. They are

[[Page S10857]]

referenced in a letter which eight Republican members of the Senate 
Judiciary Committee sent to Attorney General Mukasey, requesting 
information from the Department of Justice files.
  I ask unanimous consent that a copy of this letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, December 10, 2008.
     Hon. Michael B. Mukasey,
     Attorney General, U.S. Department of Justice, 950 
         Pennsylvania Avenue, NW., Washington, DC.
       Dear Attorney General Mukasey: As part of our preparation 
     for the Judiciary Committee's hearings on the nomination of 
     Eric H. Holder to the office of Attorney General, we write to 
     request that the Department of Justice provide certain 
     materials in its possession relating to his service in the 
     Department of Justice.
       Specifically, we write to request, in accordance with the 
     attached guidelines, all memoranda, correspondence, and other 
     documents on which Mr. Holder is designated as a recipient, 
     or documents prepared by Mr. Holder in his position as U.S. 
     Attorney, Deputy Attorney General, or Acting Attorney General 
     or by his staff, for his approval, or on which his name or 
     initials appear, related to the following matters:
       1. The Department of Justice's investigation into 
     fundraising activities by Vice-President Al Gore during the 
     1996 election campaign cycle;
       2. The investigation of President Clinton by the Office of 
     the Independent Counsel and related impeachment proceedings 
     against President Clinton, including consideration of 
     appointing independent counsels and/or special prosecutors in 
     related and unrelated matters during the period 1993-2001, 
     including consideration of appointing independent counsels 
     and special prosecutors;
       3. The investigation by the Department of Justice into 
     illegal contributions by the Castro family of Venezuela to 
     the Democratic Party in 1992;
       4. The investigation by the Department of Justice into the 
     Clinton Administration's decision to allow Loral Space to 
     export a communications satellite to China for launch on a 
     Chinese-built rocket, and the subsequent report to Chinese 
     government outlining methods for improving its missile 
     guidance prepared by Loral scientists;
       5. The issue of attorney-client privilege and work product 
     protection for corporations under criminal investigation;
       6. Clemency for the following members of the organization 
     FALN (an acronym that translates to the Armed Forces of 
     Puerto Rican Nationalists) by President Clinton on August 11, 
     1999, including but not limited to the July 8, 1999 
     memorandum from Deputy Attorney General Holder to the 
     President: Elizam Escobar, Ricardo Jimenez, Adolfo Matos, 
     Dylcia Noemi Pagan, Alicia Rodriguez, Ida Luz Rodriguez, Luis 
     Rosa, Carmen Valentin, Alberto Rodriguez, Alejandrina Torres, 
     Edwin Cortes, Oscar Lopez-Rivera, Juan Enrique Segarra-
     Palmer, Antonio Camacho-Negron, Roberto Maldonado-Rivera, and 
     Norman Ramirez-Talavera;
       7. FALN members who had petitions for clemency filed in 
     their name but were not granted clemency, including but not 
     limited to Carlos Alberto Torres;
       8. The April 22, 2000, raid in Miami, Florida by Border 
     Patrol agents to take Elian Gonzales into custody;
       9. The Department of Justice's investigation into the 1993 
     confrontation at the Mt. Carmel Complex in Waco, Texas;
       10. Any clemency or non-clemency related matter regarding 
     Marc Rich, Pincus Green, Carlos Vignali, Harvey Weinig, Susan 
     L. Rosenberg, or Linda Sue Evans, including but not limited 
     to all communications to and from the U.S. Attorney's Office 
     for the Southern District of New York prior to and following 
     the issuance of the Rich and Green pardons;
       11. Any matters related to or involving John M. Quinn;
       12. The U.S. Attorney's Office for the Southern District of 
     New York's criminal investigation of the 177 presidential 
     pardons and commutations issued on January 20. 2001:
       13. Death penalty approvals, rejections, or disputes;
       14. The Youth Gun Crime Enforcement Act of 1999, the 
     extension of the Brady bill, and other matters affecting gun 
     rights;
       15. The Department of Justice's decision not to defend the 
     power of Congress to enact 18 U.S.C. Sec. 3501 in the Supreme 
     Court litigation in Dickerson v. United States, including 
     Department responses to Judiciary Committee inquiries on the 
     subject and views of U.S. Attorneys and Department advisory 
     panels on the matter;
       16. The Equal Employment Opportunity complaint filed 
     against the Department on March 1, 1996 by class agent 
     Lawrence D. Durnford; and
       17. Any denial of a Congressional request for documents or 
     information from the Executive Branch.
       This request is consistent with requests for similar 
     documents the Department of Justice has provided in the 
     consideration of past nominees.
       We would appreciate your prompt attention to this request 
     so that we may have adequate time to review the requested 
     documents in preparation for Mr. Holder's hearing. Thank you 
     for your cooperation.
           Sincerely,
         Arlen Specter, Orrin Hatch, Chuck Grassley, Sam 
           Brownback, Jon Kyl, Lindsey Graham, John Cornyn, Tom A. 
           Coburn.


                               guidelines

       (1) This request is continuing in character. and if 
     additional responsive documents come to your attention 
     following the date of production, please provide such 
     documents to the Committee promptly.
       (2) As used herein, ``document'' means the original (or an 
     additional copy when an original is not available) and each 
     distribution copy of writings or other graphic material, 
     whether inscribed by hand or by mechanical, electronic, 
     photographic or other means, including without limitation 
     correspondence, memoranda, publications, articles, 
     transcripts, diaries, telephone logs, message sheets, 
     records, voice recordings, tapes, film, dictabelts and other 
     data compilations from which information can be obtained. 
     This request seeks production of all documents described, 
     including all drafts and distribution copies, and 
     contemplates production of responsive documents in their 
     entirety, without abbreviation or expurgation.
       (3) In the event that any requested document has been 
     destroyed or discarded or otherwise disposed of, please 
     identify the document as completely as possible, including 
     without limitation the date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and the reason for 
     disposal of the document and the identity of all persons who 
     authorized disposal of the document.
       (4) If a claim is made that any requested document will not 
     be produced by reason of a privilege of any kind, describe 
     each such document by date, author(s), addressee(s), 
     recipient(s), title, and subject matter, and set forth the 
     nature of the claimed privilege with respect to each 
     document.

  Mr. SPECTER. When hearings were held for Attorney General Ashcroft, 
they were held from January 16 to January 19 of 2001. At that time, 
there were 2 days of testimony from Attorney General Ashcroft, and the 
committee heard from 23 outside witnesses. May I remind everyone that 
John Ashcroft was a well-known person to the committee. He had been in 
the Senate. He had served on the Judiciary Committee. We knew him very 
well. But that didn't stop a very full, detailed inquiry. It was not 
done in a rush.
  With respect to Mr. Holder's situation, we have in the committee some 
86 boxes of archived committee documents relating to Mr. Holder's 
tenure in the Department of Justice. We expect those materials to 
increase very substantially when we receive materials from the 
Department of Justice and the Clinton Library.
  Similar document requests were made to the Department of Justice in 
the Reagan Library during the confirmation of Chief Justice John 
Roberts, and they yielded some 65,000 additional pages of documents.
  As of the present time, we have not yet received Mr. Holder's 
questionnaire, his nomination materials, or the FBI background 
investigation.
  I have taken the time to come to the floor to outline, very briefly, 
some of the issues. They are set out in more detail in the letter which 
is now made a part of the record to Attorney General Mukasey, asking 
for specific matters regarding Mr. Holder. There are other matters 
which are in the media which I think are better left for further 
investigation, even before the hearing, before there is any public 
comment about it. But we are looking at a very major matter.
  The Department of Justice has enormous responsibilities in the battle 
against terrorism and in the protection of civil rights. That is a 
balance which has to be maintained. There are real questions as to 
whether it has been maintained since 9/11. Those are matters for 
inquiry.
  There are very substantial matters to be inquired into on the Justice 
Department position on waiver of attorney-client privilege, which 
started with the Holder memorandum when he was Deputy Attorney General 
and then went forward to the Thompson memorandum and the McNulty 
memorandum and so forth. Also, there are major matters of legislation 
now pending on the subject of reporters' shield, where the Department 
of Justice has taken a view which I believe has to be modified by 
legislation if we cannot get some accommodation with the Department.
  That is a very brief statement as to the issues which we are looking 
for. As I look at this matter, it seems to me

[[Page S10858]]

not realistic or fair to begin hearings before January 26.
  The week of January 19 is going to be occupied with the inauguration. 
And to have adequate time to prepare, it seems to me, that needs to be 
done. When we had hearings involving Chief Justice Roberts and 
Associate Justice Alito, consideration was made of the minority point 
of view, and extensive discussions were had, and there was an 
accommodation and agreement reached as to when the hearing was to be 
held.
  So we are looking at a serious matter and we have to do it right. It 
is going to take some time.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LAUTENBERG. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Pryor). Without objection, it is so 
ordered.

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