[Congressional Record Volume 157, Number 95 (Wednesday, June 29, 2011)]
[Senate]
[Pages S4212-S4215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        FBI EXTENSION OF SERVICE

  Mr. LEAHY. Mr. President, back on May 12, the President requested 
that Congress pass legislation to enable Robert Mueller to continue 
serving as Director of the Federal Bureau of Investigation, FBI, for up 
to 2 additional years, in light of the continuing threat to our Nation, 
the leadership transition at other key national security agencies, and 
the unique circumstances in which we find ourselves as the tenth 
anniversary of 9/11 approaches. In response to the President's request, 
a bipartisan group of Senators drafted and introduced S. 1103, a bill 
that would create a one-time exception to the statute limiting the term 
of the FBI Director by allowing the term of the incumbent FBI Director 
to continue for 2 additional years. Given the continuing threats to our 
Nation and the need to provide continuity and stability on the 
President's national security team, it is important that this critical 
legislation be enacted without delay.
  Director Mueller's term expires on August 3, 2011. With the House out 
of session this week and the Senate out of session the next, there is 
relatively little time left to act. Of the 10 weeks between the 
President's request and the expiration of Director Mueller's term, six 
are gone already. More than half the time that we had in which to act 
has elapsed. If we do not complete action on this matter this week, the 
Senate will then be in recess until July 11. That leaves Congress only 
3 weeks for all necessary action to be completed by the Senate and the 
House of Representatives.
  We should be acting responsibly and expeditiously. I have worked 
diligently with Senator Grassley in order to prevent a lapse in the 
term of the Director of the FBI. We must act on this bill without 
further, unnecessary delays. The Senate should take it up, consider it 
and pass it, and then the House will need to consider and pass the bill 
before the President has the opportunity to sign it. Each of these 
steps must be completed prior to the expiration of the Director's 
current 10-year term on August 3, 2011. There is no time to waste.
  I understand from the Senate cloakroom that all Senate Democrats are 
prepared to take up and pass S. 1103 and send it to the House of 
Representatives for it to take final action before August 3. We should 
do that now, before the Fourth of July recess. There is no good reason 
for delay.

[[Page S4213]]

  The bill responds directly to the President's request to extend Bob 
Mueller's term as FBI Director, and was reported favorably by the 
Judiciary Committee on June 16 by a bipartisan majority of the 
committee and with the support of the ranking Republican member. I urge 
any Senators who have questions about the bill to read the accompanying 
committee report, Report No. 112-23, which was filed on June 21, 2011, 
and is now printed and available online.
  While I would gladly have included others' views in the final 
committee report, none were submitted in a timely manner, nor was there 
a request for an extension of time to do so. The draft committee report 
on the bill was circulated on June 17, 2011, to all committee members. 
Pursuant to longstanding Judiciary Committee practice, Senators had 3 
calendar days to submit their views. This practice is modeled after, 
but more generous than, Senate rule XXVI. The committee report was 
filed 4 days after majority views were circulated, but no additional, 
supplemental, or minority views had been submitted. It was filed 
promptly and made publicly available in the hope that the Senate might 
consider this time-sensitive bill this week.
  Unlike my Republican predecessors, as chairman I have protected the 
minority on the committee and the rights of all Senators. I have done 
so even while some have chosen to abuse committee rules and practices 
and Senate rules and practices.
  Senator Coburn inserted his views, also subscribed to by Senators 
Hatch, Sessions, Graham and Lee, in the Congressional Record on June 
23. I had offered to include them in the Record on June 22, when they 
were belatedly submitted to the committee after the committee report 
had been filed. There is nothing in those views that should prevent the 
Senate from considering the committee-reported bill expeditiously.
  I do not believe that the views Senator Coburn inserted into the 
Congressional Record contain any new or compelling legal analysis 
supporting the notion that S. 1103 is somehow unconstitutional. They 
merely assert without a sound basis that the matter may present a 
constitutional concern and the risk of ``dangerous litigation.'' As set 
forth in the committee report on S. 1103, and as reaffirmed in a June 
20, 2011, memorandum opinion by the Office of Legal Counsel, however, 
these assertions are incorrect. The bill before the Senate, S. 1103, is 
constitutionally sound and a proper response by Congress to the 
President's request.
  At the heart of this issue are two key points that remain undisputed. 
First, the Director of the FBI serves ``at will'' and can be removed by 
the President for any reason. Director Mueller himself testified that 
he serves ``at the pleasure of the President.''
  Second, this bill was introduced as a response to the President's 
request that Congress provide a one-time exception to the 10-year 
statutory limit to the term of the FBI Director so that he could extend 
Director Mueller's service for up to two more years. Indeed, the text 
of the bill plainly states that Director Mueller may continue his term 
of service only ``at the request of the President.''
  These two points are important because they form core elements for 
any constitutional analysis in connection with the appointments clause. 
This bill does not seek to impose a legislative appointment on the 
President, nor undermine his authority. The committee report describes 
the constitutional and legal principle that is central to any 
assessment of the constitutionality of this bill: ``Legislation 
extending the term of an officer who serves at will does not violate 
the Appointments Clause,'' quoting 18 U.S. Op. Off. Legal Counsel 166, 
171, 1994. Through four separate legal opinions dating back to 1951, 
and reaffirmed as recently as June 20, 2011, the Department of Justice 
has recognized this guiding principle. The Constitution's appointments 
clause is not offended ``as long as the President remains free to 
remove the officer at will and make another appointment.'' U.S. Op. 
Off. Legal Counsel 2-3, June 20, 2011. The bill reported by the 
committee ensures that the President retains that authority. 
Furthermore, the bill does nothing to diminish the authority of the 
President.
  Senator Coburn's views lack discussion of either the ``at will'' 
status of the FBI Director or the President's plenary removal 
authority. Instead, his views summarily dismiss the extensive legal 
analysis of the Department of Justice dating back 60 years by arguing 
that the opinions are ``inconsistent.'' The only inconsistency was an 
anomalous opinion from 1987 that was withdrawn by the Justice 
Department in 1994, after the 1987 opinion was determined to be 
``irredeemably unpersuasive.'' Ironically, it is that withdrawn 
opinion, one that has no authority, in which critics of the bill seek 
to find comfort.
  Beginning with an opinion in 1951, and then again in three more 
recent legal memoranda, in 1994, in 1996, and most recently on June 20, 
2011, the Department of Justice has endorsed the constitutionality of 
term extensions like the one provided in the bill for ``at will'' 
executive officers.
  Senator Coburn argues that the value of these Office of Legal Counsel 
opinions should be discounted because very few cases have been 
litigated concerning these types of term extensions. He fails to 
acknowledge, however, that the lack of litigation on this point could 
be due to the fact that the constitutional concern on which he relies 
simply lacks merit. The fact remains that there is no case and no 
persuasive legal authority supporting Senator Coburn's contention that 
the bill is unconstitutional.
  Also virtually ignored by Senator Coburn's views is the fact that the 
bill effectively retains the President's appointment authority. The 
President could nominate and then appoint a different FBI Director at 
any time before, during, or at the end of the 2-year term extension. 
The President is not required by the bill to request that Director 
Mueller continue to serve for the full 2 years of the extension. That 
is up to the President. These facts are dismissed by Senator Coburn as 
``irrelevant'' or ``immaterial'' to the discussion. In fact, they are 
just the opposite. The fact that this legislation is being considered 
at the behest of the President demonstrates that there is no 
legislative branch incursion into executive authority. Because S. 1103 
is in direct response to the President's specific request for 
legislation creating a one-time exemption to the 10-year term limit of 
the FBI Director, the bill serves to protect the authority of the 
President to choose who he wants to lead this executive agency. That is 
wholly consistent with the purpose of the appointments clause.
  Senator Coburn's attempts to distinguish the limited, relevant case 
law are also unavailing. As noted in the committee report, Judge 
Norris's concurring opinion in the case In re Benny, 812 F. 2d 1133, 
9th Cir. 1987, is not on point, as that case involved officials who 
were only removable for cause. Senator Coburn's reliance on Justice 
Scalia's dissent in Morrison v. Olson, 487 U.S. 654, 1988, is similarly 
misplaced. The lengthy quote of Justice Scalia's in the minority views 
is drawn, for example, from a discussion of the separation of powers 
doctrine, not from Justice Scalia's discussion of the appointments 
clause. The Morrison decision was about the constitutionality of the 
independent counsel statute, not a simple extension of a statutory term 
limit. The Morrison decision held that the statute at issue was 
constitutional because it did not ``impermissibly undermine the powers 
of the Executive Branch'' or ``prevent[] the Executive Branch from 
accomplishing its constitutionally assigned functions.'' That is all 
the more true for S. 1103, which was requested by the President and 
does nothing to impinge upon the President's appointment or removal 
power.
  In his concluding remarks, Senator Coburn concedes that he is not 
asserting that S. 1103 is unconstitutional. Instead, Senator Coburn 
retreats to a concern with what he characterizes as the ``small 
chance'' of possible litigation. The supposed litigation risk is not a 
good reason for Senator Coburn's multistage approach when a simple, 
one-time term extension will accomplish the goal. This is particularly 
true when the committee reported bill is constitutional.
  The FBI is not troubled by the supposed exposure ``of Director 
Mueller's authority to dangerous litigation risk.'' Senator Coburn does 
not cite any operational concern raised by the FBI or anyone else in 
law enforcement

[[Page S4214]]

concerning this supposed litigation risk. The FBI Director and the 
Department of Justice do not seem concerned about this supposed 
litigation risk. I am confident that we would have heard from the FBI 
and other law enforcement groups if there was any concern that this 
bill would somehow undermine the law enforcement or intelligence 
operations of the FBI. To the contrary, S. 1103 enjoys the strong 
support of the National Fraternal Order of Police, the International 
Association of Chiefs of Police, and the National Association of Police 
Organizations.
  The Justice Department does not share Senator Coburn's concerns. The 
Office of Legal Counsel recently reaffirmed the constitutionality of 
the bill in a new memorandum dated June 20, which is included in the 
appendix to the Senate committee report and rests upon 60 years of 
constitutional interpretation. The White House is not concerned. 
Neither am I. The bill that the committee reported and I support is 
constitutional and does not raise any real risk.
  Senator Coburn has known since he raised his alternative approach 
that there are two major problems with it. The first problem I have 
already discussed. It is wrongly predicated on a constitutional problem 
that does not exist. The bill reported by the Senate Judiciary 
Committee is a term extension of a limit that Congress imposed on the 
term of service of the Director of the FBI. Indeed, as the witnesses at 
our June 8 hearing pointed out, the logic of Senator Coburn's concern 
could mean that the 10-year limit Congress imposed on the term of 
service of the FBI Director would itself be constitutionally suspect. 
The supposed justification for Senator Coburn's cumbersome legislative 
plan is just wrong. The reported bill, S. 1103, which was initially 
drafted by Senator Grassley and made more explicit by the committee, is 
constitutional.
  The second major problem with Senator Coburn's approach is that it 
would necessitate the renomination of Director Mueller, and then his 
reconsideration and reconfirmation by the Senate after enactment of 
Senator Coburn's alternative bill and before August 3. That is an 
additional, unnecessary and, I might suggest, dangerous complication. I 
do not want Americans to be approaching the tenth anniversary of 9/11 
without an FBI Director in office. The distractions to Director Mueller 
created by the extended proceedings on this legislation are damaging 
enough.
  The extension of Director Mueller's service leading the FBI should 
not fall victim to the same objections that have obstructed Senate 
action on other important presidential nominations and appointments. I 
have spoken often about the unnecessary and inexcusable delays on 
judicial nominations. Even consensus nominees have faced long delays 
before Senate Republicans would allow a vote.
  Since President Obama was elected, we have had to overcome two 
filibusters on two Circuit Court nominees who were reported unanimously 
by the committee. These judges--Judge Barbara Keenan of the Fourth 
Circuit and Judge Denny Chin of the Second Circuit--were then confirmed 
unanimously once the filibusters were brought to an end. These are 
currently 16 judicial nominees who were reported unanimously by all 
Republicans and Democrats on the Judiciary Committee and yet are stuck 
on the Senate Executive Calendar because Senate Republicans will not 
consent to vote on them. These are consensus nominations that should 
not have been delayed while the Federal courts are experiencing a 
judicial vacancies crisis.
  This pattern of delay and obstruction has not been confined to 
judges. President Obama's executive nominations have been subjected to 
the same unfair treatment. The first five U.S. attorneys appointed by 
President Obama were delayed more than 2 months for no good reason in 
the summer of 2009. These are the top Federal law enforcement officers 
in those districts and yet it took from June 4 to August 7 before 
Senate Republicans would consent to their confirmations. They were then 
confirmed unanimously. The Chairman of the United States Sentencing 
Commission was similarly delayed unnecessarily for almost 6 months from 
May 7 until October 21, 2009. He, too, was ultimately confirmed without 
opposition, but after needless delay.
  Among a slew of other troublesome examples are these: One Republican 
Senator objected to a nominee to serve on the Federal Reserve Board of 
Governors because, according to that Senator, the nominee lacked the 
necessary qualifications. The nominee was a Nobel Prize winner and MIT 
economics professor. Another Republican Senator is blocking the 
confirmation of two SEC Commissioners until he extracts action from the 
SEC related to a case against the Stanford Financial Group. A group of 
Senate Republicans have sent a letter to President Obama vowing to 
oppose any nominee to be Director of the Consumer Financial Protection 
Bureau. Republican Senators are vowing to block President Obama's 
nominee to serve as the Secretary of Commerce.
  In a particularly illustrative case, one Republican Senator lifted 
his hold on the nomination of the Director of the U.S. Fish and 
Wildlife Service only after the administration acceded to his demands 
and issued 15 offshore oil drilling permits. Shortly thereafter, 
another Republican Senator placed a hold on the very same nomination to 
force the Interior Department to release documents on the Department's 
``wild lands'' policy. It did not end there. When that dispute was 
resolved, a third Republican Senator reportedly placed a hold on the 
nominee, demanding a review of the protected status of wolves. That 
nominee has still not been confirmed.
  Regrettably, Senate Republicans have ratcheted up the partisanship, 
limiting the cooperation that used to allow nominations to move forward 
more quickly. We cannot and should not take risks with this critical 
term extension for the head of the FBI. I do not want to see another 
important nomination subjected to holds and delays. I do not want to 
see another well-qualified national security nominee used as leverage 
by the Republican Senate minority to extract other unrelated 
concessions. That is what Senator Coburn's alternative plan invites.
  I recently outlined the obstruction of key national security-related 
nominations, the Deputy Attorney General and Assistant Attorney General 
for National Security. I do not want to see that happen, again, with 
the nomination of an FBI Director, but we have no guarantee that the 
President's nomination of an FBI Director would be treated any 
differently.
  Republicans played ``chicken'' with a government shutdown earlier 
this year. We can see the same dynamic developing on the debt ceiling 
and the budget. Likewise, many Republicans, including their House 
leaders, who contended that the War Powers Act was unconstitutional 
when the President was a Republican, are now seeking to use it as a 
partisan cudgel to diminish this President, with little regard for the 
damage that does to America, NATO and the effort to end the brutal 
repression of the Libyan people by Moammar Qadhafi.
  The Senate is finally this week seeking to complete action on a 
bipartisan, leadership-supported legislative approach to reforming 
Senate consideration of presidential nominations. It has taken weeks 
and months to get this far. Senate Republicans undermined their 
leadership and failed to support Senator Alexander and Senator 
McConnell, who were instrumental in developing the Presidential 
Appointment Efficiency and Streamlining Act, S. 679. The Senate has 
been stuck trying to complete this bill since June 16, when the 
majority leader could not even get consent to proceed to the bill. 
Bills that used to take 2 hours of floor time now consume 2 weeks. 
Republican Senators who could not be bothered with conducting oversight 
when a Republican was in the White House are now adamant that the 
Senate should not streamline any presidential nominations, arguing that 
doing so would undercut Senate opportunities to conduct what they call 
oversight. This is just another example of how virtually everything is 
viewed through a partisan lens since the American people elected 
President Obama.
  Senator Coburn has known since we began to consider the President's 
request to extend the FBI Director's term that his plan could not be 
considered a viable alternative unless there was an agreement from 
Senate Republicans to ensure that the Senate would

[[Page S4215]]

complete its work and have the FBI Director in place at the end of the 
summer. That agreement would take the form of a unanimous consent 
agreement in the Senate, entered into by all Senators, and locked in on 
the Record so that it could not be changed without unanimous consent. 
That has not occurred. That is the only way to ensure Senate action on 
a nomination before August 3. The House would also have to agree to 
such an approach.
  Senator Coburn has been unable to convince his leadership and the 
Republican caucus to agree. It may be because some do not want to 
agree. It may be because some do not want to give up the ``leverage'' 
such a nomination might provide to them on other matters. Maybe they 
just do not want to make anything too ``easy'' on this President. 
Whatever the reasons, no such agreement has been forthcoming in the 
weeks it has been under consideration.
  In fact, at the Judiciary Committee business meeting on the bill, 
when Senator Coburn could not offer the assurances required to lock in 
prompt and timely consideration of a subsequent nomination of the FBI 
Director after enactment of legislation and before August 3, he did 
suggest that his side of the aisle would forego several steps of the 
standard process for considering nominees. He offered to waive the 
questionnaire, the background check, and the confirmation hearing on 
Director Mueller. But this commitment was illusory, because not even 
all of the Republican members of the Judiciary Committee agreed. 
Senator Cornyn, having questioned Director Mueller's ``management 
capacity,'' indicated that he wanted confirmation hearings and the 
opportunity to ask questions. Of course, the Senator from Texas was 
within his rights to say so. But that shows the practical difficulties 
of following Senator Coburn's complicated, two-part scenario with no 
guarantee of it being completed by August 3.
  Republican Senators lectured us on the ease with which the majority 
leader should be able to obtain cloture on a new nomination of Director 
Mueller. That again makes my point. Without a binding agreement, it 
could take days to consider the nomination, perhaps a full week.
  We have just witnessed Senate Republicans filibustering for the first 
time in American history the nomination of the Deputy Attorney General 
of the United States. They did that just last month. While Senator 
Cornyn opined that the renomination of Director Mueller should be able 
to get 60 votes for cloture, and we should be able to end a filibuster 
of the nomination on the Senate floor, he also said that he could not 
control other Republican Senators.
  To complete action in accordance with Senator Coburn's alternative 
plan would mean not only passing legislation but the Senate receiving, 
considering and confirming the renomination of Director Mueller. I was 
chairman of the Judiciary Committee back in 2001 when the Senate 
considered and confirmed Director Mueller's initial nomination within 
two weeks. I worked hard to make that happen. Regrettably, given the 
current practices of Senate Republicans, and their unwillingness to 
agree on expedited treatment for President Obama's nominations, it is 
foolhardy in my judgment to think that all Senate Republicans will 
cooperate without the binding force of a unanimous consent entered in 
the Record.
  Let me mention just one more recent example. Consider the time line 
of the nomination of the Assistant Attorney General for the National 
Security Division at the Department of Justice. The nominee was 
approved unanimously by the Senate Judiciary Committee and unanimously 
by the Senate Select Committee on Intelligence, and approved 
unanimously by the Senate just yesterday. That nomination took 15 weeks 
for the Senate to consider--and she was approved unanimously. It took 
more than a month just to schedule the Senate vote after the nomination 
was reported unanimously by the Senate Select Committee on 
Intelligence, and that was 2\1/2\ weeks after it was unanimously 
reported by the Senate Judiciary Committee. This was a nominee with 
whom many of us were familiar and who faced no opposition.
  Of course, in the case of the FBI Director, there is no necessity to 
require a new nomination. The simple one-time extension contained in S. 
1103 does the job. It provides all the authority needed for the 
President to ask Director Mueller to stay on and for him to do so 
without additional action by the Senate. The separate renomination of 
Director Mueller is not required.
  As I have said, all Senate Democrats are prepared to take up and pass 
S. 1103, and send it to the House of Representatives for it to take 
final action before August 3. That is what we should be doing. We 
should do that now, before the Fourth of July recess. There is no good 
reason for delay. All that is lacking is Senate Republicans' consent.
  So, as they stall in moving legislation to respond to President 
Obama's request to extend Director Mueller's term, Senate Republicans 
will not commit to the unanimous consent request necessary to allow 
Senator Coburn's alternative to become a possibility. Seven of the 
eight Republican members of the Senate Judiciary Committee voted 
against the bill to extend Director Mueller's term. Senator Coburn had 
said that if his alternative was not adopted by the committee, he would 
vote for the bill, but then he changed his mind and voted against. He 
then said that he will vote for the bill, S. 1103, when it is 
considered by the Senate, but Senate Republicans--perhaps including 
Senator Coburn himself--are now objecting to considering it. We have 
lost another two weeks since the bill was reported by the Judiciary 
Committee.
  Finally, I observe that this is not the only matter the Senate needs 
to consider before August 3. There is the matter of the United States' 
default unless the debt ceiling is raised by that time. There is the 
need to pass the America Invents Act, as passed by the House, to spur 
innovation and jobs. There are currently 10 executive nominations ready 
for Senate action reported by the Judiciary Committee and 18 judicial 
nominations ready for final consideration to address the judicial 
vacancies crisis. There is much to do, little time, and even less 
cooperation.
  This important legislation, S. 1103, would fulfill the President's 
request that Congress create a one-time exception to the statutory 10-
year term of the FBI Director in order to extend the term of the 
incumbent FBI Director for 2 additional years. Given the continuing 
threat to our Nation, especially with the tenth anniversary of the 
September 11, 2001, attacks approaching, and the need to provide 
continuity and stability on the President's national security team, it 
is important that we respond to the President's request and enact this 
necessary legislation swiftly. The incumbent FBI Director's term 
otherwise expires on August 3, 2011. I urge the Senate to take up this 
critical legislation and pass it without further delay.

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