[Congressional Record Volume 161, Number 145 (Monday, October 5, 2015)]
[Senate]
[Pages S7111-S7113]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          NOMINATION OBJECTION

  Mr. COTTON. Madam President, our Founders designed a constitutional 
government powerful enough to defend against all threats, foreign and 
domestic, yet safe enough itself not to threaten our liberty. The 
separation of powers is a primary feature of our Constitution. Our 
Founders knew that encroachment by the executive onto the legislature, 
or vice versa, isn't only a political dispute but ultimately a threat 
to the freedom of all Americans. Thus they provided both branches with 
checks and balances to prevent such encroachment.
  Late last week, we learned shocking news. Armed agents of the 
executive violated the law to intimidate a Congressman from doing his 
job. This is exactly the kind of encroachment against which our 
Founders warned. The executive hasn't yet acted with anything like the 
gravity this matter deserves. Until it does, I intend to use the powers 
of my office to demand action and to protect our constitutional order.

  Let me say more about the shocking news. In an inspector general 
report issued last week, we learned that dozens of Secret Service 
employees illegally accessed the personnel file of Representative Jason 
Chaffetz. More than a decade ago, Congressman Chaffetz applied to the 
Secret Service; he was not hired. Now he is the chairman of the House 
Oversight and Government Reform Committee.
  In late March of this year, the committee held an important oversight 
hearing into a serious misconduct by Secret Service agents. Mere 
minutes into the hearing, an agent at the Secret Service's Washington 
office illegally searched the Service's database, which contains all 
manner of criminal, security, investigative, personnel, and other data. 
The agent discovered Congressman Chaffetz's old job application. This 
search was a blatant violation of the Privacy Act, about which the 
computer-based system explicitly warns on a prompt screen. The agent 
admitted conducting the search simply out of curiosity, presumably 
because Congressman Chaffetz was conducting an oversight hearing.
  Far from an isolated incident, word quickly spread throughout the 
Secret Service, and 45 employees accessed Congressman Chaffetz's 
records over the next week on 60 different occasions. These employees 
were located around the world, from London to Sacramento, in multiple 
headquarter offices, even on Bill Clinton's protective detail. The 
inspector general could identify only four instances of potentially 
legitimate access. Moreover, the inspector general concludes that the 
information was shared with hundreds of people--each a violation of the 
Privacy Act.
  Some employees realized their mistake and self-reported to their 
supervisor, according to the inspector general. While these employees 
indeed made a serious mistake, at least they owned up to it. Others 
remained defiant, saying they didn't read the warning banner or even 
claiming a right to satisfy personal curiosity because the personnel 
files are ``our database.''
  Let me state for the record my admiration for the vast majority of 
Secret Service agents, officers, and other professionals. We saw their 
professionalism on display again last month during Pope Francis's visit 
and at the U.N. General Assembly. They are dedicated professionals who 
risk their lives to defend our Constitution and laws. Indeed, Secret 
Service whistleblowers aware of this situation helped to initiate the 
inspector general investigation. Like the soldiers with whom I served 
in the Army, the upstanding men and women of the Secret Service want to 
get rid of their bad apples more than anyone.
  Unfortunately, the senior leaders at the Secret Service once again 
failed their people. The inspector general identified 18 supervisors 
who knew or should have known of the illegal searches and disclosures. 
With but one exception, the inspector general found no evidence that 
these senior managers reported the matter up the chain of command or 
took steps to stop or remedy it.
  These leadership failures went all the way to the top. One example is 
Deputy Director Craig Magaw. When briefed by a subordinate, Mr. Magaw 
reportedly ``made a shooing hand motion and stated `Yeah, yeah we 
know.' '' Despite the gravity of the allegations, Mr. Magaw apparently 
took no steps to learn more or stop the illegal activity, and he claims 
not to recall this exchange.
  Another example is Chief of Staff Michael Biermann, whom the 
inspector general characterizes as the de facto gatekeeper for Director 
Joe Clancy and Deputy Director Magaw. Mr. Biermann admits to hearing 
rampant rumors about the Chaffetz matter within 24 hours of the 
hearing. Yet he also apparently didn't inquire any further to learn the 
truth or take action to stop illegal activity.
  The most egregious example of leadership failure in the inspector 
general report is Assistant Director Ed Lowery, the head of training 
for the Secret Service. Mr. Lowery wrote in this email about 
Congressman Chaffetz, ``Some information that he might find 
embarrassing needs to get out. Just to be fair.''
  Lo and behold, 2 days later, a news Web site ran an article--
unsourced--about Congressman Chaffetz's decade-old job application to 
the Secret Service. I wonder who the source could have been. For that 
matter, I wonder if this kind of attitude from the head of training 
explains some of the Secret Service's recent struggles.
  There is even more egregious behavior not in the inspector general 
report. Thanks to a Friday afternoon news dump, we now know that 
Director Joe Clancy himself both knew of the Chaffetz matter at the 
time and misrepresented the facts to the inspector

[[Page S7112]]

general. In the report, Director Clancy states he didn't learn about 
the matter until a week after the congressional hearing, on the eve of 
a Washington Post story about the matter. As we have seen, this would 
have made him a notable exception among the Secret Service's top 
leaders. But Director Clancy, confronted with this report, is now 
singing a different tune. He now admits that he heard of a 
``speculative rumor'' the day after the hearing and a week before the 
Washington Post story. Yet Director Clancy says he considered the rumor 
``not credible'' and ``not indicative'' of wrongful conduct. That 
admission alone is a damning and ironic confession of a gross 
leadership failure.
  Let's put this in context. Director Clancy was specifically hired 
just months earlier to clean up the Secret Service's leadership culture 
after a string of embarrassing incidents. At the very congressional 
hearing that started all of this, Director Clancy testified that he was 
``infuriated'' that he hadn't been made aware of the latest security 
lapse. He further testified that he was ``working furiously to try to 
break down these barriers where people feel they can't talk up the 
chain.''
  Despite all that, despite all the problems he was specifically hired 
to fix, despite hearing rumors that obviously should have triggered 
immediate investigation, he did nothing for a full week to look into 
the matter and put a stop to it, which he only did once the story hit 
the Washington Post.
  How could this happen? How could someone hired to change the culture 
of his agency be so indifferent to potential illegal activity and to 
such a constitutional affront to the legislature that he did nothing--
absolutely nothing--until the press broke the story? To make matters 
worse, Director Clancy misrepresented all of it to the inspector 
general until the report was released last Wednesday. If anything 
remotely like this happened in the Army, commanders would have been 
relieved of command months ago. The Army holds its leaders responsible 
for everything their unit does and fails to do, and we should expect no 
less from the Secret Service leadership.
  Jason Chaffetz and I served together in the House. He is a tough, 
smart guy, more than capable of standing up for himself, although I 
should say this is not a partisan matter. I would feel the same way and 
give the same speech if Secret Service employees violated the law to 
intimidate Representative Elijah Cummings, chairman Chaffetz's 
Democratic counterpart. Of course, for that matter, how do we know they 
didn't? But since I am neither in the House any longer nor on the 
committees that oversee the Secret Service or Homeland Security, why am 
I so outraged by the Secret Service or Homeland Security? Why am I so 
outraged by the Secret Service's misconduct in this matter?
  First, if Secret Service personnel will violate the law to intimidate 
and retaliate against the chairman of their oversight committee, what 
might they do to a normal Arkansan, to the little guy who doesn't have 
Chairman Chaffetz's megaphone and position of influence? What might 
renegade bureaucrats in other agencies do?
  Second, these abuses are far more than yet another example of 
government misconduct; they strike at the heart of our constitutional 
order. Although troubled by Secret Service lapses like the Colombian 
prostitute scandal, I haven't spoken out on these matters, believing my 
peers on the oversight committee could handle them, as they did. This 
case, though, goes far beyond simple misbehavior, even beyond 
violations of law. To reiterate, armed agents of a paramilitary law 
enforcement agency violated the law to intimidate the Congressman 
charged with oversight of that agency.
  The gravity of this scandal hasn't thus far been met with appropriate 
action from the highest levels of the executive branch. Secretary of 
Homeland Security Jeh Johnson stated last week that he is ``confident 
U.S. Secret Service Director Joe Clancy will take appropriate action to 
hold accountable those who violated any laws or policies of this 
Department.'' This response is woefully inadequate on multiple counts.
  First, when an abuse of power strikes at the heart of our 
constitutional order, it warrants at a minimum the attention of a 
Senate-confirmed department Secretary.
  Second, Secretary Johnson implies there may be some doubt about 
whether laws were broken. In fact, the inspector general identified no 
fewer than 56 instances of blatant illegal activity.
  Third, Director Clancy cannot be trusted to handle this matter given 
what we know now, although, to give Secretary Johnson the benefit of 
the doubt on this count, he issued this statement before Director 
Clancy's Friday afternoon admission of misrepresenting the facts to the 
inspector general.
  Responsibility for a constitutional confrontation such as this calls 
for a Presidential response. Yet President Obama has been silent. His 
spokesman last week acted as if an apology was enough and implied that 
it was really just a matter of procedures not being followed--as if 
there are appropriate procedures for the executive to violate the law 
to intimidate a Member of the legislature. He even suggested that the 
response thus far ``is a strong indication that there is effective 
leadership in place at the Secret Service.'' Effective at what, one 
must ask?
  This indifferent response is far short of what this situation 
demands. First, Secretary Johnson must take appropriate disciplinary 
action against all Secret Service personnel involved, including 
Director Joe Clancy, Deputy Director Craig Magaw, Chief of Staff 
Michael Biermann, and Assistant Director Ed Lowery. I invite Secretary 
Johnson to brief not only me but the entire Congress. Once he makes his 
decision about appropriate action--for instance, firings, revocation of 
security clearances, removal from supervisory positions or suspension--
he can explain his own reasoning. Congress can then decide whether this 
discipline is adequate. Most immediately, if it turns out that Director 
Clancy knowingly misled the inspector general, he should resign or be 
fired. He was hired to clean up wrongdoing at the Secret Service, not 
perpetrate it and cover it up.
  Second, and independent of workplace discipline, the Attorney General 
must start a criminal investigation of the Secret Service personnel who 
unlawfully accessed Congressman Chaffetz's personnel file and who 
disseminated its contents. Criminal violations of the Privacy Act and 
other statutes must be punished.
  The inspector general lacks criminal authority, and it is unclear 
from his report if he was able to take certain key steps, such as 
obtaining personal emails and phone records. Further, Secret Service 
officials sat in many of the interviews the inspector general 
conducted, raising genuine questions about improper influence in the 
process. What is needed is a vigorous and disinterested criminal 
investigation by a single Federal prosecutor at the Justice Department.
  Senators often make requests for action from the executive branch, 
which are almost as often ignored. Let me say for the record that these 
aren't requests; these are demands. They are quite modest demands, 
given these most serious constitutional stakes. Take and explain 
appropriate disciplinary action and start a criminal investigation.
  Until then, I will be compelled to act by exercising our 
constitutional authority over executive branch nominations. Every 
officer of the United States, from the President to the newest clerk, 
must understand that Congress will fend off this kind of executive 
encroachment and there will be severe consequences for attempting to 
intimidate the people's elected representatives or obstructing us from 
doing our jobs.
  I am not yet at the point of calling for a total blockade on all 
executive branch nominations, although I may reach that point. Right 
before this speech, though, I did register an objection to three 
prominent political nominations and there will be more to follow if the 
executive branch doesn't act swiftly. None of these are nominees to the 
Department of Homeland Security, partly because the Department has no 
pending nominees but mostly because this is a constitutional question, 
not a parochial matter about a single department.
  I take this step reluctantly and with no particular quarrel with 
these three nominations or future ones to which I might be compelled to 
object. I do not

[[Page S7113]]

wish to prolong this dispute, only to defend our constitutional order. 
When President Obama and Secretary Johnson take appropriate action, I 
will likewise take action and release these and future objections. I 
hope our two branches can resolve this confrontation quickly and in 
keeping with our constitutional traditions. The American people deserve 
no less.
  The PRESIDING OFFICER. The Senator from Connecticut.

                          ____________________