Congressional Record, Volume 163 Issue 20 (Monday, February 6, 2017)

[Congressional Record Volume 163, Number 20 (Monday, February 6, 2017)]
[Senate]
[Pages S855-S865]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Motion to Proceed in Order

Mr. President, I move that the Senator from Massachusetts be
permitted to proceed in order.
The PRESIDING OFFICER. The question is on agreeing to the motion.
Mr. McCONNELL. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. CORNYN. The following Senators are necessarily absent: the
Senator from Texas (Mr. Cruz) and the Senator from Alabama (Mr.
Sessions).
Mr. DURBIN. I announce that the Senator from Delaware (Mr. Carper),
the Senator from Delaware (Mr. Coons), the Senator from California
(Mrs. Feinstein), the Senator from Vermont (Mr. Sanders), and the
Senator from Virginia (Mr. Warner) are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 43, nays 50, as follows:

[Rollcall Vote No. 58 Ex.]

YEAS--43

Baldwin
Bennet
Blumenthal
Booker
Brown
Cantwell
Cardin
Casey
Cortez Masto
Donnelly
Duckworth
Durbin
Franken
Gillibrand
Harris
Hassan
Heinrich
Heitkamp
Hirono
Kaine
King
Klobuchar
Leahy
Manchin
Markey
McCaskill
Menendez
Merkley
Murphy
Murray
Nelson
Peters
Reed
Schatz
Schumer
Shaheen
Stabenow
Tester
Udall
Van Hollen
Warren
Whitehouse
Wyden

NAYS--50

Alexander
Barrasso
Blunt
Boozman
Burr
Capito
Cassidy
Cochran
Collins
Corker
Cornyn
Cotton
Crapo
Daines
Enzi
Ernst
Fischer
Flake
Gardner
Graham
Grassley
Hatch
Heller
Hoeven
Inhofe
Isakson
Johnson
Kennedy
Lankford
Lee
McCain
McConnell
Moran
Murkowski
Paul
Perdue
Portman
Risch
Roberts
Rounds
Rubio
Sasse
Scott
Shelby
Sullivan
Thune
Tillis
Toomey
Wicker
Young

NOT VOTING--7

Carper
Coons
Cruz
Feinstein
Sanders
Sessions
Warner
The motion was rejected.
The PRESIDING OFFICER. The Democratic leader.
Mr. SCHUMER. Mr. President, if the average American heard someone
read a letter from Coretta Scott King that

[[Page S856]]

said what it said, they would not be offended. They would say that is
someone's opinion; that is all.
It seems to me that we could use rule XIX almost every day on the
floor of the Senate. This is selective enforcement, and another example
of our colleagues on the other side of the aisle escalating the
partisanship and further decreasing comity in the Senate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I have a question. I guess it is in
the nature of a parliamentary question, and that is, whether it would
be in order to ask unanimous consent that the letter from which Senator
Warren read be put into the Record as a confirmation that she was, in
fact, accurately reading from the letter, that it be added as an
exhibit in the Congressional Record.
The PRESIDING OFFICER. The text of the letter is in the Record of the
Senate as the Senator was reading it in her testimony.
Mr. WHITEHOUSE. The text of the letter as she read it, but not the
complete letter.
The PRESIDING OFFICER. The Senator may ask consent.
Mr. WHITEHOUSE. I ask unanimous consent that the complete letter from
which Senator Warren read be printed in the Congressional Record to
confirm that she has in fact read from it.
The PRESIDING OFFICER. Is there objection?
Mr. RISCH. I object.
The PRESIDING OFFICER. Objection is heard.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, this is fascinating. I say to my
colleagues, I have served here longer than any other Member of this
body. I have been here 42 years. I have been here when the Democrats
were in the majority and when the Republicans were in the majority,
with Democratic Presidents and Republican Presidents. I have never,
ever seen a time when a Member of the Senate asked to put into the
Record a letter especially by a civil rights icon and somebody
objected. It has always been done.
I have had letters that people have asked to be put in that were
contrary to a position that I might take. Of course, I would not
object. They are allowed to do it. I have seen letters when Members of
both sides of the aisle have debated back and forth and the other side
would put in letters that were contrary to their opponents' positions,
and of course nobody objected.
Don't let the Senate turn into something it has never been before. I
would hope that cooler heads would prevail, and we go back to the
things that made the Senate great, that made the Senate the conscience
of the Nation, as it should be.
I have never once objected to a Senator introducing a letter, even
though they took a position different than mine. I have never known of
a Republican Senator to do that, and here we are talking about a letter
from a civil rights icon.
Let's not go down this path. It is not good for the country. It is
not good for the Senate, it is not good for democracy, and it sure as
heck is not good for free speech.
I admire the Senator from Rhode Island. He is a man of great
integrity, a man who was attorney general of his State and U.S.
attorney in his State. His request was something that is normally
accepted automatically. I would hope Senators would reconsider.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. RISCH. Mr. President, I am the one who entered the objection, and
let me say to my good friend from Vermont that I agree with him 100
percent that we should get back to what made the Senate great.
We have rules around here, and the rules are very clear that you
don't impugn another Senator. Now, you can't do that in your words and
you can't do it with writings. You can't hold up a writing that impugns
another Senator and say: Well, this is what somebody else said. I am
not saying it, but that is OK.
It is not OK. It is a violation of the rules, and we should get back
to what made this Senate great, and that is, to stay within the rules,
stay within civility, and not impugning another Senator, whether it is
through words or whether it is through writings.
I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. Mr. President, I have a parliamentary inquiry as well.
The first question, Mr. President, is this: It is my understanding
that the ruling of the Chair was based on the advice of the
Parliamentarian. Is that accurate, Mr. President; on the advice of the
Parliamentarian that the rule had been violated?
The PRESIDING OFFICER. No. The Chair sustained the ruling of the
majority leader on his own.
Mr. RUBIO. OK. The second question I have, Mr. President: Does the
rule say anything that impugns another Member of the Senate, directly
or indirectly? Is that an accurate reading of the rule?
The PRESIDING OFFICER. The Senator is correct, and I will read the
paragraph. This is rule XIX, section 2.

No Senator in debate shall, directly or indirectly, by any
form of words impute to another Senator or to other Senators
any conduct or motive unworthy or unbecoming a Senator.

Mr. RUBIO. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. MERKLEY. A parliamentary inquiry.
The PRESIDING OFFICER. State your question.
Mr. MERKLEY. If a Member of the Senate is being considered for
nomination, and we are exercising our advice and consent power, and if
there is factual conduct in that individual's background that is
presented on the floor that is uncomplimentary, would presenting the
facts of that conduct in the process of debating an individual be
considered in violation of rule XIX?
The PRESIDING OFFICER. The rule makes no distinction between those
Senators who are nominees and those who are not. The rule does not
permit truth to be a defense of the slight.
Mr. MERKLEY. Mr. President, just to make sure I understand that
clearly, if we are considering a nominee who happens to be a Senator
and we state factual elements of their background, for example, the
conviction of a crime that is inappropriate conduct in the past,
stating the factual record about an individual would be considered in
violation of rule XIX?
The PRESIDING OFFICER. Each of these cases will be decided by the
Presiding Officer in the context at that time.
Mr. MERKLEY. Just to clarify, if I could, therefore, the point is
that something could be absolutely true, as, perhaps, a point that was
made earlier--a statement can be true in a letter that is presented--
but even if it is true and accurate for a person under consideration
for a nomination, it would still be in violation. In other words, the
fact that an individual is found in violation of rule XIX doesn't mean
that the statement had to be false. It could have been a true
statement?
The PRESIDING OFFICER. You are correct, Senator.
Mr. MERKLEY. Thank you.
The PRESIDING OFFICER. The assistant Republican leader.
Mr. CORNYN. Mr. President, I just want the Record to be abundantly
clear. The language that resulted in the vote that we had invoking rule
XIX was related to a quotation from Senator Ted Kennedy that called the
nominee ``a disgrace to the Justice Department, and he should withdraw
his nomination and resign his position.'' That was the quote. Our
colleagues want to try to make this all about Coretta Scott King and it
is not. I think the complete context should be part of the Record.
Mr. MERKLEY. Parliamentary inquiry.
Mr. SCHUMER addressed the Chair.
The PRESIDING OFFICER. The Democratic leader.
Mr. SCHUMER. Mr. President, it is my understanding--I was not there--
that there was a warning over Senator Kennedy's letter, but the actual
ruling was based on Coretta Scott King's letter; is that correct?
The PRESIDING OFFICER. Yes, that is correct.
Mr. SCHUMER. Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from Rhode Island.

[[Page S857]]

Mr. WHITEHOUSE. Mr. President, pursuing Senator Merkley's
hypothetical, if it came before the Senate that a Member of the Senate
who was a nominee seeking the advice and consent of the Senate to the
position was, for example, in fact, a horse thief, and we found the
fact that he was a horse thief to be relevant to whether or not he
should be confirmed, say, to the Department of Interior, which has
authority over lands, does the ruling of the Chair mean that it would
not be in order for the Senate or for Senators to consider what in my
hypothetical is the established fact that the Senator was a horse thief
as we debate his nomination here on the floor?
The PRESIDING OFFICER. Once again, the answer is the same, that each
of these decisions will be made at the time and in the context in which
they occur, and the decision of the Chair is subject to a vote of the
Senate and an appeal.
Mr. WHITEHOUSE. I guess, Mr. President, what I don't understand is
that we have fairly significant responsibilities under the Constitution
to provide advice and consent. It appears that the ruling of the Chair
has just been that when a Member of this body is the subject of that
advice and consent, then derogatory information about that person is
not in order and is a violation of rule XIX on the Senate floor. And
with that being the ruling, I don't know how we go about doing our
duties. Are we supposed to simply blind ourselves to derogatory
information, discuss it privately in the cloak rooms, not bring it out
onto the floor of the U.S. Senate, this supposedly great debating
society that actually has a constitutional responsibility to discuss
both the advantages and the deficits of a particular nominee?
The PRESIDING OFFICER. In each case, it is the opinion of the
President, subject to the final vote by the Senate to support or not to
support the President's decision.
Mr. WHITEHOUSE. So the precedent going forward is that any Senator
who discusses derogatory information that is a matter of public record,
that may even include criminal behavior by a Senator who is a candidate
for Executive appointment that requires advice and consent, is at risk
of being sanctioned by this body by a simple partisan majority of this
body under rule XIX if they raise those issues on the floor?
The PRESIDING OFFICER. It is not necessary for a point of order to be
raised under rule XIX, but if the point of order is raised, an opinion
will be made and it is subject to a vote of the Senate in the manner
previously described.
Mr. WHITEHOUSE. I yield the floor.
The PRESIDING OFFICER. The Senator from Florida.
Mr. RUBIO. Mr. President, I first have a parliamentary inquiry. These
are the continuing rules of the Senate that have been in existence
previous to this time and have carried over into this session, is that
correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. RUBIO. The reason I ask that is the following--but I think we all
feel very passionate about the issues before us. I have not been here
as long as Senator Leahy, whose service has been quite distinguished
over a long period of time. I truly do understand the passions people
bring to this body. I like to think that I, too, am passionate about
the issues before us.
I think this is an important moment. It is late. Not many people are
paying attention. I wish they would though because I think the question
here is one of the reasons I ran for this body to begin with. Maybe it
is because of my background; I am surrounded by people who have lost
freedoms in places where they are not allowed to speak. One of the
great traditions of our Nation is the ability to come forward and have
debates.
But the Founders and the Framers and those who established this
institution and guided us over two centuries understood that that
debate was impossible if, in fact, the matter became of a personal
nature. I don't believe that was necessarily the intention here,
although perhaps that was the way it turned out. But I think it is
important for us to understand why that matters so much.
I want people to think about our politics here in America because I
am telling you guys, I don't know of a single Nation in the history of
the world that has been able to solve its problems when half the people
in the country absolutely hate the other half of the people in that
country. This is the most important country in the world, and this body
cannot function if people are offending one another, and that is why
those rules are in place.
I was not here when Secretary Clinton was nominated as a Member of
this body at the time, but I can tell you that I am just barely old
enough to know that some very nasty things have been written and said
about Senator Clinton. And I think the Senate should be very proud that
during her nomination to be Secretary of State--despite the fact that I
imagine many people were not excited about the fact that she would be
Secretary of State--to my recollection, and perhaps I am incorrect, not
a single one of those horrible things that have been written or said
about her, some of which actually did accuse her of wrongdoing, was
uttered on the floor of the Senate.
I happen to remember in 2004 when then-Senator Kerry ran for
President. Some pretty strong things were written and said about him. I
was here for that when he was nominated and confirmed to be Secretary
of State. And I don't recall a single statement being read into the
Record about the things that have been said about him.
Now, I want everybody to understand that at the end of the night,
this is not a partisan issue. It really is not. I can tell you this
with full confidence that if one of my colleagues on this side of the
aisle had done that, I would also like to think that I would have been
one of those people objecting, and here is why.
Turn on the news and watch these parliaments around the world where
people throw chairs at each other and throw punches, and ask yourself:
How does that make you feel about those countries? It doesn't give you
a lot of confidence about those countries. I am not arguing that we are
anywhere near that tonight, but we are flirting with it. We are
flirting with it in this body, and we are flirting with it in this
country. We are becoming a society incapable of having debates anymore.
In this country, if you watch the big policy debates that are going
on in America, no one ever stops to say: I think you are wrong. I
understand your point of view. I get it. You have some valid points,
but let me tell you why I think my view is better. I don't hear that
anymore.

Here is what I hear almost automatically--and let me be fair--from
both sides of these debates. Immediately, immediately, as soon as you
offer an idea, the other side jumps and says that the reason you say
that is because you don't care about poor people, because you only care
about rich people, because you are this or you are that or you are the
other. And I am just telling you guys, we are reaching a point in this
Republic where we are not going to be able to solve the simplest of
issues because everyone is putting themselves in the corner where
everyone hates everybody.
Now I don't pretend to say that I am not myself from time to time in
heated debates outside of this forum. I have been guilty of perhaps
hyperbole, and for those--I am not proud of it.
But I have to tell you, I think what is at stake here tonight and as
we debate moving forward is not simply some rule but the ability of the
most important Nation on Earth to debate in a productive and respectful
way the pressing issues before us. I just hope we understand that
because I have tremendous respect for the other Chamber, and I
understand that it was designed to be different. But one of the reasons
I chose to run for the Senate and, quite frankly, to run for reelection
is that I believed I served with 99 other men and women who deeply love
their country, who have different points of view, who represent men and
women who have different views from the men and women whom I may
represent on a given issue and who are here to advocate for their
points of view, never impugning their motives.
One of the things I take great pride in--and I tell this to people
all the time--is that the one thing you learn about the Senate is,
whether you agree with them or not, you understand why every single one
of those other 99 people are here. They are intelligent people, they
are smart people, they are

[[Page S858]]

hard-working people. They believe in what they are saying, and they
articulate it in a very passionate and effective way.
When I see my colleague stand up and say something I don't agree
with, I try to tell myself: Look, I don't understand why they stand for
that, but I know why they are doing it. It is because they represent
people who believe that.
I am so grateful that God has allowed me to be born, to live, and to
raise my family in a nation where people with such different points of
view are able to debate those things in a way that doesn't lead to war,
that doesn't lead to overthrows, that doesn't lead to violence. And you
may take that for granted.
All around the world tonight, there are people who, if they stood up
here and said the things that we say about the President or others in
authority, they would go to jail. I am not saying that is where we are
headed as a nation; I am just saying, don't ever take that for granted.
The linchpin of that is this institution. The linchpin of that debate
is the ability of this institution through unlimited debate and the
decorum necessary for that debate to be able to conduct itself in that
manner.
I know that tonight was probably a made-for-TV moment for some
people. This has nothing to do with censuring the words of some great
heroes. I have extraordinary admiration for the men and women who led
the civil rights effort in this country, and I am self-conscious or
understanding enough to know that many of the things that have been
possible for so many people in this country in the 21st century were
made possible by the sacrifices and the work of those who came before
us.
This has to do with a fundamental reality, and that is that this body
cannot carry out its work if it is not able to conduct debates in a way
that is respectful of one another, especially those of us who are in
this Chamber together.
I also understand this: If the Senate ceases to work, if we reach a
point where this institution--given everything else that is going on in
politics today, where you are basically allowed to say just about
anything, for I have seen over the last year and a half things said
about people, about issues, about institutions in our republic that I
never thought I would see ever--ever. If we lose this body's ability to
conduct debate in a dignified manner--and I mean this with no
disrespect to anyone else. I don't believe anyone came on the floor
here tonight saying: I am going to be disrespectful on purpose and turn
this into a circus. But I am just telling you that if this body loses
the ability to have those sorts of debates, then where in this country
is that going to happen? In what other forum in this Nation is that
going to be possible?
So I would just hope everybody would stop and think about that. I
know I have been here only for 6 years, so I don't have a deep
reservoir of Senate history to rely on. But I know this: If this body
isn't capable of having those debates, there will be no place in this
country where those debates can occur. I think every single one of us,
to our great shame, will live to regret it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Democratic leader.
Mr. SCHUMER. Mr. President, I don't want to prolong this much more.
In light of what my friend from Florida said, I would just reread what
I said earlier.
If average Americans heard someone read a letter from Coretta Scott
King that said what it said, they would not be offended. They would say
that is someone's opinion. That is all.
It seems to me we could use rule XIX almost every day on the floor of
the Senate, as my colleague from Maine so pointedly and piquantly
exhibited a few minutes ago.
This selective enforcement is another example of our colleagues on
the other side of the aisle escalating the partisanship and further
decreasing the comity of the Senate, which I treasure as well. This was
unnecessary.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I take umbrage with what the minority
leader said. I sat here and listened to the distinguished Senator from
Massachusetts, who went on and on and on. Many of her remarks were
criticizing a fellow colleague in the Senate. I don't know about the
other side, but I find it offensive for either side to be criticizing,
as was done here tonight, a sitting Member of the Senate.
I am absolutely astounded that the Democrats, my friends on the other
side, have taken to the war tables a desire to defeat Jeff Sessions. I
have been here a long time, and I have to say that I knew Jeff Sessions
even before he came here, and I have known him since he has been here.
And, yes, I differ with him on a number of issues, but I would never
say things about him as have been said by my colleagues on the other
side. I think that we all ought to take some stock in what we are doing
here.
Jeff Sessions is a very fine person. Think of his wife. She is a
really fine person. Jeff has been here 20 years. He has interchanged
with almost all of us. Sometimes you agree with him, and sometimes you
disagree with him, but he has always been a gentleman. He has always
been kind and considerate of his colleagues. I can't name one time when
he wasn't. Yet we are treating him like he is some terrible person who
doesn't deserve to be chosen by the current President of the United
States to be Attorney General of the United States.
I think we ought to be ashamed of ourselves--I really do--on both
sides. And frankly, we have to get to where everything is not an issue
here. I know some of my friends on the other side and I have chatted,
and they are not happy with the way this body is going with good
reason.
Everything doesn't have to lead to a gun fight on the floor, but that
is where we are going. And frankly, sometimes there is an awful lot of
politics being played here on both sides.
Look, I happen to like the senior Senator from Massachusetts. I think
she is an intelligent, lovely woman in many ways. But I have to tell
you, I listened to her for quite a while, and she didn't have a good
thing to say about a fellow Senator. Frankly, I don't think that is
right. If we don't respect each other, we are going down a very steep
path to oblivion.
I would hope that both sides would take stock of these debates. We
can differ. We understand that the Democrats are not happy with the
current President. We are happy with him. We can differ on that, and we
can fight over various issues and so forth. But to attack a fellow
Senator without reservation seems to me the wrong thing to do.
It may not have risen to the level of a violation of the rules, but I
think it comes close, and I have sat here and listened to most of it
and, frankly, I don't believe that the distinguished Senator from
Massachusetts was right in any respect. I have been here a long time
and I have seen some pretty rough talk, but never like we have had this
first couple of months here. We have gone so far on both sides that we
are almost dysfunctional.

I admit it was tough for the Democrats to lose the Presidential
election. Most people thought that Hillary Clinton would win. I was not
one of them. I thought there was a real chance because I knew a lot of
people would not say for whom they were going to vote. I think,
correctly, I interpreted that meant that they were going to vote for
Donald Trump, and the reason they were is that they are tired of what
is going on. They are tired of what is hurting this country. They are
tired of the picayune little fights that we have around here.
I think we have to grow up. I suggest that all of us take stock of
ourselves and see if we can treat each other with greater respect. I
have to say, I resented--as much as I like the distinguished Senator
from Massachusetts, I resent the constant diatribe against a fellow
Senator. Even if everything she said was true, it wasn't the right
thing to do. I don't think any of us should do that to them, either. We
can differ, we can argue, we can fight over certain words and so forth,
but I have been appalled at the way the Democrats have treated Jeff
Sessions. I have found Jeff Sessions--having worked with him for 20
years and having disagreed with him on a number of things--to be a
gentleman in every respect and to present his viewpoints in a
reasonable and decent way.
I would hope that my colleagues on the other side would consider
voting

[[Page S859]]

for Jeff Sessions or at least treating him with respect.
I admit that I think some of this comes from the fact that they are
very upset at Donald Trump, and it is easy to see why. He won a very
tough, contested election against one of their principal people. That
is hard to take, maybe. That doesn't justify what has been going on
against Jeff Sessions.
We ought to be proud that Jeff has a chance to become the Attorney
General of the United States, and he is going to be. That is the thing
that really bothers me. Everybody on the other side knows that we have
the votes to finally do this. Yet, they are treating it as though this
is something that they have to try and win--which they are not going to
win--and, in the process, treating a fellow Senator with disdain. It is
wrong.
We should all take stock of ourselves. I am not accusing my
colleagues of not being sincere, but they have been sincerely wrong. I
am personally fed up with it. If we want to fight every day and just go
after each other like people who just don't care about etiquette and
courtesy, I guess we can do that, but I think it is the wrong thing to
do.
I hope all of us will stop, take note of what has been going on, and
on both sides start trying to work together. I know it was tough for my
Democrat friends to lose the Presidential election. I know that was
tough. And they didn't think they were going to, and, frankly, a lot of
us didn't think they were going to. I did think that. But, then again,
I was one of two Senators who supported Donald Trump, in my opinion,
with very, very good reason. I am sure that doesn't convince any
Democrats on the other side.
The fact is that we have to treat each other with respect or this
place is going to devolve into nothing but a jungle, and that would
truly be a very, very bad thing.
I am not perfect, so I don't mean to act like I am, but I have to say
that all of us need to take stock. We need to start thinking about the
people on the other side. We need to start thinking about how we might
bring each other together in the best interests of our country and how
we might literally elevate the Senate to the position that we all hope
it will be.
I love all of my colleagues. There is not one person in this body
that I don't care for a lot. I disagree quite a bit with some of my
colleagues on the other side, and even some folks on our side, but that
doesn't mean that I have to treat them with disrespect.
I yield the floor.
The PRESIDING OFFICER (Mrs. Ernst). The Senator from Minnesota.
Ms. KLOBUCHAR. Madam President, I first want to say a few words about
the Senator from Massachusetts and her passion and what she has brought
to this Chamber. While I know she has not been allowed to complete her
remarks today, I know that will not silence her, and we look forward to
hearing from her tomorrow and many days in the future on so many
topics.
I also wanted to say something about my friend from Utah. We have
worked together on so many bills. I have seen firsthand that he means
what he says about treating this Chamber with the dignity that we all
deserve and that the American people deserve.
Also, I was especially impressed by the words from the Senator from
Florida. When I see the majority leader and the Democratic leader over
there talking in the corner now, I think that is a good sign, because I
have never seen a time where the Senate is more important, as the
Senator from Florida was mentioning.
This is a moment in time where the Senate will not just be a check
and balance, but it is also a place for compromise. The one issue where
I would differ slightly with my friend and colleague from Utah is that
this isn't just about Democrats responding with surprise or anger to
the election of a new President. There have been a lot of things said
in the last few months, including calling judges ``so-called judges''
and some of the discussions and comparisons to foreign leaders, and
things that we have heard from the White House in the last few weeks,
including the order that was issued that some of our Republican
colleagues expressed a lot of concern about and that the Senate wasn't
involved in and that a lot of law enforcement people weren't involved
in.
There have been reasons that people's passions are high, and there
are reasons that are good ones because we care about this country. So I
hope people will see that in perspective for why people are reacting
the way they do.
As for the Senator from Alabama, as I would call him for the purpose
of these remarks, I am someone who has worked well with him. We have
done bills together on adoption, and we have worked together on
trafficking, and I am proud of the work I have done with him. We have
also gone to the State of the Union together every single year, and I
value his friendship.
I came to the conclusion that I couldn't support him not for personal
reasons, but because of some of the views he has expressed in the past
and his record on the Violence Against Women Act, his views on
immigration, and his views relating to voting rights.
I think many of our colleagues, especially those who serve on the
Judiciary Committee, feel the same way--that this wasn't personal, but
we simply had a deep disagreement with some of his views on certain
issues.
Today I thought I would focus on the voting rights issue. I spoke
earlier about the Violence Against Women Act, and I think that is a
good place to start as we work together going forward. We have seen an
attack on America's election system; we have had 17 intelligence
agencies talking about the fact that a foreign country tried to
influence our election. It is the core of our democracy. I know the
Senator from Florida himself has said that this time it happened to one
candidate, one party, and the next time it could be another party,
another candidate. So this idea of voting--this idea of the freedom to
vote--is the core of our democracy.
One of the most important duties of the Justice Department--and that
is the office for which the Attorney General would run--is safeguarding
voters' access to the ballot box. This issue is important in my State.
We had the highest voter turnout of any State in the country in this
past election, and part of the reason we had such a good turnout is
that we have good laws that allow for people to vote. It allows for
same-day registration. We make it easy for people to vote; we don't
make it hard. For me, that is one of the major duties of the Justice
Department, and that is to enforce our voting rights.
I will never forget when I traveled to Alabama in the last few years
with one of the leaders, Congressman John Lewis, who was one of the 13
original Freedom Riders. In 1964 he coordinated the efforts for the
Mississippi Freedom Summit, recruiting college students from around the
country to join the movement, to register African-American voters
across the South. People from my State went, and people from every
State in this Chamber went there for that March.
On March 7, 1965, Congressman Lewis and 600 other peaceful protestors
attempted to march from Selma to Birmingham to protest violence against
civil rights workers. As they reached the crest of the Edmund Pettus
Bridge, they saw a line of troopers blocking their way. At the end of
the bridge, those peaceful marchers were attacked, just for calling for
the right to vote. John Lewis's skull was fractured, and he still bears
that scar to this day.
The weekend that I went back there, 48 years after that bloody
Sunday, was the weekend that the police chief of Montgomery actually
handed Congressman Lewis a badge and publicly apologized for what
happened to him that day, 48 years later. But as moving as that apology
was, we still have a duty to make sure that those sacrifices were not
in vain. We also need to make it easier for people to actually vote,
and that is a promise still unmet in America over 50 years later,
whether it is lines at voting booths or whether it is laws in place
that make it harder to vote.
I just look at this differently, having come from a high voter
turnout State, a State where we have same-day registration, and when we
look at the other high voter States that have that same-day
registration station--Iowa, the Presiding Officer's State is one of
them; that is not really a Democratic State, yet they have a high voter
turnout and people participate and feel a part of that process. New
Hampshire, Vermont, these States are truly split, but what we want to
see is that kind of participation.

[[Page S860]]

A couple of months after I was in Selma, the Supreme Court handed
down its decision in the case of Shelby County v. Holder. In this
decision, the Justices found that a formula in section 4 of the Voting
Rights Act was unconstitutional. This formula was used to decide which
States and localities needed to have Federal approval for any changes
made to their voting rights laws, endangering the progress made over
the past 50 years.
According to a report by the Brennan Center for Justice, following
the Shelby County decision, 14 States put new voting restrictions in
place that impacted the 2016 Presidential election. Three other States
also passed restrictive voting measures, but those laws were blocked by
the courts. So the harm is very real and very serious, and we can't sit
by and just let this happen.
Specifically, we need a Department of Justice that will vigorously
enforce the remaining sections of the Voting Rights Act as well as the
National Voter Registration Act and the Help America Vote Act.
Currently, a majority of the States are not complying with the National
Voter Registration Act, leaving voting rolls outdated and preventing
eligible voters from casting their ballots. Without a Department of
Justice that makes the enforcement of these laws a priority, the rights
of voters will continue to be infringed.
Congress also needs to take action through legislation to make right
what came out of that Supreme Court decision. Effectively throwing out
the preclearance provision of the Voting Rights Act just doesn't make
sense. As Justice Ginsberg put so well in her dissent, ``Ending
preclearance now is like throwing away your umbrella in a rainstorm
because you are not getting wet.''
Those marchers in Selma sacrificed too much for us not to fight back.
That is why I cosponsored legislation last Congress that would amend
the Voting Rights Act.
I am under no illusion that amending the Voting Rights Act in
Congress will be easy. It won't be. We have seen some bipartisan
support. In fact, Congressman Sensenbrenner, from my neighboring State
of Wisconsin, who sponsored the reauthorization in 2006, called for
Congress to restore the Voting Rights Act. As he put it, ``the Voting
Rights Act is vital to America's commitment to never again permit
racial prejudices in the electoral process.''
Another issue I want to focus on this evening that I raised in
Senator Sessions' hearing is the fundamental importance of freedom of
the press. My dad was a newspaper reporter, and up until a few years
ago, he was still writing a blog. So I am especially sensitive to, and
concerned about, maintaining the press's role as a watchdog.
On a larger note, the role of journalists is critical to our Nation's
democracy. That is why our Founders enshrined freedom of the press in
the First Amendment. When we look at what we are seeing in the last few
years in our country, what concerns me is this assault on democracy. We
have voting rights issues with people unable to vote, with lines, with
restrictive voting laws passed as opposed to finding ways to allow more
people to vote. We have outside money in politics. Recently, we have
some of the things being said about judges, and now we have some
assault on this notion of the freedom of the press.
Thomas Jefferson said that our first objective should be to leave
open ``all avenues to truth,'' and the most effective way of doing that
is through ``the freedom of press.'' This is still true today. Freedom
of the press is the best avenue to truth. In fact, these values are
more important now than ever, at a time when people are not exactly
valuing the freedom of the press.
I believe there are two distinct roles journalists will hold that
Congress must preserve and strengthen in the coming years. The first is
providing the people with information about their government. Sometimes
this is as simple as covering the passage of a new law in a public
forum. This work doesn't just lead to a better, informed public. It can
also lead to important actions.
Thanks to excellent reporting from across the country, Americans have
been energized in the past. For instance, just a few weeks ago there
was an attempt to gut the Office of Congressional Ethics over in the
House. That came out, people were outraged, it was reported on, and
they backed down.
The second role we must preserve is journalists' responsibility to be
fact-checkers. They research, they provide context, and, when they need
to, they correct. We need newspapers and media to stand up for what is
true and what is factual. Unlike what was recently said--not in this
Chamber--the press cannot simply keep its mouth shut. The American
people deserve the truth, and we are all relying on journalists to keep
digging for it. I take this personally and seriously.
In Senator Sessions' hearing I asked him whether he would follow the
standards now in place at the Justice Department, which address when
Federal prosecutors can subpoena journalists or their records and serve
to protect reporters engaged in news-gathering activities. The previous
two Attorneys General both pledged not to put reporters in jail if they
were simply doing their job under the law.
The Senator from Alabama did not make that commitment. When I asked
him about this in his hearing, he said he had not yet studied those
rules. He also did not make a commitment when I later asked him to do
that on the record.
The Senator from Alabama has also raised concerns in the past about
protecting journalists from revealing their sources, including opposing
the Free Flow of Information Act when it was considered by the
Judiciary Committee in 2007, 2009, and 2013. So at this time, when our
freedom of the press has been under attack at the highest levels of
government, I believe it is critically important that our Justice
Department continues to function as an independent voice that will
protect the ability of journalists to do their job.
Lastly, I want to take a moment to focus on the importance of the
Antitrust Division at the Department of Justice. As ranking member of
the Antitrust Subcommittee, I am concerned about the state of
competition in the marketplace. I wish to take a few minutes on this
issue.
I did ask Senator Sessions about this at his hearing, and he said he
was committed to an independent division in the Justice Department and
to continue that work without outside influence. I continue to believe
that this issue will be important because of the massive amount of
mergers we are seeing. The legal technicalities behind our antitrust
laws will not be familiar to most Americans, but effective antitrust
enforcement provides benefits we can all understand. When companies
vigorously compete, they can offer consumers the lowest prices and the
highest quality goods and services.
Senator Sessions has stated that he will support the independence of
that division, and I want to make clear how critical this is. It is
absolutely essential that our next Attorney General enforces our
antitrust laws fairly and vigorously, and that this person protects the
integrity of the Antitrust Division's prosecutorial function from
inappropriate influence. This is because vigilant antitrust enforcement
means more money in the pockets of American consumers. The Attorney
General can do this by identifying and preventing competition problems
before they occur, like stopping a merger that would allow a few
dominant players to raise prices, or, when a merger is allowed to move
forward, putting conditions in place to protect competition.
The next Attorney General will also be able to stop price-fixing
cartels that hurt consumers by artificially inflating prices for goods
such as auto parts, TVs, and tablet computers. Last year alone, the
Justice Department obtained more than $1 billion in criminal antitrust
fines. Anticompetitive practices have serious impacts on consumers; for
example, pay-for-delay settlements that keep cheaper generic drugs from
coming onto the markets. Estimates suggest that eliminating those
sweetheart deals would generate over $2.9 billion in budget savings
over 10 years and save American consumers billions on their
prescription drug costs. That is why Senator Grassley and I worked on
bipartisan legislation to give the Federal Trade Commission greater
ability to block those anticompetitive agreements. Our Preserve Access
to Affordable Generics Act would increase consumers' access to cost-
saving generic drugs.

[[Page S861]]

The bottom line is this. Antitrust enforcement is needed now more
than ever. We are experiencing a wave of concentration across
industries. Just last year, then-Assistant Attorney General for
Antitrust Division Bill Baer, a lifelong antitrust practitioner, said
his agency was reviewing deals with such antitrust concerns that they
should never have made it out of the corporate boardroom.
Not only will antitrust violations mean higher prices for Americans
and less innovation, but the indirect effects are equally troubling.
There is concern that undue concentration of economic power would
exacerbate income inequality. There is also concern that concentration
can hurt new businesses, stifling innovation. Why would you innovate if
there is just one or two firms? Only effective antitrust enforcement by
the Attorney General will prevent those harms, and effective
enforcement can occur only if the Department of Justice makes
enforcement decisions based on the merits of the individual case,
rather than politics.
Traditionally, the White House has not interfered with antitrust
enforcement decisions, but recent reports indicate that the President
has discussed pending mergers with CEOs during ongoing antitrust
reviews. Some companies have also publicly reported their conversations
with and their commitments to the President. In both Senator Sessions'
hearing and in a follow up letter, I raised this issue with him. The
Senator from Alabama said: ``It would be improper to consider any
political, personal, or other non-legal basis in reaching an
enforcement decision.''
That is the correct answer. I plan to rigorously protect the
Antitrust Division's prosecutorial integrity to make sure it is
principled and is done right. Antitrust and competition policy are not
Republican or Democratic issues. A merger in the ag industry could have
an effect on farmers in Iowa, as the Presiding Officer knows. These are
consumer issues, and these issues could not be more important to all
Americans. We can all agree that robust competition is essential to our
free-market economy and critical to ensuring that consumers pay the
best prices for what they need.
I want to switch gears and conclude today by speaking about the
President's Executive order regarding refugees, especially those from
Muslim countries, which has caused so much chaos across our country
over the past several weeks.
While I know Senator Sessions was not involved in writing the
Executive order, it is very important that going forward, obviously,
the Attorney General and the Department of Justice's Office of Legal
Counsel have a responsibility to review Presidential Executive orders
and assure they are legal and done right.
I sent a letter, with Senators Durbin, Whitehouse, Franken, Coons,
and Blumenthal, and we asked Senator Sessions what he would have done
if the President's Executive order came across his desk. As a former
prosecutor, I have long advocated for thorough vetting and supported
strong national security measures.
I believe that the No. 1 priority should be making people safe. While
working to strengthen biometrics and other security measures is a good
goal, this is not the way our government should work--that an order
should be put out there without properly vetting it and figuring out
the effect it would have on a four-year-old girl who is in a refugee
camp in Uganda. That happened.
In my State, there was a mom who had two children, a Somali mother in
a refugee camp. She got permission to come over to our State and to our
country as a refugee. But she was pregnant, and when she had that baby,
that baby did not have permission to come with her. So she had a
Sophie's choice: Does she leave the baby in the refugee camp with
friends and go to America with her two other daughters, or do all of
them stay in the refugee camp in Uganda? She made a decision that she
would go with her two older girls, that that would be the safest thing
for them.
For 4 years, she worked to get the child that was left behind in the
refugee camp to America to be reunited with her sisters. The baby, who
is now 4 years old, was to get on a plane on the Monday after the
President's Executive order was issued. The 4-year-old could not get on
that plane.
Senator Franken and I got involved. We talked to General Kelly. He
was more than generous with his time. They made an exception, and the
4-year-old is now in Minnesota. But it should not take a Senator's
intervention--as many of my colleagues know that have worked on these
cases--to get a 4-year-old who is supposed to be reunited with their
family, something that our government had worked on for 4 years and
Lutheran Social Services in Minnesota had worked on for 4 years.
If Senator Sessions is in fact confirmed as the next Attorney
General, these are actual issues he is going to have to work on, and
beyond that, we have the issue of how people in our country are afraid.
We have 100,000 Somalis in Minnesota. We have the biggest Somali
population in the country. A man who works for me started with my
office 10 years ago and has been our outreach to the Somali community.
He was just elected to the school board.
We have Somalis elected to our city council. They are part of the
fabric of life in our State. Congressman Emmer, who actually took the
seat held by Michele Bachmann, is the cochair, along with Congressman
Ellison, of the Somali caucus in the House of Representatives. We have
not seen this as a Democratic issue or a Republican issue in our State.
We have welcomed these refugees.
We have the second biggest population of Hmong in the United States
of America. We have the biggest Liberian population. We have one of the
biggest populations of people from Burma. We have 17 Fortune 500
companies in our State. When these refugees come over, they are legal
workers, and they are a major part of our economy. So it is no surprise
that during the last year, when we heard the kind of rhetoric that we
have heard, people have been concerned--not just the refugees
themselves, not just their friends and family, but a lot of people in
our State. The churches have gotten involved--all kinds and every
denomination in our State--to stand up for our Muslim population. Why?
Because they have all heard the story. One of my most memorable stories
was from a family whom I heard about when I was visiting with some of
our Muslim population in Minneapolis. This was a story of two adults
who actually had been in our State during 9/11. And during 9/11, George
Bush stood up and he said: This isn't about a religion. This is about
evil people who did evil things, but it is not to indict a religion.

His U.S. attorney at the time, the Republican U.S. attorney, went
around with me--the elected prosecutor for the biggest county in our
State--and we met with the Muslim population and assured them they were
safe and told them to report hate crimes. The family, these two adults,
they were there then. Nothing bad happened to them. No one called them
a name.
Fast-forward to this summer. They are at a restaurant with their two
little children. They are just sitting there having dinner.
A guy walks by and says: You four go home. You go home to where you
came from.
The little girl looked up at her mom, and she said: Mom, I don't want
to go home and eat tonight. You said we could eat out tonight.
The words of an innocent child. She didn't even know what that man
was talking about because she only knows one home. That home is our
State, and that home is the United States of America.
If Senator Sessions is confirmed for this position, he is going to
have an obligation to that little girl who was in that restaurant and
to all of the people in our country because this is the Justice
Department of the United States of America.
As a former prosecutor, I know a big part of that job is prosecuting
cases and doing all we can to keep America safe from evildoers, but it
is also about keeping our Constitution and our rights safe.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Madam President, the Attorney General of the United
States holds a vital and also somewhat unique position in the Federal
Government. The Attorney General of the United States is tasked with

[[Page S862]]

significant responsibilities that must be executed independently,
sometimes even in defiance of the White House's wishes and interests.
The Attorney General of the United States is tasked with enforcing
our laws fairly, justly, and evenhandedly, as well as with protecting
the civil and constitutional rights of all Americans of all
persuasions, of all backgrounds. The Attorney General of the United
States does not work for the President so much as for the people and
does not serve the administration so much as the law.
I have served in the U.S. Department of Justice. I have felt its
esprit de corps, its pride. That pride is founded on a firm sense of
the Department's willingness to stand on what is right, even against
the wishes of the White House. One fine example of this was Attorney
General Ashcroft challenging and refusing to accede to the wishes of
the White House on the Bush administration's warrantless wiretapping of
Americans. The Department of Justice is well aware of the importance of
its independence.
A successful Attorney General must be stalwart in protecting the
Department from political meddling by the administration or by
Congress. We need only look back to Attorney General Gonzales's
resignation to recall how badly things turn out when an Attorney
General yields to political pressure.
An Attorney General also makes policy decisions about where and how
to direct the Department's $27 billion budget and when and how to
advise Congress to recommend new laws and modify existing policies.
These are policy choices an Attorney General makes. It is no answer to
questions about those policy choices to say: I will follow the law.
That doesn't apply in this arena of funding decisions and legislative
recommendations that are policy choices not dictated by law. Those
policy choices can have a profound effect on individuals, on
communities, and on the fabric of our Nations.
Americans should be able to trust that their Attorney General will
not only enforce the laws with integrity and impartiality but stand up
for Americans of all stripes and fight on behalf of their rights. That
is the prism through which I evaluate Senator Sessions' nomination.
I have known Senator Sessions for a decade and have enjoyed working
with him on a number of pieces of legislation. However, the standard by
which I evaluate an Attorney General nominee is whether Rhode Islanders
will trust that in the tough clinches, he will always be independent
and always fair.
I have reviewed Senator Sessions' career as an attorney and as a
Senator, as well as his testimony before the Judiciary Committee. I
have reflected on my own duties and experience as my State's attorney
general and as the U.S. attorney in Rhode Island. I have also served as
an attorney in our State attorney general's office.
By the way, the attorney general in Rhode Island has full prosecutive
authority. Many States have a division in which the attorney general
has a narrow ambit of authority and district attorneys do the bulk of
the criminal prosecution--not so in Rhode Island.
I have also had the occasion to listen closely to very strong and
honest, serious concerns from Rhode Islanders who have made it plain to
me that they fear what Senator Sessions would do as head of the Justice
Department. For every constituent of mine who has expressed support of
his nomination, 15 have expressed opposition.
Senator Sessions has fought against fixing our immigration system,
opposing as the leading opponent of bipartisan legislation which, had
it passed, would have spared us much of the current debate over walls
and immigration.
Senator Sessions fought against our bipartisan criminal justice and
sentencing reform bill.
Senator Sessions opposed reauthorizing the Violence Against Women
Act--a bill which is vitally important to the Rhode Island Department
of Attorney General and to the anti-domestic violence groups around
Rhode Island.
Senator Sessions' record on support of gay and lesbian Americans has
alarmed many Rhode Islanders. Public statements and confirmation
testimony by Senator Sessions suggest that he brings a religious
preference to the Department and that what he calls secular attorneys
would be, to him, suspect compared to Christian attorneys. That
distinction between a secular attorney and a religious attorney is one
that runs counter to very solid principles upon which my State was
founded. Roger Williams brought to us freedom of conscience.
Senator Sessions has called Breitbart News a bright spot. I must
disagree. Breitbart News is not, to me, a bright spot. Breitbart has
published baseless and inflammatory articles with titles like ``Birth
Control Makes Women Unattractive and Crazy.''
In fairness, I should disclose that Senator Sessions' nomination
carries an additional burden with me as the nominee of this President
and this White House. The need for an independent Attorney General has
rarely, if ever, been greater.
On the campaign trail, the American people witnessed Donald Trump
glorify sexual misconduct, mock a disabled reporter, and make
disparaging remarks about immigrants and minorities. We all witnessed
chants at Trump rallies of ``lock her up.'' At his confirmation
hearings, Senator Sessions excused these as ``humorously done.'' In
mass rallies that also featured people getting beaten and the press
caged and vilified, this didn't seem very humorous to many Americans. I
think Americans know that the good guys in the movie are not the ones
in the mob; the good guy is the lawman who stands on the jailhouse
porch and sends the mob home. To me, that ``lock her up'' chant was un-
American. I believe that across the country it made honest prosecutors'
stomachs turn.
Not surprisingly, many Americans are fearful of what the Trump
administration will mean for them, for their families, and for their
country.
The problems with this President did not end with the campaign.
President Trump and his family have brought more conflicts of interest
to the White House than all other modern Presidents and families
combined. The proposed Trump domestic Cabinet is an unprecedented swamp
of conflicts of interest, failures of disclosure and divestment, and
dark money secrets. We have not even been permitted, in the course of
our nomination advice-and-consent process, to explore the full depth of
that unprecedented swamp because the dark money operations of nominees
have been kept from us. In one case, thousands of emails are still
covered up. The Trump White House traffics in alternative facts,
operates vindictively, and is a haven for special interest influence.
None of this is good. All of this suggests that there will be more or
less constant occasion for investigation and even prosecution of this
administration.
Independence is at a premium. Nothing could have made this more clear
than the first disagreement between the Trump White House and the
Department of Justice, whose outcome was that the Acting Attorney
General--a woman with 30 years' experience in the Department, a career
prosecutor, former assistant U.S. attorney, former U.S. attorney, and
someone recognized for her leadership throughout the Department--was
summarily fired.

This is also not a good sign. In recent history, Attorneys General
Gonzales, Meese, and Mitchell were politically close to their
Presidents, and the Gonzales, Meese, and Mitchell tenures did not end
well.
Attorney General Mitchell worked for President Nixon. They met when
their New York law firms merged in the early 1970s, and they became law
partners. John Mitchell was the campaign manager for Nixon's 1968
Presidential campaign. There were signs that things weren't quite right
because when Nixon nominated Mitchell to be his Attorney General, he
appealed directly to FBI Director Hoover not to conduct the usual
background check. Mitchell ultimately resigned as Attorney General in
order to run President Nixon's reelection campaign. So the political
link between Mitchell and Nixon was very close, and sure enough,
scandal ensued. Attorney General Mitchell turned out to be a central
figure of the Watergate scandal. As the chairman of the reelection
committee, the famous CREEP, Mitchell was responsible for appointing G.
Gordon Liddy and approving the dirty tricks program while still
Attorney General.
That dirty tricks program ultimately included breaking into national
Democratic headquarters in the Watergate.

[[Page S863]]

The upshot of this was that Mitchell was charged with conspiracy,
obstruction of justice, and three counts of perjury. He was convicted
on all counts, and he served 19 months in prison.
Attorney General Edwin Meese was also very close to President Reagan.
Meese joined the 1980 Reagan Presidential campaign as Chief of Staff.
He ran the day-to-day campaign operations and was the senior issues
adviser. After the election, Edwin Meese was given the job of leading
the Reagan transition, and once in office, Reagan appointed Meese as
Counselor to the President. According to press accounts at the time,
Meese was known as someone who ``has known the President so long and so
well, he has become almost an alter ego of Ronald Reagan.'' That was
the political background between Meese and President Reagan.
Again, it did not end well. Meese came under scrutiny for his role in
the Iran-Contra scandal. The congressional committee that reported on
the Iran-Contra scandal in November 1987 determined that Meese had
failed to take appropriate steps to prevent members of the
administration from destroying critical evidence. An independent
counsel named Lawrence Walsh finished a report in 1993 that stated that
Meese had made a false statement when he said Reagan had not known
about the 1985 Iran-Contra deal. Iran-Contra was not the only
controversy that plagued Attorney General Meese. A company called
Wedtech Corporation was seeking Department of Defense contracts in the
early 1980s. The company hired Meese's former law school classmate and
his personal attorney, a lawyer named E. Robert Wallach, to lobby the
Reagan administration on its behalf. Attorney General Meese helped
Wedtech at Wallach's urging get a special hearing on a $32 million Army
engine contract, although the Army considered the company unqualified.
Well, the contract was awarded to Wedtech, and then one of Meese's top
deputies went to work for Wedtech.
The Federal criminal investigation that resulted led to the
conviction of E. Robert Wallach, the former law school classmate and
personal attorney of Meese, for whom he had set up the meetings with
the government.
Independent counsel James McKay investigated the Wedtech contract,
including investigating allegations of misconduct by Meese. While Meese
was never convicted, he resigned following the issuance of the
independent counsel's 800-page report.
Third is Attorney General Gonzales. Attorney General Gonzales was
close to then-Governor Bush in Texas. He was his general counsel. When
Governor Bush became President Bush, Gonzales came to Washington to
serve as White House Counsel. He was appointed Attorney General in
2005. During his tenure at the Department of Justice, there were
multiple investigations, many of which played out before the Senate
Judiciary Committee, involving the Warrantless Wiretapping Program, the
U.S. attorney's scandal, and inquiries into the Department's management
of the torture program legal opinions.
Ultimately, Members of both Houses of Congress called for Attorney
General Gonzales's resignation--or demanded that he be fired by the
President--and Attorney General Gonzales resigned.
There is a track record here of Attorneys General who are politically
close to a President coming into harm's way and doing poorly in the
Department. One particular office that is vulnerable to this kind of
undue proximity, and failure of independence, is a body in the
Department of Justice called the Office of Legal Counsel. Jack
Goldsmith, a former head of the Office of Legal Counsel--and a
Republican, by the way--testified before the Senate Judiciary Committee
that ``more than any other institution inside the executive branch, OLC
is supposed to provide detached, apolitical legal advice.'' And it has
an honorable tradition of providing such advice to a remarkable degree,
but under the Bush administration, the OLC departed from that
tradition. It came up in a number of ways. The first was during our
investigation into President Bush's Warrantless Wiretapping Program.
When Office of Legal Counsel memos supporting the program came to
light, I plowed through a fat stack of those classified opinions that
were held in secret over at the White House and pressed to have some of
the statements declassified. Here are some of the statements that were
declassified found in those OLC opinions:

An Executive order cannot limit a President. There is no
constitutional requirement for a President to issue a new
Executive order whenever he wishes to depart from the terms
of a previous Executive order.

So this means a President could issue an Executive order, have it
published in the Federal Register, put it forward as the policy of the
administration--a direction to all the attorneys in the
administration--and then secretly depart from it without ever changing
what the public is told about the policy. A theory like this allows the
Federal Register, where these Executive orders are assembled, to become
a screen of falsehood, behind which illegal programs can operate in
violation of the very Executive order that purports to control the
executive branch. That was just one.
Another one I will quote: ``The President exercising his
constitutional authority under Article II, can determine whether an
action is a lawful exercise of the President's authority under Article
II.''
If that sounds a little bit like pulling yourself up by your own
bootstraps, well, it sounds that way to me, too, and it runs contrary
to a fairly basic constitutional principle announced in the famous case
of Marbury v. Madison--which every law student knows--which says: ``It
is emphatically the province and duty of the judiciary to say what the
law is.''
A third example--and this is another quote from an OLC opinion: ``The
Department of Justice is bound by the President's legal [opinions.]''
Well, if that is true, what is the point of a President sending
matters over to the Department of Justice for legal review? If the
President did it, and it is therefore automatically legal, there would
be no function to the Department of Justice accomplishing that legal
review.
So in this area of warrantless wiretapping, the Office of Legal
Counsel within the Department of Justice came up with what seemed to be
quite remarkable theories in the privacy and secrecy of that office, in
those classified opinions that are really hard to justify in the broad
light of day. That is why independence matters so much. Obviously, the
White House wanted those opinions to say what they said, but in the
clear light of day, they don't hold up.
Let us move on from the warrantless wiretapping opinions of the Bush
Department of Justice to the OLC opinions that the Bush administration
used to authorize waterboarding of detainees. Again, I was one of the
first Senators to review the OLC opinions, and when I read them, I will
say I was quite surprised. I was surprised not just by what they said
but by what they didn't say. One thing that was entirely omitted was
the history of waterboarding. Waterboarding was used by the Spanish
Inquisition, by the Khmer Rouge in Cambodia, by the French-suppressing
revolts in Algeria, by the Japanese in World War II, and by military
dictatorships in Latin America. The technique, as we know, ordinarily
involves strapping a captive in a reclining position, heels overhead,
putting a cloth over his face, and pouring water over the cloth to
create the impression of drowning. Senator John McCain, held captive
for more than 5 years by the North Vietnamese, said this of
waterboarding:

It is not a complicated procedure. It is torture.

American prosecutors and American judges in military tribunals after
World War II prosecuted Japanese soldiers for war crimes for torture on
the evidence of their waterboarding American prisoners of war. None of
that history appeared in the Office of Legal Counsel opinion.
The other major thing the Office of Legal Counsel overlooked was a
case involving a Texas sheriff who was prosecuted as a criminal for
waterboarding prisoners in 1984. Let's start with the fact that this
was a case that was brought by the Department of Justice. It was the
U.S. attorney for that district who prosecuted the sheriff. The
Department of Justice won the case at trial.
The case went up on appeal to the U.S. Court of Appeals for the Fifth
Circuit, the court one level below the U.S. Supreme Court. In its
appellate decision, the U.S. Court of Appeals for the

[[Page S864]]

Fifth Circuit described the technique as ``water torture.''
All a legal researcher had to do was to type the words ``water'' and
``torture'' into the legal search engines Lexis or Westlaw, and this
case would come up: United States v. Lee. You can find it at 744 F2d
1124.
Over and over in that published appellate opinion by the second
highest level of court in the Federal judiciary, they described the
technique as torture. Yet the Office of Legal Counsel never mentioned
this case in their decision.
Ordinarily, what a proper lawyer is supposed to do, if they find
adverse precedent--i.e., decisions that appear to come down a different
way than the argument the lawyer is making--is they report the decision
to the court, and then they try to distinguish it, they try to convince
the judge they are before why that case was either wrongly decided or
does not apply on the facts of their case. But the Office of Legal
Counsel did not offer any effort to distinguish the Fifth Circuit
decision; it simply pretended it did not exist or it never found it. It
is hard to know which is worse.
At sentencing in the Lee case, the district judge admonished the
former sheriff who had been found guilty of waterboarding: ``The
operation down there would embarrass the dictator of a country.''
Well, it is also pretty embarrassing when what is supposed to be the
institution inside the executive branch that is supposed to provide
detached, apolitical legal advice in an honorable tradition of
providing such advice, to a remarkable degree, to quote Professor
Goldsmith, misses a case so clearly on point.
That was not the only OLC error. In addition to the warrantless
wiretapping statements, in addition to the Office of Legal Counsel
opinions on waterboarding, they undertook a review of the Foreign
Intelligence Surveillance Act.
In the Foreign Intelligence Surveillance Act is something called an
exclusivity provision. It says this: The Foreign Intelligence
Surveillance Act ``shall be the exclusive means by which electronic
surveillance and the interception of domestic wire, oral and electronic
communications may be conducted.'' Shall be the exclusive means. Seems
pretty clear. But the Office of Legal Counsel said about that
language--I quote them here: Unless Congress made a clear statement in
the Foreign Intelligence Surveillance Act that it sought to restrict
Presidential authority to conduct wireless searches in the national
security area, which it has not, then the statute must be construed to
avoid such a reading--which it has not.
Congress said that this shall be the exclusive means. If the OLC was
not happy reading the language of the statute, they could go to a court
where this language had already been construed. The decision was called
United States v. Andonian, and the judge in that case ruled that this
language, the exclusivity clause--I am quoting the court's decision--
``reveals that Congress intended to sew up the perceived loopholes
through which the President had been able to avoid the warrant
requirement.''
The exclusivity clause makes it impossible for the President to opt
out of the legislative scheme by retreating to his inherent executive
sovereignty over foreign affairs. The exclusivity clause assures that
the President cannot avoid Congress's limitations by resorting to
inherent powers.
In the face of that case law, the Office of Legal Counsel held that
Congress had not said what it said and this was not exclusive language,
even though a court had said so.
The reason I share those three stories is because it really matters
in important issues when the Department of Justice has the capability
and the courage to stand up to the President. It really matters when
they get it wrong. It really matters when they say things that simply
are not correct or legally sound in order to support a warrantless
wiretapping program. It really matters when they don't find the case on
point to evaluate whether waterboarding is torture. It really matters
when they go around a clear congressional statute which a judge has
said closes the door to going around that statute by simply saying
privately: Well, that door is not actually closed. It matters.

I have insufficient confidence that as Attorney General, Senator
Sessions will be able to stand up to the kind of pressure we can expect
this White House to bring. We know that this White House operates
vindictively and likes to push people around.
We found out recently that Mr. Bannon went running over to see
General Kelly to tell him to undo the green card waiver of the Muslim
ban. Thankfully General Kelly refused and stuck by his duty. But this
is the kind of White House we have, where they try to push people
around to do the wrong thing.
They are so contemptuous of authority outside their own that they are
willing to attack a Federal judge who disagrees with them, calling him
a ``so-called judge.'' They are willing to fire an Acting Attorney
General who disagrees with them, firing her summarily and accusing her
of betrayal. The pressure this White House can be expected to bring on
the Department of Justice to conform itself not to the law but to the
political demands of the President is going to be intense.
Moreover, the conflicts of interest that crawl through this White
House and that crawl over this swamp Cabinet offer every reasonable
cause to believe that there will have to be investigations and
prosecutions into this administration.
That combination of a target-rich environment in this administration
for investigation and prosecution with a vindictive White House that
does not hesitate to try to bully officials into conformity calls for
the highest degree of independence. I do not feel Senator Sessions
makes that standard. He was too close to the President during the
political race. He has not stood up against any of those excesses I
have mentioned since then. It is with regret that I must say I will not
be able to vote to confirm him.
One of the reasons I became a lawyer was because of ``To Kill a
Mocking Bird.'' As a kid, I just loved Atticus Finch. He is great in
the movie. He is even better in the book. Some of the things that
Atticus Finch says about the law and about human nature are so brave
and so profound that from the first time I read that book, boy, I would
love to have been Atticus Finch. I would love to have had the chance to
stand in the breach when everyone was against you and stick up for
doing something that was right. Gosh, that felt so great.
Like the scene in many movies, the hero is not a part of the mob, not
carrying a torch toward the jailhouse; the hero is the lonely lawman
who sits on the porch and won't let the mob in. That is what I think we
are going to need in our next Attorney General.
I yield the floor.
The PRESIDING OFFICER (Mr. Sullivan). The Senator from Oregon.
Mr. MERKLEY. Mr. President, I will be speaking later tonight, perhaps
about 2 o'clock, possibly on through 4 o'clock, but I wanted to take a
few moments now and share some of the letter that was discussed earlier
and share it in a fashion that is appropriate under our rules. I would
like to thank very much my colleague from New Jersey for yielding a few
minutes in order to do so.
I think it is important for us to understand the context of what this
letter was all about. This letter was a statement of Coretta Scott
King, and it was dated Thursday, March 13, 1986. She noted: ``My
longstanding commitment which I shared with my husband Martin''--of
course that is Martin Luther King--``to protect and enhance the rights
of black Americans, rights which include equal access to the Democratic
process, tells me to testify today.'' Then in her letter she goes on to
essentially present an essay about the essential role of voting rights
in our country, and so I will continue to read in that regard. She
says:

The Voting Rights Act was and still is vitally important to
the future of democracy in the United States. I was
privileged to join Martin and many others during the Selma to
Montgomery march for voting rights in 1965. Martin was
particularly impressed by the determination to get the
franchise of blacks in Selma and neighboring Perry County. As
he wrote--

Now she is quoting Martin Luther King--

``Certainly no community in the history of the negro
struggle has responded with the enthusiasm of Selma and her
neighboring

[[Page S865]]

town of Marion. Where Birmingham depended largely upon
students and unemployed adults to participate in nonviolent
protests of the denial of the franchise, Selma has involved
fully 10 percent of the negro population in active
demonstrations and at least half the negro population of
Marion was arrested on 1 day.''

That was the end of the quote from her husband. She continued
writing:

Martin was referring, of course, to a group that included
the defendants recently prosecuted for assisting elderly and
illiterate blacks to exercise that franchise.
Each time she refers to franchise, she is referring to this
fundamental right to vote under our Constitution.
And she continued:

In fact, Martin anticipated from the depth of their
commitment 20 years ago, that a united political organization
would remain in Perry County long after the other marchers
had left. This organization, the Perry County Civic League,
started by Mr. Turner, Mr. Hogue, and others, as Martin
predicted, continued ``to direct the drive for votes and
other rights.''

That is a quote from her husband. And then she continued. In this
letter, she says:

In the years since the Voting Rights Act was passed, Black
Americans in Marion, Selma, and elsewhere have made important
strides in their struggle to participate actively in the
electoral process. The number of Blacks registered to vote in
key Southern states has doubled [she said] since 1965. This
would not have been possible without the Voting Rights Act.

She continues in her essay. She says:

However, Blacks still fall far short of having equal
participation in the electoral process. Particularly in the
South, efforts continue to be made to deny Blacks access to
the polls, even where Blacks constitute the majority of the
voters. It has been a long up-hill struggle to keep alive the
vital legislation that protects the most fundamental right to
vote. A person who has exhibited so much hostility to the
enforcement of those laws, and thus, to the exercise of those
rights by Black people should not be elevated to the federal
bench.

She continues in her letter to note:

Twenty years ago, when we marched from Selma to Montgomery,
the fear of voting was real, as the broken bones and bloody
heads in Selma and Marion bore witness. As my husband wrote
at the time, ``it was not just a sick imagination that
conjured up the vision of a public official sworn to uphold
the law, who forced an inhuman march upon hundreds of Negro
children; who ordered the Rev. James Bevel to be chained to
his sickbed; who clubbed a Negro woman registrant, and who
callously inflicted repeated brutalities and indignities upon
nonviolent Negroes peacefully petitioning for their
constitutional right to vote.

This is what Martin Luther King is referring to was the specific
actions of sheriffs in the South who were representing the law. And
then Coretta Scott King continued:

Free exercise of voting rights is so fundamental to
American democracy that we cannot tolerate any form of
infringement of those rights. Of all the groups who have been
disenfranchised in our nation's history, none has struggled
longer or suffered more in the attempt to win the vote than
Black citizens. No group has had access to the ballot box
denied so persistently and intently.
Over the past century, a broad array of schemes have been
used in attempts to block the Black vote. The range of
techniques developed with the purpose of repressing black
voting rights run the gamut from the straightforward
application of brutality against black citizens who tried to
vote, to such legalized frauds as ``grandfather clause''
exclusions and rigged literacy tests.

Now she proceeds to note that other techniques were used to
intimidate Black voters and that included investigations into the
absentee voting process, and this concerned her a great deal. And she
notes that Whites have been using the absentee process to their
advantage for years without incident. Then, when Blacks, realizing its
strength, began to use it with success, criminal investigations were
begun.
Then she proceeds to address that there were occasions where
individuals with legal authority chose to initiate cases specifically
against African Americans while ignoring allegations of similar
behavior by Whites, ``choosing instead to chill the exercise of the
franchise by Blacks by his misguided investigation.''
Let me continue later in the letter. She addresses her concern over
the prosecution illegally withholding from the defense critical
statements made by witnesses and that witnesses who did testify were
pressured and intimidated into submitting the ``correct'' testimony.
That is incorrect testimony.

Many elderly Blacks were visited multiple times by the FBI
who then hauled them over 180 miles by bus to a grand jury in
Mobile when they could have more easily testified at a grand
jury twenty miles away in Selma. These voters, and others,
have announced they are now never going to vote again.

She obviously is addressing issue after issue that affected the Black
franchise, the franchise of African Americans, the ability to vote, and
then she returns to her essay about how important this is.

The exercise of the franchise is an essential means by
which our citizens ensure that those who are governing will
be responsible. My husband called it the number one civil
right. The denial of access to the ballot box ultimately
results in the denial of other fundamental rights. For, it is
only when the poor and disadvantaged are empowered that they
are able to participate actively in the solutions to their
own problems.

Coretta Scott King continues:

We still have a long way to go before we can say that
minorities no longer need to be concerned about
discrimination at the polls. Blacks, Hispanics, Native
Americans and Asian Americans are grossly underrepresented at
every level of government in America. If we are going to make
our timeless dream of justice through democracy a reality, we
must take every possible step to ensure that the spirit and
intent of the Voting Rights Act of 1965 and the Fifteenth
Amendment of the Constitution is honored.
The federal courts hold a unique position in our
constitutional system, ensuring that minorities and other
citizens without political power have a forum in which to
vindicate their rights. Because of this unique role, it is
essential that the people selected to be federal judges
respect the basic tenets of our legal system: respect for
individual rights and a commitment to equal justice for all.
The integrity of the Courts, and thus the rights they
protect, can only be maintained if citizens feel confident
that those selected as federal judges will be able to judge
with fairness others holding differing views.

And she concludes her letter having examined a number of incidents in
the historical record with this conclusion:

I do not believe Jefferson Sessions possesses the requisite
judgment, competence, and sensitivity to the rights
guaranteed by the federal civil rights laws to qualify for
appointment to the federal district court.

And that is the context of her letter; that voting rights matter a
tremendous amount. I applaud the efforts of my colleague from
Massachusetts to make this point and share this essay with the body of
the Senate earlier this evening.
Mr. WHITEHOUSE. Will the Senator yield for a question?
Mr. MERKLEY. I yield.
Mr. WHITEHOUSE. Mr. President, may I ask the Senator, through the
Chair, if the letter from which he just read has a date?
Mr. MERKLEY. Well, the answer is that it does have a date, and that
is Thursday, March 13, 1986.
Mr. WHITEHOUSE. 1986. And is the Senator aware of the occasion that
brought this letter to the Senate?
Mr. MERKLEY. I am.
Mr. WHITEHOUSE. What was that occasion?
Mr. MERKLEY. That occasion was a hearing before the Senate Judiciary
Committee regarding the potential appointment of the individual to the
U.S. District Court for the Southern District of Alabama.
Mr. WHITEHOUSE. And this letter was made a matter of record in that
hearing?
Mr. MERKLEY. I do not know if it was made a matter of record.
My impression initially was that she had read this letter at the
hearing, but I am not sure if it was presented in person or as a
document submitted to the committee.
Mr. WHITEHOUSE. But clearly the content of this letter has been a
matter known to the Senate and, depending on what the facts may show,
may actually have been a record of the Senate for more than 30 years.
Mr. MERKLEY. I believe that is probably correct.
Mr. WHITEHOUSE. So a Senator of the United States has been accused of
violating a rule of the Senate for restating to the Senate a phrase
that has been a matter of record in the Senate--if, indeed, that is the
case--for 30 years.
I yield the floor.

____________________