[Congressional Record Volume 163, Number 199 (Wednesday, December 6, 2017)]
[Senate]
[Pages S7883-S7886]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   BIPARTISAN CONGRESSIONAL OVERSIGHT

  Mr. GRASSLEY. Mr. President, I have been doing oversight of the 
executive branch for a very long time. I have done it as ranking 
member, I have done it as chairman, I have done it when my party held 
the White House, and I have done it when the other party held the White 
House.
  Earlier this year, I stood up for the rights of my Democratic 
colleagues to do oversight of the Trump administration, even while they 
are in the minority. I did it because it was the right thing to do. 
Lots of people give lip service to the notion of bipartisan oversight, 
but very few actually practice it. It is tough. You have to be willing 
to work with colleagues in the other party to ask tough questions of 
your own political allies.
  You can't just ask. If you actually want answers, you have to follow 
through. True bipartisan oversight is impossible unless it is a two-way 
street. If Democrats are unwilling to ask hard questions and force 
answers from their own political allies, then there is simply no way to 
move forward together in good faith. Both sides need to be committed to 
getting the whole story--not just the half they think helps their side. 
Regardless of whether my Democratic colleagues join me, I am interested 
in that whole story.
  There are two major controversies plaguing the credibility of the 
Justice Department and the FBI right now. On the one hand, the Trump-
Russia investigation, and then on the other hand, the handling of the 
Clinton investigation. Any congressional oversight related to either 
one of these topics is not credible without also examining the other.
  Both cases were active during last year's campaign. Both cases have 
been linked to the firing of the FBI Director. I have been trying to 
explain this to my Democratic colleagues for months. The political 
reality is, half of the country thinks our law enforcement 
establishment gave Hillary Clinton and her aides a pass. These 
questions go to the heart of the integrity of our Federal law 
enforcement and justice system.
  They are not going to go away just because Clinton lost the election. 
The independent inspector general at the Justice Department certainly 
isn't ignoring that issue. Democrats and Republicans in Congress have 
asked the inspector general to look into a host of issues involving the 
handling of the Clinton investigation during the campaign. His hard 
work has already uncovered some pretty disturbing information.
  Over the past week, the press has reported that an FBI agent was 
removed from the special counsel's team and demoted at the FBI due to--
what do you think--political bias. The agent was at the very center of 
both of these high-profile investigations. High-ranking FBI agent Peter 
Strzok reportedly used his work phone to send anti-Trump and pro-
Clinton text messages to another FBI agent with whom he was having an 
illicit and immoral relationship.
  This man was the Deputy Assistant Director for the FBI's 
Counterintelligence Division. He worked on the investigation of former 
Secretary of State Hillary Clinton's use of a private server to 
conduct--what do you think--official business.
  According to news reports and according to documents, it looks like 
he also helped draft Comey's controversial public statement ending that 
case of Hillary Clinton and emails. Specifically, he apparently edited 
out language that suggested legal jeopardy for Clinton. Press reports 
state he opened the FBI's investigation of allegations of collusion 
between the Trump campaign and Russia. It has been reported that he was 
one of the two FBI agents who interviewed former National Security 
Advisor Michael Flynn.

  Can you imagine if the shoe were on the other foot? What if a high-
ranking FBI official got caught expressing pro-Trump political bias on 
his work phone while leading what is supposed to be a professional, 
objective, and nonpartisan search for the truth? Why, of course, if 
that were happening, Democrats would go ballistic, and they would have 
every right to go ballistic.
  This man held a crucial position of public trust, charged with 
protecting this country from counterintelligence threats. He was a key 
part of Director Comey's Clinton investigation and his Russia 
investigation. I have been saying for months that these two cases are 
forever linked. You cannot separate them.
  The same people in the same agency handled both cases at the same 
time, and now a huge segment of the American people have no faith that 
these cases were treated, as they should be, impartially. I don't blame 
the American people.
  It is interesting that before he was fired, FBI Director Comey 
lectured our Judiciary Committee and lectured the public about how the 
men and women of the FBI ``don't give a rip about politics.''
  I believe that for most of the hard-working, rank-and-file FBI 
agents, that is absolutely true. Their jobs normally don't involve 
controversial political questions, and their own political views aren't 
relevant because they are professionals.
  But no human is perfect, and no organization is immune from error. It 
does no good for the leaders of the FBI to pretend that its senior 
management is above all reproach, that they would never show any 
improper political bias, and that they would never make mistakes.
  The only way to protect against bias or misconduct is to recognize 
that it exists and to confront it, not to hide it from Congress and the 
American people.
  The law and the facts, whatever they are, should guide the work of 
the FBI and the Justice Department. If politics infected the 
Department's decisions during a hotly contested national political 
campaign, we would have to look at it. That is true whether it occurred 
in the Clinton case, or in the Trump-Russia case, or if it included 
both.
  Anyone claiming to do bipartisan oversight of the executive branch 
has to examine both. Ignoring either half of this story simply will not 
be credible with the other half of the country.
  Everyone thought Hillary Clinton was going to be President--everyone. 
The perception of a huge segment of the public is that the whole 
Washington establishment worked overtime to get her name cleared before 
the Democratic Convention last summer. The FBI even called its case 
``Mid Year Exam.''
  Director Comey testified that the former Attorney General refused 
even to name the FBI's work and investigation. That is how political it 
became. It was really the Attorney General who was at that time 
insisting on calling it not an investigation but ``a matter''--m-a-t-t-
e-r--whatever that means.
  We have learned that Director Comey started drafting his exoneration 
statement long before the investigation was done. It looks like there 
was a rush to clear her. It looks like the fix was in. I know Democrats 
don't want to hear that. They only want to talk about Trump.
  There is a double standard here in the way they desperately want to 
go after the President but ignore all other potential wrongdoing in the 
previous administration. It stinks to high heaven.
  But Democrats have visions of impeachment dancing in their heads. 
Rather than reserve judgment and carefully examine the facts--all of 
the facts--they are jumping to all sorts of conclusions.
  The Judiciary Committee has an obligation to do a deep dive into the 
firing of James Comey and both of the two controversial political 
investigations that preceded it. Unfortunately, the Democrats are 
preventing any truly bipartisan path forward. They appear to be 
assuming the conclusion at the outset.
  They complain publicly, and they complain privately that I am not 
doing enough to investigate ``obstruction of justice,'' but 
``obstruction of justice'' is a legal term of art. It is a conclusion, 
not evidence. That is not how I conduct my investigations.
  I do not make my conclusions first and try to shoehorn the facts to 
fit my conclusions. I try to get the facts and then go where those 
facts lead.
  Let's consider examples of where investigations have uncovered facts 
that point to ``obstruction.''

[[Page S7884]]

  Bill Clinton and Richard Nixon both lied to investigators. That is 
obstruction, and that behavior got one of them impeached and forced the 
other to resign.
  We also recently learned that Hillary Clinton's lawyers used a 
program called BleachBit to delete 33,000 emails under subpoena by the 
House of Representatives.
  Now, those government records--and they are government records--can 
never be recovered. Those facts certainly look like obstruction, but we 
don't have all of the facts here yet.
  So far, I have seen no credible evidence that President Trump has 
told anyone to lie. I also have seen no credible evidence that he or 
his aides have destroyed records being sought by investigators.
  Many people firmly believe that the President fired the FBI Director 
in order to improperly halt an investigation of Lieutenant General 
Flynn.
  Now, I am not only willing but I am eager to delve deeply into all of 
the circumstances surrounding Director Comey's removal, but to claim at 
the outset that his removal was obstruction of justice puts the cart 
before the horse.
  Mr. President, I ask unanimous consent to have printed in the Record 
an article by the well-known liberal law professor Alan Dershowitz.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From The Boston Globe, Dec. 5, 2017]

  Senator Dianne Feinstein may be provoking a constitutional conflict

                        (By Alan M. Dershowitz)

       Senator Dianne Feinstein may be provoking a constitutional 
     conflict between the legislative and executive branches of 
     our government. The California Democrat has said that 
     Congress is investigating whether President Trump engaged in 
     obstruction of justice by firing FBI Director James Comey and 
     taking other actions to halt the Russian investigation.
       Feinstein said: ``I think what we're beginning to see is 
     the putting together of a case of obstruction of justice, I 
     think we see this in the indictments--the four indictments 
     and pleas that have just taken place.
       ``And I see it, most importantly, in what happened with the 
     firing of Director Comey, and it is my belief that that is 
     directly because he did not agree to lift the cloud of the 
     Russia investigation, that's obstruction of justice.''
       No, it isn't.
       Feinstein does not seem to understand that under our 
     constitutional system of separation of powers, the president 
     cannot be charged with a crime for merely exercising his 
     authority under Article 2 of the Constitution. This authority 
     includes firing the director of the FBI, for whatever reason 
     or no reason. It also includes the authority to tell 
     prosecutors who to prosecute and who not to. A president's 
     motives may not be the basis for a criminal charge. Nor is it 
     proper to psychoanalyze the president in a search for 
     possible evil motives. All presidents act out of mixed 
     motives, including self-aggrandizement, political advantage, 
     partisan benefit, and personal pique.
       Consider, for example, President Barack Obama's benighted 
     decision, as a lame duck, to tie the hands of his successor 
     by unilaterally changing the longstanding American policy 
     with regard to the United Nations condemnation of Israel. The 
     president, over the objection of many members of Congress and 
     most Americans, instructed his UN ambassador not to veto a 
     Security Council Resolution that declared the Western Wall, 
     the Jewish Quarter of Jerusalem, and the access roads to 
     Hebrew University and Hadassah Medical Center hospital, to be 
     illegally occupied territory. Why did Obama exercise his 
     authority in so pernicious a manner? I believe, and many 
     Americans believe, that he did it out of spite and pique: to 
     get even with Prime Minister Benjamin Netanyahu. If I am 
     right, and I am sure that this was at least one of his 
     motivating considerations, could he be charged with a crime 
     for abusing his authority for personal vengeance? Of course 
     not. We can condemn him, as I and others have. But we must 
     all acknowledge that he had the authority to do what he did, 
     regardless of his bad motives.
       Ironically, it was the effort of the Trump administration 
     to prevent the lame-duck president from tying the hands of 
     the president-elect, by not vetoing the UN resolution, that 
     formed the basis for the lying charge levied against General 
     Michael Flynn. For whatever reason, Flynn lied--but what he 
     lied about was entirely lawful.
       Trump would have been within his constitutional authority 
     to pardon Flynn, as Flynn hoped he would do. That would have 
     kept him from cooperating with the special counsel and 
     becoming a government witness. Had the president done that, 
     he would have acted entirely lawfully, as President George 
     H.W. Bush did when he pardoned Caspar Weinberger in order to 
     stop the Iran-Contra investigation. Although special 
     prosecutor Lawrence Walsh complained bitterly that the Bush 
     presidential pardon had the intent and effect of completely 
     closing down his investigation, no one suggested that Bush 
     had committed the crime of obstruction of justice. Why? 
     Because that was Bush and this is Trump--a pure ad hominem 
     distinction that should be given no weight by the law.
       It would do violence to our constitutional separation of 
     powers if a president could be charged with a crime simply 
     for exercising his constitutional authority. Checks and 
     balances do not include the power to criminalize--through the 
     vague obstruction of justice statute--presidential actions 
     authorized by Article 2. Both Presidents Richard Nixon and 
     Bill Clinton were accused of obstruction of justice, but in 
     both cases they were accused of going well beyond the mere 
     exercise of their constitutional authority. Nixon was accused 
     of telling subordinates to lie to the FBI, paying hush money 
     to potential witnesses, and destroying evidence. Clinton was 
     accused of trying to get witnesses, such as Monica Lewinsky, 
     to lie. These charges constitute acts--independent crimes--
     that go well beyond a presidential authority. Trump has not 
     been accused of any acts that would independently constitute 
     crimes. The entire case against him, as outlined by 
     Feinstein, consists of constitutionally authorized acts that 
     were well within the president's authority under Article 2. 
     That is an enormous and consequential difference under our 
     system of separation of powers.
       So, until and unless there is proof that Trump has 
     committed an independent criminal act--beyond acts that are 
     within his constitutional prerogative--it would be 
     unconstitutional to charge him with obstruction of justice, 
     regardless of what Feinstein and others believe his motive 
     may have been.

  Mr. GRASSLEY. Now, Professor Dershowitz is not a fan of Donald Trump, 
and he and I probably would not agree on many issues, generally 
speaking.
  The title of his article is ``Senator Dianne Feinstein may be 
provoking a constitutional conflict.'' Professor Dershowitz strongly 
disagrees with the ranking member's statement on ``Meet the Press'' the 
weekend that Comey was fired: `` . . . directly because he did not 
agree to lift the cloud of the Russia investigation, that's obstruction 
of justice.''
  This is how Professor Dershowitz replied:

       No, it isn't. . . . under our constitutional system of 
     separation of powers, the president cannot be charged with a 
     crime for merely exercising his authority under Article 2 of 
     the Constitution. This authority includes firing the director 
     of the FBI, for whatever reason or no reason.

  That is not to say that the President can engage in illegal conduct. 
But the professor's point, as I understand it, is that when a President 
takes an action that is within the scope of clear constitutional 
authority and discretion, it should be a political question not a 
criminal one.
  The Judiciary Committee still needs to investigate the circumstances 
surrounding Comey's firing and the Flynn investigation. Those facts may 
have nothing to do with the obstruction but could still provide 
important insight about the potential reforms of how the FBI and the 
Justice Department operate.
  For example, he explains how President Trump could have halted any 
investigation of Flynn if he really wanted to. This is what the 
professor says:

       Trump would have been within his constitutional authority 
     to pardon Flynn, as Flynn hoped he would do. That would have 
     kept him from cooperating with the special counsel and 
     becoming a government witness. Had the president done that, 
     he would have acted entirely lawful, as President George H.W. 
     Bush did when he pardoned Caspar Weinberger in order to stop 
     the Iran-Contra investigation. Although special prosecutor 
     Lawrence Walsh complained bitterly that the Bush presidential 
     pardon had the intent and effect of completely closing down 
     his investigation, no one suggested that Bush had committed 
     the crime of obstruction of justice.

  Then, finally, Professor Dershowitz explains what real obstruction 
looks like and how it is different from a President's merely exercising 
his constitutional authority. So I, once again, quote the professor:

       Both Presidents Richard Nixon and Bill Clinton were accused 
     of obstruction of justice, but in both cases they were 
     accused of going well beyond the mere exercise of their 
     constitutional authority. Nixon was accused of telling 
     subordinates of lie to the FBI, paying hush money to 
     potential witnesses, and destroying evidence. Clinton was 
     accused of trying to get witnesses, such as Monica Lewinsky, 
     to lie. These charges constituted acts--independent crimes--
     that go well beyond presidential authority. Trump has not 
     been accused of any facts that would independently constitute 
     crimes. The entire case against him, as outlined by 
     Feinstein, consists of constitutionally authorized acts that

[[Page S7885]]

     were well within the president's authority under Article 2. 
     That is an enormous and consequential difference under our 
     system of separation of powers.

  But our constitutional system of checks and balances is too important 
to throw it aside when it isn't politically convenient. You don't have 
to be a Trump fan to worry about the consequences of taking shortcuts 
in going after your political opponents. That is why bipartisan 
investigations are so very valuable.
  When it works, a bipartisan inquiry can provide comfort that all 
angles have been explored and explored thoroughly.
  But it takes two to tango, as they say.
  Earlier this year, Ranking Member Feinstein expressed concerns about 
reports that former Attorney General Lynch asked Director Comey to 
downplay the FBI's investigation as merely, a ``matter'' instead of 
using the term ``investigation'' during the campaign. Yet, since then, 
the ranking member has told me plainly that she will not join in any 
oversight of the FBI's Clinton email investigation.
  Even on Trump-Russia oversight, where we have been able to cooperate 
a great deal, there have been similar problems.
  First, all year, I have wanted to learn more about the origins of the 
dossier that largely kick-started the FBI's investigation of the Trump 
campaign.
  In July, the ranking member joined me in a bipartisan letter seeking 
voluntary cooperation from the firm that produced the dossier. The 
dossier was based largely on Russian sources within Russia and was put 
together by a former British spy. It made salacious and unverified 
claims about Trump. The company responsible for producing it--Fusion 
GPS--was uncooperative.
  In response to our bipartisan request, it dumped on the committee 
about 32,000 pages of press clippings and 8,000 pages that were 
entirely blank. Since then, it has provided zero additional documents.

  The founder of Fusion GPS initially indicated that he would rely on 
his Fifth Amendment right against self-incrimination rather than 
testify at the committee hearing in July. He later agreed to a private 
staff interview but refused to answer dozens of key questions.
  I would like to compel him to answer questions and compel him to 
provide the documents that Senator Feinstein and I both asked him in 
July to provide voluntarily, but under our committee rules, I don't 
have the authority to do that on my own.
  Why would Democrats not want to follow up and get the documents from 
Fusion GPS that we already asked for together--in other words, in a 
bipartisan way? Do they not want to know more about how this company 
put together its anti-Trump dossier from Russian Government sources?
  Well, in light of recent news, the resistance from Democrats to this 
line of Trump/Russia inquiry is now a little more understandable. It 
turns out that the Clinton campaign and the Democratic National 
Committee are the ones that paid Fusion GPS for the information they 
gathered from Russian Government sources.
  I don't know whether the ranking member or her staff knew the facts 
earlier this year when I was trying to persuade her to do bipartisan 
followup work with Fusion GPS, but I do know that unless both sides are 
willing to ask tough questions no matter where the facts lead, there 
can be no bipartisan oversight.
  We have learned that the Democratic National Committee paid for an 
anti-Trump dossier based on information from Russian Government 
sources. Second, we have learned that the inspector general uncovered 
evidence of partisan bias by a senior FBI official at the center of 
both the Clinton and the Trump-Russia investigations, which led to his 
dismissal from the Mueller team.
  Before that news broke, back in October of this year, I wrote to the 
FBI official requesting voluntary cooperation and a private transcribed 
interview with the committee. The ranking member did not sign that 
letter. The committee has received no letter in reply. We are still 
waiting for documents from the FBI about his and other officials' 
participation in the draft Comey statement.
  The FBI should comply voluntarily, but if they don't, I would issue a 
subpoena to require that the documents be provided and that the witness 
sit for a deposition. However, under our committee rules, I don't have 
the authority to do that without support from the ranking member.
  Finally, I have long had concerns that the scope of the FBI Clinton 
investigation was artificially narrow. Recent revelations about these 
text messages showing political bias only heighten these concerns.
  In recent Federal court rulings, the FBI said that the scope of the 
investigation was limited in two ways. First, it was limited to two 
issues dealing with the handling of classified information. Second, the 
scope of the FBI review was limited to the time when former Secretary 
Clinton was at the State Department. But what if there was evidence of 
crime not related to the mishandling of classified information? What if 
the facts showed some obstruction such as intentional destruction of 
documents after she was Secretary of State? Why exclude those topics 
from the scope of the inquiry? Who made those decisions? Why were those 
decisions made? Was there any political bias in those decisions? 
Certain areas should not be declared off limits beforehand in an 
investigation. An investigation should go--common sense--where the 
facts take it.
  In multiple letters to the FBI last year, I raised concerns about the 
scope of the FBI investigation. I asked Director Comey back in May of 
2016 whether the Justice Department had improperly narrowed the scope 
of the investigation to look at the mishandling of classified 
information and ignore other important legal issues. I wish to quote 
from that letter:

       If federal records on the private server were hidden or 
     destroyed, then there may have been a violation of 18 USC 
     Section 2071, which prohibits concealing or destroying such 
     Federal records.
       If any of the deleted emails were responsive to 
     Congressional inquiries or to agency inquiries, such as ones 
     from the State Department Inspector General, then there may 
     have been violations of 18 USC Sections 1505 and 1519, 
     respectively.

  Later in my letter, I specifically asked whether the Justice 
Department limited the FBI's investigation in any way.
  Then-Director Comey eventually responded months later. He claimed 
that the FBI did investigate whether the unlawful obstruction of 
Federal records occurred. But an FBI agent said under penalty of 
perjury that the FBI investigation did not include destruction of 
Federal records. So which is it? Who is telling the truth? The FBI 
agent who signed the affidavit, or is Mr. Comey right? Did the FBI 
really examine whether Secretary Clinton and her associates used the 
server to avoid Federal records retention requirements, or did Mr. 
Comey simply pay lipservice to that concern and focus only on 
classification issues?
  Understanding what really happened is incredibly important, and let 
me tell my colleagues why. During the course of the FBI's 
investigation, it recovered thousands of work-related emails that were 
not turned over to the State Department by Secretary Clinton. The FBI 
also recovered work-related emails that Secretary Clinton and her 
associates apparently deleted. All of this is clear evidence of 
alienation of Federal records. Indeed, even the FBI's now-public 
investigative files show that the FBI had knowledge that Federal 
records were deleted.
  The FBI's interview summary of Secretary Clinton said that she was 
asked about ``a PRN work ticket, which referenced a conference call 
among PRN, Kendall, and Mills on March 31, 2015.'' I am going to repeat 
that. She was asked about ``a PRN work ticket, which referenced a 
conference call among PRN, Kendall, and Mills on March 31, 2015.'' PRN 
stands for Platte River Networks, the company that administered 
Secretary Clinton's nongovernment server. Kendall is David Kendall, her 
lawyer. Mills is Cheryl Mills, her former Chief of Staff at the State 
Department.
  Paul Combetta, the administrator of her server, was also on the 
conference call and was interviewed multiple times by the FBI. He 
admitted that he lied to the FBI in his initial interviews and got 
immunity from the FBI in exchange for agreeing to tell them the truth. 
According to the summary of that interview, Mr. Combetta deleted 
Secretary Clinton's email archives on March 31, 2015.

[[Page S7886]]

  So we have a conference call with Secretary Clinton's attorneys on 
March 31, 2015, and on that very same day, her emails are deleted by 
someone who was on that conference call, using special BleachBit 
software. The emails were State Department records under subpoena by 
Congress.
  What did the FBI do to investigate this apparent obstruction? 
According to affidavits filed in Federal court, absolutely nothing. The 
FBI focused only on the handling of classified information. Maybe now 
we know why.
  Recently released FBI records show that by May 2, 2016, Mr. Comey 
sent around a draft of his statement exonerating Secretary Clinton. The 
FBI interview with Mr. Combetta hadn't even happened yet. The 
exoneration statement was already in progress before the key witness 
had coughed up the truth about deleting Federal records under subpoena 
by Congress.
  Did the FBI look at obstruction in the Clinton case? Mr. Comey said 
the FBI looked very hard at obstruction, but that is hard to believe. 
Director Comey began drafting an exoneration statement in April or 
early May of 2016. That is months before he publicly announced that he 
would not recommend charges on July 5, 2016.
  According to the testimony of senior FBI officials, Comey began 
drafting his statement early because the FBI knew where the 
investigation was headed. That is according to testimony of senior FBI 
officials. But at that point, the FBI had not yet interviewed 17 
witnesses. That ought to be understood. They hadn't yet interviewed 17 
witnesses. And one of those witnesses--can you believe it--was 
Secretary Clinton. Others included her closest aides and associates. 
How can you possibly know where an investigation is headed without 
interviewing the main witnesses and the subject of the investigation?
  Maybe none of this raises any concerns for Democrats, but it should. 
The American people deserve to have the whole story. Congress and the 
public have a right to understand whether the fix was in from the very 
beginning. If so, then it must take steps to make sure it never happens 
again.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________