[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.
____________________