[Congressional Record Volume 164, Number 17 (Wednesday, January 24, 2018)]
[Senate]
[Pages S486-S489]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



          Judiciary Committee Oversight and Investigative Work

  Mr. GRASSLEY. Madam President, I come to the floor today to talk 
about the Judiciary Committee, which I chair, about our important 
oversight work, the investigative work, and to kind of concentrate on 
the past year.
  There are a lot of issues that need more sunlight and more scrutiny. 
One of my key concerns is the loss of faith in the ability of the 
Justice Department and the FBI to do their jobs free of partisan 
political bias.
  The American people are rightfully skeptical because of how the 
Department and the FBI have handled the following subjects: on one 
hand, Hillary Clinton, and on the second hand, Donald Trump and his 
associates. Hiding from tough questions about these controversial cases 
is no way to reassure the public. If the Department is afraid of 
independent oversight, that just reinforces people's suspicion and 
skepticism. The only real way to reassure people is to let the sunshine 
in and let the chips fall where they may. In each of these cases, the 
government should obviously find out what happened and hold people 
accountable if there was any wrongdoing, but it also has to play by the 
rules and be held accountable for its actions as well. We need to shine 
the light of day on all of it.
  As part of our investigation, we have requested documents and other 
information from the Department of Justice and the FBI. Much of that 
information is classified. The Department has provided very limited 
access to those classified materials. It has limited the Judiciary 
Committee's review to the chair, this Senator; the ranking member of 
the full committee, and that would be Senator Feinstein; and the 
Subcommittee on Crime and Terrorism, and that would be Senator Graham 
and Senator Whitehouse. The government has also tried to severely limit 
the number of appropriately cleared staff who can review documents and 
even take notes.
  We have reviewed some information related to whether the FBI used a 
so-called Trump dossier and the extent of its relationship with its 
author, Christopher Steele. As we know now, Mr. Steele was hired by 
Fusion GPS to research Mr. Trump's alleged ties to Russia. His work was 
funded by the Democratic National Committee and the Clinton campaign. 
Now, remember, it took a subpoena and a court battle with the House 
Intelligence Committee to force that fact out into the open. Lawyers 
for the Democratic National Committee and the Clinton campaign 
officials denied it to the press for months. In other words, they lied. 
The founder of Fusion GPS denied that his firm was ``Democratically 
linked.'' That, too, was untrue.
  When the news finally broke, New York Times reporters actually 
complained that people who knew better had flat-out lied to them about 
who funded Mr. Steele's dossier. But back before the 2016 election, it 
is unclear who knew that Steele was gathering dirt on Trump for the 
Democratic National Committee and for the Clinton campaign. Many of his 
sources for claims about the Trump campaign are Russian Government 
officials. So Steele, who was working for Fusion GPS, who in turn was 
working for the Democratic National Committee and the Clinton campaign, 
was also working with the Russians. So who was actually colluding with 
Russians? It is becoming more clear.
  Mr. Steele shared his at least partially Russian-based allegations 
far and wide. He shared them with the FBI. He shared them with the 
media. According to public reports, he shared them with high-ranking 
officials in the Justice Department and the State Department.
  In the course of our review, Senator Graham of South Carolina and I 
came across some information that just does not add up. We saw Mr. 
Steele swearing one thing in a public libel suit against him in London, 
England, and then we saw contradictory things in documents that I am 
not going to talk about in an open setting here. I know everybody 
understands that. From everything we have learned so far, Senator 
Graham and I believe these discrepancies are significant. So we sent a 
referral of Christopher Steele to the Justice Department and the FBI 
for potential violations of 18 U.S.C. 1001.
  I guess people are going to say whatever they want to say about this 
whole matter no matter what the facts are, but it doesn't contribute 
anything meaningful to the public debate to ignore those facts or to 
speculate wrongly about Senator Graham's motivations, or mine.
  First, despite all the hubbub, this is not all that unusual. Anyone 
can ask for a criminal investigation. I have done it in the past when I 
have come across potential crimes in the course of my oversight work, 
and I have done so publicly. This situation is no different.
  Second, as the special counsel has reminded us all recently, lying to 
Federal officials is a crime. It doesn't matter who is doing the lying, 
politics should have nothing to do with it.
  I have said repeatedly that I support Mr. Mueller's work and I 
respect his role. I still do. Nothing has changed. I think it ought to 
be said again in case anyone missed it. The special counsel

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should be free to complete his work and to follow the facts wherever 
they lead, but that doesn't mean that I can ignore what looks like 
false statements. If an individual sees what might be evidence of a 
crime, he or she should report that to law enforcement so it can be 
fully investigated. That is exactly what Senator Graham and I did. That 
does not mean that we have made up our minds about what happened. It is 
possible that Mr. Steele told the truth and the other, contradictory 
statements that we saw were wrong. But, just as any court would do, we 
start by assuming that government documents are true until we see 
evidence to the contrary. If those documents are not true and there are 
serious discrepancies that are no fault of Mr. Steele's, then we have 
another problem--an arguably more serious problem.

  Of course, even aside from these inconsistencies, the public reports 
about the way the FBI may have used the dossier should give everyone in 
this Chamber pause. Director Comey testified in 2017 that the dossier 
was ``salacious and unverified.'' If it was unverified in 2017, then it 
had to be unverified in 2016 as well. So it was a collection of 
unverified opposition research funded by a political opponent in an 
election year. Would it be proper for the Obama administration--or, for 
that matter, any administration--to use something like that to 
authorize further investigation that intrudes on the privacy of people 
associated with its political opponents? That should bother civil 
libertarians of any political stripe.
  Now, I wish I could speak more openly about the basis of our referral 
and other concerns, but right now that information is largely 
classified. That information is controlled by the Justice Department. 
As I said, the Department has permitted only the chair and ranking 
member of the full Judiciary Committee, the chair and ranking member of 
the Subcommittee on Crime and Terrorism of the Judiciary Committee, and 
a limited number of their cleared staff to see the underlying 
documents. I have been pushing for the Department to provide the same 
access to other Judiciary Committee members and their appropriately 
cleared staffs, but the Department refuses to provide that access or 
even to brief the other members on the underlying information.
  Fortunately, the Department has agreed that it has no business 
objecting to our members reviewing our own work, so I have encouraged 
our committee members and their appropriately cleared staff to do just 
that--review that work. Look at the memo that Senator Graham and I sent 
to the Deputy Attorney General and the FBI Director. Members can then 
make up their own minds about what Senator Graham and I have concluded.
  I have also encouraged them to review the committee's transcripts and 
other unclassified materials that have been available to them and their 
staffs for a long period of time now--many months.
  Finally, I have encouraged them to let me know if they believe that 
any of that information should be made public. I believe in 
transparency. We may agree that certain information should be released 
at the appropriate time, with care to preserve classified information 
and the integrity of any investigation. I have already been pushing the 
Department to review the classified referral memorandum to confirm the 
memo's classification markings so that we can release the unclassified 
portions as soon as possible. But now the Department has deferred to 
the FBI, and the FBI is falsely claiming that three of our unclassified 
paragraphs--each contains the same, single classified fact. Now, that 
really surprised me because these particular paragraphs are based on 
nongovernment sources and do not claim to repeat or confirm any 
information from any government document.
  Even if these portions of our referral did reference the allegedly 
classified fact at issue, it is hard to understand why that fact should 
be classified.
  First, the Deputy Attorney General has discussed the fact at issue 
with me more than once in an unsecure space and on an unsecure phone 
line. That ought to tell us something.
  Second, the FBI is not acting as if this information would harm 
national security if released. The FBI never notified the entities 
copied on the memo's transmittal--for example, including the inspector 
general and the Intelligence Committees--to ensure that fact was 
protected as classified. If the FBI really believed this fact was 
classified, then the FBI and the Department should take better care to 
act consistent with that belief.
  Unfortunately, I suspect something else is really going on. It sure 
looks like a bureaucratic game of hide the ball rather than a genuine 
concern about national security.
  I am pressing this issue with Director Wray, and I hope we can 
provide this information to the public as soon as possible. In fact, 
just this morning, I took a long period of time to handwrite a letter 
to Christopher Wray, the Director of the FBI, to let him know these 
very concerns. It has been scanned to him, and I hope people make sure 
he gets it because I am not sure he always gets my letters, handwritten 
or typed.
  I also believe that the Department should carefully review the entire 
memorandum and begin an orderly process to declassify as much of that 
information as possible.
  The Intelligence Committee in the House of Representatives recently 
voted to allow all House Members to review a short memo summarizing 
what it has learned. Senators are not allowed to see what the House 
Members know. However, House Members who have seen it have been calling 
for a vote to release that memo.
  Here in the Senate, the Senate Judiciary Committee has access to the 
same information that the House Intelligence Committee saw before 
drafting its summary memo. Our committee does not have the same 
authority to release classified information that the House committee 
has. We have to rely on the agency to review and potentially declassify 
our memo.
  Based on what I know, I agree that as much of this information should 
be made public as soon as possible through the appropriate process--and 
I don't just mean the summary memos. The government should release the 
underlying documents referenced in those memos after deleting any 
national security information that needs to be protected.
  But most of this story can be told, and the part that can be told 
should be told. The American people deserve the truth. Stale, recycled 
media spin from journalists and pundits who do not have all the facts 
is not enough. The country is filled with frenzy and speculation, but 
the people are very hungry for facts. However, I cannot release this 
information on my own, and neither should anyone else. Classified 
information is controlled by the executive branch. We should work 
together to achieve the greater transparency while still protecting 
legitimately sensitive national security information.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The senior assistant legislative clerk proceeded to call the roll.
  Mr. NELSON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Tillis). Without objection, it is so 
ordered.
  Mr. NELSON. Mr. President, I wish to talk about Alex Azar's 
nomination as Secretary of Health and Human Services. I wish to explain 
how I am going to vote no by virtue of what I asked him in his hearing 
in front of the Finance Committee.
  Needless to say, programs such as Medicaid, Medicare, the Federal 
marketplace for health insurance under the Affordable Care Act, and the 
Children's Health Insurance Program are all healthcare programs that 
are absolutely essential not only to my State of Florida but to all 
States. Since we have a higher percentage of the population who are 
senior citizens, obviously, Medicare is an extremely important one to 
that segment of our population, who depend on Medicare for their 
healthcare.
  When you look at the Affordable Care Act, which brought healthcare 
through health insurance to millions and millions of Americans who had 
not had it before, my State of Florida signed up more people than any 
other State. Some 1.7 million Floridians signed up

[[Page S488]]

for coverage through healthcare.gov. That was despite the Trump 
Administration's efforts this past year to undermine the health law by 
doing such things as not allowing people to get out and give the 
counseling. So it was on a much lower scale than what had been done 
before.
  My worry is, looking out for the people of Florida, that Mr. Azar 
will continue to support the administration's efforts to destroy the 
law and all of the good things it has done, where it has now provided 
health insurance for so many people--so many people that never had 
health insurance before. The 1.7 million Floridians who signed up again 
for health insurance through healthcare.gov is a good example.
  One of the statements that Mr. Azar has made--and people in the Trump 
Administration have been trying to undermine the ACA--is that, in 
effect, there is no way to fix the law.
  Let's turn to Medicaid and CHIP, or the Children's Health Insurance 
Program. Mr. Azar, I am told, supports changing the structure of the 
Medicaid Program into a block grant. Ever since the Medicaid law was 
passed, it sets up, according to whether or not a State has a poor 
citizenry, a formula that shares money from the Federal Government, and 
the State matches a certain percentage. In Florida, that is anywhere 
from 55 percent to 60 percent Federal to approximately 45 percent to 40 
percent from the State of Florida. For other States, like Mississippi--
with a poor, rural population that needs healthcare but can't afford 
healthcare--their Medicaid formula is much more paid for by the Federal 
Government with a lower match from the State.
  If you put Medicaid into a block grant, that means the State is only 
going to get so much money, regardless of whether the population 
swells. If the needs are greater, that money is it. It is not flexible 
with the eligibility of people because of their income status. I simply 
don't think that is right. It is these kinds of issues that concern me 
greatly about Mr. Azar.
  Look at Medicare. As I mentioned, we have a higher percentage of the 
population that is made up of senior citizens. In Florida, that 
translates to 4 million senior citizens who depend on Medicare. They 
are over 65 years of age, and they are eligible for Medicare. That is 
the way they access their healthcare.
  When I asked Mr. Azar about his perspective on changes to the 
Medicare Program, his answer was deficient. This is what I asked: Do 
you support raising the Medicare eligibility age?
  In other words, a senior would not be eligible for Medicare--
healthcare--at age 65; the age requirement would be increased. He did 
not give me an answer.
  I asked: Do you support turning Medicare into a voucher program?
  According to CBO estimates, privatizing Medicare would increase 
premiums by 30 percent, so I wanted to find out whether, as Secretary 
of HHS, he would want to turn Medicare into a voucher program. He 
dodged that question.
  I tried a third time with another question to give him a chance to 
give a straight answer on the record in the Finance Committee. I asked 
him whether he supports allowing Medicare providers to enter into 
private contracts with patients instead of the set benefit that a 
senior knows he is eligible for under the law to get those Medicare 
benefits.
  The practice of entering into private contracts between doctors and 
other Medicare providers is prohibited under Medicare because it would 
place seniors on the hook for the difference between what an insurer 
would pay--an insurance company--and what the doctor or the other 
provider would charge. That would result in a higher out-of-pocket cost 
for the senior citizen.
  Remember, the question was, do you support allowing Medicare 
providers to enter into private contracts with patients?
  This is what he said: ``The mission of HHS is to enhance and protect 
the health and the well-being of all Americans, through programs that 
touch every single American in some way, every single day. As 
Secretary, my job would be to lead HHS in its work toward its 
mission.''
  That is not what I asked. I asked specifically whether he wanted to 
privatize the Medicare benefits and the mechanism by which those 
benefits would be delivered. That does not give me assurance on behalf 
of our senior citizens in Florida. To the contrary, if you were to talk 
to a group of our senior citizens and say that you want changes to 
Medicare, I can tell you what that would do. That would put a ripple of 
chills down the spines of senior citizens, for them to think their 
Medicare would be taken away from them.
  Thus, Mr. Azar is a gentleman who is delightful and obviously skilled 
in the pharmaceutical drug industry. Yet, when we got right down to how 
he was going to run the HHS as Secretary, I was not assured that our 
seniors were going to be protected in their healthcare or that poor 
people were going to be protected in their Medicaid or that the 20-some 
million people--including the almost 2 million in Florida--who now have 
healthcare on the private insurance exchange, offered through the 
Affordable Care Act, were not going to be undermined.
  There is just no way that I think this is the appropriate person to 
be the Secretary of Health and Human Services; therefore, I will vote 
no.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. MURPHY. Mr. President, I come to the floor to express my 
opposition to the nomination of Alex Azar to be the next Secretary of 
the Department of Health and Human Services.
  Let me admit to the Chamber that this, for me, was certainly not as 
easy a call as was the first vote on the nomination for this position 
when Congressman Price was up for the job. I want to talk about the 
reasons for my vote in opposition, but I first want to begin by giving 
the nominee some credit for, I think, a very important series of 
exchanges that he had before the committee.
  One of the biggest potential disasters that would have been visited 
upon this country by 4 years of Secretary Price would have been the 
reversal of 8 years of transformation in the way that we pay for 
healthcare through Medicare, primarily.
  In 2011, Medicare made almost no payments to providers through what 
we call alternative payment models. I know this sounds a little weedy, 
but this is really the way that we drive down healthcare costs in this 
country, and it is something that Republicans and Democrats should be 
focused on together.
  Alternative payment models generally refer to a switch in the way 
that we pay for healthcare--a move away from reimbursing providers 
based on how much medicine they practice to a reimbursement system that 
rewards providers for the outcomes that they achieve--in fact, 
rewarding hospitals and doctors and clinicians when they keep their 
patients out of the doctor's office or out of the emergency room or out 
of the hospital. This is the exact opposite of what the existing system 
does, which rewards hospital systems and doctors the more that their 
patients show up in the emergency rooms and the doctors' offices and in 
the hospitals.
  In the House of Representatives, Tom Price was the leader of the 
opposition to what we call value-based payment and was the chief 
defender of fee-for-service payment. While the Obama administration had 
made remarkable progress--it had set a goal of moving 30 percent of all 
Medicare payments over to outcome-based payments, which they achieved 
by the end of 2016--Secretary Price was in the process of moving all of 
that backward.

  The reason I say that my vote here against Mr. Azar was not a slam 
dunk--it is not a slam dunk--is that I give him credit for his 
testimony on this question of alternative payments. In answer to a 
question posed by Senator Whitehouse, he said that one of the greatest 
legacies of Secretary Burwell's tenure was in the launching of so many 
of the alternative payment models that we have out there.
  I would like to keep driving that forward for all of us who care so 
deeply about reducing costs in our healthcare system, about integration 
and coordination, and in our just thinking about ways to deliver better 
for our patients and beneficiaries. There are so many opportunities for 
bipartisanship here because we share so many of the same goals on this.

[[Page S489]]

  I applaud Mr. Azar for his seriousness about working with Democrats 
and Republicans to try to shift our payment system over to something 
that makes more sense, for his openness about how important the Obama-
era reforms were, and for his decision, if he gets this job, to reverse 
some of the sabotaging of those alternative payment models that 
Secretary Price began.
  Unfortunately, my enthusiasm for Mr. Azar's statements on alternative 
payment models through Medicare are outweighed by his inability to 
convince the HELP Committee or the Finance Committee that he is going 
to be a responsible steward of the Affordable Care Act. This is from 
where much of my worry comes, in part because Connecticut is a State 
that has efficiently, ably, and responsibly implemented the Affordable 
Care Act. We have hundreds of thousands of people in our State who now 
have insurance because of the expansion of Medicaid and because of the 
successful offering of plans to the uninsured through Connecticut's 
exchange.
  It was perplexing to those of us on the HELP Committee that Mr. Azar 
seemed to defend the administration's decisions to sabotage and 
undermine the Affordable Care Act. He even went so far as to try to 
spin those changes as to be a strengthening of the law, which simply 
does not pass the straight face test. I get it. During a confirmation 
hearing, it is very hard for a nominee who may serve in the Cabinet to 
be critical of the Commander in Chief, the person who has chosen him 
for the job. Yet it is obvious for everybody to see what is happening 
by the canceling of payments to insurance companies that helped 
compensate them for the most expensive patients, by eliminating all of 
the funding for the marketing and advertising of the exchanges, by 
shortening the enrollment period in half, by constantly going on social 
media and telling all prospective enrollees of ObamaCare that the ACA 
is dead even though it is not dead--even though, as we found out, just 
as many people signed up this year as signed up last year despite the 
campaign to undermine it.
  We all know that this is an obvious campaign of sabotage--that 
President Trump is trying to kill the Affordable Care Act 
administratively because he can't convince the American public to press 
Congress to do away with it. The Affordable Care Act has the support of 
the American public today, and that is the reason Congress could not 
repeal it.
  It was very troubling to me that Mr. Azar didn't acknowledge this 
campaign of sabotage, which leads me to believe he is going to fulfill 
instructions from the administration, from the White House, to continue 
it. He went so far during the questioning with me to suggest that 
shortening the enrollment period actually would help consumers with 
something that the insurance companies were asking for. That is not 
true. The insurance companies were not asking for that in Connecticut. 
That does not help consumers, certainly, when you are also withdrawing 
all of the money for marketing and advertising that would have been 
used to tell people that the enrollment period was being shortened.
  At the same time that I am going to vote no on this nomination 
because I am deeply worried that as Secretary Mr. Azar is going to 
continue this campaign of ACA sabotage, I do look forward to working 
with him in a bipartisan way on payment reform--if he will allow it 
with those of us who will vote against his nomination.
  As much time as we spend in the Senate talking about coverage, 
frankly, the more important, long-term reform is in the changing of how 
we pay for healthcare because if we fundamentally change the way we pay 
for healthcare and start rewarding good outcomes rather than just 
rewarding more medicine being practiced, then we will save enough money 
to insure everybody in this country through a means that both the 
Republicans and Democrats can support.
  I am going to vote no. I encourage my colleagues who care about the 
effective administration of the Affordable Care Act to vote no. 
Remember, it is a remarkable success story that 20 million people have 
insurance. People know the strength of the Affordable Care Act. That is 
why they pressed Congress not to repeal it. Despite the undermining 
campaign, just as many people signed up this year as last year, which 
is, frankly, extraordinary. I would hope that those people here who 
believe in the Affordable Care Act, as the American people do, will 
oppose this nomination. At the same time, I hope that there are 
significant ways, if he is confirmed, that we can work together with 
Secretary Azar.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.