[Congressional Record Volume 164, Number 115 (Tuesday, July 10, 2018)]
[Senate]
[Pages S4869-S4870]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                     EXECUTIVE CALENDAR--Continued

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume executive session.
  The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent to speak for 
up to 15 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Mr. President, this past year and half of the Trump 
administration has been a constant, daily barrage of scandal, 
corruption, and chaotic incompetence. In this environment, the Senate 
now considers the President's controversial nomination of Brian 
Benczkowski to lead the Criminal Division of the U.S. Department of 
Justice. It has been over a year since Benczkowski was first nominated, 
and there have been repeated calls for his nomination to be withdrawn.
  Why this man, for this job, at this time? There is a very good chance 
that something fishy is happening here. The warning signals of 
something fishy should be evident to Democratic and Republican Senators 
alike.
  The obvious question is whether President Trump and his political or 
legal team are using this appointment to sneak a fast one by the 
American people and put themselves in a position to interfere, from the 
inside, with the Department of Justice investigation into the dealings 
between Russia and the Trump campaign--the so-called Mueller 
investigation, though it has expanded beyond Bob Mueller into several 
other parts of the Department of Justice.
  How would this fast one work exactly? We will be voting tomorrow to 
install a Trump ally and nominee--a longtime political operative with 
ties to a Russian bank and to the recused Attorney General Jeff 
Sessions--into one of the most powerful posts at the Department of 
Justice, a position that just so happens to have significant 
supervisory control over Special Counsel Mueller's investigation and 
the criminal investigation of the Southern District of New York into 
Trump's personal lawyer, Michael Cohen. What could possibly go wrong?
  Remember, we are dealing with a President who remains the subject of 
an ongoing criminal investigation by the Department of Justice. We are 
dealing with a President who repeatedly violates longstanding rules and 
norms in his continuing effort to interfere with that investigation. We 
are dealing with a President who has told the press he believes he has 
``absolute control'' over the Department of Justice and who repeatedly 
criticizes Attorney General Sessions' recusal from the Russian 
interference investigation as insufficiently ``loyal.''
  We are dealing with a President who appears to have actively 
interfered in the Department's investigations into Michael Flynn, who 
insisted on ``loyalty'' from his FBI Director, and who admitted that 
firing that FBI Director was to ease pressure over what he called ``the 
Russia thing.''
  We know all of this in the Senate, often from this President's own 
mouth and his own tweets. With that backdrop from the Oval Office for 
this nomination, extra caution is warranted to be sure we are not being 
led into trouble.
  Worse still, it is not just the President who is up to no good with 
respect to the ongoing criminal investigation. Republicans in the 
House--I suspect hand in hand with the White House and legal team--are 
pressing their smear campaign against Deputy Attorney General 
Rosenstein, seeming to want to kneecap the independence of the Mueller 
investigation and get access to its confidential investigative files.
  As a former U.S. attorney, I recoil from the notion that a 
legislative body wants to peek over the shoulders of prosecutors in an 
ongoing investigation, particularly when those legislators are so 
closely allied with the subject of that investigation.
  Against that added backdrop of House interference, the Senate is 
being asked to install a Trump loyalist into a key position of 
authority and control over the Russia-Trump collusion investigation. 
Even more caution is warranted for this nomination, given the behavior 
of the House.
  Why this man, for this job, at this time? Why Benczkowski? Let's 
review. He is nominated to be the Chief of the Criminal Division, a 
critically important office within the Department of Justice. He will 
oversee nearly 700 career prosecutors who are some of the most talented 
and experienced lawyers in the country. Criminal Division lawyers 
prosecute nationally significant cases, from high-profile public 
corruption to child exploitation, to complicated money laundering and 
international organized crime cases.
  One thing that is obvious--that is obvious--is that Mr. Benczkowski 
brings astoundingly weak qualifications to that task. Given the stakes 
and the complexity of the Criminal Division's work, you would expect 
someone leading the Division who had years of experience as a 
prosecutor, who had tried cases to a verdict--someone who knew the ins 
and outs of the Division's work and knew his way around Federal 
courtrooms.
  To say that Benczkowski lacks this experience is putting it mildly. 
He may be the weakest candidate ever put forward in the history of the 
Department to oversee the Criminal Division. He is probably not hirable 
into the career positions he will oversee. The man has less courtroom 
time than the average citizen who has sat on a jury. He has never tried 
a case of any sort, criminal or civil, State or Federal. He has never 
argued a motion--something most litigators have done in their first 
years out of law school. He has never worked as a prosecutor. His 
stints at the Department of Justice were never as a practicing lawyer 
but always on the political side. In his whole career, he told the 
Senate, he could only come up with one or two times he ever entered a 
courtroom on what he called ``routine scheduling or other matters.''

  So it is not Benczkowski's experience or qualifications that are the 
reasons for his appointment. If qualifications and experience are not 
the reasons for his appointment, why put this prosecutorial neophyte 
into one of the most powerful, important prosecutorial positions at the 
Department of Justice? What, one might ask, is the motive? What do we 
know?
  Although serious questions remain unanswered by the Department of 
Justice and by Mr. Benczkowski, we know from our correspondence with 
the Department that the Russia-Trump collusion investigation is being 
run under Department of Justice procedures that require approvals by 
the Criminal Division for a wide array of investigative and 
prosecutorial steps. As the U.S. attorney for Rhode Island, I used to 
have

[[Page S4870]]

to work with the Department of Justice and go through those approvals 
and those steps. The Mueller investigation and the Cohen investigation 
in the Southern District of New York are both subject to those same 
rules. That gives Mr. Benczkowski, if he is confirmed, not just a 
window into the Russia-Trump collusion investigation but the ability to 
actually interfere.
  What else we know about Mr. Benczkowski is that he was a longtime 
political operative here in the Senate, on the Senate Judiciary 
Committee, where he worked as staff director for none other than 
Senator Jeff Sessions. Well, Attorney General Jeff Sessions has recused 
himself from the Russia-Trump collusion investigation. It is therefore 
an obvious question, if this person brings no experience as a 
prosecutor but plenty of experience as a close political operative for 
Jeff Sessions, whether that close political relationship is the reason.
  That, in turn, presents the obvious question: Since Benczkowski is 
not there for his experience or for his qualifications, is he being 
installed as some kind of back channel, either as a trusted 
intermediary to get information to Attorney General Sessions around his 
recusal from this investigation perhaps or perhaps, in a worst-case 
scenario, to be a pipeline to Trump and his lawyers of confidential 
investigative information--the kind of information that House 
Republicans are trying to get their hands on? Maybe it is simply to jam 
the bureaucratic gears whenever Robert Mueller seeks approvals from the 
Criminal Division.
  These are not easy questions, but there is an easy answer to these 
questions, and that easy answer is, don't worry, Mr. Benczkowski will 
be fully recused from that investigation. But the Department and Mr. 
Benczkowski won't say that. There have been no meaningful answers to 
these questions. Why won't they just say he will be recused? That 
should be easy.
  It gets weirder. Benczkowski has his own Russia-Trump angle. After 
the election, with his old boss Sessions tapped to become Attorney 
General, Benczkowski volunteered for the Trump transition team, leading 
the so-called landing team at DOJ. It was on his way out the door from 
that role, heading back to his law firm, that Benczkowski told Sessions 
he was interested in securing a political appointment in the Department 
of Justice.
  Scroll forward 2 months to March of 2017, when Benczkowski got a call 
from one of his law partners. The firm was representing the Russian 
Alfa Bank against allegations that Alfa Bank was serving as a back 
channel to the Trump organization. Alfa Bank is one of Russia's largest 
banks, and its owners reportedly have longstanding ties to Vladimir 
Putin. The partner wanted to know whether Benczkowski--fresh off the 
Trump Department of Justice transition team--could help the Russian 
bank. Benczkowski joined the firm's Alfa Bank legal team.
  The next month, in April of 2017, Benczkowski was contacted by the 
Attorney General's office to ask whether he would like this job to head 
up the Department's Criminal Division. Press reports as early as May 4 
indicated that Benczkowski was likely to be tapped for this Criminal 
Division job. Surely a person of sound judgment at this point would 
have stopped representing a Russian bank that might be under DOJ 
investigation for secret ties to the President. Surely. But no. Rather 
than withdraw from his representation, Benczkowski expanded his 
portfolio with Alfa Bank to review the now famous and widely verified 
Steele dossier.
  The Steele dossier has been a feature not only in the Russia-Trump 
collusion investigation, it has also been a feature of Republican 
political efforts to discredit and besmirch the collusion 
investigation.
  Benczkowski's new portfolio was to advise whether Alfa Bank, the 
Russian bank, should file a defamation suit against publisher BuzzFeed 
for disclosing the Steele dossier, which Alfa Bank subsequently did in 
New York State court.
  There is more. Benczkowski's nomination to this position triggered 
confirmation obligations to disclose information to the Senate 
Judiciary Committee about his background, publications, and clients. 
This client was a Putin-tied Russian bank, and Benczkowski's work 
related to the red-hot Steele dossier. So obviously he disclosed this 
client relationship--actually, not. Benczkowski's Senate Judiciary 
questionnaire included no mention whatsoever of the Russian bank. Only 
when Democratic Senators reviewed Benczkowski's confidential FBI 
background report did questions arise about his relationship with Alfa 
Bank and his review of the Steele dossier for this Russian client. 
Benczkowski explained the troubling omission, telling us that he had 
been forbidden by his firm's confidentiality agreement from disclosing 
his work for Alfa Bank.
  Some people would have thought his obligations of disclosure to the 
Senate mattered more than obligations of nondisclosure to such a 
client. These disclosure issues are customarily waived by clients in 
these circumstances or the nominee can withdraw. You don't just fail to 
list such a client, but that is what he did.
  Mr. Benczkowski was voted out of the Judiciary Committee on a party-
line vote a year ago. Now, with the Russia-Trump investigation heating 
up, with significant new potential cooperating witnesses, and with 
millions of pages of new documents available to the Department of 
Justice from Michael Cohen, now Republicans bring this nomination 
forward. Particularly this week, when the country has turned its focus 
to the Supreme Court announcement--an announcement obviously likely to 
dominate the news cycle--this bizarre nomination gets called up for a 
vote. It is almost as if they don't want people watching while this 
happens.
  This is a nomination that should fail on qualifications alone. In the 
long history of the Department of Justice, there has never been so 
unqualified a nominee, in my view. In the name of the 700 career 
prosecutors in the Criminal Division who deserve an experienced and 
capable leader at their helm, in the name of the crime victims our 
criminal laws and their enforcement are intended to protect, I urge my 
colleagues to vote no just on qualifications. But this goes beyond an 
unqualified nominee; this is a nominee exhibiting a flashing array of 
warnings that there may be mischief afoot here. No Senator should take 
this vote unaware of these obvious warnings. Why somebody so 
unqualified? Why somebody so politically connected to the Attorney 
General? Why right now, right in the middle of constant interference by 
President Trump and his legal team and constant interference by House 
Republicans with this investigation? Now we put someone in who won't 
say he will recuse himself, who will have a window into this 
investigation, who will have the power to interfere with this 
investigation? That seems like a lot to let pass.
  In the name of the integrity and independence of the Department of 
Justice, Senators should vote no because of the contamination risk Mr. 
Benczkowski poses even if he were qualified for the post. This 
combination of lack of qualification--a flagrant, flat-out unqualified 
nominee--and the risk of contamination in an environment in which there 
are abundant political efforts to interfere with this investigation--
that is a combination no Senator ought to accept--not for this man, not 
for this job, not at this time.
  If mischief is afoot and if these dark prospects should come to pass, 
Senators, we will have been warned. We will have been warned.
  I yield the floor and 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. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.