[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and there have been repeated calls for his nomination to be withdrawn.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.