[Congressional Record Volume 166, Number 103 (Wednesday, June 3, 2020)]
[Senate]
[Pages S2668-S2670]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Michael Pack

  Mr. MERKLEY. Mr. President, this week our majority leader is asking 
the Senate to vote on the nomination of Michael Pack to serve as Chief 
Executive of the U.S. Agency for Global Media.
  Mr. Pack's nomination should trouble all of us in this Chamber. It 
raises the question of whether the U.S. Senate is committed to being 
the check and balance on the qualifications of those potentially vested 
with substantial responsibility into positions in our executive branch.
  His nomination draws into question the challenge we have, the 
responsibility we have to ensure that only individuals of talent, 
experience, and of integrity serve America in the executive branch. 
Hamilton commented on this in the Federalist Papers. He said:

       To what purpose then require the co-operation of the 
     Senate? I answer, that the necessity of [the Senate's] 
     concurrence would have a powerful though, in general, silent 
     operation. It would be an excellent check upon the spirit of 
     favoritism in the President, and tend greatly to prevent the 
     appointment of unfit characters.

  Those words should resonate in this Chamber now. The individual who 
will come before us, Michael Pack, set up a nonprofit called Public 
Media Lab, or PML, apparently for the sole purpose to channel contracts 
to his for-profit operation known as Manifold Productions. Over a 
period exceeding a decade, he channeled $4 million from the nonprofit 
to the for-profit. Not a single contract went anywhere else--no other 
contracts.
  Utilizing a nonprofit to launder for-profit contracts, in the process 
of which providing tax subsidies to your customers and advantage over 
your competitors, raises both ethical and legal issues. The legal 
issues, including potential criminal conduct, have not been resolved. 
Mr. Pack is, at this moment, under investigation by the attorney 
general of the District of Columbia.
  Mr. Pack, in tax filings to the IRS in 2011 through 2018, did not 
accurately disclose a relationship between his nonprofit and his for-
profit. When he was asked if, in fact, there were common officers 
between the two, he answered no when the answer was clearly yes. He did 
not disclose that his for-profit benefited from the setup of the 
nonprofit.
  Mr. Pack did admit to the Committee on Foreign Relations that he made 
oversights; that is the term he used--``oversights.'' But he has 
refused to correct his tax filings.
  Mr. Pack, when he was renominated in 2020, inaccurately stated in the 
records to the committee that his tax returns were complete and 
accurate. He has refused to provide critical documents to the committee 
and, in that sense, to the Senate to examine these significant issues. 
He has refused to provide the agreements between PML and Manifold, his 
nonprofit and his for-profit, to examine the propriety of the 
relationship. He has said simply that those documents are confidential 
and proprietary.
  But we should realize that serving in the executive branch is a 
privilege. We asked for information so that we can exercise our 
constitutional responsibility. When an individual confronted with 
substantial ethical and legal issues simply says ``I will not provide 
them'' and if the Senate committee says ``That is OK,'' then we are 
failing in our constitutional responsibility to examine the 
qualifications of the individual. This is no light responsibility we 
bear in this Chamber. This is a very significant check and balance of 
the U.S. Constitution, which each and every one of us swore to uphold 
when we took our oath of office.
  Mr. Pack, when he was president of the Claremont Institute, directed 
significant funds to his for-profit company for fundraising. His 
company is not a fundraising company; his company is a film company. So 
we have asked him to provide the details and documents related to that 
work to see if there was an inappropriate transfer of funds from a 
position of responsibility to the personal profit of Michael Pack. But 
Mr. Pack has refused to provide details. He has refused to provide 
documents related to that work.
  In addition, he prematurely resigned from his role at the Claremont 
Institute, and it is shrouded in mystery. We do not know if the board 
found ethical issues. We do not know if they found criminal conduct 
because he has not responded to our request for documents related to 
his premature resignation.
  Given the gravity of these issues, it makes sense, when he was 
renominated, that he would reappear before the committee to help clear 
up these concerns and these issues. Well, we have not had such a 
hearing.
  To summarize, when an individual makes false statements to the IRS 
and refuses to correct them, when they make false statements to the 
committee, not in the first time before the committee but the second 
time before the committee, when they refuse to provide relevant 
documents to provide significant issues of ethical conduct or potential 
criminal conduct, when there is an active investigation into that 
potentially criminal conduct, then we should simply say to the 
President: Send us a different name.
  This man may be well qualified, but he does not wish to provide the 
information necessary for the Senate to do its responsibility as a 
check and balance on potentially unfit individuals. To exercise advice 
and consent in accordance with responsibilities charged to us, we must 
insist on upholding the standards for records and documents and 
truthfulness to the committee. We must insist that outstanding 
investigations be completed when they involve potentially criminal 
conduct. We must insist that verifiably false statements be corrected. 
These are not high or exceptional standards; these are fundamental, 
basic, elementary responsibilities that we carry.
  That is why I have written a resolution declaring that the Senate 
should not vote on a nominee who has made verifiably false statements 
to Congress or the executive branch and who refuses to correct those 
statements. Until those statements to both the Foreign Relations 
Committee and to the IRS are corrected, Michael Pack's nomination 
should be set aside. We should simply tell the President and exercise 
our responsibility, for which we have taken an oath of office, to send 
us someone else. This individual is not prepared to provide the 
information necessary for the Senate to proceed with his nomination. 
That is what we should be saying, and we should still be

[[Page S2669]]

saying it at this late date. I urge my colleagues to do the right thing 
by supporting this resolution


                 Unanimous Consent Request--S. Res. 604

  Mr. President, as in legislative session, I ask unanimous consent 
that the Senate proceed to the immediate consideration of S. Res. 604, 
which was submitted earlier today. I further ask that the resolution be 
agreed to, the preamble be agreed to, and the motions to reconsider be 
considered made and laid upon the table with no intervening action or 
debate.
  The PRESIDING OFFICER (Mr. Scott of Florida). Is there objection?
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. RISCH. Mr. President, reserving the right to object, what you are 
seeing here today is a pure, unadulterated exercise in politics--
politics that are steeped with the difference of political philosophy 
between the two parties.
  With relation to the complaint that my colleague has just made that 
this nomination hasn't been adequately vetted, this nomination was made 
2 years ago tomorrow, June 4, 2018.
  Mr. Pack came before the committee. He has been before the committee 
twice. He has produced numerous documents due to the complaints of the 
Democrats on the committee. He has been looked at by the White House. 
His business dealings have been looked at by the Justice Department, by 
the Internal Revenue Service, and he has been cleared of anything.
  The U.S. Agency for Global Media is an important agency because it is 
charged with supporting international broadcasting outlets around the 
world in the face of the kinds of misinformation and things that are 
put out by other countries that are untrue.
  The real reason for the objection to Mr. Pack's nomination is that 
this man is a patriot. This is a man who makes documentary films that 
portray the greatness of America.
  Anyone who disagrees with that ought to spend the time to look at the 
documentary he just made, which was run on public TV within the last 30 
days, regarding Clarence Thomas and what he had to go through to get on 
the Supreme Court. It was a superb representation of what happened in 
that. If you watch that, you will see why the Democrats are absolutely 
opposed to Mr. Pack.
  But don't take our word for this. RealClearPolitics, after this whole 
thing started, did its own investigation into this, and they noted that 
the business arrangements of Mr. Pack used to make these documentaries 
are very common for documentary filmmakers and, like Pack, filmmakers 
and television producers also use nonprofits to collect contributions 
from donors and then set up a for-profit company to make these films. 
This is exactly what Senator Merkley was objecting to.
  Having said that, they went on to interview others, including 
attorneys and everything else. Another producer with no business ties 
to Pack told RealClearPolitics ``that he set up the same two-pronged 
way of funding films last year on the advice of counsel, who told him 
it was standard operating procedure.''
  This has been looked at. It has been reviewed. Look, the committee 
has had this in its hands for almost 2 years. I have been really 
patient. Every time that I set this for a hearing and they wanted more 
time, I let that go.
  Finally, the last time, I was really, really disappointed in the 
Democrats' engagement of the political system, enjoining it with the 
potential criminal justice system, to try to stop this.
  The night before the business meeting, I got a letter from the 
attorney general for the District of Columbia--obviously a partisan 
individual--that says that he is going to look at this and, therefore, 
he is investigating it. The Democrats then said: Well, we can't go 
ahead with this because he is being investigated by this partisan 
person from DC.
  Look, I am on the Ethics Committee. There are six of us. Half of us 
sit on the Foreign Relations Committee. In every instance I can think 
of on the Ethics Committee where the U.S. Justice Department has asked 
us to stand down because they were doing a legitimate criminal 
investigation, we have done so.
  In this particular case, it was a partisan agency of the District of 
Columbia that noticed that they were going to do this investigation.
  I started my career as a prosecutor. I have always felt that the 
justice system and the prosecuting system should be above politics, but 
to get a partisan individual to send a letter--after 2 years--on the 
eve of the business meeting, that he was going to open a business 
meeting again, after many delays, was just too much.
  But I did delay the business meeting for 1 week, and after that 1 
week we had a business meeting. The Democrats made motion after motion 
to delay. Again, I was as patient as I could be.
  I said during these motions that we were only going to go on so long 
with this. Finally, as was noted by some of the attorneys in the room, 
had this occurrence happened in a court of law, the attorneys would 
have been held in contempt of court for making repetitive motions that 
were obviously delay motions and done spuriously.
  So, after the eighth motion, I declared the motions out of order, and 
we went to what democracies do. We went to a vote. To no one's 
surprise, it was a straight party-line vote: 12 votes to send Mr. 
Pack's confirmation to the floor for confirmation and 10 votes against 
that.
  This is a democracy. The way we do this is we have disagreements, 
particularly when it comes to political matters such as this, but to 
try to engage the justice system in this I find just really, really 
disheartening.
  We are going to have a vote on Mr. Pack, and it is very simple. If 
you don't want Mr. Pack to take this job, then you vote no, and if you 
do, then you say yes. But this has been investigated back and forth. 
Regardless of the breast-beating and the rending of garments over what 
an awful person he is and how awful his businesses have been, keep in 
mind, this is all politics. If you see the kind of work that he has 
done, he makes America proud when he makes a documentary.
  So I would object to the resolution that has been proposed.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from New Jersey
  Mr. MENENDEZ. Mr. President, I ask to speak for up to 5 minutes 
before the vote.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. MENENDEZ. Mr. President, I want to, first of all, thank Senator 
Merkley for his leadership on the resolution and for his thoughtful and 
substantive contributions as a member of the Senate Foreign Relations 
Committee and to express our deep disappointment that our Republican 
colleagues are blocking his resolution, which basically says that we 
should not move forward on a nominee--in this case, this nominee--when 
there are false statements to the IRS and to the Foreign Relations 
Committee for which he refuses to correct the record, which would have 
consequences. Those are indisputable.
  It is abundantly clear that we need to formalize some standards that 
apply equally to all nominees, Democrat and Republican alike, and we 
should think of it as a floor beneath which the Senate should not fall.
  Now, it is amazing to me that I know my Republican colleagues used to 
care about tax issues. As a matter of fact, they denied a previous 
distinguished majority leader of the Senate--on some arcane issue--the 
opportunity to become the Secretary of Health and Human Services. They 
have done it a bunch of times.
  This issue is a $4 million tax issue in which Mr. Pack took his 
nonprofit, totally controlled by him--totally controlled by him--and 
had all the moneys that were solicited to the nonprofit then sent to 
his for-profit company, totally controlled by him--totally controlled 
by him. And no other disbursements were made from the nonprofit for 
anyone else, for any other entity.
  I didn't hear until now that the Justice Department and the IRS has 
reviewed this. It should be forthcoming, then, that they have cleared 
this, that this is now in the course of business. We can create a 
nonprofit; go ahead and get moneys from people; they will get their 
deductions; and then we can send it to ourselves for profit. That is 
one heck of a process.
  Now, the chairman continues to say ``2 years.'' Well, 2 years ago 
there was a Republican chairman of the committee--our colleague Bob 
Corker. He

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did not move this nomination 2 years ago. So with this constant refrain 
of 2 years, I guess you want to blame former Senator Corker for not 
moving it during that period of time.
  At the chairman's request, I met with Mr. Pack. While he may not have 
been my nominee, I agreed to have a hearing, which is one of the 
standards we have in the Senate Foreign Relations Committee. There is 
an agreement between the chair and ranking. That has been violated for 
Mr. Pack. He actually went to a vote before the committee without my 
agreement, so that comity has been violated for the future.
  At the end of the day, we have someone who will not ultimately--he 
says: Yes, I made a ``mistake''--it is a $4 million mistake--and, yes, 
I should have answered differently.
  Well, why not correct it? If it is so simple, if it is so benign, why 
not correct it? The reason you don't want to correct it is that there 
are consequences that flow from that correction, including probably an 
IRS investigation.
  Finally, it is interesting that, I guess, when Attorney General Barr 
does something, it is not political, but when the attorney general of 
the District of Columbia does it, it is political. I didn't know we 
were going to start choosing and picking which law enforcement entities 
are political in this country.
  The attorney general of the District of Columbia had an investigation 
that was preceding before any action of the committee--preceding before 
any action of the committee or any information brought to the attention 
of the attorney general. Evidently, he considers it significantly 
serious enough--potential IRS violations on taxes.
  So here are our Republican colleagues who, in the past, railed 
against anyone who had violations of the IRS Tax Code, saying they are 
not worthy of being a nominee, to going ahead and ramming through 
someone who ultimately has some serious issues to the tune of $4 
million, and that is not a problem. Under investigation--that is not a 
problem.
  So I urge my colleagues to consider what you are doing here. Not only 
was a precedent set at the committee, but you will set a precedent on 
the floor, and it will be very hard for you to get up and rail about 
somebody's tax liabilities and what they did and didn't do honestly 
with the taxes at the end of the day.
  With that, I yield the floor.