[Congressional Record (Bound Edition), Volume 153 (2007), Part 13]
[Senate]
[Pages 18047-18048]
[From the U.S. Government Publishing Office, www.gpo.gov]




                        FIRING OF U.S. ATTORNEYS

  Mr. SESSIONS. Madam President, we have had an unfortunate event 
occur. The Senate and House Judiciary Committees have issued subpoenas 
to the President for internal personal communications with the 
President's own personal staff and documents related thereto in a 
matter unrelated to a criminal investigation. A political inquiry is 
all this is about. Yesterday the President had to assert executive 
privilege and refuse to produce a very certain, limited number of 
documents relating to the replacement of U.S. attorneys around the 
country.
  I served as a U.S. attorney for 12 years. I know U.S. attorneys serve 
at the pleasure of the President. I know U.S. attorneys on a few 
occasions actually try cases and get involved in cases. I did pretty 
often. I tried some fairly big cases. Most U.S. attorneys in larger 
offices preside over the office and career assistant U.S. attorneys and 
FBI agents and so forth and investigate cases and prosecute them. That 
is the way it goes.
  The reality is that they can be removed at any time by the President. 
It is not a congressional function to determine whether or not a U.S. 
attorney is removed. The Congress is involved only in the confirmation 
of U.S. attorneys.
  The President and Attorney General Gonzales did not handle the recent 
resignation of 8 U.S. Attorneys very well. I believe they thought they 
could do it and not really have much of a reason for it, yet say they 
thought performance was not good. Maybe they simply wanted to replace 
that attorney with someone else. But U.S. attorneys have friends in law 
enforcement. They have friends in the local community. They have 
Senators who recommend them and help them get confirmed. They have 
clout. It became a big brouhaha. There was a big dispute about it, and 
various accusations were made.
  I was present for the hearings before the Judiciary Committee. 
Frankly, most of the accusations have been proven baseless. But in 
explaining it all, the Attorney General and some of his staff did not 
do a good job. They embarrassed the Department, frankly, and fed 
demands for more and more and more to keep this story alive, to keep 
this matter going. Now we are at the point where subpoenas have been 
issued.
  The committee issued five subpoenas on June 13. Two of the subpoenas 
were issued to the White House for documents to be produced on or 
before June 28, 2007. A third subpoena was issued by the House 
Judiciary Committee to Harriet Miers for both documents and testimony, 
for a response by July 12. Harriet Miers was a lawyer for the 
President. She was White House Counsel. The fourth and fifth subpoenas 
were issued by the Senate Judiciary Committee to Sara Taylor for 
documents and testimony respectively and called for a response on or 
before June 28 and testimony for a hearing on July 11.
  This is an overreach legally. It is an overreach insofar as the 
traditional comity that should exist between coequal branches of 
Government. Executive privilege is not a principle that should be 
lightly dismissed. It is a very real, legitimate principle that our 
Government has. What would we have next? Would we want to be 
subpoenaing the law clerks for Justice Stevens and Justice Ginsburg and 
Justice Roberts of the Supreme Court to see what those staffers told 
the judges before they rendered their ruling? What about Senators and 
our staffs? How about that?
  This has not been a stonewalling by the administration on the U.S. 
attorneys issue. The Department of Justice has released or made 
available for review approximately 8,500 pages of documents. Top 
officials in the Department of Justice, including the Attorney General 
himself, the Deputy Attorney General, Paul McNulty, the Attorney 
General's former chief of staff, and many other officials have 
testified at public hearings and submitted themselves for on-the-record 
interviews to answer any questions. The President offered to go even 
further by providing Congress with additional documents, to make 
available for interviews the President's former Counsel, Harriet Miers; 
Karl Rove, his political counselor; Deputy Counsel, Bill Kelly; former 
Director of Political Affairs, Sara Taylor; Scott Jennings, Special 
Assistant to the President. All of those would be made available to be 
inquired of.
  That was an effort by the executive branch to satisfy the curiosity 
of the legislative branch and to go as far and even further, maybe, in 
my view, than required by law. That was a genuine, generous suggestion 
as to how to handle this conflict between the two branches, our desire 
to look in there and see everything that went on and pry open the lid 
and probe and fish a little bit and see what we find and a legitimate 
right of a President to have a staff that responds to his or her 
demands and gives the President unvarnished advice, pointing out 
problems, honestly and openly, without any expectation it is going to 
be on the front page of the New York Times the next day, for heaven's 
sake.
  So I just want to say, I am sorry and disappointed our chairman, 
Chairman Leahy, has utilized the power the committee gave him to decide 
whether to issue a subpoena or not, to actually issue subpoenas.
  So now what has happened? The President said: These subpoenas go too 
far. Even so, I am not afraid to have my people talk. The President has 
offered that Harriet Miers come to the Hill and be interviewed by the 
Judiciary Committee. But in preserving the historic integrity and 
confidentiality of a President and their own staff, the President does 
not want to produce confidential communications made to

[[Page 18048]]

him by his staff. I think it would erode any President's legitimate 
prerogative, for time immemorial, if Congress were able to do that.
  I would suggest we in this Senate can understand that. Who of us 
would want our chief of staff to be hauled in to some committee when 
there is no suggestion of a criminal offense having occurred and then 
being cross-examined on everything our chiefs of staff told us? I just 
met with my chief counsel, Cindy Hayden, and we talked about these 
issues. She is an excellent lawyer. We have recently met and talked 
about the immigration bill that the Senate was debating.
  Maybe the White House, which took a different view than mine on 
immigration, would like to embarrass me by issuing subpoenas to see if 
they could find out something in memos or documents or conversations we 
had about the bill and the flawed legislative process that brought it 
to the floor.
  The executive branch has the power of subpoena also. Would our 
Members over here on the Senate Judiciary Committee be happy if the 
White House issued subpoenas to find out if any of our Members may have 
delayed the confirmation process in order to impact the outcome of some 
case that might be pending before a court of appeals at a given time in 
a given State?
  Would we want to have all that happen to us? If these are criminal 
things, you get to do that. If they are not criminal things, comity, 
respect between our branches would suggest that any leader have certain 
rights to have candid, confidential communications with their own staff 
about matters of great importance to our Nation. The courts have it. 
Congress has it. The executive branch has it. There is case law that 
has addressed this type of privilege. Executive privilege is not 
something that is made up; it is something that is very real.
  Now, I am not one who would want to come in and predict how cases 
would come out, but based on the openness the President has shown with 
regard to providing to the Congress his staff people for interviews, I 
am not sure there is a legal basis for this.
  Yes, in the meantime, it will look good politically. Those who issued 
the subpoenas--and are proud of themselves, knowing the President 
probably will never be able to accept this and would have to resist and 
have to object--can accuse him of hiding. They can accuse him of 
stonewalling. They can say he is in denial, that he will not cooperate 
with the Congress, that he is operating in secrecy. These baseless 
accusations will just further fuel the charges people have made about 
this good man who is trying to serve the country the best he can. I 
certainly believe that.
  So here we are. Chairman Leahy issued the subpoenas. Now the 
President has objected, which he has a perfect right to do. What 
happens now? There are several options, one of which is to litigate. If 
that path is chosen, a court will have decide it. It will go to the 
courts, and there will be an argument whether there is a legitimate 
evoking of executive privilege.
  I wish it had not happened. That is all I am saying. We, I believe, 
have overreached in this instance. I cannot imagine we would want to 
demand that the President's own lawyer, Harriet Miers, be required to 
produce every memo she gave to the President and every conversation she 
had about any matter in the White House unless it amounted, as I said, 
to some criminal offense, which nobody is suggesting has occurred here. 
It is just not good policy, and we have to be bigger than short-term 
politics in this Senate. We have to be bigger than that.
  I want to say, in my best judgment, we should not have shoved it this 
far. We have overreached. The President does have a legitimate claim of 
executive privilege. Over 8,500 documents and e-mails that went from 
the White House to the Cabinet Department, the Department of Justice, 
have been produced. It is only those conversations and communications 
between the President's closest advisers and the President himself 
which the White House feels should not be produced because of the 
historical implications of it for Presidents in the future. In this 
instance, I think the President is within his rights.
  My best judgment, based on what I know today, is that this is not 
legitimate under our current law, and it is absolutely not justified 
under our discretion as Members of Congress. We ought to have more 
respect for the other branch than to push this request beyond the 
limits to the point we have today.
  So, Madam President, I want to be on record to say that I understand 
why the President would object to making these disclosures of internal 
communications between the President and his own personal, closest 
staff, after, of course, having produced communications between he and 
his staff and the Department of Justice that have been produced and 
making those staff members available for private inquiry among the 
leadership of the Congress. I think that was a real strong gesture of 
openness, but that was promptly rejected because I think some in the 
Congress--Senate and House--would rather have a fight and try to make a 
political point than actually get to the truth of those matters.
  Madam President, I thank the Chair and yield the floor.
  Madam President, 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. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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