[Congressional Record (Bound Edition), Volume 155 (2009), Part 1]
[Senate]
[Pages 51-56]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    ERIC HOLDER CONFIRMATION HEARING

  Mr. SPECTER. Mr. President, with the approaching hearings before the 
Judiciary Committee on the nomination of Eric Holder to be Attorney 
General, I thought it might be useful to frame some of the issues and 
put them into perspective, at least my perspective, in advance of the 
hearings, and to advise Mr. Holder in some greater detail than our 
brief meeting, when he paid his courtesy call a few weeks ago, to 
discuss some of those issues so he would be in a better position to 
respond.
  I begin with the view that I wish to be helpful to President-elect 
Obama in his dealings with the enormous problems which face our Nation. 
I have come to know President-elect Obama in his capacity as Senator 
for the last 4 years. His office is right down the hallway. I consider 
him a friend, and certainly we are in need of action on some of the 
enormous problems our Nation faces. We approach these problems in the 
context of our constitutional roles. The Constitution, in article I, 
gives certain powers to the Congress and, in article II, certain powers 
to the executive branch. The core of our constitutional Government is 
checks and balances so we have that responsibility to have oversight 
and to give our candid judgments. Frequently, it is more helpful to say 
no than to say yes. When we deal with the position of Attorney General, 
we have a role which is significantly different from other Cabinet 
officers.
  For example, Cabinet officers carry out the President's policies on a 
wide variety of issues and, to an extent, so does the Attorney General. 
But the Attorney General has a significantly different role in his 
responsibility to the people and to the rule of law. Senator Leahy and 
I wrote extensively on this subject, published last October in 
Politico.
  Some Attorneys General have been very compliant with the 
administration and have not fared very well historically. Attorney 
General Harry Daugherty was sullied by the Teapot Dome scandal. 
Although ultimately cleared, he resigned amid allegations of 
impropriety. We had the Attorney General during the administration of 
President Roosevelt, Attorney General Homer Cummings, who yielded to 
the court-packing plan, certainly not the sort of institutional 
integrity which we would look for in an Attorney General. Some 
Attorneys General have been very diligent. Perhaps the best example is 
Attorney General Elliot Richardson, who resigned rather than fire 
Special Prosecutor Archibald Cox during the administration of President 
Nixon, and Deputy Attorney General Bill Ruckelshaus followed suit.
  In today's press, there are reports about the distinguished career of 
Attorney General Griffin Bell, who just died. One of the hallmarks of 
Attorney General Bell's career was his willingness to say no to 
President Carter, who had appointed him. President Carter, it is 
reported, wanted a certain prosecution brought. Attorney General Bell 
said that it wasn't an appropriate matter for a criminal prosecution. 
Attorney General Bell advised President Carter that the way he would 
get that prosecution brought would be to appoint a compliant Attorney 
General, that he would resign before he would undertake that 
prosecution.
  We have seen, regrettably, with the administration of Attorney 
General Alberto Gonzales, yielding to the Executive will without 
upholding the rule of law; the hearings conducted by the Judiciary 
Committee, for which I was ranking member, over the termination of U.S. 
attorneys; the attitude of Attorney General Gonzales on habeas corpus, 
testifying that there was no positive grant of habeas corpus in the 
Constitution, notwithstanding the explicit clause which says habeas 
corpus may be suspended only in time of rebellion or invasion. So this 
is a very key and critical appointment.
  The Attorney General also has enormous responsibilities in advising 
the President more generally on the scope of Executive authority. Mr. 
Holder will doubtless be questioned at some length on the issue of the 
terrorist surveillance program, warrantless wiretaps, and the meaning 
of the Foreign Intelligence Surveillance Act; and where does 
congressional authority under article I stop on the flat prohibition 
against wiretaps without warrants, contrasted with the Executive's 
power as Commander in Chief under article II; and what are the Attorney 
General designate's views on attorney-client privilege restrictions, a 
matter which he initiated in 1999 and which has seen further 
restrictions in the Thompson memorandum and subsequently. Last Congress 
I introduced legislation to try to deal with that. There is also the 
reporter's privilege issue, where the Department of Justice has opposed 
the privilege for reporters where they have been held in contempt. A 
New York Times reporter was held in jail for some 85 days after the 
source of the confidential disclosure had been addressed. These are 
just a few of the

[[Page 52]]

issues which we will be looking at in the confirmation hearings of 
Attorney General Holder.
  With respect to Mr. Holder, specifically, he has had an outstanding 
academic and professional record--I acknowledged that early on--
prestigious college and law school, Columbia; a judge of the District 
of Columbia Superior Court; involved in Department of Justice 
prosecution teams; and later served as Deputy Attorney General. But 
aside from these qualifications on Mr. Holder's resume, there is also 
the issue of character. Sometimes it is more important for the Attorney 
General to have the stature and the courage to say no instead of to say 
yes.
  There are three specific matters which will be inquired into during 
the course of Mr. Holder's confirmation hearing. The first one involves 
a highly publicized pardon, the Marc Rich pardon. Mr. Holder testified 
he was ``not intimately involved'' in the Rich pardon and he assumed 
that regular procedures were being followed. But when you take a look 
at some of the details as to what was disclosed in the hearing by the 
House of Representatives and in the hearing in the Senate Judiciary 
Committee, which I chaired 15 months after the pardon, Mr. Holder met 
privately with Mr. Rich's attorney. According to Mr. Holder's own 
testimony, he tried to facilitate a meeting between the prosecutors in 
the Southern District of New York and Rich's attorney. Rich's attorney, 
Mr. Quinn, testified that Mr. Holder advised him to go straight to the 
White House rather than through the pardon office, which is the regular 
procedure. Mr. Quinn produced an e-mail from himself to a colleague 
with the subject line ``Eric,'' in which he noted that ``he says go 
straight to the WH, also says timing is good. We should get it in 
soon.''
  That is not conclusive, but these are matters to be inquired into. 
The pardon attorney was opposed to the pardon, but he never issued a 
recommendation because he didn't think the pardon was under serious 
consideration. Then the White House requested Mr. Holder's opinion, and 
he is quoted as saying that he was ``neutral, leaning towards 
favorable'' on the pardon.
  On this case of the record, with the very close connections between 
Mr. Rich and very sizable contributions to the Clinton library and very 
sizable contributions to President Clinton's party, these questions 
inevitably arise and have not been answered satisfactorily. During the 
course of the hearings, both in the House and in the Senate, where I 
chaired the full committee hearing, the claim of executive privilege 
was made. We face a little different situation when we are looking at a 
confirmation hearing for Attorney General, in terms of the legitimate 
scope of Senators' inquiry which will be pursued. It ought to be 
focused on the fact that the charges against Rich were very serious. 
They involved tax evasion, fraud, trading with the enemy, with Iran. It 
should also be emphasized that the U.S. attorney who prosecuted the 
case was opposed to the pardon and, in fact, refused to meet with Mr. 
Rich.
  The second issue which requires a hearing on the issue of character 
and the determination as to whether Mr. Holder was yielding to the 
President to give him or the Vice President a conclusion they wanted to 
hear was the issue of the appointment of an independent counsel on the 
allegations that Vice President Gore engaged in fundraising from the 
White House in violation of Federal law.
  Mr. Holder, in his capacity as Deputy Attorney General, was advising 
Attorney General Reno. Attorney General Reno came to the conclusion 
that independent counsel ought not to be appointed. The House of 
Representatives committee filed this report:

       . . . the failure of the Attorney General to follow the law 
     and appoint an independent counsel for the entire campaign 
     finance investigation has been the subject of two sets of 
     Committee hearings. FBI Director Louis Freeh and the Attorney 
     General's hand-picked Chief Prosecutor, Charles LaBella, 
     wrote lengthy memos to the Attorney General advising her that 
     she must appoint an Independent Counsel under the mandatory 
     section of the Independent Counsel Statute. . . .

  That mandatory section does not leave it to the discretion of the 
Attorney General, but the Attorney General declined to appoint 
independent counsel.
  In hearings conducted before the Senate Judiciary Subcommittee, which 
I chaired, Attorney General Reno was questioned extensively on the 
evidence, which showed that hard money was being discussed as the 
matter of fundraising to be undertaken by Vice President Gore.
  Attorney General Reno did not consider a very critical piece of 
evidence written by a man named Strauss who had attended the meetings. 
The Strauss memo contained the notation of a certain percentage of hard 
money and a certain percentage of soft money. Attorney General Reno did 
not consider that because, as she testified, it did not refresh the 
recollection of Mr. Strauss.
  Well, there are a number of exceptions to the hearsay rule. One is 
when a piece of paper is reviewed by a witness and it refreshes his 
prior recollection, and another is when the witness testifies that the 
notes were made contemporaneously with the discussion and it 
constitutes prior recollection recorded, which is an exception to the 
hearsay rule and the witness does not have to remember what had 
occurred.
  That critical piece of evidence was not considered by Attorney 
General Reno. So here again are issues which are appropriate for 
inquiry on the character issue.
  On the issue of whether Mr. Holder will exercise sufficient 
independence, Vice President Gore sought to explain to the FBI that he 
was out of the room a good bit of the time of the discussion because, 
as he had put it, he had consumed a lot of iced tea on that occasion. 
Well, these are matters which the independent counsel statute was 
designed to deal with, to conduct a further investigation, to consider 
all of the ramifications, and not to show favoritism because the 
subject of an investigation happened to be the Vice President of the 
United States. Mr. Holder's role in advising the Attorney General on 
that matter, his role as Deputy Attorney General, is an appropriate 
matter for inquiry.
  The third issue to be inquired into involves the hearings on the so-
called FALN organization, the Armed Forces of Puerto Rican 
Nationalists. The FALN was an organization linked to over 150 bombings, 
threats, kidnappings, and other events which resulted in the deaths of 
at least six people and the injuries of many more between 1974 and 
1983. Four of the persons who received clemency were convicted of 
involvement in the $7 million armed robbery of a Wells Fargo office.
  In the face of this kind of conduct, and in the face of a report by 
the pardon attorney in the Department of Justice, the actions of Deputy 
Attorney General Holder were very extensive in what eventuated in the 
granting of clemency.
  The Department of Justice sent the matter back for another 
evaluation, apparently dissatisfied with the recommendation of the 
pardon attorney that the clemency application ought to be denied.
  On this second occasion, according to press accounts, the submission 
by the pardon attorney ``made no specific recommendation'' regarding 
clemency, but it did reflect that the FBI and two U.S. attorneys' 
offices opposed clemency. Notwithstanding that record, clemency was 
granted. It is an appropriate matter for inquiry to see specifically 
what role Mr. Holder played.
  Senator Hatch, who was the chairman of the committee at that time, 
had this to say about the conclusion:

       President Clinton, who up to this point had only commuted 
     three sentences . . . offered clemency to 16 members of FALN. 
     This to me, and really almost every Member of Congress, was 
     shocking.

  Senator Leahy joined in the criticism of the grant and raised the 
question about the failure of the Department of Justice to contact the 
victims. The matter came before the Senate, which rejected and 
criticized the grant of the clemency by a vote of 95 to 2.
  All of these matters relate to judgment and relate to whether Mr. 
Holder had the kind of resoluteness displayed

[[Page 53]]

by Attorney General Griffin Bell or Attorney General Elliot Richardson 
to say no to his superior.
  In raising these concerns, I am raising questions. I will approach 
these hearings next week--a week from Thursday--with an open mind to 
give Mr. Holder an opportunity to explain his conduct and his actions 
and to see if, on the totality of the record, he displays the requisite 
character and judgment and can justify the actions in these sorts of 
matters which would warrant the confidence of the Judiciary Committee, 
really representing the confidence of the American people.
  After our experience with Attorney General Gonzales, and given the 
experience of other Attorneys General in the past and the very critical 
role which they play in upholding the rule of law, these are the sorts 
of issues which ought to be aired. Mr. Holder ought to have his day in 
court, so to speak--the hearing before the Judiciary Committee--to see 
if he can state the case which would warrant his confirmation.
  Mr. President, I ask unanimous consent that a detailed statement be 
printed in the Record at this point in full. What I have tried to do is 
to summarize a more detailed statement.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         Holder Floor Statement

       With the Judiciary Committee hearings approaching on the 
     nomination of the Attorney General-designate Eric H. Holder, 
     Jr., I think it would be useful to put some of the issues 
     into perspective, at least my perspective. I begin with the 
     view to help President-elect Obama deal with the enormous 
     problems facing our nation. I worked with then-Senator Obama; 
     I had an office close to his on the 7th floor of the Hart 
     Building, and consider him a friend. I sent a congratulatory 
     letter after the election and was pleased to get his 
     telephone call to discuss working together in the new year.
       The fundamentals of our continuing relationship will be 
     governed by the Constitution. Separation of powers and checks 
     and balances are the basic precepts of dealings between the 
     Congress (Article I) and the Executive (Article II). My 
     record demonstrates my willingness to cross party lines when 
     I consider it appropriate--frequently to my own political 
     disadvantage.
       The Constitution requires the President's choice for 
     Attorney General to be confirmed by the Senate--specifically, 
     with the Senate's ``advice and consent.'' On June 13, 2005, 
     in the context of a possible Supreme Court nomination, 
     Senator Leahy described his opinion of the role of the Senate 
     as prescribed by this clause stating: ``The Constitution 
     provides that the President `shall nominate, and by and with 
     the Advice and Consent of the Senate, shall appoint' judges. 
     For advice to be meaningful it needs to be informed and 
     shared among those providing it. . . . Bipartisan 
     consultation would not only make any Supreme Court selection 
     a better one, it would also reassure the Senate and the 
     American people that the process of selecting a Supreme Court 
     justice has not become politicized.'' (Cong. Rec. S6389) 
     Senator Leahy's statement is at least relevant, if not 
     equally applicable, to Mr. Holder's nomination. History 
     demonstrates that presidents who seek the advice of members 
     of the Senate prior to submitting a nomination frequently see 
     their nominees confirmed more quickly and with less 
     controversy than those who do not. A recent example is that 
     of President Clinton who consulted with then-Chairman Hatch 
     prior to nominating Justice Ruth Bader Ginsberg and Justice 
     Stephen Breyer to the Supreme Court. Both nominees were 
     confirmed with minimal controversy.
       In contrast, on the nomination of Mr. Holder, President-
     elect Obama chose not to seek my advice or even to give me 
     advance notice, in my capacity as Ranking Republican on the 
     Judiciary Committee, which is his prerogative. Had he done 
     so, I could have given him some facts about Mr. Holder's 
     background that he might not have known, based on my 
     experience on the Senate Judiciary Committee. For example, in 
     1999, I chaired a Senate Judiciary Committee oversight task 
     force that investigated whether the Department of Justice 
     fulfilled its responsibilities in investigating the Waco 
     siege, Chinese nuclear spying, and alleged campaign-finance 
     abuses by Democrats during the 1996 elections. As part of 
     that investigation, I chaired six hearings before the 
     Judiciary Committee's Subcommittee on Administrative 
     Oversight and the Courts, during which we heard from numerous 
     witnesses and reviewed many documents. The insight gained 
     during that investigation might have been valuable to 
     President-elect Obama, because Mr. Holder was Deputy Attorney 
     General (DAG) of the Justice Department from 1997 until 2001 
     and, therefore, played a pivotal role in determining the 
     level and scope of the Justice Department's investigation of 
     these important matters. I also chaired the Senate Judiciary 
     Committee's 2001 hearing on the controversial pardons of 
     international fugitives Marc Rich and Pincus Green. During 
     that hearing, the Committee heard testimony from Mr. Holder 
     on his role in those pardons. I will describe some of the 
     details on those matters shortly. Based on my role on those 
     investigations, I could have provided President-elect Obama 
     with information on Mr. Holder that he might not otherwise 
     have had and might have found useful.
       Seeking to be helpful to the new administration does not 
     necessarily mean agreement on all matters. Sometimes saying 
     ``no'' may be more helpful, but may not appear to be at the 
     time.
       I acknowledge the many good features about Mr. Holder's 
     education and professional background. He received his B.A. 
     from Columbia University in 1973 and his J.D. from Columbia 
     Law School in 1976. Following law school, Mr. Holder pursued 
     a career in public service, first as a trial attorney in the 
     Public Integrity Section of the Department of Justice, then 
     as an Associate Judge for the Superior Court of the District 
     of Columbia, next as the United States Attorney for D.C., and 
     then as Deputy Attorney General and, for a short period, as 
     Acting Attorney General. Following his tenure at the 
     Department of Justice, Mr. Holder joined the D.C. office of 
     Covington & Burling, LLP as a partner.
       In addition to the accomplishments on a nominee's resume, 
     however, there is a critical qualification of character in 
     upholding principles when tempted to yield to expediency by 
     being a ``yes man'' to please a superior or to accommodate a 
     friend. As Chairman Leahy and I noted in an op-ed we co-
     authored last October and published in Politico, 
     ``[I]ndependence is also an indispensable quality in an 
     attorney general. . . . Regrettably, we have seen what 
     happens when an attorney general ignores this basic tenet and 
     considers the president, not the American people, as his 
     principal. We must ensure that the rule of law never plays 
     second fiddle to the partisan desires of political 
     operatives.''
       American history provides several examples of Attorneys 
     General whose independence was tested; some succumbed to 
     being ``yes men'' and some resolutely said ``no.'' One 
     example of an Attorney General who may have been swayed by 
     political pressure was Harry M. Daugherty (51st Attorney 
     General under Presidents Harding and Coolidge, 1921-1924). In 
     1924, the Senate launched an investigation into the failure 
     of the Attorney General to prosecute those implicated in the 
     Teapot Dome Scandal, which was headed by Democratic Senator 
     Burton K. Wheeler of Montana. The investigation included an 
     examination of Mr. Daugherty's involvement in the scandal and 
     why he failed to prosecute the Secretary of the Interior and 
     others implicated. Although Mr. Daugherty was eventually 
     cleared of all charges, his failure to aggressively prosecute 
     those involved, combined with allegations that he obstructed 
     justice by trying to block the congressional investigation, 
     resulted in a loss of confidence in him. Mr. Daugherty 
     resigned in March 1924, prior to the conclusion of the 
     investigation.
       Another example is that of Homer S. Cummings (55th Attorney 
     General under President Franklin Roosevelt, 1933-1939). 
     Frustrated with several Supreme Court decisions declaring New 
     Deal programs unconstitutional, President Roosevelt asked Mr. 
     Cummings to secretly draft a bill that would have added one 
     new judge for every judge who refused to retire at age 70. 
     This proposal, which came to be known as the ``court-packing 
     plan,'' could have created as many as six vacancies on the 
     Supreme Court as well as a number of lower court vacancies. 
     The resulting legislation was widely criticized as an overt 
     political plan to circumvent the Supreme Court. The plan was 
     never enacted, in part, because Justice Owen Roberts, who had 
     traditionally voted against New Deal legislation, started 
     voting with the ``liberal'' wing and upholding such measures. 
     Justice Roberts' apparent about-face in jurisprudence is 
     known as ``the switch in time that saved nine.''
       A third and possibly the most egregious example is that of 
     John N. Mitchell (67th Attorney General under President 
     Nixon, 1969-1972). In 1974, Mr. Mitchell was indicted for 
     conspiracy, obstruction of justice, giving false testimony to 
     a grand jury, and perjury, for his role in the Watergate 
     break-in and cover-up. He was convicted of these charges in 
     1975 and sentenced to two-and-a-half to eight years in 
     prison.
       In contrast, probably the most memorable example of an 
     Attorney General who did not bend to political pressure is 
     that of Elliot L. Richardson (69th Attorney General under 
     President Nixon, 1973). On October 20, 1973, Nixon ordered 
     Richardson to fire Watergate special prosecutor Archibald 
     Cox. Mr. Richardson and his deputy attorney general, William 
     D. Ruckelshaus, resigned rather than carry out the order.
       Another example is President Lincoln's attorney general, 
     Edward Bates (26th Attorney General, 1861-1864). Even in the 
     midst of the Civil War, Bates did not hesitate to express 
     independent judgment. Bates disagreed with President Lincoln 
     on a number of issues that arose from the war, including 
     Lincoln's desire to allow West Virginia to be admitted as a 
     state. In part because he was unable to

[[Page 54]]

     convince Lincoln to agree with him, Mr. Bates resigned from 
     office.
       The Attorney General is unlike any other cabinet officer 
     whose duty it is to carry out the President's policy. The 
     Attorney General has a corollary, independent responsibility 
     to the people to uphold the rule of law. Chairman Leahy and I 
     mentioned this responsibility in the aforementioned Politico 
     op-ed stating, ``[t]he attorney general's duty is to uphold 
     the Constitution and the rule of law, not to circumvent them. 
     The president and the American people are best served by an 
     attorney general who gives sound advice and takes responsible 
     action, rather than one who develops legalistic loopholes to 
     serve the partisan ends of a particular administration.''
       After our recent experience with Attorney General Gonzales, 
     it is imperative that the Attorney General undertake and 
     effectuate that responsibility of independence. Mr. Gonzales 
     left office accused of politicizing the Justice Department, 
     failing to restrain Executive overreaching, and being less 
     than forthcoming with Congress. Even before becoming Attorney 
     General, we now know that he pushed Attorney General Ashcroft 
     to approve the President's surveillance program over the 
     objections of high-level Justice Department officials. Once 
     in office, he either abdicated his responsibility to 
     subordinates or was complicit in the questionable firings of 
     several U.S. Attorneys, depending on which of his statements 
     one accepts as true. And, he repeatedly defended aggressive 
     Administration positions that appeared dismissive of Congress 
     and the Courts. Indeed, in his zeal for the Administration's 
     policy on detainees, he even questioned the constitutional 
     basis for habeas corpus review. On January 18, 2007, when he 
     testified before the Judiciary Committee, it was astounding 
     to hear his claim that ``there is no express grant of habeas 
     in the constitution.'' When I pressed him on the point, he 
     replied ``the constitution does not say every individual in 
     the United States or every citizen is hereby granted or 
     assured the right to habeas. It simply says the right of 
     habeas corpus shall not be suspended.'' Later, the Detroit 
     Free Press editorialized: ``The moment when Alberto Gonzales 
     proved he was just wrong for the job of U.S. attorney general 
     came . . . after Sen. Arlen Specter, R-Pa., asked him about 
     the constitutional guarantee of criminal due process, known 
     as habeas corpus.'' I am convinced that many of Attorney 
     General Gonzales' missteps were caused by his eagerness to 
     please the White House.
       Similarly, when Mr. Holder was serving as DAG to President 
     Clinton, some of his actions raised concerns about his 
     ability to maintain his independence from the president. The 
     most widely reported incident involved the aforementioned 
     controversial pardon of fugitive Marc Rich. Mr. Rich fled the 
     country in 1983 after a federal grand jury in New York 
     returned a 51-count indictment against him, his partner, and 
     his company, which included allegations of tax evasion, 
     fraud, and trading with the enemy (Iran, during the hostage 
     crisis). Those charges carried a maximum sentence of 300 
     years in prison. On January 20, 2001, President Clinton 
     granted Rich a pardon that did not follow the regular pardon 
     procedures. Mr. Rich never appeared for trial, had attempted 
     to ship subpoenaed documents out of the country, and was 
     still a fugitive. Prior to his pardon, he had been listed on 
     the FBI's ``Ten Most Wanted'' fugitives list. Further 
     tainting his pardon was the fact that his ex-wife wife had 
     donated large sums to the Democratic Party ($867,000), to the 
     Clinton Library ($450,000) and had donated $66,300 to 
     individual Democratic candidates.
       On February 8 and March 1, 2001, the House Committee on 
     Government Reform held two hearings on the pardons of Rich 
     and others made during President Clinton's final days in 
     office. On February 14, 2001, I chaired a full Judiciary 
     Committee hearing on the controversial pardons. At the 
     Judiciary Committee hearing, Roger Adams, DOJ's Pardon 
     Attorney, testified that ``none of the regular procedures . . 
     . were followed'' with regard to the Rich and Green pardons.
       Mr. Holder testified that he was not ``intimately 
     involved'' in the Rich pardon, and that he assumed that the 
     regular procedures were being followed. Mr. Holder said that, 
     the night before the pardon was granted, White House Counsel 
     Beth Nolan contacted him to ask his position on the pardon 
     request. Mr. Holder stated that he had reservations about the 
     pardon request since Mr. Rich was still a fugitive and 
     because it was clear that the prosecutors involved would not 
     support the request, but he ultimately told Ms. Nolan that he 
     was ``neutral, leaning towards favorable'' on the request. He 
     testified that one factor influencing his decision was the 
     assertion that Israeli Prime Minister Ehud Barak had weighed 
     in strongly in favor of the request; therefore, the granting 
     of the request might have foreign policy benefits. He made no 
     inquiry, however, as to whether that was true.
       Notwithstanding, based on these hearings, serious questions 
     have been raised regarding Mr. Holder's candor while 
     testifying before Congress. (Jerry Seper, Holder Testimony on 
     Pardon Questioned, The Washington Times, Dec. 18, 2008) In 
     response to a question from Congressman Burton, Mr. Holder 
     testified that he had ``only a passing familiarity with the 
     underlying facts of the Rich case.'' (The Controversial 
     Pardon of International Fugitive Marc Rich: Hearing Before 
     the House Comm. on Govt. Reform, 107th Cong. 193 (2001) 
     (statement of Mr. Eric Holder)) Despite this assertion, 
     correspondence with the Justice Department obtained by the 
     House Committee and testimony from other witnesses shows 
     that, 15 months before the pardon, Mr. Holder met privately 
     with Mr. Rich's attorney and received a presentation about 
     what Mr. Rich's defense believed were flaws in the 
     government's case. (Id. at 175-76) Further, according to Mr. 
     Holder's own testimony, he tried to facilitate a meeting 
     between the prosecutors in the Southern District of New York 
     and Rich's attorney, Mr. Jack Quinn, over a year before the 
     pardons were granted. (President Clinton's Eleventh Hour 
     Pardons: Hearing Before the Senate Comm. on the Judiciary, 
     107th Cong. 31 (2001))
       Allegations have also been raised that Mr. Holder was 
     responsible for the deviation from normal pardon procedures. 
     Allegedly, Mr. Quinn wrote to and spoke with Mr. Holder 
     several times between November 2000 and the night of January 
     19, 2001, and primarily relied on him for guidance and 
     information rather than the pardon office. Mr. Quinn 
     testified that Mr. Holder advised him to go straight to the 
     White House rather than through the pardon office, and Mr. 
     Quinn produced an email from himself to a colleague with the 
     subject line ``eric'' in which he noted that ``he says go 
     straight to wh. also says timing is good. we shd get in 
     soon.'' (The Controversial Pardon of International Fugitive 
     Marc Rich: Hearing Before the House Comm. on Govt. Reform, 
     107th Cong. 640 (2001) (email from Jack Quinn)) Mr. Holder 
     denied that he told Mr. Quinn to go straight to the White 
     House (Id. at 204) and maintained that he thought the regular 
     pardon procedures were being followed; however, he admitted 
     that he never spoke to anyone either in the pardon office or 
     in his own office about whether the Rich pardon petition had 
     been received. (President Clinton's Eleventh Hour Pardons: 
     Hearing Before the Senate Comm. on the Judiciary, 107th Cong. 
     30 (2001))
       Finally, Mr. Holder testified that he had at least one 
     conversation with Mr. Quinn about a potential Attorney 
     General position in Al Gore's possible administration while 
     the Rich pardon was pending, and that he was sending Mr. 
     Quinn the resumes of people on his staff and asking for his 
     help in finding them jobs after Clinton left office. (The 
     Controversial Pardon of International Fugitive Marc Rich: 
     Hearing Before the House Comm. on Govt. Reform, 107th Cong. 
     202 (2001)) Mr. Holder noted, however, that the actions he 
     took with regard to the Rich pardon were done after the 
     election had been decided in favor of President George W. 
     Bush when the Attorney General position was no longer an 
     option.
       While serving as DAG, Mr. Holder also was intimately 
     involved in the decision-making process that resulted in 
     Attorney General Janet Reno rejecting the Department of 
     Justice and FBI task force's recommendation to appoint an 
     independent counsel to probe the allegations of fund-raising 
     abuses by Vice President Al Gore during the 1996 presidential 
     campaign. (David Johnston, Reno Aides Recommend Against 
     Outside Counsel, Austin American-Statesman, Nov. 22, 1997; 
     Deputy Attorney General Holds Justice Department Weekly Media 
     Availability, FDCH Political Transcripts, Dec. 18, 1997; US 
     Seeks to Verify Chinese Campaign Influence, The Bulletin's 
     Frontrunner, Feb. 13, 1998; John Bresnahan, Hatch May Hold 
     New Hearings to Pressure Reno on 1996 Campaign Finance 
     Violations, Roll Call, May 11, 1998; Michael Kirkland, Reno 
     Gets Advice from Freeh on Gore Probe, United Press 
     International, July 27, 2000) The House Committee on 
     Government Reform and the Senate Committee on Governmental 
     Affairs both conducted extensive investigations of the fund-
     raising activities. Both Committees found significant 
     evidence of wrongdoing and recommended that the Attorney 
     General appoint an independent counsel to investigate 
     further. In its report on the investigation, the House 
     Committee wrote: ``the failure of the Attorney General to 
     follow the law and appoint an independent counsel for the 
     entire campaign finance investigation has been the subject of 
     two sets of Committee hearings. FBI Director Louis Freeh and 
     the Attorney General's hand-picked Chief Prosecutor, Charles 
     LaBella, wrote lengthy memos to the Attorney General advising 
     her that she must appoint an Independent Counsel under the 
     mandatory section of the Independent Counsel Statute. . . . 
     Until an independent counsel is appointed in this matter, the 
     American people cannot be assured that the same standards of 
     justice will be applied to the President and Vice-President 
     as apply to every other citizen.'' (Investigation of 
     Political Fundraising Improprieties and Possible Violations 
     of Law, Interim Report, H.R. Rep. No. 105-829, Sixth Rep., 
     Vol. 1, at 3 (1998))
       Following these two Committees' investigations, I chaired a 
     special task force to examine whether the Justice Department 
     fulfilled its responsibilities in investigating these 
     matters. That lengthy investigation of the campaign finance 
     scandal included six hearings before the Judiciary 
     Committee's

[[Page 55]]

     Subcommittee on Administrative Oversight and the Courts and 
     brought to light important, previously unknown information, 
     including the fact that campaign task force head Robert 
     Conrad (who replaced Charles LaBella as the head of the task 
     force) also had recommended that Attorney General Reno 
     appoint a special prosecutor in addition to the prior 
     recommendations of FBI Director Louis Freeh and Mr. LaBella.
       After reading Mr. Conrad's report, which was only provided 
     to the Committee pursuant to a subpoena, I discovered that 
     Mr. Conrad also had recommended the appointment of a special 
     counsel. I questioned Attorney General Janet Reno during a 
     Judiciary Committee hearing about a number of Mr. Conrad's 
     findings to determine whether a special prosecutor was 
     required. For example, Mr. Conrad's report raised questions 
     as to the veracity of Vice President Gore's statements about 
     fund raising telephone calls he made from the White House. 
     According to federal law, if the money Gore raised through 
     the calls was so-called ``soft money,'' it was not a 
     contribution and was not prohibited from being raised on 
     federal property. But, if it was so-called ``hard money,'' 
     then Gore may have violated the law. Mr. Conrad had 
     questioned Gore about the issue, and Gore contended that he 
     did not know that hard money was to be raised. But, the 
     question remained as to what Gore knew when he made the 
     calls.
       I questioned the Attorney General at some length about the 
     specific facts that had been produced in the investigation of 
     Gore's statements. For example, there was evidence that four 
     witnesses testified about a meeting on November 21, 1995, 
     where Gore was in attendance, where they discussed raising 
     hard money. Evidence of this meeting supported the conclusion 
     that Gore knew hard money was the objective prior to making 
     the phone calls. (The 1996 Campaign Finance Investigations: 
     Hearing Before the Senate Comm. on the Judiciary, 106th Cong. 
     107-09 (2000)) I questioned Reno extensively about the fact 
     that she discounted the evidence from David Strauss, who was 
     the deputy Chief of Staff for Gore, who had made 
     contemporaneous notes at this November 21, 1995 meeting about 
     the discussion. Strauss had written: ``Sixty-five percent 
     soft, thirty-five percent hard,'' showing that hard and soft 
     money had been discussed at the meeting. Strauss later said 
     he could not remember what was discussed at the meeting. Reno 
     did not consider Strauss' notes because he said they did not 
     refresh his recollection. (Id. at 108) I pointed out to Reno 
     that Strauss' notes constituted competent evidence as an 
     exception to the hearsay rule as ``prior recollection 
     recorded.'' It was not determinative that Strauss said he did 
     not remember even after he looked at his notes since the 
     notes were valid evidence of ``prior recollection recorded.'' 
     (Federal Rule of Evidence 803(5)) I asked Reno if she was 
     familiar with the rule of evidence ``prior recollection 
     recorded'' and her responses indicated that she was not. (The 
     1996 Campaign Finance Investigations: Hearing Before the 
     Senate Comm. on the Judiciary, 106th Cong. 108-09, 112-113 
     (2000)) She apparently did not understand the difference 
     between ``recollection refreshed'' and ``prior recollection 
     recorded.''
       In my legal judgment, the evidence supported the 
     appointment of Independent Counsel as recommended by Freeh, 
     LaBella, and Conrad--especially if the Strauss notes had been 
     considered. Further investigation by Independent Counsel was 
     warranted to determine if favoritism had been shown to the 
     Vice President. Press reports indicate that Reno consulted 
     Holder throughout the investigation. (David Johnston, Reno 
     Aides Recommend Against Outside Counsel, Austin American-
     Stateman, Nov. 22, 1997; Deputy Attorney General Holds 
     Justice Department Weekly Media Availability, FDCH Political 
     Transcripts, Dec. 18, 1997; US Seeks to Verify Chinese 
     Campaign Influence, The Bulletin's Frontrunner, Feb. 13, 
     1998; John Bresnahan, Hatch May Hold New Hearings to Pressure 
     Reno on 1996 Campaign Finance Violations, Rollcall, May 11, 
     1998; Michael Kirkland, Reno Gets Advice from Freeh on Gore 
     Probe, United Press International, July 27, 2000) The 
     Judiciary Committee should question Mr. Holder on the issue 
     of his independence in following the facts without a 
     political bias in favoring Gore.
       A third controversial matter with which Mr. Holder was 
     involved was President Clinton's granting of clemency to 16 
     members of the terrorist organization FALN (an acronym which 
     translates to the Armed Forces of Puerto Rican Nationalists) 
     on August 11, 1999. The FALN organization had been linked to 
     over 150 bombings, threats, kidnappings, and other events 
     which resulted in the death of at least six people and the 
     injury of many more between 1974 and 1983. (Clemency for FALN 
     Members: Hearing Before the Senate Comm. on the Judiciary, 
     106th Cong. 1 (1999) (statement of Chairman Hatch)) For 
     example, four of the persons who received clemency were 
     convicted of involvement in the $7.2 million armed robbery of 
     a Wells Fargo office in 1983 (half of the money reportedly 
     ended up with the Cuban Government and was used to train and 
     finance the robbers). (Edmund H. Mahony, Clinton-Era Sentence 
     Reductions Could Trip Holder's Confirmation, The Hartford 
     Courant, Dec. 28, 2008) The grant of clemency was opposed by 
     the FBI, the Federal Bureau of Prisons, the Fraternal Order 
     of Police, victims of the FALN bombings, and two United 
     States Attorneys. (Clemency for FALN Members: Hearing Before 
     the Senate Comm. on the Judiciary, 106th Cong. 1 (1999) 
     (statement of Chairman Hatch)) In addition to the concerns 
     over granting clemency to persons convicted of being involved 
     in terrorist activities, serious allegations have been raised 
     that the normal clemency process was not followed.
       The FALN pardon process had an unusual beginning. In 1993, 
     a mass letter writing campaign was started to urge the 
     release of the FALN terrorists. The imprisoned terrorists did 
     not recognize the right of the U.S. government to hold them 
     in custody and refused to personally petition for clemency; 
     therefore, their attorneys petitioned on their behalf. One of 
     these attorneys was Dr. Luis Nieves-Falcon, who was later 
     identified as an FALN member. (Threat Assessment, U.S. Dept. 
     of Justice, Federal Bureau of Prisons, FBI Counterterrorism 
     Center, June 30, 1999. See also Draft Threat Assessment, U.S. 
     Dept. of Justice, Federal Bureau of Prisons, FBI 
     Counterterrorism Center, July 22, 1998) Although prisoners 
     typically file individual petitions for clemency, then-DAG 
     Philip Heymann's office agreed to treat the attorney-signed 
     petitions as valid petitions.
       The White House received thousands of letters from the 
     Puerto Rican community advocating for the release of the 
     terrorists, and three Puerto Rican Members of Congress, Jose 
     Serrano, Luis Gutierrez, and Nydia Velaquez, pushed for a 
     meeting with the White House to advocate for clemency. In 
     July 1994, then-Pardon Attorney Margaret Colgate Love met 
     with pro-clemency attorneys, and in 1995, she met with 
     religious leaders seeking clemency. In the spring and fall of 
     1996, Jack Quinn, the White House Counsel, also met with pro-
     clemency activists.
       In December 1996, Margaret Love sent a report to the White 
     House recommending against clemency for the FALN prisoners. 
     (Hearing on Clemency for FALN Members Before the Senate 
     Judiciary Committee, 105th Cong. 149 (Appendix, Letter from 
     Margaret Colgate Love to Charles F.C. Ruff, July 25, 1997)) 
     Later that month, White House officials met with pro-clemency 
     religious leaders. White House and DOJ officials continued to 
     meet with pro-clemency activists and the lawyers for the 
     terrorists throughout 1997, 1998 and 1999, until they were 
     pardoned on August 11, 1999.
       Mr. Holder met with the Puerto Rican Members of Congress on 
     November 5, 1997. At the meeting, Mr. Holder asked how the 
     prisoners had changed. Congressman Gutierrez promised to 
     supply in writing a statement from the prisoners on that 
     subject. After the meeting, Mr. Holder directed the Pardon 
     Attorney who replaced Margaret Love in November, Roger Adams, 
     to follow-up with Congressman Gutierrez's staff, since, 
     according to the Pardon Attorney's notes, ``[w]e are getting 
     ready to finish up our report and recommendation fairly soon, 
     and would like to have the statement on repentance to 
     include.'' (Roger Adams' Notes on DAG Holder's Meeting with 
     Puerto Rican Congressmen, Nov. 5, 1997. Roger Adams' follow-
     up telephone call notes for Enrique Fernandez and Doug 
     Scofield.)
       Mr. Holder had at least two additional meetings with pro-
     clemency advocates. On March 26, 1998, he met with President 
     Carter's pro-clemency representative, and on April 8, 1998, 
     he met with pro-clemency religious leaders. According to 
     notes from this meeting, the religious leaders provided a 
     mixed message as to whether the FALN terrorists had renounced 
     the use of violence. (Memorandum to file from Roger Adams on 
     meeting with FALN supporters, April 8, 1998) The leaders 
     provided Mr. Holder with a statement that the prisoners would 
     sign to show how they had changed. The statement, however, 
     did not contain a clear renunciation of violence. (SJC 
     Archive Document: Statement from the Puerto Rican Political 
     Prisoners)
       In the summer of 1999, Pardon Attorney Roger Adams 
     allegedly submitted to the White House a second document on 
     the FALN clemency, referred to as the ``options paper.'' 
     According to press accounts, this paper ``made no specific 
     recommendation'' regarding clemency, but it did reflect that 
     the FBI and two U.S. Attorney's Offices opposed clemency. 
     (Hearing on Clemency for FALN Members Before the Senate 
     Judiciary Committee, 105th Cong. 94-95 (statement of Chairman 
     Hatch); David Johnston, Clinton Went Against Advice on 
     Clemency, Orlando Sentinel, Aug. 27, 1999) A recent press 
     report cites an unnamed administration official who states 
     that Mr. Holder recommended the grant of clemency and asserts 
     that Mr. Holder's recommendation in favor of commutation 
     accompanied Mr. Adams' ``options paper.'' (Edmund H. Mahony, 
     Clinton-Era Sentence Reductions Could Trip Holder's 
     Confirmation, The Hartford Courant, Dec. 28, 2008) Mr. 
     Holder's alleged recommendation in favor of the commutations 
     contrasted with opposition by the FBI, the Federal Bureau of 
     Prisons, the Fraternal Order of Police, victims of the FALN 
     bombings, and two United States Attorneys. In August, the 
     terrorists were granted clemency.

[[Page 56]]

       On September 14, 1999, the Senate passed a joint resolution 
     by a vote of 95-2 stating that President Clinton should not 
     have made this grant. (S.J. Res 33, 106th Cong. (1999)) The 
     House passed a similar resolution on September 9, 1999, by a 
     vote of 311-41. (H. Con. Res. 180, 106th Cong. (1999))
       The Senate Judiciary Committee held two hearings on the 
     FALN commutations, one on September 15 and another on October 
     20, 1999. At these hearings, ten members of the Committee, 
     both Republicans and Democrats, expressed their concern over 
     these grants of clemency. Chairman Hatch stated in his 
     opening statement before the Committee: ``President Clinton, 
     who up to this point had only commuted three sentences since 
     becoming President, offered clemency to 16 members of the 
     FALN. This to me, and really almost every Member of Congress, 
     was shocking. And, quite frankly, I think I am joined by a 
     vast majority of Americans in my failure to understand why 
     the President, who has spoken out so boldly in opposition to 
     domestic terrorism in recent years, has taken this kind of an 
     action.'' (Clemency for FALN Members: Hearing Before the 
     Senate Comm. on the Judiciary, 106th Cong. 1 (1999) 
     (statement of Chairman Hatch) Then-Ranking Member Leahy 
     agreed stating: ``I did not agree with the President's recent 
     clemency decision . . . (Id. at 6 (statement of Sen. Leahy))
       Mr. Holder testified at the October 20th hearing, but he 
     refused to answer a number of questions citing executive 
     privilege. As summarized in recent press accounts, he 
     ``conceded that bombing victims were not consulted about 
     clemency, but declined to answer substantive questions, 
     including why the Office of the Pardon Attorney issued two 
     inconsistent reports and why those getting sentence 
     commutations were never pressed to provide information about 
     fugitive co-defendants.'' (Edmund H. Mahony, Clinton-Era 
     Sentence Reductions Could Trip Holder's Confirmation, The 
     Hartford Courant, Dec. 28, 2008) Mr. Holder did testify, 
     however, that the 1996 recommendation against clemency 
     existed and that following the report there were ``subsequent 
     communications'' between DOJ and the White House. (Clemency 
     for FALN Members: Hearing Before the Senate Comm. on the 
     Judiciary, 106th Cong. 97, 122 (1999) (statement of Eric 
     Holder, Deputy Attorney General)) Asserting executive 
     privilege, he would not discuss the ``options paper'' or 
     state if that document contained a recommendation. (Id. at 
     97, 120-21)
       During the hearing, the Judiciary Committee also learned 
     that victims and groups opposing clemency were not consulted 
     prior to the grant of clemency. A number of Senators 
     articulated their concern over this lack of consultation, 
     which prompted Senator Leahy to send a letter to Attorney 
     General Reno after the hearing expressing his concern over 
     the clemency process and, in particular, his alarm that the 
     victims of the FALN terrorists were not contacted prior to 
     the grant of clemency. He wrote: ``I was troubled to learn 
     through both press reports and testimony at a recent 
     committee hearing that victims of some of the bombings 
     perpetrated by the FALN were not consulted or even contacted 
     with regard to the clemency offers made to some members of 
     that organization. Indeed, one victim reported that he 
     learned of the clemency offers through a relative who had 
     heard media reports.'' (Id. at 139 (letter from Senator Leahy 
     to Attorney General Reno))
       The timing of the FALN clemency was especially curious 
     given then-recent threat assessments issued by the Justice 
     Department. In October 1999, Attorney General Reno released a 
     five-year interagency counterterrorism and technology crime 
     plan that acknowledged the threat posed by the FALN 
     terrorists. The report stated that, ``Factors which increase 
     the present threat from these groups [the FALN and Los 
     Macheteros] include . . . the impending release from prison 
     of members of these groups jailed for prior violence.'' 
     (Five-Year Interagency Counterterrorism and Technology Crime 
     Plan, Unclassified Edition, Department of Justice, Sept. 
     1999) Since this report was issued by the DAG's office, Mr. 
     Holder was questioned about the report at a press conference. 
     He stated that the report was talking about ``the possibility 
     that people from among other groups, the FALN, were going to 
     be released over the next few years.'' (Email from Patrick 
     O'Brien with Talking Points and Press Conference Excerpts, 
     Oct. 21, 1999)
       Another matter worthy of consideration during the hearing 
     concerns the circumstances of Margaret Love's departure from 
     the Pardon Office. Margaret Love served as Pardon Attorney 
     from 1990 to November 1997. Ms. Love, 20-year veteran of the 
     Department, was removed from office by Mr. Holder based on 
     charges of mismanagement after she recommended against the 
     commutations of the FALN terrorists and shortly after Mr. 
     Holder was confirmed as DAG in July 1997. She was replaced by 
     Roger Adams, a member of Mr. Holder's staff. I believe 
     questions surrounding her removal from office should be 
     raised with Mr. Holder.
       It is significant that, on these three matters, Mr. Holder 
     overruled the advice of career professionals. With regard to 
     the Rich and Green pardons, Mr. Holder told White House 
     counsel Beth Nolan that he was ``neutral, leaning towards 
     favorable'' on the pardon despite the express opposition of 
     the U.S. Attorney for the Southern District of New York, the 
     career attorneys who prosecuted the case, and the FBI. 
     Further, prior to Mr. Holder's statement to Ms. Nolan, pardon 
     attorney Roger Adams had contacted Mr. Holder to express his 
     concerns regarding Rich's fugitive status and the charges for 
     arms trading.
       In the FALN commutations matter, press accounts indicate 
     the Mr. Holder submitted a recommendation in favor of those 
     clemency requests even though the initial recommendation by 
     Pardon Attorney Margaret Love opposed the commutations and 
     the grants were opposed by the FBI, the Federal Bureau of 
     Prisons, the Fraternal Order of Police, victims of the FALN 
     bombings, and two United States Attorneys.
       Finally, while the record is unclear as to Mr. Holder's 
     precise role in the campaign finance investigation, it is 
     clear that Attorney General Reno consulted Mr. Holder on 
     these matters and that the recommendations of the heads of 
     the campaign finance special task force, Charles LaBella and 
     Robert Conrad, as well as the recommendation of FBI Director 
     Louis Freeh, for the appointment of Independent Counsel were 
     overruled.
       These matters require further questioning. In two of them, 
     Mr. Holder appears to be serving the interests of his 
     superiors. There is an underlying issue about Mr. Holder not 
     following the recommendations of career attorneys. As Senator 
     Leahy and I noted in our op-ed ``the attorney general must be 
     someone who deeply appreciates and respects the work and 
     commitment of the thousands of men and women who work in the 
     branches and divisions of the Justice Department day in and 
     day out, without regard to politics or ideology, doing their 
     best to enforce the law and promote justice.'' It is to be 
     expected that politically appointed federal officers will not 
     always follow the advice of career staff, but this pattern is 
     troubling.
       In raising these concerns, I am not passing judgment on the 
     nominee. I am prepared to give Mr. Holder a full opportunity 
     to explain his past actions and convince the Committee and 
     the Senate that his record warrants confirmation. Indeed, it 
     may be helpful for him to have advance notice of these 
     specific concerns of mine to give him notice so he can 
     prepare for the hearing. With considerable experience in 
     confirmation hearings, including eleven Supreme Court 
     nominations, I have learned to keep an open mind without 
     prejudgment until the nominees have had their ``day in 
     court''--that is in the Judiciary Committee hearing.

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