[Congressional Record (Bound Edition), Volume 160 (2014), Part 7]
[Senate]
[Pages 9551-9553]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           KADZIK NOMINATION

  Mr. GRASSLEY. Madam President, I come to the floor to speak about the 
nomination of Peter Kadzik to be an Assistant Attorney General for 
Legislative Affairs in the Justice Department. I happen to know that 
the majority leader hasn't yet filed cloture on this nomination, but I 
expect that he will in the near future. So now I take the opportunity 
to speak about that nomination.
  It is no secret that I have concerns about Mr. Kadzik's nomination. I 
opposed his nomination in committee, and I will oppose it when it comes 
to a vote on the floor.
  The reasons are pretty simple. Mr. Kadzik has been acting in that 
position since April 2013--in other words, in the very same position 
for which he has been nominated. His job is to respond to questions 
from Members of Congress. We have a clear track record to judge his 
performance, and that record has been dismal. Letters go unanswered for 
months. Then, when answers come, they ignore or dodge the questions.
  Even before coming to the Justice Department, Mr. Kadzik had shown a 
lack of respect for congressional oversight. While he was in private 
practice, he represented the billionaire tax fugitive Marc Rich. Rich 
was infamously pardoned at the end of the Clinton administration 
following a large donation by Mrs. Rich to the Clinton Presidential 
Library. No fugitive has ever been pardoned before--let alone a 
billionaire fugitive who owed millions of unpaid taxes.
  In the course of the congressional investigation into that 
controversy, Mr. Kadzik was subpoenaed to testify at the House hearing 
in 2001. He refused the committee's invitation to testify voluntarily. 
Then, he decided to fly to California the day before the hearing. The 
House committee had to send the U.S. marshals to serve him with a 
subpoena in California ordering him to return for the hearing. He later 
denied that his attorneys knew a subpoena was on the way when he got on 
the plane. But his denial is contradicted by handwritten notes from 
2001 telephone conversations with his attorneys about the subpoena. 
Those notes are in the record of his confirmation hearings, and I 
invite any Senator to review them.
  Some people might say: Well, that was a long time ago, and maybe it 
was just a misunderstanding.
  But one thing is not in dispute even by Mr. Kadzik: He refused the 
House committee's request to testify voluntarily. He was unwilling to 
cooperate unless forced to do so by compulsory legal process. 
Everything in his record since then has reinforced the impression that 
Mr. Kadzik is simply not interested in answering questions from 
Congress unless he has no other choice.
  He was not forthcoming during his nomination hearing on several 
issues, not just the Marc Rich controversy. Getting him to answer 
simple inquiries has required two or even three sets of questions. He 
wouldn't even promise to answer each individual question from members 
of our Judiciary Committee. Instead, he had a bad habit of grouping 
together a set of specific detailed questions, and then repeating one 
vague nonanswer over and over. In one set of responses he repeated word 
for word the same answer to previous questions nine times. That simply 
is not a good-faith effort to be responsive to each question.
  When his answer was one he thought I didn't want to hear, he glossed 
over it. Example: At his nomination hearing, I asked Mr. Kadzik whether 
he intended to provide certain documents Chairman Issa and I had 
requested relating to a briefing by the Bureau of Alcohol, Tobacco, 
Firearms and Explosives. After he failed to mention the documents in 
his response, I prompted him about the documents once again and he 
evaded the question. Only after two subsequent sets of questions for 
the record did Mr. Kadzik finally come clean and admit that the 
Department would refuse to provide those documents requested. Mr. 
Kadzik should have been that candid initially, instead of avoiding the 
issue.
  His seeming inability to give straightforward and accurate answers to 
simple questions causes real concern for me about his ability to 
perform his job, of which a very important part is answering inquiries 
from Members of Congress. I think an Assistant Attorney General for 
Legislative Affairs needs to ensure that Congress receives accurate 
information from the Department. That is what checks and balances of 
our constitutional setup is all about.
  This also became a problem for Mr. Kadzik's predecessor, whose false 
denials about Operation Fast and Furious eventually had to be 
retracted. This office needs leadership that will restore its 
credibility. Mr. Kadzik's track record in the acting position makes it 
clear he does not have what it takes to restore sorely needed 
credibility. At Mr. Kadzik's confirmation hearing last October, Senator 
Feinstein told Mr. Kadzik that the Senate's Select Committee on 
Intelligence had recently received answers to questions for the record 
from the FBI that were over 1 year late. As she pointed out to Mr.

[[Page 9552]]

Kadzik, ``A year is really outside the pale of propriety.''
  Mr. Kadzik said in response: ``One of my missions at the Department 
is to improve that record and to expedite the providing of information 
to this Committee and all Members of Congress.'' But from what I have 
seen so far, Mr. Kadzik's record has been even worse than his 
predecessor's.
  The Judiciary Committee still has not received answers to questions 
for the record from Attorney General Holder from an oversight hearing 
dating back to March 6, 2013, 14 months ago. Recently, the Judiciary 
Committee received answers to FBI questions for the record dated 
``current as of August 26, 2013.'' According to the FBI Congressional 
Affairs staff, that is when the answers were forwarded to Mr. Kadzik's 
office. Although the FBI responses to Congress were then only 2 months 
old, apparently they sat in Mr. Kadzik's Office of Legislative Affairs 
for another 9 months.
  Mr. Kadzik is just as unresponsive to letters. His staff recently 
acknowledged they were aware of 13 pending letters from this Senator 
that have gone completely unanswered. I don't mean he replied with an 
answer I didn't think was good enough; I mean there was simply no reply 
whatsoever. Some of those questions from this Senator dated back to 
October 2012, well over a year and a half ago. His office is completely 
ignoring those letters.
  He did send me a couple of very weak responses in just the last few 
days. Each of those was essentially one paragraph long. One was a reply 
to a letter I sent almost 1 year ago. The other replied to a letter 
from January in which I asked four simple questions. They addressed 
Attorney General Holder's failure to issue a report on the need for 
reform of the FBI's whistleblower procedures.
  The Attorney General was required to report to President Obama within 
180 days of the Presidential directive on whistleblowers, which was 
issued October 2012. A little history: The FBI was exempted from 
whistleblower provisions in the Civil Service Act of 1978 and the 
Whistleblower Protection Act of 1989. That has resulted in the FBI 
being one of the worst retaliators against whistleblowers over the 
years. Therefore, the FBI report President Obama requested was an 
important part of the Presidential directive. I had written to the 
Justice Department 3 weeks after the Presidential directive in 2012 to 
emphasize how important it was that the directive be followed and that 
the FBI people have proper whistleblower protection. Then there was a 
180-day deadline. That deadline came and went.
  I wrote the Justice Department earlier this year asking about the 
report because at that time it was more than 10 months overdue. I asked 
the current status of the report, why they had failed to issue it so 
far, when it would be complete, and whether they would provide a copy 
to the Judiciary Committee.
  So those are the simple questions I asked Mr. Kadzik. Once again, the 
nominee failed to send a prompt, good-faith response to my letter. Mr. 
Kadzik could have written immediately to say the Justice Department 
knows this review is important and explain why it was taking longer 
than they thought. Mr. Kadzik could have told me the review was 
expected to take several more months. Instead he waited 4 long months 
until the report was complete, then simply sent me a one-paragraph 
response, stating the report was sent to the President of the United 
States. He didn't try to explain why it took so long. He completely 
ignored my question about providing a copy of the report to our 
Judiciary Committee. This is not the kind of good-faith, candid 
response the Justice Department owes Congress, especially in our 
oversight capacity to see that the laws are faithfully executed by the 
President of the United States.
  As a nominee who already works in that office, Mr. Kadzik had the 
opportunity to demonstrate a real commitment to the role of 
congressional oversight in our constitutional system of checks and 
balances. He could have answered the mail on time. He could have 
insisted on candid, good-faith, substantive replies to Congress. Rather 
than trying to raise the bar, he lowered it.
  The attitude this nominee brings to dealing with congressional 
oversight and the requests we make is a symptom of much larger 
problems. The Justice Department has a lot of work to do to rebuild 
trust and confidence after the false letter it sent me on Operation 
Fast and Furious. It still is fighting in court to avoid turning over 
documents that explain its decision to ultimately withdraw the letter 
and admit that letter was false.
  The Obama administration is arguing for a vastly expanded view of 
executive privilege. They want the ability to expand it far beyond 
direct advice a counselor would give to the President. They want it to 
include internal emails between lower level bureaucrats and agencies 
and departments. These, the administration claims, are so-called 
deliberative documents. They are created by people who may never even 
have been to the White House, let alone advise the President on 
anything where lawyer-client relationship can be established. That kind 
of broad privilege would be a massive blow to government transparency 
and to our system of checks and balances.
  The position the Obama administration is taking in the Operation Fast 
and Furious lawsuit is a direct breach of the promise the President 
made in his first day in office. He pledged at that time to have the 
most transparent administration in the history of this country, but now 
the President's Justice Department is arguing for a massive expansion 
of executive privilege to include all of that so-called deliberative 
material. This nominee, Mr. Kadzik, is aggressively implementing that 
new policy even today, refusing to answer questions and withholding 
documents. His actions today are consistent with his history. Voluntary 
cooperation takes a backseat to legalism and forcing a legal 
confrontation.
  I wish I could say Mr. Kadzik had demonstrated the kind of serious 
commitment to open, honest, and forthright cooperation with 
congressional oversight that the office needs. Unfortunately, he has 
not, but the failure to cooperate extends far beyond Mr. Kadzik's 
investigations.
  We don't need to look any further than today's headlines to see the 
latest instance of this administration's failure to abide by its 
obligations under the law to submit to congressional oversight. Of 
course I am referring to the recent release of five of the most 
dangerous detainees from Guantanamo. The President's decision to 
release what some have called the Taliban Dream Team without notifying 
Congress in advance exemplifies this administration's contempt for 
congressional oversight. It is troubling for a host of reasons, 
especially when the stakes are so high.
  In December 2013, Congress passed and the President signed the 2014 
National Defense Authorization Act. Section 1035 of that law addresses 
the procedure the executive branch is required to follow if the 
President decides to release a detainee being held at Guantanamo Bay. 
This process isn't optional. It is not something that is a matter of 
Presidential discretion. It is actually required as a matter of federal 
law. It is required by a law this President signed.
  The White House's failure to follow the law in this instance is just 
the latest example of this administration's blatant disregard for 
congressional authority. The law requires the President to notify 
certain House and Senate committees, including the Senate Select 
Committee on Intelligence and the House Permanent Select Committee on 
Intelligence, at least 30 days before Guantanamo Bay detainees are 
transferred or released. Obviously that did not happen.
  Not only that but the law requires the President to explain ``why the 
transfer or release is in the national security interest of the United 
States.'' That didn't happen either. The President also had a legal 
obligation to describe any actions his administration took ``to 
mitigate the risks of reengagement by the individuals to be

[[Page 9553]]

transferred or released.'' Such mitigating actions are required by the 
law, but that didn't happen either.
  The reasons for these legal requirements are fairly obvious. The 
Members of this body understand and respect the President's 
responsibility to protect national security. That is in fact his 
paramount responsibility as Commander in Chief, but we too have a 
responsibility in this Congress and all Congresses to ensure that the 
national security is protected. Congress is a coequal branch of 
government. Yet our ability to ensure that the actions this President 
takes are designed to promote the national security have been thwarted 
because this White House kept us in the dark about the release of the 
five Taliban kingpins every step of the way.
  The administration is fully aware it violated Federal law in failing 
to timely notify Congress of its intentions. We know this because the 
White House has contacted some of my colleagues on the Select Committee 
on Intelligence and apologized--actually apologized--for failing to 
notify them in advance; in other words, apologized for not following 
the law.
  According to press reports the White House said the failure to make 
notification required by law was ``an oversight.'' An oversight? What 
happened is not an oversight. An oversight is what happens when you 
forget to send a thank-you note for a birthday gift. This was not an 
oversight. In other words, it is extremely difficult to view this as 
anything but a deliberate attempt to leave Senators in the dark. You 
don't simply forget to meet your legal obligations to notify Congress, 
and it is not as if this was some obscure provision of the law nobody 
knew anything about. This has always been a very big deal. Not only did 
the White House have an obligation to notify Congress, but the White 
House had previously promised that it would in fact comply with the 
law.
  On June 21, 2013, at the White House press briefing, Press Secretary 
Jay Carney promised that the administration ``would not make any 
decision about the transfers of any detainees without consulting with 
Congress and without doing so in accordance with U.S. law.''
  It is perfectly clear the administration was aware of its duties 
under the law and made a calculated and deliberate decision to ignore 
them. The President more or less admitted this when he recently 
explained at a press conference in Poland that he saw an opportunity he 
had to take immediately because ``we were concerned about Sgt. 
Bergdahl's health.''
  I am sick and tired of the approach this administration takes toward 
its legal obligations under the law, and that is why I wrote to the 
Attorney General in January of this year concerning some statements the 
President made in the State of the Union Address, hinting that he 
intended to take unilateral action using executive orders.
  In the letter I wrote to the Attorney General, I asked him to direct 
the Justice Department's Office of Legal Counsel to publicly disclose 
its opinions and conclusions concerning the lawfulness of executive 
orders issued by the President.
  Here is where Mr. Kadzik comes in. In May he declined my request, 
citing again his overbroad and legally unsupportable claims of 
executive privilege.
  It is not without good reason that the former executive editor of the 
New York Times--by the way, an outlet that is not exactly an aggressive 
critic of the President--called this White House the most secretive she 
ever covered.
  So let me renew my request to the Attorney General regarding the 
publication of opinions from the Office of Legal Counsel. Frankly, I 
think my request is all the more important now that we have seen the 
administration's flagrant disregard for Federal law in the matter of 
the Taliban prisoner deal. I am, therefore, asking the Attorney General 
to direct the Office of Legal Counsel to make public any opinions or 
legal analysis concerning the lawfulness of the transfer of the Taliban 
commanders without compliance with section 1035 of the National Defense 
Authorization. But given this Department's track record, I am not going 
to hold my breath that that request will be honored.
  I will sum up by saying this: Mr. Kadzik's nomination is a perfect 
example of the contempt that this--the self-professed most transparent 
administration in history--has for congressional oversight authority.
  Let me be clear to my colleagues on the other side of the aisle. One 
day you folks might be in the minority or the administration might be 
controlled by the Republican Party. If a Republican administration 
ignores your oversight request, how can you complain, if you don't 
stand up today, when the shoe was on the other foot? If you support 
this kind of stonewalling now by supporting this nominee, it will come 
back to bite you, and, of course, you will deserve it. I plan to be 
around here to remind you of that.
  I will vote against this nominee and urge my colleagues to do the 
same.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. King). The clerk will call the roll.
  The assistant bill clerk proceeded to call the roll.
  Mr. COATS. Mr. 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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