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“FIRING OF U.S. ATTORNEYS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8736-S8737 on June 29, 2007.
The publication is reproduced in full below:
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 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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