Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
On the Nomination of Peter Kadzik
to be Assistant Attorney General,
Department of Justice Legislative Affairs Office
 

I’d like to address the nomination of Peter Kadzik to be the Assistant Attorney General for Legislative Affairs at the Justice Department.  I know the Majority Leader hasn’t filed cloture on this nomination yet, but I expect that he will in the near future and would like to take the opportunity to speak about it now.

It’s no secret that I have concerns with Mr. Kadzik’s nomination.  I opposed his nomination in committee, and I’ll oppose it when it comes to the floor.

The reasons are simple.

Mr. Kadzik has been acting since April 2013 in the position to which he’s been nominated.  His job is to respond to questions from members of Congress.  We’ve got a clear track record to judge his performance by.  That record has been dismal.  Letters go unanswered for months. Then, when the answers finally 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 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 had ever been pardoned before – let alone a billionaire fugitive who owed millions in unpaid taxes.

In the course of the congressional investigation into that controversy, Mr. Kadzik was subpoenaed to testify at a House hearing in 2001.  He refused the House 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 before he got on the plane.  But his denial is contradicted by handwritten notes from 2001 of telephone conversations with his attorneys about the subpoena.  Those notes are in the record of his confirmation hearing for any Senator to review.

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’s got 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 has a bad habit of grouping together a set of specific, detailed questions and then repeating one vague non-answer over and over.  In one set of responses, he repeated word-for-word the same answer to a previous question nine times.

That’s simply 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.  For 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 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.

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 this job. 

The Assistant Attorney General for Legislative Affairs needs to ensure that Congress receives accurate information from the Department.  This also became a problem with Mr. Kadzik’s predecessor, whose false denials about Operation Fast and Furious eventually had to be retracted.
This office needs leadership to restore its credibility.

Mr. Kadzik’s track record in the acting position makes it clear that he does not have what it takes to restore that sorely needed credibility.  At Mr. Kadzik’s confirmation hearing last October, Senator Feinstein told Mr. Kadzik that the Senate Select Committee on Intelligence had recently received answers to Questions for the Record from the FBI that were over a year late.  As she pointed out to Mr. 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 to all Members of Congress.”  But, from what I’ve 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 for Attorney General Holder from an oversight hearing on March 6, 2013.

That was fourteen 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’s congressional affairs staff, that’s when the answers were forwarded to Mr. Kadzik’s office.  Although the FBI’s responses to Congress were then only two months old, apparently they sat in Mr. Kadzik’s Office of Legislative Affairs for another nine months.

Mr. Kadzik is just as unresponsive to letters.

His staff recently acknowledged that they were aware of 13 pending letters from me 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 no reply whatsoever.  Some of them 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 the last few days.  Each of those was essentially a paragraph long.  One was a reply to a letter I sent almost a 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 his Presidential directive on whistleblowers, which was issued in October 2012.  The FBI was exempted from whistleblower provisions of 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 was asking for was an important part of the Presidential directive.  I had written the Justice Department three weeks after the Presidential directive in 2012 to emphasize how important it was.  Then, the 180 day deadline came and went.

I wrote the Justice Department earlier this year asking about the report because it was more than ten months overdue.  I asked the current status of the review, 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.  Once again, Mr. Kadzik failed to send a prompt, good-faith response to my letter.  Mr. Kadzik could have written me immediately to say that the Justice Department knows this review is important and explain why it was taking longer than they thought.  Mr. Kadzik could have told me that the review was expected to take several more months.  

Instead, he waited four months until the report was complete, then simply sent me a one paragraph response stating that it was sent to the President.  He didn’t try to explain why it took so long.  He completely ignored my question about providing a copy of the report to the Judiciary Committee.

This is not the kind of good-faith, candid response that the Justice Department owes Congress – especially in our oversight capacity to see that the laws are faithfully executed.

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’ve answered the mail on time.  He could’ve insisted on candid, good-faith, substantive replies to Congress.  Rather than trying to raise the bar, he’s lowered it.

The attitude this nominee brings to dealing with congressional oversight requests 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 to me on Operation Fast and Furious.  It’s still fighting in court to avoid turning over documents that explain its decision to ultimately withdraw the letter and admit it was false.  The Obama administration is arguing for a vastly expanded view of executive privilege.  They want the ability to expand it far beyond just direct advice to the President.  They want it to include internal emails between lower-level bureaucrats in the agencies and departments.  These, the administration claims, are so-called “deliberative” documents.  They are created by people who may never have even been to the White House, let alone advised the President on anything where a 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 that the Obama administration is taking in the Fast and Furious lawsuit is a direct breach of the promise that the President made on his first day in office.

He pledged to have the most transparent administration in history.  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.  And this nominee 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 back seat to legalism and forcing a legal confrontation.

I wish I could say that 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 evasions.  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.
 
I’m referring of course 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’s troubling for a host of reasons, especially when the stakes are so high.  

Let me explain.

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’s not something that’s a matter of Presidential discretion.  

It’s required as a matter of federal law.  

It’s required by the 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 a Guantanamo Bay detainee is transferred or released.  

That didn’t 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 that his administration took “to mitigate the risks of reengagement by the individuals to be transferred or released.”  Such mitigating actions are required by the law.

But that didn’t happen.

Now, the reasons for these legal requirements are fairly obvious.  The members of this body understand and respect the president’s responsibility to protect the national security.
That is in fact his paramount responsibility as Commander-in-Chief.  But we, too, have a responsibility to ensure that the national security is protected.

Congress is a co-equal branch of government.  

Yet our ability to ensure that the actions this President takes are designed to promote the national security has been thwarted.  That’s because this White House has kept us in the dark about the release of these five Taliban kingpins every step of the way.  

The administration is fully aware that 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 for failing to notify them in advance.  According to press reports, the White House said that the failure to make the notifications required by law was an “oversight.”

An “oversight”?  

What happened here 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.  

It’s 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 obligation to notify Congress.  And it’s not as if this was some obscure provision of the law that nobody knew 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 decisions about transfer of any detainees without consulting with Congress and without doing so in accordance with U.S. law.”  

So it’s perfectly clear the administration was aware of its duties under federal 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” that he had to take immediately because “we were concerned about Sergeant Bergdahl’s health.”

So, I’m sick and tired of the approach this administration takes toward its obligations under the law.  

That’s why I wrote to the Attorney General in January of this year concerning some statements the President made in this State of the Union address hinting that he intended to take unilateral action using executive orders.  In that letter, I asked the Attorney General 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’s where Mr. Kadzik comes in.

In May, he declined my request, citing again his over-broad and legally unsupportable claims of executive privilege.  

It’s not without good reason that the former executive editor of the New York Times – an outlet that’s not exactly an aggressive critic of the President – called this White House the “most secretive” she’s 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’ve seen the administration’s flagrant disregard for federal law in this matter of the Taliban prisoner deal.  I’m 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 Act.

But given the Department’s track record, I’m not holding my breath.

Let me 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.  And let me be clear to my colleagues on the other side of the aisle.  One day, you might be in the minority, or the administration might be controlled by the Republican party.  If a Republican administration ignores your oversight requests, how can you complain if you didn’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’ll come back to bite you.  And you’ll deserve it.  And I plan to be around here to remind you of it.

I’ll vote against this nominee and urge my colleagues to do the same.
 

 

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