Prepared Floor Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
The Current Judiciary Committee Agenda
Thursday, June 13, 2013
Mr. President,
I would like to take a minute or two to discuss a few items addressed today in the Judiciary Committee markup. Because of my responsibilities on the immigration bill, I was unable to deliver those remarks there.
First, I want to talk about the nominations hearing we had earlier this week for B. Todd Jones.
There is an open investigation in the Office of Special Counsel regarding very troubling allegations that Mr. Jones retaliated against a whistleblower in the U.S. Attorney’s office. Last week, Carolyn Lerner, the Special Counsel who leads the office, wrote us a letter explaining the status of the matter. She wrote that the parties had agreed to participate in mediation. She also wrote, “if mediation is unsuccessful, the case would return to OSC’s Investigation Prosecution Division for further investigation.”
On Monday, she wrote us another letter confirming that the case was still open.
Now, we were told that the reason we had to move forward with the hearing was because an April letter from the Office of Special Counsel was made public.
The justification for holding the hearing was that, since that issue was made public, the nominee should have an opportunity to respond at a hearing. But of course there was nothing confidential in the OSC letter. I am not about to hide this issue from the public. It is relevant to our inquiry as to the qualifications of this nominee.
Moving forward under these circumstances is not consistent with past Committee practice. And of course, there are sensible reasons for that Committee practice.
First, none of us knows what the results of this investigation will be. How are we supposed to make an assessment of the matter while it is still open?
Second, how are we supposed to ask the nominee about the “results” of the investigation, when the investigation hasn’t concluded?
And third, how are we supposed to ask the nominee about an open investigation, when the nominee will claim he can’t talk about it for that exact reason?
I would note that the AUSA who filed the complaint against Mr. Jones gave his consent on Monday for the Office of Special counsel to provide the Complaint to the Committee. And I must say that the allegations in the complaint are extremely troubling.
So I began my questions by asking Mr. Jones about these allegations. Here is what Mr. Jones said:
“Because those complaints are confidential as a matter of law I have not seen the substance of the complaints nor can I comment on what they are.
“I have learned more from your statement today then what I knew before I came here this morning about the nature and substance of the complaint.”
In other words, Mr. Jones said he could not answer questions about the OSC investigation because it remains open. This is precisely why it is imprudent to move forward with a hearing in this way.
At his hearing I followed up with another question about whether Mr. Jones had ever taken adverse personnel action. He responded:
“I’m not familiar with the OSC complaint. I’m at somewhat of a disadvantage with the facts. I can say that privacy act considerations do fit into the picture.”
As another follow up, I asked him how we were supposed to ask about the Complaint if he would not answer.
Here is what Mr. Jones said:
“Well quite frankly Senator I’m at a disadvantage with the facts. There is a process in place. I have not seen the O.S.C. complaint.”
So again, even though there is an open investigation, we were told we were going forward with the hearing so that Mr. Jones had an opportunity to answer the allegations. But whenever he was asked about it, he said he couldn’t answer our questions because he hadn’t seen the complaint.
So, my point about the hearing being premature was overwhelmingly proven.
I also want to make a few comments about Tony West, nominated to be the Associate Attorney General. He is currently the Acting Associate Attorney General and has generally done a good job. However, I remain concerned about his time serving as the Assistant Attorney General for the Civil Division.
He was involved in the quid pro quo deal between the Department and the City of St. Paul, Minnesota that was orchestrated by Assistant Attorney General Tom Perez. That quid pro quo involved the Department agreeing to decline two False Claims Act cases pending against the City of St. Paul in exchange for the City dropping a case pending before the Supreme Court.
Perhaps the most concerning part to me is that Mr. West essentially let Assistant Attorney General in the Civil Rights Division Tom Perez take control of the Civil Division and cut a deal which hurt the whistleblower, Frederick Newell, leaving him to fight his case all alone. This is not how I expect the Department to treat good faith whistleblowers.
On top of all that, I believe it is contrary to the assurances that I was given by Mr. West that he would protect whistleblowers and vigorously enforce the False Claims Act when we held his confirmation hearing in 2009. If this nominee is ultimately confirmed, I sincerely hope he does not let politics within the Department control, instead of support, good faith whistleblowers who stick their necks out.
I also wanted to address the nomination of Ms. Caproni, to be a District Judge. I have concerns over the fact that I made a request to the FBI more than six years ago, asking for documents regarding exigent letters. In March 2007, Chairman Leahy and I requested copies of unclassified emails related to the use of National Security Letters issued by the FBI.
I only received a few of these emails, and they were heavily redacted, so in 2008 I asked for the rest. Ms. Caproni, was general counsel of the FBI at the time and told me that the documents I was waiting for were on her desk, awaiting her review.
Well, it’s now 2013 and as of her hearing, I had never received these documents.
I asked Ms. Caproni about this in her hearing and she had no specific recollection of this request. So, I asked her again in writing. This led to a set of FOIA documents being produced, which are a poor substitute for properly answering a Committee request. It also raises further questions as to why it took six years and why Ms. Caproni told me years ago that she was working on responding to our request.
I have followed up with the FBI with specific requestsregarding Ms. Caproni’s involvement in the matter. Therefore, while I did not hold Ms. Caproni’s nomination in Committee, I reserve my right to do so on the Senate floor.
Concerning S.394, the metal theft bill that we reported out this morning, I appreciate the changes that the sponsors made at my request to the criminal portion of the bill. The nature of the offense is clarified, and limited to the federal interest of critical infrastructure.
The bill also now requires criminal intent as an element of the proposed offense. The negligence standard in the bill has been eliminated.
However, I still have a number of concerns with this bill. The reality is that theft is already illegal everywhere in the country. So is receipt of stolen goods. That raises questions about the necessity of a new federal offense.
The civil provisions are also duplicative of many state laws. The regulatory elements of this bill apply to any transaction in specified metal products exceeding $100. In my opinion, $100 seems to be a very low threshold.
We should not impose federal obligations unless the transaction is of a significant amount. States can enforce their own laws if they have enacted a lower threshold.
Some of the recordkeeping requirements are of questionable value. For instance, the recipient must record the license plate number and make of the car used to deliver the metal.
Although the sponsors agreed to reduce the maximum amount, the dealer still faces up to a $5000 penalty if he knowingly commits a paperwork violation, unless it is minor. This is true even if the metal is not stolen. That strikes me as excessive.
And the sponsors declined to accept the changes that I sought in the civil provision, especially as enforced by the state attorneys general. Those provisions effectively allow a private right of action, even a class action, to enforce these paperwork violations at up to $5000 per violation.
Not only can federal authorities enforce the bill’s civil authorities, but so can the states. If metal theft continues, then that diffuse authority undermines the ability of citizens to hold accountable the responsible level of government.
This would allow the states to bring these cases in friendly state courts and expand the number of cases by outsourcing them to private lawyers paid under contingency fees. This leads to more enforcement than would occur if these cases had to compete for attention with other priorities that state attorneys general would bring. Excessive government can derive not only from broad laws, but from overzealous enforcement. The bill sponsors rejected my request that suits by the state AG’s be filed only in federal court, and that any federal actions would supersede them.
There should be transparency and accountability for these lawsuits that are brought under authority of federal law.
I had amendments to discuss in markup, but will not do that here. However, when the full Senate takes up the bill, I will not be able to support it in its current form. I hope to work with the sponsors to address the concerns I have with this bill.