Prepared Statement of Senator Chuck Grassley of Iowa
Ranking Member, Senate Committee on the Judiciary
Hearing on the Nominations of
B. Todd Jones, to be Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives
Stuart F. Delery, to be the Assistant Attorney General for the Civil Division
Tuesday, June 11, 2013
Madam Chair,
As the Chairman of this Committee knows, and as I told her yesterday, I objected to holding this hearing today and requested the hearing be postponed. As we sit here today, there remains an open investigation by the Office of Special Counsel regarding Mr. Jones’ conduct as U.S. Attorney. Generally, when a nominee is the subject of an open investigation, the Committee does not move forward until the issues are resolved. That is the sensible thing to do.
When there is a pending investigation, the Committee obviously doesn’t have the full information about the nominee. In this case, there are allegations of gross mismanagement and abuses of authority in Mr. Jones’ office. And there is a complaint that Mr. Jones retaliated against a whistleblower.
These are serious charges, and ones that are of particular concern to me. The public interest demands resolution of these issues. Members of the Committee are entitled to know if these charges have merit.
One way for that to happen is for the Committee to undertake its own investigation. That has not happened. Another is to follow the usual Committee practice and wait for any third-party investigating agency complete its process and reach a conclusion. That has not taken place, either.
So we are left today to take Mr. Jones’ word. We have no way to independently verify what he says or to ascertain the truth of the matter.
In addition to the open complaint, there are numerous unresolved issues regarding Mr. Jones and his record while serving as United States Attorney and Acting ATF Director.
That is why I requested a postponement of the hearing. While the chairman did postpone the hearing one week, that did not cure the procedural defects with the nomination. So it is unfortunate that we go ahead with this hearing before the open complaint is resolved.
In April, when the Chairman started talking about a hearing for Mr. Jones, I was concerned about moving forward. There were a number of outstanding requests that I had made to Mr. Jones.
And I had previously received a copy of an anonymous letter to the Office of Special Counsel making various allegations against Mr. Jones. I sent a letter to OSC on April 8, asking for an update on those allegations.
On April 12, OSC responded that there were two pending matters involving the US Attorney’s Office, District of Minnesota, where Mr. Jones is the United States Attorney.
The first matter was a prohibited personnel practice complaint and the second was a whistleblower disclosure, alleging gross mismanagement and abuses of authority.
On May 28, the Chairman sent out a notice for a hearing for Mr. Jones, to be held the following week. The next day, on May 29, I sent a letter raising my concerns about proceeding with a nominee who had open complaints, and asked that the hearing be postponed, consistent with previous Committee practice.
On June 3rd, the Chairman postponed the hearing one week. However, in doing so, the Chairman expressed disappointment that the April OSC letter had been publicly disclosed. A continuing justification for holding this hearing today is that, based on this disclosure, the nominee should have an opportunity to respond.
But of course there was nothing confidential in the OSC letter. In fact, I am not about to hide this issue from the public. It is relevant to our inquiry as to the qualifications of this nominee. If others want to hide this information, that is their decision.
Additionally, there were numerous allegations that Republicans were holding up the nominee for no good reason. The OSC letter clearly identified why Mr. Jones’ hearing was not going forward at that time. That justification remains valid today. Again, this would be consistent with prior Committee practice.
Furthermore, everyone knows that Mr. Jones’ appearance today is no substitute for a full investigation. We know the investigation is open, so even if we ask questions today, we can’t rely on the information we receive.
A nominations hearing is nothing like the investigative process conducted by the Office of Special Counsel. In a full OSC inquiry, there would be interviews with complaining witnesses, a review of documents, and interviews with line attorneys and law enforcement officials in Minnesota. We have access to none of these, at this point.
We only have one witness, the nominee, who is able to offer up his side of the story. Where are the whistleblowers? Where are the other assistant U.S. Attorneys and staff members? Who is offering the other side of the story?
We did receive a token offer from the Majority for one witness. That offer came Sunday night, a little over 36 hours ago.
And then late yesterday, we received from the Majority an offer to conduct some interviews this coming Friday, AFTER today’s hearing. That is quite perplexing to me. We are going to begin the investigation after the hearing is concluded. When has the Committee ever conducted an investigation AFTER the hearing for that nominee?
On June 4, I suggested to the Chairman that a mere one-week postponement of the hearing would not allow sufficient time for the open matters to be resolved. We had no reason to believe the OSC investigation would be closed.
It seemed to me that if the Majority did not want to wait until the OSC completed its investigation, the Committee would be obligated to fully investigate the matter for itself. I therefore suggested that we begin that process by at least calling additional witnesses to testify at today’s hearing.
On June 5, OSC provided the Committee with an update to the two pending cases. It reported that while the whistleblower disclosure case had been closed, the prohibited personnel practice complaint was moving to mediation, for the time being.
On June 6, the Chairman reported to me that he had been notified by OSC that it had reached a resolution on the retaliation allegations against Mr. Jones and that the investigation was now closed. This directly contradicted the information I had received.
I again suggested that additional witnesses might be necessary. On Sunday night, a little over 36 hours ago, my staff was notified by Majority staff that the chairman would agree to one minority witness. Of course, by that time there was no reasonable way that a witness could be contacted or arrange for travel on Monday for appearance at a Tuesday morning hearing.
Yesterday I contacted the Special Counsel, inquiring as to her availability to testify to at least explain more fully the status of the complaints. Ms. Lerner replied “I am unavailable to testify tomorrow about this matter. Moreover, it would not be appropriate for me to provide any additional information about a pending case.”
Ms. Lerner confirmed for the second time that the investigation remains open. She stated, “The reassignment of the case for mediation did not result in the matter being closed.”
Based on all of this, I cannot help but conclude that the Majority is intent on jamming this nomination through Committee, no matter what.
So here we are left with an open investigation of serious allegations of whistleblower retaliation. And these are not unsubstantiated charges.
In fact, of all the complaints received by OSC, only about 10 percent are chosen for further investigation. This case was one of them. Why did the career, nonpartisan staff at OSC forward the case for investigation? Presumably because they thought it needed to be looked into. That says something about the likely merits of the case.
There are also indications of a larger pattern here – one known to OSC.
First, Acting Director Jones, in a video sent to all ATF agents, stated “[I]f you don’t respect the chain of command, if you don’t find the appropriate way to raise your concerns to your leadership, there will be consequences.”
This video was seen by several employees in the U.S. Attorney’s Office of Minnesota, also headed by Mr. Jones in his other capacity.
These employees anonymously wrote to the Office of Special Counsel asking for “a review of the patterns, practices, treatment, and abuse that [they] have suffered.” They referenced the ATF video stating that they had “felt for the employees of ATF as we too have had the same types of statements made to us.”
They then said Mr. Jones “ha[d] instituted a climate of fear, ha[d] pushed employees out of the office, dismissed employees wrongly, violated the hiring practices of the EEOC, and put in place an “Orwellian style of management that continues to polarize the office.”
Next, a former Special Agent-in-Charge of the FBI’s Minnesota Division, Mr. Donald Oswald, wrote to this committee voicing concern about Mr. Jones.
In that letter he wrote “As a retired FBI senior executive, I am one of the few voices able to publicly express our complete discontent with Mr. Jones’ ineffective leadership and poor service provided to the federal law enforcement community without fear of retaliation or retribution from him.” Those are chilling words. He continued “[Mr. Jones] was, and still remains, a significant impediment for federal law enforcement to effectively protect the citizens of Minnesota….”
The concerns and allegations in Mr. Oswald’s letter were corroborated by another AUSA in Mr. Jones’ office, Mr. Jeffrey Paulson. Yesterday, Mr. Paulson gave his consent that his whistleblower disclosure complaint be released to the Committee. It contains a detailed account of the mismanagement, abuse of authority, and other problems within the office. It also detailed Mr. Jones’ negative attitude towards whistleblowers, and retaliatory actions he took against Mr. Paulson.
We received this document late yesterday afternoon. We are still reviewing the document. OSC requested of the chairman that the file be designated “Committee Confidential.”
Last evening my staff informed the Chairman’s staff that I would be asking questions based on this document. We asked the Chairman’s staff to let us know if he intended to designate the document “Committee Confidential.” To my knowledge, the Chairman has not done so. I certainly do not think it would be appropriate to hide this information.
I see no reason, given Mr. Paulson’s waiver, why this should not be available as part of the full record. In fact, I was told repeatedly that today’s hearing would be my one opportunity to ask Mr. Jones any questions I wished. I certainly intend to ask Mr. Jones questions about the allegations described in this Complaint.
I have additional procedural problems with this nomination today. A minor issue, but one which illustrates another basic breakdown of routine protocol and the normal committee process, was the delivery of certain routine nomination materials.
When I received a routine file required of all nominees, I noticed missing pages – two separate documents. I requested these from the White House on May 28. One of the requested documents was delivered to my office last night at 9:58 p.m. There was no explanation for the delay.
I have yet to receive the other requested document.
Now, it is no secret that there have been a number of controversial events that Mr. Jones has been involved in, to one degree or another. I have sent numerous letters to the Department requesting information from or about Mr. Jones. In many cases I have received no response or an incomplete response. Here is a sampling:
1. FAST AND FURIOUS - Subpoenaed Documents
On October 12, 2011, the House OGR Committee subpoenaed records of the Attorney General’s Advisory Committee relating to Operation Fast and Furious during a period Jones was committee chair. I reiterated the request on April 10, 2013.
2. ATF ACCOUNTABILITY FOR FAST AND FURIOUS
On October 19, 2012 and January 15, 2013, I requested information on which ATF employees would be disciplined for their roles in Fast and Furious.
3. FAST AND FURIOUS INTERVIEW REQUEST
From October 7, 2011 through January 2012, I requested a staff interview with Jones regarding Fast and Furious. I reiterated the request to Mr. Jones on April 10, 2013.
4. INTERVIEW REQUEST ON RENO ATF/U.S. ATTORNEY’S OFFICE BREAKDOWN
My April 10, 2013 letter also indicated that Mr. Jones’ failure to act on Reno management issues was another area of questions to be covered in a staff interview.
5. INTERVIEW REQUEST ON OPERATION FEARLESS
My April 10, 2013 letter indicated that the botched Operation Fearless in Milwaukee was another area of questions to be covered in a staff interview.
6. DOCUMENT REQUEST ON OPERATION FEARLESS
On May 10, 2013, I sent Mr. Jones a letter requesting a copy of the Office of Professional Responsibility and Security Operations (OPRSO) report on the botched Milwaukee storefront operation.
What has been the reply to these requests?
On June 4, 2013, nearly two months after my request for many of these items, I received a letter from the Department of Justice stating in part, “Mr. Jones looks forward to answering your questions about these matters during his nominations hearing before the Senate Judiciary Committee.”
I regret that the Chairman has allowed the Department of Justice to dictate to us how our oversight and investigations will be conducted. Furthermore, it is disappointing that the Department was allowed to hijack this nominations hearing to suit their purpose, not ours.
But, since we have held zero hearings dedicated to Fast and Furious in this committee, perhaps I should be happy that we have any opportunity to ask questions at all. The same goes for the other matters I mentioned.
On the St Paul quid pro quo matter, I was able to have a staff interview with Mr. Jones. Just to remind my colleagues about that issue, let me give a brief summary.
On February 3, 2012, the Department of Justice and the City of St. Paul struck a deal. The terms of the quid pro quo were as follows: the Department declined to intervene in two False Claims Act (FCA) cases that were pending against St. Paul, and St. Paul withdrew its petition before the U.S. Supreme Court in Magner v. Gallagher, a case that observers believed would invalidate the use of the disparate impact theory under the Fair Housing Act.
But this was no ordinary settlement. Instead of furthering the ends of justice, this settlement prevented the courts from reviewing potentially meritorious claims and the recovery of hundreds of millions of dollars for the U.S. treasury.
The U.S. Attorney in Minnesota at the time of the quid pro quo, Mr. Jones, was serving both as the U.S. Attorney and as the Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Mr. Jones was interviewed by Committee staff as part of the investigation on March 8, 2013. However, before agreeing to the interview, the Department demanded that staff not be permitted to ask Mr. Jones any questions other than those involving the Quid Pro Quo.
Questions remain about whether he was effectively managing both jobs as U.S. Attorney and Acting Director of ATF. For example, when asked by Committee staff about his failure to attend the seminal meeting between the Department’s Civil Division and representatives from the City of St. Paul which occurred in December 2011, he stated that he did not attend because he had an event at ATF that precluded his attendance.
When pressed further, Mr. Jones indicated the important event at ATF was a Holiday party called “sweet treats” and he felt it was more important that he attend that event, than it was to attend the seminal meeting on two pending False Claims Act cases in his District.
So, there are many issues to cover in this hearing today and beyond. For his part, in a June 10, 2013 article in the Minneapolis Star Tribune, Mr. Jones said, “I am looking forward to meeting with the committee and answering all their questions.”
I hope it is the case that today I will finally get some answers. But even so, many questions remain about this nominee.
The first question is, given the open complaint and all of the other concerns I have addressed, why are we even here today? I don’t think anyone can provide a good answer to that question. Proceeding today is premature.
Frankly, it is unfair to the nominee to force these questions today before the OSC process takes its course. But, if the Chairman insists on proceeding, it would be unfair to the public if we fail to perform our due diligence and examine these issues carefully.