by U.S. Senator Chuck Grassley

What we saw unfold in the Senate budget vote-a-rama just before the Easter recess is important in evaluating competing claims about the reason for dysfunction in the Senate.

Democratic leaders push an aggressive narrative that all the blame goes to Republican obstructionism and abuse of the filibuster, but those who adhere to this partisan account cannot use it to explain why the Democrat-controlled Senate hadn't passed a budget resolution since 2009.

Unique rules govern consideration of a budget resolution.  There's fixed time for debate.  It can't be filibustered.  It can be passed in relatively short order with a simple majority.  At the same time, there are few limits on offering amendments, as long as amendments are germane.  That's undoubtedly a major reason Democratic leaders avoided the annual budget process through two election cycles, despite requirements of the Budget Act of 1974.

Separate from the budget resolution and its unique rules, current majority party leaders have gone to great lengths to avoid having their senators cast difficult votes.  These leaders have used procedural tactics to block any amendments from being offered to pending legislation while making motions to end consideration of bills.  Time and again, when Republicans vote against giving up our right to offer amendments, the Democratic leadership has called it a Republican-launched filibuster.

Merriam-Webster's definition of a filibuster is "the use of extreme dilatory tactics in an attempt to delay or prevent action especially in a legislative assembly."  That leaves some room for debate about when a filibuster is being employed, but any fair observer would say that when the majority leader moves to shut off consideration of a bill the same day he brings it to the floor and before any amendments have been considered, he cannot reasonably claim it is in response to a filibuster.

The real story may be that Senate Democratic leaders fear that Republicans will offer amendments that attract enough votes from Democratic senators to pass.  What happened during Senate debate on the budget resolution seems to prove that point.  A Republican amendment in support of repealing the tax on life-saving medical devices in President Obama's health care law passed by an overwhelming 79 to 20, with more than half of Democrats voting with Republicans, rather than their party leader.  A Republican amendment in support of approval of the Keystone XL Pipeline to bring oil from Canada passed 62 to 37.

Votes like these that split the Democrats and hand a win to Republicans are exactly what the majority leader has been trying to avoid by not considering a budget resolution for more than three years and by cutting off consideration of other bills aggressively.

As a result, more than 200 years of Senate tradition as a deliberative body is sacrificed to short-term partisan considerations.  Every senator represents from hundreds of thousands to millions of Americans, and every senator has an individual right to offer amendments for consideration.  When senators are denied this right, it hampers our ability to represent the citizens of our respective states.  For example, when the Senate majority leader prematurely ended consideration of the fiscal year 2013 Continuing Resolution in March, the Senate was prevented from considering an amendment by Senator Max Baucus that would have checked the cost-saving claims of removing National Guard aircraft like those in Des Moines, Iowa.  An amendment by Senator Jerry Moran to prevent the closure of contract air traffic control towers like the one in Dubuque, Iowa, also was shut out.

For the Senate to function, the right of senators to offer amendments for consideration must be preserved.  This fundamental reality should have been a bigger focus of the January agreement on filibuster rules.  Yet, news reports in days leading up to the agreement cited Democratic senators who were advocating for sweeping reforms to make the Senate more majoritarian expressing great concern that a deal might be struck that allowed Republican amendments to be adopted on a simple majority vote.  Well, that shatters any pretense that complaints about the filibuster stemmed from deeply held convictions about majority rule.

The budget resolution debate in March gave us what has become a rare opportunity, unfortunately, for senators to put forward ideas and see whether the ideas have support in the Senate.  Some amendments were successful, and some were not.  Either way, senators were forced to go on record on all sorts of issues that might not otherwise see the light of day and explain their positions to those who elected them.  As lawmakers return to work in Washington, they ought to consider, what's wrong with that?

WASHINGTON - Sen. Chuck Grassley of Iowa today asked the top government health care agency for a timeline and details of the communications on a key Medicare policy decision this week that reportedly moved stock prices when correctly predicted by an outside firm prior to public release.

Grassley asked Acting Administrator Marilyn Tavenner of the Centers for Medicare and Medicaid Services (CMS) for the details on a key decision on Monday over Medicare Advantage payment rates.  According to the Wall Street Journal, a firm call Height Securities issued an advisory that "a deal has been hatched to protect Medicare Advantage rates" from a proposed cut, and that stocks rose as a result of the advisory.  The advisory was issued before CMS' decision became public, raising questions about whether CMS or other federal agencies involved in the decision allowed sensitive information to flow to non-governmental entities before the government made its announcement.

"This raises questions regarding political intelligence brokers' ability to gather information from CMS in order to predict market moving events," Grassley wrote.

Grassley asked for a response by April 9, when Tavenner comes before the Finance Committee for a hearing on her nomination to serve as permanent administrator.

This is the second time in recent years Grassley has asked the agency to describe its processes for dealing with political intelligence firms and others who seek to profit from government information.  In December 2011, he wrote to the agency over allegations from a then-agency employee who said nearly one dozen agency employees were made to have a lengthy meeting with a Wall Street firm in 2009 over reimbursement policy for certain medical devices.

The agency's response revealed loose procedures for dealing with outside firms, causing continued concern for Grassley.  Grassley is working on a legislative effort to require political intelligence-gathering firms to register the way lobbyists are required to register, in an effort to provide transparency into a growing industry that seeks information from Congress, the federal agencies, and the White House for financial gain, possibly to the disadvantage of everyday investors.

Grassley's letter today is available here.

Grassley Questions Contradicting Testimony by Justice Department

Official in Quid Pro Quo with St. Paul

WASHINGTON - Senator Chuck Grassley, Ranking Member of the Senate Judiciary Committee, is pressing a key player in the quid pro quo deal between the Justice Department and St. Paul, Minn. to explain the contradiction between information given in a formal briefing to Senate Judiciary Committee staff and documents provided to the committee after the briefing.

In a letter sent today, Grassley asked Joyce Branda, the Deputy Assistant Attorney General in the Civil Division's Commercial Litigation Branch, to explain seemingly conflicting information she provided during a briefing to Judiciary Committee staff and emails she sent during the department's handling of the deal.

"Documents clearly show that at the time of the briefing, the department was well aware of the 'exchange' between the Justice Department and the city of St. Paul. It makes me wonder whether Ms. Branda was instructed by higher-ups not to call the deal an 'exchange' when she briefed Judiciary Committee staff," Grassley said.

Grassley has been conducting oversight of an apparent quid pro quo deal between the Justice Department and St. Paul, Minn., which turned a blind eye to potentially recovering hundreds of millions of taxpayer dollars. Specifically, the Justice Department agreed not to intervene in a False Claims Act case in exchange for the city of St. Paul's agreement to withdraw a separate case on housing issues that was supposed to be heard by the Supreme Court. The United States was not a party in the case before the Supreme Court, which makes it highly questionable that the Justice Department would find it appropriate to use that case as part of its deal with the city of St. Paul.  Unlike the False Claims Act cases the United States could have joined, and which could have resulted in a recovery of hundreds of millions of taxpayer dollars, there was no direct interest of the United States in the outcome of the Magner case.  House Judiciary Chairman Bob Goodlatte and House Oversight Chairman Darrell Issa are also investigating the deal.

Here is Grassley's letter. A copy of the signed letter and the attachments can be found here.

March 26, 2013

VIA ELECTRONIC TRANSMISSION

Joyce R. Branda
Deputy Assistant Attorney General
Civil Division, Commercial Litigation Branch

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Dear Deputy Assistant Attorney General Branda:

On February 5, 2013, you appeared before Congressional staff to provide information regarding the Department's involvement in the decision of the City of St. Paul, Minnesota, to withdraw its petition for certiorari in Magner v. Gallagher.[1] The briefing was provided to the Majority and Minority staff of the Senate Committee on the Judiciary.  It is my understanding you provided a similar briefing to staff for the House Committee on the Judiciary and the House Committee on Oversight and Government Reform on December 5, 2012.

In the February 5 briefing, you told Committee staff: "We didn't decline to intervene in exchange" for St. Paul withdrawing Magner.  On multiple occasions in the briefing, you disputed the characterization that it was an exchange.  At the time, the Department was withholding documents about this matter from Congress.

However, documents since produced by the Department show that on March 8, 2012, you received a list of significant cases from Michael Granston, then Deputy Director in the Commercial Litigation Branch's Fraud Section, a direct subordinate to you.[2] Twenty-five minutes later, you forwarded the document to Jonathan Olin in the Civil Division front office, writing: "St. Paul updated and edited for clarity[.]"[3] The portion of the document relating to U.S. v. City of St. Paul read:

Government declined to intervene in Newell, and has agreed to decline to intervene in Ellis, in exchange for defendants withdrawal [sic] of cert. petition in Gallagher case (a civil rights action).[4]

Accordingly, I ask that you explain why your assertions to Congressional staff were directly contrary to the documentary record.

Sincerely,

Charles E. Grassley

Ranking Member

cc:        The Honorable Patrick Leahy, Chairman

U.S. Senate, Committee on the Judiciary

The Honorable Bob Goodlatte, Chairman

U.S. House of Representatives, Committee on the Judiciary

The Honorable John Conyers, Jr., Ranking Member

U.S. House of Representatives, Committee on the Judiciary

The Honorable Darrell Issa, Chairman

U.S. House of Representatives, Committee on Oversight and Government Reform

The Honorable Elijah E. Cummings, Ranking Member

U.S. House of Representatives, Committee on Oversight and Government Reform

The Honorable Michael E. Horowitz, Inspector General U.S. Department of Justice

[1] See Magner v. Gallagher, 132 S. Ct. 1306 (Feb. 14,2012) (dismissing writ of certiorari).

2 E-mail from Michael Granston to Joyce Branda (Mar. 8, 2010, 3:25 PM) [HJC/HOGR STP 001402-001404].

3 E-mail from Joyce Branda to Jonathan F. Olin (Mar. 8, 2010, 3:51 PM) [HJC/HOGR STP 001402-001404].

4 "Significant Affirmative Civil and Criminal Matters," updated Mar. 8, 2012 [HJC/HOGR STP 001404] [emphasis added].

Prepared Statement of Ranking Member Chuck Grassley of Iowa

U.S. Senate Committee on the Judiciary

Hearing on Oversight of the Department of Justice

Wednesday, March 6, 2013

Mr. Chairman, thank you for holding today's oversight hearing focusing on the Justice Department.  It is an important time to discuss the ongoing work of the Department given the President's reelection to a second term.  I welcome Attorney General Holder.

This hearing affords us the opportunity to clear the decks of the many outstanding letters and questions that we have yet to receive from the Department.  For example, we have not received questions for the record from the last oversight hearing held nearly 9 months ago.  We also have questions for the record from Department officials that testified at various hearings that remain outstanding.

In addition, there are a number of other inquiries that I haven't received a response to on important issues.  For example, I haven't received a response to a letter I sent last week on the impact of budget sequester.  Another letter is outstanding on the failure to prosecute individuals at HSBC for money laundering.  That one was sent in December.  Finally, I have outstanding requests related to the investigation into Operation Fast & Furious, including one that will be outstanding for a year on March 9.

It is unfortunate that we always have to start hearings with this same request for the Attorney General to respond to unanswered questions from Congress.

Targeted Killing of American Citizens:

That said, I have a number of topics I would like to discuss with the Attorney General including the Attorney General's latest letter to Senator Rand Paul arguing in favor of the President's ability to use military forces to kill American citizens on U.S. soil without due process of law.

This letter is extremely concerning not just in its content, but coupled with the classified memorandums that have been shared with just a few members of Congress, it leaves many questions for Americans about when the government can kill them.

This oversight hearing also comes on the heels of an extremely important hearing the House Judiciary Committee held on the topic of targeted killing of Americans using unmanned drones.  This is an issue which Chairman Leahy and I have repeatedly asked the Attorney General about.  Unfortunately, our letters on this matter have often gone unanswered?including our most recent letter to President Obama seeking access to the classified memorandums authorizing the targeted killing of Americans abroad that were produced to members of the Select Committee on Intelligence but not members of the Judiciary Committee.  A couple of weeks ago at a Committee Executive Business Meeting held in the Capitol, I joined Chairman Leahy, Senator Feinstein, and Senator Durbin in discussing the importance of the Judiciary Committee obtaining these memorandums as part of our legitimate oversight function.

Despite opinions of this Administration, and the previous one, to the contrary, Congress has a significant role to play in conducting oversight of national security matters.  We have the right to ask for and receive classified information?through appropriate channels and subject to protections?to determine if the activities of the Executive Branch are appropriate.  We have the ability to ask these questions based upon our power to oversee the spending of the Executive Branch and ensure that policies are implemented consistent with Congressional mandates.  As such, in exercising our jurisdiction overseeing the functions of the Justice Department?including the Office of Legal Counsel (OLC) which is the likely office that would have issued such memoranda?this Committee has just as much a right to obtain these opinions as those in the Intelligence Committee.

This Committee has the precedent of obtaining the most highly classified information in the Government.  For example, in reauthorizing and overseeing the FISA Amendments Act, we obtained, and continue to obtain, highly classified information regarding the operation of this important program.  Similarly, we obtained classified information during the reauthorization of the USA PATRIOT Act and as part of the oversight conducted by the Committee reviewing enhanced interrogation techniques and the role OLC played in issuing those memorandums.

Based upon this ample precedent, I call upon the President to answer the letter Chairman Leahy and I sent to him on February 7, 2013.  It is extremely important for us to review these memoranda, especially in light of the public answers provided by CIA Director nominee John Brennan in refusing to categorically deny the possibility of using drones in the targeted killing an American citizen on U.S. soil.

In light of the March 4, 2013, letter to Senator Rand Paul where the Attorney General argued that the President could authorize the military to use lethal force on a U.S. citizen on U.S. soil in an effort to protect the U.S. from a catastrophic attack, it is imperative we understand the operational boundaries for the use of such force.  While the letter deals with what is labeled "extraordinary circumstances", American citizens have a right to understand when their life can be taken by their government absent Due Process of law.  Providing these memoranda for review would go a long way toward complying with the President's original election promise to have the most transparent Administration ever.

Gun Violence:

Tomorrow the Committee will begin the task of marking up various legislative proposals for dealing with gun violence.  We have held three hearings on the topic over the past two months and have twice heard witnesses from the Justice Department.  Both times the Department testified, we heard a reiteration of the Department's support for a ban on semi-automatic rifles with certain cosmetic features deemed "assault rifles".  However, both times when I asked whether the Department had issued an official opinion determining whether such a ban is constitutional under the Second Amendment in light of the Supreme Court's decision in Heller, I heard that no opinion has been issued.  Given we will be marking up the bills tomorrow, it would be good to hear from the Attorney General that he will be releasing such an opinion today so members would have time to read it in advance of tomorrow's mark-up.  Yet, given that we still haven't responses to questions from the last hearing with Attorney General Holder in June of 2012, I would be surprised if the Justice Department could produce one.

That said, there are some areas on the topic of gun violence that the Congress should take up and address.  I continue to believe there is room to discuss a law prohibiting illegal straw purchases and weapons trafficking.  I also believe we must address the Justice Department's internal procedures for signing off on risky operations where the illegal sale of firearms is sanctioned or coerced by the Justice Department to ensure that these firearms do not fall into the hands of criminals.  This was a significant problem with the ATF's failed Operation Fast & Furious.  High level officials were not required to individually sign off on these operations and as such, when the ugly details of the ATF allowing nearly 2,000 guns to fall into the hands of bad guys, no one was held accountable for their actions.  Instead, Lanny Breuer, the Assistant Attorney General for the Criminal Division, said he never read the affidavit attached the wiretap application referencing the tactics ATF was using, despite the fact that his signature ultimately approved the operation.  This must be fixed to ensure that those sanctioning such conduct are ultimately responsible for ensuring the procedure is used properly and not poorly executed.

Aside from legislation specific to firearms, we need to also address mental health, law enforcement responses to gun violence, failures in the current background check system, lack of sufficient numbers of federal prosecutions for gun violence, and the impact violent video games have on mass shootings.  I look forward to tomorrow's mark-up and future consideration of these topics in the coming weeks on the Senate floor.

Failure to Prosecute Banks Deemed "Too Big to Fail":

The Department continues to follow through with an unfortunate policy of continually entering into civil or criminal settlements with large financial institutions that include large fines, but no jail time for the individuals who perpetrate these frauds and wreak havoc on the financial sector and individual lives.  As a result, these companies settle for pennies on the dollar and the cost of these fines simply becomes the cost of doing business for these institutions.  It has led many to believe that financial institutions deemed "too big to fail" by the Treasury Department are also "too big to jail".

What is even more disturbing is that while this distinction was mostly reserved for financial crimes?a position I find flawed in its own regard?this policy appears to have seeped into other misconduct enforced by the Department.  For example, in December 2012, the Department entered into a Deferred Prosecution Agreement (DPA) with HSBC, a global bank that admitted to violating federal laws designed to prevent drug lords and terrorists from laundering money in the United States.  Let me repeat that, a deferred prosecution agreement for a company involved in money laundering for DRUG LORDS AND TERRORISTS.

What's worse is that the Department publicly proclaimed a "record" settlement in this case where HSBC paid $1.92 billion to the federal government, improved its internal anti-money laundering controls, and submitted to the oversight of an outside monitor for five years.  Despite the fact that this is a "record" settlement, for a bank as gigantic as HSBC, this amounts to less than 11% of HBSC's profits last year alone, and is a bare fraction of the sums left unmonitored.  Many believe that HSBC may have made a profit from the DPA because it actually made more than $1.92 billion by providing services to drug kingpins and terrorists.

I sent a letter to Attorney General Holder expressing my outrage at this DPA on December 13 asking why no employees?not even the ones who turned off the anti-money laundering filters?were prosecuted.  Further, Senator Brown and I sent a letter in January seeking the rationale for why no individuals at these large financial institutions are prosecuted.  The response was woeful and failed to answer our questions, leading us to question whether the Department has something to hide.

Simply put, this is a leadership problem and one that needs to be fixed quickly and will be a big part of any effort to confirm a new Assistant Attorney General for the Criminal Division.

Use of Luxury Jets for Executive Travel:

The Government Accountability Office (GAO) recently released a report I requested regarding the use of Department luxury jets by Department executives for non-mission travel.  That report found that between Fiscal Year 2007 to Fiscal Year 2011, Department executive's non-mission travel on these luxury jets totaled 60% of the flight time.  The flights accounted for $11.4 million in taxpayer expenditures for non-mission travel, some of which included personal travel.  The Department executives did reimburse the government for part of the trip, but only the cost of a regular coach fare.  This is significantly less than the tens of thousands of dollars an hour the jets cost to operate.

In light of sequester and the general dire fiscal situation the federal government faces, this travel was concerning.  Yet, it was especially concerning given that the justification provided to Congress in 2010 when funds were provided to the FBI to purchase a second Gulfstream G-V was for "counterterrorism missions."

While the Attorney General and FBI Director are now both "required use" travelers, meaning they are required by executive branch policy to take government aircraft for even personal travel, GAO found that until recently, the FBI Director had "the discretion to use commercial air service for personal travel, which he elected to do most of the time to save on the use of government funds."

This GAO report raises a number of troubling questions, especially in light of the proposed spending reductions because of sequester.  Most pressing of which is, should the executives at the Department be using luxury jets for non-mission travel on a jet purchased for counterterrorism missions?

Concluding Issues:

Time permitting, I would also like to discuss issues related to the ongoing investigation into decisions not to prosecute NASA employees at the Ames Research Center for violations of International Traffic in Arms Regulations (ITAR); and the ongoing investigation into the quid pro quo arrangement between the Department and the City of St. Paul, Minnesota where two qui tam False Claims Act cases were declined in exchange for the city dropping a pending case before the Supreme Court.

Finally, I would also like to discuss sequester and the Department's "sky is falling" approach to implementing budget reductions.  I sent a letter to the Attorney General discussing my concerns with the way he planned to implement these reductions asking for a reply in advance of the hearing.

I never received a reply.  However, I believe that the way the proposed reductions outlined by the Attorney General in a February 14 letter to the Appropriations Committee, harmed public safety and national security.  These proposals conflict with the principles for implementing sequester that OMB outlined for protecting life, safety and health.

I want to know why things like conferences and executive travel weren't discussed as a source of reductions, yet furloughing special agents in critical violent crime and national security units were.