Statement of Senator Chuck Grassley
On Fast and Furious, Nominations, the Justice for All Act Reauthorization
Judiciary Committee Executive Meeting
Thursday, June 21, 2012
Before we start, I want to speak about the President's decision to invoke executive privilege over Justice Department documents related to Fast & Furious.
Yesterday, just before a hearing to consider a contempt resolution against the Attorney General, the Justice Department announced that the President had asserted executive privilege over these documents.
The Attorney General repeatedly claimed that the Justice Department was making an "extraordinary offer" Tuesday night.
The only thing extraordinary is that the Attorney General offered a promise to produce documents one day and then asked the President to claim executive privilege over them the next.
Just last week, when the Attorney General was in front of this Committee, I asked him twice if the President could claim executive privilege to protect a certain internal Justice Department email that has been withheld.
Given the explicit opportunity, the Attorney General did not indicate he would be asking the President to assert executive privilege over such documents.
If this were a serious claim, it should have been raised much earlier.
Now that executive privilege has been asserted, it raises monumental questions.
I sent the President a letter yesterday seeking clarification as to the scope of his executive privilege claim.
Is the President asserting the presidential communication privilege, which applies only to documents involving communications with the White House?
If so, then the Justice Department should turn over the vast majority of the documents, which would not be protected by that privilege.
No court has ever held that the presidential communication privilege applies to internal Justice Department communications not involving the White House.
In fact, the U.S. Court of Appeals for the District of Columbia considered this issue in 2004.
They held that extending the presidential communications privilege to internal Justice Department documents "would be ... contrary to executive privilege precedent."
The Attorney General is well aware of this decision, for he was at the center of the pardon scandal that the requests for documents concerned.
Additionally, the White House has already produced documents in Fast and Furious involving communications between White House staff and personnel from the Bureau of Alcohol, Tobacco, Firearms, and Explosives, so it's ironic that this claim comes up only now.
Either way, the White House must produce a privilege log to make clear which documents they are asserting executive privilege to protect.
This is the most basic starting point in asserting such a claim.
It's what Chairman Leahy requested in the U.S. attorney firings.
And I remind him that I supported his subpoenas to get to the bottom of that matter.
If there are documents that aren't protected by valid legal privilege, the Justice Department still has an obligation to produce those documents.
Failure to produce such documents is exactly why the House Oversight Committee voted yesterday to hold the Attorney General in contempt.
With regard to nominations, we'll hold over Berg, Bernal and Schofield, who are listed for the first time.
There are also some executive nominations on the agenda for the first time. There is a request to hold over Williams.
I'm not aware of any requests to hold over Lum, Hainsworth, Leonardo or Miles. I believe we can report those nominations by voice vote.
On the Davis nomination, I will have some remarks to make in opposition; other members may want to be recognized as well. That nomination will require a roll call vote.
With respect to the legislation on the agenda, we're prepared to vote on S.250, the Justice for All Act Reauthorization. I appreciate Chairman Leahy's willingness to work with me to reach a bi-partisan agreement on this bill.
This agreement reauthorizes a number of victim's rights programs in addition to a number of grant programs that provide vital funding for state and local governments to conduct DNA testing. Working together, this substitute reauthorizes these programs in a fiscally responsible way.
The bill reauthorizes funding for crime victims' rights programs and enhances protection for victims in several ways. For example, it ensures that money appropriated to assist victims will go directly to victims, not for other programs that DOJ operates. This is especially necessary given the President's FY2013 DOJ budget raided the Crime Victims Fund to pay for non-victim related services.
At the same time, the bill takes into account current fiscal realities. It reduces authorizations by more than 20 percent compared to the 2004 reauthorization. This helps to better align authorizations with actual amounts funded by the Appropriations Committee. However, it does so without reducing the funding authorized for crime victims or for programs authorized under the Debbie Smith program.
Finally, the Act includes crucial oversight and accountability provisions that I've consistently sought for DOJ grant programs.
I'm pleased to have reached agreement with Chairman Leahy on this bill. This substitute accomplishes the important goal of supporting law enforcement and victims' rights in a fiscally responsible way.
On S.285, a private relief bill, we continue to await information from Immigration and Customs Enforcement that we have requested. Until we have that information, our side is not prepared to address that legislation.
Regarding S.1744, the Guardian Accountability and Senior Protection Act, we have a request to hold that bill over for another week.
Thank you.
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