Prepared Statement of Ranking Member Chuck Grassley

Senate Judiciary Committee Executive Business Meeting

Thursday, November 17, 2011

With regard to the judicial nominations, there are three nominations on the agenda today.  They are all on the agenda for the first time.  There is a request on our side to hold them over for another week.

Next, on the legislation, we are prepared to debate a number of bills on the agenda, but there is a request on our side to hold over S.1792, Strengthening Investigations of Sex Offenders and Missing Children Act, and S.671, Finding Fugitive Sex Offenders Act.  Both of these bills are the agenda for the first time.  I'd note that I am a cosponsor of S.671, and I think it is an important bill, but it is also important to hold over these bills for another week so we can give them our full consideration.

We are prepared to debate, and I believe report out, the Investigative Assistance for Violent Crimes Act, the Federal Restricted Buildings and Grounds Improvement Act, and the Death in Custody Reporting Act.  There is a request on our side for a roll call vote on the Investigative Assistance for Violent Crimes Act, and H.R. 2189, the Death in Custody Reporting Act.

I have an amendment with Senator Blumenthal to make a necessary technical correction to the Federal Restricted Buildings and Grounds Improvement Act.  This legislation would close a loop hole that exists in current law.  It is only a misdemeanor, under the District of Colombia code, to violate the security perimeter at the White House and the Vice President's residence.  This bill makes it a federal offense to breach security at the White House and the Naval Observatory.  Federal agents are charged with protecting them, yet they lack the legislative tools to enforce that protection.  This is a federal building and we should protect it with federal laws.

I'm opposed to the Investigative Assistance for Violent Crimes Act in its current form and I've filed an amendment that would improve it.  My amendment allows federal agencies, at the request of state and local law enforcement, to provide assistance in the event of a violent crisis.  My amendment reinforces that no additional authority is being given to any federal law enforcement agency.  It does allow them to assist their state and local partners, but only when requested.  If a state Sheriff or Chief of Police needs help with their investigation, then we should extend a helping hand.

I understand that there is opposition to my amendment, which I believe stems from a misunderstanding of what the bill does and how my amendment would improve it.  We don't need a protracted debate on the bill or the amendment, but until the problems with the bill are corrected, I intend to oppose it and will hold it on the floor.

Finally, we can vote on the Death in Custody Reporting Act which will help provide the federal government statistics on how many individuals die in custody every year.

I'd also like to say a few words about some important issues.

The Supreme Court announced on Monday that it would hear arguments on the constitutionality of the health care reform law next spring.  This committee held a hearing on this topic earlier this year and it drew substantial interest from the public.  The arguments before the court will undoubtedly draw even more interest from the public.  However, given the practice of the court to not allow real time broadcast of oral arguments, these arguments will only be witnessed by a small number of individuals lucky enough to get a seat in the room.

Given the historic nature of this case, I wrote to Chief Justice Roberts Tuesday asking him to provide audio and video coverage of the oral arguments on the health care reform law.  The arguments will address significant constitutional questions relating to the constitutionality of the individual mandate, the severability of the individual mandate, and the authority of Congress to impose mandatory Medicaid coverage on states.

These questions are vitally important and every American should have the opportunity to see and hear the oral arguments as they occur live, not on a recording, later.  Letting Americans, and the world, watch our Supreme Court discuss these constitutional questions would shed light on the least known branch of the federal government.  It would also help bolster public confidence in our judicial system and the final outcome of the case.  I urge the Chief Justice to strongly consider my request and to bring some sunshine to the oral arguments on the health care reform litigation.

I also want to discuss an important matter related to the Department of Justice.  Earlier this week I wrote to Attorney General Holder regarding unnecessarily long delays in processing FBI whistleblower cases.  Specifically, my letter highlights the recent decision by Deputy Attorney General James Cole to remand the case of former FBI Special Agent Jane Turner for further administrative proceedings, despite the fact that it has languished at the department for over 9 years.

Agent Turner was a career FBI Agent from Minneapolis who excelled in missing and exploited children cases.  She filed a whistleblower complaint in 2002 after she discovered FBI agents removing items from Ground Zero following the 9/11 attacks.  The agents were keeping items from the crime scene as personal memorabilia.

After considerable delays, her complaint was substantiated in May 2010 and the FBI was ordered to provide her back pay, attorney's fees, and other relief.  The FBI then appealed this decision to Deputy Attorney General Cole who remanded it for further discussion of the issue of back pay?despite the fact the FBI never raised the issue during the adjudication stage.

The decision to remand the case is mind-boggling and is contrary to assurances Deputy Attorney General Cole provided to me as part of his nomination.

Specifically, as part of his nomination hearing Cole replied to a question of mine, stating:  "I will not tolerate unlawful retaliation against any Department of Justice employee, including FBI employees."  Yet, in the first FBI whistleblower case appealed to him since he was confirmed, the Deputy Attorney General took the easy way out and prolonged Agent Turner's quest for justice.

My letter also outlined the case of Robert Kobus, a 30 year non-agent employee of the FBI who disclosed time and attendance fraud by FBI agents in the New York City field office.  Mr. Kobus filed his case four years ago, and the Inspector General issued a report finding he was retaliated for his whistleblowing.  This retaliation included his supervisors placing him on a vacant floor in the FBI building in New York.  However, four years later and an Inspector General finding of retaliation later, the Justice Department hasn't even had a hearing.

This process is administrative, and strong leadership at the Justice Department could fix it.  Both Attorney General Holder and Deputy Attorney General Cole have told this committee they will not tolerate retaliation against whistleblowers.  Yet, their lack of action to help FBI whistleblowers speaks louder than their words and true patriotic whistleblowers are paying the price.

Senate Committee on the Judiciary

Nominations Hearing for Kathryn Keneally, to be an Assistant Attorney General, and Brian C. Wimes, to be United States District Judge for the Eastern and Western Districts of Missouri

Wednesday, November 16, 2011

For video of the hearing, please click here.

I join you in welcoming the nominees before us today.   Today we will first hear from Kathryn Keneally, nominated to be Assistant Attorney General, Department of Justice.  I am pleased that Chairman Leahy and I were able to reach agreement on the timing and format for her hearing today.  I express my appreciation to the Chairman for the way we are proceeding on this nomination.

If confirmed, Ms. Keneally will head the Tax Division of the department. The Tax Division's mission is to enforce the nation's tax laws fully, fairly, and consistently, through both criminal and civil litigation.  It has a duty to ensure compliance with the tax laws, maintain public confidence in the integrity of the tax system, and promote the sound development of the law.

The Assistant Attorney General for Tax is an important and unique position.  In order to be effective, this person must have a strong command of the tax laws and maintain a strong working relationship with the Internal Revenue Service.  Given the severe debt and deficit situation facing our country, it is imperative that the IRS collect every dollar of tax that is owed to the government. I have always said that taxpayers should pay what they owe - not a penny more, not a penny less.  The Assistant Attorney General for Tax plays an important role in helping the IRS collect these taxes.

It is disappointing that we have not been able to get a qualified candidate into this position for three years.  The first nominee for this position, while qualified for any number of other legal positions, had no tax experience and was wholly unqualified for this position.  After her nomination was withdrawn in August of 2010, it took over a year for the President to submit Ms. Keneally's nomination.  In contrast to the first nominee, Ms. Keneally has significant tax experience and will hopefully be a valuable addition to the Department of Justice. I was pleased to meet with Ms. Keneally yesterday.  We had a good visit and I look forward to her testimony today.

In addition, we will be considering the nomination of Brian C. Wimes, nominated to be United States District Judge for the Eastern and Western Districts of Missouri.

I would note that we are making real progress with regard to the nominations of President Obama to the federal judiciary.   Today marks the 18^th nominations hearing held in this committee this year, and we will have heard from 70 judicial nominees.  All in all, nearly 89 percent of President Obama's judicial nominees have received a hearing.

The Senate has confirmed twenty Article III judicial nominees during the past month and a half.  We have now confirmed 58 judicial nominees in this Congress alone.  With the confirmation of two judges yesterday, over 70 percent of President Obama's nominees have been confirmed.

Kathryn Keneally is nominated to be Assistant Attorney General, Department of Justice.  After obtaining her J.D. from Fordham University in 1982, Ms. Keneally served as a law clerk for Judge Edward R. Neaher of the U.S. District Court for the Eastern District of New York.  She then worked as an associate attorney at Skadden Arps Slate Meagher & Flom from 1983 - 1985.  Her practice there consisted of complex commercial litigation and pro bono criminal defense matter. In 1985, she became an associate at Kostelanetz & Ritholz and was made a partner in 1990.  At this firm her practice included criminal tax defense, other white collar criminal defense, and tax controversy, as well as complex commercial litigation matters involving fraud, civil RICO, securities, and similar issues.

In 2000, she became a member in the firm of Owen & Davis where she primarily handled commercial litigation, as well as tax controversy and criminal tax defense.  In 2002, she joined Fulbright & Jaworski, LLC., where she is a partner.  She initially practiced commercial, tax controversy and criminal tax defense, but since 2004 has primarily handled only tax controversy and criminal tax defense.

Brian C. Wimes is nominated to be United States District Judge for the Eastern and Western Districts of Missouri.  Upon graduation from law school in 1994, Judge Wimes became an Attorney Advisor in the Litigation Branch of Federal Bureau of Prisons in Washington, D.C.  Judge Wimes represented the bureau in civil actions by inmates throughout the country.

In 1995, Judge Wimes left the bureau and became an Assistant Prosecuting Attorney for the Jackson County Prosecutor's Office in Kansas City, Missouri until 2001.  During his time there, Judge Wimes specialized in drug prosecutions.  Additionally, as Coordinator for the Drug Abatement Response Team, he supervised a staff that was focused on closing drug houses in the Jackson County area.  In 1999, Judge Wimes became the Senior Trial Attorney for the Drug Unit, prosecuting cases involving major crimes with an emphasis on drug-related homicides.

In 2001, Judge Wimes became the Drug Court Commissioner for the Court for Jackson County, Missouri.  He was appointed for two, four year terms.  Judge Wimes presided over 400 assigned cases to Drug Court, with a caseload of 120 to 150 docketed cases per week.

After serving as the Drug Court Commissioner for Jackson, Judge Wimes was appointed by then-Governor Matt Blunt to serve as the Circuit Court Judge for the 16th Judicial District, Jackson County, Missouri.  He was appointed in 2007, and was retained in the 2008 election cycle.

As a Circuit Court Judge, Judge Wimes has presided over approximately twenty-nine criminal trials that have gone to judgment and twenty-five civil trials that have done the same. From 2008 to 2009, Judge Wimes was assigned to the Family Court Division and heard over 500 domestic cases to judgment as well.

Again, I welcome the nominees, their family members and guests.  I look forward to the testimony.

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"This shows how unserious politicians are about our very serious debt problems"