Prepared Statement of Senator Chuck Grassley

Ranking Member, Senate Committee on the Judiciary

Executive Business Meeting

Thursday, February 9, 2012

With regard to the nominations, there are four nominations on the agenda for the first time.  There is a request on our side for these nominations to be held over for a week.

Today, the only bill on the agenda is S. 1945- The Cameras in the Courtroom Act.  It would allow all Americans to have the opportunity to watch Supreme Court proceedings.  This bill is not new.  It has been before the committee on several occasions.  Each time, it was reported out favorably with bi-partisan support.

I am a cosponsor of this legislation and strongly believe it will help educate millions of Americans who do not know or understand how the Supreme Court works.

Before we move to S.1945, I want to take a minute and talk about an important issue that relates to the transparency of court proceedings that members of the committee should be aware of.

Yesterday, Judge Emmet Sullivan of the Federal District Court for the District of Columbia issued an opinion ordering the public release of a 500 page report outlining serious misconduct by Justice Department attorneys from the Public Integrity Section during the prosecution of Senator Ted Stevens.

In the opinion, Judge Sullivan discussed the tortured history of the Stevens prosecution.  Specifically, he noted that after a public indictment, a public trial, a public conviction, and a press conference celebrating the guilty verdict, evidence of prosecutorial misconduct arose.

He also noted that only as the evidence of misconduct became clearer, and harder to refute, did the Justice Department dismiss the indictment and vacate the verdict.  However, the Justice Department also stepped in to protect the prosecutors.

The Justice Department initially sought to prevent any misconduct review by the court arguing instead for an internal review the prosecutors conduct via the Office of Professional Responsibility (OPR).  To his credit, Judge Sullivan did not allow this and instead appointed a special investigator to investigate and prosecute the Justice Department attorneys responsible for the prosecution of Senator Stevens.

Following the completion of this investigation, the special investigator produced a 500 page report that found, "the investigation and prosecution of Senator Stevens were permeated by the systemic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."  This is an incredible finding and one that as Judge Sullivan puts it, has "led to a continuing national public discourse on prosecutorial misconduct and whether and what steps should be taken to prevent it."

I agree with Judge Sullivan, the public has a right to know what the special investigator found and how pervasive the misconduct was inside the Public Integrity Unit at the Justice Department.  The American people need to hear the truth about what happened, not simply trust the Justice Department's internal Office of Professional Responsibility review process.

In addition to Judge Sullivan's decision to release the independent report, the Justice Department should follow and publicly release the final report issued by Office of Professional Responsibility.

At our oversight hearing in November, Attorney General Holder stated in response to a request from Senator Hatch calling for the release of the final Office of Professional Responsibility report, "That is up to the people at OPR...what I have indicated was that I want to share as much of that as we possibly can, given the very public nature of that matter, and the very public decision that I made to dismiss the case."

Despite the Attorney General's purported desire to make this information public, his initial comment that it is "up to the people at OPR" to make that decision, leads me to believe we aren't likely to ever see that report.

The Justice Department has routinely blocked the release of Office of Professional Responsibility investigations citing privacy laws and employee rights of the attorneys and agents guilty of misconduct.  The Attorney General ultimately oversees the Office of Professional Responsibility and if he truly wants that information made public, he should order it released upon the conclusion of the investigation.

Between the misconduct in the Stevens case and the notorious Operation Fast & Furious, where the Justice Department knowingly walked guns to Mexican drug cartels which may have led to the death of a federal agent, it's easy to see why so many elected officials and the American people have lost faith in the leadership at the Justice Department under the Obama Administration.

These public failures paint a picture of a department where bad decision-making rules the day -- A department where attorneys prosecuting a sitting U.S. Senator systemically conceal "significant exculpatory evidence" that would have damaged the testimony and credibility of the government's key witness.

A department where whistleblowers, who don't go along, are sure to face retaliation from supervisors and then are forced into bureaucratic limbo to adjudicate their cases.

A department where one Assistant Attorney General prepares a letter to a Senator saying that ATF doesn't allow guns to cross the border, while another Assistant Attorney General is in Mexico the same day advocating a plan to let guns cross the border as an investigative strategy?which was explicitly forbidden by the Deputy Attorney General a month later.

Something is wrong here and it's easy to see why the public is outraged.

Further, the overreaching by the Obama Administration's Justice Department impacts us here in Congress, Republican and Democrat.  For example, legislation addressing online infringement hit a massive roadblock on the floor in part because the public doesn't trust the current Justice Department to do the right thing. Instead, and I heard from many constituents about this point, the American people are worried the Attorney General will use his power for political censorship.  That's the kind of impact the distrust has had and it affects us all.

The Stevens prosecution and these other examples are all serious problems that need to be addressed.  Not to mention the fact that the failed prosecution cost the taxpayers three-fold. First, the cost to investigate and prosecute; second, the cost of the special investigator; and third, the defense attorneys paid to defend the prosecutors from the contempt charge.  The defense attorneys alone cost taxpayers $1.8 million.

The cost alone is reason enough for us to discuss these cases in this committee and hold a hearing to get to the bottom of what is going on at the Justice Department.  The public's confidence in the department is shaken and rightfully so.

The best thing the department can do is be transparent and accountable, something that was promised, not only by the President, but also at many confirmation hearings.  The transparency promised has yet to be realized.

S. 1945-Cameras in the Courtroom Act

My interest in expanding the people's access to the Supreme Court increased eleven years ago when the Supreme Court decided to hear arguments on the Florida recount during the 2000 Presidential Election.  Senator Schumer and I urged the Supreme Court to open the arguments to live broadcast.  In response, the Supreme Court took the then unprecedented step of releasing an audio recording of their arguments shortly after they occurred.  It was a sign of progress that gave the entire country the opportunity to experience what so few get to: the Supreme Court at work.

In 2010, the Supreme Court began releasing audio recordings of its proceedings at the end of each week.  This was another step in the right direction and I applaud the court for increasing its transparency and access.  But it's not enough.  I believe that the nature of our government and the fundamental principles upon which it was built require more.

As President Lincoln said, ours is a government of the people, by the people, and for the people.  Our Constitution divides power.  It creates a system of checks and balances.  But most importantly, it makes the government accountable to the people.  The best way we can ensure that the federal government is accountable is to create transparency, openness, and access.

That's why this bill is necessary: it offers Americans access to the highest court in the land.  According to a poll released last year, 62 percent of Americans believe that they hear too little about the workings of the Supreme Court.  Two-thirds of Americans want to know more.  What could be a better source of the workings of the Supreme Court than the Supreme Court itself?

In 1947, the Supreme Court stated, "what transpires in the courtroom is public property."  Well, if its public property, then it belongs to the whole public, not just the 200 people who can fit inside the public gallery.  With today's technology, there's no reason why arguments could not be broadcast in an easy, unobtrusive, and respectful manner that would preserve the dignity of the Supreme Court's work and grant access to the millions of Americans wishing to know more.

My state knows something about this.  For over 30 years, Iowa has permitted the broadcast of its trial and appellate courts.  In fact a few weeks ago, Iowa Supreme Court Chief Justice Mark Cady testified before this committee about his unique experience sitting on a bench that regularly broadcast its proceedings.  It's important to note that he was the only witness with this experience.

Because of his unique perspective, I urge my colleagues to give special weight to his testimony, especially to three things he emphasized.

First, Chief Justice Cady explained that broadcasting the court's proceedings had NO negative effect.  He was asked about the effects cameras had on case preparation, on the attorneys before the court, and on the judges themselves and their deliberations.  In each instance, he reported that there was NO effect.

Second, he and his fellow justices did not anticipate the great interest their proceedings drew.  In 2006, the court began webcasting its arguments.  That year, the 40 arguments the court webcast were viewed a modest 5,000 times.  The following year, however, court arguments were viewed over 75,000 times.  I believe that when the Supreme Court begins broadcasting their proceedings, they too will be pleasantly surprised by the large numbers of Americans interested in the work they do.

Third and last, Chief Justice Cady told us that he and his fellow justices have noted how creating an open, transparent, and accessible Supreme Court has increased Iowans' understanding and trust of the court's role.  I believe that once the American people are able to see and observe their Supreme Court in action, they too will gain a greater understanding of, and appreciation for, the court.

For those reasons, I urge my colleagues to vote for this bill.