Attorney General Holder Testifies Before the Judiciary Committee-Grassley Opening Statement

Prepared Statement of Senator Chuck Grassley of Iowa, Ranking Member, Senate Committee on the Judiciary

Hearing on "Oversight of the Department of Justice"

Wednesday, January 29, 2014

Mr. Chairman, thank you for holding today's oversight hearing focusing on the Justice Department.  I welcome Attorney General Holder.  There are many issues to discuss about the department's ongoing and important work.

I have to start by pointing out to the Chairman that we still haven't received answers to our questions for the record from the last oversight hearing with the Attorney General almost eleven months ago.  This is simply unacceptable.  The department should show sufficient respect for this committee to answer its questions?AT LEAST prior to its next oversight hearing. We also haven't received replies to questions directed to other department officials who testified at various hearings over the past year.

Mr. Attorney General, this hearing also affords me the opportunity to call to your attention the many letters the department hasn't yet answered.  It is unfortunate that we always have to start department oversight hearings with this same request to respond to unanswered questions from Congress.

For instance, back in early November I wrote you about the Justice Department's counsel to Health and Human Services on the Affordable Care Act.  HHS says that in consultation with your department, it's decided not to apply the anti-kickback statute to the Affordable Care Act.  This is a clear violation of Congress's move to strengthen anti-fraud laws.  Since I haven't received an answer to my letter, I'll ask you about this today.

I've also written you about the department's handling of cases in which National Security Agency employees abused their signals intelligence authorities.

In August, after news reports about these cases, I wrote to the NSA Inspector General about them.  In response, the Inspector General indicated that since 2003, there were twelve documented instances of NSA employees abusing these authorities, in many cases by spying on loved ones.  It's good the number of cases was small, but even one case is too many.  According to the Inspector General, at least six of these cases were referred to your department for prosecution.

In October, I wrote to you to request information about how the department handled these cases.  I asked for a response by December 1st.  I haven't received one.

It's important for the public to know whether the department is taking these cases seriously.  We need to deter this kind of behavior in the future, given the NSA's powerful capabilities.

In addition, this committee has spent a considerable amount of time over the past six months considering various reforms to the NSA.  In his speech on this a few weeks ago, the President directed you to work with the intelligence community to develop "options for a new approach" to the bulk collection of telephone metadata.  I'll be interested in hearing how you are proceeding with this task.

The President has also asked you to do a review of the FBI's whistleblower protections and recommend changes on how to improve them.  The assignment was contained in Presidential Policy Directive 19, which claimed to create protections for whistleblowers with access to classified information.  The President gave you 180 days to complete the review, and it's now ten months overdue.  There is a lot of lip service to whistleblower protection, but this is another example of how the actions don't match the rhetoric.

I'm concerned about the President's Directive. I recently had a whistleblower from the Central Intelligence Agency contact my office.  He was seeking to report alleged violations of the whistleblower protections in the President's Directive, false statements to Congress, and concerns related to qui tam litigation.  He tried to get permission to share the classified details with me.  Yet a CIA lawyer wrote a letter denying permission, claiming Judiciary Committee members aren't authorized to receive classified information about the CIA?which is of course false.  But it scares whistleblowers and intimidates them into silence.  This is one of several things that suggests to me that even with the President's Directive, we need stronger legislative protections for national security whistleblowers.

Another topic I'd like to discuss is the department's non-enforcement of the Controlled Substances Act.  In August, the department announced that it wouldn't challenge laws in Colorado and Washington that legalize the trafficking of marijuana.

The department apparently believed that so long as these states created effective regulatory schemes, key federal enforcement priorities wouldn't be undermined.  Those priorities include the diversion of marijuana into other states, increased use among minors, and more drugged driving fatalities.

However, I am concerned that in many ways this policy is based on willful ignorance of the realities in these states.  For example, as a result of its failure to adequately regulate medical marijuana, Colorado has seen a sharp increase in public health and law enforcement problems related to these federal priorities over the past few years.  Just a few weeks ago, a senior Drug Enforcement Administration official told the Senate Caucus on International Narcotics Control that what was happening in these states is "reckless and irresponsible."

At a minimum, it's important that the department set firm criteria to measure whether - or when - its federal priorities are harmed so much that the decision not to challenge these state laws is revisited.

This is all the more important now that I  understand you will soon announce additional guidance that will permit marijuana distributors in these states to use the banking system to engage in what is, under federal law, money laundering.

I'm also concerned that this Administration hasn't been faithful to the Constitution in a number of other areas by unilaterally changing or ignoring laws passed by Congress.  In my view, many of these actions are inconsistent with the Constitution's requirement that the President "take Care that the Laws be faithfully executed."

However, the Justice Department's Office of Legal Counsel should provide an independent check on the executive's actions.  The Office of Legal Counsel is responsible for advising the executive branch on constitutional questions.  Moreover, it reviews the constitutionality of all proposed Executive Orders.

Last night during the State of the Union address, the President signaled that he will use Executive Orders aggressively to advance his agenda this year.  Transparency should be brought to the Office of Legal Counsel's analysis of proposed Executive Orders, so that the American people can see whether they are subjected to a rigorous constitutional review.