September 30, 2008

Whitehouse Criticizes Attorney General Over Unanswered Questions in DOJ Report

Mr. WHITEHOUSE. Mr. President, I’m particularly gratified to be speaking about this now because you, the distinguished Senator from Colorado, were formerly the Attorney General of Colorado, at a time when I was the former Attorney General of Rhode Island. And I just want to make one quick point.

We all recall the very unfortunate tragedy, really, that befell the Department of Justice as a result of extremely unfortunate decisions made at the management level that culminated in the forced retirement, the firing, if you will, of a significant number of United States Attorneys for political reasons. And the fallout from that disaster has obviously been profound. The Attorney General resigned, the entire top structure of the Department of Justice is gone and lengthy investigation has taken place into what happened.

In the last two days the Office of Inspector General of the Department of Justice and the Office of Professional Responsibility of the Department of Justice have released their report. It’s about this big, it’s 348 pages, I think, and I have been through it. And first of all, I want to compliment the Office of Inspector General and the Office of Professional Responsibility on the work that they did. It is a exhaustive, thorough and profound piece of investigative research.

But the thing that sticks out more than anything else from that report to me is the fact that former White House appointees refused to be interviewed. The former counsel, a lawyer to the White House, refused to be interviewed, and the President’s political advisor refused to be interviewed. More than that, the White House itself refused to provide internal e-mails relevant to this investigation to the Department of Justice.

Now, we’ve been denied those things on grounds of executive privilege, but there is no executive privilege between the White House and an executive agency, so there were no grounds for refusing to cooperate and refusing to provide those materials. There was no legal justification for it. They just said no.

Worse still, as the Presiding Officer knows, there is an Office within the Department of Justice known as the Office of Legal Counsel. I repeat, within the Department of Justice. The Office of Legal Counsel itself refused to provide a document in its possession to the Office of Inspector General and the Office of Professional Responsibility in this investigation. It was a triple stonewall. The former White House officials, the White House itself, and the Office of Legal Counsel with respect to this one White House document.

Now, as a result of this, the Inspector General’s report itself concludes that their investigation was hampered – that’s their word – that their investigation was hindered — that’s their word — and their investigation – that there were gaps – their word – gaps left in this investigation as a result of the White House’s failure to cooperate. An instruction to the O.L.C. not to produce the document. And, indeed, one of the people who refused to cooperate, former White House employees – former White House counsel Miers, indicated that the reason she wasn’t was to cooperate with this would be inconsistent with White House instructions not to cooperate with Congress.

So here is the point. Where’s the Attorney General in this? You’ve been an Attorney General. I’ve been an Attorney General. What happens when you are in charge of an investigation and your investigators are hampered and hindered in their investigation in a way that leaves gaps in the investigation, as a result of noncooperation by your own administration? What do you do? We were elected to our positions as Attorney General. We would have known what to do.

I think that this is a very important moment in the history of the Department of Justice. It is a contest of wills between the White House refusing to cooperate and the Department of Justice going about its legitimate investigative function. I think the Attorney General has an important role in this. I think it is vital for the Attorney General to stand with his investigators, with his Office of Inspector General, with his Office of Professional Responsibility. I think he has no choice without doing lasting damage to the Department of Justice and creating forever the precedent that when it comes to the investigative responsibilities of the Department of Justice, White House participation is optional even when the investigation leads into the White House. That is an admission by the Department of Justice at the highest level by the Attorney General himself, that the White House is above the law in this country, which I don’t think is the right answer.

I haven’t been in that position and I know it’s a tough call. But other Attorneys General have been in that position and they have faced that tough call. Just recently, we learned that Attorney General Ashcroft was prepared to resign in a similar faceoff with the White House, backed by Deputy Attorney General Comey and others in the Department. And faced with that stern resolve by those men, the White House blinked and backed down.

So the question now is: does Attorney General Mukasey have that same stern resolve or will he be the one who blinks and backs down? He’s appointed a new special prosecutor but we don’t know about what’s going to happen there. As a former Attorney General knows well, that could disappear into grand jury, be protected behind rule 6E, the rule of secrecy in the grand jury and never be heard from again. This could be a way to put the investigation aside and quiet it rather than to see it through. But what the Attorney General can do is march up to the White House and say this noncooperation is not tolerable, it is not acceptable and I will not stand for it.

One of two things is going to happen. Either the White House is going to cooperate with my investigation or I’m going to resign. That is the position that the Attorney General is now in.
Winston Churchill used to talk about the fine agate points on which great institutions and history turn. I think Attorney General Mukasey is at one of those points, and the question for him now is: do you blink or do you stand with your investigators?

I thank the distinguished Senator from Iowa. I said I would be brief and I was only marginally brief, perhaps by senate standards I was brief but not by real standards, and I appreciate his patience. I yield the floor.